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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Repealed version for 7 December 2012 to 19 January 2013 (accessed 1 May 2017 at 04:41)
Part 6 Division 2
Division 2 Prohibition notices
117   Prohibition notice
(1)  This section applies to an activity that:
(a)  is occurring in relation to railway operations or railway premises that involves or will involve an immediate risk to safety, or
(b)  may occur in relation to railway operations or railway premises and, if it occurs, will involve an immediate risk to safety, or
(c)  may occur at, on, or in the immediate vicinity of, rail infrastructure or rolling stock and, if it occurs, will involve an immediate risk to safety.
(2)  If a rail safety officer believes on reasonable grounds that an activity to which this section applies is occurring or may occur, the rail safety officer may serve on a person who has or appears to have control over the activity a prohibition notice prohibiting the carrying on of the activity, or the carrying on of the activity in a specified way, until the rail safety officer has certified in writing that the matters that give or will give rise to the risk have been remedied.
(3)  A prohibition notice has effect on being served or, if the notice specifies a later date, on that later date.
(4)  A prohibition notice must:
(a)  state the basis for the rail safety officer’s belief on which the service of the notice is based, and
(b)  specify the activity which the rail safety officer believes involves or will involve the risk and the matters which give or will give rise to the risk, and
(c)  if the rail safety officer believes that the activity involves a contravention or likely contravention of a provision of a rail safety law, specify that provision and state the basis for that belief, and
(d)  include information about the right to a review under Division 3 of the decision to serve the notice, and
(e)  set out the penalty for contravening the notice, and
(f)  include a statement of the effect of section 121 (Proceedings for offences not affected by prohibition notices), and
(g)  state that it is served under this section.
(5)  A prohibition notice may include directions on the measures to be taken to minimise or eliminate the risk, activities or matters to which the notice relates, or the contravention or likely contravention mentioned in subsection (4) (c).
(6)  A direction in a prohibition notice may:
(a)  require that measures be taken in accordance with a compliance code, or
(b)  offer the person on whom the notice has been served a choice of ways to remedy the risk, activities or matters to which the notice relates, or the contravention or likely contravention mentioned in subsection (4) (c).
(7)  A prohibition notice that prohibits the carrying on of an activity in a specified way may do so by specifying one or more of the following:
(a)  a place, or part of a place, at which the activity is not to be carried out,
(b)  any thing that is not to be used in connection with the activity,
(c)  any procedure that is not to be followed in connection with the activity.
118   Contravention of prohibition notice
A person on whom a prohibition notice is served must comply with the notice unless the person has a reasonable excuse.
Maximum penalty:
(a)  in the case of a corporation (being a previous offender)—1,500 penalty units, or
(b)  in the case of a corporation (not being a previous offender)—1,000 penalty units, or
(c)  in the case of an individual not acting in the capacity of an employee (being a previous offender)—750 penalty units, or
(d)  in the case of an individual not acting in the capacity of an employee (not being a previous offender)—500 penalty units, or
(e)  in the case of an individual acting in the capacity of an employee (being a previous offender)—45 penalty units, or
(f)  in the case of an individual acting in the capacity of an employee (not being a previous offender)—30 penalty units.
119   Oral direction before prohibition notice served
(1)  If a rail safety officer:
(a)  believes on reasonable grounds that an activity referred to in section 117 (1) is occurring or may occur, and
(b)  that it is not possible or reasonable to serve a prohibition notice under that section immediately,
the officer may direct a person who has or appears to have control over the activity to do or not to do a stated act by telling the person:
(c)  to do or not to do the stated act, and
(d)  the reason the direction is being given.
(2)  A person to whom a direction is given under subsection (1) must comply with it, unless the person has a reasonable excuse.
Maximum penalty: 750 penalty units.
(3)  It is a reasonable excuse if the rail safety officer did not tell the person that the person commits an offence if the person does not comply with the direction.
(4)  A direction given under this section ceases to have effect if a rail safety officer does not, within 5 days of giving the direction, serve a prohibition notice in respect of the activity.
120   Withdrawal or amendment of prohibition notice
(1)  A prohibition notice served by a rail safety officer:
(a)  may be withdrawn by notice served by a rail safety officer on the person affected by the notice, and
(b)  may be amended by notice served by a rail safety officer on the person affected by the notice.
(2)  An amendment of a prohibition notice is effected by service on the person affected of a notice stating the terms of the amendment.
(3)  An amendment of a prohibition notice is ineffective if it purports to deal with a contravention of a different provision of a rail safety law from that dealt with in the prohibition notice as first served.
(4)  A notice of an amendment of a prohibition notice must:
(a)  state the reasons for the amendment, and
(b)  include information about obtaining a review under Division 3 of the decision to amend the notice, and
(c)  state that it is served under this section.
121   Proceedings for offences not affected by prohibition notices
The service, amendment or withdrawal of a prohibition notice does not affect any proceedings for an offence against a rail safety law in connection with any matter in respect of which the prohibition notice was served.