Rail Safety National Law (South Australia) (Miscellaneous No 4) Amendment Bill

Introduction and First Reading

The Hon. S.K. KNOLL (Schubert—Minister for Transport, Infrastructure and Local Government, Minister for Planning) (15:58): Mr Trainee Acting Speaker—

Members interjecting:

The ACTING SPEAKER (Mr Duluk): Order!

The Hon. J.A.W. GARDNER: Point of order, sir: it is appropriate for members to use the appropriate parliamentary title.

The ACTING SPEAKER (Mr Duluk): Indeed. The member for Custance.

The Hon. S.K. KNOLL: Obtained leave and introduced a bill for an act to amend the Rail Safety National Law (South Australia) Act 2012. Read a first time.

Second Reading

The Hon. S.K. KNOLL (Schubert—Minister for Transport, Infrastructure and Local Government, Minister for Planning) (15:59): I move:

That this bill be now read a second time.

I am pleased to introduce the Rail Safety National Law (South Australia) (Miscellaneous No 4) Amendment Bill 2019, which amends the Rail Safety National Law. The national law is contained in a schedule to the Rail Safety National Law (South Australia) Act 2012.

In December 2009, the Council of Australian Governments agreed to implement national rail safety reform that created a single rail safety regulator and to develop a rail safety national law, which a rail regulator would administer. The national rail reform:

supports a seamless national rail transport system;

ensures existing levels of rail safety are maintained;

streamlines regulatory arrangements and reduces the compliance burden for business; and

improves national productivity and reduces transport costs generally.

The Rail Safety National Law commenced operation on 20 January 2013. The Office of the National Rail Safety Regulator was established as a body corporate under the national law, with its scope now also enacted through legislation in all jurisdictions. The national law was developed by the National Transport Commission, the Office of the National Rail Safety Regulator, together with jurisdictions—

The Hon. S.C. MULLIGHAN: Point of order: unfortunately, our numbers are waning in here. I draw your attention to the state of the house.

Mr TEAGUE: Point of order: standing 137. I note that standing order 131(2) permits the member for Lee to rise to interrupt the speaker on their feet to call attention to the lack of a quorum. However, standing order 137 prevents a member from persistently or wilfully obstructing the business of the house. I note that there are analogies to this in precedent in the federal parliament. On two occasions in 2005 the Speaker refused to continually call attention to the state of the house—

Members interjecting:

The ACTING SPEAKER (Mr Duluk): I am listening to the member for Heysen.

Mr TEAGUE: —where such tactics were deployed in an obvious attempt to obstruct the business of the government. I would invite you, Mr Acting Speaker, to no longer hear the member, or indeed those opposite, on these bogus calls to the state of the house.

The Hon. S.C. Mullighan interjecting:

The ACTING SPEAKER (Mr Duluk): Order! Member for Lee, sit down.

The Hon. S.C. MULLIGHAN: I take offence to that statement. It is my right under standing orders. It is also specified in Blackmore's Practice of the House of Assembly, first edition, that—

The ACTING SPEAKER (Mr Duluk): The member for Lee will be seated. Minister, if the member has taken offence and he wants the member for Heysen to withdraw, then I ask for the offending comment to be withdrawn.

The Hon. S.C. MULLIGHAN: It should be withdrawn.

The ACTING SPEAKER (Mr Duluk): Which part?

The Hon. S.C. MULLIGHAN: Claiming that my point of order was a bogus—

The ACTING SPEAKER (Mr Duluk): You cannot be offended by a point of order, member for Lee. That is a bogus point of order.

Members interjecting:

The ACTING SPEAKER (Mr Duluk): Order! It is correct under standing orders that a quorum has to be present at all times. Former deputy speaker Bedford in the previous parliament was right, and constantly corrected me as the member for Davenport for constantly calling attention to the state of the house in a constant and persistent manner as it goes on.

I think that the member for Heysen raises a valid point to the disruption of the house proceedings. I would hate for this to become a constant occurrence for the term of this parliament because the problem is, member for Lee, that the same can apply to your good self when you are on your feet. I would hate for the house to be disturbed when you are on your feet. In saying that, a quorum is not present. Ring the bells.

