Rail Safety Act 2008 No 97
Part 1 Preliminary
1 Name of Act
This Act is the Rail Safety Act 2008.
This Act commences on a day or days to be appointed by proclamation.
Having regard to the importance of rail safety and regulatory efficiency, the objects of this Act are as follows:(a) to provide for improvement of the safe carrying out of railway operations,(b) to provide for the management of risks associated with railway operations,(c) to make special provision for the control of particular risks arising from railway operations,(d) to promote public confidence in the safety of transport of persons or freight by rail.
(1) In this Act:accreditation means accreditation under Part 3.accredited person means a rail transport operator who is accredited under this Act but does not include a person whose accreditation under this Act:(a) has been surrendered or revoked or has otherwise ceased to have effect under this Act, or(b) is suspended under this Act.approved means approved by the ITSRR.assessor means an assessor appointed by the Minister under section 71.Australian rail safety law means a rail safety law or a corresponding rail safety law.Australian Rail Safety Regulator means the ITSRR or a corresponding Rail Safety Regulator.Board of Inquiry means a Board of Inquiry constituted by the Minister under section 69.Chief Investigator means the Chief Investigator of the Office of Transport Safety Investigations appointed under the Transport Administration Act 1988.commercial benefits order means an order under section 142.compliance code means a compliance code approved by the Minister under Part 9.corresponding law means:(a) the law of another jurisdiction corresponding, or substantially corresponding, to this Act, or(b) a law of another jurisdiction that is declared by the regulations to be a corresponding law, whether or not the law corresponds, or substantially corresponds, to this Act.corresponding rail safety law means a rail safety law as defined in a corresponding law.corresponding Rail Safety Regulator means a person or body exercising the functions of a Rail Safety Regulator under a corresponding law.embargo notice means a notice under section 98.employee means a person employed under a contract of employment or contract of training.employer means a person who employs one or more other persons under contracts of employment or contracts of training.exercise a function includes perform a duty.function includes power, authority or duty.guidelines means guidelines approved by the ITSRR under Part 9.improvement notice means a notice under section 112.ITSRR means the Independent Transport Safety and Reliability Regulator constituted under the Transport Administration Act 1988.jurisdiction means a State or Territory.motor vehicle has the same meaning as in the Road Transport (Safety and Traffic Management) Act 1999.notifiable occurrence means an accident or incident associated with railway operations:(a) that has, or could have, caused:(i) significant property damage, or(ii) serious injury, or(iii) death, orbut does not include an accident or incident, or class of accident or incident, that is prescribed by the regulations not to be a notifiable occurrence.(b) that is, or is of a class that is, prescribed by the regulations to be an occurrence or a class of notifiable occurrence,previous offender, in relation to the maximum penalty for an offence, means a person who has, at any time before being sentenced for that offence, been convicted of any other offence of any kind against this Act.private siding means a siding that is managed, owned or controlled by a person, other than a person who manages the rail infrastructure with which the siding connects or to which it has access, but does not include the following:(a) a marshalling yard,(b) a crossing loop,(c) a passenger terminal,(d) a freight terminal,(e) a siding, or a siding of a class, prescribed by the regulations not to be a private siding.prohibition notice means a notice under section 117.public place means a place (whether or not covered by water), or a part of premises, that is open to the public, or is used by the public whether or not on payment of money or other consideration, whether or not the place or part is ordinarily so open or used and whether or not the public to whom it is open or by whom it is used consists only of a limited class of persons.rail infrastructure means the facilities that are necessary to enable a railway to operate safely (other than rolling stock and any facility, or facility of a class, that is prescribed by the regulations not to be rail infrastructure) and includes, but is not limited to, the following:(a) railway tracks and associated track structures,(b) service roads, signalling systems, communications systems, rolling stock control systems and data management systems,(c) notices and signs,(d) electrical power supply and electric traction systems,(e) associated buildings, workshops, depots and yards,(f) plant, machinery and equipment.rail infrastructure manager means the person who has effective management and control of the rail infrastructure of a railway, whether or not the person:(a) owns the rail infrastructure, or(b) has a statutory or contractual right to use the rail infrastructure or to control, or provide, access to it.rail safety inquiry—see section 69.rail safety law means this Act and the regulations or a provision of this Act or the regulations.rail safety officer means a person appointed by the ITSRR as a rail safety officer under Part 8.rail safety work—see section 7.rail safety worker means a natural person who has carried out, is carrying out or is about to carry out rail safety work.rail transport operator means:(a) a rail infrastructure manager, or(b) a rolling stock operator, or(c) a person who is both a rail infrastructure manager and a rolling stock operator.railway means a guided system, or proposed guided system, designed for the movement of rolling stock having the capability of transporting passengers or freight, or both, on a railway track with a gauge of 600mm or more, together with its rail infrastructure and rolling stock, and includes the following:(a) a heavy railway,(b) a light railway,(c) a monorail,(d) an inclined railway,(e) a tramway,(f) a railway within a marshalling yard or a passenger or freight terminal,(g) a private siding,(h) a guided system, or guided system of a class, prescribed by the regulations to be a railway.Note.See section 5 for railways to which this Act does not apply.railway operations means any of the following:(a) the construction of a railway, railway tracks and