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Rail Safety Legislation Amendment
(National Services Delivery and Related
Reforms) Bill 2019
Introduction Print
EXPLANATORY MEMORANDUM
General
The Rail Safety Legislation Amendment (National Services Delivery and
Related Reforms) Bill 2019 (the Bill) transitions Victoria's rail safety
regulatory service delivery arrangements to a direct service delivery model
under the national rail safety regime and transfers the regulation of all
railways to the Office of the National Rail Safety Regulator.
The Bill achieves this transition by making significant amendments to the
Rail Safety National Law Application Act 2013, repealing the Rail Safety
(Local Operations) Act 2006 and making consequential amendments to the
Transport (Safety Schemes Compliance and Enforcement) Act 2014, and
other transport legislation.
The Rail Safety National Law Application Act 2013 applies the Schedule
to the Rail Safety National Law (South Australia) Act 2012 (Rail Safety
National Law) as a law in Victoria (Rail Safety National Law (Victoria)),
provides for the necessary local variations to that law and makes
consequential amendments to other Victorian Acts required as a result of the
introduction of the Rail Safety National Law.
The Rail Safety National Law (Victoria) currently applies to most heavy rail
operations in Victoria and to some tourist and heritage railway operators, but
does not apply to trams and light rail operations and 7 tourist and heritage
railways.
The Rail Safety National Law Application Act 2013 currently provides for
the Director, Transport Safety (established under the Transport Integration
Act 2010) to operate under a service level agreement for the delivery of
services in Victoria. The service level agreement model was chosen as a
591015 1 BILL LA INTRODUCTION 13/8/2019
transitional arrangement before full integration of current regulatory services
into the national regulatory scheme was completed.
The Bill facilitates regulation of all rail safety in Victoria through a direct
service delivery model.
The Bill makes the amendments required to Victorian statutes to give effect
to that recommendation, remove Victorian regulation of trams and remaining
tourist and heritage railways and include those railways within the ambit of
the Rail Safety National Law (Victoria).
Overview of the Bill
The Bill repeals the Rail Safety (Local Operations) Act 2006 which
currently contains provisions regarding the safe operation of railways in
Victoria to which the Rail Safety National Law (Victoria) does not apply.
That Act also sets out evidentiary and procedural matters relating to drug and
alcohol controls for rail safety workers under both the national and local
schemes.
The Bill amends the Rail Safety National Law Application Act 2013 in
order to repeal provisions which are no longer required due to the transition
to the national regulatory scheme for rail safety, and inserts matters relating
to drug and alcohol controls which are being moved from the Rail Safety
(Local Operations) Act 2006.
Each State and Territory maintains its own drug and alcohol procedures in
local statutes. This allows each State and Territory to maintain testing
procedures consistent with road safety procedures.
The Bill also inserts savings and transitional provisions into the Rail Safety
National Law Application Act 2013 to provide for the continuity of
regulation in the transfer to a national rail safety scheme.
The Bill also amends the Transport (Safety Schemes Compliance and
Enforcement) Act 2014, which provides a compliance and enforcement
scheme for local rail safety, bus safety and marine safety schemes.
Transport safety officers appointed under the Transport (Safety Schemes
Compliance and Enforcement) Act 2014 will no longer exercise
enforcement and compliance powers in relation to rail safety. Instead, rail
safety enforcement and compliance work will be undertaken by officers of
the Office of the National Rail Safety Regulator under the Rail Safety
National Law (Victoria).
2
The Bill also amends the Transport Integration Act 2010 to change the
scope of the functions of the Director, Transport Safety, which will no longer
include rail safety related matters.
Schedule 1 of the Bill makes various consequential amendments to other
Acts to reflect the transition of the regulation of all railways to the national
scheme and the repeal of the Rail Safety (Local Operations) Act 2006.
Together, the amendments in the Bill complete the transition of the regulation
of all Victorian railways to the Office of National Rail Safety Regulator so
that the safety of all rail infrastructure, rolling stock operations and rail safety
work in Victoria is regulated under the national scheme.
Clause Notes
Part 1--Preliminary
Part 1 provides for preliminary matters, including purposes and
commencement.
Clause 1 sets out the main purposes of the Bill, which are--
to amend the Rail Safety National Law Application
Act 2013 in order to--
provide for the safety of all rail infrastructure and
rolling stock operations carried out in Victoria
and for all rail safety work carried out in Victoria
to be regulated under the Rail Safety National
Law (Victoria); and
provide for the Office of the National Rail Safety
Regulator to be the sole regulator for the
Victorian rail transport industry; and
to repeal the Rail Safety (Local Operations) Act 2006
and as a consequence re-enact the provisions for the
alcohol and drug testing of rail safety workers in the
Rail Safety National Law Application Act 2013.
Clause 2 deals with the commencement of the Bill.
Subclause (1) provides that, subject to subclause (2), the
provisions of the Bill come into operation on a day or days to be
proclaimed.
3
Subclause (2) provides that if a provision of the Bill does not
come into operation before 1 July 2020, that provision will come
into operation on that day.
Clause 3 specifies that in the Bill the Rail Safety National Law
Application Act 2013 is called the Principal Act.
Part 2--Amendment of the Rail Safety National Law Application
Act 2013
Part 2 provides for amendments to the Rail Safety National Law
Application Act 2013 in order to achieve the purposes of the Bill.
Division 1--General
Division 1 of Part 2 of the Bill makes general amendments to the Rail Safety
National Law Application Act 2013.
Clause 4 makes changes to the definitions contained in section 3(1) of the
Rail Safety National Law Application Act 2013
(the Application Act)--
inserts a definition of public sector body and public
sector employee which have the same meaning as in the
Public Administration Act 2004;
repeals the definitions of excluded local railway,
railway crossing, service level agreement and transport
safety officer as these definitions are no longer required
due to the repeal of various provisions in the
Application Act; and
makes other minor consequential amendments.
Clause 5 repeals section 4 of the Rail Safety National Law Application
Act 2013 which enables the Minister to specify the day on which
a service level agreement comes into effect. As there will no
longer be a service level agreement, this provision is no longer
required.
Clause 6 makes a consequential amendment to section 6(a) of the Rail
Safety National Law Application Act 2013, which applies the
Rail Safety National Law (South Australia) 2012 in Victoria.
Clause 7 amends section 7 of the Rail Safety National Law Application
Act 2013 which provides for the interpretation of certain
expressions in the Rail Safety National Law (Victoria).
4
Subclause (1) repeals the definitions of public sector body,
public sector employee and railway from section 7(1) of the Rail
Safety National Law Application Act 2013.
The definitions of public sector body and public sector employee
are repealed in section 7 as they have been inserted into
section 3(1) of the Rail Safety National Law Application
Act 2013.
The definition of railway is no longer required as it will now be
the same as that in the Rail Safety National Law.
Subclause (2) inserts a new subsection into section 7 of the Rail
Safety National Law Application Act 2013 to clarify that for
the purposes of the Rail Safety National Law Application
Act 2013 and the Rail Safety National Law (Victoria) and any
other Act or law, the Office of the National Safety Regulator is
not an agency or instrumentality of the Crown in right of
Victoria.
Clause 8 repeals section 9 of the Rail Safety National Law Application
Act 2013 which provides for the Governor in Council to declare
a railway, or a railway of a specified class, to be an excluded
local railway.
Section 9 is no longer required because, by virtue of other
amendments made by the Bill, all railways will be covered by the
Rail Safety National Law (Victoria) and none will need to be
excluded.
Clause 9 amends section 11(1) of the Rail Safety National Law
Application Act 2013, which excludes the application of
specified Victorian legislation to the Rail Safety National Law
(Victoria), to--
remove reference to the Public Administration
Act 2004; and
insert the Fines Reform Act 2014, the Infringements
Act 2006 and the Privacy and Data Protection
Act 2014.
The additional Acts are to be excluded from application because
the Infringements Act 2006 and Fines Reform Act 2014
processes and procedures are not intended to apply to
infringements served by the Office of the National Rail Safety
Regulator under the Rail Safety National Law (Victoria). The
5
Privacy and Data Protection Act 2014 is now to be excluded to
reflect a decision made by all jurisdictions in 2018 that the
Privacy Act 1988 of the Commonwealth will apply to the Rail
Safety National Law instead of different privacy laws in each
jurisdiction.
Clause 10 repeals Part 3 of the Rail Safety National Law Application
Act 2013 which contains provisions regarding service level
agreements. These provisions will no longer be required under a
direct service delivery model where all regulation is under the
National Rail Safety Regulator.
Clause 11 repeals Division 1 of Part 4 of the Rail Safety National Law
Application Act 2013 which contains provisions modifying the
definitions of private siding and railway crossing under the Rail
Safety National Law (Victoria).
The modifications are no longer required because private sidings,
including freight terminals, will transition to the national scheme
and the definition of railway crossing was updated in 2019 in the
Rail Safety National Law (Victoria) and is now appropriate for
use in Victoria.
Clause 12 inserts new Division 1A before Division 2 in Part 4 of the Rail
Safety National Law Application Act 2013 and deals with
additional rail safety duties that are currently applicable in
Victoria under the Rail Safety (Local Operations) Act 2006.
The clause ensures that the duties remain applicable despite the
repeal of that Act.
New section 40A modifies the Rail Safety National Law to insert
a new provision which provides for duties of persons providing
railway operations by means of contracted personnel.
The modified provision, as a new section 53A, provides that
labour-hire entities who supply the services of an individual that
they employ or engage to carry out railway operations to a rail
infrastructure manager under an agreement or arrangement must,
so far as is reasonably practicable, ensure that individual is
competent to carry out the railway operations.
6
Clause 13 repeals Divisions 3 and 4 of Part 4 of the Rail Safety National
Law Application Act 2013.
Division 3 of Part 4 modifies the delegation powers of the Office
of the National Rail Safety Regulator. The modifications are no
longer required due to the transition to the national scheme.
Division 4 of Part 4 modifies Part 6 of the Rail Safety
(Local Operations) Act 2006 and applies provisions in that part
regarding alcohol and drug controls for rail safety workers to the
national scheme. The Division is no longer required as new
Part 4A, which is inserted into the Rail Safety National Law
Application Act 2013 by the Bill, contains the equivalent of the
Part 6 Rail Safety (Local Operations) Act 2006 provisions.
Clause 14 substitutes Division 7 of Part 4 of the Rail Safety National Law
Application Act 2013 to provide a specific ability for the Office
of the National Rail Safety Regulator to provide information
about notifiable occurrences to the Secretary to the Department
of Transport and to the Chief Investigator, Transport Safety.
This is despite the restrictions placed on the National Regulator
under section 244 of the National Law. The ability for the
National Regulator to provide this information to the Department
is essential to understand safety issues on the rail network.
Clause 15 repeals Division 5 of Part 7 of the Rail Safety National Law
Application Act 2013 which relates to a spent provision.
Clause 16 repeals section 157 of the Rail Safety National Law
Application Act 2013 which relates to a spent transitional
provision.
Division 2--Alcohol and drug controls for rail safety workers
Division 2 of Part 2 of the Bill amends the Rail Safety National Law
Application Act 2013 in relation to alcohol and drug controls for rail safety
workers.
Clause 17 inserts a new Part 4A after Part 4 of the Rail Safety National
Law Application Act 2013 regarding evidentiary and procedural
matters relating to drug and alcohol controls for rail safety
workers. Provisions regarding these matters are currently
contained in Part 6 of the Rail Safety (Local Operations)
Act 2006 but are now being included, with some amendments, in
the Rail Safety National Law Application Act 2013 due to the
7
repeal of the Rail Safety (Local Operations) Act 2006 provided
for by this Bill.
Victorian laws on drug and alcohol testing are broadly consistent
across road, rail and marine regulation. Each State and Territory
maintains its own drug and alcohol procedures in their own
statutes with respect to rail safety, while the offences are
contained in the Rail Safety National Law (Victoria). This
allows each State and Territory to maintain consistent drug and
alcohol testing procedures across all modes of transport.
Division 1 of new Part 4A deals with preliminary matters relating
to alcohol and drug controls for rail safety workers, including
definitions, powers to approve persons to take blood samples and
presumptions applicable to certain drug and alcohol offences.
New section 48A specifies definitions that are applicable for the
purposes of Part 4A including the meaning of approved health
professional, assessment of drug impairment, drug screening
test and oral fluid analysis.
New section 48B specifies that the Victorian Institute of Forensic
Medicine Director may approve a person to take blood samples
for the purposes of the Rail Safety National Law (Victoria) and
Part 4A of the Rail Safety National Law Application Act 2013.
New section 48C modifies the application of section 126(1) of
the Rail Safety National Law (Victoria) to include the ability of
an authorised person to require a rails safety worker to undergo
an assessment of drug impairment, which is a current
requirement of the Victorian law.
New section 48D provides for certain presumptions that apply in
relation to offences relating to the presence of prescribed
concentrations of alcohol or other drugs in a rail safety worker's
blood, breath or oral fluid. These presumptions are not otherwise
provided for in the Rail Safety National Law (Victoria).
New section 48E specifies that a rail safety worker is not to be
taken to be impaired for the purposes of sections 48O to 48X of
the Rail Safety National Law Application Act 2013, regarding
assessments of drug impairment, unless the worker's behaviour or
appearance is such as to give rise to a reasonable suspicion that
the worker is unable to carry out rail safety work properly.
8
New section 48F specifies circumstances when a rail safety
worker is to be regarded as being about to carry out rail safety
work for the purposes of Division 9 of Part 3 of the Rail Safety
National (Law) (provisions regarding drug and alcohol testing by
the Regulator) and Part 4A of the Rail Safety National Law
Application Act 2013, namely, if the worker has arrived at the
worker's place of work but has not yet begun work.
New section 48G provides that if a rail safety worker who is
found guilty of an offence against any one of the paragraphs of
section 128(1) of the Rail Safety National Law (Victoria) or the
paragraphs of section 48H(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.
Division 2 of New Part 4A sets out drug and alcohol offences
that are applicable in addition to the offences under the Rail
Safety National Law (Victoria) along with provisions regarding
related evidentiary matters, such as proof of facts in court cases
and recording of convictions which are not dealt with under that
law.
New section 48H provides for additional offences involving
alcohol and drugs that are applicable for rail safety workers in
Victoria.
These include where a rail safety worker--
carries out rail safety work while more than the
prescribed concentration of alcohol is present in the
worker's breath or blood; or
carries out rail safety work while impaired by a drug; or
refuses or fails to comply with requirements under
specified sections of the Rail Safety National Law
Application Act 2013.
9
These offences are included in addition to the offences under the
Rail Safety National Law (Victoria) because they provide for
offences relating to the drug and alcohol testing procedures
which are dealt with differently in each jurisdiction under the
national scheme.
New section 48H(2) provides that a rail safety worker who is
guilty of an offence under section 48H(1) is liable to a fine not
exceeding $10 000.
New section 48H(3) provides that it is a defence to a charge
under section 48H(1)(i) regarding a rail safety worker having
more than the prescribed concentration of alcohol present in the
worker's breath if the person charged proves that the breath
analysing instrument used was not on that occasion in proper
working order or properly operated.
New section 48H(4) provides that it is a defence to a charge
under section 48H(1)(j), in relation to a blood sample taken under
section 48ZA containing more than the prescribed concentration
of alcohol, for the person charged to prove that the result of the
analysis was not a correct result.
New section 48I provides for additional circumstances when rail
safety workers may be convicted or found guilty of offences
under section 126(3) or 127(3) of the Rail Safety National Law
(Victoria) or section 48H(1)(d).
New section 48I(a) provides that a rail safety worker may be
convicted or found guilty of an offence under section 126(3) of
the Rail Safety National Law (Victoria) constituted by a failure to
submit to a preliminary breath test or breath analysis even if--
a breath analysing instrument was not available in 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.
