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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Repealed version for 7 December 2012 to 19 January 2013 (accessed 24 April 2017 at 01:48)
Part 4
Part 4 Safety reports and investigations
Division 1 Safety reports
61   Rail transport operators to provide information
(1)  The ITSRR may, by notice in writing given to a rail transport operator, require the operator to provide to the ITSRR on or before a specified date and in a manner and form approved by the ITSRR, any or all of the following:
(a)  information concerning measures taken by the rail transport operator to promote rail safety,
(b)  information relating to the financial capacity or insurance arrangements of the rail transport operator, to rail safety or to the accreditation of the rail transport operator that the ITSRR reasonably requires.
(2)  A rail transport operator must comply with a notice given to the operator under subsection (1).
Maximum penalty:
(a)  in the case of a corporation—500 penalty units, or
(b)  in the case of an individual—250 penalty units.
(3)  A rail transport operator must provide to the ITSRR, in a manner and form approved by the ITSRR and at the prescribed times and in respect of the prescribed periods, information prescribed by the regulations for the purposes of this subsection relating to rail safety or accreditation.
Maximum penalty:
(a)  in the case of a corporation—500 penalty units, or
(b)  in the case of an individual—250 penalty units.
62   Industry safety reports
(1)  The ITSRR must, in each year, provide to the Minister an industry safety report relating to the carrying out of railway operations by accredited persons.
(2)  Without limiting subsection (1), a report under that subsection must include the following:
(a)  information on the development of rail safety, including on aggregated statistics of a prescribed class (if any) reported to the ITSRR under a rail safety law, in respect of that year,
(b)  information on any improvements and important changes in relation to rail safety.
(3)  The ITSRR must also report on the matters prescribed by the regulations for the purposes of this section and may report on such other matters as the ITSRR thinks fit.
(4)  A report under this section may be included in the annual report of the ITSRR under the Annual Reports (Statutory Bodies) Act 1984.
63   Notifiable occurrences
(1)  A rail transport operator must report to the ITSRR or another authority specified by the ITSRR within the time, and in the manner, prescribed by the regulations, all notifiable occurrences that happen on, or in relation to, the rail transport operator’s railway premises or railway operations.
Maximum penalty: 750 penalty units.
(2)  Two or more rail transport operators may make a joint report with respect to a notifiable occurrence affecting them.
(3)  In addition to the matters specified in subsection (1), the ITSRR may, by notice in writing, require a rail transport operator to report to the ITSRR or another authority specified by the ITSRR any other occurrence or type of occurrence that endangers or could endanger the safe operation of any railway operations.
(4)  A rail transport operator must comply with a notice served under subsection (3).
Maximum penalty: 500 penalty units.
(5)  The ITSRR may require information in a report under this section to be verified by statutory declaration.
64   Confidential reporting of safety information by rail safety workers
(1)  The Chief Investigator may establish a system for the voluntary reporting by rail safety workers of matters that may affect the safe carrying out of railway operations.
(2)  The Chief Investigator must not disclose to any other person, or to any court, any information that may identify a rail safety worker who provides information under any such voluntary reporting system unless:
(a)  the worker consents to the disclosure, or
(b)  the Chief Investigator or a court is of the opinion that it is necessary in the public interest that the information be disclosed.
(3)  Nothing in this section prevents the Chief Investigator from disclosing information obtained under this section to the Chief Executive or any member of staff of the ITSRR.
(4)  Regulations may be made for or with respect to the following matters:
(a)  the form and manner in which reports may be made,
(b)  the manner in which reports are to be dealt with and the purposes for which information reported under this section may be used,
(c)  other requirements for a system established under this section.
Note.
 Under section 210 of the Industrial Relations Act 1996, it is an offence to victimise an employee because the employee informs about, or gives evidence in relation to, a notifiable occurrence or the safety or reliability of railway operations. Section 213 of that Act sets out the remedies available to an employee in those circumstances. Also, section 104 of the Work Health and Safety Act 2011 protects an employee who makes a complaint about workplace safety or risks to health.
Division 2 Investigations of accidents and incidents
65   Investigation into railway accidents and incidents by rail transport operators
(1)  The Chief Investigator may, by written notice to a rail transport operator, require the rail transport operator to investigate, and report to the Chief Investigator on:
(a)  any notifiable occurrence, or any other railway accident or incident that has endangered or that may endanger the safety of the railway operations carried out by the rail transport operator, or
(b)  any matter that may be prescribed by the regulations.
