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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Repealed version for 7 December 2012 to 19 January 2013 (accessed 26 April 2017 at 14:19)
Part 5
Part 5 Investigation powers
Division 1 Powers of entry
85   Power to enter places
(1)  A rail safety officer may, for compliance and investigative purposes or in an emergency, enter a place if:
(a)  the place is a public place and the entry is made when the place is open to the public, or
(b)  the occupier of the place consents to the entry, or
(c)  the entry to the place is authorised by a warrant under section 94, or
(d)  the place is railway premises and the entry is made:
(i)  at a reasonable hour in the daytime, or
(ii)  at any hour during which a railway operation or other related activity is in progress or is usually carried out in or on the railway premises, or
(iii)  when the place is otherwise open for entry, or
(e)  the place is railway premises and the entry is urgently required to investigate the circumstances of a notifiable occurrence at any time during which railway operations are being carried out or are usually carried out, or
(f)  the place is railway premises, or adjoins railway premises, and the entry is urgently required for the purpose of dealing with a railway accident or incident.
(2)  A rail safety officer who enters railway premises under subsection (1) (d), (e) or (f) must not unnecessarily impede any activities being conducted at the premises.
(3)  In this Part:
compliance and investigative purposes includes the following purposes:
(a)  purposes related to ascertaining whether a rail safety law has been or is being complied with, including whether an offence has been committed against a rail safety law,
(b)  purposes related to ascertaining whether the terms of, or a condition or restriction of, an accreditation has been or is being complied with,
(c)  purposes related to an audit, inspection, investigation, rail safety inquiry or other inquiry under this Act.
86   Limitation on entry powers—places used for residential purposes
Despite anything to the contrary in this Part, the powers of a rail safety officer under this Part in relation to entering a place are not exercisable in respect of any place (or part of a place) that is used only for residential purposes except:
(a)  with the consent of the occupier of the place, or
(b)  under the authority conferred by a search warrant.
87   Notice of entry
Before a rail safety officer enters railway premises (not being a public place) under section 85, the rail safety officer must give the occupier of the railway premises reasonable notice of the intention to enter unless:
(a)  the giving of the notice would be reasonably likely to defeat the purpose for which it is intended to enter the premises, or
(b)  entry to the premises is made with the consent of the occupier of the premises, or
(c)  entry is required in circumstances where the rail safety officer reasonably believes there is an immediate risk to safety because of the carrying out of railway operations at the premises, or
(d)  entry is authorised by a search warrant.
Division 2 General enforcement powers of rail safety officers
88   General powers after entering a place
A rail safety officer who enters a place under this Part (including under a search warrant issued under this Part) may do any of the following:
(a)  search and inspect any part of the place and any rail infrastructure, rolling stock or motor vehicle or any other thing at the place,
(b)  enter or open, using reasonable force, rail infrastructure, rolling stock, a motor vehicle or other thing at the place to examine the infrastructure, rolling stock, motor vehicle or other thing,
(c)  take measurements, make surveys and take levels, dig trenches, break up the soil and set up any posts, stakes or markers,
(d)  test any part of rail infrastructure or rolling stock,
(e)  inspect, film, photograph, videotape or otherwise record an image,
(f)  take, or authorise another person to take, for analysis a thing, or a sample of or from a thing, at the place,
(g)  seize anything that the rail safety officer suspects on reasonable grounds is connected with an offence against a rail safety law or to secure any such thing against interference,
(h)  seize anything if the rail safety officer suspects it is necessary to do so to prevent its use in the commission of an offence against a rail safety law,
(i)  require any person at the place to answer questions or otherwise give information in relation to the matter the subject of the inspection, investigation or inquiry,
(j)  mark, tag or otherwise identify rolling stock, a motor vehicle or other thing at the place,
(k)  take all necessary steps to allow a power under paragraphs (a) to (j) to be exercised.
89   Powers of rail safety officers in relation to relevant documents
(1)  A rail safety officer has the following powers in relation to relevant documents found by a rail safety officer in or on a place entered by the officer or produced to the officer pursuant to a requirement made under this Part:
(a)  power to take possession of the documents or secure them against interference,
(b)  power to make copies of, or take extracts from, the documents,
(c)  power to retain possession of the documents for such period as is necessary to enable the documents to be inspected, and copies of, or extracts from, the documents to be made or taken,
(d)  power to require any person who was party to the creation of the documents to make a statement providing any explanation that the person is able to provide as to any matter relating to the creation of the documents or as to any matter to which the documents relate.
