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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Repealed version for 7 December 2012 to 19 January 2013 (accessed 24 September 2017 at 14:57)
Part 7
Part 7 Offences, penalties and other sanctions
Division 1 Offences
126   Obstructing or hindering rail safety officers
A person must not:
(a)  intentionally obstruct or hinder the ITSRR, a rail safety officer or a person assisting the ITSRR or a rail safety officer in the exercise of his or her functions under this Act or the regulations, or induce or attempt to induce any other person to do so, or
(b)  intentionally conceal from the ITSRR, a rail safety officer or a person assisting the ITSRR or a rail safety officer, the location or existence of, or fail to comply with a request to produce, a record, document or any other thing.
Maximum penalty: 1,000 penalty units.
127   Offence to impersonate rail safety officer
A person who is not a rail safety officer must not impersonate, or falsely represent that the person is, a rail safety officer.
Maximum penalty: 100 penalty units.
128   Offences involving accreditation
A person who:
(a)  by any false statement or misrepresentation, obtains or attempts to obtain any accreditation under this Act, or
(b)  forges or fraudulently alters or uses or purports to use any accreditation, or
(c)  fraudulently allows any such accreditation to be used by any other person,
is guilty of an offence.
Maximum penalty:
(a)  in the case of a corporation—5,000 penalty units, or
(b)  in the case of an individual—500 penalty units.
129   Notice to be given of certain matters
A person prescribed by the regulations for the purposes of this section must give notice to a rail transport operator, in the approved form and within the period prescribed by the regulations, of the commencement, or discontinuation, or completion of prescribed operations or activities that may adversely affect the safety of any rail infrastructure or rolling stock of a rail transport operator.
Maximum penalty: 100 penalty units.
130   Tampering with railway equipment
(1)  A person who tampers with or disables:
(a)  the emergency or safety equipment of a railway or of a unit or units of rolling stock, or
(b)  the interlocking system of a railway,
is guilty of an offence.
Maximum penalty: 1,000 penalty units or 3 years imprisonment, or both.
(2)  In this section:
emergency or safety equipment includes track and communication systems, closed circuit television cameras, emergency help points for passengers, safety signage, emergency breakdown equipment and alarms.
interlocking system means any lever or collection of levers, or electrical, electronic or mechanical device or devices, that operate or control points and signals, or signals, and that are interlocked to prevent conflicting movements of trains.
131   (Repealed)
Division 2 Proceedings for offences
132   Proceedings for offences
(1)  Proceedings for an offence under this Act or the regulations may be dealt with summarily:
(a)  before the Local Court, or
(b)  before the Industrial Court of New South Wales.
(2)  The maximum penalty that may be imposed by the Local Court in proceedings for an offence against this Act or the regulations (including any daily penalty) is 500 penalty units or imprisonment for 12 months, or both.
(3)  The provisions of the Industrial Relations Act 1996, and of the regulations under that Act, relating to appeals from the Local Court to the Industrial Relations Commission in Court Session in connection with offences against that Act apply to proceedings before the Local Court for offences against this Act or the regulations.
(4)  In any proceedings for an offence under this Act, the onus of proving that a person had a reasonable excuse is on the defendant.
133   Period within which proceedings for offences may be commenced
(1)  This section applies to an offence against a rail safety law, other than the following:
(a)  an offence under the regulations,
(b)  an offence in respect of which proceedings may only be commenced within a period of less than 2 years after its alleged commission,
(c)  any other offence prescribed by the regulations for the purposes of this section.
(2)  Despite anything to the contrary in any other Act, proceedings for an offence against a rail safety law to which this section applies may be commenced within:
(a)  2 years after the offence was committed, or
(b)  a further period of one year commencing on the day on which the ITSRR, a rail safety officer or a police officer first obtained evidence of the commission of the alleged offence considered reasonably sufficient by the ITSRR or officer to warrant commencing proceedings.
(3)  If a relevant inquiry is held and it appears from the report of the inquiry or proceedings at the inquiry that an offence has been committed against this Act or the regulations (whether or not the offender is identified), proceedings in respect of that offence may be instituted within 2 years after the date the report was made or the inquiry was concluded.
(4)  For the purposes of subsection (2), a certificate purporting to have been issued by the ITSRR, a rail safety officer or a police officer as to the date when the ITSRR or officer first obtained evidence considered reasonably sufficient by the ITSRR or officer to warrant commencing proceedings is admissible in any proceedings and is evidence of the matters stated.
(5)  In this section:
relevant inquiry means:
(a)  a coronial inquest or inquiry, or
(b)  a rail safety inquiry, or
(c)  an investigation by the Chief Investigator, or
(d)  an inquiry by the Australian Transport Safety Bureau, or
(e)  any other inquiry prescribed by the regulations.