New section 48I(b) provides that a rail safety worker may be
convicted or found guilty of an offence under section 127(3) of
the Rail Safety National Law (Victoria) constituted by a failure to
submit to a drug screening test, oral fluid analysis, blood test or
urine test (or any combination of these) even if--
10
the authorised person requiring a sample of blood or
urine had not nominated a registered medical
practitioner or approved health professional to take the
sample; or
if the worker was required under section 48R(3) to
provide a sample of oral fluid for analysis by a properly
qualified analyst, the authorised person requiring a
sample of oral fluid has not nominated a registered
medical practitioner or approved health professional to
whom the sample was to be furnished.
New section 48I(c) provides that a rail safety worker may be
convicted or found guilty of an offence under section 48H(1)(d)
even if--
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.
New section 48I(d) provides that a rail safety worker may be
convicted or found guilty of an offence under section 127(3) of
the Rail Safety National Law (Victoria) even if--
a requirement to submit a drug screening test, oral fluid
analysis or blood or urine 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 or urine test was not present
at the place where the requirement was made at the time
it was made.
New section 48J provides for the circumstances in which
evidence as to the effect of the consumption of alcohol or
consumption or use of a drug may be admissible in proceedings
for certain drug and alcohol offences.
11
New section 48K provides for proof of the existence of certain
facts, in the absence of evidence to the contrary, to be proof that a
rail safety worker was drug impaired while carrying out rail
safety work, for the purposes of a proceeding for an offence of
being impaired by a drug. These include 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 the worker carried
out rail safety work; and
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.
Division 3 of new Part 4A contains provisions regarding the
detailed procedures applicable to drug and alcohol testing in
Victoria. These procedures align with the procedures under the
Road Safety Act 1986.
New section 48L provides for additional matters relating to
preliminary breath tests carried out under section 126 of the Rail
Safety National Law (Victoria).
New section 48L(2) sets out how a rail safety worker must
undergo a preliminary breath test.
New section 48L(3) specifies that a rail safety worker is not
obliged to submit to testing by means of a preliminary breath test
under section 126 of the Rail Safety National Law (Victoria) if
more than 3 hours have passed since the worker last carried out
rail safety work.
New section 48M provides for additional matters relating to
breath analysis tests under section 126 of the Rail Safety National
Law (Victoria).
12
New section 48M(2) sets out how a breath analysis test is to be
carried out which includes 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.
New section 48M(3) and (4) provide for a rail safety worker to
accompany an authorised person to a police station or other place
for the purpose of testing, or to remain at a place where the tests
will be undertaken.
The note under new section 48M(4) notes that section 126(1)(f)
forms part of the Rail Safety National Law (Victoria) by virtue of
section 48C of the Rail Safety National Law Application
Act 2013.
New section 48M(5) provides that if a rail safety worker is
required to furnish a sample of breath for analysis, the worker
must do so by exhaling continuously into the instrument to the
satisfaction of the person operating it.
New section 48M(6) provides that a rail safety worker is not
obliged to furnish a sample of breath under section 48M if more
than 3 hours have passed since the worker last carried out rail
safety work.
New section 48M(7) provides that a breath analysing instrument
referred to in section 48M may only be operated by a person
authorised to do so by the Chief Commissioner of Police.
New section 48M(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 worker whose breath has been analysed
a certificate containing the prescribed particulars produced by the
instrument of the concentration of alcohol indicated by the
analysis to be present in the worker's breath.
New section 48M(9) specifies that a rail safety worker must not
be convicted or found guilty of refusing to furnish a sample of
breath for analysis under section 48M if the worker satisfies the
court that there was some reason of a substantial character for the
13
refusal, other than a desire to avoid providing information which
might be used against the worker.
New section 48M(10) provides that an authorised person who
required a sample of breath from a rail safety worker may require
the worker to allow a registered medical practitioner or approved
health practitioner to take from the worker a sample of blood for
analysis if it appears to the person that--
the 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 worker for any reason whatsoever--
and for that purpose may further require that worker to
accompany an authorised person 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 48M(11) provides that a rail safety worker who
allows the taking of a sample of the worker's blood in accordance
with subsection (10) must not be convicted or found guilty of
refusing to furnish under section 126(1) of the Rail Safety
National Law (Victoria) a sample of breath for analysis.
New section 48M(12) provides that a person must not hinder or
obstruct a registered medical practitioner or an approved health
professional attempted to take a sample of blood of any other
person in accordance with subsection (10). An offence against
section 48M(12) attracts a penalty of $10 000.
New section 48M(13) 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
health professional believed on reasonable grounds was allowed
to be taken under section 48M(10).
New section 48N provides for evidentiary matters relating to
breath analysis and the admissibility of evidence which has been
produced by breath analysing instruments.
14
This provision is included to allow for the fact that the
documentation may be produced by instruments that are also
used for the purposes of the drug and alcohol control provisions
under the Road Safety Act 2006.
New section 48O provides for the power for police officers to
conduct assessments of drug impairment on rail safety workers.
Assessments of drug impairment are not required under the Rail
Safety National Law (Victoria) but are a drug control procedure
commonly carried out by police officers in Victoria. The power
is included with respect to rail safety workers as it aligns the drug
and alcohol control scheme for rail safety with the procedures for
road safety under the Road Safety Act 1986.
New section 48O(1) and (2) set out the circumstances for when a
police officer may require a rail safety officer to undergo an
assessment of drug impairment.
New section 48O(3) provides that a police officer may only
require a rail safety worker to undergo an assessment of drug
impairment under section 48O(1) or (2) if the officer is of the
opinion that the rail safety worker's behaviour or appearance
indicates that the worker may be impaired for a reason other than
alcohol alone.
New section 48O(4) provides that a police officer may direct a
rail safety worker required to undergo an assessment of drug
impairment under section 48O(1) or (2) to accompany the officer
to a place where the assessment is to be carried out and to remain
there 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 48O(5) specifies that a rail safety worker is not
obliged to undergo an assessment of drug impairment if more
than 3 hours have passed since the worker last carried our rail
safety work.
New section 48P specifies the procedure that must be followed
by a police officer carrying out an assessment of drug impairment
under section 48O. This procedure aligns the procedure under
the Rail Safety National Law Application Act 2013 with the
procedure for an assessment of drug impairment under the Road
Safety Act 1986.
15
New section 48P(1) provides that an assessment of drug
impairment must be carried out by a police officer authorised to
do so by the Chief Commissioner of Police.
New section 48P(2) provides that an assessment of drug
impairment must be carried out in accordance with the procedure
specified in a notice published under section 55A(5) of the Road
Safety Act 1986.
New section 48P(3) requires that the carrying out of an
assessment of drug impairment on a rail safety worker be
video-recorded if the worker was involved in a notifiable
occurrence or prescribed notifiable occurrence unless the
prosecution satisfies the court that a video-recording has not been
made because of exceptional circumstances.
New section 48P(4) 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 48H(1)(b),
and the carrying out of the assessment of drug impairment is
video-recorded, a copy of the video-recording 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 48P(5) provides that, subject to section 48P(6), the
video-recording of the carrying out of an assessment of drug
impairment on a rail safety worker is only admissible in a
proceeding against that worker for an offence against Division 9
of Part 3 of the Rail Safety National Law (Victoria) (regarding
drug and alcohol testing by the Regulator) or Part 4A of the Rail
Safety National Law Application Act 2013 for the purpose of
establishing that the assessment of drug impairment was carried
out in accordance with the procedure specified in a notice under
section 55A(5) of the Road Safety Act 1986.
New section 48P(6) specifies 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 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 48Z.
New section 48P(7) provides that in any proceeding under
Division 9 of Part 3 of the Rail Safety National Law (Victoria) or
Part 4A of the Rail Safety National Law Application Act 2013,
16
the following are admissible in evidence and, in the absence of
evidence to the contrary, are proof of the authority of the police
officer--
the statement of a police officer that on a particular date
the officer was authorised by the Chief Commissioner
of Police under section 48P(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 section 48P(1) to carry out an assessment of drug
impairment.
New section 48Q provides for requirements in relation to drug
screening tests that rail safety workers may be required to submit
to under section 127(1) of the Rail Safety National Law
(Victoria).
New section 48Q(2) sets out the procedure for the purposes of
carrying out a drug screening test.
New section 48Q(4) provides that the authorised person who
carried out a drug screening test may give any reasonable
direction as to the physical actions that are necessary for the test
to be carried out.
New section 48Q(5) specifies that the rail safety worker must
remain at the place where the drug screening testing being carried
out until the sample of oral fluid collected in accordance with
section 48Q(2) has been tested by a prescribed device.
New section 48Q(6) provides that a rail safety worker is not
obliged to undergo a drug screening test under section 48Q if
more than 3 hours have passed since the worker--
last carried out or attempted to carry out rail safety
work; or
was involved in a prescribed notifiable occurrence.
New section 48R provides for powers and procedures in relation
to oral fluid analysis.
17
New section 48R(1) specifies that section 48R applies if a rail
safety worker is required to--
undergo an assessment of drug impairment under
section 48O; or
submit to a drug screening test under section 127(1) of
the Rail Safety National Law (Victoria); and
in the opinion of the authorised person who carries out that
assessment or test--
the assessment or test indicates that the worker's oral
fluid contains a prescribed drug; or
the worker has refused or failed to carry out the
assessment or test in the manner described in
section 48P or 48Q(2) (as the case requires).
New section 48R(2) provides that an authorised person may
require the rail safety worker to provide a sample of oral fluid for
testing by a prescribed device.
New section 48R(3) provides that if an authorised person
considers it necessary, they may require the rail safety worker to
provide a sample of oral fluid for analysis by a properly qualified
analyst. Properly qualified analyst is a defined term.
New section 48R(4) provides that if the authorised person
considers it necessary for the purposes of section 48R(2) or (3),
the person may require the rail safety worker--
to accompany any authorised person to a place or
vehicle where a sample of oral fluid is to be provided;
and
to remain there until the earlier of the following--
the worker has provided the sample and any
further sample required to be provided under
subsection (5) and the sample has been tested by
a prescribed device;
3 hours after the worker last carried out or
attempted to carry out the rail safety work or was
involved in a prescribed notifiable occurrence.
18
New section 48R(5) provides that the authorised person who
required a sample of oral fluid to be provided under section
48R(2) may require the rail safety worker who provided it to
provide one or more further samples if it appears to the person
that the prescribed device is incapable of testing for the presence
of a prescribed drug in the sample or samples because--
the amount of sample provided was insufficient; or
of a power failure or malfunctioning of the device.
New section 48R(6) provides that if the authorised person
requires a sample of oral fluid to be provided under section
48R(3), the person may require the rail safety worker who
provided it to provide one or more further samples if it appears to
the person that the amount of sample provided is insufficient for
the purposes of testing for the presence of a prescribed drug.
New section 48R(7) provides that an authorised person who is a
police officer may only carry out the procedure for the provision
of a sample of oral fluid under section 48R if the police officer is
authorised in writing by the Chief Commissioner of Police for the
purposes of section 48R.
New section 48R(8) specifies that the Chief Commissioner of
Police may authorise a police officer for the purposes of
section 48R if satisfied that the officer has the appropriate
training to carry out the prescribed procedure for the provision of
a sample. This is consistent with the road safety scheme.
New section 48S specifies the procedure that applies to the
provision of oral fluid samples by rail safety workers which
aligns with the requirements under the Road Safety Act 1986.
New section 48S(1) sets out the procedure for a rail safety worker
to provide a sample of oral fluid through a prescribed device or
collection unit.
New section 48S(2) provides that an authorised person who
requires a rail safety worker to provide a sample of oral fluid
under section 48R may give any reasonable direction as to the
physical actions that are necessary for the oral fluid sample to be
provided.
New section 48S(3) specifies that a rail safety worker is not
obliged to provide a sample of oral fluid under section 48R if
more than 3 hours have passed since the worker--
19
last carried out or attempted to carry out rail safety
work; or
was involved in a prescribed notifiable occurrence.
New section 48S(4) requires the provision of a sample of oral
fluid under section 48S to be carried out in accordance with the
prescribed procedure.
New section 48S(5) specifies that a rail safety worker must not be
convicted or found guilty of refusing to provide a sample of oral
fluid under section 48R if the worker 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 the worker.
New section 48T provides for the delivery of parts of the sample
to the person who required the analysis and to the rail safety
worker if a test of a sample of oral fluid provided by a worker
under section 48R indicates that the oral fluid contains a
prescribed drug.
New section 48U makes provision for a rail safety worker
required to provide an oral fluid sample to request a sample of
blood to also be taken.
New section 48U(2) provides that the rail safety worker who
provided a sample of oral fluid under section 48R may request
the authorised person who required the sample to be taken to
arrange for the taking of a sample of the worker's blood for
analysis in the presence of an authorised person, at the worker's
own expense by a registered medical practitioner or an approved
health professional nominated by the person.
New section 48V provides authorised persons with powers to
require a blood sample from a rail safety worker if the oral fluid
sample provided is insufficient.
New section 48V(2) provides that the authorised person may
require the rail safety worker to allow a registered medical
practitioner, or an approved health professional nominated by the
person who required the sample, to take a sample of blood for
analysis from the worker.
New section 48V(3) provides that, for the purposes of
section 48V(2), an authorised person may require the rail safety
worker--
20
to accompany any authorised person to a place where
the sample of the worker's blood is to be taken; and
to remain there until the earlier of the following--
the sample is taken;
3 hours after the worker last carried out or
attempted to carry out rail safety work or was
involved in a prescribed notifiable occurrence.
New section 48V(4) specifies that a rail safety worker who
allows the taking of a sample of the worker's blood in accordance
with section 48V must not be convicted or found guilty of
refusing to provide a sample of oral fluid in accordance with
section 48R.
New section 48V(5) specifies that a rail safety worker 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 rail safety worker in accordance with section
48V. The penalty for non-compliance with section 48V(5) is
$10 000.
New section 48V(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 that the practitioner or approved
health professional believes on reasonable grounds was required
to be taken from any rail safety worker under section 48V.
New section 48W provides for evidentiary matters relating to oral
fluid analysis.
New section 48W(1) provides that evidence derived from a
sample of oral fluid following a requirement made under
section 48R or 48V is not rendered inadmissible by a failure to
comply with a request under section 48U, to take a sample of the
rail safety worker's blood, if reasonable efforts were made to
comply with the request.
New section 48W(2) specifies that in any proceeding under
Division 9 of Part 3 of the Rail Safety National Law (Victoria),
regarding drug and alcohol testing by the Regulator, or Part 4A
of Rail Safety National Law Application Act 2013, the
following things are admissible in evidence and, in the absence of
21
evidence to the contrary, are proof of the authority of the police
officer--
the statement of a police officer that on a particular date
the officer was authorised for the purposes of
section 48R(8);
a certificate purporting to be signed by the Chief
Commissioner of Police that a police officer named in it
is authorised for the purposes of section 48R(8).
New section 48X provides for powers and procedures in relation
to carrying out blood and urine testing on rail safety workers.
New section 48X(1) specifies that section 48X applies if a rail
safety worker--
is required by an authorised person to submit to a blood
test or urine test under section 127(1) of the Rail Safety
National Law (Victoria); or
undergoes an assessment of drug impairment when
required under section 48O to do so and the assessment,
in the opinion of the police officer carrying it out,
indicates that the rail safety worker may be impaired by
a drug or drugs.
New section 48X(2) provides that an authorised person may
require the rail safety worker to--
allow a registered medical practitioner or an approved
health professional nominated by the person to take a
sample of that worker's blood for analysis;
furnish to a registered medical practitioner, an approved
health professional or a person appointed under
section 124 of the Rail Safety National Law (Victoria)
nominated by the authorised person a sample of the
worker's urine for analysis.
New section 48X(3) provides that, for the purposes of
section 48X(2), an authorised person may require the rail safety
worker--
to accompany any authorised person to a place where
the sample is to be taken or furnished; and
22
to remain there until the earlier of the following--
the sample is taken or furnished;
3 hours after the worker last carried out or
attempted to carry out rail safety work or was
involved in a prescribed notifiable occurrence.
New section 48X(4) specifies that an authorised person must not
require a rail safety worker to allow a sample of the worker's
blood to be taken for analysis under subsection (2) if that worker
has already had a sample of blood taken under section 48Y after
carrying out rail safety work.