(2)  The level of investigation of a matter referred to in subsection (1) (a) must be determined by the severity and potential consequences of the notifiable occurrence, accident or incident as well as by other similar occurrences, accidents or incidents and its focus should be to determine the cause and contributing factors, rather than to apportion blame.
(3)  The rail transport operator must ensure that the investigation is conducted in a manner approved and within the period specified by the Chief Investigator.
Maximum penalty: 750 penalty units.
(4)  A rail transport operator who has carried out an investigation under this section must report to the Chief Investigator on the investigation within the period specified by the Chief Investigator and must provide a copy of the report to the ITSRR.
Maximum penalty: 100 penalty units.
(5)  A rail transport operator must, if required to do so by the Chief Investigator, review and resubmit a report prepared under this section.
Maximum penalty: 100 penalty units.
(6)  The Chief Investigator must, on the 15th day of each month, forward to the Minister a list of any reports provided to the Chief Investigator under this section in the preceding month.
(7)  In this section and section 66:
rail transport operator includes a person who carries out railway operations (other than a rail safety worker or a person who carries out railway operations as an employee).
66   Information may not be used in certain proceedings
(1)  Information that the Chief Investigator or ITSRR obtains by way of a report under section 65 cannot be used in evidence in any criminal or civil proceedings against the rail transport operator that provided the report.
(2)  However, the information may be relied on in any administrative action under this or any other Act if the action is taken for the purpose of the safe carrying out of railway operations.
(3)  Despite subsection (1), a court may direct, if it is of the opinion that it is in the public interest to do so, that information referred to in subsection (1) may be used in evidence in particular criminal or civil proceedings against the rail transport operator, subject to the rules of evidence.
(4)  In determining the public interest under this section, a court is to take into account the adverse impact that use of the information may have on future disclosures by rail transport operators under section 65.
(5)  This section does not apply:
(a)  to a train safety recording (other than material prescribed by the regulations for the purposes of this section), or
(b)  in relation to criminal proceedings for an offence under Division 3 of Part 5 of the Crimes Act 1900, or
Note.
 Division 3 of Part 5 of the Crimes Act 1900 contains offences dealing with the provision of false or misleading information.
(c)  to information, or in circumstances, that may be prescribed by the regulations.
67   Investigations by Chief Investigator
(1)  The Chief Investigator may investigate any railway accident or incident that may affect the safe carrying out of railway operations.
(2)  The Chief Investigator must provide to the Minister a written report on an investigation under this section.
(3)  The Minister may require the Chief Investigator to investigate and report to the Minister on any railway accident or incident that may affect the safe carrying out of railway operations or the personal security of any rail safety worker or member of the public using a railway or in or on railway premises.
(4)  The Chief Investigator may recover the reasonable costs of conducting an investigation under this section as a debt due to the Crown in a court of competent jurisdiction. The costs are recoverable jointly or severally from any one or more rail transport operators responsible for the railway operations concerned.
(5)  An investigation under this section may be carried out and a report provided under this section whether or not:
(a)  an investigation is being, or has been, conducted under any other Act or law (including any law of the Commonwealth) relating to the same matter, or
(b)  the matter is or may be subject to any criminal or civil proceedings, or
(c)  the matter is the subject of an inquest or inquiry under the Coroners Act 2009, or
(d)  the matter is or may be the subject of a rail safety inquiry.
68   Chief Investigator and transport safety investigator’s functions
(1)  The Chief Investigator may, by notice in writing, require either or both of the following:
(a)  the attendance of any person at any place to answer questions in relation to an investigation under section 67,
(b)  the production of any documents or other things required for the purposes of any such investigation.
(2)  The Chief Investigator may require a person to answer questions in relation to an investigation under section 67.
(3)  A person given a notice under this section must comply with the notice unless the person has a reasonable excuse.
Maximum penalty: 100 penalty units.
Note.
 Section 159 provides protection in relation to self-incriminating evidence.
(4)  A person attending at a place to answer questions is to be paid expenses of the amount or at the rate approved by the Minister for the purposes of this section.
(5)  The Chief Investigator may appoint an authorised person (within the meaning of section 45DA of the Transport Administration Act 1988) as a transport safety investigator for the purposes of conducting an investigation under section 67.
Note.
 Section 45DA of the Transport Administration Act 1988 permits the Chief Investigator to delegate any of his or her functions.
(6)  The Chief Investigator and each transport safety investigator have, in respect of any investigation under section 67, all the functions and immunities of a rail safety officer.
69   Rail safety inquiries
(1)  The Minister may constitute one or more persons as a Board of Inquiry to conduct an inquiry (a rail safety inquiry) into any railway accident or incident or any other event, occurrence, practice or matter that may affect the safe carrying out of railway operations.
