Rail Safety National Law (South Australia) Act 2012 (SA)

South Australia Rail Safety National Law (South Australia) Act 2012 An Act to make provision for a national system of rail safety; and for other purposes.

Contents Part 1—Preliminary 1 Short title 3 Interpretation Part 2—Application of Rail Safety National Law 4 Application of Rail Safety National Law 5 Interpretation of certain expressions 6 No double jeopardy 7 Exclusion of legislation of this jurisdiction Part 3—National regulations 8 National regulations Part 4—Provisions relating to drug and alcohol testing Division 1—Preliminary 9 Interpretation 10 Approval of couriers 11 Approval of apparatus and kits for breath analysis etc Division 2—Procedures relating to testing and analyses 12 Conduct of preliminary breath test or breath analysis 13 Conduct of drug screening tests, oral fluid analyses and blood tests 14 Breath analysis where drinking occurs after rail safety work is carried out 15 Oral fluid analysis or blood test where consumption of alcohol or drug occurs after rail safety work is carried out 16 Compulsory blood testing following a prescribed notifiable occurrence 17 Processes relating to blood samples 18 Processes relating to oral fluid samples Division 3—Miscellaneous 19 Concentration of alcohol in breath taken to indicate concentration of alcohol in blood 20 Evidence 22 Protection of medical practitioners etc from liability 23 Regulations—drug and alcohol testing procedures Part 5—Transitional provisions Division 1—Interpretation 24 Interpretation Division 3—Transitional provisions 26 Accreditation 27 Registration 28 Notifiable occurrences 29 Notices 30 Reviews and appeals 31 Provision of information and assistance by Rail Safety Regulator 32 Regulations—saving and transitional provisions Schedule—Rail Safety National Law Part 1—Preliminary 1 Short title 2 Commencement 3 Purpose, objects and guiding principles of Law 4 Interpretation 5 Interpretation generally 6 Declaration of substance to be drug 7 Railways to which this Law does not apply 8 Meaning of rail safety work 9 Single national entity 10 Extraterritorial operation of Law 11 Crown to be bound Part 2—Office of the National Rail Safety Regulator Division 1—Establishment, functions, objectives, etc 12 Establishment 13 Functions and objectives 14 Independence of ONRSR 15 Powers Division 2—Office of the National Rail Safety Regulator Subdivision 1—Constitution of ONRSR 16 Constitution of ONRSR Subdivision 2—National Rail Safety Regulator 17 Appointment of Regulator 18 Acting National Rail Safety Regulator 19 Functions of Regulator 20 Power of Regulator to obtain information Subdivision 3—Non‑executive members 21 Appointment of non‑executive members Subdivision 4—Miscellaneous provisions relating to membership 22 Vacancy in or removal from office 23 Member to give responsible Ministers notice of certain events 24 Extension of term of office during vacancy in membership 25 Members to act in public interest 26 Disclosure of conflict of interest Division 3—Procedures 27 Times and places of meetings 28 Conduct of meetings 29 Defects in appointment of members 30 Decisions without meetings 31 Common seal and execution of documents Division 4—Finance 32 Establishment of Fund 33 Payments into Fund 34 Payments out of Fund 35 Investment of money in Fund 36 Financial management duties of ONRSR Division 5—Staff 37 Chief executive 38 Staff 39 Secondments to ONRSR 40 Consultants and contractors Division 6—Miscellaneous 41 Regulator may be directed to investigate rail safety matter 42 National Rail Safety Register 43 Annual report 44 Other reporting requirements 45 Delegation Part 3—Regulation of rail safety Division 1—Interpretation 46 Management of risks 47 Meaning of reasonably practicable Division 2—Occupational health and safety and railway operations 48 Relationship between this Law and OHS legislation 49 No double jeopardy Division 3—Rail safety duties Subdivision 1—Principles 50 Principles of shared responsibility, accountability, integrated risk management, etc 51 Principles applying to rail safety duties Subdivision 2—Duties 52 Duties of rail transport operators 53 Duties of designers, manufacturers, suppliers etc 54 Duties of persons loading or unloading freight 55 Duty of officers to exercise due diligence 56 Duties of rail safety workers Subdivision 3—Offences and penalties 57 Meaning of safety duty 58 Failure to comply with safety duty—reckless conduct—Category 1 59 Failure to comply with safety duty—Category 2 60 Failure to comply with safety duty—Category 3 Division 4—Accreditation Subdivision 1—Purpose and requirement for accreditation 61 Purpose of accreditation 62 Accreditation required for railway