(2)  While a rail safety officer retains possession of a document, the officer must permit a person who would be entitled to inspect the document were it not in the possession of the officer to inspect the document at any reasonable time and make a copy of, or take extracts from, the document.
(3)  If a rail safety officer takes possession of or secures against interference any relevant document on which a person has a lien, the officer’s actions do not prejudice the lien.
(4)  This section does not limit section 88.
90   Use of assistants and equipment
(1)  A rail safety officer may exercise powers under this Part with the aid of such assistants and equipment as the officer considers reasonably necessary in the circumstances.
(2)  Powers that may be exercised by a rail safety officer under this Part may be exercised by an assistant authorised and supervised by the officer, but only if the officer considers that it is reasonably necessary in the circumstances that the powers be exercised by an assistant.
91   Use of electronic equipment
(1)  Without limiting section 88, if:
(a)  a thing found in or on rolling stock or a motor vehicle, or at a place, is, or includes, a disk, tape or other device for the storage of information, and
(b)  the equipment in or on the rolling stock or motor vehicle, or at the place, may be used with the disk, tape or other device,
the rail safety officer, or a person assisting the officer, may operate the equipment to access the information.
(2)  A rail safety officer, or a person assisting an officer, must not operate or seize equipment for the purpose mentioned in this section unless the officer or person assisting believes on reasonable grounds that the operation or seizure of the equipment can be carried out without damage to the equipment.
92   Use of equipment to examine or process things
(1)  Without limiting section 88, a rail safety officer exercising a power under this Part may bring to, onto, or into, rolling stock, a motor vehicle or a place any equipment reasonably necessary for the examination or processing of things found at, on or in the rolling stock, motor vehicle or place in order to determine whether they are things that may be seized.
(2)  The rail safety officer, or a person assisting the officer, may operate equipment already in or on the rolling stock or motor vehicle, or at the place, to carry out the examination or processing of a thing found in or on the rolling stock or motor vehicle, or at the place, in order to determine whether it is a thing that may be seized, if the officer or person assisting believes on reasonable grounds that:
(a)  the equipment is suitable for the examination or the processing, and
(b)  the examination or processing can be carried out without damage to the equipment.
93   Securing a site
(1)  For the purpose of protecting evidence that might be relevant for compliance and investigative purposes or ensuring safety, a rail safety officer may secure the perimeter of any site at a place entered under this Part by whatever means the rail safety officer considers appropriate.
(2)  A person must not, without the permission of a rail safety officer, enter or remain at, a site the perimeter of which is secured under this section.
Maximum penalty: 1,000 penalty units.
(3)  Subsection (2) does not apply if the person enters the site, or remains at the site:
(a)  to ensure the safety of persons, or
(b)  to remove deceased persons or animals from the site, or
(c)  to move a motor vehicle, or the wreckage of a motor vehicle, to a safe place, or
(d)  to protect the environment from significant damage or pollution.
(4)  A rail safety officer must not unreasonably withhold a permission referred to in subsection (2).
Division 3 Search warrants
94   Search warrants
(1)  A rail safety officer may apply to an authorised officer (within the meaning of the Law Enforcement (Powers and Responsibilities) Act 2002) for a search warrant if the rail safety officer has reasonable grounds for believing that:
(a)  the provisions of this Act, the regulations or the terms of an accreditation have been or are being contravened in or on any place, or
(b)  there is in or on any place a thing connected with a contravention of the provisions of this Act, the regulations or the terms of an accreditation.
(2)  An authorised officer to whom such an application is made may, if satisfied that there are reasonable grounds for doing so, issue a search warrant authorising a rail safety officer named in the warrant:
(a)  to enter the place, and
(b)  to search the place for evidence of a contravention of a rail safety law or the terms of an accreditation.
(3)  Division 4 of Part 5 of the Law Enforcement (Powers and Responsibilities) Act 2002 applies to a search warrant issued under this section.
