New South Wales: Rail Safety National Law (NSW)

Rail Safety National Law (NSW) No 82a of 2012 Editorial note— The Rail Safety National Law is applied (with modifications) as a law of NSW by the NSW Rail Safety (Adoption of National Law) Act 2012. This version is the Law as it applies in NSW. Part 1 Preliminary 1 Short title This Law may be cited as the Rail Safety National Law (NSW). 2 Commencement This Law commences in a participating jurisdiction as provided by the application Act of the jurisdiction. 3 Purpose, objects and guiding principles of Law (1) The main purpose of this Law is to provide for safe railway operations in Australia. (2) The objects of this Law are— (a) to establish the Office of the National Rail Safety Regulator (the ONRSR); and (b) to make provision for the appointment, functions and powers of the National Rail Safety Regulator (the Regulator); and (c) to make provision for a national system of rail safety, including by providing a scheme for national accreditation of rail transport operators in respect of railway operations; and (d) to provide for the effective management of safety risks associated with railway operations; and (e) to provide for the safe carrying out of railway operations; and (f) to provide for continuous improvement of the safe carrying out of railway operations; and (g) to make special provision for the control of particular risks arising from railway operations; and (h) to promote public confidence in the safety of transport of persons or freight by rail; and (i) to promote the provision of advice, information, education and training for safe railway operations; and (j) to promote the effective involvement of relevant stakeholders, through consultation and cooperation, in the provision of safe railway operations. (3) The guiding principles under this Law are— (a) to assist rail transport operators to achieve productivity by the provision of a national scheme for rail safety; and (b) to operate the national scheme in a timely, transparent, accountable, efficient, effective, consistent and fair way; and (c) that fees required to be paid for the provision of the national scheme are to be reasonable having regard to the efficient and effective operation of the scheme. (4) The Parliament does not intend by this section to create in any person any legal right or give rise to any civil cause of action. 4 Interpretation (1) In this Law, unless the contrary intention appears— accredited person means a rail transport operator who is accredited under this Law, but does not include a person whose accreditation under this Law— (a) has been surrendered or cancelled or has otherwise ceased to have effect under this Law; or (b) is suspended under this Law; Acting Regulator means an Acting National Rail Safety Regulator appointed under Part 2 Division 2; amusement structure means a structure or device operated for hire or reward, or provided on hire or lease— (a) that is used or designed to be used for amusement or entertainment and on which persons may be moved, carried, raised, lowered or supported by any part of the structure or device; and (b) that is an arrangement of structural or mechanical elements (or both) that has as its prime function the provision of movement of a passenger or passengers in a controlled manner so that the passenger or passengers are not necessarily required to move themselves to obtain the desired effect; application Act means the Act of a jurisdiction that applies the Rail Safety National Law set out in the Schedule to the Rail Safety National Law (South Australia) Act 2012 of South Australia as a law of the jurisdiction; approved code of practice means a code of practice approved under section 249; associated railway track structures includes— (a) associated works (such as cuttings, sidings, tunnels, bridges, stations, platforms, tram stops, excavations, land fill, track support earthworks and drainage works); and (b) over-track structures and under-track structures (including tunnels under tracks); Australian Accounting Standards means Accounting Standards issued by the Australian Accounting Standards Board; Australian rail safety law means this Law or a corresponding previous enactment in a participating jurisdiction corresponding, or substantially corresponding, to this Law; authorised person means— (a) a police officer; or (b) a person appointed under section 124; Category 1 offence—see section 58; Category 2 offence—see section 59; Category 3 offence—see section 60; commercial benefits order means an order under section 230; designated provision of this Law—see section 204; drug means— (a) a substance declared by the national regulations to be a drug for the purposes of this Law; and (b) a substance declared under section 6 to be a drug for the purposes of this Law; and (c) any other substance (other than alcohol) that, when consumed or used by a person, deprives that person (temporarily or permanently) of any of his or her normal mental or physical faculties; emergency services means— (a) the NSW Police Force; or (b) Fire and Rescue NSW; or (b1) the Ambulance Service of NSW; or (c) any other person or body prescribed by the regulations under the application Act for the purposes of this definition; Note— This definition is an additional New South Wales provision. employee means a person employed under a contract of employment or contract of training; employer means a person who employs 1 or more other persons under contracts of employment or contracts of training; exercise, for a function, includes perform; footpath means an area open to the public that is designated for, or 1 of its main uses is, use by pedestrians; Fund means the National Rail Safety Regulator Fund established under Part 2 Division 4; Gazette means the New South Wales Government Gazette; Note— This definition is an additional New South Wales provision. Health Practitioner Regulation National Law means— (a) the Health Practitioner Regulation National Law— (i) as in force from time to time, set out in the Schedule to the Health Practitioner Regulation National Law Act 2009 of Queensland; and (ii) as it applies as a law of New South Wales or another State or a Territory; or (b) the law of another State or a Territory that substantially corresponds to the law referred to in paragraph (a); Note— This definition is an additional New South Wales provision. improvement notice means a notice under Part 5 Division 1; infringement penalty provision has the meaning given by section 233; interface agreement means an agreement made under Part 3 Division 6 Subdivision 2 about managing risks to safety identified and assessed in accordance with that Subdivision; jurisdiction means a State or Territory; level crossing includes each of the following areas— (a) an area where a road and a railway (other than a tramway) meet at substantially the same level, whether or not there is a level crossing sign on the road at all or any of the entrances to the area; (b) an area where a road and a tramway meet at substantially the same level and that has a level crossing sign on the road at each entrance to the area; (c) a pedestrian crossing— (i) being an area where a footpath or shared path crosses a railway (other than a tramway) at substantially the same level, whether or not there is a level crossing sign on the path at all or any of the