New section 48X(5) specifies that a rail safety worker must not
hinder or obstruct a registered health practitioner or an approved
health professional attempting to take a sample of the blood, or
be furnished with a sample of the urine, of any other person in
accordance with section 48X. The penalty for non-compliance
with this section is $10 000.
New section 48X(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 urine, which the practitioner or approved health professional
believed on reasonable grounds was required to be taken from, or
furnished by, a rail safety worker under section 48X.
New section 48X(7) 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 48H(1)(b), a
copy of a written report on that assessment prepared by the 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 48Y allows a rail safety worker to request that a
sample of that worker's blood be taken for analysis in
circumstances where they have furnished a sample of breath for
analysis.
23
New section 48Y(1) specifies that section 48Y applies if--
a rail safety worker is required under section 126(1) of
the Rail Safety National Law (Victoria) 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 48M.
New section 48Y(2) provides that, immediately after being given
a certificate referred to in section 48M(8), a rail safety worker
may request the authorised person requiring them to furnish a
sample of breath to arrange for the taking of a sample of the
worker's blood for analysis, in the presence of an authorised
person, at the worker's own expense by a registered medical
practitioner or an approved health professional nominated by the
person.
New section 48Z provides for obligations relating to the
destruction of certain identifying information created or collected
in accordance with specified provisions in Part 4A of the Rail
Safety National Law Application Act 2013. The provision only
applies to police officers and the video-recording of drug
impairment assessments and is consistent with the road safety
scheme under the Road Safety Act 1986.
New section 48Z(1) provides that the definition of relevant
offence, for the purposes of section 48Z, is an offence under
section 127(3) of the Rail Safety National Law (Victoria) or
section 48H(1)(b) or (g) which are offences relating to drug
impairment. It also provides that a relevant offence is also any
other offence arising out of the same circumstances or in respect
of which the evidence obtained as a result of the assessment of
drug impairment has probative value.
New section 48Z(2) provides that if a rail safety worker
undergoes an assessment of drug impairment that has been
carried out under sections 48O and 48P and--
the rail safety worker has not been charged with a
relevant offence at the end of the period of 12 months
after the undergoing of the assessment of drug
impairment; 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
24
found guilty of the offence, whether on appeal or
otherwise, before the end of that period--
the Chief Commissioner of Police must, subject to
section 48Z(4), destroy, or cause to be destroyed, at the time
specified in section 48Z(3) any video-recording made of the
assessment and any related material and information.
New section 48Z(3) specifies that a video-recording and any
related material and information referred to in section 48Z(2)
must be destroyed--
in a case to which section 48Z(2)(a) applies,
immediately after that period of 12 months; or
in a case to which section 48Z(2)(b) applies--
within one 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
one month after dismissal under that section.
New section 48Z(4) provides that, before the end of a period
referred to in section 48Z(3)(b), a police officer may 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 section 48Z(3)(b) is a reference to that period as so
extended.
New section 48Z(5) provides that if the Magistrates' Court makes
an order under section 48Z(4), it must give reasons for its
decision and cause a copy of the order to be served on the rail
safety worker on whom the assessment of drug impairment was
carried out.
New section 48Z(6) provides that if a video-recording or related
material and information is to be destroyed in accordance with
section 48Z, the Chief Commissioner of Police must, if the rail
safety worker on whom the assessment was carried out so
requests, within 14 days after receiving the request, notify that
worker in writing whether the destruction has occurred.
New section 48Z(7) provides that a person who knowingly--
fails to destroy; or
25
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 by
a fine of not more than 120 penalty units or imprisonment for a
term of not more than 12 months.
New section 48Z(8) provides that a person who at any time uses,
or causes or permits to be used, or otherwise disseminates
information derived from any video-recording or related material
and information required by section 48Z to be destroyed except
in good faith for the purposes of a relevant offence is guilty of an
offence punishable by a fine of not more than 120 penalty units
or to imprisonment for a term of not more than 12 months.
New section 48ZA provides for blood samples for be taken from
rail safety workers in certain cases.
New section 48ZA(1) defines doctor for the purposes of
section 48ZA to mean a registered medical practitioner, which
includes a police surgeon.
New section 48ZA(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 worker must allow a doctor or approved health
professional to take from the worker at that place a sample of the
worker's blood for analysis. The penalty for non-compliance
with the provision is $10 000.
New section 48ZA(3) specifies 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 worker would be prejudicial to the
worker's proper care and treatment; 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
worker was not a rail safety worker.
New section 48ZA(4) provides that a rail safety worker to whom
subsection (2) applies to and who is unconscious or otherwise
unable to communicate, must be taken to allow the taking of a
26
sample of the worker's blood by a doctor or approved health
professional at a place which the worker enters or to which the
worker is brought for examination or treatment.
New section 48ZA(5) provides that if a sample of a rail safety
worker's blood is taken in accordance with section 48ZA,
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 48ZB; or
for the purposes of the Transport Accident Act 1986--
but may be given--
to the Transport Accident Commission under the
Transport Accident Act 1986 and, for the purposes of
applications relating to that Act, to VCAT; and
to the Department for the purposes of accident research.
New section 48ZA(6) provides that a rail safety worker 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 section 48ZA. The penalty for non-compliance
with the provision is $10 000.
New section 48ZA(7) provides that no action lies against a doctor
or approved health professional in respect of anything properly or
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 reasonable grounds was
required or allowed to be taken from a rail safety worker under
section 48ZA.
Division 4 of new Part 4A contains evidentiary provisions
applicable to drug and alcohol offences under the Rail Safety
National Law (Victoria) and Part 4A of the Rail Safety National
Law Application Act 2013, including provisions in relation to
evidentiary certificates.
New section 48ZB provides for evidentiary provisions and
certificates applicable to blood tests. These provisions align with
evidentiary provisions under the road safety scheme.
27
New section 48ZB(1) provides for the definitions of approved
analyst, approved expert, approved laboratory, properly
qualified analyst and properly qualified expert that are
applicable in section 48ZB and which align with definitions
under the Road Safety Act 1986.
New section 48ZB(2) provides that a person who is an approved
analyst within the meaning of section 57 of the Road Safety
Act 1986 is to be taken to be a properly qualified analyst for the
purposes of this section.
New section 48ZB(3) provides that a person who is an approved
expert within the meaning of section 57 of the Road Safety
Act 1986 is to be taken to be a properly qualified expert for the
purposes of section 48ZB.
New section 48ZB(4) makes provision for certain evidence that
may be given in certain circumstances on a hearing for an offence
against section 128 of the Rail Safety National Law (Victoria) or
section 48H of the Rail Safety National Law Application
Act 2013 or in any inquest or investigation held by a coroner.
The sub-section 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 to such a hearing, inquest or investigation, then,
without affecting the admissibility of any evidence which might
be given apart from the provisions of section 48ZB, 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 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;
28
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 the time of
analysis;
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 48ZB(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
section 48ZB(4) and in the absence of evidence to the contrary,
such a certificate is proof of the facts and matters contained in it.
New section 48ZB(6) provides that a certificate, containing the
prescribed particulars, as to the concentration of alcohol
expressed in grams per 100 millilitres of blood found in any
sample of blood--
purporting to be signed by an approved analyst; and
stating that the sample of blood was analysed in an
approved laboratory--
is admissible in evidence in a proceeding referred to in
section 48ZB(4) and, in the absence of evidence to the contrary,
is proof of the facts and matters contained in it.
New section 48ZB(7) provides that a certificate, containing the
prescribed particulars, as to the presence in any sample of blood
of a substance that is, or is capable of being, a prescribed drug for
the purposes of new Part 4A--
purporting to be signed by an approved analyst; and
stating that the sample of blood was analysed in an
approved laboratory--
is admissible in evidence in a proceeding referred to in
section 48ZB(4) and, in the absence of evidence of the contrary,
is proof of the facts and matters contained in it.
29
New section 48ZB(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 the 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 section 48ZB(4) and, in the absence of evidence to the
contrary, is proof of facts and matters contained in it.
New section 48ZB(9) provides that a certificate given under
section 48ZB must not be tendered in evidence in a proceeding
referred to in section 48ZB(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 48ZB(10) provides that a copy of an evidentiary
certificate given under section 48ZB may be served on the
accused by--
delivering it to the accused personally; or
leaving it for the accused at the accused's 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 48ZB(11) provides that an affidavit or statutory
declaration by a person who has served a copy of a certificate
under section 48ZB on the accused is admissible in evidence in a
proceeding referred to in section 48ZB(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 48ZB(12) provides that an accused who has been
served with a copy of a certificate given under section 48ZB
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.
30
New section 48ZB(13) provides that the court must not grant
leave to an accused under section 48ZB(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 section
48ZB(6) or (7) 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 has
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; 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 has
become contaminated in such a way that a drug found
on analysis would not have been found has the blood
not been contaminated; or
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 48ZB(14) provides that an accused who has been
served with a copy of a certificate given under section 48ZB 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 from the Magistrates' Court
under section 48ZB(12).
31
New section 48ZB(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
section 48ZB; 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 worker was in
fact incapable by reason of the worker's mental condition from
effectively giving consent to the examination or collection.
New section 48ZB(16) provides that, except as provided in
section 48X and 48ZA, 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 48ZB(17) provides that the mere failure or refusal of
a rail safety worker to express consent must not be used in
evidence against the worker or referred to in any way against the
worker's interests in any proceeding.
New section 48ZB(18) provides that a certificate purporting to be
signed by a person--
who took a blood sample; or
who analysed a blood sample--
in accordance with the provisions of an Act of another State or a
Territory that substantially correspond to section 48ZA of the
Rail Safety National Law Application Act 2013 and in
accordance with any regulations made under the corresponding
Act is admissible in evidence in a proceeding referred to in
section 48ZB(4) and, in the absence of evidence to the contrary,
is proof of the facts and matters contained in it.
32
New section 48ZB(19) provides that subsections (9), (10), (11)
and (12) of section 48ZB apply in respect of a certificate referred
to in section 48ZB(18), under an Act of another State or
Territory, as if the certificate was given under section 48ZB.
New section 48ZC provides for evidentiary provisions and
certificates applicable to oral fluid samples collected for analysis.
These provisions are consistent with the road safety scheme.
New section 48ZC(1) provides for the definitions of approved
analyst, approved expert, approved laboratory, properly
qualified analyst and properly qualified expert that are
applicable in section 48ZC and which align these definitions with
definitions of those terms under the Road Safety Act 1986.
New section 48ZC(2) provides that a person who is an approved
analyst within the meaning of section 57B of the Road Safety
Act 1986 is to be taken to be a properly qualified analyst for the
purposes of section 48ZC.
New section 48ZC(3) provides that a person who is an approved
expert within the meaning of section 57A of the Road Safety
Act 1986 is taken to be a properly qualified expert for the
purposes of section 48ZC.
New section 48ZC(4) provides that certain evidence may be
given in certain circumstances on a hearing for an offence against
section 128 of the Rail Safety National Law (Victoria) or
section 48H of the Rail Safety National Law Application
Act 2013.
The subsection 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 to
such a hearing then, without affecting the admissibility of any
evidence which might be given apart from the provisions of
section 48ZC, evidence may be given--
of the furnishing by that rail safety worker of a sample
of oral fluid, within 3 hours after carrying out rail safety
work;
of the analysis of that sample of oral fluid by a properly
qualified analyst within 12 months after it was taken;
33
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 48ZC(5) provides that a certificate containing the
prescribed particulars purporting to be signed by the person who
carried out the procedure in the course of which the oral fluid
sample was provided is admissible in evidence in any hearing
referred to in section 48ZC(4) and, in the absence of evidence to
the contrary, such a certificate is proof of the facts and matters
contained in it.
New section 48ZC(6) provides that a certificate, containing the
prescribed particulars, as to the presence in any sample of oral
fluid of a substance that is, or is capable of being, a prescribed
drug for the purposes of Division 9 of Part 3 of the Rail Safety
National Law (Victoria) and Part 4A of the Rail Safety National
Law Application Act 2013--
purporting to be signed by an approved analyst; and
stating that the sample of oral fluid was analysed in an
approved laboratory--
is admissible in evidence in a hearing referred to in section
48ZC(4) and, in the absence of evidence to the contrary, is proof
of the facts and matters contained in it.
New section 48ZC(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 section
48ZC(4) and, in the absence of evidence of the contrary, is proof
of the facts and matters contained in it.
New section 48ZC(8) provides that a certificate under section
48ZC must not be tendered in evidence at a hearing referred to in
section 48ZC(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.
34
New section 48ZC(9) provides that an affidavit or statutory
declaration by the person who has served a copy of a certificate
on the accused is admissible in evidence in a hearing referred to
in section 48ZC(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 48ZC(10) provides that an accused who has been
served with a copy of a certificate given under section 48ZC
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 48ZC(11) specifies that the court must not grant
leave to an accused under section 48ZC(10) unless is it satisfied
that--
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
there is a reasonably possibility that the oral fluid
referred to in a certificate given by an analyst under
section 48ZC(6) was not that of the accused; or
there is a reasonable possibility that the oral fluid
referred to in a certificate given under section 48ZC(5)
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 48ZC(12) provides that an accused who has been
served with a copy of a certificate given under section 48ZC 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
section 48ZC(10).
35
New section 48ZD provides for evidentiary provisions and
certificates applicable to breath tests. The provisions are
consistent with the road safety scheme.
New section 48ZD(1) provides that certain evidence may be
given in certain circumstances on a hearing for an offence against
section 128 of the Rail Safety National Law (Victoria) or
section 48H of the Rail Safety National Law Application
Act 2013.
The subsection 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 to such a hearing then, without affecting the
admissibility of any evidence which might be given apart from
the provisions of section 48ZD, 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 48M and the concentration of alcohol so indicated is,
subject to compliance with section 48M(6), evidence of the
concentration of alcohol present in the breath of that person at the
time that person's breath was analysed by the instrument
New section 48ZD(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 section 48ZD(1) and, subject to section 48ZD(8), is conclusive
proof of--
the facts and matters contained in the certificate; and
the fact that the instrument used was a breath analysing
instrument; and
36
the fact that the person who operated the instrument was
authorised to do so by the Chief Commissioner of
Police under section 48M; 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 was given to the accused as soon as practicable after
the sample of breath was analysed.
New section 48ZD(2) specifies that the provisions of the
subsection are applicable unless the accused person gives notice
in writing to the informant that the accused person requires the
person giving the certificate to be called as a witness, or that the
accused person intends to adduce evidence in rebuttal of any such
fact or matter. Such notice must be given not less than 28 days
before the hearing, or any shorter period ordered by the court or
agreed to by the informant.
New section 48ZD(3) provides that a certificate referred to in
section 48ZD(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 National Law
(Victoria) or the Rail Safety National Law Application
Act 2013. New section 48ZD(3) also provides the reference to
the Road Safety Act 1986 in such a 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 National Law (Victoria) or the Rail
Safety National Law Application Act 2013 (as the case
requires).
New section 48ZD(4) provides that a notice under section
48ZD(2) must specify any fact or matter with which issue is
taken and indicated the nature of any expert evidence which the
accused person intends to have adduced at the hearing.
37
New section 48ZD(5) provides that an 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 section 48ZD(2).
New section 48ZD(6) provides that if an accused person gives
notice to the informant in accordance with section 48ZD(2) that
the accused person requires the person giving a certificate to be
called as a witness and the court is satisfied that the person--
is dead; or
is unfit by reason of the person's 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 the person's
attendance; or
cannot with reasonable diligence be found--
the court must order that section 48ZD(2) has effect as if the
notice by the accused had not been given.
New section 48ZD(7) provides that a certificate referred to in
section 48ZD(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 48ZD(8) provides that nothing in section 48ZD(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.
