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This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia Rail Safety National Law (WA) Bill 2014 Contents Part 1 -- Preliminary 1. Short title 2 2. Commencement 2 3. Terms used 2 Part 2 -- Application of Rail Safety National Law 4. Application of Rail Safety National Law 3 5. Local modifications to the Rail Safety National Law 3 6. Meaning of generic terms in Rail Safety National Law (WA) for purposes of this jurisdiction 4 7. No double jeopardy 6 8. Exclusion of legislation of this jurisdiction 6 Part 3 -- Local provisions for alcohol and drug testing Division 1 -- Preliminary 9. Terms used 8 Division 2 -- Alcohol testing 10. Using breath sample to find blood alcohol content 10 11. Preliminary breath test or breath analysis 10 12. When breath test or breath analysis may be required 11 13. Rail safety worker not obliged to comply with requirement in certain circumstances 11 14. Authorised person must not make requirement in certain circumstances 12 15. Conduct of breath analysis 12 85--2 page i Rail Safety National Law (WA) Bill 2014 Contents 16. Further breath analysis 12 17. Breath analysis indicates prescribed BAC 13 Division 3 -- Drug testing 18. Drug screening test, oral fluid analysis or urine analysis 13 19. When drug screening test or oral fluid analysis may be required 13 20. When urine analysis may be required 14 21. Rail safety worker not obliged to comply with requirement in certain circumstances 14 22. Authorised person must not make requirement in certain circumstances 15 Division 4 -- Blood samples 23. Term used: hospital 15 24. Provision of blood sample 15 25. Blood sample after preliminary breath test or breath analysis requirement 16 26. Blood sample after drug screening, oral fluid analysis or urine analysis requirement 17 27. Blood sample if test or analysis fails to explain conduct, condition or appearance 17 28. Rail safety worker not obliged to comply with requirement in certain circumstances 18 29. Compulsory blood testing following a prescribed notifiable occurrence 18 Division 5 -- Evidence 30. Term used: relevant time 19 31. Use of test or analysis result in court proceedings 20 32. Calculating BAC at relevant time 21 33. Evidence by certificate 22 Division 6 -- Other matters for purposes of this Part 34. Reports relating to worker's refusal or failure to comply with requirement of authorised person 23 35. Protection from personal liability for sample takers and analysts 24 36. Self-incrimination no excuse 24 37. Local regulations 25 page ii Rail Safety National Law (WA) Bill 2014 Contents Part 4 -- Local repeal and transitional provisions Division 1 -- Preliminary 38. Terms used 26 Division 2 -- Repeal 39. Repeal 26 Division 3 -- Transitional 40. Accreditation 26 41. Registration 27 42. Police officers continue to be authorised 28 43. Alleged offences against repealed Act 28 44. Notifiable occurrences 29 45. Notices 29 46. Safety-related systems, agreements, plans, programmes and assessments 29 47. Reviews and appeals 30 48. Provision of information and assistance by Director of Rail Safety 30 49. Funds in, or payable to, Rail Safety Accreditation Account 30 Part 5 -- Consequential amendments 50. Various references to "Rail Safety Act 2010" amended 32 Schedule -- Rail Safety National Law Part 1 -- Preliminary 1. Short title 33 2. Commencement 33 3. Purpose, objects and guiding principles of Law 33 4. Interpretation 34 5. Interpretation generally 44 6. Declaration of substance to be drug 44 7. Railways to which this Law does not apply 45 8. Meaning of rail safety work 46 9. Single national entity 47 10. Extraterritorial operation of Law 48 11. Crown to be bound 48 page iii Rail Safety National Law (WA) Bill 2014 Contents Part 2 -- Office of the National Rail Safety Regulator Division 1 -- Establishment, functions, objectives, etc 12. Establishment 48 13. Functions and objectives 49 14. Independence of ONRSR 50 15. Powers 50 Division 2 -- Office of the National Rail Safety Regulator 16. Constitution of ONRSR 50 17. Appointment of Regulator 51 18. Acting National Rail Safety Regulator 51 19. Functions of Regulator 52 20. Power of Regulator to obtain information 52 21. Appointment of non-executive members 54 22. Vacancy in or removal from office 54 23. Member to give responsible Ministers notice of certain events 55 24. Extension of term of office during vacancy in membership 55 25. Members to act in public interest 56 26. Disclosure of conflict of interest 56 Division 3 -- Procedures 27. Times and places of meetings 57 28. Conduct of meetings 57 29. Defects in appointment of members 58 30. Decisions without meetings 58 31. Common seal and execution of documents 58 Division 4 -- Finance 32. Establishment of Fund 59 33. Payments into Fund 59 34. Payments out of Fund 60 35. Investment of money in Fund 60 36. Financial management duties of ONRSR 60 Division 5 -- Staff 37. Chief executive 61 38. Staff 61 39. Secondments to ONRSR 62 40. Consultants and contractors 62 page iv Rail Safety National Law (WA) Bill 2014 Contents Division 6 -- Miscellaneous 41. Regulator may be directed to investigate rail safety matter 62 42. National Rail Safety Register 62 43. Annual report 64 44. Other reporting requirements 65 45. Delegation 65 Part 3 -- Regulation of rail safety Division 1 -- Interpretation 46. Management of risks 65 47. Meaning of reasonably practicable 66 Division 2 -- Occupational health and safety and railway operations 48. Relationship between this Law and OHS legislation 66 49. No double jeopardy 67 Division 3 -- Rail safety duties 50. Principles of shared responsibility, accountability, integrated risk management, etc 67 51. Principles applying to rail safety duties 68 52. Duties of rail transport operators 69 53. Duties of designers, manufacturers, suppliers etc 71 54. Duties of persons loading or unloading freight 72 55. Duty of officers to exercise due diligence 72 56. Duties of rail safety workers 73 57. Meaning of safety duty 74 58. Failure to comply with safety duty -- reckless conduct -- Category 1 74 59. Failure to comply with safety duty -- Category 2 75 60. Failure to comply with safety duty -- Category 3 75 Division 4 -- Accreditation 61. Purpose of accreditation 75 62. Accreditation required for railway operations 75 63. Purposes for which accreditation may be granted 76 64. Application for accreditation 77 65. What applicant must demonstrate 78 66. Regulator may direct applicants to coordinate applications 78 67. Determination of application 79 page v Rail Safety National Law (WA) Bill 2014 Contents 68. Application for variation of accreditation 81 69. Determination of application for variation 82 70. Prescribed conditions and restrictions 84 71. Variation of conditions and restrictions 84 72. Regulator may make changes to conditions or restrictions 84 73. Revocation or suspension of accreditation 85 74. Immediate suspension of accreditation 88 75. Surrender of accreditation 89 76. Annual fees 89 77. Waiver of fees 90 78. Penalty for breach of condition or restriction 90 79. Accreditation cannot be transferred or assigned 90 80. Sale or transfer of railway operations by accredited person 91 81. Keeping and making available records for public inspection 91 Division 5 -- Registration of rail infrastructure managers of private sidings 82. Exemption from accreditation in respect of certain private sidings 92 83. Requirement for managers of certain private sidings to be registered 92 84. Application for registration 93 85. What applicant must demonstrate 94 86. Determination of application 94 87. Application for variation of registration 96 88. Determination of application for variation 97 89. Prescribed conditions and restrictions 98 90. Variation of conditions and restrictions 98 91. Regulator may make changes to conditions or restrictions 99 92. Revocation or suspension of registration 99 93. Immediate suspension of registration 100 94. Surrender of registration 101 95. Annual fees 102 96. Waiver of fees 103 97. Registration cannot be transferred or assigned 103 98. Offences relating to registration 103 page vi Rail Safety National Law (WA) Bill 2014 Contents Division 6 -- Safety management 99. Safety management system 104 100. Conduct of assessments for identified risks 106 101. Compliance with safety management system 107 102. Review of safety management system 107 103. Safety performance reports 108 104. Regulator may direct amendment of safety management system 109 105. Requirements for and scope of interface agreements 110 106. Interface coordination -- rail transport operators 111 107. Interface coordination -- rail infrastructure and public roads 111 108. Interface coordination -- rail infrastructure and private roads 112 109. Identification and assessment of risks 113 110. Regulator may give directions 114 111. Register of interface agreements 115 112. Security management plan 116 113. Emergency management plan 116 114. Health and fitness management program 117 115. Drug and alcohol management program 117 116. Fatigue risk management program 118 117. Assessment of competence 118 118. Identification of rail safety workers 120 119. Other persons to comply with safety management system 120 Division 7 -- Information about rail safety etc 120. Power of Regulator to obtain information from rail transport operators 120 Division 8 -- Investigating and reporting by rail transport operators 121. Notification of certain occurrences 121 122. Investigation of notifiable occurrences 122 Division 9 -- Drug and alcohol testing by Regulator 123. Testing for presence of drugs or alcohol 123 124. Appointment of authorised persons 123 125. Identity cards 124 126. Authorised person may require preliminary breath test or breath analysis 124 page vii Rail Safety National Law (WA) Bill 2014 Contents 127. Authorised person may require drug screening test, oral fluid analysis and blood test 125 128. Offence relating to prescribed concentration of alcohol or prescribed drug 126 129. Oral fluid or blood sample or results of analysis etc not to be used for other purposes 127 Division 10 -- Train safety recordings 130. Interpretation 128 131. Disclosure of train safety recordings 128 132. Admissibility of evidence of train safety recordings in civil proceedings 129 Division 11 -- Audit of railway operations by Regulator 133. Audit of railway operations by Regulator 130 Part 4 -- Securing compliance Division 1 -- Guiding principle 134. Guiding principle 131 Division 2 -- Rail safety officers 135. Appointment 131 136. Identity cards 132 137. Accountability of rail safety officers 132 138. Suspension and ending of appointment of rail safety officers 132 Division 3 -- Regulator has functions and powers of rail safety officers 139. Regulator has functions and powers of rail safety officers 132 Division 4 -- Functions and powers of rail safety officers 140. Functions and powers 133 141. Conditions on rail safety officers' powers 133 142. Rail safety officers subject to Regulator's directions 133 Division 5 -- Powers relating to entry 143. Powers of entry 133 144. Notification of entry 134 145. General powers on entry 134 146. Persons assisting rail safety officers 136 147. Use of electronic equipment 136 page viii Rail Safety National Law (WA) Bill 2014 Contents 148. Use of equipment to examine or process things 137 149. Securing a site 137 150. Search warrants 138 151. Announcement before entry on warrant 140 152. Copy of warrant to be given to person with control or management of place 140 153. Places used for residential purposes 140 154. Power to require production of documents and answers to questions 141 155. Abrogation of privilege against self-incrimination 142 156. Warning to be given 142 157. Power to copy and retain documents 143 158. Power to seize evidence etc 143 159. Directions relating to seizure 144 160. Rail safety officer may direct a thing's return 144 161. Receipt for seized things 145 162. Forfeiture of seized things 145 163. Return of seized things 146 164. Access to seized thing 147 Division 6 -- Damage and compensation 165. Damage etc to be minimised 147 166. Rail safety officer to give notice of damage 147 167. Compensation 148 Division 7 -- Other matters 168. Power to require name and address 148 169. Rail safety officer may take affidavits 149 170. Attendance of rail safety officer at inquiries 149 171. Directions may be given under more than 1 provision 149 Division 8 -- Offences in relation to rail safety officers 172. Offence to hinder or obstruct rail safety officer 150 173. Offence to impersonate rail safety officer 150 174. Offence to assault, threaten or intimidate rail safety officer 150 Part 5 -- Enforcement measures Division 1 -- Improvement notices 175. Issue of improvement notices 150 176. Contents of improvement notices 152 page ix Rail Safety National Law (WA) Bill 2014 Contents 177. Compliance with improvement notice 153 178. Extension of time for compliance with improvement notices 154 Division 2 -- Prohibition notices 179. Issue of prohibition notice 154 180. Contents of prohibition notice 155 181. Compliance with prohibition notice 156 Division 3 -- Non-disturbance notices 182. Issue of non-disturbance notice 156 183. Contents of non-disturbance notice 156 184. Compliance with non-disturbance notice 157 185. Issue of subsequent notices 157 Division 4 -- General requirements applying to notices 186. Application of Division 157 187. Notice to be in writing 157 188. Directions in notices 158 189. Recommendations in notice 158 190. Variation or cancellation of notice by rail safety officer 158 191. Formal irregularities or defects in notice 158 192. Serving notices 159 Division 5 -- Remedial action 193. When Regulator may carry out action 159 194. Power of Regulator to take other remedial action 159 195. Costs of remedial or other action 160 Division 6 -- Injunctions 196. Application of Division 160 197. Injunctions for non-compliance with notices 160 Division 7 -- Miscellaneous 198. Response to certain reports 160 199. Power to require works to stop 162 200. Temporary closing of railway crossings, bridges etc 163 201. Use of force 164 202. Power to use force against persons to be exercised only by police officers 164 page x Rail Safety National Law (WA) Bill 2014 Contents Part 6 -- Exemptions Division 1 -- Ministerial exemptions 203. Ministerial exemptions 164 Division 2 -- Exemptions granted by Regulator 204. Interpretation 165 205. Application for exemption 165 206. What applicant must demonstrate 166 207. Determination of application 166 208. Application for variation of an exemption 168 209. Determination of application for variation 169 210. Prescribed conditions and restrictions 170 211. Variation of conditions and restrictions 170 212. Regulator may make changes to conditions or restrictions 171 213. Revocation or suspension of an exemption 171 214. Penalty for breach of condition or restriction 173 Part 7 -- Review of decisions 215. Reviewable decisions 173 216. Review by Regulator 178 217. Appeals 180 Part 8 -- General liability and evidentiary provisions Division 1 -- Legal proceedings 218. Period within which proceedings for offences may be commenced 180 219. Multiple contraventions of rail safety duty provision 181 220. Authority to take proceedings 182 221. Imputing conduct to bodies corporate 182 222. Records and evidence from records 183 223. Certificate evidence 183 224. Proof of appointments and signatures unnecessary 183 Division 2 -- Discrimination against employees 225. Dismissal or other victimisation of employee 184 Division 3 -- Offences 226. Offence to give false or misleading information 186 227. Not to interfere with train, tram etc 187 228. Applying brake or emergency device 187 229. Stopping a train or tram 187 page xi Rail Safety National Law (WA) Bill 2014 Contents Division 4 -- Court-based sanctions 230. Commercial benefits order 188 231. Supervisory intervention order 189 232. Exclusion orders 192 Part 9 -- Infringement notices 233. Meaning of infringement penalty provision 193 234. Power to serve notice 195 235. Form of notice 195 236. Regulator cannot institute proceedings while infringement notice on foot 196 237. Late payment of penalty 196 238. Withdrawal of notice 197 239. Refund of infringement penalty 197 240. Payment expiates breach of infringement penalty provision 197 241. Payment not to have certain consequences 198 242. Conduct in breach of more than 1 infringement penalty provision 198 Part 10 -- General Division 1 -- Delegation by Minister 243. Delegation by Minister 198 Division 2 -- Confidentiality of information 244. Confidentiality of information 198 Division 3 -- Law does not affect legal professional privilege 245. Law does not affect legal professional privilege 200 Division 4 -- Civil liability 246. Civil liability not affected by Part 3 Division 3 or Division 6 200 247. Protection from personal liability for persons exercising functions 201 248. Immunity for reporting unfit rail safety worker 201 Division 5 -- Codes of practice 249. Approved codes of practice 203 250. Use of codes of practice in proceedings 204 Division 6 -- Enforceable voluntary undertakings 251. Enforceable voluntary undertaking 204 252. Notice of decisions and reasons for decision 205 253. When a rail safety undertaking is enforceable 205 page xii Rail Safety National Law (WA) Bill 2014 Contents 254. Compliance with rail safety undertaking 205 255. Contravention of rail safety undertaking 205 256. Withdrawal or variation of rail safety undertaking 206 257. Proceedings for alleged contravention 206 Division 7 -- Other matters 258. Service of documents 207 259. Recovery of certain costs 207 260. Recovery of amounts due 207 261. Compliance with conditions of accreditation or registration 208 262. Contracting out prohibited 208 Division 8 -- Application of certain South Australian Acts to this Law 263. Application of certain South Australian Acts to this Law 208 Division 9 -- National regulations 264. National regulations 209 265. Publication of national regulations 210 Schedule 1 -- National regulations Schedule 2 -- Miscellaneous provisions relating to interpretation Part 1 -- Preliminary 1. Displacement of Schedule by contrary intention 215 Part 2 -- General 2. Law to be construed not to exceed legislative power of Parliament 215 3. Every section to be a substantive enactment 215 4. Material that is, and is not, part of this Law 215 5. References to particular Acts and to enactments 216 6. References taken to be included in Law or Act citation etc 216 7. Interpretation best achieving Law's purpose or object 217 8. Use of extrinsic material in interpretation 217 9. Effect of change of drafting practice 219 10. Use of examples 219 11. Compliance with forms 219 Part 3 -- Terms and references 12. Definitions 220 page xiii Rail Safety National Law (WA) Bill 2014 Contents 13. Provisions relating to defined terms and gender and number 224 14. Meaning of may and must etc 224 15. Words and expressions used in statutory instruments 225 16. Effect of express references to bodies corporate and individuals 225 17. Production of records kept in computers etc 225 18. References to this jurisdiction to be implied 226 19. References to officers and holders of offices 226 20. Reference to certain provisions of Law 226 21. Reference to provisions of this Law or an Act is inclusive 227 Part 4 -- Functions and powers 22. Exercise of statutory functions 227 23. Power to make instrument or decision includes power to amend or repeal 228 24. Matters for which statutory instruments may make provision 228 25. Presumption of validity and power to make 229 26. Appointments may be made by name or office 230 27. Acting appointments 230 28. Powers of appointment imply certain incidental powers 231 29. Delegation of functions 232 30. Exercise of powers between enactment and commencement 234 Part 5 -- Distance, time and age 31. Matters relating to distance, time and age 237 Part 6 -- Effect of repeal, amendment or expiration 32. Time of Law ceasing to have effect 238 33. Repealed provisions not revived 238 34. Saving of operation of repealed Law provisions 238 35. Continuance of repealed provisions 239 36. Law and amending Acts to be read as one 239 Part 7 -- Instruments under Law 37. Schedule applies to statutory instruments 239 page xiv Rail Safety National Law (WA) Bill 2014 Contents Defined terms page xv Western Australia LEGISLATIVE ASSEMBLY (As amended in Committee) Rail Safety National Law (WA) Bill 2014 A Bill for An Act to -- • provide for a national scheme regarding the regulation of rail safety; and • repeal the Rail Safety Act 2010; and • make consequential amendments to various other Acts, and for related purposes. The Parliament of Western Australia enacts as follows: page 1 Rail Safety National Law (WA) Bill 2014 Part 1 Preliminary s. 1 1 Part 1 -- Preliminary 2 1. Short title 3 This is the Rail Safety National Law (WA) Act 2014. 4 2. Commencement 5 This Act comes into operation as follows -- 6 (a) sections 1 and 2 -- on the day on which this Act 7 receives the Royal Assent; 8 (b) the rest of the Act -- on a day fixed by proclamation, 9 and different days may be fixed for different provisions. 10 3. Terms used 11 (1) For the purposes of this Act, the local application provisions of 12 this Act are the provisions of this Act other than the Rail Safety 13 National Law set out in the Schedule. 14 (2) In the local application provisions of this Act -- 15 local regulations means regulations made under section 37; 16 Rail Safety National Law (WA) means the provisions applying 17 in this jurisdiction because of section 4. 18 (3) Subject to section 6(1), if a term is given a meaning in the Rail 19 Safety National Law set out in the Schedule, it has the same 20 meaning in the local application provisions of this Act. page 2 Rail Safety National Law (WA) Bill 2014 Application of Rail Safety National Law Part 2 s. 4 1 Part 2 -- Application of Rail Safety National Law 2 4. Application of Rail Safety National Law 3 The Rail Safety National Law set out in the Schedule, and as 4 modified in section 5 -- 5 (a) applies as a law of this jurisdiction; and 6 (b) as so applying may be referred to as the Rail Safety 7 National Law (WA); and 8 (c) as so applying, is part of this Act. 9 5. Local modifications to the Rail Safety National Law 10 (1) This section modifies the Rail Safety National Law set out in 11 the Schedule. 12 (2) Delete section 7(3). 13 (3) In section 127 delete "oral fluid analysis" (each occurrence) and 14 insert: 15 16 oral fluid analysis, urine analysis 17 18 (4) In section 129: 19 (a) delete "oral fluid or" and insert: 20 21 oral fluid, urine or 22 23 (b) delete "oral fluid analysis" and insert: 24 25 oral fluid analysis, urine analysis 26 page 3 Rail Safety National Law (WA) Bill 2014 Part 2 Application of Rail Safety National Law s. 6 1 (5) In section 264(1) delete "South Australia," and insert: 2 3 Western Australia, 4 5 (6) In section 264(2) delete "authority, on the unanimous 6 recommendation of the responsible Ministers," and insert 7 8 authority 9 10 (7) Delete section 265. 11 (8) In Schedule 2 clauses 30(2) and (3)(b), 33, 35 and 36 delete 12 "South Australian" (each occurrence) and insert: 13 14 Western Australian 15 16 Note 1: The heading to modified section 127 is to read: 17 Authorised person may require drug screening test, oral fluid 18 analysis, urine analysis and blood test 19 Note 2: The heading to modified section 129 is to read: 20 Oral fluid, urine or blood sample or results of analysis etc not 21 to be used for other purposes 22 6. Meaning of generic terms in Rail Safety National Law (WA) 23 for purposes of this jurisdiction 24 (1) In the Rail Safety National Law (WA) -- 25 application Act means the local application provisions of this 26 Act; 27 court means the following -- 28 (a) for the purposes of Parts 5 and 7 -- the State 29 Administrative Tribunal (to be constituted by at least 30 one judicial member for the purposes of Part 5 31 Division 6); page 4 Rail Safety National Law (WA) Bill 2014 Application of Rail Safety National Law Part 2 s. 6 1 (b) for the purposes of Part 10 Division 6 -- the Magistrates 2 Court; 3 emergency services means each of the following -- 4 (a) the Police Force of Western Australia; 5 (b) the department of the Public Service principally 6 assisting in the administration of the Fire and 7 Emergency Services Act 1998; 8 (c) another body or organisation prescribed by local 9 regulations; 10 Gazette means the Government Gazette of Western Australia; 11 Health Practitioner Regulation National Law means the 12 Health Practitioner Regulation National Law (Western 13 Australia); 14 magistrate means a magistrate as defined in the Magistrates 15 Court Act 2004 section 3; 16 Minister means the Minister administering this Act; 17 police officer has the meaning given in the Interpretation 18 Act 1984 section 5; 19 prescribed notifiable occurrence means a notifiable occurrence 20 prescribed by the national regulations; 21 public sector auditor means the Auditor-General as defined in 22 the Public Finance and Audit Act 1987 (South Australia) 23 section 4; 24 road vehicle means -- 25 (a) if the Road Traffic (Administration) Act 2008 is not in 26 operation -- a motor vehicle as defined in the Road 27 Traffic Act 1974 section 5(1); 28 (b) if the Road Traffic (Administration) Act 2008 is in 29 operation -- a motor vehicle as defined in section 4 of 30 that Act; 31 shared path means an area that -- 32 (a) is open to or used by the public; and page 5 Rail Safety National Law (WA) Bill 2014 Part 2 Application of Rail Safety National Law s. 7 1 (b) is developed for, or has as one of its main uses, use by 2 both pedestrians and riders of bicycles; 3 the jurisdiction or this jurisdiction means Western Australia. 4 (2) For the purposes of the local application provisions of this Act, 5 the Rail Safety National Law (WA) and any other Act or law -- 6 (a) the Office of the National Rail Safety Regulator is not 7 an agency as defined in the Public Sector Management 8 Act 1994 section 3(1); and 9 (b) an employee of the Office of the National Rail Safety 10 Regulator is not a public service officer as defined in the 11 Public Sector Management Act 1994 section 3(1). 12 7. No double jeopardy 13 Proceedings for an offence against the Rail Safety National Law 14 (WA) (the WA offence) cannot be brought against a person if the 15 person has, for the same alleged act or omission, been convicted 16 or found guilty in a participating jurisdiction of an offence that 17 substantially corresponds to the WA offence. 18 8. Exclusion of legislation of this jurisdiction 19 (1) Except as provided in subsection (2), the Interpretation 20 Act 1984 does not apply to the Rail Safety National Law (WA) 21 or to the instruments made under that Law. 22 (2) The Interpretation Act 1984 sections 41 and 42 apply to 23 regulations made under the Rail Safety National Law (WA). 24 (3) The following Acts of this jurisdiction do not apply to the Rail 25 Safety National Law (WA) or to the instruments made under that 26 Law (except as applied under the Law) -- 27 (a) the Auditor General Act 2006; 28 (b) the Financial Management Act 2006; 29 (c) the Freedom of Information Act 1992; 30 (d) the Parliamentary Commissioner Act 1971; page 6 Rail Safety National Law (WA) Bill 2014 Application of Rail Safety National Law Part 2 s. 8 1 (e) the Public Sector Management Act 1994; 2 (f) the State Records Act 2000. 3 (4) The Acts referred to in subsection (3) apply to a public sector 4 body as defined in the Public Sector Management Act 1994 5 section 3(1), and an officer or employee of the body, performing 6 a function under the Rail Safety National Law (WA). page 7 Rail Safety National Law (WA) Bill 2014 Part 3 Local provisions for alcohol and drug testing Division 1 Preliminary s. 9 1 Part 3 -- Local provisions for alcohol and drug testing 2 Division 1 -- Preliminary 3 9. Terms used 4 (1) In this Part, unless the contrary intention appears -- 5 analyst means an analyst or drugs analyst, as the case requires, 6 as defined in the Road Traffic Act 1974 section 65; 7 BAC means blood alcohol concentration; 8 breath analysis instrument means -- 9 (a) breath analysing equipment as defined in the Road 10 Traffic Act 1974 section 65; or 11 (b) an instrument prescribed by the local regulations for the 12 purposes of this paragraph; 13 drug screening test means -- 14 (a) a preliminary oral fluid test as defined in the Road 15 Traffic Act 1974 section 65; or 16 (b) a test of a sample of a rail safety worker's oral fluid for 17 the purpose of providing a preliminary indication of the 18 presence of prescribed illicit drugs in the oral fluid using 19 a device, or a device of a type, prescribed by the local 20 regulations for the purposes of this paragraph; 21 medical practitioner means a person who is registered under the 22 Health Practitioner Regulation National Law in the medical 23 profession; 24 oral fluid analysis, in relation to a rail safety worker, means a 25 method of analysis for the purpose of ascertaining the presence 26 of prohibited drugs in the worker's oral fluid using -- 27 (a) an approved device as defined in the Road Traffic 28 Act 1974 section 65; or 29 (b) a device, or a device of a type, prescribed by the local 30 regulations for the purposes of this paragraph; page 8 Rail Safety National Law (WA) Bill 2014 Local provisions for alcohol and drug testing Part 3 Preliminary Division 1 s. 9 1 preliminary breath test means -- 2 (a) a preliminary test as defined in the Road Traffic 3 Act 1974 section 65; or 4 (b) a test of a sample of a rail safety worker's breath for the 5 purpose of providing a preliminary indication of the 6 presence of alcohol in the breath using a device, or a 7 device of a type, prescribed by the local regulations for 8 the purposes of this paragraph; 9 prescribed BAC, in relation to a rail safety worker, means the 10 prescribed concentration of alcohol, as defined in the Rail Safety 11 National Law (WA) section 128(5), in the worker's blood; 12 prohibited drug means a prescribed drug as defined in the Rail 13 Safety National Law (WA) section 128(5); 14 qualified person, in relation to the taking of a sample from 15 another person, means a person prescribed by the local 16 regulations as qualified to take that sample; 17 registered nurse means a person registered under the Health 18 Practitioner Regulation National Law in the nursing and 19 midwifery profession whose name is entered on Division 1 of 20 the Register of Nurses kept under that Law as a registered nurse; 21 sample means a sample of breath, oral fluid, urine or blood; 22 sample taker means -- 23 (a) a medical practitioner; or 24 (b) a registered nurse; or 25 (c) a qualified person; 26 urine analysis, in relation to a rail safety worker, means a 27 method of analysis for the purpose of ascertaining the presence 28 of prohibited drugs in the worker's urine in accordance with the 29 local regulations; 30 work shift, in relation to a rail safety worker, means a shift 31 during which rail safety work is performed by the worker; 32 work shift location means the place where a rail safety worker 33 completes a work shift. page 9 Rail Safety National Law (WA) Bill 2014 Part 3 Local provisions for alcohol and drug testing Division 2 Alcohol testing s. 10 1 (2) For the purposes of this Part and the Rail Safety National Law 2 (WA) Part 3 Division 9, anything done by a person acting under 3 the supervision or direction of a medical practitioner, registered 4 nurse or analyst is taken to have been done by the medical 5 practitioner, registered nurse or analyst, as the case may be. 6 Division 2 -- Alcohol testing 7 10. Using breath sample to find blood alcohol content 8 (1) For the purposes of this Part and the Rail Safety National 9 Law (WA) section 128, if the concentration of alcohol in a rail 10 safety worker's breath is a particular number of grams of 11 alcohol per 210 litres of breath the worker's BAC is to be 12 regarded as being that number of grams of alcohol per 100 ml of 13 blood. 14 (2) Apparatus comprising breath analysing equipment is to be 15 regarded as being for the purpose of ascertaining a rail safety 16 worker's BAC by analysis of a sample of the worker's breath, 17 whether the apparatus gives the blood alcohol content directly 18 as the analysis result or enables it to be derived under 19 subsection (1). 20 (3) A device used to conduct a preliminary breath test is to be 21 regarded as being for the purpose of providing an indication of a 22 rail safety worker's BAC, or an indication of whether or not a 23 person has the prescribed BAC, whether the device gives the 24 indication directly or enables it to be derived under 25 subsection (1). 26 11. Preliminary breath test or breath analysis 27 (1) An authorised person's power under the Rail Safety National 28 Law (WA) section 126 to require a rail safety worker to submit 29 to testing by means of a preliminary breath test or breath 30 analysis (or both) is subject to this Division. page 10 Rail Safety National Law (WA) Bill 2014 Local provisions for alcohol and drug testing Part 3 Alcohol testing Division 2 s. 12 1 (2) A requirement mentioned in subsection (1) is a direction to the 2 worker as mentioned in the Rail Safety National Law (WA) 3 section 126(3). 4 12. When breath test or breath analysis may be required 5 (1) An authorised person may require a rail safety worker to submit 6 to a preliminary breath test or breath analysis (or both) -- 7 (a) on a random basis -- without suspecting the worker has 8 the prescribed BAC; or 9 (b) on a non-random basis -- in either or both of the 10 following circumstances -- 11 (i) a prescribed notifiable occurrence happens 12 involving the worker; 13 (ii) the authorised person suspects, on reasonable 14 grounds, that the worker has the prescribed BAC. 15 (2) Subsection (1) is subject to sections 13 to 15. 16 13. Rail safety worker not obliged to comply with requirement 17 in certain circumstances 18 (1) A rail safety worker who is still on railway premises after 19 carrying out rail safety work is not obliged to comply with a 20 requirement made under the Rail Safety National Law (WA) 21 section 126(1) if -- 22 (a) the worker is not involved in a prescribed notifiable 23 occurrence; and 24 (b) more than 12 hours have passed since the worker carried 25 out the work. 26 (2) A rail safety worker who is involved in a prescribed notifiable 27 occurrence is not obliged to comply with a requirement made 28 under the Rail Safety National Law (WA) section 126(1) if -- 29 (a) more than 12 hours have passed since the worker was 30 involved in the occurrence; or page 11 Rail Safety National Law (WA) Bill 2014 Part 3 Local provisions for alcohol and drug testing Division 2 Alcohol testing s. 14 1 (b) the worker -- 2 (i) has completed the work shift and departed from 3 the work shift location; and 4 (ii) was unaware of the occurrence when the worker 5 completed the work shift. 6 14. Authorised person must not make requirement in certain 7 circumstances 8 An authorised person must not require a rail safety worker to 9 submit to a preliminary breath test or breath analysis (or both) if 10 the authorised person suspects, on reasonable grounds that -- 11 (a) it would be detrimental to the worker's health to submit 12 to a preliminary breath test or breath analysis; or 13 (b) by reason of injury, disability or otherwise the worker is 14 incapable of providing a sufficient sample of breath for 15 the completion of a preliminary breath test or breath 16 analysis. 17 15. Conduct of breath analysis 18 (1) An authorised person must not conduct a breath analysis for the 19 purposes of this Division unless the authorised person is -- 20 (a) a police officer authorised by the Commissioner of 21 Police to use a breath analysis instrument; or 22 (b) any other person authorised by the Regulator to use a 23 breath analysis instrument. 24 (2) An authorised person conducting a breath analysis for the 25 purposes of this Division must use a breath analysis instrument. 26 16. Further breath analysis 27 (1) An authorised person may require a rail safety worker to submit 28 to one or more breath analyses whether or not the worker 29 provided a sufficient sample for an earlier analysis. page 12 Rail Safety National Law (WA) Bill 2014 Local provisions for alcohol and drug testing Part 3 Drug testing Division 3 s. 17 1 (2) A requirement under subsection (1) -- 2 (a) may be made only if it is reasonable in the 3 circumstances; and 4 (b) is subject to sections 13 to 15. 5 17. Breath analysis indicates prescribed BAC 6 If an analysis of breath by a breath analysis instrument indicates 7 a rail safety worker has the prescribed BAC, the authorised 8 person who operated the instrument must give to the worker 9 without delay a written statement (or a statement printed by the 10 instrument) stating -- 11 (a) the date the sample of breath was taken and analysed; 12 and 13 (b) the time of the breath analysis; and 14 (c) the result of the analysis. 15 Division 3 -- Drug testing 16 18. Drug screening test, oral fluid analysis or urine analysis 17 (1) An authorised person's power under the Rail Safety National 18 Law (WA) section 127 to require a rail safety worker to submit 19 to a drug screening test, oral fluid analysis or urine analysis (or 20 any combination of these) (whether or not in combination with a 21 blood test) is subject to this Division. 22 (2) A requirement mentioned in subsection (1) is a direction to the 23 worker as mentioned in the Rail Safety National Law (WA) 24 section 127(3). 25 19. When drug screening test or oral fluid analysis may be 26 required 27 (1) An authorised person may require a rail safety worker to submit 28 to a drug screening test or oral fluid analysis (or any 29 combination of these) -- 30 (a) on a random basis -- without suspecting a prohibited 31 drug is present in the worker's body; or page 13 Rail Safety National Law (WA) Bill 2014 Part 3 Local provisions for alcohol and drug testing Division 3 Drug testing s. 20 1 (b) on a non-random basis -- in either or both of the 2 following circumstances -- 3 (i) a prescribed notifiable occurrence happens 4 involving the worker; 5 (ii) the authorised person suspects, on reasonable 6 grounds, that a prohibited drug is present in the 7 worker's body. 8 (2) Subsection (1) is subject to sections 21 and 22. 9 20. When urine analysis may be required 10 (1) An authorised person may require a rail safety worker to submit 11 to urine analysis if a prescribed notifiable occurrence happens 12 involving the worker. 13 (2) Subsection (1) is subject to sections 21 and 22. 14 21. Rail safety worker not obliged to comply with requirement 15 in certain circumstances 16 (1) A rail safety worker who is on railway premises after carrying 17 out rail safety work is not obliged to comply with a requirement 18 made under the Rail Safety National Law (WA) section 127(1) 19 to submit to a drug screening test, oral fluid analysis or urine 20 analysis (or any combination of these) if -- 21 (a) the worker is not involved in a prescribed notifiable 22 occurrence; and 23 (b) more than 12 hours have passed since the worker carried 24 out the work. 25 (2) A rail safety worker who is involved in a prescribed notifiable 26 occurrence is not obliged to comply with a requirement made 27 under the Rail Safety National Law (WA) section 127(1) to 28 submit to a drug screening test, oral fluid analysis or urine 29 analysis (or any combination of these) if -- 30 (a) more than 12 hours have passed since the worker was 31 involved in the occurrence; or page 14 Rail Safety National Law (WA) Bill 2014 Local provisions for alcohol and drug testing Part 3 Blood samples Division 4 s. 22 1 (b) the worker -- 2 (i) has completed the work shift and departed from 3 the work shift location; and 4 (ii) was unaware of the occurrence when the worker 5 completed the work shift. 6 22. Authorised person must not make requirement in certain 7 circumstances 8 An authorised person must not require a rail safety worker to 9 submit to a drug screening test, oral fluid analysis or urine 10 analysis (or any combination of these) if the authorised person 11 suspects, on reasonable grounds that -- 12 (a) it would be detrimental to the worker's health to submit 13 to a drug screening test, oral fluid analysis or urine 14 analysis; or 15 (b) by reason of injury, disability or otherwise the worker is 16 incapable of providing a sufficient sample for the 17 completion of a drug screening test, oral fluid analysis 18 or urine analysis. 19 Division 4 -- Blood samples 20 23. Term used: hospital 21 In this Division -- 22 hospital has the meaning given in the Hospitals and Health 23 Services Act 1927 section 2(1). 24 24. Provision of blood sample 25 (1) An authorised person's power under the Rail Safety National 26 Law (WA) section 127 to require a rail safety worker to submit 27 to a blood test (whether or not in combination with a drug 28 screening test, oral fluid analysis, urine analysis or any 29 combination of these) is subject to this Division. page 15 Rail Safety National Law (WA) Bill 2014 Part 3 Local provisions for alcohol and drug testing Division 4 Blood samples s. 25 1 (2) A requirement mentioned in subsection (1) is a direction to the 2 worker as mentioned in the Rail Safety National Law (WA) 3 section 127(3). 4 25. Blood sample after preliminary breath test or breath 5 analysis requirement 6 (1) If a rail safety worker who is required by an authorised person 7 to submit to a preliminary breath test or breath analysis under 8 section 12, or a further breath analysis under section 16(1), 9 refuses or fails to provide a sufficient sample of breath, the 10 authorised person may require the worker to provide a sample 11 of the worker's blood. 12 (2) However, the authorised person cannot require a rail safety 13 worker to provide a sample of his or her blood under 14 subsection (1) if the worker is not obliged to submit to a 15 preliminary breath test or breath analysis as mentioned in 16 section 13. 17 (3) An authorised person may also require a rail safety worker to 18 provide a sample of his or her blood if, as a result of a 19 preliminary breath test under section 12, the authorised person 20 has formed the opinion the worker might have the prescribed 21 BAC and -- 22 (a) it is not possible to conduct a breath analysis (for 23 example if there is no authorised person available to 24 operate a breath analysis instrument or if breath analysis 25 is attempted but the instrument malfunctions); or 26 (b) the authorised person did not require the worker to 27 submit to a breath analysis for a reason mentioned in 28 section 14. page 16 Rail Safety National Law (WA) Bill 2014 Local provisions for alcohol and drug testing Part 3 Blood samples Division 4 s. 26 1 26. Blood sample after drug screening, oral fluid analysis or 2 urine analysis requirement 3 An authorised person may require a rail safety worker to 4 provide a sample of the worker's blood in any of the following 5 circumstances -- 6 (a) if an authorised person requires the worker to submit to 7 a drug screening test, oral fluid analysis or urine analysis 8 and the worker refuses to submit to, or fails to provide a 9 sufficient sample for, the test; 10 (b) if, as a result of a drug screening test, oral fluid analysis 11 or urine analysis, the authorised person suspects on 12 reasonable grounds that a prohibited drug is present in 13 the worker's body; 14 (c) if the authorised person did not require the worker to 15 submit to a drug screening test, oral fluid analysis or 16 urine analysis for a reason mentioned in section 22; 17 (d) if the worker is involved in a prescribed notifiable 18 occurrence. 19 27. Blood sample if test or analysis fails to explain conduct, 20 condition or appearance 21 An authorised person may require the worker to provide a 22 sample of a rail safety worker's blood if -- 23 (a) the worker submits to a preliminary breath test, breath 24 analysis, drug screening test, oral fluid analysis or urine 25 analysis; and 26 (b) the test or analysis fails to indicate that -- 27 (i) the worker might have the prescribed BAC; or 28 (ii) a prohibited drug might be present in the 29 worker's body; 30 and page 17 Rail Safety National Law (WA) Bill 2014 Part 3 Local provisions for alcohol and drug testing Division 4 Blood samples s. 28 1 (c) the conduct, condition or appearance of the worker is 2 such as to give rise to a reasonable suspicion that the 3 worker is affected by alcohol or a prohibited drug. 4 28. Rail safety worker not obliged to comply with requirement 5 in certain circumstances 6 (1) A rail safety worker who is still on railway premises after 7 carrying out rail safety work is not obliged to comply with a 8 requirement made under the Rail Safety National Law (WA) 9 section 127(1) to submit to a blood test if -- 10 (a) the worker is not involved in a prescribed notifiable 11 occurrence; and 12 (b) more than 12 hours have passed since the worker carried 13 out the work. 14 (2) A rail safety worker who is involved in a prescribed notifiable 15 occurrence is not obliged to comply with a requirement made 16 under the Rail Safety National Law (WA) section 127(1) to 17 submit to a blood test if -- 18 (a) more than 12 hours have passed since the worker was 19 involved in the occurrence; or 20 (b) the worker -- 21 (i) has completed the work shift and departed from 22 the work shift location; and 23 (ii) was unaware of the occurrence when the worker 24 completed the work shift. 25 29. Compulsory blood testing following a prescribed notifiable 26 occurrence 27 (1) If a rail safety worker suffers an injury as a result of a 28 prescribed notifiable occurrence and, within 12 hours after the 29 occurrence, the worker attends at, or is admitted to, a hospital to 30 receive treatment for the injury, an authorised person may 31 request a sample taker at the hospital to ensure that a sample of page 18 Rail Safety National Law (WA) Bill 2014 Local provisions for alcohol and drug testing Part 3 Evidence Division 5 s. 30 1 the worker's blood is taken as soon as practicable (even though 2 the worker might be unconscious). 3 (2) The sample taker may comply with the request if it is 4 reasonably practicable to do so in the circumstances. 5 (3) If a rail safety worker suffers an injury as a result of a 6 prescribed notifiable occurrence and the worker is dead on 7 arrival at the hospital, or dies before a sample of blood has been 8 taken, the medical practitioner who reports the death under the 9 Coroners Act 1996 section 17 may -- 10 (a) take a sample of blood from the body of the deceased or 11 cause a sample to be taken; or 12 (b) notify the coroner as soon as practicable that, in view of 13 the circumstances in which the death occurred, a sample 14 of blood should be taken from the body of the deceased. 15 (4) The coroner, on receipt of notification under subsection (3)(b), 16 may authorise and direct a pathologist to take a sample of blood 17 from the body of the deceased. 18 (5) A sample taker is not obliged to take a sample of blood under 19 this section if a sample of blood has previously been taken from 20 the body of the deceased under this section by another sample 21 taker. 22 Division 5 -- Evidence 23 30. Term used: relevant time 24 In this Division -- 25 relevant time, in relation to a person who is a rail safety worker, 26 means -- 27 (a) if the worker was tested for alcohol or prohibited drugs 28 because of the worker's involvement in a prescribed 29 notifiable occurrence -- the time the occurrence 30 happened; or page 19 Rail Safety National Law (WA) Bill 2014 Part 3 Local provisions for alcohol and drug testing Division 5 Evidence s. 31 1 (b) otherwise -- the time the worker last carried out rail 2 safety work. 3 31. Use of test or analysis result in court proceedings 4 (1) This section applies in any court proceedings in relation to a rail 5 safety worker even if evidence is given in the proceedings that 6 the worker consumed alcohol or a prohibited drug -- 7 (a) after the relevant time in relation to the worker; and 8 (b) before a preliminary breath test, breath analysis, drug 9 screening test, oral fluid analysis or urine analysis was 10 conducted in relation to the worker or a sample of the 11 worker's blood was taken. 12 (2) If the breath analysis was conducted in relation to the rail safety 13 worker in accordance with this Part, the BAC indicated by the 14 analysis is taken to be the BAC of the person at the relevant 15 time. 16 (3) If more than one breath analysis was conducted, the lower of the 17 BACs indicated is taken to be the BAC of the rail safety worker 18 at the relevant time. 19 (4) If a sample of a rail safety worker's blood was taken under this 20 Part -- 21 (a) the BAC indicated by an analysis of the sample is taken 22 to be the BAC of the worker at the relevant time; and 23 (b) any prohibited drug detected by an analysis of the 24 sample is taken to have been present in the worker's 25 body at the relevant time. 26 (5) If a sample of a rail safety worker's oral fluid or urine was taken 27 under this Part any prohibited drug detected by an analysis of 28 the sample is taken to have been present in the worker's body at 29 the relevant time. page 20 Rail Safety National Law (WA) Bill 2014 Local provisions for alcohol and drug testing Part 3 Evidence Division 5 s. 32 1 32. Calculating BAC at relevant time 2 (1) For the purposes of section 31, a rail safety worker's BAC at the 3 relevant time is to be calculated -- 4 (a) having regard to -- 5 (i) the time of the worker's last drink containing 6 alcohol taken at or before the relevant time; and 7 (ii) the relevant time; and 8 (iii) the time at which the sample of the worker's 9 breath or blood was provided or taken for 10 analysis (the time of sampling); and 11 (iv) the safety worker's blood alcohol content at the 12 time of sampling; 13 and 14 (b) so as to give effect to the presumption that after the 15 worker's latest drink containing alcohol the worker's 16 blood alcohol content increases at the rate of 0.016 g of 17 alcohol per 100 ml of blood per hour for a period of 18 2 hours and, after that period, decreases at the rate of 19 0.016 g of alcohol per 100 ml of blood per hour. 20 (2) For the purpose of making a calculation under subsection (1) -- 21 (a) in any case where any one or more of the times referred 22 to in that subsection can only be ascertained as falling 23 within a period of time, the calculation is to be made 24 taking such time within that period as produces the 25 result most favourable to the rail safety worker; and 26 (b) in any case where the time of a rail safety worker's last 27 drink containing alcohol is not ascertained, the time of 28 the worker's last drink containing alcohol is to be taken 29 to have been such time as produces the result most 30 favourable to the worker charged. 31 (3) The concentration of alcohol calculated to have been present in 32 the blood of a person at any time under this section is page 21 Rail Safety National Law (WA) Bill 2014 Part 3 Local provisions for alcohol and drug testing Division 5 Evidence s. 33 1 conclusively presumed to have been present in the blood of that 2 person at that time. 3 33. Evidence by certificate 4 (1) In any court proceedings, a certificate in a form approved by the 5 Minister purporting to be signed by any of the following is 6 prima facie evidence of the matters stated in the certificate and 7 the facts on which they are based -- 8 (a) the Commissioner of Police -- certifying either of the 9 following about a person named in the certificate -- 10 (i) the person is a police officer authorised to use a 11 breath analysis instrument; 12 (ii) the person is an analyst; 13 (b) the Regulator -- certifying a person named in the 14 certificate is an authorised person; 15 (c) an authorised person -- certifying any or all of the 16 following -- 17 (i) the apparatus used by the authorised person was 18 a breath analysis instrument; 19 (ii) the breath analysis instrument was in proper 20 order and properly operated; 21 (iii) the breath analysis instrument was used in a 22 manner that complied with this Part or the local 23 regulations; 24 (iv) a sample of the breath of a rail safety worker 25 named in the certificate was provided for 26 analysis using a breath analysis instrument; 27 (v) a concentration of alcohol in breath expressed in 28 grams of alcohol per 210 litres of breath was 29 indicated by the breath analysis instrument as 30 being present in the breath of the rail safety 31 worker named in the certificate on the day and at 32 the time specified in the certificate; page 22 Rail Safety National Law (WA) Bill 2014 Local provisions for alcohol and drug testing Part 3 Other matters for purposes of this Part Division 6 s. 34 1 (vi) a requirement imposed on the authorised person 2 by local regulations has been complied with; 3 (d) a member of the staff of a hospital -- certifying 4 something arising out of the member's occupation; 5 (e) an analyst, or a person acting under the supervision of 6 an analyst -- certifying something arising out of the 7 analyst's or person's occupation. 8 (2) A certificate certifying anything mentioned in 9 subsection (1)(c), (d) or (e) cannot be received as evidence 10 against a person (the defendant) in proceedings for an offence 11 against this Part or the Rail Safety National Law (WA) Part 3 12 Division 9 if -- 13 (a) a copy of the certificate has not been served on the 14 defendant at least 7 days before the commencement of 15 the proceedings; or 16 (b) the defendant has, at least 2 days before the 17 commencement of the trial, given to the court written 18 notice requiring the attendance at the trial of the person 19 who signed the certificate; or 20 (c) the court requires the person who signed the certificate 21 to attend at the trial. 22 (3) For the purposes of subsection (1), the Minister may approve 23 forms of certificates to be used by different persons for different 24 purposes. 25 Division 6 -- Other matters for purposes of this Part 26 34. Reports relating to worker's refusal or failure to comply 27 with requirement of authorised person 28 (1) This section applies if a rail safety worker -- 29 (a) is required by an authorised person to submit to a 30 preliminary breath test or breath analysis and the worker 31 refuses or fails to comply with the requirement; or page 23 Rail Safety National Law (WA) Bill 2014 Part 3 Local provisions for alcohol and drug testing Division 6 Other matters for purposes of this Part s. 35 1 (b) is required by an authorised person to submit to a drug 2 screening test, oral fluid analysis or urine analysis or to 3 provide a sample of his or her blood and the worker 4 refuses or fails to comply with the requirement. 5 (2) The authorised person must, as soon as practicable, report the 6 refusal or failure to comply with the requirement to -- 7 (a) the accredited person for whom the rail safety worker 8 performs rail safety work; and 9 (b) the Regulator. 10 35. Protection from personal liability for sample takers and 11 analysts 12 A sample taker or an analyst, or a person acting under the 13 supervision of a sample taker or analyst, is not personally liable 14 for anything done or omitted to be done in good faith -- 15 (a) in the exercise of a power or the performance of a 16 function under this Part or the Rail Safety National Law 17 (WA) Part 3 Division 9; or 18 (b) in the reasonable belief that the act or omission was in 19 the exercise of a power or the performance of a function 20 under this Part or the Rail Safety National Law (WA) 21 Part 3 Division 9. 22 36. Self-incrimination no excuse 23 A person is not entitled to refuse or fail to comply with a 24 requirement or direction relating to the taking of a sample of the 25 person's breath, oral fluid, urine or blood under this Part or the 26 Rail Safety National Law (WA) Part 3 Division 9 on the ground 27 the person -- 28 (a) would or might, by complying with the requirement or 29 direction, provide evidence that could be used against 30 the person; or page 24 Rail Safety National Law (WA) Bill 2014 Local provisions for alcohol and drug testing Part 3 Other matters for purposes of this Part Division 6 s. 37 1 (b) consumed alcohol or a prohibited drug after the person 2 last performed railway safety work and before the 3 requirement or direction was made or given to him or 4 her. 5 37. Local regulations 6 (1) The Governor may make regulations prescribing all matters -- 7 (a) that are required or permitted under this Part or for the 8 Rail Safety National Law (WA) Part 3 Division 9; or 9 (b) that are necessary or convenient for this Part or the Rail 10 Safety National Law (WA) Part 3 Division 9. 