Tourist and Heritage Railways Act


The Tourist and Heritage Railways Act 2010 is a law enacted by the Parliament of the State of Victoria, Australia and is the prime statute regulating the activities of tourist and heritage rail operators in the State. The Act covers the bulk of Victoria's operational tourist and heritage railways including many heavy and light rail operations and tramways, predominantly in regional areas of Victoria.
The Tourist and Heritage Railways Act and the supporting regulations were developed by the Transport Legislation Review conducted by the Department of Transport. The Act was the first dedicated statute in Victoria for the tourist and heritage railways sector and is also the only dedicated principal statute for the THR sector in Australia. The Act was passed in late 2010 and came into force on 1 October 2011. It replaced provisions regulating the THR sector in the Transport Act 1983.
The Tourist and Heritage Railways Act is part of the transport policy and legislation framework in Victoria headed by the Transport Integration Act.

Outline

The broad purpose of the Act is ". . . to promote the long term viability of the tourist and heritage railway sector and promote an improvement in the operations of that sector as part of an integrated and sustainable transport system . . ."
The Act establishes a regulatory scheme with the following key elements:
The Tourist and Heritage Railways Act and the background to its development and passage was summarised by Ian Shepherd, Kate Williams and Jenny Gabriele in an article in the Railway Gazette International. The authors noted that "With around 60 tourist and heritage railways or tramways, Australia has more lines per capita that Europe or the USA. A third of them are in Victoria, where Australia's railway preservation movement started with the formation of the Puffing Billy Preservation Society in 1955." The tourist and heritage railways sector in Victoria today consists of organisations which operate, restore and preserve tourist and heritage railways and tramways. It is estimated that around 3,500 Victorians are actively involved in the industry. As of 1 January 2011 there were around 22 organisations across the State although only 17 are expected to be subject to the new statute. The THR organisations operate in various locations across Victoria, primarily in regional areas. The railways attract tourism and provide economic benefits to the regional areas where they operate with an estimated half a million people visiting the railways each year.

Parts

The Act is divided into seven parts:
  1. Preliminary
  2. Administration
  3. Tourist and Heritage Rail Asset Register
  4. Lease Agreements
  5. Voluntary Accreditation Scheme
  6. General
  7. Consequential Amendments and Savings

    Coverage

The Act regulates the majority of the operational tourist and heritage railways in Victoria. To be covered by the Act, a tourist and heritage railway operator must be a not for profit organisation that provides historical and heritage-related rail services mostly for tourists and mostly in Victoria. The following railways are covered by the Act:
The Act does not apply to Victoria's most popular tourist and heritage railway, Puffing Billy. Instead, the Puffing Billy Railway is regulated by its own statute, the . The does also not extend to static rail exhibits such as the .

Regulators

The prime regulator of the tourist and heritage railway sector in Victoria is the Director, Transport Safety or Transport Safety Victoria. The prime regulators of the tourist and heritage railway sector in Victoria are VicTrack and the Public Transport Development Authority.
VicTrack holds all State owned rail land, infrastructure and assets. VicTrack leases assets to tourist and heritage railway operators when they are not required for mainstream transport operations and therefore non operational. Public Transport Victoria provides general coordination and support to the THR sector and is a regulator under the Act.

VicTrack

is established under the Transport Integration Act and is required under that Act to ". . . provide or enable access to the non-operational transport-related land, infrastructure or assets where this supports the transport system . . . ". VicTrack is charged with considering providing this access for a variety of reasons including for ". . . tourist and heritage rail operations . . ." and ". . . through the granting of leases for business or community purposes . . . ". As part of this function, VicTrack is required to collaborate with the Secretary of the Department of Transport, or more particularly Public Transport Victoria, in protecting land, infrastructure and assets which are registered on the Victorian Heritage Register. VicTrack must do this ". . . whilst ensuring that reasonable access is provided for public enjoyment and historical appreciation and that support is provided to tourist and heritage operators . . . ".

The Registrar

Part 2 of the Act provides that the Director must appoint a person to be the Tourist and Heritage Railway Registrar. The Registrar is the key administrator for the purposes of the Act. The function of the Registrar is to compile and maintain an asset register for the sector, a register of lease agreements granted by VicTrack and a group register for THR railway groups.

Advisory committee

The Act enables Public Transport Victoria to establish an advisory committee to provide advice to PTV on—
The number of members and the composition of the advisory committee is set out in regulations made under the Act.

Rail asset register

Part 3 of the provides for establishment and operation of a tourist and heritage rail asset register. The broad purpose of the Part is to gather and maintain accurate information about THR assets. The register is required to be established by Public Transport Victoria and divided into three divisions listing assets owned by the State, assets owned by custodians and assets owned by persons other than the State or the custodian which the owner has elected to include on the register. The remainder of the provisions regulate the information to be included in the register, the form of the register and access, currency and accuracy of information, inspection of assets and the relationship of the register to the separate Victorian Heritage Register established under the .