entrances to the area; or (ii) being an area where a footpath or shared path crosses a tramway at substantially the same level and that has a level crossing sign on the path at each entrance to the area; magistrate means a person appointed or taken to be appointed under the Local Court Act 2007 as a Magistrate of the Local Court; Note— This definition is an additional New South Wales provision. member, of ONRSR, means the Regulator, an Acting Regulator or a non-executive member appointed under Part 2 Division 2; national regulations means the regulations made under section 264; non-disturbance notice means a notice under Part 5 Division 3; notifiable occurrence means an accident or incident associated with railway operations— (a) that has, or could have, caused— (i) significant property damage; or (ii) serious injury; or (iii) death; or (b) that is, or is of a class that is, prescribed by the national regulations to be a notifiable occurrence or class of notifiable occurrence, but does not include an accident or incident, or class of accident or incident, that is prescribed by the national regulations not to be a notifiable occurrence; occupational health and safety legislation means legislation relating to occupational health and safety prescribed by the national regulations for the purposes of this definition; Office of the National Rail Safety Regulator or ONRSR means the Office of the National Rail Safety Regulator established under Part 2 Division 1; officer— (a) in relation to a body corporate, has the same meaning as officer has in relation to a corporation under section 9 of the Corporations Act 2001 of the Commonwealth; (b) in relation to any other person, means an individual who makes, or participates in making, decisions that affect the whole, or a substantial part, of the business or undertaking of the person; participating jurisdiction means a jurisdiction in which— (a) this Law applies as a law of the jurisdiction; or (b) a law that substantially corresponds to the provisions of this Law has been enacted; or (c) a law prescribed by the national regulations for the purposes of this definition has been enacted; police officer means a member of the NSW Police Force who is a police officer within the meaning of the Police Act 1990; Note— This definition is an additional New South Wales provision. prescribed drug—see section 128; private siding means a siding that is owned, controlled or managed by a person, other than a person who manages the rail infrastructure with which the siding connects or to which it has access, but does not include— (a) a marshalling yard; or (b) a crossing loop; or (c) a passenger terminal; or (d) a freight terminal; or (e) a siding under the control and management of an accredited rail infrastructure manager; or (f) a siding, or a siding of a class, prescribed by the national regulations not to be a private siding; prohibition notice means a notice under Part 5 Division 2; public place means— (a) a place that— (i) the public is entitled to use; or (ii) is open to members of the public; or (iii) is used by the public, whether or not on payment of money; or (b) a place that the occupier allows members of the public to enter, whether or not on payment of money; public road means a public road within the meaning of the Roads Act 1993 (other than a Crown road within the meaning of that Act); Note— This definition is an additional New South Wales provision. public sector auditor means— (a) the Auditor-General (however described) of a participating jurisdiction; or (b) an auditor employed, appointed or otherwise engaged, by an Auditor-General of a participating jurisdiction; rail infrastructure means the facilities that are necessary to enable a railway to operate safely and includes— (a) railway tracks and associated railway track structures; and (b) service roads, signalling systems, communications systems, rolling stock control systems, train control systems and data management systems; and (c) notices and signs; and (d) electrical power supply and electric traction systems; and (e) associated buildings, workshops, depots and yards; and (f) plant, machinery and equipment, but does not include— (g) rolling stock; or (h) any facility, or facility of a class, that is prescribed by the national regulations not to be rail infrastructure; rail infrastructure manager, in relation to rail infrastructure of a railway, means the person who has effective control and management of the rail infrastructure, whether or not the person— (a) owns the rail infrastructure; or (b) has a statutory or contractual right to use the rail infrastructure or to control, or provide, access to it; rail or road crossing includes each of the following— (a) a level crossing; (b) an area where a road and a tramway meet at substantially the same level, where there is no level crossing sign on the road at all or any of the entrances to the area; (c) an area where a footpath or shared path crosses a tramway at substantially the same level, where there is no level crossing sign on the path at all or any of the entrances to the area; (d) a bridge carrying a road over a railway; (e) a bridge carrying a railway over a road; (f) a lane of a road on which rolling stock moves alongside road vehicles on the road; rail safety officer means a person holding an appointment as a rail safety officer under Part 4 Division 2; rail safety undertaking—see Part 10 Division 6; rail safety work—see section 8; rail safety worker means an individual who has carried out, is carrying out, or is about to carry out, rail safety work; rail transport operator means— (a) a rail infrastructure manager; or (b) a rolling stock operator; or (c) a person who is both a rail infrastructure manager and a rolling stock operator; rail workplace means a place where rail safety work is carried out, and includes any place where a rail safety worker goes, or is likely to be, while doing rail safety work; railway means a guided system, or proposed guided system, designed for the movement of rolling stock having the capability of transporting passengers or freight (or both) on a railway track with a gauge of 600 millimetres or more, together with its rail infrastructure and rolling stock, and includes the following— (a) a heavy railway; (b) a light railway; (c) a monorail; (d) an inclined railway; (e) a tramway; (f) a railway within a marshalling yard or a passenger or freight terminal; (g) a private siding; (h) a guided system, or guided system of a class, prescribed by the national regulations to be a railway; Note— See section 7 for railways to which this Law does not apply. railway operations means any of the following— (a) the construction of a railway, railway tracks and associated railway track structures; (b) the construction of rolling stock; (c) the management, commissioning, maintenance, repair, modification, installation, operation or decommissioning of rail infrastructure; (d) the commissioning, use, modification, maintenance, repair or decommissioning of rolling stock; (e) the operation or movement, or causing the operation or movement by any means, of rolling stock on a railway (including for the purposes of construction or restoration of rail infrastructure); (f) the movement, or causing the movement, of rolling stock for the purposes of operating a railway service; (g) the scheduling, control