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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Repealed version for 7 December 2012 to 19 January 2013 (accessed 24 August 2017 at 18:52)
Part 4 Division 2
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.