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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Repealed version for 7 December 2012 to 19 January 2013 (accessed 21 August 2017 at 09:01)
Part 4 Division 3
Division 3 Disclosure of train safety records
75   Definitions
In this Division:
train safety record means any or all of the following:
(a)  all statements (whether oral or in writing) taken from persons by a rail safety officer or other person for the purposes of a rail safety inquiry or an investigation under section 67, including any record of any such statement,
(b)  all communications (other than a train safety recording or a transcript of a train safety recording) between persons involved in the operation of a train,
(c)  medical or private information regarding persons (including deceased persons) involved in an accident or incident the subject of a rail safety inquiry,
(d)  train safety recordings and transcripts of train safety recordings,
(e)  any information collected for the purposes of a rail safety inquiry or an investigation under section 67.
train safety recording means a recording consisting of (or mainly of) sounds or images or data, or any combination of sounds, images or data, produced by a device installed in a train, a signal box, a train control complex or other railway premises for the purpose of recording operational activities carried out by rail safety workers operating a train and other persons.
76   Disclosure of train safety record to Commonwealth or Commonwealth authority
(1)  Despite any other provision of this Division, the ITSRR, Chief Investigator, a member of a Board of Inquiry or a person who is or was a rail safety officer or any other person may, with the consent of the Minister, disclose to the Commonwealth or a Commonwealth authority the whole or part of a train safety record.
(2)  The Minister may not consent to a disclosure under this section unless the Minister is of the opinion that it is in the public interest to do so.
77   Disclosure of train safety records (other than train safety recordings) to a court or person
(1)  The ITSRR, Chief Investigator, a member of a Board of Inquiry or a person who is or was a rail safety officer must not, except for the purposes of this Division, directly or indirectly:
(a)  disclose to any person, or to a court, the whole or part of a train safety record, or
(b)  produce to any person, or to a court, the whole or any part of a train safety record.
Maximum penalty: 100 penalty units.
(2)  This section does not apply to or in respect of the following:
(a)  a train safety record that is a train safety recording,
(b)  criminal proceedings, investigations relating to a criminal offence, investigations by or proceedings before the coroner, or a proceeding relating to bail,
(c)  disclosure of a train safety record that is permitted under this Act or the regulations,
(d)  disclosure in accordance with an order of the Supreme Court referred to in subsection (4).
(3)  A person may apply to the Supreme Court for an order that a train safety record must be disclosed to a court or produced to a court.
(4)  The Supreme Court must order the disclosure or production of the train safety record if it is satisfied that the public interest in the disclosure outweighs the adverse impact the disclosure or production may have on the inquiry or investigation to which the record relates or any future inquiries or investigations.
(5)  If the Supreme Court makes an order under subsection (4), the Court must also make an order that restricts access to the train safety record to:
(a)  the person or persons constituting the court, and
(b)  the parties to the proceedings (including any interveners), and
(c)  the parties’ legal representatives, and
(d)  specified witnesses for the purposes of the proceedings,
unless the Court is satisfied that such an order would not be in the interests of justice or would not be desirable in the interests of the court performing its functions.
78   Disclosure of train safety recordings
A person must not publish or communicate to any person:
(a)  a train safety recording or any part of a train safety recording, or
(b)  any information obtained from a train safety recording or any part of a train safety recording,
otherwise than in the course of an inquiry or an investigation into an accident or incident under this Part or for the purposes of, or in connection with:
(c)  criminal proceedings (not being criminal proceedings in which it is not admissible), investigations relating to any such criminal proceedings or investigations by or proceedings before the coroner, or
(d)  civil proceedings in which an order is made under section 80, or
(e)  a disclosure or publication that is permitted under this Act or the regulations.
Maximum penalty: 100 penalty units.
79   Evidence of train safety recordings in criminal proceedings
A train safety recording is not admissible in evidence in any criminal proceedings against a rail safety worker.
80   Evidence of train safety recordings in civil proceedings
(1)  A train safety recording is not admissible in evidence in any civil proceedings against a rail safety worker.
