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

Second Reading

Adjourned debate on second reading.

(Continued from 14 February 2019.)

Mr PEDERICK (Hammond) (17:07): I rise to support this important bill, the Rail Safety National Law (South Australia) (Miscellaneous No 4) Amendment Bill, noting that we are the lead legislator in regard to any of this national law. The bill amends the Rail Safety National Safety (South Australia) Act 2012, being the national law, by inserting new provisions relating to drug and alcohol testing, to provide an additional exemption to release documents under the Freedom of Information Act 1991 and to implement routine amendments arising from the national law maintenance process.

In December 2009, the Council of Australian Governments agreed to implement the National Rail Safety Regulator and develop a rail safety national law, which a regulator would administer. The National Transport Commission was tasked with developing this and the new Transport and Infrastructure Council was responsible for approving the national law. The Office of the National Rail Safety Regulator (the rail regulator) has an overarching function of working with rail transport operators, rail safety workers and others involved in railway operation to improve rail safety nationally.

It promotes safety, and safety improvement is a fundamental objective in the delivery of rail transport in Australia. As I indicated before, as the host jurisdiction South Australia is responsible for the passage of the national law and any amendment bills through the South Australian parliament and for the making of regulations to support the national law. 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.

For instance, Western Australia's parliament needs to first consider all amendments to the national law before they can be adopted. The national law came into operation on 20 January 2013 and the attached rail amendment bill is the fourth amendment package to come into play. The bill was drafted by the South Australian Office of Parliamentary Counsel and I thank them for their work. They did that work on behalf of the national Parliamentary Counsel's Committee.

In regard to this legislation, part of the new bill is about drug and alcohol management provisions. When approving the national law in 2012, the council requested a review of the current drug and alcohol legislative requirements, the scope of which the council approved in 2014. This review was completed in 2017 and considered by the council in May of 2018. It assessed and compared the effectiveness in detecting drugs and alcohol and providing a deterrent for rail safety workers against the differing legislative arrangements in relation to drug and alcohol management in the national law, other industries in Australia and the international rail industry. It has allowed a very comprehensive look right across not just the country but the globe.

All jurisdictions, except Victoria, supported the amendments relating to urine testing at the May 2018 council meeting. Since that time, Victoria has reconsidered its position and now supports the rail amendment bill. Consequently, the rail amendment bill was considered by the council again and approved on 9 November 2018. Section 127 of the national law 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.

The rail amendment bill complements section 127 by including the ability to require urine testing as an alternative method of testing rail safety workers for drugs and alcohol. New section 122A of the rail amendment bill amends the national law by defining what constitutes a urine test. It also amends the national law by including urine tests as a method of testing in section 127. In new section 127A the bill also inserts a requirement for a rail transport operator to do all that is reasonably possible to facilitate an authorised officer in exercising drug and alcohol testing powers.

New sections 128A, 128B and 128C in the bill amend the national law by prescribing offences and penalties for hindering, obstructing, assaulting, threatening or intimidating an authorised person, or interfering, tampering or destroying urine, oral fluid or a blood sample. The bill, in section 129, also ensures that urine tests, together with the existing oral fluid and blood for a drug test, cannot be used for any other purpose.

In regard to the Freedom of Information Act 1991 (SA), section 263 of the national law prescribes acts, including the Freedom of Information Act, that apply as laws of a participating jurisdiction for the purposes of the national law. Section 244 governs how information obtained or a document accessed applies to a person exercising any power or function under the national law.

Over the past five years, the rail regulator has encountered a number of instances where the interpretation of the Freedom of Information Act has been very complex and/or contrary to the intention of the national law and requires further clarification. Consequently, the Rail Safety National Law (South Australia) (Miscellaneous No 4) Amendment Bill includes an amendment to section 244 of the national law to provide an additional exception for the release of documents where lawfully provided for under the Freedom of Information Act and in regard to the national law maintenance amendments.

The operation of the national law is routinely monitored by the National Transport Commission, the rail regulator and the jurisdictions to ensure its effectiveness and identify the need for any other minor administrative amendments that may be required to better facilitate the operation of the national law. As part of this process, the bill contains the following routine amendments:

the ability to allow the rail regulator to access the use of private sector auditing as approved by council for the purpose of auditing the rail regulator's annual financial statements;

amending definitions in section 4 of 'level crossing' and 'rail or road crossing', and deleting the definition of 'railway crossing' to ensure consistency in the national law;

the creation of 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) for the same offences;

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

substitution of the deleted 'railway crossing' with 'level crossing' in section 200.