New section 48ZD(9) provides that in any proceeding under the
Rail Safety National Law (Victoria) or the Rail Safety National
Law Application Act 2013--
the statement of any person that on a particular date the
person was authorised by the Chief Commissioner of
Police under section 48M(7) to operate breath analysing
instruments; or
38
a certificate purporting to be signed by the Chief
Commissioner of Police that a person named on it is
authorised by the Chief Commissioner of Police under
section 48M(7) 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 to operate breath
analysing instruments.
New section 48ZD(10) provides that the following evidence
given by a person authorised to operate a breath analysing
instrument under section 48M is, in the absence of evidence to
the contrary, proof of those facts--
evidence that an apparatus used by the person on any
occasion under section 48M was a breath analysing
instrument;
evidence that the breath analysing instrument was on
that occasion in proper working order and properly
operated by that person;
evidence that, in relation to the breath analysing
instrument, all regulations with respect to breath
analysing instruments were complied with.
New section 49ZD(11) provides that the following is, in the
absence of evidence to the contrary, proof that an apparatus is a
breath analysing instrument--
the statement on oath of a person authorised to operate a
breath analysing instrument under section 48M, when
called as a witness, that any apparatus used by the
person on any occasion under section 48M 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.
39
Division 5 of New Part 4A provides for other matters, namely
specified powers and requirements in relation to authorisations
and approvals given under Part 4A
New section 48ZE sets out matters relating to authorities by the
Chief Commissioner of Police and approval of apparatus or
equipment.
New section 48ZE(1) provides that an authority given under or
for the purposes of section 48M, 48P or 48R by the Chief
Commissioner of Police may be revoked at any time in the
manner in which it was given and on revocation ceases to have
any effect.
New section 48ZE(2) specifies that if it is provided by or under
Part 4A 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 18 inserts new regulation making powers in Part 5 of the Rail Safety
National Law Application Act 2013 relating to drug and alcohol
testing matters, which reflect the existing regulation making
powers under the Rail Safety (Local Operations) Act 2006
(which will be repealed by this Bill).
Subclause (1) inserts a new subsection (1A) after section 51(1) of
the Rail Safety National Law Application Act 2013 to provide
that the Governor in Council may make regulations for or with
respect to--
devices for the purposes of sections 126 and 127 of the
Rail Safety National Law (Victoria) and section 48L of
the Rail Safety National Law Application Act 2013
including--
the handling, storing, use and maintenance of
those devices;
40
the precautions to be taken and the procedures
and methods to be employed in the use of those
devices for ensuring that they give accurate and
reliable results;
the handling, storage, use and maintenance of breath
analysing instruments used for the purposes of
Division 9 of Part 3 of the Rail Safety National Law
(Victoria) and Division 3 of Part 4A of the Rail Safety
National Law Application Act 2013 and the
procedures and methods to be employed in the use of
those instruments for ensuring that they give accurate
and reliable results;
the methods and conditions to be observed by--
registered medical practitioners and approved
health professionals in collecting blood, oral
fluid or urine samples; and
authorised persons in collecting oral fluid
samples;
the persons responsible for the safe-keeping of samples
of blood, oral fluids and urine taken under Division 9 of
Part 3 of the Rail Safety National Law (Victoria) and
Division 3 of Part 4A;
the delivering of portions of a sample of blood, oral
fluids or urine taken under Division 9 of Part 3 of the
Rail Safety National Law (Victoria) and Division 3 of
Part 4A to the rail safety worker from whom it was
taken and to the person who required it to be taken or a
police officer;
the methods to be used by analysts in determining the
concentration of alcohol in a blood sample;
the methods to be used by analysts in determining the
presence of a substance in a blood, oral fluid or urine
sample;
the procedures to be adopted in transmitting samples of
blood, oral fluid or urine to an analyst for analysis;
41
the regulation and control of people concerned in the
taking, safe-keeping, delivering and analysis of blood,
oral fluid or urine samples.
Subclause (2) inserts new paragraphs (ba), (bb) and (bc) after
section 51(2)(b) of the Rail Safety National Law Application
Act 2013 so that in addition to the existing provisions in
section 51(2), regulations made by the Governor in Council
under section 51 may--
require a matter affected by the regulations to be--
in accordance with a specified standard or
specified requirement; or
approved by or to the satisfaction of a specified
person or a specified class of person; or
as specified in both dot points above;
apply, adopt or incorporate any matter contained in any
document whether--
wholly or partially as amended by the
regulations; or
as in force at a particular time or as in force from
time to time;
provide in a specified case or class of case for the
exemption of persons or things or a class of persons or
things from any of the provisions of the regulations,
whether unconditionally or on specified conditions and
either wholly or to such an extend as is specified.
Division 3--Savings and transitionals
Division 3 of Part 2 of the Bill provides for savings and transitional
provisions to manage the transition to the regulation of all railways by the
National Rail Safety Regulator ("the Regulator") under the Rail Safety
National Law (Victoria) and the repeal of the Rail Safety (Local
Operations) Act 2006.
These provisions are required in particular to ensure the continuation of
existing accreditations of rail transport operators under Part 5 of the Rail
Safety (Local Operations) Act 2006 (through deemed accreditation under
the Rail Safety National Law (Victoria)) and provide for rail infrastructure
42
managers of existing fright terminals to be accredited rail transport operators
under the Rail Safety National Law (Victoria)
Clause 19 inserts a new Part 8 into the Rail Safety National Law
Application Act 2013 which contains savings and transitional
provisions required as a consequence of the Bill.
Division 1 of new Part 8 provides for preliminary matters such as
definitions and the application of the Interpretation of
Legislation Act 1984.
New section 159 sets out a number of definitions applicable to
Part 8 of the Rail Safety National Law Application Act 2013.
These include definitions for--commencement day, Local
Operations Act accreditation, Local Operations Act rail
infrastructure, Local Operations Act safety management, rail
compliance and investigative purposes, rail safety law, rail
safety matter, rail T(SSCE) Act improvement notice, rail
T(SSCE) Act non-disturbance notice, rail T(SSCE) Act
prohibition notice, registered person, relevant road authority,
transitioning rail infrastructure manager, transitioning rail
transport operator, transitioning rolling stock operator,
transport safety officer and T(SSCE) Act railway premises.
For the purposes of new Part 8, commencement day means the
day on which section 118 of the Act comes into operation.
New section 160 provides that the Act and relevant regulations
do not affect or take away from the Interpretation of
Legislation Act 1984.
Division 2 of new Part 8 contains provisions to transition the rail
safety regulatory scheme from the Rail Safety (Local
Operations) Act 2006 to the Rail Safety National Law
(Victoria).
New section 161 provides for persons approved to take blood
samples under section 8 of the Rail Safety (Local Operations)
Act 2006 to be taken to have been approved to take blood
samples under section 48B of the Rail Safety National Law
Application Act 2013 under the new regulatory scheme.
New sections 162, 163 and 164 provide for the transition of
safety management systems and, in the case of exempted rail
transport operators, systems and arrangements, in place under the
Rail Safety (Local Operations) Act 2006 to the national
scheme. These provisions ensure--
43
existing safety management systems in place are taken
to be approved by the Regulator under the Rail Safety
National Law (Victoria);
consultation that has commenced for the purposes of
establishing a new safety management system under the
Rail Safety (Local Operations) Act 2006 is taken to be
consultation for the purposes of the requirements in
section 99(3) of the Rail Safety National Law
(Victoria); and
a system and arrangements established by a
transitioning rail transport operator under section 28B of
the Rail Safety (Local Operations) Act 2006 is taken
to be a system and arrangements established under the
Rail Safety National Law (Victoria).
New section 165 provides for a safety audit conducted under
section 29 of the Rail Safety (Local Operations) Act 2006 to be
taken to be an audit under section 133 of the Rail Safety National
Law (Victoria) on the commencement day.
New sections 166 and 167 provide for the following directions in
effect under the Rail Safety (Local Operations) Act 2006 before
the day that section 118 of the Act comes into operation
(the commencement day) to be taken on that day to be a
specified direction under section 199 of the Rail Safety National
Law (Victoria)--
a direction given to a person that is a utility to stop, alter
or not to start works under section 33(1);
a direction given to a transitioning rail transport
operator to stop, alter or not to start railway operations
under section 33(2);
a direction given to a transitioning rail transport
operator who has care control or management of land
where the rail infrastructure the operator controls is
situated to alter, demolish or take away works under
section 34(1).
New sections 168 to 172 provide for the following types of safety
interface agreements under the Rail Safety (Local Operations)
Act 2006, which are in place immediately before the day that
section 118 of the Act comes into operation (the commencement
44
day) to be taken to be specified types of interface agreement
entered into pursuant to the Rail Safety National Law (Victoria)
on that day--
a safety interface agreement entered into by a
transitioning rail transport operator, pursuant to
section 34B, regarding railway operations;
a safety interface agreement entered into by a
transitioning rail infrastructure manager, pursuant to
section 34C, regarding rail infrastructure and public
roadways or pathways;
a safety interface agreement entered into by a
transitioning rail infrastructure manager, pursuant to
section 34D, regarding rail infrastructure and relevant
roadways or pathways;
a safety interface agreement entered into by a relevant
road authority, pursuant to section 34E, in relation to a
safety assessment of public roadways or pathways;
a safety interface agreement entered into by a relevant
road authority, pursuant to section 34F, in relation to a
safety assessment of relevant roadways or pathways.
New section 173 provides that a written notice served on a
transitioning rail transport operator or relevant road authority
under section 34J(2) of the Rail Safety (Local Operations)
Act 2006 in effect immediately before the day that section 118 of
the Act comes into operation (the commencement day) is taken,
on that day, to be a written notice given to that person under
section 110(2) of the Rail Safety National Law (Victoria).
New section 174 provides for directions in effect under
section 34J(5)(b) of the Rail Safety (Local Operations)
Act 2006 immediately before the day that section 118 of the Act
comes into operation (the commencement day) to be taken on
that day to be a direction under section 110(4)(b) of the Rail
Safety National Law (Victoria).
New section 175 provides that the specified registers of safety
interface agreements maintained under the Rail Safety (Local
Operations) Act 2006 are taken to be registers maintained under
the Rail Safety National Law (Victoria) on and after the day that
section 118 of the Act comes into operation (the commencement
day) as follows--
45
a register maintained by a transitioning rail transport
operator pursuant to section 34K(1) of the Rail Safety
(Local Operations) Act 2006 will be a register
maintained by the operator under section 111(1) of the
Rail Safety National Law (Victoria)
a register maintained by a relevant road authority
pursuant to section 34K(2) of Rail Safety (Local
Operations) Act 2006 will be a register maintained by
the authority pursuant to section 111(2) of the Rail
Safety National Law (Victoria).
New section 176 provides for transitioning rail transport
operators that are accredited rail transport operators under the
Rail Safety (Local Operations) Act 2006 prior to the day that
section 118 of the Act comes into operation (the commencement
day) to be taken to be an accredited person for the purposes of the
Rail Safety National Law (Victoria) on that day.
New section 177 provides that an accreditation within the
meaning of the Rail Safety (Local Operations) Act 2006 in
effect before the day that section 118 of the Act comes into
operation (the commencement day) is taken, on the
commencement day, to be--
an accreditation under the Rail Safety National Law
(Victoria); and
subject to conditions and restrictions that are the same
as the conditions and restrictions that applied to the
accreditation under the Rail Safety (Local Operations)
Act 2006 immediately before the commencement day.
New section 178 specifies that on and after the day that
section 118 of the Act comes into operation (the commencement
day), the Safety Director must give to the Regulator details of
every accreditation within the meaning of Rail Safety (Local
Operations) Act 2006 to which section 177 and 187 apply and
requires the Regulator to record the details of those accreditations
provided by the Safety Director in the National Rail Safety
Register.
New section 179 provides for the following transitional matters
in relation to applications for accreditation made under section 38
of the Rail Safety (Local Operations) Act 2006 before the day
that section 118 of the Act comes into operation (the
46
commencement day), that have not been determined by the
Safety Director, and where no application for internal review has
been made under section 88 of the Rail Safety (Local
Operations) Act 2006 before the commencement day--
such applications are taken to be applications under
section 64 of the Rail Safety National Law (Victoria) on
the commencement day and must be determined under
that Law on and after that day by the Regulator;
anything done by the Safety Director under the Rail
Safety (Local Operations) Act 2006 in respect of the
accreditation application before the commencement day
is taken on that day to have been done by the Regulator
under the Rail Safety National Law (Victoria);
any period during which the Safety Director is
considering an accreditation application under the Rail
Safety (Local Operations) Act 2006 before the
commencement day is taken on that day to form part of
the relevant period for determination of an application
for the purposes of section 67 of the Rail Safety
National Law (Victoria);
any notification of a decision to extend the decision
period for the accreditation application under section
44(3) of the Rail Safety (Local Operations) Act 2006
is taken to be a written notice under paragraph (c) of the
definition of relevant period (as defined in section 67(5)
of the Rail Safety National Law (Victoria)) on the
commencement day.
New section 180 provides for the transition of directions made by
the Safety Director to coordinate accreditation applications under
section 43 of the Rail Safety (Local Operations) Act 2006.
New section 180(1) provides that a direction of the Safety
Director to coordinate accreditation applications made pursuant
to section 43 of the Rail Safety (Local Operations) Act 2006 in
effect before the day that section 118 of the Act comes into
operation (the commencement day) is taken to be a direction of
the Regulator to coordinate accreditation applications under
section 66 of the Rail Safety National Law (Victoria).
47
New section 180(2) provides that subsection (1) does not apply to
a such a direction under section 43 of the Rail Safety (Local
Operations) Act 2006 if it is the subject of a review under
section 88 of the Rail Safety (Local Operations) Act 2006 that
is not completed before the commencement day.
New section 181 provides that an emergency plan prepared by a
transitioning rail transport operator that is in effect for the
purposes of the Rail Safety (Local Operations) Act 2006 before
the day that section 118 of the Act comes into operation (the
commencement day) is taken, on that day, to be an emergency
management plan that the rail transport operator is required to
have under section 113 of the Rail Safety National Law
(Victoria).
New section 182 provides that an application made by a
transitioning rail transport operator to vary or revoke conditions
or restrictions on an accreditation under section 53 of the Rail
Safety (Local Operations) Act 2006 before the day that
section 118 of the Act comes into operation (the commencement
day), that has not been determined by the Safety Director, is
taken to be an application for variation under section 68(1) of the
Rail Safety National Law (Victoria) on that day and must be
determined under that Law on and after the commencement day
by the Regulator.
New section 182(3) specifies that for the purposes of determining
the application to which section 182 applies under section 68(1)
of the Rail Safety National Law (Victoria), anything done by the
Safety Director under the Rail Safety (Local Operations)
Act 2006 in respect of the variation application before the
commencement day is taken on that day to have been done by the
Regulator under the Rail Safety National Law (Victoria).
New section 183 provides that a variation application made by a
transitioning rail transport operator under section 54 of the Rail
Safety (Local Operations) Act 2006 before the day that
section 118 of the Act comes into operation (the commencement
day), that has not been determined by the Safety Director, is
taken to be an application under section 68(2) of the Rail Safety
National Law (Victoria) on that day and must be determined
under that Law on and after the commencement day by the
Regulator.
48
New section 183(3) specifies that for the purposes of determining
the application to which section 183 applies under section 68(2)
of the Rail Safety National Law (Victoria), anything done by the
Safety Director under the Rail Safety (Local Operations)
Act 2006 in respect of the mandatory variation application before
the commencement day is taken on that day to have been done by
the Regulator under the Rail Safety National Law (Victoria).
New section 184 provides for transitional matters applicable
where, before the day that section 118 of the Act comes into
operation (the commencement day), the Safety Director--
has decided to vary or revoke a condition of or
restriction on, or impose a new condition of or
restriction on, an accreditation, within the meaning of
the Rail Safety (Local Operations) Act 2006, held by a
transitioning rail transport operator under section 55(1)
of that Act; and
has given written notice to the operator under
section 55(2)(a) of the action that the Safety Director
proposes to take; and
has not taken any action under section 55 before the
commencement day.