(2)  A rail safety inquiry may be carried out and a report provided whether or not:
(a)  an investigation is being, or has been, conducted under any other Act or law (including a law of the Commonwealth) relating to the same matter, or
(b)  the matter is or may be subject to any criminal or civil proceedings, or
(c)  the matter is the subject of an inquest or inquiry under the Coroners Act 2009.
(3)  The Minister may not terminate a rail safety inquiry.
(4)  A Board of Inquiry may, at a rail safety inquiry conducted by it, take evidence on oath or affirmation and, for that purpose, the Board:
(a)  may require a person appearing at the inquiry to give evidence, to take an oath or to make an affirmation in a form approved by the person presiding, and
(b)  may administer an oath to, or take an affirmation from, a person appearing at the inquiry.
(5)  In conducting a rail safety inquiry, a Board of Inquiry:
(a)  is not bound to act in a formal manner, and
(b)  is not bound by the rules of evidence and may inform itself on any matter in any way that it considers appropriate.
(6)  If the Board of Inquiry agrees, an agent (including an Australian legal practitioner) may represent a person or body at a rail safety inquiry.
(7)  A Board of Inquiry is to determine its own procedure, except as provided by this Act or the regulations.
70   Chief Investigator may request rail safety inquiry
(1)  The Chief Investigator may, if he or she considers it to be appropriate in the circumstances, give a written notice to the Minister requesting that any railway accident or incident or any other event, occurrence, practice or matter that may affect the safe carrying out of railway operations be the subject of a rail safety inquiry.
(2)  If the Minister receives a written notice under subsection (1) from the Chief Investigator, the Minister is to:
(a)  constitute a Board of Inquiry to conduct a rail safety inquiry into the accident, incident, event, occurrence, practice or matter, or
(b)  within one month after receiving the notice, provide the Chief Investigator with written reasons for not doing so and table the notice and the reasons in each House of Parliament.
(3)  If a House of Parliament is not sitting when the Minister seeks to table a notice and reasons, the Minister may present copies of the report to the Clerk of the House concerned.
(4)  The notice and reasons:
(a)  are, on presentation and for all purposes, taken to have been tabled, and
(b)  may be printed by authority of the Clerk of the House, and
(c)  if so printed, are for all purposes taken to be documents published by or under the authority of the House, and
(d)  are to be recorded:
(i)  in the case of the Legislative Council, in the Minutes of Proceedings of the Legislative Council, and
(ii)  in the case of the Legislative Assembly, in the Votes and Proceedings of the Legislative Assembly,
on the first sitting day of the House after receipt of the report by the Clerk.
71   Assessors
(1)  A Board of Inquiry, when conducting, and making a determination in respect of, a rail safety inquiry is to sit with any assessors that may be appointed by the Minister for the purposes of the inquiry.
(2)  An assessor sitting with a Board of Inquiry has the power to advise the Board of Inquiry but not to adjudicate on any matter before the Board of Inquiry.
(3)  A Board of Inquiry has the right to consult, either collectively or individually, and either in public or in private, with assessors sitting with it.
72   Witnesses and evidence at rail safety inquiries
(1)  A Board of Inquiry may summon a person to appear at a rail safety inquiry conducted by the Board to give evidence and to produce any documents that are specified in the summons.
(2)  A Board of Inquiry may require a person appearing at a rail safety inquiry to do any one or more of the following:
(a)  be sworn or affirmed,
(b)  produce a document,
(c)  answer a question.
(3)  A person attending as a witness before a Board of Inquiry is to be paid expenses of the amount or at the rate approved by the Minister for the purposes of this section.
(4)  A person must not, without reasonable excuse, fail to comply with a requirement made of the person under this section.
Maximum penalty: 250 penalty units.
73   Report on rail safety inquiry
A Board of Inquiry must, within the period required by the Minister, prepare a report as to the causes of the accident or incident or prepare a report on the other event, occurrence, practice or matter the subject of the rail safety inquiry and provide a copy of the report to the Minister.
74   Tabling of reports
(1)  The Minister is to lay (or cause to be laid) a report under section 62, 67 (2) or 73 before both Houses of Parliament as soon as reasonably practicable, but not later than 7 days, after the Minister receives the report.
(2)  If a House of Parliament is not sitting when the Minister seeks to lay a report before it, the Minister may present copies of the report to the Clerk of the House concerned.