A quorum having been formed:

The ACTING SPEAKER (Mr Duluk): The minister is not to respond to interjections.

The Hon. S.K. KNOLL: I would not dream of it.

The ACTING SPEAKER (Mr Duluk): No, you would not.

The Hon. S.K. KNOLL: Certainly not under your watch.

The ACTING SPEAKER (Mr Duluk): Indeed.

The Hon. S.K. KNOLL: Sitting high up, almost like a deity.

Ms Hildyard interjecting:

The ACTING SPEAKER (Mr Duluk): Member for Reynell, the minister will be heard in silence.

The Hon. S.K. KNOLL: The national law was developed by the National Transport Commission, the Office of the National Rail Safety Regulator, together with jurisdictions, and all these entities contribute to identifying legislative amendments. Ministers of the Transport and Infrastructure Council, which consists of commonwealth, state, territory and New Zealand ministers with responsibility for transport and infrastructure issues, approved this rail amendment bill on my birthday: 9 November 2018.

South Australia, as host jurisdiction, is responsible for the passage of the national law and any amendment bills through the South Australian parliament. Once commenced in South Australia, each participating jurisdiction has an application act that automatically adopts the national law and subsequent amendments into its own legislation, except in Western Australia, where its parliament needs to approve all amendments. It is good to see its secessionist elements are still alive and well.

During its first five years of operation, the rail regulator has successfully discharged its obligations under the national law, including facilitating the safe operation of rail transport in Australia. This has been achieved by providing a scheme for national accreditation of rail transport operators and promoting the provision of national policies, procedures and guidance to industry, further progress in the consolidation of national rail safety data information and education and training for safe railway operations.

This rail amendment bill constitutes the fourth amendment package to be considered by the South Australian parliament. The first rail amendment package commenced on 1 July 2015, the second on 1 September 2016 and the third on 1 July 2017.

This rail amendment bill extends the drug and alcohol provisions of section 127 of the national law, which governs the requirement for a rail safety worker to submit to a drug screening test, oral fluid analysis or blood test or a combination of these. For drug and alcohol testing, the rail amendment bill:

inserts section 122A to define what constitutes a urine test;

amends section 127 to include urine test as a method of testing;

inserts section 127A that requires a rail transport operator to do all that is reasonably possible to facilitate an authorised officer in exercising drug and alcohol testing powers;

inserts sections 128A, 128B and 128C to prescribe offences and penalties for hindering, obstructing, assaulting, threatening or intimidating an authorised person or interfering, tampering or destroying a urine, oral fluid or blood sample; and

amends section 129 to ensure that urine, together with the existing oral fluid and blood for drug testing cannot be used for any other purpose.

This rail amendment bill also:

amends section 244 of the national law to provide an additional exception for the release of documents where lawfully provided for under the South Australian Freedom of Information Act 1991;

allows the rail regulator to access the use of private sector auditing, as approved by the Transport and Infrastructure Council, for the purpose of auditing the rail regulator's annual financial statements;

amends definitions in section 4 of 'level crossing' and 'rail or road crossing' and deletes the definition of 'railway crossing' to support consistency in the national law;

creates penalties for public road managers who fail in their risk management duties at a road or rail crossing, consistent with the penalties for a rail infrastructure manager in section 107(1) of the national law for the same offences;

gives the rail regulator the explicit ability to enter premises for drug and alcohol testing; and

amends section 200 to substitute 'level crossing' instead of the deleted 'railway crossing'.

Variation regulations that will support the operation of the rail amendment bill will be tabled in this parliament for approval following the parliamentary process. This rail amendment bill has the support of major stakeholders, including the Australasian Railway Association, Australian Local Government Association and the Rail Tram and Bus Union. It is also worthwhile to note that the Office of the National Rail Safety Regulator has its headquarters in South Australia. I commend this bill to members and seek leave to have the explanation of clauses inserted in Hansard without my reading it.

