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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Repealed version for 7 December 2012 to 19 January 2013 (accessed 1 May 2017 at 04:35)
Part 9
Part 9 Miscellaneous
155   Act to bind Crown
This Act binds the Crown in right of New South Wales and, in so far as the legislative power of the Parliament of New South Wales permits, the Crown in all its other capacities.
156   Exchange of information
(1)  The ITSRR may enter into an arrangement (an information sharing arrangement) with a relevant agency for the purposes of sharing or exchanging information held by the ITSRR and the agency.
(2)  The information to which an information sharing arrangement may relate is limited to the following:
(a)  information concerning possible breaches of this Act or the regulations,
(b)  information concerning the safe carrying out of railway operations,
(c)  any other information that may be prescribed by the regulations.
(3)  Under an information sharing arrangement, the ITSRR and the relevant agency are, despite any other Act or other law of the State, authorised:
(a)  to request and receive information held by the other party to the arrangement, and
(b)  to disclose information to the other party,
but only to the extent that the information is reasonably necessary to assist in the exercise of functions of the ITSRR under this Act (or any other Act administered by the Minister, whether solely or jointly with another Minister) or the functions of the relevant agency concerned.
(4)  This section does not limit the operation of any Act under which the ITSRR or a relevant agency is authorised or required to disclose information to another person or body.
(5)  This section does not permit the disclosure of information in contravention of section 64.
(6)  In this section:
relevant agency means:
(a)  the WorkCover Authority constituted by the Workplace Injury Management and Workers Compensation Act 1998, or
(b)  the Chief Investigator, or
(c)  any other person or body prescribed by the regulations.
157   Reviewable decisions
The following table sets out:
(a)  decisions made under this Act that are reviewable in accordance with this Part (reviewable decisions), and
(b)  who is eligible to apply for review of a reviewable decision (the eligible person in relation to the reviewable decision).
Item
Provision under which reviewable decision is made
Eligible person in relation to reviewable decision
1
Section 24 (1) (direction to amend safety management system)
A rail transport operator given a direction to amend a safety management system
2
Section 42 (1) (refusal to accredit or imposing conditions or restrictions on accreditation)
A rail transport operator whose application for accreditation is refused or is subject to conditions or restrictions
3
Section 42 (extending the period for determining an application)
A rail transport operator who has applied for accreditation
4
Section 53 (suspension or revocation of accreditation)
A rail transport operator whose accreditation is revoked or suspended
5
Section 54 (1) (immediate suspension of accreditation)
A rail transport operator whose accreditation is suspended
6
Section 54 (extension of immediate suspension)
A rail transport operator whose accreditation is suspended
7
Section 56 (1) (grant of variation of accreditation subject to conditions or restrictions)
A rail transport operator whose accreditation is varied subject to a condition or restriction
8
Section 56 (1) (refusal to grant variation of accreditation)
A rail transport operator whose application for variation of accreditation is refused
9
Section 56 (extending the period for determining an application for variation)
A rail transport operator who has applied for variation of accreditation
10
Section 57 (3) (refusal to grant variation of condition or restriction of accreditation)
A rail transport operator whose application for variation of a condition or restriction is refused
11
Section 58 (1) (variation or revocation of a condition or restriction, or imposition of a new condition or restriction)
A rail transport operator whose conditions or restrictions of accreditation are changed
12
Section 100 (1) (c) (retention of sample or seized thing to prevent commission of offence)
A person who is an owner within the meaning of section 100 (4) of the sample or thing
158   Review by ITSRR and ADT
(1)  An eligible person:
(a)  in relation to a reviewable decision made by the ITSRR may apply to the ITSRR for a review of the decision within 28 days after the decision was made, or
(b)  in relation to a reviewable decision, other than a decision made by the ITSRR, may apply to the ITSRR for a review of the decision within:
(i)  28 days after the day on which the decision first came to the eligible person’s notice, or
(ii)  such longer period as the ITSRR allows.
(2)  The application must be in the approved form.
(3)  If an application is made to the ITSRR in accordance with this section, the ITSRR must make a decision:
(a)  to affirm or vary the reviewable decision, or
(b)  to set aside the reviewable decision and substitute another decision that the ITSRR considers appropriate.
(4)  The ITSRR must give a written notice to the applicant setting out:
(a)  the ITSRR’s decision under subsection (3) and the reasons for the decision, and
(b)  the findings on material questions of fact that led to the decision, referring to the evidence or other material on which those findings were based,
and must do so within 14 days after the application is made or, if the reviewable decision was made under section 100, within 7 days after the application is made.
(5)  If the ITSRR has not notified an applicant of a decision in accordance with subsection (4), the ITSRR is taken to have made a decision to affirm the reviewable decision.