New section 184(2) provides that on and after the
commencement day--
the decision by the Safety Director under section 55(1)
is taken to be a decision of the Regulator under
section 72 of the Rail Safety National Law (Victoria);
and
the notice to the operator is taken to be notice given to
the transitioning rail transport operator by the Regulator
under section 72(2)(a) of the Rail Safety National Law
(Victoria); and
the Regulator may continue to act under section 72 of
the Rail Safety National Law (Victoria) as if the
Regulator decided to do so under that section.
New section 184(3) provides that for the purposes of new
subsection (2)(b), any period of days within which the
transitioning rail transport operator is allowed to make written
representations under section 55(2)(b) of the Rail Safety
49
(Local Operations) Act 2006 before the commencement day, is
taken, on the commencement day, to form part of the period of
days allowed for written representations under section 72(2)(b) of
the Rail Safety National Law (Victoria).
New section 185 provides that if a transitioning rail transport
operator that holds an accreditation within the meaning of the
Rail Safety (Local Operations) Act 2006 has requested the
Safety Director to consent to the surrender of that accreditation
under section 56 of that Act before the day that section 118 of the
Act comes into operation (the commencement day) and the
Safety Director has not given their consent, on the
commencement day that request is taken to be written notice of
the intention to surrender accreditation under section 75(2)(a) of
the Rail Safety National Law (Victoria).
New section 186 provides that if an accreditation within the
meaning of the Rail Safety (Local Operations) Act 2006 held
by a transitioning rail transport operator has been suspended
under section 58 or 59 of that Act before the day that section 118
of the Act comes into operation (the commencement day), and
the suspension is in effect, on the commencement day the
suspension is taken to be a suspension of that operator's
accreditation under section 73 or 74 of the Rail Safety National
Law (Victoria), as the case requires and continues in effect until
the date set by the Safety Director under the Rail Safety (Local
Operations) Act 2006.
New section 187 provides that, if an accreditation within the
meaning of the Rail Safety (Local Operations) Act 2006 held
by a transitioning rail transport operator has been cancelled under
section 59 of that Act before the day that section 118 of the Act
comes into operation (the commencement day) and that
cancellation will take effect on or after the commencement day
on the commencement day, the cancellation is taken to be a
cancellation of that operator's accreditation under section
73(2)(b) of the Rail Safety National Law (Victoria) on the day it
would have taken effect if the Rail Safety (Local Operations)
Act 2006 had not been repealed.
New section 188 provides that a transitioning rail infrastructure
manager who is a registered person in respect of a private siding
that is a freight terminal on the day section 118 of the Act comes
into operation (the commencement day) is taken on that day to be
an accredited person under the Rail Safety National Law
50
(Victoria) holding an accreditation under that Law that is subject
to the same conditions and restrictions that applied to the person's
registration under Division 7 of Part 5 of the Rail Safety (Local
Operations) Act 2006.
New section 189 provides for transitional arrangements that
apply to applications for internal review in respect of a range of
specified decisions under the Rail Safety (Local Operations)
Act 2006 that have been made under section 88 of that Act
before the day on which section 118 of the Act comes into
operation (the commencement day), where the review under
section 88 has not been completed before the commencement
day.
New section 189(1) includes a table which sets out the specific
decisions to which the transitional provision applies.
New section 189 provides that on the commencement day, the
relevant review application is taken to be an application under
section 216 of the Rail Safety National Law (Victoria) and the
Regulator must determine the application in accordance with the
Rail Safety National Law (Victoria).
New section 190 provides for the transition of an application for
internal review of a decision to take disciplinary action under
section 59 of the Rail Safety (Local Operations) Act 2006
which a new condition or restriction has been imposed on an
accreditation.
New section 190(2) provides that despite the repeal of the Rail
Safety (Local Operations) Act 2006, the Regulator must
complete any review for this purpose in accordance with the Rail
Safety (Local Operations) Act 2006 as if that Act was still in
force and a reference to the Safety Director was a reference to the
Regulator. This ensures consistency for the person seeking
internal review of a decision.
New section 190(3) provides that if the Regulator affirms the
reviewable decision, the transitioning rail transport operator is
taken to be an accredited person under the Rail Safety National
Law (Victoria) holding an accreditation under that Law that is
subject to the condition or restriction the subject of the reviewed
decision and all the other conditions and restrictions that applied
to the operator's accreditation under the Rail Safety (Local
Operations) Act 2006.
51
New section 190(4) provides that if the Regulator varies or sets
aside the reviewable decision and imposes a different condition
or restriction, the transitioning rail transport operator is taken to
be an accredited person under the Rail Safety National Law
(Victoria) holding an accreditation under that Law that is subject
to the varied or new condition or restriction and all the other
conditions and restrictions that applied to the operator's
accreditation under the Rail Safety (Local Operations)
Act 2006.
New section 190(5) provides that if the Regulator sets aside the
reviewable decision, the transitioning rail transport operator is
taken to be an accredited person under the Rail Safety National
Law (Victoria) holding an accreditation under that Law that is
subject to the same conditions and restrictions that applied to the
operator's accreditation under the Rail Safety (Local
Operations) Act 2006.
New section 191 provides for the transition of an application for
internal review of a decision to take disciplinary action under
section 59 of the Rail Safety (Local Operations) Act 2006
which imposes an expiry date on an accreditation.
New section 191(2) provides that despite the repeal of the Rail
Safety (Local Operations) Act 2006, the Regulator must
complete any review for this purpose in accordance with the Rail
Safety (Local Operations) Act 2006 as if that Act was still in
force and a reference to the Safety Director was a reference to the
Regulator. This ensures consistency for the person seeking
internal review of a decision.
New section 191(3) provides that if the Regulator affirms the
reviewable decision, the transitioning rail transport operator's
accreditation is taken to be cancelled under the Rail Safety
National Law (Victoria) with effect from the date specified in the
reviewed decision as the date of expiry of the accreditation.
New section 191(4) provides that if the Regulator varies or sets
aside the reviewable decision and imposes a date of expiry that
differs from that imposed under the reviewed decision, the
accreditation is taken to be cancelled under the Rail Safety
National Law (Victoria) with effect from the new date of expiry.
New section 191(5) provides that if the Regulator sets aside the
reviewable decision, the transitioning rail transport operator is
taken to be an accredited person under the Rail Safety National
52
Law (Victoria) holding an accreditation under that Law that is
subject to the same conditions and restrictions that applied to the
operator's accreditation under the Rail Safety (Local
Operations) Act 2006.
New section 192 provides for transition of an application for the
internal review of a decision to take disciplinary action under
section 59 of the Rail Safety (Local Operations) Act 2006
which suspends an accreditation.
New section 192(2) provides that despite the repeal of the Rail
Safety (Local Operations) Act 2006, the Regulator must
complete any review for this purpose in accordance with the Rail
Safety (Local Operations) Act 2006 as if that Act was still in
force and a reference to the Safety Director was a reference to the
Regulator. This ensures consistency for the person seeking
internal review of a decision.
New section 192(3) provides that if the Regulator affirms the
reviewable decision--
the transitioning rail transport operator is taken to be an
accredited person under the Rail Safety National Law
(Victoria) holding an accreditation under that Law that
is subject to the same conditions and restrictions that
applied to the operator's accreditation under the Rail
Safety (Local Operations) Act 2006; and
the operator's accreditation is taken to be suspended
under the Rail Safety National Law (Victoria) until the
day on which the suspension ends.
New section 192(4) provides that if the Regulator sets aside the
reviewable decision and imposes a new period of suspension--
the transitioning rail transport operator is taken to be an
accredited person under the Rail Safety National Law
(Victoria) holding an accreditation under that Law that
is subject to the same conditions and restrictions that
applied to the operator's accreditation under the Rail
Safety (Local Operations) Act 2006; and
the operator's accreditation is taken to be suspended
under the Rail Safety National Law (Victoria) until the
day on which the new period of suspension ends.
53
New section 192(5) provides that if the Regulator sets aside the
reviewable decision, the transitioning rail transport operator is
taken to be an accredited person under the Rail Safety National
Law (Victoria) holding an accreditation under that Law that is
subject to the same conditions and restrictions that applied to the
operator's accreditation under the Rail Safety (Local
Operations) Act 2006.
New section 193 provides for transition of an application for the
internal review of a decision to take disciplinary action under
section 59 of the Rail Safety (Local Operations) Act 2006
which cancels an accreditation.
New section 193(2) provides that despite the repeal of the Rail
Safety (Local Operations) Act 2006, the Regulator must
complete any review for this purpose in accordance with the Rail
Safety (Local Operations) Act 2006 as if that Act was still in
force and a reference to the Safety Director was a reference to the
Regulator. This ensures consistency for the person seeking
internal review of a decision.
New section 193(3) provides that if the Regulator affirms the
reviewable decision, the transitioning rail transport operator's
accreditation is taken on the day the new decision takes effect to
be cancelled under the Rail Safety National Law (Victoria).
New section 193(4) provides that if the Regulator sets aside the
reviewable decision, the transitioning rail transport operator is
taken to be an accredited person under the Rail Safety National
Law (Victoria) holding an accreditation under that Law that is
subject to the same conditions and restrictions that applied to the
operator's accreditation under the Rail Safety (Local
Operations) Act 2006.
Division 3 of new Part 8 contains provisions that are required
for transitional purposes as a consequence of the amendments
made to the Transport (Safety Schemes Compliance and
Enforcement) Act 2014 (the "T(SSCE) Act") by the Bill.
These include provisions relating to search and seizure powers,
the issue of certain notices and the review of certain decisions
by the Safety Director.
New section 194 provides that a thing seized by a transport safety
officer under section 8 of the T(SSCE) Act, at T(SSCE) Act
railway premises or on rolling stock, prior to the commencement
day, and that is in the possession or control of the transport safety
54
officer or Safety Director before that day, are taken to have been
seized at railway premises under section 158 of the Rail Safety
National Law (Victoria) by that officer as a rail safety officer.
New section 195 provides that a site, the perimeter of which is
secured for rail compliance and investigative purposes, or rolling
stock to which access is restricted under section 16 of the
T(SSCE) Act before the commencement day is taken on an after
that day to be secured under section 148 of the Rail Safety
National Law (Victoria).
New section 196 provides that a thing seized under a search
warrant issued under section 18 of the T(SSCE) Act by transport
safety officer, that is in the possession or control of the officer or
Safety Director before the commencement day, where the search
warrant was issued in relation to an offence against a rail safety
law, is taken on the commencement day to have been seized
under a search warrant issued under section 150 of the Rail
Safety National Law (Victoria) by that officer as a rail safety
officer.
New section 197 provides that, on the commencement day, a
search warrant issued under section 18 of the T(SSCE) Act in
relation to a rail safety law that has not been executed before the
commencement day is taken on and after that day to have been
issued under section 150 of the Rail Safety National Law
(Victoria).
New section 198 provides that if a direction is given by a
transport safety officer under section 22 of the T(SSCE)
Act before the commencement day for a person to produce a
document within a specified period that ends on or after the
commencement day, and the person has not produced that
document before that day--
the direction is taken to be a direction under section
168A of the Rail Safety National Law (Victoria) given
by the Regulator; and
the day the specified period ends is taken to be a
specified time for the purposes of section 168A of the
Rail Safety National Law (Victoria).
55
New section 199 provides that certain specified directions given
under section 29 of the T(SSCE) Act before the commencement
day that have not been complied with before that day are taken,
on that day, to be directions given under section 159 of the Rail
Safety National Law (Victoria).
New section 200 provides that certain specified directions given
under section 30 of the T(SSCE) Act before the commencement
day that have not been complied with before that day are taken,
on that day, to be directions given under section 160 of the Rail
Safety National Law (Victoria).
New section 201 provides that, if a receipt was given under
section 31 of the T(SSCE) Act before the commencement day--
regarding a thing seized--
at T(SSCE) Act railway premises or on rolling
stock; or
under a search warrant issued under section 18 of
the T(SSCE) Act in relation to an offence against
a rail safety law; and
the thing seized is taken under section 194 or 196 of the
Rail Safety National Law Application Act 2013 to be
a thing seized under section 158 or 150 of the Rail
Safety National Law (Victoria)--
then, on the commencement day, the receipt is taken to be a
receipt given under section 161 of the Rail Safety National Law
(Victoria).
New section 202 provides that a direction given under section 43
of the T(SSCE) Act for rail compliance and investigative
purposes before the commencement day, that has not been
complied with before that day, is taken to be a requirement made
under section 154 of the Rail Safety National Law (Victoria) on
the commencement day.
New section 203 provides that a rail T(SSCE) Act improvement
notice served before the commencement day, that has not been
cancelled under section 55 of the T(SSCE) Act before that day, is
taken to be an improvement notice issued under section 175 of
the Rail Safety National Law (Victoria).
56
New section 204 provides that a rail T(SSCE) Act prohibition
notice served before the commencement day, that has not been
withdrawn under section 65 of the T(SSCE) Act before that day,
is taken to be a prohibition notice issued and served under
section 179 of the Rail Safety National Law (Victoria).
New section 205 provides that a rail T(SSCE) Act
non-disturbance notice served before the commencement day,
that has not been cancelled under section 75 of the T(SSCE)
Act, is taken, on that day, to be a non-disturbance notice issued
under section 182 of the Rail Safety National Law (Victoria).
New section 206 provides that an injunction granted in relation to
T(SSCE) Act improvement, prohibition or non-disturbance notice
after an application under section 82 of the T(SSCE) Act and
before the commencement day, that are still in effect on that day,
are taken to be an injunction granted after an application under
section 197 of the Rail Safety National Law (Victoria) on the
commencement day.
New section 207 provides that if the Safety Director has accepted
an undertaking by a transitioning rail transport operator under
section 83 of the T(SSCE) Act before the commencement day,
and that undertaking has not been withdrawn before that day, the
undertaking is taken to be a rail safety undertaking by the
transitioning rail transport operator accepted by the Regulator
under section 251 of the Rail Safety National Law (Victoria).
New section 208 provides for transitional arrangements that
apply to applications for internal review in respect of a range of
specified decisions under the Transport (Safety Schemes
Compliance and Enforcement) Act 2014 that have been made
under section 100 of that Act before the day on which section
118 of the Act comes into operation (the commencement day),
where the review under section 100 has not been completed
before the commencement day.
New section 208(1) includes a table which sets out the specific
decisions to which the transitional provision applies.
New section 208 provides that on the commencement day, the
relevant review application is taken to be an application under
section 216 of the Rail Safety National Law (Victoria) and the
Regulator must determine the application in accordance with the
Rail Safety National Law (Victoria).
57
New section 209 provides for the transition of an application for
internal review of a decision to serve a clearance certificate under
section 56(2)(a) of the T(SSCE) Act in relation to an
improvement notice.
New section 209(2) provides that despite the amendment of the
T(SSCE) Act by Part 3 of the Bill, the Regulator must complete
any review for this purpose in accordance with that Act as if that
Act was still in force before the amendments and a reference to
the Safety Director was a reference to the Regulator. This
ensures consistency for the person seeking internal review of a
decision.
New section 209(3) provides that if the Regulator affirms the
reviewable decision, the improvement notice is taken to be
cancelled under section 190 of the Rail Safety National Law
(Victoria).
New section 209(4) provides that if the Regulator sets aside the
reviewable decision and substitutes a new decision under which
no clearance certificate is issued, the improvement notice is taken
to be an improvement notice issued under section 175 of the Rail
Safety National Law (Victoria).
New section 210 provides for the transition of an application for
transition of an internal review of a decision to serve a certificate
under section 66 of the T(SSCE) Act in relation a prohibition
notice.
New section 210(2) provides that despite amendment of the
T(SSCE) Act by Part 3 of the Bill, the Regulator must complete
any review for this purpose in accordance with that Act as if that
Act was still in force before the amendments and a reference to
the Safety Director was a reference to the Regulator. This
ensures consistency for the person seeking internal review of a
decision.
New section 210(3) provides that if the Regulator affirms the
reviewable decision, the prohibition notice is taken to be
cancelled under section 190 of the Rail Safety National Law
(Victoria).