11 (2) Without limiting subsection (1), the regulations may be made 12 for any or all of the following purposes -- 13 (a) the procedures for, and equipment to be used in -- 14 (i) conducting a preliminary breath test, breath 15 analysis, drug screening test, oral fluid analysis 16 or urine analysis; or 17 (ii) taking a blood sample; 18 (b) the destruction of -- 19 (i) a sample taken for this Part or the Rail Safety 20 National Law (WA) Part 3 Division 9; and 21 (ii) any other forensic material taken incidentally for 22 the purposes of this Part or the Rail Safety 23 National Law (WA) Part 3 Division 9. page 25 Rail Safety National Law (WA) Bill 2014 Part 4 Local repeal and transitional provisions Division 1 Preliminary s. 38 1 Part 4 -- Local repeal and transitional provisions 2 Division 1 -- Preliminary 3 38. Terms used 4 In this Part -- 5 commencement day means the day on which this section 6 commences. 7 repealed Act means the Rail Safety Act 2010. 8 Division 2 -- Repeal 9 39. Repeal 10 The Rail Safety Act 2010 is repealed. 11 Division 3 -- Transitional 12 40. Accreditation 13 (1) In this section -- 14 transitional railway operations means railway operations in 15 respect of which -- 16 (a) immediately before the commencement day, 17 accreditation was not required under the repealed Act; 18 and 19 (b) on and after the commencement day, accreditation is 20 required under the Rail Safety National Law (WA). 21 (2) A rail transport operator who applies for accreditation under the 22 Rail Safety National Law (WA) in respect of transitional railway 23 operations during the period of 3 years beginning on the 24 commencement day is, from the time of the application is made 25 until the application is determined, to be taken to hold the 26 accreditation. page 26 Rail Safety National Law (WA) Bill 2014 Local repeal and transitional provisions Part 4 Transitional Division 3 s. 41 1 (3) An application for accreditation, or variation of accreditation, 2 made but not determined under the repealed Act immediately 3 before the commencement day, is taken to be an application for 4 accreditation, or variation of accreditation, under the Rail Safety 5 National Law (WA) and must be determined in accordance with 6 that Law. 7 (4) A rail transport operator that, immediately before the 8 commencement day, holds an accreditation under the repealed 9 Act in respect of railway operations carried out by or on behalf 10 of the operator is, on and after the commencement day, taken to 11 hold an accreditation in respect of those railway operations 12 under the Rail Safety National Law (WA) subject to any 13 conditions and restrictions that applied to the accreditation 14 under the repealed Act immediately before the commencement 15 day. 16 (5) If, immediately before the commencement day, the 17 accreditation, or part of the accreditation, of a rail transport 18 operator has been suspended under the repealed Act, the 19 accreditation under the Rail Safety National Law (WA) that the 20 operator is taken to have because of subsection (4) is subject to 21 the same suspension as applied to the accreditation under the 22 repealed Act immediately before the commencement day. 23 41. Registration 24 (1) A rail infrastructure manager of a private siding that, 25 immediately before the commencement day, is registered under 26 the repealed Act is, on and after the commencement day, taken 27 to be registered under the Rail Safety National Law (WA) in 28 respect of the private siding. 29 (2) A registration under subsection (1) is subject to conditions or 30 restrictions determined by the Regulator in accordance with 31 subsection (3). page 27 Rail Safety National Law (WA) Bill 2014 Part 4 Local repeal and transitional provisions Division 3 Transitional s. 42 1 (3) The conditions or restrictions must be determined by notice to 2 the relevant rail infrastructure manager and must comprise -- 3 (a) any conditions or restrictions that applied to the 4 registration under the repealed Act (whether or not they 5 are varied by the Regulator); or 6 (b) any new conditions or restrictions determined by the 7 Regulator. 8 (4) A notice under subsection (3) -- 9 (a) must be in writing and given to the rail infrastructure 10 manager; and 11 (b) if a condition or restriction has been imposed on the 12 registration, must include -- 13 (i) the reasons for imposing the condition or 14 restriction; and 15 (ii) information about the right of review under the 16 Rail Safety National Law (WA) Part 7. 17 42. Police officers continue to be authorised 18 (1) In this section -- 19 authorised tester means an authorised drug tester or authorised 20 person as those terms are defined in the Road Traffic Act 1974 21 section 65. 22 (2) A police officer who was an authorised tester immediately 23 before the commencement day is, on and after the 24 commencement day, taken to be authorised to use a breath 25 analysis instrument mentioned in section 15(1)(a). 26 43. Alleged offences against repealed Act 27 (1) Despite the repeal effected by section 39, the repealed Act 28 continues to apply to an offence allegedly committed against 29 that Act before the commencement day as if that Act had not 30 been repealed. page 28 Rail Safety National Law (WA) Bill 2014 Local repeal and transitional provisions Part 4 Transitional Division 3 s. 44 1 (2) For the purposes of this section, if an act or omission 2 constituting an offence against the repealed Act is alleged to 3 have taken place between 2 dates, one before and one on or after 4 the commencement day, the act or omission is taken to be 5 alleged to have taken place before the commencement day. 6 44. Notifiable occurrences 7 (1) A report of a notifiable occurrence made under Part 4 Division 6 8 of the repealed Act as in force immediately before the 9 commencement day has effect as if it were a report of that 10 occurrence made under the Rail Safety National Law (WA) 11 Part 3 Division 8. 12 (2) An investigation of a notifiable occurrence under Part 4 13 Division 6 of the repealed Act as in force immediately before 14 the commencement day continues as if it were an investigation 15 under the Rail Safety National Law (WA) Part 3 Division 8. 16 45. Notices 17 (1) An improvement notice in force under Part 5 Division 7 of the 18 repealed Act immediately before the commencement day has 19 effect as if it were an improvement notice under the Rail Safety 20 National Law (WA) Part 5 Division 1. 21 (2) A prohibition notice in force under Part 5 Division 8 of the 22 repealed Act immediately before the commencement day 23 continues to have effect as if it were a prohibition notice under 24 the Rail Safety National Law (WA) Part 5 Division 2. 25 46. Safety-related systems, agreements, plans, programmes and 26 assessments 27 A system, agreement, plan, programme or assessment in force 28 under Part 4 Division 4 of the repealed Act immediately before 29 the commencement day has effect as if it were a corresponding 30 system, agreement plan, programme or assessment under the 31 Rail Safety National Law (WA) Part 3 Division 6. page 29 Rail Safety National Law (WA) Bill 2014 Part 4 Local repeal and transitional provisions Division 3 Transitional s. 47 1 47. Reviews and appeals 2 (1) If an application for accreditation, or variation of accreditation, 3 has been refused under the repealed Act and the period within 4 which the applicant could have applied for a review of the 5 decision had that Act not been repealed has not, immediately 6 before the commencement day, expired, the applicant may, 7 before the expiry of that period, apply for a review of the 8 decision under the Rail Safety National Law (WA) as if the 9 decision had been made under the Law. 10 (2) A person who is to be granted accreditation as the result of a 11 review of, or appeal against, a decision made under the repealed 12 Act who has not, immediately before the commencement day, 13 been accredited, must be granted accreditation under the Rail 14 Safety National Law (WA) subject to any conditions and 15 restrictions that would have applied to the accreditation under 16 the repealed Act. 17 48. Provision of information and assistance by Director of Rail 18 Safety 19 Despite any other Act or law, the Director Rail Safety under the 20 repealed Act is authorised, on his or her own initiative or at the 21 request of ONRSR -- 22 (a) to provide ONRSR with any information (including 23 information given in confidence) in the possession or 24 control of the Director that is reasonably required by 25 ONRSR for the local application provisions of this Act 26 or the Rail Safety National Law (WA); and 27 (b) to provide ONRSR with any other assistance that is 28 reasonably required by ONRSR to perform or exercise a 29 function or power under the local application provisions 30 of this Act or the Rail Safety National Law (WA). 31 49. Funds in, or payable to, Rail Safety Accreditation Account 32 (1) On the commencement day any moneys standing to the credit of 33 the Rail Safety Accreditation Account referred to in section 43 page 30 Rail Safety National Law (WA) Bill 2014 Local repeal and transitional provisions Part 4 Transitional Division 3 s. 49 1 of the repealed Act (the former account) are to be credited to 2 the Consolidated Account and the former account is then to be 3 closed. 4 (2) The Consolidated Account is to be credited with any money that 5 became payable to the former account before the 6 commencement day and that is paid after that day. page 31 Rail Safety National Law (WA) Bill 2014 Part 5 Consequential amendments s. 50 1 Part 5 -- Consequential amendments 2 50. Various references to "Rail Safety Act 2010" amended 3 (1) This section amends the Acts listed in the Table. 4 (2) In the provisions listed in the Table delete "Rail Safety 5 Act 2010" and insert: 6 7 Rail Safety National Law (WA) Act 2014 8 9 Table Government Railways Act 1904 s. 2A s. 13(1a)(d) s. 61(5) Mines Safety and Inspection s. 7(2) Act 1994 Personal Property Securities s. 17(1) def. of relevant State (Commonwealth Laws) Act 2011 property law par. (d) Public Transport Authority s. 3 def. of train Act 2003 s. 4(1)(a) Rail Freight System Act 2000 s. 9(1)(a) Railways (Access) Act 1998 s. 8 10 Notes: 11 1. In the Government Railways Act 1904, the heading to amended 12 section 2A is to read: 13 Relationship of this Act to Rail Safety National Law (WA) Act 2014 14 2. In the Railways (Access) Act 1998, the heading to amended section 8 15 is to read: 16 Code is subject to Rail Safety National Law (WA) Act 2014 page 32 Rail Safety National Law (WA) Bill 2014 Rail Safety National Law Schedule Preliminary Part 1 s. 1 1 Schedule -- Rail Safety National Law 2 [s. 4] 3 Part 1 -- Preliminary 4 1. Short title 5 This Law may be cited as the Rail Safety National Law. 6 2. Commencement 7 This Law commences in a participating jurisdiction as provided by the 8 application Act of the jurisdiction. 9 3. Purpose, objects and guiding principles of Law 10 (1) The main purpose of this Law is to provide for safe railway operations 11 in Australia. 12 (2) The objects of this Law are -- 13 (a) to establish the Office of the National Rail Safety Regulator 14 (the ONRSR); and 15 (b) to make provision for the appointment, functions and powers 16 of the National Rail Safety Regulator (the Regulator); and 17 (c) to make provision for a national system of rail safety, 18 including by providing a scheme for national accreditation of 19 rail transport operators in respect of railway operations; and 20 (d) to provide for the effective management of safety risks 21 associated with railway operations; and 22 (e) to provide for the safe carrying out of railway operations; and 23 (f) to provide for continuous improvement of the safe carrying 24 out of railway operations; and 25 (g) to make special provision for the control of particular risks 26 arising from railway operations; and 27 (h) to promote public confidence in the safety of transport of 28 persons or freight by rail; and 29 (i) to promote the provision of advice, information, education 30 and training for safe railway operations; and page 33 Rail Safety National Law (WA) Bill 2014 Schedule Rail Safety National Law Part 1 Preliminary s. 4 1 (j) to promote the effective involvement of relevant 2 stakeholders, through consultation and cooperation, in the 3 provision of safe railway operations. 4 (3) The guiding principles under this Law are -- 5 (a) to assist rail transport operators to achieve productivity by the 6 provision of a national scheme for rail safety; and 7 (b) to operate the national scheme in a timely, transparent, 8 accountable, efficient, effective, consistent and fair way; and 9 (c) that fees required to be paid for the provision of the national 10 scheme are to be reasonable having regard to the efficient and 11 effective operation of the scheme. 12 (4) The Parliament does not intend by this section to create in any person 13 any legal right or give rise to any civil cause of action. 14 4. Interpretation 15 (1) In this Law, unless the contrary intention appears -- 16 accredited person means a rail transport operator who is accredited 17 under this Law, but does not include a person whose accreditation 18 under this Law -- 19 (a) has been surrendered or revoked or has otherwise ceased to 20 have effect under this Law; or 21 (b) is suspended under this Law; 22 Acting Regulator means an Acting National Rail Safety Regulator 23 appointed under Part 2 Division 2; 24 amusement structure means a structure or device operated for hire or 25 reward, or provided on hire or lease -- 26 (a) that is used or designed to be used for amusement or 27 entertainment and on which persons may be moved, carried, 28 raised, lowered or supported by any part of the structure or 29 device; and 30 (b) that is an arrangement of structural or mechanical elements 31 (or both) that has as its prime function the provision of 32 movement of a passenger or passengers in a controlled 33 manner so that the passenger or passengers are not 34 necessarily required to move themselves to obtain the desired 35 effect; page 34 Rail Safety National Law (WA) Bill 2014 Rail Safety National Law Schedule Preliminary Part 1 s. 4 1 application Act means the Act of a jurisdiction that applies the Rail 2 Safety National Law set out in the Schedule to the Rail Safety 3 National Law (South Australia) Act 2012 of South Australia as a law 4 of the jurisdiction; 5 approved code of practice means a code of practice approved under 6 section 249; 7 AQF means the Australian Qualifications Framework within the 8 meaning of the Skilling Australia's Workforce Act 2005 of the 9 Commonwealth; 10 AQTF means the Australian Quality Training Framework within the 11 meaning of the Skilling Australia's Workforce Act 2005 of the 12 Commonwealth; 13 associated railway track structures includes -- 14 (a) associated works (such as cuttings, sidings, tunnels, bridges, 15 stations, platforms, tram stops, excavations, land fill, track 16 support earthworks and drainage works); and 17 (b) over-track structures and under-track structures (including 18 tunnels under-tracks); 19 Australian Accounting Standards means Accounting Standards 20 issued by the Australian Accounting Standards Board; 21 Australian rail safety law means this Law or a corresponding 22 previous enactment in a participating jurisdiction corresponding, or 23 substantially corresponding, to this Law; 24 authorised person means -- 25 (a) a police officer; or 26 (b) a person appointed under section 124; 27 Category 1 offence -- see section 58; 28 Category 2 offence -- see section 59; 29 Category 3 offence -- see section 60; 30 commercial benefits order means an order under section 230; 31 designated provision of this Law -- see section 204; 32 drug means -- 33 (a) a substance declared by the national regulations to be a drug 34 for the purposes of this Law; and page 35 Rail Safety National Law (WA) Bill 2014 Schedule Rail Safety National Law Part 1 Preliminary s. 4 1 (b) a substance declared under section 6 to be a drug for the 2 purposes of this Law; and 3 (c) any other substance (other than alcohol) that, when consumed 4 or used by a person, deprives that person (temporarily or 5 permanently) of any of his or her normal mental or physical 6 faculties; 7 employee means a person employed under a contract of employment 8 or contract of training; 9 employer means a person who employs 1 or more other persons under 10 contracts of employment or contracts of training; 11 exercise, for a function, includes perform; 12 footpath means an area open to the public that is designated for, or 1 13 of its main uses is, use by pedestrians; 14 Fund means the National Rail Safety Regulator Fund established 15 under Part 2 Division 4; 16 improvement notice means a notice under Part 5 Division 1; 17 infringement penalty provision has the meaning given by 18 section 233; 19 interface agreement means an agreement made under Part 3 20 Division 6 Subdivision 2 about managing risks to safety identified 21 and assessed in accordance with that Subdivision; 22 jurisdiction means a State or Territory; 23 level crossing means an area where a road and a railway meet at 24 substantially the same level, whether or not there is a level crossing 25 sign on the road at all or any of the entrances to the area; 26 member, of ONRSR, means the Regulator, an Acting Regulator or a 27 non-executive member appointed under Part 2 Division 2; 28 national regulations means the regulations made under section 264; 29 non-disturbance notice means a notice under Part 5 Division 3; 30 notifiable occurrence means an accident or incident associated with 31 railway operations -- 32 (a) that has, or could have, caused -- 33 (i) significant property damage; or 34 (ii) serious injury; or 35 (iii) death; 36 or page 36 Rail Safety National Law (WA) Bill 2014 Rail Safety National Law Schedule Preliminary Part 1 s. 4 1 (b) that is, or is of a class that is, prescribed by the national 2 regulations to be a notifiable occurrence or class of notifiable 3 occurrence, 4 but does not include an accident or incident, or class of accident or 5 incident, that is prescribed by the national regulations not to be a 6 notifiable occurrence; 7 occupational health and safety legislation means legislation relating 8 to occupational health and safety prescribed by the national 9 regulations for the purposes of this definition; 10 Office of the National Rail Safety Regulator or ONRSR means the 11 Office of the National Rail Safety Regulator established under Part 2 12 Division 1; 13 officer -- 14 (a) in relation to a body corporate, has the same meaning as 15 officer has in relation to a corporation under section 9 of the 16 Corporations Act 2001 of the Commonwealth; 17 (b) in relation to any other person, means an individual who 18 makes, or participates in making, decisions that affect the 19 whole, or a substantial part, of the business or undertaking of 20 the person; 21 participating jurisdiction means a jurisdiction in which -- 22 (a) this Law applies as a law of the jurisdiction; or 23 (b) a law that substantially corresponds to the provisions of this 24 Law has been enacted; or 25 (c) a law prescribed by the national regulations for the purposes 26 of this definition has been enacted; 27 prescribed drug -- see section 128; 28 private siding means a siding that is owned, controlled or managed by 29 a person, other than a person who manages the rail infrastructure with 30 which the siding connects or to which it has access, but does not 31 include -- 32 (a) a marshalling yard; or 33 (b) a crossing loop; or 34 (c) a passenger terminal; or 35 (d) a freight terminal; or page 37 Rail Safety National Law (WA) Bill 2014 Schedule Rail Safety National Law Part 1 Preliminary s. 4 1 (e) a siding under the control and management of an accredited 2 rail infrastructure manager; or 3 (f) a siding, or a siding of a class, prescribed by the national 4 regulations not to be a private siding; 5 prohibition notice means a notice under Part 5 Division 2; 6 public place means -- 7 (a) a place that -- 8 (i) the public is entitled to use; or 9 (ii) is open to members of the public; or 10 (iii) is used by the public, 11 whether or not on payment of money; or 12 (b) a place that the occupier allows members of the public to 13 enter, whether or not on payment of money; 14 public road means any road other than a private road; 15 public sector auditor means -- 16 (a) the Auditor-General (however described) of a participating 17 jurisdiction; or 18 (b) an auditor employed, appointed or otherwise engaged, by an 19 Auditor-General of a participating jurisdiction; 20 rail infrastructure means the facilities that are necessary to enable a 21 railway to operate and includes -- 22 (a) railway tracks and associated railway track structures; and 23 (b) service roads, signalling systems, communications systems, 24 rolling stock control systems, train control systems and data 25 management systems; and 26 (c) notices and signs; and 27 (d) electrical power supply and electric traction systems; and 28 (e) associated buildings, workshops, depots and yards; and 29 (f) plant, machinery and equipment, 30 but does not include -- 31 (g) rolling stock; or 32 (h) any facility, or facility of a class, that is prescribed by the 33 national regulations not to be rail infrastructure; page 38 Rail Safety National Law (WA) Bill 2014 Rail Safety National Law Schedule Preliminary Part 1 s. 4 1 rail infrastructure manager, in relation to rail infrastructure of a 2 railway, means the person who has effective control and management 3 of the rail infrastructure, whether or not the person -- 4 (a) owns the rail infrastructure; or 5 (b) has a statutory or contractual right to use the rail 6 infrastructure or to control, or provide, access to it; 7 rail or road crossing includes a railway crossing, a bridge carrying a 8 road over a railway and a bridge carrying a railway over a road; 9 rail safety officer means a person holding an appointment as a rail 10 safety officer under Part 4 Division 2; 11 rail safety undertaking -- see Part 10 Division 6; 12 rail safety work -- see section 8; 13 rail safety worker means an individual who has carried out, is 14 carrying out, or is about to carry out, rail safety work; 15 rail transport operator means -- 16 (a) a rail infrastructure manager; or 17 (b) a rolling stock operator; or 18 (c) a person who is both a rail infrastructure manager and a 19 rolling stock operator; 20 rail workplace means a place where rail safety work is carried out, 21 and includes any place where a rail safety worker goes, or is likely to 22 be, while doing rail safety work; 23 railway means a guided system, or proposed guided system, designed 24 for the movement of rolling stock having the capability of 25 transporting passengers or freight (or both) on a railway track with a 26 gauge of 600 millimetres or more, together with its rail infrastructure 27 and rolling stock, and includes the following: 28 (a) a heavy railway; 29 (b) a light railway; 30 (c) a monorail; 31 (d) an inclined railway; 32 (e) a tramway; 33 (f) a railway within a marshalling yard or a passenger or freight 34 terminal; page 39 Rail Safety National Law (WA) Bill 2014 Schedule Rail Safety National Law Part 1 Preliminary s. 4 1 (g) a private siding; 2 (h) a guided system, or guided system of a class, prescribed by 3 the national regulations to be a railway; 4 Note: See section 7 for railways to which this Law does not apply. 5 railway crossing means -- 6 (a) a level crossing; or 7 (b) any area where a footpath or shared path crosses a railway at 8 substantially the same level; 9 railway operations means any of the following -- 10 (a) the construction of a railway, railway tracks and associated 11 railway track structures; 12 (b) the construction of rolling stock; 13 (c) the management, commissioning, maintenance, repair, 14 modification, installation, operation or decommissioning of 15 rail infrastructure; 16 (d) the commissioning, use, modification, maintenance, repair or 17 decommissioning of rolling stock; 18 (e) the operation or movement, or causing the operation or 19 movement by any means, of rolling stock on a railway 20 (including for the purposes of construction or restoration of 21 rail infrastructure); 22 (f) the movement, or causing the movement, of rolling stock for 23 the purposes of operating a railway service; 24 (g) the scheduling, control and monitoring of rolling stock being 25 operated or moved on rail infrastructure; 26 railway premises means -- 27 (a) land (including any premises on land) on or in which is 28 situated rail infrastructure; or 29 (b) land (including any premises on land) on or in which is 30 situated any over-track or under-track structure or part of an 31 over-track or under-track structure; or 32 (c) freight centres or depots used in connection with the carrying 33 out of railway operations; or 34 (d) workshops or maintenance depots used in connection with the 35 carrying out of railway operations; or page 40 Rail Safety National Law (WA) Bill 2014 Rail Safety National Law Schedule Preliminary Part 1 s. 4 1 (e) premises (including an office, building or housing) used in 2 connection with the carrying out of railway operations; or 3 (f) rolling stock or other vehicles associated with railway 4 operations; or 5 (g) any other rail workplace; 6 reasonably practicable -- see section 47; 7 Register means the National Rail Safety Register established under 8 section 42; 9 registered person means a rail infrastructure manager who is 10 registered under this Law, but does not include a person whose 11 registration under this Law -- 12 (a) has been surrendered or revoked or has otherwise ceased to 13 have effect under this Law; or 14 (b) is suspended under this Law; 15 Regulator means the National Rail Safety Regulator or an Acting 16 National Rail Safety Regulator appointed under Part 2 Division 2; 17 responsible Minister, for a participating jurisdiction, means the 18 Minister of that jurisdiction nominated by that jurisdiction as its 19 responsible Minister for the purposes of this Law; 20 road infrastructure includes -- 21 (a) a road, including its surface or pavement; and 22 (b) anything under or supporting a road or its surface or 23 pavement; and 24 (c) any bridge, tunnel, causeway, road-ferry, ford or other work 25 or structure forming part of a road system or supporting a 26 road; and 27 (d) any bridge or other work or structure located above, in or on a 28 road; and 29 (e) any traffic control devices, electricity equipment, emergency 30 telephone systems or any other facilities (whether of the same 31 or a different kind) in, on, over, under or connected with 32 anything referred to in paragraphs (a) to (d); and page 41 Rail Safety National Law (WA) Bill 2014 Schedule Rail Safety National Law Part 1 Preliminary s. 4 1 (f) anything prescribed by the national regulations to be road 2 infrastructure, 3 but does not include rail infrastructure or anything that is prescribed 4 by the national regulations not to be road infrastructure; 5 road manager -- 6 (a) in relation to a private road -- means the owner, or other 7 person responsible for the care, control and management, of 8 the road; or 9 (b) in relation to a public road -- means an authority, person or 10 body responsible for the care, control or management of the 11 road; 12 rolling stock means a vehicle that operates on or uses a railway, and 13 includes a locomotive, carriage, rail car, rail motor, light rail vehicle, 14 train, tram, light inspection vehicle, self propelled infrastructure 15 maintenance vehicle, trolley, wagon or monorail vehicle, but does not 16 include a vehicle designed to operate both on and off a railway when 17 the vehicle is not operating on a railway; 18 rolling stock operator means a person who has effective control and 19 management of the operation or movement of rolling stock on rail 20 infrastructure for a railway, but does not include a person by reason 21 only that the person drives the rolling stock or controls the network or 22 the network signals; 23 running line means a railway track used primarily for the through 24 movement of trains; 25 safety means the safety of people, including rail safety workers, 26 passengers, other users of railways, users of rail or road crossings and 27 the general public; 28 safety duty -- see section 57; 29 safety management system -- see Part 3 Division 6; 30 siding means a portion of railway track, connected by points to a 31 running line or another siding, on which rolling stock can be placed 32 clear of the running line; 33 South Australian Minister means the responsible Minister for South 34 Australia; page 42 Rail Safety National Law (WA) Bill 2014 Rail Safety National Law Schedule Preliminary Part 1 s. 4 1 substance means substance in any form (whether gaseous, liquid, 2 solid or other), and includes material, preparation, extract and 3 admixture; 4 supervisory intervention order -- see section 231; 5 supply includes -- 6 (a) in relation to goods -- supply or resupply by way of sale, 7 exchange, lease, hire or hire purchase, whether as principal or 8 agent; or 9 (b) in relation to services -- provide, grant or confer, whether as 10 principal or agent; 11 Territory means the Australian Capital Territory or the Northern 12 Territory; 13 this Law means -- 14 (a) this Law as it applies as a law of a participating jurisdiction; 15 or 16 (b) a law of a participating jurisdiction that -- 17 (i) substantially corresponds to the provisions of this 18 Law; or 19 (ii) is prescribed by the national regulations for the 20 purposes of paragraph (c) of the definition of 21 participating jurisdiction; 22 train means -- 23 (a) 2 or more units of rolling stock coupled together, at least 1 of 24 which is a locomotive or other self propelled unit; or 25 (b) a unit of rolling stock that is a locomotive or other self 26 propelled unit; 27 train safety recording -- see section 130; 28 union means -- 29 (a) an employee organisation that is registered, or taken to be 30 registered, under the Fair Work (Registered Organisations) 31 Act 2009 of the Commonwealth; or 32 (b) an association of employees or independent contractors (or 33 both) that is registered or recognised as such an association 34 (however described) under a State or Territory industrial law. page 43 Rail Safety National Law (WA) Bill 2014 Schedule Rail Safety National Law Part 1 Preliminary s. 5 1 (2) In this Law -- 2 (a) a reference to this Law extends to a statutory instrument 3 made under this Law, or a provision of this Law or a statutory 4 instrument made under this Law; and 5 (b) a reference to the responsible Ministers is a reference to a 6 group of Ministers consisting of -- 7 (i) the responsible Minister for each participating 8 jurisdiction; and 9 (ii) a Commonwealth Minister nominated by the 10 Commonwealth as the responsible Minister for the 11 Commonwealth for the purposes of this Law (the 12 Commonwealth Minister). 13 (3) The Commonwealth Minister has complete discretion as to whether or 14 not to exercise a function or power given to the responsible Ministers 15 under this Law and so, for the purposes of this Law, a 16 recommendation of the responsible Ministers that is required to be 17 unanimous will be taken to be unanimous if the Commonwealth 18 Minister declines to exercise the function or power and the 19 responsible Minister for each participating jurisdiction agrees with the 20 recommendation. 21 5. Interpretation generally 22 Schedule 2 to this Law applies in relation to this Law. 23 6. Declaration of substance to be drug 24 (1) The responsible Ministers may declare a substance to be a drug for the 25 purposes of this Law. 26 (2) A declaration under subsection (1) -- 27 (a) is to be published on the NSW legislation website in 28 accordance with Part 6A of the Interpretation Act 1987 of 29 New South Wales; and 30 (b) will commence on the day specified in the declaration for its 31 commencement (being not earlier than the date it is 32 published); and 33 (c) is to be published by ONRSR on its website. page 44 Rail Safety National Law (WA) Bill 2014 Rail Safety National Law Schedule Preliminary Part 1 s. 7 1 7. Railways to which this Law does not apply 2 (1) This Law does not apply to or in relation to -- 3 (a) a railway in a mine that is underground, or chiefly 4 underground, and that is used in connection with the 5 performance of mining operations; or 6 (b) a slipway; or 7 (c) a railway used only to guide a crane; or 8 (d) an aerial cable operated system; or 9 (e) a railway used only by a horse-drawn tram; or 10 (f) a railway used only for a static display; or 11 (g) any other railway, or class of railway, prescribed by the 12 national regulations to be a railway, or railway of a class, to 13 which this Law does not apply. 14 (2) This Law does not apply to or in relation to the following railways -- 15 (a) a railway that -- 16 (i) is privately owned and operated as a hobby; and 17 (ii) is operated only on private property; and 18 (iii) does not operate on or cross a public road; and 19 (iv) is not operated for hire or reward, or provided on hire 20 or lease; and 21 (v) to which members of the public do not have access 22 (whether by invitation or otherwise); 23 (b) a railway that -- 24 (i) is used only for the purposes of an amusement 25 structure; and 26 (ii) is operated only within an amusement park; and 27 (iii) does not operate on or cross a public road; and 28 (iv) is not connected with another railway in respect of 29 which a rail transport operator is required to be 30 accredited or registered under this Law. 31 (3) Despite subsection (2)(b), the national regulations may prescribe a 32 specified railway of a class referred to in that paragraph to be a 33 railway to which or in relation to which this Law applies. page 45 Rail Safety National Law (WA) Bill 2014 Schedule Rail Safety National Law Part 1 Preliminary s. 8 1 8. Meaning of rail safety work 2 (1) Subject to subsection (2), any of the following classes of work is rail 3 safety work for the purposes of this Law -- 4 (a) driving or despatching rolling stock or any other activity 5 which is capable of controlling or affecting the movement of 6 rolling stock; 7 (b) signalling (and signalling operations), receiving or relaying 8 communications or any other activity which is capable of 9 controlling or affecting the movement of rolling stock; 10 (c) coupling or uncoupling rolling stock; 11 (d) maintaining, repairing, modifying, monitoring, inspecting or 12 testing -- 13 (i) rolling stock, including checking that the rolling 14 stock is working properly before being used; or 15 (ii) rail infrastructure; 16 (e) installation of components in relation to rolling stock; 17 (f) work on or about rail infrastructure relating to the design, 18 construction, repair, modification, maintenance, monitoring, 19 upgrading, inspection or testing of the rail infrastructure or 20 associated works or equipment, including checking that the 21 rail infrastructure is working properly before being used; 22 (g) installation or maintenance of -- 23 (i) a telecommunications system relating to rail 24 infrastructure or used in connection with rail 25 infrastructure; or 26 (ii) the means of supplying electricity directly to rail 27 infrastructure, any rolling stock using rail 28 infrastructure or a telecommunications system; 29 (h) work involving certification as to the safety of rail 30 infrastructure or rolling stock or any part or component of rail 31 infrastructure or rolling stock; 32 (i) work involving the decommissioning of rail infrastructure or 33 rolling stock or any part or component of rail infrastructure or 34 rolling stock; page 46 Rail Safety National Law (WA) Bill 2014 Rail Safety National Law Schedule Preliminary Part 1 s. 9 1 (j) work involving the development, management or monitoring 2 of safe working systems for railways; 3 (k) work involving the management or monitoring of passenger 4 safety on, in or at any railway; 5 (l) any other work that is prescribed by the national regulations 6 to be rail safety work. 7 (2) For the purposes of this Law, rail safety work does not include any 8 work, or any class of work, prescribed by the national regulations not 9 to be rail safety work. 10 9. Single national entity 11 (1) It is the intention of the Parliament of this jurisdiction that this Law as 12 applied by an Act of this jurisdiction, together with this Law as 13 applied by Acts of the other participating jurisdictions, has the effect 14 that an entity established by this Law is 1 single national entity, with 15 functions conferred by this Law as so applied. 16 (2) An entity established by this Law has power to do acts in or in 17 relation to this jurisdiction in the exercise of a function expressed to 18 be conferred on it by this Law as applied by Acts of each participating 19 jurisdiction. 20 (3) An entity established by this Law may exercise its functions in 21 relation to -- 22 (a) 1 participating jurisdiction; or 23 (b) 2 or more or all participating jurisdictions collectively. 24 (4) In this section, a reference to this Law as applied by an Act of a 25 jurisdiction includes -- 26 (a) a reference to a law that substantially corresponds to this Law 27 enacted in a jurisdiction; and 28 (b) a law prescribed by the national regulations for the purposes 29 of the definition of a participating jurisdiction. page 47 Rail Safety National Law (WA) Bill 2014 Schedule Rail Safety National Law Part 2 Office of the National Rail Safety Regulator s. 10 1 10. Extraterritorial operation of Law 2 It is the intention of the Parliament of this jurisdiction that the 3 operation of this Law is to, as far as possible, include operation in 4 relation to the following -- 5 (a) things situated in or outside the territorial limits of this 6 jurisdiction; 7 (b) acts, transactions and matters done, entered into or occurring 8 in or outside the territorial limits of this jurisdiction; 9 (c) things, acts, transactions and matters (wherever situated, 10 done, entered into or occurring) that would, apart from this 11 Law, be governed or otherwise affected by the law of another 12 jurisdiction. 13 11. Crown to be bound 14 (1) This Law binds the Crown, in right of this jurisdiction and, insofar as 15 the legislative power of the Parliament of this jurisdiction permits, the 16 Crown in all its other capacities. 17 (2) No criminal liability attaches to the Crown itself (as distinct from its 18 agents, instrumentalities, officers and employees) under this Law. 19 Part 2 -- Office of the National Rail Safety Regulator 20 Division 1 -- Establishment, functions, objectives, etc 21 12. Establishment 22 (1) The Office of the National Rail Safety Regulator (ONRSR) is 23 established. 24 (2) ONRSR -- 25 (a) is a body corporate with perpetual succession; and 26 (b) has a common seal; and 27 (c) may sue and be sued in its corporate name. 28 (3) ONRSR represents the Crown. page 48 Rail Safety National Law (WA) Bill 2014 Rail Safety National Law Schedule Office of the National Rail Safety Regulator Part 2 s. 13 1 13. Functions and objectives 2 (1) In addition to any other function conferred on ONRSR by this Law or 3 an Act, ONRSR has the following functions -- 4 (a) to administer, audit and review the accreditation regime under 5 this Law; 6 (b) to work with rail transport operators, rail safety workers, and 7 others involved in railway operations, to improve rail safety 8 nationally; 9 (c) to conduct research, collect and publish information relating 10 to rail safety; 11 (d) to provide, or facilitate the provision of, advice, education 12 and training in relation to rail safety; 13 (e) to monitor, investigate and enforce compliance with this Law; 14 (f) to engage in, promote and coordinate the sharing of 15 information to achieve the objects of this Law, including the 16 sharing of information with a prescribed authority; 17 (g) at the request of the Commonwealth or a jurisdiction -- to 18 carry out any other function as agreed between ONRSR and 19 the jurisdiction. 20 (2) In exercising its functions, ONRSR must -- 21 (a) facilitate the safe operations of rail transport in Australia; and 22 (b) exhibit independence, rigour and excellence in carrying out 23 its regulatory functions; and 24 (c) promote safety and safety improvement as a fundamental 25 objective in the delivery of rail transport in Australia. 26 (3) In this section -- 27 prescribed authority means -- 28 (a) the Australian Transport Safety Bureau established under the 29 Transport Safety Investigation Act 2003 of the 30 Commonwealth; and 31 (b) any other relevant authority established under a law of a 32 participating jurisdiction. page 49 Rail Safety National Law (WA) Bill 2014 Schedule Rail Safety National Law Part 2 Office of the National Rail Safety Regulator s. 14 1 14. Independence of ONRSR 2 Except as provided under this Law or an Act, ONRSR is not subject 3 to Ministerial direction in the exercise of its functions or powers. 4 15. Powers 5 (1) ONRSR has all the powers of an individual and, in particular, may -- 6 (a) enter into contracts; and 7 (b) acquire, hold, dispose of, and deal with, real and personal 8 property; and 9 (c) do anything necessary or convenient to be done in the 10 exercise of its functions. 11 (2) Without limiting subsection (1), ONRSR may enter into an agreement 12 (a service agreement) with a State or Territory that makes provision 13 for -- 14 (a) the State or Territory to provide services to ONRSR that 15 assist ONRSR in exercising its functions; or 16 (b) ONRSR to provide services to the State or Territory. 17 Division 2 -- Office of the National Rail Safety Regulator 18 Subdivision 1 -- Constitution of ONRSR 19 16. Constitution of ONRSR 20 (1) ONRSR consists of -- 21 (a) a person appointed by the South Australian Minister acting on 22 the unanimous recommendation of the responsible Ministers 23 as the National Rail Safety Regulator (the Regulator); and 24 (b) 2 non-executive members (full-time or part-time) as are 25 appointed by the South Australian Minister acting on the 26 unanimous recommendation of the responsible Ministers. 27 (2) The exercise of a function or power of ONRSR is not affected by a 28 vacancy in the membership of ONRSR. page 50 Rail Safety National Law (WA) Bill 2014 Rail Safety National Law Schedule Office of the National Rail Safety Regulator Part 2 s. 17 1 Subdivision 2 -- National Rail Safety Regulator 2 17. Appointment of Regulator 3 (1) A person may be appointed as the National Rail Safety Regulator who 4 is qualified for appointment because the person has a high level of 5 expertise in 1 or more areas relevant to ONRSR's functions. 6 (2) The Regulator will be appointed for a term not exceeding 5 years on 7 terms and conditions determined by the South Australian Minister 8 acting on the unanimous recommendation of the responsible 9 Ministers. 10 (3) The Regulator is entitled to be paid the remuneration and allowances 11 decided by the South Australian Minister acting on the unanimous 12 recommendation of the responsible Ministers from time to time. 13 (4) In setting the remuneration and allowances for the Regulator, regard 14 must be had to relevant rates (if any) published by the Remuneration 15 Tribunal of the Commonwealth from time to time. 16 (5) At the expiration of a term of appointment, the Regulator will be 17 eligible for reappointment. 18 (6) The conditions of appointment of the Regulator must not, without the 19 consent of the Regulator, be varied while the Regulator is in office so 20 as to become less favourable to the Regulator. 21 (7) The Regulator must not engage, without the written consent of the 22 South Australian Minister acting on the unanimous recommendation 23 of the responsible Ministers, in any other remunerated employment. 24 18. Acting National Rail Safety Regulator 25 (1) The South Australian Minister may appoint an Acting National Rail 26 Safety Regulator (who may, or may not, be a non-executive member 27 or a member of the staff of ONRSR) to act in the office of the 28 Regulator and a person so appointed has, while so acting, all the 29 functions and powers of the Regulator. 30 (2) An Acting Regulator may act in the office of the Regulator -- 31 (a) during a vacancy in the office of the Regulator (whether or 32 not an appointment has previously been made to the office); 33 or page 51 Rail Safety National Law (WA) Bill 2014 Schedule Rail Safety National Law Part 2 Office of the National Rail Safety Regulator s. 19 1 (b) during any period, or during all periods, when the 2 Regulator -- 3 (i) is absent from duty or from Australia; or 4 (ii) is, for any reason, unable to exercise the duties of the 5 office; 6 or 7 (c) if the Regulator is disqualified from acting in relation to a 8 particular matter -- in relation to that matter. 9 (3) Anything done by or in relation to a person purporting to act under an 10 appointment is not invalid merely because -- 11 (a) the occasion for the appointment had not arisen; or 12 (b) there is a defect or irregularity in connection with the 13 appointment; or 14 (c) the appointment had ceased to have effect; or 15 (d) the occasion to act had not arisen or had ceased. 16 19. Functions of Regulator 17 (1) The functions of the Regulator include -- 18 (a) being the chief executive of ONRSR; and 19 (b) exercising the functions of ONRSR conferred on the 20 Regulator under this Law or an Act; and 21 (c) otherwise acting on behalf of ONRSR in appropriate cases. 22 (2) An act of the Regulator will be taken to be an act of ONRSR. 23 (3) Except as provided under this Law or an Act of a participating 24 jurisdiction, the Regulator is not subject to direction in the exercise of 25 his or her functions or powers. 26 (4) The Regulator must act consistently with the policies determined by 27 ONRSR. 28 20. Power of Regulator to obtain information 29 (1) This section applies if the Regulator has reasonable grounds to believe 30 that a person is capable of giving information, providing documents 31 or giving evidence in relation to a possible contravention of this Law 32 or that will assist to monitor or enforce compliance with this Law. page 52 Rail Safety National Law (WA) Bill 2014 Rail Safety National Law Schedule Office of the National Rail Safety Regulator Part 2 s. 20 1 (2) The Regulator may, by written notice served on the person, require 2 the person to do 1 or more of the following -- 3 (a) to give the Regulator in writing signed by the person (or in 4 the case of a body corporate, by a competent officer of the 5 body corporate) and within the time and in the manner 6 specified in the notice, that information of which the person 7 has knowledge; 8 (b) to produce to the Regulator, in accordance with the notice, 9 those documents; 10 (c) to appear before a person appointed by the Regulator on a 11 day, and at a time and place, specified in the notice (being a 12 day, time and place that are reasonable in the circumstances) 13 and give either orally or in writing that evidence and produce 14 those documents. 15 (3) The notice must -- 16 (a) state that the requirement is made under this section; and 17 (b) contain a statement to the effect that a failure to comply with 18 a requirement is an offence; and 19 (c) if the notice requires the person to provide information or 20 documents or answer questions -- 21 (i) contain a statement about the effect of sections 155 22 and 245; and 23 (ii) state that the person may attend with a legal 24 practitioner. 25 (4) The Regulator must not make a requirement under subsection (2)(c) 26 unless the Regulator has taken all reasonable steps to obtain the 27 information under subsections (2)(a) and (b) and has been unable to 28 do so. 29 (5) A person must not, without reasonable excuse, fail to comply with a 30 requirement under this section. 31 Maximum penalty: 32 (a) in the case of an individual -- $10 000; 33 (b) in the case of a body corporate -- $50 000. 34 (6) Subsection (5) places an evidential burden on the accused to show a 35 reasonable excuse. page 53 Rail Safety National Law (WA) Bill 2014 Schedule Rail Safety National Law Part 2 Office of the National Rail Safety Regulator s. 21 1 (7) Section 155 (with any necessary changes) applies to a requirement 2 under this section. 3 Subdivision 3 -- Non-executive members 4 21. Appointment of non-executive members 5 (1) A person may be appointed as a non-executive member of ONRSR 6 who is qualified for appointment because the person has a high level 7 of expertise in 1 or more areas relevant to ONRSR's functions. 8 (2) A non-executive member will be appointed for a term not exceeding 9 4 years on terms and conditions determined by the South Australian 10 Minister acting on the unanimous recommendation of the responsible 11 Ministers. 12 (3) A non-executive member is entitled to be paid the remuneration and 13 allowances decided by the South Australian Minister acting on the 14 unanimous recommendation of the responsible Ministers from time to 15 time. 16 (4) In setting the remuneration and allowances for a non-executive 17 member regard must be had to relevant rates (if any) published by the 18 Remuneration Tribunal of the Commonwealth from time to time. 19 (5) At the expiration of a term of appointment, a non-executive member 20 will be eligible for reappointment. 21 (6) The conditions of appointment of a non-executive member must not, 22 without the consent of the member, be varied while the member is in 23 office so as to become less favourable to the member. 24 Subdivision 4 -- Miscellaneous provisions relating to membership 25 22. Vacancy in or removal from office 26 (1) The office of a member of ONRSR becomes vacant if the member -- 27 (a) completes a term of office; or 28 (b) resigns by written notice given to the responsible Ministers; 29 or 30 (c) has been found guilty of an offence, whether in a 31 participating jurisdiction or elsewhere, that the responsible page 54 Rail Safety National Law (WA) Bill 2014 Rail Safety National Law Schedule Office of the National Rail Safety Regulator Part 2 s. 23 1 Ministers consider renders the member unfit to continue to 2 hold the office of member; or 3 (d) becomes bankrupt, applies to take the benefit of any law for 4 the relief of bankrupt or insolvent debtors, compounds with 5 the member's creditors or makes an assignment of the 6 member's remuneration for their benefit; or 7 (e) is absent, without leave first being granted by the relevant 8 entity from 3 or more consecutive meetings of ONRSR of 9 which reasonable notice has been given to the member 10 personally or by post; or 11 (f) is removed from office by the South Australian Minister 12 under this section; or 13 (g) dies. 14 (2) The South Australian Minister may remove a member of ONRSR 15 from office if the responsible Ministers recommend the removal of the 16 member on the basis that the member has engaged in misconduct or 17 has failed to or is unable to properly exercise the member's functions 18 as a member of ONRSR. 19 (3) In this section -- 20 relevant entity means -- 21 (a) for the Regulator -- the responsible Ministers; or 22 (b) for a non-executive member -- the Regulator. 23 23. Member to give responsible Ministers notice of certain events 24 A member of ONRSR must, within 7 days of either of the following 25 events occurring, give the responsible Ministers notice of the event -- 26 (a) the member is convicted of an offence; 27 (b) the member becomes bankrupt, applies to take the benefit of 28 any law for the relief of bankrupt or insolvent debtors, 29 compounds with the member's creditors or makes an 30 assignment of the member's remuneration for their benefit. 31 24. Extension of term of office during vacancy in membership 32 (1) If the office of a member of ONRSR becomes vacant because the 33 member has completed the member's term of office, the member is page 55 Rail Safety National Law (WA) Bill 2014 Schedule Rail Safety National Law Part 2 Office of the National Rail Safety Regulator s. 25 1 taken to continue to be a member during that vacancy until the date on 2 which the vacancy is filled, whether by reappointment of the member 3 or appointment of a successor to the member. 4 (2) However, this section ceases to apply to the member if -- 5 (a) the member resigns the member's office by signed notice 6 given to the responsible Ministers; or 7 (b) the responsible Ministers decide the services of the member 8 are no longer required. 9 (3) The maximum period for which a member of ONRSR is taken to 10 continue to be a member under this section after completion of the 11 member's term of office is 6 months. 12 25. Members to act in public interest 13 A member of ONRSR is to act impartially and in the public interest in 14 the exercise of the member's functions as a member. 15 26. Disclosure of conflict of interest 16 (1) If a member of ONRSR has a direct or indirect pecuniary or other 17 interest that conflicts or may conflict with the exercise of the 18 member's functions as a member, the member must, as soon as 19 possible after the relevant facts have come to the member's 20 knowledge, disclose the nature of the member's interest and the 21 conflict to -- 22 (a) for the Regulator -- the responsible Ministers; or 23 (b) for a non-executive member -- the Regulator. 24 (2) If a disclosure is made under subsection (1), the entity to whom the 25 disclosure is made must notify ONRSR of the disclosure. 26 (3) Particulars of any disclosure made under subsection (1) must be 27 recorded by ONRSR in a register of interests kept for the purpose. 28 (4) After a member of ONRSR has disclosed the nature of an interest and 29 conflict or potential conflict under subsection (1), the member must 30 not be present during any deliberation of ONRSR with respect to any 31 matter that is, or may be, affected by the conflict, or take part in any page 56 Rail Safety National Law (WA) Bill 2014 Rail Safety National Law Schedule Office of the National Rail Safety Regulator Part 2 s. 27 1 decision of ONRSR with respect to any matter that is, or may be, 2 affected by the conflict, unless -- 3 (a) for the Regulator, the responsible Ministers otherwise decide; 4 or 5 (b) for a non-executive member, ONRSR otherwise decides. 6 (5) For the purposes of the making of a decision by ONRSR under 7 subsection (4) in relation to a matter, a member of ONRSR who has a 8 direct or indirect pecuniary or other interest that conflicts or may 9 conflict with the exercise of the member's functions as a member with 10 respect to the matter must not -- 11 (a) be present during any deliberation of ONRSR for the purpose 12 of making the decision; or 13 (b) take part in the making of the decision by ONRSR. 14 (6) A contravention of this section does not invalidate any decision of 15 ONRSR but if ONRSR becomes aware a member of ONRSR 16 contravened this section, ONRSR must reconsider any decision made 17 by ONRSR in which the member took part in contravention of this 18 section. 19 Division 3 -- Procedures 20 27. Times and places of meetings 21 (1) The Regulator must hold such meetings as he or she considers 22 necessary for the efficient exercise of ONRSR's functions. 23 (2) Meetings are to be held at such times and places as the Regulator 24 decides. 25 28. Conduct of meetings 26 (1) The Regulator is to preside at all meetings of ONRSR at which he or 27 she is present. 28 (2) If the Regulator is not present at a meeting, a person appointed to act 29 as the Regulator must be present and preside. 30 (3) A quorum of ONRSR consists of 2 members. 31 (4) A decision supported by a majority of the votes cast at a meeting of 32 ONRSR at which a quorum is present is the decision of ONRSR. page 57 Rail Safety National Law (WA) Bill 2014 Schedule Rail Safety National Law Part 2 Office of the National Rail Safety Regulator s. 29 1 (5) The person presiding at a meeting of ONRSR has a deliberative vote 2 and, in the event of an equality of votes, has a second or casting vote. 3 (6) Subject to this Division, ONRSR may regulate its own procedures. 4 (7) ONRSR must ensure that minutes of its meetings are kept. 5 29. Defects in appointment of members 6 A decision of ONRSR is not invalidated by any defect or irregularity 7 in the appointment of a member. 8 30. Decisions without meetings 9 (1) A decision is taken to have been made at a meeting of ONRSR if -- 10 (a) without meeting, a majority of the members indicate 11 agreement with the proposed decision in accordance with the 12 method determined under this section; and 13 (b) all members were informed, or reasonable efforts were made 14 to inform all members, of the proposed decision. 15 (2) Subsection (1) applies only if ONRSR -- 16 (a) has determined that it applies; and 17 (b) has determined the method by which members are to indicate 18 agreement with proposed decisions. 19 (3) ONRSR must keep a record of decisions made under this section. 20 31. Common seal and execution of documents 21 (1) The common seal of ONRSR must not be affixed to a document 22 except in pursuance of a decision of ONRSR, and the affixing of the 23 seal must be attested by the signature of the Regulator or Acting 24 Regulator. 25 (2) ONRSR may, by instrument under ONRSR's common seal, authorise 26 an employee of ONRSR (whether nominated by name or by office or 27 title) or any other person to execute documents on behalf of ONRSR 28 subject to conditions and limitations (if any) specified in the 29 instrument of authority. page 58 Rail Safety National Law (WA) Bill 2014 Rail Safety National Law Schedule Office of the National Rail Safety Regulator Part 2 s. 32 1 (3) Without limiting subsection (2), an authority may be given so as to 2 authorise 2 or more persons to execute documents jointly on behalf of 3 ONRSR. 