If the bill is passed by the South Australian parliament, the rail amendment act will come into operation on a day fixed by proclamation. A separate cabinet submission for this proclamation, together with approval to make, as drafted, the Rail Safety National Law National Regulations (Fees) Variation Regulations 2018, which will support the operation of the rail amendment bill, will be submitted for cabinet approval. The rail regulator has also requested that, once passed by parliament, the rail amendment act come into effect on 1 July 2019.

The proposed amendments in the bill were developed by the rail regulator in close consultation with the commonwealth, state and territory transport agencies and representatives of the Australasian Railway Association, the Australian Local Government Association and the Rail, Tram and Bus Union. All those consulted support the proposed amendments.

This legislation is about keeping our rail safe and keeping it operating into the future. I note that over time we have seen changes in the use of rail. It is getting to the stage now where the high-speed lines are some of the only lines in South Australia that are operating. Sadly, we saw decisions taken for a range of reasons several years ago with the Mallee lines: the line heading up through Karoonda to Loxton and the other line heading up through Lameroo to Pinnaroo. This mainly related to the deal stuck between Genesee & Wyoming and Viterra, who were the final operators on the line.

I remember commemorating and celebrating 100 years of rail out to the Mallee in 2006, my first year in this place. There is some really interesting history about different pioneers who initially went to areas throughout the Mallee—whether it was out through Karoonda to Loxton or out through Lameroo to Pinnaroo pre the rail line. They struggled out there on horseback or with horse and cart and cleared their blocks by hand to set up their livelihoods. A lot of those families are still present in the Mallee area today. At the time of the early 1900s, rail really opened up that country for future development. It allowed better and more efficient delivery of—

Mr Basham: Cream.

Mr PEDERICK: —cream, yes, according to the member for Finniss—a renowned dairy farmer from Mount Compass. That is exactly right. Rail was a vital part of delivering produce to larger towns and cities.

I remember that as a young bloke working on the farm, a few decades ago now, you would pick up your bags of fertiliser off those covered rail carriages. You would hate to do it now with the bulk of cropping in acres or hectares, whatever people call them now. It was pretty solid work. In the early 1900s right through to the latter part of the 20^th century, there was still a reasonable amount of stock being carted by rail.

Obviously, there were huge stockyards in place for both cattle and sheep at many rail yards. Tailem Bend had a huge saleyard adjacent to the rail yard, and it was a vital link. As time went on, it became far more efficient for larger road freight vehicles to pick up directly from the properties and deliver the stock to save the double handling. Back in the day, when the numbers were not so high and people were operating smaller concerns, smaller operations, it was a very vital link and also for getting grain out of the communities.

Thankfully, I am not much older because I would have had to be involved a lot more with the huge grain stacks that grew up around harvest time around all country sidings. I must commend the way the older farmers used to do it. There would be a bloke operating the harvester. They would do the bagging off the harvester and then they would pull up and put them all in a stack in the paddock. They opened bags and made sure they filled them up, using a funnel device to make sure they were topped right up. The bags were stitched up and carted into the stacks where they would use the elevators to pile up the many bags of grain.

As time passed, bulk handling was introduced. I remember when I was 17 that we had flat-topped rail wagons with sides. Back in the day, they were a few feet high, or probably only 1½ metres high on the sides, but if you put any bulk commodity in there (because they had doors on the side of them) you had to fill them in with newspaper before you could load them, otherwise you would have leaks all the way up the line. Things have progressed well from there.

Those same rail trucks were used for bringing fertiliser out to communities or for sending grain back through to Port Adelaide, in my case, or to other ports for distribution and sale. Rail has made a huge contribution. I have made mention of it in here before. Back in the early nineties, when I worked on the Melbourne-Adelaide rail standardisation project, sadly, as I have said here before, I was compelled to join the Australian Workers' Union for three months.

Mr Duluk: That's outrageous.

Mr PEDERICK: It is outrageous that I had to do that so I could have a job just as a contractor, just as a bloke operating his farm, looking for a bit of extra cash.

Mr Duluk interjecting:

Mr PEDERICK: That's right. No freedom of choice. For the member for Waite's information, it was the blackest three months of my life. I have said here before that I actually had to buy a union ticket just to better myself. I was only recounting—

The Hon. A. Koutsantonis interjecting:

Mr PEDERICK: If you want to talk on this, you can get up in a minute. I was only recounting—

The Hon. A. Koutsantonis: Deputy Speaker, I draw your attention to the state of the house.

