Transport Legislation Amendment (Rail Safety Local Operations and ...

Transport Legislation Amendment (Rail 

Safety Local Operations and Other 

Matters) Bill 2013 

Introduction Print 

EXPLANATORY MEMORANDUM 

General Outline 

This Bill is a companion proposal to the Rail Safety National Law 

Application Bill 2013. 

Prime purpose 

The purpose of the Rail Safety National Law Application Bill is to give effect 

in Victoria to the national rail safety regulation scheme, including a national 

rail safety regulator, and a national rail safety investigator as part of the 

State's intergovernmental obligations. 

On the other hand, the prime purpose of the Transport Legislation 

Amendment (Rail Safety Local Operations and Other Matters) Bill 2013 is to 

modify the scope of Victoria's existing rail safety statute—the Rail Safety 

Act 2006—as a result of Victoria's entry into the national regulation scheme. 

Coverage 

Some rail operations are local matters which have little or no national 

strategic or operational importance. Operations in this category include tram 

and light rail operations which stand-alone from the State's other rail 

networks. The prime example is Melbourne's light rail and tram system. 

Victoria's tram and light rail network is not connected to any national or 

interstate rail operation. Many tourist and heritage tram operations and heavy 

railways operating in regional areas of Victoria on dedicated rail lines are in 

the same position. 

1 

571273 BILL LA INTRODUCTION 6/3/2013

These considerations led Victoria to agree with the Commonwealth and other 

States and Territories to exclude the State's tram and light rail operations and 

seven tourist and heritage operators that operate on stand-alone lines from the 

national rail safety scheme and to retain them under local regulation overseen 

by the Director, Transport Safety or Transport Safety Victoria established 

under Part 7 of the Transport Integration Act 2010. 

General 

The prime purpose of the Bill is therefore to confine the scope of the State's 

Rail Safety Act 2006 to domestic rail operations. A natural consequence of 

the change is that the Bill renames the Act the Rail Safety (Local 

Operations) Act 2006 in recognition of its abridged coverage. 

A secondary purpose of the Bill is to update Victoria's Rail Safety Act as a 

result of changes to rail safety regulation negotiated by Victoria and other 

jurisdictions during the development of the national law. The national law 

retains and updates the State's existing regulatory framework. While the key 

features of the local scheme remain unchanged, adjustments and 

improvements are made to definitions, offences, penalties and other 

provisions. 

A third purpose of the Bill is to make sure that the drug and blood alcohol 

control provisions in the national law for rail safety workers such as train 

drivers and signal operators is fused with the drug and alcohol control 

scheme in Victoria's existing legislation. This is needed so that satisfactory 

national and local schemes are in place as the national provisions are skeletal 

and unsatisfactory in this important area. They require extensive 

supplementation from the State scheme in respect of offences, compliance 

and enforcement powers and testing requirements in order to set enforceable 

and workable standards and to maintain proper drug and alcohol controls in 

the rail industry. 

Structure of the Bill 

The Bill is divided into 4 parts. 

Part 1 deals with formal matters such as purpose, commencement and the 

identification of the Principal Act amended by the Bill, the Rail Safety Act 

2006. 

Part 2 contains over one hundred clauses which change Victoria's current 

statute, the Rail Safety Act 2006. The changes cover much of the ground of 

the statute and include modifications to interpretative material such as the 

purpose, objects and definitions, changes to provisions dealing with general 

duties and accreditation, safety interface agreements, the drug and alcohol 

management scheme and other matters. 

2

Part 3 makes consequential changes to the Transport (Compliance and 

Miscellaneous) Act 1983 to ensure that the terminology in that Act is 

consistent with the terminology in the Rail Safety National Law (Victoria) 

and the Rail Safety Act 2006. 

Part 4 makes a change to the Bus Safety Act 2009 to enable red tape to be 

reduced in the bus industry by allowing exemptions to be given to bus 

operators from accreditation and registration requirements. 

Part 5 provides for the repeal of the instrument. 

Conclusion 

While the Bill is essentially a companion proposal to the Rail Safety National 

Law Application Bill 2013, it nonetheless makes a mixture of substantive and 

minor changes which recast the coverage of the Rail Safety Act 2006 and 

update some of its content. 

Many of the changes made by the Bill are technical including those which are 

of a consequential or transitional nature. Detail on each of the clauses in the 

Bill is set out in this explanatory memorandum. 

Clause Notes 

PART 1—PRELIMINARY 

Clause 1 

sets out the main purpose of the Bill which is to— 

amend the Rail Safety Act 2006— 

 

 

to facilitate the safe operation of local railways in 

Victoria to which the Rail Safety National Law 

(Victoria) does not apply; and 

to broadly align the Rail Safety Act 2006 with 

the Rail Safety National Law (Victoria) to ensure 

consistency in the regulation of railway 

operations in Victoria; and 

 

to amend the Bus Safety Act 2009 to provide for a 

mechanism to exempt operators of bus services from the 

requirement to be registered or accredited. 

3

It is noted that while some local operations, including the State's 

tram and light rail network and seven of the State's tourist and 

heritage railway operators, will continue to be regulated under 

the Rail Safety (Local Operations) Act 2006 (as renamed by 

this Bill), other operations such as Melbourne's metropolitan 

train operator will transfer to the new national scheme. 

Clause 2 

provides that Parts 1 and 4 of the Act come into operation on the 

day after the day on which the Bill receives the Royal Assent. 

The remaining provisions come into operation on a day or days 

to be proclaimed. It is noted that Parts 2 and 3 of the Bill do not 

have a default commencement date. This is because the 

commencement of these Parts is aligned with the 

commencement of the Rail Safety National Law Application Bill 

2013. Commencement of that Bill is dependent on a service 

level agreement and delegations being in place. Although a 

delay is unlikely an open ended commencement date is 

necessary and common with national scheme statutes. 

PART 2—AMENDMENTS TO THE RAIL SAFETY ACT 2006 

Clause 3 

Clause 4 

Clause 5 

provides that in Part 2 of this Bill, the Rail Safety Act 2006 is 

called the Principal Act. 

changes the purpose of the Rail Safety Act 2006 to clarify that 

the purpose of that Act is now to facilitate the safe operation of 

local railways in Victoria to which the Rail Safety National Law 

(Victoria) does not apply. 

makes changes to the definitions in section 3 of the Rail Safety 

Act 2006 to align with the Rail Safety National Law (Victoria). 

Clause 5(1)(a) repeals several definitions that are currently 

contained in section 3(1) of the Rail Safety Act 2006. 

These definitions are either no longer required, or are not 

consistent with terminology used in the Rail Safety National 

Law (Victoria). 

For example, the terms rail infrastructure operations and 

rolling stock operations are being repealed as these terms will 

be included in the new definition of railway operations adopted 

from the Rail Safety National Law (Victoria). 

4

Clause 5(1)(b) inserts the following definitions into the Rail 

Safety Act 2006— 

 

 

 

 

 

 

accredited rail transport operator; 

accredited railway operations; 

associated railway track structures; 

employee; 

national regulations, which means the regulations 

made under section 264 of the Rail Safety National Law 

(Victoria); 

prescribed drug, which has the same meaning as in the 

Rail Safety National Law (Victoria); that is any of the 

following substances: 

 

 

 

 

delta-9-tetrahydrocannabinol (cannabis); 

Methylamphetamine (Methamphetamine) 

(speed or ice); 

3,4- Methylenedioxymethylamphetamine 

(MDMA) (ecstasy); and 

any other substance declared by the national 

regulations to be a prescribed drug for the 

purposes of this section. 

 

prescribed notifiable occurrence has the same meaning 

as in the national regulations, that is, the following 

Category A notifiable occurrences— 

 

 

 

 

 

an accident or incident that has caused death, 

serious injury or significant property damage; 

a running line derailment; 

a running line collision between rolling stock; 

a collision at a road or pedestrian level crossing 

between rolling stock and either a road vehicle or 

a person; 

an accident or incident involving a significant 

failure of a safety management system that could 

have caused death, serious injury or significant 

property damage; 

5

any other accident or incident likely to generate 

immediate or intense public interest or concern; 

 

 

 

 

 

 

 

 

 

 

rail land; 

Rail Track; 

rail transport operator; 

rail workplace; 

railway operations (which replaces the term rail 

operations); 

registered person; 

relevant road authority; 

road authority; 

tourist and heritage railway operator; 

works contractor; 

 

works manager. 

Clause 5(1)(c) substitutes the definition of corresponding law in 

the Rail Safety Act 2006. 

Clause 5(1)(d) amends the definition of Department in the Rail 

Safety Act 2006 to reflect that the Department of Infrastructure 

is now known as the Department of Transport. 

Clause 5(1)(e) substitutes the definition of drug in the Rail 

Safety Act 2006. 

Clause 5(1)(f) substitutes the definition of emergency service in 


Clause 5(1)(g) substitutes the definition of prescribed 

concentration of alcohol in the Rail Safety Act 2006 to have 

the same meaning as in the Rail Safety National Law (Victoria). 

That is, that in relation to a rail safety worker, prescribed 

concentration of alcohol means— 

 

 

any concentration of alcohol in the blood; or 

if some other concentration of alcohol is prescribed in 

the national regulations (being a specified amount of 

alcohol in 100 millilitres of blood) for the purposes of 

this definition—that concentration. 

6

Clause 5(1)(h) substitutes the definition of public pathway in the 

Rail Safety Act 2006. 

Clause 5(1)(i) substitutes the definition of rail infrastructure in 


Clause 5(1)(j) makes a consequential amendment to the 

definition of rail safety worker in the Rail Safety Act 2006, to 

adopt the terminology used in the Rail Safety National Law 

(Victoria). 

Clause 5(1)(k) substitutes the definition of railway premises in 


Clause 5(1)(l) substitutes the definition of Road Rules in the 


Clause 5(1)(m) makes consequential amendments to the 

definition of rolling stock in the Rail Safety Act 2006 to adopt 

the terminology used in the Rail Safety National Law (Victoria). 

Clause 5(1)(n) makes consequential amendments to the 

definition of safety audit in the Rail Safety Act 2006 to adopt 

the terminology used in the Rail Safety National Law (Victoria). 

Clause 5(2) makes minor amendments to section 3(2) of the Rail 

Safety Act 2006 to adopt the terminology used in the Rail Safety 

National Law (Victoria). 

Clause 5(3) makes consequential amendments to section 3(3) of 

the Rail Safety Act 2006 to adopt the terminology used in the 

Rail Safety National Law (Victoria). 







Clause 5(6) makes consequential amendments to the definition 

of labour-hire contractor in section 3(5) of the Rail Safety Act 

2006 to adopt the terminology used in the Rail Safety National 


7

Clause 6 

amends section 3B of the Rail Safety Act 2006 to take account 

of the fact that not all Victorian tourist and heritage railway 

operators will be regulated under the Rail Safety Act 2006 when 

the Rail Safety National Law (Victoria) commences, as some 

have elected to transfer to the new national scheme. The tourist 

and heritage railway operators who remain under the local 

scheme may be eligible for an exemption from accreditation as 

provided by this Bill. 

The new exemption process is provided in new Division 5A of 

Part 5 of the Rail Safety Act 2006 inserted by clause 81 of this 

Bill. 

Clause 7 repeals section 4 of the Rail Safety Act 2006. 

This section is repealed as the Rail Safety Act 2006 adopts the 

definition of drug in the Rail Safety National Law (Victoria). 

Section 6 of Rail Safety National Law (Victoria) provides that 

the Ministers may declare a substance to be a drug for the 

purposes of the Rail Safety National Law (Victoria). 

Clause 8 

amends section 6 of the Rail Safety Act 2006 to adopt the Rail 

Safety National Law (Victoria). Section 6 sets out the types of 

railways to which the Rail Safety Act 2006 does not apply. 

For example, a railway in an underground mine or a railway 

operated solely within an amusement or theme park is not 

covered by the Rail Safety Act 2006 and is regulated under 

other State laws. 

Clause 8(1) substitutes a new section 6(b) of the Rail Safety Act 

2006 such that the Rail Safety Act 2006 will now not apply to a 

railway that— 

 

 

 

 

is used only for the purposes of an amusement structure; 

and 

is operated only within an amusement park; and 

does not operate on or cross a public road; and 

is not connected with another railway in respect of a rail 

transport operator which is required to be accredited or 

registered under this Act. 

8

Clause 8(3) inserts new section 6(g) into the Rail Safety Act 

2006 which provides that the Rail Safety Act 2006 does not 

apply to a railway to which the Rail Safety National Law 

(Victoria) applies. 

Clause 8(4) inserts new section 6(2) into the Rail Safety Act 

2006 which provides a definition of amusement structure for 

the purposes of that section. The definition mirrors the 

definition in the Rail Safety National Law (Victoria). 

Clause 9 

Clause 10 

substitutes section 7 of the Rail Safety Act 2006, setting out 

what is to be considered to be rail safety work for the purposes 

of the Rail Safety Act 2006. The new definition of rail safety 

work is consistent with the Rail Safety National Law (Victoria). 

makes a consequential amendment to section 9 of the Rail 

Safety Act 2006 which provides that the Minister may declare 

an alcohol and drug control law of another State or Territory to 

be a corresponding law. 

The amendment made to section 9 of the Rail Safety Act 2006 

enables the Minister to publish an Order in the Government 

Gazette to declare a law of another State or Territory of the 

Commonwealth that creates an offence substantially similar to 

section 77(1). 

New section 77(1) is inserted by clause 89 of this Bill and 

provides for drug and alcohol offences that are not part of the 

Rail Safety National Law (Victoria), but are an important part 

of Victorian transport drug and alcohol control legislation. 

Clause 11 repeals section 10 of the Rail Safety Act 2006. 

Section 10 is being repealed as its effect is already provided in 

the definition of contravention in section 38 of the 

Interpretation of Legislation Act 1984 which provides that— 

"where a contravention in relation to an Act or subordinate 

instrument or a provision of an Act or subordinate 

instrument, includes a failure to comply with the Act or 

subordinate instrument or provision". 

Clause 12 

makes consequential amendments to section 11 of the Rail 

Safety Act 2006 to ensure that the terminology is consistent 

with the Rail Safety National Law (Victoria). 

9

Clause 13 

substitutes section 11A of the Rail Safety Act 2006 to state that 

it is the intention of Parliament that the Rail Safety Act 2006 

regulates and promotes the safe operation of railways in Victoria 

in a manner consistent with the new Rail Safety National Law 

(Victoria). The provision recognises the intention to maintain 

consistency between State and national rail safety regulation. 

Clause 14 inserts new section 12(3) into the Rail Safety Act 2006. 

New subsection (3) clarifies that no criminal liability attaches 

to the Crown itself under the Rail Safety Act 2006, as distinct 

from its agents, instrumentalities, officers and employees, who 

are still liable. 

Clause 15 

Clause 16 

Clause 17 

Clause 18 


Safety Act 2006 to adopt terminology used in the Rail Safety 


Clause 15(3) inserts new section 13(1)(c)(iii), which provides 

that rail safety is also the shared responsibility of other persons 

who in relation to the transport of freight by railway, load or 

unload freight on or from rolling stock. This is consistent with 

the Rail Safety National Law (Victoria). 




inserts new paragraph (e) into section 16 of the Rail Safety Act 

2006. 

New paragraph (e) provides that enforcement of the Rail Safety 

Act 2006 and the regulations should be undertaken for the 

purpose of securing compliance with the Rail Safety Act 2006 

and the regulations through effective and appropriate compliance 

and enforcement measures. This is consistent with the existing 

provision in the Rail Safety Act 2006 but the language is 

modified to remain consistent with the Rail Safety National Law 

(Victoria). 




10

Clause 19 makes a consequential amendment to the heading to Division 1 

of Part 3 of the Rail Safety Act 2006 to adopt terminology used 

in the Rail Safety National Law (Victoria). 

Clause 20 

Inserts new section 18A into the Rail Safety Act 2006 which 

sets out principles which apply to rail safety duties. This is 

consistent with the Rail Safety National Law (Victoria). 

New section 18A(1) provides that a duty under the Rail Safety 

Act 2006 or the regulations cannot be transferred to another 

person. 

New section 18A(2) provides that a person can have more than 

one duty under the Rail Safety Act 2006 or the regulations by 

virtue of being in more than one class of duty holder. 

New section 18A(3) provides that more than one person can 

concurrently have the same duty under the Rail Safety Act 2006 

or regulations and each duty holder must comply with that duty 

to the standard required even if another duty holder has the same 

duty. 

New section 18A(4) provides that if more than one person has a 

duty for the same matter, each person— 

 

 

retains responsibility for the person's duty in relation to 

the matter; and 

must discharge the person's duty to the extent to which 

the person has the capacity to influence and control the 

matter (or would have had that capacity but for an 

agreement or arrangement purporting to limit or remove 

that capacity). 




Clause 22 

substitutes a new section 20 of the Rail Safety Act 2006 which 

is consistent with the Rail Safety National Law (Victoria). 

New section 20(1) provides that a rail transport operator must 

ensure, so far as is reasonably practicable, the safety of the 

operator's railway operations. A penalty of $300 000 or 5 years 

imprisonment or both applies for a natural person or a penalty of 

$3 000 000 applies for a body corporate. 