4 (4) A document is duly executed by ONRSR if -- 5 (a) the common seal of ONRSR is affixed to the document in 6 accordance with this section; or 7 (b) the document is signed on behalf of ONRSR by a person or 8 persons in accordance with an authority conferred under this 9 section. 10 (5) Where an apparently genuine document purports to bear the common 11 seal of ONRSR, it will be presumed in any legal proceedings, in the 12 absence of proof to the contrary, that the common seal of ONRSR has 13 been duly affixed to that document. 14 Division 4 -- Finance 15 32. Establishment of Fund 16 (1) The National Rail Safety Regulator Fund is established. 17 (2) The Fund is to be administered by ONRSR. 18 (3) ONRSR may establish accounts with any financial institution for 19 money in the Fund. 20 (4) The Fund does not form part of the consolidated fund or consolidated 21 account of a participating jurisdiction or the Commonwealth. 22 33. Payments into Fund 23 There is payable into the Fund -- 24 (a) all money appropriated by the Parliament of any participating 25 jurisdiction or the Commonwealth for the purposes of the 26 Fund; and 27 (b) all fees, charges, costs and expenses paid to or recovered by 28 ONRSR under this Law; and 29 (c) the proceeds of the investment of money in the Fund; and 30 (d) all grants, gifts and donations made to ONRSR, but subject to 31 any trusts declared in relation to the grants, gifts or donations; 32 and page 59 Rail Safety National Law (WA) Bill 2014 Schedule Rail Safety National Law Part 2 Office of the National Rail Safety Regulator s. 34 1 (e) all money directed or authorised to be paid into the Fund 2 under this Law, any law of a participating jurisdiction or any 3 law of the Commonwealth; and 4 (f) any other money or property received by ONRSR in 5 connection with the exercise of its functions; and 6 (g) any money paid to ONRSR for the provision of services to a 7 State or Territory under an agreement mentioned in 8 section 15(2)(b). 9 34. Payments out of Fund 10 Payments may be made from the Fund for the purpose of -- 11 (a) paying any costs or expenses, or discharging any liabilities, 12 incurred in the administration or enforcement of this Law, 13 including (for example) payments made to a State or 14 Territory for the provision of services under an agreement 15 mentioned in section 15(2)(a); and 16 (b) paying any money directed or authorised to be paid out of the 17 Fund under this Law; and 18 (c) any other payments recommended by ONRSR and approved 19 by the responsible Ministers. 20 35. Investment of money in Fund 21 (1) ONRSR must invest its funds in a way that is secure and provides a 22 low risk so that ONRSR's exposure to the loss of funds is minimised. 23 (2) ONRSR must keep records that show it has invested in a way that 24 complies with subsection (1). 25 36. Financial management duties of ONRSR 26 ONRSR must -- 27 (a) ensure its operations are carried out efficiently, effectively 28 and economically; and 29 (b) keep proper books and records in relation to the Fund and 30 other money received by ONRSR; and 31 (c) ensure expenditure is made from the Fund for lawful 32 purposes only and, as far as possible, reasonable value is 33 obtained for money expended from the Fund; and page 60 Rail Safety National Law (WA) Bill 2014 Rail Safety National Law Schedule Office of the National Rail Safety Regulator Part 2 s. 37 1 (d) ensure its procedures, including internal control procedures, 2 afford adequate safeguards with respect to -- 3 (i) the correctness, regularity and propriety of payments 4 made from the Fund; and 5 (ii) receiving and accounting for payments made to the 6 Fund; and 7 (iii) prevention of fraud or mistake; 8 and 9 (e) take any action necessary to ensure the preparation of 10 accurate financial statements in accordance with Australian 11 Accounting Standards for inclusion in its annual report; and 12 (f) take any action necessary to facilitate the audit of those 13 financial statements under this Law; and 14 (g) arrange for any further audit by a qualified person of the 15 books and records kept by ONRSR in relation to the Fund, if 16 directed to do so by the responsible Ministers. 17 Division 5 -- Staff 18 37. Chief executive 19 (1) The Regulator is the chief executive of ONRSR responsible for -- 20 (a) the day to day management of ONRSR; and 21 (b) carrying out any other function conferred on the chief 22 executive under this Law, an Act or by ONRSR. 23 (2) The chief executive must act consistently with the policies determined 24 by ONRSR. 25 38. Staff 26 (1) ONRSR may, for the purpose of exercising its functions, employ 27 staff. 28 (2) The staff of ONRSR are to be employed on the terms and conditions 29 decided by ONRSR from time to time. 30 (3) Subsection (2) is subject to any relevant industrial award or agreement 31 that applies to the staff. page 61 Rail Safety National Law (WA) Bill 2014 Schedule Rail Safety National Law Part 2 Office of the National Rail Safety Regulator s. 39 1 39. Secondments to ONRSR 2 ONRSR may make arrangements for the services of a person who is a 3 member of the staff of a government agency of a participating 4 jurisdiction or the Commonwealth to be made available to ONRSR in 5 connection with the exercise of its functions. 6 40. Consultants and contractors 7 (1) ONRSR may engage persons with suitable qualifications and 8 experience as consultants or contractors. 9 (2) The terms and conditions of engagement of consultants or contractors 10 are as decided by ONRSR from time to time. 11 Division 6 -- Miscellaneous 12 41. Regulator may be directed to investigate rail safety matter 13 (1) The responsible Minister for a participating jurisdiction may give a 14 written direction to the Regulator to investigate, or provide advice or 15 information about, a rail safety matter relating to the participating 16 jurisdiction. 17 (2) A direction may not be given under this section -- 18 (a) that directs the Regulator as to how to conduct an 19 investigation into a rail safety matter; or 20 (b) that directs the Regulator as to which persons the Regulator 21 may request or direct to provide assistance in investigating a 22 rail safety matter; or 23 (c) about the outcome of any such investigation; or 24 (d) that directs the Regulator to stop any such investigation. 25 (3) The Regulator must cause a direction given under this section to be 26 published in ONRSR's next annual report. 27 42. National Rail Safety Register 28 (1) The Regulator must establish and maintain the National Rail Safety 29 Register for the purposes of this Law. page 62 Rail Safety National Law (WA) Bill 2014 Rail Safety National Law Schedule Office of the National Rail Safety Regulator Part 2 s. 42 1 (2) The Regulator must ensure that the following matters are recorded in 2 the Register -- 3 (a) the accreditation of a rail transport operator under Part 3 4 Division 4; 5 (b) the variation, cancellation, suspension or expiry of the 6 accreditation of a rail transport operator under Part 3 7 Division 4; 8 (c) the registration of a rail infrastructure manager of a private 9 siding under Part 3 Division 5; 10 (d) the variation, cancellation, suspension or expiry of the 11 registration of a rail infrastructure manager of a private siding 12 under Part 3 Division 5; 13 (e) an exemption from this Law or specified provisions of this 14 Law conferred on a person and details of the exemption; 15 (f) a decision to accept a rail safety undertaking and the reasons 16 for that decision under Part 10 Division 6; 17 (g) a decision to withdraw or vary a rail safety undertaking under 18 Part 10 Division 6; 19 (h) the issuing of an improvement notice to a person; 20 (i) the variation, cancellation or expiry of an improvement 21 notice; 22 (j) the issuing of a prohibition notice to a person; 23 (k) the variation, cancellation or expiry of a prohibition notice; 24 (l) the issuing of a non-disturbance notice to a person; 25 (m) the variation, cancellation or expiry of a non-disturbance 26 notice; 27 (n) any other matter that is prescribed in the national regulations 28 to be included in the Register. 29 (3) The Register will be kept in the form of a computer record and 30 published on ONRSR's website. 31 (4) The Register is to be available for inspection, without fee, during 32 ordinary office hours at a public office, or public offices, determined 33 by the Regulator. page 63 Rail Safety National Law (WA) Bill 2014 Schedule Rail Safety National Law Part 2 Office of the National Rail Safety Regulator s. 43 1 43. Annual report 2 (1) The Regulator must, on or before 30 September in each year, deliver 3 to the responsible Ministers a report on ONRSR's activities for the 4 financial year ending on the preceding 30 June. 5 (2) The annual report must include -- 6 (a) information on the development of rail safety (including an 7 aggregation of statistics of a prescribed class reported to 8 ONRSR under this Law for the relevant financial year); and 9 (b) information on any improvements and important changes in 10 relation to the regulation of rail safety for the relevant 11 financial year; and 12 (c) details of all rail safety issues brought to the attention of 13 ONRSR during the relevant financial year and the action (if 14 any) taken in relation to each such issue; and 15 (d) if, at the start of the relevant financial year, there are still 16 outstanding any rail safety issues that previously had been 17 brought to the attention of ONRSR -- details of the action (if 18 any) taken in respect of each such issue; and 19 (e) details about any significant activity undertaken in each 20 participating jurisdiction during the relevant financial year 21 by, or on behalf of, ONRSR; and 22 (f) the financial statement in respect of the relevant financial 23 year; and 24 (g) the report on the financial statement made by the public 25 sector auditor who conducted the audit; and 26 (h) any other information required to be included in the report by 27 another provision under this Law or by the responsible 28 Ministers. 29 (3) The financial statement must be -- 30 (a) prepared in accordance with Australian Accounting 31 Standards; and 32 (b) audited, and reported on, by a public sector auditor. 33 (4) The responsible Ministers must make arrangements for the tabling of 34 ONRSR's annual report in the Parliament of each participating 35 jurisdiction. page 64 Rail Safety National Law (WA) Bill 2014 Rail Safety National Law Schedule Regulation of rail safety Part 3 s. 44 1 (5) The responsible Ministers may extend, or further extend, the period 2 for submission of an annual report to the responsible Ministers by a 3 total period of up to 3 months. 4 (6) As soon as practicable after the annual report has been tabled in at 5 least 1 House of the Parliament of a participating jurisdiction, the 6 Regulator must publish a copy of the report on ONRSR's website. 7 44. Other reporting requirements 8 The national regulations may require ONRSR to deliver to a 9 prescribed body or person, at prescribed intervals, a report containing 10 prescribed matters. 11 45. Delegation 12 (1) ONRSR may delegate to a body or person (including a person for the 13 time being holding or acting in a specified office or position) a 14 function or power of ONRSR under this Law or an Act. 15 (2) The Regulator may delegate to a body or person (including a person 16 for the time being holding or acting in a specified office or position) a 17 function or power of the Regulator under this Law or an Act. 18 (3) A function or power delegated under this section may, if the 19 instrument of delegation so provides, be further delegated. 20 Part 3 -- Regulation of rail safety 21 Division 1 -- Interpretation 22 46. Management of risks 23 A duty imposed on a person under this Law to ensure, so far as is 24 reasonably practicable, safety requires the person -- 25 (a) to eliminate risks to safety so far as is reasonably practicable; 26 and 27 (b) if it is not reasonably practicable to eliminate risks to safety, 28 to minimise those risks so far as is reasonably practicable. page 65 Rail Safety National Law (WA) Bill 2014 Schedule Rail Safety National Law Part 3 Regulation of rail safety s. 47 1 47. Meaning of reasonably practicable 2 In this Part -- 3 reasonably practicable, in relation to a duty to ensure safety, means 4 that which is (or was at a particular time) reasonably able to be done 5 in relation to ensuring safety, taking into account and weighing up all 6 relevant matters, including -- 7 (a) the likelihood of the hazard or the risk concerned occurring; 8 and 9 (b) the degree of harm that might result from the hazard or the 10 risk; and 11 (c) what the person concerned knows, or ought reasonably to 12 know, about -- 13 (i) the hazard or the risk; and 14 (ii) ways of eliminating or minimising the risk; 15 and 16 (d) the availability and suitability of ways to eliminate or 17 minimise the risk; and 18 (e) after assessing the extent of the risk and the available ways of 19 eliminating or minimising the risk -- the cost associated with 20 available ways of eliminating or minimising the risk 21 (including whether the cost is grossly disproportionate to the 22 risk). 23 Division 2 -- Occupational health and safety and railway operations 24 48. Relationship between this Law and OHS legislation 25 (1) If a provision of the occupational health and safety legislation applies 26 to railway operations, that provision continues to apply, and must be 27 observed, in addition to this Law. 28 (2) If a provision of this Law is inconsistent with a provision of the 29 occupational health and safety legislation, the provision of the 30 occupational health and safety legislation prevails to the extent of any 31 inconsistency. 32 Note: For example, if a provision of this Law deals with a certain matter and 33 a provision of the occupational health and safety legislation deals with 34 the same matter and it is impossible to comply with both provisions, a page 66 Rail Safety National Law (WA) Bill 2014 Rail Safety National Law Schedule Regulation of rail safety Part 3 s. 49 1 person must comply with the occupational health and safety legislation 2 and not with this Law. If provisions of both this Law and the 3 occupational health and safety legislation deal with the same matter 4 but it is possible to comply with both provisions, a person must comply 5 with both. 6 (3) Compliance with this Law or with any requirement imposed under 7 this Law is not in itself a defence in any proceedings for an offence 8 against the occupational health and safety legislation. 9 (4) Evidence of a relevant contravention of this Law is admissible in any 10 proceedings for an offence against the occupational health and safety 11 legislation. 12 49. No double jeopardy 13 Where an act or omission constitutes an offence -- 14 (a) under this Law; and 15 (b) under the occupational health and safety legislation, 16 the offender is not liable to be punished twice in respect of the 17 offence. 18 Division 3 -- Rail safety duties 19 Subdivision 1 -- Principles 20 50. Principles of shared responsibility, accountability, integrated risk 21 management, etc 22 (1) Rail safety is the shared responsibility of -- 23 (a) rail transport operators; and 24 (b) rail safety workers; and 25 (c) other persons who -- 26 (i) design, commission, construct, manufacture, supply, 27 install, erect, maintain, repair, modify or 28 decommission rail infrastructure or rolling stock; or 29 (ii) supply rail infrastructure operations or rolling stock 30 operations to rail operators; or page 67 Rail Safety National Law (WA) Bill 2014 Schedule Rail Safety National Law Part 3 Regulation of rail safety s. 51 1 (iii) in relation to the transport of freight by railway -- 2 load or unload freight on or from rolling stock; 3 and 4 (d) the Regulator; and 5 (e) ONRSR; and 6 (f) the public. 7 (2) The level and nature of responsibility that a person referred to in 8 subsection (1), or falling within a class of person referred to in that 9 subsection, has for rail safety is dependent on the nature of the risk to 10 rail safety that the person creates from the carrying out of an activity 11 (or the making of a decision) and the capacity that person has to 12 control, eliminate or mitigate those risks. 13 (3) The persons and classes of persons referred to in subsection (1) 14 should -- 15 (a) participate in or be able to participate in; and 16 (b) be consulted on; and 17 (c) be involved in the formulation and implementation of, 18 measures to manage risks to safety associated with railway operations. 19 (4) Managing risks associated with the carrying out of rail infrastructure 20 operations or rolling stock operations is the responsibility of the 21 person best able to control those risks. 22 (5) If approaches to managing risks associated with any particular railway 23 have potential impacts on any other railway or a railway network of 24 which the railway is a part, the best practicable rail safety outcome 25 should be sought. 26 51. Principles applying to rail safety duties 27 (1) A duty under this Law cannot be transferred to another person. 28 (2) A person can have more than 1 duty under this Law by virtue of being 29 in more than 1 class of duty holder. 30 (3) More than 1 person can concurrently have the same duty under this 31 Law and each duty holder must comply with that duty to the standard 32 required by this Law even if another duty holder has the same duty. page 68 Rail Safety National Law (WA) Bill 2014 Rail Safety National Law Schedule Regulation of rail safety Part 3 s. 52 1 (4) If more than 1 person has a duty for the same matter, each person -- 2 (a) retains responsibility for the person's duty in relation to the 3 matter; and 4 (b) must discharge the person's duty to the extent to which the 5 person has the capacity to influence and control the matter (or 6 would have had that capacity but for an agreement or 7 arrangement purporting to limit or remove that capacity). 8 Subdivision 2 -- Duties 9 52. Duties of rail transport operators 10 (1) A rail transport operator must ensure, so far as is reasonably 11 practicable, the safety of the operator's railway operations. 12 (2) Without limiting subsection (1), a rail transport operator must ensure, 13 so far as is reasonably practicable -- 14 (a) that safe systems for the carrying out of the operator's 15 railway operations are developed and implemented; and 16 (b) that each rail safety worker who is to perform rail safety work 17 in relation to the operator's railway operations -- 18 (i) is of sufficient good health and fitness to carry out 19 that work safely; and 20 (ii) is competent to undertake that work; 21 and 22 (c) that rail safety workers do not carry out rail safety work in 23 relation to the operator's railway operations, and are not on 24 duty, while impaired by alcohol or a drug; and 25 (d) that rail safety workers who perform rail safety work in 26 relation to the operator's railway operations do not carry out 27 rail safety work while impaired by fatigue or if they may 28 become so impaired; and 29 (e) the provision of adequate facilities for the safety of persons at 30 any railway premises under the control or management of the 31 operator; and 32 (f) the provision of -- 33 (i) such information and instruction to, and training and 34 supervision of, rail safety workers as is necessary to page 69 Rail Safety National Law (WA) Bill 2014 Schedule Rail Safety National Law Part 3 Regulation of rail safety s. 52 1 enable those workers to perform rail safety work in 2 relation to the operator's railway operations in a way 3 that is safe; and 4 (ii) such information to rail transport operators and other 5 persons on railway premises under the control or 6 management of the operator as is necessary to enable 7 those persons to ensure their safety. 8 (3) Without limiting subsection (1), a rail infrastructure manager must 9 ensure, so far as is reasonably practicable -- 10 (a) the provision or maintenance of rail infrastructure that is safe; 11 and 12 (b) that any design, construction, commissioning, use, 13 installation, modification, maintenance, repair or 14 decommissioning of the manager's rail infrastructure is done 15 or carried out in a way that ensures the safety of railway 16 operations; and 17 (c) that systems and procedures for the scheduling, control and 18 monitoring of railway operations are established and 19 maintained so as to ensure the safety of the manager's 20 railway operations; and 21 (d) that communications systems and procedures are established 22 and maintained so as to ensure the safety of the manager's 23 railway operations. 24 (4) Without limiting subsection (1), a rolling stock operator must ensure, 25 so far as is reasonably practicable -- 26 (a) the provision or maintenance of rolling stock that is safe; and 27 (b) that any design, construction, commissioning, use, 28 modification, maintenance, repair or decommissioning of the 29 operator's rolling stock is done or carried out in a way that 30 ensures safety; and 31 (c) compliance with the rules and procedures for the scheduling, 32 control and monitoring of rolling stock that have been 33 established by a rail infrastructure manager in relation to the 34 use of the manager's rail infrastructure by the rolling stock 35 operator; and page 70 Rail Safety National Law (WA) Bill 2014 Rail Safety National Law Schedule Regulation of rail safety Part 3 s. 53 1 (d) that equipment, procedures and systems are established and 2 maintained so as to minimise risks to the safety of the 3 operator's railway operations; and 4 (e) that arrangements are made for ensuring safety in connection 5 with the use, operation and maintenance of the operator's 6 rolling stock; and 7 (f) that communications systems and procedures are established 8 and maintained so as to ensure the safety of the operator's 9 railway operations. 10 (5) This section applies to a person (other than a rail transport operator) 11 who carries out railway operations in the same way as it applies to a 12 rail transport operator, but does not apply if the person carries out 13 those operations as a rail safety worker or an employee. 14 53. Duties of designers, manufacturers, suppliers etc 15 (1) A person -- 16 (a) who designs, commissions, manufactures, supplies, installs or 17 erects any thing; and 18 (b) who knows, or ought reasonably to know, that the thing is to 19 be used as or in connection with rail infrastructure or rolling 20 stock, 21 must -- 22 (c) ensure, so far as is reasonably practicable, that the thing is 23 safe if it is used for a purpose for which it was designed, 24 commissioned, manufactured, supplied, installed or erected; 25 and 26 (d) ensure, so far as is reasonably practicable, that such testing 27 and examination of the thing as may be necessary for 28 compliance with this section is carried out; and 29 (e) take such action as is necessary to ensure, so far as is 30 reasonably practicable, that there will be available in 31 connection with the use of the thing adequate information 32 about -- 33 (i) the use for which the thing was designed, 34 commissioned, manufactured, supplied, installed or 35 erected; and page 71 Rail Safety National Law (WA) Bill 2014 Schedule Rail Safety National Law Part 3 Regulation of rail safety s. 54 1 (ii) the results of any testing or examination referred to in 2 paragraph (d); and 3 (iii) any conditions necessary to ensure, so far as is 4 reasonably practicable, that the thing is safe if it is 5 used for a purpose for which it was designed, 6 commissioned, manufactured, supplied, installed or 7 erected. 8 (2) For the purposes of subsection (1), if the person who supplies the 9 thing -- 10 (a) carries on the business of financing the acquisition of the 11 thing by customers; and 12 (b) has, in the course of that business, acquired an interest in the 13 thing solely for the purpose of financing its acquisition by a 14 customer from a third person or its provision to a customer by 15 a third person; and 16 (c) has not taken possession of the thing or has taken possession 17 of it solely for the purpose of passing possession to that 18 customer, 19 the reference in that subsection to the person who supplies that thing 20 is instead taken to be a reference to the third person. 21 (3) A person who decommissions any rail infrastructure or rolling stock 22 must ensure, so far as is reasonably practicable -- 23 (a) that the decommissioning is carried out safely; and 24 (b) such testing and examination as may be necessary for 25 compliance with this section is carried out. 26 54. Duties of persons loading or unloading freight 27 A person who loads or unloads freight on or from rolling stock in 28 relation to the transport of the freight by railway must ensure, so far as 29 is reasonably practicable, that the loading or unloading is carried out 30 safely and so as to ensure the safe operation of the rolling stock. 31 55. Duty of officers to exercise due diligence 32 (1) If a person has a duty or obligation under this Law, an officer of the 33 person must exercise due diligence to ensure that the person complies 34 with that duty or obligation. page 72 Rail Safety National Law (WA) Bill 2014 Rail Safety National Law Schedule Regulation of rail safety Part 3 s. 56 1 (2) An officer of a person referred to in subsection (1) may be convicted 2 or found guilty of an offence under this Law relating to a duty under 3 this section whether or not the person has been convicted or found 4 guilty of an offence under this Law relating to the duty or obligation. 5 (3) In this section -- 6 due diligence includes taking reasonable steps -- 7 (a) to acquire and keep up-to-date knowledge of rail safety 8 matters; and 9 (b) to gain an understanding of the nature of the railway 10 operations of the person and, generally, of the risks associated 11 with those operations; and 12 (c) to ensure that the person has available for use, and uses, 13 appropriate resources and processes to eliminate or minimise 14 risks to safety from the railway operations of the person; and 15 (d) to ensure that the person has appropriate processes for 16 receiving and considering information regarding incidents 17 and risks and responding in a timely way to that information; 18 and 19 (e) to ensure that the person has, and implements, processes for 20 complying with any duty or obligation of the person under 21 this Law; and 22 (f) to verify the provision and use of the resources and processes 23 referred to in paragraphs (c) to (e). 24 56. Duties of rail safety workers 25 (1) A rail safety worker must, when carrying out rail safety work -- 26 (a) take reasonable care for his or her own safety; and 27 (b) take reasonable care that his or her acts or omissions do not 28 adversely affect the safety of other persons; and 29 (c) comply, so far as the worker is reasonably able, with any 30 reasonable instruction given by the rail transport operator to 31 allow the operator to comply with this Law. page 73 Rail Safety National Law (WA) Bill 2014 Schedule Rail Safety National Law Part 3 Regulation of rail safety s. 57 1 (2) A rail safety worker must not, when carrying out rail safety work, 2 intentionally or recklessly interfere with or misuse anything provided 3 to the worker by the rail transport operator -- 4 (a) in the interests of safety; or 5 (b) under this Law. 6 (3) A rail safety worker must not, when carrying out rail safety work, 7 wilfully or recklessly place the safety of another person on or in the 8 immediate vicinity of rail infrastructure at risk. 9 (4) For the purposes of subsection (1)(a) or (b), in determining whether a 10 rail safety worker failed to take reasonable care, regard must be had as 11 to what the worker knew about the relevant circumstances. 12 Subdivision 3 -- Offences and penalties 13 57. Meaning of safety duty 14 In this Subdivision -- 15 safety duty means a duty imposed under Subdivision 2. 16 58. Failure to comply with safety duty -- reckless conduct -- 17 Category 1 18 (1) A person commits a Category 1 offence if -- 19 (a) the person has a safety duty; and 20 (b) the person, without reasonable excuse, engages in conduct 21 that exposes an individual to whom that duty is owed to a risk 22 of death or serious injury or illness; and 23 (c) the person is reckless as to the risk to an individual of death 24 or serious injury or illness. 25 Maximum penalty: 26 (a) in the case of an individual -- $300 000 or imprisonment 27 for 5 years, or both; 28 (b) in the case of a body corporate -- $3 000 000. 29 (2) The prosecution bears the burden of proving that the conduct was 30 engaged in without reasonable excuse. page 74 Rail Safety National Law (WA) Bill 2014 Rail Safety National Law Schedule Regulation of rail safety Part 3 s. 59 1 59. Failure to comply with safety duty -- Category 2 2 A person commits a Category 2 offence if -- 3 (a) the person has a safety duty; and 4 (b) the person fails to comply with that duty; and 5 (c) the failure exposes an individual to a risk of death or serious 6 injury or illness. 7 Maximum penalty: 8 (a) in the case of an individual -- $150 000; 9 (b) in the case of a body corporate -- $1 500 000. 10 60. Failure to comply with safety duty -- Category 3 11 A person commits a Category 3 offence if -- 12 (a) the person has a safety duty; and 13 (b) the person fails to comply with that duty. 14 Maximum penalty: 15 (a) in the case of an individual -- $50 000; 16 (b) in the case of a body corporate -- $500 000. 17 Division 4 -- Accreditation 18 Subdivision 1 -- Purpose and requirement for accreditation 19 61. Purpose of accreditation 20 The purpose of accreditation of a rail transport operator in respect of 21 railway operations is to attest that the rail transport operator has 22 demonstrated to the Regulator the competence and capacity to 23 manage risks to safety associated with those railway operations. 24 62. Accreditation required for railway operations 25 (1) A person must not carry out any railway operations unless the 26 person -- 27 (a) is a rail transport operator who -- 28 (i) is accredited under this Part in respect of those 29 operations; or page 75 Rail Safety National Law (WA) Bill 2014 Schedule Rail Safety National Law Part 3 Regulation of rail safety s. 63 1 (ii) is exempt under this Law from compliance with this 2 section in respect of those operations; 3 or 4 (b) is carrying out those operations for or on behalf of -- 5 (i) a rail transport operator who is accredited under this 6 Part in respect of those operations; or 7 (ii) a rail transport operator who is exempt under this 8 Law from compliance with this section in respect of 9 those operations; 10 or 11 (c) is exempt under this Law from compliance with this section 12 in respect of those operations. 13 Maximum penalty: 14 (a) in the case of an individual -- $150 000; 15 (b) in the case of a body corporate -- $1 500 000. 16 Note: If a body corporate and related bodies corporate are involved, an 17 exemption may be given so that only 1 of the bodies need be 18 accredited (related body corporate meaning related by virtue of 19 section 50 of the Corporations Act 2001 of the Commonwealth). 20 (2) Subsection (1) does not apply to a rail safety worker, not being a rail 21 transport operator, carrying out rail safety work for or on behalf of a 22 rail transport operator who -- 23 (a) is accredited under this Part; or 24 (b) is exempt under this Law from compliance with this section, 25 in relation to that rail safety work. 26 63. Purposes for which accreditation may be granted 27 (1) Accreditation may be granted to a rail transport operator for any 1 or 28 more of the following purposes -- 29 (a) for the carrying out of railway operations for the part or parts 30 of a railway specified in the accreditation, or for a part or 31 parts having the scope or characteristics so specified; 32 (b) for any service or aspect, or part of a service or aspect, of 33 railway operations specified in the accreditation; page 76 Rail Safety National Law (WA) Bill 2014 Rail Safety National Law Schedule Regulation of rail safety Part 3 s. 64 1 (c) for specified railway operations to permit any 1 or more of 2 the following -- 3 (i) construction of rail infrastructure; 4 (ii) restoration or repair work; 5 (iii) testing of railway tracks or other infrastructure; 6 (iv) other activities relating to railway operations 7 considered appropriate by the Regulator and specified 8 in the accreditation. 9 (2) Accreditation may be granted for railway operations carried out, or 10 proposed to be carried out, in 1 or more jurisdictions by a rail 11 transport operator. 12 (3) If the applicant so requests, accreditation may be granted for a 13 specified period only. 14 Subdivision 2 -- Procedures for granting accreditation 15 64. Application for accreditation 16 (1) A rail transport operator may apply to the Regulator for accreditation 17 in respect of specified railway operations carried out, or proposed to 18 be carried out, by or on behalf of that operator. 19 (2) An application must be made in the manner and form approved by the 20 Regulator and -- 21 (a) must specify the scope and nature of the railway operations in 22 respect of which accreditation is sought; and 23 (b) must include a description of the safety management system 24 (including a description of the measures to be taken to 25 manage identified risks) relating to those railway operations; 26 and 27 (c) must contain the prescribed information; and 28 (d) must be accompanied by the prescribed application fee. 29 (3) The Regulator may require a rail transport operator who has applied 30 for accreditation -- 31 (a) to supply further information requested by the Regulator; and 32 (b) to verify by statutory declaration any information supplied to 33 the Regulator. page 77 Rail Safety National Law (WA) Bill 2014 Schedule Rail Safety National Law Part 3 Regulation of rail safety s. 65 1 65. What applicant must demonstrate 2 The Regulator must not grant accreditation to an applicant unless 3 satisfied that the applicant has demonstrated -- 4 (a) that the applicant is, or is to be, a rail infrastructure manager 5 or rolling stock operator in respect of the railway operations 6 for which accreditation is sought; and 7 (b) that the applicant has the competence and capacity to manage 8 risks to safety associated with the railway operations for 9 which accreditation is sought; and 10 (c) that the applicant -- 11 (i) has the competence and capacity to implement the 12 proposed safety management system; and 13 (ii) has the financial capacity, or has public risk insurance 14 arrangements, to meet reasonable potential accident 15 liabilities arising from the railway operations; and 16 (iii) has met the consultation requirements set out in 17 Division 6 in relation to the applicant's safety 18 management system; and 19 (iv) has complied with the requirements prescribed by the 20 national regulations (if any) for the purposes of this 21 section. 22 66. Regulator may direct applicants to coordinate applications 23 (1) If the Regulator -- 24 (a) receives applications from 2 or more rail transport operators 25 for accreditation; and 26 (b) believes that coordinated preparation of the applications is 27 necessary to ensure railway operations of the applicants are 28 carried out safely, 29 the Regulator may give a direction in writing to each of the applicants 30 to coordinate their applications (a coordination direction). 31 (2) A coordination direction -- 32 (a) may be given to rail transport operators carrying out, or 33 proposing to carry out, railway operations in different 34 jurisdictions; and page 78 Rail Safety National Law (WA) Bill 2014 Rail Safety National Law Schedule Regulation of rail safety Part 3 s. 67 1 (b) may require each rail transport operator subject to the 2 direction to provide to each other rail transport operator 3 subject to the direction information concerning any 4 circumstances in relation to the carrying out of railway 5 operations by the first-mentioned operator that could 6 constitute a risk to safety in relation to the carrying out of 7 railway operations by another operator subject to the 8 direction. 9 (3) A rail transport operator to whom a coordination direction has been 10 given under this section must comply with the direction. 11 Maximum penalty: 12 (a) in the case of an individual -- $5 000; 13 (b) in the case of a body corporate -- $25 000. 14 (4) A rail transport operator who has coordinated the preparation of an 15 application with other rail transport operators in accordance with a 16 coordination direction under this section must include in the 17 application reference to -- 18 (a) information given by the operator to each other operator 19 subject to the direction; and 20 (b) information given to the operator by each other operator 21 subject to the direction. 22 Maximum penalty: 23 (a) in the case of an individual -- $5 000; 24 (b) in the case of a body corporate -- $25 000. 25 67. Determination of application 26 (1) Subject to this section, the Regulator must, within the relevant 27 period -- 28 (a) if the Regulator is satisfied as to the matters referred to in 29 section 65 and (if applicable) section 66 -- notify the 30 applicant that accreditation has been granted, with or without 31 conditions or restrictions; or 32 (b) if the Regulator is not so satisfied -- notify the applicant that 33 the application has been refused. page 79 Rail Safety National Law (WA) Bill 2014 Schedule Rail Safety National Law Part 3 Regulation of rail safety s. 67 1 (2) Accreditation under this Law is subject to -- 2 (a) any conditions or restrictions prescribed by the national 3 regulations for the purposes of this section that are applicable 4 to the accreditation; and 5 (b) any other condition or restriction imposed on the 6 accreditation by the Regulator. 7 (3) Before imposing a condition or restriction on the accreditation of an 8 applicant, the Regulator must, if the imposition of the intended 9 condition or restriction is likely to result in significant costs or 10 expenses to the applicant or any other person -- 11 (a) conduct or cause to be conducted a cost-benefit analysis of 12 the effect of imposing the intended condition or restriction on 13 the accreditation; and 14 (b) consult with the Premier or Chief Minister, the Treasurer, and 15 any other Minister, of a participating jurisdiction whose area 16 of responsibility is likely to be affected by the imposition of 17 the intended condition or restriction on the accreditation. 18 (4) Notification under this section -- 19 (a) must be in writing and given to the applicant; and 20 (b) if accreditation has been granted, must specify -- 21 (i) the prescribed details of the applicant; and 22 (ii) the scope and nature of the railway operations, and 23 the manner in which they are to be carried out, in 24 respect of which the accreditation is granted; and 25 (iii) any condition or restriction imposed by the Regulator 26 under this section on the grant of accreditation; and 27 (iv) any other prescribed information; 28 and 29 (c) if a condition or restriction has been imposed on the 30 accreditation, must include -- 31 (i) the reasons for imposing the condition or restriction, 32 including (if applicable) the results of any 33 cost-benefit analysis carried out under this section; 34 and page 80 Rail Safety National Law (WA) Bill 2014 Rail Safety National Law Schedule Regulation of rail safety Part 3 s. 68 1 (ii) information about the right of review under Part 7; 2 and 3 (d) if the application has been refused, must include -- 4 (i) the reasons for the decision to refuse to grant the 5 application; and 6 (ii) information about the right of review under Part 7; 7 and 8 (e) if the relevant period in relation to the application has been 9 extended, must include information about the right of review 10 under Part 7. 11 (5) In this section -- 12 relevant period, in relation to an application, means -- 13 (a) 6 months after the application was received by the Regulator; 14 or 15 (b) if the Regulator requested further information, 6 months, or 16 such other period, as is agreed between the Regulator and the 17 applicant, after the Regulator receives the last information so 18 requested; or 19 (c) if the Regulator, by written notice given to the applicant 20 before the expiry of the relevant 6 months, specifies another 21 period, that period, 22 whichever is the longer. 23 Subdivision 3 -- Variation of accreditation 24 68. Application for variation of accreditation 25 (1) An accredited person may, at any time, apply to the Regulator for 26 variation of the accreditation. 27 (2) An accredited person must apply to the Regulator for variation of the 28 accreditation if -- 29 (a) the applicant proposes to vary the scope and nature of the 30 railway operations in respect of which the applicant is 31 accredited; or page 81 Rail Safety National Law (WA) Bill 2014 Schedule Rail Safety National Law Part 3 Regulation of rail safety s. 69 1 (b) the applicant no longer has the competence or capacity to 2 manage risks to safety associated with the railway operations 3 in respect of which the applicant is accredited; or 4 (c) any other variation is proposed in respect of the railway 5 operations in respect of which the applicant is accredited that 6 should be reflected in the accreditation. 7 (3) An application for variation must be made in the manner and form 8 approved by the Regulator and -- 9 (a) must specify the details of the variation being sought; and 10 (b) must contain the prescribed information; and 11 (c) must be accompanied by the prescribed application fee. 12 (4) The Regulator may require an accredited person who has applied for a 13 variation -- 14 (a) to supply further information requested by the Regulator; and 15 (b) to verify by statutory declaration any information supplied to 16 the Regulator. 17 (5) Section 66 applies to an application for variation as if a reference in 18 that section to accreditation were a reference to variation of 19 accreditation. 20 69. Determination of application for variation 21 (1) Subject to this section, the Regulator must, within the relevant 22 period -- 23 (a) if the Regulator is satisfied as to the matters referred to in 24 sections 65 and 66 (so far as they are applicable to the 25 proposed variation) -- notify the applicant that the 26 accreditation has been varied, with or without conditions or 27 restrictions; or 28 (b) if the Regulator is not so satisfied -- notify the applicant that 29 the application has been refused. 30 (2) Notification under this section -- 31 (a) must be in writing and given to the applicant; and 32 (b) if the accreditation has been varied, must specify -- 33 (i) the prescribed details of the applicant; and page 82 Rail Safety National Law (WA) Bill 2014 Rail Safety National Law Schedule Regulation of rail safety Part 3 s. 69 1 (ii) the variation to the accreditation so far as it applies to 2 the scope and nature of the railway operations, or the 3 manner in which they are to be carried out; and 4 (iii) any conditions and restrictions imposed by the 5 Regulator on the accreditation as varied; and 6 (iv) any other prescribed information; 7 and 8 (c) if a condition or restriction has been imposed on the 9 accreditation as varied, must include -- 10 (i) the reasons for imposing the condition or restriction; 11 and 12 (ii) information about the right of review under Part 7; 13 and 14 (d) if the application to vary an accreditation has been refused, 15 must include -- 16 (i) the reasons for the decision to refuse to grant the 17 application; and 18 (ii) information about the right of review under Part 7; 19 and 20 (e) if the relevant period in relation to an application has been 21 extended, must include information about the right of review 22 under Part 7. 23 (3) In this section -- 24 relevant period, in relation to an application, means -- 25 (a) 6 months after the application was received by the Regulator; 26 or 27 (b) if the Regulator requested further information, 6 months, or 28 such other period, as is agreed between the Regulator and the 29 applicant, after the Regulator receives the last information so 30 requested; or 31 (c) if the Regulator, by written notice given to the applicant 32 before the expiry of the relevant 6 months, specifies another 33 period, that period, 34 whichever is the longer. page 83 Rail Safety National Law (WA) Bill 2014 Schedule Rail Safety National Law Part 3 Regulation of rail safety s. 70 1 70. Prescribed conditions and restrictions 2 The accreditation of a person that is varied under this Part is subject to 3 any conditions or restrictions prescribed by the national regulations 4 that are applicable to the accreditation as varied. 5 71. Variation of conditions and restrictions 6 (1) An accredited person may, at any time, apply to the Regulator for a 7 variation of a condition or restriction imposed by the Regulator to 8 which the accreditation is subject. 9 (2) An application for variation of a condition or restriction must be made 10 as if it were an application for variation of accreditation (and 11 section 68 applies accordingly). 12 (3) The Regulator must consider the application and, if satisfied as to the 13 matters referred to in sections 65 and 66 (so far as they are applicable 14 to the proposed variation), notify the accredited person in accordance 15 with the provisions of this Division applicable to a grant of 16 accreditation (so far as is practicable) that the variation has been 17 granted or refused. 18 (4) Notification under subsection (3) that a variation has been refused 19 must include the reasons for the decision to refuse to grant the 20 variation and information about the right of review under Part 7. 21 72. Regulator may make changes to conditions or restrictions 22 (1) The Regulator may, subject to this section, at any time, vary or revoke 23 a condition or restriction imposed by the Regulator to which the 24 accreditation of an accredited person is subject or impose a new 25 condition or restriction. 26 (2) Before taking action under this section, the Regulator must -- 27 (a) give the accredited person written notice of the action that the 28 Regulator proposes to take; and 29 (b) allow the accredited person to make written representations 30 about the intended action within 28 days (or any other period 31 that the Regulator and the accredited person agree on); and 32 (c) consider any representations made under paragraph (b) and 33 not withdrawn; and page 84 Rail Safety National Law (WA) Bill 2014 Rail Safety National Law Schedule Regulation of rail safety Part 3 s. 73 1 (d) if the intended action is likely to result in significant costs or 2 expenses to the accredited person or any other person -- 3 (i) conduct or cause to be conducted a cost-benefit 4 analysis of the effect of the intended action; and 5 (ii) consult with the Premier or Chief Minister, the 6 Treasurer, and any other Minister, of a participating 7 jurisdiction whose area of responsibility is likely to 8 be affected by the intended action. 9 (3) Subsection (2)(d) does not apply if the Regulator considers it 10 necessary to take immediate action in the interests of safety but, if the 11 action is likely to result in significant costs or expenses to the 12 accredited person or any other person, the Regulator must, as soon as 13 practicable after taking the action -- 14 (a) conduct or cause to be conducted a cost-benefit analysis of 15 the effect of the action; and 16 (b) consult with the Premier or Chief Minister, the Treasurer, and 17 any other Minister, of a participating jurisdiction whose area 18 of responsibility is likely to be affected by the action. 19 (4) The Regulator must, by written notice given to the accredited person, 20 provide -- 21 (a) details of any action taken under this section; and 22 (b) a statement of reasons for any action taken under this section, 23 including (if applicable) the results of any cost-benefit 24 analysis carried out; and 25 (c) information about the right of review under Part 7. 26 Subdivision 4 -- Revocation, suspension or surrender of accreditation 27 73. Revocation or suspension of accreditation 28 (1) This section applies in respect of an accredited person if -- 29 (a) the Regulator considers that the accredited person -- 30 (i) is no longer able to demonstrate to the satisfaction of 31 the Regulator the matters referred to in section 65 or 32 to satisfy the conditions, or to comply with the 33 restrictions, of the accreditation; or page 85 Rail Safety National Law (WA) Bill 2014 Schedule Rail Safety National Law Part 3 Regulation of rail safety s. 73 1 (ii) is not managing the rail infrastructure, or is not 2 operating rolling stock in relation to any rail 3 infrastructure, to which the accreditation relates and 4 has not done so for at least the preceding 12 months; 5 or 6 (b) the accredited person contravenes this Law. 7 (2) The Regulator may -- 8 (a) suspend the accreditation, or part of the accreditation, of the 9 accredited person for a period determined by the Regulator; 10 or 11 (b) revoke the accreditation of the accredited person, wholly or in 12 part, or in respect of particular railway operations specified in 13 the notice, with immediate effect or with effect from a 14 specified future date; or 15 (c) impose conditions or restrictions on the accreditation; or 16 (d) vary conditions or restrictions to which the accreditation is 17 subject, 18 and, if the Regulator revokes the accreditation, the Regulator may 19 declare that the accredited person is disqualified from applying for 20 accreditation, or for accreditation in respect of specified railway 21 operations, during a specified period. 22 (3) Before making a decision under subsection (2), the Regulator -- 23 (a) must notify the person in writing -- 24 (i) that the Regulator is considering making a decision 25 under subsection (2) of the kind, and for the reasons, 26 specified in the notice; and 27 (ii) that the person may, within 28 days or such longer 28 period as is specified in the notice, make written 29 representations to the Regulator showing cause why 30 the decision should not be made; 31 and 32 (b) must consider any representations made under 33 paragraph (a)(ii) and not withdrawn. 34 (4) If the Regulator suspends or revokes the accreditation of the 35 accredited person, wholly or in part, or in respect of specified railway page 86 Rail Safety National Law (WA) Bill 2014 Rail Safety National Law Schedule Regulation of rail safety Part 3 s. 73 1 operations, the Regulator must include in the notice of suspension or 2 revocation the reasons for the suspension or revocation and 3 information about the right of review under Part 7. 4 (5) The Regulator may withdraw a suspension of the accreditation of a 5 person by written notice given to the person. page 87 Rail Safety National Law (WA) Bill 2014 Schedule Rail Safety National Law Part 3 Regulation of rail safety s. 74 1 74. Immediate suspension of accreditation 2 (1) If the Regulator considers that there is, or would be, an immediate and 3 serious risk to safety unless an accreditation is suspended 4 immediately, the Regulator may, without complying with 5 section 73(3) or (4), by written notice given to the accredited person, 6 immediately suspend the accreditation of the person -- 7 (a) wholly or in part, or in respect of particular railway 8 operations specified in the notice; and 9 (b) for a specified period, not exceeding 6 weeks. 10 (2) The Regulator may, by written notice given to a person whose 11 accreditation is suspended, wholly or in part, or in respect of 12 particular railway operations -- 13 (a) reduce the period of suspension specified in a notice under 14 subsection (1); or 15 (b) extend the period of suspension specified in a notice under 16 subsection (1) but not so that the suspension continues for 17 more than 6 weeks after the date of the notice under that 18 subsection. 19 (3) The Regulator may withdraw a suspension of the accreditation of a 20 person by written notice given to the person. 21 (4) Before making a decision under subsection (2)(b) to extend a period 22 of suspension, the Regulator -- 23 (a) must notify the person in writing -- 24 (i) that the Regulator is considering extending the period 25 of suspension for the reasons specified in the notice; 26 and 27 (ii) that the person may, within 7 days or such longer 28 period as is specified in the notification, make written 29 representations to the Regulator showing cause why 30 the suspension should not be extended; 31 and 32 (b) must consider any representations made under 33 paragraph (a)(ii) and not withdrawn. page 88 Rail Safety National Law (WA) Bill 2014 Rail Safety National Law Schedule Regulation of rail safety Part 3 s. 75 1 (5) If the Regulator extends the suspension of the person, the Regulator 2 must notify the person in writing that the suspension is being 3 extended and include in the notice the reasons for the extension and 4 information about the right of review under Part 7. 5 75. Surrender of accreditation 6 (1) Accreditation may only be surrendered in accordance with this 7 section. 8 (2) If an accredited person intends to surrender accreditation, the 9 accredited person must -- 10 (a) give the Regulator written notice of the intention to surrender 11 the accreditation; and 12 (b) provide the Regulator with details as to the arrangements 13 proposed in relation to the cessation of the person's railway 14 operations. 15 (3) If the Regulator is satisfied as to the arrangements proposed in 16 relation to the cessation of the accredited person's railway operations, 17 the Regulator must, as soon as reasonably practicable, by written 18 notice given to the person, inform the person that the person's 19 accreditation may be surrendered in accordance with the proposed 20 arrangements on the date specified in the notice. 21 (4) If the Regulator is not satisfied as to the arrangements proposed in 22 relation to the cessation of the accredited person's railway operations, 23 the Regulator must, as soon as reasonably practicable, by written 24 notice given to the person, inform the person -- 25 (a) that the Regulator is not satisfied as to the proposed 26 arrangements; and 27 (b) of the reasons for the Regulator's dissatisfaction; and 28 (c) that the person's accreditation may not be surrendered until 29 the Regulator is satisfied as to the proposed arrangements. 30 Subdivision 5 -- Miscellaneous 31 76. Annual fees 32 (1) An accredited person must pay the annual fee prescribed by the 33 national regulations. page 89 Rail Safety National Law (WA) Bill 2014 Schedule Rail Safety National Law Part 3 Regulation of rail safety s. 77 1 (2) The annual fee must be paid by an accredited person at the time 2 accreditation is granted and thereafter on an annual basis on or before 3 the prescribed date. 4 (3) However, the Regulator may accept payment of an annual fee in 5 accordance with an agreement (that provides, for example, for the 6 payment of fees by instalments) made with the person who is liable to 7 pay the fee. 8 (4) The national regulations may -- 9 (a) fix different fees for different kinds of accreditations; and 10 (b) fix various methods for the calculation of various fees; and 11 (c) fix fees which may be differential, varying according to any 12 factor determined by the Regulator; and 13 (d) impose additional fees for the late payment of fees under this 14 section. 15 77. Waiver of fees 16 The Regulator may waive, or refund, the whole or part of any fee 17 payable under this Division. 18 78. Penalty for breach of condition or restriction 19 An accredited person must not contravene a condition or restriction of 20 accreditation applying under this Part. 21 Maximum penalty: 22 (a) in the case of an individual -- $150 000; 23 (b) in the case of a body corporate -- $1 500 000. 24 79. Accreditation cannot be transferred or assigned 25 (1) An accreditation -- 26 (a) is personal to the person who holds it; and 27 (b) is not capable of being transferred or assigned to any other 28 person or otherwise dealt with by the person who holds it; 29 and 30 (c) does not vest by operation of law in any other person. page 90 Rail Safety National Law (WA) Bill 2014 Rail Safety National Law Schedule Regulation of rail safety Part 3 s. 80 1 (2) A purported transfer or assignment of an accreditation or any other 2 purported dealing with an accreditation by the person who holds it is 3 of no effect. 4 (3) This section has effect despite anything in this Law, an Act or a rule 5 of law to the contrary. 