(6)  An application under this section does not affect the operation of the reviewable decision or prevent the taking of any action to implement it unless the ITSRR, on the ITSRR’s own initiative or on the application of the applicant for review, stays the operation of the decision (not being a prohibition notice) pending the determination of the review.
(7)  The ITSRR must make a decision on an application for a stay within 24 hours after the making of the application.
(8)  If the ITSRR has not made a decision in accordance with subsection (7), the ITSRR is taken to have made a decision to grant a stay.
(9)  The ITSRR may attach any conditions to a stay of the operation of a reviewable decision that the ITSRR considers appropriate.
(10)  An eligible person aggrieved by a reviewable decision may appeal to the Administrative Decisions Tribunal against the decision, if the ITSRR has notified the person of a decision under subsection (4) or subsection (5) applies.
(11)  Section 53 of the Administrative Decisions Tribunal Act 1997 does not apply to a reviewable decision.
159   Protection from incrimination
(1) Self-incrimination not an excuse A person is not excused from a requirement under Division 2 of Part 4 or Part 5 to make a statement, to give or furnish information, to answer a question or to produce a document on the ground that the statement, information, answer or document might incriminate the person or make the person liable to a penalty.
(2) Statement, information or answer not admissible if objection made However, any statement made or any information or answer given or furnished by a natural person in compliance with a requirement under this Act is not admissible in evidence against the person in criminal proceedings (except proceedings for an offence under Part 5 or section 126 or in respect of false information) if:
(a)  the person objected at the time to doing so on the ground that it might incriminate the person, or
(b)  the person was not warned at an appropriate time that the person may object to making the statement or giving or furnishing the information or answer on the ground that it might incriminate the person.
(3) Appropriate time for giving warning about incrimination An appropriate time for warning a person as referred to in subsection (2) (b) is any of the following times:
(a)  the time when the requirement to make the statement or to give or furnish the answer or information is made,
(b)  in the case of evidence required to be given when appearing before a rail safety officer or other person, any time after the start of the appearance before the rail safety officer or person,
(c)  at or about the time immediately before the person makes the statement or gives or furnishes the answer or information.
(4) Documents admissible Any document produced by a person in compliance with a requirement under Division 2 of Part 4 or Part 5 is not inadmissible in evidence against the person in criminal proceedings on the ground that the document might incriminate the person.
(5) Further information Further information obtained as a result of a document produced, a statement made or information or an answer given or furnished in compliance with a requirement under Division 2 of Part 4 or Part 5 is not inadmissible on the ground:
(a)  that the document, statement, information or answer had to be produced, made, given or furnished, or
(b)  that the document, statement, information or answer might incriminate the person.
160   Records and evidence from records
(1)  The ITSRR must keep records of the grant, refusal, variation, suspension, surrender and revocation of accreditations, and of any conditions or restrictions of accreditations, and of improvement notices and prohibition notices, under this Act.
(2)  A certificate purporting to be signed by the ITSRR and certifying that:
(a)  on a date specified in the certificate, or
(b)  during any period so specified,
the particulars set out in the certificate as to any matter required to be recorded under this section did or did not appear on or from the records is, for the purposes of any legal proceedings, evidence of what it certifies.
(3)  Such a certificate is admissible in any proceedings:
(a)  without proof of the signature of the ITSRR, and
(b)  without production of any record or document on which the certificate is founded.
161   Certificate evidence
A statement in a certificate purporting to be issued by the ITSRR, a corresponding Rail Safety Regulator, a rail safety officer or a police officer as to any matter that appears in, or can be calculated from, records kept or accessed by the ITSRR is admissible in any proceedings and is evidence of the matter.
162   Disclosure of information
(1)  This section applies to a person engaged or previously engaged in the administration of this Act and (without limiting the foregoing) to the following persons:
(a)  a rail safety officer or a person assisting a rail safety officer,
(b)  a person authorised by the ITSRR or a rail safety officer under a provision of this Act to do the act or thing provided for in that provision,
(c)  a person who is or was a delegate of the ITSRR,
(d)  a person who is or was employed by, or engaged to provide services to or on behalf of, the ITSRR,
(e)  a person who is or was employed by, or engaged to provide services to, a person or body engaged to provide services to the ITSRR.
(2)  A person to whom this section applies must not disclose or communicate information obtained (whether by that person or otherwise) in the administration of this Act except:
(a)  as required or authorised by or under this or any other Act, or
(b)  with the consent of the person from whom the information was obtained or to whom the information relates, or
(c)  in connection with the administration of rail safety laws and corresponding rail safety laws, or
(d)  for law enforcement purposes, rail safety inquiries or public safety, or
(e)  to a court or in connection with any legal proceedings, or
(f)  in accordance with the regulations.