11

New section 20(2) provides that without limiting subsection (1), 

a rail transport operator must ensure, so far as is reasonably 

practicable— 

 

 

that safe systems for the carrying out of the operator's 

railway operations are developed and implemented; and 

that each rail safety worker who is to perform rail safety 

work in relation to the operator's railway operations— 

 

 

is of sufficient good health and fitness to carry 

out that work safely; and 

is competent to undertake that work; and 

 

 

 

 

that rail safety workers do not carry out rail safety work 

in relation to the operator's rail operations and are not on 

duty while impaired by alcohol or a drug; and 

that rail safety workers who perform rail safety work is 

relation to the operator's railway operations do not carry 

out rail safety work while impaired by fatigue or if they 

may become so impaired; and 

the provision of adequate facilities for the safety of 

persons at railway premises under the operator's control 

or management; and 

the provision of— 

 

such information and instruction to, and training 

and supervision of, rail safety workers as is 

necessary to enable those workers to perform rail 

safety work in relation to the operator's railway 

operations in a way that is safe; and 

 

such information to rail transport operators and 

other persons on railway premises under the 

control or management of the persons to ensure 

their safety. 


a rail infrastructure manager must ensure, so far as is reasonably 


 

the provision or maintenance of rail infrastructure that is 

safe; and 

12

that any design, construction, commissioning, use, 

installation, modification, maintenance, repair or 

decommissioning of the manager's rail infrastructure is 

done or carried out in a way that ensures the safety of 

railway operations; and 

that systems and procedures for the scheduling, control 

and monitoring of railway operations are established 

and maintained so as to ensure the safety of the 

manager's railway operations; and 

 

that communications systems and procedures are 

established and maintained so as to ensure the safety of 

the manager's railway operations. 


a rolling stock operator must ensure, so far as is reasonably 


 

 

 

 

 

 

the provision or maintenance of rolling stock that is 

safe; and 

that any design, construction, commissioning, use, 

modification, maintenance, repair or decommissioning 

of the operator's rolling stock is done or carried out in a 

way that ensures safety; and 

compliance with the rules and procedures for the 

scheduling, control and monitoring of rolling stock that 

have been established by a rail infrastructure manager in 

relation to the use of the manager's rail infrastructure by 

the rolling stock operator; and 

that equipment, procedures and systems are established 

and maintained so as to minimise the risks to the safety 

of the operator's railway operations; and 

that arrangements are made for ensuring safety in 

connection with the use, operation and maintenance of 

the operator's rolling stock; and 

that communications systems and procedures are 

established and maintained so as to ensure the safety of 

the operator's railway operations. 

13

New section 20(5) provides that new section 20 applies to a 

person (other than a rail transport operator) who carries out 

railway operations in the same way as it applies to a rail 

transport operator, but does not apply if the person carries out 

those operations as a rail safety worker or an employee. 

Clause 23 

Clause 24 

Clause 25 

Clause 26 

repeals section 21 of the Rail Safety Act 2006. Section 21 sets 

out the duty of rolling stock operators to ensure the safety of 

rolling stock operations. This responsibility is provided by new 

section 20, inserted in the Rail Safety Act 2006 by clause 22. 

makes changes to section 22 of the Rail Safety Act 2006 to 

adopt terminology used in the Rail Safety National Law 

(Victoria) and to make the penalties for offences the same as the 

penalty for equivalent offences in the Rail Safety National Law 

(Victoria). 

Clause 24(1) substitutes a new penalty at the foot of section 

22(1), which sets out safety duties for rail contractors. 

The penalty is $300 000 or imprisonment for 5 years or both in 

the case of a natural person or $3 000 000 in the case of a body 

corporate. 

Clause 24(2) makes consequential amendments to section 22(2) 

to adopt terminology used in the Rail Safety National Law 

(Victoria). 

Clause 24(2)(c) substitutes a new penalty at the foot of section 

22(2), which sets out safety duties for rail contractors. 

The penalty is $300 000 or imprisonment for 5 years or both in 

the case of a natural person or $3 000 000 in the case of a body 

corporate. 

Clause 24(3) makes consequential amendments to section 22(3) 

to adopt terminology used in the Rail Safety National Law 

(Victoria). 

makes consequential amendments to section 22A of the Rail 





National Law (Victoria) and to make the penalties for offences 

the same as the penalty for equivalent offences in the Rail Safety 


14


23(1), which sets out safety duties for rail safety workers. 

The new penalty is which is $300 000 or imprisonment for 

5 years or both. 


23(2), which provides that a rail safety worker must not 

intentionally or recklessly interfere with or misuse anything 

provided to them. The new penalty is $300 000 or imprisonment 

for 5 years or both. 


23(3), which provides that a rail safety worker must not wilfully 

or recklessly place the safety of another person at risk. The new 

penalty is $300 000 or imprisonment for 5 years or both. 

Clause 27 

Clause 28 

Clause 29 

Clause 30 

substitutes the penalty at the foot of section 23A(1) of the Rail 

Safety Act 2006 which sets out the safety duties for persons 

engaged in loading or unloading goods or freight onto or from 

rolling stock. The new penalty is $300 000 or imprisonment for 

5 years or both for a natural person or $3 000 000 for a body 

corporate. 




substitutes a new section 25(b) of the Rail Safety Act 2006 to 

make it clear that a safety management system must include risk 

management provisions. 






Clause 30(3) substitutes a new penalty at the foot of section 26, 

which provides that an accredited rail transport operator must 

consult before establishing a safety management system is 

$150 000 for a natural person or $1 500 000 for a body 

corporate. 

15

Clause 31 

Clause 32 

Clause 33 

Clause 34 







27(1), which provides that an accredited rail transport operator 

must have a safety management system in place. The new 

penalty is $150 000 for a natural person or $1 500 000 for a 

body corporate. 








must comply with a safety management system. The new 

penalty is $150 000 for a natural person or $1 500 000 for a 


makes a consequential amendment to section 28A of the Rail 



makes consequential amendments to section 28B of the Rail 



Clause 34(3)(b) amends section 28B(1) by replacing the 

reference to "section 63" with a reference to "Division 5A of 

Part 5 or section 69B". 

Division 5A of Part 5 is inserted by clause 81 of this Bill. 

The Division sets out the process that certain rail transport 

operators (for example private siding operators or tourist and 

heritage railway operators) must follow when applying for an 

exemption from accreditation, as well as the requirements which 

must be met to obtain an exemption. 

New section 69B is inserted by clause 88 of this Bill and 

provides for exemption from accreditation in respect of certain 

private sidings. 

16

The insertion of the new provisions makes current section 63, 

which provides for accreditation exemptions for private siding 

operators, redundant and as a consequence it is being repealed 

by clause 83 of this Bill. 

Clause 34(4) inserts new section 28B(5), which provides that 

a rail transport operator who holds an exemption under 

Division 5A of Part 5 or section 69B must comply with the 

system and arrangements established by the rail transport 

operator under this section. A penalty of $150 000 for a natural 

person or $1 500 000 for a body corporate applies. 

Clause 35 




Clause 36 makes consequential amendments to sections 30(1), (2) and (3) 

of the Rail Safety Act 2006 to adopt terminology used in the 


Clause 37 

makes a consequential amendment to the heading to Part 4 of the 

Rail Safety Act 2006 to adopt terminology used in the Rail 

Safety National Law (Victoria). 




Clause 39 

Clause 40 

Clause 41 




repeals several definitions in section 33A(1) of the Rail Safety 

Act 2006. 

Clause 40(b) repeals the definitions of rail land, Rail Track, 

road authority, works contractor and works manager. These 

definitions have been moved to the general definitions section in 

section 3 of the Rail Safety Act 2006. 

makes consequential changes to section 34 of the Rail Safety 

Act 2006 to adopt terminology used in the Rail Safety National 


17

Clause 42 

Clause 43 

Clause 44 

Clause 45 

makes changes to section 34A (of the Rail Safety Act 2006 to 


(Victoria). 


Safety Act to adopt terminology used in the Rail Safety National 

Law (Victoria) and to make the penalties for offences the same 

as the penalty for equivalent offences in the Rail Safety National 


Clause 43(3) inserts a penalty at the foot of section 34B(1), 

which provides for safety interface assessments by rail transport 

operators. The new penalty is $50 000 for a natural person or 

$500 000 for a body corporate. 

makes consequential amendments to section 34C of the Rail 





Clause 44(2) inserts a penalty at the foot of section 34C(1), 

which sets out the process for safety interface assessments by 

rail infrastructure managers in relation to rail infrastructure and 

public roadways or pathways. The penalty is $50 000 for a 

natural person or $500 000 for a body corporate. 

makes consequential amendments to section 34D of the Rail 





Clause 45(2) inserts a penalty at the foot of section 34D(1), 

which provides that a rail infrastructure manager must identify 

and assess any risks to safety that may arise from rail operations 

which that rail infrastructure manager is involved in because 

of the existence or use of any rail or road infrastructure. 

The penalty is $50 000 for a natural person or $500 000 for a 



which provides that if a rail infrastructure manager is of the 

opinion that it is necessary to manage identified risks to safety in 

conjunction with the relevant road authority, the infrastructure 

manager must give the road authority written notice and 

18

determine measures to manage the risks. The penalty is $50 000 

for a natural person or $500 000 for a body corporate. 


which provides that if the rail infrastructure manager is of the 

opinion that risks to safety do not need to be managed in 

conjunction with the relevant road manager, the rail 

infrastructure manager must keep a written record of that 

opinion. The penalty is $50 000 for a natural person or 


Clause 46 

Clause 47 

makes consequential amendments to section 34E of the Rail 





Clause 46(1) replaces the word "road manager" with "road 

authority" in the heading to section 34E. 

Clause 46(2)(a) replaces the words "road manager " with "road 

authority". 

Clause 46(2)(b) replaces the words "rail infrastructure 

operations" with "railway operations" wherever occurring. 

Clause 46(3) inserts a penalty at the foot of section 34E(1), 

which, provides that a relevant road authority must identify and 

assess any risks to safety that may arise from the existence or 

use of any road or rail crossing that is part of the road 

infrastructure of that public roadway or that is a public pathway 

because of, or partly because of, rail infrastructure operations. 

The penalty is $50 000 for a natural person or $500 000 for a 


makes consequential amendments to section 34F of the Rail 





Clause 47(3) inserts a penalty at the foot of section 34F(1), 

which provides that if a relevant road authority receives written 

notice from a rail infrastructure manager that it is necessary to 

manage risks the rail infrastructure manager has identified that 

may arise from the existence or use of any road or rail crossing 

19

that is part of the road infrastructure of that public roadway or 

that is a public pathway because of, or partly because of, rail 

infrastructure operations the rail infrastructure manager is 

carrying out. The penalty is $50 000 for a natural person or 


Clause 48 

Clause 49 

Clause 50 

Clause 51 

Clause 52 

makes consequential amendments to section 34G of the Rail 



makes consequential amendments to section 34H of the Rail 



makes consequential amendments to section 34I of the Rail 



makes consequential amendments to section 34J of the Rail 






34J(7), which provides that a person who is issued a written 

direction by the Safety Director regarding the failure of that 

person to enter into a safety interface agreement must comply 

with the direction. The new penalty is $20 000 for a natural 

person or $100 000 for a body corporate. 

makes consequential amendments to section 34K of the Rail 






34K(1) for consistency with the Rail Safety National Law 

(Victoria). Section 34K(1) provides that a rail transport operator 

must maintain a register of safety interface agreements to which 

the rail transport operator is a party and arrangements 

determined by the Safety Director. The new penalty is $5000 

for a natural person or $25 000 for a body corporate applies. 

20

Clause 53 

Clause 54 

Clause 55 

makes consequential amendments to the heading to Part 5 of the 

Rail Safety Act 2006 to adopt terminology used in the Rail 





substitutes a new section 36 of the Rail Safety Act 2006 that is 


New section 36 provides that a rail transport operator must not 

carry out railway operations unless the rail transport operator— 

is accredited under Part 5 of the Rail Safety Act 2006 

in respect of those railway operations; or 

holds an exemption granted under Division 5A of Part 5 

of the Rail Safety Act 2006; or 

 

is exempted by the regulations from the requirement to 

be accredited under Part 5. 

A penalty of $150 000 for a natural person or $1 500 000 for a 

body corporate applies. 

Clause 56 repeals section 37 of the Rail Safety Act 2006. Section 37 

provides that rolling stock operators must not operate rolling 

stock unless accredited. This is now covered by new section 36 

inserted by clause 55 above, as rolling stock operations are 

covered in the definition of "railway operations". 

Clause 57 

Clause 58 


Safety Act 2006 in order to adopt the terminology used in the 




New section 39 provides for criteria on which accreditation 

applications by rail transport operators are to be assessed. 

The Safety Director must accredit a rail transport operator in 

respect of the railway operations the operator carries out if the 

Safety Director is satisfied that— 

21

the rail transport operator— 

 

 

is accredited in another State or a Territory of the 

Commonwealth to carry out railway operations 

of a similar kind in that State or Territory; or 

has the competence and capacity to carry out 

those operations safely; and 

 

the rail transport operator has demonstrated to the 

Safety Director that— 

 

 

 

the rail transport operator has taken all 

reasonable steps to comply with Division 3; and 

the rail transport operator's safety management 

system complies with Division 4 of Part 3; and 

the rail transport operator has complied with 

section 26; and 

 

 

the rail transport operator has financial capacity, or has 

public risk insurance arrangements, to meet reasonable 

potential accident liabilities arising from the carrying 

out of railway operations; and 

in the case of a rail transport operator who is a rolling 

stock operator but is not the rail infrastructure manager 

who controls the railway on which the rolling stock will 

be operated—the rail transport operator has an 

agreement with the rail infrastructure manager who 

controls the railway on which the operator wishes to 

operate particular rolling stock, and the agreement 

includes appropriate arrangements for the safe operation 

of the rolling stock. 


provides for the criteria on which accreditation applications by 

rolling stock operators are to be assessed. This is now covered 

by new section 39 inserted by clause 58 above, as rolling stock 

operators are covered by the definition of rail transport 

operator. 

Clause 60 




22

Clause 61 

Clause 62 

Clause 63 

Clause 64 

Clause 65 

Clause 66 

makes consequential amendments to section 42(1)(a) of the Rail 








Clause 62(2) substitutes a new penalty at the foot of 43(4), 

which provides that a rail transport operator must comply with a 

direction to coordinate and cooperate with another applicant on 

an accreditation application. The new penalty is $20 000 for a 


Clause 62(3) substitutes a new penalty at the foot of 43(5), 

which provides that a rail transport operator that has coordinated 

an application must include in the application reference to 

information given by the operator, or given to, another rail 

transport operator, in accordance with a direction. The new 

penalty is $20 000 for a natural person or $100 000 for a body 

corporate. 








Safety Act 2006, which provides for tourist and heritage railway 

operators to apply for fee exemptions. 








must comply with any condition or restriction imposed on the 

accreditation that the operator has been given notice of. 

23

The new penalty is $150 000 for a natural person or $1 500 000 

for a body corporate. 


applies risk management requirements to applicants for 

accreditation. The section is being repealed, as it is intended 

that risk management requirements are to apply generally, not 

just to accredited rail transport operators. 

Clause 68 



New section 50 provides that— 

 

A rail transport operator must— 

 

 

identify all incidents which could occur while 

carrying out any railway operations in respect of 

which the operator is accredited; and 

identify all hazards that could cause, or 

contribute to causing, those incidents. 

 

 

 

A rail transport operator must document all aspects of 

any identification required by subsection (1), including 

the methods and criteria used for identifying the 

incidents and hazards. 

A rail transport operator must conduct a comprehensive 

and systematic assessment in relation to all possible 

incidents and all hazards identified in accordance with 

subsection (1). 

An assessment must involve an examination and 

analysis of the hazards and incidents identified so as to 

provide the rail transport operator with a detailed 

understanding of all aspects of risk to safety associated 

with the incidents, including— 

 

 

the nature of each hazard and incident; and 

the likelihood of each hazard causing an 

incident; and 

24

in the event of an incident occurring— 

 

 

its magnitude; and 

the severity of its consequences of the 

incident; and 

 

the range of control measures considered to 

eliminate or minimise the risk to safety. 

 

In conducting an assessment, the rail transport operator 

must— 

 

 

consider hazards cumulatively as well as 

individually; and 

use assessment methodologies (whether 

quantitative or qualitative, or both) that are 

appropriate to the hazards being considered. 

 

The rail transport operator must document all aspects of 

the assessment, including— 

 

 

 

the incidents and hazards considered; and 

the likelihood and severity of consequences; and 

the range of control measures considered, 

including— 

 

 

statements as to their viability and 

effectiveness; and 

reasons for selecting certain control 

measures and rejecting others. 

Clause 69 

Clause 70 


Safety Act 2006 for consistency with the Rail Safety National 


substitutes a new section 52(1) and (2) of the Rail Safety Act 

2006 which is consistent with the Rail Safety National Law 

(Victoria). 

New section 52(1) provides that a rail transport operator must 

prepare an emergency plan for— 

 

 

any rail infrastructure that the operator controls; and 

any railway operations the operator carries out. 

25

Clause 71 

Clause 72 

Clause 73 

Clause 74 

Clause 75 

Clause 76 

Clause 77 







makes a consequential amendment to the heading to section 54A 

of the Rail Safety Act 2006 to adopt terminology used in the 


makes a consequential amendment to section 54B of the Rail 




Safety Act 2006. 

Clause 75(1)(a) corrects a typographical error in the heading to 

section 55 by inserting the word "of" after the word 

"conditions". 

Clause 75(1)(b) corrects a typographical error in the heading to 

section 55 by replacing the words "restrictions of" with the 

words "restrictions on". 

Clause 75(2) corrects a typographical error in section 55(1)(a) by 

replacing the words "condition or restriction of" with the words 

"condition of or restriction on". 

Clause 75(3) corrects a typographical error in section 55(4)(a)(ii) 

by replacing the words "conditions or restrictions of" with the 

words "conditions or restrictions on". 




substitutes a new penalty at the foot of section 57(1) of the Rail 

Safety Act 2006, which provides that a person must not provide 

false or misleading information in an application. 

The new penalty is $20 000 for a natural person or $100 000 for 

a body corporate consistent with the Rail Safety National Law 

(Victoria). 

26

Clause 78 

Clause 79 

Clause 80 

makes a consequential amendment to section 58(4) of the Rail 




Safety Act 2006 to adopt terminology that is used in the Rail 


Inserts new Division 5A of Part 5 (sections 61A to 61K) into the 


New Division 5A sets out the process that must be followed in 

the case of rail transport operators who wish to apply to the 

Safety Director for an exemption from a designated part of that 

Act. 

