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Contents (2008 - 97)
Rail Safety Act 2008 No 97
Repealed version for 7 December 2012 to 19 January 2013 (accessed 15 December 2017 at 19:13)
Part 7 Division 2
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.