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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Repealed version for 7 December 2012 to 19 January 2013 (accessed 25 September 2017 at 10:53)
Part 6
Part 6 Improvement and prohibition notices
Division 1 Improvement notices
112   Improvement notices
(1)  A rail safety officer may serve an improvement notice on a person if the officer believes on reasonable grounds that the person:
(a)  is contravening a provision of a rail safety law, or
(b)  has contravened a provision of a rail safety law and it is likely that the contravention will continue or be repeated, or
(c)  is carrying out or has carried out railway operations that threaten safety, or
(d)  is a roads authority responsible for a road or work that is part of a rail or road crossing that threatens the safety of railway operations.
(2)  An improvement notice may require the person, within the period specified in the notice:
(a)  to undertake remedial rail safety work or do any other thing to remedy the contravention or likely contravention, or the matters or activities occasioning the contravention or likely contravention, or
(b)  to carry out railway operations so that safety is not threatened or likely to be threatened.
(3)  An improvement notice may require a roads authority, within the period specified in the notice, to carry out operations in relation to the rail or road crossing so that safety is not threatened or likely to be threatened.
(4)  The period within which a person is required by the improvement notice to comply with the notice must be at least 7 days after service of the notice.
(5)  An improvement notice must:
(a)  state the reasons for the service of the notice, and
(b)  in the case of an improvement notice served in respect of a contravention or likely contravention of a rail safety law, specify the provision of the rail safety law in respect of which that belief is held, and
(c)  in the case of an improvement notice served on a person who is carrying out or has carried out railway operations that threaten safety, or on a roads authority in respect of a rail or road crossing that threatens safety, specify the operations or matters in respect of which that belief is held, 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 115 (Proceedings for offences not affected by improvement notices), and
(g)  state that it is served under this section.
(6)  An improvement notice served on a person on a ground stated in subsection (1) (a) or (b):
(a)  may specify a method by which the alleged contravention or likely contravention, or the matters or activities occasioning the alleged contravention or likely contravention, are to be remedied, and
(b)  may offer the person on whom the notice has been served a choice of ways by which an alleged contravention or likely contravention, or the matters or activities occasioning the alleged contravention or likely contravention, may be remedied, and
(c)  may specify that the person provide the ITSRR with a program of rail safety work that the person proposes to carry out to remedy the alleged contravention or likely contravention, or the matters or activities occasioning the alleged contravention or likely contravention, and
(d)  may include a timetable for the completion of the program of rail safety work.
(7)  An improvement notice served on a person on a ground stated in subsection (1) (c) or (d):
(a)  may specify a method by which railway operations or operations in relation to a rail or road crossing may be carried out so that safety is not threatened or likely to be threatened, and
(b)  may offer the person on whom the notice has been served a choice of ways by which operations may be carried out so that safety is not threatened or likely to be threatened, and
(c)  may specify that the person provide the ITSRR with a program of operations that the person proposes to carry out to remedy the threat or likely threat to safety, and
(d)  may include a timetable for the completion of the program of operations.
(8)  Words and expressions used in this section have the same meanings as they have in Division 3 of Part 2.
113   Contravention of improvement notice
(1)  A person on whom an improvement notice has been 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)—750 penalty units, or
(b)  in the case of a corporation (not being a previous offender)—500 penalty units, or
(c)  in the case of an individual not acting in the capacity of an employee (being a previous offender)—375 penalty units, or
(d)  in the case of an individual not acting in the capacity of an employee (not being a previous offender)—250 penalty units, or
(e)  in the case of an individual acting in the capacity of an employee (being a previous offender)—22.5 penalty units, or
(f)  in the case of an individual acting in the capacity of an employee (not being a previous offender)—15 penalty units.
(2)  In proceedings against a person for an offence of engaging in conduct that results in a contravention of a requirement of an improvement notice served on a ground stated in section 112 (1) (a) or (b), it is a defence if the defendant establishes that:
(a)  the alleged contravention or likely contravention, or
(b)  the matters or activities occasioning the alleged contravention or likely contravention,
were remedied within the period specified in the notice, though by a method different from that specified in the improvement notice.
(3)  In proceedings against a person for an offence of engaging in conduct that results in a contravention of a requirement of an improvement notice on the ground stated in section 112 (1) (c) or (d), it is a defence if the defendant establishes that the threat to safety was removed within the period specified in the notice, though by a method different from that specified in the improvement notice.
114   Withdrawal or amendment of improvement notices
(1)  An improvement 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 any rail safety officer by notice served on the person affected by the notice.
(2)  An amendment of an improvement notice is effected by service on the person affected of a notice stating the terms of the amendment.
(3)  An amendment of an improvement notice served on a person 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 improvement notice as first served.
(4)  A notice of an amendment of an improvement 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.
115   Proceedings for offences not affected by improvement notices
The service, amendment or withdrawal of an improvement notice does not affect any proceedings for an offence against a rail safety law in connection with any matter in respect of which the improvement notice was served.
116   ITSRR to arrange for rail safety work required by improvement notice to be carried out
(1)  If a person fails to comply with an improvement notice served on the person that requires the person to carry out rail safety work to remedy:
(a)  the alleged contravention or likely contravention, or
(b)  the matters or activities occasioning the alleged contravention or likely contravention,
the ITSRR may arrange for that rail safety work to be carried out.
(2)  The ITSRR may recover from the person served with an improvement notice referred to in subsection (1) the reasonable costs and expenses incurred by the ITSRR for any such rail safety work.
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.
Division 3 General provisions relating to notices
122   Review of notices by ITSRR
(1)  A person who is given a notice under this Part may apply in writing to the ITSRR for a review of the notice.
(2)  The application for review must be made within 28 days after the notice is given or, if the regulations prescribe a different period, within the period so prescribed.
(3)  An application for review may be made only once in respect of any particular notice.
(4)  The ITSRR is to review a notice that is the subject of a duly made application for review within 28 days after the application is made.
(5)  The notice is stayed (unless it is a prohibition notice) from when the application for review is received by the ITSRR until the ITSRR gives notice to the applicant of the result of the review.
(6)  The ITSRR may, as a result of the review, confirm the notice, vary it or revoke it. The confirmation, variation or revocation has effect when notice of the result of the review is given to the applicant.
(7)  Regulations may be made with respect to reviews under this section.
123   Appeal to Industrial Magistrate following review
(1)  An applicant who is not satisfied with the result of a review by the ITSRR of a notice under this Part may appeal against the notice to the Local Court constituted by an Industrial Magistrate.
(2)  An appeal to the Local Court under this section does not operate to stay the notice the subject of the appeal except as otherwise ordered by the Court.
(3)  The Local Court may, on the appeal, confirm the notice, vary it or revoke it.
(4)  Regulations may be made with respect to appeals under this section, including the time and manner in which such an appeal is to be made.
124   Application to Industrial Magistrate for stay of prohibition notice
(1)  If a person duly applies under this Part for review of a prohibition notice, the person may apply to the Local Court constituted by an Industrial Magistrate for a stay of the notice.
(2)  A stay may be granted for such period as the Local Court considers appropriate, but not so as to extend past the time when notice of the result of the review is given to the applicant by the ITSRR.
(3)  A stay may be granted on such conditions as the Local Court considers appropriate and may be revoked or amended by the Local Court.
125   Revocation or withdrawal of notice does not prevent issue of another notice
The revocation or withdrawal of a notice under this Part does not prevent the issue of any other notice.