A quorum having been formed:

The DEPUTY SPEAKER: The member for Hammond has three minutes to go, I believe.

Mr PEDERICK: Thank you, Mr Deputy Speaker. I want to talk about compulsory unionism now that I have got to it, and not just in relation to what happens on the rail. I mention this—

The Hon. A. KOUTSANTONIS: Point of order, sir: despite the eloquence of the member for Hammond, unionism is not on debate here, sir; the national rail law is the debate.

The DEPUTY SPEAKER: Member for West Torrens, I uphold your point of order. I bring the member for Hammond back to the debate in relation to the rail bill.

Mr PEDERICK: Thank you, Mr Deputy Speaker. I was just saying that back in the nineties when I was working on the—

Members interjecting:

The DEPUTY SPEAKER: Order! The member for Hammond is to be heard in silence. Could members find their place.

Mr PEDERICK: Thank you, Mr Deputy Speaker, for your protection. Back in the early nineties, when I was working on that Melbourne-Adelaide rail standardisation project—

Mr Duluk: With any union members?

Mr PEDERICK: We all had to be union members. It was outrageous. It was forced upon us.

The DEPUTY SPEAKER: The member for Hammond will not respond to interjections.

Mr PEDERICK: No, I am not worried about that.

The DEPUTY SPEAKER: No, but I am.

Mr PEDERICK: It is not unlike what the shoppies union inflicts on young workers, whether they are working in the Big Ws, Woolworths, McDonald's—

The Hon. A. KOUTSANTONIS: Point of order.

The DEPUTY SPEAKER: Member for West Torrens, I am guessing your point order and I am going to uphold it.

The Hon. A. KOUTSANTONIS: With the wisdom of Solomon, sir, it is relevance.

The DEPUTY SPEAKER: I ask the member for Hammond, in the remaining two minutes, which is not long, to come back to the Rail Safety National Law please. Direct your comments to that bill.

Mr PEDERICK: Sorry, Mr Deputy Speaker, I was just reflecting on how the shoppies union negotiated enterprise bargaining agreements under the award rate—how outrageous.

The DEPUTY SPEAKER: Member for Hammond, you are called to order. Have you finished?

Mr PEDERICK: No, I am still going, sir.

The DEPUTY SPEAKER: You are called to order, though.

Mr PEDERICK: I met some very interesting people back in those days when we worked on the rail, and I would like to catch up with some of those people. I would have done a few more weeks, but I had to get home to work on the farm. I worked on the section between Coomandook and just south of Keith. It was interesting—we had one of those moments that you see in the Wild West. We had crews from each end and we met for a photograph. There would have been 60 or 80 men in that photograph who completed the mission to make sure that we got some standardisation of rail into the Australian—

The Hon. V.A. Chapman: Did you have one of those things that you push up and down?

Mr PEDERICK: We had some of those wagons. We had an unclipping machine that roared along, but we had progressed from the hand pump: we had a Honda motor that kept it going, so progress had been made. What I would like to say in the few seconds I have left is that rail has done great things for this state and this country, and it is just a pity that some companies do not recognise the value of it moving forward to help make this country grow and prosper into the future as it should. I commend the bill.

The Hon. A. KOUTSANTONIS (West Torrens) (17:30): I am the opposition's responder to this bill. In the shadow of the lion of the Barossa—

The DEPUTY SPEAKER: Member for West Torrens, can I interrupt. Are you the lead speaker?

The Hon. A. KOUTSANTONIS: Yes, I am, sir. In words of compulsion, I just lost 10 minutes of my life I will never get back listening to the member for Hammond make an incoherent, rambling speech—

Members interjecting:

The DEPUTY SPEAKER: Order! The member for West Torrens is to be heard in silence. You have the call.

The Hon. A. KOUTSANTONIS: Thank you, sir, for your protection. It was an incoherent, rambling speech that did not touch on the issues. It went from fast-food workers to the Shop Distributive and Allied Employees Association, to the Australian Workers' Union, to some sort of rambling motions with his hands at the very end. If anyone in the public actually watched that contribution, they would say to themselves: how is our public money being spent on these debates?

What we have before us is a national reform. I was one of the ministers involved to help establish these national laws. They are vitally important because for far too long rail law has been considered a state-by-state jurisdiction issue. It was so obviously ad hoc and incoherent that for a large part of our Federation different gauges were rolled out across the country. Even to this day, we are still standardising national laws governing the movement of freight on rail.

