emerald tourist railway act 1977 - legislation.vic.gov.aufile/77-9020a025.docx · web...

Version No. 025

Emerald Tourist Railway Act 1977No. 9020 of 1977

Version incorporating amendments as at22 September 2014

TABLE OF PROVISIONSSection Page

1 Short title and commencement 1

PART I—ESTABLISHMENT OF EMERALD TOURIST RAILWAY BOARD 2

2 Establishment of Emerald Tourist Railway Board 23 Responsibilities and functions of Board 24 Matters to be provided for by Order in Council 35 Additional Orders in Council 46 Membership of Board 47 Incorporation 58 Property of Railways Board in tourist railway to pass to Board 69 Crown land may be used for purposes of railway 710 First meeting of Board 8

PART II—PROCEDURE OF BOARD 9

11 Term of office 912 Casual vacancies 913 Chairman 914 Quorum 1015 Decisions 1016 Travelling allowances etc. of members 1017 Judicial notice 1018 Disqualification from office 1119 Conflict of interest 1120 Procedure 12

PART III—OFFICERS 13

21 Manager 1322 Offices 14

1

PART IV—FINANCIAL 15

23 General Fund 1524, 25 Repealed 1526 Borrowing by Board 1527 Board may make loans 1528 Loans by Minister 1629 Application by Board for loan by Minister 16

PART V—MISCELLANEOUS 18

30 Procedure upon default in repayment of loan 1831 Relinquishment of possession by Minister 1932 Appointment of inspector by Governor in Council 2033 Conditions of appointment of inspector 2034 Powers of inspector 2135 Inspector may take possession of books 2136 Examination of officers 2237 Notes of examination 2338 Report of inspector 2439 Contracts of Board 2540 Certificate of chairman to be evidence of ownership by Board 2641 Grants of leases, licences and easements 2641A Grants of leases for up to 50 years 2841B Power to enter and use land 2942 Board to report accidents to Minister 2943 Actions against Board 3044 Execution against Board 3045 Railway etc. not to be sold under execution 3046 Board to make returns to Minister of accidents 3047 Board may adopt by-laws made under Transport Act 1983 3048 Provisions of Fences Act 1968 not to apply 3148A Supreme Court—limitation of jurisdiction 3149 By-laws 31

__________________

SCHEDULES 35

SCHEDULE ONE 35

SCHEDULE TWO 36

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2

ENDNOTES 37

1. General Information 37

2. Table of Amendments 38

3. Explanatory Details 40

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Version No. 025


Version incorporating amendments as at22 September 2014

An Act to make Provision for the Establishment of a Board to be known as the Emerald Tourist Railway Board for the

Preservation and Operation as a Tourist Attraction of the Historical Narrow-gauge Steam Railway in the Dandenong

Ranges and for Purposes connected therewith.

BE IT ENACTED by the Queen's Most Excellent Majesty by and with the advice and consent of the Legislative Council and the Legislative Assembly of Victoria in this present Parliament assembled and by the authority of the same as follows (that is to say):

1 Short title and commencement

(1) This Act may be cited as the Emerald Tourist Railway Act 1977.

(2) This Act shall come into operation on a day to be fixed by proclamation of the Governor in Council published in the Government Gazette.

* * * * *

__________________

1

S. 1(3) repealed by No. 70/1994 s. 16(a).

PART I—ESTABLISHMENT OF EMERALD TOURIST RAILWAY BOARD

2 Establishment of Emerald Tourist Railway Board

(1) At the request of the Puffing Billy Preservation Society and the Victorian Railways Board and on the recommendation of the Minister the Governor in Council may by Order provide for the constitution and establishment under this Act of an Emerald Tourist Railway Board and may in and by that Order authorize the Board, subject to this Act but notwithstanding anything to the contrary in any other Act or law to acquire the undertaking and the land, rolling stock, and other assets of the Victorian Railways Board which constitute the narrow-gauge steam railway commencing at Belgrave at the commencement of this Act and known as Puffing Billy and, if so arranged, to discharge any outstanding liabilities in respect thereof.

(2) In any submission to the Governor in Council that the Board established under this Act shall take over the ownership, management, and control of the said narrow-gauge steam railway whilst there are liabilities outstanding in respect thereof the Minister shall cause to be included in his submission to the Governor in Council particulars of those liabilities.

3 Responsibilities and functions of Board

(1) The Emerald Tourist Railway Board established under this Act—

(a) is responsible for the preservation, development, promotion, operation and maintenance of the historical narrow-gauge steam railway referred to in section 2(1); and

s. 2

S. 3 substituted by No. 70/1994 s. 4.


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(b) may carry out other related operations which are consistent with the operations of that railway as a major tourist attraction, including, but not limited to—

(i) the provision of maintenance and consultancy services to other railway operations; and

(ii) the development, construction and management of tourist facilities.

(1A) For the purposes of subsection (1)(b) and section 41 tourist facilities includes—

(a) tourist accommodation;

(b) interpretation centres and convention centres;

(c) cafes, restaurants and licensed premises within the meaning of the Liquor Control Reform Act 1998;

(d) shops;

(e) carparks;

(f) other related facilities.

(2) The Emerald Tourist Railway Board shall not for any purpose be taken or deemed to be a common carrier.

