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Contents (2008 - 97)
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Rail Safety Act 2008 No 97
Repealed version for 7 December 2012 to 19 January 2013 (accessed 26 April 2017 at 14:06)
Part 3
Part 3 Accreditation of rail transport operators
Division 1 Requirement for accreditation
34   Purpose of accreditation
The purpose of accreditation of a rail transport operator in relation to railway operations is to attest that the rail transport operator has demonstrated to the ITSRR the competence and capacity to manage risks to safety associated with those railway operations.
35   Accreditation required for railway operations
(1)  A person must not carry out, or cause or permit to be carried out, any railway operations unless the person:
(a)  is a rail transport operator who:
(i)  is accredited under this Part in relation to those operations, or
(ii)  is exempt under this Act from compliance with this section in relation to those operations, or
(b)  carries out those operations, or causes or permits those operations to be carried out, for or on behalf of:
(i)  a rail transport operator who is accredited under this Part in relation to those operations, or
(ii)  a rail transport operator who is exempt under this Act from compliance with this section in relation to those operations, or
(c)  is exempt under this Act from compliance with this section in relation to those operations.
Maximum penalty:
(a)  in the case of a corporation—5,000 penalty units, or
(b)  in the case of an individual—500 penalty units.
Note.
 If a body corporate and related bodies corporate are involved, an exemption may be given so that only one of the bodies need be accredited (related body corporate means related by virtue of section 50 of the Corporations Act 2001 of the Commonwealth).
(2)  Subsection (1) does not apply to a rail safety worker, not being a rail transport operator, who carries out rail safety work for or on behalf of a rail transport operator or other person who:
(a)  is accredited under this Part in relation to that rail safety work, or
(b)  is exempt under this Act from compliance with this section in relation to that rail safety work.
36   Purpose for which accreditation may be granted
(1)  An accreditation may be granted to a rail transport operator for any one or more of the following purposes:
(a)  for the carrying out of railway operations for the part or parts of a railway specified in the notice of accreditation, or for a part or parts having the scope or characteristics so specified,
(b)  for any service or aspect, or part of a service or aspect, of railway operations specified in the notice of accreditation,
(c)  for specified railway operations to permit any one or more of the following:
(i)  site preparation,
(ii)  construction of rail infrastructure,
(iii)  restoration or repair work,
(iv)  testing of railway track or other infrastructure,
(v)  other activities relating to railway operations considered appropriate by the ITSRR and designated in the notice of accreditation.
(2)  If the applicant so requests, accreditation may be granted for a specified period only.
37   Accreditation offences
(1)  An accredited person must not:
(a)  fail to comply with a condition or restriction of the person’s accreditation, or
(b)  cause or permit another person to fail to comply with a condition or restriction of the accredited person’s accreditation.
(2)  An accredited person must not carry out or cause or permit the carrying out of a railway operation that is not authorised by an accreditation or in a manner that is not authorised by an accreditation.
Maximum penalty:
(a)  in the case of a corporation—5,000 penalty units, or
(b)  in the case of an individual—500 penalty units.
Division 2 Applications for accreditation
38   Application for accreditation
(1)  A rail transport operator may apply to the ITSRR for accreditation in respect of specified railway operations carried out, or proposed to be carried out, by, or on behalf of, that operator.
(2)  An application must be made in the manner and form approved by the ITSRR and:
(a)  must specify the scope and nature of the railway operations in respect of which accreditation is sought, and
(b)  must include a safety management plan relating to those railway operations, and
(c)  must specify whether or not the applicant is accredited, or has applied for accreditation, under a corresponding law, and
(d)  must contain the information prescribed by the regulations, and
(e)  must be accompanied by the application fee prescribed by the regulations.
(3)  The ITSRR may require a rail transport operator who has applied for accreditation:
(a)  to supply further information requested by the ITSRR, and
(b)  to verify by statutory declaration any information supplied to the ITSRR.
