1958. Railways. No. 6355 429

No. 6355.

R A I L W A Y S A C T 1958.

An Act to consolidate the Law relating to Railways.

[30th September, 1958.]

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 lo say) :—

1. This Act may be cited as the Railways Act 1958, and shorttme, (subject to any express provision in this Act)(a> shall come into mmTiSST operation on a day to be fixed by proclamation of the Governor in Pivif7

0s ,.

Council published in the Government Gazette, and is divided into N°! 536i S- ' Parts, Divisions, and Subdivisions as follows:— 8'3 (2) (a)" Part I.—Preliminary ss. 2-3. Part II.—General Provisions as to Railways ss. 4-37.

Division 1.—The Board of Land and Works ss. 38-49.

Subdivision 1. — Constitu­tion Appointment and Tenure of Office ss. 50-66.

Subdivision 2.—Conduct of Business ss. 67-70.

Subdivision 3.—Property of Commissioners ss. 71-77.

Subdivision 4.—Powers of Commissioners ss. 78-100.

Subdivision 5.—G e n e r a 1 Duties of Commissioners ss. 101-107.

Part III. —State Railways, ss. 38-207.

Division 2.— T h e Victorian Railways Com­missioners ss. 50-107.

(a) See section 82 (3).

1958. Railways. No. 6355

Division 3.—Expenditure 108-110.

on Railways ss.

Part IH. —State Railways.

Division 4. Funds ss. 120.

I l l -

Subdivision 1.—Railways Stores Suspense Account ss. 111-112.

Subdivision 2.—Reduction of Railway Loan Liability Account s. 113-114.

Subdivision 3. — Railway Renewals and Replace­ments Fund s. 115.

Subdivision 4. — State Loans Repayment Fund s. 116.

Subdivision 5. — Railway Reserve Fund s. 117.

Subdivision 6. — Railway A c c i d e n t and Fire Insurance Fund ss. 118-119.

Subdivision 7. — Railway Sinking Fund s. 120.

Division 5.—Motor Carriages and Cars ss. 121-125.

Division 6.—Sale of Railway Passenger Tickets ss. 126-134

Division 7.—Investigation of Accidents ss. 135-136.

Division 8.—By-laws ss. 137-143.

Subdivision 1.—Preliminary s. 144.

Subdivision 2.—Examiners s. 145.

Subdivision 3.—Appoint­ments and Promotions ss. 146-156.

Subdivision 4.—Removal, Forfeiture, Suspension, and Dismissal ss. 157-162.

Subdivision 5.—Charges and Appeals ss. 163-175.

Subdivision 6.—Officers in Position of Trust ss. 176-178.

Subdivision 7.—S w o r n Weighers s. 179.

Division 9.— Appointment, P r o m o t i o n , Discipline in and Regulation of the Railway Service ss. 144-192.

1958. Railways. No. 6355 431

Part III. —State Railways.

Division 9.— Appointment, P r o m o t i o n , Discipline in and Regulation of the Railway Service.

Division 10.—Application of Board Determinations, &c. s.

Division 11.—Penalties and 194-202.

Division 12.—Miscellaneous ss.

Subdivision 8.—Leave of Absence, Retirement, C o m p e n s a t i o n and Retiring Allowances ss. 180-189.

Subdivision 9.—Miscel­laneous ss. 190-192.

certain Wages 193.

Procedure ss.

203-207. Part IV.—Private Railways ss. 208-228.

Schedule to the hereby repealed

PART I.—PRELIMINARY.

2. (1) The Acts mentioned in the First extent thereby expressed to be repealed are accordingly.

(2) Except as in this Act expressly or by necessary implication provided—

(a) all persons things and circumstances appointed or created by or under the repealed Acts or existing or continuing under any of such Acts immediately before the commencement of this Act shall under and subject to this Act continue to have the same status operation and effect as they respectively would have had if such Acts had not been so repealed;

(b) in particular and without affecting the generality of the foregoing paragraph such repeal shall not disturb the continuity of status operation or effect of any regulation rule by-law order decision appointment application declaration certificate security agreement lease licence easement pension compensation contract notice instrument indemnity immunity permission authority sanction charge proceeding appeal liability or right made effected issued granted given presented passed fixed accrued incurred or acquired or existing or continuing by or under any of such Acts before the commencement of this Act; nor shall such repeal limit or affect the operation or effect of section four of the Railways (Commissioners) Act 1956.

(3) Notwithstanding the repeal of the Railways (Long Service) Act 1942 and the Acts and enactments amending that Act any officer or employe in the railway service who before the commencement of the Railways (Furlough) Act 1951 had attained the age of sixty five years or ceased to be an officer or

Repeal. First Schedule.

Saving provision relating to long service leave. 17th July, • 1951.

432 1958. Railways. No. 6355

employe in the railway service shall except to the extent to which he has received benefits under the first mentioned Acts and enactments before the commencement of this Act be entitled to benefits thereunder as if they remained in force.

Interpretation. No. 3759 s. 3.

" The Board."

" Charge." " Rate." " Toll."

" The Com­missioners."

" Company."

' Goods."

' Master."

1 Minister."

' Owner."

" Pier.'

" Pier master.-'

" Railway."

" Railway service."

' Vessel."

3. In this Act unless inconsistent with the context or subject-matter—

" Board " means the Board of Land and Works. "Charge" or "Rate" or "Toll" in each case includes

any charge duty rate toll or other payment or outgoing in the nature thereof payable under this Act or under any other Act relating to railways.

" Commissioners" means the Victorian Railways Commissioners.

" Company " means any railway company now existing or which may hereafter exist.

" Goods " includes articles goods or things or packages of goods.

" Master " when used in relation to any vessel means the person having command or charge of the vessel for the time being.

" Minister " means a responsible Minister of the Crown administering this Act.

" Owner " when used in Parts II. and IV. of this Act in relation to land means any person who under the provisions of the said Parts or of any special Act therein referred to would be enabled to sell and convey lands ; and when used in the said Parts in relation to goods includes any consignor consignee shipper or agent for sale or custody of such goods as well as the owner thereof.

" Pier " means any railway pier railway wharf or railway jetty and the works connected therewith.

" Pier master " means the person in charge of any pier and with respect to all acts authorized or required to be done by such pier master includes the assistants of every such pier master.

" Railway " includes " the railways " within the meaning of Part II. as well as " railway " and " railways " within the meaning of Part III. of this Act.

" Railway service" means employment in the Railway Construction Branch of the Board or under the Commissioners.

" Vessel" includes ship boat barge lighter and craft of every kind and whether steam or other vessel.

1958. Railways. No. 6355 433

PART II.—GENERAL PROVISIONS AS TO RAILWAYS.

4. For the purposes of this Act the Commissioners or ff™™s- . company shall be deemed to be a common carrier, and (except company11

as by this Act otherwise provided) shall be subject to the common

obligations and entitled to the privileges of such carriers. "3759 - 4

5. The Commissioners or company shall have power to pay compensation in esse of

to the owners lessees and occupiers of any lands through which damage from any railway vested in the Commissioners or company may pass a Sway. sum of money by way of compensation for all risk of injury that NO. 3759 s. 5. may arise to such owners lessees or occupiers from fire consequent upon the passage of such railway through their lands ; and the payment of such compensation shall exempt the Commissioners or company from all claims for damage done by fire to such owners lessees or occupiers or their heirs executors administrators or assigns.

6. (1) When any goods delivered to be carried along or \-^Hltlot

upon any railway have been carried safely to the place to which transiter

the Commissioners or company have undertaken to carry them ^ " ^ 9 s e and have been duly discharged from the truck in which they have been carried, the Commissioners or company shall until the removal of such goods by the consignees thereof be responsible only as bailees for custody in respect of any damage or loss that may arise or accrue with reference to such goods.

(2) If such goods are not removed from the premises of the charge for Commissioners within twenty-four hours or from the premises of housing. a company within forty-eight hours from the time of such discharge, the Commissioners or company may charge a reasonable sum for the warehousing thereof

(3) Such sum may be recovered from the person liable to pay or who has paid for the carriage of such goods in the same manner as rates or charges due in respect of the carriage of any animals or goods may be recovered under this Part.

7. (1) The Commissioners or company may make such special . . . . . . . , i_i r • • conditions.

special conditions as are just and reasonable for receiving No.3759S. 7; forwarding or delivering any horses cattle sheep pigs or other No-5918s-8-animals or any goods. In any particular case the question whether such conditions are just and reasonable shall be decided by the court or judge before which or whom any question relating thereto arises.

(2) Beyond the following sums (that is to say)— scaieof (a) for horses or neat cattle Fifty pounds per head ; £$££',? (b) for pigs Twenty pounds per head ; (c) for sheep or otiier small animals Four pounds per

head— no damages shall be recovered for the loss of or for injury done to any horses cattle sheep pigs or other animals, unless at the

animals.

434 1958. Railways. No. 6355

Special rates nfay be charged by by-law.

Proof of value and of damage.

time of their delivery the person sending or delivering them declares 'them to be respectively of a value above the sums limited as aforesaid

(3) Where such declaration is made the Commissioners or company may by way of compensation for the increased risk and excess of oare thereby occasioned demand a reasonable percentage upon the value so declared to be above the sums limited as aforesaid and such percentage shall be in addition to the ordinary rate or charge and shall be fixed by by-laws.

(4) Proof of the value of such horses cattle sheep pigs animals or goods and of the amount of the injury done thereto shall in every case lie upon the person claiming damages for such loss or injury.

Booking at road stations conditional. No. 3759 s. 8.

8. Where passengers are booked at any intermediate station foi any train the condition that there is room in such train shall in all cases be implied ; and when there is not sufficient room for all such passengers, those booked for the longest distance shall have the preference, and those booked for the same distance shall have priority according to the order in which they are booked.

Carriage of goods of excessive weight or bulk not compulsory. Carriage of boiler or piece of machinery.

No. 3759 s. 9.

9. No person shall be entitled to require any single article or package of goods to be conveyed upon or along any railway subject to this Act the weight of which exclusive of the truck or carriage exceeds four tons or including the truck or carriage exceeds eight tons, or which from its excessive bulk would be inconvenient to transport; but no objection on account of its weight or bulk shall be taken to the transport of any boiler or single piece of machinery, if the same can be transported upon any single truck or carriage or upon two or more trucks or carriages joined together and if it is offered for transport at least twenty-four hours before the time fixed for starting.

Dangerous goods may be refused. No. 3759 s. 10.

10. (1) No person shall be entitled to carry or to require to be carried upon or along any railway any aqua fortis oil of vitriol gunpowder lucifer matches or other goods which in the judgment of the Commissioners or company their officers or servants may be of a dangerous nature.

(2) The Commissioners or company their officers or servants may refuse to take any package which they suspect to contain goods of a dangerous nature, or may require such package to be opened so that the nature of the contents may be ascertained.

(3) Nothing herein contained shall prevent the Commissioners or company their officers or servants carrying such goods if and when they think fit.

1958. Railways. No. 6355 435

11. (1) The Commissioners may from time to time enter The into any contract with any company being the owner or lessee or sionerT" in possession of any other railway for— '"SSSc?

(a) the passage over or along any railway vested in the comPraniesay

Commissioners of any engines carriages trucks or NO. 3759 s. n. other rolling-stock of such company;

(b) the passage over or along any railway vested in the Commissioners of any engines carriages trucks or other rolling-stock which pass over any other railway ;

(c) the passage over or along any other railway of any engines carriages trucks or other rolling-stock of the Commissioners ; or

(d) the passage over or along any other railway of any engines carriages trucks or other rolling-stock which pass over any railway vested in the Commissioners—

upon payment of such tolls and under such conditions and restrictions as may be mutually agreed upon.

(2) For the purposes of this section the Commissioners and the company may enter into any contract for the division or apportionment of the tolls to be taken upon their respective railways.

(3) No such contract shall in any manner alter affect increase or diminish any of the tolls which the parties thereto shall for the time being be respectively authorized and entitled to demand or receive from any person or any other company ; but all other persons and companies shall notwithstanding any such contract be entitled to the use and benefit of any of the said railways upon the same terms and conditions and on payment of the same tolls as would have applied in case no such contract had been entered into.

12. If on demand any person fails to pay the rates or charges in default of due in respect of any animals or goods the Commissioners or ?hMges&°£

company may— £S£3S& (a) detain and sell all or any of such animals or goods; NO"1 3759 s 12. (b) if the same have been removed from the railway

premises, detain and sell any other animals or goods within such premises belonging to the person liable to pay such rates or charges—

and in either case, out of the moneys arising from the sale, retain the rates or charges payable as aforesaid and all charges and expenses of such detention and sale, rendering the surplus (if any) of the moneys arising by such sale and such of the animals or goods as remain unsold to the person entitled thereto ; or

(c) recover any such rates or charges in any court of competent jurisdiction.

436 1958. Railways. No. 6355

Transient offender may be arrested. No. 3759 s. 13.

13. Any officer employ^ or agent of the Commissioners or company and all persons called by him to his assistance may seize and detain any person who has committed any offence against the provisions of this Act or of the by-laws made under the authority of this Act or any corresponding previous enactment and whose name and residence are unkown to such officer employe or agent and may give him in charge to a member of the police force, who shall without any warrant or other authority than this Act convey him with all convenient despatch before some justice to be dealt with according to law.

Collector may enter on vessels to ascertain rates payable. No. 3759 s. 14.

14. The pier master or other authorized officer or employe1

may either alone or with any other person enter into any vessel berthed or lying at or moored to any pier in order to ascertain the tolls payable in respect of such vessel or of any goods therein.

Masterof vessel to produce certificate ol registry. No. 3759 s. 15.

15. The master of any registered vessel berthed or moored at any pier shall on demand produce the certificate of the registry of such vessel to the pier master or other authorized officer or employe.

Pier master's directions maybe executed at ccst of vessels-No. 3759 s. 16.

16. If the master of any vessel at any pier does not moor unmoor place or remove such vessel according to the directions of the pier master, or if there is no person on board of any such vessel to attend to such directions, the pier master may cause such vessel to be moored unmoored placed or removed as he thinks fit, and for that purpose may cast off unloose or cut the rope or unshackle or break the chain by which such vessel is moored or fastened ; and the mooring unmooring placing or removing of such vessel shall be deemed to be work and labour done by the Commissioners or company for and at the request of the owner or master of such vessel for which recovery may be had accordingly.

Vessels at piers or jetties to be properly secured. No. 3759 s. 17.

Goods not to remain on pier longer than allowed by by-laws. Goods remaining too long may be removed at owner's expense. No. 3759 s. 18

17. Every vessel at any pier shall have substantial hawsers tow lines and fasts fixed to the mooring posts when required by the pier master.

18. No goods shall be allowed to remain upon any pier or in the approach thereto for a longer time than is allowed by the by-laws; and if any goods so remain without the consent of the Commissioners or company their officers or employes the pier master or other authorized offioer or employe may remove the same to any convenient place and keep the same until payment of the expenses of such removal and of the keeping of the goods ; and if such expenses are not paid within seven days after such removal, the Commissioners or company may sell such goods and out of the proceeds of such sale pay such expenses rendering the surplus (if any) to the owner on demand.

1958. Railways. No. 6355 437

19. Every person intrusted with the care of any gates on any Penalty for level crossing over any public road who fails to close such gates keeper to so soon as in the course of his duty he ought to close them shall fere?8ate3at

for every such default be liable to a penalty of Twenty pounds. ^03^S*

20. Every person who— (a) crosses any railway at any level crossing for the

accommodation of any private road or for the owners of any land adjoining the railway and fails to close and fasten the gates provided thereat immediately after passing through the same ; or

(b) in case he crosses with any carriage cart horse cattle sheep or other animal crosses on the level at any place save where gates have been constructed or fails to use in crossing all convenient despatch—

shall be liable to a penalty of Ten pounds.

Level crossings. No. 3759 s. 20.

21. Every person who smokes tobacco or any other substance in or upon any railway carriage or in any railway station except in such carriage or place (if any) as is set apart for that purpose shall for every such offence be liable to a penalty of not more than Two pounds.

Penalty for improperly smoking in railway carriage. No. 3759 s. 21.

22. Every master of any registered vessel berthed or moored at any pier who refuses or neglects to produce on demand the certificate of me registry of such vessel to the pier master or other authorized officer or employe shall be liable to a penalty or not more than Twenty pounds.

Penalty on master of vessel for refusal to produce certificate of registry. No. 3759 s. 22.

23. If any vessel is at any pier without substantial hawsers towlines or fasts fixed to the mooring posts as hereinbefore directed, after notice from the pier master to the master of such vessel to furnish or fix the same, such master shall for every such offence be liable to a penalty of not more than Ten pounds.

Penalty for vessel insecurely moored. No. 3759 s. 23.

24. Every person other than the pier master acting under the Penalty tor wilfully power hereinbefore given to him in that behalf, who wilfully cuts cutting

breaks or destroys the mooring or fastening of any vessel lying ^°°^* s u at any pier, shall for every such offence be liable to a penalty of not more than Twenty pounds.

25. Every master of a vessel or any owner of goods who Penalty for evades or attempts to evade the payment of the tolls payable to tous!ono

the Commissioners or company in respect of such vessel or goods No-3759 s-25-or any part thereof shall pay to the Commissioners or company three times the amount of the tolls of which he has so evaded or attempted to evade the payment; and the same may be recovered from such master or owner either summarily before any court of petty sessions or by action in any court of competent jurisdiction.

438 1958. Railways. No. 6355

Penalty for using com-bustibles in vessels in Improper place. No 3759 3.26.

26. Every person who boils or heats any pitch tar resin turpentine oil or other combustible matter in any vessel lying at any pier except in such place and in such manner as is specially appointed by the pier master for that purpose shall be liable to a penalty of not more than Ten pounds.

Pier master may search ship for unlawful fires or lights. No. 3759 s. 27.

Penalty for using lights in vessels at improper times. No. 3759 s. 28.

Penalty for obstructing

f>ier or etty master

in search for fires or lights. No. 3759 s 29.

Penalty for keeping gunpowder in vessel or on pier. No. 3759 s. 30.

Penalty for fraudulent evasion of fare&c. No. 3759 s. 31.

Penalty for intoxication. No. 3759 s. 32.

27. The pier master may enter into any vessel at any pier to search for any fire or light in or upon or suspected to be in or upon such vessel contrary to the provisions of this Act or of any by-law made in pursuance of this Act or of any corresponding previous enactment and may extinguish any such fire or light found in or upon such vessel.

28. Every person who has or causes to be had any fire or lighted candle or lamp in any vessel at any pier after six o'clock in the afternoon or before five o'clock in the forenoon except with the permission of the pier master or except at such times and in such manner as are permitted by the by-laws shall be liable to a penalty of not more than Ten pounds.

29. Every person who obstructs any pier master in the execution of his duty in searching for or extinguishing any fire or light pursuant to the provisions of section twenty-seven of this Act shall for every such offence be liable to a penalty of not more than Ten pounds.

30. Every person who without the permission of the pier master brings or suffers to remain any gunpowder on any pier or in or upon any vessel at any pier shall be liable to a penalty of not more than Ten pounds.

31. Every person, who with intent to evade payment of his fare takes a seat in any carriage without having either a free pass or a ticket entitling him to such seat, and every passenger who does not produce or deliver up a free pass or ticket when required, or who continues his journey in any carriage beyond the distance for which he holds a free pass or for which he has paid his fare, or who refuses or neglects to quit such carriage on arriving at the point to which he holds a free pass or has paid his fare, and every person who by fraudulent or collusive means or by any false representation obtains any free pass or ticket, or claims or takes the benefit of any exemption from the payment of any toll, fare, or charge shall be liable to a penalty of not more than Twenty pounds; and the onus of proof of having had a free pass or ticket entitling him to travel or of any exemption shall be upon the defendant.

32. Every person who in or upon any carriage station pier or other place is in a state of intoxication shall be liable to a penalty of not more than Twenty pounds.

1958. Railways. No. 6355 439

33. Every person who without lawful authority or excuse— SuSSduS , . . . . . , , in railway or (a) in or upon any carriage station pier or other place injury to

-ir Ti •* • *i. • -it ii railway wilfully commits a nuisance or otherwise wilfully property, interferes with the comfort of other persons; or N°- gsg s. 33;

(b) wilfully damages or injures any carriage or any s-9(1)(a)-cushion furniture or fittings thereof; or

(c) wilfully pulls down any gate mile-post board or notice in or upon any station or pier or in or upon the lands or premises of any railway or wilfully obliterates or defaces any of the letters or figures on any such board or notice; or

(d) wilfully pulls down any board or notice in or upon any engine carriage truck or other rolling-stock or wilfully obliterates or defaces any of the letters or figures on any such board or notice—

shall be liable to a penalty of not more than One hundred pounds.

34. Every person who knowingly sends by any railway any Penalty for goods of a dangerous nature and neglects at the time of sending dangerous them to mark distinctly their nature on the outside of the package S0ure.without

containing the same or otherwise to give notice in writing to the No. 3759 s. 34. officer or employe with whom the same are left shall be liable to a penalty of not more than Twenty pounds.