6 80. Sale or transfer of railway operations by accredited person 7 (1) If an accredited person proposes to sell or otherwise transfer any 8 railway operations for which the person is accredited, the Regulator 9 may, on an application for accreditation being made by the proposed 10 transferee, waive compliance by the proposed transferee with any 1 or 11 more of the requirements of this Part. 12 (2) However, the Regulator must not waive compliance with any such 13 requirements unless the proposed transferee demonstrates, to the 14 satisfaction of the Regulator, that the proposed transferee has the 15 competence and capacity to comply with the relevant requirements of 16 this Part that apply to applicants for accreditation of the appropriate 17 kind. 18 (3) A waiver of compliance with requirements may be given subject to 19 such conditions and restrictions (if any) as appear to the Regulator to 20 be necessary. 21 81. Keeping and making available records for public inspection 22 (1) A person must ensure that -- 23 (a) if the person is an accredited person or has an exemption 24 under this Law -- the current notice of accreditation or 25 exemption; and 26 (b) any other document prescribed by the national regulations for 27 the purposes of this section, 28 are available for inspection -- 29 (c) if the person is a body corporate -- at the person's registered 30 office during ordinary business hours; 31 (d) if the person is not a body corporate -- at the person's 32 principal place of business during ordinary business hours page 91 Rail Safety National Law (WA) Bill 2014 Schedule Rail Safety National Law Part 3 Regulation of rail safety s. 82 1 (or, if the Regulator approves another place and time, at that 2 place and time). 3 Maximum penalty: 4 (a) in the case of an individual -- $5 000; 5 (b) in the case of a body corporate -- $25 000. 6 (2) A person who is required under subsection (1) to make available 7 documents for inspection must maintain a register of those documents 8 for inspection. 9 Maximum penalty: 10 (a) in the case of an individual -- $5 000; 11 (b) in the case of a body corporate -- $25 000. 12 Division 5 -- Registration of rail infrastructure managers of private sidings 13 Subdivision 1 -- Exemptions relating to certain private sidings 14 82. Exemption from accreditation in respect of certain private sidings 15 (1) A rail infrastructure manager of a private siding is not required to be 16 accredited under this Part in respect of railway operations (other than 17 those involving the operation of rolling stock) carried out in the 18 private siding. 19 (2) Subject to section 83(2), a rail infrastructure manager of a private 20 siding is not required to comply with Division 6, Division 7 or 21 Division 8 of this Part in relation to the private siding in respect of 22 railway operations (other than those involving the operation of rolling 23 stock) carried out in the private siding. 24 83. Requirement for managers of certain private sidings to be 25 registered 26 (1) A rail infrastructure manager of a private siding that is to be (or 27 continue to be) connected with, or to have access to, a railway of an 28 accredited person or another private siding, must be registered in 29 respect of the private siding in accordance with this Division. 30 Maximum penalty: 31 (a) in the case of an individual -- $20 000; 32 (b) in the case of a body corporate -- $100 000. page 92 Rail Safety National Law (WA) Bill 2014 Rail Safety National Law Schedule Regulation of rail safety Part 3 s. 84 1 (2) A rail infrastructure manager of a private siding that is to be (or 2 continue to be) connected with, or to have access to, a railway of an 3 accredited person or another private siding must -- 4 (a) comply with the requirements of Division 6 Subdivision 2 of 5 this Part insofar as they are relevant to the railway operations 6 carried out in the private siding; and 7 (b) seek to enter into an interface agreement with the accredited 8 person or rail infrastructure manager of the other private 9 siding (as the case may be). 10 Maximum penalty: 11 (a) in the case of an individual -- $20 000; 12 (b) in the case of a body corporate -- $100 000. 13 Subdivision 2 -- Procedures for granting registration 14 84. Application for registration 15 (1) A rail infrastructure manager of a private siding to which section 83 16 applies may apply to the Regulator for registration in respect of the 17 private siding. 18 (2) An application must be made in the manner and form approved by the 19 Regulator and -- 20 (a) must contain -- 21 (i) details about the scale and complexity of the private 22 siding; and 23 (ii) details about the extent of the railway track layout 24 and other rail infrastructure of the private siding; and 25 (iii) details about the railway operations to be carried out 26 in the private siding; and 27 (iv) if the private siding is to be (or continue to be) 28 connected with, or to have access to -- 29 (A) a railway of an accredited person -- the 30 prescribed details about the railway and the 31 accredited person; or page 93 Rail Safety National Law (WA) Bill 2014 Schedule Rail Safety National Law Part 3 Regulation of rail safety s. 85 1 (B) another private siding -- the prescribed 2 details about that siding and the rail 3 infrastructure manager of that siding; 4 and 5 (v) any other prescribed information; 6 and 7 (b) must be accompanied by the prescribed application fee. 8 (3) The Regulator may require an applicant for registration -- 9 (a) to supply further information requested by the Regulator; and 10 (b) to verify by statutory declaration any information supplied to 11 the Regulator. 12 85. What applicant must demonstrate 13 The Regulator must not grant registration to an applicant unless 14 satisfied that the applicant has demonstrated -- 15 (a) that the applicant is, or is to be, the rail infrastructure 16 manager of the private siding; and 17 (b) that the railway operations to be carried out (or continue to be 18 carried out) in the private siding are such that registration of 19 the applicant (rather than accreditation of the applicant in 20 respect of the railway operations) is, in the opinion of the 21 Regulator, the appropriate action; and 22 (c) that the applicant has complied with the requirements 23 prescribed by the national regulations (if any) for the 24 purposes of this section. 25 86. Determination of application 26 (1) Subject to this section, the Regulator must, within the relevant 27 period -- 28 (a) if the Regulator is satisfied as to the matters referred to in 29 section 85 -- notify the applicant that registration has been 30 granted, with or without conditions or restrictions; or 31 (b) if the Regulator is not so satisfied -- notify the applicant that 32 the application has been refused. page 94 Rail Safety National Law (WA) Bill 2014 Rail Safety National Law Schedule Regulation of rail safety Part 3 s. 86 1 (2) Registration under this Law is subject to -- 2 (a) any conditions or restrictions prescribed by the national 3 regulations for the purposes of this section; and 4 (b) any other condition or restriction imposed on the registration 5 by the Regulator. 6 (3) Notification under this section -- 7 (a) must be in writing and given to the applicant; and 8 (b) if registration has been granted, must specify -- 9 (i) the prescribed details of the applicant; and 10 (ii) the prescribed details of the private siding; and 11 (iii) any conditions and restrictions imposed by the 12 Regulator on the registration; and 13 (iv) any other prescribed information; 14 and 15 (c) if a condition or restriction has been imposed on the 16 registration, must include -- 17 (i) the reasons for imposing the condition or restriction; 18 and 19 (ii) information about the right of review under Part 7; 20 and 21 (d) if the application has been refused, must include -- 22 (i) the reasons for the decision to refuse to grant the 23 application; and 24 (ii) information about the right of review under Part 7; 25 and 26 (e) if the relevant period in relation to the application has been 27 extended, must include information about the right of review 28 under Part 7. 29 (4) In this section -- 30 relevant period, in relation to an application, means -- 31 (a) 6 months after the application was received by the Regulator; 32 or page 95 Rail Safety National Law (WA) Bill 2014 Schedule Rail Safety National Law Part 3 Regulation of rail safety s. 87 1 (b) if the Regulator requested further information, 6 months, or 2 such other period, as is agreed between the Regulator and the 3 applicant, after the Regulator receives the last information so 4 requested; or 5 (c) if the Regulator, by written notice given to the applicant 6 before the expiry of the relevant 6 months, specifies another 7 period, that period, 8 whichever is the longer. 9 Subdivision 3 -- Variation of registration 10 87. Application for variation of registration 11 (1) A registered person may, at any time, apply to the Regulator for a 12 variation of the registration. 13 (2) A registered person must apply to the Regulator for a variation of the 14 registration if -- 15 (a) the applicant proposes to vary the scale and complexity of the 16 private siding in respect of which the applicant is registered; 17 or 18 (b) the applicant proposes to vary the railway operations to be 19 carried out in the private siding in respect of which the 20 applicant is registered; or 21 (c) any other variation is proposed in relation to the private 22 siding in respect of which the applicant is registered that 23 should be reflected in the registration. 24 (3) An application for variation must be made in the manner and form 25 approved by the Regulator and -- 26 (a) must specify the details of the variation being sought; and 27 (b) must contain the prescribed information; and 28 (c) must be accompanied by the prescribed application fee. 29 (4) The Regulator may require a registered person who has applied for a 30 variation under this section -- 31 (a) to supply further information requested by the Regulator; and 32 (b) to verify by statutory declaration any information supplied to 33 the Regulator. page 96 Rail Safety National Law (WA) Bill 2014 Rail Safety National Law Schedule Regulation of rail safety Part 3 s. 88 1 88. Determination of application for variation 2 (1) Subject to this section, the Regulator must, within the relevant 3 period -- 4 (a) if the Regulator is satisfied as to the matters referred to in 5 section 85 (so far as they are applicable to the proposed 6 variation), notify the applicant that registration has been 7 varied, with or without conditions or restrictions; or 8 (b) if the Regulator is not so satisfied -- notify the applicant that 9 the application has been refused. 10 (2) Notification under this section -- 11 (a) must be in writing and given to the applicant; and 12 (b) if registration has been varied, must specify -- 13 (i) the prescribed details of the applicant; and 14 (ii) the variation to the registration; and 15 (iii) any conditions and restrictions imposed by the 16 Regulator on the registration as varied; and 17 (iv) any other prescribed information; 18 and 19 (c) if a condition or restriction has been imposed on the 20 registration as varied, must include -- 21 (i) the reasons for imposing the condition or restriction; 22 and 23 (ii) information about the right of review under Part 7; 24 and 25 (d) if the application has been refused, must include -- 26 (i) the reasons for the decision to refuse to grant the 27 application; and 28 (ii) information about the right of review under Part 7; 29 and 30 (e) if the relevant period in relation to an application has been 31 extended, must include information about the right of review 32 under Part 7. page 97 Rail Safety National Law (WA) Bill 2014 Schedule Rail Safety National Law Part 3 Regulation of rail safety s. 89 1 (3) In this section -- 2 relevant period, in relation to an application, means -- 3 (a) 6 months after the application was received by the Regulator; 4 or 5 (b) if the Regulator requested further information, 6 months, or 6 such other period, as is agreed between the Regulator and the 7 applicant, after the Regulator receives the last information so 8 requested; or 9 (c) if the Regulator, by written notice given to the applicant 10 before the expiry of the relevant 6 months, specifies another 11 period, that period, 12 whichever is the longer. 13 89. Prescribed conditions and restrictions 14 The registration of a person that is varied under this Division is 15 subject to any conditions or restrictions prescribed by the national 16 regulations that are applicable to the registration as varied. 17 90. Variation of conditions and restrictions 18 (1) A registered person may, at any time, apply to the Regulator for a 19 variation of a condition or restriction imposed by the Regulator to 20 which the registration is subject. 21 (2) An application for variation of a condition or restriction must be made 22 as if it were an application for variation of registration (and section 87 23 applies accordingly). 24 (3) The Regulator must consider the application and, if satisfied as to the 25 matters referred to in section 86 (so far as they are applicable to the 26 proposed variation), notify the registered person in accordance with 27 the provisions of this Division applicable to a grant of registration (so 28 far as is practicable), that the variation has been granted or refused. 29 (4) Notification under subsection (3) that a variation has been refused 30 must include the reasons for the decision to refuse to grant the 31 variation and information about the right of review under Part 7. page 98 Rail Safety National Law (WA) Bill 2014 Rail Safety National Law Schedule Regulation of rail safety Part 3 s. 91 1 91. Regulator may make changes to conditions or restrictions 2 (1) The Regulator may, subject to this section, at any time, vary or revoke 3 a condition or restriction imposed by the Regulator to which the 4 registration of a registered person is subject or impose a new 5 condition or restriction. 6 (2) Before taking action under this section, the Regulator must -- 7 (a) give the registered person written notice of the action that the 8 Regulator proposes to take; and 9 (b) allow the registered person to make written representations 10 about the intended action within 28 days (or any other period 11 that the Regulator and the registered person agree on); and 12 (c) consider any representations made under paragraph (b) and 13 not withdrawn. 14 (3) Subsection (2) does not apply if the Regulator considers it necessary 15 to take immediate action in the interests of safety. 16 (4) The Regulator must, by written notice given to the registered person, 17 provide -- 18 (a) details of any action taken under subsection (1); and 19 (b) a statement of reasons for any action taken under 20 subsection (1); and 21 (c) information about the right of review under Part 7. 22 Subdivision 4 -- Revocation, suspension or surrender of registration 23 92. Revocation or suspension of registration 24 (1) This section applies in respect of a registered person if -- 25 (a) the Regulator considers that the registered person -- 26 (i) is no longer able to demonstrate to the satisfaction of 27 the Regulator the matters referred to in section 85 or 28 to satisfy the conditions, or to comply with the 29 restrictions, of the registration; or 30 (ii) is not controlling or managing the private siding and 31 has not done so for at least the preceding 12 months; 32 or page 99 Rail Safety National Law (WA) Bill 2014 Schedule Rail Safety National Law Part 3 Regulation of rail safety s. 93 1 (b) the registered person contravenes this Law. 2 (2) The Regulator may -- 3 (a) suspend the registration of the registered person for a period 4 determined by the Regulator; or 5 (b) revoke the registration of the registered person with 6 immediate effect or with effect from a specified future date; 7 or 8 (c) impose conditions or restrictions on the registration; or 9 (d) vary conditions or restrictions to which the registration is 10 subject. 11 (3) Before making a decision under subsection (2), the Regulator -- 12 (a) must notify the person in writing -- 13 (i) that the Regulator is considering making a decision 14 under subsection (2) of the kind, and for the reasons, 15 specified in the notice; and 16 (ii) that the person may, within 28 days or such longer 17 period as is specified in the notice, make written 18 representations to the Regulator showing cause why 19 the decision should not be made; 20 and 21 (b) must consider any representations made under 22 paragraph (a)(ii) and not withdrawn. 23 (4) If the Regulator suspends or revokes the registration of the registered 24 person, the Regulator must include in the notice of suspension or 25 revocation the reasons for the suspension or revocation and 26 information about the right of review under Part 7. 27 (5) The Regulator may withdraw a suspension of the registration of a 28 person by written notice given to the person. 29 93. Immediate suspension of registration 30 (1) If the Regulator considers that there is, or would be, an immediate and 31 serious risk to safety unless a registration is suspended immediately, 32 the Regulator may, without complying with section 92(3) or (4), by 33 written notice given to the registered person, immediately suspend the page 100 Rail Safety National Law (WA) Bill 2014 Rail Safety National Law Schedule Regulation of rail safety Part 3 s. 94 1 registration of the person for a specified period, not exceeding 2 6 weeks. 3 (2) The Regulator may, by written notice given to a person whose 4 registration is suspended -- 5 (a) reduce the period of suspension specified in a notice under 6 subsection (1); or 7 (b) extend the period of suspension specified in a notice under 8 subsection (1) but not so that the suspension continues for 9 more than 6 weeks after the date of the notice under that 10 subsection. 11 (3) The Regulator may withdraw a suspension of the registration of a 12 person by written notice given to the person. 13 (4) Before making a decision under subsection (2)(b) to extend a period 14 of suspension, the Regulator -- 15 (a) must notify the person in writing -- 16 (i) that the Regulator is considering extending the period 17 of suspension for the reasons specified in the 18 notification; and 19 (ii) that the person may, within 7 days or such longer 20 period as is specified in the notification, make written 21 representations to the Regulator showing cause why 22 the suspension should not be extended; 23 and 24 (b) must consider any representations made under 25 paragraph (a)(ii) and not withdrawn. 26 (5) If the Regulator extends the suspension of the person, the Regulator 27 must notify the person in writing that the suspension is being 28 extended and include in the notice the reasons for the extension and 29 information about the right of review under Part 7. 30 94. Surrender of registration 31 (1) Registration may only be surrendered in accordance with this section. page 101 Rail Safety National Law (WA) Bill 2014 Schedule Rail Safety National Law Part 3 Regulation of rail safety s. 95 1 (2) If a registered person intends to surrender registration, the registered 2 person must -- 3 (a) give the Regulator written notice of the intention to surrender 4 the registration; and 5 (b) provide the Regulator with details as to the arrangements 6 proposed in relation to the cessation of the person's railway 7 operations in respect of the private siding. 8 (3) If the Regulator is satisfied as to the arrangements proposed in 9 relation to the cessation of the registered person's railway operations, 10 the Regulator must, as soon as reasonably practicable, by written 11 notice given to the person, inform the person that the person's 12 registration may be surrendered in accordance with the proposed 13 arrangements on the date specified in the notice. 14 (4) If the Regulator is not satisfied as to the arrangements proposed in 15 relation to the cessation of the registered person's railway operations, 16 the Regulator must, as soon as reasonably practicable, by written 17 notice given to the person, inform the person -- 18 (a) that the Regulator is not satisfied as to the proposed 19 arrangements; and 20 (b) of the reasons for the Regulator's dissatisfaction; and 21 (c) that the person's registration may not be surrendered until the 22 Regulator is satisfied as to the proposed arrangements. 23 Subdivision 5 -- Miscellaneous 24 95. Annual fees 25 (1) A registered person must pay the annual fee prescribed by the national 26 regulations. 27 (2) The annual fee must be paid by a registered person at the time 28 registration is granted and thereafter on an annual basis on or before 29 the prescribed date. 30 (3) However, the Regulator may accept payment of an annual fee in 31 accordance with an agreement (that provides, for example, for the 32 payment of fees by instalments) made with the person who is liable to 33 pay the fee. page 102 Rail Safety National Law (WA) Bill 2014 Rail Safety National Law Schedule Regulation of rail safety Part 3 s. 96 1 (4) The national regulations may -- 2 (a) fix different fees for different kinds of registration; and 3 (b) fix various methods for the calculation of various fees; and 4 (c) fix fees which may be differential, varying according to any 5 factor determined by the Regulator; and 6 (d) impose additional fees for the late payment of fees under this 7 section. 8 96. Waiver of fees 9 The Regulator may waive, or refund, the whole or part of any fee 10 payable under this Division. 11 97. Registration cannot be transferred or assigned 12 (1) Registration -- 13 (a) is personal to the person who holds it; and 14 (b) is not capable of being transferred or assigned to any other 15 person or otherwise dealt with by the person who holds it; 16 and 17 (c) does not vest by operation of law in any other person. 18 (2) A purported transfer or assignment of a registration or any other 19 purported dealing with a registration by the person who holds it is of 20 no effect. 21 (3) This section has effect despite anything in this Law, an Act or a rule 22 of law to the contrary. 23 98. Offences relating to registration 24 (1) A registered person must not contravene a condition or restriction of 25 the registration. 26 Maximum penalty: 27 (a) in the case of an individual -- $50 000; 28 (b) in the case of a body corporate -- $500 000. page 103 Rail Safety National Law (WA) Bill 2014 Schedule Rail Safety National Law Part 3 Regulation of rail safety s. 99 1 (2) A registered person must ensure that the notice of registration, and 2 any other document prescribed by the national regulations for the 3 purposes of this section, is available for inspection -- 4 (a) if the person is a body corporate -- at the person's registered 5 office during ordinary business hours; 6 (b) if the person is not a body corporate -- at the person's 7 principal place of business during ordinary business hours 8 (or, if the Regulator approves another place and time, at that 9 place and time). 10 Maximum penalty: 11 (a) in the case of an individual -- $5 000; 12 (b) in the case of a body corporate -- $25 000. 13 (3) A person who is required under subsection (2) to make available 14 documents for inspection must maintain a register of those documents 15 for inspection. 16 Maximum penalty: 17 (a) in the case of an individual -- $5 000; 18 (b) in the case of a body corporate -- $25 000. 19 Division 6 -- Safety management 20 Subdivision 1 -- Safety management systems 21 99. Safety management system 22 (1) A rail transport operator must have a safety management system for 23 railway operations in respect of which the operator is required to be 24 accredited that -- 25 (a) is in a form approved by the Regulator; and 26 (b) provides for systems and procedures for compliance with the 27 risk management obligations under this Law; and 28 (c) identifies any risks to safety in relation to railway operations 29 in respect of which the operator is required to be accredited; 30 and 31 (d) provides for the comprehensive and systematic assessment of 32 any identified risks; and page 104 Rail Safety National Law (WA) Bill 2014 Rail Safety National Law Schedule Regulation of rail safety Part 3 s. 99 1 (e) specifies the controls (including audits, expertise, resources 2 and staff) that are to be used by the operator to manage 3 identified risks and to monitor safety in relation to those 4 railway operations; and 5 (f) includes procedures for monitoring, reviewing and revising 6 the adequacy of those controls; and 7 (g) addresses and includes any other matter prescribed by the 8 national regulations that is relevant to the railway operations 9 for which the rail transport operator is accredited. 10 Maximum penalty: 11 (a) in the case of an individual -- $150 000; 12 (b) in the case of a body corporate -- $1 500 000. 13 (2) The safety management system for a rail transport operator must also 14 include the following matters prepared in accordance with the 15 requirements of this Division -- 16 (a) measures to manage identified risks to safety for the purposes 17 of interface agreements; 18 (b) a security management plan; 19 (c) an emergency management plan; 20 (d) a health and fitness management program; 21 (e) a drug and alcohol management program; 22 (f) a fatigue risk management program. 23 (3) Before establishing a safety management system in relation to railway 24 operations in respect of which a rail transport operator is required to 25 be accredited or reviewing or varying any such safety management 26 system, the operator must, so far as is reasonably practicable -- 27 (a) consult with -- 28 (i) persons likely to be affected by the safety 29 management system or its review or variation, being 30 persons who carry out those railway operations or 31 work on or at the operator's railway premises or with 32 the operator's rolling stock; and 33 (ii) health and safety representatives (within the meaning 34 of the occupational health and safety legislation) page 105 Rail Safety National Law (WA) Bill 2014 Schedule Rail Safety National Law Part 3 Regulation of rail safety s. 100 1 representing any of the persons referred to in 2 subparagraph (i); and 3 (iii) any union representing any of the persons referred to 4 in subparagraph (i); and 5 (iv) any other rail transport operator with whom the first 6 mentioned operator is required to enter into an 7 interface agreement relating to risks to safety of 8 railway operations carried out by or on behalf of 9 either of them; and 10 (v) the public, as appropriate; 11 and 12 (b) provide the persons consulted with a reasonable opportunity 13 to make submissions on the proposed safety management 14 system; and 15 (c) advise those persons in a timely manner of the outcome of the 16 consultation process. 17 (4) If the safety management system of a rail transport operator and the 18 safety management system of another rail transport operator who has 19 an agreement referred to in subsection (3)(a)(iv) with the first 20 mentioned operator, when taken as 1 system, comply with this Law, 21 both safety management systems are taken to comply with this Law. 22 (5) A safety management system must be evidenced in writing and must 23 identify -- 24 (a) each person responsible for preparing any part of the safety 25 management system; and 26 (b) the person, or class of persons, responsible for implementing 27 the system. 28 100. Conduct of assessments for identified risks 29 (1) In conducting an assessment for the purposes of section 99(1)(d), the 30 rail transport operator must -- 31 (a) examine and analyse each identified risk, including -- 32 (i) the nature of the risk; and 33 (ii) the likelihood of the risk occurring; and page 106 Rail Safety National Law (WA) Bill 2014 Rail Safety National Law Schedule Regulation of rail safety Part 3 s. 101 1 (iii) the magnitude and severity of the consequences 2 should a risk be realised; and 3 (iv) the range of control measures available and 4 considered to eliminate or minimise the risk; 5 and 6 (b) consider risks cumulatively as well as individually; and 7 (c) use assessment methodologies that are appropriate to the risks 8 under consideration. 9 (2) The rail transport operator must keep a detailed record of all aspects 10 of the assessment process, including -- 11 (a) the risks considered; and 12 (b) the likelihood, severity of consequences and control measures 13 considered, including reasons for selecting certain control 14 measures and rejecting others. 15 101. Compliance with safety management system 16 (1) A rail transport operator must implement the operator's safety 17 management system. 18 Maximum penalty: 19 (a) in the case of an individual -- $150 000; 20 (b) in the case of a body corporate -- $1 500 000. 21 (2) A rail transport operator must not, without reasonable excuse, fail to 22 comply with the operator's safety management system for the 23 operator's railway operations. 24 Maximum penalty: 25 (a) in the case of an individual -- $150 000; 26 (b) in the case of a body corporate -- $1 500 000. 27 (3) Subsection (2) places an evidential burden on the accused to show a 28 reasonable excuse. 29 102. Review of safety management system 30 A rail transport operator must review the operator's safety 31 management system in accordance with the national regulations at 32 such times or within such periods as are prescribed (or, if no times or page 107 Rail Safety National Law (WA) Bill 2014 Schedule Rail Safety National Law Part 3 Regulation of rail safety s. 103 1 periods are prescribed, at least once each year or at such other time as 2 is agreed between the operator and the Regulator). 3 Maximum penalty: 4 (a) in the case of an individual -- $10 000; 5 (b) in the case of a body corporate -- $50 000. 6 103. Safety performance reports 7 (1) A rail transport operator must give the Regulator a safety performance 8 report about the operator's railway operations in respect of which the 9 operator is required to be accredited for each reporting period that -- 10 (a) is in a form approved by the Regulator; and 11 (b) complies with the requirements (if any) prescribed by the 12 national regulations for the purposes of this section; and 13 (c) contains -- 14 (i) a description and assessment of the safety 15 performance of the operator's railway operations; and 16 (ii) comments on any deficiencies, and any irregularities, 17 in the railway operations that may be relevant to the 18 safety of the railway; and 19 (iii) a description of any safety initiatives in relation to the 20 railway operations undertaken during the reporting 21 period or proposed to be undertaken in the next 22 reporting period; and 23 (iv) any other information or performance indicators 24 prescribed by the national regulations for the 25 purposes of this section. 26 (2) A rail transport operator must submit a report in accordance with this 27 section within 6 months after the end of each reporting period. 28 Maximum penalty: 29 (a) in the case of an individual -- $5 000; 30 (b) in the case of a body corporate -- $25 000. page 108 Rail Safety National Law (WA) Bill 2014 Rail Safety National Law Schedule Regulation of rail safety Part 3 s. 104 1 (3) In this section -- 2 reporting period means a financial year or such other period as is 3 agreed from time to time by the Regulator and the rail transport 4 operator. 5 104. Regulator may direct amendment of safety management system 6 (1) The Regulator may, by written notice given to an accredited person, 7 direct the person to amend the person's safety management system in 8 a specified manner within a specified period, being not less than 9 28 days after the giving of the direction. 10 (2) Before giving a direction to amend a safety management system under 11 subsection (1), the Regulator must, if the intended amendment is 12 likely to result in significant costs or expenses to the accredited 13 person or any other person -- 14 (a) conduct or cause to be conducted a cost-benefit analysis of 15 the effect of the intended amendment; and 16 (b) consult with the Premier or Chief Minister, the Treasurer, and 17 any other Minister, of a participating jurisdiction whose area 18 of responsibility is likely to be affected by the intended 19 amendment. 20 (3) A direction under subsection (1) -- 21 (a) must state the reasons why the Regulator considers it 22 necessary for the rail transport operator to amend the safety 23 management system; and 24 (b) must include (if applicable) the results of any cost-benefit 25 analysis carried out under this section; and 26 (c) must include information about the right of review under 27 Part 7. 28 (4) An accredited person must not, without reasonable excuse, fail to 29 comply with a direction under subsection (1). 30 Maximum penalty: 31 (a) in the case of an individual -- $50 000; 32 (b) in the case of a body corporate -- $500 000. 33 (5) Subsection (4) places an evidential burden on the accused to show a 34 reasonable excuse. page 109 Rail Safety National Law (WA) Bill 2014 Schedule Rail Safety National Law Part 3 Regulation of rail safety s. 105 1 Subdivision 2 -- Interface agreements 2 105. Requirements for and scope of interface agreements 3 (1) An interface agreement must include provisions for -- 4 (a) implementing and maintaining measures to manage risks 5 identified under section 99(1)(c) associated with the interface; 6 and 7 (b) the evaluation, testing and (where appropriate) revision of 8 measures in relation to identified risks and incidents 9 considered; and 10 (c) the respective roles and responsibilities of each party to the 11 agreement in relation to those measures; and 12 (d) procedures by which the parties to the agreement will 13 exchange information about, and monitor compliance with, 14 their obligations under the agreement; and 15 (e) a process for keeping the agreement under review and its 16 revision. 17 (2) An interface agreement may -- 18 (a) be entered into by 2 or more rail transport operators or by 1 or 19 more rail transport operators and 1 or more road managers; 20 and 21 (b) include measures to manage any number of risks to safety 22 that may arise because of, or partly because of, any railway 23 operations; and 24 (c) include measures to manage any number of risks to safety 25 that may arise from any railway operations because of, or 26 partly because of, the existence or use of any road 27 infrastructure; and 28 (d) make provision for or in relation to any matter by applying, 29 adopting or incorporating any matter contained in any 30 document; and 31 (e) consist of 2 or more documents. page 110 Rail Safety National Law (WA) Bill 2014 Rail Safety National Law Schedule Regulation of rail safety Part 3 s. 106 1 106. Interface coordination -- rail transport operators 2 A rail transport operator must -- 3 (a) identify and assess, so far as is reasonably practicable, risks 4 to safety that may arise from railway operations carried out 5 by or on behalf of the operator because of, or partly because 6 of, railway operations carried out by or on behalf of any other 7 rail transport operator; and 8 (b) determine measures to manage, so far as is reasonably 9 practicable, those risks; and 10 (c) for the purpose of managing those risks -- seek to enter into 11 an interface agreement with the other rail transport operator 12 or rail transport operators. 13 Maximum penalty: 14 (a) in the case of an individual -- $50 000; 15 (b) in the case of a body corporate -- $500 000. 16 107. Interface coordination -- rail infrastructure and public roads 17 (1) A rail infrastructure manager must -- 18 (a) identify and assess, so far as is reasonably practicable, risks 19 to safety that may arise from railway operations carried out 20 on or in relation to the manager's rail infrastructure because 21 of, or partly because of -- 22 (i) the existence of road infrastructure of a prescribed 23 public road; or 24 (ii) the existence or use of any rail or road crossing that is 25 part of the road infrastructure of a public road; 26 and 27 (b) determine measures to manage, so far as is reasonably 28 practicable, those risks; and 29 (c) for the purpose of managing those risks -- seek to enter into 30 an interface agreement with the road manager of that road. 31 Maximum penalty: 32 (a) in the case of an individual -- $50 000; 33 (b) in the case of a body corporate -- $500 000. page 111 Rail Safety National Law (WA) Bill 2014 Schedule Rail Safety National Law Part 3 Regulation of rail safety s. 108 1 (2) The road manager of a public road must -- 2 (a) identify and assess, so far as is reasonably practicable, risks 3 to safety that may arise from the existence or use of any rail 4 or road crossing that is part of the road infrastructure of the 5 road because of, or partly because of -- 6 (i) the existence of road infrastructure of a prescribed 7 public road; or 8 (ii) the existence or use of any rail or road crossing that is 9 part of the road infrastructure of a public road; 10 and 11 (b) determine measures to manage, so far as is reasonably 12 practicable, those risks; and 13 (c) for the purpose of managing those risks -- seek to enter into 14 an interface agreement with the rail infrastructure manager of 15 the rail infrastructure. 16 (3) Nothing in this section authorises or requires a road manager to act 17 inconsistently with, or without regard to, the functions, obligations or 18 powers conferred on it by or under an Act or law. 19 108. Interface coordination -- rail infrastructure and private roads 20 (1) A rail infrastructure manager must -- 21 (a) identify and assess, so far as is reasonably practicable, risks 22 to safety that may arise from railway operations carried out 23 on or in relation to the manager's rail infrastructure because 24 of, or partly because of, the existence or use of any rail or 25 road crossing that is part of the road infrastructure of a private 26 road; and 27 (b) consider the extent to which those risks are managed by any 28 prescribed protocols; and 29 (c) consider whether it is necessary to manage those risks in 30 conjunction with the road manager of that road and -- 31 (i) if the rail infrastructure manager is of the opinion that 32 it is necessary that those risks be managed in 33 conjunction with the road manager -- give written 34 notice of that opinion to the road manager and page 112 Rail Safety National Law (WA) Bill 2014 Rail Safety National Law Schedule Regulation of rail safety Part 3 s. 109 1 determine measures to manage, so far as is 2 reasonably practicable, those risks; or 3 (ii) if the rail infrastructure manager is of the opinion that 4 the management of those risks does not need to be 5 carried out in conjunction with the road manager -- 6 keep a written record of that opinion; 7 and 8 (d) unless paragraph (c)(ii) applies -- for the purpose of 9 managing those risks, seek to enter into an interface 10 agreement with the road manager. 11 Maximum penalty: 12 (a) in the case of an individual -- $50 000; 13 (b) in the case of a body corporate -- $500 000. 14 (2) If a rail infrastructure manager gives a road manager of a private road 15 a written notice under subsection (1)(c)(i), the road manager must -- 16 (a) identify and assess, so far as is reasonably practicable, risks 17 to safety that may arise from the existence or use of any rail 18 or road crossing that is part of the road infrastructure of the 19 road because of, or partly because of, railway operations; and 20 (b) determine measures to manage, so far as is reasonably 21 practicable, those risks; and 22 (c) for the purpose of managing those risks -- seek to enter into 23 an interface agreement with the rail infrastructure manager. 24 Maximum penalty: 25 (a) in the case of an individual -- $50 000; 26 (b) in the case of a body corporate -- $500 000. 27 109. Identification and assessment of risks 28 A rail transport operator, rail infrastructure manager or road manager 29 that is required under this Subdivision to identify and assess risks to 30 safety that may arise from operations carried out by another person 31 may do so -- 32 (a) by itself identifying and assessing those risks; or 33 (b) by identifying and assessing those risks jointly with the other 34 person; or page 113 Rail Safety National Law (WA) Bill 2014 Schedule Rail Safety National Law Part 3 Regulation of rail safety s. 110 1 (c) by adopting the identification and assessment of those risks 2 carried out by the other person. 3 110. Regulator may give directions 4 (1) This section applies if the Regulator is satisfied that a rail transport 5 operator, rail infrastructure manager or road manager referred to in 6 this Subdivision -- 7 (a) is unreasonably refusing or failing to enter into an interface 8 agreement with another person as required under this 9 Subdivision; or 10 (b) is unreasonably delaying the negotiation of such an 11 agreement. 12 (2) The Regulator may give a written notice to the rail transport operator, 13 rail infrastructure manager or road manager (as the case requires) and 14 the other person that -- 15 (a) warns of the Regulator's powers under this section, including 16 the power to issue a direction under subsection (3) at any time 17 after a specified date; and 18 (b) includes a copy of this section; and 19 (c) may contain suggested terms for inclusion in an interface 20 agreement. 21 (3) If the Regulator gives a notice under subsection (2) to a rail transport 22 operator, rail infrastructure manager or road manager, the Regulator 23 may, in writing, require the operator or manager to provide such 24 information as the Regulator reasonably requires for the purposes of 25 making a direction under this section. 26 (4) If a notice is given under subsection (2) and an interface agreement 27 has not been entered into by or on the date specified in the notice, the 28 Regulator -- 29 (a) may determine the arrangements that are to apply in relation 30 to the management of risks to safety referred to in 31 section 106, 107 or 108 (as the case requires); and 32 (b) may direct any of the persons to whom the notice is issued to 33 give effect to those arrangements; and 34 (c) must specify the time within which a direction is to be 35 complied with. page 114 Rail Safety National Law (WA) Bill 2014 Rail Safety National Law Schedule Regulation of rail safety Part 3 s. 111 1 (5) A direction under subsection (4) -- 2 (a) must be in writing; and 3 (b) must set out any arrangements determined by the Regulator 4 under that subsection. 5 (6) A person to whom a notice or direction is given under this section 6 must comply with the notice or direction within the time specified in 7 the notice or direction. 8 Maximum penalty: 9 (a) in the case of an individual -- $20 000; 10 (b) in the case of a body corporate -- $100 000. 11 111. Register of interface agreements 12 (1) A rail transport operator must maintain a register of -- 13 (a) interface agreements to which it is a party; and 14 (b) arrangements determined by the Regulator under section 110, 15 that are applicable to the operator's railway operations. 16 Maximum penalty: 17 (a) in the case of an individual -- $5 000; 18 (b) in the case of a body corporate -- $25 000. 19 (2) A road manager must maintain a register of -- 20 (a) interface agreements to which it is a party; and 21 (b) arrangements determined by the Regulator under section 110, 22 that are applicable to any road in relation to which it is the road 23 manager. 24 Maximum penalty: 25 (a) in the case of an individual -- $5 000; 26 (b) in the case of a body corporate -- $25 000. page 115 Rail Safety National Law (WA) Bill 2014 Schedule Rail Safety National Law Part 3 Regulation of rail safety s. 112 1 Subdivision 3 -- Other safety plans and programs 2 112. Security management plan 3 (1) A rail transport operator must have a security management plan for 4 railway operations in respect of which the operator is required to be 5 accredited that -- 6 (a) incorporates measures to protect people from theft, assault, 7 sabotage, terrorism and other criminal acts of other parties 8 and from other harm; and 9 (b) complies with this Law and any requirements prescribed by 10 the national regulations. 11 Maximum penalty: 12 (a) in the case of an individual -- $50 000; 13 (b) in the case of a body corporate -- $500 000. 14 (2) The rail transport operator must ensure -- 15 (a) that the security management plan is implemented; and 16 (b) that appropriate response measures of the security 17 management plan are implemented without delay if an 18 incident of a kind referred to in subsection (1)(a) occurs. 19 Maximum penalty: 20 (a) in the case of an individual -- $50 000; 21 (b) in the case of a body corporate -- $500 000. 22 113. Emergency management plan 23 (1) A rail transport operator must have an emergency management plan 24 that complies with subsection (2) for railway operations in respect of 25 which the operator is required to be accredited. 26 Maximum penalty: 27 (a) in the case of an individual -- $50 000; 28 (b) in the case of a body corporate -- $500 000. 29 (2) The emergency management plan must -- 30 (a) address and include the matters that are prescribed; and page 116 Rail Safety National Law (WA) Bill 2014 Rail Safety National Law Schedule Regulation of rail safety Part 3 s. 114 1 (b) be prepared -- 2 (i) so far as is reasonably practicable -- in conjunction 3 with any of the emergency services that would be 4 expected to attend in the event of a significant 5 incident involving the operator's railway operations 6 and any other person who is prescribed; and 7 (ii) in accordance with the national regulations; 8 and 9 (c) be kept and maintained in accordance with the national 10 regulations; and 11 (d) be provided to the relevant emergency services and any other 12 person who is prescribed; and 13 (e) be tested in accordance with the national regulations. 14 (3) A rail transport operator must ensure that the appropriate response 15 measures of the emergency management plan are implemented if an 16 emergency occurs. 17 Maximum penalty: 18 (a) in the case of an individual -- $50 000; 19 (b) in the case of a body corporate -- $500 000. 20 114. Health and fitness management program 21 A rail transport operator must prepare and implement a health and 22 fitness program for rail safety workers who carry out rail safety work 23 in relation to railway operations in respect of which the operator is 24 required to be accredited that complies with the prescribed 25 requirements relating to health and fitness programs. 26 Maximum penalty: 27 (a) in the case of an individual -- $50 000; 28 (b) in the case of a body corporate -- $500 000. 29 115. Drug and alcohol management program 30 A rail transport operator must prepare and implement a drug and 31 alcohol management program for rail safety workers who carry out 32 rail safety work in relation to railway operations in respect of which 33 the operator is required to be accredited that complies with the page 117 Rail Safety National Law (WA) Bill 2014 Schedule Rail Safety National Law Part 3 Regulation of rail safety s. 116 1 prescribed requirements relating to drug and alcohol management 2 programs. 3 Maximum penalty: 4 (a) in the case of an individual -- $50 000; 5 (b) in the case of a body corporate -- $500 000. 6 116. Fatigue risk management program 7 A rail transport operator must prepare and implement a program, in 8 accordance with the prescribed requirements, for the management of 9 fatigue of rail safety workers who carry out rail safety work in relation 10 to railway operations in respect of which the operator is required to be 11 accredited that complies with the prescribed requirements relating to 12 fatigue risk management programs. 13 Maximum penalty: 14 (a) in the case of an individual -- $50 000; 15 (b) in the case of a body corporate -- $500 000. 16 Subdivision 4 -- Provisions relating to rail safety workers 17 117. Assessment of competence 18 (1) A rail transport operator must ensure that each rail safety worker who 19 is to carry out rail safety work in relation to railway operations in 20 respect of which the operator is required to be accredited has the 21 competence to carry out that work. 22 Maximum penalty: 23 (a) in the case of an individual -- $50 000; 24 (b) in the case of a body corporate -- $500 000. 25 (2) For the purposes of subsection (1), the competence of a rail safety 26 worker to carry out rail safety work -- 27 (a) must be assessed -- 28 (i) in accordance with the provisions of the AQTF and 29 any qualification and units of competence recognised 30 under the AQF applicable to that rail safety work; or page 118 Rail Safety National Law (WA) Bill 2014 Rail Safety National Law Schedule Regulation of rail safety Part 3 s. 117 1 (ii)if subparagraph (i) does not apply -- in accordance 2 with any qualifications or competencies prescribed by 3 the national regulations; and 4 (b) must be assessed by reference to the knowledge and skills of 5 the worker that would enable the worker to carry out the rail 6 safety work safely. 7 (3) A certificate purporting to have been issued under the AQF to a rail 8 safety worker certifying that the worker has certain qualifications or 9 units of competence is evidence that the worker has those 10 qualifications or units of competence. 11 (4) Subsection (2) does not apply if -- 12 (a) it is not reasonably practicable for a rail transport operator to 13 assess the competence of a rail safety worker to carry out rail 14 safety work in relation to the operator's rail infrastructure or 15 rolling stock in accordance with that subsection; and 16 (b) the operator satisfies the Regulator that -- 17 (i) the worker has otherwise acquired the necessary 18 qualifications and competencies applicable to that rail 19 safety work; and 20 (ii) the worker has the knowledge and skills that would 21 enable the worker to carry out the rail safety work 22 safely. 23 (5) Nothing in this section prevents a rail transport operator from 24 requiring a rail safety worker to undertake further training before 25 carrying out rail safety work. 26 (6) A rail transport operator must maintain records in accordance with the 27 national regulations of the competence of rail safety workers who 28 carry out rail safety work on or in relation to the operator's rail 29 infrastructure or rolling stock. 30 Maximum penalty: 31 (a) in the case of an individual -- $10 000; 32 (b) in the case of a body corporate -- $50 000. page 119 Rail Safety National Law (WA) Bill 2014 Schedule Rail Safety National Law Part 3 Regulation of rail safety s. 118 1 118. Identification of rail safety workers 2 (1) A rail transport operator must ensure that each rail safety worker who 3 is to carry out rail safety work in relation to the operator's railway 4 operations has a form of identification that is sufficient to enable the 5 type of competence and training of the worker for that rail safety work 6 to be checked by a rail safety officer. 7 Maximum penalty: 8 (a) in the case of an individual -- $10 000; 9 (b) in the case of a body corporate -- $50 000. 10 (2) A rail safety worker who is carrying out rail safety work must, when 11 requested by a rail safety officer to do so, produce the identification 12 provided in accordance with subsection (1) to the officer. 13 Maximum penalty: $2 500. 14 Subdivision 5 -- Other persons to comply with safety management system 15 119. Other persons to comply with safety management system 16 A person, not being an employee employed to carry out railway 17 operations, who undertakes railway operations on or in relation to rail 18 infrastructure or rolling stock of a rail transport operator must comply 19 with the safety management system of the rail transport operator to 20 the extent that it applies to those railway operations. 21 Maximum penalty: 22 (a) in the case of an individual -- $50 000; 23 (b) in the case of a body corporate -- $500 000. 24 Division 7 -- Information about rail safety etc 25 120. Power of Regulator to obtain information from rail transport 26 operators 27 (1) The Regulator may, by written notice given to a rail transport 28 operator, require the operator to provide to the Regulator on or before 29 a specified date and in a manner and form approved by the Regulator, 30 1 or more of the following -- 31 (a) information concerning measures taken by the rail transport 32 operator to promote rail safety; page 120 Rail Safety National Law (WA) Bill 2014 Rail Safety National Law Schedule Regulation of rail safety Part 3 s. 121 1 (b) information concerning matters, including matters relating to 2 the financial capacity or insurance arrangements of the rail 3 transport operator, relating to rail safety or the accreditation 4 of the rail transport operator that the Regulator reasonably 5 requires; 6 (c) the information prescribed for the purposes of this subsection. 7 (2) A rail transport operator must comply with a notice given to the 8 operator under subsection (1). 9 Maximum penalty: 10 (a) in the case of an individual -- $10 000; 11 (b) in the case of a body corporate -- $50 000. 12 (3) A rail transport operator must provide to the Regulator, in a manner 13 and form approved by the Regulator and at the prescribed times and in 14 respect of the prescribed periods, information prescribed by the 15 national regulations for the purposes of this subsection relating to rail 16 safety or accreditation. 17 Maximum penalty: 18 (a) in the case of an individual -- $10 000; 19 (b) in the case of a body corporate -- $50 000. 20 Division 8 -- Investigating and reporting by rail transport operators 21 121. Notification of certain occurrences 22 (1) A rail transport operator must report to the Regulator or another 23 authority specified by the Regulator within the time, and in the 24 manner, prescribed by the national regulations, all notifiable 25 occurrences that happen on, or in relation to, the operator's railway 26 premises or railway operations. 27 Maximum penalty: 28 (a) in the case of an individual -- $20 000; 29 (b) in the case of a body corporate -- $100 000. 30 (2) Two or more rail transport operators may make a joint report with 31 respect to a notifiable occurrence affecting them. page 121 Rail Safety National Law (WA) Bill 2014 Schedule Rail Safety National Law Part 3 Regulation of rail safety s. 122 1 (3) In addition to the matters specified in subsection (1), the Regulator 2 may, by written notice given to a rail transport operator, require the 3 operator to report to the Regulator or another authority specified by 4 the Regulator, any other occurrence or type of occurrence which 5 endangers or could endanger the safe operation of any railway 6 operations. 7 (4) A rail transport operator to whom a requirement under subsection (3) 8 applies must comply with the requirement. 9 Maximum penalty: 10 (a) in the case of an individual -- $20 000; 11 (b) in the case of a body corporate -- $100 000. 12 (5) The Regulator may require information in a report under this section 13 to be verified by statutory declaration. 14 122. Investigation of notifiable occurrences 15 (1) The Regulator may, by written notice given to a rail transport 16 operator, require the operator to investigate notifiable occurrences, or 17 any other occurrences that have endangered or may endanger the safe 18 operation of the railway operations carried out by the operator. 19 (2) The level of investigation must be determined by the severity and 20 potential consequences of the notifiable occurrence as well as by other 21 similar occurrences and its focus should be to determine the cause and 22 contributing factors, rather than to apportion blame. 23 (3) The rail transport operator must ensure that the investigation is 24 conducted in a manner approved by the Regulator and within the 25 period specified by the Regulator. 26 Maximum penalty: 27 (a) in the case of an individual -- $20 000; 28 (b) in the case of a body corporate -- $100 000. page 122 Rail Safety National Law (WA) Bill 2014 Rail Safety National Law Schedule Regulation of rail safety Part 3 s. 123 1 (4) A rail transport operator who has carried out an investigation under 2 this section must report to the Regulator on the investigation in a 3 manner specified by the Regulator within the period specified by the 4 Regulator. 5 Maximum penalty: 6 (a) in the case of an individual -- $20 000; 7 (b) in the case of a body corporate -- $100 000. 8 (5) However, information or a document provided by a rail transport 9 operator in a report under this section is not admissible as evidence 10 against the operator in civil or criminal proceedings other than 11 proceedings arising out of the false or misleading nature of the 12 information or document. 13 Division 9 -- Drug and alcohol testing by Regulator 14 123. Testing for presence of drugs or alcohol 15 A rail safety worker may be required to undertake a test for the 16 presence of a drug or alcohol in accordance with this Law and the 17 application Act. 18 124. Appointment of authorised persons 19 (1) The Regulator may, by instrument in writing, appoint -- 20 (a) a rail safety officer; or 21 (b) a person with qualifications or experience considered by the 22 Regulator to be appropriate for the performance of relevant 23 functions under this Law and the application Act, 24 to be an authorised person for a term, and subject to the conditions, 25 specified in the instrument. 