Rail Commissioner Act 2009

This Act may be cited as the Rail Commissioner Act 2009.

In this Act, unless the contrary intention appears—

Commissioner means the Rail Commissioner established under this Act;

council means a council constituted under the Local Government Act 1999;

passenger transport service means a service consisting of the carriage of passengers for a fare or other consideration (including under a hire or charter arrangement or for consideration provided by a third party);

road means any street, road, thoroughfare, terrace, court, lane, alley, cul‑de‑sac, or place commonly used by the public, or to which the public are permitted to have access, and includes a part of a road;

road maintenance authority means an authority responsible for the care, control and maintenance of a road;

roadwork means—

the construction of a road; or

the maintenance or repair of a road; or

the alteration of a road; or

the construction of drains and other structures for the drainage of water from a road; or

the installation of fences, railings, barriers or gates; or

the installation, maintenance or alteration of traffic islands or parking bays; or

the improvement of a road, including (for example)—

landscaping and beautification; or

installation of road lighting; or

the installation of amenities or equipment on or adjacent to a road for the use, enjoyment or protection of the public; or

the installation of signs on or adjacent to a road for the use or benefit of the public; or

any work in connection with a road;

traffic control device means a sign, signal, marking, structure or other device or thing, to direct or warn traffic on, entering, or leaving, a road, and includes a traffic cone, barrier, structure or other device or thing to wholly or partially close a road or part of a road.

Unless the contrary intention appears, an expression used in this Act has the same meaning as in the Rail Safety National Law (South Australia) Act 2012.

There is to be a Rail Commissioner.

The Rail Commissioner—

is a body corporate; and

has perpetual succession and a common seal; and

is capable of suing and being sued; and

is an instrumentality of the Crown and holds property on behalf of the Crown; and

has the functions assigned by or under this or any other Act; and

has the powers necessary or expedient for, or incidental to, the performance of the Commissioner's functions (including the power to enter into contracts), together with such other powers conferred by or under this or any other Act.

The Rail Commissioner will be constituted by a person appointed from time to time by the Governor for the purpose.

The person appointed under subsection (1) will be appointed for a term not exceeding 5 years, and on terms and conditions determined by the Governor.

The Governor may appoint 1 or more persons as the Governor thinks fit to be a deputy of the person appointed under subsection (1), and a person so appointed may act as the Rail Commissioner in appropriate cases.

At the expiration of a term of appointment, a person appointed under this section will be eligible for reappointment.

The Governor may remove a person appointed under this section from office—

for misconduct; or

for incapacity to perform satisfactorily the Commissioner's functions; or

for material contravention of, or failure to comply with, the requirements of this or any other Act.

The office of the Rail Commissioner becomes vacant if the Commissioner—

dies; or

completes a term of office and is not reappointed; or

resigns by written notice to the Minister; or

is disqualified from managing corporations under Chapter 2D Part 2D.6 of the Corporations Act 2001 of the Commonwealth; or

is removed from office under subsection (5).

On the office of the Rail Commissioner becoming vacant, a person may be appointed in accordance with this section to the vacant office.

The Rail Commissioner is subject to the direction of the Minister.

A direction of the Minister under this section must be given in writing.

The Minister must, within 6 sitting days after giving a direction to the Rail Commissioner under this section, have copies of the direction laid before both Houses of Parliament.

If the Minister gives a direction under this section, the Rail Commissioner must cause a statement of the fact that the direction was given to be published in its next annual report.

The functions of the Rail Commissioner are as follows:

to construct railways, railway tracks and associated track structures;

to manage, commission, maintain, repair, modify, install, operate or decommission rail infrastructure;

to commission, maintain, repair, modify, install, operate or decommission rolling stock;

to operate or move, or cause the operation or movement of, rolling stock on a railway by any means (including for the purposes of constructing or restoring rail infrastructure);

to move, or cause the movement of, rolling stock for the purposes of operating a railway service;

to act as a rail transport operator for railway operations carried out by the Commissioner;

to hold accreditation (if successful application is made) under the Rail Safety National Law (South Australia) Act 2012 as a rail transport operator in relation to railway operations carried out, or proposed to be carried out, by the Commissioner;

to enter into agreements or arrangements relating to the management of risks associated with railway operations (including where rail infrastructure interfaces with roads);

to operate passenger transport services by train or tram;

to enter into service contracts relating to the operation of passenger transport services under Part 5 of the Passenger Transport Act 1994;

to carry out any other function conferred on the Commissioner by the Minister.

The Rail Commissioner's functions include the carrying out of design work, roadwork and any other necessary or associated work relating to the Commissioner's functions.

The Rail Commissioner will be taken to hold an accreditation under the Passenger Transport Act 1994 to operate passenger transport services by train or tram as operated by the Rail Commissioner from time to time.

The Rail Commissioner or a person authorised by the Commissioner may, for the purposes of this Act, enter railway premises or any other land or premises to perform any of the following functions:

survey or take levels of the premises or land;

probe, bore or sink holes or pits on or in the premises or land or otherwise examine the soil structure of the premises or land;

set out the line of work the Commissioner proposes to undertake under this Act;

do any other thing necessary for the performance of the functions or the exercise of the powers of the Commissioner under this Act.

The powers under this section are exercisable only at a reasonable time of the day and on giving reasonable written notice (being not less than 1 day) to the owner of the premises or land.

Notice under subsection (2) may be given—

by post addressed to the owner at the home or place of business of the owner; or

to any person apparently over the age of 16 years at the home or place of business of the owner.

