The Law on Entering a Railway Level Crossing While Signals are Flashing in NSW

By Sahar Adatia and Jimmy Singh.

If you’re a regular driver on the road, you will have likely come across a railway level crossing – indeed, in NSW alone, there are over 3,000 crossings, with around 1,400 of these situated on public roads.

Put simply, a railway level crossing is where railway tracks cross a road and you must drive your vehicle directly over the tracks – the tracks and road being at the same level.

It is usually indicated by one or more signs, most often a crossbuck usually with the number of tracks to cross written underneath, and a train sign with the distance ahead marked below.

According to the Australian Rail Track Corporation, every year in Australia, there are on average 166 collisions between trains and people or vehicles, including 35 fatalities resulting from railway level crossing collisions.

Worryingly, almost every near hit incident is due to the road user doing the wrong thing, either through ignorance of the road rules or deliberately.

Yet, the fact of the matter is that trains always have the right of way and simply cannot stop quickly, especially if carrying a load.

With multiple fatalities and collisions resulting in serious injuries every year, it is unsurprising that there are strict rules in place across the nation when it comes to railway crossings – and large penalties attached for those who choose to ignore them.

In fact, the rules are so strict that some drivers are completely unaware that if you cross the tracks after a train has passed but the lights are still flashing, depending what state you live in, you could be slammed with a fine of nearly $800.

Victorian Woman Fined $758 for Passing Railway Crossing While Lights Still Flashing

In July 2018, Victorian woman, Sam Kurikawa learnt the lesson of railway crossing the hard way when she was slapped with a $758 fine for crossing a railway.

Although the boom gate was up and the bells had stopped ringing, the lights were still flashing at the time – which means it is illegal to cross the train tracks.

Ms Kurikawa said was not aware that she had committed an illegal act until she was pulled over and fined.

“It was completely news to me, as I explained to the police officer,” Ms Kurikawa said.

“Of course I knew I had to yield at a boom gate but I assumed once it was up and the bells had stopped I was good to go.”

Ms Kurikawa was left shocked by the whopping fine and said she was “very stressed” thinking about how she would pay for it.

“I’m on a low income and was going to a one-off job more than one-and-a-half-hour return journey away. The fine was about six times the value of that work,” Ms Kurikawa said.

“I was quite fearful and extremely regretful that my ignorance and a small mistake could have quite serious consequences.”

Thankfully for Ms Kurikawa, the fine was later reduced.

NSW Police Issue Almost 1,000 Penalty Notices for Level Crossing Traffic Offences in Past Two Years

In March 2019, Traffic and Highway Patrol Command’s Acting Assistant Commissioner, Greg Rolph revealed that people ignoring level crossing rules had resulted in NSW Police having issued almost 1,000 penalty notices for level crossing traffic offences in the past two years.

“In the past month, there have been two incidents where vehicles are queuing too close to the tracks, forcing the drivers of approaching passenger trains to apply emergence brakes,” Assistant Commissioner Rolph said.

“In one case, a boom gate came down on the cabin of a truck and it was only good fortune that the vehicle involved was able to clear the tracks before trains appeared.”

From July 2001 to June 2018, there were 144 collisions between trains and road vehicles at railway level crossings in NSW, resulting in 11 fatalities.

The Law on Entering a Level Crossing While Signals are Flashing in NSW

A ‘level crossing’ is where a railway and road meet at substantially the same level regardless of whether there is a level crossing sign on the road (Rule 120 Road Rules 2014 (NSW)).

There is an on-the-spot fine (penalty notice) of $448 attracting 3 demerit points, or where the infringement is heard in court, there is a maximum penalty of $2,200 that a Magistrate can impose if a motorist enters a level crossing in any one of the following circumstances:

• If the warning lights are on or if the warning bells ring; or
• If the boom, barrier or gate at the crossing is down, or if it’s closing or opening; or
• If a train (or tram) is either entering or is on the crossing; or
• If a train (or tram) that’s approaching the crossing can be seen from the crossing, or where it’s sounding a warning, and there would be a danger of there being a collision if the crossing is entered by the driver in those circumstances; or
• If the driver can’t driver though the crossing due to the crossing (or a road beyond it) being blocked (i.e. by congested traffic or a collision on the road).

This is outlined in Rule 123 Road Rules 2014 (NSW).

How the States Weigh Up on Penalties for Entering a Level Crossing While Signals are Still Flashing

If you’re caught entering a level crossing while the signals are still flashing and the train is visible, you can expect large fines in most states.

The fines to expect for this offence include:

• NSW – $448 fine and three demerit point
• ACT – $432 fine and three demerit points
• VIC – $500 fine and three demerit points
• NT – $500 fine and three demerit points
• QLD – $391 fine and three demerit points
• SA – $454 fine and three demerit points

Best Practice for Motorists at Level Crossings

Ultimately, it is important to follow signs and rules when it comes to train crossings – and more than simply for the sake of avoiding a fine.

As the Australian Rail Track Corporation advises, the difference between a fatal collision and a near collision at a railway level crossing can be just seconds.

Furthermore, it can take a fully loaded freight train up to 2km to stop after the emergency brakes have been applied.

So, remember:

• Always take extra care if there are two sets of railway tracks
• Trains are usually travelling faster than you think
• Get into the practice of turning off radios and winding down your window when approaching a railway level crossing.

If you end up receiving a penalty notice for this offence and you wish to avoid incurring the demerit which will result upon payment of the fine, you may court elect the penalty.

By court electing the penalty, you will be required to appear in the local court where you will be required to plead guilty or not guilty to the allegation.

If you end up being found guilty, or if you end up pleading guilty to it in court, you will avoid incurring demerit points and fine in the event that the Magistrate orders a non-conviction type of sentence (also referred to as a penalty).

A non-conviction sentence is either a Conditional Release Order without a conviction or a section 10 dismissal under the Crimes (Sentencing Procedure) Act 1999 (NSW).

To get a non-conviction penalty, it is important to be well prepared, and when making your submissions to the sentencing court- be sure to outline the main points of your case after handing up good character letters and an apology letter for your driving offence.

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