35. (1) Every person who makes a false or misleading Penalty tor statement as to the description value quantity number measurement description or weight of livestock or goods delivered or offered for carriage on any railway or with respect to any consignment note or invoice or bill of lading, or who refuses or neglects to give an account of any live stock or goods upon any railway or to produce his consignment note or invoice or bill of lading to any officer or employe of the Commissioners or servant of the company demanding the same, or who gives a false account or removes interferes with or conceals or attempts to remove interfere with or conceal any part of such live stock or goods with intent in any such case to avoid the payment or to conceal the non-payment of any rates payable in respect thereof, shall be liable to a penalty of not more than Twenty pounds.

(2) If any consignment note or invoice or bill of lading in connexion with livestock or goods is presented having the value measurement quantity number or weight of such live stock or goods understated or the description misstated to the prejudice of the Commissioners or company on such consignment note or invoice or bill of lading, the person responsible for the payment of the freight for such live stock or goods shall be liable to the payment of double the ordinary freight charges otherwise payable on such live stock or goods.

&c. of goods. No. 3759 s. 35.

440 1958. Railways. No. 6355

Penalty foi obstruction of officer and for trespass and for neglect to shut gates. No. 3759 s. 36; No. 5918 s . 9 ( l ) (6) .

36. Every person who wilfully obstructs or impedes any officer or employe of the Commissioners or company in the execution of his duty upon any railway or station or pier or any land or premises in connexion therewith, or who wilfully trespasses upon any such railway station pier land or premises, or who neglects or omits to shut and fasten any gate set up across or at either side of any railway so soon as he and the carriage cattle or other animals (if any) under his care have passed through the same, shall be liable for a first offence to a penalty of not more than Twenty pounds, and for a second or subsequent offence to a penalty of not more than Fifty pounds or to imprisonment for a term of not more than three months.

Punishment of 37„ (1) Every person employed by the Commissioners or officiaisfor company in conducting traffic upon any railway or in repairing NoK3769s.37. a n d maintaining the works of such railway who—

(a) is found drunk while so employed; or

(b) commits any offence against any of the by-laws; or

(c) wilfully maliciously or negligently does or omits to do any act whereby the life or limb of any person passing along or being upon such railway or the works thereof is or might be injured or endangered or whereby the passage of any engines carriage or trains is or might be obstructed or impeded—

and every person counselling aiding or assisting in such offence may by any officer employe or agent of the Commissioners or company be seized and detained and conveyed with all convenient despatch and without any warrant or authority other than this Act before some justice who in addition to any other powers conferred on him by law shall upon complaint to him made upon oath without information in writing have power to deal with such complaint in a summary manner.

(2) Upon conviction before such justice or before a court of petty sessions every person so offending as aforesaid and every person counselling aiding or assisting as aforesaid shall in the discretion of such justice or court—

(a) be imprisoned with or without hard labour for a term of not more than three months; or

(b) for every such offence be liable to a penalty of not more than Fifty pounds, and in default of payment thereof be imprisoned with or without hard labour for such term not exceeding six months as such justice or court shall appoint.

1958. Railways. No. 6355 441

PART I I I . — S T A T E RAILWAYS.

DIVISION 1 . THE BOARD OF LAND AND WORKS. Board to construct

38. (1) The Board of Land and Works (hereinafter called a S L i b y the Board) shall construct and complete all lines of railway Payment, which Parliament may hereafter authorize to be constructed. Na4288 3.'i8:

(2) Except the President and the Vice-Presidents of the Board no member of the Board shall exercise any right power duty or authority by this Part conferred or imposed on the Board or the members thereof.

39. (1) Whenever the Board and the Chief Engineer for Line when Railway Construction certify that any line of railway constructed be transferred by the Board is completed, the Governor in Council may make miSSE'era. an order transferring such line of railway to the Commissioners NO. 3759 s. 39. and such order shall be published in the Government Gazette.

(2 ) Immediately on such publication the line of railway Then to vest mentioned in such order, including all land acquired by the Board missioners for the purpose of such line and the inheritance thereof in fee maintained simple shall become vested in the Commissioners for the purposes by them

of this Act, and such line shall be supervised and maintained by them pursuant to this Act, and all further power duty authority or responsibility of the Board in regard to such line shall cease, the settlement of past contracts alone excepted.

40. Subject to the provisions of this Act any lands which for Lands taken

the purposes of the State railways have been or are taken or BoMd.in

acquired by the Board pursuant to any Act heretofore in force No. 37595.40. or pursuant to this Act and the inheritance in fee simple of such lands shall vest in the Board for the purposes of this Act, and no rates taxes or assessments shall be made calculated or charged upon any railway or any pier station yard building or work constructed or in course of construction by the Board.

4 1 . All moneys appropriated by Parliament for the construction Expenditure of new lines of railways shall be expended by and under the appropriated control of the Board unless hereafter otherwise directed by any b* ParU»ment

. J J No. 3759 s. 41. ACt .

42 . If any question arises or is about to arise as to whether Governor in

any power duty authority or liability has or has not been by the S m provisions of the Railways Act 1891 transferred from the S°rn&c.f

Commissioners to the Board such question may be finally and No. 37595.42. conclusively determined by the Governor in Council in such manner as he thinks fit.

442 1958. Railways. No. 6355

Chief Engineer for Railway Construction to prepare estimate of cost of railway. No. 3759 s. 43.

43. Before tenders for the construction of any portion of a line of railway are advertised for by the Board the Chief Engineer for Railway Construction shall prepare an estimate of the cost of such railway and shall certify in writing to the Board—

(a) the cost of all land roads bridges culverts and works and of engineering supervision engines and rolling-stock and a full equipment necessary for the opening and working of the railway for public traffic;

(b) the cost of all additional works stations and sidings which may be required within a period of three years after the railway has been opened for public traffic.

Sections 71, 78, and 79 cf this Act not to affect railways during construction. No. 3759 s. 44.

44. So far as regards the construction of any line of railway the construction of which is by this Act directed to be continued or carried on by or for the Board or which by any Act is authorized to be constructed by the Board, sections seventy-one, seventy-eight, and seventy-nine shall have no force or effect until an Order in Council is made transferring such line to the Commissioners as hereinbefore provided.

Incorporation of the Landi Compensation Act. No. 3759 s. 45.

45. The Lands Compensation Act 1958 is hereby incorporated with and shall be read and construed as part of this Division of this Part; and in the said Act the words " special Act" shall mean this Division and any Act authorizing the construction of any railways by the Board and shall include any Act amending this Division.

General powers for making railways. No. 3759 s. 46; No. 5918 s. 10 (a).

46. For the purposes and subject to the provisions and restrictions of this Act the Board may from time to time exercise any of the following powers:—

It may enter upon any lands which it may be authorized to take or use, and may bore dig cut trench embank and drain and may remove or lay take carry away and use any earth gravel stone timber or other things dug or obtained therein or otherwise in the execution of any powers heretofore or hereafter given and which may be proper for making maintaining altering repairing or using any railway lawfully authorized or which may obstruct the making maintaining altering repairing or using the same;

It may make in upon across under or over any such lands or any streets roads ways railroads tramways hills valleys rivers canals water-courses or waters such temporary or permanent inclined planes tunnels cuttings embankments aqueducts bridges roads ways passages conduits drains piers arches fences and other works and conveniences as it thinks proper;

1958. Railways. No. 6355 443

It may alter the course of any rivers not navigable canals streams brooks or water-courses during such time as is necessary for constructing or maintaining tunnels bridges or other works over under or affecting the same; and may temporarily or permanently alter the course of or raise or sink the level of any such rivers streams brooks or water-courses streets roads or ways in order the more conveniently to carry the same over or under or by the side of any railway;

It may make drains or conduits into through or under any lands adjoining the railways for the purpose of conveying water from or to the railways and upon the railways or any lands adjoining or near thereto;

It may make such piers stations sidings warehouses toll-houses and other houses yards engines machinery signal-posts and other apparatus works and conveniences whatsoever connected with the railways as it thinks proper;

It may fell or remove any timber or other trees being within two hundred feet from either side of the railways which by their liability to fall or otherwise might obstruct or injure the railways;

It may also fell or cut down and remove any trees or wood whether timber or other trees or scrub or underwood which by reason of the line making a curve or otherwise may obstruct or impede a view of any signal-post from any portion of the line which is within one mile in a right line from any such signal-post;

It may enter upon and use any existing private road being a road gravelled or formed with stones or other hard materials and not being an avenue or approach to any dwelling-house;

It may do all other things necessary or convenient for making and using the railways.

47. (1) The Board by its corporate name may enter into Board may contracts with any persons for the execution of any work S»nttacts&c. authorized by any Act to be done by the Board or which the S0-"S8-J7: _ , i . , J , i . . i i i N o . 6174 s. 2 .

Board may think proper to do or to direct to be done under or by virtue of the powers conferred upon it by any 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 under such stipulations conditions and restrictions as the Board may think proper.

444 1958. Railways. No. 6355

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

(3) Every such contract may if the Board thinks fit also specify the person to whose satisfaction the same is to be completed or furnished, and the mode of determining any dispute which may arise concerning or in consequence of such contract.

(4) No contract made by the Board the consideration of which exceeds Ten thousand pounds or the performance of which may extend over a period exceeding one year shall have any force or effect unless sanctioned by the Governor in Council.

Contracts by the Board how to be entered into. No. 3759 s. 48.

Board may compound for breach of contracts. No. 3759 s. 49.

48. (1) The powers hereby granted to the Board to make contracts may lawfully be exercised as follows (that is to say):—

Any contract which if made between private persons would be by law required to be in writing and under seal, the Board may make in writing in the corporate name of the Board under its common seal, and in the same manner may vary or discharge the same;

Any contract which if made between private persons would be by law required to be in writing and signed by the parties to be charged therewith, the Board may make in writing in the corporate name of the Board signed by any two members of the Board, and in the same manner may vary or discharge the same.

(2) All contracts so made and duly executed by the parties thereto respectively shall be effectual in law and shall be binding upon the Board and all other parties thereto their successors heirs executors or administrators (as the case may be); and on any default in the execution of any such contract either by the Board or by any other party thereto, such actions or suits may be brought thereon and damages and costs recovered either by or against the Board in its corporate name or the other parties failing in the execution thereof as might be brought and recovered had the same contract been made between private persons only.

IP' 49. The Board may at a meeting specially called for that

purpose from time to time compound and agree with any person, who has entered into any contract transferred by the operation of the Railways Act 1891 to the Board or has entered into any contract with the Board pursuant to any Act relating to the State railways or against whom any action or suit is brought for any

1958. Railways. No. 6355 445

penalty contained in any such contract or in any bond or other security for the performance thereof or for or on account of any breach or non-performance of any such contract bond or security, for such sum of money or other recompense as the Board may think proper.

DIVISION 2 . THE VICTORIAN RAILWAYS COMMISSIONERS.

Subdivision 1.—Constitution Appointment and Tenure of Office. 50 . ( 1 ) There shall be three Commissioners who shall be a incorporation

body corporate by the name of " The Victorian Railways vutorian Commissioners," and shall have perpetual succession and a common com*ays

" " . . . . missioi No. 3759 s. 50.

seal and be capable in law of suing and being sued, and shall missioners-" have power to take purchase sell lease and hold lands tenements and hereditaments goods chattels and any other property for the purposes of and subject to this Act.

( 2 ) All courts judges and persons acting judicially shall take judicial notice of the common seal of the Commissioners affixed to any deed and shall presume that such seal was properly affixed thereto.

5 1 . Subject to the provisions of this Act, all property real or Powers &c. personal, and all powers authorities immunities rights privileges missioners to

be continued. No. 3759 s. 51.

functions obligations and duties which immediately before the commencement of this Act were vested in or imposed upon The Victorian Railways Commissioners shall continue to be vested in and imposed upon them.

52. (1) The Governor in Council may appoint fit and proper Appointment persons (whether officers of the railway service or not) to be sioners. Commissioners. NO. 3759 s. 52;

No. 5973 ( 2 ) Of the Commissioners so appointed one shall be appointed

as chairman of such Commissioners and one shall be appointed as deputy chairman of such Commissioners.

53. No person being an undischarged or uncertificated undischarged bankrupt or insolvent shall be capable of being appointed a uncertificated Commissioner. SEE*""

Commissioner. No. 3759 s. $3.

54. (1) In the case of the illness suspension or absence of g6^1^0* the chairman or if there is no chairman the deputy chairman sioSeTSf" shall during such illness suspension or absence or vacancy act as No.sra8-54'* the chairman and have all the powers and perform all the duties s.2«). of the chairman.

446 1958. Railways. No. 6355

Power to appoint Acting Commissioner for six months. No. 3759 s. 55.

Tenure of present Com­missioners. No. 3759 s. 55.

Tenure of future Com­missioners. No. 3759 s. 57.

(2) In the event of the deputy chairman so acting as chairman or in the event of the illness suspension or absence of the deputy chairman or other Commissioner the Governor in Council may appoint—

(a) the other Commissioner or some other person to be the deputy of the deputy chairman; or

(b) some person to be the deputy of the othei Commissioner—

and every such deputy shall during such vacancy or illness suspension or absence have all the powers and perform all the duties of the Commissioner whose deputy he is.

55. (1) In the event at any time of the office of any Commissioner becoming vacant the Governor in Council may appoint some person to be an Acting Commissioner.

(2) No such vacancy shall be so filled for any term exceeding six months in the whole, and in making any appointment pursuant to this section the term for which any Acting Commissioner is appointed shall be specified by the Governor in Council.

(3) Every Acting Commissioner shall during the term foi which he is appointed have all the powers and perform all the duties of a Commissioner and of the chairman if such Acting Commissioner is also appointed chairman.

56. Subject to the provisions of this Act, every Commissioner in office at the commencement of this Act shall hold office during good behaviour until the expiry of the term for which he was appointed and shall be eligible for re-appointment.

57. (1) Subject to the provisions of this Act, every Commissioner hereafter appointed shall hold office during good behaviour for the term for which he is appointed.

(2) No person shall be appointed a Commissioner for a term exceeding seven years.

Com­missioners eligible for re­appointment. No. 3759 s. 58.

Tenure of Acting Commissioner. No. 3759 s. 59.

Commis­sioners' how removed from office or suspended. No 3759 3.60.

58. Any Commissioner may from time to time be re-appointed for any further term not exceeding seven years.

59. Every Acting Commissioner shall hold office during good behaviour for the term for which he is appointed.

60. (1) It shall be lawful for the Governor in Council to remove any Commissioner from his office on an address praying for such removal being presented to the Governor by the Legislative Council and the Legislative Assembly respectively in the same session of Parliament or by the Legislative Assembly

1958. Railways. N o . 6355 447

alone in two consecutive sessions thereof provided that not less than six weeks shall intervene between such addresses when made by the Legislative Assembly alone as aforesaid.

( 2 ) At any time when Parl iament is not sitting it shall be lawful for the Governor in Council to suspend any Commissioner from his office for inability inefficiency mismanagement or misbehaviour or refusal o r neglect or failure to carry out any of the provisions of this Act, and when and so often as the same happens a full statement of the cause of such suspension shall be laid before both Houses of Parl iament within seven days after the commencement of the next session thereof; and if an address at any time during that session is presented to the Governor by the Legislative Council or the Legislative Assembly praying for the restoration of such Commissioner to his office, such Commissioner shall be restored accordingly; bu t if no such address is so presented, it shall be lawful for the Governor in Council to confirm such suspension and to declare the office of such Commissioner to be, and the same shall thereupon become and be vacant as if such Commissioner were dead.

6 1 . Every Acting Commissioner shall be liable to be suspended Acting or removed from or restored to office by the Governor in Council N , , " ^ ^ . ' in such manner and upon such grounds as a Commissioner is liable to be suspended or removed from or restored to office.

62. No Commissioner shall during his continuance in office Commissioner engage in any employment other than in connexion with the duties toother08886

Of SUCh Office. employment. No. 3759 s. 62.

63. Every Commissioner who becomes bankrupt or insolvent Persons or applies to take the benefit of any Act now or hereafter to be ?o cSntSue°to in force for the relief of bankrupt or insolvent debtors or who rS^™;,*. by any deed or other writing compounds with his creditors or No. 3759 s. 63. makes an assignment of his salary for their benefit shall be deemed to have forfeited his office as Commissioner.

64. Every Commissioner who is wilfully absent from his duty omceof for a period of fourteen consecutive days except on leave granted howTacated?' by the Governor in Council (which he is hereby authorized to No. 3759 s. 64. grant), or becomes incapable of performing his duties as Commissioner or resigns, shall thereby vacate his office as Commissioner.

65. Every Commissioner who is in anywise concerned or com-interested in any bargain or contract made by or on behalf of not to be the Commissioners .or in anywise participates or claims to be ta

et™staedym

entitled to participate in the profit thereof or in any benefit or «""*><**. emolument arising from the same shall thereby vacate his office No-3759s-65-as Commissioner and shall also be guilty of a misdemeanour and

448 1958. Railways. No. 6355

Salaries of Com­missioners. No. 3759 s. 66; No. 5973 s. 3.

Quorum. No. 3759 s. 68 (1).

Proceedings valid if only two Commis­sioners. No. 3759 s. 68 (2) .

Powers of chairman. No. 3759 s. 69.

Presiding Com­missioner. No. 3759 s. 70; No. 5973 s . 2 ( 3 ) .

shall be liable in the discretion of the court to a penalty of not more than Five hundred pounds or to imprisonment with or without hard labour for a term of not more than three years or to both of these punishments.

66. (1) The Commissioners shall respectively receive such salary as is fixed by the Governor in Council at or before the time of their appointment not exceeding—

(a) in the case of the chairman—Six thousand pounds per annum;

(b) in the case of the deputy chairman—Four thousand five hundred pounds per annum;

(c) in the case of the other Commissioner—Four thousand pounds per annum.

(2) Such salaries shall be paid out of the Consolidated Revenue which is hereby appropriated for that purpose.

Subdivision 2.—Conduct of Business. 67. Any two of the Commissioners shall form a quorum

and shall have and may exercise and perform all the powers authorities and duties which by any Act or means whatsoever are vested in or imposed upon the Commissioners.

68. No proceeding of the Commissioners shall be invalidated or illegal in consequence only of there being only two Commissioners at the time of such proceeding.

69. If the chairman differs from the decision of the other two Commissioners with respect to any matter before the Commissioners for their decision and determination such matter shall be deferred for not less than twenty-four hours when it shall be again brought forward, and in the event of the chairman again differing from the decision of the other two Commissioners such matter of difference shall be determined according to the deliberate judgment of the chairman irrespective of the decision of the other two Commissioners, and the chairman shall in all such cases enter upon the minutes of the proceedings of the Commissioners his reasons at length for deciding such matter in opposition to the other two Commissioners and shall forward to the Minister a true copy of such minute, certified under his hand, for presentation to Parliament.

70. The Commissioner presiding at a meeting of the said Commissioners shall in the event of an equal division of votes at such meeting have a second or casting vote. Where only two Commissioners neither of them being the chairman are present at any meeting of the Commissioners, the deputy chairman shall take the chair and preside at such meeting.

1958. Railways. No. 6355 449

Subdivision 3.—Property of Commissioners.

71. Subject to the provisions of this Act relating to the Railways &c vesting of property in the Board, all railways and rolling-stock cSm?m

heretofore constructed or acquired or which may hereafter be J^""^" 71 constructed or acquired by or on behalf of the State or the Commissioners, and the piers stations yards and buildings connected or used therewith respectively or forming or reputed to be part or parcel thereof respectively, together with the land over or upon which the said railways piers stations yards and buildings have been or may hereafter be constructed or erected and the land included within the boundary fences of any of the said railways, and all land outside of such fences which may have been acquired by the Board of Land and Works under any Act authorizing the taking of land for railway purposes, and in respect of land the inheritance thereof in fee simple, shall be and the same are hereby vested in the Commissioners for the purposes of this Act.

72. Any lands which at the time of the commencement of this Lands taken Act are vested in the Commissioners and any lands which are com- m

taken by the Commissioners under the authority of this Act or SiS8^'^s'T, of any Act incorporated herewith and the inheritance thereof in fee simple shall be and the same are hereby vested in the Commissioners for the purposes of this Act.

73. All telegraph posts erected on any of the lands by this Railway Act vested in the Commissioners other than telegraph posts the property of the Postmaster-General of the Commonwealth of m?s3onere. Australia and all wires instruments and other telegraphic or No. 3759 s. 73. telephonic apparatus used in connexion with any of the railways other than wires instruments and other telegraphic or telephonic apparatus the property of the said Postmaster-General shall be and the same are hereby vested in the Commissioners for the purposes of this Act.