Leave granted.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Rail Safety National Law

4—Amendment of section 4—Interpretation

This clause amends the definition of level crossing to address issues of national consistency in relation to the management of road and tram interfaces. The amended definition also clarifies that it includes a pedestrian crossing that crosses a railway (whether or not it is signed) and a pedestrian crossing that crosses a tramway where the crossing has a level crossing sign.

This clause also makes a technical amendment to the definition of rail or road crossing to incorporate the current definition of railway crossing (which is being deleted as this is no longer required as a separately defined term).

5—Amendment of section 43—Annual report

This clause amends section 43(2) to remove the reference to 'public sector auditor' and inserts a regulation making power to allow for the national regulations to make provision in relation to the preparation and auditing of financial statements. This is to allow for the ability for audits to be conducted by appropriately qualified private sector auditors (in accordance with the prescribed requirements).

6—Amendment of section 107—Interface coordination—rail infrastructure and public roads

This amendment inserts a penalty in relation to the existing obligations of a road manager regarding rail and road interfaces. This is the same penalty that currently applies to rail infrastructure managers to reflect that they have a shared responsibility with respect to interface coordination.

7—Insertion of section 122A

This amendment inserts an interpretation provision for the purposes of the amendments made by other provisions of this measure in relation to urine testing by the Regulator.

122A—Interpretation

The proposed new clause inserts a definition of urine test to cover both the screening and analysis of a urine sample for the presence of drugs.

8—Amendment of section 127—Authorised person may require drug screening test, oral fluid analysis, urine test and blood test

Section 127 of the Act provides for the drug and alcohol testing of rail safety workers by the Regulator. This amendment inserts a reference to a urine test to extend Regulator testing to the testing of urine samples.

9—Insertion of section 127A

This clause inserts a new provision to ensure that a person with control or management of railway premises must facilitate an authorised person in the exercise of the powers under the Act in relation to drug and alcohol testing by the Regulator.

127A—Facilitation of testing

The proposed new section provides that the manager of railway premises must give all reasonable assistance to an authorised person to undertake drug and alcohol testing of rail safety workers at the premises. This includes such things as allowing the authorised person to enter the premises, making rail safety workers available for testing and making other persons at the premises available to provide assistance to the authorised person in carrying out the drug and alcohol testing.

10—Insertion of sections 128A to 128C

This clause inserts new offences to support the facilitation of drug and alcohol testing by the Regulator.

128A—Offence to hinder or obstruct authorised person

The proposed clause makes it an offence to intentionally hinder or obstruct an authorised person who is exercising powers under Part 3 Division 9 of the Act which deal with drug and alcohol testing by the Regulator. The maximum penalty for this offence is a fine of $10,000.

128B—Offence to assault, threaten or intimidate authorised person

This clause makes it an offence for a person to directly or indirectly assault, threaten or intimidate an authorised person or an assistant of the authorised person. The maximum penalty for this offence is $50,000 or 2 years imprisonment, or both.

128C—Interfering or tampering with, or destroying, samples

This clause inserts an offence of unlawfully interfering or tampering with, or destroying an oral fluid, urine or blood sample provided or taken for the purposes of drug and alcohol testing by the Regulator under Part 3 Division 9. The penalty for this offence is $10,000.

11—Amendment of section 129—Oral fluid, urine sample or blood sample or results of analysis etc not to be used for other purposes

Section 129 of the Act provides that an oral fluid or blood test or the results of an analysis of an oral fluid or blood sample cannot be used for a purpose that is not contemplated by Part 3 of the Act or an application Act of a participating jurisdiction. This amendment extends the operation of this section to urine samples and urine testing.

12—Amendment of section 200—Temporary closing of level crossings, bridges etc

This amendment is consequential on the proposed changes to the definition of level crossing and deletion of the definition of railway crossing in section 4 of the Act by this measure. The amendment changes references to a railway crossing to references to a level crossing.

13—Amendment of section 244—Confidentiality of information

This clause amends section 244(3) of the Act to allow for the disclosure of information made or given in accordance with the Freedom of Information Act 1991 of this State as applied by the Rail Safety National Law (and as modified by the national regulations).

Debate adjourned on motion of Ms Hildyard.