and monitoring of rolling stock being operated or moved on rail infrastructure; railway premises means— (a) land (including any premises on land) on or in which is situated rail infrastructure; or (b) land (including any premises on land) on or in which is situated any over-track or under-track structure or part of an over-track or under-track structure; or (c) freight centres or depots used in connection with the carrying out of railway operations; or (d) workshops or maintenance depots used in connection with the carrying out of railway operations; or (e) premises (including an office, building or housing) used in connection with the carrying out of railway operations; or (f) rolling stock or other vehicles associated with railway operations; or (g) any other rail workplace; reasonably practicable—see section 47; Register means the National Rail Safety Register established under section 42; registered person means a rail infrastructure manager who is registered under this Law, but does not include a person whose registration under this Law— (a) has been surrendered or cancelled or has otherwise ceased to have effect under this Law; or (b) is suspended under this Law; Regulator means the National Rail Safety Regulator or an Acting National Rail Safety Regulator appointed under Part 2 Division 2; responsible Minister means the Minister administering the Rail Safety (Adoption of National Law) Act 2012; Note— This definition is an additional New South Wales provision. road has the same meaning as it has in the Roads Act 1993; Note— This definition is an additional New South Wales provision. road infrastructure includes— (a) a road, including its surface or pavement; and (b) anything under or supporting a road or its surface or pavement; and (c) any bridge, tunnel, causeway, road-ferry, ford or other work or structure forming part of a road system or supporting a road; and (d) any bridge or other work or structure located above, in or on a road; and (e) any traffic control devices, electricity equipment, emergency telephone systems or any other facilities (whether of the same or a different kind) in, on, over, under or connected with anything referred to in paragraphs (a) to (d); and (f) anything prescribed by the national regulations to be road infrastructure, but does not include rail infrastructure or anything that is prescribed by the national regulations not to be road infrastructure; road manager— (a) in relation to a private road—means the owner, or other person responsible for the care, control and management, of the road; or (b) in relation to a public road—means an authority, person or body responsible for the care, control or management of the road; road vehicle means a vehicle that is built to be propelled by a motor that forms part of the vehicle; Note— This definition is an additional New South Wales provision. rolling stock means a vehicle that operates on or uses a railway, and includes a locomotive, carriage, rail car, rail motor, light rail vehicle, train, tram, light inspection vehicle, self propelled infrastructure maintenance vehicle, trolley, wagon or monorail vehicle, but does not include a vehicle designed to operate both on and off a railway when the vehicle is not operating on a railway; rolling stock operator means a person who has effective control and management of the operation or movement of rolling stock on rail infrastructure for a railway, but does not include a person by reason only that the person drives the rolling stock or controls the network or the network signals; running line means a railway track used primarily for the through movement of trains; safety means the safety of people, including rail safety workers, passengers, other users of railways, users of rail or road crossings and the general public; safety duty—see section 57; safety management system—see Part 3 Division 6; shared path has the same meaning as in the Road Rules 2014; Note— This definition is an additional New South Wales provision. siding means a portion of railway track, connected by points to a running line or another siding, on which rolling stock can be placed clear of the running line; South Australian Minister means the responsible Minister for South Australia; substance means substance in any form (whether gaseous, liquid, solid or other), and includes material, preparation, extract and admixture; supervisory intervention order—see section 231; supply includes— (a) in relation to goods—supply or resupply by way of sale, exchange, lease, hire or hire purchase, whether as principal or agent; or (b) in relation to services—provide, grant or confer, whether as principal or agent; Territory means the Australian Capital Territory or the Northern Territory; this Law means— (a) this Law as it applies as a law of a participating jurisdiction; or (b) a law of a participating jurisdiction that— (i) substantially corresponds to the provisions of this Law; or (ii) is prescribed by the national regulations for the purposes of paragraph (c) of the definition of participating jurisdiction; train means— (a) 2 or more units of rolling stock coupled together, at least 1 of which is a locomotive or other self propelled unit; or (b) a unit of rolling stock that is a locomotive or other self propelled unit; train safety recording—see section 130; union means— (a) an employee organisation that is registered, or taken to be registered, under the Fair Work (Registered Organisations) Act 2009 of the Commonwealth; or (b) an association of employees or independent contractors (or both) that is registered or recognised as such an association (however described) under a State or Territory industrial law. (2) In this Law— (a) a reference to this Law extends to a statutory instrument made under this Law, or a provision of this Law or a statutory instrument made under this Law; and (b) a reference to the responsible Ministers is a reference to a group of Ministers consisting of— (i) the responsible Minister for each participating jurisdiction; and (ii) a Commonwealth Minister nominated by the Commonwealth as the responsible Minister for the Commonwealth for the purposes of this Law (the Commonwealth Minister). (3) The Commonwealth Minister has complete discretion as to whether or not to exercise a function or power given to the responsible Ministers under this Law and so, for the purposes of this Law, a recommendation of the responsible Ministers that is required to be unanimous will be taken to be unanimous if the Commonwealth Minister declines to exercise the function or power and the responsible Minister for each participating jurisdiction agrees with the recommendation. (3A) In this Law, a reference to a court— (a) in sections 197 and 255, is a reference to the District Court; and (b) in section 217, in relation to a decision set out in items 1–23, 30 and 32–39 of the table to section 215(1), is a reference to the Civil and Administrative Tribunal; and (c) in section 217, in relation to a decision set out in items 24–29 and 31 of the table to section 215(1), is a reference to the Industrial Relations Commission. Note— This subsection is an additional New South Wales provision. 