(3)  The report:
(a)  is, on presentation and for all purposes, taken to have been laid before the House, and
(b)  may be printed by authority of the Clerk of the House, and
(c)  if so printed, is for all purposes taken to be a document published by or under the authority of the House, and
(d)  is to be recorded:
(i)  in the case of the Legislative Council, in the Minutes of Proceedings of the Legislative Council, and
(ii)  in the case of the Legislative Assembly, in the Votes and Proceedings of the Legislative Assembly,
on the first sitting day of the House after receipt of the report by the Clerk.
Division 3 Disclosure of train safety records
75   Definitions
In this Division:
train safety record means any or all of the following:
(a)  all statements (whether oral or in writing) taken from persons by a rail safety officer or other person for the purposes of a rail safety inquiry or an investigation under section 67, including any record of any such statement,
(b)  all communications (other than a train safety recording or a transcript of a train safety recording) between persons involved in the operation of a train,
(c)  medical or private information regarding persons (including deceased persons) involved in an accident or incident the subject of a rail safety inquiry,
(d)  train safety recordings and transcripts of train safety recordings,
(e)  any information collected for the purposes of a rail safety inquiry or an investigation under section 67.
train safety recording means a recording consisting of (or mainly of) sounds or images or data, or any combination of sounds, images or data, produced by a device installed in a train, a signal box, a train control complex or other railway premises for the purpose of recording operational activities carried out by rail safety workers operating a train and other persons.
76   Disclosure of train safety record to Commonwealth or Commonwealth authority
(1)  Despite any other provision of this Division, the ITSRR, Chief Investigator, a member of a Board of Inquiry or a person who is or was a rail safety officer or any other person may, with the consent of the Minister, disclose to the Commonwealth or a Commonwealth authority the whole or part of a train safety record.
(2)  The Minister may not consent to a disclosure under this section unless the Minister is of the opinion that it is in the public interest to do so.
77   Disclosure of train safety records (other than train safety recordings) to a court or person
(1)  The ITSRR, Chief Investigator, a member of a Board of Inquiry or a person who is or was a rail safety officer must not, except for the purposes of this Division, directly or indirectly:
(a)  disclose to any person, or to a court, the whole or part of a train safety record, or
(b)  produce to any person, or to a court, the whole or any part of a train safety record.
Maximum penalty: 100 penalty units.
(2)  This section does not apply to or in respect of the following:
(a)  a train safety record that is a train safety recording,
(b)  criminal proceedings, investigations relating to a criminal offence, investigations by or proceedings before the coroner, or a proceeding relating to bail,
(c)  disclosure of a train safety record that is permitted under this Act or the regulations,
(d)  disclosure in accordance with an order of the Supreme Court referred to in subsection (4).
(3)  A person may apply to the Supreme Court for an order that a train safety record must be disclosed to a court or produced to a court.
(4)  The Supreme Court must order the disclosure or production of the train safety record if it is satisfied that the public interest in the disclosure outweighs the adverse impact the disclosure or production may have on the inquiry or investigation to which the record relates or any future inquiries or investigations.
(5)  If the Supreme Court makes an order under subsection (4), the Court must also make an order that restricts access to the train safety record to:
(a)  the person or persons constituting the court, and
(b)  the parties to the proceedings (including any interveners), and
(c)  the parties’ legal representatives, and
(d)  specified witnesses for the purposes of the proceedings,
unless the Court is satisfied that such an order would not be in the interests of justice or would not be desirable in the interests of the court performing its functions.
78   Disclosure of train safety recordings
A person must not publish or communicate to any person:
(a)  a train safety recording or any part of a train safety recording, or
(b)  any information obtained from a train safety recording or any part of a train safety recording,
otherwise than in the course of an inquiry or an investigation into an accident or incident under this Part or for the purposes of, or in connection with:
(c)  criminal proceedings (not being criminal proceedings in which it is not admissible), investigations relating to any such criminal proceedings or investigations by or proceedings before the coroner, or
(d)  civil proceedings in which an order is made under section 80, or
(e)  a disclosure or publication that is permitted under this Act or the regulations.
Maximum penalty: 100 penalty units.
79   Evidence of train safety recordings in criminal proceedings
A train safety recording is not admissible in evidence in any criminal proceedings against a rail safety worker.
80   Evidence of train safety recordings in civil proceedings
(1)  A train safety recording is not admissible in evidence in any civil proceedings against a rail safety worker.
(2)  A party to civil proceedings may, at any time before the determination of the proceedings, apply to the court in which the proceedings have been instituted for an order that a train safety recording, or part of a train safety recording, be admissible in evidence in the proceedings.