74. All purchases sales conveyances grants assurances deeds securities contracts bonds and agreements entered into made or given previously to the first day of February One thousand eight hundred and eighty-four by or to the Board of Land and Works in connexion with the railways or with piers stations yards buildings lands engines carriages trucks or rolling-stock by The Victorian Railways Commissioners Act 1883 vested in the Commissioners shall be as binding and of as full force and effect in every respect against or in favour of the Commissioners and may be enforced as fully and effectually as if instead of the Board of Land and Works the Commissioners had been a party thereto and all powers conferred upon the Board of Land and Works and all matters or things had or done or to be done and all

Com­missioners substituted for Board of Land and Works with reference to all rights and liabilities and prvileges. No. 3759 s. 74.

VOL. VII.—15

450 1958. Railways. No. 6355

rights and privileges accrued or accruing shall be exercised enforced enjoyed and used by the Commissioners in the same way that the Board of Land and Works might have exercised enforced enjoyed or used the same but for the passing of the said Act, and with respect thereto the Commissioners shall be substituted for the said Board of Land and Works.

Expenditure of money appropriated by Parliament. No. 3759 s. 75.

Moneys received to goto Consolidated Revenue. Audit Act to apply to Commis­sioners.

Surplus lands may be leased or sold. No. 3759 s. 76.

Certain property of Com­missioners liable to municipal rates and taxes when leased or rented.

No. 3759 s. 77.

Incorporation of the Lands Compensation Act. No. 3759 s. 78.

75. (1) All moneys appropriated by Parliament for the construction maintenance or management of the railways and for works in connexion therewith shall be expended under the control and management of the Commissioners.

(2) This section shall not apply to moneys appropriated by Parliament for the construction of new lines of railway.

(3) All moneys payable to the Commissioners under this Act shall be collected and received for or on account of the Consolidated Revenue; and the provisions of any Act now or hereafter in force for the collection and payment of the public moneys and the audit of the public accounts shall save as in this Act otherwise expressly provided apply to the Commissioners and to all officers and employes acting under their control.

76. Wherever it appears that the land which has been acquired for the purposes of any of the railways is in excess of the quantity required for such purposes, the Commissioners may with the consent of the Governor in Council dispose of such part thereof as may be so in excess or any part thereof by demise and lease for any term or terms of years and at such rent as the Governor in Council thinks fit to any person willing to take the same or the Commissioners may subject to the approval of the Governor in Council sell absolutely such part in excess or any part thereof; and for the purposes of such lease or sale as aforesaid the Commissioners may execute any and every deed instrument and writing which may be deemed necessary or expedient.

77. In every municipal district all tenants of property vested in the Commissioners and hereafter leased or rented to such tenants shall except in the case of railway refreshment rooms and premises in the occupation of railway employes, be liable to the payment of rates and taxes, but the Commissioners shall not be liable as owners of such property.

Subdivision 4.—Powers of Commissioners. 78. The Lands Compensation Act 1958 and all Acts

hereafter in force amending the same are hereby incorporated with and shall be read and construed as part of this Division of this Part; and in the construction of the said Acts the words " Board " and " Board of Land and Works " shall mean and be read as " Commissioners " and the words " special Act" shall mean this Division and any Act now in force or hereafter to be passed

1958. Railways. No. 6355 451

authorizing the construction extension or enlargement of any works in connexion with the railways or with the piers stations yards or buildings vested or to be vested in the Commissioners and shall include any Act amending any such last-mentioned Act or amending this Division.

79. For the purposes and subject to the provisions and °0e "ffor

restrictions of this Act the Commissioners may from time to time making r iiil WAYS

exercise any of the following powers:— NO. 37595.79; They may enter upon any lands which before the tUHw.

commencement of this Act have been or which may hereafter be authorized to be taken or used, and may bore dig cut trench embank and drain and may remove or lay take carry away and use any earth gravel stone timber or other things dug or obtained therein or otherwise in the execution of any powers heretofore or hereafter given and which may be proper for making maintaining altering repairing or using any railway lawfully authorized or which may obstruct the making maintaining altering repairing or using the same.

They may make in upon across under or over any such lands or any streets roads ways railroads tramways hills valleys rivers canals water-courses or waters such temporary or permanent inclined planes tunnels cuttings embankments aqueducts bridges roads ways passages conduits drains piers arches fences and other works and conveniences as they think proper.

They may alter the course of any rivers not navigable canals brooks streams or water-courses during such time as is necessary for constructing or maintaining tunnels bridges or other works over under or affecting the same; and may temporarily or permanently alter the course of or raise or sink the level of any such rivers streams streets roads or ways in order the more conveniently to carry the same over or under or by the side of any railway.

They may make drains or conduits into through or under any lands adjoining the railways for the purposes of conveying water from or to the railways and upon the railways or any lands adjoining or near thereto.

They may make such piers stations sidings warehouses toll-houses and other houses yards engines machinery signal-posts and other apparatus works and conveniences whatsoever connected with the railways as the Commissioners may think proper, and may from time to time alter repair or discontinue any such apparatus works and conveniences and substitute others in their stead.

452 1958. Railways. No. 6355

Additional sidings &c. on existing lines. No. 3759 s. 8a

They may fell or remove any timber or other trees being within two hundred feet from either side of the railways which by their liability to fall or otherwise might obstruct or injure the railways.

They may also fell or cut down and remove any tree or wood whether timber or other trees or scrub or underwood which by reason of the line making a curve or otherwise may obstruct or impede a view of any signal-post from any portion of the line which is within one mile in a right line from any such signal-post.

They may enter upon and use any existing private road being a road gravelled or formed with stones or other hard materials and not being an avenue or approach to any dwelling-house.

They may do all other things necessary or convenient for making maintaining altering or repairing and using the railways.

80. (1) With the sanction of the Minister the Commissioners may in connexion with any line of railway vested in them—

make additional platforms offices houses warehouses and other buildings yards and railway station accommodation; or

make additional sidings and road approaches to railway stations and sidings; or

make drains or conduits for the purpose of conveying water from or to such railways; or

widen bridges, or raise or lower bridges or portions of such railways—

and shall maintain the same. (2) The Commissioners may for all or any of the purposes

of this section enter upon take and use all or any of the lands situate within a distance of one hundred and thirty-two feet from either side of any line of railway.

(3) In the exercise of the powers by this section conferred as little damage as may be shall be done and full satisfaction shall if required be made in manner provided by the Lands Compensation Act 1958 to all persons interested in any lands or hereditaments taken used injured or prejudicially affected for all damages by them sustained by reason of the exercise of such powers.

Power to Com­missioners to construct Ac private sidings. No. 5918 s. 2 (1) (2).

81. (1) The Commissioners shall have and be deemed always to have had power on such terms and conditions as they think fit to construct operate and maintain any private siding and to connect any private siding to any railway whether or not such siding is on land under the control of the Commissioners.

1958. Railways. No. 6355 453

(2) The Commissioners may on such terms and conditions as they think fit permit any person to use any siding of the Commissioners which is appurtenant to any railway.

82. (1) The Commissioners may by arrangement with the £°werto

Commissioner for Railways for the State of New South Wales— missioners to operate

(a) run trains or rolling-stock over any line constructed v"SJ?ria and in New South Wales; NS'W"11

(b) permit trains or rolling-stock belonging to the State of Railways to New South Wales or any body constituted under victrorra!n

the law of the State of New South Wales to run over No. 5918 s. j . any lines constructed in Victoria.

(2) The Commissioner for Railways for the State of New South Wales shall in respect of any train or rolling-stock under his control which pursuant to this section is operated on any railway line in Victoria have the same powers rights duties and immunities while so operating trains or rolling-stock in Victoria as he would have if such trains or rolling-stock were being lawfully operated by him in New South Wales.

(3) The provisions of the last preceding sub-section shall °J™tmenoe"

come into operation on a date to be fixed by proclamation of the Governor in Council published in the Government Gazette but no such proclamation shall be made until the Governor in Council is satisfied that a similar provision relating to the operation in New South Wales of trains and rolling-stock under the control of the Commissioners is in force in New South Wales.

83. (1) The Commissioners may fix and demand such fares Power to and charges and impose such conditions with respect to the missioners to carriage of passengers goods and livestock as they think fit but change's3.and

such fares charges and conditions shall comply with any Order No.5?i8S.4 of the Governor in Council for the time being in force 1)_ 3 ' establishing any basis of calculation or imposing any limits or stipulations in relation to the fixing of such fares charges or conditions.

(2) Information as to all fares charges and conditions so fixed or imposed shall be made available by the Commissioners to any person on application therefor.

(3) Notwithstanding anything in the foregoing provisions of this section the Commissioners shall have power to make special contracts in relation to fares charges and conditions with respect of the carriage of any passengers goods and livestock.

84. (1) Any officer or employe of the Commissioners Detention, authorized generally or in any particular case in that behalf and™eMchof under the seal of the Commissioners (in this section referred raUwaysupon

to as an authorized officer) may— premises. (a) stop any vehicle or person upon any of the lands,

stations, buildings or piers vested in the

454 1958. Railways. No. 6355

Commissioners where any luggage, parcels or other goods are received, despatched or delivered;

(b) inspect, search and examine any such vehicle or any goods or container or the contents thereof in or upon any such vehicle or in the possession of any such person;

(c) demand the production of consignment notes, delivery dockets, or other documents relating to the receipt, despatch, delivery, or ownership of any goods found upon such inspection, search or examination.

(2) (a) If any person— (i) being the driver or person in charge of any such

vehicle refuses or fails to stop such vehicle in accordance with the directions of an authorized officer;

(ii) refuses to submit any such vehicle or any goods or container in or upon such vehicle or in his possession to inspection search and examination in accordance with the directions of such authorized officer;

(iii) wilfully obstructs or avoids such inspection search or examination; or

(iv) refuses to produce to such authorized officer any consignment note, delivery docket, or other document relating to the receipt, despatch, delivery or ownership of any goods found upon such inspection search or examination—

such person shall be guilty of an offence and liable to a penalty of not more than Fifty pounds.

(3) (a) Every authorized officer exercising any power conferred under this section shall, if required, produce his authority to any person concerned.

(b) Every person who forges or counterfeits any such authority or makes use of any forged counterfeited or false authority, or personates the officer named in such authority, or falsely pretends to be such an officer shall be guilty of an offence and shall be liable to a penalty of not more than Fifty pounds.

certificate of 85. A certificate purporting to be under the hand of the i&ciiwaystfor Secretary for Railways to the effect that any lands stations piers evidence o?c'e o r buildings described therein are vested in the Commissioners ownership by shall be prima facie evidence that such lands stations buildings missioners. or piers are so vested and shall be received in evidence in any

proceeding in any court. No. 5918 s. 6.

1958. Railways. No. 6355 455

86. (1) On the prosecution of any person— Admissibility of evidence in

(a) for stealing any property in or from any carriage ^^jg,™ truck or other vehicle of the Commissioners or from railway » . , . . . . , vehicles, &c. from any railway yard or siding or from any NO. 59i8s.7. store shed or premises of the Commissioners; or

(b) for receiving or having in his actual possession any property suspected of being so stolen—

evidence may be given of any writing printing or marks on such property or on any package or container in which the property was enclosed or on any label attached to such property package or container without producing or giving notice to produce the original writing printing or marks.

(2) On any such prosecution a document purporting to be a consignment note tally note bill of lading shipping or railway receipt delivery order specification schedule packing list or invoice relating to the property shall be admissible in evidence on production, and without further proof shall be prima facie evidence of the particulars contained therein.

87. It shall not be competent for the Commissioners to workshops, remove or discontinue any of the workshops connected with the No-3759s-81-railways in existence on the first day of February One thousand eight hundred and eighty-four, without the sanction of the Governor in Council.

88. The Commissioners may appoint places in the different Depots for

centres of population as depots for the receipt and delivery of delivery of

goods or passengers' luggage to be forwarded to or received from ufg ge!"1

any of the railways, and may contract with any person for the No. 3759 s. tz carriage of such goods or passengers' luggage to and from any railway station or depot.

89. The Commissioners may in lieu of loading or unloading com-goods on or from any truck shed or vessel by temporary day mav make a

labour invite public tenders on such terms and conditions as they toadmlVr* think fit for the performance of such work for a period not gSj,dsdmg

exceeding one year, and shall have power to accept the lowest NO. 3759 s. 83. tender or invite fresh tenders, and may make a contract with the person whose tender is accepted.

90. The Commissioners may apply in writing from time to com-time to the Minister for additonal stores plant material rolling- requisS10

stock stations sheds and other accommodation which in the [?ocrk012cn.B" opinion of the Commissioners may be required to enable them to NO. 3759 s. 84. meet the traffic requirements and for the efficient working of the railways.

466 1958. Railways. No, 6355

Power to Commis­sioners to grant leases licences and easements. No. 3759 s. 85; No. 5918 s. 11.

Com­missioners may test &c. and examine goods. No. 3759 s. 86.

Limit of size of bag for certain grain. No. 3759 s. 87.

91. The Commissioners may grant— (a) a lease of any refreshment room, shed, office, shop,

stall, or any site for die erection of a shed, office shop, or stall, or for storage purposes ;

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

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

(ii) the right to exhibit any advertisement; or (iii) the use of any coal gear or other equipment;

(c) an easement over any land other than an easement on or across any railway line—

on such terms and conditions as they think fit.

92. The Commissioners may test gauge or open any cask case package parcel or consignment whatsoever of goods delivered or offered to the Commissioners for transmission by railway, and may examine and inspect the contents thereof in order to ascertain and determine whether the description value quantity number nature and charaoter of such contents are correctly described in the consignment note or invoice or bill of lading relating to such cask case package parcel or consignment.

93. The Commissioners may decline to carry wheat maize barley and pease if contained in a bag having a greater capacity than a bag measuring forty-four inches long by twenty-six and one-half inches wide.

Com­missioners may generate use and supply electricity. No. 3759 s. 88.

94. (1) Notwithstanding anything in any Act the Commissioners may without further or other authority than this Act—

(a) generate and use electricity ; (b) upon such terms and conditions as (whether before

or after the commencement of this Act) are or have been agreed upon supply electricity—

(i) to any Commonwealth or State Government Department; and

(ii) to any public body or institution which on the fourth day of April One thousand nine hundred and eighteen was being supplied with electricity by the Commissioners;

(c) upon such terms and conditions as are agreed upon supply electricity in bulk to the State Electricity Commission; and

(d) provide install maintain and operate buildings works machinery plant and electric lines for the generation use and supply of electricity.

1958. Railways. No. 6355 467

(2) So far as relates to the supply of electricity under Power to paragraph (c) of sub-section (1) of this section the Governor provisions of

in Council may by Order published in the Government Gazette ?£«'!£'<£'* extend and apply to the Commissioners with such alterations fe

0gufatiom'md

modifications and substitutions as the Governor in Council S^ioSS'i, thinks fit all or any of the provisions of the Electric Light and certain cases _ A tnt-n i • t i < . , . , of bulk supply.

Power Act 1958 or any regulations thereunder; and may in like powerto manner rescind revoke amend or vary any such Order. oTISs.*0-

(3) For the purposes of this section the Commissioners shall ^gJJJH^ have and may exercise all or any powers of the Commissioners certain Acts. under the provisions of this Act or of section four of the Electric Light and Power Act 1958 as if those provisions referred to and included the purposes of this section and may with the sanction of the Minister enter upon take and use such lands as are required for the said purposes and the provisions of sub-section (3) of section eighty of this Act shall extend and apply to the exercise of the powers conferred by this section with respect to such lands.

(4) In this section unless inconsistent with the context or interpretation, subject-matter the expressions " electric line " and " electricity " shall have the same meaning as in the Electric Light and Power Act 1958.

95. (1) The Commissioners may from time to time Powerto construct and maintain lines of telegraphic and telephonic telegraphs,

communications along the lines of any of the railways, and for No. 3759 s. 89. such purposes may enter in and upon any Crown lands roads and streets and make therein all needful excavations for the erecting of masts and posts and for the laying down of lines of subterranean communication, and may erect set up or lay down all necessary masts posts cords and wires. Every cord or wire of any such line if above the surface crossing any road shall be placed at least eighteen feet from the ground and so as not to hinder or obstruct the free use or enjoyment of such road further than is absolutely necessary for the proper construction establishment and maintenance of any such line of communication.

(2) The several lines of telegraphic and telephonic working of communication belonging to the Commissioners or worked under telegraphs

the direction or on behalf of the Commissioners may be used o,sn?mthe

by the Commissioners— missioned (a) for the transmission of messages in relation to the

working of the railways; and (b) for the transmission of messages for and on behalf

of the Postmaster-General of the Commonwealth of Australia pursuant to any contract or agreement made with him as by the next succeeding section provided.

458 1958. Railways. No. 6355

Power of Com­missioners to make contracts with Postmaster-General of Common­wealth of Australia. No. 3759 s. 90.

Com­missioners may make contracts &c No. 3759 s. 91; No. 5918 s. 12 (1) .

Contracts over £10,000 or for more than one year to be sanctioned by Governor In Council. No. 3759 s. 92; No. 5918 s. 12 (2 ) .

96. (1) The Commissioners may from time to time make contracts and agreements with the Postmaster-General of the Commonwealth of Australia—

(a) in respect of the transmissijn by them and for the purposes of the said Postmaster-General of telegraphic and telephonic messages by means of any of the lines of telegraphic and telephonic communication belonging to the Commissioners;

(b) generally in respect of telegraphs and telephones and . the transmission of telegraphic and telephonic

messages; (c) in respect of the receipt carriage and delivery of

mails and in respect of facilities provided in connexion therewith; and

(d) generally in respect of the postal service. (2) In case any difference arises between the Commissioners

and the said Postmaster-General with regard to the terms and conditions in which any such contract or agreement should be made or otherwise in relation thereto, such difference may be determined by arbitration.

97. The Commissioners may enter by the corporate name of the Commissioners into contracts with any person for the execution of any work authorized by this Act to be done by the Commissioners or which they may think proper to do or to direct to be done under or by virtue of the powers confided to them by this Act, or for furnishing materials or labour or for providing proper engines or other power or for any other matters and things whatsoever necessary for enabling them 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 under such stipulations conditions and restrictions as the Commissioners think proper; and every such contract shall be in writing and shall specify the several works to be done and the materials to be furnished and the prices to be paid for the same, and the times within which the said works are to be completed and the said materials to be furnished, and the penalties to be suffered in case of non-performance thereof; and every such contract may if the Commissioners so think fit also specify the person to whose satisfaction the works materials engines or other matters or things are to be completed or furnished, and the mode of determining any dispute which may arise concerning or in consequence of such contract.

98. No contract made by the Commissioners the consideration for which exceeds Ten thousand pounds or the performance of which may extend over a period exceeding one year shall have any force or effect unless sanctioned by the Governor in Council.

1958. Railways. No. 6355 459

99. (1) The powers hereby granted to the Commissioners to contracts by make contracts may lawfully be exercised as follows (that is to missioners

\ . n o w t o t>e

Say ) . entered into. , . , . . , . No. 3759

Any contract which if made between private persons ss.93,94. would be by law required to be in writing and under seal, the Commissioners may make in writing in the corporate name of the Commissioners under their common seal, and in the same manner may vary or discharge the same;

Any contract which if made between private persons would be by law required to be in writing and signed by the parties to be charged therewith, the Commissioners may make in writing in the corporate name of the Commissioners signed by the secretary and by any two of the Commissioners, and in the same manner may vary or discharge the same.

And all contracts made according to the provisions herein contained and duly executed by the parties thereto respectively shall be effectual in law and shall be binding upon the Commissioners and all other parties thereto their successors heirs executors or administrators (as the case may be ) ; and on any default in the execution of any such contract either by the Commissioners or by any other party thereto, such actions or suits may be brought thereon and damages and costs recovered either by or against the Commissioners in their corporate name or the other parties failing in the execution thereof as might be brought and recovered had the same contract been made between private persons only.

(2) The Commissioners at a meeting specially called for Commis-

that purpose from time to time may compound and agree with Impound' any person who has entered into any contract in pursuance or under the authority of this Act or against whom any action or suit is brought for any penalty contained in any such contract or in any bond or other security for the performance thereof or for or on account of any breach or non-performance of any such contract bond or security for such sum of money or other recompense as the Commissioners think proper.

for breach of contracts.

100. The Victorian Railways Commissioners shall have and be D , , . rower to

deemed at all relevant times to have had power to occupy control commis-, . „ , . , , r ~ , . missioners to

manage maintain and conduct the premises known as the Chalet at m fe8e

Mount Buffalo and to provide tourist and holiday accommodation Mt? Buffalo. and any amenities in respect thereof and to do or provide any ™°-5122s-2-matter or thing whatsoever incidental expedient or usual in that behalf.

460 1958. Railways. No. 6355

Duties of Com­missioners with respect to the railways &c. No. 3759 s. 95.

Subdivision 5.—General Duties of Commissioners.