4 Matters to be provided for by Order in Council

The Order in Council providing for the establishment of the Board shall subject to this Act—

(a) if the Board is the successor of some other body or bodies corporate or unincorporate—specify that fact and the name of the body or bodies the Board succeeds and general particulars of the undertaking which is

S. 3(1)(b) substituted by No. 92/2003 s. 3(1).

S. 3(1A) inserted by No. 92/2003 s. 3(2).

s. 4


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intended to pass to the Board upon the incorporation of the Board;

(b) state the total amount of money which may be granted or lent pursuant to the provisions of this Act by the Minister to the Board for the purposes of this Act and also the amount which the Board may borrow by way of overdraft or loan;

(c) provide for the winding up of the Board in circumstances in which a company may be wound up under the Companies Act 1961;

(d) contain such other provisions as the Governor in Council thinks fit in the circumstances; and

(e) be published in the Government Gazette.

5 Additional Orders in Council

On the petition of the Board the Governor in Council may make any additional Order in Council and in any such Order—

(a) may vary the original Order to provide for any matter which might have been provided for in the original Order; and

(b) may alter the name of the Board.

6 Membership of Board

(1) The Emerald Tourist Railway Board shall consist of not less than five nor more than ten persons appointed by the Governor in Council to be members of the Board of whom—

(a) four shall be nominated by the Puffing Billy Preservation Society;

(b) one shall be nominated by the Minister administering the Transport Integration Act 2010;

s. 5

S. 6(1)(b) amended by Nos 70/1994 s. 16(b), 6/2010 s. 203(1)(Sch. 6 item 17.1) (as amended by No. 45/2010 s. 22).


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(c) one shall be experienced in the promotion and management of tourism;

(d) one shall be experienced in banking or finance;

(e) two shall be persons the Governor in Council thinks specially qualified to achieve the aims of the Board.

(1A) Not more than 2 members of the Board appointed under subsection (1) may be managers or other officers or employees of the Board.

(2) The members of the Board shall not in any way be personally liable to the Board or to any person for anything done by them in the course of carrying out their duties under this Act in accordance with the provisions of this Act and the by-laws.

7 Incorporation

The members of the Board shall be a body corporate by the name of Emerald Tourist Railway Board and by that name shall have perpetual succession and a common seal and shall be capable in law of suing and being sued and shall, subject to this Act, have power to take, purchase, sell, lease, take on lease, and hold lands, goods, chattels, and other property and to enter into any contract, agreement or arrangement for any of the purposes of this Act.

8 Property of Railways Board in tourist railway to pass to Board

S. 6(1A) inserted by No. 70/1994 s. 5.

s. 7


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(1) 1Upon the incorporation of the Board under this Act and without any further or other authority than the provisions of this section but subject to the provisions of subsection (2)—

(a) the provisions of the Fern Tree Gully and Gembrook Railway (Reconstruction) Act 1948 and of section 2 of the Railways Dismantling Act 1963 shall cease to have effect so far as those provisions relate to the said historical narrow-gauge steam railway;

(b) all the right title and interest of the Victorian Railways Board in the property referred to in this paragraph shall pass to and be vested in the Board, namely—

(i) the lands of the Victorian Railways Board described in the folios of the Register referred to in Schedule One being lands vested in the said Board for the purposes of the Fern Tree Gully and Gembrook Railway and lying between the southern boundary of the land described in folio of the Register Volume 2841 Folio 169 and the southern boundary of the land described in folio of the Register Volume 2763 Folio 405;

(ii) the permanent way, rolling stock, signals, and other fittings, fixtures, and appurtenances of the said railway; and

(iii) all plans, drawings, records, equipment, materials and parts relating to the said railway; and

(c) all the right title and interest of the Victorian Railways Board in the lands described in the folios of the Register referred to in Schedule Two is divested out of the Victorian

S. 8(1)(b)(i) amended by No. 18/1989 s. 13(Sch. 2 item 26(a)(b)).

s. 8

S. 8(1)(c) amended by No. 18/1989 s. 13(Sch. 2 item 26(a)).


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Railways Board and surrendered to Her Majesty and shall become and be unalienated land of the Crown deemed to be permanently reserved under section 14 of the Land Act 1958 for public recreation.

(2) The Board shall not sell or otherwise dispose of any of the lands described in the folios of the Register referred to in Schedule One for an estate in fee simple without the consent in writing of the Minister administering the National Rail Corporation (Victoria) Act 1991.

(3) Upon the incorporation of the Board under this Act the liabilities (if any) of the Victorian Railways Board in respect of any of the property referred to in subsection (1)(b) shall pass to the Board.

(4) The Board shall cause to be prepared and furnished to the Minister within twelve months after the incorporation of the Board an inventory certified by an officer of the Victorian Railways Board and an officer of the Board of the property which has vested in the Board pursuant to the provisions of subsection (1)(b)(ii).

9 Crown land may be used for purposes of railways. 9

S. 9(1) amended by No. 41/1987 s. 103(Sch. 4 item 16.1).

(1) Any unalienated land of the Crown which was used for the purposes of the said railway or in connexion with the railway immediately before the commencement of this Act or is required by the Emerald Tourist Railway Board for the purposes of this Act may, with the concurrence of the Minister for the time being administering the Conservation, Forests and Lands Act 1987, be so used by the Board for the purposes of this Act.

S. 8(2) amended by Nos 18/1989 s. 13(Sch. 2 item 26(a)), 46/1998s. 7(Sch. 1).


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(2) Upon the publication in the Government Gazette of a description of any such unalienated land of the Crown the land shall become vested in the Board as if it were reserved under the Land Act 1958 for the purposes of this Act but shall be and remain lands of the Crown.

10 First meeting of Board

(1) The members of the Board shall hold their first meeting at such time and place as the Governor in Council appoints in that behalf and shall proceed to put this Act into execution.

(2) On the day appointed under subsection (1) the Board shall be and be deemed to be duly and legally constituted in pursuance of the provisions of this Act.