An example of a rail transport operator who may be eligible for 

an exemption is a tourist and heritage railway operator or a 

private siding operator. 

New section 61A defines designated provision or the provisions 

in the Rail Safety Act 2006 from which a rail transport operator 

may apply for an exemption. The designated provisions are— 

 

 

Division 4 of Part 3 (safety management systems); 

Divisions 1 to 4 of Part 5 (accreditation, risk 

management requirements and variation and surrender 

of accreditation); and 

 

regulations made under the Act for the purposes of 

Division 4 of Part 3 or Divisions 1 to 4 of Part 5). 

New section 61B provides that rail transport operators may 

apply to the Safety Director for an exemption and provides 

details of the form that an application must take. 

New section 61B(1) provides that a rail transport operator may 

apply to the Safety Director for an exemption from a designated 

provision of this Act or any regulations made for the purposes of 

those Divisions in respect of specified railway operations carried 

out, or proposed to be carried out, by or on behalf of the 

operator. 

27

New section 61B(2) provides that an application must be made 

in the manner and form approved by the Safety Director and— 

 

 

 

must specify the scope and nature of the railway 

operations in respect of which an exemption is sought; 


if the railway operations include the operation or 

movement of rolling stock on a railway—must include 

details about the operation or movement of rolling 

stock; and 

must contain any prescribed information; and 

 

must be accompanied by the prescribed application fee 

(if any). 

New section 61B(3) provides that the Safety Director may 

require a rail transport operator who has applied for an 

exemption— 

 

to supply further information requested by the Safety 

Director; and 

 

to verify by statutory declaration any information 

supplied to the Safety Director. 

New section 61C provides that the Safety Director must not 

grant an exemption to an applicant unless satisfied that the 

applicant has demonstrated— 

 

 

that the applicant is, or is to be, a tourist and heritage 

railway operator, rail infrastructure manager or rolling 

stock operator in relation to the railway operations in 

respect of which the exemption is sought; and 

that the applicant— 

 

has the financial capacity, or has public risk 

insurance arrangements, to meet reasonable 

potential accident liabilities arising from the 

railway operations; and 

 

has complied with the requirements prescribed 

by the regulations (if any) for the purposes of 

this new section. 

New section 61D provides for the determination of an 

application for exemption by the Safety Director. 

28

New section 61D(1) provides that subject to this section, the 

Safety Director must, within the relevant period— 

 

if the Safety Director is satisfied as to the matters 

referred to in new section 61C—notify the applicant that 

an exemption from a designated provision of this Act or 

the regulations has been granted, with or without 

conditions or restrictions; or 

 

if the Safety Director is not satisfied as to the matters 

referred to in new section 61C—notify the applicant that 

the application has been refused. 

New section 61D(2) provides that an exemption under 

Division 5A is subject to— 

 

any conditions or restrictions prescribed by the 

regulations for the purposes of this section that are 

applicable to the exemption; and 

 

any other condition or restriction imposed on the 

exemption by the Safety Director. 

New section 61D(3) provides that notification under this 

section— 

 

 

must be in writing and given to the applicant; and 

if the exemption has been granted, must specify— 

 

 

 

 

the details of the applicant; and 

the scope and nature of the railway operations, 

and the manner in which they are to be carried 

out, in respect of which the exemption is granted; 


any condition or restriction imposed by the 

Safety Director under this section on the 

exemption; and 

any other prescribed information; and 

29

if a condition or restriction has been imposed on the 

exemption, must include— 

 

 

the reasons for imposing the condition or 

restriction; and 

information about the right of review under 

Part 7; and 

 

if the application has been refused must include— 

 

 

the reasons for the decision to refuse to grant the 

application; and 



 

if the relevant period in relation to an application has 

been extended, must include information about the right 

of review under Part 7. 

New section 61D(4) provides that in this section, relevant 

period, in relation to an application, means— 

 

 

6 months after the application was received by the 

Safety Director; or 

if the Safety Director requested further information, 

6 months, or such other period, as is agreed between 

the Safety Director and the applicant, after the Safety 

Director receives the last information so requested; or 

 

if the Safety Director, by written notice given to the 

applicant before the expiry of the relevant 6 months, 

specifies another period, that period— 

whichever is the longer. 

New section 61E sets out the process which must be followed by 

a rail transport operator who wishes to apply for a variation of an 

exemption. 

New section 61E(1) provides that a rail transport operator who 

has been granted an exemption under new Division 5A may, at 

any time, apply to the Safety Director for a variation of the 

exemption. 

30

New section 61E(2) provides that a rail transport operator who 

has been granted an exemption under new Division 5A must 

apply to the Safety Director for a variation of the exemption if— 

 

the applicant proposes to vary the scope and nature of 

the railway operations in respect of which the 

exemption has been granted; or 

 

any other variation is proposed in respect of the railway 

operations in respect of which the exemption has been 

granted that should be reflected in the exemption. 

New section 61E(3) provides that an application for variation 

must be made in the manner and form approved by the Safety 

Director and— 

 

 

must specify the details of the variation being sought; 



 


(if any). 

New section 61E(4) provides that the Safety Director may 

require an applicant for a variation— 

 



 



New section 61F sets out the process of the determination of an 

application for variation by the Safety Director. 

New section 61F(1) provides that subject to this section, the 


 

 


referred to in section 61C (so far as they are applicable 

to the proposed variation)—notify the applicant that the 

exemption has been varied, with or without conditions 

or restrictions; or 

if the Safety Director is not so satisfied—notify the 

applicant that the application has been refused. 

31

New section 61F(2) states that notification under this section— 

 

 


if the exemption has been varied, must specify— 

 

 

 

 


the variation to the exemption so far as it applies 

to the scope and nature of the railway operations, 

or the manner in which they are to be carried out; 


any conditions and restrictions imposed by the 

Safety Director on the exemption as varied; and 


 


exemption as varied, must include— 

 

 





 


 

 





 




New section 61F(3) provides that in new section 61F, relevant 


 

 







32





New section 61G provides that an exemption granted to a rail 

transport operator that is varied under Division 5A of Part 5 is 

subject to any conditions or restrictions prescribed by the 

regulations that are applicable to the exemption as varied. 

New section 61H provides for the application for a variation of 

conditions and restrictions on an exemption. 

New section 61H(1) provides that a rail transport operator who 

has been granted an exemption under new Division 5A may, at 

any time, apply to the Safety Director for a variation of a 

condition or restriction imposed by the Safety Director to which 

the exemption is subject. 

New section 61H(2) provides that an application for variation of 

a condition or restriction must be made as if it were an 

application for variation of an exemption under section 61E. 

New section 61H(3) provides that the Safety Director must 

consider the application and, if satisfied as to the matters 

referred to in section 61C and 61D (so far as they are applicable 

to the proposed variation), notify the applicant in accordance 

with the provisions of new Division 5A applicable to the 

granting of an exemption (so far as is practicable) that the 

variation has been granted or refused. 

New section 61H(4) states that notification under subsection (3) 

that a variation has been refused must include the reasons for the 

decision to refuse to grant the variation and information about 

the right of review under Part 7. 

New section 61I states that the Safety Director may make 

changes to conditions or restrictions of an exemption. 

New section 61I(1) provides that the Safety Director may, 

subject to this section, at any time, vary or revoke a condition or 

restriction imposed by the Safety Director on an exemption 

granted to a rail transport operator under this Division or impose 

a new condition or restriction. 

33

New section 61I(2) provides that before taking action under this 

section, the Safety Director must— 

 

 

give the rail transport operator written notice of the 

action that the Safety Director proposes to take; and 

allow the operator to make written representations about 

the intended action within 28 days (or any other period 

that the Safety Director and the operator agree on); and 

 

consider any representations made under paragraph (b) 

and not withdrawn. 

New section 61I(3) provides that the Safety Director must, by 

written notice given to the rail transport operator, provide— 

 

 

details of any action taken under this section; and 

a statement of reasons for any action taken under this 

section; and 

information about the right of review under Part 7. 

New section 61J sets out the process to be followed if the Safety 

Director decides to revoke or suspend an exemption. 

New section 61J(1) provides that this section applies to a rail 

transport operator who has been granted an exemption under this 

Division if— 

 

the Safety Director considers that the operator— 

 

 

is no longer able to demonstrate to the 

satisfaction of the Safety Director the matters 

referred to in section 61C or to satisfy the 

conditions, or to comply with the restrictions, 

of the exemption; or 

is not managing the rail infrastructure, or is not 

operating rolling stock in relation to any rail 

infrastructure, to which the exemption relates 

and has not done so for at least the preceding 

12 months; or 

 

the operator contravenes the Rail Safety (Local 

Operations) Act 2006 or regulations made under that 

Act. 

34

New section 61J(2) provides that the Safety Director may— 

 

 

 

suspend the exemption for a period determined by the 


revoke the exemption with immediate effect or with 

effect from a specified future date; or 

impose conditions or restrictions on the exemption; or 

 

vary conditions or restrictions to which the exemption is 

subject. 

New section 61J(3) provides that before making a decision under 

section 61J(2), the Safety Director— 

 

must notify the rail transport operator in writing— 

 

 

that the Safety Director is considering making a 

decision under subsection (2) of the kind, and for 

the reasons, specified in the notice; and 

that the person may, within 28 days or such 

longer period as is specified in the notice, make 

written representations to the Safety Director 

showing cause why the decision should not be 

made; and 

 

must consider any representations made under 

paragraph (a)(ii) and not withdrawn. 

New section 61J(4) provides that if the Safety Director suspends 

or revokes the exemption, the Safety Director must include in 

the notice of suspension or revocation the reasons for the 

suspension or revocation and information about the right of 

review under Part 7. 

New section 61J(5) provides that the Safety Director may 

withdraw a suspension of the exemption by written notice given 

to the rail transport operator. 

New section 61K sets out the penalty for breach of a condition 

or restriction of an exemption under new Division 5A of Part 5. 

A penalty of $20 000 for a natural person or $100 000 for a body 

corporate applies. 

Clause 81 

amends the heading of Division 6 to Part 5 to "Miscellaneous 

provisions regarding accreditation", as the Division only 

relates to accreditation. 

35

Clause 82 

makes a consequential amendment to section 62A(1) of the Rail 



Clause 83 repeals sections 63 to 66 of the Rail Safety Act 2006. 

These provisions are redundant as they relate to accreditation 

exemptions, which are now covered in new Division 5A of 

Part 5 to the Act. 

Clause 84 

Clause 85 

Clause 86 








National Law (Victoria. 


68(1) of the Rail Safety Act 2006, which provides that an 

accredited rail transport operator who has prepared an 

emergency plan must put the emergency plan into effect without 

delay if a major incident occurs or an incident occurs which 

could reasonably be expected to lead to a major incident. 

The new penalty is $50 000 for a natural person or $500 000 

for a body corporate. 






Clause 86(3) substitutes a new the penalty at the foot of section 

69(1) of the Rail Safety Act 2006, which provides that an 

accredited rail transport operator must, immediately after 

becoming aware of the occurrence of a major incident notify the 

relevant emergency services, the Safety Director and the Chief 

Investigator, Transport Safety of the occurrence of that incident. 

The new penalty is $20 000 for a natural person or $100 000 for 

a body corporate. 

36

Clause 87 

Clause 88 






Clause 87(3) substitutes a new the penalty at the foot of section 

69A(2) of the Rail Safety Act 2006, which provides that, an 

accredited rail transport operator must comply with a notice 

given to that operator by the Safety Director. The new penalty is 

$10 000 for a natural person or $50 000 for a body corporate. 


69A(3), which provides that an accredited rail transport operator 

must provide to the Safety Director certain information 

prescribed by regulations. The new penalty is $10 000 for a 


Inserts new Division 7 (new sections 69B to 69R) into Part 5 of 

the Rail Safety Act 2006. The new Division sets out the process 

of registration of rail transport operators of private sidings and is 

similar to the process in the Rail Safety National Law (Victoria). 

New section 69B provides that a rail transport operator of a 

private siding is not required to be accredited under Part 5 in 

respect of railway operations (other than those involving the 

operation of rolling stock) carried out in the private siding. 

New section 69C(1) provides that a rail transport operator of a 

private siding that is to be (or continue to be) connected with, 

or to have access to, a railway of an accredited rail transport 

operator or another private siding, must be registered in respect 

of the private siding in accordance with Division 7 of Part 5. 

A penalty of $20 000 for a natural person and $100 000 for a 

body corporate applies 

New section 69C(2) provides that a rail transport operator of a 

private siding that is to be (or continue to be) connected with, or 

to have access to, a railway of an accredited person or another 

private siding must— 

 

comply with the requirements of Division 2 of Part 4 so 

far as they are relevant to the railway operations carried 

out in the private siding; and 

37

seek to enter into a safety interface agreement with the 

accredited rail transport operator or rail transport 

operator of the other private siding (as the case may be). 

A penalty of $20 000 for a natural person or $100 000 for a body 


New section 69D sets out the process of applying for the 

registration of a private siding. 

New section 69D(1) provides that a rail transport operator of a 

private siding to which new section 69C above applies may 

apply to the Safety Director for registration in respect of the 

private siding. 

New section 69D(2) provides that the application must be made 

in the manner and form approved by the Safety Director and 

must contain— 

 

 

 

 

details about the scale and complexity of the private 

siding; and 

details about the extent of the railway track layout and 

other rail infrastructure of the private siding; and 

details about the railway operations to be carried out in 

the private siding; and 

if the private siding is to be (or continue to be) 

connected with, or to have access to— 

 

 

a railway of an accredited person—the 

prescribed details about the railway and the 

accredited person; or 

another private siding—the prescribed details 

about that siding and the rail infrastructure 

manager of that siding; and 

 


New section 69D(3) provides that an application for registration 

must be accompanied by the prescribed application fee. 

38

New section 69D(4) provides that the Safety Director may 

require an applicant for registration— 

 



 



New section 69E sets out what an applicant for registration of a 

private siding must demonstrate. The Safety Director must not 

grant registration to an applicant unless satisfied the applicant 

has demonstrated— 

 

 

that the applicant is, or is to be, the rail transport 

operator of the private siding; and 

that the railway operations to be carried out (or continue 

to be carried out) in the private siding are such that 

registration of the applicant (rather than accreditation of 

the applicant in respect of the railway operations) is, in 

the opinion of the Safety Director, the appropriate 

action; and 

 

that the applicant has complied with the requirements 

prescribed by the regulations (if any) for the purposes of 

this section. 

New section 69F provides for the determination of an 

application for registration by the Safety Director. 

New section 69F(1) provides that subject to this section, the 


 


referred to in section 69E—notify the applicant that 

registration has been granted, with or without conditions 


 



New section 69F(2) provides that registration is subject to— 

 

 


regulation for the purposes of this section; and 


registration by the Safety Director. 

39

New section 69F(3) provides that notification under this 

section— 

 

 


if registration has been granted, must specify— 

 

 

 

 

the prescribed details of the applicant; and 

the prescribed details of the private siding; and 


Safety Director on the registration; and 


 


registration, must include— 

 

 





 

if the application has been refused, must include— 

 

 





 

if the relevant period in relation to the application has 



New section 69F(4) provides that in section 69F, relevant 


 

 







40





New section 69G provides for application for variation of 

registration. 

New section 69G(1) provides that a registered person may, at 


registration. 

New section 69G(2) provides that a registered person must apply 

to the Safety Director for a variation of the registration if— 

 

 

the applicant proposes to vary the scale and complexity 

of the private siding in respect of which the applicant is 

registered; or 

the applicant proposes to vary the railway operations to 

be carried out in the private siding in respect of which 

the applicant is registered; or 

 

any other variation is proposed in relation to the private 

siding in respect of which the applicant is registered that 

should be reflected in the registration. 

New section 69G(3) provides that an application for variation 



 

 



must contain the prescribed information; and 

 

must be accompanied by the prescribed application fee. 

New section 69G(4) provides that the Safety Director may 

require a registered person who has applied for a variation under 

section 69G— 

 

 





41

New section 69H sets out the process of determination of 

application for variation to registration. 

New section 69H(1) provides that subject to section 69H, the 


 


referred to in section 69E (so far as they are applicable 

to the proposed variation), notify the applicant that 

registration has been varied, with or without conditions 


 



New section 69H(2) provides that a notification under 

section 69H— 

 

 


if registration has been varied, must specify— 

 

 

 

 

the prescribed details of the applicant; and 

the variation to the registration; and 


Safety Director on the registration as varied; and 


 


registration as varied, must include— 

 

 





 


 

 





 




42

New section 69H(3) provides that in section 69H, relevant 


 

 







 

if the Safety Director , by written notice given to the 




New section 69I provides that registration of a person that is 

varied under Division 7 of Part 5 is subject to any conditions or 

restrictions prescribed by the regulations that are applicable to 

the registration as varied. 

New section 69J provides for application for variation of 

conditions and restrictions of registration. 

New section 69J(1) provides that a registered person may, at any 

time, apply to the Safety Director for a variation of a condition 

or restriction imposed by the Safety Director to which the 

registration is subject. 

New section 69J(2) provides that an application for variation of 

a condition or restriction must be made as if it were an 

application for variation of registration (and section 69G applies 

accordingly). 

New section 69J(3) provides that the Safety Director must 


referred to in section 69E (so far as they are applicable to the 

proposed variation), notify the registered person in accordance 

with the provisions of this Division applicable to a grant of 

registration (so far as is practicable), that the variation has been 

granted or refused. 

New section 69J(4) provides that a notification under subsection 

(3) that a variation has been refused must include the reasons for 

the decision to refuse to grant the variation and information 

about the right of review under Part 7. 

43

New section 69K provides that the Safety Director may make 

changes to conditions or restrictions on registration of private 

siding operators. 

New section 69K(1) provides that Safety Director may, subject 

to this section, at any time, vary or revoke a condition or 

restriction imposed by the Safety Director to which the 

registration of a registered person is subject or impose a new 

condition or restriction. 