(3)  If an application is made to a court under subsection (2), the court must:
(a)  examine the train safety recording, and
(b)  if it is satisfied:
(i)  that a material question of fact in the proceedings will not be able to be properly determined from other evidence available to the court, and
(ii)  that the train safety recording, or a part of the train safety recording, if admitted in evidence in the proceedings, will assist in the proper determination of that material question of fact, and
(iii)  that, in the circumstances of the case, the public interest in the proper determination of that material question of fact outweighs the public interest in protecting the privacy of rail safety workers,
the court may order that the train safety recording, or that part of the train safety recording, be admissible in evidence in the proceedings.
(4)  If the court makes an order referred to in subsection (3), the train safety recording is, despite subsection (1), admissible in evidence in the proceedings.
81   Examination by a court of train safety recording
(1)  This section applies if a court examines a train safety recording under section 80.
(2)  The only persons who may be present at the examination are:
(a)  the person or persons constituting the court, other than the members of the jury (if any), and
(b)  the legal representatives of the parties to the proceedings, and
(c)  such other persons (if any) as the court directs.
(3)  The court may direct that the train safety recording or the part of the train safety recording, or any information obtained from the recording or part of the recording, must not:
(a)  be published or communicated to any person, or
(b)  be published or communicated except in such manner, and to such persons, as the court specifies.
(4)  The train safety recording, or that part of the train safety recording, is not evidence for the purpose of the determination of the liability in the proceedings of a rail safety worker the subject of a recording.
(5)  If there are 2 or more defendants in the proceedings of whom at least one is a rail safety worker the subject of a recording and the remaining defendant or defendants are not rail safety workers the subject of a recording, the train safety recording, or that part of the train safety recording, is evidence for the purpose of determining whether or not any rail safety worker has been negligent for the purposes only of determining the liability in the proceedings of any defendant who is not a rail safety worker the subject of a recording.
82   Compliance with subpoenas and other directions
(1)  The ITSRR, Chief Investigator, a member of a Board of Inquiry, an assessor or a person who is or was a rail safety officer or an officer of the ITSRR or the Ministry of Transport is not obliged to comply with a subpoena or similar direction of a court in relation to civil proceedings to:
(a)  attend and answer questions relating to an accident or incident or other event, occurrence, practice or matter the subject of the rail safety inquiry or an investigation under section 67, or
(b)  attend and produce any part of a train safety record relating to any such accident or incident,
within 6 months after the day of the accident or incident.
(2)  A person who has obtained a subpoena or similar direction from a court that does not have to be complied with because of subsection (1) may apply to that court for an order that the subpoena or similar direction be complied with.
(3)  If the court is satisfied that, in the circumstances of the case, it is desirable, in either the interests of justice or the performance by the court of its functions, for the officer or person to attend and answer questions or to attend and produce train safety records within 6 months after the day of the accident or incident, the court must order that the officer or person comply with the subpoena or similar direction.
83   Admissibility of other evidence and liability
(1)  Nothing in this Division affects the admissibility in any proceedings of evidence of words spoken by a rail safety worker other than evidence constituted by a train safety recording or a transcript or summary of a train safety recording.
(2)  No liability is incurred by the State and no personal liability is incurred by, or by any person acting at the direction of, the Minister, the ITSRR, the Chief Investigator or a member of a Board of Inquiry in respect of anything done in good faith in connection with the preparation or making public of a report, or the disclosure or publication of information, under this Division.
(3)  No liability is incurred by a person for publishing in good faith:
(a)  a report made public, or information published by the ITSRR, Chief Investigator or a member of a Board of Inquiry, under this Division, or
(b)  a fair report or summary of any such report or information.
(4)  In this section:
liability includes liability for defamation.
the State includes the Crown in right of the State and the Government of the State.
Division 4 Audit by ITSRR
84   Audit of railway operations of rail transport operators
(1)  The ITSRR:
(a)  may audit the railway operations of rail transport operators, and
(b)  may prepare and implement a program (an audit program) for each year for auditing the railway operations of rail transport operators.
(2)  Without limiting subsection (1) (b), an audit program may focus on one or more of the following:
(a)  particular rail transport operators,
(b)  particular criteria relating to rail transport operators,
(c)  particular aspects of rail safety,
(d)  particular aspects of railway operations.
(3)  The ITSRR must give not less than 24 hours notice in writing to a rail transport operator before auditing the operator’s railway operations under this section.
(4)  The regulations may establish procedures for the conduct of audits under this section, including procedures to ensure the confidentiality of records.
(5)  In this section, rail transport operator includes a person, not being an employee employed to carry out railway operations, who undertakes railway operations in relation to rail infrastructure or rolling stock of a rail transport operator.