39   What applicant for accreditation must demonstrate
The ITSRR must not grant accreditation to an applicant unless satisfied, having regard to the guidelines (if any) applicable to this section, that the applicant has demonstrated the following:
(a)  that the applicant is or is to be a rail infrastructure manager or rolling stock operator, or both, in relation to the railway operations for which accreditation is sought,
(b)  that the applicant has the competence and capacity to manage risks to safety associated with the railway operations for which accreditation is sought,
(c)  that the applicant has the competence and capacity to implement the proposed safety management system,
(d)  that the applicant has met the consultation requirements of this Act in relation to the applicant’s safety management system,
(e)  that the applicant has the financial capacity, or has public risk insurance arrangements, to meet reasonable potential accident liabilities arising from the railway operations,
(f)  that the applicant has complied with the requirements prescribed by the regulations (if any) for the purposes of this section.
40   ITSRR may direct applicants to co-ordinate and co-operate in applications
(1)  If the ITSRR:
(a)  receives applications from 2 or more rail transport operators for accreditation, and
(b)  believes that co-ordinated preparation of the applications is necessary to ensure that the railway operations of the applicants are carried out safely,
the ITSRR may give a direction in writing to the rail transport operators to co-ordinate their applications.
(2)  A direction under this section may require each rail transport operator that is the subject of the direction to provide to each other rail transport operator that is the subject of the direction information concerning any circumstances in relation to the carrying out of railway operations by the first-mentioned rail transport operator that could constitute a risk to safety in relation to the carrying out of railway operations by another rail transport operator that is the subject of the direction.
(3)  A rail transport operator that is given a direction under subsection (1) must comply with the direction.
(4)  A rail transport operator that has co-ordinated the preparation of an application in accordance with this section must include in the application reference to information given by the rail transport operator to each other rail transport operator, and information given to the rail transport operator by each other rail transport operator, in accordance with a direction under this section.
Maximum penalty: 100 penalty units.
41   Co-ordination between ITSRR and other Rail Safety Regulators
(1)  This section applies if the ITSRR receives an application for accreditation, or for variation of accreditation or the conditions or restrictions of accreditation, that indicates that the applicant is accredited, or is seeking accreditation, under a corresponding law of one or more other jurisdictions (whether or not contiguous with this jurisdiction).
(2)  The ITSRR must, as soon as possible and before deciding whether or not to grant the application, consult with the relevant corresponding Rail Safety Regulator, or Regulators, in relation to the application with a view to the outcome of the application being consistent with the outcome of applications made in the other jurisdiction or jurisdictions.
(3)  The ITSRR, in complying with subsection (2), must take into account the guidelines (if any) applicable to this section.
(4)  If the ITSRR does not, in relation to an application, act consistently with the provisions of the guidelines, the ITSRR must give the applicant reasons for not so acting.
(5)  The ITSRR may grant accreditation to a person who is accredited under a corresponding law of one or more other jurisdictions, without requiring the person to comply with any or all of the requirements of this Division, if the ITSRR is satisfied that:
(a)  the requirements for that accreditation are of a satisfactory standard in relation to the safe carrying out of railway operations, and
(b)  the carrying out of railway operations is likely to achieve a level of safety that, in the opinion of the ITSRR, is appropriate for the railway operations concerned.
42   Determination of application
(1)  The ITSRR must, within the relevant period after an application for accreditation is made:
(a)  if the ITSRR is satisfied as to the matters referred to in section 39 and, if applicable, section 40, grant accreditation to the applicant with or without any conditions or restrictions, or
(b)  if the ITSRR is not so satisfied, refuse the application.
(2)  A notice granting accreditation must be in writing in the approved form and must specify:
(a)  the prescribed details of the applicant, and
(b)  the scope and nature of the railway operations in respect of which the accreditation is granted, and
(c)  any conditions and restrictions imposed by the ITSRR on the grant of accreditation, and
(d)  any other information prescribed by the regulations.
(3)  A notice refusing an application for accreditation, or imposing a condition or restriction on an accreditation, must include:
(a)  the reasons for the decision to refuse to grant the application or impose the condition or restriction, and
(b)  information about the right of review under section 157.
(4)  A notice under subsection (5) (c) extending a period must include information about the right of review under section 157.
