Document ID: chunk:federal_register_of_legislation:C2004C00908:clause:5_3:p1
Version: federal_register_of_legislation:C2004C00908
Segment Type: clause
Provision Reference: sch 5 cl 3 (pt 1/2)
Character Range: 59324–61967

3  Compensation for access to railways for defence‑related purposes and for emergency or disaster relief

Designated agency in relation to a notice

(1) A notice under subitem 2(1) must specify a Commonwealth agency as the designated agency in relation to the notice.

(2) If a notice under subitem 2(1) relates to either of the following purposes:
 (a) the defence of Australia;
 (b) the operation of the Australian Defence Force in connection with the defence of Australia;
the notice must specify the Department of Defence as the designated agency in relation to the notice.

(3) If a notice under subitem 2(1) relates to the management of an emergency or a disaster (whether natural or otherwise), the notice may specify:
 (a) the Department of Defence; or
 (b) any other Commonwealth agency that is involved in the management of the emergency or disaster;
as the designated agency in relation to the notice.

Liability for loss or damage

(4) If a notice under subitem 2(1) is given to a person and that person, or another person contracted, licensed or otherwise acting for that person in the operation of the railway, suffers loss or damage in consequence of the giving of access, or the giving of priority of access, in accordance with the notice the Commonwealth is liable to pay to the person who suffers the loss or damage an amount equal to the loss or damage.

(5) If:
 (a) the person who suffers the loss or damage; and
 (b) the head of the designated agency in relation to the notice (on behalf of the Commonwealth);
do not agree on the amount of loss or damage mentioned in subitem (4), the person may recover the amount of the loss or damage by action against the Commonwealth in a court of competent jurisdiction.

(6) In determining the amount of any loss or damage mentioned in subitem (4), regard must be had to anything done in mitigation of the loss or damage (including any remedial work).

(7) A payment under subitem (4) or (5) is to be made out of amounts appropriated by the Parliament for the purposes of the designated agency in relation to the notice.

Compensation—constitutional safety‑net

(8) If:
 (a) apart from this item, the operation of item 2 would result in the acquisition of property from a person otherwise than on just terms; and
 (b) the acquisition would be invalid because of paragraph 51(xxxi) of the Constitution;
the Commonwealth is liable to pay compensation of a reasonable amount to the person in respect of the acquisition.

(9) If the Commonwealth and the person do not agree on the amount of the compensation mentioned in subitem (8), the person may institute proceedings in the Federal