(4)  Without limiting the generality of section 71 of the Law Enforcement (Powers and Responsibilities) Act 2002, a police officer:
(a)  may accompany a rail safety officer executing a search warrant issued under this section, and
(b)  may take all reasonable steps to assist the rail safety officer in the exercise of the officer’s functions under this section.
Division 4 Powers to support seizure
95   Directions relating to seizure
(1)  To enable a thing to be seized under this Part, a rail safety officer may direct the person in control of it:
(a)  to take it to a specified place within a specified time, and
(b)  if necessary, to remain in control of it at the specified place for a period specified in the direction.
(2)  A direction under subsection (1):
(a)  must be given by signed notice in writing given to the person, or
(b)  if for any reason it is not practicable to give a signed notice in writing to the person, may be given orally and confirmed by signed notice in writing given to the person as soon as is practicable.
(3)  A further direction may be made under this section about the thing if it is necessary and reasonable to make the further direction.
(4)  If a rail safety officer has directed a person to take a thing to a specified place within a specified time under subsection (1), a rail safety officer may direct the person to return the thing to the place from which it was taken.
(5)  A person given a direction under this section must comply with that direction unless the person has a reasonable excuse.
Maximum penalty: 100 penalty units.
(6)  Without limiting what may otherwise be a reasonable excuse, it is a reasonable excuse for a person in control of a thing not to comply with a direction under this section if, in all the circumstances, the direction was unreasonable.
(7)  In this section:
in control of a thing means having, or reasonably appearing to a rail safety officer as having, authority to exercise control over the thing.
96   Receipt for seized things
(1)  After a rail safety officer seizes a thing under this Part, the officer must give a receipt for it to the person from whom the thing was seized or the owner of the thing.
(2)  However, if for any reason it is not practicable to comply with subsection (1), the officer must leave the receipt at the place of seizure in a conspicuous position and in a reasonably secure way.
(3)  The receipt must describe generally the thing seized and its condition.
(4)  This section does not apply if it would be impracticable or unreasonable to expect the officer to account for the thing, given its condition, nature or value.
97   Access to seized thing
(1)  Until a seized thing is forfeited or returned, a rail safety officer must allow its owner to inspect it and, if it is a document, to copy it.
(2)  Subsection (1) does not apply if it is impracticable or it would be unreasonable to allow the inspection or copying.
98   Embargo notices
(1)  This section applies where:
(a)  a rail safety officer is authorised to seize any record, device or other thing under this Part, and
(b)  the record, device or other thing cannot, or cannot readily, be physically seized and removed.
(2)  A rail safety officer may issue an embargo notice under this section.
(3)  An embargo notice is a notice forbidding the use, movement, sale, leasing, transfer, deletion of information from or other dealing with the record, device or other thing, or any part of it, without the written consent of a rail safety officer or the ITSRR.
(4)  The embargo notice must:
(a)  contain the particulars required by the regulations, and
(b)  list the activities that it forbids, and
(c)  set out a copy of subsection (9).
(5)  On issuing an embargo notice, a rail safety officer must:
(a)  cause a copy of the notice to be served on the owner of the record, device or other thing, or
(b)  if that person cannot be located after all reasonable steps have been taken to do so, affix a copy of the notice to the record, device or other thing in a prominent position.
(6)  A person must not do anything that the person knows is forbidden by an embargo notice.
Maximum penalty: 750 penalty units.
(7)  A person must not instruct or request another person to do anything that the person making the instruction or request knows is forbidden by an embargo notice.
Maximum penalty: 750 penalty units.
(8)  It is a defence to a prosecution for an offence against subsection (6) to establish that the defendant:
(a)  moved the record, device or other thing, or part of it, for the purpose of protecting or preserving it, and
(b)  notified the rail safety officer who issued the embargo notice of the move, and of the new location of the record, device or other thing or part of it, within 48 hours after the move.
(9)  A person on whom an embargo notice has been served must take reasonable steps to prevent another person from doing anything forbidden by the embargo notice.
Maximum penalty: 750 penalty units.
(10)  Despite anything to the contrary in any other Act or at law, a sale, lease, transfer or other dealing with a record, device or other thing, or part of it, in contravention of this section is void.