134   Authority to take proceedings
(1)  Subject to this section, any legal proceedings for an offence against, or to recover any charge, fee or money due under, this Act or the regulations may be taken only by the ITSRR or by a person authorised by the ITSRR for the purpose, either generally or in any particular case.
(2)  Proceedings for an offence against this Act are not to be instituted in the Industrial Court of New South Wales without the written consent of the ITSRR or of an officer of the ITSRR authorised by the ITSRR for the purposes of this section.
(3)  Proceedings against the Crown or a statutory body representing the Crown for an offence against this Act or the regulations are not to be instituted without the written consent of the Minister.
(4)  In any proceedings referred to in this section, the production of an authority or consent purporting to be signed by the ITSRR or the Minister is to be evidence of the authority or consent without proof of the signature of the ITSRR or the Minister.
(5)  The ITSRR may, for the purposes of subsection (1), authorise any person who is a member of a specified class of persons to take the actions referred to in that subsection.
135   Multiple contraventions of general duties
(1)  More than one contravention of a provision of Part 2 or section 136 by a person that arise out of the same factual circumstances may be charged as a single offence or as separate offences.
(2)  This section does not authorise contraventions of 2 or more of those provisions to be charged as a single offence.
(3)  A single penalty only may be imposed in respect of more than one contravention of any such provision that is charged as a single offence.
136   Duty of officers
(1)  If a corporation has a duty or obligation under Part 2, an officer of the corporation must exercise due diligence to ensure that the corporation complies with that duty or obligation.
Maximum penalty: the same maximum penalty that is applicable to a failure by an individual to comply with the duty or obligation.
(2)  In this section, due diligence includes taking reasonable steps:
(a)  to acquire and keep up-to-date knowledge of rail safety matters, and
(b)  to gain an understanding of the nature of the rail operations of the corporation and generally of the risks associated with those operations, and
(c)  to ensure that the corporation has available for use, and uses, appropriate resources and processes to eliminate or minimise risks to safety from the rail operations of the corporation, and
(d)  to ensure that the corporation has appropriate processes for receiving and considering information regarding incidents and risks and responding in a timely way to that information, and
(e)  to ensure that the corporation has, and implements, processes for complying with any duty or obligation of the corporation under Part 2, and
(f)  to verify the provision and use of the resources and processes referred to in paragraphs (c)–(e).
(3)  A person may be proceeded against and convicted of an offence under subsection (1) whether or not the corporation has been proceeded against or has been convicted of an offence in relation to the duty or obligation.
(4)  An officer of a corporation who is a volunteer does not commit an offence under this section.
(5)  In this section:
corporation means any body corporate (including a body corporate representing the Crown).
officer means an officer within the meaning of section 9 of the Corporations Act 2001 of the Commonwealth, but does not include a Minister of the Crown acting in that capacity, an elected member of a local authority acting in that capacity or a partner in a partnership.
volunteer means a person who is acting on a voluntary basis (irrespective of whether the person receives out-of-pocket expenses).
137   Continuing offences
(1)  A person who is guilty of an offence because the person contravenes a requirement made by or under this Act or the regulations (whether the requirement is imposed by a notice or otherwise) to do or cease to do something (whether or not within a specified period or before a particular time):
(a)  continues, until the requirement is complied with and despite the fact that any specified period has expired or time has passed, to be liable to comply with the requirement, and
(b)  is guilty of a continuing offence for each day the contravention continues.
(2)  This section does not apply to an offence if the relevant provision of this Act or the regulations does not provide for a penalty for a continuing offence.
(3)  This section does not apply to the extent that a requirement of a notice is revoked.
138   Proceedings against the Crown and public authorities
(1)  Divisions 5 and 6 of Part 13 of the Work Health and Safety Act 2011 apply to offences against this Act or the regulations, and to proceedings for offences, in the same way as they apply to offences against that Act or the regulations under that Act.
(2)  Section 248 of the Work Health and Safety Act 2011 applies to improvement or prohibition notices under this Act in the same way as it applies to improvement or prohibition notices under that Act.
139   Penalty notices
(1)  An authorised officer may serve a penalty notice on a person if it appears to the officer that the person has committed an offence against this Act or the regulations, being an offence prescribed by the regulations as a penalty notice offence.
(2)  A penalty notice is a notice to the effect that, if the person served does not wish to have the matter determined by a court, the person can pay, within the time and to the person specified in the notice, the amount of the penalty prescribed by the regulations for the offence if dealt with under this section.
