Rail Safety National Law (South Australia) (Alcohol and Drug Offence) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 27 May 2021.)

Mr ODENWALDER (Elizabeth) (12:07): I rise to speak on the Rail Safety National Law (South Australia) (Alcohol and Drug Offence) Amendment Bill 2021 and indicate that I will be the lead speaker for this bill—incongruously, perhaps. Many industries have a drug and alcohol testing regime, and for very good reason. Often, it is the case in construction and civil aviation, for example, that impairment from drugs or alcohol could cause a catastrophic or serious injury or loss of life to either the employee or someone else around them. For that reason, those industries have quite well-developed drug and alcohol testing regimes, I think particularly in the construction industry.

I was peripherally involved in the Northern Connector project during the term of the last government, and I saw the drug and alcohol testing regime up close and saw some of the results. I will get to those in a minute. Other agencies of course have their own drug and alcohol testing regimes. These are not the same as those in the construction industry as there is not the risk of catastrophic mistakes being made in the normal or perhaps repetitive activities that you might perform.

The police, corrections and the security industry need to make very quick tactical decisions. In the case of the police, a situation may escalate very quickly, and any impairment due to drugs and alcohol in a situation like that, or indeed in a high-risk driving environment, would of course be absolutely intolerable. So we have these regimes in place: we have them in construction, we have them in civil aviation, we have them in police and corrections, and, of course, we have them in rail safety, which is what we are talking about today.

I should note that the drug and alcohol testing regimes are not perfect, and there is a very significant complication related to cannabis, by way of example. The half-life of cannabis in a person's system is very long. I do not have the figures in front of me, but it is very long. You could consume cannabis on one date, attend work on a much later date and still be found positive when tested for the presence of cannabis. Of course, unlike alcohol testing, drug testing in this context does not recognise degrees of intoxication, degrees of prescribed blood limits—alcohol does, but drugs do not.

When you have a drug like cannabis, which has a very, very long half-life and sits in a person's system for a long time, it makes it very difficult to test, particularly for impairment. This is not in any way a defence of the consumption of cannabis; I am merely pointing out some of the difficulties in constructing these drug testing regimes. It becomes even more complex, of course, when you factor in medicinal cannabis. There is a very alive and worthy debate about how medicinal cannabis should be treated in drug—

The Hon. A. Koutsantonis interjecting:

Mr ODENWALDER: Perhaps I am digressing, but there is a legitimate debate to be had about medicinal cannabis and how that might affect drug testing regimes in industries like construction, rail safety, police and corrections. There is also a debate—which I will not go into any further because it is the subject of a bill in another place—about the impact of medicinal cannabis on driver drug testing.

Drug and alcohol testing does exist for a very good reason: it is there for our safety and it is reflected in rail safety legislation. There is a national law and, in this case, South Australia is the lead legislator. The Rail Safety National Law establishes a co-regulatory system under which rail safety operators assess the risks associated with their operations and then they establish a safety management system around that to manage those risks.

Like many other industries—construction, civil aviation, security, police and corrections—the national law puts in place strict guidelines around the prescribed concentration of alcohol or the presence of a range of drugs in the system of the worker because, as I said, there is a difference between alcohol and drugs in that our current systems do not test for degrees of either the presence of a drug or the extent to which a person is affected by that drug.

Division 2 of the Rail Safety National Law (South Australia) Act 2012 sets out the procedures relating to testing and analyses. These procedures apply when an authorised person requires a rail safety worker to submit to testing under section 126 of the national law. Section 12 sets out the alcohol testing procedures and it states:

A preliminary breath test or breath analysis [this is regarding alcohol] to which a rail safety worker has been required to submit may not be commenced more than 8 hours after the worker has ceased to carry out rail safety work or more than 8 hours following a prescribed notifiable occurrence…

Those provisions are set out elsewhere in the act. It further states:

A rail safety worker required to submit to a preliminary breath test or breath analysis must not refuse or fail to comply with all reasonable directions of an unauthorised person in relation to the requirement and, in particular, must not refuse or fail to exhale into the apparatus by which the preliminary breath test or breath analysis is conducted...

Importantly, it also sets out circumstances where a worker refuses a test and states, amongst other things, that a rail safety worker is not entitled to refuse or fail to comply with a requirement or direction under this section on the grounds that, first of all, the worker would or might, by complying with that requirement or direction, provide evidence that could be used against himself or herself—which is standard—but also that the worker consumed alcohol after the worker last performed rail safety work.

