Part 2 Credentials of owners, operators and railway employees
Division 1 Accreditation of owners and operators
11 Owners and operators to be accredited
(1) A person who is the owner of a railway is guilty of an offence unless the person is an accredited owner for that railway.(2) A person who operates a railway is guilty of an offence unless the person is an accredited operator for that railway.Maximum penalty: 2,500 penalty units in the case of a corporation or, in any other case, 1,000 penalty units or imprisonment for 12 months, or both.
(1) The purpose of accreditation under this Division is to attest:(a) that the accredited person is (or, in the case of an accredited corporation, the directors and managers of the corporation designated in accordance with section 21 are) considered to be of good repute and in all other respects fit and proper to be responsible for the safe construction and maintenance, or construction or maintenance, of a railway (in the case of an owner) or the safe operation of a railway and the safe construction and maintenance, or construction or maintenance, of rolling stock (in the case of an operator) or both (in the case of an owner and operator), and(b) that the standards proposed by the accredited person for the construction and maintenance, or construction or maintenance, of a railway (in the case of an owner) or the operation of a railway and the construction and maintenance, or construction or maintenance, of rolling stock (in the case of an operator) or both (in the case of an owner and operator) have been accepted by the Director-General (subject to Division 3).(2) In particular, accreditation under this Division attests that the accredited person has demonstrated the competency and capacity to meet the standards submitted by the accredited person, and accepted by the Director-General (subject to Division 3), for the purposes of the safe construction, operation and maintenance of a railway, relating to the following:(a) financial viability,(b) managerial and technical competency,(c) suitability of rolling stock,(d) appropriateness of safeworking systems,(e) availability and competency of railway employees,(f) availability and adequacy of infrastructure generally and, in particular, railway track, associated track structures, signalling systems and other relevant facilities,(g) public risk insurance,to the degree and in the manner required by the Director-General in respect of a railway of the kind specified in the accreditation.
13 Applicant to furnish information
An applicant for accreditation must furnish the Director-General with such information as the Director-General reasonably requires in the circumstances to enable the Director-General to effectively determine the application for accreditation.
14 Applicant to submit safety management plan
(1) An applicant for accreditation must submit to the Director-General a comprehensive safety management plan that:(a) identifies any significant potential risks that may arise from the construction and maintenance, or construction or maintenance, of the railway specified in the application (in the case of an owner) or from the operation of the railway and the construction and maintenance, or construction or maintenance, of the rolling stock specified in the application (in the case of an operator) or both (in the case of an owner and operator), and(b) specifies the systems, audits, expertise and resources that are to be employed by the applicant to address these risks.(2) If a person is accredited under this Division, the person’s safety management plan must be revised annually and the revised plan submitted to the Director-General at least 28 days before each anniversary of the accreditation.
15 Applicant to provide railway performance details
(1) An applicant for accreditation must provide the Director-General with a statutory declaration (of the applicant or an agent of the applicant acceptable to the Director-General) setting out details of the quantity of freight or number of passengers (or both) hauled by the railway specified in the application in the period of 3 years immediately before the date of the application.(2) If the information referred to in subsection (1) cannot be provided because the railway has not been constructed or has not operated previously or for that period of 3 years, the applicant must provide the Director-General with an assessment of the projected performance of the railway concerned.(3) If a person is accredited under this Division, the person must provide the Director-General with a statutory declaration (of the person or an agent of the person acceptable to the Director-General) at least 28 days before each anniversary of the accreditation setting out the details referred to in subsection (1) for such period as the Director-General nominates from time to time by written notice to the accredited person for the purposes of this section.
16 Applicant to demonstrate capacity for safe construction, operation and maintenance of railway
(1) An applicant for accreditation as an owner must demonstrate by the submission of appropriate standards with which the applicant agrees to comply, to the satisfaction of the Director-General, that the applicant possesses the competency and capacity to safely construct and maintain, or construct or maintain, the railway specified in the application.(2) An applicant for accreditation as an operator must demonstrate by the submission of appropriate standards with which the applicant agrees to comply, to the satisfaction of the Director-General, that the applicant possesses the competency and capacity to safely operate, and construct and maintain, or construct or maintain, the rolling stock of, the railway specified in the application.(3) An applicant for accreditation as an owner and operator must comply with subsections (1) and (2).
17 Applicant to possess right to operate on railway
An applicant for accreditation as an operator who does not own the railway on which the applicant proposes to operate must demonstrate, to the satisfaction of the Director-General, that the applicant possesses appropriate rights to operate a railway on the railway specified in the application.