__________________

s. 10


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PART II—PROCEDURE OF BOARD

11 Term of office

Subject to this Act the members of the Board are entitled to hold office for a period of three years from the date of their appointment and are eligible for re-appointment.

12 Casual vacancies

(1) In the event of a vacancy occurring in the office of member of the Board the Governor in Council may appoint some eligible person to be a member and, if the person whose office is vacant was nominated by some person or body, may make the appointment on the like nomination.

(2) Any person appointed to fill a casual vacancy in the office of member shall be entitled to hold office for the remainder of the term of office of the person in whose stead he is appointed and shall be eligible for re-appointment.

13 Chairman

(1) At the first meeting of the Board in each year the members of the Board shall appoint one of the members to be chairman of the Board and one of the members to be the deputy chairman of the Board.

(2) The chairman shall preside at all meetings of the Board at which he is present and in his absence the deputy chairman shall preside and in the absence of both the chairman and the deputy chairman, a member elected by the members present to be chairman of the meeting shall preside.

s. 11

S. 13(1) amended by No. 70/1994 s. 6(a).

S. 13(2) amended by No. 70/1994 s. 6(b).


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14 Quorum

(1) A quorum of the Board consists of a majority of the total number of members for the time being holding office.

(2) Subject to the presence of a quorum the Board may act notwithstanding any vacancy in its membership.

15 Decisions

(1) The decision on any question of a majority of the members present at a meeting of the Board shall, subject to the presence of a quorum, be the decision of the Board on that question.

(2) In the event of an equality of votes on any question the chairman of the meeting shall have a second or casting vote.

16 Travelling allowances etc. of members

The chairman and every other member of the Board is entitled to receive from the Board such travelling and other allowances as are from time to time fixed by the Board.

17 Judicial notice

(1) All courts, judges, and persons acting judicially shall take judicial notice of the incorporation of the Board and of the common seal of the Board affixed to any deed, instrument, or writing and shall presume that any such seal was properly affixed.

(2) Every such deed, instrument, or writing when sealed and whether required to be sealed or not shall be admissible in evidence for and against the Board on the production thereof without any other or further proof of the making thereof or of the due incorporation of the Board.

s. 14

S. 16 amended by No. 70/1994 s. 7.


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18 Disqualification from office

The office of member of the Board becomes vacant if the member—

(a) is absent without leave from four consecutive meetings of the Board;

(b) by writing under his hand addressed to the Governor in Council resigns his office as member;

(c) is an undischarged bankrupt or person whose property is subject to an order or arrangement under the laws relating to bankruptcy;

(d) is attainted of treason or convicted of an indictable offence or is a person of unsound mind.

* * * * *

19 Conflict of interest

(1) Any member of the Board who—

(a) for profit or reward is concerned in any contract or participates in any manner in any work to be done under the authority of this Act; or

(b) derives or is entitled to any benefit either directly or indirectly from any such contract or work—

shall disclose to the Board the nature of his interest in that contract or work and shall not be present at any meeting of the Board whilst that contract or work is being discussed or vote on any question with respect to that contract or work.

s. 18

S. 18(d) amended by No. 70/1994 s. 8(a).

S. 18(e) repealed by No. 70/1994 s. 8(b).


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(2) No person being a shareholder or member of a company consisting of more than twenty persons shall be disqualified from acting as a member of the Board by reason of any contract entered into between such company and the Board but no such shareholder or member shall act as a member of the Board in any matter relating to a contract entered into between the Board and the company.

20 Procedure

(1) Subject to this Act the Board may regulate its own procedure.

(2) The Board may employ such consultants and technical advisers as the Board considers necessary from time to time for enabling the Board to carry out its functions under this Act.

(3) The Board may make rules governing the proceedings of the Board, the management of the affairs of the Board, and the duties of its officers and employés.

__________________

s. 20

S. 20(3) amended by No. 70/1994 s. 9.


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PART III—OFFICERS

21 Manager

(1) The Board shall appoint some competent person or persons to manage the business of the Board.

(2) Any manager of the Board shall hold office on such terms and conditions as are determined by the Board prior to his appointment and shall be entitled to receive such salary and travelling and other allowances as are from time to time determined by the Board.

(3) Subject to the direction and control of the Board a manager of the Board—

(a) shall carry out or cause to be carried out the decisions of the Board and general policies determined by the Board;

(b) shall attend meetings of the Board;

(c) shall be responsible for staff and the maintenance of proper records and accounts; and

(d) shall promote the objects of the Board to the best of his ability.

(4) A person appointed to be the manager of the Board shall not engage in any other employment without the approval in writing of the Board and shall not dismiss from office or employment without the approval in writing of the Board any officer or employé who was employed or engaged in the undertaking immediately before the establishment of the Board.

s. 21


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(5) For the purposes of Part VIII of the Labour and Industry Act 1958 any period of employment or service in the undertaking prior to the establishment of the Board shall be deemed to be employment or service with the Board.

(6) Any officer of the Board who at the date of his appointment was an officer within the meaning of the State Superannuation Act 1988 shall subject to the State Superannuation Act 1988 continue to be an officer within the meaning of that Act.

22 Offices

(1) The Board—

(a) shall provide and maintain a fit and convenient office for holding meetings of the Board and transacting the business of the Board and for the use of its manager and other officers and employés; and

(b) shall cause the manager or some other person authorized in that behalf by the Board to attend at the office of the Board during the days and hours notified to the public as the days and hours during which the office will be open.

(2) The Board shall cause particulars of the location of the office of the Board and the days upon which and the hours during which the office is open to the public to be prominently displayed on all stations of the Emerald Tourist Railway.