26 Note: A person appointed under subsection (1)(b) need not be an employee 27 of a government agency or instrumentality. 28 (2) The authority of an authorised person may be limited by the relevant 29 instrument of appointment to a particular part of a participating 30 jurisdiction, to a particular railway or to particular rail safety workers, 31 or otherwise. page 123 Rail Safety National Law (WA) Bill 2014 Schedule Rail Safety National Law Part 3 Regulation of rail safety s. 125 1 125. Identity cards 2 (1) The Regulator must give each authorised person appointed under 3 section 124 an identity card that states the person's name and 4 appointment as an authorised person and includes any other matter 5 prescribed by the national regulations. 6 (2) An authorised person to whom an identity card has been issued must 7 produce his or her identity card for inspection on request to a person 8 required by the authorised person to submit to a test or to do any other 9 thing under this Law or the application Act. 10 (3) If a person to whom an identity card has been issued ceases to be an 11 authorised person, the person must return the identity card to the 12 Regulator as soon as practicable. 13 Maximum penalty: $5 000. 14 126. Authorised person may require preliminary breath test or breath 15 analysis 16 (1) Subject to this section, an authorised person may at any time require a 17 rail safety worker who -- 18 (a) is about to carry out rail safety work; or 19 (b) is carrying out rail safety work; or 20 (c) is attempting to carry out rail safety work; or 21 (d) is still on railway premises after carrying out rail safety work; 22 or 23 (e) without limiting a preceding paragraph -- is involved in a 24 prescribed notifiable occurrence, 25 to submit to testing by means of a preliminary breath test or breath 26 analysis (or both). 27 (2) For the purposes of making a requirement that a rail safety worker 28 submit to a preliminary breath test or breath analysis, an authorised 29 person may -- 30 (a) require the worker to provide the worker's name and 31 residential address; and page 124 Rail Safety National Law (WA) Bill 2014 Rail Safety National Law Schedule Regulation of rail safety Part 3 s. 127 1 (b) give any other reasonable direction to the worker. 2 Example: An authorised person may (for example) direct the rail safety 3 worker to accompany the authorised person and attend at a 4 specified place for the purposes of carrying out the preliminary 5 breath test or breath analysis. 6 (3) A rail safety worker must immediately comply with a direction given 7 by an authorised person (whether under this section or the application 8 Act) for the purpose of requiring the worker to submit to a 9 preliminary breath test or breath analysis. 10 Maximum penalty: $10 000. 11 (4) The application Act and regulations made under the application Act 12 may prescribe the manner in which a preliminary breath test or breath 13 analysis is to be conducted and may (for example) require that more 14 than 1 sample of breath is to be provided for testing or analysis (and, 15 in such a case, specify which reading of the apparatus or instrument 16 will be taken to be the result of the preliminary breath test or breath 17 analysis for the purposes of this Law, the application Act or any other 18 Act). 19 127. Authorised person may require drug screening test, oral fluid 20 analysis and blood test 21 (1) Subject to this section, an authorised person may at any time require a 22 rail safety worker who -- 23 (a) is about to carry out rail safety work; or 24 (b) is carrying out rail safety work; or 25 (c) is attempting to carry out rail safety work; or 26 (d) is still on railway premises after carrying out rail safety work; 27 or 28 (e) without limiting a preceding paragraph -- is involved in a 29 prescribed notifiable occurrence, 30 to submit to a drug screening test, oral fluid analysis or blood test (or 31 any combination of these). page 125 Rail Safety National Law (WA) Bill 2014 Schedule Rail Safety National Law Part 3 Regulation of rail safety s. 128 1 (2) For the purposes of making a requirement that a rail safety worker 2 submit to a drug screening test, oral fluid analysis or blood test, an 3 authorised person may -- 4 (a) require the worker to provide the worker's name and 5 residential address; and 6 (b) give any other reasonable direction to the worker. 7 Example: An authorised person may (for example) direct the rail safety 8 worker to accompany the authorised person and attend at a 9 specified place for the purposes of carrying out the drug 10 screening test, oral fluid analysis or blood test. 11 (3) A rail safety worker must immediately comply with a direction given 12 by an authorised person (whether under this section or the application 13 Act) for the purpose of requiring the worker to submit to a drug 14 screening test, oral fluid analysis or blood test (or any combination of 15 these). 16 Maximum penalty: $10 000. 17 (4) The application Act and regulations made under the application Act 18 may prescribe the manner in which a drug screening test, oral fluid 19 analysis or blood test is to be conducted. 20 128. Offence relating to prescribed concentration of alcohol or 21 prescribed drug 22 (1) A rail safety worker must not carry out, or attempt to carry out, rail 23 safety work -- 24 (a) while there is present in his or her blood the prescribed 25 concentration of alcohol; or 26 (b) while a prescribed drug is present in his or her oral fluid or 27 blood; or 28 (c) while so much under the influence of alcohol or a drug as to 29 be incapable of effectively discharging a function or duty of a 30 rail safety worker. 31 Maximum penalty: $10 000. 32 (2) For the purposes of subsection (1)(c), a person is incapable of 33 effectively discharging a function or duty of a rail safety worker if, 34 owing to the influence of alcohol or a drug, the use of any mental or 35 physical faculty of that person is lost or appreciably impaired (but this page 126 Rail Safety National Law (WA) Bill 2014 Rail Safety National Law Schedule Regulation of rail safety Part 3 s. 129 1 subsection does not restrict in any way the operation of 2 subsection (1)(c)). 3 (3) Subject to subsection (4), it is a defence to a charge of an offence 4 against subsection (1)(b) if the defendant proves that he or she did not 5 knowingly consume the prescribed drug present in his or her oral fluid 6 or blood. 7 (4) Subsection (3) does not apply if the defendant consumed the 8 prescribed drug believing that he or she was consuming a substance 9 unlawfully but was mistaken as to, unaware of, or indifferent to, the 10 identity of the prescribed drug. 11 (5) For the purposes of this section -- 12 prescribed concentration of alcohol, in relation to a rail safety 13 worker, means -- 14 (a) any concentration of alcohol in the blood; or 15 (b) if some other concentration of alcohol is prescribed in the 16 national regulations (being a specified amount of alcohol in 17 100 millilitres of blood) for the purposes of this definition -- 18 that concentration; 19 prescribed drug means -- 20 (a) any of the following substances -- 21 (i) delta-9-tetrahydrocannabinol; 22 (ii) Methylamphetamine (Methamphetamine); 23 (iii) 3,4-Methylenedioxymethylamphetamine (MDMA); 24 and 25 (b) any other substance declared by the national regulations to be 26 a prescribed drug for the purposes of this section. 27 129. Oral fluid or blood sample or results of analysis etc not to be used 28 for other purposes 29 A sample of oral fluid or blood taken under this Part or the application 30 Act (and any other forensic material taken incidentally during a drug 31 screening test, oral fluid analysis or blood test) must not be used for a 32 purpose other than that contemplated by this Part or the application 33 Act, in connection with the control or management of any work or page 127 Rail Safety National Law (WA) Bill 2014 Schedule Rail Safety National Law Part 3 Regulation of rail safety s. 130 1 activity associated with railway operations, or for the purpose of 2 disciplinary proceedings against a rail safety worker. 3 Division 10 -- Train safety recordings 4 130. Interpretation 5 In this Division -- 6 train safety recording means a recording consisting of (or mainly of) 7 sounds or images or data, or any combination of sounds, images or 8 data, produced by a device installed in a train, signal box, train control 9 complex or other railway premises for the purpose of recording 10 activities carried out by rail safety workers in relation to the operation 11 of a train. 12 131. Disclosure of train safety recordings 13 A person must not publish or communicate to any person -- 14 (a) a train safety recording or any part of a train safety recording; 15 or 16 (b) any information obtained from a train safety recording or any 17 part of a train safety recording, 18 otherwise than in the course of an inquiry or an investigation into an 19 accident or incident under this Part or for the purposes of, or in 20 connection with -- 21 (c) criminal proceedings (not being criminal proceedings in 22 which it is not admissible), investigations relating to any such 23 criminal proceedings or investigations by or proceedings 24 before a coroner; or 25 (d) civil proceedings in which an order is made under 26 section 132; or 27 (e) a disclosure or publication that is otherwise permitted under 28 this Law or an Act. 29 Maximum penalty: 30 (a) in the case of an individual -- $10 000; 31 (b) in the case of a body corporate -- $50 000. page 128 Rail Safety National Law (WA) Bill 2014 Rail Safety National Law Schedule Regulation of rail safety Part 3 s. 132 1 132. Admissibility of evidence of train safety recordings in civil 2 proceedings 3 (1) A train safety recording is not admissible in evidence in any civil 4 proceedings against a rail safety worker. 5 (2) A party to civil proceedings may, at any time before the determination 6 of the proceedings, apply to the court in which the proceedings have 7 been instituted for an order that a train safety recording, or part of a 8 train safety recording, be admissible in evidence in the proceedings. 9 (3) If an application is made to a court under subsection (2), the court 10 must -- 11 (a) examine the train safety recording; and 12 (b) if satisfied that -- 13 (i) a material question of fact in the proceedings will not 14 be able to be properly determined from other 15 evidence available to the court; and 16 (ii) the train safety recording, or a part of the train safety 17 recording, if admitted in evidence in the proceedings, 18 will assist in the proper determination of that material 19 question of fact; and 20 (iii) in the circumstances of the case, the public interest in 21 the proper determination of that material question of 22 fact outweighs the public interest in protecting the 23 privacy of rail safety workers, 24 the court may order that the train safety recording, or that part 25 of the train safety recording, be admissible in evidence in the 26 proceedings. 27 (4) If the court makes an order referred to in subsection (3), the train 28 safety recording is (despite subsection (1)) admissible in evidence in 29 the proceedings. 30 Note: Part 6 of the Transport Safety Investigation Act 2003 of the 31 Commonwealth provides for limitations on the disclosure and use of 32 train safety recordings in court proceedings. page 129 Rail Safety National Law (WA) Bill 2014 Schedule Rail Safety National Law Part 3 Regulation of rail safety s. 133 1 Division 11 -- Audit of railway operations by Regulator 2 133. Audit of railway operations by Regulator 3 (1) The Regulator -- 4 (a) may audit the railway operations of a rail transport operator; 5 and 6 (b) may prepare and implement a program (an audit program) 7 for each year for inspecting the railway operations of rail 8 transport operators; and 9 (c) may, for the purposes of an audit, inspect the railway 10 operations of a rail transport operator, whether or not under 11 an audit program. 12 (2) Without limiting subsection (1)(b), an audit program may focus on 1 13 or more of the following -- 14 (a) particular rail transport operators; 15 (b) particular criteria relating to rail transport operators; 16 (c) particular aspects of rail safety; 17 (d) particular aspects of railway operations. 18 (3) The Regulator must give not less than 24 hours written notice to a rail 19 transport operator before inspecting the operator's railway operations 20 under this section. 21 (4) The national regulations may establish procedures for the conduct of 22 audits under this section, including procedures to ensure the 23 confidentiality of records. 24 (5) In this section -- 25 rail transport operator includes a person, not being an employee, 26 engaged to carry out railway operations, who undertakes railway 27 operations on or in relation to rail infrastructure or rolling stock of a 28 rail transport operator. page 130 Rail Safety National Law (WA) Bill 2014 Rail Safety National Law Schedule Securing compliance Part 4 s. 134 1 Part 4 -- Securing compliance 2 Division 1 -- Guiding principle 3 134. Guiding principle 4 Enforcement of this Law should be undertaken for the purpose of -- 5 (a) protecting public safety; and 6 (b) promoting improvement in rail safety; and 7 (c) removing incentive for any unfair commercial advantage that 8 might be derived from contravening the rail safety 9 requirements under this Law; and 10 (d) influencing the attitude and behaviour of persons whose 11 actions may have adverse impacts on rail safety; and 12 (e) securing compliance with this Law through effective and 13 appropriate compliance and enforcement measures. 14 Division 2 -- Rail safety officers 15 135. Appointment 16 (1) The Regulator may, by instrument in writing, appoint a person, or a 17 person of a prescribed class, to be a rail safety officer for a term, and 18 subject to the conditions, specified in the instrument. 19 Notes: 20 1 A person appointed under subsection (1) need not be an employee of 21 a government agency or instrumentality. 22 2 A person appointed under subsection (1) may be a police officer of a 23 participating jurisdiction. 24 (2) Without limiting the conditions to which the appointment of a rail 25 safety officer may be subject, a condition may specify 1 or more of 26 the following -- 27 (a) functions under this Law that may not be exercised by the 28 officer; 29 (b) the only functions under this Law that may be exercised by 30 the officer; page 131 Rail Safety National Law (WA) Bill 2014 Schedule Rail Safety National Law Part 4 Securing compliance s. 136 1 (c) the circumstances or manner in which a function under this 2 Law may be performed by the officer. 3 136. Identity cards 4 (1) The Regulator must give each rail safety officer an identity card that 5 states the person's name and appointment as a rail safety officer and 6 includes any other matter prescribed by the national regulations. 7 (2) A rail safety officer must produce his or her identity card for 8 inspection on request when exercising a function under this Law. 9 (3) If a person to whom an identity card has been issued ceases to be a 10 rail safety officer, the person must return the identity card to the 11 Regulator as soon as practicable. 12 Maximum penalty: $5 000. 13 137. Accountability of rail safety officers 14 (1) A rail safety officer must give written notice to the Regulator of all 15 interests, pecuniary or otherwise, that the officer has, or acquires, and 16 that conflict or could conflict with the proper exercise of the officer's 17 functions. 18 (2) The Regulator must give a direction to a rail safety officer not to deal, 19 or to no longer deal, with a matter if the Regulator becomes aware 20 that the officer has a potential conflict of interest in relation to a 21 matter and the Regulator considers that the officer should not deal, or 22 should no longer deal, with the matter. 23 138. Suspension and ending of appointment of rail safety officers 24 (1) The Regulator may suspend or end the appointment of a rail safety 25 officer. 26 (2) A person's appointment as a rail safety officer ends when the person 27 ceases to be eligible for appointment as a rail safety officer. 28 Division 3 -- Regulator has functions and powers of rail safety officers 29 139. Regulator has functions and powers of rail safety officers 30 (1) The Regulator has all the functions and powers that a rail safety 31 officer has under this Law. page 132 Rail Safety National Law (WA) Bill 2014 Rail Safety National Law Schedule Securing compliance Part 4 s. 140 1 (2) Accordingly, a reference in this Law to a rail safety officer includes a 2 reference to the Regulator. 3 Division 4 -- Functions and powers of rail safety officers 4 140. Functions and powers 5 A rail safety officer has the following functions and powers under this 6 Law -- 7 (a) to provide information and advice about compliance with this 8 Law; 9 (b) to require compliance with this Law through the issuing of 10 notices; 11 (c) to investigate contraventions of this Law and assist in the 12 prosecution of offences; 13 (d) other functions or powers conferred by the national 14 regulations. 15 141. Conditions on rail safety officers' powers 16 A rail safety officer's powers under this Law are subject to any 17 conditions specified in the instrument of the officer's appointment. 18 142. Rail safety officers subject to Regulator's directions 19 (1) A rail safety officer is subject to the directions of the Regulator in the 20 exercise of his or her powers under this Law. 21 (2) A direction under subsection (1) may be of a general nature or may 22 relate to a specified matter or specified class of matter. 23 Division 5 -- Powers relating to entry 24 Subdivision 1 -- General powers of entry 25 143. Powers of entry 26 (1) A rail safety officer may at any time enter a place that is, or that the 27 officer reasonably suspects is, railway premises. 28 (2) If a rail safety officer enters a place under subsection (1) and it is not 29 railway premises, the officer must leave the place immediately. page 133 Rail Safety National Law (WA) Bill 2014 Schedule Rail Safety National Law Part 4 Securing compliance s. 144 1 (3) A rail safety officer may enter a place that adjoins railway premises if 2 the entry is urgently required for the purpose of dealing with a railway 3 accident or incident. 4 (4) An entry may be made under subsection (1) or (3) with or without the 5 consent of the person with control or management of the place. 6 (5) A rail safety officer may enter any place if the entry is authorised by a 7 search warrant. 8 Note: A rail safety officer may enter residential premises to gain access to 9 railway premises -- see section 153(c). 10 144. Notification of entry 11 (1) A rail safety officer may enter a place under section 143 without prior 12 notice to any person. 13 (2) A rail safety officer must, as soon as practicable after entry to a place 14 that is, or that the officer reasonably suspects is, railway premises, 15 take all reasonable steps to notify the person with control or 16 management of the place. 17 (3) However, a rail safety officer is not required to notify any person if to 18 do so would defeat the purpose for which the place was entered or 19 cause unreasonable delay. 20 145. General powers on entry 21 (1) A rail safety officer who enters a place under section 143 may do any 22 of the following -- 23 (a) inspect, examine and make inquiries at the place; 24 (b) inspect and examine any thing (including a document) at the 25 place; 26 (c) bring to the place and use any equipment or materials that 27 may be required; 28 (d) enter or open, using reasonable force, rail infrastructure, 29 rolling stock, a road vehicle or other thing to examine the 30 structure, rolling stock, road vehicle or other thing; 31 (e) give directions with respect to the stopping or movement of 32 any rolling stock or road vehicle; page 134 Rail Safety National Law (WA) Bill 2014 Rail Safety National Law Schedule Securing compliance Part 4 s. 145 1 (f) take measurements, make surveys and take levels and, for 2 those purposes, dig trenches, break up the soil and set up any 3 posts, stakes or markers; 4 (g) conduct tests and make sketches or recordings (including 5 photographs, films, audio, video, digital or other recordings); 6 (h) mark, tag or otherwise identify rolling stock, a road vehicle or 7 other thing; 8 (i) seize any thing (including a document) at the place if the 9 officer reasonably believes the thing is evidence of an offence 10 against this Law; 11 (j) take and remove for analysis, testing or examination a sample 12 of any substance or thing without paying for it; 13 (k) require a person at the place to give the officer reasonable 14 help to exercise the officer's powers under paragraphs (a) 15 to (j); 16 (l) exercise any power that is reasonably necessary to be 17 exercised by the officer for the purposes of this Law. 18 (2) A film, photograph, video or digital recording, or other image, taken 19 under subsection (1)(g) of rail infrastructure, or of any part of rail 20 infrastructure, is not inadmissible as evidence by reason only of the 21 fact that it includes the likeness of 1 or more persons if the capturing 22 of that likeness is incidental to the taking of the film, photograph, 23 video or digital recording, or other image. 24 (3) A person required to give reasonable help under subsection (1)(k) 25 must not, without reasonable excuse, fail to comply with the 26 requirement. 27 Maximum penalty: 28 (a) in the case of an individual -- $10 000; 29 (b) in the case of a body corporate -- $50 000. 30 (4) Subsection (3) places an evidential burden on the accused to show a 31 reasonable excuse. 32 (5) In this section -- 33 reasonable help includes -- 34 (a) assistance to enable the rail safety officer to find and gain 35 access to electronically stored material and information; and page 135 Rail Safety National Law (WA) Bill 2014 Schedule Rail Safety National Law Part 4 Securing compliance s. 146 1 (b) unloading rolling stock; and 2 (c) running the engine of a locomotive; and 3 (d) driving a train; and 4 (e) giving the rail safety officer assistance to enter any rail 5 infrastructure or any part of rail infrastructure, or open rolling 6 stock or any part of rolling stock. 7 146. Persons assisting rail safety officers 8 (1) A person (the assistant), including an interpreter, may accompany a 9 rail safety officer entering a place under this Part to assist the officer 10 if the officer considers the assistance necessary. 11 (2) The assistant -- 12 (a) may do such things at the place and in such manner as the rail 13 safety officer reasonably requires to assist the officer in the 14 exercise of his or her powers under this Law; but 15 (b) must not do anything that the officer does not have power to 16 do, except as permitted under a search warrant. 17 (3) Anything done lawfully by the assistant is taken for all purposes to 18 have been done by the rail safety officer. 19 147. Use of electronic equipment 20 (1) Without limiting section 145, if -- 21 (a) a thing found in or on rolling stock or a road vehicle, or at a 22 place, is, or includes, a disk, tape or other device for the 23 storage of information; and 24 (b) the equipment in or on the rolling stock or road vehicle, or at 25 the place, may be used with the disk, tape or other device, 26 the rail safety officer, or a person assisting the officer, may operate 27 the equipment to access the information. 28 (2) A rail safety officer, or a person assisting a rail safety officer, must 29 not operate or seize equipment for the purpose mentioned in this 30 section unless the officer or person assisting believes on reasonable 31 grounds that the operation or seizure of the equipment can be carried 32 out without damage to the equipment. page 136 Rail Safety National Law (WA) Bill 2014 Rail Safety National Law Schedule Securing compliance Part 4 s. 148 1 148. Use of equipment to examine or process things 2 (1) Without limiting section 145, a rail safety officer exercising a power 3 under this Part may bring to, onto, or into, rolling stock, a road 4 vehicle or a place any equipment reasonably necessary for the 5 examination or processing of things found at, on or in the rolling 6 stock, road vehicle or place in order to determine whether they are 7 things that may be seized. 8 (2) The rail safety officer, or a person assisting the officer, may operate 9 equipment already in or on the rolling stock or road vehicle, or at the 10 place, to carry out the examination or processing of a thing found in 11 or on the rolling stock or road vehicle, or at the place in order to 12 determine whether it is a thing that may be seized, if the officer or 13 person assisting believes on reasonable grounds that -- 14 (a) the equipment is suitable for the examination or the 15 processing; and 16 (b) the examination or processing can be carried out without 17 damage to the equipment. 18 149. Securing a site 19 (1) For the purpose of protecting evidence that might be relevant for 20 compliance or investigative purposes, an authorised officer may 21 secure the perimeter of any site at a place by whatever means the 22 authorised officer considers appropriate. 23 (2) A person must not, without the permission of an authorised officer, 24 enter or remain at a site the perimeter of which is secured under this 25 section. 26 Maximum penalty: $10 000. 27 (3) Subsection (2) does not apply if the person enters the site, or remains 28 at the site -- 29 (a) to ensure the safety of persons; or 30 (b) to remove deceased persons or animals from the site; or 31 (c) to move a road vehicle, or the wreckage of a road vehicle, to 32 a safe place; or 33 (d) to protect the environment from significant damage or 34 pollution. page 137 Rail Safety National Law (WA) Bill 2014 Schedule Rail Safety National Law Part 4 Securing compliance s. 150 1 (4) An authorised officer must not unreasonably withhold a permission 2 referred to in subsection (2). 3 (5) In this section -- 4 authorised officer means a rail safety officer or a police officer. 5 Note: See also Part 5 Division 3 which provides for the issue of a 6 non-disturbance notice. 7 Subdivision 2 -- Search warrants 8 150. Search warrants 9 (1) A rail safety officer may apply to a magistrate for a search warrant for 10 a place. 11 (2) Subject to subsection (6), the application must be sworn and state the 12 grounds on which the warrant is sought. 13 (3) The magistrate may refuse to consider the application until the rail 14 safety officer gives the magistrate all the information the magistrate 15 requires about the application in the way the magistrate requires. 16 Example: The magistrate may require additional information supporting the 17 application to be given by statutory declaration. 18 (4) The magistrate may issue a search warrant only if the magistrate is 19 satisfied there are reasonable grounds for suspecting -- 20 (a) there is a particular thing or activity (the evidence) that may 21 provide evidence of an offence against this Law; and 22 (b) the evidence is, or may be within the next 72 hours, at the 23 place. 24 (5) Subject to subsection (6), the search warrant must state -- 25 (a) that a stated rail safety officer may, with necessary and 26 reasonable help and force, enter the place and exercise the 27 powers of the officer; and 28 (b) the offence for which the search warrant is sought; and 29 (c) the evidence that may be seized under the search warrant; and 30 (d) the hours of the day or night when the place may be entered; 31 and page 138 Rail Safety National Law (WA) Bill 2014 Rail Safety National Law Schedule Securing compliance Part 4 s. 150 1 (e) the date, within 7 days after the search warrant's issue, the 2 search warrant ends. 3 (6) A rail safety officer may apply to a magistrate for a search warrant by 4 telephone, fax or other prescribed means if the officer considers the 5 urgency of the situation requires it and, in such a case, the following 6 provisions will apply -- 7 (a) the magistrate may complete and sign the warrant without the 8 provision of sworn evidence and without a written application 9 that states the grounds on which the warrant is sought if the 10 magistrate is satisfied that there are reasonable grounds for 11 issuing the warrant urgently; 12 (b) if the magistrate completes and signs a warrant under 13 paragraph (a), the magistrate must then tell the officer -- 14 (i) the terms of the warrant (as contemplated by 15 subsection (5)); and 16 (ii) the date on which, and the time at which, the warrant 17 was signed; 18 (c) if steps are taken under paragraph (b), the officer must 19 then -- 20 (i) complete a form of warrant in the same terms as the 21 warrant signed by the magistrate and write on the 22 form -- 23 (A) the name of the magistrate; and 24 (B) the date on which, and the time at which, 25 the warrant was signed; 26 and 27 (ii) send the magistrate the completed form of warrant 28 not later than the day after the warrant is executed or 29 comes to an end; 30 (d) a form of warrant completed by an officer under 31 paragraph (c) has the same force and effect as a warrant 32 signed by the magistrate under subsections (4) and (5). page 139 Rail Safety National Law (WA) Bill 2014 Schedule Rail Safety National Law Part 4 Securing compliance s. 151 1 151. Announcement before entry on warrant 2 (1) Before executing a search warrant, the rail safety officer named in the 3 warrant or an assistant to the officer must -- 4 (a) announce that he or she is authorised by the warrant to enter 5 the place; and 6 (b) give any person at the place an opportunity to allow that 7 entry. 8 (2) However, the rail safety officer or an assistant to the officer need not 9 comply with subsection (1) if he or she believes on reasonable 10 grounds that immediate entry to the place is needed to ensure -- 11 (a) the safety of any person; or 12 (b) that the effective execution of the warrant is not frustrated. 13 152. Copy of warrant to be given to person with control or 14 management of place 15 If the person who has or appears to have control or management of a 16 place is present at the place when a search warrant is being executed, 17 the rail safety officer must -- 18 (a) identify himself or herself to that person by producing his or 19 her identity card for inspection; and 20 (b) give that person a copy of the warrant. 21 Subdivision 3 -- Limitation on entry powers 22 153. Places used for residential purposes 23 Despite anything else in this Division, the powers of a rail safety 24 officer under this Part in relation to entering a place are not 25 exercisable in respect of any part of a place that is used only for 26 residential purposes except -- 27 (a) with the consent of the person with control or management of 28 the place; or 29 (b) under the authority conferred by a search warrant; or page 140 Rail Safety National Law (WA) Bill 2014 Rail Safety National Law Schedule Securing compliance Part 4 s. 154 1 (c) for the sole purpose of gaining access to suspected railway 2 premises, but only -- 3 (i) if the officer reasonably believes that no reasonable 4 alternative access is available; and 5 (ii) at a reasonable time, having regard to the times at 6 which the officer believes rail safety work is being 7 carried out at the place to which access is sought. 8 Subdivision 4 -- Specific powers on entry 9 154. Power to require production of documents and answers to 10 questions 11 (1) A rail safety officer who enters a place under this Division may -- 12 (a) require a person to tell the officer who has custody of, or 13 access to, a document; or 14 (b) require a person who has custody of, or access to, a document 15 to produce that document to the officer while the officer is at 16 the place, or within a specified period; or 17 (c) require a person at the place to answer any questions put by 18 the officer. 19 (2) A requirement under subsection (1)(b) must be made by written notice 20 unless the circumstances require the rail safety officer to have 21 immediate access to the document. 22 (3) An interview conducted by a rail safety officer under subsection (1)(c) 23 must be conducted in private if -- 24 (a) the rail safety officer considers it appropriate; or 25 (b) the person being interviewed so requests. 26 (4) Subsection (3) does not limit the operation of section 146 or prevent a 27 representative of the person being interviewed from being present at 28 the interview. 29 (5) Subsection (3) may be invoked during an interview by -- 30 (a) the rail safety officer; or 31 (b) the person being interviewed, 32 in which case the subsection applies to the remainder of the interview. page 141 Rail Safety National Law (WA) Bill 2014 Schedule Rail Safety National Law Part 4 Securing compliance s. 155 1 (6) A person must not, without reasonable excuse, fail to comply with a 2 requirement under this section. 3 Maximum penalty: 4 (a) in the case of an individual -- $5 000; 5 (b) in the case of a body corporate -- $25 000. 6 (7) Subsection (6) places an evidential burden on the accused to show a 7 reasonable excuse. 8 155. Abrogation of privilege against self-incrimination 9 (1) A person is not excused from answering a question or providing 10 information or a document under this Part on the ground that the 11 answer to the question, or the information or document, may tend to 12 incriminate the person or expose the person to a penalty. 13 (2) However, the answer to a question or information or a document 14 provided by an individual is not admissible as evidence against that 15 individual in civil or criminal proceedings other than proceedings 16 arising out of the false or misleading nature of the answer, 17 information or document. 18 156. Warning to be given 19 (1) Before requiring a person to answer a question or provide information 20 or a document under this Part, a rail safety officer must -- 21 (a) identify himself or herself to the person as a rail safety officer 22 by producing the officer's identity card or in some other way; 23 and 24 (b) warn the person that failure to comply with the requirement 25 or to answer the question, without reasonable excuse, would 26 constitute an offence; and 27 (c) warn the person about the effect of section 155; and 28 (d) advise the person about the effect of section 245. 29 (2) It is not an offence for an individual to refuse to answer a question put 30 by a rail safety officer or provide information or a document to a rail 31 safety officer under this Part on the ground that the question, 32 information or document might tend to incriminate him or her, unless 33 he or she was first given the warning in subsection (1)(c). page 142 Rail Safety National Law (WA) Bill 2014 Rail Safety National Law Schedule Securing compliance Part 4 s. 157 1 (3) Nothing in this section prevents a rail safety officer from obtaining 2 and using evidence given to the officer voluntarily by any person. 3 157. Power to copy and retain documents 4 (1) A rail safety officer may -- 5 (a) make copies of, or take extracts from, a document given to 6 the officer in accordance with a requirement under this Law; 7 and 8 (b) keep that document for the period that the officer considers 9 necessary. 10 (2) While a rail safety officer retains custody of a document, the officer 11 must permit the following persons to inspect or make copies of the 12 document at all reasonable times: 13 (a) the person who produced the document; 14 (b) the owner of the document; 15 (c) a person authorised by a person referred to in paragraph (a) 16 or (b). 17 Subdivision 5 -- Powers to support seizure 18 158. Power to seize evidence etc 19 (1) A rail safety officer who enters railway premises under section 143 20 may seize anything (including a document) at the premises if the 21 officer reasonably believes the thing is evidence of an offence against 22 this Law. 23 (2) A rail safety officer who enters a place with a search warrant may 24 seize the evidence for which the warrant was issued. 25 (3) A rail safety officer may also seize anything else at the place if the 26 officer reasonably believes -- 27 (a) the thing is evidence of an offence against this Law; and 28 (b) the seizure is necessary to prevent the thing being hidden, lost 29 or destroyed or used to continue or repeat the offence. page 143 Rail Safety National Law (WA) Bill 2014 Schedule Rail Safety National Law Part 4 Securing compliance s. 159 1 159. Directions relating to seizure 2 (1) To enable a thing to be seized under this Part, a rail safety officer may 3 direct the person in control of it -- 4 (a) to take it to a specified place within a specified time; and 5 (b) if necessary, to remain in control of it at the specified place 6 for a period specified in the direction. 7 (2) A direction under subsection (1) -- 8 (a) must be given by signed written notice given to the person; or 9 (b) if for any reason it is not practicable to give a signed written 10 notice to the person -- may be given orally and confirmed by 11 signed written notice given to the person as soon as is 12 practicable. 13 (3) A further direction may be made under this section about the thing if 14 it is necessary and reasonable to make the further direction. 15 Example: A further direction may (for example) be that the thing be 16 transported during stated off-peak hours, be transported along a 17 particular route, or be transported in a particular way. 18 (4) A person given a direction under subsection (1) or (3) must comply 19 with that direction unless the person has a reasonable excuse. 20 Maximum penalty: $5 000. 21 (5) Subsection (4) places an evidential burden on the accused to show a 22 reasonable excuse. 23 (6) Without limiting what may otherwise be a reasonable excuse under 24 subsection (4), it is a reasonable excuse for a person in control of a 25 thing not to comply with a direction under subsection (1) or (3) if, in 26 all the circumstances, the direction was unreasonable. 27 (7) In this section -- 28 in control, in relation to a thing, means having, or reasonably 29 appearing to a rail safety officer as having, authority to exercise 30 control over the thing. 31 160. Rail safety officer may direct a thing's return 32 (1) If a rail safety officer has directed a person to take a thing to a 33 specified place within a specified time under section 159(1), a rail page 144 Rail Safety National Law (WA) Bill 2014 Rail Safety National Law Schedule Securing compliance Part 4 s. 161 1 safety officer may direct the person to return the thing to the place 2 from which it was taken. 3 (2) A person given a direction under subsection (1) must comply with 4 that direction unless the person has a reasonable excuse. 5 Maximum penalty: $5 000. 6 (3) Subsection (2) places an evidential burden on the accused to show a 7 reasonable excuse. 8 161. Receipt for seized things 9 (1) After a rail safety officer seizes a thing under this Part, the officer 10 must give a receipt for it to the person from whom the thing was 11 seized or the owner of the thing. 12 (2) However, if for any reason it is not practicable to comply with 13 subsection (1), the rail safety officer must leave the receipt at the 14 place of seizure in a conspicuous position and in a reasonably secure 15 way. 16 (3) The receipt must describe generally the thing seized and its condition. 17 (4) This section does not apply if it would be impracticable or 18 unreasonable to expect the rail safety officer to account for the thing, 19 given its condition, nature and value. 20 162. Forfeiture of seized things 21 (1) A seized thing is forfeited to the Regulator if the Regulator -- 22 (a) cannot find the person entitled to the thing after making 23 reasonable inquiries; or 24 (b) cannot return it to the person entitled to it, after making 25 reasonable efforts; or 26 (c) reasonably believes it is necessary to forfeit the thing to 27 prevent it being used to commit an offence against this Law. 28 (2) Subsection (1)(a) does not require the Regulator to make inquiries if it 29 would be unreasonable to make inquiries to find the person entitled to 30 the thing. page 145 Rail Safety National Law (WA) Bill 2014 Schedule Rail Safety National Law Part 4 Securing compliance s. 163 1 (3) Subsection (1)(b) does not require the Regulator to make efforts if it 2 would be unreasonable to make efforts to return the thing to the 3 person entitled to it. 4 (4) If the Regulator decides to forfeit the thing under subsection (1)(c), 5 the Regulator must tell the person entitled to the thing of the decision 6 by written notice. 7 (5) Subsection (4) does not apply if -- 8 (a) the Regulator cannot find the person entitled to the thing, 9 after making reasonable inquiries; or 10 (b) it is impracticable or would be unreasonable to give the 11 notice. 12 (6) The notice must state -- 13 (a) the reasons for the decision; and 14 (b) information about the right of review under Part 7. 15 (7) In deciding whether and, if so, what inquiries and efforts are 16 reasonable or whether it would be unreasonable to give notice about a 17 thing, regard must be had to the thing's nature, condition and value. 18 (8) Any costs reasonably incurred by the Regulator in storing or 19 disposing of a thing forfeited under subsection (1)(c) may be 20 recovered in a court of competent jurisdiction as a debt due to the 21 Regulator from that person. 22 (9) In this section -- 23 person entitled to a thing means the person from whom it was seized 24 unless that person is not entitled to possess it in which case it means 25 the owner of the thing. 26 163. Return of seized things 27 (1) If a seized thing has not been forfeited under this Part, the person 28 entitled to the thing may apply to the Regulator for the return of the 29 thing after the end of 6 months after it was seized. 30 (2) The Regulator must return the thing to the applicant under 31 subsection (1) unless the Regulator has reasonable grounds to retain 32 the thing. page 146 Rail Safety National Law (WA) Bill 2014 Rail Safety National Law Schedule Securing compliance Part 4 s. 164 1 (3) The Regulator may impose any conditions on the return of the thing 2 under this section that the Regulator considers appropriate to 3 eliminate or minimise any risk to rail safety related to the thing. 4 (4) In this section -- 5 person entitled to a thing means the person entitled to possess the 6 thing or the owner of the thing. 7 164. Access to seized thing 8 (1) Until a seized thing is forfeited or returned under this Part, a rail 9 safety officer must allow its owner to inspect it and, if it is a 10 document, to copy it. 11 (2) Subsection (1) does not apply if it is impracticable or it would be 12 unreasonable to allow the inspection or copying. 13 Division 6 -- Damage and compensation 14 165. Damage etc to be minimised 15 In the exercise, or purported exercise, of a power under this Law, a 16 rail safety officer must take all reasonable steps to ensure that the 17 officer, and any assistant to the officer, cause as little inconvenience, 18 detriment and damage as is practicable. 19 166. Rail safety officer to give notice of damage 20 (1) This section applies if a rail safety officer or an assistant to a rail 21 safety officer damages a thing when exercising or purporting to 22 exercise a power under this Law. 23 (2) The rail safety officer must, as soon as practicable, give written notice 24 of the damage to the person whom the officer believes on reasonable 25 grounds is the person in control of the thing. 26 (3) If the rail safety officer believes the damage was caused by a latent 27 defect in the thing or circumstances beyond the officer's or assistant's 28 control, the officer may state it in the notice. 29 (4) If, for any reason, it is impracticable to comply with subsection (2), 30 the rail safety officer must leave the notice in a conspicuous position 31 and in a reasonably secure way where the damage happened. page 147 Rail Safety National Law (WA) Bill 2014 Schedule Rail Safety National Law Part 4 Securing compliance s. 167 1 (5) This section does not apply to damage the rail safety officer 2 reasonably believes is trivial. 3 167. Compensation 4 (1) A person may claim compensation from the Regulator if the person 5 incurs loss or expense because of the exercise or purported exercise of 6 a power under Division 5. 7 (2) Compensation may be claimed and ordered in a proceeding -- 8 (a) brought in a court of competent jurisdiction; or 9 (b) for an offence against this Law brought against the person 10 claiming compensation. 11 (3) The court may order compensation to be paid only if it is satisfied it is 12 just to make the order in the circumstances of the particular case. 13 (4) The national regulations may prescribe matters that may, or must, be 14 taken into account by the court when considering whether it is just to 15 make the order. 16 Division 7 -- Other matters 17 168. Power to require name and address 18 (1) A rail safety officer may require a person to provide the person's 19 name and residential address if -- 20 (a) the officer finds the person committing an offence against this 21 Law; or 22 (b) the officer finds the person in circumstances that lead, or has 23 information that leads, the officer to reasonably suspect the 24 person has committed an offence against this Law; or 25 (c) the officer reasonably believes that the person may be able to 26 assist in the investigation of an offence against this Law. 27 (2) When asking a person to provide the person's name and residential 28 address, the rail safety officer must -- 29 (a) tell the person the reason for the requirement to provide the 30 person's name and residential address; and page 148 Rail Safety National Law (WA) Bill 2014 Rail Safety National Law Schedule Securing compliance Part 4 s. 169 1 (b) warn the person that it is an offence to fail to state that name 2 and residential address, unless the person has a reasonable 3 excuse. 4 (3) If the rail safety officer reasonably believes that the name or 5 residential address is false, the officer may require the person to give 6 evidence of its correctness. 7 (4) A person must not, without reasonable excuse, fail to comply with a 8 requirement under subsection (1) or (3). 9 Maximum penalty: $5 000. 10 (5) Subsection (4) places an evidential burden on the accused to show a 11 reasonable excuse. 12 169. Rail safety officer may take affidavits 13 A rail safety officer is authorised to take affidavits for any purpose 14 relating or incidental to the exercise of his or her powers under this 15 Law. 16 170. Attendance of rail safety officer at inquiries 17 A rail safety officer may participate in any inquiry into the cause of 18 any death or injury of a rail safety worker while carrying out rail 19 safety work, or into any other incident or event relevant to safety at 20 railway premises. 21 171. Directions may be given under more than 1 provision 22 (1) A rail safety officer may, on the same occasion, give directions under 23 1 or more provisions of this Law. 24 (2) Without limiting subsection (1), a rail safety officer may, in the 25 course of exercising powers under a provision of this Law, give -- 26 (a) further directions under the provision; or 27 (b) directions under 1 or more other provisions of this Law, 28 or both. page 149 Rail Safety National Law (WA) Bill 2014 Schedule Rail Safety National Law Part 5 Enforcement measures s. 172 1 Division 8 -- Offences in relation to rail safety officers 2 172. Offence to hinder or obstruct rail safety officer 3 A person must not intentionally hinder or obstruct a rail safety officer 4 in exercising his or her powers under this Law, or induce or attempt to 5 induce any other person to do so. 6 Maximum penalty: $10 000. 7 173. Offence to impersonate rail safety officer 8 A person who is not a rail safety officer must not, in any way, hold 9 himself or herself out to be a rail safety officer. 10 Maximum penalty: $10 000. 11 174. Offence to assault, threaten or intimidate rail safety officer 12 A person must not directly or indirectly assault, threaten or intimidate, 13 or attempt to assault, threaten or intimidate, a rail safety officer or a 14 person assisting a rail safety officer. 15 Maximum penalty: 16 (a) in the case of an individual -- $50 000 or imprisonment 17 for 2 years, or both; 18 (b) in the case of a body corporate -- $250 000. 19 Part 5 -- Enforcement measures 20 Division 1 -- Improvement notices 21 175. Issue of improvement notices 22 (1) This section applies if a rail safety officer reasonably believes that a 23 person -- 24 (a) is contravening a provision of this Law; or 25 (b) has contravened a provision of this Law in circumstances that 26 make it likely that the contravention will continue or be 27 repeated; or 28 (c) is carrying out or has carried out -- 29 (i) railway operations that threaten safety; or page 150 Rail Safety National Law (WA) Bill 2014 Rail Safety National Law Schedule Enforcement measures Part 5 s. 175 1 (ii) other operations that threaten rail safety. 2 (2) Subject to this section, the rail safety officer may issue an 3 improvement notice requiring the person -- 4 (a) to remedy the contravention; or 5 (b) to prevent a likely contravention from occurring; or 6 (c) to remedy the things or operations causing the contravention 7 or likely contravention; or 8 (d) to carry out railway operations or other operations so that 9 safety is not threatened or likely to be threatened. 10 (3) Before serving an improvement notice issued to a person on a ground 11 stated in subsection (1)(a) or (b) that includes a direction that the 12 person take specified action to remedy the contravention or prevent 13 the likely contravention, or to remedy the things or operations causing 14 the contravention or likely contravention, the Regulator must, if of the 15 opinion that the action is likely to result in significant costs or 16 expenses to the person or any other person -- 17 (a) conduct or cause to be conducted a cost-benefit analysis of 18 the effect of the action; and 19 (b) consult with the Premier or Chief Minister, the Treasurer, and 20 any other Minister, of a participating jurisdiction whose area 21 of responsibility is likely to be affected by the action. 22 (4) Before serving an improvement notice issued to a person on a ground 23 stated in subsection (1)(c) that includes a direction that the person 24 take specified action by which railway operations or other operations 25 may be carried out so that safety is not threatened or likely to be 26 threatened, the Regulator must, if of the opinion that the action is 27 likely to result in significant costs or expenses to the person or any 28 other person -- 29 (a) conduct or cause to be conducted a cost-benefit analysis of 30 the effect of the action; and 31 (b) consult with the Premier or Chief Minister, the Treasurer, and 32 any other Minister, of a participating jurisdiction whose area 33 of responsibility is likely to be affected by the action. 34 (5) Subsections (3) and (4) do not apply if the Regulator considers it 35 necessary to take immediate action in the interests of safety but, if the page 151 Rail Safety National Law (WA) Bill 2014 Schedule Rail Safety National Law Part 5 Enforcement measures s. 176 1 action is likely to result in significant costs or expenses to the person 2 or any other person, the Regulator must, as soon as practicable after 3 taking the action -- 4 (a) conduct or cause to be conducted a cost-benefit analysis of 5 the effect of the action; and 6 (b) consult with the Premier or Chief Minister, the Treasurer, and 7 any other Minister, of a participating jurisdiction whose area 8 of responsibility is likely to be affected by the action. 9 176. Contents of improvement notices 10 (1) An improvement notice must -- 11 (a) if the notice relates to a contravention or likely contravention 12 of this Law -- 13 (i) state that the rail safety officer believes the person -- 14 (A) is contravening a provision of this Law; or 15 (B) has contravened a provision of this Law in 16 circumstances that make it likely that the 17 contravention will continue or be repeated; 18 and 19 (ii) state the provision the officer believes is being, or has 20 been, contravened; and 21 (iii) briefly, state how the provision is being, or has been, 22 contravened; and 23 (iv) state the day before which the person is required to 24 remedy the contravention or likely contravention; 25 and 26 (b) in any other case -- 27 (i) state that the rail safety officer believes the person is 28 carrying out or has carried out -- 29 (A) railway operations that threaten safety; or 30 (B) other operations that threaten rail safety; 31 and page 152 Rail Safety National Law (WA) Bill 2014 Rail Safety National Law Schedule Enforcement measures Part 5 s. 177 1 (ii) briefly, state how -- 2 (A) the railway operations are threatening, or 3 have threatened, safety; or 4 (B) the other operations are threatening, or have 5 threatened, rail safety; 6 and 7 (iii) state the day before which the person is required to 8 carry out railway operations or other operations so 9 that safety is not threatened or likely to be threatened; 10 and 11 (c) if a cost-benefit analysis has been carried out under 12 section 175, set out the results of that analysis; and 13 (d) set out the penalty for non-compliance with the notice; and 14 (e) include information about the right to a review under Part 7 15 of the decision to serve the notice; and 16 (f) state that the notice is served under this section. 17 (2) An improvement notice served on a person on a ground stated in 18 section 175(1)(a) or (b) may include directions concerning the action 19 to be taken to remedy the contravention or prevent the likely 20 contravention, or the things or operations causing the contravention or 21 likely contravention, to which the notice relates. 22 (3) An improvement notice served on a person on the ground stated in 23 section 175(1)(c) may include directions concerning the action to be 24 taken by which railway operations or other operations to which the 25 notice relates may be carried out so that safety is not threatened or 26 likely to be threatened. 27 (4) The day stated for compliance with the improvement notice must be 28 reasonable in all the circumstances. 29 177. Compliance with improvement notice 30 The person to whom an improvement notice is issued must comply 31 with the notice within the period specified in the notice. 32 Maximum penalty: 33 (a) in the case of an individual -- $50 000; page 153 Rail Safety National Law (WA) Bill 2014 Schedule Rail Safety National Law Part 5 Enforcement measures s. 178 1 (b) in the case of a body corporate -- $500 000. 2 178. Extension of time for compliance with improvement notices 3 (1) This section applies if a person has been issued with an improvement 4 notice. 5 (2) A rail safety officer may, by written notice given to the person, extend 6 the compliance period for the improvement notice. 7 (3) However, the rail safety officer may only extend the compliance 8 period if the period has not ended. 9 (4) In this section -- 10 compliance period means the period stated in the improvement notice 11 under section 176, and includes that period as extended under this 12 section. 13 Division 2 -- Prohibition notices 14 179. Issue of prohibition notice 15 (1) This section applies if a rail safety officer reasonably believes that -- 16 (a) an activity is occurring in relation to railway operations or 17 railway premises that involves or will involve an immediate 18 risk to safety; or 19 (b) an activity may occur in relation to railway operations or 20 railway premises that, if it occurs, will involve an immediate 21 risk to safety; or 22 (c) an activity may occur at, on, or in, the immediate vicinity of 23 rail infrastructure or rolling stock that, if it occurs, will 24 involve an immediate risk to safety. 25 (2) The rail safety officer may issue a prohibition notice to a person who 26 has, or appears to have, control over the activity prohibiting the 27 carrying on of the activity, or the carrying on of the activity in a 28 specified way, until a rail safety officer is satisfied that the matters 29 that give or will give rise to the risk have been remedied. 30 (3) A prohibition notice may be issued orally, but must be confirmed by 31 written notice given to the person as soon as practicable. page 154 Rail Safety National Law (WA) Bill 2014 Rail Safety National Law Schedule Enforcement measures Part 5 s. 180 1 180. Contents of prohibition notice 2 (1) A prohibition notice must -- 3 (a) state that the rail safety officer believes that grounds for the 4 issue of the prohibition notice exist and the basis for that 5 belief; and 6 (b) briefly, state the activity that the officer believes involves or 7 will involve the risk and the matters that give or will give rise 8 to the risk; and 9 (c) state the provision (if any) of this Law that the officer 10 believes is being, or is likely to be, contravened by that 11 activity; and 12 (d) set out the penalty for contravening the notice; and 13 (e) include information about the right to a review under Part 7 14 of the decision to serve the notice; and 15 (f) state that the notice is served under this section. 