18 Applicant to submit pressure vessel certificates for rolling stock
An applicant for accreditation whose application specifies the use of a steam locomotive or a unit or units of rolling stock that utilise pressure vessels as a means of transporting, loading or discharging goods under pressure must submit to the Director-General an appropriate, current pressure vessel certificate, issued by the WorkCover Authority or its authorised agent, for the locomotive or other rolling stock concerned.
19 Applicant to describe, and identify ownership of, infrastructure
(1) An applicant for accreditation as an owner (or as an owner and operator) must, to the satisfaction of the Director-General, describe all elements that comprise the infrastructure specified in the application and must identify the owner of the infrastructure.(2) If the applicant is not the owner of the infrastructure, the applicant must show the basis of the entitlement of the applicant to control and manage the infrastructure.
20 Rolling stock to be identified
(1) An applicant for accreditation as an operator (or as an owner and operator) must identify the owner of the rolling stock specified in the application and, if the applicant is not the owner of the rolling stock, must show the basis of the entitlement of the applicant to control and manage the rolling stock.(2) The applicant must also describe the proposed ambit of operation, in terms of railway location, of the particular units of rolling stock, or the particular class or classes of rolling stock, that the applicant intends to use.(3) An applicant for accreditation as an operator must cause all rolling stock specified in the application to be clearly marked, in an approved manner:(a) to show the name of the operator of the rolling stock, and(b) to enable each unit to be individually identified.(4) Despite subsection (3), the Director-General may accept instead an inventory of individually identified units of rolling stock.
21 Applications by corporations
For the purpose of obtaining accreditation under this Division:(a) a corporation must nominate, and the Director-General may accept the nomination of, any one or more of its directors and managers, and(b) further nominations may be made and accepted from time to time, and(c) a person so nominated becomes a director or manager designated for the purposes of section 12 (1) (a) only when the Director-General certifies acceptance of the nomination.
Having regard to the purposes of accreditation, the Director-General may accredit a person duly applying for accreditation as an owner or operator of a railway or as both an owner and operator of a railway.
23 Grant of interim accreditation
(1) The Director-General may grant interim accreditation to an applicant to permit the carrying out of activities such as the following:(a) site preparation of a disused railway,(b) restoration or repair of rolling stock,(c) testing of railway track or other infrastructure,or for any other purpose considered to be appropriate by the Director-General.(2) Procedures for the purposes of this section are as prescribed by the regulations or, if no procedures are so prescribed, are as determined by the Director-General.
(1) Particulars of accreditation are to be given in writing by the Director-General to the accredited person.(2) An accreditation may be given so as to be general or limited including, for example:(a) appropriate for the whole of a railway, or(b) appropriate only for the part or parts of a railway designated in the accreditation, or for a part or parts having the scope or characteristics so designated, or(c) appropriate for all public or private passenger or freight services or both, or(d) appropriate only for the service or services designated in the accreditation, or for a service or services having the scope or characteristics so designated.(3) An accreditation may be given subject to such conditions and restrictions (if any) as are specified by the Director-General in the accreditation.(4) It is a condition of any accreditation that a third-party policy under the Motor Accidents Compensation Act 1999 is in force in respect of each light rail vehicle owned by the accredited person that is required to be insured under that Act.
25 Exemption from accreditation
(1) The Director-General may, by written notice, exempt an owner or operator who applies to the Director-General under this section from compliance with all or any one or more of the requirements of this Division, for the period specified in the notice, subject to such conditions and restrictions (if any) as appear to the Director-General to be appropriate.(2) An exemption may be granted only if the owner or operator demonstrates, to the satisfaction of the Director-General, that the systems, expertise, resources and methods to be employed by the owner or operator for safe construction, operation and maintenance (or for safe construction, operation or maintenance) of the railway or rolling stock concerned are likely to achieve a level of safety that, in the opinion of the Director-General, is appropriate for the railway concerned.(3) A person is not guilty of an offence of contravening or failing to comply with a requirement of this Act in respect of which the person holds a current notice of exemption under this section.
26 Exemption of owners of private sidings from accreditation
(1) A person who owns a private siding is not required to be accredited under this Act.(2) However, if a person wishes a private siding to continue to be, or to be, connected with, or to have access to, a railway or siding owned by an accredited owner, the person must register the private siding with the Director-General and comply with the provisions of any regulations made under this Act with respect to the safe construction, operation and maintenance of sidings.(3) If a private siding is not registered, the accredited owner of the railway or siding with which the private siding connects may apply to the Director-General for permission to remove the private siding’s connection with the railway or siding.(4) If the Director-General grants permission under subsection (3), this section authorises the disconnection of the private siding from the railway or siding concerned.(5) A person incurs no liability to the owner of a private siding if the person disconnects a private siding in accordance with permission granted under this section.