The Rail Commissioner or a person authorised by the Commissioner must, if exercising powers under this section in relation to railway premises, comply with the reasonable directions of the owner of the premises as to any safety requirements.

If an owner of premises or land suffers loss or damage as a result of the exercise of the powers under this section, the owner is entitled to compensation.

The amount of any compensation will be determined in accordance with section 29 of the Land Acquisition Act 1969 as if the Rail Commissioner had entered or temporarily occupied the premises or land as an Authority under Part 5 of that Act.

In this section—

owner—

in relation to railway premises—means the person holding accreditation under the Rail Safety National Law (South Australia) Act 2012 as the rail transport operator in relation to those railway premises;

in relation to land or other premises—means a person having an estate or interest (legal or equitable) in the land or land constituting the premises (including a person having an easement, right, power or privilege over, affecting, or in connection with, such land).

The Rail Commissioner may—

subject to the approval of the Minister—acquire by agreement or compulsory process any land or interest in land for the purposes of carrying out railway operations, establishing or maintaining rail infrastructure or any other purpose connected with this Act; and

Examples—

The powers of acquisition might be used (for example) for any of the following purposes:

the erection or installation of plant or equipment for rail infrastructure or rolling stock;

the storage of plant, equipment or material used in connection with rail infrastructure or rolling stock;

the relocation of residents or businesses displaced by the exercise of any of the Rail Commissioner's powers.

subject to the approval of the Minister—sell, transfer, lease or otherwise deal with or dispose of any land or interest in land vested in the Commissioner; and

remove or cut back any tree or other vegetation on or overhanging rail infrastructure.

The Land Acquisition Act 1969 applies in relation to the compulsory acquisition of land under subsection (1).

Subject to subsection (4), the Development Act 1993 does not apply in relation to land acquired under this Act.

Subsection (3) does not apply—

in a case that involves development in relation to a State heritage place in the circumstances contemplated by paragraph (e) of the definition of development under the Development Act 1993 (on the basis that the Development Act 1993 will only apply insofar as is relevant to the State heritage place); or

in a case that falls within the ambit of regulations (if any) made for the purposes of this paragraph.

The Rail Commissioner may, subject to the approval of the Minister, carry out such works as the Commissioner thinks fit in relation to—

the construction, commissioning and maintenance of rail infrastructure, including—

the carrying out of associated roadworks; and

the installation, maintenance, alteration, operation or removal, or causing the installation, maintenance, alteration, operation or removal, of a traffic control device on, above or near a road; and

the erection, construction, laying down, making, alteration or removal of buildings, structures, notices or signs, over, under, along, across, or adjacent to, a road; and

the operation or management of rolling stock; and

the establishment, maintenance, extension, alteration or discontinuance of any passenger transport service; and

any other function of the Commissioner.

The Rail Commissioner must make good any damage to a road arising from works carried out under this section.

Subject to subsection (4), the Rail Commissioner must, in relation to a proposal that involves disturbing the surface of a road, or that otherwise relates to a road—

inform the relevant road maintenance authority of the proposal at least 28 days before the proposed commencement of any work; and

give the relevant road maintenance authority a reasonable opportunity to consult with the Commissioner in relation to the matter; and

ensure that proper consideration is given to the views of the road maintenance authority.

In a case of emergency, the Rail Commissioner need only comply with subsection (3) to such extent as is practicable in the circumstances.

The provisions of the Road Traffic Act 1961 apply in relation to a traffic control device installed, maintained, altered or operated under this section as if the Rail Commissioner were a road authority authorised under Part 2 of that Act to install, maintain, alter or operate the device.

The Rail Commissioner may, subject to the approval of the Minister—

close a railway temporarily or permanently; or

limit the use of a railway temporarily or permanently, for the purposes of railway operations carried out by the Commissioner.

The Rail Commissioner may, in order to give effect to a closure or limitation under this section, give directions to a rail transport operator who uses the railway.

A rail transport operator must not contravene a direction under subsection (2).

Maximum penalty: $50 000.

No liability is incurred by the Crown or the Rail Commissioner as a result of the exercise of powers under this section.

The Rail Commissioner's staff consists of—

Public Service employees assigned to assist the Commissioner; and

any person appointed under subsection (3).

The Minister may, by notice in the Gazette—

exclude Public Service employees who are members of the Rail Commissioner's staff from specified provisions of the Public Sector Management Act 1995; and

if the Minister thinks that certain provisions should apply to such employees instead of those excluded under paragraph (a)—determine that those provisions will apply, and such a notice will have effect according to its terms.

The Rail Commissioner may, with the consent of the Minister, appoint staff for the purposes of this Act.

The terms and conditions of employment of a person appointed under subsection (3) will be determined by the Governor and such a person will not be a Public Service employee.

The Rail Commissioner may, with the approval of the Minister, under an arrangement with the relevant body, make use of the staff, equipment or facilities of—

an administrative unit of the Public Service; or

an agency or instrumentality of the Crown.

The Rail Commissioner may delegate any of the Commissioner's functions or powers (other than the power to delegate) to a particular person or to the person for the time being performing particular duties or holding or acting in a particular position.

A function or power delegated under this section may, if the instrument of delegation so provides, be further delegated.

A delegation under this section—

must be in writing; and

may be conditional or unconditional; and

is revocable at will; and

does not prevent the Rail Commissioner from acting in any matter.