Lease agreements

Part 4 of the sets out a scheme to facilitate the leasing of land and assets by VicTrack for tourist and heritage railways purposes. The provides power for VicTrack to grant leases of land which must include a range of matters including a description of the land and fixtures, the term of the lease, the amount of rent, maintenance and insurance arrangements, subleasing rights or restrictions, reclamation rights and other matters. Similar provision is made for the leasing of assets and these also require the lease to include certain minimum terms. The Part also imposes a duty on VicTrack to provide copies of leases to the Registrar who must keep a register of the agreements and details about duration and renewal.

Voluntary accreditation scheme

Part 5 of the provides for a voluntary accreditation scheme for tourist and heritage railway operators. Public Transport Victoria is required to establish the scheme and a register known as the Tourist and Heritage Railway Group Register. The purpose of the scheme is to enable operators which meet certain criteria to register in order to demonstrate their commitment to best business practice and continuous improvement and to access programs and initiatives made available under the scheme.
The other provisions in the Part regulate the matters to be recorded in the register, applications for registration, registration itself, changes of details, removal from the register and rights of review to the Victorian Civil and Administrative Tribunal concerning decisions made by the Registrar.

Other notable provisions

The contains two general provisions in Part 6. The first provision confirms that THR operators are not required to fence railways or contribute to fencing costs and that operators are not liable for any damage which may be caused by the railway not being fenced. The remaining and final provision in the confers power on the Governor in Council to make regulations to support the including in relation to the asset register, criteria for registration on the group register, fees for registration, safety in connection with TH railways, powers of THR operators, conduct requirements, trespassing and interference with equipment, fixtures and other things.

Development

The development of the proposal for the was managed by the Department of Transport in Victoria as part of its Transport Legislation Review project.
The Department commenced the process by holding an inter Government agency workshop in June 2008 followed by workshops with the THR sector in August of that year. This was followed by a period of research and policy development leading into further workshops and target consultation with the industry in April 2010 where new regulatory concepts were outlined in detail. Ultimately, the proposal for a new regulatory scheme for the tourist and heritage railways sector was presented to the Victorian Parliament as proposed legislation in late July 2010.

Parliamentary approval

Introduction

The was introduced into the upper house of the Victorian Parliament, the Legislative Council, as the Tourist and Heritage Railways Bill 2010. The responsible Minister for the proposal was the Minister for Public Transport, the Hon Martin Pakula MLC. The Hon Justin Madden MLC, the Minister for Planning, moved the second reading of the Bill on 27 July 2010 on behalf of the Public Transport Minister.

Second reading speech

The Minister set the context for the Bill in his second reading speech in support of the Bill as follows:

Debate and passage

The Tourist and Heritage Railways Bill was strongly supported by the Opposition parties and other members during its passage through the Victorian Parliament.

Upper house

The lead Liberal Party speaker in the first house of passage the Legislative Council, David Koch MLC, observed that—
The Bill was passed by the Legislative Council on 12 August 2010 after a short debate and introduced into the lower house, the Legislative Assembly, on the same day.

Lower house

Support from the Opposition parties for the Bill was equally strong in the Legislative Assembly. The lead speaker in the Legislative Assembly, the then Shadow Transport Minister and now the Minister for Public Transport in the Victorian Government, Terry Mulder MP, commented that—

Passage, assent and commencement

After several procedural delays, the Tourist and Heritage Railways Bill was ultimately passed by the Victorian Parliament on 7 October 2010. The Bill received the Royal Assent on 19 October 2010 to become the .

Regulations

The was proclaimed to commence on 1 October 2011. The Tourist and Heritage Railways Regulations 2011 were made to support the operation of the after being developed by the Department of Transport and commenced on the same day. They were released for public comment and then approved by the Minister and presented to the Governor in Council for making and commencement.

Safety regulation

Legislation

The safety compliance of most rail transport in Victoria is regulated under the Rail Safety Act 2006. The main railways regulated include the Melbourne heavy rail system, the Melbourne tram and light rail network, Victoria's regional standard and broad gauge rail networks and regional tourist and heritage railways. Operators are subject to safety duties, a requirement to be accredited and a range of compliance sanctions. Railways excluded from coverage under the Act include railways in mines, amusement and theme park railways and slipways.

Regulator

The safety regulator for the application and enforcement of the Rail Safety Act 2006 and therefore the oversight of the safety performance of the tourist and heritage rail sector in Victoria is the Director, Transport Safety. The Director operates under the trading name, Transport Safety Victoria. The office of the Director is established under the Transport Integration Act 2010 and is independent of the Department of Transport and responsible Ministers except in limited circumstances.