(3)  A penalty notice may be served personally or by post.
(4)  If the amount of penalty prescribed for an alleged offence is paid under this section, no person is liable to any further proceedings for the alleged offence.
(5)  Payment under this section is not to be regarded as an admission of liability for the purpose of, and does not in any way affect or prejudice, any civil claim, action or proceeding arising out of, the same occurrence.
(6)  The regulations may:
(a)  prescribe an offence for the purposes of this section by specifying the offence or by referring to the provision creating the offence, and
(b)  prescribe the amount of penalty payable for the offence if dealt with under this section, and
(c)  prescribe different amounts of penalties for different offences or classes of offences.
(7)  The amount of a penalty prescribed under this section for an offence is not to exceed the maximum amount of penalty that could be imposed for the offence by a court.
(8)  This section does not limit the operation of any other provision of, or made under, this or any other Act relating to proceedings that may be taken in respect of offences.
(9)  In this section, authorised officer means a person authorised in writing by the ITSRR as an authorised officer for the purposes of this section.
Division 3 Enforceable voluntary undertakings
140   ITSRR may accept undertakings
(1)  The ITSRR may accept (by written notice) a written undertaking given by a person in connection with a matter relating to a contravention or alleged contravention by the person of this Act or the regulations.
(2)  The person may withdraw or vary the undertaking at any time but only with the ITSRR’s written consent.
(3)  Neither the ITSRR nor a rail safety officer may bring proceedings for an offence against this Act or the regulations constituted by the contravention or alleged contravention to which an undertaking that is in force relates.
141   Enforcement of undertakings
(1)  If the ITSRR considers that a person has contravened an undertaking accepted by the ITSRR, the ITSRR may apply to the Local Court constituted by an Industrial Magistrate for enforcement of the undertaking.
(2)  If the Local Court is satisfied that the person has contravened the undertaking, it may make:
(a)  an order that the person must comply with the undertaking or take specified action to comply with the undertaking, or
(b)  any other order that it considers appropriate.
Division 4 Court-based sanctions
142   Commercial benefits order
(1)  The court that finds a person guilty of an offence against a rail safety law may, on the application of the prosecutor or the ITSRR, make an order under this section.
(2)  The court may make a commercial benefits order requiring the person to pay, as a fine, an amount not exceeding 3 times the amount estimated by the court to be the gross commercial benefit that:
(a)  was received or receivable, by the person or by an associate of the person, from the commission of the offence, and
(b)  in the case of a journey that was interrupted or not commenced because of action taken by a rail safety officer in connection with the commission of the offence, would have been received or receivable, by the person or by an associate of the person, from the commission of the offence had the journey been completed.
(3)  In estimating the gross commercial benefit that was or would have been received or receivable from the commission of the offence, the court may take into account:
(a)  benefits of any kind, whether monetary or otherwise, and
(b)  monetary savings or a reduction in any operating or capital expenditure of any kind achieved because of the commission of the offence, and
(c)  any other matters that it considers relevant, including (for example):
(i)  the value per tonne or per kilometre of the carriage of the goods involved in the offence as freight, and
(ii)  the distance over which any such goods were or were to be carried.
(4)  However, in estimating the gross commercial benefit that was or would have been received or receivable from the commission of the offence, the court is required to disregard any costs, expenses or liabilities incurred by the person or by an associate of the person.
(5)  Nothing in this section prevents the court from ordering payment of an amount that is:
(a)  less than 3 times the estimated gross commercial benefit, or
(b)  less than the estimated gross commercial benefit.
(6)  For the purposes of this section, a person is an associate of another if:
(a)  one is a spouse, parent, brother, sister or child of the other, or
(b)  they are members of the same household, or
(c)  they are partners, or
(d)  they are both trustees or beneficiaries of the same trust, or one is a trustee and the other is a beneficiary of the same trust, or
(e)  one is a body corporate and the other is a director or member of the governing body of the body corporate, or
(f)  one is a body corporate (other than a public company whose shares are listed on a stock exchange) and the other is a shareholder in the body corporate, or
(g)  they are related bodies corporate within the meaning of the Corporations Act 2001 of the Commonwealth, or
(h)  a chain of relationships can be traced between them under any one or more of the above paragraphs.
(7)  For the purposes of subsection (6), a beneficiary of a trust includes an object of a trust.
143   Supervisory intervention order
(1)  The court that finds a person guilty of an offence against a rail safety law may, on the application of the prosecutor or the ITSRR, if the court considers the person to be a systematic or persistent offender against the Australian rail safety laws, make an order under this section.