__________________

S. 21(6) amended by No. 70/1994 s. 16(c).

s. 22


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PART IV—FINANCIAL

23 General Fund

All moneys received by the Board (including loan moneys) shall be paid into and form a fund to be called the "General Fund" and may be applied by the Board in carrying this Act into execution.

* * * * *

26 Borrowing by Board

(1) Subject to this Act the Board may borrow by way of loan, advance, or overdraft such moneys as it thinks necessary from time to time for carrying out its objects.

(2) Before the Board adopts any project or scheme or programme of works involving in whole or in part the expenditure of moneys borrowed or proposed to be borrowed by the Board under this Act the Board shall obtain the approval of the Minister and for that purpose shall submit or cause to be submitted to the Minister a statement of the purpose of the expenditure, including particulars of any proposed works or services, and a detailed statement of the manner in which the Board proposes to repay the moneys to be borrowed under the project, scheme, or programme.

27 Board may make loans

(1) For carrying out its objects the Board may make loans to any person seeking to assist in establishing or developing the undertaking of the Board on such terms and conditions as the Board thinks fit.

s. 23

Ss 24, 25 repealed by No. 31/1994 s. 4(Sch. 2 item 27).


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(2) The Board shall not make a loan to a member, officer, or employé of the Board or enter into a guarantee with respect to any member, officer, or employé of the Board.

28 Loans by Ministers. 28

S. 28(1) amended by No. 31/1994 s. 3(Sch. 1 item 23).

(1) Subject to this Act the Minister may upon such terms and conditions as are agreed upon between the Minister and the Board or, in the absence of any agreement, upon such terms and conditions as the Minister thinks fit make any grant or loan to the Board out of moneys for the purpose and may make advances from time to time on account of any such grant or loan.

(2) All loans made by the Minister to the Board and all advances thereunder shall together with interest be charged upon the property and revenues of the Board.

29 Application by Board for loan by Minister

An application by the Board for a grant or loan by the Minister shall not be considered until there has been prepared and laid before the Minister the following documents verified by the signature of some competent architect, engineer, or like person approved by the Minister:

(a) A detailed statement showing—

(i) the cost of all works or undertakings paid for out of any grant or loan previously granted by the Minister to the Board;

(ii) the purposes served by such works;

(iii) the cost of maintenance and management of such works; and


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(iv) the annual net revenue derived from such works;

(b) A description of the works proposed to be executed by the Board and an estimate of the cost of their construction;

(c) An estimate of the additional revenue or other benefit to be derived therefrom; and

(d) A report as to whether the proposed works are considered to be feasible and satisfactory.

__________________

s. 29


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PART V—MISCELLANEOUS

30 Procedure upon default in repayment of loan

(1) In case default is made by the Board in the repayment of moneys lent by the Minister—

(a) the Secretary to the Department of Treasury and Finance shall give notice of the default to the Minister; and

(b) thereupon, without prejudice to any other remedies, the Minister may after the expiration of three months from the date at which the last of such payments became due give one month's notice in writing of the default to the Board.

(2) After the expiration of the period of notice referred to in subsection (1) unless payment of the amount due is made in the meantime the Minister may enter upon and take possession of and manage and maintain the undertaking of the Board and all the property and revenues of the Board and without further or other authority than this section may do all things which may be done by the Board in all respects as though the Minister were the Board and any reference in any Act to the Board includes the Minister during such time as he retains such possession.

(3) The Minister—

(a) may appoint some person on his behalf to enter and take possession of the undertaking of the Board and the property and revenues of the Board and the person so appointed shall, subject to the Minister, manage and maintain the undertaking and the property and revenues of the Board and in relation thereto may exercise all the powers, rights,

s. 30

S. 30(1)(a) amended by Nos 70/1994 s. 16(d), 46/1998s. 7(Sch. 1).


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and duties of the Minister as provided under this section; and

(b) may at any time remove any person appointed under paragraph (a) and appoint some other person in his place.

31 Relinquishment of possession by Minister

(1) Possession of the undertaking of the Board and of any property and revenues taken by the Minister under section 30 may be relinquished at such time and in such manner and upon such terms and conditions as the Minister thinks fit.

(2) The Minister may on the relinquishment of possession reserve any of the said property and revenues and any powers rights and duties of the Board with a view to the payment of any moneys remaining or accruing due to the Treasurer of Victoria from or on account of the Board.

(3) Upon relinquishment all property, revenues, powers, rights, and duties which became vested in the Minister shall so far as they are not reserved revert to and become vested in the Board.

(4) A relinquishment under this section shall be without prejudice to the power of again taking possession of the undertaking of the Board or any property, revenues, powers, rights, and duties as provided in this section and without prejudice to any security for the repayment of any loan or advance by the Minister.

s. 31


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32 Appointment of inspector by Governor in Council

Where it appears to the Governor in Council that—

(a) it is desirable for the protection of the public;

(b) it is in the public interest because fraud or misfeasance or other misconduct by a person who is or has been concerned with the affairs of the Board is alleged; or

(c) in any case it is in the public interest—

to appoint an inspector to investigate affairs of the Board he may by instrument in writing appoint an inspector.

33 Conditions of appointment of inspector

(1) The Governor in Council in the instrument appointing an inspector shall specify full particulars of the appointment including—

(a) the matters into which the investigation is to be made being all the affairs or particular affairs of the Board;

(b) the period in respect of which the investigation is to be made; and

(c) the terms and conditions of the appointment of the inspector including terms and conditions relating to remuneration.

(2) The Governor in Council may by notice in writing given to any inspector terminate his appointment at any time.