New section 69K(2) provides that before taking action under this 


 

 

give the registered person written notice of the action 

that the Safety Director proposes to take; and 

allow the registered person to make written 

representations about the intended action within 28 days 

(or any other period that the Safety Director and the 

registered person agree on); and 

 



New section 69K(3) provides that new section 69K(2) above 

does not apply if the Safety Director considers it necessary to 

take immediate action in the interests of safety. 

New section 69K(4) provides that the Safety Director must, by 

written notice given to the registered person, provide— 

 

 

details of any action taken under subsection (1); and 

a statement of reasons for any action taken under 

subsection (1); and 


New section 69L sets out the process for revocation or 

suspension of registration by the Safety Director. 

New section 69L(1) provides that this section applies in respect 

of a registered person if— 

 

the Safety Director considers that the registered 

person— 

 



referred to in section 69E or to satisfy the 

44

conditions, or to comply with the restrictions, of 

the registration; or 

 

is not controlling or managing the private siding 

and has not done so for at least the preceding 

12 months; or 

 

the registered person contravenes this Act. 

New section 69L(2) provides that the Safety Director may— 

 

 

 

suspend the registration of the registered person for a 

period determined by the Safety Director; or 

revoke the registration of the registered person with 

immediate effect or with effect from a specified future 

date; or 

impose conditions or restrictions on the registration; or 

 

vary conditions or restrictions to which the registration 

is subject. 

New section 69L(3) provides that before making a decision 

under section 69L(2) above, the Safety Director— 

 

must notify the person in writing— 

 

 


decision under section 69L(2) of the kind, and 

for the reasons, specified in the notice; and 






 



New section 69L(4) provides that if the Safety Director suspends 

or revokes the registration of the registered person, the Safety 

Director must include in the notice of suspension or revocation 

the reasons for the suspension or revocation and information 


45

New section 69L(5) states that the Safety Director may withdraw 

a suspension of the registration of a person by means of written 

notice given to the person. 

New section 69M sets out the process for the immediate 

suspension of registration of a private siding by the Safety 

Director. 

New section 69M(1) provides that if the Safety Director 

considers that there is, or would be, an immediate and serious 

risk to safety unless a registration is suspended immediately, the 

Safety Director may, without complying with the requirements 

of section 69L(3) or (4), by written notice given to the registered 

person, immediately suspend the registration of the person for a 

specified period, not exceeding 6 weeks. 

New section 69M(2) provides that the Safety Director may, by 

written notice given to a person whose registration is 

suspended— 

 

reduce the period of suspension specified in a notice 

under section 69M(1); or 

 

extend the period of suspension specified in a notice 

under section 69M(1) but not so that the suspension 

continues for more than 6 weeks after the date of the 

notice under that subsection. 

New section 69M(3) provides that the Safety Director may 

withdraw a suspension of the registration of a person by written 

notice given to the person. 

New section 69M(4) provides that before making a decision 

under section 69M(2)(b) to extend a period of suspension, the 

Safety Director— 

 

must notify the person in writing— 

 

 

that the Safety Director is considering extending 

the period of suspension for the reasons specified 

in the notification; and 

that the person may, within 7 days or such longer 

period as is specified in the notification, make 


showing cause why the suspension should not be 

extended; and 

46



New section 69M(5) provides that if the Safety Director extends 

the suspension of the person, the Safety Director must notify the 

person in writing that the suspension is being extended and 

include in the notice the reasons for the extension and 


New section 69N sets out the process for the surrender of 

accreditation by rail transport operators of private sidings. 

New section 69N(1) provides that registration may only be in 

accordance with section 69N. 

New section 69N(2) provides that if a registered person intends 

to surrender registration, the registered person must— 

 

give the Safety Director written notice of the intention 

to surrender the registration; and 

 

provide the Safety Director with details as to the 

arrangements proposed in relation to the cessation of the 

person's railway operations in respect of the private 

siding. 

New section 69N(3) provides that if the Safety Director is 

satisfied as to the arrangements proposed in relation to the 

cessation of the registered person's railway operations, the 

Safety Director must, as soon as reasonably practicable, by 

written notice given to the person, inform the person that the 

person's registration may be surrendered in accordance with the 

proposed arrangements on the date specified in the notice. 

New section 69N(4) provides that if the Safety Director is not 

satisfied as to the arrangements proposed in relation to the 

cessation of the registered person's railway operations, the 

Safety Director must, as soon as reasonably practicable, by 

written notice given to the person, inform the person— 

 

 

that the Safety Director is not satisfied as to the 

proposed arrangements; and 

of the reasons for the Safety Director's dissatisfaction; 


47

that the person's registration may not be surrendered 

until the Safety Director is satisfied as to the proposed 

arrangements. 

New section 69O sets out the process for the payment of annual 

fees by a registered person. 

New section 69O(1) states that a registered person must pay the 

annual fee prescribed by the regulations. 

New section 69O(2) provides that the annual fee must be paid 

by a registered person at the time registration is granted and 

thereafter on an annual basis on or before the prescribed date. 

New section 69O(3) provides that the Safety Director may 

accept payment of an annual fee in accordance with an 

agreement (that provides, for example, for the payment of fees 

by instalments) made with the person who is liable to pay the 

fee. 

New section 69O(4) sets out what may be included in the 

regulations such as— 

 

 

 

fix different fees for different kinds of registration; and 

fix various methods for the calculation of various fees; 


fix fees which may be differential, varying according to 

any factor determined by the Regulator; and 

 

impose additional fees for the late payment of fees 

under this section. 

New section 69P provides that the Safety Director may waive, 

or refund, the whole or part of any fee payable under new 

Division 7 of Part 5. 

New section 69Q states that registration cannot be transferred or 

assigned. 

New section 69Q(1) provides that registration— 

 

 

 

is personal to the person who holds it; and 

is not capable of being transferred or assigned to any 

other person or otherwise dealt with by the person who 

holds it; and 

does not vest by operation of law in any other person. 

48

New section 69Q(2) provides that (2) a purported transfer or 

assignment of a registration or any other purported dealing with 

a registration by the person who holds it is of no effect. 

New section 69Q(3) provides that this section has effect despite 

anything in this Act, an Act or a rule of law to the contrary. 

New section 69R makes provision for offences relating to 

registration. 

New section 69R(1) provides that a registered person must not 

contravene a condition or restriction of the registration. 

A penalty of $50 000 for a natural person or $500 000 for a 


New section 69R(2) provides that a registered person must 

ensure that the notice of registration, and any other document 

prescribed by the regulations for the purposes of this section, is 

available for inspection— 

 

if the person is a body corporate—at the person's 

registered office during ordinary business hours; 

 

if the person is not a body corporate—at the person's 

principal place of business during ordinary business 

hours (or, if the Safety Director approves another place 

and time, at that place and time). 

A penalty of $5000 for a natural person or $25 000 for a body 


New section 69R(3) provides that a person who is required 

under new section 69R(2) to make available documents for 

inspection must maintain a register of those documents. 

A penalty of $5000 for a natural person or $25 000 for a body 


Clause 89 replaces Part 6 of the Rail Safety Act 2006. 

The new Part 6 aligns the drug and alcohol provisions in the 

local law with the relevant provisions in the Rail Safety National 

Law (Victoria). Along with the provisions in the Rail Safety 

National Law (Victoria), as adopted by the Rail Safety National 

Law Application Bill 2013 this new Part also forms part of the 

National Law in this State. The change is needed as the national 

provisions are skeletal and require extensive supplementation 

from the State scheme in respect of offences, compliance and 

enforcement powers and testing requirements in order to set 

49

enforceable and workable standards and to maintain appropriate 

drug and alcohol controls in the rail industry. 

New Division 1 of Part 6 (new sections 70 to 86L) sets out 

Preliminary matters. 

New clause 70 defines terms used in Part 6 of the Rail Safety 

Act 2006. 

assessment of drug impairment means an assessment under new 

sections 86B and 86C of the Act. New sections 86B and 86C set 

out the procedures for drug impairment assessments. 

breath analysing instrument means a breath analysing 

instrument within the meaning of the Road Safety Act 1986. 

breath analysis means an analysis of breath by a breath 

analysing instrument. 

drug screening test means a test by means of a device prescribed 

for the purpose of conducting drug screening tests. This term 

comes from South Australian legislation upon which the Rail 

Safety National Law (Victoria) is based. It currently is not 

defined in Victorian legislation, but for the sake of consistency 

will need to be used. The device prescribed in regulations will 

be a device used in Victoria. 

oral fluid analysis means an analysis of oral fluid by means of a 

device prescribed for the purpose of conducting oral fluid 

analyses. This term comes from South Australian legislation 

upon which the Rail Safety National Law (Victoria) is based. 

It currently is not defined in Victorian legislation, but for the 

sake of consistency will need to be used. The device prescribed 

in regulations will be a device used in Victoria. 

police officer means a member of the police force. 

New section 71 provides for presumptions in relation to the 

presence of concentrations of alcohol and other drugs. The new 

provisions contain presumptions to be made where a certain 

concentration of alcohol or drugs is found to be present in a 

person's blood, breath, body or oral fluid within a certain time 

after an alleged offence, unless the contrary is proved. 

New section 71(1) states that for the purposes of Part 6, if it is 

established that at any time within 3 hours after an alleged 

offence against section 76(1)(a) or (c) or 77(1)(a), a certain 

concentration of alcohol was present in the blood or breath of the 

50

ail safety worker charged with the offence it must be presumed, 

until the contrary is proved, that not less than that concentration 

of alcohol was present in the worker's blood or breath (as the 

case requires) at the time at which the offence is alleged to have 

been committed. 

New section 71(2) provides that for the purposes of Part 6, if it is 

established that at any time within 3 hours after an alleged 

offence against section 76(1)(b), a certain drug was present in 

the oral fluid or blood of the rail safety worker charged with the 

offence it must be presumed, until the contrary is proved, that 

that drug was present in the worker's oral fluid or blood at the 

time at which the offence is alleged to have been committed. 

New section 71(3) provides that for the purposes of Part 6, if it 

is established that at any time within 3 hours after an alleged 

offence against section 76(1)(c) or 77(1)(b), a certain drug was 

present in the body of the rail safety worker charged with the 

offence it must be presumed, until the contrary is proved, that 

the drug was present in the worker's body at the time at which 

the offence is alleged to have been committed. 

New section 71(4) provides that for the purposes of an alleged 

offence against section 77(1)(f) or (g) it must be presumed that 

the concentration of alcohol indicated by an analysis to be 

present in the breath of the rail safety worker charged or found 

by an analyst to be present in the sample of blood taken from the 

worker charged (as the case requires) was not due solely to the 

consumption of alcohol after having carried out rail safety work 

unless the contrary is proved by the worker charged on the 

balance of probabilities by sworn evidence given by him or her 

which is corroborated by the material evidence of another 

person. 

New section 71(5) provides that for the purposes of an alleged 

offence against section 76(1)(b) or (c) or section 77(1)(b) it must 

be presumed that a drug found by an analyst to be present in the 

sample of blood or oral fluid taken from the rail safety worker 

charged was not due solely to the consumption or use of that 

drug after carrying out rail safety work unless the contrary is 

proved by the worker charged on the balance of probabilities by 

sworn evidence given by him or her which is corroborated by the 

material evidence of another person. 

51

New section 72 provides that for the purposes of sections 86B 

to 86D, a rail safety worker is not to be taken to be impaired 

unless his or her behaviour or appearance is such as to give rise 

to a reasonable suspicion that he or she is unable to carry out rail 

safety work properly. 

New section 73 provides that for the purposes of Part 6, a rail 

safety worker is to be regarded as being about to carry out rail 

safety work if the worker has arrived at his or her place of work 

but has not yet begun work. 

New section 74 provides that if a rail safety worker who is found 

guilty or convicted of an offence against any one of the 

paragraphs of section 76(1) or 77(1) or against those sections has 

at any time been found guilty or convicted of— 

 

an offence against the same or any other of those 

paragraphs or against either of those sections; or 

 

an offence against any corresponding law— 

the finding of guilt, or conviction, of the offence against that 

paragraph or section is to be taken to be a conviction for a 

subsequent offence. 

New section 75 provides that entry into residential premises by 

transport safety officers or police officers is restricted, as 

follows: 

Despite anything else in Part 6 of the Rail Safety (Local 

Operations) Act or Division 4B of Part VII of the Transport 

(Compliance and Miscellaneous) Act 1983, the powers of 

transport safety officers under this Part or Division 4B of 

Part VII of the Transport (Compliance and Miscellaneous) 

Act 1983 or a police officer in relation to entering a place are not 

exercisable in respect of any part of a place that is used only for 

residential purposes except— 

 

 

 

with the consent of the person with control or 

management of the place; or 

under the authority conferred by a search warrant; or 

for the sole purpose of gaining access to suspected 

railway premises, but only— 

 

if the officer reasonably believes that no 

reasonable alternative access is available; and 

52

at a reasonable time, having regard to the times 

at which the officer believes rail safety work is 

being carried out at the place to which access is 

sought. 

Division 4B of Part VII of the Transport (Compliance and 

Miscellaneous) Act 1983 provides for enforcement of relevant 

transport safety laws, across the entire transport portfolio. 

New Division 2 to Part 6 of the Rail Safety Act 2006 provides 

for offences and related evidentiary matters. 

New section 76 mirrors section 128 of the Rail Safety National 

Law (Victoria). It provides for the offence relating to prescribed 

concentration of alcohol or prescribed drugs. The prescribed 

concentration of alcohol for rail safety workers is zero. 

The prescribed drugs are methylamphetamine (speed or ice), 

3, 4-Methylenedioxy-N-Methylamphetamine (MDMA) (ecstasy) 

and delta-9-tetrahydrocannabinol (cannabis). 

New section 76(1) provides that a rail safety worker must not 

carry out, or attempt to carry out, rail safety work— 

 

 

while there is present in his or her blood the prescribed 

concentration of alcohol; or 

while a prescribed drug is present in his or her oral fluid 

or blood; or 

 

while so much under the influence of alcohol or a drug 

as to be incapable of effectively discharging a function 

or duty of a rail safety worker. 

A penalty of $10 000 applies. 

New section 76(2) provides that for the purposes of subsection 

(1)(c), a person is incapable of effectively discharging a function 

or duty of a rail safety worker if, owing to the influence of 

alcohol or a drug, the use of any mental or physical faculty of 

that person is lost or appreciably impaired (but this subsection 

does not restrict in any way the operation of subsection (1)(c)). 

New section 76(2) provides that subject to subsection (4), it is a 

defence to a charge of an offence against subsection (1)(b) if the 

defendant proves that he or she did not knowingly consume the 

prescribed drug present in his or her oral fluid or blood. 

53

New section 76(4) provides that subsection (3) does not apply if 

the defendant consumed the prescribed drug believing that he or 

she was consuming a substance unlawfully but was mistaken as 

to, unaware of, or indifferent to, the identity of the prescribed 

drug. 

New section 77 sets out additional offences involving alcohol 

and drugs, which are not part of the Rail Safety National Law 

(Victoria), but which are contained in all other Victorian 

transport drug and alcohol schemes. 

New section 77(1) provides that a rail safety worker is guilty of 

an offence if he or she— 

 

 

 

 

 

 

carries out rail safety work while more than the 

prescribed concentration of alcohol is present in his or 

her breath; or 

carries out rail safety work while impaired by a drug; or 

refuses or fails to comply with a direction under section 

85(10)(a request to allow a registered medical 

practitioner or approved health professional to take a 

sample of blood); or 

refuses to undergo an assessment of drug impairment in 

accordance with sections 86B and 86C when required 

under that section to do so or refuses to comply with 

any other requirement made under section 86B(1) 

(submit to an assessment of drug impairment upon 

requires by a transport safety officer or police officer); 

or 

refuses to comply with a requirement made under 

section 86D(2) (allow a registered medical practitioner 

or approved health professional to take a sample of 

blood for analysis); or 

within 3 hours after having carried out rail safety work 

furnishes a sample of breath for analysis by a breath 

analysing instrument under a direction under section 85 

(request to submit for a breath analysis) and— 

 

the result of the analysis as recorded or shown by 

the breath analysing instrument indicates that 

more than the prescribed concentration of 

alcohol is present in his or her breath; and 

54

the concentration of alcohol indicated by the 

analysis to be present in his or her breath was not 

due solely to the consumption of alcohol after 

having carried out the rail safety work; or 

 

has had a sample of blood taken from him or her in 

accordance with section 86H within 3 hours after having 

carried out rail safety work and— 

 

the sample has been analysed within 12 months 

after it was taken by a properly qualified analyst 

within the meaning of section 86I and the analyst 

has found that at the time of analysis more than 

the prescribed concentration of alcohol was 

present in that sample; and 

 

the concentration of alcohol found by the analyst 

to be present in that sample was not due solely to 

the consumption of alcohol after having carried 

out the rail safety work. 

New section 77(2) provides that a rail safety worker who is 

guilty of an offence under subsection (1) is liable to a fine not 

exceeding $10 000. 

New section 77(3) provides that it is a defence to a charge under 

subsection (1)(f) for the person charged to prove that the breath 

analysing instrument used was not on that occasion in proper 

working order or properly operated. 

New section 77(4) provides that it is a defence to a charge under 

subsection (1)(g) for the person charged to prove that the result 

of the analysis was not a correct result. 