16 (2) A prohibition notice may include directions on the measures to be 17 taken to remedy the risk, activities or matters to which the notice 18 relates, or the contravention or likely contravention mentioned in 19 subsection (1)(c). 20 (3) A direction in a prohibition notice may offer the person on whom the 21 notice has been served a choice of ways to remedy the risk, activities 22 or matters to which the notice relates, or the contravention or likely 23 contravention mentioned in subsection (1)(c). 24 (4) Without limiting section 179, a prohibition notice that prohibits the 25 carrying on of an activity in a specified way may do so by specifying 26 1 or more of the following -- 27 (a) a place, or part of a place, at which the activity is not to be 28 carried out; 29 (b) any thing that is not to be used in connection with the 30 activity; 31 (c) any procedure that is not to be followed in connection with 32 the activity. page 155 Rail Safety National Law (WA) Bill 2014 Schedule Rail Safety National Law Part 5 Enforcement measures s. 181 1 181. Compliance with prohibition notice 2 The person to whom a direction is given under this Division or a 3 prohibition notice is issued must comply with the direction or notice. 4 Maximum penalty: 5 (a) in the case of an individual -- $150 000; 6 (b) in the case of a body corporate -- $1 500 000. 7 Division 3 -- Non-disturbance notices 8 182. Issue of non-disturbance notice 9 A rail safety officer may issue a non-disturbance notice to the person 10 with control or management of railway premises if the officer 11 reasonably believes that it is necessary to do so to facilitate the 12 exercise of his or her powers under this Law. 13 183. Contents of non-disturbance notice 14 (1) A non-disturbance notice may require the person to -- 15 (a) preserve the site at which a notifiable occurrence has 16 occurred for a specified period; or 17 (b) prevent the disturbance of a particular site (including the 18 operation of plant) in other circumstances for a specified 19 period that is reasonable in the circumstances. 20 (2) A non-disturbance notice must specify the period (of no more than 21 7 days) for which it applies and set out -- 22 (a) the obligations of the person to whom the notice is issued; 23 and 24 (b) the measures to be taken to preserve a site or prevent 25 disturbance of a site; and 26 (c) information about the right to a review under Part 7 of the 27 decision to serve the notice; and 28 (d) the penalty for contravening the notice. 29 (3) In subsection (1), a reference to a site includes any plant, substance, 30 structure or thing associated with the site. page 156 Rail Safety National Law (WA) Bill 2014 Rail Safety National Law Schedule Enforcement measures Part 5 s. 184 1 (4) A non-disturbance notice does not prevent any action -- 2 (a) to assist an injured person; or 3 (b) to remove a deceased person; or 4 (c) that is essential to make the site safe or prevent a further 5 incident; or 6 (d) that is associated with a police investigation; or 7 (e) in respect of which a rail safety officer has given permission. 8 184. Compliance with non-disturbance notice 9 (1) A person must not, without reasonable excuse, fail to comply with a 10 non-disturbance notice issued to the person. 11 Maximum penalty: 12 (a) in the case of an individual -- $20 000; 13 (b) in the case of a body corporate -- $100 000. 14 (2) Subsection (1) places an evidential burden on the accused to show a 15 reasonable excuse. 16 185. Issue of subsequent notices 17 If a rail safety officer considers it necessary to do so, he or she may 18 issue 1 or more subsequent non-disturbance notices to a person, 19 whether before or after the expiry of the previous notice, each of 20 which must comply with section 183. 21 Division 4 -- General requirements applying to notices 22 186. Application of Division 23 In this Division -- 24 notice means an improvement notice, or a prohibition notice or 25 non-disturbance notice. 26 187. Notice to be in writing 27 (1) Subject to subsection (2), a notice must be in writing. 28 (2) A prohibition notice may be issued orally, but must be confirmed by 29 written notice as soon as practicable. page 157 Rail Safety National Law (WA) Bill 2014 Schedule Rail Safety National Law Part 5 Enforcement measures s. 188 1 188. Directions in notices 2 A direction included in an improvement notice or prohibition notice 3 may -- 4 (a) refer to an approved code of practice; and 5 (b) offer the person to whom it is issued a choice of ways in 6 which to remedy the contravention. 7 189. Recommendations in notice 8 (1) An improvement notice or prohibition notice may include 9 recommendations. 10 (2) It is not an offence to fail to comply with recommendations in an 11 improvement notice or a prohibition notice. 12 190. Variation or cancellation of notice by rail safety officer 13 (1) A rail safety officer may make minor changes to a notice -- 14 (a) for clarification; or 15 (b) to correct errors or references; or 16 (c) to reflect changes of address or other circumstances. 17 (2) A rail safety officer may extend the compliance period for an 18 improvement notice in accordance with section 178. 19 (3) A rail safety officer may cancel a notice. 20 191. Formal irregularities or defects in notice 21 A notice is not invalid merely because of -- 22 (a) a formal defect or irregularity in the notice unless the defect 23 or irregularity causes or is likely to cause substantial 24 injustice; or 25 (b) a failure to use the correct name of the person to whom the 26 notice is issued if the notice sufficiently identifies the person 27 and is issued or given to the person in accordance with 28 section 192. page 158 Rail Safety National Law (WA) Bill 2014 Rail Safety National Law Schedule Enforcement measures Part 5 s. 192 1 192. Serving notices 2 (1) A notice may be served on a person -- 3 (a) in accordance with section 258; or 4 (b) by leaving it for the person at the railway premises to which 5 the notice relates with a person who is or appears to be the 6 person with control or management of the premises; or 7 (c) in a prescribed manner. 8 (2) The national regulations may prescribe -- 9 (a) the manner of serving a notice; and 10 (b) the steps a person on whom a notice is served must take to 11 bring it to the attention of other persons. 12 Division 5 -- Remedial action 13 193. When Regulator may carry out action 14 (1) This section applies if a person to whom a prohibition notice is issued 15 fails to take reasonable steps to comply with the notice. 16 (2) The Regulator may take any remedial action the Regulator believes 17 reasonable to make the railway premises or situation safe after giving 18 written notice to the person to whom the prohibition notice was issued 19 of -- 20 (a) the Regulator's intention to take that action; and 21 (b) the owner's or person's liability for the costs of that action. 22 194. Power of Regulator to take other remedial action 23 (1) This section applies if the Regulator reasonably believes that -- 24 (a) circumstances in which a prohibition notice can be issued 25 exist; and 26 (b) a prohibition notice cannot be issued at railway premises 27 because, after taking reasonable steps, the person with control 28 or management of the premises cannot be found. 29 (2) The Regulator may take any remedial action necessary to make the 30 railway premises safe. page 159 Rail Safety National Law (WA) Bill 2014 Schedule Rail Safety National Law Part 5 Enforcement measures s. 195 1 195. Costs of remedial or other action 2 The Regulator may recover the reasonable costs of any remedial 3 action taken under -- 4 (a) section 193 from the person to whom the notice is issued; or 5 (b) section 194 from any person to whom the prohibition notice 6 could have been issued in respect of the matter, 7 as a debt due to the Regulator. 8 Division 6 -- Injunctions 9 196. Application of Division 10 In this Division -- 11 notice means an improvement notice, or a prohibition notice or 12 non-disturbance notice. 13 197. Injunctions for non-compliance with notices 14 (1) The Regulator may apply to the court for an injunction -- 15 (a) compelling a person to comply with a notice; or 16 (b) restraining a person from contravening a notice. 17 (2) The Regulator may do so -- 18 (a) whether or not proceedings have been brought for an offence 19 against this Law in connection with any matter in respect of 20 which the notice was issued; and 21 (b) whether any period for compliance with the notice has 22 expired. 23 Division 7 -- Miscellaneous 24 198. Response to certain reports 25 (1) The Regulator may, if of the opinion as a result of a report to which 26 this section applies that action is necessary for the purpose of the safe 27 construction or operation of a railway, direct a rail transport operator, 28 by written notice, to install on or with respect to the infrastructure of 29 the railway, or on or with respect to rolling stock, within the time page 160 Rail Safety National Law (WA) Bill 2014 Rail Safety National Law Schedule Enforcement measures Part 5 s. 198 1 specified in the notice, safety or protective systems, devices, 2 equipment or appliances specified in the notice. 3 (2) A direction under this section must state the reasons why the 4 Regulator considers it is necessary for the rail transport operator to 5 take the action specified in the direction and include information 6 about the right of review under Part 7. 7 (3) If the action specified to be taken in a direction is, in the opinion of 8 the Regulator, likely to result in significant costs or expenses to the 9 rail transport operator, the Regulator must, before giving the 10 direction -- 11 (a) conduct or cause to be conducted a cost-benefit analysis of 12 the effect of taking the action; and 13 (b) consult with the Premier or Chief Minister, the Treasurer, and 14 any other Minister, of a participating jurisdiction whose area 15 of responsibility is likely to be affected by the action. 16 (4) A rail transport operator must not, without reasonable excuse, fail to 17 comply with a direction under this section. 18 Maximum penalty: 19 (a) in the case of an individual -- $150 000; 20 (b) in the case of a body corporate -- $1 500 000. 21 (5) Subsection (4) places an evidential burden on the accused to show a 22 reasonable excuse. 23 (6) A report to which this section applies is -- 24 (a) a report (including any recommendations) following an 25 inquest held by a coroner under an Act of a participating 26 jurisdiction; or 27 (b) a report of an investigation held under the Transport Safety 28 Investigation Act 2003 of the Commonwealth; or 29 (c) any other report of an investigation into a matter relating to 30 rail safety. page 161 Rail Safety National Law (WA) Bill 2014 Schedule Rail Safety National Law Part 5 Enforcement measures s. 199 1 199. Power to require works to stop 2 (1) A person (other than a rail transport operator) must, before carrying 3 out any works near a railway that threaten, or are likely to threaten -- 4 (a) the safety of the railway; or 5 (b) the operational integrity of the railway, 6 notify the relevant rail infrastructure manager of the intention to carry 7 out those works. 8 Maximum penalty: 9 (a) in the case of an individual -- $20 000; 10 (b) in the case of a body corporate -- $100 000. 11 (2) If -- 12 (a) a person is carrying out, or proposes to carry out, works near 13 a railway; and 14 (b) the Regulator believes on reasonable grounds that the works 15 threaten, or are likely to threaten -- 16 (i) the safety of the railway; or 17 (ii) the operational integrity of the railway, 18 the Regulator may, by written notice, give the person a direction to 19 stop, alter or not to commence the work. 20 (3) If -- 21 (a) a rail transport operator is carrying out, or proposes to carry 22 out, railway operations on or near land on which there is 23 infrastructure, or works, of a utility; and 24 (b) the Regulator believes on reasonable grounds that the railway 25 operations threaten, or are likely to threaten -- 26 (i) the safety of the utility infrastructure or works; or 27 (ii) the safe provision by the utility of water, gas or 28 electricity or other like services, 29 the Regulator may, by written notice, give the operator a direction to 30 stop, alter or not to commence the railway operations. page 162 Rail Safety National Law (WA) Bill 2014 Rail Safety National Law Schedule Enforcement measures Part 5 s. 200 1 (4) A person who is given a notice under subsection (2) or (3) must 2 comply with the direction set out in the notice unless the person has a 3 reasonable excuse. 4 Maximum penalty: 5 (a) in the case of an individual -- $20 000; 6 (b) in the case of a body corporate -- $100 000. 7 (5) If a person carries out work in contravention of subsection (1) or a 8 direction given under subsection (2) or (3), the Regulator may, by 9 written notice, direct a person who has the care, control or 10 management of the land where the infrastructure or works are situated 11 to alter, demolish or take away the work within a reasonable time 12 specified in the notice. 13 (6) A person who is given a notice under subsection (5) must comply 14 with the requirement unless the person has a reasonable excuse. 15 Maximum penalty: 16 (a) in the case of an individual -- $10 000; 17 (b) in the case of a body corporate -- $50 000. 18 (7) Subsections (4) and (6) place an evidential burden on the accused to 19 show a reasonable excuse. 20 (8) A notice under this section must -- 21 (a) include information about the right to a review under Part 7 22 of the decision to serve the notice; and 23 (b) state that the notice is served under this section. 24 200. Temporary closing of railway crossings, bridges etc 25 (1) An authorised officer may close temporarily or regulate a railway 26 crossing, bridge, subway or other structure for crossing or passing 27 over or under a railway if satisfied it is necessary because of an 28 immediate threat to safety. 29 (2) If an authorised officer decides to close temporarily or regulate a 30 railway crossing, bridge, subway or other structure, the authorised 31 officer must, as soon as practicable after its closure or regulation, 32 notify the person or authority responsible for the railway crossing, 33 bridge, subway or other structure of its closure or regulation. page 163 Rail Safety National Law (WA) Bill 2014 Schedule Rail Safety National Law Part 6 Exemptions s. 201 1 (3) In this section -- 2 authorised officer means -- 3 (a) a person who holds a specific authority from the Regulator 4 for the purposes of this section; or 5 (b) a person who holds a specific authority issued by an 6 accredited person for the purposes of this section. 7 201. Use of force 8 A power conferred by this Law to enter railway premises, or to do 9 anything in or on railway premises, may not be exercised unless the 10 rail safety officer or a person assisting a rail safety officer proposing 11 to exercise the power, uses no more force than is reasonably necessary 12 to effect the entry or to do the thing for which the entry is effected. 13 202. Power to use force against persons to be exercised only by police 14 officers 15 A provision in this Law that authorises a person to use reasonable 16 force does not authorise a person who is not a police officer to use 17 force against another person. 18 Part 6 -- Exemptions 19 Division 1 -- Ministerial exemptions 20 203. Ministerial exemptions 21 (1) The Minister may, after consultation with the Regulator, by notice in 22 the Gazette, grant exemptions from this Law or specified provisions 23 of this Law in respect of railway operations carried out, or proposed 24 to be carried out, in this jurisdiction -- 25 (a) to a person specified by the Minister; or 26 (b) in relation to a railway specified by the Minister. 27 (2) The Minister may grant an exemption under subsection (1) -- 28 (a) on conditions specified in the notice; and 29 (b) for a period (not exceeding 3 months) specified in the notice. page 164 Rail Safety National Law (WA) Bill 2014 Rail Safety National Law Schedule Exemptions Part 6 s. 204 1 (3) The Minister may, at any time, by further notice in the Gazette -- 2 (a) vary or revoke an exemption; or 3 (b) vary or revoke a condition of an exemption. 4 (4) A person who has been granted an exemption under this section who 5 contravenes a condition imposed on the exemption is guilty of an 6 offence. 7 Maximum penalty: 8 (a) in the case of an individual -- $20 000; 9 (b) in the case of a body corporate -- $100 000. 10 Division 2 -- Exemptions granted by Regulator 11 Subdivision 1 -- Interpretation 12 204. Interpretation 13 In this Division -- 14 designated provision of this Law means a provision of -- 15 (a) Part 3 Division 4; or 16 (b) Part 3 Division 5; or 17 (c) Part 3 Division 6 Subdivision 3. 18 Subdivision 2 -- Procedures for conferring exemptions 19 205. Application for exemption 20 (1) A rail transport operator may apply to the Regulator for an exemption 21 from a designated provision of this Law in respect of specified 22 railway operations carried out, or proposed to be carried out, by or on 23 behalf of the operator. 24 (2) An application must be made in the manner and form approved by the 25 Regulator and -- 26 (a) must specify the scope and nature of the railway operations in 27 respect of which an exemption is sought; and 28 (b) if the railway operations include the operation or movement 29 of rolling stock on a railway -- must include details about the 30 operation or movement of rolling stock; and page 165 Rail Safety National Law (WA) Bill 2014 Schedule Rail Safety National Law Part 6 Exemptions s. 206 1 (c) must contain the prescribed information; and 2 (d) must be accompanied by the prescribed application fee. 3 (3) The Regulator may require a rail transport operator who has applied 4 for an exemption -- 5 (a) to supply further information requested by the Regulator; and 6 (b) to verify by statutory declaration any information supplied to 7 the Regulator. 8 206. What applicant must demonstrate 9 The Regulator must not grant an exemption to an applicant unless 10 satisfied that the applicant has demonstrated -- 11 (a) that the applicant is, or is to be, a rail infrastructure manager 12 or rolling stock operator in relation to the railway operations 13 in respect of which the exemption is sought; and 14 (b) that the applicant -- 15 (i) has the financial capacity, or has public risk insurance 16 arrangements, to meet reasonable potential accident 17 liabilities arising from the railway operations; and 18 (ii) has complied with the requirements prescribed by the 19 national regulations (if any) for the purposes of this 20 section. 21 207. Determination of application 22 (1) Subject to this section, the Regulator must, within the relevant 23 period -- 24 (a) if the Regulator is satisfied as to the matters referred to in 25 section 206 -- notify the applicant that an exemption from a 26 designated provision of this Law has been granted, with or 27 without conditions or restrictions; or 28 (b) if the Regulator is not so satisfied -- notify the applicant that 29 the application has been refused. 30 (2) An exemption under this Division is subject to -- 31 (a) any conditions or restrictions prescribed by the national 32 regulations for the purposes of this section that are applicable 33 to the exemption; and page 166 Rail Safety National Law (WA) Bill 2014 Rail Safety National Law Schedule Exemptions Part 6 s. 207 1 (b) any other condition or restriction imposed on the exemption 2 by the Regulator. 3 (3) Notification under this section -- 4 (a) must be in writing and given to the applicant; and 5 (b) if the exemption has been granted, must specify -- 6 (i) the prescribed details of the applicant; and 7 (ii) the scope and nature of the railway operations, and 8 the manner in which they are to be carried out, in 9 respect of which the exemption is granted; and 10 (iii) any condition or restriction imposed by the Regulator 11 under this section on the exemption; and 12 (iv) any other prescribed information; 13 and 14 (c) if a condition or restriction has been imposed on the 15 exemption, must include -- 16 (i) the reasons for imposing the condition or restriction; 17 and 18 (ii) information about the right of review under Part 7; 19 and 20 (d) if the application has been refused must include -- 21 (i) the reasons for the decision to refuse to grant the 22 application; and 23 (ii) information about the right of review under Part 7; 24 and 25 (e) if the relevant period in relation to an application has been 26 extended, must include information about the right of review 27 under Part 7. 28 (4) In this section -- 29 relevant period, in relation to an application, means -- 30 (a) 6 months after the application was received by the Regulator; 31 or 32 (b) if the Regulator requested further information, 6 months, or 33 such other period, as is agreed between the Regulator and the page 167 Rail Safety National Law (WA) Bill 2014 Schedule Rail Safety National Law Part 6 Exemptions s. 208 1 applicant, after the Regulator receives the last information so 2 requested; or 3 (c) if the Regulator, by written notice given to the applicant 4 before the expiry of the relevant 6 months, specifies another 5 period, that period, 6 whichever is the longer. 7 Subdivision 3 -- Variation of an exemption 8 208. Application for variation of an exemption 9 (1) A rail transport operator who has been granted an exemption under 10 this Division may, at any time, apply to the Regulator for a variation 11 of the exemption. 12 (2) A rail transport operator who has been granted an exemption under 13 this Division must apply to the Regulator for a variation of the 14 exemption if -- 15 (a) the applicant proposes to vary the scope and nature of the 16 railway operations in respect of which the exemption has 17 been granted; or 18 (b) any other variation is proposed in respect of the railway 19 operations in respect of which the exemption has been 20 granted that should be reflected in the exemption. 21 (3) An application for variation must be made in the manner and form 22 approved by the Regulator and -- 23 (a) must specify the details of the variation being sought; and 24 (b) must contain the prescribed information; and 25 (c) must be accompanied by the prescribed application fee. 26 (4) The Regulator may require an applicant for a variation -- 27 (a) to supply further information requested by the Regulator; and 28 (b) to verify by statutory declaration any information supplied to 29 the Regulator. page 168 Rail Safety National Law (WA) Bill 2014 Rail Safety National Law Schedule Exemptions Part 6 s. 209 1 209. Determination of application for variation 2 (1) Subject to this section, the Regulator must, within the relevant 3 period -- 4 (a) if the Regulator is satisfied as to the matters referred to in 5 section 206 (so far as they are applicable to the proposed 6 variation) -- notify the applicant that the exemption has been 7 varied, with or without conditions or restrictions; or 8 (b) if the Regulator is not so satisfied -- notify the applicant that 9 the application has been refused. 10 (2) Notification under this section -- 11 (a) must be in writing and given to the applicant; and 12 (b) if the exemption has been varied, must specify -- 13 (i) the prescribed details of the applicant; and 14 (ii) the variation to the exemption so far as it applies to 15 the scope and nature of the railway operations, or the 16 manner in which they are to be carried out; and 17 (iii) any conditions and restrictions imposed by the 18 Regulator on the exemption as varied; and 19 (iv) any other prescribed information; 20 and 21 (c) if a condition or restriction has been imposed on the 22 exemption as varied, must include -- 23 (i) the reasons for imposing the condition or restriction; 24 and 25 (ii) information about the right of review under Part 7; 26 and 27 (d) if the application has been refused, must include -- 28 (i) the reasons for the decision to refuse to grant the 29 application; and 30 (ii) information about the right of review under Part 7; 31 and 32 (e) if the relevant period in relation to an application has been 33 extended, must include information about the right of review 34 under Part 7. page 169 Rail Safety National Law (WA) Bill 2014 Schedule Rail Safety National Law Part 6 Exemptions s. 210 1 (3) In this section -- 2 relevant period, in relation to an application, means -- 3 (a) 6 months after the application was received by the Regulator; 4 or 5 (b) if the Regulator requested further information, 6 months, or 6 such other period, as is agreed between the Regulator and the 7 applicant, after the Regulator receives the last information so 8 requested; or 9 (c) if the Regulator, by written notice given to the applicant 10 before the expiry of the relevant 6 months, specifies another 11 period, that period, 12 whichever is the longer. 13 210. Prescribed conditions and restrictions 14 An exemption granted to a rail transport operator that is varied under 15 this Division is subject to any conditions or restrictions prescribed by 16 the national regulations that are applicable to the exemption as varied. 17 211. Variation of conditions and restrictions 18 (1) A rail transport operator who has been granted an exemption under 19 this Division may, at any time, apply to the Regulator for a variation 20 of a condition or restriction imposed by the Regulator to which the 21 exemption is subject. 22 (2) An application for variation of a condition or restriction must be made 23 as if it were an application for variation of an exemption (and 24 section 208 applies accordingly). 25 (3) The Regulator must consider the application and, if satisfied as to the 26 matters referred to in sections 206 and 207 (so far as they are 27 applicable to the proposed variation), notify the applicant in 28 accordance with the provisions of this Division applicable to the 29 granting of an exemption (so far as is practicable) that the variation 30 has been granted or refused. 31 (4) Notification under subsection (3) that a variation has been refused 32 must include the reasons for the decision to refuse to grant the 33 variation and information about the right of review under Part 7. page 170 Rail Safety National Law (WA) Bill 2014 Rail Safety National Law Schedule Exemptions Part 6 s. 212 1 212. Regulator may make changes to conditions or restrictions 2 (1) The Regulator may, subject to this section, at any time, vary or revoke 3 a condition or restriction imposed by the Regulator on an exemption 4 granted to a rail transport operator under this Division or impose a 5 new condition or restriction. 6 (2) Before taking action under this section, the Regulator must -- 7 (a) give the rail transport operator written notice of the action 8 that the Regulator proposes to take; and 9 (b) allow the operator to make written representations about the 10 intended action within 28 days (or any other period that the 11 Regulator and the operator agree on); and 12 (c) consider any representations made under paragraph (b) and 13 not withdrawn. 14 (3) The Regulator must, by written notice given to the rail transport 15 operator, provide -- 16 (a) details of any action taken under this section; and 17 (b) a statement of reasons for any action taken under this section; 18 and 19 (c) information about the right of review under Part 7. 20 Subdivision 4 -- Revocation or suspension of an exemption 21 213. Revocation or suspension of an exemption 22 (1) This section applies in respect of a rail transport operator who has 23 been granted an exemption under this Division if -- 24 (a) the Regulator considers that the operator -- 25 (i) is no longer able to demonstrate to the satisfaction of 26 the Regulator the matters referred to in section 206 or 27 to satisfy the conditions, or to comply with the 28 restrictions, of the exemption; or 29 (ii) is not managing the rail infrastructure, or is not 30 operating rolling stock in relation to any rail 31 infrastructure, to which the exemption relates and has 32 not done so for at least the preceding 12 months; 33 or page 171 Rail Safety National Law (WA) Bill 2014 Schedule Rail Safety National Law Part 6 Exemptions s. 213 1 (b) the operator contravenes this Law. 2 (2) The Regulator may -- 3 (a) suspend the exemption for a period determined by the 4 Regulator; or 5 (b) revoke the exemption with immediate effect or with effect 6 from a specified future date; or 7 (c) impose conditions or restrictions on the exemption; or 8 (d) vary conditions or restrictions to which the exemption is 9 subject. 10 (3) Before making a decision under subsection (2), the Regulator -- 11 (a) must notify the rail transport operator in writing -- 12 (i) that the Regulator is considering making a decision 13 under subsection (2) of the kind, and for the reasons, 14 specified in the notice; and 15 (ii) that the person may, within 28 days or such longer 16 period as is specified in the notice, make written 17 representations to the Regulator showing cause why 18 the decision should not be made; 19 and 20 (b) must consider any representations made under 21 paragraph (a)(ii) and not withdrawn. 22 (4) If the Regulator suspends or revokes the exemption, the Regulator 23 must include in the notice of suspension or revocation the reasons for 24 the suspension or revocation and information about the right of review 25 under Part 7. 26 (5) The Regulator may withdraw a suspension of the exemption by 27 written notice given to the rail transport operator. page 172 Rail Safety National Law (WA) Bill 2014 Rail Safety National Law Schedule Review of decisions Part 7 s. 214 1 Subdivision 5 -- Penalty for breach of condition or restriction 2 214. Penalty for breach of condition or restriction 3 A rail transport operator who has been granted an exemption under 4 this Division must not contravene a condition or restriction of the 5 exemption applying under this Division. 6 Maximum penalty: 7 (a) in the case of an individual -- $20 000; 8 (b) in the case of a body corporate -- $100 000. 9 Part 7 -- Review of decisions 10 215. Reviewable decisions 11 (1) The following table sets out -- 12 (a) decisions made under this Law that are reviewable in 13 accordance with this Part (reviewable decisions); and 14 (b) who is eligible to apply for review of a reviewable decision 15 (the eligible person in relation to the reviewable decision). Item Provision under which Eligible person in relation to reviewable decision is made reviewable decision 1 Section 67 (refusal to accredit A rail transport operator whose or imposing conditions or application for accreditation is restrictions on accreditation) refused or is subject to conditions or restrictions 2 Section 67 (extending the A rail transport operator who period for determining an has applied for accreditation application) 3 Section 69 (refusal to grant A rail transport operator whose variation of accreditation or application for variation of imposing a condition or accreditation is refused restriction) 4 Section 69 (grant of variation A rail transport operator whose of accreditation subject to accreditation is varied subject conditions or restrictions) to a condition or restriction page 173 Rail Safety National Law (WA) Bill 2014 Schedule Rail Safety National Law Part 7 Review of decisions s. 215 Item Provision under which Eligible person in relation to reviewable decision is made reviewable decision 5 Section 69 (extending the A rail transport operator who period for determining an has applied for variation of application for variation) accreditation 6 Section 71 (refusal to grant A rail transport operator whose variation of a condition or application for variation of a restriction of accreditation) condition or restriction is refused 7 Section 72 (variation or A rail transport operator whose revocation of a condition or conditions or restrictions of restriction, or imposition of a accreditation are changed new condition or restriction) 8 Section 73 (revocation or A rail transport operator whose suspension of accreditation) accreditation is revoked or suspended 9 Section 74 (immediate A rail transport operator whose suspension) accreditation is suspended 10 Section 74 (extension of A rail transport operator whose immediate suspension) accreditation is suspended 11 Section 75 (surrender of An accredited person whose accreditation) application for surrender of accreditation has been refused 12 Section 86 (refusal to register A rail infrastructure manager or imposing conditions or whose application for restrictions on registration) registration is refused or is subject to conditions or restrictions 13 Section 86 (extending the A rail infrastructure manager period for determining an who has applied for application) registration 14 Section 88 (refusal to grant A rail infrastructure manager variation of registration or whose application for variation imposing a condition or of registration is refused restriction) page 174 Rail Safety National Law (WA) Bill 2014 Rail Safety National Law Schedule Review of decisions Part 7 s. 215 Item Provision under which Eligible person in relation to reviewable decision is made reviewable decision 15 Section 88 (grant of variation A rail infrastructure manager of registration subject to whose registration is varied conditions or restrictions) subject to a condition or restriction 16 Section 88 (extending the A rail infrastructure manager period for determining an who has applied for variation application for variation) of registration 17 Section 90 (refusal to grant A rail infrastructure manager variation of a condition or whose application for variation restriction of registration) of a condition or restriction is refused 18 Section 91 (variation or A rail infrastructure manager revocation of a condition or whose conditions or restriction, or imposition of a restrictions of registration are new condition or restriction) changed 19 Section 92 (revocation or A rail infrastructure manager suspension of registration) whose registration is revoked or suspended 20 Section 93 (immediate A rail infrastructure manager suspension) whose registration is suspended 21 Section 93 (extension of A rail infrastructure manager immediate suspension) whose registration is suspended 22 Section 94 (surrender of A registered person whose registration) application for surrender of registration has been refused 23 Section 104 (direction to A rail transport operator given amend safety management a direction to amend a safety system) management system 24 Section 162 (forfeiture of A person who is entitled to the seized thing) thing page 175 Rail Safety National Law (WA) Bill 2014 Schedule Rail Safety National Law Part 7 Review of decisions s. 215 Item Provision under which Eligible person in relation to reviewable decision is made reviewable decision 25 Section 175 (decision to serve A person on whom an an improvement notice) improvement notice is served A rail transport operator whose interests are affected by the decision 26 Section 178 (extension of time A person on whom an for compliance with improvement notice is served improvement notice) A rail transport operator whose interests are affected by the decision 27 Section 179 (decision to serve A person on whom a a prohibition notice) prohibition notice is served A rail transport operator whose interests are affected by the decision 28 Section 182 (decision to serve A person on whom a a non-disturbance notice) non-disturbance notice is served A rail transport operator whose interests are affected by the decision 29 Section 185 (decision to issue A person on whom a subsequent non-disturbance subsequent non-disturbance notice) notice is served A rail transport operator whose interests are affected by the decision 30 Section 198 (direction to take A rail transport operator given specified action following a direction to take specified report) action page 176 Rail Safety National Law (WA) Bill 2014 Rail Safety National Law Schedule Review of decisions Part 7 s. 215 Item Provision under which Eligible person in relation to reviewable decision is made reviewable decision 31 Section 199 (decision to serve A person given a direction to notice giving a direction) stop, alter or not to commence works on or near a railway A rail transport operator given a direction to stop, alter or not to commence railway operations A person given a direction to alter, demolish or take away work 32 Section 205 (refusal to exempt A rail transport operator whose or imposing conditions or application for exemption is restrictions on exemption) refused or is subject to conditions or restrictions 33 Section 205 (extending the A rail transport operator who period for determining an has applied for an exemption application) 34 Section 209 (refusal to grant A rail transport operator whose variation of exemption or application for variation of an imposing a condition or exemption is refused restriction) 35 Section 209 (grant of variation A rail transport operator whose of exemption subject to exemption is varied subject to conditions or restrictions) a condition or restriction 36 Section 209 (extending the A rail transport operator who period for determining an has applied for variation of an application for variation) exemption 37 Section 211 (refusal to grant A rail transport operator whose variation of a condition or application for variation of a restriction of exemption) condition or restriction is refused page 177 Rail Safety National Law (WA) Bill 2014 Schedule Rail Safety National Law Part 7 Review of decisions s. 216 Item Provision under which Eligible person in relation to reviewable decision is made reviewable decision 38 Section 212 (variation or A rail transport operator whose revocation of a condition or conditions or restrictions of an restriction, or imposition of a exemption are changed new condition or restriction) 39 Section 213 (revocation or A rail transport operator whose suspension of exemption) exemption is revoked or suspended 1 (2) Unless the contrary intention appears, a reference in this Part to a 2 decision includes a reference to -- 3 (a) include information about the right to a review under Part 7 4 of the decision to serve the notice; or 5 (b) state that the notice is served under this section; or 6 (c) making, suspending, revoking or refusing to make a 7 determination or decision; or 8 (d) giving, suspending, revoking or refusing to give a direction, 9 approval, consent or permission; or 10 (e) issuing, suspending, revoking or refusing to issue an 11 accreditation or a registration, or to grant an exemption; or 12 (f) imposing a condition; or 13 (g) making a declaration, demand or requirement; or 14 (h) retaining, or refusing to deliver up, an article; or 15 (i) doing or refusing to do any other act or thing. 16 (3) In this section -- 17 person entitled to a thing means the person from whom it was seized 18 unless that person is not entitled to possess it, in which case it means 19 the owner of the thing. 20 216. Review by Regulator 21 (1) An eligible person -- 22 (a) in relation to a reviewable decision made by the Regulator -- 23 may, within 28 days after the decision was made, apply to the 24 Regulator for a review of the decision; page 178 Rail Safety National Law (WA) Bill 2014 Rail Safety National Law Schedule Review of decisions Part 7 s. 216 1 (b) in relation to a reviewable decision other than a decision 2 made by the Regulator -- may apply to the Regulator for 3 review of the decision within -- 4 (i) 28 days after the day on which the decision first came 5 to the eligible person's notice; or 6 (ii) such longer period as the Regulator allows. 7 (2) The Regulator may appoint a person to review decisions on 8 applications under subsection (1)(a) (who must not be the person who 9 made the decision the subject of the review). 10 (3) An application for a review must be in the form approved (in writing) 11 by the Regulator. 12 (4) If an application is made to the Regulator in accordance with this 13 section, the Regulator may make a decision -- 14 (a) to affirm or vary the reviewable decision; or 15 (b) to set aside the reviewable decision and substitute another 16 decision that the Regulator considers appropriate. 17 (5) The Regulator must give a written notice to the applicant setting 18 out -- 19 (a) the Regulator's decision under subsection (4) and the reasons 20 for the decision; and 21 (b) the findings on material questions of fact that led to the 22 decision, referring to the evidence or other material on which 23 those findings were based, 24 and must do so within 14 days after the application is made or, if the 25 reviewable decision was made under Division 1, Division 2 or 26 Division 3 of Part 5, within 7 days after the application is made. 27 (6) If the Regulator has not notified an applicant of a decision in 28 accordance with subsection (5), the Regulator is taken to have made a 29 decision to affirm the reviewable decision. 30 (7) An application under this section does not affect the operation of the 31 reviewable decision or prevent the taking of any action to implement 32 it unless the Regulator, on the Regulator's own initiative or on the 33 application of the applicant for review, stays the operation of the 34 decision (not being an immediate suspension of accreditation or page 179 Rail Safety National Law (WA) Bill 2014 Schedule Rail Safety National Law Part 8 General liability and evidentiary provisions s. 217 1 registration, or a prohibition notice) pending the determination of the 2 review. 3 (8) The Regulator must make a decision on an application for a stay by 4 the end of the next business day following the day on which the 5 application is made. 6 (9) If the Regulator has not made a decision in accordance with 7 subsection (8), the Regulator is taken to have made a decision to grant 8 a stay. 9 (10) The Regulator may attach any conditions to a stay of the operation of 10 a reviewable decision that the Regulator considers appropriate. 11 217. Appeals 12 (1) A person may appeal to the court against -- 13 (a) a reviewable decision made by the Regulator; or 14 (b) a decision made, or taken to have been made, by the 15 Regulator under section 216 in respect of a reviewable 16 decision (including a decision concerning a stay of the 17 operation of the reviewable decision), 18 if the person is an eligible person in relation to the reviewable 19 decision. 20 (2) An appeal must be instituted within 28 days of the making of the 21 decision appealed against. 22 Part 8 -- General liability and evidentiary provisions 23 Division 1 -- Legal proceedings 24 Subdivision 1 -- General matters 25 218. Period within which proceedings for offences may be commenced 26 (1) This section applies to an offence against this Law, other than -- 27 (a) an offence prescribed by the national regulations for the 28 purposes of this section; or page 180 Rail Safety National Law (WA) Bill 2014 Rail Safety National Law Schedule General liability and evidentiary provisions Part 8 s. 219 1 (b) an offence in respect of which proceedings may only be 2 commenced within a period of less than 2 years after its 3 alleged commission. 4 (2) Despite anything to the contrary in an Act, proceedings for an offence 5 against this Law to which this section applies may be commenced 6 within -- 7 (a) the period of 2 years after commission of the alleged offence; 8 or 9 (b) if evidence of an alleged offence comes to light as a result of 10 an inquiry by a prescribed authority -- within 1 year after the 11 report of the inquiry is published; or 12 (c) if a rail safety undertaking has been given in relation to the 13 offence -- within 6 months after -- 14 (i) the undertaking is contravened; or 15 (ii) it comes to the notice of the Regulator that the 16 undertaking has been contravened; or 17 (iii) the Regulator has agreed under section 256 to the 18 withdrawal of the undertaking. 19 (3) A proceeding for a Category 1 offence may be brought after the end 20 of the applicable limitation period in subsection (2) if fresh evidence 21 relevant to the offence is discovered and the court is satisfied that the 22 evidence could not reasonably have been discovered within the 23 relevant limitation period. 24 (4) In this section -- 25 prescribed authority means -- 26 (a) a coroner of a participating jurisdiction; or 27 (b) a commission of inquiry (by whatever name) established 28 under a law of a participating jurisdiction; or 29 (c) any other relevant authority established under a law of a 30 participating jurisdiction. 31 219. Multiple contraventions of rail safety duty provision 32 (1) Two or more contraventions of a rail safety duty provision by a 33 person that arise out of the same factual circumstances may be 34 charged as a single offence or as separate offences. page 181 Rail Safety National Law (WA) Bill 2014 Schedule Rail Safety National Law Part 8 General liability and evidentiary provisions s. 220 1 (2) This section does not authorise contraventions of 2 or more rail safety 2 duty provisions to be charged as a single offence. 3 (3) A single penalty only may be imposed in respect of 2 or more 4 contraventions of a rail safety duty provision that are charged as a 5 single offence. 6 (4) In this section -- 7 rail safety duty provision means a provision of Part 3 Division 3. 8 220. Authority to take proceedings 9 (1) Any legal proceedings to recover any charge, fee or money due under 10 this Law or the national regulations in this jurisdiction may be taken 11 only by the Minister or the Regulator, or by a person authorised by the 12 Minister or the Regulator for the purpose, either generally or in any 13 particular case. 14 (2) Any legal proceedings for an offence against this Law or the national 15 regulations in this jurisdiction may be taken only by the Minister or 16 the Regulator, or by a person authorised by the Minister or the 17 Regulator for the purpose, either generally or in any particular case. 18 (3) In any proceedings referred to in this section, the production of an 19 authority or consent purporting to be signed by the Minister or the 20 Regulator is to be evidence of the authority or consent without proof 21 of the signature of the Minister or the Regulator. 22 (4) The Minister or the Regulator may, for the purposes of this section, 23 authorise any person who is a member of a specified class of persons 24 to take the actions referred to in this section. 25 Subdivision 2 -- Imputing conduct to bodies corporate 26 221. Imputing conduct to bodies corporate 27 (1) For the purposes of this Law, any conduct engaged in on behalf of a 28 body corporate by an employee, agent or officer of the body corporate 29 acting within the actual or apparent scope of his or her employment, 30 or within his or her actual or apparent authority, is conduct also 31 engaged in by the body corporate. 32 (2) If an offence under this Law requires proof of knowledge, intention or 33 recklessness, it is sufficient in proceedings against a body corporate page 182 Rail Safety National Law (WA) Bill 2014 Rail Safety National Law Schedule General liability and evidentiary provisions Part 8 s. 222 1 for that offence to prove that the person referred to in subsection (1) 2 had the relevant knowledge, intention or recklessness. 3 (3) If for an offence against this Law mistake of fact is relevant to 4 determining liability, it is sufficient in proceedings against a body 5 corporate for that offence if the person referred to in subsection (1) 6 made that mistake of fact. 7 Subdivision 3 -- Records and evidence 8 222. Records and evidence from records 9 (1) A certificate purporting to be signed by the Regulator and certifying 10 that -- 11 (a) on a date specified in the certificate; or 12 (b) during any period so specified, 13 the particulars set out in the certificate as to any matter required to be 14 recorded in the National Rail Safety Register under section 42 did or 15 did not appear on or from the Register is, for the purposes of any legal 16 proceedings, evidence of what it certifies. 17 (2) Such a certificate is admissible in any proceedings -- 18 (a) without proof of the signature of the Regulator; and 19 (b) without production of any record or document on which the 20 certificate is founded. 21 223. Certificate evidence 22 A statement in a certificate purporting to be issued by the Regulator, a 23 rail safety officer or a police officer as to any matter that appears in, 24 or can be calculated from, records kept or accessed by the Regulator 25 is admissible in any proceedings and is evidence of the matter. 26 224. Proof of appointments and signatures unnecessary 27 (1) For the purposes of this Law and the national regulations, it is not 28 necessary to prove the appointment of an office holder. 29 (2) For the purposes of this Law, a signature purporting to be the 30 signature of an office holder is evidence of the signature it purports to 31 be. page 183 Rail Safety National Law (WA) Bill 2014 Schedule Rail Safety National Law Part 8 General liability and evidentiary provisions s. 225 1 (3) In this section -- 2 office holder means -- 3 (a) a member of ONRSR; or 4 (b) the head of the police force or police service of any 5 participating jurisdiction; or 6 (c) a rail safety officer; or 7 (d) an authorised person; or 8 (e) a police officer of a participating jurisdiction. 9 Division 2 -- Discrimination against employees 10 225. Dismissal or other victimisation of employee 11 (1) This section applies to -- 12 (a) an employer who dismisses an employee, injures an 13 employee in the employment of the employer or alters the 14 position of an employee to the employee's detriment; and 15 (b) an employer who threatens to do any of those things to an 16 employee; and 17 (c) an employer or prospective employer who refuses or fails to 18 offer employment to a prospective employee, or treats a 19 prospective employee less favourably than another 20 prospective employee would be treated in offering terms of 21 employment. 22 (2) The employer or prospective employer is guilty of an offence if the 23 employer or prospective employer engaged in that conduct because 24 the employee or prospective employee (as the case may be) -- 25 (a) has assisted or has given any information to a public agency 26 in respect of a breach or alleged breach of an Australian rail 27 safety law; or 28 (b) has made a complaint about a breach or alleged breach of an 29 Australian rail safety law to the employer, a fellow employee, 30 union, public authority or public official; or 31 (c) assists or has assisted, or gives or has given any information 32 to, a public agency in respect of a breach or alleged breach of 33 an Australian rail safety law; or page 184 Rail Safety National Law (WA) Bill 2014 Rail Safety National Law Schedule General liability and evidentiary provisions Part 8 s. 225 1 (d) has made a complaint about a breach or alleged breach of an 2 Australian rail safety law to a former employer, former fellow 3 employee, union, public authority or public official. 4 Maximum penalty: 5 (a) in the case of an individual -- $10 000; 6 (b) in the case of a body corporate -- $50 000. 7 (3) An employer or prospective employer may be guilty of an offence 8 against subsection (2) only if the reason mentioned in 9 subsection (2)(a), (b), (c) or (d) is the dominant reason why the 10 employer or prospective employer engaged in the conduct. 11 (4) In proceedings for an offence against subsection (2), if all the facts 12 constituting the offence other than the reason for the defendant's 13 conduct are proved, the defendant bears the onus of proving that the 14 reason alleged in the charge was not the dominant reason why the 15 defendant engaged in the conduct. 16 (5) If an employer or prospective employer is convicted or found guilty 17 of an offence against this section, the court may (in addition to 18 imposing a penalty) make either or both of the following orders -- 19 (a) an order that the offender pay (within a specified period) such 20 damages to the employee or prospective employee against 21 whom the offender discriminated as the court considers 22 appropriate to compensate him or her; 23 (b) an order that -- 24 (i) the employee be reinstated or re-employed in his or 25 her former position or, if that position is not 26 available, in a similar position; or 27 (ii) the prospective employee be employed in the position 28 for which he or she had applied or a similar position. 29 (6) In this section -- 30 employee includes an individual who works under a contract for 31 service; 32 public authority includes ONRSR, the Regulator, a rail safety officer 33 or police officer, and a police officer of another jurisdiction. page 185 Rail Safety National Law (WA) Bill 2014 Schedule Rail Safety National Law Part 8 General liability and evidentiary provisions s. 226 1 Division 3 -- Offences 2 226. Offence to give false or misleading information 3 (1) A person must not give information in complying or purportedly 4 complying with this Law that the person knows -- 5 (a) to be false or misleading in a material particular; or 6 (b) omits any matter or thing without which the information is 7 misleading. 8 Maximum penalty: 9 (a) in the case of an individual -- $20 000; 10 (b) in the case of a body corporate -- $100 000. 11 (2) A person must not produce a document in complying or purportedly 12 complying with this Law that the person knows to be false or 13 misleading in a material particular without -- 14 (a) indicating the respect in which it is false or misleading and, if 15 practicable, providing correct information; or 16 (b) accompanying the document with a written certificate -- 17 (i) stating that the document is, to the knowledge of the 18 first-mentioned person, false or misleading in a 19 material particular; and 20 (ii) setting out, or referring to, the material particular in 21 which the document is, to the knowledge of the 22 first-mentioned person, false or misleading. 23 Maximum penalty: 24 (a) in the case of an individual -- $20 000; 25 (b) in the case of a body corporate -- $100 000. 26 (3) Subsection (2) places an evidential burden on the accused to show 27 that the accused had indicated the extent to which the document was 28 false or misleading or that the accompanying document sufficiently 29 explained the extent to which the document was false or misleading. page 186 Rail Safety National Law (WA) Bill 2014 Rail Safety National Law Schedule General liability and evidentiary provisions Part 8 s. 227 1 227. Not to interfere with train, tram etc 2 (1) A person must not, without either the permission of an authorised 3 officer or reasonable excuse -- 4 (a) move or attempt to move; or 5 (b) interfere or attempt to interfere with; or 6 (c) disable, or attempt to disable; or 7 (d) operate or attempt to operate, 8 any equipment, rail infrastructure or rolling stock owned or operated 9 by a rail transport operator. 10 Maximum penalty: $10 000. 11 (2) Subsection (1) places an evidential burden on the accused to show a 12 reasonable excuse. 13 (3) In this section -- 14 authorised officer means the rail transport operator, a rail safety 15 officer or a police officer. 16 228. Applying brake or emergency device 17 (1) A person must not, without reasonable excuse -- 18 (a) apply any brake or make use of any emergency device fitted 19 to a train or tram; or 20 (b) make use of any emergency device on railway premises. 21 Maximum penalty: $10 000. 22 Example: Emergency devices include an emergency button on a station 23 communication board or on an escalator. 24 (2) Subsection (1) places an evidential burden on the accused to show a 25 reasonable excuse. 26 229. Stopping a train or tram 27 (1) A person must not, without reasonable excuse, cause or attempt to 28 cause a train or tram in motion to be stopped. 29 Maximum penalty: $10 000. page 187 Rail Safety National Law (WA) Bill 2014 Schedule Rail Safety National Law Part 8 General liability and evidentiary provisions s. 230 1 (2) Subsection (1) places an evidential burden on the accused to show a 2 reasonable excuse. 3 Division 4 -- Court-based sanctions 4 230. Commercial benefits order 5 (1) The court that finds a person guilty of an offence against this Law 6 may, on the application of the prosecutor or the Regulator, make an 7 order under this section. 8 (2) The court may make a commercial benefits order requiring the person 9 to pay, as a fine, an amount not exceeding 3 times the amount 10 estimated by the court to be the gross commercial benefit that -- 11 (a) was received or receivable, by the person or by an associate 12 of the person, from commission of the offence; and 13 (b) in the case of a journey that was interrupted or not 14 commenced because of action taken by a rail safety officer in 15 connection with commission of the offence, would have been 16 received or receivable, by the person or by an associate of the 17 person -- from commission of the offence had the journey 18 been completed. 