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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Repealed version for 7 December 2012 to 19 January 2013 (accessed 23 May 2017 at 01:41)
Schedule 3
Schedule 3 Savings, transitional and other provisions
(Section 177)
Part 1 General
1   Regulations
(1)  The regulations may contain provisions of a savings or transitional nature consequent on the enactment of the following Acts:
this Act
(2)  Any such provision may, if the regulations so provide, take effect from the date of assent to the Act concerned or a later date.
(3)  To the extent to which any such provision takes effect from a date that is earlier than the date of its publication in the Gazette, the provision does not operate so as:
(a)  to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of its publication, or
(b)  to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the date of its publication.
Part 2 Provisions consequent on enactment of this Act
2   Definitions
In this Part:
continuing operator means a person taken to be an accredited person under clause 5.
existing accreditation means an accreditation (including a provisional accreditation) in force under the former Act immediately before the commencement of section 37 of this Act.
the former Act means the Rail Safety Act 2002.
3   Safety management system
(1)  A continuing operator is not required to comply with section 12 (1), (2) and (5) of this Act until 12 months after the commencement of that section.
(2)  Until a continuing operator complies with section 12 (1), (2) and (5) of this Act, the following agreements, programs and systems of the operator continue in force and are taken to be the safety management system of the operator:
(a)  the safety interface agreements of the operator,
(b)  the passenger security policy and plan referred to in section 13 of the former Act,
(c)  the safety management system referred to in section 14 of the former Act,
(d)  the drug and alcohol program referred to in section 42 of the former Act,
(e)  the fatigue management program referred to in section 43 of the former Act.
(3)  Nothing in this clause prevents an agreement, system or program referred to in subclause (2) from being varied and section 12 (3) of this Act applies to any proposed variation.
4   Interface co-ordination—roads authorities
A roads authority for a road is not required to comply with Division 3 of Part 2 until 3 years after the commencement of that Division.
5   Existing accreditations continued
(1)  A person who, immediately before the commencement of Part 3 of this Act, was the holder of an existing accreditation is taken to be an accredited person for the purposes of this Act and the provisions of this Act and the regulations apply accordingly.
(2)  The accreditation of the continuing operator is taken to have been granted under this Act and continues in force, subject to the same terms as in force immediately before that commencement, until it is varied, surrendered, suspended or revoked under this Act.
(3)  Except as provided by this Part, or by a condition imposed on the accreditation of the continuing operator by the ITSRR, the operator is not required to comply with any provision of this Act relating to applications for accreditation under this Act.
(4)  An accreditation that, immediately before the commencement of section 53 of this Act, was suspended under the former Act is taken to have been suspended under section 53 of this Act.
(5)  For the purposes of this Act, the date of the anniversary of a continuing operator’s accreditation is taken to be the anniversary of the operator’s accreditation under the former Act.
6   Persons newly required to be accredited
(1)  This clause applies to a rail transport operator who is required to be accredited under this Act for railway operations carried out by the person immediately before the commencement of Part 3 of this Act and for which accreditation was not required immediately before that commencement.
(2)  A rail transport operator, or any person who carries out those railway operations, or causes or permits those operations to be carried out, for or on behalf of the operator, is not required to be accredited under this Act for those operations or to comply with Division 2 or 3 of Part 2 in relation to those operations.
(3)  Despite subclause (2), the ITSRR may, by notice in writing to the rail transport operator or person, require the operator or person to comply with any of the provisions of Division 2 or 3 of Part 2 in relation to the operations concerned.
(4)  This clause ceases to have effect on the second anniversary of the commencement of this clause or on such later day as may be prescribed by the regulations.
7   Existing exemptions continued
(1)  An exemption given under section 21 of the former Act, and in force immediately before the repeal of that section, continues in force for the period specified in the exemption.
(2)  This clause only applies to the extent that a requirement of the former Act that is the subject of any such exemption continues to apply to or in respect of a person under this Act.
8   Cancellation of existing accreditations
(1)  The ITSRR may, for the purpose of consolidating continuing accreditations held by a person or updating the railway operations to which a continuing accreditation applies, cancel a continuing accreditation and issue a new accreditation.
(2)  Except as provided by this Schedule, or by a condition imposed on the accreditation of the continuing operator by the ITSRR, the operator is not required to comply with any provision of this Act relating to applications for accreditation under this Act.
(3)  The ITSRR may issue or cancel an accreditation under this clause without complying with a requirement of Part 3 of this Act, if it thinks it appropriate to do so.
(4)  A decision by the ITSRR to cancel or issue an accreditation under this clause is a reviewable decision for the purposes of section 157.
9   Persons no longer required to be accredited
Nothing in this Part continues in force an accreditation if the person who was accredited under the former Act is not required by this Act to be accredited for the railway operations conducted by the person.