Division 5 Dealings with seized items
99   Return of seized things
(1)  As soon as possible after a rail safety officer seizes any thing (including a document) under this Part, the rail safety officer must return the thing to the owner unless:
(a)  the rail safety officer considers it necessary to retain the thing because it may afford evidence in proceedings, that have been or may be commenced, for an offence against a rail safety law, or
(b)  the thing is forfeited to the State under section 100, or
(c)  the rail safety officer is otherwise authorised (by law or an order of a court) to retain, destroy or dispose of the thing.
(2)  The thing may be returned either unconditionally or on such terms and conditions as the rail safety officer considers appropriate to eliminate or reduce any risks to safety.
(3)  If the rail safety officer imposes terms or conditions on the return of a thing, the owner must comply with each of those terms and conditions.
Maximum penalty: 100 penalty units.
100   Forfeiture of sample or thing
(1)  A sample or thing taken for analysis or a thing seized under this Part, is forfeited to the State if the rail safety officer who took, or arranged the taking of, the sample or thing or who seized the thing:
(a)  after making reasonable efforts, cannot return it to its owner, or
(b)  after making reasonable inquiries, cannot find its owner, or
(c)  considers it necessary to retain the sample or thing to prevent the commission of an offence against a rail safety law.
(2)  For the purposes of subsection (1), the officer is not required to:
(a)  make efforts if it would be unreasonable to make efforts to return the sample or thing to its owner, or
(b)  make inquiries if it would be unreasonable to make inquiries to find the owner.
(3)  Regard must be had to the sample’s or thing’s condition, nature and value in deciding whether:
(a)  it is reasonable to make efforts or inquiries, and
(b)  if efforts or inquiries are made, what efforts or inquiries, including the period over which they are made, are reasonable.
(4)  In this section:
owner, in relation to a sample or a thing taken for analysis, includes the person in charge of the thing or place from which the sample or thing was taken.
101   Dealing with forfeited sample or thing
(1)  On forfeiture of a sample or thing to the State, the sample or thing becomes the State’s property and may be dealt with by the ITSRR in any way the ITSRR considers is appropriate.
(2)  Without limiting subsection (1), the ITSRR may destroy or dispose of the sample or thing.
Division 2 of Part 17 (other than sections 218 and 221–227) of the Law Enforcement (Powers and Responsibilities) Act 2002 applies to property in the custody of a rail safety officer under this Part in the same way as it applies to property in the custody of a police officer.
Division 6 Directions
103   Rail safety officers may direct certain persons to give assistance
(1)  A rail safety officer may direct a rail transport operator, a person carrying out railway operations or a rail safety worker to give the rail safety officer reasonable assistance to enable the officer to exercise a function under this Part.
(2)  When giving a direction to a person under subsection (1), the rail safety officer must warn the person that it is an offence to fail to comply with the direction unless the person has a reasonable excuse.
(3)  A person given a direction under subsection (1) must comply with the direction unless the person has a reasonable excuse.
Maximum penalty: 100 penalty units.
(4)  In this section:
reasonable assistance includes any of the following kinds of assistance:
(a)  assistance to enable the rail safety officer to find and gain access to electronically stored material and information,
(b)  unloading rolling stock,
(c)  running the engine of a locomotive,
(d)  driving a train,
(e)  giving the rail safety officer assistance to enter any rail infrastructure or any part of rail infrastructure or open rolling stock or any part of rolling stock.
104   Power to direct name and address be given
(1)  A rail safety officer may direct a person to state the person’s name and residential or business address if the officer:
(a)  finds the person committing an offence against a rail safety law, or
(b)  finds the person in circumstances that lead, or has information that leads, the officer reasonably to suspect the person has committed an offence against a rail safety law, or
(c)  finds the person at railway premises and:
(i)  reasonably believes the person is carrying out railway operations or rail safety work, and
(ii)  reasonably considers that it is necessary for the purposes of this Act or the regulations to know the person’s name and residential or business address.
(2)  When giving a direction under subsection (1), the officer must warn the person it is an offence to fail to state the person’s name or address unless the person has a reasonable excuse.
(3)  The officer may also request the person to provide evidence of the correctness of the stated name or required address if the officer reasonably suspects the stated name or address is false.