58
New section 210(4) provides that if the Regulator sets aside the
reviewable decision and substitutes a new decision under which
no certificate is issued, the prohibition notice is taken to be a
prohibition notice issued and served under section 179 of the Rail
Safety National Law (Victoria).
New section 211 provides that despite the amendments made by
the T(SSCE) Act by Part 3 of the Bill, the T(SSCE)
Act continues to apply to a proceeding for an offence against a
rail safety law committed before the commencement day.
Division 4 of new Part 8 provides for other general transitional
provisions required for the operation of the Victorian rail safety
scheme due to the amendments made by the Bill.
New section 212(1) provides that on and after the
commencement day, the Safety Director is authorised, on their
own initiative or at the request of the Regulator--
to provide the Regulator with such information
(including information given in confidence) in the
possession or control of the Safety Director that is
reasonably required by the Regulator or for the
purposes of the Rail Safety National Law (Victoria)
and the Rail Safety National Law Application
Act 2013 (as amended by the Bill); and
to provide the Regulator with such other assistance as is
reasonably required by the Regulator to perform a
function or duty or exercise a power conferred or
imposed under the Rail Safety National Law (Victoria)
and the Rail Safety National Law Application
Act 2013.
New section 212(2) specifies that information for the purposes of
subsection (1) includes health information and personal
information collected by the Safety Director in the exercise or
performance of a function or power under the Rail Safety
(Local Operations) Act 2006.
New section 212(3) provides that nothing done, or authorised to
be done, by the Safety Director in acting under subsection (1)--
constitutes a breach of, or default under an Act or other
law; or
59
constitutes a breach of, or default under a contract,
agreement, understanding or undertaking; or
constitutes a breach of a duty of confidence (whether
arising by contract, in equity or by custom) or in any
other way; or
constitutes a civil or criminal wrong; or
terminates an agreement or obligation or fulfils any
condition that allows a person to terminate an agreement
or obligation, or gives rise to any other right or remedy;
or
releases a surety or any other oblige wholly or in part
from an obligation.
New section 212(4) provides that section 212 applies despite any
other Act or law (other than the Charter of Human Rights and
Responsibilities Act 2006).
New section 212(5) defines health information and personal
information for the purposes of section 212.
New section 213 provides the Governor in Council with specified
regulation making powers with respect to transitional matters.
New section 213(1) provides that the Governor in Council may
make regulations containing provisions of a transitional nature,
including matters of an application or savings nature, arising as a
result of the enactment of the Rail Safety Legislation
Amendment (National Services Delivery and Related
Reforms) Act 2019, including any repeals and amendments
made by or as a result of the enactment of that Act.
New section 213(2) specifies that regulations made under
section 213 may--
have a retrospective effect to a day on or after a date
not earlier than the day on which the Rail Safety
Legislation Amendment (National Services Delivery
and Related Reforms) Act 2019 receives Royal
Assent;
be of limited or general application;
differ according to time, place or circumstance; and
60
leave any matter or thing to be decided by a specific
person or class of person.
New section 213(3) provides that to the extent to which any
provision of the regulations under section 213 takes effect from a
date that is earlier than the date of its making, the provision does
not operate so as--
to affect, in a manner prejudicial to any person
(other than the State or an authority of the State), the
rights of that person existing before the date of its
making; or
to impose liabilities on any person (other than the State
or an authority of the State) in respect of anything done
or omitted to be done before the date of its making.
New section 213(4) provides that regulations made under
section 213 have effect despite anything to the contrary in any
Act (other than this Act or the Charter of Human Rights and
Responsibilities Act 2006) or in any subordinate instrument.
New section 213(5) provides that sections 6 and 7 of the
Subordinate Legislation Act 1994 do not apply to any
regulations made under this section.
New section 213(6) provides that section 213 expires on the
second anniversary of the day on which it comes into operation.
Part 3--Amendment of the Transport (Safety Schemes
Compliance and Enforcement) Act 2014
Part 3 of the Bill amends the Transport (Safety Schemes Compliance and
Enforcement) Act 2014 to remove references relating to rail safety and the
Rail Safety (Local Operations) Act 2006 and references to the Rail Safety
National Law Application Act 2013 as the Transport (Safety Schemes
Compliance and Enforcement) Act 2014 will no longer apply to rail safety.
That Act will only deal with marine safety and bus safety matters following
the transition of the regulation of rail safety to the Office of the National Rail
Safety Regulator.
Upon the transition to the national scheme, transport safety officers appointed
under the Transport (Safety Schemes Compliance and Enforcement)
Act 2014 will no longer exercise enforcement and compliance powers in
relation to rail safety. Instead, rail safety enforcement and compliance work
will be undertaken by officers of the National Regulator under the Rail Safety
National Law (Victoria).
61
Clause 20 amends the purposes of the Transport (Safety Schemes
Compliance and Enforcement) Act 2014 by omitting references
to rail safety and by making other consequential changes to that
Act. This is so that the updated purpose of the Act will be to
provide a scheme for the enforcement of transport system safety
legislation and will no longer refer to the Rail Safety National
Law.
Clause 21 amends the definitions in section 3 of the Transport (Safety
Schemes Compliance and Enforcement) Act 2014 which sets
out key terms for the purposes of that Act. The clause--
inserts new definitions of bus safety matter, searchable
bus or vessel and transport safety law;
the new definition of transport safety law
means--
the Bus Safety Act 2009 or any
regulations made under that Act; or
the Marine (Drug, Alcohol and
Pollution Control) Act 1988 or any
regulations made under that Act; or
the Marine Safety Act 2010 or any
regulations made under that Act; or
the Port Management Act 1995 or any
regulations made under that Act; or
the Transport Integration Act 2010 or
any regulations made under that Act.
repeals paragraph (c) of the definition of approved code
of practice so that the definition no longer includes an
approved rail safety code of practice;
substitutes references to "transport safety or
infrastructure law" in paragraph (a) of the definition of
compliance and investigative purposes with references
to "transport safety law";
substitutes the reference to "public transport" in
paragraph (c) of the definition of compliance and
investigative purposes with "bus";
62
repeals paragraph (d) of the definition of compliance
and investigative purposes which refers to an audit
under Division 5 of Part 3 of the Rail Safety (Local
Operations) Act 2006;
omits the reference to ", Planning and Local
Infrastructure" in the definition of Department so that
the definition refers to the Department of Transport;
substitutes the reference to "public transport" in
paragraph (a) of the definition of notifiable occurrence
with "bus";
substitutes the reference to "public transport matter" in
the definition of notifiable occurrence with "matter";
substitutes a new, updated, definition of police officer;
omits reference to "rolling stock," in the definition of
residential premises;
substitutes a new, updated, definition of road vehicle;
substitutes the reference to "public transport" in the
definition of searchable premises with "bus";
omits "(other than a safety work infringement)" from
the definition of transport safety infringement;
repeals paragraph (b) in the definition of transport safety
infringement law which refers to provisions of the Rail
Safety (Local Operations) Act 2006 and regulations
made under that Act;
repeals a number of other definitions relating to rail
safety and other matters that are no longer required due
to the transition of all railways to regulation under the
national regulatory scheme, or because they are not
currently referred to in the Act.
Clause 22 amends the powers of entry of transport safety officers under
section 6 of the Transport (Safety Schemes Compliance and
Enforcement) Act 2014 to omit references to rolling stock and
rail premises because those powers are no longer required to be
exercised in relation to rail safety or rolling stock.
63
Clause 23 amends the powers of transport safety officers to enter places
without notice under section 7 of the Transport (Safety
Schemes Compliance and Enforcement) Act 2014 by
substituting a reference to "public transport premises" with a
reference to "bus premises" in subsection (2) and omitting
references to rolling stock in subsections (1), (3) and (4) as, upon
transition of all railways to the national scheme, those powers are
no longer required to be exercised in relation to rail safety or
rolling stock.
Clause 24 amends the general powers of transport safety officers that apply
on entering certain premises or boarding certain vessels under
section 8 of the Transport (Safety Schemes Compliance and
Enforcement) Act 2014 so that those powers do not apply with
respect to rail safety matters or rolling stock as, upon transition of
all railways to the national scheme, those powers are no longer
required to be exercised in relation to rail safety or rolling stock.
Clause 25 amends the powers of transport safety officers to give directions
in certain circumstances under section 9 of the Transport
(Safety Schemes Compliance and Enforcement) Act 2014 by
substituting references to "public transport" with references to
"bus" and omitting references to "rolling stock" as, upon
transition of all railways to the national scheme, the powers are
no longer required to be exercised in relation to rail safety or
rolling stock.
Subclause (2) substitutes a new subsection (1) to provide that a
transport safety officer who enters bus premises or a bus under
section 6 may give a direction to any person at the premises or on
the bus that relates to the stopping or movement of any road
vehicle at the premises or the bus.
Clause 26 makes a consequential amendment to section 12 of the Act to
replace a reference to "transport safety or infrastructure law" with
a reference to "transport safety law".
Clause 27 makes a consequential amendment to powers of persons assisting
transport safety officers under section 13 of the Transport
(Safety Schemes Compliance and Enforcement) Act 2014 as,
upon transition of all railways to the national scheme, the powers
are no longer required to be exercised in relation to rail safety or
rolling stock.
64
Clause 28 makes a consequential amendment to the powers of transport
safety officers or persons assisting transport safety officers to use
electronic equipment to access information under section 14 of
the Transport (Safety Schemes Compliance and
Enforcement) Act 2014 as, upon transition of rail safety to the
national scheme, the powers will no longer be able to be
exercised on rolling stock or for the purposes of investigating a
possible contravention of a rail safety law.
Clause 29 omits references to rolling stock in section 15(1) and (2) of the
Transport (Safety Schemes Compliance and Enforcement)
Act 2014 as transport safety officers will no longer be able to
search rolling stock following the transition of the regulation of
rail safety to the national scheme.
Clause 30 omits references to rolling stock in section 16 of the Transport
(Safety Schemes Compliance and Enforcement) Act 2014 as
the powers of transport safety officers in relation to securing a
site or restricting access to rolling stock, a bus or a vessel will no
longer be exercisable in relation to rolling stock following the
transition of the regulation of rail safety to the national scheme.
Clause 31 omits references to rolling stock in section 17(3)(c) of the
Transport (Safety Schemes Compliance and Enforcement)
Act 2014 as the powers of transport safety officers will no longer
be exercisable in relation to rolling stock following the transition
of the regulation of rail safety to the national scheme.
Clause 32 omits references to rolling stock in section 18 of the Transport
(Safety Schemes Compliance and Enforcement) Act 2014 and
substitutes a reference to "transport safety or infrastructure law"
with a reference to a "transport safety law" in section 18(3)(a), as
search warrants will no longer be issued under that Act in respect
of rolling stock or in order to collect evidence of an offence
against a rail safety law. The new definition of transport safety
law inserted by clause 21 does not include any references to rail
safety legislation.
Clause 33 makes consequential amendments to section 19 of the Transport
(Safety Schemes Compliance and Enforcement) Act 2014 as
search warrants will no longer by issued under that Act in order
to collect evidence of an offence against a rail safety law. The
new definition of transport safety law inserted by clause 21 does
not include any references to rail safety legislation.
65
Section 19 authorises transport safety officers to seize things that
are not of the kind described in a search warrant in certain
circumstances.
Clause 34 makes consequential amendments and omits references to rolling
stock in section 20 of the Transport (Safety Schemes
Compliance and Enforcement) Act 2014 as search warrants
will no longer be able to be executed in relation to rolling stock
following the transition of the regulation of rail safety to the
national scheme.
Section 20 of the Transport (Safety Schemes Compliance and
Enforcement) Act 2014 requires transport safety officers make
an announcement regarding a search warrant before entering the
place or boarding the vessel that is specified in the warrant.
Clause 35 omits references to rolling stock in section 21 of the Transport
(Safety Schemes Compliance and Enforcement) Act 2014,
which requires transport safety officers to give a copy of a search
warrant to a person who appears to have control of management
of the place, rolling stock, bus or vessel when a search warrant is
being executed.
The references to rolling stock are removed as search warrants
will no longer be able to be executed in relation to rolling stock
following the transition of the regulation of rail safety to the
national scheme.
Clause 36 omits a reference to rolling stock in section 22 of the Transport
(Safety Schemes Compliance and Enforcement) Act 2014 as
powers of transport safety officers to require production of
documents, devices or other things as transport safety officers
will no longer exercise compliance and enforcement powers in
relation to rolling stock following the transition of the regulation
of rail safety to the national scheme.
Clause 37 makes consequential amendments to sections 23 and 25 of the
Transport (Safety Schemes Compliance and Enforcement)
Act 2014. Those provisions in sections 23 and 25 currently refer
to information or documents required to be kept, or given to a
transport safety officer, under a transport safety or infrastructure
law or Part 2 of that Act.
66
Following the transition of the regulation of rail safety to the
national scheme, the provisions regarding evidence admissible in
proceedings in section 23 will no longer be applicable to
information or documents required to be kept under rail safety
laws and the powers of transport safety officers to copy and
retain documents in section 25 will no longer be applicable to
documents under rail safety legislation.
The new definition of transport safety law inserted by clause 21
does not include any references to rail safety legislation.
Clause 38 makes consequential changes to section 27 of the Transport
(Safety Schemes Compliance and Enforcement) Act 2014 as
transport safety officers will not have the powers to seize things
from railway premises or rolling stock under that Act following
the transition of the regulation of rail safety to the national
scheme and will accordingly no longer require the powers to
move things from those premises or rolling stock.
Clause 39 makes consequential changes to section 31 of the Transport
(Safety Schemes Compliance and Enforcement) Act 2014 as
the provision relates to the requirement for transport safety
officers to give a receipt for items seized under Part 2 of that
Act and transport safety officers will no longer have the power to
seize items from rolling stock following the transition of the
regulation of rail safety to the national scheme.
Clause 40 makes consequential changes to section 33(1)(c) of the
Transport (Safety Schemes Compliance and Enforcement)
Act 2014.
This amendment is made as transport safety officers will no
longer be required to forfeit things seized under Part 2 of that
Act if the Safety Director reasonably believes it is necessary to
forfeit the thing to prevent it being used to commit an offence
against a rail safety law, following the transition of rail safety to
the national scheme.
The new definition of transport safety law inserted by clause 21
does not include any references to rail safety legislation.
67
Clause 41 makes consequential amendments to section 34 of the Transport
(Safety Schemes Compliance and Enforcement) Act 2014,
which provides for reasonable grounds on which the Safety
Director may retain a thing seized under Part 2 of that Act, so
that those reasonable grounds will no longer include--
retaining the thing to enable evidence of an offence
against a rail safety law to be obtained for the purposes
of a prosecution; or
because the thing is, or is likely to be, required for the
purposes of an investigation into a rail safety matter or
an audit under Division 5 of Part 3 of the Rail Safety
(Local Operations) Act 2006.
The amendment is required as the search and seizure powers
under the Transport (Safety Schemes Compliance and
Enforcement) Act 2014 will no longer apply to rail safety
matters or rolling stock following the transition of the regulation
of rail safety to the national scheme.
Clause 42 makes consequential amendments to sections 36 and 37(1) of the
Transport (Safety Schemes Compliance and Enforcement)
Act 2014.
This amendment is required as transport safety officers, or
assistants to transport safety officers, will not be able to exercise
powers under rail safety legislation following the transition of rail
safety to the national scheme and the provisions currently refer to
such officers or assistants exercising powers under transport
safety or infrastructure legislation.
The new definition of transport safety law inserted by clause 21
does not include any references to rail safety legislation.
Clause 43 makes a consequential change to section 38(2) of the Transport
(Safety Schemes Compliance and Enforcement) Act 2014
which provides for considerations in determining the amount of
compensation payable to damage caused to electronic equipment
because of the exercise, or purported exercise, of a compliance
and enforcement power under Part 2 of that Act.
This amendment is required because transport safety officers will
not have compliance and enforcement powers in relation to rail
related public transport premises under Part 2 of the Transport
(Safety Schemes Compliance and Enforcement) Act 2014
68
following the transition of the regulation of rail safety to the
national scheme.