27 Sale or transfer of railway by accredited person
(1) If an accredited person proposes to sell or otherwise transfer a railway in respect of which the person is accredited, the Director-General may, on an application for accreditation under this Division being made by the proposed transferee, waive compliance by the proposed transferee with any one or more of the requirements of this Division relating to the safe construction, operation and maintenance of the railway.(2) The Director-General is not to waive compliance with any such requirement unless the proposed transferee demonstrates, to the satisfaction of the Director-General, that the proposed transferee has the personal capacity to comply with the relevant requirements of this Division that apply to applicants for accreditation of the appropriate kind.(3) A waiver of compliance with requirements under this section may be given subject to such conditions and restrictions (if any) as appear to the Director-General to be appropriate.
Division 2 Certificates of competency
An owner or operator of a railway who employs, or enters into a contract with, a person to perform railway safety work is guilty of an offence unless the person is the holder of an appropriate certificate of competency under this Division.Maximum penalty: 200 penalty units.
(1) The purpose of certification under this Division is to attest:(a) that the person certified is considered to be of good health and fitness and in all other respects to be a fit and proper person to perform railway safety work, and(b) that the person certified is considered to have sufficient responsibility and aptitude to perform the railway safety work to which the certification relates in accordance with the standards submitted by the accredited owner or operator of the railway on which the railway safety work is to be performed, and accepted by the Director-General (subject to Division 3).(2) The regulations may prescribe categories or grades of certification.
Applicants for certification must meet any criteria set out in the regulations and must satisfy the Director-General as to any matter concerning their fitness and suitability for certification that the Director-General considers relevant.
(1) Having regard to the purpose of certification, the Director-General or an authorised agent of the Director-General appointed under this Division may grant certification to a person applying for it for the period considered to be appropriate by the Director-General for the category or grade of certification concerned, or generally.(2) Procedures for the purposes of this section are as prescribed by the regulations or, if no procedures are so prescribed, are as determined by the Director-General.
32 Authorised agent for purpose of grant of certification
(1) The Director-General may appoint an authorised agent for the purpose of granting certification under this Division.(2) The Director-General is not to appoint a person as an agent under this section unless the person demonstrates, to the satisfaction of the Director-General, that the person possesses sufficient experience and expertise concerning safeworking systems and railway safety work to justify the appointment.
(1) Certification is to be given in writing by the Director-General or authorised agent to the person certified to be competent.(2) The certificate of competency must specify the functions that the person is certified as being capable of performing.
Division 3 Amendment, variation, suspension or cancellation of credentials
34 Amendment or variation of credentials
(1) Having regard to the purpose of accreditation or certification, the Director-General or, in the case of certification, an authorised agent, may, at any time:(a) attach any conditions or restrictions to a person’s accreditation or certification after it has been granted, or(b) vary or remove any conditions or restrictions attached to the accreditation or certification or otherwise vary the accreditation or certification.(2) If an accredited person or person certified under this Part applies to the Director-General for amendment or variation of the person’s credentials under this section, the requirements of Division 4 do not apply to the processing of the request.
35 Amendment or variation of accreditation if certain alterations or extensions to railway are proposed
(1) An accredited person who proposes to construct new railway track, install new infrastructure other than track, use new or additional rolling stock or in any other way alter the railway specified in the person’s application for accreditation in a manner that is not covered by the accreditation must apply to the Director-General for amendment or variation of the person’s accreditation before taking the action proposed.(2) The requirements of Division 4 do not apply to an application under this section.
36 Suspension or cancellation of credentials
(1) Having regard to the purpose of accreditation or certification, the Director-General may suspend and cancel, or cancel, a person’s accreditation or certification.(2) Without limiting this section, the Director-General may suspend and cancel, or cancel, the credentials of a person who contravenes the requirements of this Act, the regulations or the conditions or restrictions attached to the person’s credentials.(3) The accreditation of a corporation may be cancelled by the Director-General if no director or manager is designated for the purposes of section 12 (1) (a).
37 Suspension of credentials in emergency
(1) If the Director-General considers that there would be an immediate and significant threat to the safety of the public or to property or both unless the credentials of a person are suspended immediately, the Director-General may, without complying with sections 40–43, suspend the credentials immediately for a period (not exceeding 28 days) and on terms specified in the notice of suspension.(2) The Director-General must have regard to the purposes of the accreditation or certification concerned and to the matters referred to in section 39 before suspending credentials under this section.(3) A suspension under this section must not be extended or the credentials concerned cancelled unless the Director-General has firstly complied with the requirements of Division 4 (as appropriately modified to meet the circumstances of the case).
Division 4 Procedures before amendment, variation, suspension or cancellation of credentials
38 Circumstances in which compliance is required
Before amending, varying, suspending or cancelling credentials under Division 3, the Director-General, or an authorised agent in the case of an amendment or variation of certification, must, subject to that Division, comply with this Division.