(3) Notice of the appointment and notice of the termination of the appointment of an inspector shall be published in the Government Gazette.

s. 32


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34 Powers of inspector

(1) In the course of an investigation under this Part an inspector may require an officer of the Board by notice in writing in accordance with the prescribed form given in the prescribed manner—

(a) to produce to the inspector such books of the Board and other books relating to affairs of the Board as are in the custody or under the control of the officer;

(b) to give to the inspector all reasonable assistance in connexion with the investigation; and

(c) to appear before the inspector for examination on oath.

(2) An inspector may administer an oath referred to in paragraph (c) in subsection (1).

(3) An inspector shall not exercise his powers under subsection (1) in respect of an officer of the Board unless he has furnished to the officer a certificate stating that he is investigating affairs of the Board under this Part and that the officer is an officer of the Board.

35 Inspector may take possession of books

Where books are produced to an inspector under this Part the inspector may take possession of the books for such period as he considers necessary for the purposes of the investigation and during that period he shall permit a person who would be entitled to inspect any one or more of those books if they were not in the possession of the inspector to inspect at all reasonable times such of those books as that person would be so entitled to inspect.

s. 34



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36 Examination of officerss. 36

S. 36(1) amended by No. 70/1994 s. 16(e).

(1) Where affairs of the Board are being investigated under this Part an officer of the Board shall not—

(a) refuse or fail to comply with a requirement of an inspector under section 34 to the extent to which he is able to comply with it;

(b) in purported compliance with such a requirement knowingly furnish information that is false or misleading in a material particular; or

(c) when appearing before an inspector for examination in pursuance of such a requirement—

(i) knowingly make a statement that is false or misleading in a material particular; or

(ii) refuse or fail to be sworn.

Penalty:10 penalty units.

(2) An Australian legal practitioner (within the meaning of the Legal Profession Act 2004) acting for the officer—

(a) may attend the examination; and

(b) may, to the extent that the inspector permits—

(i) address the inspector; and

(ii) examine the officer—

in relation to matters in respect of which the inspector has questioned the officer.

(3) The officer is not excused from answering a question put to him by the inspector on the ground that the answer might tend to incriminate him but,



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where the officer claims before answering the question, that the answer might tend to incriminate him, neither the question nor the answer is admissible in evidence against him in criminal proceedings other than proceedings under subsection (1) or in relation to a charge of perjury in respect of the answer.

(4) A person who complies with a requirement of an inspector under section 34 shall not incur any liability to any person by reason only of that compliance and for the purposes of this subsection a certificate under section 34(3) is conclusive evidence of the facts required to be stated in that certificate.

(5) A person required to attend for examination under this Part is entitled to receive such allowances and expenses as are prescribed.

37 Notes of examination

(1) An inspector may cause notes of an examination made by him under this Part to be recorded in writing and be read to or by the person examined and may require that person to sign the notes and, subject to this section, notes signed by that person may be used in evidence in any legal proceedings against that person.

(2) A copy of the notes signed by a person shall be furnished without charge to that person upon request made by him in writing.

(3) Notes made under this section that relate to a question the answer to which a person has claimed might tend to incriminate him shall not be used as evidence in criminal proceedings other than proceedings under subsection (1) of section 36 or in relation to a charge of perjury in respect of the answer.

s. 37


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(4) Nothing in this section affects or limits the admissibility of other written evidence or of oral evidence.

(5) Where a report is made under section 38 any notes recorded under this section relating to that report shall be furnished with the report.

38 Report of inspector

(1) An inspector—

(a) may make one or more reports in writing to the Minister during an investigation of affairs of the Board and if so directed in writing by the Governor in Council shall make such reports as are specified in the direction; and

(b) shall, on the completion or termination of the investigation, report in writing to the Governor in Council and to the Minister on the result of the investigation.

(2) A report shall include a statement of the opinion of the inspector in relation to the affairs of the Board and the facts on which that opinion is based.

(3) An inspector shall not include in a report any recommendation relating to the institution of criminal proceedings or any statement to the effect that in his opinion a specified person has committed a criminal offence but, where an inspector is of the opinion that criminal proceedings ought to be instituted or that a person has committed a criminal offence, he shall state that opinion in writing given to the Minister.

(4) Subject to subsection (5) a copy of a report made to the Minister under this section shall be given to the Board.

s. 38


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(5) Subject to subsection (6) the Minister shall not give a copy of a report under this Part to the Board if he believes that legal proceedings which have been or which in his opinion might be instituted might be prejudiced by the report.

(6) The court before which legal proceedings are brought against the Board or other person for or in respect of matters dealt with in a report under this Part may order that a copy of the report be given to the Board or person.

(7) The Governor in Council may, if he is of opinion that it is in the public interest so to do, cause the whole or any part of a report to be printed and published.

(8) A copy of a report of an inspector purporting to be certified as such a report by the Minister is admissible in legal proceedings as evidence of the inspector's report.

(9) Nothing in this section operates to diminish the protection afforded to witnesses by the Evidence (Miscellaneous Provisions) Act 1958 or the Evidence Act 2008.

39 Contracts of Board

(1) The Board by its corporate name may enter into contracts with any persons for the execution of any work authorized by or under this Act to be done by the Board or which the Board thinks proper to do or to direct to be done under or by virtue of the powers conferred upon it by this Act or for any other matters and things whatsoever necessary for enabling the Board to carry the purposes of this Act into full and complete effect in such manner and upon such terms and for such sum of money and subject to such conditions, limitations, and restrictions as the Board thinks fit.

S. 38(9) amended by No. 69/2009 s. 54(Sch. Pt 1 item 20).

s. 39


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(2) Every such contract shall be in writing and shall specify the works to be done, the materials to be furnished, the prices to be paid, the times within which the works are to be completed or materials furnished, and the penalties to be suffered in case of non-performance thereof.