Clause 44 makes consequential changes to sections 39, 40 and 41 of the
Transport (Safety Schemes Compliance and Enforcement)
Act 2014.
This amendment is required as each of those provisions refers to
offences against a transport safety or infrastructure law and the
definition of that term is replaced by clause 21 with a definition
of the term transport safety law, which does not include any
references to rail safety legislation.
The compliance and enforcement powers of transport safety
officers and associated compensation provisions in the
Transport (Safety Schemes Compliance and Enforcement)
Act 2014 do not need to apply to offences against rail safety
legislation following the transition of the regulation of rail safety
to the national scheme.
Clause 45 repeals section 43(1)(a) of the Transport (Safety Schemes
Compliance and Enforcement) Act 2014 which allows a
transport safety officer to direct a rail transport operator or a rail
safety worker who is associated with particular rolling stock to
provide certain information for compliance and investigative
purposes.
Clause 46 omits references to rolling stock and rail safety work in
section 46 of the Transport (Safety Schemes Compliance and
Enforcement) Act 2014 which provides for the powers of
transport safety officers to enter residential premises.
These amendments are required so that transport safety officers
will not have powers to enter rail related premises or rolling stock
under the Transport (Safety Schemes Compliance and
Enforcement) Act 2014 following the transition of the
regulation of rail safety to the national scheme.
Clause 47 makes consequential amendments to section 47 of the Transport
(Safety Schemes Compliance and Enforcement) Act 2014
which specifies requirements in relation to the use of force by
transport safety officers when exercising powers of entry and
other investigatory powers under that Act. The amendments
remove references to rolling stock in the provision as the powers
the section applies to will not be exercisable in relation to rolling
69
stock following the transition of the regulation of rail safety to
the national scheme.
Clause 48 makes consequential amendments to section 49 of the Transport
(Safety Schemes Compliance and Enforcement) Act 2014,
which specifies the manner in which transport safety officers
must exercise powers in Part 2 of that Act, to remove a reference
to rolling stock. The powers of transport safety officers in Part 2
will not be exercisable in relation to rolling stock following the
transition of the regulation of rail safety to the national scheme.
Clause 49 makes consequential amendments to section 50 of the Transport
(Safety Schemes Compliance and Enforcement) Act 2014
which provides transport safety officers with powers to serve
improvement notices on persons in certain circumstances.
The amendments remove references to rail safety matters and
laws so that transport safety officers will not have powers to
serve improvement notices with respect to rail safety matters
following the transition of the regulation of rail safety to the
national scheme.
Clause 50 repeals section 51 of the Transport (Safety Schemes
Compliance and Enforcement) Act 2014 which allows
improvement notices served by a transport safety officer under
section 50 of that Act to require a person to close a level
crossing, bridge or other structure passing over or under a railway
(that the person owns or controls or for which the person is
responsible). This provision is no longer required as transport
safety officers will not have powers under the Transport
(Safety Schemes Compliance and Enforcement) Act 2014 with
respect to rail safety matters following the transition of the
regulation of rail safety to the national scheme.
Clause 51 makes consequential amendments to section 52 of the Transport
(Safety Schemes Compliance and Enforcement) Act 2014,
which specifies content requirements for improvement notices
served under that Act, to remove references to rail safety matters
and laws. This amendment is required as transport safety officers
will not have the power to serve improvement notices in relation
to rail safety matters following the transition of the regulation of
rail safety to the national scheme.
70
Clause 52 makes consequential amendments to sections 54 and 57 of the
Transport (Safety Schemes Compliance and Enforcement)
Act 2014. Section 54 provides for amendments to improvement
notices and section 57 provides for the effect of improvement
notices on a proceeding for an offence against a transport safety
or infrastructure law.
These amendments are required as improvement notices will no
longer be able to be served by transport safety officers with
respect to rail safety matters following the transition of the
regulation of rail safety to the national scheme.
Clause 53 makes consequential amendments to section 60(1) of the
Transport (Safety Schemes Compliance and Enforcement)
Act 2014 which empowers transport safety officers to serve
prohibition notices on a person in certain circumstances, to
remove reference to railway operations, rail infrastructure and
rolling stock. This is required so that transport safety officers
will not have the power to serve infringement notices in relation
to rail safety matters following the transition of the regulation of
rail safety to the national scheme.
Clause 54 makes consequential amendments to sections 61 and 67 of the
Transport (Safety Schemes Compliance and Enforcement)
Act 2014. Section 61 provides for the content requirements of
prohibition notices and section 67 provides for the effect of a
prohibition notice on a proceeding for an offence against a
transport safety or infrastructure law.
These amendments are required as prohibition notices will not be
able to be served by transport safety officers with respect to rail
safety matters following the transition of the regulation of rail
safety to the national scheme.
Clause 55 makes consequential amendments to section 68(2) of the
Transport (Safety Schemes Compliance and Enforcement)
Act 2014 so that the Safety Director will not have powers to take
remedial action with respect to the safety of railway premises
under that section following the transition of the regulation of rail
safety to the national scheme.
Clause 56 makes consequential amendments to section 69 of the Transport
(Safety Schemes Compliance and Enforcement) Act 2014 so
that the Safety Director will not have powers to take remedial
action with respect to the safety of railway premises under that
71
section following the transition of the regulation of rail safety to
the national scheme.
Clause 57 makes consequential amendments to section 71 of the Transport
(Safety Schemes Compliance and Enforcement) Act 2014 to
remove references to rail safety matters so that transport safety
officers will not have powers to serve non-disturbance notices on
persons with control or management of railway premises or
rolling stock following the transition of the regulation of rail
safety to the national scheme.
Clause 58 makes consequential amendments to section 72 of the Transport
(Safety Schemes Compliance and Enforcement) Act 2014,
which provides for content requirements of non-disturbance
notices, to remove references to rail safety matters and rolling
stock.
This amendment is required as transport safety officers will not
have powers to serve non-disturbance notices on persons with
control or management of railway premises or rolling stock
following the transition of the regulation of rail safety to the
national scheme.
Clause 59 makes consequential amendments to section 80 of the Transport
(Safety Schemes Compliance and Enforcement) Act 2014.
Section 80 provides for the service of notices under the Act and
such notices will no longer be able to be served in respect of
railway premises or rolling stock following the transition of the
regulation of rail safety to the national scheme.
Clause 60 makes consequential amendments to section 82 of the Transport
(Safety Schemes Compliance and Enforcement) Act 2014 as
the Act will no longer be applicable in relation to offences under
safety rail legislation following the transition of the regulation of
rail safety to the national scheme and the new definition of
transport safety law inserted by clause 20 does not include any
references to rail safety legislation.
Clause 61 makes consequential amendments to section 83 of the Transport
(Safety Schemes Compliance and Enforcement) Act 2014
regarding enforceable voluntary undertakings that may be
accepted by the Safety Director so that such undertakings cannot
be accepted in relation to rail safety matters following the
transition of the regulation of rail safety to the national scheme.
72
Clause 62 makes consequential amendments to sections 84, 85 and 86 of the
Transport (Safety Schemes Compliance and Enforcement)
Act 2014 which provide for matters in relation to transport safety
undertakings that may be accepted by the Safety Director under
section 83 of that Act.
Clause 63 makes consequential amendments to section 87 of the Transport
(Safety Schemes Compliance and Enforcement) Act 2014.
Section 87 provides for the powers of the Safety Director in
relation to contraventions of transport safety undertakings.
These amendments are required as the Safety Director will no
longer be able to accept such undertakings from rail transport
operators in relation to rail safety matters following the transition
of the regulation of rail safety to the national scheme.
Clause 64 makes consequential amendments to section 88(1) of the
Transport (Safety Schemes Compliance and Enforcement)
Act 2014. Section 88 provides for the circumstances in which a
transport safety undertaking may be withdrawn or varied.
This section makes consequential changes so that provisions
regarding withdrawal or variation of such undertakings also no
longer apply to rail transport operators or in relation to a
contravention of a rail safety law as rail safety matters will be
regulated under the national scheme.
Clause 65 makes consequential amendments to section 89 of the Transport
(Safety Schemes Compliance and Enforcement) Act 2014.
Section 89 specifies circumstances in which proceedings may not
be commenced for a contravention or alleged contravention of a
transport safety or infrastructure law due to transport safety
undertakings.
Clause 66 makes a consequential amendment to the heading of Division 8
of Part 3 of the Transport (Safety Schemes Compliance and
Enforcement) Act 2014 as following the transition of the
regulation of rail safety to the national scheme, that Division will
no longer provide for additional enforcement measures relating to
rail safety and will only provide for such measures relating to bus
safety.
73
Clause 67 makes consequential amendments to section 90 of the Transport
(Safety Schemes Compliance and Enforcement) Act 2014, to
remove references to rail safety matters and rail transport
operators.
Section 90 provides the Safety Director with powers to direct rail
transport operators or operators of a bus service to take certain
action in response to a safety report. The Safety Director will no
longer have powers with respect to compliance and enforcement
of rail safety matters following the transition of the regulation of
rail safety to the national scheme.
Clause 68 repeals sections 91 and 92 of the Transport (Safety Schemes
Compliance and Enforcement) Act 2014 which provide for
additional enforcement measures relating to rail safety matters.
That Act will no longer apply to rail safety matters following the
transition of the regulation of rail safety to the national scheme
and these provisions are not required because there are equivalent
provisions in the Rail Safety National Law (Victoria).
Section 91 provides the Safety Director with powers to direct that
a person stop, alter or not commence works near a railway that
threaten, or are likely to threaten, the safety or operational
integrity of the railway and provides for offences that apply to a
failure to comply with such a direction.
Section 92 provides authorised officers (as defined in that
section) with powers to close temporarily or regulate a railway
crossing, bridge, subway or other structure for crossing or
passing or over under a railway if satisfied it is necessary because
of an immediate threat to safety.
Clause 69 repeals Division 2 of Part 4 of the Transport (Safety Schemes
Compliance and Enforcement) Act 2014 which contains
various provisions relating to the issue of safety work
infringements by police officers.
Division 2 of Part 4 provides that a safety work infringement may
be issued for an alcohol related offence committed by a rail
safety worker. Safety work infringements may, subject to certain
requirements, lead to a conviction without a finding of guilt in
respect of the offence by a court.
74
The National Regulator does not propose to rely on the issuing of
infringement notices for alcohol related offences but will instead
lay charges with respect to each offence. Additionally, the
Victorian infringements scheme will no longer apply to offences
under the Rail Safety National Law (Victoria) (see clause 9 of the
Bill). Consequently, the option to issue safety work infringement
notices in Victoria is no longer required.
Clause 70 consequentially amends the table in section 99 of the Transport
(Safety Schemes Compliance and Enforcement) Act 2014
which sets out the decisions made under that Act that are
reviewable decisions in accordance with the Act and who is
eligible to apply for review of such decisions. The amendments
remove decisions relating rail safety matters as those matters will
be regulated under the national scheme.
Clause 71 makes consequential amendments to section 103 of the
Transport (Safety Schemes Compliance and Enforcement)
Act 2014 which provides for offences in relation to giving false
or misleading information in complying or purportedly
complying with that Act or a transport safety or infrastructure
law or a direction or requirement under that Act.
Clause 72 repeals section 104(2)(j) of the Transport (Safety Schemes
Compliance and Enforcement) Act 2014 which provides for
the criminal liability of officers of bodies corporate for failure to
exercise due diligence with respect to offences against certain
provisions.
Section 104(2)(j) refers to sections 91(4) and (6) of the
Transport (Safety Schemes Compliance and Enforcement)
Act 2014 which are being repealed by clause 68 of the Bill.
Clause 73 makes consequential amendments to section 105 of the
Transport (Safety Schemes Compliance and Enforcement)
Act 2014.
Section 105 provides specified persons with the power to
commence proceedings against that Act or a transport safety or
infrastructure law. Following the transition of the regulation of
rail safety to the national scheme, such persons will not need the
powers granted by section 105 with respect to rail safety laws.
75
Clause 74 makes consequential changes to section 106 of the Transport
(Safety Schemes Compliance and Enforcement) Act 2014.
Section 106 provides for a limitation period for prosecution of
indictable offences against the Transport (Safety Schemes
Compliance and Enforcement) Act 2014 or a transport safety
or infrastructure law. Following the transition of the regulation
of rail safety to the national scheme, the Transport (Safety
Schemes Compliance and Enforcement) Act 2014 will not
apply to indictable offences against rail safety laws and
accordingly section 106 will not be applicable to prosecutions
against such laws.
Clause 75 makes consequential amendments to section 107 of the
Transport (Safety Schemes Compliance and Enforcement)
Act 2014 which provides for evidentiary certificates, signed, or
purporting to be signed, by the Safety Director or a transport
safety officer, applicable in proceedings for an offence against
that Act or a transport safety or infrastructure law.
The amendments are required so that those certificates will no
longer be applicable in proceedings for offences against rail
safety laws, and will not be accepted as proof of rail safety
matters following the transition of the regulation of rail safety to
the national scheme.
Clause 76 amends section 108 of the Transport (Safety Schemes
Compliance and Enforcement) Act 2014 which provides for
the definitions applicable in Division 4 of Part 6 of that
Act regarding court based sanctions.
Clause 76 repeals the definitions of Australian rail safety law,
relevant law and relevant marine law in section 108 and inserts
the following definitions--
bus law means a provision of the Bus Safety Act 2009 or any
regulations made under that Act;
marine law means--
(a) a provision of the Marine Safety Act 2010 or any
regulations made under that Act; or
(b) a provision of the Marine (Drug, Alcohol and
Pollution Control) Act 1988 or any regulations made
under that Act.
76
These changes remove references to rail safety laws so that the
court based sanctions in that Division will not be applicable with
respect to offences again rail safety laws following the transition
of the regulation of rail safety to the national scheme.
Clause 77 makes a consequential amendment to section 109(1) of the
Transport (Safety Schemes Compliance and Enforcement)
Act 2014 regarding commercial benefits orders to clarify that
such orders will no longer be available to be made by a court that
finds a person guilty of an offence against a rail safety law
following the transition of the regulation of rail safety to the
national scheme.
Clause 78 makes consequential amendments to section 110 of the
Transport (Safety Schemes Compliance and Enforcement)
Act 2014, which provides for powers and requirements for
supervisory intervention orders, so that such orders will no longer
be available to be made by a court that finds a person guilty of an
offence against a rail safety law following the transition of the
regulation of rail safety to the national scheme.
Clause 78 also inserts a new definition of corresponding
interstate bus law which means a law of the Commonwealth,
another State or a Territory that corresponds or substantially
corresponds to a bus law.
Clause 79 makes consequential amendments to section 111 of the
Transport (Safety Schemes Compliance and Enforcement)
Act 2014 regarding exclusion orders so that such orders will no
longer available to be made by a court that finds a person guilty
of an offence against a rail safety law following transition of the
regulation of rail safety to the national scheme.
Clause 80 makes consequential amendments to section 112(1) of the
Transport (Safety Schemes Compliance and Enforcement)
Act 2014 regarding adverse publicity orders so that such orders
will no longer available to be made by a court that finds a person
guilty of an offence against a rail safety law following transition
of the regulation of rail safety to the national scheme.
Clause 81 makes consequential amendments to section 113 of the
Transport (Safety Schemes Compliance and Enforcement)
Act 2014 regarding the powers of a court to make an order for
the release of an offender, on the offender giving a safety
undertaking, so that such orders will no longer available to be
77
made by a court that convicts or finds a person guilty of an
offence against a rail safety law following transition of the
regulation of rail safety to the national scheme.
Clause 82 makes consequential amendments to sections 116, 119, 120, 121
and 122 of the Transport (Safety Schemes Compliance and
Enforcement) Act 2014 relating to--
the powers of the Safety Director to appoint transport
safety officers;
requirements for transport safety officers to produce
their identity cards in certain circumstances;
the functions and powers of transport safety officers;
the powers of the Safety Director to direct transport
safety officers; and
the authorisation of transport safety officers to take
affidavits.