101. Subject to the provisions of this Act, it shall be the duty of the Commissioners to supervise the railways and the accommodation thereto and to see that the same are maintained in a state of efficiency, and that persons travelling upon the railways are carried without negligence.

Exemption from liability as to certain lines. No. 3759 s. 96.

102. With respect to lines of railway specified in any Act repealed prior to the commencement of this Act the Commissioners shall continue to have the same exemption from liability or responsibility as they had immediately prior to such commencement.

Adjustment of weights and measures on railways. No. 3759 s. 97; No. 4712 s. 3.

103. The Commissioners shall cause all weights measures weighing instruments and measuring instruments belonging to them and in use upon any of the railways or on any of the stations or piers vested in the Commissioners to be from time to time adjusted either on comparison with authorized copies of the standard weights and measures made under the Weights and Measures Act 1958 or made under the Acts repealed thereby, or otherwise (as the case may be), by some officer or employ^ in the railway service in that behalf appointed by the Commissioners; but save as aforesaid nothing in the said Act contained shall apply to any weights measures weighing instruments or measuring instruments which are the property of the Commissioners and which are in use upon any of the railways or on any station or pier vested in the Commissioners.

Minutes to be kept. No. 3759 s. 98.

Secretary to submit copy weekly.

Com­missioners to report.

104. (1) The Commissioners shall keep minutes of all their proceedings in such manner and form as the Governor in Council from time to time directs.

(2) The Secretary for Railways shall at the beginning of each week submit to the Minister a copy of all minutes kept during the preceding week pursuant to this section.

(3) In the first month in each quarter of every year the Commissioners shall report in writing to the Minister the state of the traffic returns with the approximate cost and earnings of trains per ton per train mile in respect of goods and passengers respectively carried during the past quarter, the general condition of the lines and accommodation for the traffic, and whether any special rates have been made and the reasons for making such rates, and shall also furnish a statement of appointments and removals of officers and employ6s, with the circumstances attending each. Such reports upon their being received by the Minister shall be laid before Parliament if Parliament is then sitting, or if Parliament is not then sitting then forthwith after the next meeting of Parliament.

1958. Railways. No. 6355 481

105. The Commissioners shall prepare an annual report of £nn^J,obe their proceedings and an account of all moneys received and lakfoefore expended during the preceding year. Such annual report shall N"'^™*99. be laid before both Houses of Parliament in the month of September in each year if Parliament is then sitting and if Parliament it not then sitting then within one month after the next meeting of Parliament. They shall also prepare estimates in such form as the Governor in Council may direct of receipts and expenditure for each period of twelve months ending on the thirtieth day of June in each year.

106. ( 1 ) The Commissioners shall furnish the Minister with Minister to all such reports documents papers and minutes as may be required &c. and1*0

by Parliament pursuant to any Act or pursuant to any order of officers and

either House of Parliament. c?pl°^ No. 3759

(2) The Commissioners shall also furnish the Minister with full information on all business of the Department to enable answers to be made to all questions asked in Parliament concerning the railways or to enable the Minister to furnish any returns required by Parliament or which he may himself require.

(3) The Commissioners shall provide and maintain for the Minister and the Board fit and convenient offices in the offices of the Railway Department, and shall furnish the Minister with such professional clerical and other assistance as he may require.

(4) For the proper conduct of his public business the Minister shall be entitled at all times to put himself into direct •communication with all branches of the railway service and all officers and employes, and also to see all documents papers and minutes which he may require either for Parliament or himself and to be supplied with copies thereof, and also to avail himself of the services and assistance of any officer or employe.

107. The Minister may at any time in writing request the Minister may Commissioners to propose in writing a scheme for effecting an Ofqcpm-report

increase of income o r a decrease of expendi ture , o r for carrying " ' ^ S o n out any matter of general policy specified by the Minister, and if m

5att'Jer!j.

rtain

the Minis ter approves of the same h e m a y direct the Commissioners NO. 3759 to take all necessary steps to carry out the same. 8l0t"

If the Minister does not approve of any scheme proposed by the Commissioners, he may himself transmit to them any proposition for effecting and carrying out such increase decrease or matter of policy, and thereupon the Commissioners shall take all necessary steps to give effect to such proposition.

If any doubt or difference of opinion occurs respecting the provisions of this section the same may be finally determined by the Governor in Council.

462 1958. Railways. No. 6355

DIVISION 3. EXPENDITURE ON RAILWAYS.

Certain losses by Com­missioners to be made good by Parliament. No. 3759 s. 102; No. 4429 s. 6.

(1) In the following cases (that is to say) :— (a) Where Parliament makes any alteration in the law

which occasions any increase of expenditure by the Commissioners or any decrease of the railways revenue; or

(b) Where Parliament or the Governor in Council directs the Commissioners to carry out any system or matter of policy which occasions or results in any increase of expenditure by the Commissioners or any decrease of the railways revenue; or

(c) Where Parliament authorizes the construction of any new line of railway which when vested in the Commissioners does not produce sufficient revenue to cover the interest on its cost of construction and the expense of its maintenance—

the annual amount of the increase of expenditure or decrease of revenue or of the loss resulting from such new line of railway shall be from time to time notified in writing by the Commissioners to the Auditor-General and if certified by him shall be provided by Parliament in the annual Appropriation Act and paid to the Commissioners.

Certain losses by Com­missioners arising before passing of No. 4429 not to be made good to Com­missioners.

14th December, 1936.

(2) Notwithstanding anything in the foregoing provisions of this section after the thirtieth days of June One thousand nine hundred and thirty-seven there shall not be paid to the Commissioners any moneys pursuant to such provisions in respect of any matter or thing which first arose under the said provisions before the passing of the Railways (Finances Adjustment) Act 1936.

Authority required for special expenditure. No. 3759 s. 103.

Before the Commissioners authorize or incur any expenditure for any works or services which are not required for ordinary working expenses and maintenance, it shall be necessary for the Minister to submit or cause to be submitted to both Houses of Parliament a statement of such proposed works and services and also an estimate of the cost of such works and services; and such estimate shall be submitted for the sanction of the Legislative Assembly in the same manner as the annual estimates of expenditure.

Statutory limit of expenditure not to be exceeded without authority of Parliament. No. 3759 s. 104.

110. Where the amount which may be expended for the construction or alteration of any line of railway is restricted by any Act, it shall not without the authority of Parliament be lawful for the Board or the Commissioners to enter into any contract which may necessitate or involve the expenditure of more than such amount on such railway.

1958. Railways. No. 6355 463

DIVISION 4. FUNDS.

Subdivision 1.—Railways Stores Suspense Account.

111. (1) For the purposes of this Act the Board and the Commissioners shall maintain the fund called the Railways Stores Suspense Account.

(2) The said fund shall from time to time be credited with the value of such stores as may from time to time be issued for use on works in connexion with the Victorian railways the expenditure on which is chargeable either to loans authorized or amounts appropriated by Parliament, and such loans or amounts shall be debited with the value of the stores used in the said works.

(3) Notwithstanding anything contained in the last preceding sub-section the said fund shall not to the extent only of Fifty thousand pounds be credited with the value of stores issued for use in effecting special and deferred repairs to lines of railway and works.

(4) The proceeds of the sale of any of the said stores shall be placed to the credit of the said fund.

(5) There may be issued and applied for purchase of railway stores any moneys at the credit of the said fund.

(6) In the construction of all new lines of railways and of new rolling-stock and in the maintenance repair and working of all lines and rolling-stock it shall be the duty of the Board and the Commissioners respectively to make use of the stores for the time being on hand unless the same are unfit or unsuitable for the purposes for which such stores are required.

112. (1) The Treasurer of Victoria is hereby authorized at any time at the request of the Board or the Commissioners to advance temporarily to the Railways Stores Suspense Account from any unexpended portion of any loan appropriated by Parliament for the construction of railways and works connected therewith such sum or sums as he deems to be sufficient for the purposes of such account.

All sums so advanced to such account shall be refunded and paid back by the said Board or Commissioners (as the case may be) into the loan fund from which the amount is paid.

(2) Any moneys for the time being standing to the credit of Application of such account which the Commissioners from time to time suspense determine are in excess of the amount reasonably required for the Account-purchase of stores may be paid into the State Loans Repayment Fund and may be issued and applied and used by the Commissioners for the construction of any works on existing lines of railway or on rolling-stock for existing lines of railway, if such works or rolling-stock have received the previous sanction of Parliament.

Railways Stores Suspense Account to be maintained. No. 3759 s. 105.

Power to make temporary advances to Railways Stores Suspense Account. No. 3759 s. 106.

Repayment.

464 1958. Railways. No. 6355

Reduction of Railway Loan Liability Account to be kept and debited with £30.000,000. No. 4429 s. 4.

Subdivision 2.—Reduction of Railway Loan Liability Account. 113. There shall be kept in the Treasury an account to be

called the " Reduction of Railway Loan Liability Account" to the debit of which account there was, on the first day of July One thousand nine hundred and thirty-seven, placed the sum of Thirty million pounds, being the sum by which the railway loan liability was reduced by the Railways (Finances Adjustment) Act 1936.

Victorian Railways Com­missioners to be charged annually with all amounts paid by Treasurer of Victoria in respect of interest sinking fund payments &c. on adjusted railway loan liability. No. 4429 s. 5.

" Adjusted railway loan liability."

114. (1) In every financial year, in any accounts or dissection of accounts prepared issued or published by the Treasurer of Victoria there shall be charged against The Victorian Railways Commissioners all amounts paid by the Treasurer of Victoria in any such year in respect of interest sinking fund payments and exchange (including expenditure incurred in connexion with the payment thereof) in respect of the adjusted railway loan liability.

(2) In this section " adjusted railway loan liability " means the railway loan liability together with—

(a) the amount of all stock and debentures issued by the Governor in Council and in force in respect of loans raised for railway purposes by the Government of the State of Victoria on or after the first day of July One thousand nine hundred and thirty-six; and

(b) all sums issued and applied on or after the said day under any Railway Loan Application Act out of any moneys in the State Loans Repayment Fund—

but less the sum of Thirty million pounds by which the railway loan liability was reduced by the Railways (Finances Adjustment) Act 1936.

Railway Renewals and Replacements Fund. No. 4429 s. 7; No. 5361 s. 4. Investment of moneys in the Fund.

Payments into Fund.

Subdivision 3.—Railway Renewals and Replacements Fund. 115. (1) There shall be kept in the Treasury an account to be

called the " Railway Renewals and Replacements Fund ".

(2) Any moneys standing to the credit of the said fund may be invested in such securities as are approved by the Treasurer.

(3) Into the said fund there shall be paid— (a) annually the sum of Two hundred thousand pounds

out of the Consolidated Revenue (which is hereby to the necessary extent appropriated accordingly);

(b) any amounts provided by Parliament for the purpose;

1958; Railways. No. 6355 465

(c) the net proceeds of the sale or other disposal of materials or other property (other than land) vested in the Commissioners except where the cost of such materials or property was in the first instance charged to working expenses in which case the proceeds shall be credited to working expenses; and

(d) any interest derived from the investment of moneys standing to the credit of the fund.

(4) Out of the said fund there shall be paid such sums as Payments out may be necessary for the purpose of railway renewals and ofFund-replacements other than such renewals and replacements as are carried out in the ordinary course of maintenance.

Subdivision 4.—State Loans Repayment Fund. 116. The net proceeds of the sale of any land vested in The Proceeds of

Victorian Railways Commissioners shall be paid into the State vt's%(dinmd

Loans Repayment Fund. ££*»« to be paid Into State Loans Repayment

Subdivision 5.—Railway Reserve Fund. NO°44Z9 s.9(2).

117. (1) There shall be kept in the Treasury an account to Railway be called the " Railway Reserve Fund ". l^Zl^

J No. 4429 8. 10. (2) Any moneys standing to the credit of the said fund may investment of

be invested in such securities as are approved by the Treasurer. FS?d.ys ta the

(3) Into the said fund there shall be paid— Payments into

(a) any amounts provided by Parliament for the purpose; and

(b) any interest derived from the investment of moneys standing to the credit of the said fund.

(4) The said fund shall be applied so far as available towards Application meeting deficits in the railway finances. of Fund.

Subdivision 6.—Railway Accident and Fire Insurance Fund. 118. (1) All moneys standing to the credit of the " Railway Railway

Accident and Fire Insurance Fund " shall be kept at the Treasury £j£ idemand

and dealt with as by this Act provided. Fnusndance

(2) Subject to this section the Commissioners shall pay into ^°0975' such fund the sum of Ten shillings for every One hundred pounds of the revenue of the Victorian Railways.

(3) No money shall be paid into the said fund when the same amounts to the sum of One hundred thousand pounds, but whenever by payments thereout such fund is at any time reduced below such sum then as often as the same occurs payments pursuant to this section shall be resumed until such sum is again reached.

466 1958. Railways. No. 6355

Amplication H 9 „ ( l ) There shall be paid out of the said fund—

£ i i " 5 9 (a) the amount of damages recovered in any action or actions at law arising out of any injury caused to any person other than an officer or employe of the Commissioners (whether resulting in the death of such person or no t ) by any wrongful act neglect or default of the Commissioners or any of their officers or employes and the costs of the act ion; or

(b) any amount that may without action at law be allowed by the Commissioners as compensation for any injury caused as aforesaid; or

(c) any damages arising out of or in consequence of such injury to any person other than an officer or employe of the Commissioners; or

(d) any amount which may from time to time be authorized by the Commissioners as compensation to any officer or employe of the Commissioners for injury sustained while in the execution of his duty and for damages arising out of or in consequence of such injury or in the event of death being caused thereby such compensation as may be allowed by the Commissioners to the widow children or other near relatives dependent upon such officer or employe; or

(e) the amount of any loss or damage by fire to any buildings plant stores or properties of the Commissioners; or

(/) the amount of any loss in connexion with or damage to any goods parcels luggage or other property in the custody or under the control of the Commissioners for the safe keeping of which they may be responsible; or

(g) the amount of any sum allowed or payable by the Commissioners in respect of loss or damage caused by railway engines or by the neglect or default of employes whilst engaged in burning off within railway boundaries.

SlwEe'from ^ ^ a t a n v t ' m e ^e D a l a n c e to the credit of the said fund uiePubiic01" is not sufficient for the payment of any amounts authorized to be Account. paid thereout as aforesaid, then the said amounts m a y be

temporari ly issued and applied out of the Publ ic Accoun t and the amounts so temporari ly issued and applied shall no t later than the thirtieth day of June in t he financial year next following that in which the said amounts have been so issued and applied be refunded and paid back into the Public Account ou t of the moneys in the said fund.

1958. Railways. No. 6355 467

Subdivision 7.—Railways Sinking Fund. 120. (1) There shall be kept in the Treasury a fund to be

called the " Railways Sinking Fund " (hereinafter referred to as the " sinking fund " ) .

(2) The surplus railways revenue of every financial year shall be placed to the credit of the sinking fund, and shall be so placed until the amount at the credit of the sinking fund is equal to seventy-five per centum of the total loan liability of the Victorian railways.

(3) In this section unless inconsistent with the context or subject-matter—

" Surplus railways revenue " of any year means so much of the gross revenue of the Victorian railways in such year as remains after deducting therefrom the working expenses of the railways, including interest on all moneys borrowed for the purposes of this Act, all superannuation and retiring allowances and any other expenditure charged against the Consolidated Revenue on account of railways for that year.

(4) This section shall be read and construed as subject to the provisions of the Commonwealth and States Financial Agreements Acts.

Railways Sinking Fund. No. 3759 s. H I ; No. 3943 3. 2. Surplus railway revenue to be paid into Fund.

Interpretation.

lb. s. 2. " Surplus railways revenue."

DIVISION 5. MOTOR CARRIAGES AND CARS.

121. In this Division unless the context otherwise requires Definition oi the expression " motor carriages or cars" means any vehicles carnage or (other than railway locomotives or carriages) propelled by gas ^ '3 7 5 9 oil electricity or any mechanical power and used or intended for s. 112. use on any public highway to or from any railway station and constructed or purchased pursuant to this Division or any corresponding previous enactment.

122. The Commissioners may with the consent of the Governor *£*«£°r

in Council construct or purchase motor carriages or cars and may missioned to maintain and use the same for the purpose of passenger traffic on motor"" any public highway in Victoria to or from any railway station, ^"3759 and any officers or employes under the control of the s.1'13. Commissioners may be employed in connexion with the exercise of all or any of the powers by this Division conferred on the Commissioners.

s. 114.

123. The powers of the Commissioners conferred by this Act By-iaws. to make by-laws for all or any subjects or matters in regard to No-3759

railways shall so far as is practicable extend to and include power for the Commissioners to make by-laws on all or any of the like subjects or matters in regard to motor carriages or cars and persons using the same and as to any matters whatsover necessary for the maintenance and use of such motor carriages or cars.

468 1958. Railways. No. 6355

Need not be licensed as hackney carriages. No. 3759 s. 115.

124. The provisions of any Act relating to local government or to carriages shall not be deemed or taken to apply to motor carriages or cars under this Act: Provided however that the Commissioners shall pay to the respective municipalities the like amount of fees as if the provisions of any Act relating to the licensing of hackney carriages extended to motor carriages and cars under this Act.

Application of motorcar laws. No. 3759 s. 116.

125. The provisions of any law for the time being in force relating to motor carriages or cars shall unless otherwise expressly provided be deemed and taken to apply to motor carriages or cars under this Act.

Interpretation. No. 3759 s. 117. " Agent."

' Ticket.'

DIVISION 6. SALE OF RAILWAY PASSENGER TICKETS.

126. In this Division— (a) " Agent" means any agent person firm partnership

corporation or association of any kind, but does not include any officer or employe of the Commissioners ; and

(b) " Ticket " or " tickets " means any ticket pass symbol or evidence of a right to travel as a passenger upon any railway in Victoria of whatever substance such ticket is made.

Sales by officers and employed. No. 3759 s. 118.

127, Nothing contained in this Division shall be deemed to prevent any officer or employe of the Commissioners selling or exchanging or issuing any ticket in the ordinary course of official duty.

Authority of agent. No. 3759 S. 119.

(1) The Commissioners subject to such terms and conditions as they think fit may authorize any agent for any specified time to sell or issue tickets on their behalf.

(2) The Commissioners shall provide every agent so authorized with a certificate setting forth the authority of such agent to sell or issue tickets, and such certificate shall be signed and issued by the Secretary for Railways.

(3) The Commissioners may at any time oancel the authority of any agent to sell or issue tickets and such agent shall on demand deliver up his certificate to the Secretary for Railways.

(4) No agent shall do any act in connexion with the selling or issuing of tickets unless thereto authorized as aforesaid by the Commissioners.

Place of business. No. 3759 n. 120.

129. Every agent authorized as aforesaid shall have a fixed office or place of business and such agent shall keep the said certificate posted up in a conspicuous position in such office or place of business.

1958. Railways. No. 6355 469

130. (1) Unless authorized by the Commissioners so to do *$%$*$ no person shall sell or exchange or transfer or offer to sell or ^k

he*t

exchange or transfer in the State of Victoria the whole or any part authority. of any ticket. No. 759

(2) No legal proceedings shall unless expressly authorized in writing by the Attorney-General be taken against any person for a contravention of this section.

131. (1) No person shall— E M 2 & (a) set up establish maintain conduct or operate or assist saie& o'f*

in any office or place of business within Victoria *$££[ for the sale exchange or transfer of the whole or N0.3759 any part of any ticket; or '•,22'

(6) occupy or be employed in any office or place of business within Victoria upon or within or in connexion with which is attached or displayed any sign bearing the words " Railway Ticket Office " or "Railway Tickets" or "Ticket Broker" or any word or words or combination of words intended or calculated to advertise or notify to the public that the whole or any part of any railway ticket or pass or evidence of a right to travel as a passenger upon Victorian railways is or may be sold bought or exchanged or transferred therein.

(2) Sub-section (1) of this section shall not apply to an agent authorized under this Division by the Commissioners whilst acting pursuant to such authority or to any servant of such agent.

132. No person shall— ^KESfui (a) without lawful authority or excuse make or bring aJfoP*"00

into Victoria or assist in making or bringing into ^c0ke

3 "59 Victoria any ticket; or s. 123.

(b) counterfeit or assist in counterfeiting any ticket.

133. No person shall without lawful authority or excuse Restriction on place erase omit or alter or assist in placing erasing omitting or ticket?8

altering any printed written engraved lithographed or stamped ^3759 word letter mark or figure on or from a ticket.

134. (1) In any prosecution for a contravention of the onus of proof. provisions of section one hundred and thirty of this Act, the onus ^ l 7 5 9

of proof that he has not been guilty of such a contravention shall be on the defendant.

(2) Every person who is guilty of a contravention of any Penalties. of the provisions of this Division shall be deemed guilty of an offence and shall on conviction thereof before a court of petty sessions be liable for a first offence to a penalty of not more than

470 1958. Railways. No. 6355

Com­missioners to report accident to Minister. No. 3759 6.126.