operations 63 Purposes for which accreditation may be granted Subdivision 2—Procedures for granting accreditation 64 Application for accreditation 65 What applicant must demonstrate 66 Regulator may direct applicants to coordinate applications 67 Determination of application Subdivision 3—Variation of accreditation 68 Application for variation of accreditation 69 Determination of application for variation 70 Prescribed conditions and restrictions 71 Variation of conditions and restrictions 72 Regulator may make changes to conditions or restrictions Subdivision 4—Cancellation, suspension or surrender of accreditation 73 Cancellation or suspension of accreditation 74 Immediate suspension of accreditation 75 Surrender of accreditation Subdivision 5—Miscellaneous 76 Annual fees 77 Waiver of fees 78 Penalty for breach of condition or restriction 79 Accreditation cannot be transferred or assigned 80 Sale or transfer of railway operations by accredited person 81 Keeping and making available records for public inspection Division 5—Registration of rail infrastructure managers of private sidings Subdivision 1—Exemptions relating to certain private sidings 82 Exemption from accreditation in respect of certain private sidings 83 Requirement for managers of certain private sidings to be registered Subdivision 2—Procedures for granting registration 84 Application for registration 85 What applicant must demonstrate 86 Determination of application Subdivision 3—Variation of registration 87 Application for variation of registration 88 Determination of application for variation 89 Prescribed conditions and restrictions 90 Variation of conditions and restrictions 91 Regulator may make changes to conditions or restrictions Subdivision 4—Cancellation, suspension or surrender of registration 92 Cancellation or suspension of registration 93 Immediate suspension of registration 94 Surrender of registration Subdivision 5—Miscellaneous 95 Annual fees 96 Waiver of fees 96A Annual activity statements 97 Registration cannot be transferred or assigned 98 Offences relating to registration Division 6—Safety management Subdivision 1—Safety management systems 99 Safety management system 100 Conduct of assessments for identified risks 101 Compliance with safety management system 102 Review of safety management system 103 Safety performance reports 104 Regulator may direct amendment of safety management system Subdivision 2—Interface agreements 105 Requirements for and scope of interface agreements 106 Interface coordination—rail transport operators 107 Interface coordination—rail infrastructure and public roads 108 Interface coordination—rail infrastructure and private roads 109 Identification and assessment of risks 110 Regulator may give directions 111 Register of interface agreements Subdivision 3—Other safety plans and programs 112 Security management plan 113 Emergency management plan 114 Health and fitness management program 115 Drug and alcohol management program 116 Fatigue risk management program Subdivision 4—Provisions relating to rail safety workers 117 Assessment of competence 118 Identification of rail safety workers Subdivision 5—Other persons to comply with safety management system 119 Other persons to comply with safety management system Division 7—Information about rail safety etc 120 Power of Regulator to obtain information from rail transport operators Division 8—Investigating and reporting by rail transport operators 121 Notification of certain occurrences 122 Investigation of notifiable occurrences Division 9—Drug and alcohol testing by Regulator 122A Interpretation 123 Testing for presence of drugs or alcohol 124 Appointment of authorised persons 125 Identity cards 126 Authorised person may require preliminary breath test or breath analysis 127 Authorised person may require drug screening test, oral fluid analysis, urine test and blood test 127A Facilitation of testing 128 Offence relating to prescribed concentration of alcohol or prescribed drug 128A Offence to hinder or obstruct authorised person 128B Offence to assault, threaten or intimidate authorised person 128C Interfering or tampering with, or destroying, samples 129 Oral fluid, urine sample or blood sample or results of analysis etc not to be used for other purposes Division 10—Train safety recordings 130 Interpretation 131 Disclosure of train safety recordings 132 Admissibility of evidence of train safety recordings in civil proceedings Division 11—Audit of railway operations by Regulator 133 Audit of railway operations by Regulator Part 4—Securing compliance Division 1—Guiding principle 134 Guiding principle Division 2—Rail safety officers 135 Appointment 136 Identity cards 137 