associated track structures or rolling stock,(b) the management, commissioning, maintenance, repair, modification, installation, operation or decommissioning of rail infrastructure,(c) the commissioning, maintenance, repair, modification or decommissioning of rolling stock,(d) the operation or movement, or causing the operation or movement by any means, of rolling stock on a railway (including for the purposes of construction or restoration of rail infrastructure),(e) the movement, or causing the movement, of rolling stock for the purposes of operating a railway service.railway premises means:(a) land (including any premises on land) on or in which rail infrastructure or any part of rail infrastructure is situated, or(b) freight centres or depots used in connection with the carrying out of railway operations, or(c) workshops or maintenance depots used in connection with the carrying out of railway operations, or(d) premises, including an office, building or housing used in connection with the carrying out of railway operations, or(e) rolling stock or other vehicles associated with railway operations.railway tracks and associated track structures means:(a) railway tracks and associated track structures and works (such as cuttings, sidings, tunnels, bridges, stations, platforms, tram stops, excavations, land fill, track support earthworks and drainageworks), or(b) over-track structures and under-track structures (including tunnels under tracks).rolling stock means a vehicle that operates on or uses a railway and includes a locomotive, carriage, rail car, rail motor, light rail vehicle, train, tram, light inspection vehicle, self-propelled infrastructure maintenance vehicle, trolley, wagon or monorail vehicle, but does not include a vehicle designed to operate both on and off a railway when the vehicle is not operating on a railway.rolling stock operator means a person who has effective management and control of the operation or movement of rolling stock on rail infrastructure for a particular railway but does not include a person merely because the person drives the rolling stock or controls the network or the network signals.running line means all railway tracks (other than sidings) that are used for the through movement of trains.safety means the safety of people, including passengers, rail safety workers, other users of railways, users of rail or road crossings and the general public.safety management plan means a document describing a safety management system.safety management system—see section 12.security management plan—see section 16.siding means a portion of railway track, connected by points to a running line or another siding, on which rolling stock can be placed clear of the running line.supervisory intervention order means an order under section 143.train means:(a) two or more units of rolling stock coupled together, at least one of which is a locomotive or other self-propelled unit, or(b) a unit of rolling stock that is a locomotive or other self-propelled unit.train safety recording—see section 75.(2) Notes included in this Act do not form part of this Act.
5 Railways to which this Act does not apply
This Act does not apply to the following:(a) a railway in a mine that is underground, or chiefly underground, and that is used in connection with the performance of mining operations,(b) a slipway,(c) a railway used only to guide a crane,(d) an aerial cable operated system,(e) a railway, or class of railway, that the regulations prescribe to be a railway to which this Act does not apply.
6 Management of risks
A duty imposed on a person to ensure safety requires the person:(a) to eliminate risks to safety, so far as is reasonably practicable, and(b) if it is not reasonably practicable to eliminate risks to safety, to minimise those risks so far as is reasonably practicable.
6A What is “reasonably practicable” in ensuring safety
In this Act, reasonably practicable, in relation to a duty to ensure safety, means that which is, or was at a particular time, reasonably able to be done in relation to ensuring safety, taking into account and weighing up all relevant matters including:(a) the likelihood of the risk concerned occurring, and(b) the degree of harm that might result from the risk, and(c) what the person concerned knows, or ought reasonably to know, about:(i) the risk, and(ii) ways of eliminating or minimising the risk, and(d) the availability and suitability of ways to eliminate or minimise the risk, and(e) after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.
7 Rail safety work
(1) Any of the following classes of work is rail safety work for the purposes of this Act:(a) driving or despatching rolling stock or any other activity which is capable of controlling or affecting the movement of rolling stock,(b) signalling (and signalling operations), receiving or relaying communications or any other activity which is capable of controlling or affecting the movement of rolling stock,(c) coupling or uncoupling rolling stock,(d) maintaining, repairing, modifying, monitoring, inspecting or testing:(i) rolling stock, including checking that the rolling stock is working properly before being used, or(ii) rail infrastructure,(e) installation of components in relation to rolling stock,(f) work on or about rail infrastructure relating to the design, construction, repair, modification, maintenance, monitoring, upgrading, inspection or testing of the rail infrastructure or associated works or equipment, including checking that the rail infrastructure is working properly before being used,(g) installation or maintenance of:(i) a telecommunications system relating to rail infrastructure or used in connection with rail infrastructure, or(ii) the means of supplying electricity directly to rail infrastructure or to any rolling stock using rail infrastructure or to a telecommunications system,(h) work involving certification as to the safety of rail infrastructure or rolling stock or any part or component of rail infrastructure or rolling stock,(i) work involving the decommissioning of rail infrastructure or rolling stock or any part or component of rail infrastructure or rolling stock,(j) work involving the development, management or monitoring of safe working systems for railways,(k) work involving the management or monitoring of passenger safety on, in or at any railway,(l) any other work that is prescribed by the regulations to be rail safety work.(2) The regulations may exclude a class of work, or work included in a class of work, referred to in subsection (1) from being rail safety work for the purposes of this Act.