19 (3) In estimating the gross commercial benefit that was or would have 20 been received or receivable from commission of the offence, the court 21 may take into account -- 22 (a) benefits of any kind, whether monetary or otherwise; and 23 (b) monetary savings or a reduction in any operating or capital 24 expenditure of any kind achieved because of commission of 25 the offence; and 26 (c) any other matters that it considers relevant, including (for 27 example) -- 28 (i) the value per tonne or per kilometre of the carriage of 29 the goods involved in the offence as freight; and 30 (ii) the distance over which any such goods were or were 31 to be carried. 32 (4) However, in estimating the gross commercial benefit that was or 33 would have been received or receivable from commission of the page 188 Rail Safety National Law (WA) Bill 2014 Rail Safety National Law Schedule General liability and evidentiary provisions Part 8 s. 231 1 offence, the court is required to disregard any costs, expenses or 2 liabilities incurred by the person or by an associate of the person. 3 (5) Nothing in this section prevents the court from ordering payment of 4 an amount that is -- 5 (a) less than 3 times the estimated gross commercial benefit; or 6 (b) less than the estimated gross commercial benefit. 7 (6) For the purposes of this section, a person is an associate of another 8 if -- 9 (a) 1 is a spouse, de facto partner, parent, brother, sister or child 10 of the other; or 11 (b) they are members of the same household; or 12 (c) they are partners; or 13 (d) they are both trustees or beneficiaries of the same trust, or 1 is 14 a trustee and the other is a beneficiary of the same trust; or 15 (e) 1 is a body corporate and the other is a director or member of 16 the governing body of the body corporate; or 17 (f) 1 is a body corporate (other than a public company whose 18 shares are listed on a stock exchange) and the other is a 19 shareholder in the body corporate; or 20 (g) they are related bodies corporate within the meaning of the 21 Corporations Act 2001 of the Commonwealth; or 22 (h) a chain of relationships can be traced between them under 23 any 1 or more of the above paragraphs. 24 (7) For the purposes of subsection (6), a beneficiary of a trust includes an 25 object of a trust. 26 231. Supervisory intervention order 27 (1) The court that finds a person guilty of an offence against this Law 28 may, on the application of the prosecutor or the Regulator, if the court 29 considers the person to be a systematic or persistent offender against 30 the Australian rail safety laws, make an order under this section. page 189 Rail Safety National Law (WA) Bill 2014 Schedule Rail Safety National Law Part 8 General liability and evidentiary provisions s. 231 1 (2) The court may make a supervisory intervention order requiring the 2 person (at the person's own expense and for a specified period not 3 exceeding 1 year) to do all or any of the following -- 4 (a) to do specified things that the court considers will improve 5 the person's compliance with this Law or specified aspects of 6 this Law, including (for example) the following -- 7 (i) appointing or removing staff to or from particular 8 activities or positions; 9 (ii) training and supervising staff; 10 (iii) obtaining expert advice as to maintaining appropriate 11 compliance; 12 (iv) installing monitoring, compliance, managerial or 13 operational equipment; 14 (v) implementing monitoring, compliance, managerial or 15 operational practices, systems or procedures; 16 (b) to conduct specified monitoring, compliance, managerial or 17 operational practices, systems or procedures subject to the 18 direction of the Regulator or a person nominated by the 19 Regulator; 20 (c) to furnish compliance reports to the Regulator or the court or 21 both as specified in the order; 22 (d) to appoint a person to have responsibilities -- 23 (i) to assist the person in improving compliance with this 24 Law or specified aspects of this Law; and 25 (ii) to monitor the person's performance in complying 26 with this Law or specified aspects of this Law and in 27 complying with the requirements of the order; and 28 (iii) to furnish compliance reports to the Regulator or the 29 court or both as specified in the order. 30 (3) The court may specify matters that are to be dealt with in compliance 31 reports and the form and manner in which, and frequency with which, 32 compliance reports are to be prepared and furnished. 33 (4) The court may require that compliance reports or aspects of 34 compliance reports be made public, and may specify the form and page 190 Rail Safety National Law (WA) Bill 2014 Rail Safety National Law Schedule General liability and evidentiary provisions Part 8 s. 231 1 manner in which, and frequency with which, they are to be made 2 public. 3 (5) The court may only make a supervisory intervention order if it is 4 satisfied that the order is capable of improving the person's ability or 5 willingness to comply with this Law, having regard to -- 6 (a) the offences against Australian rail safety laws of which the 7 person has been previously found guilty; and 8 (b) the offences against Australian rail safety laws for which the 9 person has been proceeded against by way of unwithdrawn 10 expiation notices or infringement notices; and 11 (c) any other offences or other matters that the court considers to 12 be relevant to the conduct of the person in connection with 13 railway operations. 14 (6) The order may direct that any other penalty or sanction imposed for 15 the offence by the court is suspended until the court determines that 16 there has been a substantial failure to comply with the order. 17 (7) A court that has power to make supervisory intervention orders may 18 revoke or amend a supervisory intervention order on the application 19 of -- 20 (a) the Regulator; or 21 (b) the person in respect of whom the order was made, but in that 22 case only if the court is satisfied that there has been a change 23 of circumstances warranting revocation or amendment. 24 (8) A person who is subject to a requirement of a supervisory intervention 25 order must not engage in conduct that results in a contravention of the 26 requirement. 27 Maximum penalty: 28 (a) in the case of an individual -- $10 000; 29 (b) in the case of a body corporate -- $50 000. page 191 Rail Safety National Law (WA) Bill 2014 Schedule Rail Safety National Law Part 8 General liability and evidentiary provisions s. 232 1 (9) In this section -- 2 compliance report, in relation to a person in respect of whom a 3 supervisory intervention order is made, means a report relating to -- 4 (a) the performance of the person in complying with -- 5 (i) the rail safety laws or aspects of rail safety laws 6 specified in the order; and 7 (ii) the requirements of the order; 8 and 9 (b) without limiting the above -- 10 (i) things done by the person to ensure that any failure 11 by the person to comply with the rail safety laws or 12 the specified aspects of the rail safety laws does not 13 continue; and 14 (ii) the results of those things having been done. 15 232. Exclusion orders 16 (1) The court that finds a person guilty of an offence against this Law 17 may, on the application of the prosecutor or the Regulator, if the court 18 considers the person to be a systematic or persistent offender against 19 an Australian rail safety law, make an order under this section. 20 (2) For the purpose of restricting opportunities for the person to commit 21 or be involved in commission of further offences against this Law, the 22 court may, if it considers it appropriate to do so, make an exclusion 23 order prohibiting the person, for a specified period, from -- 24 (a) managing rail infrastructure, or operating rolling stock, or 25 managing or operating a particular type of rail infrastructure 26 or rolling stock; or 27 (b) being a director, secretary or officer concerned in the 28 management of a body corporate involved in managing rail 29 infrastructure that is in this jurisdiction or operating rolling 30 stock in this jurisdiction; or 31 (c) being involved in managing rail infrastructure that is in this 32 jurisdiction or operating rolling stock in this jurisdiction 33 except by driving a train or rolling stock. page 192 Rail Safety National Law (WA) Bill 2014 Rail Safety National Law Schedule Infringement notices Part 9 s. 233 1 (3) The court may only make an order under this section if it is satisfied 2 that the person should not continue the things the subject of the 3 proposed order and that a supervisory intervention order is not 4 appropriate, having regard to -- 5 (a) the offences against an Australian rail safety law of which the 6 person has previously been found guilty; and 7 (b) the offences against an Australian rail safety law for which 8 the person has been proceeded against by way of 9 unwithdrawn expiation notices or infringement notices; and 10 (c) any other offences or other matters that the court considers to 11 be relevant to the conduct of the person in connection with 12 railway operations. 13 (4) A court that has power to make an exclusion order may revoke or 14 amend an exclusion order on the application of -- 15 (a) the Regulator; or 16 (b) the person in respect of whom the order was made, but in that 17 case only if the court is satisfied that there has been a change 18 of circumstances warranting revocation or amendment. 19 (5) A person who is subject to an exclusion order must not engage in 20 conduct that results in a contravention of the order. 21 Maximum penalty: 22 (a) in the case of an individual -- $20 000; 23 (b) in the case of a body corporate -- $100 000. 24 Part 9 -- Infringement notices 25 233. Meaning of infringement penalty provision 26 For the purposes of this Law, an infringement penalty provision is -- 27 (a) a provision of this Law specified in an item in the Table at the 28 foot of this section; or 29 (b) a provision of this Law (other than an offence provision) or 30 the national regulations that is prescribed by the national 31 regulations to be an infringement penalty provision. page 193 Rail Safety National Law (WA) Bill 2014 Schedule Rail Safety National Law Part 9 Infringement notices s. 233 Item Infringement penalty provision Infringement penalty 1 Section 66(3) (Regulator may direct $1 000 applicants to coordinate in applications) 2 Section 66(4) (Regulator may direct $1 000 applicants to coordinate in applications) 3 Section 81(1) (Keeping and making $1 000 available records for public inspection) 4 Section 81(2) (Keeping and making $1 000 available records for public inspection) 5 Section 98(2) (Offences relating to $1 000 registration) 6 Section 98(3) (Offences relating to $1 000 registration) 7 Section 102 (Review of safety $2 000 management system) 8 Section 103 (Safety performance reports) $1 000 9 Section 111(1) (Register of interface $1 000 agreements) 10 Section 111(2) (Register of interface $1 000 agreements) 11 Section 117(6) (Assessment of $2 000 competence) 12 Section 118(1) (Identification of rail $2 000 safety workers) 13 Section 118(2) (Identification of rail $500 safety workers) 14 Section 120(2) (Power of Regulator to $2 000 obtain information from rail transport operators) 15 Section 120(3) (Power of Regulator to $2 000 obtain information from rail transport operators) page 194 Rail Safety National Law (WA) Bill 2014 Rail Safety National Law Schedule Infringement notices Part 9 s. 234 Item Infringement penalty provision Infringement penalty 16 Section 131 (Disclosure of train safety $2 000 recordings) 17 Section 136(3) (Identity cards) $1 000 18 Section 149(2) (Securing a site) $2 000 19 Section 231(8) (Supervisory intervention $2 000 order) 20 Section 254 (Compliance with rail safety $2 000 undertaking) 1 234. Power to serve notice 2 (1) The Regulator may serve an infringement notice on a person that the 3 Regulator has reason to believe has breached an infringement penalty 4 provision. 5 (2) The Regulator must, however, serve an infringement notice not later 6 than 12 months after the date on which the Regulator forms a belief 7 that there has been a breach of an infringement penalty provision. 8 (3) An infringement notice may be served on an individual -- 9 (a) by delivering it personally to the individual; or 10 (b) by sending it by post addressed to the individual to his or her 11 usual or last known place of residence or business. 12 (4) An infringement notice may be served on a person that is a body 13 corporate -- 14 (a) by delivering it personally to the registered office or usual or 15 last known place of business of the body corporate; or 16 (b) by sending it by post addressed to the body corporate to its 17 registered office or usual or last known place of business. 18 235. Form of notice 19 An infringement notice must state -- 20 (a) the date of the notice; and page 195 Rail Safety National Law (WA) Bill 2014 Schedule Rail Safety National Law Part 9 Infringement notices s. 236 1 (b) that the alleged breach is a breach of the infringement penalty 2 provision; and 3 (c) the nature, and a brief description, of the alleged breach; and 4 (d) the date, time and place of the alleged breach; and 5 (e) the infringement penalty for the alleged breach; and 6 (f) the manner in which the infringement penalty may be paid; 7 and 8 (g) the time (being not less than 28 days after the date on which 9 the notice is served) within which the infringement penalty 10 must be paid; and 11 (h) that, if the amount of the infringement penalty is paid before 12 the end of the time specified in the notice, proceedings will 13 not be instituted in respect of the alleged breach by the 14 Regulator unless the notice is withdrawn before the end of 15 that time in accordance with section 238; and 16 (i) that the person is entitled to disregard the notice and defend 17 any proceedings in respect of the infringement penalty 18 provision; and 19 (j) any other particulars prescribed by the national regulations. 20 236. Regulator cannot institute proceedings while infringement notice 21 on foot 22 On serving an infringement notice under this Part, the Regulator must 23 not institute a proceeding in respect of the breach for which the 24 infringement notice was served if -- 25 (a) the time for payment stated in the infringement notice has not 26 expired; and 27 (b) the infringement notice has not been withdrawn by the 28 Regulator in accordance with section 238. 29 237. Late payment of penalty 30 The Regulator may accept payment of the infringement penalty even 31 after the expiration of the time for payment stated in the infringement 32 notice if -- 33 (a) a proceeding has not been instituted in respect of the breach 34 to which the infringement penalty relates; and page 196 Rail Safety National Law (WA) Bill 2014 Rail Safety National Law Schedule Infringement notices Part 9 s. 238 1 (b) the infringement notice has not been withdrawn by the 2 Regulator in accordance with section 238. 3 238. Withdrawal of notice 4 (1) The Regulator may withdraw an infringement notice at any time 5 before the end of the time for payment specified in the notice by 6 serving a withdrawal notice on the person served with the 7 infringement notice. 8 (2) A withdrawal notice may be served on an individual -- 9 (a) by delivering it personally to the individual; or 10 (b) by sending it by post addressed to the individual to his or her 11 usual or last known place of residence or business. 12 (3) A withdrawal notice may be served on a person that is a body 13 corporate -- 14 (a) by delivering it personally to the registered office or usual or 15 last known place of business of the body corporate; or 16 (b) by sending it by post addressed to the body corporate to its 17 registered office or usual or last known place of business. 18 (4) An infringement notice may be withdrawn even if the infringement 19 penalty has been paid. 20 239. Refund of infringement penalty 21 If an infringement notice is withdrawn in accordance with 22 section 238, the amount of any infringement penalty paid must be 23 refunded by the Regulator. 24 240. Payment expiates breach of infringement penalty provision 25 No proceedings may be taken by the Regulator against a person on 26 whom an infringement notice was served in respect of an alleged 27 breach of an infringement penalty provision if -- 28 (a) the infringement penalty is -- 29 (i) paid within the time for payment stated in the notice; 30 and page 197 Rail Safety National Law (WA) Bill 2014 Schedule Rail Safety National Law Part 10 General s. 241 1 (ii) not withdrawn by the Regulator within the time for 2 payment stated in the notice in accordance with 3 section 238; 4 or 5 (b) the infringement penalty is accepted in accordance with 6 section 237. 7 241. Payment not to have certain consequences 8 The payment of an infringement penalty under this Part is not and 9 must not be taken to be an admission of a breach of an infringement 10 penalty provision or an admission of liability for the purpose of any 11 proceeding instituted in respect of the breach. 12 242. Conduct in breach of more than 1 infringement penalty provision 13 (1) If the conduct of a person constitutes a breach of 2 or more 14 infringement penalty provisions, an infringement notice may be 15 served on the person under this Part in relation to the breach of any 16 1 or more of those provisions. 17 (2) However, the person is not liable to pay more than 1 infringement 18 penalty in respect of the same conduct. 19 Part 10 -- General 20 Division 1 -- Delegation by Minister 21 243. Delegation by Minister 22 (1) The Minister may delegate to a body or person (including a person for 23 the time being holding or acting in a specified office or position) a 24 function or power of the Minister under this Law. 25 (2) A function or power delegated under this section may, if the 26 instrument of delegation so provides, be further delegated. 27 Division 2 -- Confidentiality of information 28 244. Confidentiality of information 29 (1) This section applies if a person obtains information or gains access to 30 a document in exercising any power or function under this Law. page 198 Rail Safety National Law (WA) Bill 2014 Rail Safety National Law Schedule General Part 10 s. 244 1 (2) The person must not do any of the following -- 2 (a) disclose to anyone else -- 3 (i) the information; or 4 (ii) the contents of or information contained in the 5 document; 6 (b) give access to the document to anyone else; 7 (c) use the information or document for any purpose. 8 Maximum penalty: 9 (a) in the case of an individual -- $10 000; 10 (b) in the case of a body corporate -- $50 000. 11 (3) Subsection (2) does not apply to the disclosure of information, or the 12 giving of access to a document or the use of information or a 13 document -- 14 (a) about a person, with the person's consent; or 15 (b) that is necessary for the exercise of a function or power under 16 this Law; or 17 (c) that is made or given by ONRSR, a member of ONRSR, or a 18 person authorised by ONRSR, if ONRSR reasonably believes 19 the disclosure, access or use -- 20 (i) is necessary for administering, or monitoring or 21 enforcing compliance with, this Law; or 22 (ii) is necessary for the administration or enforcement of 23 an Act prescribed by the national regulations; or 24 (iii) is necessary for the administration or enforcement of 25 an Act or other law, if the disclosure, access or use is 26 necessary to lessen or prevent a serious risk to public 27 health or safety; 28 or 29 (d) that is required by any court, tribunal, authority or person 30 having lawful authority to require the production of 31 documents or the answering of questions; or 32 (e) that is required or authorised under a law; or 33 (f) to a Minister of a participating jurisdiction. page 199 Rail Safety National Law (WA) Bill 2014 Schedule Rail Safety National Law Part 10 General s. 245 1 (4) A person must not intentionally disclose to another person the name 2 of an individual who has made a complaint in relation to that other 3 person unless -- 4 (a) the disclosure is made with the consent of the complainant; or 5 (b) the disclosure is required under a law. 6 Maximum penalty: 7 (a) in the case of an individual -- $10 000; 8 (b) in the case of a body corporate -- $50 000. 9 (5) Nothing in this section prevents information being used to enable 10 ONRSR to accumulate aggregate data and to enable ONRSR to 11 authorise use of the aggregate data for the purposes of research or 12 education. 13 Division 3 -- Law does not affect legal professional privilege 14 245. Law does not affect legal professional privilege 15 Nothing in this Law requires a person to produce a document that 16 would disclose information, or otherwise provide information, that is 17 the subject of legal professional privilege. 18 Division 4 -- Civil liability 19 246. Civil liability not affected by Part 3 Division 3 or Division 6 20 Nothing in Part 3 Division 3 or Part 3 Division 6 is to be construed -- 21 (a) as conferring a right of action in civil proceedings in respect 22 of a contravention (whether by act or omission) of any 23 provisions of those Divisions; or 24 (b) as conferring a defence to an action in civil proceedings or 25 otherwise affecting a right of action in civil proceedings; or 26 (c) affecting the extent (if any) to which a right of action arises, 27 or civil proceedings may be taken, with respect to breaches of 28 duties or obligations imposed by the national regulations. page 200 Rail Safety National Law (WA) Bill 2014 Rail Safety National Law Schedule General Part 10 s. 247 1 247. Protection from personal liability for persons exercising functions 2 (1) A person who is or was a protected person is not personally liable for 3 anything done or omitted to be done in good faith -- 4 (a) in the exercise of a function under this Law; or 5 (b) in the reasonable belief that the act or omission was the 6 exercise of a function under this Law. 7 (2) Any liability resulting from an act or omission that would, but for 8 subsection (1), attach to a protected person attaches instead to 9 ONRSR. 10 (3) In this section -- 11 protected person means any of the following -- 12 (a) a member of ONRSR; 13 (b) a member of a committee of ONRSR; 14 (c) a member of the staff of ONRSR; 15 (d) a rail safety officer; 16 (e) an authorised person; 17 (f) a person to whom ONRSR has delegated any of its functions; 18 (g) a person to whom an entity, or the chief executive of an entity 19 or department of government, of a participating jurisdiction 20 has subdelegated a function delegated to the chief executive 21 by ONRSR; 22 (h) a member of the staff of an entity or department referred to in 23 paragraph (g); 24 (i) a person acting under the authority or direction of a person 25 referred to in paragraphs (a) to (h). 26 248. Immunity for reporting unfit rail safety worker 27 (1) No action may be taken against a person to whom this section applies 28 who, in good faith, reports to -- 29 (a) ONRSR; or 30 (b) a member of ONRSR; or 31 (c) a rail transport operator; or page 201 Rail Safety National Law (WA) Bill 2014 Schedule Rail Safety National Law Part 10 General s. 248 1 (d) any other person who is employed or engaged by ONRSR or 2 a rail transport operator, 3 any information which discloses that a person is unfit to carry out rail 4 safety work or certain types of rail safety work or that it may be 5 dangerous to allow that person to carry out rail safety work or certain 6 types of rail safety work. 7 (2) No action may be taken against a person to whom this section applies 8 who, in good faith, reports -- 9 (a) the results of a test or examination carried out under this Law 10 or the national regulations; or 11 (b) an opinion formed by that person as a result of conducting 12 such a test or examination, 13 to a person referred to in subsection (1)(a), (b), (c) or (d). 14 (3) In this section -- 15 person to whom this section applies means -- 16 (a) a person registered under the Health Practitioner Regulation 17 National Law to practise in the medical profession (other than 18 as a student); or 19 (b) a person registered under the Health Practitioner Regulation 20 National Law to practise in the nursing and midwifery 21 profession as a nurse (other than as a student); or 22 (c) a person registered under the Health Practitioner Regulation 23 National Law to practise in the optometry profession (other 24 than as a student); or 25 (d) a person registered under the Health Practitioner Regulation 26 National Law to practise in the physiotherapy profession 27 (other than as a student); or 28 (e) a person brought within the ambit of this definition by the 29 national regulations. page 202 Rail Safety National Law (WA) Bill 2014 Rail Safety National Law Schedule General Part 10 s. 249 1 Division 5 -- Codes of practice 2 249. Approved codes of practice 3 (1) The responsible Ministers may approve a code of practice for the 4 purposes of this Law and may vary or revoke an approved code of 5 practice. 6 (2) The responsible Ministers may only approve, vary or revoke a code of 7 practice under subsection (1) if that code of practice, variation or 8 revocation was developed by a process that involved consultation 9 among -- 10 (a) each participating jurisdiction; and 11 (b) rail transport operators and any relevant employer 12 organisation; and 13 (c) rail safety workers and any relevant union. 14 (3) A code of practice may apply, adopt or incorporate any matter 15 contained in a document formulated, issued or published by a person 16 or body whether -- 17 (a) with or without modification; or 18 (b) as in force at a particular time or from time to time. 19 (4) An approval of a code of practice, or a variation or revocation of an 20 approved code of practice -- 21 (a) is to be published on the NSW legislation website in 22 accordance with Part 6A of the Interpretation Act 1987 of 23 New South Wales; and 24 (b) will commence on the day or days specified in the approval, 25 variation or revocation for its commencement (being not 26 earlier than the date it is published); and 27 (c) is to be published by the Regulator on ONRSR's website. 28 (5) The Regulator must ensure that a copy of -- 29 (a) each code of practice that is currently approved; and 30 (b) each document applied, adopted or incorporated (to any 31 extent) by an approved code of practice, page 203 Rail Safety National Law (WA) Bill 2014 Schedule Rail Safety National Law Part 10 General s. 250 1 is available for inspection by members of the public without charge at 2 ONRSR's office during normal business hours. 3 250. Use of codes of practice in proceedings 4 (1) This section applies in a proceeding for an offence against this Law. 5 (2) An approved code of practice is admissible in the proceeding as 6 evidence of whether or not a duty or obligation under this Law has 7 been complied with. 8 (3) The court may -- 9 (a) have regard to the code as evidence of what is known about a 10 hazard or risk, risk assessment or risk control to which the 11 code relates; and 12 (b) rely on the code in determining what is reasonably practicable 13 in the circumstances to which the code relates. 14 Note: See section 47 for the meaning of reasonably practicable. 15 (4) Nothing in this section prevents a person from introducing evidence 16 of compliance with this Law in a manner that is different from the 17 code but provides a standard of rail work safety that is equivalent to 18 or higher than the standard required in the code. 19 Division 6 -- Enforceable voluntary undertakings 20 251. Enforceable voluntary undertaking 21 (1) The Regulator may accept (by written notice) a written undertaking (a 22 rail safety undertaking) given by a person in connection with a 23 matter relating to a contravention or alleged contravention by the 24 person of this Law. 25 (2) A rail safety undertaking cannot be accepted for a contravention or 26 alleged contravention that is a Category 1 offence. 27 (3) The giving of a rail safety undertaking does not constitute an 28 admission of guilt by the person giving it in respect of the 29 contravention or alleged contravention to which the undertaking 30 relates. page 204 Rail Safety National Law (WA) Bill 2014 Rail Safety National Law Schedule General Part 10 s. 252 1 252. Notice of decisions and reasons for decision 2 (1) The Regulator must give the person seeking to make a rail safety 3 undertaking written notice of the Regulator's decision to accept or 4 reject the undertaking and of the reasons for the decision. 5 (2) The Regulator must publish, on the Register, notice of a decision to 6 accept a rail safety undertaking and the reasons for that decision. 7 253. When a rail safety undertaking is enforceable 8 A rail safety undertaking takes effect and becomes enforceable when 9 the Regulator's decision to accept the undertaking is given to the 10 person who made the undertaking or at any later date specified by the 11 Regulator. 12 254. Compliance with rail safety undertaking 13 A person must not contravene a rail safety undertaking made by that 14 person that is in effect. 15 Maximum penalty: 16 (a) in the case of an individual -- $10 000; 17 (b) in the case of a body corporate -- $50 000. 18 255. Contravention of rail safety undertaking 19 (1) If the Regulator considers that a person has contravened an 20 undertaking accepted by the Regulator, the Regulator may apply to 21 the court for enforcement of the undertaking. 22 (2) If the court is satisfied that the person has contravened the 23 undertaking, the court, in addition to the imposition of any penalty, 24 may make any of the following orders -- 25 (a) an order that the person must comply with the undertaking or 26 take specified action to comply with the undertaking; 27 (b) an order discharging the undertaking; 28 (c) an order directing the person to pay to the Regulator -- 29 (i) the costs of the proceedings; and 30 (ii) the reasonable costs of the Regulator in monitoring 31 compliance with the rail safety undertaking in the 32 future; page 205 Rail Safety National Law (WA) Bill 2014 Schedule Rail Safety National Law Part 10 General s. 256 1 (d) any other order that it considers appropriate in the 2 circumstances. 3 (3) A person must not fail to comply with an order under this section. 4 Maximum penalty: 5 (a) in the case of an individual -- $5 000; 6 (b) in the case of a body corporate -- $25 000. 7 (4) Nothing in this section prevents proceedings being brought for the 8 contravention or alleged contravention of this Law to which the rail 9 safety undertaking relates. 10 256. Withdrawal or variation of rail safety undertaking 11 (1) A person who has made a rail safety undertaking may, at any time, 12 with the written agreement of the Regulator -- 13 (a) withdraw the undertaking; or 14 (b) vary the undertaking. 15 (2) However, the provisions of the undertaking cannot be varied to 16 provide for a different alleged contravention of this Law. 17 (3) The Regulator must publish, on the Register, notice of the withdrawal 18 or variation of a rail safety undertaking. 19 257. Proceedings for alleged contravention 20 (1) Subject to this section, no proceedings for a contravention or alleged 21 contravention of this Law may be brought against a person if a rail 22 safety undertaking is in effect in relation to that contravention. 23 (2) No proceedings may be brought for a contravention or alleged 24 contravention of this Law against a person who has made a rail safety 25 undertaking in respect of that contravention and has completely 26 discharged the rail safety undertaking. 27 (3) The Regulator may accept a rail safety undertaking in respect of a 28 contravention or alleged contravention before proceedings in respect 29 of that contravention have been finalised. 30 (4) If the Regulator accepts a rail safety undertaking before the 31 proceedings are finalised, the Regulator must take all reasonable steps 32 to have the proceedings discontinued as soon as possible. page 206 Rail Safety National Law (WA) Bill 2014 Rail Safety National Law Schedule General Part 10 s. 258 1 Division 7 -- Other matters 2 258. Service of documents 3 (1) A notice or document required or authorised by or under this Law to 4 be given or served on a person may be served on the person -- 5 (a) by delivering it personally to the person; or 6 (b) by sending it by post addressed to the person to the person's 7 last known address; or 8 (c) if the person holds an accreditation or registration, or has 9 been granted an exemption, under this Law -- 10 (i) by sending it by post addressed to the person to that 11 person's address for service; or 12 (ii) be left for the person at the person's address for 13 service with someone apparently over the age of 14 16 years; 15 or 16 (d) be transmitted by fax or email to a fax number or email 17 address provided by the person for that purpose (in which 18 case the notice or document will be taken to have been given 19 or served at the time of transmission). 20 (2) The address for service of a person is the address last provided by the 21 person in writing to the Regulator as the address for service. 22 259. Recovery of certain costs 23 The Regulator may recover as a debt from a rail transport operator the 24 reasonable costs of the entry and inspection of railway infrastructure, 25 rolling stock or railway premises in respect of which the person is 26 accredited, other than the costs of an inspection of an accredited 27 person under Part 3 Division 11. 28 260. Recovery of amounts due 29 Every fee, charge or other amount of money payable under this Law 30 may be recovered by the Regulator as a debt due to the Regulator in a 31 court of competent jurisdiction. page 207 Rail Safety National Law (WA) Bill 2014 Schedule Rail Safety National Law Part 10 General s. 261 1 261. Compliance with conditions of accreditation or registration 2 (1) If -- 3 (a) a condition or restriction to which the accreditation of a 4 person is subject makes provision for or with respect to a duty 5 or obligation imposed by this Law; and 6 (b) the accredited person complies with the condition or 7 restriction to the extent that it makes that provision, 8 the accredited person is, for the purposes of this Law, taken to have 9 complied with this Law in relation to that duty or obligation. 10 (2) If -- 11 (a) a condition or restriction to which the registration of a person 12 is subject makes provision for or with respect to a duty or 13 obligation imposed by this Law; and 14 (b) the registered person complies with the condition or 15 restriction to the extent that it makes that provision, 16 the registered person is, for the purposes of this Law, taken to have 17 complied with this Law in relation to that duty or obligation. 18 262. Contracting out prohibited 19 A term of any contract or agreement that purports to exclude, limit or 20 modify the operation of this Law or any duty under this Law or to 21 transfer to another person any duty owed under this Law is void. 22 Division 8 -- Application of certain South Australian Acts to this Law 23 263. Application of certain South Australian Acts to this Law 24 (1) The following Acts (as in force from time to time) apply as laws of a 25 participating jurisdiction for the purposes of this Law -- 26 (a) the Freedom of Information Act 1991 of South Australia; 27 (b) the Ombudsman Act 1972 of South Australia; 28 (c) the Public Finance and Audit Act 1987 of South Australia; 29 (d) the State Records Act 1997 of South Australia. 30 (2) However, subject to subsection (4), the Acts referred to in 31 subsection (1) do not apply for the purposes of this Law to the extent page 208 Rail Safety National Law (WA) Bill 2014 Rail Safety National Law Schedule General Part 10 s. 264 1 that functions are being exercised under this Law by a State or 2 Territory entity, other than a South Australian entity. 3 (3) The national regulations may modify any such Act for the purposes of 4 this Law. 5 (4) Without limiting subsection (3), the national regulations may -- 6 (a) provide that the Act applies as if a provision of the Act 7 specified in the national regulations were omitted; or 8 (b) provide that the Act applies as if an amendment to the Act 9 made by a law of South Australia, and specified in the 10 national regulations, had not taken effect; or 11 (c) confer a function on a State or Territory entity; or 12 (d) confer jurisdiction on a tribunal or court of a participating 13 jurisdiction. 14 (5) An Act referred to in subsection (1) applies for the purposes of this 15 Law as if the Minister responsible for a government agency were the 16 Minister in relation to a body established by this Law. 17 Division 9 -- National regulations 18 264. National regulations 19 (1) For the purposes of this section, the designated authority is the 20 Governor of the State of South Australia, or other officer for the time 21 being administering the Government of that State, acting with the 22 advice and consent of the Executive Council of that State. 23 (2) The designated authority, on the unanimous recommendation of the 24 responsible Ministers, may make regulations (national regulations) 25 as contemplated by this Law, or as necessary or expedient for the 26 purposes of this Law, including regulations that make provision for or 27 in relation to any of the matters specified in Schedule 1 to this Law. 28 (3) Where the national regulations refer to or incorporate a code, standard 29 or other document prepared or published by a prescribed body -- 30 (a) a copy of the code, standard or other document must be kept 31 available for inspection by members of the public, without 32 charge and during normal office hours, at the office or offices 33 specified in the regulations; and page 209 Rail Safety National Law (WA) Bill 2014 Schedule Rail Safety National Law Part 10 General s. 265 1 (b) in legal proceedings, evidence of the contents of the code, 2 standard or other document may be given by production of a 3 document purporting to be certified by or on behalf of the 4 Regulator as a true copy of the code, standard or other 5 document; and 6 (c) the code, standard or other document has effect as if it were a 7 regulation made under this Law. 8 265. Publication of national regulations 9 (1) The national regulations are to be published on the NSW legislation 10 website in accordance with Part 6A of the Interpretation Act 1987 of 11 New South Wales. 12 (2) A regulation commences on the day or days specified in the 13 regulation for its commencement (being not earlier than the date it is 14 published). page 210 Rail Safety National Law (WA) Bill 2014 Rail Safety National Law Schedule National regulations Schedule 1 1 Schedule 1 -- National regulations 2 1. Accreditations under this Law, including -- 3 (a) requirements, standards, qualifications or conditions that 4 must be satisfied; and 5 (b) requirements as to the terms, conditions, restrictions or 6 particulars applying under or with respect to them; and 7 (c) other matters relating to their granting, refusal, variation, 8 suspension, cancellation or surrender. 9 2. Registrations under this Law, including -- 10 (a) requirements, standards, qualifications or conditions that 11 must be satisfied; and 12 (b) requirements as to the terms, conditions, restrictions or 13 particulars applying under or with respect to them; and 14 (c) other matters relating to their granting, refusal, variation, 15 suspension, cancellation or surrender. 16 3. A scheme for certificates of competency (or provisional certificates of 17 competency) for persons employed or engaged in rail safety work, 18 and for the duration, variation, suspension or cancellation of those 19 certificates. 20 4. The prohibition of the carrying on of rail safety work or other 21 prescribed activity except by or under the supervision of a person -- 22 (a) who holds an appropriate certificate of competency; or 23 (b) who has prescribed qualifications, training or experience. 24 5. Safety standards or other requirements that must be complied with -- 25 (a) in connection with the construction, maintenance or 26 operation of a railway; or 27 (b) in connection with the performance of any work or activity; 28 or 29 (c) in relation to any rail infrastructure, rolling stock, trains, 30 system, devices, appliance or equipment; or 31 (d) in relation to sidings. 32 6. Procedures (including consultation) for the making, adoption and 33 amendment of rules and procedures relating to rail network operations page 211 Rail Safety National Law (WA) Bill 2014 Schedule Rail Safety National Law Schedule 1 National regulations 1 made or adopted for the purposes of Part 3 Division 3 by the rail 2 infrastructure manager responsible for the management of that part of 3 the rail network. 4 7. The safeguarding, siting, installing, testing, altering, maintaining or 5 removal of any rail infrastructure, rolling stock, system, device, 6 appliance or equipment. 7 8. The records and documents to be kept by any person, the manner of 8 keeping those records and documents, and their inspection. 9 9. The providing of returns and other information, verified as prescribed. 10 10. The registration of plans and other documents required under this 11 Law. 12 11. The recording, investigation and reporting of accidents and incidents. 13 12. The health, fitness and functions of rail safety workers. 14 13. Drug and alcohol management of rail safety workers, including -- 15 (a) the allowed concentration of alcohol; and 16 (b) procedures for drug and alcohol testing, including 17 compulsory testing; and 18 (c) providing for the authorisation of persons to conduct drug 19 and alcohol testing and operate equipment for that purpose; 20 and 21 (d) regulating the collection of biological samples from rail 22 safety workers for the purposes of drug and alcohol testing; 23 and 24 (e) providing for the analysis of test results, including the 25 accreditation of persons conducting the analysis; and 26 (f) providing for the approval of devices used in carrying out 27 drug and alcohol testing and analysis; and 28 (g) providing for the use of results from any testing or analysis, 29 or the steps that may be taken on account of any testing or 30 any evidence or information produced as a result of testing; 31 and 32 (h) prescribing the circumstances that amount to a defence to a 33 breach of the regulations, including where the consumption 34 of alcohol or drugs occurs after rail safety work has been 35 carried out; and page 212 Rail Safety National Law (WA) Bill 2014 Rail Safety National Law Schedule National regulations Schedule 1 1 (i) providing for the confidentiality of test results; and 2 (j) regulating the destruction of biological samples collected for 3 testing; and 4 (k) providing for the protection of persons involved in taking or 5 conducting testing from liability for acts or omissions done 6 in good faith and in accordance with the regulations. 7 14. Fatigue management of rail safety workers, including work hours and 8 rest periods. 9 15. The regulation of the conduct of passengers and other persons on 10 railways, or on land or premises associated with a railway. 11 16. Trespass on, or entry to, railways, or on land, premises, infrastructure 12 or rolling stock associated with a railway. 13 17. The regulation or prohibition of the carriage of goods, freight or 14 animals on railways. 15 18. The unauthorised use of railways or rolling stock. 16 19. The display of signs and notices. 17 20. The opening and closing of railway gates. 18 21. The regulation of vehicles, animals and pedestrians crossing railways. 19 22. The regulation of crossings. 20 23. The loading, unloading or transportation of freight. 21 24. The identification of rolling stock, rail infrastructure, devices, 22 appliances, equipment or freight. 23 25. Causing damage to, or interfering with or removing, rolling stock, rail 24 infrastructure, devices, appliances, equipment or freight. 25 26. Procedures associated with inspections, examinations or tests under 26 this Law. 27 27. The form and service of notices and other documents under this Law. 28 28. Empowering the Regulator to prohibit a person from acting (or from 29 continuing to act) as a rail safety worker for a specified period, or 30 until further order of the Regulator. 31 29. Fixing fees and charges for the purposes of this Law or in respect of 32 any matter arising under this Law, including a fee that the Regulator page 213 Rail Safety National Law (WA) Bill 2014 Schedule Rail Safety National Law Schedule 1 National regulations 1 may recover from an accredited person as a debt if the accredited 2 person fails to comply with a requirement of this Law within a 3 specified time. 4 30. Generally, evidence in proceedings for an offence against the 5 regulations. 6 31. Infringement penalty provisions, including requirements for 7 infringement notices and the fixing of infringement penalties, not 8 exceeding $1 500, for contravention of an alleged offence against this 9 Law or the regulations. 10 32. The imposition of penalties, not exceeding $10 000 for a 11 contravention of, or failure to comply with, a regulation. page 214 Rail Safety National Law (WA) Bill 2014 Rail Safety National Law Schedule Miscellaneous provisions relating to interpretation Schedule 2 cl. 1 1 Schedule 2 -- Miscellaneous provisions relating to interpretation 2 Part 1 -- Preliminary 3 1. Displacement of Schedule by contrary intention 4 The application of this Schedule may be displaced, wholly or partly, 5 by a contrary intention appearing in this Law. 6 Part 2 -- General 7 2. Law to be construed not to exceed legislative power of Parliament 8 (1) This Law is to be construed as operating to the full extent of, but so as 9 not to exceed, the legislative power of the Parliament of this 10 jurisdiction. 11 (2) If a provision of this Law, or the application of a provision of this 12 Law to a person, subject matter or circumstance, would, but for this 13 clause, be construed as being in excess of the legislative power of the 14 Parliament of this jurisdiction -- 15 (a) it is a valid provision to the extent to which it is not in excess 16 of the power; and 17 (b) the remainder of this Law, and the application of the 18 provision to other persons, subject matters or circumstances, 19 is not affected. 20 (3) This clause applies to this Law in addition to, and without limiting the 21 effect of, any provision of this Law. 22 3. Every section to be a substantive enactment 23 Every section of this Law has effect as a substantive enactment 24 without introductory words. 25 4. Material that is, and is not, part of this Law 26 (1) The heading to a Part, Division or Subdivision into which this Law is 27 divided is part of this Law. 28 (2) A Schedule to this Law is part of this Law. page 215 Rail Safety National Law (WA) Bill 2014 Schedule Rail Safety National Law Schedule 2 Miscellaneous provisions relating to interpretation cl. 5 1 (3) Punctuation in this Law is part of this Law. 2 (4) A heading to a section or subsection of this Law does not form part of 3 this Law. 4 5. References to particular Acts and to enactments 5 In this Law -- 6 (a) an Act of this jurisdiction may be cited -- 7 (i) by its short title; or 8 (ii) by reference to the year in which it was passed and its 9 number; 10 and 11 (b) a Commonwealth Act may be cited -- 12 (i) by its short title; or 13 (ii) in another way sufficient in a Commonwealth Act for 14 the citation of such an Act, 15 together with a reference to the Commonwealth; and 16 (c) an Act of another jurisdiction may be cited -- 17 (i) by its short title; or 18 (ii) in another way sufficient in an Act of the jurisdiction 19 for the citation of such an Act, 20 together with a reference to the jurisdiction. 21 6. References taken to be included in Law or Act citation etc 22 (1) A reference in this Law to this Law or an Act includes a reference 23 to -- 24 (a) this Law or the Act as originally enacted, and as amended 25 from time to time since its original enactment; and 26 (b) if this Law or the Act has been repealed and re-enacted (with 27 or without modification) since the enactment of the 28 reference -- this Law or the Act as re-enacted, and as 29 amended from time to time since its re-enactment. page 216 Rail Safety National Law (WA) Bill 2014 Rail Safety National Law Schedule Miscellaneous provisions relating to interpretation Schedule 2 cl. 7 1 (2) A reference in this Law to a provision of this Law or of an Act 2 includes a reference to -- 3 (a) the provision as originally enacted, and as amended from 4 time to time since its original enactment; and 5 (b) if the provision has been omitted and re-enacted (with or 6 without modification) since the enactment of the reference -- 7 the provision as re-enacted, and as amended from time to 8 time since its re-enactment. 9 (3) Subclauses (1) and (2) apply to a reference in this Law to a law of the 10 Commonwealth or another jurisdiction as they apply to a reference in 11 this Law to an Act and to a provision of an Act. 12 7. Interpretation best achieving Law's purpose or object 13 (1) In the interpretation of a provision of this Law, the interpretation that 14 will best achieve the purpose or object of this Law is to be preferred 15 to any other interpretation. 16 (2) Subclause (1) applies whether or not the purpose is expressly stated in 17 this Law. 18 8. Use of extrinsic material in interpretation 19 (1) In this clause -- 20 extrinsic material means relevant material not forming part of this 21 Law, including (for example) -- 22 (a) material that is set out in the document containing the text of 23 this Law as printed by the Government Printer; and 24 (b) a relevant report of a Royal Commission, Law Reform 25 Commission, commission or committee of inquiry, or a 26 similar body, that was laid before the Parliament of this 27 jurisdiction before the provision concerned was enacted; and 28 (c) a relevant report of a committee of the Parliament of this 29 jurisdiction that was made to the Parliament before the 30 provision was enacted; and 31 (d) a treaty or other international agreement that is mentioned in 32 this Law; and 33 (e) an explanatory note or memorandum relating to the Bill that 34 contained the provision, or any relevant document, that was page 217 Rail Safety National Law (WA) Bill 2014 Schedule Rail Safety National Law Schedule 2 Miscellaneous provisions relating to interpretation cl. 8 1 laid before, or given to the members of, the Parliament of this 2 jurisdiction by the member bringing in the Bill before the 3 provision was enacted; and 4 (f) the speech made to the Parliament of this jurisdiction by the 5 member in moving a motion that the Bill be read a second 6 time; and 7 (g) material in the Votes and Proceedings of the Parliament of 8 this jurisdiction or in any official record of debates in the 9 Parliament of this jurisdiction; and 10 (h) a document that is declared by this Law to be a relevant 11 document for the purposes of this clause; 12 ordinary meaning means the ordinary meaning conveyed by a 13 provision having regard to its context in this Law and to the purpose 14 of this Law. 15 (2) Subject to subclause (3), in the interpretation of a provision of this 16 Law, consideration may be given to extrinsic material capable of 17 assisting in the interpretation -- 18 (a) if the provision is ambiguous or obscure -- to provide an 19 interpretation of it; or 20 (b) if the ordinary meaning of the provision leads to a result that 21 is manifestly absurd or is unreasonable -- to provide an 22 interpretation that avoids such a result; or 23 (c) in any other case -- to confirm the interpretation conveyed 24 by the ordinary meaning of the provision. 25 (3) In determining whether consideration should be given to extrinsic 26 material, and in determining the weight to be given to extrinsic 27 material, regard is to be had to -- 28 (a) the desirability of a provision being interpreted as having its 29 ordinary meaning; and 30 (b) the undesirability of prolonging proceedings without 31 compensating advantage; and 32 (c) other relevant matters. page 218 Rail Safety National Law (WA) Bill 2014 Rail Safety National Law Schedule Miscellaneous provisions relating to interpretation Schedule 2 cl. 9 1 9. Effect of change of drafting practice 2 If -- 3 (a) a provision of this Law expresses an idea in particular words; 4 and 5 (b) a provision enacted later appears to express the same idea in 6 different words for the purpose of implementing a different 7 legislative drafting practice, including (for example) -- 8 (i) the use of a clearer or simpler style; or 9 (ii) the use of gender-neutral language, 10 the ideas must not be taken to be different merely because different 11 words are used. 12 10. Use of examples 13 If this Law includes an example of the operation of a provision -- 14 (a) the example is not exhaustive; and 15 (b) the example does not limit, but may extend, the meaning of 16 the provision; and 17 (c) the example and the provision are to be read in the context of 18 each other and the other provisions of this Law, but, if the 19 example and the provision so read are inconsistent, the 20 provision prevails. 21 11. Compliance with forms 22 (1) If a form is prescribed or approved by or for the purpose of this Law, 23 strict compliance with the form is not necessary and substantial 24 compliance is sufficient. 