105   Failure to give name or address
A person given a direction under section 104 (1) must comply with the direction unless the person has a reasonable excuse.
Maximum penalty: 15 penalty units.
106   Power to obtain information, documents and evidence
(1)  A rail safety officer may, by notice in writing served on a person, require the person to do any one or more of the following things if the officer has reasonable grounds to believe that the person is capable of giving information, producing documents or giving evidence in relation to a possible contravention of a rail safety law or for the purposes of an audit, investigation, rail safety inquiry or other inquiry under this Act:
(a)  to give a rail safety officer, in writing signed by the person (or, in the case of a body corporate, by a competent officer of the body corporate) and within the time and in the manner specified in the notice, any such information of which the person has knowledge,
(b)  to produce to a rail safety officer in accordance with the notice any such documents,
(c)  to appear before a rail safety officer at a time and place specified in the notice and give, either orally or in writing, any such evidence and produce any such documents.
(2)  A notice under this section must contain a warning that a failure to comply with the notice is an offence.
(3)  A rail safety officer may inspect a document produced in response to a notice under this section and may make copies of, or take extracts from, the document.
(4)  A rail safety officer may take possession, and retain possession for as long as is necessary for the purposes of this Act, of a document produced in response to a notice under this section if the person otherwise entitled to possession of the document is supplied, as soon as practicable, with a copy certified by a rail safety officer to be a true copy.
(5)  A certified copy provided under subsection (4) is receivable in all courts as if it were the original.
(6)  Until a certified copy of a document is provided under subsection (4), the rail safety officer who has possession of the document must, at such times and places as the officer thinks appropriate, permit the person otherwise entitled to possession of the document, or a person authorised by that person, to inspect the document and make copies of, or take extracts from, the document.
107   Failure to comply with notice
A person given a notice under section 106 must comply with the requirement unless the person has a reasonable excuse.
Maximum penalty: 500 penalty units and, in the case of a continuing offence, a further penalty of 250 penalty units for each day the offence continues.
Division 7 Miscellaneous
108   Directions may be given under more than one provision
(1)  A rail safety officer may, on the same occasion, give directions under one or more provisions of this Part.
(2)  Without limiting subsection (1), a rail safety officer may, in the course of exercising powers under a provision of this Part, take any of the following actions:
(a)  give further directions under the provision,
(b)  give directions under one or more other provisions of this Part.
109   Temporary closure of railway crossings
(1)  An authorised person may close temporarily, or regulate, a railway crossing for crossing or passing over or under a railway if satisfied it is necessary because of an immediate threat to safety.
(2)  If an authorised person decides to close temporarily, or regulate, a railway crossing, the authorised person must, before its closure or regulation or, in the case of an immediate threat to safety, as soon as practicable after its closure or regulation:
(a)  cause a notice of the proposed closure or regulation to be published in a local newspaper circulating in the area in which the railway crossing is situated, and
(b)  notify Roads and Maritime Services and the council of the area concerned of the proposed closure or regulation.
(3)  In this section:
authorised person means a person who holds a specific authority from the ITSRR for the purposes of this section.
railway crossing means a level crossing, bridge or another structure used to cross over or under a railway.
110   Restoring rail infrastructure and rolling stock etc to original condition after action taken
(1)  If:
(a)  a rail safety officer, or a person assisting the officer, takes any action in the exercise or purported exercise of any power under this Part in relation to rail infrastructure or rolling stock, railway premises or a motor vehicle, and
(b)  damage is caused by the unreasonable exercise of the power or by the use of force that was not authorised under this Part,
the rail safety officer must take reasonable steps to return the rail infrastructure or rolling stock, railway premises or motor vehicle to the condition it or they were in immediately before the action was taken.
(2)  The ITSRR must pay compensation for any damage caused by any rail safety officer in the exercise of a power to enter railway premises under this Part, other than damage arising from work done for the purpose of an inspection that reveals that there has been a contravention of this or any other Act or law.
111   Use of force
A power conferred by this Part to enter any railway premises, or to do anything in or on any railway premises, may not be exercised unless the rail safety officer or a person assisting an officer proposing to exercise the power uses no more force than is reasonably necessary to effect the entry or to do the thing for which the entry is effected.