Accountability of rail safety officers 138 Suspension and ending of appointment of rail safety officers Division 3—Regulator has functions and powers of rail safety officers 139 Regulator has functions and powers of rail safety officers Division 4—Functions and powers of rail safety officers 140 Functions and powers 141 Conditions on rail safety officers' powers 142 Rail safety officers subject to Regulator's directions Division 5—Powers relating to entry Subdivision 1—General powers of entry 143 Powers of entry 144 Notification of entry 145 General powers on entry 146 Persons assisting rail safety officers 147 Use of electronic equipment 148 Use of equipment to examine or process things 149 Securing a site or rolling stock Subdivision 2—Search warrants 150 Search warrants 151 Announcement before entry on warrant 152 Copy of warrant to be given to person with control or management of place Subdivision 3—Limitation on entry powers 153 Places used for residential purposes Subdivision 4—Specific powers on entry 154 Power to require production of documents and answers to questions 155 Abrogation of privilege against self‑incrimination 156 Warning to be given 157 Power to copy and retain documents Subdivision 5—Powers to support seizure 158 Power to seize evidence etc 159 Directions relating to seizure 160 Rail safety officer may direct a thing's return 161 Receipt for seized things 162 Forfeiture of seized things 163 Return of seized things 164 Access to seized thing Division 6—Damage and compensation 165 Damage etc to be minimised 166 Rail safety officer to give notice of damage 167 Compensation Division 7—Other matters 168 Power to require name and address 168A Power to direct production of documents 169 Rail safety officer may take affidavits 170 Attendance of rail safety officer at inquiries 171 Directions may be given under more than 1 provision Division 8—Offences in relation to rail safety officers 172 Offence to hinder or obstruct rail safety officer 173 Offence to impersonate rail safety officer 174 Offence to assault, threaten or intimidate rail safety officer Part 5—Enforcement measures Division 1—Improvement notices 175 Issue of improvement notices 176 Contents of improvement notices 177 Compliance with improvement notice 178 Extension of time for compliance with improvement notices Division 2—Prohibition notices 179 Issue of prohibition notice 180 Contents of prohibition notice 181 Compliance with prohibition notice Division 3—Non‑disturbance notices 182 Issue of non‑disturbance notice 183 Contents of non‑disturbance notice 184 Compliance with non‑disturbance notice 185 Issue of subsequent notices Division 4—General requirements applying to notices 186 Application of Division 187 Notice to be in writing 188 Directions in notices 189 Recommendations in notice 190 Variation or cancellation of notice by rail safety officer 191 Formal irregularities or defects in notice 192 Serving notices Division 5—Remedial action 193 When Regulator may carry out action 194 Power of Regulator to take other remedial action 195 Costs of remedial or other action Division 6—Injunctions 196 Application of Division 197 Injunctions for non‑compliance with notices Division 7—Miscellaneous 198 Response to certain reports 199 Power to require works to stop 200 Temporary closing of level crossings, bridges etc 201 Use of force 202 Power to use force against persons to be exercised only by police officers Part 6—Exemptions Division 1—Ministerial exemptions 203 Ministerial exemptions Division 1A—Exemptions granted by Regulator in event of emergency 203A Exemptions granted by Regulator in event of emergency Division 2—Exemptions granted by Regulator on application Subdivision 1—Interpretation 204 Interpretation Subdivision 2—Procedures for conferring exemptions 205 Application for exemption 206 What applicant must demonstrate 207 Determination of application Subdivision 3—Variation of an exemption 208 Application for variation of an exemption 209 Determination of application for variation 210 Prescribed conditions and restrictions 211 Variation of conditions and restrictions 212 Regulator may make changes to conditions or restrictions Subdivision 4—Cancellation, suspension or surrender of an exemption 213 Cancellation or suspension of an exemption 213A Surrender of exemption Subdivision 5—Penalty for breach of condition or restriction 214 Penalty for breach of condition or restriction Subdivision 6—Waiver of fees 214A Waiver of fees Part 7—Review of decisions 215 Reviewable decisions 216 Review by Regulator 217 Appeals Part 8—General liability and evidentiary provisions Division 1—Legal proceedings Subdivision 1—General matters 218 Period within which