10   Existing applications
(1)  An application for an accreditation or surrender or variation of an accreditation under the former Act that was not determined immediately before the commencement of this clause is taken to be an application for accreditation or surrender or variation of an accreditation made under this Act and this Act applies accordingly.
(2)  An application made under section 22 of the former Act that was not determined immediately before the commencement of this clause is to be dealt with under section 41 of this Act.
(3)  An application made under section 24 of the former Act that was not determined immediately before the commencement of this clause is taken to be an application under section 45 of this Act.
11   Private sidings
(1)  An agreement in force under section 23 of the former Act immediately before the commencement of this clause between the owner of a private siding and an accredited person continues to have effect until it is terminated under the agreement or by other lawful means.
(2)  A rail infrastructure owner of a private siding that, immediately before the commencement of section 60 of this Act, was connected with, or had access to, a railway of an accredited person or a siding is not required to register that siding under section 60.
(3)  Subclause (2) ceases to have effect on the second anniversary of the commencement of this clause or on such later day as may be prescribed by the regulations.
12   Rail safety workers
(1)  A continuing operator is not required to assess the competence of rail safety workers under section 21 (2) of this Act if the workers are the subject of certificates of competency issued under section 36 of the former Act (whether before or after the commencement of section 21 of this Act).
(2)  A certificate of competency that is in force under section 36 of the former Act is taken to be a sufficient form of identification for the purposes of section 22 of this Act.
(3)  For the purposes of this clause, section 36 of the former Act, and any guidelines issued for the purposes of that section, continue in force.
(4)  New guidelines may be issued by the ITSRR for the purposes of section 36 of the former Act, as continued in force, and any such guidelines and any guidelines continued in force may be varied or revoked by the ITSRR.
(5)  It is a condition of accreditation of a rail transport operator that the rail transport operator comply with a guideline in force under this clause.
(6)  For the purposes of issuing a certificate of competency under section 36 of the former Act, a rail transport operator may have regard to a positive test to the presence of alcohol or another drug, whether the test was taken before or after the commencement of this clause.
(7)  This clause ceases to have effect on the second anniversary of the commencement of this clause or on such later day as may be prescribed by the regulations.
13   Authorised officers and drug testers
(1)  On the commencement of this subclause, a person who was an authorised officer under the former Act immediately before that commencement is taken to be a rail safety officer for the same purposes under this Act for a period of 12 months after that commencement. Any identity card issued to any such officer under the former Act is taken to have been issued under this Act.
(2)  On the commencement of regulations made under Schedule 1, a person authorised under the Rail Safety (Drug and Alcohol Testing) Regulation 2003 is taken to be authorised, for a period of 12 months, under those regulations for the same purposes as the person was authorised immediately before that commencement.
14   Applications to Administrative Decisions Tribunal
Nothing in this Act affects an application for a review made to the Administrative Decisions Tribunal under the former Act before the commencement of this clause.
15   Annual fees
The repeal of the former Act does not affect the liability of an accredited person in respect of a fee fixed under Division 4 of Part 2 of the former Act.
16   Inquiries and investigations
(1)  The repeal of the former Act does not affect any inquiry or investigation of any notifiable occurrence, railway accident or railway incident that commenced before the commencement of this clause, or anything done or required to be done under the former Act in connection with any such inquiry or investigation, and the provisions of the former Act continue to apply accordingly.
(2)  A notifiable occurrence, railway accident or railway incident that occurred before the commencement of this clause may be the subject of an inquiry or investigation under this Act.
17   Existing notices to provide safety information
A notice given under section 63 of the former Act, and having effect immediately before the repeal of that section, continues to have effect and that section continues to apply accordingly.
18   Improvement and prohibition notices
Nothing in this Act affects the operation and enforcement, or review, of an improvement or prohibition notice having effect immediately before the commencement of this clause and the provisions of the former Act continue to apply accordingly.
19   Authority to take proceedings
A person who is authorised to take proceedings under section 104 of the former Act immediately before the commencement of section 134 of this Act is taken to have been so authorised under section 134 of this Act and this Act applies accordingly.
20   Information sharing arrangements
An information sharing arrangement entered into by the ITSRR under section 109 of the former Act, and in force immediately before the commencement of section 156 of this Act, is taken to have been entered into under section 156 of this Act and this Act applies accordingly.
21   Proceedings for offences
The amendment of section 132 by the Passenger Transport Amendment (Ticketing and Passenger Conduct) Act 2012 does not affect its operation in relation to proceedings for offences committed, or alleged to have been committed, before the repeal of section 131 and any such proceedings may continue to be dealt with as if section 132 had not been so amended.