Maximum penalty: 20 penalty units.
(3)  Nothing in this section prevents information being used to enable an Australian Rail Safety Regulator to accumulate aggregate data and to enable the Australian Rail Safety Regulator to authorise use of the aggregate data for the purposes of research or education.
163   Civil liability not affected by Part 2
(1)  Nothing in Part 2 is to be construed:
(a)  as conferring a right of action in any civil proceedings in respect of any contravention, whether by act or omission, of any provisions of that Part, or
(b)  as conferring a defence to an action in any civil proceedings or as otherwise affecting a right of action in any civil proceedings.
(2)  Subsection (1) does not affect the extent (if any) to which a breach of duty imposed by the regulations is actionable.
164   Exclusion of personal liability
No matter or thing done, or omitted to be done, by the Minister, the ITSRR, the Chief Investigator, a member of, or an assessor for, a Board of Inquiry, an officer of the ITSRR, a rail safety officer or a person acting under the direction of the Minister, the ITSRR, the Chief Investigator, a member or any such officer subjects the Minister, the ITSRR, the Chief Investigator, a member, an assessor or any such officer or person personally to any action, liability, claim or demand if the matter or thing was done, or omitted to be done, in good faith for the purposes of this or any other Act.
165   Exclusion of liability of the State
No act or omission of the Minister, the ITSRR, the Chief Investigator, a member of, or an assessor for, a Board of Inquiry, a rail safety officer or an officer of the ITSRR in the course of exercising functions (or failing to exercise functions) under this Act gives rise to any civil liability (including, for example, liability in negligence or for breach of statutory duty) against the State or any authority of the State.
166   Immunity for reporting unfit rail safety worker
(1)  No action may be taken against a person to whom this section applies who, in good faith, reports to:
(a)  the ITSRR, or
(b)  a rail transport operator, or
(c)  any other person to whom this section applies who is employed or engaged by the ITSRR or a rail transport operator,
any information which discloses that a person is unfit to carry out rail safety work or certain types of rail safety work or that it may be dangerous to allow that person to carry out rail safety work or certain types of rail safety work.
(2)  No action may be taken against a person to whom this section applies who, in good faith, reports:
(a)  the results of a test or examination carried out under this Act or the regulations, or
(b)  an opinion formed by that person as a result of conducting such a test or examination,
to a person referred to in subsection (1) (a), (b) or (c).
(3)  This section applies to the following persons:
(a)  a registered medical practitioner,
(b)  a registered optometrist,
(c)  a registered physiotherapist.
167   Approval of compliance codes and guidelines
(1)  For the purpose of providing practical guidance to persons who have duties or obligations under this Act or the regulations:
(a)  the Minister may make an order approving a compliance code, and
(b)  the ITSRR may make an order approving guidelines.
(2)  The Minister may make an order approving the variation of a compliance code or revoking the approval of a compliance code.
(3)  The ITSRR may make an order approving the variation of a guideline or revoking the approval of a guideline.
(4)  An order approving a compliance code or guidelines, or a variation or revocation order, takes effect when notice of it is published in the Gazette or on such later date as is specified in the order.
(5)  As soon as practicable after making an order approving a compliance code or guidelines, or a variation or revocation order, the Minister or ITSRR must ensure that notice of the making of the order is published in the Gazette.
(6)  The ITSRR must ensure that a copy of:
(a)  each compliance code that is currently approved, and
(b)  guidelines that are currently approved,
is or are available for inspection by members of the public without charge at the office of the ITSRR during normal business hours.
(7)  Sections 40 and 41 of the Interpretation Act 1987 apply to compliance codes in the same way that they apply to statutory rules.
Editorial note.
 For guidelines under this Act, see Gazettes No 160 of 24.12.2008, p 13150 and No 140 of 24.12.2010, pp 6260, 6261.
168   Use of compliance codes
In any proceedings for an offence against this Act or the regulations:
(a)  a compliance code that is relevant to any matter which it is necessary for the prosecution to prove to establish the commission of the offence by a person is admissible in evidence in those proceedings, and
(b)  the person’s failure at any material time to observe the code is evidence of the matter to be established in those proceedings.
169   Effect of compliance code
A person is not liable to any civil or criminal proceedings by reason only that the person has failed to observe a compliance code.
170   Recovery of certain costs
The ITSRR may recover from a rail transport operator the reasonable costs of the entry and audit of railway infrastructure, rolling stock or railway premises in respect of which the person is accredited, other than the costs of an audit of an accredited person under section 84.