proceedings for offences may be commenced 219 Multiple contraventions of rail safety duty provision 220 Authority to take proceedings Subdivision 2—Imputing conduct to bodies corporate 221 Imputing conduct to bodies corporate Subdivision 3—Records and evidence 222 Records and evidence from records 223 Certificate evidence 224 Proof of appointments and signatures unnecessary Division 2—Discrimination against employees 225 Dismissal or other victimisation of employee Division 3—Offences 226 Offence to give false or misleading information 227 Not to interfere with train, tram etc 228 Applying brake or emergency device 229 Stopping a train or tram Division 4—Court-based sanctions 230 Commercial benefits order 231 Supervisory intervention order 232 Exclusion orders Part 9—Infringement notices 233 Meaning of infringement penalty provision 234 Power to serve notice 235 Form of notice 236 Regulator cannot institute proceedings while infringement notice on foot 237 Late payment of penalty 238 Withdrawal of notice 239 Refund of infringement penalty 240 Payment expiates breach of infringement penalty provision 241 Payment not to have certain consequences 242 Conduct in breach of more than 1 infringement penalty provision Part 10—General Division 1—Delegation by Minister 243 Delegation by Minister Division 2—Confidentiality of information 244 Confidentiality of information Division 3—Law does not affect legal professional privilege 245 Law does not affect legal professional privilege Division 4—Civil liability 246 Civil liability not affected by Part 3 Division 3 or Division 6 247 Protection from personal liability for persons exercising functions 248 Immunity for reporting unfit rail safety worker Division 5—Codes of practice 249 Approved codes of practice 250 Use of codes of practice in proceedings Division 6—Enforceable voluntary undertakings 251 Enforceable voluntary undertaking 252 Notice of decisions and reasons for decision 253 When a rail safety undertaking is enforceable 254 Compliance with rail safety undertaking 255 Contravention of rail safety undertaking 256 Withdrawal or variation of rail safety undertaking 257 Proceedings for alleged contravention Division 7—Other matters 258 Service of documents 259 Recovery of certain costs 260 Recovery of amounts due 260A Payment of portion of fines to ONRSR 261 Compliance with conditions of accreditation or registration 262 Contracting out prohibited Division 8—Application of certain South Australian Acts to this Law 263 Application of certain South Australian Acts to this Law Division 9—National regulations 264 National regulations 265 Publication of national regulations Schedule 1—National regulations Schedule 2—Miscellaneous provisions relating to interpretation Part 1—Preliminary 1 Displacement of Schedule by contrary intention Part 2—General 2 Law to be construed not to exceed legislative power of Parliament 3 Every section to be a substantive enactment 4 Material that is, and is not, part of this Law 5 References to particular Acts and to enactments 6 References taken to be included in Law or Act citation etc 7 Interpretation best achieving Law's purpose or object 8 Use of extrinsic material in interpretation 9 Effect of change of drafting practice 10 Use of examples 11 Compliance with forms Part 3—Terms and references 12 Definitions 13 Provisions relating to defined terms and gender and number 14 Meaning of may and must etc 15 Words and expressions used in statutory instruments 15A Provisions creating offences 16 Effect of express references to bodies corporate and individuals 17 Production of records kept in computers etc 18 References to this jurisdiction to be implied 19 References to officers and holders of offices 20 Reference to certain provisions of Law 21 Reference to provisions of this Law or an Act is inclusive Part 4—Functions and powers 22 Exercise of statutory functions 23 Power to make instrument or decision includes power to amend or repeal 24 Matters for which statutory instruments may make provision 25 Presumption of validity and power to make 26 Appointments may be made by name or office 27 Acting appointments 28 Powers of appointment imply certain incidental powers 29 Delegation of functions 30 Exercise of powers between enactment and commencement Part 5—Distance, time and age 31 Matters relating to distance, time and age Part 6—Effect of repeal, amendment or expiration 32 Time of Law ceasing to have effect 33 Repealed provisions not revived 34 Saving of operation of repealed Law provisions 35 Continuance of repealed provisions 36 Law and amending Acts to be read as one Part 7—Instruments under Law 37 Schedule applies to statutory instruments Legislative history