25 (2) If a form prescribed or approved by or for the purpose of this Law 26 requires -- 27 (a) the form to be completed in a specified way; or 28 (b) specified information or documents to be included in, 29 attached to or given with the form; or page 219 Rail Safety National Law (WA) Bill 2014 Schedule Rail Safety National Law Schedule 2 Miscellaneous provisions relating to interpretation cl. 12 1 (c) the form, or information or documents included in, attached 2 to or given with the form, to be verified in a specified way, 3 the form is not properly completed unless the requirement is complied 4 with. 5 Part 3 -- Terms and references 6 12. Definitions 7 (1) In this Law -- 8 Act means an Act of the Parliament of this jurisdiction; 9 adult means an individual who is 18 or more; 10 affidavit, in relation to a person allowed by law to affirm, declare or 11 promise, includes affirmation, declaration and promise; 12 amend includes -- 13 (a) omit or omit and substitute; or 14 (b) alter or vary; or 15 (c) amend by implication; 16 appoint includes reappoint; 17 Australia means the Commonwealth of Australia but, when used in a 18 geographical sense, does not include an external Territory; 19 business day means a day that is not -- 20 (a) a Saturday or Sunday; or 21 (b) a public holiday, special holiday or bank holiday in the place 22 in which any relevant act is to be or may be done; 23 calendar month means a period starting at the beginning of any day 24 of 1 of the 12 named months and ending -- 25 (a) immediately before the beginning of the corresponding day of 26 the next named month; or 27 (b) if there is no such corresponding day -- at the end of the next 28 named month; 29 calendar year means a period of 12 months beginning on 1 January; 30 commencement, in relation to this Law or an Act or a provision of 31 this Law or an Act, means the time at which this Law, the Act or 32 provision comes into operation; page 220 Rail Safety National Law (WA) Bill 2014 Rail Safety National Law Schedule Miscellaneous provisions relating to interpretation Schedule 2 cl. 12 1 Commonwealth means the Commonwealth of Australia but, when 2 used in a geographical sense, does not include an external Territory; 3 confer, in relation to a function, includes impose; 4 contravene includes fail to comply with; 5 country includes -- 6 (a) a federation; or 7 (b) a state, province or other part of a federation; 8 date of assent, in relation to an Act, means the day on which the Act 9 receives the Royal Assent; 10 definition means a provision of this Law (however expressed) that -- 11 (a) gives a meaning to a word or expression; or 12 (b) limits or extends the meaning of a word or expression; 13 document means any record of information and includes -- 14 (a) any paper or other material on which there is writing; or 15 (b) any paper or other material on which there are marks, figures, 16 symbols or perforations having a meaning for a person 17 qualified to interpret them; or 18 (c) any computer, disc, tape or other article or any material from 19 which sounds, images, writings or messages are capable of 20 being reproduced (with or without the aid of another article or 21 device); or 22 (d) a map, plan, drawing or photograph; 23 electronic communication means -- 24 (a) a communication of information in the form of data, text or 25 images by means of guided or unguided electromagnetic 26 energy, or both; or 27 (b) a communication of information in the form of sound by 28 means of guided or unguided electromagnetic energy, or 29 both, where the sound is processed at its destination by an 30 automated voice recognition system; 31 estate includes easement, charge, right, title, claim, demand, lien or 32 encumbrance, whether at law or in equity; 33 expire includes lapse or otherwise cease to have effect; page 221 Rail Safety National Law (WA) Bill 2014 Schedule Rail Safety National Law Schedule 2 Miscellaneous provisions relating to interpretation cl. 12 1 external Territory means a Territory, other than an internal Territory, 2 for the government of which as a Territory provision is made by a 3 Commonwealth Act; 4 fail includes refuse; 5 financial year means a period of 12 months beginning on 1 July; 6 function includes a power or duty; 7 Government Printer means the Government Printer of this 8 jurisdiction, and includes any other person authorised by the 9 Government of this jurisdiction to print an Act or instrument; 10 individual means a natural person; 11 information system means a system for generating, sending, 12 receiving, storing or otherwise processing electronic communications; 13 insert, in relation to a provision of this Law, includes substitute; 14 instrument includes a statutory instrument; 15 interest, in relation to land or other property, means -- 16 (a) a legal or equitable estate in the land or other property; or 17 (b) a right, power or privilege over, or in relation to, the land or 18 other property; 19 internal Territory means the Australian Capital Territory, the Jervis 20 Bay Territory or the Northern Territory; 21 Jervis Bay Territory means the Territory mentioned in the Jervis Bay 22 Territory Acceptance Act 1915 of the Commonwealth; 23 make includes issue or grant; 24 minor means an individual who is under 18; 25 modification includes addition, omission or substitution; 26 month means a calendar month; 27 named month means 1 of the 12 months of the year; 28 Northern Territory means the Northern Territory of Australia; 29 number means -- 30 (a) a number expressed in figures or words; or 31 (b) a letter; or 32 (c) a combination of a number so expressed and a letter; page 222 Rail Safety National Law (WA) Bill 2014 Rail Safety National Law Schedule Miscellaneous provisions relating to interpretation Schedule 2 cl. 12 1 oath, in relation to a person allowed by law to affirm, declare or 2 promise, includes affirmation, declaration or promise; 3 office includes position; 4 omit, in relation to a provision of this Law or an Act, includes repeal; 5 party includes an individual or a body politic or corporate; 6 penalty includes forfeiture or punishment; 7 person includes an individual or a body politic or corporate; 8 power includes authority; 9 prescribed means prescribed by, or by regulations made or in force 10 for the purposes of or under, this Law; 11 printed includes typewritten, lithographed or reproduced by any 12 mechanical means; 13 proceeding means a legal or other action or proceeding; 14 property means any legal or equitable estate or interest (whether 15 present or future, vested or contingent, or tangible or intangible) in 16 real or personal property of any description (including money), and 17 includes things in action; 18 provision, in relation to this Law or an Act, means words or other 19 matter that form or forms part of this Law or the Act, and includes -- 20 (a) a Chapter, Part, Division, Subdivision, section, subsection, 21 paragraph, subparagraph, subsubparagraph or Schedule of or 22 to this Law or the Act; or 23 (b) a clause, section, subsection, item, column, table or form of 24 or in a Schedule to this Law or the Act; or 25 (c) the long title and any preamble to the Act; 26 repeal includes -- 27 (a) revoke or rescind; or 28 (b) repeal by implication; or 29 (c) abrogate or limit the effect of this Law or instrument 30 concerned; or 31 (d) exclude from, or include in, the application of this Law or 32 instrument concerned, any person, subject matter or 33 circumstance; 34 sign includes the affixing of a seal or the making of a mark; page 223 Rail Safety National Law (WA) Bill 2014 Schedule Rail Safety National Law Schedule 2 Miscellaneous provisions relating to interpretation cl. 13 1 statutory declaration means a declaration made under an Act of this 2 jurisdiction, or under a Commonwealth Act or an Act of another 3 jurisdiction, that authorises a declaration to be made otherwise than in 4 the course of a judicial proceeding; 5 statutory instrument means an instrument (including a regulation) 6 made or in force under or for the purposes of this Law, and includes 7 an instrument made or in force under any such instrument; 8 swear, in relation to a person allowed by law to affirm, declare or 9 promise, includes affirm, declare or promise; 10 word includes any symbol, figure or drawing; 11 writing includes any mode of representing or reproducing words in a 12 visible form; 13 year, without specifying the type of year, means calendar year. 14 (2) In a statutory instrument -- 15 the Law means this Law. 16 13. Provisions relating to defined terms and gender and number 17 (1) If this Law defines a word or expression, other parts of speech and 18 grammatical forms of the word or expression have corresponding 19 meanings. 20 (2) Definitions in or applicable to this Law apply except so far as the 21 context or subject matter otherwise indicates or requires. 22 (3) In this Law, words indicating a gender include each other gender. 23 (4) In this Law -- 24 (a) words in the singular include the plural; and 25 (b) words in the plural include the singular. 26 14. Meaning of may and must etc 27 (1) In this Law, the word "may", or a similar word or expression, used in 28 relation to a power indicates that the power may be exercised or not 29 exercised, at discretion. 30 (2) In this Law, the word "must", or a similar word or expression, used in 31 relation to a power indicates that the power is required to be 32 exercised. page 224 Rail Safety National Law (WA) Bill 2014 Rail Safety National Law Schedule Miscellaneous provisions relating to interpretation Schedule 2 cl. 15 1 (3) This clause has effect despite any rule of construction to the contrary. 2 15. Words and expressions used in statutory instruments 3 (1) Words and expressions used in a statutory instrument have the same 4 meanings as they have, from time to time, in this Law, or relevant 5 provisions of this Law, under or for the purposes of which the 6 instrument is made or in force. 7 (2) This clause has effect in relation to an instrument except so far as the 8 contrary intention appears in the instrument. 9 16. Effect of express references to bodies corporate and individuals 10 In this Law, a reference to a person generally (whether the expression 11 "person", "party", "someone", "anyone", "no-one", "one", "another" 12 or "whoever" or another expression is used) -- 13 (a) does not exclude a reference to a body corporate or an 14 individual merely because elsewhere in this Law there is 15 particular reference to a body corporate (however expressed); 16 and 17 (b) does not exclude a reference to an individual or a body 18 corporate merely because elsewhere in this Law there is 19 particular reference to an individual (however expressed). 20 17. Production of records kept in computers etc 21 If a person who keeps a record of information by means of a 22 mechanical, electronic or other device is required by or under this 23 Law -- 24 (a) to produce the information or a document containing the 25 information to a court, tribunal or person; or 26 (b) to make a document containing the information available for 27 inspection by a court, tribunal or person, 28 then, unless the court, tribunal or person otherwise directs -- 29 (c) the requirement obliges the person to produce or make 30 available for inspection (as the case may be) a document that 31 reproduces the information in a form capable of being 32 understood by the court, tribunal or person; and page 225 Rail Safety National Law (WA) Bill 2014 Schedule Rail Safety National Law Schedule 2 Miscellaneous provisions relating to interpretation cl. 18 1 (d) the production to the court, tribunal or person of the 2 document in that form complies with the requirement. 3 18. References to this jurisdiction to be implied 4 In this Law -- 5 (a) a reference to an officer, office or statutory body is a 6 reference to such an officer, office or statutory body in and 7 for this jurisdiction; and 8 (b) a reference to a locality or other matter or thing is a reference 9 to such a locality or other matter or thing in and of this 10 jurisdiction. 11 19. References to officers and holders of offices 12 In this Law, a reference to a particular officer, or to the holder of a 13 particular office, includes a reference to the person for the time being 14 occupying or acting in the office concerned. 15 20. Reference to certain provisions of Law 16 If a provision of this Law refers -- 17 (a) to a Part, section or Schedule by a number and without 18 reference to this Law -- the reference is a reference to the 19 Part, section or Schedule, designated by the number, of or to 20 this Law; or 21 (b) to a Schedule without reference to it by a number and without 22 reference to this Law -- the reference, if there is only 23 1 Schedule to this Law, is a reference to the Schedule; or 24 (c) to a Division, Subdivision, subsection, paragraph, 25 subparagraph, subsubparagraph, clause, subclause, item, 26 column, table or form by a number and without reference to 27 this Law -- the reference is a reference to -- 28 (i) the Division, designated by the number, of the Part in 29 which the reference occurs; and 30 (ii) the Subdivision, designated by the number, of the 31 Division in which the reference occurs; and 32 (iii) the subsection, designated by the number, of the 33 section in which the reference occurs; and page 226 Rail Safety National Law (WA) Bill 2014 Rail Safety National Law Schedule Miscellaneous provisions relating to interpretation Schedule 2 cl. 21 1 (iv) the paragraph, designated by the number, of the 2 section, subsection, Schedule or other provision in 3 which the reference occurs; and 4 (v) the paragraph, designated by the number, of the 5 section, subsection, item, column, table or form of or 6 in the Schedule in which the reference occurs; and 7 (vi) the subparagraph, designated by the number, of the 8 paragraph in which the reference occurs; and 9 (vii) the subsubparagraph, designated by the number, of 10 the subparagraph in which the reference occurs; and 11 (viii) the clause, section, subsection, item, column, table or 12 form, designated by the number, of or in the Schedule 13 in which the reference occurs, 14 as the case requires. 15 21. Reference to provisions of this Law or an Act is inclusive 16 In this Law, a reference to a portion of this Law or an Act includes -- 17 (a) a reference to the Chapter, Part, Division, Subdivision, 18 section, subsection or other provision of this Law or the Act 19 referred to that forms the beginning of the portion; and 20 (b) a reference to the Chapter, Part, Division, Subdivision, 21 section, subsection or other provision of this Law or the Act 22 referred to that forms the end of the portion. 23 Example: A reference to "sections 5 to 9" includes both section 5 and 24 section 9. It is not necessary to refer to "sections 5 to 9 (both 25 inclusive)" to ensure that the reference is given an inclusive 26 interpretation. 27 Part 4 -- Functions and powers 28 22. Exercise of statutory functions 29 (1) If this Law confers a function on a person or body, the function may 30 be exercised from time to time as occasion requires. 31 (2) If this Law confers a function on a particular officer or the holder of a 32 particular office, the function may be exercised by the person for the 33 time being occupying or acting in the office concerned. page 227 Rail Safety National Law (WA) Bill 2014 Schedule Rail Safety National Law Schedule 2 Miscellaneous provisions relating to interpretation cl. 23 1 (3) If this Law confers a function on a body (whether or not 2 incorporated), the exercise of the function is not affected merely 3 because of vacancies in the membership of the body. 4 23. Power to make instrument or decision includes power to amend 5 or repeal 6 If this Law authorises or requires the making of an instrument or 7 decision -- 8 (a) the power includes power to amend or repeal the instrument 9 or decision; and 10 (b) the power to amend or repeal the instrument or decision is 11 exercisable in the same way, and subject to the same 12 conditions, as the power to make the instrument or decision. 13 24. Matters for which statutory instruments may make provision 14 (1) If this Law authorises or requires the making of a statutory instrument 15 in relation to a matter, a statutory instrument made under this Law 16 may make provision for the matter by applying, adopting or 17 incorporating (with or without modification) the provisions of -- 18 (a) an Act or statutory instrument; or 19 (b) another document (whether of the same or a different kind), 20 as in force at a particular time or as in force from time to 21 time. 22 (2) If a statutory instrument applies, adopts or incorporates the provisions 23 of a document, the statutory instrument applies, adopts or incorporates 24 the provisions as in force from time to time, unless the statutory 25 instrument otherwise expressly provides. 26 (3) A statutory instrument may -- 27 (a) apply generally throughout this jurisdiction or be limited in 28 its application to a particular part of this jurisdiction; or 29 (b) apply generally to all persons, matters or things or be limited 30 in its application to -- 31 (i) particular persons, matters or things; or 32 (ii) particular classes of persons, matters or things; 33 or page 228 Rail Safety National Law (WA) Bill 2014 Rail Safety National Law Schedule Miscellaneous provisions relating to interpretation Schedule 2 cl. 25 1 (c) otherwise apply generally or be limited in its application by 2 reference to specified exceptions or factors. 3 (4) A statutory instrument may -- 4 (a) apply differently according to different specified factors; or 5 (b) otherwise make different provision in relation to -- 6 (i) different persons, matters or things; or 7 (ii) different classes of persons, matters or things. 8 (5) A statutory instrument may authorise a matter or thing to be from time 9 to time determined, applied or regulated by a specified person or 10 body. 11 (6) If this Law authorises or requires a matter to be regulated by statutory 12 instrument, the power may be exercised by prohibiting by statutory 13 instrument the matter or any aspect of the matter. 14 (7) If this Law authorises or requires provision to be made with respect to 15 a matter by statutory instrument, a statutory instrument made under 16 this Law may make provision with respect to a particular aspect of the 17 matter despite the fact that provision is made by this Law in relation 18 to another aspect of the matter or in relation to another matter. 19 (8) A statutory instrument may provide for the review of, or a right of 20 appeal against, a decision made under the statutory instrument, or this 21 Law, and may, for that purpose, confer jurisdiction on any court, 22 tribunal, person or body. 23 (9) A statutory instrument may require a form prescribed by or under the 24 statutory instrument, or information or documents included in, 25 attached to or given with the form, to be verified by statutory 26 declaration. 27 25. Presumption of validity and power to make 28 (1) All conditions and preliminary steps required for the making of a 29 statutory instrument are presumed to have been satisfied and 30 performed in the absence of evidence to the contrary. 31 (2) A statutory instrument is taken to be made under all powers under 32 which it may be made, even though it purports to be made under this 33 Law or a particular provision of this Law. page 229 Rail Safety National Law (WA) Bill 2014 Schedule Rail Safety National Law Schedule 2 Miscellaneous provisions relating to interpretation cl. 26 1 26. Appointments may be made by name or office 2 (1) If this Law authorises or requires a person or body -- 3 (a) to appoint a person to an office; or 4 (b) to appoint a person or body to exercise a power; or 5 (c) to appoint a person or body to do another thing, 6 the person or body may make the appointment by -- 7 (d) appointing a person or body by name; or 8 (e) appointing a particular officer, or the holder of a particular 9 office, by reference to the title of the office concerned. 10 (2) An appointment of a particular officer, or the holder of a particular 11 office, is taken to be the appointment of the person for the time being 12 occupying or acting in the office concerned. 13 27. Acting appointments 14 (1) If this Law authorises a person or body to appoint a person to act in an 15 office, the person or body may, in accordance with this Law, 16 appoint -- 17 (a) a person by name; or 18 (b) a particular officer, or the holder of a particular office, by 19 reference to the title of the office concerned, 20 to act in the office. 21 (2) The appointment may be expressed to have effect only in the 22 circumstances specified in the instrument of appointment. 23 (3) The appointer may -- 24 (a) determine the terms and conditions of the appointment, 25 including remuneration and allowances; and 26 (b) terminate the appointment at any time. 27 (4) The appointment, or the termination of the appointment, must be in, 28 or evidenced by, writing signed by the appointer. 29 (5) The appointee must not act for more than 1 year during a vacancy in 30 the office. page 230 Rail Safety National Law (WA) Bill 2014 Rail Safety National Law Schedule Miscellaneous provisions relating to interpretation Schedule 2 cl. 28 1 (6) If the appointee is acting in the office otherwise than because of a 2 vacancy in the office and the office becomes vacant, then, subject to 3 subclause (2), the appointee may continue to act until -- 4 (a) the appointer otherwise directs; or 5 (b) the vacancy is filled; or 6 (c) the end of a year from the day of the vacancy, 7 whichever happens first. 8 (7) The appointment ceases to have effect if the appointee resigns by 9 writing signed and delivered to the appointer. 10 (8) While the appointee is acting in the office -- 11 (a) the appointee has all the powers and functions of the holder 12 of the office; and 13 (b) this Law and other laws apply to the appointee as if the 14 appointee were the holder of the office. 15 (9) Anything done by or in relation to a person purporting to act in the 16 office is not invalid merely because -- 17 (a) the occasion for the appointment had not arisen; or 18 (b) the appointment had ceased to have effect; or 19 (c) the occasion for the person to act had not arisen or had 20 ceased. 21 (10) If this Law authorises the appointer to appoint a person to act during a 22 vacancy in the office, an appointment to act in the office may be made 23 by the appointer whether or not an appointment has previously been 24 made to the office. 25 28. Powers of appointment imply certain incidental powers 26 (1) If this Law authorises or requires a person or body to appoint a person 27 to an office -- 28 (a) the power may be exercised from time to time as occasion 29 requires; and 30 (b) the power includes -- 31 (i) power to remove or suspend, at any time, a person 32 appointed to the office; and page 231 Rail Safety National Law (WA) Bill 2014 Schedule Rail Safety National Law Schedule 2 Miscellaneous provisions relating to interpretation cl. 29 1 (ii) power to appoint another person to act in the office if 2 a person appointed to the office is removed or 3 suspended; and 4 (iii) power to reinstate or reappoint a person removed or 5 suspended; and 6 (iv) power to appoint a person to act in the office if it is 7 vacant (whether or not the office has ever been 8 filled); and 9 (v) power to appoint a person to act in the office if the 10 person appointed to the office is absent or is unable to 11 discharge the functions of the office (whether because 12 of illness or otherwise). 13 (2) The power to remove or suspend a person under subclause (1)(b) may 14 be exercised even if this Law provides that the holder of the office to 15 which the person was appointed is to hold office for a specified 16 period. 17 (3) The power to make an appointment under subclause (1)(b) may be 18 exercised from time to time as occasion requires. 19 (4) An appointment under subclause (1)(b) may be expressed to have 20 effect only in the circumstances specified in the instrument of 21 appointment. 22 29. Delegation of functions 23 (1) If this Law authorises a person or body to delegate a function, the 24 person or body may, in accordance with this Law and any other 25 applicable law, delegate the function to -- 26 (a) a person or body by name; or 27 (b) a specified officer, or the holder of a specified office, by 28 reference to the title of the office concerned. 29 (2) The delegation may -- 30 (a) be general or limited; and 31 (b) be made from time to time; and 32 (c) be revoked, wholly or partly, by the delegator. page 232 Rail Safety National Law (WA) Bill 2014 Rail Safety National Law Schedule Miscellaneous provisions relating to interpretation Schedule 2 cl. 29 1 (3) The delegation, or a revocation of the delegation, must be in, or 2 evidenced by, writing signed by the delegator or, if the delegator is a 3 body, by a person authorised by the body for the purpose. 4 (4) A delegated function may be exercised only in accordance with any 5 conditions to which the delegation is subject. 6 (5) The delegate may, in the exercise of a delegated function, do anything 7 that is incidental to the delegated function. 8 (6) A delegated function that purports to have been exercised by the 9 delegate is taken to have been properly exercised by the delegate 10 unless the contrary is proved. 11 (7) A delegated function that is properly exercised by the delegate is 12 taken to have been exercised by the delegator. 13 (8) If, when exercised by the delegator, a function is dependent on the 14 delegator's opinion, belief or state of mind, then, when exercised by 15 the delegate, the function is dependent on the delegate's opinion, 16 belief or state of mind. 17 (9) If -- 18 (a) the delegator is a specified officer or the holder of a specified 19 office; and 20 (b) the person who was the specified officer or holder of the 21 specified office when the delegation was made ceases to be 22 the holder of the office, 23 then -- 24 (c) the delegation continues in force; and 25 (d) the person for the time being occupying or acting in the office 26 concerned is taken to be the delegator for the purposes of this 27 clause. 28 (10) If -- 29 (a) the delegator is a body; and 30 (b) there is a change in the membership of the body, 31 then -- 32 (c) the delegation continues in force; and page 233 Rail Safety National Law (WA) Bill 2014 Schedule Rail Safety National Law Schedule 2 Miscellaneous provisions relating to interpretation cl. 30 1 (d) the body as constituted for the time being is taken to be 2 delegator for the purposes of this clause. 3 (11) If a function is delegated to a specified officer or the holder of a 4 specified office -- 5 (a) the delegation does not cease to have effect merely because 6 the person who was the specified officer or the holder of the 7 specified office when the function was delegated ceases to be 8 the officer or the holder of the office; and 9 (b) the function may be exercised by the person for the time 10 being occupying or acting in the office concerned. 11 (12) A function that has been delegated may, despite the delegation, be 12 exercised by the delegator. 13 (13) The delegation of a function does not relieve the delegator of the 14 delegator's obligation to ensure that the function is properly 15 exercised. 16 (14) Subject to subclause (15), this clause applies to a subdelegation of a 17 function in the same way as it applies to a delegation of a function. 18 (15) If this Law authorises the delegation of a function, the function may 19 be subdelegated only if this Law expressly authorises the function to 20 be subdelegated. 21 30. Exercise of powers between enactment and commencement 22 (1) If a provision of this Law (the empowering provision) that does not 23 commence on its enactment would, had it commenced, confer a 24 power -- 25 (a) to make an appointment; or 26 (b) to make a statutory instrument of a legislative or 27 administrative character; or 28 (c) to do another thing, 29 then -- 30 (d) the power may be exercised; and page 234 Rail Safety National Law (WA) Bill 2014 Rail Safety National Law Schedule Miscellaneous provisions relating to interpretation Schedule 2 cl. 30 1 (e) anything may be done for the purpose of enabling the 2 exercise of the power or of bringing the appointment, 3 instrument or other thing into effect, 4 before the empowering provision commences. 5 (2) If a provision of a South Australian Act (the empowering provision) 6 that does not commence on its enactment would, had it commenced, 7 amend a provision of this Law so that it would confer a power -- 8 (a) to make an appointment; or 9 (b) to make a statutory instrument of a legislative or 10 administrative character; or 11 (c) to do another thing, 12 then -- 13 (d) the power may be exercised; and 14 (e) anything may be done for the purpose of enabling the 15 exercise of the power or of bringing the appointment, 16 instrument or other thing into effect, 17 before the empowering provision commences. 18 (3) If -- 19 (a) this Law has commenced and confers a power to make a 20 statutory instrument (the basic instrument-making power); 21 and 22 (b) a provision of a South Australian Act that does not 23 commence on its enactment would, had it commenced, 24 amend this Law so as to confer additional power to make a 25 statutory instrument (the additional instrument-making 26 power), 27 then -- 28 (c) the basic instrument-making power and the additional 29 instrument-making power may be exercised by making a 30 single instrument; and 31 (d) any provision of the instrument that required an exercise of 32 the additional instrument-making power is to be treated as 33 made under subclause (2). page 235 Rail Safety National Law (WA) Bill 2014 Schedule Rail Safety National Law Schedule 2 Miscellaneous provisions relating to interpretation cl. 30 1 (4) If an instrument, or a provision of an instrument, is made under 2 subclause (1) or (2) that is necessary for the purpose of -- 3 (a) enabling the exercise of a power mentioned in the subclause; 4 or 5 (b) bringing an appointment, instrument or other thing made or 6 done under such a power into effect, 7 the instrument or provision takes effect -- 8 (c) on the making of the instrument; or 9 (d) on such later day (if any) on which, or at such later time (if 10 any) at which, the instrument or provision is expressed to take 11 effect. 12 (5) If -- 13 (a) an appointment is made under subclause (1) or (2); or 14 (b) an instrument, or a provision of an instrument, made under 15 subclause (1) or (2) is not necessary for a purpose mentioned 16 in subclause (4), 17 the appointment, instrument or provision takes effect -- 18 (c) on the commencement of the relevant empowering provision; 19 or 20 (d) on such later day (if any) on which, or at such later time (if 21 any) at which, the appointment, instrument or provision is 22 expressed to take effect. 23 (6) Anything done under subclause (1) or (2) does not confer a right, or 24 impose a liability, on a person before the relevant empowering 25 provision commences. 26 (7) After the enactment of a provision mentioned in subclause (1) but 27 before the provision's commencement, this clause applies as if the 28 references in subclauses (2) and (5) to the commencement of the 29 empowering provision were references to the commencement of the 30 provision mentioned in subclause (2) as amended by the empowering 31 provision. 32 (8) In the application of this clause to a statutory instrument, a reference 33 to the enactment of the instrument is a reference to the making of the 34 instrument. page 236 Rail Safety National Law (WA) Bill 2014 Rail Safety National Law Schedule Miscellaneous provisions relating to interpretation Schedule 2 cl. 31 1 Part 5 -- Distance, time and age 2 31. Matters relating to distance, time and age 3 (1) In the measurement of distance for the purposes of this Law, the 4 distance is to be measured along the shortest road ordinarily used for 5 travelling. 6 (2) If a period beginning on a given day, act or event is provided or 7 allowed for a purpose by this Law, the period is to be calculated by 8 excluding the day, or the day of the act or event, and -- 9 (a) if the period is expressed to be a specified number of clear 10 days or at least a specified number of days -- by excluding 11 the day on which the purpose is to be fulfilled; and 12 (b) in any other case -- by including the day on which the 13 purpose is to be fulfilled. 14 (3) If the last day of a period provided or allowed by this Law for doing 15 anything is not a business day in the place in which the thing is to be 16 or may be done, the thing may be done on the next business day in the 17 place. 18 (4) If the last day of a period provided or allowed by this Law for the 19 filing or registration of a document is a day on which the office is 20 closed where the filing or registration is to be or may be done, the 21 document may be filed or registered at the office on the next day that 22 the office is open. 23 (5) If no time is provided or allowed for doing anything, the thing is to be 24 done as soon as possible, and as often as the prescribed occasion 25 happens. 26 (6) If, in this Law, there is a reference to time, the reference is, in relation 27 to the doing of anything in a jurisdiction, a reference to the legal time 28 in the jurisdiction. 29 (7) For the purposes of this Law, a person attains an age in years at the 30 beginning of the person's birthday for the age. page 237 Rail Safety National Law (WA) Bill 2014 Schedule Rail Safety National Law Schedule 2 Miscellaneous provisions relating to interpretation cl. 32 1 Part 6 -- Effect of repeal, amendment or expiration 2 32. Time of Law ceasing to have effect 3 If a provision of this Law is expressed -- 4 (a) to expire on a specified day; or 5 (b) to remain or continue in force, or otherwise have effect, until 6 a specified day, 7 this provision has effect until the last moment of the specified day. 8 33. Repealed provisions not revived 9 If a provision of this Law is repealed or amended by a South 10 Australian Act, or a provision of a South Australian Act, the provision 11 is not revived merely because the South Australian Act or the 12 provision of the South Australian Act -- 13 (a) is later repealed or amended; or 14 (b) later expires. 15 34. Saving of operation of repealed Law provisions 16 (1) The repeal, amendment or expiry of a provision of this Law does 17 not -- 18 (a) revive anything not in force or existing at the time the repeal, 19 amendment or expiry takes effect; or 20 (b) affect the previous operation of the provision or anything 21 suffered, done or begun under the provision; or 22 (c) affect a right, privilege or liability acquired, accrued or 23 incurred under the provision; or 24 (d) affect a penalty incurred in relation to an offence arising 25 under the provision; or 26 (e) affect an investigation, proceeding or remedy in relation to 27 such a right, privilege, liability or penalty. 28 (2) Any such penalty may be imposed and enforced, and any such 29 investigation, proceeding or remedy may be begun, continued or 30 enforced, as if the provision had not been repealed or amended or had 31 not expired. page 238 Rail Safety National Law (WA) Bill 2014 Rail Safety National Law Schedule Miscellaneous provisions relating to interpretation Schedule 2 cl. 35 1 35. Continuance of repealed provisions 2 If a South Australian Act repeals some provisions of this Law and 3 enacts new provisions in substitution for the repealed provisions, the 4 repealed provisions continue in force until the new provisions 5 commence. 6 36. Law and amending Acts to be read as one 7 This Law and all South Australian Acts amending this Law are to be 8 read as one. 9 Part 7 -- Instruments under Law 10 37. Schedule applies to statutory instruments 11 (1) This Schedule applies to a statutory instrument, and to things that may 12 be done or are required to be done under a statutory instrument, in the 13 same way as it applies to this Law, and things that may be done or are 14 required to be done under this Law, except so far as the context or 15 subject matter otherwise indicates or requires. 16 (2) The fact that a provision of this Schedule refers to this Law and not 17 also to a statutory instrument does not, by itself, indicate that the 18 provision is intended to apply only to this Law. 19 page 239 Rail Safety National Law (WA) Bill 2014 Defined terms Defined terms [This is a list of terms defined and the provisions where they are defined. The list is not part of the law.] Defined term Provision(s) accredited person ................................................................................ Sch. cl. 4(1) Act ................................................................................................. Sch. 2 cl. 12(1) Acting Regulator ................................................................................. Sch. cl. 4(1) additional instrument-making power ............................................. Sch. 2 cl. 30(3) address for service .......................................................................... Sch. cl. 258(2) adult ............................................................................................... Sch. 2 cl. 12(1) affidavit .......................................................................................... Sch. 2 cl. 12(1) amend ............................................................................................. Sch. 2 cl. 12(1) amusement structure ........................................................................... Sch. cl. 4(1) analyst .............................................................................................................. 9(1) application Act ............................................................................ 6(1), Sch. cl. 4(1) appoint ........................................................................................... Sch. 2 cl. 12(1) approved code of practice ................................................................... Sch. cl. 4(1) AQF .................................................................................................... Sch. cl. 4(1) AQTF .................................................................................................. Sch. cl. 4(1) assistant ........................................................................................... Sch. cl. 146(1) associated railway track structures ...................................................... Sch. cl. 4(1) audit program .................................................................................. Sch. cl. 133(1) Australia ......................................................................................... Sch. 2 cl. 12(1) Australian Accounting Standards........................................................ Sch. cl. 4(1) Australian rail safety law .................................................................... Sch. cl. 4(1) authorised officer ............................................. Sch. cl. 149(5), 200(3) and 227(3) authorised person ................................................................................ Sch. cl. 4(1) authorised tester ............................................................................................. 42(1) BAC ................................................................................................................. 9(1) basic instrument-making power ..................................................... Sch. 2 cl. 30(3) breath analysis instrument................................................................................ 9(1) business day ................................................................................... Sch. 2 cl. 12(1) calendar month ............................................................................... Sch. 2 cl. 12(1) calendar year .................................................................................. Sch. 2 cl. 12(1) Category 1 offence .............................................................................. Sch. cl. 4(1) Category 2 offence .............................................................................. Sch. cl. 4(1) Category 3 offence .............................................................................. Sch. cl. 4(1) commencement .............................................................................. Sch. 2 cl. 12(1) commencement day ............................................................................................ 38 commercial benefits order................................................................... Sch. cl. 4(1) Commonwealth .............................................................................. Sch. 2 cl. 12(1) Commonwealth Minister .................................................................... Sch. cl. 4(2) page 240 Rail Safety National Law (WA) Bill 2014 Defined terms compliance period ........................................................................... Sch. cl. 178(4) compliance report ........................................................................... Sch. cl. 231(9) confer ............................................................................................. Sch. 2 cl. 12(1) contravene ...................................................................................... Sch. 2 cl. 12(1) coordination direction ....................................................................... Sch. cl. 66(1) country ........................................................................................... Sch. 2 cl. 12(1) court ................................................................................................................. 6(1) date of assent.................................................................................. Sch. 2 cl. 12(1) defendant........................................................................................................ 33(2) definition ........................................................................................ Sch. 2 cl. 12(1) designated provision ..............................................................Sch. cl. 4(1) and 204 document........................................................................................ Sch. 2 cl. 12(1) drug ..................................................................................................... Sch. cl. 4(1) drug screening test ........................................................................................... 9(1) due diligence ..................................................................................... Sch. cl. 55(3) electronic communication .............................................................. Sch. 2 cl. 12(1) eligible person ................................................................................. Sch. cl. 215(1) emergency services .......................................................................................... 6(1) employee ........................................................................... Sch. cl. 4(1) and 225(6) employer ............................................................................................. Sch. cl. 4(1) empowering provision ................................................... Sch. 2 cl. 30(1) and 30(2) estate .............................................................................................. Sch. 2 cl. 12(1) evidence .......................................................................................... Sch. cl. 150(4) exercise ............................................................................................... Sch. cl. 4(1) expire ............................................................................................. Sch. 2 cl. 12(1) external Territory ........................................................................... Sch. 2 cl. 12(1) extrinsic material.............................................................................. Sch. 2 cl. 8(1) fail .................................................................................................. Sch. 2 cl. 12(1) financial year ................................................................................. Sch. 2 cl. 12(1) footpath ............................................................................................... Sch. cl. 4(1) former account ............................................................................................... 49(1) function .......................................................................................... Sch. 2 cl. 12(1) Fund .................................................................................................... Sch. cl. 4(1) Gazette ............................................................................................................. 6(1) Government Printer........................................................................ Sch. 2 cl. 12(1) Health Practitioner Regulation National Law .................................................. 6(1) hospital ................................................................................................................ 23 improvement notice ............................................................................ Sch. cl. 4(1) in control ......................................................................................... Sch. cl. 159(7) individual ....................................................................................... Sch. 2 cl. 12(1) information system ........................................................................ Sch. 2 cl. 12(1) infringement penalty provision ..............................................Sch. cl. 4(1) and 233 insert .............................................................................................. Sch. 2 cl. 12(1) instrument ...................................................................................... Sch. 2 cl. 12(1) interest............................................................................................ Sch. 2 cl. 12(1) page 241 Rail Safety National Law (WA) Bill 2014 Defined terms interface agreement ............................................................................. Sch. cl. 4(1) internal Territory ............................................................................ Sch. 2 cl. 12(1) Jervis Bay Territory ....................................................................... Sch. 2 cl. 12(1) jurisdiction .......................................................................................... Sch. cl. 4(1) level crossing ...................................................................................... Sch. cl. 4(1) local application provisions of this Act ............................................................ 3(1) local regulations ............................................................................................... 3(2) magistrate ......................................................................................................... 6(1) make ............................................................................................... Sch. 2 cl. 12(1) medical practitioner ......................................................................................... 9(1) member ............................................................................................... Sch. cl. 4(1) Minister ............................................................................................................ 6(1) minor .............................................................................................. Sch. 2 cl. 12(1) modification ................................................................................... Sch. 2 cl. 12(1) month ............................................................................................. Sch. 2 cl. 12(1) named month ................................................................................. Sch. 2 cl. 12(1) national regulations ........................................................... Sch. cl. 4(1) and 264(2) non-disturbance notice ........................................................................ Sch. cl. 4(1) Northern Territory.......................................................................... Sch. 2 cl. 12(1) notice ..................................................................................... Sch. cl. 186 and 196 notifiable occurrence........................................................................... Sch. cl. 4(1) number ........................................................................................... Sch. 2 cl. 12(1) oath ................................................................................................ Sch. 2 cl. 12(1) occupational health and safety legislation........................................... Sch. cl. 4(1) office .............................................................................................. Sch. 2 cl. 12(1) office holder .................................................................................... Sch. cl. 224(3) Office of the National Rail Safety Regulator ...................................... Sch. cl. 4(1) officer .................................................................................................. Sch. cl. 4(1) omit ................................................................................................ Sch. 2 cl. 12(1) ONRSR ...................................................................... Sch. cl. 3(2), 4(1) and 12(1) oral fluid analysis ............................................................................................. 9(1) ordinary meaning ............................................................................. Sch. 2 cl. 8(1) participating jurisdiction ..................................................................... Sch. cl. 4(1) party ............................................................................................... Sch. 2 cl. 12(1) penalty............................................................................................ Sch. 2 cl. 12(1) person............................................................................................. Sch. 2 cl. 12(1) person entitled .................................................. Sch. cl. 162(9), 163(4) and 215(3) person to whom this section applies ............................................... Sch. cl. 248(3) police officer .................................................................................................... 6(1) power ............................................................................................. Sch. 2 cl. 12(1) preliminary breath test ..................................................................................... 9(1) prescribed....................................................................................... Sch. 2 cl. 12(1) prescribed authority ....................................................... Sch. cl. 13(3) and. 218(4) prescribed BAC................................................................................................ 9(1) prescribed concentration of alcohol ................................................ Sch. cl. 128(5) page 242 Rail Safety National Law (WA) Bill 2014 Defined terms prescribed drug ................................................................. Sch. cl. 4(1) and 128(5) prescribed notifiable occurrence ...................................................................... 6(1) printed ............................................................................................ Sch. 2 cl. 12(1) private siding ...................................................................................... Sch. cl. 4(1) proceeding...................................................................................... Sch. 2 cl. 12(1) prohibited drug................................................................................................. 9(1) prohibition notice ................................................................................ Sch. cl. 4(1) property .......................................................................................... Sch. 2 cl. 12(1) protected person .............................................................................. Sch. cl. 247(3) provision ........................................................................................ Sch. 2 cl. 12(1) public authority ............................................................................... Sch. cl. 225(6) public place ......................................................................................... Sch. cl. 4(1) public road .......................................................................................... Sch. cl. 4(1) public sector auditor.................................................................... 6(1), Sch. cl. 4(1) qualified person................................................................................................ 9(1) rail infrastructure................................................................................. Sch. cl. 4(1) rail infrastructure manager .................................................................. Sch. cl. 4(1) rail or road crossing ............................................................................ Sch. cl. 4(1) rail safety duty provision ................................................................ Sch. cl. 219(4) Rail Safety National Law (WA) ...................................................................... 3(2) rail safety officer ............................................................... Sch. cl. 4(1) and 139(2) rail safety undertaking ...................................................... Sch. cl. 4(1) and 251(1) rail safety work ............................................................ Sch. cl. 4(1), 8(1) and 8(2) rail safety worker ................................................................................ Sch. cl. 4(1) rail transport operator........................................................ Sch. cl. 4(1) and 133(5) rail workplace ..................................................................................... Sch. cl. 4(1) railway ................................................................................................ Sch. cl. 4(1) railway crossing .................................................................................. Sch. cl. 4(1) railway operations ............................................................................... Sch. cl. 4(1) railway premises ................................................................................. Sch. cl. 4(1) reasonable help ............................................................................... Sch. cl. 145(5) reasonably practicable................................................. Sch. cl. 4(1), 47 and 250(3) Register ............................................................................................... Sch. cl. 4(1) registered nurse ................................................................................................ 9(1) registered person ................................................................................. Sch. cl. 4(1) Regulator.................................................................... Sch. cl. 3(2), 4(1) and 16(1) related body corporate ...................................................................... Sch. cl. 62(1) relevant entity ................................................................................... Sch. cl. 22(3) relevant period .................... Sch. cl. 67(5), 69(3), 86(4), 88(3), 207(4) and 209(3) relevant time ....................................................................................................... 30 repeal ............................................................................................. Sch. 2 cl. 12(1) repealed Act ........................................................................................................ 38 report to which this section applies ................................................. Sch. cl. 198(6) reporting period............................................................................... Sch. cl. 103(3) responsible Minister ............................................................................ Sch. cl. 4(1) page 243 Rail Safety National Law (WA) Bill 2014 Defined terms responsible Ministers .......................................................................... Sch. cl. 4(2) reviewable decisions ....................................................................... Sch. cl. 215(1) road infrastructure ............................................................................... Sch. cl. 4(1) road manager ...................................................................................... Sch. cl. 4(1) road vehicle ...................................................................................................... 6(1) rolling stock ........................................................................................ Sch. cl. 4(1) rolling stock operator .......................................................................... Sch. cl. 4(1) running line ......................................................................................... Sch. cl. 4(1) safety ................................................................................................... Sch. cl. 4(1) safety duty ................................................................................Sch. cl. 4(1) and 57 safety management system ................................................................. Sch. cl. 4(1) sample .............................................................................................................. 9(1) sample taker ..................................................................................................... 9(1) service agreement ............................................................................. Sch. cl. 15(2) shared path ....................................................................................................... 6(1) siding .................................................................................................. Sch. cl. 4(1) sign................................................................................................. Sch. 2 cl. 12(1) South Australian Minister ................................................................... Sch. cl. 4(1) statutory declaration ....................................................................... Sch. 2 cl. 12(1) statutory instrument ....................................................................... Sch. 2 cl. 12(1) substance ............................................................................................. Sch. cl. 4(1) supervisory intervention order ............................................................ Sch. cl. 4(1) supply .................................................................................................. Sch. cl. 4(1) swear .............................................................................................. Sch. 2 cl. 12(1) Territory .............................................................................................. Sch. cl. 4(1) the jurisdiction ................................................................................................. 6(1) the Law .......................................................................................... Sch. 2 cl. 12(2) this jurisdiction ................................................................................................ 6(1) this Law .................................................................................. Sch. cl. 4(1) and (2) train ..................................................................................................... Sch. cl. 4(1) train safety recording .............................................................Sch. cl. 4(1) and 130 transitional railway operations ....................................................................... 40(1) union ................................................................................................... Sch. cl. 4(1) urine analysis ................................................................................................... 9(1) WA offence ........................................................................................................... 7 word ............................................................................................... Sch. 2 cl. 12(1) work shift ......................................................................................................... 9(1) work shift location ........................................................................................... 9(1) writing ............................................................................................ Sch. 2 cl. 12(1) year ................................................................................................ Sch. 2 cl. 12(1)
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