(5)  In this section, relevant period, in relation to an application, means:
(a)  6 months after the application was received by the ITSRR, or
(b)  if the ITSRR requested further information, 6 months, or such other period, as is agreed between the ITSRR and the applicant, after the ITSRR receives the last information so requested, or
(c)  if the ITSRR, by notice in writing given to the applicant before the expiry of the relevant 6 months, specifies another period, that period,
whichever is the longer.
43   Prescribed conditions and restrictions
Accreditation granted to a person under this Part is subject to any conditions or restrictions prescribed by the regulations for the purposes of this section and that are applicable to the grant of accreditation.
44   Accreditation cannot be transferred or assigned
(1)  An accreditation:
(a)  is personal to the person who holds it, and
(b)  is not capable of being transferred or assigned to any other person or otherwise dealt with by the person who holds it, and
(c)  does not vest by operation of law in any other person.
(2)  A purported transfer or assignment of an accreditation or any other purported dealing with an accreditation by the person who holds it is of no effect.
(3)  This section has effect despite anything in any Act or any rule of law to the contrary.
45   Sale or transfer of railway operations by accredited person
(1)  If an accredited person proposes to sell or otherwise transfer any railway operations for which the person is accredited, the ITSRR may, on an application for accreditation under this Part being made by the proposed transferee, waive compliance by the proposed transferee with any one or more of the requirements of this Division.
(2)  The ITSRR is not to waive compliance with any such requirements unless the proposed transferee demonstrates, to the satisfaction of the ITSRR, that the proposed transferee has the competence and 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 may be given subject to such conditions and restrictions (if any) as appear to the ITSRR to be necessary.
(4)  In this section:
railway operations for which a person is accredited include a part of railway operations or a service or aspect or a part of a service or aspect of railway operations for which a person is accredited.
Division 3 Accreditation fees and inspection of documents
46   Annual accreditation fees
An accredited person must pay the annual accreditation fee prescribed by the regulations.
47   Differential accreditation fees
The regulations may prescribe different fees for different classes of accredited persons or kinds of accreditation.
48   Payment of annual fees
The ITSRR may accept payment of an annual accreditation fee 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).
49   Late payment fees
(1)  The regulations may impose additional fees for payment of accreditation fees after the due date for payment.
(2)  A fee for late payment of accreditation fees may be, but is not required to be, calculated on a daily basis.
50   Waiver of fees
The ITSRR may waive, or refund, the whole or part of any fee payable under this Part.
51   Keeping and making available documents for public inspection
A rail transport operator must ensure that:
(a)  if the operator is an accredited person or has an exemption under this Part, the current notice of accreditation or exemption under this Part, and
(b)  if the operator is a rail infrastructure manager of a private siding registered with the ITSRR, the notice of registration, and
(c)  any other document prescribed by the regulations for the purposes of this section,
are available for inspection:
(d)  if the operator is a body corporate, at the operator’s principal office in this State during ordinary business hours, or
(e)  if the operator is not a body corporate, at the operator’s principal place of business or, if the ITSRR approves another place and time, at that place and time.
Maximum penalty: 25 penalty units.
Division 4 Surrender, revocation and variation of accreditation
52   Surrender of accreditation
An accredited person may, in accordance with the regulations, surrender the person’s accreditation.
53   Suspension or revocation of accreditation
(1)  The ITSRR may take action under this section in respect of an accredited person if:
(a)  the ITSRR considers that the person is no longer able to demonstrate to the satisfaction of the ITSRR the matters referred to in section 39 or to comply with the conditions or restrictions of accreditation, or
(b)  the ITSRR considers that the person is not managing the rail infrastructure, or is not operating rolling stock in relation to any rail infrastructure, to which the person’s accreditation relates and has not done so for the preceding 12 months, or
(c)  the accredited person contravenes this Act or the regulations.
(2)  The ITSRR may take any of the following actions:
(a)  suspend the accreditation (wholly or in part) for a period determined by the ITSRR,
(b)  revoke the accreditation (wholly or in part) with immediate effect or with effect from a specified date,
(c)  impose conditions or restrictions on the accreditation,
(d)  vary the conditions or restrictions of the accreditation,
(e)  if the accreditation is revoked, declare that the person is disqualified from applying for accreditation, or for accreditation in relation to specified railway operations, during a specified period.