(3) Any such contract may also specify the person to whose satisfaction the work is to be completed or materials furnished and the mode of determining any dispute which arises concerning or in consequence of the contract.

(4) A contract made by the Board the consideration for which exceeds $200 000 is of no force or effect unless approved by the Minister.

40 Certificate of chairman to be evidence of ownership by Board

A certificate purporting to be signed by the chairman of the Board for the time being to the effect that any lands, stations, or buildings described in the certificate are vested in the Board or are or were at any specified time used for the purposes of the Emerald Tourist Railway within the meaning of section 9 shall be prima facie evidence that such lands, stations, or buildings are so vested and shall be received in evidence in any proceedings in any court.

41 Grants of leases, licences and easements

(1) The Board may in respect of any land vested in the Board under this Act grant—

(a) a lease—

(i) of any tourist facilities, shed, office, house or other building or part of a building;

S. 39(4) substituted by No. 70/1994 s. 10.

s. 40

S. 41(1) amended by No. 70/1994 s. 11.

S. 41(1)(a) substituted by No. 92/2003 s. 4.


26

(ii) of any site for the erection of any tourist facilities, shed, office, house or other building or part of a building;

(iii) for storage purposes;

(iv) for other purposes including, but not limited to, the development, construction and management of any tourist facilities, shed, office, house or other building or part of a building;

(b) a licence for any purpose but particularly with respect to—

(i) the right of entry to any station by vehicle;

(ii) the right to exhibit advertisements; or

(iii) the use of any facilities or equipment; and

(c) an easement over any land vested in the Board other than an easement on or across a railway line or any land which is unalienated Crown land—

on such terms and conditions as the Board thinks fit.

(2) Any lease licence or other authority granted or issued by the Victorian Railways Board or the Victorian Railways Commissioners before the commencement of this Act with respect to any land or other property affected by the provisions of this Act shall continue in force for the remainder of the period for which it is granted or issued in all respects as if it were granted or issued by the Board under this Act where the land or property is vested in the Board under this Act or pursuant to the provisions of the Land Act 1958

s. 41


27

where the land or property becomes unalienated Crown land pursuant to the provisions of this Act.

(3) Without any further or other authority than the provisions of this subsection the Board may use or permit to be used as determined by the Board for public recreation amusement entertainment or instruction any land under the management or control of the Board for the purposes of this Act.

41A Grants of leases for up to 50 years

(1) This section and section 41B have effect despite anything to the contrary in the Land Act 1958 or the Crown Land (Reserves) Act 1978.

(2) The Board must not grant a lease under section 41(1)(a) for a period exceeding 21 years unless the Minister, in writing to the Board, has approved the granting of the lease.

(3) A lease granted under section 41(1)(a) for a period exceeding 21 years must not be for a period exceeding 50 years.

(4) A lease granted under section 41(1)(a) for a period exceeding 21 years—

(a) may contain provision for the period of the lease to be extended one or more times, but the aggregate of the initial period and any extensions must not exceed 50 years; and

(b) may contain provision for a lessee to remain in occupation of the land under the same terms and conditions as existed under the lease, at the discretion of the lessor, for a period of not more than 3 months from the expiry of the lease; and

S. 41A inserted by No. 92/2003 s. 5.

s. 41A


28

(c) is subject to any covenants, exceptions, reservations and conditions that are determined by the Board and approved in writing by the Minister.

41B Power to enter and use land

(1) If a lease of land is granted under section 41(1)(a) the lessee, its servants or agents may, in accordance with that lease, enter and use the land for the purposes of—

(a) carrying out the construction of the facilities or buildings referred to in section 41(1)(a) on the land; and

(b) carrying out the construction of structures ancillary but related to those facilities or buildings on the land; and

(c) altering, repairing, maintaining and removing those facilities, buildings or structures; and

(d) developing or managing the facilities, buildings or structures.

(2) Subsection (1) does not apply unless written consent to the entry or use has been obtained from the Board.

42 Board to report accidents to Minister

If an accident occurs in the course of operation of the Emerald Tourist Railway which results in loss of life or serious injury to any person or serious damage to property or to the environment, the Board must—

(a) advise the Minister of the accident as soon as practicable; and

(b) appoint any persons that the Board thinks fit to hold an inquiry into the matter; and

S. 41B inserted by No. 92/2003 s. 5.

s. 41B

S. 42 substituted by No. 70/1994 s. 12.


29

(c) as soon as practicable after the inquiry, send to the Minister full information of the accident and the report of the persons who held the inquiry.

43 Actions against Board

All actions for losses caused by sparks from railway engines operated by the Board shall be referred to arbitration.

44 Execution against Board

No writ of execution shall be issued against the Board until the expiration of fourteen days next after the final judgment has been completely signed.

45 Railway etc. not to be sold under execution

No part of the railway or real property vested in the Board shall be liable to be sold under any writ of execution or other process of any court.

46 Board to make returns to Minister of accidents

The Board shall in such form and manner as the Minister requires for his information with a view to the public safety make periodical and other returns of accidents occurring in the course of the public traffic upon the Emerald Tourist Railway whether attended with personal injury or not.

47 Board may adopt by-laws made under Transport Act 1983

(1) The Board may adopt with such alterations of form only as may be necessary any of the Regulations from time to time made concerning railways under the provisions of the Transport (Compliance and Miscellaneous) Act 1983 or any corresponding previous enactment and at the time of the Board's adoption thereof still in force.

s. 43

S. 47(1) amended by Nos 70/1994 s. 16(f)(i)(ii), 6/2010 s. 203(1)(Sch. 6 item 17.2)(as amended by No. 45/2010 s. 22).


30

(2) At the expiration of one month after notice of such adoption is published in the Government Gazette such Regulations shall have the same effect as if made under this Act and shall continue to have such effect until cancelled by notice published in the Government Gazette.