171   Recovery of amounts due
Any fees, charges or other money payable under this Act or the regulations may be recovered by the ITSRR as a debt in any court of competent jurisdiction.
172   Contracting out prohibited
A term of any contract or agreement that purports to exclude, limit or modify the operation of this Act or of any provision of this Act is void to the extent that it would otherwise have effect.
173   Service of documents
(1)  A document that is authorised or required by this Act or the regulations to be served on any person may be served by:
(a)  in the case of a natural person:
(i)  delivering it to the person personally, or
(ii)  sending it by post to the address specified by the person for the giving or service of documents or, if no such address is specified, the residential or business address of the person last known to the person giving or serving the document, or
(iii)  sending it by facsimile transmission to the facsimile number of the person, or
(b)  in the case of a body corporate:
(i)  leaving it with a person apparently of or above the age of 16 years at, or by sending it by post to, the head office, a registered office or a principal office of the body corporate or to an address specified by the body corporate for the giving or service of documents, or
(ii)  sending it by facsimile transmission to the facsimile number of the body corporate.
(2)  Nothing in this section affects the operation of any provision of a law or of the rules of a court authorising a document to be served on a person in any other manner.
174   Regulations
(1)  The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act.
(2)  In particular, the regulations may make provision for or with respect to the following:
(a)  fees for the purposes of this Act or the regulations and the refund or waiver of such fees,
(b)  the safe operation and maintenance of historic or preserved rolling stock,
(c)  the safe construction, operation and maintenance of sidings (including private sidings),
(d)  the functions, training, health and fitness of rail safety workers,
(e)  tampering with, or damaging, railways,
(f)  the unauthorised use of railways and rolling stock,
(g)  the opening and closing of railway gates,
(h)  the regulation of vehicles, animals and pedestrians crossing railway tracks,
(i)  the regulation of railway crossings,
(j)  the loading and unloading of freight on railways,
(k)  the publication of statistics relating to rail safety,
(l)  the management of fatigue, including safe hours of work and periods between work for rail safety workers,
(m)  rules relating to railway network operations and operations of specified operators and the making of any such rules,
(n)  standards for railway operations, including standards for rolling stock, network control systems and other infrastructure of a railway,
(o)  requirements for registers of information to be kept by operators of railways under this Act including, but not limited to, the information that is to be held on the register and access to the register,
(p)  train safety recordings,
(q)  conditions of, or restrictions on, accreditation.
(3)  The regulations may exempt, or provide for the exemption of, either absolutely or subject to conditions, any person, class of persons, siding, railway, part of a railway or railway operation from all or any of the provisions of this Act or the regulations.
(4)  The regulations may apply, adopt or incorporate any publication as in force at a particular time or from time to time.
(5)  In the event of an inconsistency between a by-law or regulation made, or taken to be made, under the Transport Administration Act 1988 and a regulation made under this Act, the regulation made under this Act prevails to the extent of the inconsistency.
(6)  A regulation made under this Act does not limit the operation of a by-law or regulation made, or taken to be made, under the Transport Administration Act 1988 so far as it can operate concurrently with a regulation made under this Act.
(7)  The regulations may create offences punishable by a penalty not exceeding 250 penalty units.
175   Application of work health and safety legislation
(1)  If a provision of the work health and safety legislation applies to railway operations, that provision continues to apply, and must be observed, in addition to this Act and the regulations made under this Act.
(2)  If a provision of this Act or the regulations made under this Act is inconsistent with a provision of the work health and safety legislation, the provision of the work health and safety legislation prevails to the extent of any inconsistency.
(3)  Compliance with this Act or the regulations made under this Act, or with any requirement imposed under this Act or the regulations, is not in itself a defence in any proceedings for an offence against the work health and safety legislation.
Note.
 For example, a person may be guilty of an offence under the work health and safety legislation in respect of any act or omission that is expressly required or permitted to be done or omitted by or under this Act or the regulations made under this Act.
(4)  Where an act or omission constitutes an offence under this Act or the regulations made under this Act and:
(a)  under the work health and safety legislation, or
the offender is not liable to be punished twice in respect of the offence.
176   Repeal
The Rail Safety Act 2002 is repealed.
177   Savings, transitional and other provisions
Schedule 3 has effect.
178   (Repealed)
179   Review of Act
(1)  The Minister is to review this Act to determine whether the policy objectives of the Act remain valid and whether the terms of the Act remain appropriate for securing those objectives.
(2)  The review is to be undertaken as soon as possible after the period of 5 years from the date of assent to this Act.
(3)  A report on the outcome of the review is to be tabled in each House of Parliament within 12 months after the end of the period of 5 years.