New section 78 provides for additional circumstances where rail 

safety workers may be convicted or found guilty. A rail safety 

worker may be convicted or found guilty of an offence under 

section 83(3), 77(1)(d) or 86A(3) even if— 

 

in the case of an offence under section 83(3) constituted 

by a failure to submit to a preliminary breath test or 

breath analysis— 

 

a breath analysing instrument was not available 

at the place where the requirement was made at 

the time it was made; or 

55

a person authorised to operate a breath analysing 

instrument was not present at the place where the 

requirement was made at the time it was made; 

 

in the case of an offence under section 86A(3) 

constituted by a failure to submit to a drug screening 

test, oral fluid analysis or blood test (or any combination 

of these)— 

 

 

 

the transport safety officer or police officer 

requiring a sample of blood had not nominated a 

registered medical practitioner or approved 

health professional to take the sample; or 

the transport safety officer or police officer 

requiring a sample of oral fluid had not 

nominated a registered medical practitioner or 

approved health professional to whom the 

sample was to be furnished for analysis; or 

a registered medical practitioner or approved 

health professional was not present at the place 

where the requirement was made at the time it 

was made; 

 

in the case of an offence under section 77(1)(d)— 

 

 

a requirement to undergo an assessment of drug 

impairment was not made at a place where such 

an assessment could have been carried out; or 

a person authorised to carry out an assessment of 

drug impairment was not present at the place 

where the requirement was made at the time it 

was made; 

 

in the case of an offence under section 86A(3)— 

 

a requirement to submit to a drug screening test, 

oral fluid analysis or blood test (or any 

combination of these) was not made at a place 

where such a test or analysis could have been 

carried out; or 

56

a person authorised to carry out the drug 

screening test, oral fluid analysis or blood test 

was not present at the place where the 

requirement was made at the time it was made. 

New section 79 provides for evidentiary provisions as to the 

effect of the consumption of alcohol or consumption or use of a 

drug. 

New section 79(1) provides that in any proceedings for an 

offence under section 77(1)(f) or (g) evidence as to the effect of 

the consumption of alcohol on the accused is admissible for the 

purpose of rebutting the presumption created by section 71(4) 

but is otherwise inadmissible. 

The presumption created by new section 71(4) is that, for the 

purposes of an alleged offence of paragraphs (f) or (g) of 

section 77 of the Rail Safety (Local Operations) Act 2006, it 

must be presumed that the concentration of alcohol indicated by 

an analysis to be present in the breath of the rail safety worker 

charged or found by an analyst to be present in the sample of 

blood taken from the worker charged was not due solely to the 

consumption of alcohol after having carried out rail safety work 

unless the contrary is proved by the person charged on the 

balance of probabilities by sworn evidence given by him or her 

which is corroborated by the material evidence of another 

person. 

New section 79(2) provides that in any proceedings for an 

offence against section 76(1)(b) or (c) or 77(1)(b) evidence as to 

the effect of the consumption or use of a drug on the accused in 

admissible for the purpose rebutting the presumption created by 

section 71(5) but is otherwise inadmissible. 

The presumption created by new section 71(5) is that, for the 

purposes of an alleged offence against section 76(1)(b) or (c) or 

77(1)(b) it must be presumed that a drug found by an analyst to 

be present in the sample of blood or oral fluid taken from the rail 

safety worker charged was not due solely to the consumption or 

use of that drug after carrying out rail safety work unless the 

contrary is proved by the worker charged on the balance of 

probabilities by sworn evidence given by him or her which is 

corroborated by the material evidence of another person. 

57

New section 80 provides for the existence of certain facts as 

proof that a rail safety worker was drug impaired while carrying 

out rail safety work. 

New section 80 provides that in proceedings for an offence 

under section 77(1)(b), proof that— 

 

 

 

the rail safety worker was carrying out rail safety work; 


one or more drugs were present in the rail safety 

worker's body at the time at which he or she carried out 

rail safety work; and 

the behaviour of the rail safety worker on an assessment 

of drug impairment carried out on the worker was 

consistent with the behaviour usually associated with a 

person who has consumed or used that drug or those 

drugs; and 

 

the behaviour usually associated with a person who has 

consumed or used that drug or those drugs would result 

in the person being unable to carry out rail safety work 

properly— 

is, in the absence of evidence to the contrary, proof that the rail 

safety worker carried out rail safety work while impaired by a 

drug. 

Section 77(1)(b) provides that a rail safety worker is guilty of an 

offence if he or she carries out rail safety work while impaired 

by a drug. 

New section 81 provides that on convicting a rail safety worker, 

or finding a rail safety worker guilty, of an offence under section 

76(1) or 77(1), a court must cause to be entered into the records 

of the court— 

 

 

in the case of an offence under section 76(1)(a), the 

level of concentration of alcohol found to be present in 

that person's blood; and 

in the case of an offence under section 77(1)(a), the 


that person's breath; 

58

in the case of an offence under section 77(1)(f), the 

level of concentration of alcohol found to be recorded or 

shown by the breath analysing instrument; and 

 

in the case of an offence under section 77(1)(g), the 


the sample of blood. 

New Division 3 to Part 6 of the Rail Safety Act 2006 sets out 

the procedures for testing and analysis. New Subdivision 1 

provides a general power for the testing of rail safety workers. 

New section 82 provides that a rail safety worker may be 

required to undertake a test for the presence of a drug or alcohol 

in accordance with Division 3. 

New Subdivision 2 of Division 3 provides for preliminary breath 

tests or breath analyses. 

New section 83 provides that a transport safety officer or police 

officer may require a rail safety worker to undergo a preliminary 

breath test or breath analysis. 

New section 83(1) provides that subject to section 83, a transport 

safety officer or police officer may at any time require a rail 

safety officer who— 

 

 

 

 

 

is about to carry out rail safety work; or 

is carrying out rail safety work; or 

is attempting to carry out rail safety work; or 

is still on railway premises after carrying out rail safety 

work; or 

without limiting a preceding paragraph—is involved in 

a prescribed notifiable occurrence; or 

 

is required to undergo an assessment of drug 

impairment— 

to submit to testing by means of a preliminary breath test or 

breath analysis (or both). 

59

New section 83(2) provides that for the purposes of making a 

requirement that a rail safety worker submit to a preliminary 

breath test or breath analysis, a transport safety officer or police 

officer may— 

 

require the worker to provide the worker's name and 

residential address; and 

 

give any other reasonable direction to the worker. 

The Bill inserts an example that states that a transport safety 

officer or police officer may direct the rail safety worker to 

accompany the transport safety officer or police officer and 

attend at a place specified by the transport safety officer or 

police officer for the purposes of carrying out the preliminary 

breath test or breath analysis. 

New section 83(3) provides that a rail safety worker must 

immediately comply with a direction given by a transport safety 

officer or police officer for the purpose of requiring the worker 

to submit to a preliminary breath test or breath analysis. 

A penalty of $10 000 applies. 

New section 84 provides for additional matters for preliminary 

breath tests which do not form part of the Rail Safety National 

Law (Victoria), but are an important part of Victorian transport 

drug and alcohol schemes. 

New section 84(1) provides that section 84 applies if a rail safety 

worker is required by a transport safety officer or police officer 

to submit to testing by means of a preliminary breath test under 


New section 84(2) provides that the rail safety worker must 

undergo a preliminary breath test by exhaling continuously into 

a prescribed device to the satisfaction of the transport safety 

officer or police officer. 

New section 84(3) provides that the rail safety worker is not 

obliged to submit to testing by means of a preliminary breath test 

under section 83 if more than 3 hours have passed since the rail 

safety worker last carried out rail safety work. 

New section 84(4) provides that a rail safety worker who, in the 

course of a period of duty is unexpectedly required to carry out 

rail safety work, may request a transport safety officer to 

60

conduct on him or her a preliminary breath test by a prescribed 

device. 

New section 84(5) provides that transport safety officer must 

comply with a request made under subsection (4). A penalty of 

$10 000 applies. 

New section 84(6) provides that the result of a preliminary 

breath test conducted under section 83 and this section is not 

admissible against the rail safety worker tested in a proceeding 

for an offence against section 76(1) or section 77(1). 

New section 84(7) provides that the result of a preliminary 

breath test that was conducted under section 83 and this section 

is admissible against the rail safety worker tested in a 

disciplinary proceeding unless the test was conducted at the 

request of the rail safety worker under subsection (5). 

New section 84(8) provides that a police officer who conducts a 

preliminary breath test under this section must ensure that the 

operation of the railway is disrupted no more than is reasonably 

necessary as a result of the testing. 

New section 85 provides for additional matters for breath 

analyses, which are not contained in the Rail Safety National 

Law (Victoria), but are an important feature of Victorian 

transport drug and alcohol schemes. 

New section 85(1) provides that section 85 applies if a rail safety 

worker is required by a transport safety officer or police officer 

to submit to testing by means of a breath analysis under 


New section 85(2) provides that for the purposes of section 

83(1), a requirement of the transport safety officer or police 

officer under that section may be that the rail safety worker 

submit to testing by doing one or both of the following— 

 

 

furnishing a sample of breath for analysis by a breath 

analysing instrument; 

furnishing one or more further samples if it appears to 

the authorised person that the breath analysing 

instrument is incapable of measuring the concentration 

of alcohol present in the sample, or each of the samples, 

previously furnished in grams per 210 litres of exhaled 

air— 

61

ecause the amount of sample furnished was 

insufficient; or 

because of a power failure or malfunctioning of 

the instrument; or 

 

for any other reason whatsoever. 

New section 85(3) provides that in addition to the above, for the 

purposes of section 83(1)(a) to (e), the transport safety officer or 

police officer may require the rail safety worker to— 

 

accompany the officer to a police station or other place 

where the sample of breath may be furnished; and 

 

remain there until he or she has furnished the sample of 

breath and been given the certificate referred to in 

subsection (8) or until 3 hours after the carrying out of 

the rail safety work— 

whichever is the sooner. 

New section 84(4) provides that in addition, for the purposes of 

section 83(1)(f), the transport safety officer or police officer may 

require the rail safety worker to remain at the place at which the 

rail safety worker is required to remain for the purposes of the 

drug assessment until— 

 

the person has furnished the sample of breath and been 

given the certificate referred to in subsection (8) and the 

drug assessment has been carried out; or 

 

3 hours after the carrying out of rail safety work— 

whichever is the sooner. 

New section 85(5) provides that if the rail safety worker is 

required to furnish a sample of breath for analysis, the rail safety 

worker must do so by exhaling continuously into the instrument 

to the satisfaction of the person operating it. 

New section 85(6) provides that, a rail safety worker is not 

obliged to furnish a sample of breath under this section if more 

than 3 hours have passed since the rail safety worker last carried 


New section 85(7) provides that a breath analysing instrument 

referred to in this section must be operated by a person 

authorised to do so by the Chief Commissioner of Police. 

62

New section 85(8) provides that as soon as practicable after a 

sample of a rail safety worker's breath is analysed by means of a 

breath analysing instrument the person operating the instrument 

must sign and give to the rail safety worker whose breath has 

been analysed a certificate containing the prescribed particulars 

produced by the breath analysing instrument of the concentration 

of alcohol indicated by the analysis to be present in his or her 

breath. 

New section 85(9) provides that a rail safety worker must not be 

convicted or found guilty of refusing to furnish under this 

section a sample of breath for analysis if he or she satisfies the 

court that there was some reason of a substantial character for 

the refusal, other than a desire to avoid providing information 

which might be used against him or her. 

New section 85(10) provides that the person who required a 

sample of breath under section 83(1) from a rail safety worker 

may require the rail safety worker to allow a registered medical 

practitioner or an approved health professional nominated by the 

person requiring the sample to take from him or her a sample of 

blood for analysis if it appears to him or her that— 

 

the rail safety worker is unable to furnish the required 

sample of breath on medical grounds or because of 

some physical disability; or 

 

the breath analysing instrument is incapable of 

measuring in grams per 210 litres of exhaled air the 

concentration of alcohol present in any sample of breath 

furnished by the rail safety worker for any reason 

whatsoever— 

and for that purpose may further require that rail safety worker 

to accompany a transport safety officer or police officer to a 

place where the sample is to be taken and to remain there until 

the sample has been taken or until 3 hours after the carrying out 

of the rail safety work, whichever is sooner. 

New section 85(11) provides that the registered medical 

practitioner or approved health professional who takes a sample 

of blood under subsection (10) must deliver a part of the sample 

to the person who required it to be taken and another part to the 

rail safety worker from whom it was taken. 

63

New section 85(12) provides that a rail safety worker who 

allows the taking of a sample of his or her blood in accordance 

with subsection (10) must not be convicted or found guilty of 

refusing to furnish under section 83(1) a sample of breath for 

analysis. 

New section 85(13) provides that a person must not hinder or 

obstruct a registered medical practitioner or an approved health 

professional attempting to take a sample of the blood of any 

other person in accordance with subsection (10). A penalty of 


New section 85(14) provides that no action lies against a 

registered medical practitioner or an approved health 

professional in respect of anything properly and necessarily done 

by the practitioner or approved health professional in the course 

of taking any sample of blood which the practitioner or approved 

health professional believed on reasonable grounds was allowed 

to be taken under subsection (10). 

New section 86 provides for evidentiary matters relating to 

breath analysis. 

New section 86(1) provides that evidence derived from a sample 

of breath furnished following a requirement made under section 

83(1) is not rendered inadmissible by a failure to comply with a 

request under section 86E if reasonable efforts were made to 

comply with the request. 

New section 86(2) provides that if the question whether a breath 

analysing instrument was incapable of measuring in grams per 

210 litres of exhaled air the concentration of alcohol present in 

any sample of breath furnished by a rail safety worker is relevant 

on a hearing for an offence against section 76(1) or 77(1) then, 

without affecting the admissibility of any evidence which might 

be given apart from the provisions of this subsection, a 

document— 

 

purporting to be a print-out produced by that instrument 

in respect of that sample; and 

 

purporting to be signed by the person who operated the 

instrument— 

is admissible in evidence and, in the absence of evidence to the 

contrary, is proof of the facts and matters contained in it. 

64

New section 86(3) provides that a document referred to in 

subsection (2) does not cease to be admissible in evidence or to 

be proof of the facts and matters contained in it only because of 

the fact that it refers to the Road Safety Act 1986 and not to the 

Rail Safety (Local Operations) Act 2006 and the reference to 

the Road Safety Act 1986 in that document and in each other 

document produced by the breath analysing instrument in 

respect of the sample of breath must be construed for all 

purposes as a reference to the Rail Safety (Local Operations) 

Act 2006. 

New Subdivision 3 of Division 3 of Part 6 to the Rail Safety 

Act 2006 provides for testing for drugs, oral fluid analyses and 

breath tests. 

New section 86A provides for the circumstances where a 

transport safety officer or a police officer may require a rail 

safety worker to undergo a drug screening test, oral fluid 

analysis or blood test. 

New section 86A(1) provides that subject to section 86A, a 

transport safety officer or police officer may at any time require 

a rail safety worker who— 

 

 

 

 





work; or 

 


a prescribed notifiable occurrence— 

to submit to a drug screening test, oral fluid analysis or blood 

test (or any combination of these). 

New section 86A(2) provides that for the purposes of making a 

requirement that a rail safety worker submit to a drug screening 

test, oral fluid analysis or blood test, a transport safety officer or 

police officer may— 

 

 

require the worker to provide the worker's name and 

residential address; and 

give any other reasonable direction to the worker. 

65

The Bill inserts an example that states that a transport safety 

officer or police officer may direct the rail safety worker to 

accompany the transport safety officer or police officer and 

attend at a place specified by the transport safety officer or 

police officer for the purposes of carrying out the drug screening 

test, oral fluid analysis or blood test. 

New section 86A(3) provides that a rail safety worker must 

immediately comply with a direction given by a transport safety 

officer or police officer for the purpose of requiring the worker 

to submit to a drug screening test, oral fluid analysis or blood 

test (or any combination of these). 

New section 86A(4) provides that for the purposes of subsection 

(1), a requirement to submit to a drug screening test, oral fluid 

analysis or blood test (or any combination of these) includes a 

requirement under new section 86D. 

New section 86B provides for assessment of drug impairment. 

New section 86B(1) provides that subject to section 86B, a 

transport safety officer or police officer may at any time direct a 

rail safety worker who is— 

 

 

 

 





work; or 

 


a prescribed notifiable occurrence— 

to submit to an assessment of drug impairment. 

New section 86B(2) provides that subject to section 86B a 

transport safety officer or police officer may require— 

 

a rail safety worker whom he or she believes on 

reasonable grounds has within the last 3 preceding hours 

carried out rail safety work on a railway when a 

notifiable occurrence or prescribed notifiable 

occurrence occurred involving the rail safety worker; or 

66

a rail safety worker whom he or she has directed under 

section 83(3) to submit to a preliminary breath test; or 

 

a rail safety worker required under section 83(3) to 

furnish a sample of breath— 

to undergo an assessment of drug impairment. 

New section 86B(3) provides that a transport safety officer or 

police officer may only give a direction under subsection (1) 

or (2) if the officer is of the opinion that rail safety worker's 

behaviour or appearance indicates that the rail safety worker 

may be impaired for a reason other than alcohol alone. 

New section 86B(4) provides that a transport safety officer or 

police officer may direct a rail safety worker given a direction 

under subsection (1) or (2) to accompany the officer to a place 

where the assessment is to be carried out and to remain there 

until the assessment has been carried out or until 3 hours after 

the carrying out of the rail safety work, whichever is sooner. 

New section 86B(5) provides that a rail safety worker is not 

obliged to undergo an assessment of drug impairment if more 

than 3 hours have passed since the rail safety worker last carried 


New section 86C sets out the procedure for assessments of drug 

impairment. 

New section 86C(1) provides that an assessment of drug 

impairment must be carried out by— 

 

a transport safety officer authorised to do so by the 

Safety Director in consultation with the Chief 

Commissioner of Police; or 

 

a police officer authorised to do so by the Chief 

Commissioner of Police. 

New section 86C(2) provides that an assessment of drug 

impairment must be carried out in accordance with the procedure 

specified in a notice under subsection (3). 

New section 86C(3) provides that the Safety Director may, by 

noticed published in the Government Gazette, specify the 

procedure to be followed in assessing drug impairment. 

67

New section 86C(4) provides that the carrying out of an 

assessment of drug impairment on a rail safety worker must be 

video-recorded if the rail safety worker was involved in a 

notifiable occurrence or prescribed notifiable occurrence unless 

the prosecution satisfies the court that a videorecording has not 

been made because of exceptional circumstances. 