5 Interpretation generally Schedule 2 to this Law applies in relation to this Law. 6 Declaration of substance to be drug (1) The responsible Ministers may declare a substance to be a drug for the purposes of this Law. (2) A declaration under subsection (1)— (a) is to be published on the NSW legislation website in accordance with Part 6A of the Interpretation Act 1987 of New South Wales; and (b) will commence on the day specified in the declaration for its commencement (being not earlier than the date it is published); and (c) is to be published by ONRSR on its website. 7 Railways to which this Law does not apply (1) This Law does not apply to or in relation to— (a) a railway in a mine that is underground, or chiefly underground, and that is used in connection with the performance of mining operations; or (b) a slipway; or (c) a railway used only to guide a crane; or (d) an aerial cable operated system; or (e) a railway used only by a horse-drawn tram; or (f) a railway used only for a static display; or (g) any other railway, or class of railway, prescribed by the national regulations to be a railway, or railway of a class, to which this Law does not apply. (2) This Law does not apply to or in relation to the following railways— (a) a railway that— (i) is privately owned and operated as a hobby; and (ii) is operated only on private property; and (iii) does not operate on or cross a public road; and (iv) is not operated for hire or reward, or provided on hire or lease; and (v) to which members of the public do not have access (whether by invitation or otherwise); (b) a railway that— (i) is used only for the purposes of an amusement structure; and (ii) is operated only within an amusement park; and (iii) does not operate on or cross a public road; and (iv) is not connected with another railway in respect of which a rail transport operator is required to be accredited or registered under this Law. (3) Despite subsection (2)(b), the national regulations may prescribe a specified railway of a class referred to in that paragraph to be a railway to which or in relation to which this Law applies. 8 Meaning of rail safety work (1) Subject to subsection (2), any of the following classes of work is rail safety work for the purposes of this Law— (a) driving or despatching rolling stock or any other activity which is capable of controlling or affecting the movement of rolling stock; (b) signalling (and signalling operations), receiving or relaying communications or any other activity which is capable of controlling or affecting the movement of rolling stock; (c) coupling or uncoupling rolling stock; (d) constructing, maintaining, repairing, modifying, monitoring, inspecting or testing— (i) rolling stock, including checking that the rolling stock is working properly before being used; or (ii) rail infrastructure, including checking that the rail infrastructure is working properly before being used; (e) installation of components in relation to rolling stock; (f) work on or about rail infrastructure or associated works or equipment that places, or may place, the person performing the work at risk of exposure to moving rolling stock; (g) installation or maintenance of— (i) a telecommunications system relating to rail infrastructure or used in connection with rail infrastructure; or (ii) the means of supplying electricity directly to rail infrastructure, any rolling stock using rail infrastructure or a telecommunications system; (h) work involving certification as to the safety of rail infrastructure or rolling stock or any part or component of rail infrastructure or rolling stock; (i) work involving the decommissioning of rail infrastructure or rolling stock or any part or component of rail infrastructure or rolling stock; (j) work involving the development, management or monitoring of safe working systems for railways; (k) work involving the management or monitoring of passenger safety on, in or at any railway; (l) any other work that is prescribed by the national regulations to be rail safety work. (2) For the purposes of this Law, rail safety work does not include any work, or any class of work, prescribed by the national regulations not to be rail safety work. 9 Single national entity (1) It is the intention of the Parliament of this jurisdiction that this Law as applied by an Act of this jurisdiction, together with this Law as applied by Acts of the other participating jurisdictions, has the effect that an entity established by this Law is 1 single national entity, with functions conferred by this Law as so applied. (2) An entity established by this Law has power to do acts in or in relation to this jurisdiction in the exercise of a function expressed to be conferred on it by this Law as applied by Acts of each participating jurisdiction. (3) An entity established by this Law may exercise its functions in relation to— (a) 1 participating jurisdiction; or (b) 2 or more or all participating jurisdictions collectively. (4) In this section, a reference to this Law as applied by an Act of a jurisdiction includes— (a) a reference to a law that substantially corresponds to this Law enacted in a jurisdiction; and (b) a law prescribed by the national regulations for the purposes of the definition of a participating jurisdiction. 10 Extraterritorial operation of Law It is the intention of the Parliament of this jurisdiction that the operation of this Law is to, as far as possible, include operation in relation to the following— (a) things situated in or outside the territorial limits of this jurisdiction; (b) acts, transactions and matters done, entered into or occurring in or outside the territorial limits of this jurisdiction; (c) things, acts, transactions and matters (wherever situated, done, entered into or occurring) that would, apart from this Law, be governed or otherwise affected by the law of another jurisdiction. 11 Crown to be bound (1) This Law binds the Crown, in right of this jurisdiction and, insofar as the legislative power of the Parliament of this jurisdiction permits, the Crown in all its other capacities. (2) No criminal liability attaches to the Crown itself (as distinct from its agents, instrumentalities, officers and employees) under this Law. Part 2 Office of the National Rail Safety Regulator Division 1 Establishment, functions, objectives, etc 12 Establishment (1) The Office of the National Rail Safety Regulator (ONRSR) is established. (2) ONRSR— (a) is a body corporate with perpetual succession; and (b) has a common seal; and (c) may sue and be sued in its corporate name. (3) ONRSR represents the Crown. 13 Functions and objectives (1) In addition to any other function conferred on ONRSR by this Law or an Act, ONRSR has the following functions— (a) to administer, audit and review the accreditation regime under this Law; (b) to work with rail transport operators, rail safety workers, and others involved in railway operations, to improve rail safety nationally; (c) to conduct research, collect and publish information relating to rail safety; (d) to provide, or facilitate the provision of, advice, education and training in relation to rail safety; (e) to monitor, investigate and enforce compliance with this Law; (f) to engage in, promote and coordinate the sharing of information to achieve the objects of this Law, including the sharing of information with a prescribed authority; (g) at the request of the Commonwealth or a jurisdiction—to carry out any other function as agreed between ONRSR and the jurisdiction. (2) In exercising its functions, ONRSR must— (a) facilitate the safe operations of rail transport in Australia; and (b) exhibit independence, rigour and excellence in carrying out its regulatory functions; and (c) promote safety and safety improvement as a fundamental objective in the delivery of rail transport in Australia. (3) In this section— prescribed authority means— (a) the Australian Transport Safety Bureau established under the Transport Safety Investigation Act 2003 of the Commonwealth; and (ab) Rail Industry Safety and Standards Board (RISSB) Limited; and (b) any other relevant authority established under a law of a participating jurisdiction. 