You are using a version of the website built for webcrawlers and people whose devices cannot use javascript. Some functionality may not be available.
Contents (2008 - 97)
Skip contents
Rail Safety Act 2008 No 97
Repealed version for 7 December 2012 to 19 January 2013 (accessed 25 September 2017 at 03:35)
Part 7 Division 4
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.