Clause 83 makes consequential amendments to section 123 of the
Transport (Safety Schemes Compliance and Enforcement)
Act 2014 which provides for a transport safety officer to
participate in specified inquiries so that, following transition of
the regulation of rail safety to the national scheme, transport
safety officers will no longer be able to participate in an inquiry
into the cause of any death or injury of a person while carrying
out rail safety work or any other incident or event relating to
safety at rail premises or on rolling stock.
Clause 84 makes consequential amendments to sections 124 and 127 of the
Transport (Safety Schemes Compliance and Enforcement)
Act 2014.
Section 124, which sets out the offence to hinder or obstruct a
transport safety officer, refers to the powers of a transport safety
officer under a transport safety or infrastructure law.
Section 127, which deals with legal professional privilege,
specifies that nothing under a transport safety or infrastructure
law requires a person to produce a document or disclose
information or otherwise provide information that is the subject
of legal professional privilege.
78
The consequential amendments made by clause 84 are required
because transport safety officers will no longer have powers and
functions under rail safety laws, and rail safety laws will not be
relevant to the application of the Transport (Safety Schemes
Compliance and Enforcement) Act 2014 following transition of
the regulation of rail safety to the national scheme.
Clause 85 repeals sections 128(1) and (3)(a) of the Transport (Safety
Schemes Compliance and Enforcement) Act 2014 which
provide for the Safety Director to recover costs of entry and
inspection of rail infrastructure, rolling stock or railway premises
from rail transport operators and specify that the cost recovery
power in subsection (1) does not apply to the costs of an
inspection forming part of a safety audit conducted under
section 29 of the Rail Safety (Local Operations) Act 2006.
These amendments are required as the Safety Director will no
longer have powers to enter and inspect rail infrastructure, rolling
stock or railway premises under the Transport (Safety Schemes
Compliance and Enforcement) Act 2014 following transition of
the regulation of rail safety to the national scheme, and the repeal
of the Rail Safety (Local Operations) Act 2006 by the Bill.
Clause 86 repeals section 130 of the Transport (Safety Schemes
Compliance and Enforcement) Act 2014 which defines
relevant rail safety duty law for the purposes of that section and
provides that civil liability is not affected by such a law, whether
by conferring a right of action or conferring a defence.
Clause 87 makes consequential amendments to section 131 of the
Transport (Safety Schemes Compliance and Enforcement)
Act 2014, which provides for the means of service of notices or
documents required or authorised by or under that Act or a
transport safety or infrastructure law.
This amendment is required so that the Transport (Safety
Schemes Compliance and Enforcement) Act 2014
requirements regarding service of notices or documents will not
apply to matters required or authorised under rail safety laws
following the transition of the regulation of rail safety to the
national scheme.
79
Clause 88 amends section 132(1) of the Transport (Safety Schemes
Compliance and Enforcement) Act 2014, which provides for
the powers of the Governor in Council to make regulations for or
with respect to specified matters under that Act.
Paragraph (a) of the clause repeals paragraphs (c) and (d) of
section 131(1) of the Transport (Safety Schemes Compliance
and Enforcement) Act 2014 which allow the Governor in
Council to make regulations for or with respect to--
any additional prescribed details to be included in a
safety work infringement notice;
the method of service of a safety work infringement
notice.
Paragraph (b) of the clause omits "or safety work infringement"
in paragraph (e) of section 131(1) of the Transport (Safety
Schemes Compliance and Enforcement) Act 2014, which
refers to the power of Governor in Council to make regulations
for or with respect to the penalty for any transport safety
infringement or safety work infringement.
These amendments made as a consequence of the repeal of
Division 2 of Part 4 of the Transport (Safety Schemes
Compliance and Enforcement) Act 2014 regarding safety work
infringements (see clause 69 of the Bill).
Part 4--Amendment of other Acts
Part 4 of the Bill provides for amendments required to other Acts to reflect
and accommodate the transition of the regulation of rail safety to a national
scheme.
Division 1--Amendment of the Transport Integration Act 2010
Division 1 of Part 4 of the Bill provides for consequential amendments to the
Transport Integration Act 2010 as a result of the transition of the regulation
of the regulation of rail safety to the national scheme.
Clause 89 amends the definitions in section 3 of the Transport Integration
Act 2010 to reflect the transition of the regulation of the
regulation of rail safety to the national scheme and to reflect the
removal of rail safety matters from the scope of the Transport
(Safety Schemes Compliance and Enforcement) Act 2014.
80
Clause 89 amends section 3 of the Transport Integration
Act 2010 as follows--
inserts a new definition of bus safety matter to replace
the definition of public transport safety matter (which
is repealed by the Bill as it refers to rolling stock and
rail infrastructure);
inserts a new definition of transport safety law which
specifies that transport safety law has the same meaning
as it has in section 3 of the Transport (Safety Schemes
Compliance and Enforcement) Act 2014;
repeals paragraph (b) of the definition of mandatory
transport safety decision to remove reference to a
mandatory rail safety decision;
substitutes the definition of rail infrastructure with the
following to remove reference to the Rail Safety (Local
Operations) Act 2006 which is repealed by the Bill--
"rail infrastructure has the same meaning as in
section 4(1) of the Rail Safety National Law (Victoria)";
repeals paragraph (m) of the definition of transport
legislation to remove reference to the Rail Safety
(Local Operations) Act 2006 which is repealed by the
Bill;
repeals the definitions of mandatory rail safety
decision, rail safety officer, rail safety
recommendation, rail safety worker, relevant rail
safety project, relevant transport safety law and
transport safety.
Clause 90 repeals sections 79L and 79M of the Transport Integration
Act 2010.
Section 79L of the Transport Integration Act 2010 which
requires the Public Transport Development Authority to conduct
a cost-benefit analysis of relevant rail safety projects where the
Director, Transport Safety makes a rail safety recommendation in
relation to the project. This section is being repealed as the
Director, Transport Safety will not have powers to make rail
safety recommendations following the transition of the regulation
of the regulation of rail safety to the national scheme.
81
Section 79M of the Transport Integration Act 2010 provides
for the Minister to prepare guidelines for the purposes of a
cost-benefit analysis conducted under section 79L. Section 79M
is repealed as a consequence of the repeal of section 79L by this
clause.
Clause 91 amends section 172 of the Transport Integration Act 2010
which provides for the objects of the Director, Transport Safety.
The amendments are consequential to the reduced scope of the
functions of the Safety Director and they remove objects relating
to rail safety matters.
Clause 92 amends section 173(1) of the Transport Integration Act 2010,
which provides for the functions of the Director, Transport
Safety. The amendments are consequential to the reduced scope
of the functions of the Safety Director and remove references and
requirements in relation to rail related matters, the Rail Safety
(Local Operations) Act 2006 (which is repealed by the Bill), the
Rail Safety National Law Application Act 2013 or the Rail
Safety National Law (Victoria) and regulations made under those
Acts and laws.
These changes are required because the Director, Transport
Safety will no longer have functions or duties in relation to rail
safety matters following the transition of the regulation of the
regulation of rail safety to the national scheme. Such matters will
be the responsibility of the Office of the National Rail Safety
Regulator.
Clause 93 makes consequential amendments to section 174 of the
Transport Integration Act 2010 so that the Director, Transport
Safety will no longer have the power to investigate rail safety
matters following the transition of the regulation of rail safety to
the national scheme.
Clause 94 inserts a new section 174A in the Transport Integration
Act 2010 to provide that the Director, Transport Safety is subject
to the general direction and control of the Minister and must
comply with any direction given by the Minister. New section
174A also specifies that any directions given by the Minister may
be published in the Government Gazette.
82
The inclusion of this new power reflects changes to the level of
independence required of the role of Director, Transport Safety
due the reduction in scope of the functions of that role. The role
will only have functions relating to marine and bus safety matters
following the transition of the regulation of rail safety to the
national scheme.
Clause 95 makes consequential amendments to section 177 of the
Transport Integration Act 2010, which authorises information
disclosure by the Director, Transport Safety in certain
circumstances. These amendments are made as a consequence of
the removal of rail safety matters from scope of functions and
powers of the Director, Transport Safety.
Clause 96 makes consequential amendments to section 178(1) of the
Transport Integration Act 2010, which specifies the delegation
powers of the Director, Transport Safety.
Clause 97 inserts a new section 178B before section 179 of the Transport
Integration Act 2010 to specify a definition of transport safety
for the purposes of Division 2 of Part 7 of that Act which
contains provisions regarding the Chief Investigator, Transport
Safety.
The new definition for the purposes of that Division specifies that
transport safety means safety for the operation of rail, bus and
marine transport. The amendment is necessary to preserve the
current scope of functions of the Chief Investigator to continue to
be able to investigate rail safety matters, as well as bus and
marine safety matters.
Clause 98 inserts a new section 181A in the Transport Integration
Act 2010 which replicates the current section 194 of the Act to
retain the current independent status of the Chief Investigator,
Transport Safety, when performing or exercising their functions
or powers.
This provision is inserted to clarify that the role of Chief
Investigator, Transport Safety will remain independent of the
Minister.
Clause 99 makes a consequential amendment to section 184 of the
Transport Integration Act 2010 which relates to the level of
experience required for a person to be appointed to an office of
transport safety appointee.
83
The amendment clarifies the experience levels required since the
Director, Transport Safety will not have powers or functions
relating to rail safety matters but the Chief Investigator,
Transport Safety will continue to have such powers and
functions.
Clause 100 makes a consequential amendment to section 186 of the
Transport Integration Act 2010 so that a person will cease to
be a transport safety appointee if he or she is removed from
office under section 188 of that Act.
Clause 101 inserts a new section 187A in the Transport Integration
Act 2010 which provides for the suspension of a transport safety
appointee. The new section takes the suspension provisions from
the existing section 188 of the Act and places them into a new
section.
New section 187A provides that the Minister may immediately
suspend a transport safety appointee if the Minister is of the
opinion that certain criteria specified exists. A suspension may
not be for more than 3 months.
Clause 102 amends section 188 of the Transport Integration Act 2010, so
that it only provides for the removal from office of a transport
safety appointee.
Clause 103 makes consequential amendments to section 191 of the
Transport Integration Act 2010, which provides for the powers
of the Minister to direct a transport safety appointee to
investigate a public transport safety matter or a marine safety
matter, to instead refer to the new definition of transport safety
matter.
The amendments are required as a consequence of the removal of
rail safety matters from the scope of the functions of the Director,
Transport Safety due to the transition of the regulation of rail
safety to the national scheme.
Clause 104 repeals section 194 of the Transport Integration Act 2010
which provides that, subject to certain provisions, a transport
safety appointee, when performing or exercising his or her
functions or powers, is independent and is not subject to the
direction and control of the Minister.
84
This provision is repealed to reflect changes to the level of
independence required of the role of Director, Transport Safety,
due the reduction in scope of the functions of that role. That role
will only have functions relating to marine and bus safety matters
following the transition of the regulation of rail safety to the
national scheme.
The role of Chief Investigator, Transport Safety will still remain
independent as provided for by new section 181A inserted by
clause 98 of the Bill.
Clause 105 makes a consequential amendment to section 197(1) of the
Transport Integration Act 2010 which provides for a transport
safety appointee to give advice to a person who has a duty or
obligation under a relevant transport safety law about complying
with that duty or obligation.
Clause 106 repeals paragraph (a) in the definition of decision in
section 197A of the Transport Integration Act 2010, which
refers to a direction given by the Director, Transport Safety under
Division 2 of Part 4 of the Rail Safety (Local Operations)
Act 2006, due to the repeal of the Rail Safety (Local
Operations) Act 2006 by the Bill.
Division 2--Amendment of the Transport (Compliance and
Miscellaneous) Act 1983
This Division (apart from clause 110) makes a number of consequential
amendments to reflect the transition of the regulation of rail safety to the
national scheme, such as omitting references to the Rail Safety (Local
Operations) Act 2006 and terms defined by reference to that Act.
Clause 107 makes consequential amendments to definitions contained in
section 2 of the Transport (Compliance and Miscellaneous)
Act 1983.
Clause 108 makes consequential amendments to section 12 of the Transport
(Compliance and Miscellaneous) Act 1983 which relates to
financial assistance given to train drivers following a fatal
incident.
Clause 109 makes consequential amendments to section 82C of the
Transport (Compliance and Miscellaneous) Act 1983.
85
Clause 110 makes consequential amendments to section 84 of the Transport
(Compliance and Miscellaneous) Act 1983 which relates to
investigation powers of the Chief Investigator, Transport Safety.
The amendments continue the application of Part 2 of the
Transport (Safety Schemes Compliance and Enforcement)
Act 2014 as in force immediately before the commencement of
Part 3 of the Rail Safety Legislation Amendment (National
Services Delivery and Related Reforms) Act 2019 with
appropriate modifications, including a modification that provides
that a reference to the Safety Director in that Part should be read
as a reference to the Chief Investigator. The effect of the
amendments is to continue the Chief Investigator's investigative
powers in relation to rail safety matters.
Clause 111 repeals a paragraph in the definition of category 3 offence in
section 86 of the Transport (Compliance and Miscellaneous)
Act 1983 consequential to the changes in the Bill.
Clause 112 makes consequential amendments to section 163 of the
Transport (Compliance and Miscellaneous) Act 1983.
Clause 113 makes consequential amendments to section 208 of the
Transport (Compliance and Miscellaneous) Act 1983
Clause 114 repeals section 230J of the Transport (Compliance and
Miscellaneous) Act 1983 which provides for offences under the
Rail Safety (Local Operations) Act 2006 relating to bodies
corporate.
Clause 115 makes consequential amendments to section 250 of the
Transport (Compliance and Miscellaneous) Act 1983.
Clause 116 makes consequential amendments to section 251 of the
Transport (Compliance and Miscellaneous) Act 1983.
Division 3--Amendment of other Acts
Division 3 of Part 4 of the Bill provides for the consequential amendment of
other Acts as specified in Schedule 1 to the Bill.
Clause 117 provides that on the commencement of an item in Schedule 1
to the Bill, the Act specified in the heading to that item is
amended as set out in that item.
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Part 5--Repeal of the Rail Safety (Local Operations) Act 2006
and this Act
Part 5 of the Bill repeals the Rail Safety (Local Operations) Act 2006 and
provides for the repeal of the amending Act.
Clause 118 repeals the Rail Safety (Local Operations) Act 2006.
The Rail Safety (Local Operations) Act 2006 will no longer be
required as a statute in Victoria following the transition of the
regulation of all railways, including trams, light rail and
7 remaining tourist and heritage railways to the national scheme
under the Rail Safety National Law (Victoria) and the Rail
Safety National Law Application Act 2013.
Any provisions contained in the Rail Safety (Local Operations)
Act 2006 that are still required to be applicable in Victoria in
addition to the Rail Safety National Law (Victoria) are
accordingly inserted into the Rail Safety National Law
Application Act 2013 by this Bill.
Savings and transitional provisions to manage the transition of all
matters to the national scheme are provided for in Part 2 of the
Bill.
Clause 119 provides for the repeal of the amending Act on 1 July 2021
noting that the repeal of the amending Act on that date does not
affect the continuing operation of the amendments made by it.
Schedule 1--Consequential amendments to other Acts
Schedule 1 sets out minor consequential amendments to a number of Acts on
the Victorian Statute Book. The changes predominantly change
or remove references to the Rail Safety (Local Operations)
Act 2006 and to replace terms defined under that Act with terms
defined under the Rail Safety National Law (Victoria). The
relevant Acts are--
Commercial Passenger Vehicle Industry Act 2017
Criminal Procedure Act 2009
Electricity Industry Act 2000
Electricity Safety Act 1998
Fines Reform Act 2014
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Gas Industry Act 2001
Infringements Act 2006
Major Transport Projects Facilitation Act 2009
Melbourne City Link Act 1995
Rail Management Act 1996
Road Management Act 2004
Tourist and Heritage Railways Act 2010
Water Act 1989
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