(2)  A party to civil proceedings may, at any time before the determination of the proceedings, apply to the court in which the proceedings have been instituted for an order that a train safety recording, or part of a train safety recording, be admissible in evidence in the proceedings.
(3)  If an application is made to a court under subsection (2), the court must:
(a)  examine the train safety recording, and
(b)  if it is satisfied:
(i)  that a material question of fact in the proceedings will not be able to be properly determined from other evidence available to the court, and
(ii)  that the train safety recording, or a part of the train safety recording, if admitted in evidence in the proceedings, will assist in the proper determination of that material question of fact, and
(iii)  that, in the circumstances of the case, the public interest in the proper determination of that material question of fact outweighs the public interest in protecting the privacy of rail safety workers,
the court may order that the train safety recording, or that part of the train safety recording, be admissible in evidence in the proceedings.
(4)  If the court makes an order referred to in subsection (3), the train safety recording is, despite subsection (1), admissible in evidence in the proceedings.
81   Examination by a court of train safety recording
(1)  This section applies if a court examines a train safety recording under section 80.
(2)  The only persons who may be present at the examination are:
(a)  the person or persons constituting the court, other than the members of the jury (if any), and
(b)  the legal representatives of the parties to the proceedings, and
(c)  such other persons (if any) as the court directs.
(3)  The court may direct that the train safety recording or the part of the train safety recording, or any information obtained from the recording or part of the recording, must not:
(a)  be published or communicated to any person, or
(b)  be published or communicated except in such manner, and to such persons, as the court specifies.
(4)  The train safety recording, or that part of the train safety recording, is not evidence for the purpose of the determination of the liability in the proceedings of a rail safety worker the subject of a recording.
(5)  If there are 2 or more defendants in the proceedings of whom at least one is a rail safety worker the subject of a recording and the remaining defendant or defendants are not rail safety workers the subject of a recording, the train safety recording, or that part of the train safety recording, is evidence for the purpose of determining whether or not any rail safety worker has been negligent for the purposes only of determining the liability in the proceedings of any defendant who is not a rail safety worker the subject of a recording.
82   Compliance with subpoenas and other directions
(1)  The ITSRR, Chief Investigator, a member of a Board of Inquiry, an assessor or a person who is or was a rail safety officer or an officer of the ITSRR or the Ministry of Transport is not obliged to comply with a subpoena or similar direction of a court in relation to civil proceedings to:
(a)  attend and answer questions relating to an accident or incident or other event, occurrence, practice or matter the subject of the rail safety inquiry or an investigation under section 67, or
(b)  attend and produce any part of a train safety record relating to any such accident or incident,
within 6 months after the day of the accident or incident.
(2)  A person who has obtained a subpoena or similar direction from a court that does not have to be complied with because of subsection (1) may apply to that court for an order that the subpoena or similar direction be complied with.
(3)  If the court is satisfied that, in the circumstances of the case, it is desirable, in either the interests of justice or the performance by the court of its functions, for the officer or person to attend and answer questions or to attend and produce train safety records within 6 months after the day of the accident or incident, the court must order that the officer or person comply with the subpoena or similar direction.
83   Admissibility of other evidence and liability
(1)  Nothing in this Division affects the admissibility in any proceedings of evidence of words spoken by a rail safety worker other than evidence constituted by a train safety recording or a transcript or summary of a train safety recording.
(2)  No liability is incurred by the State and no personal liability is incurred by, or by any person acting at the direction of, the Minister, the ITSRR, the Chief Investigator or a member of a Board of Inquiry in respect of anything done in good faith in connection with the preparation or making public of a report, or the disclosure or publication of information, under this Division.
(3)  No liability is incurred by a person for publishing in good faith:
(a)  a report made public, or information published by the ITSRR, Chief Investigator or a member of a Board of Inquiry, under this Division, or
(b)  a fair report or summary of any such report or information.
(4)  In this section:
liability includes liability for defamation.
the State includes the Crown in right of the State and the Government of the State.