14 Independence of ONRSR Except as provided under this Law or an Act, ONRSR is not subject to Ministerial direction in the exercise of its functions or powers. 15 Powers (1) ONRSR has all the powers of an individual and, in particular, may— (a) enter into contracts; and (b) acquire, hold, dispose of, and deal with, real and personal property; and (c) do anything necessary or convenient to be done in the exercise of its functions. (2) Without limiting subsection (1), ONRSR may enter into an agreement (a service agreement) with a State or Territory that makes provision for— (a) the State or Territory to provide services to ONRSR that assist ONRSR in exercising its functions; or (b) ONRSR to provide services to the State or Territory. Division 2 Office of the National Rail Safety Regulator Subdivision 1 Constitution of ONRSR 16 Constitution of ONRSR (1) ONRSR consists of— (a) a person appointed by the South Australian Minister acting on the unanimous recommendation of the responsible Ministers as the National Rail Safety Regulator (the Regulator); and (b) 2 non-executive members (full-time or part-time) as are appointed by the South Australian Minister acting on the unanimous recommendation of the responsible Ministers. (2) The exercise of a function or power of ONRSR is not affected by a vacancy in the membership of ONRSR. Subdivision 2 National Rail Safety Regulator 17 Appointment of Regulator (1) A person may be appointed as the National Rail Safety Regulator who is qualified for appointment because the person has a high level of expertise in 1 or more areas relevant to ONRSR's functions. (2) The Regulator will be appointed for a term not exceeding 5 years on terms and conditions determined by the South Australian Minister acting on the unanimous recommendation of the responsible Ministers. (3) The Regulator is entitled to be paid the remuneration and allowances decided by the South Australian Minister acting on the unanimous recommendation of the responsible Ministers from time to time. (4) In setting the remuneration and allowances for the Regulator, regard must be had to relevant rates (if any) published by the Remuneration Tribunal of the Commonwealth from time to time. (5) At the expiration of a term of appointment, the Regulator will be eligible for reappointment. (6) The conditions of appointment of the Regulator must not, without the consent of the Regulator, be varied while the Regulator is in office so as to become less favourable to the Regulator. (7) The Regulator must not engage, without the written consent of the South Australian Minister acting on the unanimous recommendation of the responsible Ministers, in any other remunerated employment. 18 Acting National Rail Safety Regulator (1) The South Australian Minister may appoint an Acting National Rail Safety Regulator (who may, or may not, be a non-executive member or a member of the staff of ONRSR) to act in the office of the Regulator and a person so appointed has, while so acting, all the functions and powers of the Regulator. (2) An Acting Regulator may act in the office of the Regulator— (a) during a vacancy in the office of the Regulator (whether or not an appointment has previously been made to the office); or (b) during any period, or during all periods, when the Regulator— (i) is absent from duty or from Australia; or (ii) is, for any reason, unable to exercise the duties of the office; or (c) if the Regulator is disqualified from acting in relation to a particular matter—in relation to that matter. (3) Anything done by or in relation to a person purporting to act under an appointment is not invalid merely because— (a) the occasion for the appointment had not arisen; or (b) there is a defect or irregularity in connection with the appointment; or (c) the appointment had ceased to have effect; or (d) the occasion to act had not arisen or had ceased. 19 Functions of Regulator (1) The functions of the Regulator include— (a) being the chief executive of ONRSR; and (b) exercising the functions of ONRSR conferred on the Regulator under this Law or an Act; and (c) otherwise acting on behalf of ONRSR in appropriate cases. (2) An act of the Regulator will be taken to be an act of ONRSR. (3) Except as provided under this Law or an Act of a participating jurisdiction, the Regulator is not subject to direction in the exercise of his or her functions or powers. (4) The Regulator must act consistently with the policies determined by ONRSR. 20 Power of Regulator to obtain information (1) This section applies if the Regulator has reasonable grounds to believe that a person is capable of giving information, providing documents or giving evidence in relation to a possible contravention of this Law or that will assist to monitor or enforce compliance with this Law. (2) The Regulator may, by written notice served on the person, require the person to do 1 or more of the following— (a) to give the Regulator in writing signed by the person (or in the case of a body corporate, by a competent officer of the body corporate) and within the time and in the manner specified in the notice, that information of which the person has knowledge; (b) to produce to the Regulator, in accordance with the notice, those documents; (c) to appear before a person appointed by the Regulator on a day, and at a time and place, specified in the notice (being a day, time and place that are reasonable in the circumstances) and give either orally or in writing that evidence and produce those documents. (3) The notice must— (a) state that the requirement is made under this section; and (b) contain a statement to the effect that a failure to comply with a requirement is an offence; and (c) if the notice requires the person to provide information or documents or answer questions— (i) contain a statement about the effect of sections 155 and 245; and (ii) state that the person may attend with a legal practitioner. (4) (Repealed) (5) A person must not, without reasonable excuse, fail to comply with a requirement under this section. Maximum penalty— (a) in the case of an individual—$10 000; (b) in the case of a body corporate—$50 000. (6) Subsection (5) places an evidential burden on the accused to show a reasonable excuse. (7) Section 155 (with any necessary changes) applies to a requirement under this section. Subdivision 3 Non-executive members 21 Appointment of non-executive members (1) A person may be appointed as a non-executive member of ONRSR who is qualified for appointment because the person has a high level of expertise in 1 or more areas relevant to ONRSR's functions. (2) A non-executive member will be appointed for a term not exceeding 4 years on terms and conditions determined by the