Governor In Council may direct formal investigation. No. 3759 8. 127.

Persons by whom the inquiry is to be held.

Inquiry to be held in open court.

Twenty pounds and for a second or subsequent offence to a penalty of not more than Forty pounds or to imprisonment with or without hard labour for a term of not more than three months or to both such penalty and imprisonment.

DIVISION 7. INVESTIGATION OF ACCIDENTS.

135. Where in or about any railway or any works or building connected with any railway or any building or place whether open or enclosed used in working any railway any of the following accidents takes place in the course of working any such railway (that is to say)—

(a) Any accident attended with loss of life or personal injury to any person ; or

(b) Any collision where one of the trains is a passenger train ; or

(c) Any passenger train or any part of a passenger train accidentally leaving the rails ; or

(d) Any accident of a kind not comprised in the foregoing descriptions but which is of such a kind as to be likely to cause loss of life or personal injury—

the Commissioners shall— direct that the earliest information by telegraph post or

otherwise be forwarded to the Minister; and appoint such officers as they may think fit to hold an inquiry

into the matter; and as soon as practicable after such inquiry send to the

Minister full information of the accident and the report of such officers.

136. Where it appears to the Minister either before or after the commencement of any such inquiry that a more formal investigation of the accident and of the causes thereof, and of the circumstances attending the same, is expedient, the Governor in Council may by order direct such investigation to be held, and with respect to such investigation the following provisions shall have effect:—

(1) The Governor in Council may by the same or any subsequent order direct a county court judge stipendiary magistrate or other person or persons named in the same or any subsequent order to hold the investigation with the assistance of the assessors named in the order;

(2) The persons holding any such formal investigation (hereinafter referred to in section one hundred and ninety-four as a " court ") shall hold the same in open court in such manner and under such conditions as they may think most effectual for

1958. Railways. No. 6355 471

ascertaining the causes and circumstances of the accident, and enabling them to make the report in this section mentioned;

(3) They shall for the purpose of such investigation have all the powers of a court of summary jurisdiction when acting as a court in the exercise of its ordinary jurisdiction, and in addition the following powers namely:—

(a) They may enter and inspect any place or building the entry and inspection whereof appears to them requisite for the said purpose;

(b) They may by summons under their hands require the attendance of all such persons as they think fit to call before them and examine for the said purpose, and may for such purpose require answers or returns to such inquiries as they think fit to make;

(c) They may require and enforce the production of all books plans papers and documents which they consider important for the said purpose;

(d) They may administer an oath and require any person examined to make and sign a declaration of the truth of the statements made by him in his examination;

(e) They may allow to any person so summoned not being a person engaged in the railway service or otherwise connected with it such expenses as would be allowed to a witness attending on subpoena before the Supreme Court; and in case of dispute as to the amount to be allowed, they shall refer the same to the Taxing Master of the Supreme Court, who on request in writing under their hands shall ascertain and certify the proper amount of such expenses;

(4) They shall make a report to the Governor in Council stating the causes of the accident and all the circumstances attending the same, and any observations thereon or on the evidence or on any matters arising out of the investigation which they think right to make; and the Governor in Council may cause any such report to be made public in such manner as he thinks expedient.

Powers of persons conducting inquiry.

May personally inspect.

Call witnesses &c.

Call for

&roduction of oofcs &c.

Administer oaths.

Expenses of witnesses.

Persons holding inquiry to make report to Governor in Council.

472 1958. Railways. No. 6355

DIVISION 8. BY-LAWS.

By-iaws may 137.(a) The Commissioners may from time to time make alter N0T759 an<^ repeal by-laws for all or any of the subjects or matters N1 '2* hereinafter mentioned, and may impose penalties not exceeding ss°2(3). One hundred pounds upon any person committing a breach of tcSVuiU any of such by-laws, and every such penalty may be recovered

in a summary manner before any court of petty sessions:— For preventing the commission of any nuisances in or

upon the carriages or in or upon any of the lands stations buildings or piers vested in the Commissioners;

For preventing the emptying of sewage or drainage on to any of the railways or on to any lands stations buildings or piers vested in the Commissioners;

For regulating the exercise of the several powers vested in any pier master;

For regulating the admission of vessels to any pier hereinbefore mentioned and their removal from the same and for the good order and government of such vessels whilst at such pier;

For regulating the use of any such pier; For regulating the shipping and unshipping landing

warehousing stowing depositing and removing of all goods from or at any such station building or pier;

For regulating the conduct of all persons (not being the harbor master or any officer of customs) while upon or in any such station building or pier or while employed at or near the same;

For regulating the use of fires and lights within any vessel which is at any such pier, except within the port of Melbourne or within the area of any harbor trust;

For preventing damage or injury to any vessel or goods at any such station building or pier;

For regulating the duties and conduct of porters cabmen carmen draymen and carriers (not being employes of the Commissioners) employed at any such station building or pier, and fixing the charges to be paid to them for carrying any passengers or goods from or to the same;

For fixing the amount of tolls to be paid by any vessel using any such pier or any crane the property of the Commissioners, and for fixing the amount of tolls to be paid on goods brought to or taken from any vessel using any such pier by lighter or other vessel;

(a) See also Soil Conservation and Land Utilization Act 1958 s. 19.

1958. Railways. No. 6355

For fixing the amount of tolls upon animals and goods received or delivered upon or from any such pier;

For regulating generally the travelling and traffic upon or using and working of the railways and of the stations buildings and piers hereinbefore mentioned, and for the good government and maintenance of order thereon;

For regulating the terms and conditions upon which special trains shall be run;

For regulating the admission of the public to any of the railways and to any of the stations buildings or piers hereinbefore mentioned and for fixing a charge therefor or for dispensing with the same on certain days or for certain times;

For regulating the use of stamps as prepayment upon parcels;

For regulating the sale of tickets at places other than railway stations and the conditions under which such tickets shall be sold;

For regulating the time manner and conditions of loading and unloading rolling-stock by persons other than the Commissioners;

For fixing— (a) the periods after which and in respect of which

demurrage shall be payable including any periods in which the loading or unloading has been delayed by reason of accommodation for rolling-stock not being available—

(i) at the private siding of the consignor or consignee; or

(ii) at any siding of the Commissioners if consignor or consignee is liable for demurrage in respect of other rolling-stock at such siding;

(b) the amounts payable for demurrage and the persons by whom such demurrage shall be payable;

For fixing the charges for warehousing goods and the charges to be paid in respect of parcels and luggage left for transit or for oare or custody, and the conditions upon which they respectively shall be received;

For regulating the disposal of unclaimed goods; For imposing conditions upon which passengers' luggage

shall be carried;

474 1958. Railways. No. 6355

For preventing or regulating bathing or fishing in or shooting over or upon any reservoir or tank connected with any of the railways;

For regulating the carriage of corpses and for prohibiting the carriage of the bodies of persons who have died from contagious diseases;

For prohibiting the conveyance of diseased animals and preventing them from coming upon any station or premises;

For preventing damage or injury to railway stations buildings piers or premises carriages gates fences or any property whatever;

For the issue and the prevention of the abuse of free passes on the railways;

For regulating public or private traffic across any of the said railways on the level thereof and for preventing animals trespassing on any of the railways;

For altering or repealing any by-laws made by the Board of Land and Works with regard to the railways;

Fo r regulating the manner in which public notices shall be advertised and generally with regard to advertising in newspapers and elsewhere;

For facilitating and regulating the insurance of persons travelling on the lines of railway by any accident insurance company now in existence or to be hereafter called into operation;

For regulating the use and working of any private siding connected with a railway.

By-iaw^wbe 138. N o by-law shall have any force or effect until it has Governor In been confirmed by the Governor in Council and until at least one published, week after it has been published in the Government Gazette. No. 3759 s. 129.

production of 139 . The production of a copy of the Government Gazette G°azJuenent containing any by-law whether made before or after the Ni3o759 commencement of this Act shall be prima facie evidence that such

by-law was duly made and confirmed and that it is still in force.

copy of 140. (1 ) A copy of every by-law made by the Commissioners exhibTted&c! whether made before or after the commencement of this Act NoSt3759S sna11 s o * o nS a s s u c^ by-law is in force be kept exhibited or placed s. 131. in placard or book form in some conspicuous place at each station

so as to afford all persons who desire or intend to make use of the railways reasonable facility to become acquainted with the provisions of such by-law whenever such station is open for use by the public.

1958. Railways. No. 6355 475

(2) Every person who destroys damages or defaces or tampers with any copy of a by-law so exhibited or placed shall be liable to a penalty of not more than Five pounds.

141. When the breach of any by-law would be attended fnu

t^?^ce with danger or annoyance to the public or hindrance to any of j.°s

ceesrt0

n

the officers or employes in the lawful use of any of the railways brelchof or of any pier station yard or building, such officers or employes NO^W or any of them may summarily interfere to obviate or remove such »• «2-danger annoyance or hindrance and that without prejudice to any penalty incurred by the breach of any such by-law.

142. Every by-law made confirmed and published as g^f 1 0

aforesaid shall be binding upon and be observed by all persons persons. and shall be sufficient to justify all persons acting under the ^ l ^ 5 9

same.

143. Any person who desires to dispute the validity of any J^J*^0' by-law made under the provisions of this Part or under any &"^majr

corresponding previous enactment if he pays into the Supreme Nor3759

Court the sum of Fifteen pounds as security for the costs of the »• i"*». proceedings hereinafter mentioned, may apply to the said court upon reading the Government Gazette containing such by-law for a rule calling upon the Commissioners to show cause why such by-law should not be quashed for the illegality thereof; and the said court may make such rule absolute or discharge it with or without payment of costs as to the court seems meet.

DIVISION 9. APPOINTMENT, PROMOTION, DISCIPLINE IN AND REGULATION OF THE RAILWAY SERVICE.

Subdivision 1.—Preliminary.

144. Where in any Act relating to the State railways powers Preliminary, and duties with regard to officers or employes are conferred or J ^ T O imposed on the Board or the Commissioners, such powers and duties shall with regard to officers and employes under the Board be exercised only by the Board and shall with regard to officers and employes under the Commissioners be exercised only by the Commissioners; and in the construction of this Division the expression " the Board or the Commissioners " means the Board or the Commissioners (as the case may be).

Subdivision 2.—Examiners.

145. The Governor in Council may appoint from time to time Governor in for each branch of the railway service fit and proper persons to be £££&" may

examiners of candidates for employment in each of such branches examinen»-and also for the examination of employes desiring to be promoted ?°m.5

to any of the higher grades in such railway service, and may accept

476 1958. Railways. No. 6355

the resignation of or remove any of such examiners; such examiners however shall not hold office for a longer period than three years from the date of appointment but shall be eligible for re-appointment.

Power of Board to appoint officers. No. 3759 s. 137.

Salaries.

Staff not to engage in other duties.

Provision for officers and employes of Board being partly employed by Com­missioners.

Power of Com­missioners to appoint officers. No. 3759 s. 138.

Salaries.

Staff not to engage in other duties.

Provision for officers and employes of Com­missioners bring partly employed by the Board.

Subdivision 3.—Appointments and Promotions.

146. (1) The Board shall as hereinafter provided from time to time appoint a chief engineer for railway construction and such engineers surveyors clerks and other officers and employes as the Board thinks necessary for the purposes of this Act and such persons shall hold office during pleasure only.

(2) The Board shall pay such salaries wages and allowances to officers and employes as Parliament appropriates for. that purpose.

(3) No person so appointed or employed shall engage in any employment other than in connexion with the duties of his office.

(4) With the approval of the Minister and subject to such arrangement as he thinks fit for paying the salary or wages of such officer or employe the services of any officer or employe" under the Board may in part be made use of by the Commissioners.

147. (1) The Commissioners shall as hereinafter provided from time to time appoint a secretary and such other heads of branches and officers and employes as they think necessary for the purposes of this Act and such persons shall hold office during pleasure only.

(2) The Commissioners shall pay such salaries wages and allowances to the secretary the heads of branches and officers and employes as Parliament appropriates for that purpose.

(3) No person so appointed or employed shall engage in any employment other than in connexion with the duties of his office.

(4) With the approval of the Minister and subject to such arrangement as he thinks fit for paying the salary or wages of such officer or employe the services of any officer or employe under the Commissioners may in part be made use of by the Board.

Notices of examination for appointment to permanent offices. No. 3759 s. 139

148. (1) The Board or the Commissioners whenever it or they require to employ additional persons in permanent offices in the railway service shall with the approval of the Minister give public notice to persons desiring to present themselves as candidates for examination.

(2) In such public notice the Board or the Commissioners shall state—

(a) The number of persons to be employed and the number required for each branch and the qualifications required in such persons;

1958. Railways. No. 6355 477

(b) That if the number of candidates be not more than twice the number of persons to be employed, they will all be examined by the examiners at a time and place to be notified to them;

(c) That if the number of candidates be more than twice the number or persons to be employed such number of candidates will be reduced by a board of selectors to such number of eligible candidates as such board may think fit not exceeding twice the number of persons to be employed;

(d) That unless otherwise notified all candidates shall present themselves for selection by the board of selectors at a time and place named in such notice;

(e) That the board of selectors will be appointed within seven days before the time so named;

(/) That the board of selectors will not be informed of or acquaint themselves with the names of the candidates or any of them;

(g) That every person who either directly or indirectly attempts to influence any member of the board of selectors in favour of himself or in favour of or against any other person will for ever be disqualified for employment in the railway service;

(h) That each candidate immediately before presenting himself to the board of selectors will be furnished by an officer specified in such notice with a card bearing a number by which number alone he will be known to the board of selectors; and

(i) That the candidates selected by the board of selectors Arrangements x / , , / . . . . . as to country

must present themselves for examination by the candidates, examiners appointed in that behalf at such time and place as may be named in the notice or as may be thereafter notified to them by an officer specified in such notice.

(3) The Board or the Commissioners shall so arrange the times and places when and where candidates are to comply with the conditions of employment provided by this Act, and to present themselves to the board of selectors and the examiners respectively, that persons living in country districts shall have reasonable facility in the part of Victoria in which they reside for competing for such employment without the necessity of attendance in Melbourne.

(4) The Governor in Council shall within seven days before f§g£j* each selection of candidates appoint a board of selectors to consist of three persons.

(5) No person shall be eligible to be appointed on three consecutive boards of selectors, and no two consecutive boards of selectors shall consist entirely of the same persons.

4,78 1958. Railways. No. 6355

(6) Every board of selectors shall strictly comply with the terms of the public notice referred to in this section.

149. Notwithstanding anything in this Act the Commissioners without giving the public notice required by the last preceding section shall from time to time, without probation but subject to such examinations and restrictions (if any) as are prescribed by regulations under this Act, appoint to a permanent office in the railway service any person who immediately before such appointment is in the temporary employment of the Commissioners and who has been temporarily employed by the Commissioners for not less than two years and elects to be so appointed to a permanent office.

orderof 150. If a greater number of candidates than are required precedence lor , , , ° , _ . . . . ^

appointment— by the Board or the Commissioners for appointment obtain determined, certificates from the examiners the secretary to the Board or the

Commissioners shall call such successful candidates together, who shall then and there in his presence draw lots among themselves for the determination of the order of precedence for appointment in which their names shall be placed, and the Board or the Commissioners shall appoint as many persons as are required, taking them in the order of precedence determined as aforesaid and in no other way.

151. The persons in excess of the number required by the Board or the Commissioners as aforesaid shall be eligible for appointment in like order for a period of twelve months then next ensuing from the date of such determination without further examination.

152. (1) All appointments shall be made to the lowest grade in each of the various branches of the railway service and on probation only for a period of six months.

(2) After the period of such probation and upon production of a certificate of fitness from the officer at the head of the branch in which such probationer has been employed and upon proof to the satisfaction of the Board or the Commissioners that all the provisions of this Part have been complied with, such appointment may be confirmed by the Board or the Commissioners.

Exception. (3) The Board or the Commissioners shall notwithstanding have the power to appoint to any position or grade if it or they think fit without examination as aforesaid persons of known ability not engaged in the railway service. No such appointment shall be made unless the Board or the Commissioners have previously certified under their seal to the Governor in Council that there is no person in the Railway service fit and qualified to be promoted to such an appointment and have obtained his sanction to such appointment.

Appointment of certain persons to permanent offices. No. 5195 s. 2.

Excess eligible without further examination. No. 3759 s. 141 (2) .

Appointments to be to lowest grade and on probation. No. 3759 s. 142; No. 4327 s. 2.

1958. Railways. N o . 6355 479

( 4 ) Notwithstanding anything in the foregoing provisions of lov">?*° this section, the Commissioners with the consent of the Board ffirsin may if they think fit without examination appoint any person serVuleunder who was at the commencement of the Railways Act 1935 an officer bny position

or employe in the railway service under the Board to any position S/raHwiy or grade in the railway service under the Commissioners. thevcom-nder

missioners. 25th November, 1935.

153. ( 1 ) When any vacancy occurs in any office in any How branch of the railway service not open for competitive Sreto°be,ns

examination as hereinafter provided, it shall be filled if possible ^adcJ159 by the promot ion of some officer next in rank position or grade s.°44. to the vacant office, and no such officer shall be passed over unless the head of his branch in writing so advises the Board or the Commissioners.

( 2 ) N o officer shall be passed over without being afforded an opportunity of showing cause to the Board or the Commissioners, whose decision upon the mat ter shall be final.

154. ( 1 ) Whenever it appears necessary to make promotions Competitive

to the higher grades of the railway service, the Board or the ££m i n a t l o n s

Commissioners shall cause competitive examinations to be held N0"-"?™"3' by such examiners appointed as aforesaid. s.u5.

(2) The names of the competitors who have satisfied the Register for examiners that they possess the necessary qualifications shall promoUons-be registered by the Board or the Commissioners in a book kept for that purpose in the order of their merit.

(3) No promotions to the offices fixed by regulations as open for competitive examinations shall be made except from the persons whose names are so registered and in the order of such registration, taking the name first registered and following in regular sequence.

155. ( 1 ) Notwithstanding anything contained in this Par t saiary&cof neither the Board nor the Commissioners shall without the oncers ana-sanction of the Governor in Counc i l— employes not

. . . . Increased

(a) except pursuant to a determination or award made without . * -r i i , i A < / - .cn authority r.f

under the Labour and Industry Act 1958 or any Governors corresponding previous enactment or under any N""",1^, Act of the Commonweal th relating to conciliation ^f53i and arbitration, increase the salary or wages of any s n n (2), officer or employe whose annual salary or wages is s.°4

5(a')8. more than One thousand five hundred pounds ; or

(b) appoint any person to any office the annual salary or wages of which is more than One thousand five hundred pounds.

480 1958. Railways. No. 6355

(2) So far as concerns officers and employes whose salaries or wages are specifically fixed by Parliament neither the Board nor the Commissioners shall increase any such salaries or wages without the authority of Parliament.

Appointments &c. of higher officers to be subject to Governor in Council. No. 3759 s. 147; No. 5533 s.2(3), No. 5918 s. 14 (6) (ii).

156. If the Board or the Commissioners propose the appointment of any person to any office the annual salary or wages of which is more than One thousand five hundred pounds and the Governor in Council determines that an appointment is necessary but does not approve of the person so proposed the Minister shall in writing request the Board or the Commissioners to propose some other person within a time specified by him and the Board or the Commissioners shall thereupon propose some other person.

Removal of officers. No. 3759 s. 148.

Subdivision 4.—Removal, Forfeiture, Suspension, and Dismissal.

157. The Board or the Commissioners may remove any secretary or head of a branch or any officer or employe.

Officer taking fees to lose his office. No. 3759 s. 149.

158. Every officer or employe employed by the Board or the Commissioners who—

(a) exacts takes or accepts on account of anything done by virtue of his office or in relation to the functions of the Board or the Commissioners any fee or reward whatsoever other than the salary wages rewards or allowances allowed or sanctioned by Parliament; or

(b) is in anywise concerned or interested in any bargain or contract made by or on the behalf of the Board or the Commissioners otherwise than as a member only but not as a director or officer of any registered incorporated or joint-stock company with whom any such bargain or contract may be made—

shall be removed from office and shall be incapable of being afterwards employed by the Board or the Commissioners, and shall also be guilty of a misdemeanour.

Officers becoming bankrupt. No. 3759 s. 150.

159. If any officer or employe of the Commissioners becomes bankrupt or insolvent or applies to take the benefit of any Act now or hereafter to be in force for the relief of bankrupt or insolvent debtors, or by any deed or other writing compounds with his creditors, or makes an assignment of his salary for their benefit, he shall be deemed to have forfeited his office unless he satisfies the Commissioners that such embarrassment has not been caused or attended by any fraud extravagance or dishonorable conduct.

1958. Railways. No . 6355 481

160. The Board or the Commissioners may discontinue the offices of or appoint others in the room of such officers as are removed or die or resign or have forfeited their offices.

Powers of Board or Com­missioners on vacation of offices. No. 3759 s. 151.