New section 86C(5) provides that if the rail safety worker on 

whom an assessment of drug impairment was carried out is 

subsequently charged with an offence under section 77(1)(b), 

and the carrying out of the assessment of drug impairment is 

video-recorded, a copy of the videorecording must be served 

with the summons or, if a summons is not issued, within 7 days 

after the filing of the charge-sheet charging the offence. 

New section 86C(6) provides that subject to subsection (7), the 

video-recording of the carrying out of an assessment of drug 

impairment on a rail safety worker is only admissible in a 

proceeding against that rail safety worker for an offence against 

the Rail Safety Act 2006 for the purpose of establishing that the 

assessment of drug impairment was carried out in accordance 

with the procedure specified in a notice under subsection (3). 

New section 86C(7) provides that evidence obtained as a result 

of an assessment of drug impairment carried out on a rail safety 

worker is inadmissible as part of the prosecution case in 

proceedings against that rail safety worker for any offence if the 

video-recording of the assessment and any related material and 

information should have been but has not been destroyed as 

required by section 86G. 

New section 86C(8) provides that in any proceeding under the 

Rail Safety Act 2006— 

 

 

the statement of a transport safety officer that on a 

particular date he or she was authorised by the Safety 

Director under subsection (1)(a) to carry out an 

assessment of drug impairment; or 

the statement of a police officer that on a particular date 

he or she was authorised by the Chief Commissioner of 

Police under subsection (1)(b) to carry out an 

assessment of drug impairment; or 

68

a certificate purporting to be signed by the Safety 

Director that a transport safety officer named in it is 

authorised by the Safety Director under subsection (1) 

to carry out an assessment of drug impairment; or 

 

a certificate purporting to be signed by the Chief 

Commissioner of Police that a police officer named in it 

is authorised by the Chief Commissioner of Police 

under subsection (1) to carry out an assessment of drug 

impairment— 


contrary, is proof of the authority of that transport safety officer 

or police officer (as the case requires). 

New section 86D provides for oral fluid analysis and blood tests. 

New section 86D(1) provides that section 86D applies if a rail 

safety worker— 

 

is required by a transport safety officer or police officer 

to submit to an oral fluid analysis or blood test (or a 

combination of these) under section 86A(1); or 

 

undergoes an assessment of drug impairment when 

required under sections 86B and 86C to do so and the 

assessment, in the opinion of the transport safety officer 

or police officer carrying it out, indicates that the rail 

safety worker may be impaired by a drug or drugs. 

New section 86D(2) provides that a transport safety officer or 

police officer may require the rail safety worker to do either or 

both of the following— 

 

allow a registered medical practitioner or an approved 

health professional nominated by the officer to take 

from the rail safety worker a sample of that rail safety 

worker's blood for analysis; 

 

furnish to a registered medical practitioner or an 

approved health professional nominated by the officer a 

sample of that rail safety worker's oral fluid for 

analysis— 

and for that purpose may further require the rail safety worker to 

accompany the officer to a place where the sample is to be taken 

or furnished and to remain there until the sample has been taken 

69

or furnished or until 3 hours after the carrying out of the rail 

safety work, whichever is sooner. 

New section 86D(3) provides that a transport safety officer or 

police officer must not require a rail safety worker to allow a 

sample of his or her blood to be taken for analysis under 

subsection (2)(a) if that rail safety worker has already had a 

sample of blood taken from him or her under section 86E after 

carrying out rail safety work. 

New section 86D(4) provides that the registered medical 

practitioner or approved health professional who takes a sample 

of blood or is furnished with a sample of oral fluid under this 

section must deliver a part of the sample to the transport safety 

officer or police officer who required it to be taken or furnished 

and another part to the rail safety worker from whom it was 

taken or by whom it was furnished. 

New section 86D(5) provides that a person must not hinder or 

obstruct a registered medical practitioner or an approved health 

professional attempting to take a sample of the blood, or be 

furnished with a sample of oral fluid, of any other person in 

accordance with this section. A penalty of $10 000 applies. 

New section 86D(6) provides that no action lies against a 

registered medical practitioner or an approved health 

professional in respect of anything properly and necessarily done 

by the practitioner or approved health professional in the course 

of taking any sample of blood, or being furnished with any 

sample of oral fluid, which the practitioner or approved health 

professional believed on reasonable grounds was required to be 

taken from, or be furnished by, any person under this section. 

New section 86D(7) provides that if the person on whom an 

assessment of drug impairment was carried out is subsequently 

charged with an offence under section 77(1)(b), a copy of a 

written report on that assessment prepared by the transport safety 

officer or police officer who carried it out and containing the 

prescribed particulars must be served with the summons or, if a 

summons is not issued, within 7 days after the filing of the 

charge-sheet charging the offence. 

New section 86E provides that a rail safety worker may request a 

sample of blood to be taken for analysis. 

70

New section 86E(1) provides that section 86E applies if— 

 

a rail safety worker is required under section 83(1) to 

submit to testing by means of a breath analysis; and 

 

the rail safety worker does so by furnishing a sample of 

breath for analysis in accordance with section 85. 

New section 86E(2) provides that the rail safety worker may, 

immediately after being given the certificate referred to in 

section 85(8), request the transport safety officer or police 

officer making the requirement to arrange for the taking in the 

presence of a transport safety officer or police officer of a 

sample of the rail safety worker's blood for analysis at the rail 

safety worker's own expense by a registered medical practitioner 

or an approved health professional nominated by the officer. 

New section 86E(3) provides that a part of a sample of blood 

taken under subsection (2) must be delivered to the person who 

required the sample of breath under this section. 

New section 86E(4) provides that nothing in subsection (2) 

relieves a rail safety worker from any penalty under 


New section 86F states that a sample of oral fluid or blood taken 

under Part 6 (and any other forensic material taken incidentally 

during a drug screening test, oral fluid analysis or blood test) 

must not be used for a purpose other than that contemplated by 

Part 6, in connection with the control or management of any 

work or activity associated with railway operations, or for the 

purpose of disciplinary proceedings against a rail safety worker. 

New section 86G provides for the destruction of identifying 

information. 

New section 86G(1) defines relevant offence for the purposes of 

section 86G to mean— 

 

 

 

an offence under section 77(1)(b) or (e) or 

section 86A(3); or 

any other offence arising out of the same circumstances; 

or 

any other offence in respect of which the evidence 

obtained as a result of the assessment of drug 

impairment has probative value. 

71

New section 86G(2) provides that if a rail safety worker submits 

to an oral fluid analysis or blood test (or a combination of these) 

under section 86A(1) or an assessment of drug impairment has 

been carried out on the rail safety worker under sections 86B 

and 86C and— 

 

the rail safety worker has not been charged with a 

relevant offence at the end of the period of 12 months 

after the submission to oral fluid analysis or blood test 

or the assessment of drug impairment (as the case 

requires; or 

 

the rail safety worker has been so charged but the 

charge is not proceeded with, the prosecution for the 

offence is discontinued or the rail safety worker is not 

found guilty of the offence, whether on appeal or 

otherwise, before the end of that period— 

the Safety Director or Chief Commissioner of Police (as the case 

requires) must, subject to subsection (4), destroy, or cause to be 

destroyed, at the time specified in subsection (3) any videorecording 

made of the assessment and any related material and 

information. 

New section 86G(3) provides that a video-recording and any 

related material and information referred to in subsection (2) 

must be destroyed— 

 

 

in a case to which subsection (2)(a) applies, 

immediately after that period of 12 months; or 

in a case to which subsection (2)(b) applies— 

 

within 1 month after the conclusion of the 

proceeding and the end of any appeal period; or 

 

if the proceeding has been adjourned under 

section 75 of the Sentencing Act 1991, within 

1 month after dismissal under that section. 

New section 86G(4) provides that a transport safety officer or 

police officer may, before the end of a period referred to in 

subsection (3)(b), apply without notice to the Magistrates' Court 

for an order extending that period and, if the Court makes such 

an order, the reference to the period in subsection (3) is a 

reference to that period as so extended. 

72

New section 86G(5) provides that if the Magistrates' Court 

makes an order under subsection (4), it must give reasons for its 

decision and cause a copy of the order to be served on the person 

on whom the assessment of drug impairment was carried out. 

New section 86G(6) provides that if a video-recording or related 

material and information is required to be destroyed in 

accordance with this section, the Safety Director or Chief 

Commissioner of Police (as the case requires) must, if the rail 

safety worker on whom the assessment was carried out so 

requests, within 14 days after receiving the request, notify that 

rail safety worker in writing whether the destruction has 

occurred. 

New section 85G(7) provides that a person who knowingly— 

 

fails to destroy; or 

 

uses, or causes or permits to be used— 

a video-recording or related material and information required 

by this section to be destroyed is guilty of an offence punishable 

by a penalty of up to 120 penalty units or imprisonment for up to 

12 months. 

New section 86G(8) provides that a person who at any time uses, 

or causes or permits to be used, or otherwise disseminates 

information derived from any videorecording or related material 

and information required by this section to be destroyed except 

in good faith for the purposes of a relevant offence is guilty of an 

offence punishable by a penalty of up to 120 penalty units or 

imprisonment for up to 12 months. 

New section 86H provides that blood samples are to be taken in 

certain cases. 

New section 86H(1) provides that for the purposes of 

section 86H, doctor means a registered medical practitioner and 

includes a police surgeon. 

New section 86H(2) provides that if a rail safety worker enters 

or is brought to a place for examination or treatment in 

consequence of a notifiable occurrence (whether within Victoria 

or not), the rail safety worker must allow a doctor or approved 

health professional to take from the rail safety worker at that 

place a sample of his or her blood for analysis. A penalty of 


73

New section 86H(3) provides that subsection (2) does not apply 

if— 

 

 

 

in the opinion of the doctor or approved health 

professional first responsible for the examination or 

treatment of the rail safety worker the taking of a blood 

sample from the rail safety worker would be prejudicial 

to his or her proper care and treatment; or 

a transport safety officer or police officer has notified 

the doctor or approved health professional first 

responsible for the examination or treatment of the rail 

safety worker, in writing, that the rail safety worker has 

undergone a preliminary breath test which did not 

indicate that the prescribed concentration of alcohol 

was exceeded; or 

the doctor or approved health professional first 

responsible for the examination or treatment of the rail 

safety worker believed on reasonable grounds that the 

rail safety worker was not a rail safety worker; or 

 

a police officer or a doctor or approved health 

professional has notified the doctor or approved health 

professional first responsible for the examination or 

treatment of the rail safety worker, in writing, that a 

sample of the rail safety worker's blood was taken by a 

doctor or approved health professional before the person 

entered or was brought to the place for examination or 

treatment. 

New section 86H(4) provides that a rail safety worker to whom 

subsection (2) applies and who is unconscious or otherwise 

unable to communicate must be taken to allow the taking of a 

sample of his or her blood by a doctor or approved health 

professional at a place which he or she enters or to which he or 

she is brought for examination or treatment. 

New section 86H(5) provides that if a sample of a rail safety 

worker's blood is taken in accordance with this section, evidence 

of the taking of it, the analysis of it or the results of the analysis 

must not be used in evidence in any legal proceeding except— 

74

for the purposes of section 86I; or 

for a proceeding for an offence against section 48(2); or 

for the purposes of the Transport Accident Act 1986— 

but may be given— 

 

to the Transport Accident Commission and, for the 

purposes of a review under the Transport Accident 

Act 1986, to the Tribunal; and 

 

to the Department for the purposes of accident research. 

New section 86H(6) provides that a person must not hinder or 

obstruct a doctor or approved health professional attempting to 

take a sample of the blood of any other person in accordance 

with this section. A penalty of $10 000 applies. 

New section 86H(7) provides that no action lies against a doctor 

or approved health professional in respect of anything properly 

and necessarily done by the doctor or approved health 

professional in the course of taking any sample of blood which 

the doctor or approved health professional believes on 

reasonable grounds was required or allowed to be taken from a 

rail safety worker under this section. 

New Division 4 to Part 6 of the Rail Safety Act 2006 sets out 

evidentiary provisions for blood and oral fluid tests. 

New section 86I sets out detailed evidentiary provisions in 

respect of blood tests. 

New section 86I(1) provides definitions for the purposes of 

section 86I. 

approved analyst means a person who by virtue of new section 

86I(2) is taken to be a properly qualified expert for the purpose 

of the section. 

approved expert means a person who by virtue of new section 

86I(3) is taken to be a properly qualified expert for the purpose 


properly qualified analyst means— 

 

 

an approved analyst; or 

a person who is considered by the court hearing the 

charge for the offence to have scientific qualifications, 

75

training and experience that qualifies him or her to carry 

out the analysis and to express an opinion as to the facts 

and matters contained in a certificate under section 

86I(6) or (7) as the case requires; 

properly qualified expert means— 

 

an approved expert; or 

 



training and experience that qualifies him or her to 

express an opinion as to the facts and matters contained 

in a certificate under section 86I (8). 

New section 86I(2) provides that a person who is an approved 

analyst within the meaning of section 57 of the Road Safety Act 

1986 is taken to be a properly qualified analyst for the purposes 

of section 86I. 

New section 86I(3) provides that a person who is an approved 

expert within the meaning of the Road Safety Act 1986 is to be 

taken to be a properly qualified expert for the purposes of 

section 86I. 

New section 86I(4) provides that if— 

 

 

the question whether a rail safety worker was or was not 

at any time under the influence of alcohol or any other 

drug; or 

the presence of alcohol or any other drug, or the 

concentration of alcohol in the blood of a rail safety 

worker at any time; or 

 

a finding on the analysis of a blood sample of a rail 

safety worker— 

is relevant on a hearing for an offence against section 76 or 77, 

or in any inquest or investigation held by a coroner then, without 

affecting the admissibility of any evidence which might be given 

apart from the provisions of this section, evidence may be given 

of the taking, within 3 hours after the rail safety worker carried 

out rail safety work, of a sample of blood from the rail safety 

worker by a registered medical practitioner or an approved 

health professional, of the analysis of that sample of blood by a 

properly qualified analyst within 12 months after it was taken, 

of the presence of alcohol and, if alcohol is present, of the 

76

concentration of alcohol expressed in grams per 100 millilitres 

of blood found by that analyst to be present in that sample of 

blood at the time of analysis and, if a drug is present, evidence 

may be given by a properly qualified expert of the usual effect of 

that drug on behaviour when consumed or used (including its 

effect on a person's ability to carry out rail safety work 

properly). 

New section 86I(5) provides that a certificate containing the 

prescribed particulars purporting to be signed by a registered 

medical practitioner or an approved health professional is 

admissible in evidence in a proceeding referred to in subsection 

(4) and, in the absence of evidence to the contrary, is proof of 

the facts and matters contained in it. 


prescribed particulars purporting to be signed by an approved 

analyst as to the concentration of alcohol expressed in grams per 

100 millilitres of blood found in any sample of blood analysed 

by the analyst is admissible in evidence in a proceeding referred 

to in subsection (4) and, in the absence of evidence to the 

contrary, is proof of the facts and matters contained in the 

certificate. 



analyst as to the presence in any sample of blood analysed by the 

analyst of a substance that is, or is capable of being, a prescribed 

drug for the purposes of Part 6 of the Rail Safety (Local 

Operations) Act 2006 is admissible in evidence in any 

proceedings referred to in subsection (4) and, in the absence of 

evidence to the contrary, is proof of the facts and matters 

contained in the certificate. 



expert as to the usual effect of a specified substance or 

substances on behaviour when consumed or used (including its 

effect on a rail safety worker's ability to carry out rail safety 

work properly) is admissible in evidence in any proceedings 

referred to in subsection (4) and, in the absence of evidence to 

the contrary, is proof of the facts and matters contained in the 

certificate. 

77

New section 86I(9) provides that a certificate given under this 

section must not be tendered in evidence in a proceeding 

referred to in subsection (4) without the consent of the accused 

unless a copy of the certificate is proved to have been served on 

the accused more than 10 days before the day on which the 

certificate is tendered in evidence. 

New section 86I(10) A copy of a certificate given under 

section 86 section may be served on the accused by— 

 

delivering it to the accused personally; or 

 

leaving it for the accused at his or her last or most usual 

place of residence or of business with a person who 

apparently resides or works there and who apparently is 

not less than 16 years of age. 

New section 86I(11) provides that an affidavit or statutory 

declaration by a person who has served a copy of the certificate 

on the accused is admissible in evidence in a proceeding referred 

to in subsection (4) and, as to the service of the copy, is proof, in 

the absence of evidence to the contrary, of the facts and matters 

deposed to in the affidavit or stated in the statutory declaration. 

New section 86I(12) provides that an accused who has been 

served with a copy of a certificate given under this section may, 

with the leave of the court and not otherwise, require the person 

who has given the certificate or any other person employed, or 

engaged to provide services at, the place at which the sample of 

blood was taken to attend at all subsequent proceedings for 

cross-examination and that person must attend accordingly. 

New section 86I(13) provides that the court must not grant leave 

under subsection (12) unless it is satisfied— 

 

 

that the informant has been given at least 7 days' notice 

of the hearing of the application for leave and has been 

given an opportunity to make a submission to the court; 


that— 

 

there is a reasonable possibility that the blood 

referred to in a certificate given by an analyst 

under subsection (6) was not that of the accused; 

or 

78


referred to in a certificate given by a registered 

medical practitioner or an approved health 

professional had become contaminated in such a 

way that the blood alcohol concentration found 

on analysis was higher than it would have been 

had the blood not been contaminated in that way; 

or 





way that a drug found on analysis would not 

have been found had the blood not been 

contaminated in that way; or 

there is a reasonable possibility that the sample 

was not taken in accordance with the Code of 

Practice for Taking Blood Samples from Road 

Accident Victims; or 

 

for some other reason the giving of evidence by 

the person who gave the certificate or any other 

person employed, or engaged to provide services 

at, the place at which the sample of blood was 

taken would materially assist the court to 

ascertain relevant facts. 