South Australian Minister acting on the unanimous recommendation of the responsible Ministers. (3) A non-executive member is entitled to be paid the remuneration and allowances decided by the South Australian Minister acting on the unanimous recommendation of the responsible Ministers from time to time. (4) In setting the remuneration and allowances for a non-executive member regard must be had to relevant rates (if any) published by the Remuneration Tribunal of the Commonwealth from time to time. (5) At the expiration of a term of appointment, a non-executive member will be eligible for reappointment. (6) The conditions of appointment of a non-executive member must not, without the consent of the member, be varied while the member is in office so as to become less favourable to the member. Subdivision 4 Miscellaneous provisions relating to membership 22 Vacancy in or removal from office (1) The office of a member of ONRSR becomes vacant if the member— (a) completes a term of office; or (b) resigns by written notice given to the responsible Ministers; or (c) has been found guilty of an offence, whether in a participating jurisdiction or elsewhere, that the responsible Ministers consider renders the member unfit to continue to hold the office of member; or (d) becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with the member's creditors or makes an assignment of the member's remuneration for their benefit; or (e) is absent, without leave first being granted by the relevant entity from 3 or more consecutive meetings of ONRSR of which reasonable notice has been given to the member personally or by post; or (f) is removed from office by the South Australian Minister under this section; or (g) dies. (2) The South Australian Minister may remove a member of ONRSR from office if the responsible Ministers recommend the removal of the member on the basis that the member has engaged in misconduct or has failed to or is unable to properly exercise the member's functions as a member of ONRSR. (3) In this section— relevant entity means— (a) for the Regulator—the responsible Ministers; or (b) for a non-executive member—the Regulator. 23 Member to give responsible Ministers notice of certain events A member of ONRSR must, within 7 days of either of the following events occurring, give the responsible Ministers notice of the event— (a) the member is convicted of an offence; (b) the member becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with the member's creditors or makes an assignment of the member's remuneration for their benefit. 24 Extension of term of office during vacancy in membership (1) If the office of a member of ONRSR becomes vacant because the member has completed the member's term of office, the member is taken to continue to be a member during that vacancy until the date on which the vacancy is filled, whether by reappointment of the member or appointment of a successor to the member. (2) However, this section ceases to apply to the member if— (a) the member resigns the member's office by signed notice given to the responsible Ministers; or (b) the responsible Ministers decide the services of the member are no longer required. (3) The maximum period for which a member of ONRSR is taken to continue to be a member under this section after completion of the member's term of office is 6 months. 25 Members to act in public interest A member of ONRSR is to act impartially and in the public interest in the exercise of the member's functions as a member. 26 Disclosure of conflict of interest (1) If a member of ONRSR has a direct or indirect pecuniary or other interest that conflicts or may conflict with the exercise of the member's functions as a member, the member must, as soon as possible after the relevant facts have come to the member's knowledge, disclose the nature of the member's interest and the conflict to— (a) for the Regulator—the responsible Ministers; or (b) for a non-executive member—the Regulator. (2) If a disclosure is made under subsection (1), the entity to whom the disclosure is made must notify ONRSR of the disclosure. (3) Particulars of any disclosure made under subsection (1) must be recorded by ONRSR in a register of interests kept for the purpose. (4) After a member of ONRSR has disclosed the nature of an interest and conflict or potential conflict under subsection (1), the member must not be present during any deliberation of ONRSR with respect to any matter that is, or may be, affected by the conflict, or take part in any decision of ONRSR with respect to any matter that is, or may be, affected by the conflict, unless— (a) for the Regulator, the responsible Ministers otherwise decide; or (b) for a non-executive member, ONRSR otherwise decides. (5) For the purposes of the making of a decision by ONRSR under subsection (4) in relation to a matter, a member of ONRSR who has a direct or indirect pecuniary or other interest that conflicts or may conflict with the exercise of the member's functions as a member with respect to the matter must not— (a) be present during any deliberation of ONRSR for the purpose of making the decision; or (b) take part in the making of the decision by ONRSR. (6) A contravention of this section does not invalidate any decision of ONRSR but if ONRSR becomes aware a member of ONRSR contravened this section, ONRSR must reconsider any decision made by ONRSR in which the member took part in contravention of this section. Division 3 Procedures 27 Times and places of meetings (1) The Regulator must hold such meetings as he or she considers necessary for the efficient exercise of ONRSR's functions. (2) Meetings are to be held at such times and places as the Regulator decides. 28 Conduct of meetings (1) The Regulator is to preside at all meetings of ONRSR at which he or she is present. (2) If the Regulator is not present at a meeting, a person appointed to act as the Regulator must be present and preside. (3) A quorum of ONRSR consists of 2 members. (4) A decision supported by a majority of the votes cast at a meeting of ONRSR at which a quorum is present is the decision of ONRSR. (5) The person presiding at a meeting of ONRSR has a deliberative vote and, in the event of an equality of votes, has a second or casting vote. (6) Subject to this Division, ONRSR may regulate its own procedures. (7) ONRSR must ensure that minutes of its meetings are kept. 29 Defects in appointment of members A decision of ONRSR is not invalidated by any defect or irregularity in the appointment of a member. 30 Decisions without meetings (1) A decision is taken to have been made at a meeting of ONRSR if— (a) without meeting, a majority of the members indicate agreement with the proposed decision in accordance with the method determined under this section; and (b) all members were informed, or reasonable efforts were made to inform all members, of the proposed decision. (2) Subsection (1) applies only if ONRSR— (a) has determined that it applies; and (b) has determined the method by which members are to indicate agreement with proposed decisions. (3) ONRSR must keep a record of decisions made under this section. 