(3)  Before making a decision to take action under subsection (2), the ITSRR must notify the accredited person in writing that:
(a)  the ITSRR is considering making a decision of the kind specified in the notice, for the reasons specified in the notice, and
(b)  the person may, within 28 days or any longer period that is specified in the notice, make written representations to the ITSRR showing cause why the decision should not be made.
(4)  The ITSRR must, before taking action under subsection (2), consider any written representations made within the period specified in the notice and not withdrawn.
(5)  The ITSRR must include in any notice of suspension or revocation of the accreditation of an accredited person the reasons for the suspension or revocation and information about the right of review under section 157.
(6)  If the ITSRR suspends or revokes the accreditation of a person who is accredited in another jurisdiction, the ITSRR must give notice of the suspension or revocation to the relevant corresponding Rail Safety Regulator.
(7)  The ITSRR may withdraw suspension of the accreditation of a person by written notice given to the person.
54   Immediate suspension of accreditation
(1)  If the ITSRR considers that there is, or would be, an immediate and serious risk to safety unless an accreditation is suspended immediately, the ITSRR may, by written notice given to an accredited person, immediately suspend the accreditation of the person:
(a)  wholly or in part, and
(b)  for a specified period, not exceeding 6 weeks.
(2)  The ITSRR may, by notice in writing given to a person whose accreditation is suspended wholly or in part or in respect of particular railway operations:
(a)  reduce the period of suspension specified in a notice under subsection (1), or
(b)  extend the period of suspension specified in a notice under this section but not so that the suspension continues for more than 6 weeks after the date of the notice under subsection (1).
(3)  The ITSRR may withdraw a suspension of the accreditation of a person by written notice given to the person.
(4)  Before making a decision to extend a period of suspension, the ITSRR must notify the person in writing that:
(a)  the ITSRR is considering extending the period of suspension for the reasons specified in the notification, and
(b)  the person may, within 7 days or any longer period that is specified in the notice, make written representations to the ITSRR showing cause why the decision should not be made.
(5)  The ITSRR must, before taking action under subsection (2), consider any written representations made within the period specified in the notice and not withdrawn.
(6)  The ITSRR must include in the notice extending the suspension the reasons for the extension and information about the right of review under section 157.
(7)  Section 53 does not apply to the taking of action under this section.
55   Application for variation of accreditation
(1)  An accredited person may apply to the ITSRR for a variation of the person’s accreditation.
(2)  An application for variation must be made in the approved manner and approved form and:
(a)  must specify the details of the variation being sought, and
(b)  must contain the information prescribed by the regulations, and
(c)  must be accompanied by the prescribed application fee (if any).
(3)  The ITSRR may require an accredited person who has applied for a variation:
(a)  to supply further information requested by the ITSRR, and
(b)  to verify by statutory declaration any information supplied to the ITSRR.
(4)  Sections 39 and 40 apply to an application for variation of an accreditation as if a reference in those sections to accreditation were a reference to variation of accreditation.
56   Determination of application for variation of accreditation
(1)  The ITSRR must, within the relevant period after an application for variation of an accreditation is made:
(a)  if the ITSRR is satisfied as to the matters referred to in sections 39 and 40, so far as they are applicable to the proposed variation, vary the accreditation, with or without any conditions or restrictions, or
(b)  if the ITSRR is not so satisfied, refuse the application.
(2)  A notice varying an accreditation must be in writing in the approved form and must specify:
(a)  the prescribed details of the applicant, and
(b)  the variation to the accreditation so far as it applies to the scope and nature of the railway operations, and
(c)  any conditions and restrictions imposed by the ITSRR on the accreditation as varied, and
(d)  any other information prescribed by the regulations.
(3)  A notice refusing an application, or imposing a condition or restriction, must include:
(a)  the reasons for the decision to refuse to grant the application for variation or imposing the condition or restriction, and
(b)  information about the right of review under section 157.