New section 86I(14) provides that an accused who has been 

served with a copy of a certificate given under this section may 

not require the person who has given the certificate or any other 

person employed, or engaged to provide services at, the place at 

which the sample of blood was taken, to attend the court on the 

hearing of an application for leave under section 86I(12). 

New section 86I(15) provides that if a registered medical 

practitioner or an approved health professional is requested to 

make an examination or to collect a sample of blood for the 

purposes of this section and if the rail safety worker to be 

examined or from whom a sample of blood is to be collected has 

expressed consent to that examination or collection, no action 

lies against the registered medical practitioner or approved 

health professional who acts in accordance with that consent 

even if it subsequently appears that the rail safety worker was in 

79

fact incapable by reason of his or her mental condition from 

effectively giving consent to the examination or collection. 

New section 86I(16) provides that except as provided in sections 

86D and 86H, a blood sample must not be taken and evidence of 

the result of an analysis of a blood sample must not be tendered 

unless the rail safety worker from whom the blood has been 

collected has expressed consent to the collection of the blood 

and the onus of proving that expression of consent is on the 

prosecution. 

New section 86I(17) provides that the mere failure or refusal of a 

rail safety worker to express consent must not be used in 

evidence against the rail safety worker or referred to in any way 

against the rail safety worker's interests in any proceeding. 

New section 86I(18) provides that a certificate purporting to be 

signed by a person— 

 

who took a blood sample; or 

 

who analysed a blood sample— 

in accordance with the provisions of an Act of another State or a 

Territory that substantially corresponds to section 86H of the 

Rail Safety Act 2006 and in accordance with any regulations 

made under the corresponding Act is admissible in evidence in a 

proceeding referred to in subsection (4) and, in the absence of 

evidence to the contrary, is proof of the facts and matters 

contained in it. 

New section 86I(19) provides that subsections (7), (10), (11) and 

(12) apply in respect of a certificate referred to in subsection 

(18) as if the certificate was given under this section. 

New section 86J sets out detailed evidentiary provisions in 

respect of oral fluid samples. 

New section 86J(1) provides several definitions for the purposes 

of the new section. 

approved analyst means a person who by virtue of new section 

86J(2) is taken to be a properly qualified expert for the purpose 


approved expert means a person who by virtue of new section 

86J(3) is taken to be a properly qualified expert for the purpose 


80

properly qualified analyst means— 

 

an approved analyst; or 

 



training and experience that qualifies him or her to carry 

out the analysis and to express an opinion as to the 

facts and matters contained in a certificate under 

subsection (6); 

properly qualified expert means— 

 

an approved expert; or 

 



training and experience that qualifies him or her to 

express an opinion as to the facts and matters contained 

in a certificate under subsection (6). 

New section 86J(2) provides that a person who is an approved 

analyst within the meaning of section 57A of the Road Safety 

Act 1986 is taken to be a properly qualified analyst for the 

purpose of section 86J. 

New section 86J(3) provides that a person who is an approved 

expert within the meaning of the Road Safety Act 1986 is to be 

taken to be a properly qualified expert for the purposes of 

section 86J. 

New section 86J(4) provides that if a question as to the presence 

of a drug in the body of a rail safety worker at any time is 

relevant in a hearing for an offence against section 76 or 77 then, 

without affecting the admissibility of any evidence which might 

be given apart from the provisions of this section, evidence may 

be given— 

 

 

 

of the furnishing by that rail safety worker, within 

3 hours after that rail safety worker carried out rail 

safety work, of a sample of oral fluid to a registered 

medical practitioner or an approved health professional; 

of the analysis of that sample of oral fluid by a properly 

qualified analyst within 12 months after it was taken; 

of the presence of a drug in that sample of oral fluid at 

the time of analysis; 

81

y a properly qualified expert of the usual effect of that 

drug on behaviour when consumed or used (including 

its effect on a rail safety worker's ability to carry out rail 

safety work properly). 

New section 86J(5) provides that a certificate containing the 

prescribed particulars purporting to be signed by a registered 

medical practitioner or an approved health professional is 

admissible in evidence in any hearing referred to in subsection 

(4) and, in the absence of evidence to the contrary, is proof of 

the facts and matters contained in the certificate. 



analyst as to the presence in any sample of oral fluid analysed by 

the analyst of a substance that is, or is capable of being, a 

prescribed drug for the purposes of this Part is admissible in 

evidence in any hearing referred to in subsection (4) and, in the 

absence of evidence to the contrary, is proof of the facts and 

matters contained in the certificate. 



expert as to the usual effect of a specified substance or 

substances on behaviour when consumed or used (including its 

effect on a rail safety worker's ability to carry out rail safety 

work properly) is admissible in evidence in any hearing referred 

to in subsection (4) and, in the absence of evidence to the 

contrary, is proof of the facts and matters contained in the 

certificate. 

New section 86J(8) provides that a certificate given under this 

section must not be tendered in evidence at a hearing referred to 

in subsection (4) without the consent of the accused unless a 

copy of the certificate is proved to have been personally served 

on the accused more than 10 days before the day on which the 

certificate is tendered in evidence. 

New section 86J(9) provides that an affidavit or statutory 

declaration by the person who has personally served a copy of 

the certificate on the accused is admissible in evidence at a 

hearing referred to in subsection (4) and, as to the service of the 

copy, is proof, in the absence of evidence to the contrary, of the 

facts and matters deposed to in the affidavit or stated in the 

statutory declaration. 

82

New section 86J(10) provides that an accused who has been 

served with a copy of a certificate given under this section may, 

with the leave of the court and not otherwise, require the person 

who has given the certificate or any person employed, or 

engaged to provide services at, the place at which the sample of 

oral fluid was furnished, to attend at all subsequent proceedings 

for cross-examination and that person must attend accordingly. 

New section 86J(11) provides that the court must not grant leave 

under subsection (10) unless it is satisfied— 

 

 

that the informant has been given at least 7 days' notice 

of the hearing of the application for leave and has been 

given an opportunity to make a submission to the court; 


that— 

 

 

there is a reasonable possibility that the oral fluid 

referred to in a certificate given by an analyst 

under subsection (6) was not that of the accused; 

or 

there is a reasonable possibility that the oral fluid 




way that a drug found on analysis would not 

have been found had the oral fluid not been 

contaminated in that way; or 

 

for some other reason the giving of evidence by 

the person who gave the certificate would 

materially assist the court to ascertain relevant 

facts. 

New section 86J(12) provides that an accused who has been 

served with a copy of a certificate given under this section may 

not require the person who has given the certificate or any 

person employed, or engaged to provide services at, the place at 

which the sample of oral fluid was furnished, to attend the court 

on the hearing of an application for leave under subsection (10). 

New section 86K sets out detailed evidentiary provisions for 

breath tests. 

83

New section 86K(1) provides that if— 

 

 

the question whether a rail safety worker was or was not 

at any time under the influence of alcohol; or 

the presence, or the concentration, of alcohol in the 

breath of a rail safety worker at any time; or 

 

a result of a breath analysis of a rail safety worker— 

is relevant on a hearing for an offence against section 76 or 77 

then, without affecting the admissibility of any evidence which 

might be given apart from the provisions of this section, 

evidence may be given of the concentration of alcohol indicated 

to be present in the breath of that person by a breath analysing 

instrument operated by a person authorised to do so by the Chief 

Commissioner of Police under section 85 and the concentration 

of alcohol so indicated is, subject to compliance with section 

85(6), evidence of the concentration of alcohol present in the 

breath of that person at the time his or her breath is analysed by 

the instrument. 

New section 86K (2) provides that a document purporting to be 

a certificate containing the prescribed particulars produced by 

a breath analysing instrument of the concentration of alcohol 

indicated by the analysis to be present in the breath of a person 

and purporting to be signed by the person who operated the 

instrument is admissible in evidence in a proceeding referred to 

in subsection (1) and, subject to subsection (8), is conclusive 

proof of— 

 

 

 

 

 

the facts and matters contained in it; and 

the fact that the instrument used was a breath analysing 

instrument; and 

the fact that the person who operated the instrument was 

authorised to do so by the Chief Commissioner of 

Police under section 85; and 

the fact that all relevant regulations relating to the 

operation of the instrument were complied with; and 

the fact that the instrument was in proper working order 

and properly operated; and 

84

the fact that the certificate is identical in its terms to 

another certificate produced by the instrument in respect 

of the sample of breath and that it was signed by the 

person who operated the breath analysing instrument 

and given to the accused person as soon as practicable 

after the sample of breath was analysed— 

unless the accused person gives notice in writing to the 

informant not less than 28 days before the hearing, or any 

shorter period ordered by the court or agreed to by the 

informant, that he or she requires the person giving the 

certificate to be called as a witness or that he or she intends to 

adduce evidence in rebuttal of any such fact or matter. 

New section 86K(3) provides that certificate referred to in 

subsection (2) does not cease to be admissible in evidence or to 

be conclusive proof of the facts and matters referred to in that 

subsection only because of the fact that it refers to the Road 

Safety Act 1986 and not to the Rail Safety (Local Operations) 

Act 2006 and the reference to the Road Safety Act 1986 in that 

certificate and in each other certificate produced by the breath 

analysing instrument in respect of the sample of breath must be 

construed for all purposes as a reference to the Rail Safety 

(Local Operations) Act 2006. 

New section 86K(4) provides that a notice under subsection (2) 

must specify any fact or matter with which issue is taken and 

indicate the nature of any expert evidence which the accused 

person intends to have adduced at the hearing. 

New section 86K(5) provides that the accused person may not, 

except with the leave of the court, introduce expert evidence at 

the hearing if the nature of that evidence was not indicated in a 

notice under subsection (2). 

New section 86K(6) provides that if an accused person gives 

notice to the informant in accordance with subsection (2) that he 

or she requires the person giving a certificate to be called as a 

witness and the court is satisfied that that person— 

 

 

is dead; or 

is unfit by reason of his or her bodily or mental 

condition to testify as a witness; or 

85

has ceased to be a police officer or is out of Victoria and 

it is not reasonably practicable to secure his or her 

attendance; or 

 

cannot with reasonable diligence be found— 

the court must order that subsection (2) has effect as if the notice 

had not been given. 

New section 86(7) provides that a certificate referred to in 

subsection (2) remains admissible in evidence even if the 

accused person gives a notice under that subsection but, in that 

event, the certificate ceases to be conclusive proof of the facts 

and matters referred to in that subsection. 

New section 86K(8) provides that nothing in subsection (2) 

prevents the informant adducing evidence to explain any fact or 

matter contained in a certificate referred to in subsection (2) and, 

if the informant does so, the certificate remains admissible in 

evidence but ceases to be conclusive proof of that fact or matter 

only. 

New section 86K(9) provides that in any proceeding under the 

Rail Safety (Local Operations) Act 2006— 

 

the statement of any person that on a particular date he 

or she was authorised by the Chief Commissioner of 

Police under section 85(6) to operate breath analysing 

instruments; or 

 

a certificate purporting to be signed by the Chief 

Commissioner of Police that a person named in it is 

authorised by the Chief Commissioner of Police under 

section 85(6) to operate breath analysing instruments— 


contrary, is proof of the authority of that person. 

New section 86(10) provides that evidence by a person 

authorised to operate a breath analysing instrument under 

section 85— 

 

 

that an apparatus used by him or her on any occasion 

under that section was a breath analysing instrument; 

that the breath analysing instrument was on that 

occasion in proper working order and properly operated 

by him or her; 

86

that, in relation to the breath analysing instrument, all 

regulations with respect to breath analysing instruments 

were complied with— 

is, in the absence of evidence to the contrary, proof of those 

facts. 

New section 86K(11) provides that the statement on oath of a 

person authorised to operate a breath analysing instrument under 

section 85 when called as a witness that any apparatus used by 

him or her on any occasion under section 85 had written, 

inscribed or impressed on some portion of it or on a plate 

attached to it the expressions— 

 

"Alcotest 7110" and "3530791"; or 

"Alcotest 9510AUS" and "8320869"— 

whether with or without other expressions or abbreviations of 

expressions, commas, full stops, hyphens or other punctuation 

marks and whether or not all or any of the numbers are boxed in 

is, in the absence of evidence to the contrary, proof that the 

apparatus is a breath analysing instrument. 

New Division 5 to Part 6 of the Rail Safety Act 2006 provides 

for approvals given in relation to Part 6. 

New section 86L(1) provides that an authority given under or for 

the purposes of— 

 

section 85 or 86C(1)(b) by the Chief Commissioner of 

Police; or 

 

section 86C(1)(a) by the Safety Director— 

may be revoked at any time in the manner in which it was given 

and on revocation ceases to have any effect. 

New section 86L(2) provides that if it is provided by or under 

this Part that the Minister or the Chief Commissioner of Police 

or any other person may approve of any type or kind of 

apparatus or equipment— 

 

 

the approval must be given by notice published in the 

Government Gazette; and 

any withdrawal of approval must be made by notice 

published in the Government Gazette. 

87

Clause 90 substitutes a new table in section 87 of the Rail Safety Act 2006 

which sets out decisions made under the Act that are reviewable 

and which identifies the persons who are eligible to apply for a 

review of a reviewable decision. 

Examples of reviewable decisions include— 

 

 

 

decisions relating to accreditation; 

decisions relating to exemptions; and 

decisions relating to registration. 

Clause 91 

Clause 92 

Clause 93 


Safety Act 2006 to clarify that the reviewable decisions in Part 7 

are to be heard by the Victorian Civil and Administrative 

Tribunal (VCAT). 







Clause 94 substitutes a new section 98 into the Rail Safety Act 2006. 

New section 98 provides that if a body corporate commits an 

offence against a specified provision, an officer of the body 

corporate also commits an offence against the provision if the 

officer failed to exercise due diligence to prevent the 

commission of the offence by the body corporate. 

This means that the prosecution is required to prove that the 

body corporate committed the offence. This does not require a 

prior finding of guilt against the body corporate but requires the 

prosecution to satisfy the court of the necessary elements 

constituting the specific offence. The prosecution is then 

required to prove, beyond reasonable doubt, that the accused 

failed to exercise due diligence to prevent the commission of the 

offence by the body corporate. 

88

New section 98(2) specifies the following provisions of the Rail 

Safety Act 2006 as provisions to which the clause applies— 

 

 

 

 

 

 

 

 

 

 

 

 

section 20(1)—offences relating to general duties of rail 

transport operators. 

section 22(1) and (2)—offences relating to the general 

duties of rail contractors who design, commission, 

construct, etc or supply railway operations to a rail 

transport operator. 

section 22A(1) and (2)—offences relating to labour hire 

entities who supply services to a rail transport operator. 

section 23(1), (2) and (3)—offences relating to the 

duties of rail safety workers. 

section 23A(1)—offence relating a person who loads or 

unloads goods or freight to or from rolling stock. 

section 26—offence relating to an accredited rail 

transport operator consulting before establishing a 

safety management system. 

section 27—offence relating to enacting a safety 

management system. 

sections 28(1)—offence relating to compliance with 

safety management systems. 

section 28A(2)—offence relating to the provision of 

access to a safety management system to the Safety 

Director or a transport safety officer. 

section 28B(2)—offence relating to requirements of an 

exempted rail transport operator. 

section 33(4) and (5)—offences relating to compliance 

with a direction given by the Safety Director in relation 

to utility works or railway operations. 

section 34(5)—offence relating to compliance with a 

direction given by the Safety Director in relation to 

utility works or railway operations. 

89

section 34J(7)—offence relating to compliance with a 

direction to make a safety interface agreement. 

section 34K(2)—offence relating to a relevant road 

authority maintaining a register of safety interface 

agreements. 

section 36—offence relating to operating rolling stock, 

etc without appropriate accreditation or exemption from 

accreditation. 


direction given by the Safety Director in relation to 

rolling stock operator applicants. 

section 43(4) and (5)—offences relating to compliance 

with a direction to coordinate and corporate with 

another applicant in an accreditation application. 


condition or restriction imposed on a rail transport 

operator's accreditation. 

section 54(2)—offence relating to variation of 

accreditation. 

section 57(1)—offence relating to not providing 

misleading information in an application for an 

accreditation or variation of an accreditation or a 

condition. 

section 61K—offence relating to a breach of a condition 

or restriction on an exemption from accreditation. 

section 68(1)—offence relating to emergency plans. 

section 69(1)—offence relating to notifying emergency 

services and others after an incident. 

section 69A(2) and (3)—offences relating to the 

provision of information regarding safety and financial 

capacity. 

section 69R(1)—offence relating to contravention of a 

condition or restriction of a registration of a private 

siding. 

90

Clause 94(3) provides that, in determining whether an officer of 

a body corporate failed to exercise due diligence, a court may 

have regard to— 

 

 

 

what the officer knew, or ought reasonably to have 

known, about the commission of the offence by the 

body corporate; and 

whether or not the officer was in a position to influence 

the body corporate in relation to the commission of the 

offence by the body corporate; and 

what steps the officer took, or could reasonably have 

taken, to prevent the commission of the offence by the 

body corporate; and 

 

any other relevant matter. 

New section 98(4) provides that, without limiting any other 

defence available to the officer, an officer of a body corporate 

may rely on a defence that would be available to the body 

corporate if it were charged with the offence with which the 

officer is charged and, in doing so, the officer bears the same 

burden of proof that the body corporate would bear. 

New section 98(5) provides that an officer of a body corporate 

may commit an offence against a provision specified in 

subsection (2) whether or not the body corporate has been 

prosecuted for, or found guilty of, an offence against that 

provision. 

The provision states that an officer may commit an offence 

whether or not the body corporate has been prosecuted for, or 

found guilty of, an offence. This means that a finding by a court 

that an officer has committed an offence for the purposes of this 

section is not contingent on a prior finding of guilt against the 

body corporate or prior prosecutorial action being taken against 

the body corporate for the same offence. 

New section 98(6) provides that in new section 98, body 

corporate has the same meaning as corporation has in 

section 57A of the Corporations Act. 