31 Common seal and execution of documents (1) The common seal of ONRSR must not be affixed to a document except in pursuance of a decision of ONRSR, and the affixing of the seal must be attested by the signature of the Regulator or Acting Regulator. (2) ONRSR may, by instrument under ONRSR's common seal, authorise an employee of ONRSR (whether nominated by name or by office or title) or any other person to execute documents on behalf of ONRSR subject to conditions and limitations (if any) specified in the instrument of authority. (3) Without limiting subsection (2), an authority may be given so as to authorise 2 or more persons to execute documents jointly on behalf of ONRSR. (4) A document is duly executed by ONRSR if— (a) the common seal of ONRSR is affixed to the document in accordance with this section; or (b) the document is signed on behalf of ONRSR by a person or persons in accordance with an authority conferred under this section. (5) Where an apparently genuine document purports to bear the common seal of ONRSR, it will be presumed in any legal proceedings, in the absence of proof to the contrary, that the common seal of ONRSR has been duly affixed to that document. Division 4 Finance 32 Establishment of Fund (1) The National Rail Safety Regulator Fund is established. (2) The Fund is to be administered by ONRSR. (3) ONRSR may establish accounts with any financial institution for money in the Fund. (4) The Fund does not form part of the consolidated fund or consolidated account of a participating jurisdiction or the Commonwealth. 33 Payments into Fund There is payable into the Fund— (a) all money appropriated by the Parliament of any participating jurisdiction or the Commonwealth for the purposes of the Fund; and (b) all fees, charges, costs and expenses paid to or recovered by ONRSR under this Law; and (ba) all infringement penalties paid to or recovered by ONRSR; and (bb) all portions of fines paid to ONRSR by order of a court under section 260A; and (c) the proceeds of the investment of money in the Fund; and (d) all grants, gifts and donations made to ONRSR, but subject to any trusts declared in relation to the grants, gifts or donations; and (e) all money directed or authorised to be paid into the Fund under this Law, any law of a participating jurisdiction or any law of the Commonwealth; and (f) any other money or property received by ONRSR in connection with the exercise of its functions; and (g) any money paid to ONRSR for the provision of services to a State or Territory under an agreement mentioned in section 15(2)(b). 34 Payments out of Fund Payments may be made from the Fund for the purpose of— (a) paying any costs or expenses, or discharging any liabilities, incurred in the administration or enforcement of this Law, including (for example) payments made to a State or Territory for the provision of services under an agreement mentioned in section 15(2)(a); and (b) paying any money directed or authorised to be paid out of the Fund under this Law; and (c) any other payments recommended by ONRSR and approved by the responsible Ministers. 35 Investment of money in Fund (1) ONRSR must invest its funds in a way that is secure and provides a low risk so that ONRSR's exposure to the loss of funds is minimised. (2) ONRSR must keep records that show it has invested in a way that complies with subsection (1). 36 Financial management duties of ONRSR ONRSR must— (a) ensure its operations are carried out efficiently, effectively and economically; and (b) keep proper books and records in relation to the Fund and other money received by ONRSR; and (c) ensure expenditure is made from the Fund for lawful purposes only and, as far as possible, reasonable value is obtained for money expended from the Fund; and (d) ensure its procedures, including internal control procedures, afford adequate safeguards with respect to— (i) the correctness, regularity and propriety of payments made from the Fund; and (ii) receiving and accounting for payments made to the Fund; and (iii) prevention of fraud or mistake; and (e) take any action necessary to ensure the preparation of accurate financial statements in accordance with Australian Accounting Standards for inclusion in its annual report; and (f) take any action necessary to facilitate the audit of those financial statements under this Law; and (g) arrange for any further audit by a qualified person of the books and records kept by ONRSR in relation to the Fund, if directed to do so by the responsible Ministers. Division 5 Staff 37 Chief executive (1) The Regulator is the chief executive of ONRSR responsible for— (a) the day to day management of ONRSR; and (b) carrying out any other function conferred on the chief executive under this Law, an Act or by ONRSR. (2) The chief executive must act consistently with the policies determined by ONRSR. 38 Staff (1) ONRSR may, for the purpose of exercising its functions, employ staff. (2) The staff of ONRSR are to be employed on the terms and conditions decided by ONRSR from time to time. (3) Subsection (2) is subject to any relevant industrial award or agreement that applies to the staff. 39 Secondments to ONRSR ONRSR may make arrangements for the services of a person who is a member of the staff of a government agency of a participating jurisdiction or the Commonwealth to be made available to ONRSR in connection with the exercise of its functions. 40 Consultants and contractors (1) ONRSR may engage persons with suitable qualifications and experience as consultants or contractors. (2) The terms and conditions of engagement of consultants or contractors are as decided by ONRSR from time to time. Division 6 Miscellaneous 41 Regulator may be directed to investigate rail safety matter (1) The responsible Minister for a participating jurisdiction may give a written direction to the Regulator to investigate, or provide advice or information about, a rail safety matter relating to the participating jurisdiction. (2) A direction may not be given under this section— (a) that directs the Regulator as to how to conduct an investigation into a rail safety matter; or (b) that directs the Regulator as to which persons the Regulator may request or direct to provide assistance in investigating a rail safety matter; or (c) about the outcome of any such investigation; or (d) that directs the Regulator to stop any such investigation. (3) The Regulator must cause a direction given under this section to be published in ONRSR's next annual report. 42 National Rail Safety Register (1) The Regulator must establish and maintain the National Rail Safety Register for the purposes of this Law. (2) The Regulator must ensure that the following matters are recorded in the Register— (a) the accreditation of a rail transport operator under Part 3 Division 4; (b) the variation, cancellation, suspension or expiry of the accreditation of a rail transport operator under Part 3 Division 4; (c) the registration of a rail infrastructure manager of a private siding under Part 3 Division 5; (d) the variation, cancellation, suspension or expiry of the registration of a rail infrastructure manager of a private siding under Part 3 Division 5; (e) an exemption from this Law or specified provisions of this Law conferred on a person and details of the exemption; (f) a decision to accept a rail safety undertaking and the reasons for that decision under Part 10 Division 6; (g) a decision to withdraw or vary a rail safety undertaking under Part 10 Division 6; (h) the issuing of an improvement notice to a person; (i) the variation, cancellation or expiry of an improvement notice; (j) the issuing of a prohibition notice to a person; (k) the variation, cancellation or expiry of a prohibition notice; (l) the issuing of a non-disturbance notice to a person; (m) the variation, cancellation or expiry of a non-disturbance notice; (n) any other matter that is prescribed in the national regulations to be included in the Register. (3) The Register will be kept in the form of a computer record and published on ONRSR's website. (4) The Register is to be available for inspection, without fee, during ordinary office hours at a public office, or public offices, determined by the Regulator. 