The DEPUTY SPEAKER: Three separate gauges in this state alone.

The Hon. A. KOUTSANTONIS: Yes, sir. I blame Tom Playford personally.

The Hon. V.A. Chapman: They were there before him.

The Hon. A. KOUTSANTONIS: Not much was here before him, to his credit. I think that this reform deserves a little bit of respect, more than it was given previously. What the minister has brought into this parliament are some fundamental reforms that should be supported unanimously by this parliament, and we will. We will support them unanimously despite some of the objections by my Victorian colleagues initially about the nature of urine testing, which was so eloquently established by the member for Hammond in his keen understanding of the reforms before us. It is important to know that, as you cross jurisdictions, there is a consistency of urine analysis and drug testing for legal purposes, as there should be.

I think these are good reforms. I congratulate the council and I congratulate the minister. This legislation was not developed by the state government or by the cabinet, as we were told by the member for Hammond: it was developed nationally. When legislation is developed nationally, the Council of Australian Governments comes together and makes decisions about whether the reforms should be implemented. All other jurisdictions rely on the South Australian parliament to be the national lead legislator, as they do for the energy sector. I think it is a credit to both sides of this parliament that we are able to put our political differences aside and allow a process that occurs outside our state and our parliament to help dictate our laws for the greater good.

There were some people at the introduction of the process of the Council of Australian Governments (COAG) who were opposed to the idea of somehow allowing external bodies to dictate what legislation we would pass. Ultimately, the legislation before us today has been agreed to by the cabinet and will be agreed to by the parliament. There is no compulsion on us. What it really is, though, is good cooperative federalism. It shows that we can work together to come up with very good solutions.

I want to thank the minister and his office for the briefing notes they gave me. They were crudely read out to the parliament by the member for Hammond. Of course, he added his own fine touch, talking to us about stuffing in newspapers and jamming railway cars and so not allowing grain or other elements to leave, which was, I think, fascinating and added to the debate so much. The legislation is about drug and alcohol management and defining what constitutes a urine test. The methodology and the thinking behind this should be applauded.

I am not quite sure why my Victorian colleagues opposed this initially, but they have come to their senses and supported it. I assume that it was on the basis of some sort of legal process that they were concerned about or people being treated unfairly or some sort of compulsion for some sort of medical examination. I do not know the details; I was not at the council. However, if I had been at the council I would have agreed with minister Knoll that the right course of action here is, of course, for a national standardised test, and we support that.

The FOI legislation amendments I think speak for themselves; a consistent approach across jurisdictions makes sense. The maintenance amendments are very simple and go to the ability to allow the rail regulator to access the use of private sector auditing. I have no problem with that. It is a good cost-saving measure and allows a bit more nimbleness by the regulator by not requiring a wait on government auditing processes for the purpose of auditing the rail regulator's annual financial statements. I could be wrong here, but I understand that the rail regulator does impose levies to regulate the industry, so it is important that those finances are audited appropriately, as we heard said eloquently by the member for Hammond.

Also, allowing the regulator the explicit ability to enter premises for drug and alcohol testing I think is a good idea, and I am glad that the council has agreed to do so. The consequences of someone using this type of machinery or its associated machinery under the influence of drugs or alcohol could be life threatening and damage a very important industry that is the lifeblood of so many regional communities and the lifeblood of so many communities across the nation—which we heard said so eloquently from the member for Hammond. Of course, there are some other rats and mice amendments around the definition of railway crossings, etc.

Without wanting to labour the point, the Labor opposition will support this process through all stages in both houses of parliament speedily. I understand from speaking to my colleague the member for Lee that this process began a long time ago, and it is my unfortunate duty to report the slowness of the process of national reforms. One of the great things about our parliament is that once those reforms are agreed we have a speedy passage to get it started.

The nation is relying upon us to get these reforms done, as we heard so eloquently again from the member for Hammond in his contribution to the house. Wasn't it a fine example of parliamentarians speaking with authority on an issue before the parliament of such significance to the nation, as the member for Hammond just did? Wow, people watching it would have been so impressed. With those few words, I hope we can pass this legislation quickly and get it through the House of Assembly through all stages and get it to the upper house to be passed through all stages for assent so that it can become the national rail law. I commend the bill to the house.

Debate adjourned on motion of Hon. D.C. van Holst Pellekaan.