91

Clause 95 

inserts new sections 101A and 101B into the Rail Safety Act 

2006 to clarify that offenders cannot be punished twice for the 

same offence under different legislation. 

New sections 101A and 101B provide for no double jeopardy. 

New section 101A provides if— 

 

an act or omission is an offence against the Rail Safety 

Act 2006 and is also an offence against the 

Occupational Health and Safety Act 2004; and 

 

the offender has been punished for the offence under the 

Occupational Health and Safety Act 2004— 

the offender is not liable to be punished for the offence against 


New section 101B(1) provides that if— 

 

an act or omission is an offence against this Act and is 

also an offence against the Rail Safety National Law 

(Victoria) or the Rail Safety National Law as it applies 

as a law of another State or a Territory; and 

 

the offender has been punished for the offence under the 

Rail Safety National Law (Victoria) or that other Law— 

the offender is not liable to be punished for the offence against 

this Act. 

New section 101B(2) provides that in section 101B, Rail Safety 

National Law means the Schedule to the Rail Safety National 

Law (South Australia) Act 2012 of South Australia. 

Clause 96 

Clause 97 

Clause 98 

inserts definitions into section 104A(7) of the Rail Safety Act 

2006 to provide for reciprocal powers of rail safety officers from 

other States and Territories. 

makes a consequential amendment to section 105(c) of the Rail 




Safety Act 2006 to adopt terminology in the Rail Safety 


92

Clause 99 




Clause 100 makes consequential amendments to section 108(c) of the Rail 



Clause 101 makes consequential amendments to section 109 of the Rail 

Safety Act 2006 following from the substitution of new Part 6. 

Clause 102 makes consequential amendments to the regulation-making 

power set out in section 110 of the Rail Safety Act 2006. 

Clause 103 renames the Rail Safety Act 2006 the Rail Safety (Local 

Operations) Act 2006 to reflect that the scheme now only 

applies to Victorian regulated rail transport operators. 

Clause 104 inserts new Part 10 into the Rail Safety Act 2006. New Part 10 

provides for savings and transitionals—Transport Legislation 

Amendment (Rail Safety Local Operations and Other 

Matters) Act 2013. 

New section 111 inserts a savings provision for the renaming of 

the Rail Safety Act 2006 to the Rail Safety (Local Operations) 

Act 2006. 

New section 111(1) provides that on and from the 

commencement of section 103 of the Transport Legislation 

Amendment (Rail Safety Local Operations and Other 

Matters) Act 2013, any reference in any Act (other than the 

Rail Safety Act 2006), regulation, subordinate instrument, or 

other document whatsoever to the Rail Safety Act 2006 is to be 

construed as a reference to the Rail Safety (Local Operations) 

Act 2006, unless the contrary intention appears. 

New section 111(2) provides that except as in this Act expressly 

or by necessary implication provided, all persons, things and 

circumstances appointed or created by or under the Rail Safety 

Act 2006 or existing or continuing under this Act immediately 

before the commencement of section 103 of the Transport 

Legislation Amendment (Rail Safety Local Operations and 

Other Matters) Act 2013 continue under and subject to the Rail 

Safety Act 2006 to have the same status, operation and effect as 

they respectively would have had if this Act had not been 

amended by that section. 

93

New section 111(3) provides that nothing in this section limits or 

otherwise affects the operation of the Interpretation of 

Legislation Act 1984. 

Clause 105 provides for the repeal of Part 11 of the Rail Safety Act 2006. 

Part 11 set out various savings and transitional provisions which 

were required when the Rail Safety Act 2006 originally 

commenced. The Part is now repealed as the provisions are now 

spent. 

PART 3—CONSEQUENTIAL AMENDMENTS TO THE 

TRANSPORT (COMPLIANCE AND MISCELLANEOUS) 

ACT 1983 

Part 3 of the Bill makes consequential amendments to the Transport 

(Compliance and Miscellaneous) Act 1983 to adopt terminology in that Act 

that is consistent with the Rail Safety Act 2006 and the Rail Safety National 


Clause 106 inserts a definition of accredited rail transport operator to have 

the same meaning as in the Rail Safety (Local Operations) Act 

2006. That is a rail transport operator who is accredited under 

Part 5 of the Rail Safety (Local Operations) Act 2006. 

Clause 107 amends various definitions in 2(1) of the Transport 

(Compliance and Miscellaneous) Act 1983 to adopt 

terminology used in the Rail Safety National Law (Victoria) and 


Clause 107(a) repeals the definitions of accredited rail operator, 

rail infrastructure operations, rail operations and rolling stock 

operations. These terms are no longer used. 

Clause 107(b) inserts the words "(Local Operations)" into 

paragraph (a) of the definition of mandatory rail safety decision 

to reflect the renaming of the Rail Safety Act 2006. 

Clause 107(c) replaces the words "rail operator" with the words 

"rail transport operator" in paragraph (a)(ii) and (iii) of the 

definition of mandatory rail safety decision. 

Clause 107(d) inserts the words "(Local Operations)" into the 

definition of rail infrastructure manager to reflect the renaming 

of the Rail Safety Act 2006. 

94

Clause 107(e) inserts the words "(Local Operations)" after 

"Safety" into paragraph (b) of the definition of relevant 

transport safety law to reflect the renaming of the Rail Safety 

Act 2006. 

Clause 107(f) inserts the words "(Local Operations)" after 

"Safety" into the definition of rolling stock operator to reflect 

the renaming of the Rail Safety Act 2006. 

Clause 108 makes a consequential amendment to section 215B(8) of the 

Transport (Compliance and Miscellaneous) Act 1983 to 

reflect the renaming of the Rail Safety Act 2006 to the Rail 

Safety (Local Operations) Act 2006. 

Clause 109 makes consequential amendments to the definitions in section 

228S(1) of the Transport (Compliance and Miscellaneous) 

Act 1983 to adopt terminology used in the Rail Safety National 

Law (Victoria) and the Rail Safety Act 2006 and to reflect the 

renaming of the Rail Safety Act 2006 to the Rail Safety (Local 

Operations) Act 2006. 

Clause 110 makes a consequential amendment to section 228U(3) of the 




Clause 111 makes a consequential amendment to section 228ZB(1)(f) of the 

Transport (Compliance and Miscellaneous) Act 1983 to adopt 

the terminology used in the Rail Safety National Law (Victoria) 


Clause 112 makes a consequential amendment to section 228ZM(1)(a) of 

the Transport (Compliance and Miscellaneous) Act 1983 to 

adopt terminology in the Rail Safety National Law (Victoria) 


Clause 113 makes a consequential amendment to section 228ZW(2)(ii) of 




Clause 114 makes a consequential amendment to section 228ZZA(1)(c) of 



(Victoria) and the Rail Safety Act 2006. 

95

Clause 115 makes a consequential amendment to section 228ZZC(1)(c) of 

the Transport (Compliance and Miscellaneous) Act to adopt 



Clause 116 makes a consequential amendment to paragraph (b) of the 

definition of relevant safety law in section 228ZZSA of the 



to reflect the renaming of the Rail Safety Act 2006 to the Rail 


Clause 117 makes a consequential amendment to section 228ZZSB(1) and 

(3) of the Transport (Compliance and Miscellaneous) Act 

1983 to adopt terminology used in the Rail Safety National Law 


Clause 118 makes a consequential amendment to section 228ZZSCof the 




Clause 119 makes a consequential amendment to section 228ZZSD(1) and 

(2)(b) of the Transport (Compliance and Miscellaneous) Act 

1983 to adopt terminology used in the Rail Safety National Law 


Clause 120 makes a consequential change to section 228ZZSE of the 




Clause 121 makes consequential amendments to section 230A of the 




Clause 122 makes a consequential amendment to section 230J(1) and (2) of 




96

Clause 123 makes a consequential amendment to section 250 of the 




Clause 124 makes a consequential amendment to section 251 of the 




PART 4—AMENDMENTS TO THE BUS SAFETY ACT 2009 

Part 4 of the Bill makes amendments to the Bus Safety Act 2009 which will 

provide the Director, Transport Safety with power to exempt certain bus 

operators from the need for registration or accreditation. These amendments 

give effect to a recommendation from the Red Tape Commissioner regarding 

an undue regulatory burden associated with the registration and accreditation 

requirements for bus operators in certain circumstances. The new Division 

7A of Part 4 is modelled on the new Division 5A of Part 5 of the Rail Safety 

Act 2006, as inserted by clause 81 and maintains a consistent approach to 

regulating transport safety. 

Clause 125 substitutes a new section 22A(1) of the Bus Safety Act 2009. 

New section 22A(1) provides that an operator of a bus service to 

which this section applies must not operate the bus service 

unless the operator— 

 

 

is registered; or 

holds an exemption granted under Division 7A; or 

 


be registered under this Part. 

A penalty of 60 penalty units for a natural person or 300 penalty 

units for a body corporate applies. 

Clause 126 substitutes a new section 24 of the Bus Safety Act 2009. 

New section 24 states that an operator of a commercial bus 

service or a local bus service must not operate the commercial 

bus service or local bus service unless the operator— 

 

 

is accredited under this Part in respect of those 

operations; or 

holds an exemption granted under Division 7A; or 

97


be accredited under this Part. 

A penalty of 240 penalty units for a natural person or 1200 

penalty units for a body corporate applies. 

Clause 127 inserts new Division 7A of Part 4 into the Bus Safety Act 2009. 

New Division 7A provides for exemptions granted by the Safety 

Director. 

New section 52A defines designated provision to mean any or 

all of the following— 

 

Divisions 1 and 2 (accreditation) of Part 4 of the Bus 

Safety Act 2009; and 

regulations made for the purposes of Division 1 and 2 

(if any). 

New section 52B provides for accreditation exemptions for 

operators. 

New section 52B(1) provides that an operator of a bus service 

may apply to the Safety Director for an exemption from a 

designated provision in respect of a specified bus service carried 

out, or proposed to be carried out, by or on behalf of the 

operator. 

New section 52B(2) provides that an application must be made 

in the manner and form approved by the Safety Director and— 

 

 

must specify the scope and nature of the bus service in 

respect of which an exemption is sought; and 


 


(if any). 

New section 52B(3) provides that the Safety Director may 

require an operator who has applied for an exemption— 

 

 





98

New section 52C states what an applicant for an exemption must 

demonstrate. 

The Safety Director must not grant an exemption to an applicant 

unless satisfied that the applicant has demonstrated— 

 

that the applicant is, or is to be, an operator in relation to 

the bus service in respect of which the exemption is 

sought; and 

 

that the applicant has complied with the requirements 

prescribed by the regulations (if any) for the purposes of 

this section. 

New section 52D provides for the determination of an 

application for exemption by the Safety Director. 

New section 52D(1) provides that subject to this section, the 


 


referred to in section 52C—notify the applicant that 

an exemption from a designated provision has been 

granted, with or without conditions or restrictions; or 

 

if the Safety Director is not satisfied as to the matters 

referred to in section 52C—notify the applicant that the 

application has been refused. 

New section 52D(2) provides that an exemption under is subject 

to— 

 


regulations for the purposes of this section that are 

applicable to the exemption; and 

 


exemption by the Safety Director. 

New section 52D(3) provides that notification under this 

section— 

 

 


if the exemption has been granted, must specify— 

 


99

the scope and nature of the bus service, and the 

manner in which it is to be carried out, in respect 

of which the exemption is granted; and 

any condition or restriction imposed by the 

Safety Director under this section on the 

exemption; and 


 


exemption, must include— 

 

 





 


 

 





 




New section 52D(4) defines relevant period in relation to an 

application for the purposes of section 52D to mean— 

 

 







 





New section 52E sets out the process for applying for a variation 

of an exemption. 

100

New section 52E(1) provides that an operator of a bus service 

who has been granted an exemption under this Division may, at 


exemption. 

New section 52E(2) provides that an operator of a bus service 

who has been granted an exemption under this Division must 

apply to the Safety Director for a variation of the exemption if— 

 

the operator proposes to vary the scope and nature of the 

bus service in respect of which the exemption has been 

granted; or 

 

any other variation is proposed in respect of the bus 

service in respect of which the exemption has been 

granted that should be reflected in the exemption. 

New section 52E(3) provides that an application for variation 



 

 




 


(if any). 

New section 52E(4) states that the Safety Director may require 

an applicant for a variation— 

 



 



New section 52F provides for the process of determination of 

applications by the Safety Director. 

New section 52F(1) states that subject to section 52F, the Safety 

Director must, within the relevant period— 

 


referred to in section 52C (so far as they are applicable 

to the proposed variation)—notify the applicant that the 

exemption has been varied, with or without conditions 


101



New section 52F(2) states that notification under this section— 

 

 


if the exemption has been varied, must specify— 

 

 

 

 


the variation to the exemption so far as it applies 

to the scope and nature of the bus service, or the 

manner in which it is to be carried out; and 


Safety Director on the exemption as varied; and 


 


exemption as varied, must include— 

 

 





 


 

 





 




New section 52F(3) defines relevant period in relation to an 

application for the purposes of section 52F to mean— 

 

 







102





New section 52G states that an exemption granted to an operator 

of a bus service that is varied under new Division 7A of Part 4 

of the Bus Safety Act 2009 is subject to any conditions or 

restrictions prescribed by the regulations (if any) that are 

applicable to the exemption as varied. 

New section 52H provides for variation of conditions or 

restrictions. 

New section 52H(1) provides that an operator of a bus service 

who has been granted an exemption under Division 7A of Part 4 

of the Bus Safety Act 2009 may, at any time, apply to the Safety 

Director for a variation of a condition or restriction imposed by 

the Safety Director to which the exemption is subject. 

New section 52H(2) provides that an application for variation 

of a condition or restriction must be made as if it were an 

application for variation of an exemption under section 52E. 

New section 52H(3) provides that the Safety Director must 


referred to in sections 52C and 52D (so far as they are applicable 

to the proposed variation), notify the applicant in accordance 

with the provisions of this Division applicable to the granting of 

an exemption (so far as is practicable) that the variation has been 

granted or refused. 

New section 52H(4) provides that notification under subsection 

(3) that a variation has been refused must include the reasons for 

the decision to refuse to grant the variation and information 


New section 52I gives the Safety Director powers to make 

changes to conditions or restrictions on an exemption. 

New section 52I(1) provides that the Safety Director may, 

subject to this section, at any time, vary or revoke a condition 

or restriction imposed by the Safety Director on an exemption 

granted to an operator of a bus service under this Division or 

impose a new condition or restriction. 

103

New section 52I(2) provides that before taking action under this 


 

 

give the operator written notice of the action that the 

Safety Director proposes to take; and 

allow the operator to make written representations about 

the intended action within 28 days (or any other period 

that the Safety Director and the operator agree on); and 

 



New section 52I(3) states that the Safety Director must, by 

written notice given to the operator, provide— 

 

 

details of any action taken under this section; and 

a statement of reasons for any action taken under this 

section; and 


New section 52J provides for revocation or suspension of an 

exemption. 

New section 52J(1) provides that this section applies to an 

operator of a bus service who has been granted an exemption 

under this Division if— 

 

the Safety Director considers that the operator— 

 

 



referred to in section 52C or to satisfy the 

conditions, or to comply with the restrictions, of 

the exemption; or 

is not operating the bus service to which the 

exemption relates, or has not done so for at least 

the preceding 12 months; or 

 

the operator contravenes the Bus Safety Act 2009 or the 

regulations. 

New section 52J(2) provides that the Safety Director may— 

 

suspend the exemption for a period determined by the 


104

evoke the exemption with immediate effect or with 

effect from a specified future date; or 

impose conditions or restrictions on the exemption; or 

 

vary conditions or restrictions to which the exemption is 

subject. 

New section 52J(3) provides that before making a decision under 

section 52J(2), the Safety Director— 

 

must notify the operator in writing— 

 

 


decision under subsection (2) of the kind, and for 

the reasons, specified in the notice; and 






 



New section 52J(4) provides that if the Safety Director suspends 

or revokes the exemption, the Safety Director must include in 

the notice of suspension or revocation the reasons for the 

suspension or revocation and information about the right of 

review under Part 6 of the Bus Safety Act 2009. 

New section 52J(5) provides that the Safety Director may 

withdraw a suspension of the exemption by written notice given 

to the operator. 

New section 52K states that an operator of a bus service who 

has been granted an exemption under Division 7A of Part 4 of 

the Bus Safety Act 2009 must not contravene a condition or 

restriction of the exemption applying under the Division. 

A penalty of $20 000 for a natural person or $100 000 for a 


105

Clause 128 inserts new paragraphs (h)-(m) into section 58(1) of the Bus 

Safety Act 2009. Section 58(1) provides for review by VCAT 

of decisions made by the Safety Director. 

A person will now be able to apply to VCAT for a review of a 

decision by the Safety Director to— 

 

 

 

 

 

 

 

 

 

refuse accreditation to an operator to operate a 

commercial bus service or local bus service, including a 

refusal made by the Safety Director under section 27; 

impose a condition on the accreditation of an accredited 

bus operator; 

not vary the accreditation following a request for 

variation by the accredited bus operator; 

vary the accreditation of an accredited bus operator; 

suspend or cancel the accreditation of an accredited bus 

operator; 

disqualify the operator from applying for accreditation; 

refuse to grant an exemption; 

grant an exemption subject to conditions or restrictions; 

extend the relevant period of an application for— 

 

 

 

an exemption; 

a variation of an exemption; 

a variation of conditions of or restrictions on an 

exemption; 

 

 

 

refuse to vary conditions of or restrictions on an 

exemption; 

vary the conditions of or restrictions on an exemption; 

revoke or suspend an exemption. 

PART 4—REPEAL OF AMENDING ACT 

Clause 129 repeals the amending Act on the first anniversary of the first day 

in which all of its provisions are in operation. The repeal of the 

amending Act does not affect the continuing operation of the 

amendments made by the Bill. 

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Transport Legislation Amendment (Rail Safety Local Operations and ...

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