(2)  The court may make a supervisory intervention order requiring the person (at the person’s own expense and for a specified period not exceeding one year) to do all or any of the following:
(a)  to do specified things that the court considers will improve the person’s compliance with rail safety laws or specified aspects of rail safety laws, including (for example) the following:
(i)  appointing or removing staff to or from particular activities or positions,
(ii)  training and supervising staff,
(iii)  obtaining expert advice as to maintaining appropriate compliance,
(iv)  installing monitoring, compliance, managerial or operational equipment,
(v)  implementing monitoring, compliance, managerial or operational practices, systems or procedures,
(b)  to conduct specified monitoring, compliance, managerial or operational practices, systems or procedures subject to the direction of the ITSRR or a person nominated by the ITSRR,
(c)  to furnish compliance reports to the ITSRR or the court or both as specified in the order,
(d)  to appoint a person to have responsibilities:
(i)  to assist the person in improving compliance with rail safety laws or specified aspects of rail safety laws, and
(ii)  to monitor the person’s performance in complying with rail safety laws or specified aspects of rail safety laws and in complying with the requirements of the order, and
(iii)  to furnish compliance reports to the ITSRR or the court or both as specified in the order.
(3)  The court may specify matters that are to be dealt with in compliance reports and the form and manner in which, and frequency with which, compliance reports are to be prepared and furnished.
(4)  The court may require that compliance reports or aspects of compliance reports be made public, and may specify the form and manner in which, and frequency with which, they are to be made public.
(5)  The court may make a supervisory intervention order only if it is satisfied that the order is capable of improving the person’s ability or willingness to comply with the rail safety laws, having regard to:
(a)  the offences against Australian rail safety laws of which the person has been previously found guilty, and
(b)  the offences against Australian rail safety laws for which the person has been proceeded against by way of unwithdrawn penalty notices, and
(c)  any other offences or other matters that the court considers to be relevant to the conduct of the person in connection with railway operations.
(6)  The order may direct that any other penalty or sanction imposed for the offence by the court is suspended until the court determines whether or not there has been a substantial failure to comply with the order.
(7)  A court that has power to make supervisory intervention orders may revoke or amend a supervisory intervention order on the application of:
(a)  the ITSRR, or
(b)  the person in respect of whom the order was made, but in that case only if the court is satisfied that there has been a change of circumstances warranting revocation or amendment.
(8)  In this section, compliance report, in relation to a person in respect of whom a supervisory intervention order is made, means a report relating to:
(a)  the performance of the person in complying with:
(i)  the rail safety laws or aspects of rail safety laws specified in the order, and
(ii)  the requirements of the order, and
(b)  without limiting the above:
(i)  things done by the person to ensure that any failure by the person to comply with the rail safety laws or the specified aspects of the rail safety laws does not continue, and
(ii)  the results of those things having been done.
144   Contravention of supervisory intervention order
A person who is subject to a requirement of a supervisory intervention order must not engage in conduct that results in contravention of the requirement.
Maximum penalty: 400 penalty units.
145   Exclusion orders
(1)  The court that finds a person guilty of an offence against a rail safety law may, on the application of the prosecutor or the ITSRR, if the court considers the person to be a systematic or persistent offender against the Australian rail safety laws, make an order under this section.
(2)  For the purpose of restricting opportunities for the person to commit or be involved in the commission of further offences against Australian rail safety laws, the court may, if it considers it appropriate to do so, make an exclusion order prohibiting the person, for a specified period, from:
(a)  carrying out specified railway operations or any railway operations, or
(b)  being a director, secretary or officer concerned in the management of a body corporate involved in managing rail infrastructure that is in this jurisdiction or operating rolling stock in this jurisdiction, or
(c)  being involved in managing rail infrastructure that is in this jurisdiction or operating rolling stock in this jurisdiction except by driving a train or rolling stock.
(3)  The court may only make an order under this section if it is satisfied that the person should not continue the things the subject of the proposed order and that a supervisory intervention order is not appropriate, having regard to:
(a)  the offences against the Australian rail safety laws of which the person has previously been found guilty, and
(b)  the offences against the Australian rail safety laws for which the person has been proceeded against by way of unwithdrawn penalty notices, and
(c)  any other offences or other matters that the court considers to be relevant to the conduct of the person in connection with railway operations.
(4)  A court that has power to make an exclusion order may revoke or amend an exclusion order on the application of:
(a)  the ITSRR, or
(b)  the person in respect of whom the order was made, but in that case only if the court is satisfied that there has been a change of circumstances warranting revocation or amendment.
146   Contravention of exclusion order
A person who is subject to an exclusion order must not engage in conduct that results in a contravention of the order.
Maximum penalty: 400 penalty units.