Power to suspend fine or reduce in rank. No. 3759 s. 152.

161. ( 1 ) The officer at the head of any branch of the railway service shall have the power to suspend, to fine in a sum not exceeding Five pounds, or to reduce in rank position or grade and pay under regulations to be made in that behalf any officer or employe in his branch for breach of the rules or of any regulation of the railway service or for misconduct, but such officer or employe" shall have the right to appeal in the manner hereinafter provided.

( 2 ) Any officer in charge of a railway station section or E1m,ploylf

s

depot may temporarily suspend at such station section or depot misconduct-

any officer or employe of inferior rank position or grade to his wuh.deaU

own until the officer at the head of the branch has dealt with the suspension of such officer or employe.

162. ( 1 ) N o officer or employe of the Board or the Employes not Commissioners shall be liable to dismissal or any disability for dismissal for

refusing on conscientious grounds to work on any Sunday except workS"10

in cases of necessity.

( 2 ) Any officer or employe who so refuses shall be subject to a proportionate reduction in his salary or wages on account of such refusal: Provided that this provision shall not apply to any officer or employe whose duties do not require him to work on Sunday.

Sundays. No. 3759 s. 153.

Subdivision 5.—Charges and Appeals.

163. The Board may investigate hear and determine any EmDioy& charge brought against any officer or employe of the Board for the misconduct-

breach of any rule or regulation or for misconduct and may w°tndealt

suspend such officer or employe, or, if he has been already N0.3759 suspended by the officer at the head of his branch, may further suspend him for a period not exceeding six months, without salary or wages, or may inflict a fine to be deducted from his pay or may reduce him in position or pay or both or may dismiss him, and every such decision shall be final.

164. ( 1 ) The Board shall hear and determine any appeal Board to hear made by an officer or employe of the Board pursuant to the N T ^ M provisions of this Act ; and its decision shall be final. »•»»•

(2 ) Every such appeal shall be lodged with the Board within seven days after the date of the decision which is appealed against, and shall be heard within thirty days from the date of the appeal being so lodged.

VOL. VII.—16

482 1958. Railways. No. 6355

Members of Board may administer oaths. No. 3759 s. 156.

165. The member or members of the Board by or before whom any charge or appeal is heard—

(a) may administer an oath to any witness at such hearing; and

(b) shall on the application of the officer or employe administer such oath to all witnesses in any case the decision of which may result in the dismissal of the officer or employe.

Quorum. Appeals against fines. No. 3759 s. 157.

166. (1) Any one member of the Board may hear any appeal made by an officer or employe of the Board against a fine inflicted by the officer at the head of a branch and may confirm or modify the decision of such officer, or make such order as he thinks fit.

(2) The decision of such member shall be deemed to be the decision of the Board.

Quorum. Exercise of other powers. No. 3759 s. 158.

167. (1) Any two or more members of the Board— (a) may investigate, hear, and determine any charge; (b) may hear, confirm, modify, or otherwise finally

determine any other appeal on application by any officer or employe of the Board; and

(c) may review, confirm, modify, or otherwise finally determine any decision of any officer of the Board.

But no officer or employe' shall be dismissed unless two members concur in the determination to dismiss him.

(2) The decision of such two or more members shall be the decision of the Board.

Interpretation. No. 3759 s. 159; No. 6183 s. 2.

" Chairman."

"Com­missioners' representa­tive."

' Member."

" Officers and employes' representa­tive."

168. In the next seven succeeding sections of this Act unless inconsistent with the context or subject-matter—

" Chairman" means the chairman of the Board of Discipline constituted under section one hundred and sixty-nine of this Act and includes his deputy when acting as chairman.

" Commissioners' representative" means the member of the Board of Discipline who Is nominated by the Commissioners to be their representative thereon, and includes his deputy when acting as a member of the said Board.

"Member" means member of the Board of Discipline other than the chairman.

" Officers and employes', representative" means the member of the Board of Discipline who is nominated pursuant to section one hundred and sixty-nine of this Act by the officers and employes in the railway

1958. Railways. No . 6355 483

service to be their representative on the said Board, and includes any of his deputies when acting as a member of the said Board.

" Prescribed " means prescribed by the regulations. " Prescribed."

" Railway serv ice" means employment under the " Railwiy Commissioners. service.-

" Regulations " means regulations made under section one " Reguia-hundred and seventy-five of this Act. tioD*"

169. ( 1 ) There shall be a Board to be called " The Board of gpgJggH Discipline " (in the next six succeeding sections referred to as °f Discipline. " the said Board " ) which shall consist of a chairman and two £°6o"9

members.

(2) (a) The chairman of the said Board shall be a person Qualifications appointed by the Governor in Council, and members.

(b) One member of the said Board shall be an officer in the railway service, shall be nominated by the Commissioners and shall be their representative on the said Board.

(c) One member of the said Board shall be an officer or employe in the railway service, shall be nominated as hereinafter provided by the officers and employes in the railway service, and shall be the representative of such officers and employes on the said Board.

(3) The chairman of the said Board— chairman of v ' Board.

(a) shall be a person who is or has been an officer or employe in the railway service and whose experience and suitability for the appointment are certified to by the Commissioners;

(b) if at the time of his appointment as chairman he is an officer or employe in the railway service, shall upon his appointment as chairman cease by virtue of this enactment to hold his office in the railway service;

(c) shall hold office as chairman during good behaviour for a term of five years, and shall be entitled so to hold office until his successor is appointed; and

(d) shall be paid such salary as the Governor in Council &»'?ry°f before or at the time of the appointment or from time to time thereafter determines.

(4) No person shall by reason of his being appointed as Rights &c. on chairman of the said Board be deprived of any right or suffer fromranway the loss of any privilege or immunity which would have accrued affected oy

or did accrue or which would have been or was granted to him ScffiSan!: upon his retirement from the railway service.

484 1958. Railways. No. 6355

As to retiring allowances <sc of person appointed chairman.

Deputy of chairman during temporary absence.

Tenure of members.

(5) If any person appointed as chairman of the said Board— (a) is an officer or employe in the railway service who

upon his retirement from the said service would be entitled to a retiring allowance the said person shall as from the date upon which he is appointed as chairman be entitled to receive such retiring allowance in addition to his salary as chairman; and for that purpose and for the purpose of computing the amount of such retiring allowance the said person shall be deemed to have retired from the said service pursuant to the provisions of subdivision eight of Division nine of Part III. of this Act upon the date upon which he was appointed as chairman; or

(b) has retired from the railway service and is in receipt of a retiring allowance the said person shall be entitled to continue to receive such retiring allowance during his tenure of office as chairman, and the said retiring allowance shall not merge in his salary as chairman.

(6) The Governor in Council may from time to time in the case of the illness or temporary absence of the chairman appoint to act as the deputy of the chairman during such illness or absence some person—

(a) who has been an officer or employ6 in the railway service and who has retired therefrom; and

(b) whose experience and suitability for the appointment are certified to by the Commissioners—

and every such deputy shall while so acting have the powers and perform the duties of the chairman, and shall be paid such fee as is determined by the Governor in Council, and the provisions of sub-section (4) and of paragraph (b) of sub-section (5) of this section with such alterations modifications and substitutions as are necessary shall extend and apply to every such deputy.

(7) Subject to this subdivision each member of the said Board shall hold office as such member for a term of three years, and shall be entitled so to hold office until his successor is appointed or nominated.

(8) The present members of the Board of Discipline existing at the commencement of this Act shall for the respective terms for which they were appointed or nominated be deemed to be members of the said Board as if appointed or nominated under this Act.

Com­missioners' representntive not to sit In certain caws. No. 3759 s.161.

170. (1) The Commissioners' representative shall not sit on the said Board during the hearing of any charge made against or appeal brought by any officer or employe" in the branch of the railway service in which the said representative is employed.

1958. Railways. No. 6355 485

representative.

(2) The Commissioners may from time to time in case of the Provision in illness or temporary absence of the Commissioners' representative illness or nominate an officer in the railway service to act as the deputy absence-of the said representative; but no such deputy shall sit on the said Board at the hearing of any charge made against or appeal brought by any officer or employe in the branch of the railway service in which such deputy is employed.

(3) In the event of the said Board being required to hear a in case of his charge made against or appeal brought by an officer or employe eligible to sit. in the branch of the railway service in which the Commissioners' representative or the deputy for the time being acting in the place of such representative is employed the Commissioners shall nominate to act on the said Board as their representative at the hearing of such charge or appeal an officer who is in a branch of the railway service other than that in which the officer or employe charged or bringing the appeal is employed.

(4) Any person appointed to act on the said Board pursuant Powers of. to the provisions of the last preceding sub-section of this section ForcSm-0"08

shall while so acting have the powers and perform the duties of the KpSsmutive. Commissioners' representative.

(5) The officers and employes in the railway service shall in Deputies of the manner hereinafter provided nominate two deputies (being 2S"oyevcl

officers or employes in the railway service) to act in the place of the officers and employes' representative; and in the case of the illness or temporary absence of the said representative either of such deputies may act in his place on the said Board.

(6) In the event of any dispute between the said deputies as to which of them is to act in the place of the officers and employes' representative the deputy who obtained the greatest number of votes at the election of such deputies for nomination as deputies shall so act.

(7) Every person nominated as a deputy pursuant to the provisions of sub-section (5) of this section shall subject to this subdivision hold office as such deputy for a term of three years and be entitled so to hold office until his successor is nominated.

(8) Any deputy of any member shall while he is acting on the Powers and said Board in the place of the member for whom he is a deputy depwies'of have the powers and perform the duties of such member. member*.

(9) If any member or any deputy of the officers and employes' Forfeiture of representative on the said Board dies or resigns his office as such member or deputy or is absent without leave obtained pursuant to the regulations from more than three consecutive sittings of the said Board, or ceases from any cause to be an officer or employ^ in the railway service, his office as such member or deputy (as the case may be) shall thereupon become vacant.

office.

486 1958. Railways. No. 6355

Eligibility for re­appointment in.

Extraordinary vacancies.

Term of member nominated to fill vacancy.

Failure to nominate.

Term of office.

Procedure &c. as to nominations.

Ballot.

(10) The chairman shall be eligible for re-appointment and every member (so long as such member is an officer or employe in the railway service) shall be eligible for re-nomination to the said Board.

(11) Any vacancy in the office of chairman or member of the said Board or of any deputy of the officers and employes' representative thereon occasioned by any cause whatsoever other than retirement at the end of his term of office shall be filled—

(a) in the case of the chairman—by the appointment by the Governor in Council of a new chairman whose experience and suitability for the appointment are certified to by the Commissioners; or

(b) in the case of the Commissioners' representative—by the nomination of a new representative by the Commissioners; or

(c) in the case of the officers and employes' representative or of any deputy of such representative—by the nomination of a new representative or deputy (as the case may be) by the officers and employes.

Each new member or deputy nominated pursuant to this subsection shall hold office as long as the person in whose place he was nominated would have held office had he continued in office and no longer.

(12) If from any cause a member or any deputy of a member is not within such time as the Governor in Council considers reasonable nominated as a member of the said Board or as any deputy of a member thereof or for the purpose of filling any vacancy in the office of a member or of any deputy of a member then the Governor in Council may appoint any person being an officer or employe in the railway service to be a member of the said Board or deputy aforesaid instead of the member or deputy who should have been nominated as aforesaid, and the person so appointed shall be deemed for all purposes to have been duly nominated.

Any person appointed pursuant to the provisions of this sub-section to be a member of the said Board or deputy of a member or (as the case may be) to fill a vacancy shall hold office for such term not exceeding three years as the Governor in Council upon the appointment determines.

(13) The following provisions shall have effect with respect to the nomination by the officers and employes in the railway service of a member of the said Board to be the representative on the said Board of the said officers and employes or of any deputy of such member:—

(a) The person to be nominated shall be elected by a ballot of the said officers and employes;

1958. Railways. No. 6355 487

(b) For the purposes of any such election every officer Right to or employe in the railway service shall be entitled to a vote;

( c ) E v e r y SUCh b a l l o t Shall Regulation of x ' J ballot &c.

(i) be conducted in all respects whatsoever in such manner as is prescribed; and

(ii) be held at such times as are prescribed and under the direction of such returning officers as are appointed by the Governor in Council; and

(d) The person, or in the case of the election of two deputies, the persons declared by the said returning officers to have in accordance with regulations to be made for that purpose obtained the greatest number of votes at any such election shall be respectively deemed to have been duly nominated by the said officers and employes as such member deputy or deputies (as the case may be).

(14) The appointment of the chairman and the nomination Notification of every member of the said Board and of every deputy of any memSc."1' member thereof shall be notified in the Government Gazette and shall take effect as from the date of such notification.

(15) In the event of a vacancy occurring on the said Board 2S."|j15J,t0

the said Board shall not act until such vacancy is filled. vacancy.

171. (1) The chairman of the said Board and his deputy shall Expenses ot be paid such expenses as are from time to time prescribed by the No.'r3™^ regulations. s-162-

(2) The cost of the said Board shall be deemed to be included g 0 ^ in and shall form part of the working expenses of the Victorian railways, and for the purposes of this section shall include—

(a) the salary and expenses of the chairman and the fees and expenses of his deputy;

(b) the expenses of the members and of their deputies and such part of their salaries or wages as is proportionate to the time involved in carrying out their functions on the said Board;

(c) office expenses; (d) the salaries and wages of officers and employes in

the railway service when appearing as witnesses before the said Board, and whether called by the said Board or by the Commissioners or by any officer or employe charged or by any appellant; and

(e) (to the extent and in the classes of cases prescribed) the fees and expenses of any witnesses.

488 1958. Railways. No. 6355

Expenses of witnesses.

(3) Witnesses whether called by the said Board or by the Commissioners or by any officer or employe charged or by any appellant shall be entitled (in the classes of cases prescribed) to receive fees and expenses in accordance with the scales fixed by the regulations.

(4) In the case of any officer or employe in the railway service any such expenses shall (in the classes of cases prescribed) be paid in addition to the usual salary or wages of such officer or employe.

Employes jiui'ty of misconduct— licm dealt with by Board of Discipline. No. 3759 s. 163.

Board of Discipline to hear appeals.

Time for appeal.

Place of meeting.

Majority decision.

172. (1) The said Board may investigate hear and determine any charge brought against any officer or employe of the Commissioners for a breach of any rule or regulation or for misconduct, and may suspend such officer or employe, or, if he has been already suspended by the officer at the head of his branch or other officer, may further suspend him for a period not exceeding six months, without salary or wages, or may inflict a fine to be deducted from his pay, or may reduce him in position or pay or both, or may dismiss him.

(2) The said Board shall hear and determine any appeal made by an officer or employe of the Commissioners pursuant to the provisions of subsection (1) of section one hundred and sixty-one of this Act.

(3) Every such appeal shall be lodged with the Secretary for Railways within seven days after the date of the decision which is appealed against, and shall be heard by the said Board within thirty days from the date of the appeal being so lodged.

(4) The said Board shall sit in Melbourne for the hearing of charges and appeals but the chairman in order to obviate undue expense or inconvenience may in any particular case order that the said Board shall sit elsewhere than in Melbourne.

(5) The decision of the majority of the said Board shall be the decision of the said Board.

Powers of Board of Discipline as to Investigation &c. No. 3759 s. 164.

173. (1) For the purposes of investigating hearing and determining any charge or hearing and determining any appeal the said Board shall have all the powers conferred by sections fourteen to sixteen of the Evidence Act 1958 upon a board appointed by the Governor in Council.

(2) If the offence as to which the charge or appeal is made is one involving dismissal from the service or reduction of rank position grade or pay, the appellant or officer or employe charged shall be entitled to have all witnesses examined on oath, and also to be represented by a barrister and solicitor or agent, who may examine witnesses and address the Board of Discipline on his behalf.

1958. Railways. No. 6355 489

(3) The said Board may confirm or modify any decision Pon*

errst°

appealed against or make such order therein as it thinks fit and modify10' on confirming any such decision may make such additional order deciSKm-thereon as in the ci rcumstances of the case it considers is war ran ted .

174. ( 1 ) Every decision of the said Board shall be final and ^ ^ conclusive unless punishment is thereby imposed involving goners from dismissal or reduct ion of r ank position grade or pay, in which D?sacipMne. event the accused may within seven days after being informed of ^°^59

such decision appeal therefrom to the Commissioners.

(2) Thereupon the Commissioners may hear such appeal and may confirm or modify such decision or may otherwise determine such appeal, and any such determination shall be final and conclusive. In the hearing of such appeal the appellant shall have the like rights and privileges as he had before the said Board and the Commissioners may administer an oath to any witness at such hearing.

175. ( 1 ) T h e Governor in Counci l m a y m a k e regulat ions Regulations, for or with respect t o — J?"**"9

(a) regulating the proceedings of the said Board; (b) regulating the grant of leave of absence to the

chairman and members of the said Board and to the deputies of the officers and employes' representative;

(c) the expenses of the chairman and his deputy and of the members of the said Board and their deputies;

(d) prescribing the cases in which fees and expenses may be allowed to witnesses attending before the said Board, and fixing the scales in accordance with which such fees and expenses are to be payable;

(e) prescribing the cases in which an officer or employe in the railway service attending before the said Board upon the hearing of a charge made against him or as an appellant or as a witness may be paid his usual salary or wages in respect of the time involved in such attendance;

(/) prescribing the mode in which the said Board may deal with appeals which in its opinion are frivolous;

(g) prescribing all things necessary or preliminary or incidental to the nomination of members of the said Board and their deputies, including the nomination of candidates, the times at which and the manner in which any elections are to be conducted, preferential voting, voting by post, and the appointment powers and duties of returning officers; and

490 1958. Railways. No. 6355

(h) generally, all matters which are necessary or convenient to be prescribed for carrying the last seven preceding sections into effect.

Publication. (2 ) All such regulations shall be published in the Government Gazette and shall be laid before both Houses of Parliament within fourteen days after the making thereof if Parliament is then sitting and if Parliament is not then sitting then within fourteen days after the next meeting of Parliament.

Commis­sioners to take security from officers intrusted with money. No. 3759 s. 167.

Subdivision 6.—Officers in Position of Trust.

176. (1) Before any person intrusted with the custody and control of moneys enters upon his office, the Board or the Commissioners shall take sufficient security from him for the faithful execution of his office.

(2 ) Such security shall be in lieu of any security required to be given by the Audit Act 1958; and the security may be that of any incorporated company or guarantee society approved of by the Board or the Commissioners and may be in such form as it or they may by regulations from time to time direct.

Officers to account on demand. No. 3759 s. 168.

Terms of account.

Payment.

177. (1) Every officer or employe of the Board or of the Commissioners shall, from time to time, when required by the Board or the Commissioners, make out and deliver to the Board or the Commissioners or to any person appointed by it or them for that purpose, a true and faithful account in writing under his hand of all moneys received by him on behalf of the Board or the Commissioners.

(2) Such account shall state how, and to whom, and for what purpose, such moneys have been disposed of; and together with such account such officer or employe shall deliver the vouchers and receipts for such payments.

(3 ) Every such officer or employe shall pay to the Board or the Commissioners, or to any person appointed by it or them to receive the same, all moneys which appear to be owing from him upon the balance of such account.

Officers failing to account. No. 3759 s. 169.

178. (1 ) If any officer or employe fails— (a) to render such account; or (b) to produce and deliver up all the vouchers and receipts

relating to the same in his possession or power; or (c) to pay the balance thereof when required; or (d) within five days after being thereunto required, to

deliver up to the Board or the Commissioners or to any person appointed by it or them to receive the same, all papers and writings, property, effects,

1958. Railways. No. 6355 *9\

matters and things in his possession or power relating to the execution of this Act or belonging to the Board or the Commissioners—

then, on complaint thereof being made to a justice, such justice shall summon such officer or employe to appear before a court of petty sessions at a time and place to be set forth in such summons to answer such charge.

(2) Upon the appearance of such officer or employe or in his Procedure, absence upon proof that such summons was personally served upon him or left at his last-known place of abode such court of petty sessions may hear and determine the matter in a summary way and may adjust and declare the balance owing by such officer or employe.

(3) If it appears, either upon confession of such officer or order may employe or upon evidence or upon inspection of the account that *" ma"' any moneys of the Board or the Commissioners are in the hands of such officer or employe or owing by him to the Board or the Commissioners, such court of petty sessions may order such offender to pay the same, and may further order that if he fails forthwith to pay the same they shall be levied by distress and in default thereof that the offender be committed to gaol, there to remain without bail for a term of not more than three months unless the same are sooner paid.

(4) If any officer or employe neglects or refuses to make out officers any such account in writing or to produce and deliver to the court account or of petty sessions the several vouchers and receipts relating thereto books &? or to deliver up any books papers or writings property effects matters or things in his possession or power belonging to the Board or the Commissioners, such court of petty sessions may lawfully commit such offender to gaol, there to remain until he has delivered up all the vouchers and receipts (if any) in his possession or power belonging to the Board or the Commissioners.