(4)  A notice under subsection (5) extending a period, must include information about the right of review under section 157.
(5)  In this section, relevant period, in relation to an application, means:
(a)  6 months after the application was received by the ITSRR, or
(b)  if the ITSRR requested further information, 6 months, or such other period, as is agreed between the ITSRR and the applicant, after the ITSRR receives the last information so requested, or
(c)  if the ITSRR, by notice in writing given to the applicant before the expiry of the relevant 6 months, specifies another period, that period,
whichever is the longer.
57   Variation of conditions and restrictions
(1)  An accredited person may apply to the ITSRR for a variation of any condition or restriction to which the accreditation is subject and that was imposed by the ITSRR.
(2)  An application for variation of a condition or restriction must be made as if it were an application for variation of an accreditation and section 55 applies accordingly.
(3)  The ITSRR must consider the application and may, if satisfied as to the matters referred to in sections 39 and 40 so far as they are applicable to the proposed variation, by notice given to the accredited person and in accordance with the provisions of this Part applicable to a grant of accreditation, grant or refuse to grant the variation.
(4)  A notice under subsection (3) refusing to grant a variation of a condition or restriction must include the reasons for the decision to refuse to grant the variation and information about the right of review under section 157.
58   ITSRR may make changes to conditions or restrictions
(1)  The ITSRR may, at any time and at the discretion of the ITSRR, vary or revoke a condition or restriction imposed by the ITSRR to which the accreditation of an accredited person is subject or impose a new condition or restriction.
(2)  Before making a decision to take action under this section, the ITSRR must:
(a)  notify the person in writing that the ITSRR proposes to take the action specified in the notice, and
(b)  notify the person in writing that the person may, within 14 days (or any other period that the ITSRR and the person agree on), make written representations to the ITSRR about the intended action, and
(c)  consider any representations made under paragraph (b) and not withdrawn.
(3)  The ITSRR is not required to give notice under subsection (2) if the ITSRR considers it necessary to take immediate action in the interests of safety.
(4)  The ITSRR must:
(a)  give notice in writing to an accredited person of any action taken under subsection (1), and
(b)  include in any such notice a statement of reasons for any such action and that the person has a right of review of the decision under section 157.
59   Prescribed conditions and restrictions
The accreditation of a person that is varied under this Part is subject to any conditions or restrictions prescribed by the regulations and that are applicable to the accreditation as varied.
Division 5 Private sidings
60   Exemption from accreditation
(1)  A rail infrastructure manager of a private siding is not required to be accredited under this Act, or to comply with Division 2 or 3 of Part 2 or Division 1 of Part 4, in respect of railway operations (other than those involving the operation of rolling stock) carried out in the private siding.
(2)  However, if the rail infrastructure manager wishes the private siding to be (or to continue to be) connected with, or to have access to, a railway of an accredited person or a siding, the rail infrastructure manager must:
(a)  register the private siding with the ITSRR and pay the annual fee (if any) prescribed by the regulations, and
(b)  comply with conditions imposed by the ITSRR (from time to time) or prescribed by the regulations with respect to the safe construction, maintenance and operation of the private siding, and
(c)  comply with the provisions of Division 3 of Part 2 in relation to the management of any interface with a railway of an accredited person, and
(d)  notify the accredited person or operator of the siding in writing of any railway operations affecting or relating to the safety of the railway or other siding.
Maximum penalty:
(a)  in the case of a corporation—5,000 penalty units, or
(b)  in the case of an individual—500 penalty units.
(3)  A condition imposed or prescribed under subsection (2) (b) may require a rail infrastructure manager to comply with a provision of Division 2 or 3 of Part 2 or Division 1 of Part 4.
(4)  The ITSRR may, on application by a rail infrastructure manager of a private siding or other interested person, and on payment of the fee (if any) prescribed by the regulations, register the private siding and issue a registration notice to the rail infrastructure manager or person.
(5)  The ITSRR is to keep a register of private sidings registered under this section and must, if the regulations so provide, make the register available for public inspection at the places prescribed by the regulations.