(3) The Board shall have the same remedies for breach of the said Regulations as the Board has for breaches of by-laws made under this Act.

48 Provisions of Fences Act 1968 not to applys. 48

S. 48(1) amended by Nos 70/1994 s. 13(a), 30/2014 s. 13.

(1) The provisions of the Fences Act 1968 shall not apply to or with respect to any lands vested in the Board by this Act or used for the purposes of the Emerald Tourist Railway and the Board shall not be liable under the Fences Act 1968 to make any contribution towards fencing works and any subsidiary works in respect of a dividing fence between the land of any owner and any land vested in the Board for the purposes of this Act.

(2) Despite any Act or rule of law to the contrary, the Board is not liable for any damage which may be caused by reason of the Emerald Tourist Railway not being fenced in or fenced off.

48A Supreme Court—limitation of jurisdiction

It is the intention of this section to alter or vary section 85 of the Constitution Act 1975 to the extent necessary to prevent the Supreme Court from entertaining actions relating to damage caused by reason of the Emerald Tourist Railway not being fenced in or fenced off.

49 By-laws

(1) The Board may make by-laws for governing the affairs of the Board and in particular, without in any way limiting or derogating from the generality

S. 47(2) amended by No. 70/1994 s. 16(g).

S. 47(3) amended by No. 70/1994 s. 16(h).

S. 48(2) inserted by No. 70/1994 s. 13(b).

S. 48A inserted by No. 70/1994 s. 14.

S. 49(1) amended by No. 70/1994 s. 15(a)(b).


31

of the foregoing provisions of this section, for or with respect to—

(a) meetings of the Board and the management and conduct of business thereat;

(b) the control, supervision, and guidance of all officers of and the control of all property vested in or belonging to the Board and the time and mode of accounting by officers for all moneys coming into their hands;

(c) the conduct, maintenance, management, and control of the Emerald Tourist Railway (including the trains thereon) and the carrying out of any necessary works;

(d) the mode of making contracts for the purposes of this Act and supervising the execution thereof;

(e) the management and improvement of the lands vested in the Board under this Act;

(f) the making, levying, and collecting of charges and fares and for services performed by the Board;

(g) forms for the purposes of this Act;

(h) any matters authorized or required by this Act to be prescribed;

(i) the conduct of members of the public on trains and premises managed and controlled by the Board and the removal of persons contravening or failing to comply with such by-laws;

(j) imposing penalties of not more than 2 penalty units for any contravention of or

s. 49

S. 49(1)(j) amended by No. 70/1994 s. 16(i).


32

failure to comply with the by-laws and authorizing the prosecution of offenders; and

(k) generally carrying out the objects of this Act.

(1A) The Board must obtain the approval of the Minister before making any by-law under subsection (1)(i) or (j).

(2) Notice of the making of any by-laws under this section and of the place where a copy of the by-laws may be inspected shall be published as soon as practicable and exhibited in all offices, stations, and other buildings of the Board to which the public have access.

(3) Copies of all by-laws made by the Board under this section shall be sent to the Minister within one month after they are made.

(4) The Minister shall cause a copy of all such by-laws to be laid before each House of Parliament within fourteen days after receiving copies thereof if Parliament is then sitting and, if Parliament is not then sitting, within fourteen days after the next meeting of Parliament and any such by-laws shall be disallowed if each House of the Parliament passes a resolution accordingly.

(5) Notice of a resolution to disallow a by-law must be given in the House in question on or before the twelfth day upon which that House sits after the by-law is laid before that House and the resolution must be passed on or before the twelfth day upon which that House sits after notice of the resolution has been given in that House but the power of either House to pass a resolution disallowing the by-law shall not be affected by the prorogation or dissolution of the Parliament or of either House of the Parliament and for the purpose of this section the calculation of days upon which a House has

S. 49(1A) inserted by No. 70/1994 s. 15(b).

s. 49


33

sat shall be made as if there had been no such prorogation or dissolution.

(6) Notice of a resolution to disallow a by-law may be expressed to apply to the whole or to any part of the by-law and a resolution to disallow the whole or any part of a by-law shall have effect according to its tenor.

(7) Where a by-law is disallowed by Parliament the disallowance shall have the like effect to the repeal of an enactment.

__________________

s. 49


34

SCHEDULES

SCHEDULE ONE––––––––––––––––––––––––––––––––––––––––––––––––––––––––

Folio of the Register 2841 Folio 169Folio of the Register 2790 Folio 896Folio of the Register 2779 Folio 684Folio of the Register 5918 Folio 471Folio of the Register 5957 Folio 391Folio of the Register 2847 Folio 357Folio of the Register 2776 Folio 089Folio of the Register 2788 Folio 510Folio of the Register 2816 Folio 118Folio of the Register 2827 Folio 212Folio of the Register 2766 Folio 123Folio of the Register 3168 Folio 409Folio of the Register 2765 Folio 994Folio of the Register 2789 Folio 626Folio of the Register 3168 Folio 410Folio of the Register 2827 Folio 213Folio of the Register 3168 Folio 411Folio of the Register 2799 Folio 749Folio of the Register 3960 Folio 958Folio of the Register 2798 Folio 496Folio of the Register 3051 Folio 106Folio of the Register 2794 Folio 799Folio of the Register 2765 Folio 803Folio of the Register 2765 Folio 896Folio of the Register 2783 Folio 475Folio of the Register 2758 Folio 451Folio of the Register 2909 Folio 747Folio of the Register 2824 Folio 630Folio of the Register 2804 Folio 604Folio of the Register 5583 Folio 549Folio of the Register 2788 Folio 491Folio of the Register 2794 Folio 699Folio of the Register 2763 Folio 405Lease No. 10030 in the Register

––––––––––––––––––––––––––––––––––––––––––––––––––––––––

—————————

Sch. 1 amended by No. 18/1989 s. 13(Sch. 2 item 26(c)(d)).