(5) If any member of the Board or any Commissioner Or Warrant may other person acting on behalf of the Board or the Commissioners ufe'tSif1 'n

makes an oath before a justice that he has good reason to believe absconding' upon grounds to be stated in his deposition and does believe that officer-it is the intention of any such officer or employe as aforesaid to abscond or that he has absconded, such justice may issue a warrant in the first instance for bringing such officer or employe before a court of petty sessions as aforesaid. But no person executing such warrant shall keep such officer or employe in custody longer than forty-eight hours without bringing him before some justice who shall either discharge such officer or employe if he thinks there is no sufficient ground for his detention or order him to be detained in custody so as to be brought before a court of petty

492 1958. Railways. No. 6355

sessions at a time and place to be named in such order unless such offender gives bail to the satisfaction of such justice for his appearance before such court to answer the complaint of the Board or the Commissioners.

Commitment (6) No such proceeding against or dealing with any such d£5:n0arge officer or employe shall deprive the Board or the Commissioners sureties. 0f a n y r e m e d y which they might otherwise have against any surety

of such officer or employe.

Sworn weighers. No. 3759 s. 170.

Subdivision 7.—Sworn Weighers.

179. (1 ) The Commissioners may appoint sworn weighers to weigh goods and live stock carried or intended to be carried over the Victorian railways.

(2) Every person appointed a sworn weigher under this Act shall before entering upon the duties of his office take and subscribe before a county court judge or a stipendiary magistrate an oath or if he object to take an oath an affirmation to the following effect(a):—

I swear by Almighty God (or affirm) that I will, faithfully honestly and truly and to the best of my skill and ability weigh all goods and live stock carried or intended to be carried on the Victorian railways intrusted to me to weigh and that I will record in every weighbridge book form or certificate kept issued or given by me in respect of such goods and live stock no weight other than the true weights as ascertained by me.

(3) The weight set out in every weighbridge book form or certificate bona fide kept given or issued by a sworn weigher in respect of any goods or live stock intrusted for the purpose aforesaid to such weigher shall for determining the question of weight in all transactions with the railways in respect of such goods or live stock be accepted as the correct weight of such goods or live stock.

(4) Every sworn weigher who is guilty of any nonfeasance misfeasance or malfeasance in the discharge of the duties of his office shall in addition to any liability for damages that he may incur to any person prejudiced by his misconduct or default be guilty of an offence and shall on conviction before a court of petty sessions be liable to imprisonment for a term of not more than one year and to a penalty of not more than Fifty pounds.

(5) The Commissioners may at any time remove any sworn weigher from office.

(a) See the Evidence Act 1958, section 100, as to the mode of administering the oath.

1958. Railways. No. 6355 493

(6) The Commissioners shall subject to the payment of such charges as may be fixed by by-law weigh on a weighbridge all • grain in truck-loads consigned for delivery at Williamstown Pier Geelong Pier Port Melbourne Pier, or the Victoria Dock at Melbourne, or at any other place the Commissioners may determine, and shall furnish a certificate of the total weight of the grain and of the bags containing the same, as so ascertained for both the consignor and the consignee of the grain.

Subdivision 8.—Leave of Absence, Retirement, Compensation and Retiring Allowances.

180. Notwithstanding anything contained in this Act, neither Leave of

the Board nor the Commissioners shall grant to any officer or ?£uoCex1e'ed employe any leave of absence or furlough for longer or more t

t0iap\1

ab1u°wed

frequent periods or on terms more favorable than those prescribed service-for officers of the public service. "°iiV.59

181. (1) Daily paid employes (that is to say persons Sick leave for

employed by the Board or the Commissioners in the railway ?a"wapyaia

service at other than an annual salary) who are incapacitated for employes, duty through illness or physical disabilities (other than injuries No-5172si

or disease for which compensation is payable under the provisions of paragraph (d) of sub-section (1) of section one hundred and nineteen of this Act or the Workers Compensation Act 1958) shall be entitled to sick leave, with pay, at the same rate as employes of the Commissioners who receive an annual salary.

(2) Any sick leave credits accumulated for any daily paid saving of employe as at the first day of July One thousand nine hundred and accumulated

forty-six pursuant to regulations made under the Railways (Sick STM&SI0,

Leave) Act 1940 or under any grant of the Board or the Commissioners referred to in sub-section (2) of section two of that Act shall be deemed to have so accumulated for the purposes of this Act, but save as aforesaid no sick leave shall be deemed to have accumulated as at that date for any daily paid employe.

(3) Nothing in section one hundred and eight of this Act saving, shall be read or construed so as to require the payment to the Commissioners of any moneys pursuant to that section in respect of any matter or thing arising as the result of the operation of this section.

182. (1) Every officer and employe in the railway service who has attained the age of sixty years shall be entitled, if he desires so to do, to retire from the railway service, but any such officer or employe may (unless called upon to retire as hereinafter provided) continue in the railway service until he attains the age of sixty-five years.

Officers and employes between sixty and sixty-five years of age entitled or may be called upon to retire. No. 3759 3. 172; No. 5361 s. 2.

494 1958. Railways. No. 6355

(2) If any such officer or employe continues in the railway service after he has attained the age of sixty-three years he may at any time before he attains the age of sixty-five years be called upon by the Board or the Commissioners to retire; and every such officer or employe so called upon to retire shall retire accordingly.

Officers on attaining tbe age of sixty-five to retire unless called upon to continue. No. 3759 s. 173.

183. Every officer or employe in the railway service whether appointed before or after the commencement of this Act, shall retire from the railway service on attaining the age of sixty-five years unless notwithstanding his age he is directed to continue to perform his duty in the railway service as hereinafter provided and is able and willing so to do.

Officers of age of sixty-five may be continued in railway service by Governor in Council. No. 3759 s. 174.

184. The Governor in Council may notwithstanding that any officer or employe has attained the age of sixty-five years (if the Board or the Commissioners certify that in the interests of the railway service it is desirable that such officer or employe should continue in the performance of the duties of his office or of any office in the railway service to which he may be appointed and if such officer or employe is able and willing so to do) from time to time direct such officer or employe to continue in the railway service for such fixed time not exceeding twelve months (as the Governor in Council in each case directs) or during pleasure.

Officers and employes to be deemed to have been appointed by Commis­sioners.

No. 3759 s. 175.

185. Every officer and employe holding office in the Railway Department at the time of the passing of The Victorian Railways Commissioners Act 1883 shall be entitled to compensation or retiring allowance to be computed under the provisions of the Act No. 160 and have his rights privileges and immunities saved to him as if such first-mentioned Act had not been passed, but shall for the purposes of this Act be deemed to have been appointed by the Board or the Commissioners (as the case may be) without any other or further appointment.

Pension and compensation rights of persons within the provisions of the Railway Service Act 1911. No. 3759 s. 176.

186. (1) Where any person, who pursuant to the provisions of the Railway Service Act 1911 was restored to an inchoate right to pension or compensation, is or may hereafter be entitled to pension or compensation—

(a) such pension shall be computed— (i) for the period of his service both before

and after his reinstatement and until his retirement; and

(ii) on an average annual wage or salary not higher than that received by him during the three years next preceding the date of his retirement:

1958. Railways. No. 6355 495

Provided that in computing such pension there shall be deducted from his period of service a number of years corresponding with the amount of the compensation (if any) received by him before the twentieth day of October One thousand nine hundred and eleven other than a gratuity paid to him in consequence of injury received;

(b) such compensation shall be computed— (i) for the period of his service both before

and after his reinstatement and until his retirement; and

(ii) on a wage or salary not higher than that received by him on the date of his retirement:

Provided that from the amount of such compensation there shall be deducted the compensation (if any) received by him before the twentieth day of October One thousand nine hundred and eleven other than a gratuity paid to him in consequence of injury received.

(2) For the purposes only of computing any pension or compensation of any person to whom this section applies such person shall be deemed and taken to have been on leave of absence without pay during the period from the eighth day of May One thousand nine hundred and three to the date of his reinstatement in the railway service.

(3) In this section— " Compensation " includes gratuity; and " Pension " includes superannuation or retiring allowance.

187.(a) (1) Every officer and employe in the railway service Furlough, who has been employed in that service for a period of or for NS'5101L'i: periods aggregating twenty years shall be entitled in accordance with regulations made under this Act to be granted by the Board or the Commissioners (as the case may be) twenty-six weeks long service leave with pay in respect of that period of twenty years service and six and a half weeks long service leave with pay in respect of each additional period of five years completed service.

(2) Where— (a) on account of age or ill health an officer or employe

retires; or (b) an officer or employe dies; or

(a) See also Part IV. of the Coal Mines Act 1958.

1958. Railways. No. 6355

(c) the appointment of a female officer is terminated on account of or in anticipation of her marriage which takes place after the commencement of this Act—

that officer or employe shall in accordance with the regulations made under this Act be entitled, or (in the case of death) shall be deemed to have been entitled, to be granted by the Board or the Commissioners (as the case may be)—

where the completed years of service are not less than five but are less than twenty, then in respect of such completed years of service;

where the years of service are more than twenty, then (in addition to any entitlement under sub-section (1) of this section) in respect of such completed years of service (not exceeding four) as exceed the next lower multiple of five—

long service leave with pay on the basis of one-twentieth of twenty-six weeks leave for each such completed year.

(3) The Board or the Commissioners (as the case may be) shall have discretion as to the time of granting any leave under this section so that no service will be unduly affected by the granting of such leave to numbers of officers or employes at or about the same time.

(4) Where— (a) on account of age or ill health an officer or employe"

retires; or (6) the services of an officer or employe" are terminated

by the Board or the Commissioners (as the case may be) because his services are no longer necessary as being redundant—

the Board or the Commissioners (as the case may be) shall grant to him pay in lieu of any long service leave due to him.

(5) Where the appointment of any female officer is terminated on account of or in anticipation of her marriage, the Board or the Commissioners (as the case may be) on such marriage or in such other special circumstances as the Board or the Commissioners (as the case may be) in its or their discretion determines or determine shall grant to her pay in lieu of any long service leave due to her.

(6) Where an officer or employe entitled to long service leave or to pay in lieu thereof dies before or while taking such leave or (as the case may be) before such pay in lieu is paid the Board or the Commissioners (as the case may be) shall to the extent that pay in lieu thereof has not already been paid to that officer

1958. Railways. No. 6355 497

or employe grant pay in lieu of the whole or part of the leave not taken or (as the case may be) grant the pay in lieu to the legal personal representative of the deceased officer or employe.

(7) (a) The nature of the service and the computation of the period of service which entitles officers and employes to be granted long service leave and the method of computing pay under this section shall be as prescribed by regulations made under this Act and, without affecting the generality of the foregoing, such regulations may provide that service in any prescribed office under the Crown or with a Public or Governmental Authority or service in any office in the service of the Commonwealth of Australia or of any other Australian State shall to the extent prescribed be taken into account in computing the period of service.

(b) Notwithstanding anything in paragraph (a) of this sub-section where an employe employed at the State Coal Mine has before being so employed had a period of employment in the coal mining industry in the service of an employer bound by an industrial award providing for long service leave, that period of employment shall, to the extent approved by the Commissioners, be taken into account in computing the period of service which entitles the employe to be granted long service leave if payment in respect of expenditure incurred or to be incurred by reason of such period of employment being so taken into account is authorized by the Treasurer of the Commonwealth of Australia in accordance with the Commonwealth Act known as the States Grants (Coal Mining Industry Long Service Leave) Act 1949-1956 or any Act amending the same or in substitution therefor.

(8) In the computation of the period of long service leave or pay in lieu thereof to which any officer or employe is entitled under this section there shall be taken into account any long service leave or pay in lieu thereof already granted to him.

188. The provisions of the last preceding section shall not Application apply to any officer or employe in the railway service who before provisions^ the commencement of the Railways (Furlough) Act 1951 had No. 5548s.4. attained the age of sixty-five years or ceased to be an officer or i9«.,nIy' employe in the railway service.

Interpretation. No. SS48 s. 2. ' Railway

189. In the last two preceding sections— " Railway service " means—

(a) service in the Railway Construction Branch of servlce'' The Board of Land and Works or under The Victorian Railways Commissioners;

(b) service as a Commissioner; or (c) service as an officer or employe employed at

the State Coal Mine— and "officer in the railway service" includes the Commissioners.

498 1958. Railways. No. 6355

" Retires on account of age."

Gratuities and overtime payments. No. 3759 s. 177.

" Retires on account of age" (in the case of a Commissioner) includes a reference to ceasing to hold office at the expiry of the term for which he was appointed or after attaining the age of sixty years.

Subdivision 9.—Miscellaneous. 190. The officer at the head of any branch of the railway

service may if he thinks fit certify that in his opinion any officer in his branch is entitled to a gratuity or to a payment for overtime work, but no gratuity or payment for overtime work shall be paid upon such certificate without the authority of the Board or the Commissioners.

Record of particulars of railway service to be kept. No. 3759 s. 178.

Regulations. No. 3759 s. 179; No. 5548 s. 5.

191. The Board or the Commissioners shall— (a) keep a record of all persons in the railway service

and. shall record therein the rank position or grade the length of service salaries and such other particulars with regard to such persons as it or they think fit;

(b) cause entries to be made in such record of deaths dismissals resignations promotions and reductions; and

(c) in the month of January in the year One thousand nine hundred and fifty-nine and in each and every third year thereafter publish in the Government Gazette a list of persons then employed in the railway service.

192. The Commissioners shall make and may from time to time alter and repeal regulations—

For prescribing the qualifications required in all candidates for employment in permanent offices in each of the various branches of the railway service, and if necessary in each grade of such branches;

For limiting the number of candidates to be examined to a number not less than twice the number of persons to be appointed, and for the examination of such persons and the granting of certificates to them;

For determining the nature or character and extent of examinations or tests according to the requirements of each of the higher grades in the railway service which officers and employes in the lower grades desiring to compete for and to be promoted to such higher grades shall undergo;

For regulating the relative rank position or grade in the duties and conduct of the officers and employes in each of the branches of the railway service, and for

1958. Railways. No. 6355 499

determining which of such grades shall be deemed the higher and lower grades respectively in such railway service;

For regulating the duties to be performed by officers and employes in the railway service and the discipline to be observed in the performance of such duties, the granting of leave of absence from time to time, and arranging for the performance of duties during holidays, and for affixing to breaches of such regulations according to the nature of the offences such, penalties as by this Act are authorized;

For fixing the ages at which officers and employes shall retire in each of the various branches of the railway service;

For prescribing any matter which by this Act is required or permitted to be prescribed in relation to entitlement to or the grant of furlough or pay in lieu thereof or which is necessary or convenient to be prescribed in relation to such entitlement or grant;

For regulating and determining the scale on which officers and employes in the various grades of the railway service shall insure their lives or for the payment to them of a sum of money or annuity at the date of their attaining the age of retirement from the railway service;

For the hearing and determining of any appeal brought by any officer or employe pursuant to section one hundred and seventy-four of this Act;

For altering or repealing any rules or regulations made before the commencement of The Victorian Railways Commissioners Act 1883 by the Board of Land and Works with regard to the railways.

And such regulations when confirmed by the Governor in Council shall have the same force and effect as if they had been contained in this Act.

DIVISION 10.—APPLICATION OF CERTAIN WAGES BOARD DETERMINATIONS, ETC.

193. (1) Where by any determination of a Wages Board Or Application

of the Industrial Appeals Court in force in respect of any trade SewSfflons the lowest wages rates for a specified maximum number of %%£££?* hours per week have been fixed for any person or persons or employ , classes of persons the Commissioners shall— S°i!cM97;

(a) pay to every employe performing substantially the s.°'(2) (6). same class of work in the same area or locality not less than the lowest wages rates so fixed for work performed under ordinary conditions;

500 1958. s. No. 6355

' Employs."

(b) in respect of every such employ^ fix as a standard week's work not more than the number of hours specified in such determination as the maximum number of hours to be worked for the said lowest wages rates;

(c) in place of such other conditions of employment of every such employe as prior to the Railways (Amendment) Act 1948 were prescribed in an award of the Railways Classification Board, observe the analogous conditions prescribed in any relevant award for the time being in force under any Act of the Commonwealth relating to conciliation and arbitration.

(2) In this section " employe " means person employed by the Commissioners at a daily or hourly rate of wages.

Disobedience or obstruction of court. No. 3759 8.198.

DIVISION 11 . PENALTIES AND PROCEDURE.

194. (1) Every person who without reasonable excuse, proof whereof shall lie on him, does any of the following things, namely:—

(a) Having been summoned and having had the expenses (if any) to which he is entitled tendered to him fails to attend as a witness before a court holding an investigation under this Part;(a) or

(b) Fails when required by such court in pursuance of this Part so to do, to make any answer or to give any return or to produce any document or to make or sign any declaration; or

(c) Prevents or impedes such court in the execution of its duty—

shall for every such offence be liable to a penalty of not more than Ten pounds, and in the case of a refusal to make any return or produce any document a penalty of not more than Ten pounds for every day that such failure continues.

(2) Where the offence consists of preventing or impeding as aforesaid, any member of such court or any person called by him to his assistance may seize and detain the offender until he can be conveniently taken before a justice to be dealt with according to law.

Documents signed by proper officer of Commis­sioners to be prima facie evidence. No. 3759 s. 199.

195. All notices requisitions orders regulations appointments certificates certified copies and other documents in writing signed by the Secretary for Railways or some other authorized officer nominated for that purpose by the Commissioners and all certificates of any thing done by the Commissioners in relation to this Act and certified copies of the minutes of proceedings or

(e) See section 136.

1958. Railways. No. 6355 501

correspondence of the Commissioners in relation thereto signed by such secretary or officer as aforesaid, shall be deemed sufficient evidence thereof, and in the absence of evidence to the contrary without proof of the authority of the person signing the same or of the signature thereto; and all notices returns and other Delivery ot documents required by this Act to be given to or laid before the documents

Commissioners shall be delivered at or sent by post addressed to siSnmT113' the office of the Commissioners.

196. No plaintiff shall recover in any action against any Actions. person for anything done under Part II. or III. of this Act if rrfissioners

tender of sufficient amends has been made before such action was £[ " " .^ brought or if a sufficient sum of money has been paid into court 8.20b; after the commencement of such action by or on behalf of the " °"5 w 8' ' defendant, and if the matter or thing complained of appears to have been done under the authority and in execution of this Act, then the jury shall find or judgment shall be given for the defendant.

197. (1) No action against the Commissioners shall be maintainable in any court of petty sessions.

(2) Every action against the Commissioners, except actions for losses caused by sparks from railway engines, shall, whatever may be the amount value or damages sought to be recovered, be heard and determined in the county court, unless the Supreme Court or a judge thereof otherwise orders:

Provided that all actions for losses caused by sparks from railway engines shall be referred to arbitration.

Actions against Com­missioners. No. 3759 s. 201.

198. No writ of execution shall be issued against the Executions

Commissioners until the expiration of fourteen days next after the inissionerii.

final judgment has been completely signed. No. 37S9 s. 202.

199. No railway and no real estate now or hereafter vested Railways and in the Commissioners shall be liable to be sold under any writ of to be sold

execution or other process of any court of law or equity. execution.

200. Where an action is brought against the Commissioners for injuries occasioned by any wrongful act neglect or default of the Commissioners as carriers of passengers, if the Commissioners, within ten days after the service of the writ of summons or plaint summons (as the case may be), give to the plaintiff written notice that they admit the cause of action, but that they dispute the amount of their liability the following provisions shall apply—

(a) On the defendants delivering such written notice to the plaintiff the action shall be stayed until the plaintiff delivers to the Crown Solicitor a statement

No. 3759 s. 203.

Actions acunst Com­missioners as carriers of passengers. No. 3759 s. 204. Cause of action admitted but amount of liability disputed.

Plaintiff to furnish particulars.

502 1958. Railways. No. 6355

setting forth the particulars mentioned in the Second Schedule unless a judge for good reasons orders that any of the said particulars may be omitted from such statement.

And the plaintiff or, if the plaintiff is physically unable so to do, then some credible person on his behalf shall verify such statement by a statutory declaration unless a judge for good reasons dispenses with such declaration.

(b) Every medical practitioner attending the person injured for the injuries aforesaid shall, within seven days after being by the plaintiff required in writing so to do or within such further time as a judge may order, deliver to the plaintiff a full statement of his fees setting out each attendance with the date thereof and the amount charged for each attendance and, if any operation has been performed, the nature thereof and the amount charged therefor.

(c) In the event of the action being heard before a judge or a judge and jury, the judge or the jury (as the case may be) shall in the hearing of the action assess the amount to be paid to such practitioner

(d) Within ten days after the delivery of the said statement of the plaintiff to them the defendants shall be at liberty to make an offer in writing to the plaintiff or to his solicitor or practitioner of an amount in full satisfaction of the cause of action; and, if such offer is accepted by the plaintiff judgment shall be entered forthwith for the amount thereof and costs.