39 Standards and criteria to be considered before action taken
Standards submitted by an accredited person which have been accepted by the Director-General for the purposes of the person’s accreditation and criteria fixed for the purposes of a person’s certification must be taken into consideration by the Director-General or authorised agent before credentials are amended, varied, suspended or cancelled.
40 Notice to be given of proposed action
(1) Before amending, varying, suspending or cancelling a person’s credentials, the Director-General or authorised agent must give notice to the person concerned of the intention to amend, vary, suspend or cancel the person’s credentials and:(a) in the case of amendment or variation—of the terms of the proposed amendment or variation, and(b) in the case of suspension—of the terms and period of the proposed suspension and the steps which it is proposed should be taken by the person concerned to have the suspension lifted and to avoid cancellation of the credentials.(2) The notice must also indicate that the person concerned may make representations to the Director-General or authorised agent as to why the credentials should not be amended, varied, suspended and cancelled or cancelled or as to the matters referred to in subsection (1) (a) and (b).(3) The notice may provide that the representations are to be made to the Director-General or an authorised agent on or before a specified date, being a date that is reasonable in the circumstances of the case.
A person may, in accordance with a notice under section 40, make representations concerning the proposed amendment, variation, suspension and cancellation or cancellation.
42 Consideration of representations
The Director-General or authorised agent is required to consider any representations made under section 41.
43 Procedure after consideration of representations
(1) After considering any representations made concerning the proposed amendment, variation, suspension and cancellation or cancellation, the Director-General or an authorised agent may determine:(a) to amend, vary, suspend or cancel the credentials in accordance with the proposed amendment, variation, suspension and cancellation or cancellation, or(b) to amend, vary, suspend or cancel the credentials in accordance with modifications made to the proposed amendment, variation, suspension and cancellation or cancellation, or(c) not to amend, vary, suspend or cancel the credentials.(2) If the determination is to amend, vary, suspend or cancel the credentials in accordance with modifications made to the proposed amendment, variation, suspension and cancellation or cancellation, the Director-General or authorised agent is not required to give notice under this Division of the proposed amendment, variation, suspension and cancellation or cancellation as so modified.
Division 5 Review of decisions
44 Application to Administrative Decisions Tribunal for review of decision of Director-General or authorised agent
A person aggrieved by a decision of the Director-General or an authorised agent under Division 3 or 4 may apply to the Administrative Decisions Tribunal for a review of the decision.
45 Application and registration fees
An applicant for accreditation or certification, or amendment or variation of accreditation or certification, or registration of a private siding under this Part must pay the fee fixed by the Minister and published in the Gazette for consideration of the application.
An accredited person and an owner of a private siding registered under this Part must also pay the annual fee fixed by the Minister and published in the Gazette.
(1) The Minister may use information provided to the Director-General under section 15 for the purpose of fixing fees under this section.(2) Without limiting this section, annual fees may be fixed on one or more of the following bases:(a) on the basis of a rate fixed by the Minister for the quantity of freight or number of passengers (or both) hauled by the railway concerned,(b) on the basis of a rate fixed by the Minister for each kilometre (or part of a kilometre) of railway track in respect of which the owner is accredited,(c) on the basis of a rate fixed by the Minister for each unit of rolling stock in respect of which the operator is accredited.
(1) Annual fees must be paid by an accredited person or the owner of a private siding registered under this Part at least 28 days before each anniversary of the person’s accreditation or the registration of the private siding.(2) The Director-General may accept payment of annual fees due and payable by a person in accordance with an agreement made with the person (for example, relating to the payment of fees by instalments).(3) The Minister may reduce or waive annual fees having regard to the capacity of an accredited person to pay the fees.(4) If an annual fee is fixed on the basis of projected performance figures furnished under section 15 which the actual performance figures for the following year show to have been underestimated, the Director-General may require the accredited person to pay an additional fee in respect of the year for which the projected performance figures were employed for fixing the annual fee.(5) If the projected performance figures were overestimated, the Director-General may allow the accredited person a credit, in an amount determined by the Director-General, in respect of the annual fee payable by the person for the next ensuing year.(6) If the annual fee is not paid by the due date, the accreditation of the person failing to pay the fee lapses and a fresh application for accreditation may be required if the person concerned wishes to continue to be accredited under this Part. However, if the fee is paid by such date as the Director-General determines and notifies to the person, the accreditation is taken not to have lapsed.
49 Differential, minimum and late payment fees
The Minister may fix different fees for different kinds of accreditations or for different categories or grades of certifications and may fix minimum fees and impose additional fees for late payment of fees after the due date for payment.