43 Annual report (1) The Regulator must, on or before 30 September in each year, deliver to the responsible Ministers a report on ONRSR's activities for the financial year ending on the preceding 30 June. (2) The annual report must include— (a) information on the development of rail safety (including an aggregation of statistics of a prescribed class reported to ONRSR under this Law for the relevant financial year); and (b) information on any improvements and important changes in relation to the regulation of rail safety for the relevant financial year; and (c) details of all rail safety issues brought to the attention of ONRSR during the relevant financial year and the action (if any) taken in relation to each such issue; and (d) if, at the start of the relevant financial year, there are still outstanding any rail safety issues that previously had been brought to the attention of ONRSR—details of the action (if any) taken in respect of each such issue; and (e) details about any significant activity undertaken in each participating jurisdiction during the relevant financial year by, or on behalf of, ONRSR; and (f) the financial statement in respect of the relevant financial year; and (g) the report on the financial statement made by the auditor who conducted the audit; and (h) any other information required to be included in the report by another provision under this Law or by the responsible Ministers. (3) The national regulations may make provision in relation to the preparation and auditing of financial statements. (4) The responsible Ministers must make arrangements for the tabling of ONRSR's annual report in the Parliament of each participating jurisdiction. (5) The responsible Ministers may extend, or further extend, the period for submission of an annual report to the responsible Ministers by a total period of up to 3 months. (6) As soon as practicable after the annual report has been tabled in at least 1 House of the Parliament of a participating jurisdiction, the Regulator must publish a copy of the report on ONRSR's website. 44 Other reporting requirements The national regulations may require ONRSR to deliver to a prescribed body or person, at prescribed intervals, a report containing prescribed matters. 45 Delegation (1) ONRSR may delegate to a body or person (including a person for the time being holding or acting in a specified office or position) a function or power of ONRSR under this Law or an Act. (2) The Regulator may delegate to a body or person (including a person for the time being holding or acting in a specified office or position) a function or power of the Regulator under this Law or an Act. (3) A function or power delegated under this section may, if the instrument of delegation so provides, be further delegated. Part 3 Regulation of rail safety Division 1 Interpretation 46 Management of risks A duty imposed on a person under this Law to ensure, so far as is reasonably practicable, safety requires the person— (a) to eliminate risks to safety so far as is reasonably practicable; and (b) if it is not reasonably practicable to eliminate risks to safety, to minimise those risks so far as is reasonably practicable. 47 Meaning of reasonably practicable In this Part— reasonably practicable, in relation to a duty to ensure safety, means that which is (or was at a particular time) reasonably able to be done in relation to ensuring safety, taking into account and weighing up all relevant matters, including— (a) the likelihood of the hazard or the risk concerned occurring; and (b) the degree of harm that might result from the hazard or the risk; and (c) what the person concerned knows, or ought reasonably to know, about— (i) the hazard or the risk; and (ii) ways of eliminating or minimising the risk; and (d) the availability and suitability of ways to eliminate or minimise the risk; and (e) after assessing the extent of the risk and the available ways of eliminating or minimising the risk—the cost associated with available ways of eliminating or minimising the risk (including whether the cost is grossly disproportionate to the risk). Division 2 Occupational health and safety and railway operations 48 Relationship between this Law and OHS legislation (1) If a provision of the occupational health and safety legislation applies to railway operations, that provision continues to apply, and must be observed, in addition to this Law. (2) If a provision of this Law is inconsistent with a provision of the occupational health and safety legislation, the provision of the occupational health and safety legislation prevails to the extent of any inconsistency. Note— For example, if a provision of this Law deals with a certain matter and a provision of the occupational health and safety legislation deals with the same matter and it is impossible to comply with both provisions, a person must comply with the occupational health and safety legislation and not with this Law. If provisions of both this Law and the occupational health and safety legislation deal with the same matter but it is possible to comply with both provisions, a person must comply with both. (3) Compliance with this Law or with any requirement imposed under this Law is not in itself a defence in any proceedings for an offence against the occupational health and safety legislation. (4) Evidence of a relevant contravention of this Law is admissible in any proceedings for an offence against the occupational health and safety legislation. 49 No double jeopardy Where an act or omission constitutes an offence— (a) under this Law; and (b) under the occupational health and safety legislation, the offender is not liable to be punished twice in respect of the offence. Division 3 Rail safety duties Subdivision 1 Principles 50 Principles of shared responsibility, accountability, integrated risk management, etc (1) Rail safety is the shared responsibility of— (a) rail transport operators; and (b) rail safety workers; and (c) other persons who— (i) design, commission, construct, manufacture, supply, install, erect, maintain, repair, modify or decommission rail infrastructure or rolling stock; or (ii) supply rail infrastructure operations or rolling stock operations to rail operators; or (iii) in relation to the transport of freight by railway—load or unload freight on or from rolling stock; and (d) the Regulator; and (e) ONRSR; and (f) the public. (2) The level and nature of responsibility that a person referred to in subsection (1), or falling within a class of person referred to in that subsection, has for rail safety is dependent on the nature of the risk to rail safety that the person creates from the carrying out of an activity (or the making of a decision)