Sch. 1


35

SCHEDULE TWO––––––––––––––––––––––––––––––––––––––––––––––––––––––––

Folio of the Register 2906 Folio 065Folio of the Register 2783 Folio 571Folio of the Register 2796 Folio 170Folio of the Register 2954 Folio 648Folio of the Register 3101 Folio 046Folio of the Register 3014 Folio 749Folio of the Register 2783 Folio 505Folio of the Register 3156 Folio 136Folio of the Register 3153 Folio 565Folio of the Register 2920 Folio 979Folio of the Register 2819 Folio 688Folio of the Register 2804 Folio 664Folio of the Register 2789 Folio 773Folio of the Register 2808 Folio 415

––––––––––––––––––––––––––––––––––––––––––––––––––––––––

═══════════════

Sch. 2 amended by No. 18/1989 s. 13(Sch. 2 item 26(c)).

Sch. 2


36

ENDNOTES

1. General InformationThe Emerald Tourist Railway Act 1977 was assented to on 17 May 1977 and came into operation on 1 October 1977: Government Gazette 31 August 1977 page 2774.

Endnotes


37

2. Table of AmendmentsThis Version incorporates amendments made to the Emerald Tourist Railway Act 1977 by Acts and subordinate instruments.

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

Land (Miscellaneous Matters) Act 1986, No. 36/1986Assent Date: 20.5.86Commencement Date: 20.5.86Current State: All of Act in operation

Conservation, Forests and Lands Act 1987, No. 41/1987Assent Date: 19.5.87Commencement Date: S. 103(Sch. 4 item 16.1) on 1.7.87: Government

Gazette 24.6.87 p. 1694Current State: This information relates only to the provision/s

amending the Emerald Tourist Railway Act 1977

Transfer of Land (Computer Register) Act 1989, No. 18/1989Assent Date: 16.5.89Commencement Date: 3.2.92: Government Gazette 18.12.91 p. 3488Current State: All of Act in operation

Financial Management (Consequential Amendments) Act 1994, No. 31/1994Assent Date: 31.5.94Commencement Date: S. 3(Sch. 1 item 23) on 7.7.94: Government Gazette

7.7.94 p. 1878—see Interpretation of Legislation Act 1984; s. 4(Sch. 2 item 27) on 1.1.95: Government Gazette 28.7.94 p. 2055

Current State: This information relates only to the provision/s amending the Emerald Tourist Railway Act 1977

Emerald Tourist Railway (Amendment) Act 1994, No. 70/1994Assent Date: 25.10.94Commencement Date: 25.10.94Current State: All of Act in operation

Public Sector Reform (Miscellaneous Amendments) Act 1998, No. 46/1998Assent Date: 26.5.98Commencement Date: S. 7(Sch. 1) on 1.7.98: s. 2(2)Current State: This information relates only to the provision/s


Statute Law Revision Act 2000, No. 74/2000Assent Date: 21.11.00Commencement Date: S. 3(Sch. 1 item 39) on 22.11.00: s. 2(1)Current State: This information relates only to the provision/s


Endnotes


38

Emerald Tourist Railway (Amendment) Act 2003, No. 92/2003Assent Date: 25.11.03Commencement Date: 26.11.03: s. 2Current State: All of Act in operation

Legal Profession (Consequential Amendments) Act 2005, No. 18/2005Assent Date: 24.5.05Commencement Date: S. 18(Sch. 1 item 36) on 12.12.05: Government

Gazette 1.12.05 p. 2781Current State: This information relates only to the provision/s


Statute Law Amendment (Evidence Consequential Provisions) Act 2009, No. 69/2009

Assent Date: 24.11.09Commencement Date: S. 54(Sch. Pt 1 item 20) on 1.1.10: s. 2(2)Current State: This information relates only to the provision/s


Transport Integration Act 2010, No. 6/2010 (as amended by No. 45/2010)Assent Date: 2.3.10Commencement Date: S. 203(1)(Sch. 6 item 17) on 1.7.10: Special Gazette

(No. 256) 30.6.10 p. 1Current State: This information relates only to the provision/s


Fences Amendment Act 2014, No. 30/2014Assent Date: 15.4.14Commencement Date: S. 13 on 22.9.14: Special Gazette (No. 317) 16.9.14

p. 1Current State: This information relates only to the provision/s


–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

Endnotes


39

3. Explanatory Details

Endnotes


40

1 S. 8(1): Section 5(2) and Part 2 of Schedule 2 of the Land (Miscellaneous Matters) Act 1986, No. 36/1986 read as follows:

5Revocation of permanent reservations

(2) Section 8(1) of and Schedule Two to the Emerald Tourist Railway Act 1977 insofar as they relate to the land delineated and shown hatched on the plan in Part II of Schedule Two and any provision of any other Act insofar as it reserves or affects that land are repealed.

SCHEDULE 2PART II

Land, being part of the land referred to in Item One of Part I of this Schedule, in respect of which the Reservation referred to in that Item is repealed by this Act.

704 square metres, Parish of Gembrook.

emerald tourist railway act 1977 - legislation.vic.gov.aufile/77-9020a025.docx · web...

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