(e) If within ten days after the delivery of such offer in writing or within such further time as a judge may order such offer in writing is not accepted by the plaintiff, he may then proceed with the action as if no such offer had been made.

(/) If the action is tried by a judge with a jury no communication of the amount offered as aforesaid by the defendants shall be made to the jury.

(g) Unless the plaintiff recovers more than the amount offered he shall pay the costs of the action; but if the plaintiff recovers more than such amount, the defendant shall pay such costs.

Medical practitioner to render account when demanded.

1958. Railways. No. 6355 503

201. In any action brought against the' Commissioners or ^ at o f

3 4 any of their officers or employes for any wrongful act neglect Or recoverable default of the Commissioners as carriers of passengers the court rmssioners or the jury shall not find or assess nor shall judgment be given or jy^ngeS.0' entered for the plaintiff for damages for any sum of money N0.3759 exceeding Ten thousand pounds. No.°59i8 S. IS.

202. No provision in any Act shall be read or construed as Time within which Cool-

limiting the time within which the Commissioners may commence missioned any action to recover any lands tenements or hereditaments or Snd&Tnot any incorporeal hereditament which at any time before or after N

mu~59 the commencement of this Act may have been purchased taken s.2'06. acquired by or vested in the Board or the Commissioners or any of its or their predecessors in office for or incidental to any purpose connected with the construction maintenance use working or management of any railway.

DIVISION 12 . MISCELLANEOUS.

203 . The fact of bringing an action against the Board or the otncersor Commissioners or of taking legal proceedings to test any right debarred shall not necessitate the retirement from the railway service of any SiSSd orng

Com­missioners. officer or employe bringing such action or taking such proceedings

or render such officer or employe liable to any punishment N0.3759 therefor. s. 207.

204. ( 1 ) No order for the attachment of the salary wages Railway pay or pay of an officer or employe in the railway service shall be ™* a

3"^ abto'

made by any court judge or justice. »• *>*• (2) No assignment made by any such officer or employe of or assignable,

the whole or any part of his salary wages or pay as an officer or employe of the Board or the Commissioners shall have any force or validity anything in any law or practice to the contrary notwithstanding.

205. Where in any Act of Parliament relating to the References in Victorian railways or in any regulation or by-law under such En^ce'r-in-Act there occurs any reference to the Engineer-in-Chief or Acting Chief-Engineer-in-Chief such reference shall wherever occurring be N2b"39

deemed and taken to refer to and mean the Chief Engineer for Railway Construction.

206. No alteration in the practice of the department i n Sunday trains. relation to the running of Sunday trains shall be made by the N^g759

Commissioners without the consent of the Governor in Council.

207. (1 ) If the Commissioners are of the opinion that it is Power to expedient that any level crossing should be closed they may CSSM'"

recommend to the Governor in Council that such level crossing crossings!1

be closed. No. 6118S.2.

1958. Railways. No. 6355

(2) On the Commissioners making any such recommendation they shall give notice in writing to—

(a) the Traffic Commission; (b) the Country Roads Board; (c) the council of the municipality in whose municipal

district the level crossing is situate; and {d) the members of the Legislative Assembly and the

Legislative Council in whose electoral district or province the level crossing is situate—

that the recommendation has been made to the Governor in Council; and a copy of such notice shall be published once in a daily newspaper circulating throughout Victoria and once in a local newspaper published and circulated in the area in which the level crossing is situate.

(3) The Governor in Council after considering any objections to the recommendation which have been made in writing by the Traffic Commission, the council or any other person within two months after notices have been given and published as required by the last preceding sub-section may if he is satisfied—

(a) that the notices required to be given by this section have been duly given and that not less than two months have expired since the last of such notices was given; and

(b) that— (i) the level crossing is no longer required for

the use of the public; or (ii) satisfactory alternative means of crossing the

railway line are available or can be provided for the public; or

(iii) satisfactory provision for diverting the road which crosses the railway line can be provided—

by Order published in the Government Gazette provide that such level crossing shall be closed from such date as is specified in the Order or upon the fulfilment of such conditions as are specified in the Order.

(4) On the date specified in such Order or upon the fulfilment of the conditions specified in the Order (whichever is the later) the rights of the public to use such level crossing shall cease and determine and the lands over which such crossing is constructed shall be freed from all rights easements or privileges existing or claimed as regards the said lands either in the public or by any person or body of persons whomsoever or whatsoever as incident to any such past dedication or supposed dedication thereof or by virtue of any past user thereof or by any fiction of law and such lands shall be vested in the said Commissioners for the purposes of this Act.

1958. Railways. No. 6355 505

(5) The Commissioners are hereby authorized and empowered to perform any works necessary or incidental to the carrying of this section into effect and for that purpose they may exercise any of the powers conferred on them by virtue of sections seventy-eight and seventy-nine of this Act.

(6) Where any road is provided by the Commissioners for the purposes of this Act the Governor in Council may by Order published in the Government Gazette declare the land used for such road to be a public highway and on the publication of such Order such land shall vest in the council of the municipality within whose municipal district the road lies and such road shall be under the care and management of the council which shall be liable for the cost of any maintenance repair alteration or reconstruction thereof.

PART IV.—PRIVATE RAILWAYS.

208. In this Part the words "Ra i lway" and "Rai lways" interpretation, shall apply to any railway by any special Act heretofore or ""in.59

hereafter in force authorized to be constructed, and shall include "Railway." branch railways and railway works stations buildings and land "Railways." belonging or appurtenant thereto, but shall not include the railways vested by this Act in the Commissioners or which may be hereafter vested in the Commissioners.

209. (1) The Commissioners at all times may make inspection Commls-of and exercise supervision over all railways in Victoria, for the SXria*5' purpose of carrying into effect the provisions of this Act or of SySiSiyl,' any other Act; and may when they think fit authorize any proper N0.3759 person to inspect any such railway; and such power of ss-212-213-supervision inspection and examination shall apply as well to railways heretofore as to those hereafter to be constructed.

(2) Such person so authorized, on producing (if required) to the company to which such railway belongs his authority, may at all reasonable times enter upon and examine the railway and the stations works buildings and lands and the engines and carriages belonging thereto; and the Commissioners and any person authorized by them to make such supervision inspection or examination may hear receive and examine evidence, and requi-e the production of plans books and other documents, and exercise all such other powers and authority as may be required for the due discharge of their respeotive offices.

210. No railway or portion of a railway shall be opened for the public conveyance of passengers until one month after notice in writing has been given to the Commissioners of the intention of the company to whom such railway belongs to open the same, nor until the Commissioners have given to such company a certificate in writing under their seal that the said railway or

Powers of inspector.

Railway not to be opened without notice anJ certificate froii Com­missioners. No. 3759 s. 214.

606 1958. Railways. No. 6355

Commis­sioners may postpone opening of railway. No. 3759 s. 215.

Circumstances in which Commis­sioners may complain to Supreme Court of improper condition of railway. No. 3759 s. 216.

Court or judge may order the dis­continuance or reduction of traffic.

portion of railway is in the opinion of the said Commissioners sufficiently completed for the safe conveyance of passengers and ready for inspection.

211. If the person authorized to inspect any such railway before it is opened (or, if it has been closed then before it is re-opened) after inspection thereof reports in writing to the Commissioners that in his opinion the opening or re-opening of the same would be attended with danger to the public using the same by reason of the incompleteness of the works or permanent way or the insufficiency of the establishment for working such railway, and states in writing the grounds of such opinion, the Commissioners may (from time to time as often as such person shall after further inspection thereof so report) order and direct the company to whom such railway belongs to postpone such opening or re-opening for any period not exceeding one month at any one time, until it appears to the Commissioners that such opening or re-opening may take place without danger to the public; but no such order or direction shall be binding on any such company unless therewith shall be delivered to the company a copy of the report on which such order or direction is founded.

212. In case the person authorized to inspect any railway opened by the company for the carriage of passengers animals or goods certifies under his hand to the Commissioners that in his opinion the railway or any portion thereof is unfit for traffic, or that it will be unsafe to travel thereon at a greater speed than a rate specified in his certificate and states in his certificate with reasonable certainty in what particulars the said railway is supposed to be unsafe, if the Commissioners indorse with a memorandum of their approval the certificate so given and such plans sections surveys and drawings as may be necessary to illustrate the defects or other matters objeoted to, and if they give six days' previous notice of their intention to make the application hereinafter mentioned and of the day and hour at which the same will be made, and if fourteen days before such application they furnish the company with a true copy of the certificate so indorsed as aforesaid, the Commissioners may apply by petition in a summary way to the Supreme Court or a judge thereof complaining of the incompleteness or inadequacy of the works or the omission to erect gates as hereinafter provided or to carry any highway or road either over or under the railway by means of bridges arches or tunnels as the case may require or the insufficiency of the establishment for making such railway or of the rolling-stock of the same; and upon such application the court or a judge thereof may direct the company to whom such railway belongs to discontinue the traffic on the whole or any part thereof or to travel at a reduced speed thereon until the requirements of the said certificate have been complied with, or may make such other order as to it or him seems proper; and may make from

1958. Railways. No. 6355 507

time to time such further or other order for restraining the company or any other persons from using the said railway or any part thereof otherwise than in conformity with the said certificate or order of the court or a judge thereof, and may grant an injunction for the purpose aforesaid; and may award costs to be paid by such company or by such other persons as aforesaid.

213. The use of signals on all railways shall be under the superintendence and control of the Commissioners, who shall have full power and authority from time to time to issue a code or codes of signals and to make rules and regulations in that behalf.

Signals to be under super­intendence of Commis­sioners. No. 3739 s. 217.

214. Every railway company shall, within forty-eight hours after the occurrence upon the railway belonging to such company of any accident attended with personal injury to any member of the public using such railway, give notice to the Minister and to the Commissioners that such accident has occurred.

215. Every railway company shall in such form and manner as the Commissioners shall deem necessary and require for their 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 railway belonging to such company whether attended with personal injury or not.

Company to give to Com­missioners notice of accidents attended with personal injury. No. 3759 s. 218.

Company to make return of all accidents to Com­missioners. No. 3759 s. 219.

216. In case it appears to the Commissioners that any railway company has not complied with or is acting in a manner unauthorized by the provisions of this Part or any general Act which may be hereafter passed relating to railways or of the special Act relating to such company or in excess of the powers given or objects defined by any of such Acts and that it would be for the public advantage that the company should be restrained from so acting, the Commissioners may certify the same to the Attorney-General, and thereupon he shall, if such default of the company consists of non-compliance with the provisions of any of the Acts aforesaid proceed to recover such penalties and forfeitures or otherwise to enforce the due performance of the said provisions by such means as any person aggrieved by such non-compliance or otherwise authorized to sue for such penalties might employ under the provisions of the said Acts; and if the default of the company consists in the commission of any act or acts unauthorized by law, he shall proceed to obtain an injunction or order restraining the company from acting in such illegal manner or to obtain such other relief as the nature of the case may require; and the judge to whom application for relief is made may grant such injunction or order or give such other relief, if he is of opinion that the acts of the company are not authorized by law.

Remedy by Commis­sioners against railway companies exceeding their powers or violating Acts. No. 3759 s. 220.

508 1958. Railways. No. 6355

Notice to company of Commis­sioners' intention to certify. No. 3759 s. 221. Proceedings to be taken only uron certificate and witiiin a year.

217. No such certificate as last aforesaid shall be given by the Commissioners until twenty-one days after they have given to the company against or in relation to which they intend to give such certificate notice of their intention to give the same; and no legal proceedings shall be commenced under the authority of the Commissioners against any company for any offence against any of the provisions of this Part or against the provisions of any general Act which may be hereafter passed relating to railways or of the special Act relating to such company, except upon such certificate of the Commissioners and within one year after such offence has been committed.

Commis­sioners may make suggestions to company. No. 3759 s. 222.

218. Whenever the Commissioners consider that the exigencies of any case do not call for or warrant more active interference on their part in the regulation of any matter relating to the railway of any company, the Commissioners may make such suggestions to the directors as they think conducive to the safety interests or convenience of the public or as the circumstances of the case may require; and the directors shall cause every such suggestion to be forthwith entered in a book to be kept by them for such purpose.

Documents signed by proper officer of Commis­sioners to be prima facie evidence. No. 3759 s 223.

Service of notice upon company.

Delivery of notices and documents for Com­missioners.

219. All notices requisitions orders regulations appointments certificates certified copies and other documents in writing signed by the Secretary for Railways or some other officer nominated for that purpose by the Commissioners and all certificates of anything done by them in relation to this Part and certified copies of the minutes of proceedings or correspondence of the Commissioners in relation thereto signed by such Secretary or officer as aforesaid, shall be deemed sufficient evidence thereof, and in the absence of evidence to the contrary without proof of the authority of the person signing the same or of the signature thereto; and service of the same at one of the principal offices of any railway company on the secretary or clerk of the said company or by sending the same by post addressed to him at such office shall be deemed good service upon the said company; and all notices returns and other documents required by this Part to be given to or laid before the Commissioners shall be delivered at or sent by post addressed to the office of the Commissioners.

Regulation of gates at level -.Tossings on public roads. No. 3759 s. 224.

220. If any railway crosses any public road on a level, the company to whom such railway belongs shall erect and permanently maintain either a station or a lodge at such crossing, and shall at all times maintain good and sufficient gates across such road on each side of the railway where the same communicates therewith; and shall employ proper persons to open and shut such gates; and such gates shall be kept constantly closed across such road on both sides of the railway, except

1958. Railways. No . 6355 509

during the time when horses cattle sheep or other animals carts or carriages passing along the road shall have to cross such railway; and such gates shall be of such dimensions and so constructed as while closed to fence in the railway and prevent such traffic as aforesaid from entering upon the railway and when opened to form a fence on each side of the road across the railway and prevent the said traffic while crossing the railway from deviating from the direct road across the same; and the person intrusted with the care of such gates shall cause the same to be closed so soon as such horses cattle sheep or other animals carts or carriages have passed through the same.

221. If the Commissioners are satisfied that it will be more J>fis^i.on

conducive to the public safety that the gates on any level crossing missfoners over any such road should be kept closed across the railway such level

instead of across the road, the Commissioners may order that ^0^3759' such gates shall be kept so closed instead of across the road; and 8.225. in such case such gates shall be constantly closed across the railway, except when engines or carriages passing along the railway shall have occasion to cross such road, in the same manner as above directed with respect to the gates being kept closed across the road.

222. Where level crossiings are allowed for the accommodation of private roads or for the owners of land adjoining the railway or otherwise than is hereinbefore provided, gates shall be constructed by the company at every such crossing; and such gates shall be placed on either side of the railway and shall open outwards from the railway, and when closed shall fence in the railway as aforesaid; and every person using such crossing shall close and fasten such gates immediately after passing through the same; and, if he crosses with any carriage cart horse cattle sheep or other animal, shall use all convenient despatch in crossing the railway with the same.

223. In the oase of any information at the instance of a private prosecutor against any railway company, if a verdict is found for such company, they shall be entitled to recover from such prosecutor the costs sustained by them by reason of such information; and if a verdict is found for the Crown, such prosecutor shall be entitled to recover from such company the costs sustained by him in prosecuting such information; such costs so to be recovered by the company or prosecutor respectively shall be taxed by the proper officer of the Supreme Court ; and such company may appear and such information may be tried in the same manner as any other information at any sittings of the Supreme Court in its criminal jurisdiction.

Regulation of level crossings at private roads. No 3759 s. 226.

In Infor­mations by private prosecutor costs t« be allowed to successful party. No. 3759 8.227.

Company may appear and case be tried as In other trials by information.

510 1958. Railways. No. 6355

Railway company may adopt any of Commis­sioners' by-laws. No. 3759 9.228.

224. It shall be lawful for any railway company to adopt with such alterations of form only as may be necessary any of the by-laws from time to time made concerning railways under the provisions of this Act or any corresponding previous enactment and at the time of the company's adoption thereof still in force; and at the expiration of one month after notice of such adoption has been inserted in the Government Gazette such by-laws shall have the same effect as if the company had been empowered by this Act to make and had duly made such by-laws, and shall continue to have such effect until cancelled; and the company shall have the same remedies for the breach of the said by-laws or any of them as are by this Act given to the Commissioners; and any former or other by-laws of the company which may be inconsistent with any by-laws adopted by them as aforesaid shall during the continuance of the by-laws so adopted be suspended and of no effect; and the several provisions contained in sections one hundred and thirty-seven, one hundred and forty-one and one hundred and forty-two of this Act shall apply to the by-laws adopted as aforesaid.

Penalty for opening or keeping open railway without certificate or contrary to order of Commis­sioners. No. 3759 s. 229.

225. If any railway or portion of a railway the property of a company is opened without such a certificate from the Commissioners as is hereinbefore required or is opened contrary to any order and direction of the Commissioners, the company to which such railway belongs shall forfeit the sum of Fifty pounds for every day during which the same continues open without such certificate, and of One hundred pounds for every day during which the same continues open contrary to such order and direction; and every such penalty may be recovered by information in the name of the Attorney-General in the Supreme Court.

Penalty on company for breach of rules of Com­missioners as to signals. No. 3759 s. 230.

226. Every company which violates any rule or regulation of the Commissioners concerning signals shall forfeit for each offence a sum not exceeding Ten pounds, and every such penalty may be recovered by information in the name of the Attorney-General in the Supreme Court.

Penalty for neglect to give notice or make returns of railway accident. No. 3759 s.231.

227. Every railway company which wilfully omits to give to the Minister or the Commissioners the notice required by this Part of any accident upon the railway belonging to such company attended with personal injury to the public using such railway, or which neglects to deliver any returns of accidents occurring in the course of the public traffic on such railway within fourteen days after such returns have been required or after the day appointed for making the same, shall forfeit the sum of Twenty pounds for every day during which the omission to give such notice or to deliver such return shall continue; and every such penalty may be recovered by information in the name of the Attorney-General in the Supreme Court.

1958. Railways. No. 6355 511

228. If the directors of any railway company omit to make Penalty for . £ .. J , * J .. i »i omission to

a proper entry of any suggestion made to them by the record Commissioners in pursuance of this duty, they shall forfeit for oK's™ by

every such omission the sum of Ten pounds; and every such sioners-penalty may be recovered by information in the name of the M"5 9

Attorney-General in the Supreme Court.

SCHEDULES.

FIRST SCHEDULE. Section 2.

Title of Act.

Railways Act 1928

Statute Law Revision Act 1930

Public Works Committee Act 1935

Railways Act 1935 Railways (Finances Adjustment) Act 1936 Railways Act 1937 Weights and Measures Act 1939

Railways (Long Service) Act 1942

Discharged Servicemen's Preference Act 1943 . .

Railways Act 1944 Railways (Long Service) Act 1946 Railways (Sick Leave) Act 1946 Railways (Temporary Employe's) Act

1946 . . Railways (State Coal Mine) Act 1946 Public Officers Salaries Act 1948 Railways (Amendment) Act 1948

Railways (Long Service) Act 1949 Public Officers Salaries Act 1950 Railways (Amendment) Act 1951 Railways (Furlough) Act 1951 Statute Law Revision Act 1951

Railways (Mt. Buffalo Chalet) Act 1953 Railways (Commissioners' Salaries) Act

1954 . . Limitation of Actions Act 1955

Railways (Amendment) Act 1955

Public Officers Salaries Act 1955 Railways (Commissioners) Act 1956 . . Railways (Furlough) Amendment Act

1957 Railways (Level Crossings) Act 1957 . . Railways (Contracts) Act 1958 Railways (Employe's) Act 1958

Extent of Repeal.

So much as is not already repealed.

Item in Schedule referring to Rail­ways Act 1928.

Clause 2 of First Schedule.

The whole. The whole. The whole. Item in First

Schedule referring to Rail­ways Act 1928.

So much as is not already repealed.

Section 4 (3). The whole. The whole. The whole.

The whole. The whole. Section 2 (6). So much as is not

otherwise repealed. The whole. Section 2 (6). The whole. The whole. Item in Schedule

referring to Rail­ways (Long Ser­vice) Act 1949.

The whole.

The whole. Clause 34 of

Schedule. The whole.

Section 2 (4). The whole. The whole.

The whole. The whole. The whole.

1958. Railways. No. 6355

SECOND SCHEDULE.

A. Plaintiffs occupation for three years preceding the commencement of the action.

B. Nature of the injury, and if plaintiff believes it to be permanent; reasons and grounds of such belief.

C. Net annual earnings or income for three years preceding the commencement of action.

D. The amount claimed for injury irrespective of all other claims arising out of or in consequence of the injury.

E. The name or names of the medical practitioner or practitioners who attended the plaintiff in consequence of the injury.

F. Particulars of the respective amounts claimed for medical necessaries comforts nursing medicines medical appliances and other claims arising out of the said injury; and

G. A copy of the full statement of fees provided for in paragraph (b) of section two hundred of the Railways Act 19S8.