The timing of these tests is always important. Notwithstanding my comments about cannabis and the half-life of cannabis, the timing of tests for alcohol and drugs in your system is important and the time at which the alcohol was consumed is important. Similarly, section 13 sets out the drug testing regime:

(2) A drug screening test, oral fluid analysis or blood test to which a rail safety worker has been required to submit may not be commenced more than 8 hours after the worker ceased to carry out rail safety work or more than 8 hours following a prescribed notifiable occurrence (as the case may be).

Again, a rail safety worker is not entitled to refuse or fail to comply with a requirement or direction under this section or section 127 of the Rail Safety National Law on the grounds that, among other things, the worker consumed a drug or alcohol after the worker last performed rail safety work or was involved in a prescribed notifiable occurrence, as the case may be, but before the requirement was made or the direction given. So, again, timing is important in this type of testing. The way the regime is implemented is further governed by the Rail Safety National Law (South Australia) (Drug and Alcohol Testing) Regulations 2012.

This bill amends section 128 of the act. Section 128(1) of the act provides that it is an offence for a rail safety worker to carry out, or attempt to carry out, rail safety work—that is an important phrase—while the worker has the prescribed concentration of alcohol present in their blood or a prescribed drug present in their blood or oral fluid or is under the influence of alcohol or drugs such that they are incapable of effectively discharging a function or duty of a rail safety worker. Of course, it is the wording 'to carry out, or attempt to carry out, rail safety' that is ambiguous.

This bill, and the proposed amendments to section 128, inserts new subsection (1a), which provides that, for the purposes of this offence, a rail safety worker will be taken to be carrying out, or attempting to carry out, rail safety work if the worker has arrived at work and has signed on or is otherwise on duty. I will need some clarification in the committee period about the difference between arriving at work and signing on and otherwise being on duty for the purposes of carrying out rail safety work.

The Rail Safety National Law (South Australia) (Alcohol and Drug Offence) Amendment Bill 2021 clarifies that a rail safety worker will be taken to be carrying out rail safety work when he or she has arrived at their place of work and has signed on and is available or otherwise on duty. According to briefings received by me and the shadow minister for transport, the member for West Torrens—a useful briefing we received—we were told that a worker who has been subject to alcohol and drug testing under sections 126 and 127 of the national law may only be prosecuted for an alcohol or drug offence under section 128 if they are—and again these key lines—'carrying out or attempting to carry out rail safety work'.

It is not always clear when a worker has begun rail safety work. At which point in their working day are they simply on duty, or are they being called upon to conduct rail safety work or are they, in actual fact, carrying out rail safety work? Obviously, we do not want ambiguity in the law like this. I do not believe that ambiguity exists in the Police Act, for instance, or in the corrections act, which the minister and I worked on recently, on that particular regime. We do not want ambiguity in the law like this, particularly when we are talking about laws that are designed to protect people's safety and protect employees' and workers' safety and the safety of those people who use rail.

If there is any ambiguity in relation to establishing whether the worker is carrying out, or attempting to carry out, rail safety work, as our briefing suggested there may well be—and I will be interrogating that a little in the committee stage—this obviously can impact on the regulator's ability to prosecute in relation to section 128. The Rail Safety National Law (NSW) and the Rail Safety National Law Application Act 2013, the Victorian act, both define 'about to carry out rail safety work'.

The proposed amendments, we are told in the minister's second reading, align with similar provisions in the Civil Aviation Safety Regulations. I have not had time to check the various regulations around the construction industry, but I am assuming they have some sort of similar provisions in them. The Civil Aviation Safety Regulations include offences for workers if they are present in an aerodrome testing area and are performing or are available to perform a safety-sensitive activity. As I said, it also aligns with measures in place in the construction industry, security industry and in various government agencies, particularly SAPOL and more recently corrections.

We were again advised in the minister's second reading explanation that in March of this year infrastructure and transport ministers agreed to these amendments, apparently and tantalisingly, along with amendments to the national regulations dealing with exemptions from FOI laws. In September 2020, the national law maintenance advisory group was consulted on the drafting instructions for these bills. That advisory group comprises, as you would expect, commonwealth, state and territory governments, and also rail industry representatives. We are advised by the government that no issues were raised and the bill was endorsed by the Transport and Infrastructure Senior Officials' Committee in October 2020.

Drug and alcohol testing regimes are very important in protecting not only workers but also people who may use or employ the services of those workers. In the case of police, corrections and security, the drug and testing regimes are important in order to keep particularly the employees safe, where they have to make very difficult and swift decisions, whether they are on their basic patrol duties or in the case of urgent duty driving. It is very important we have these regimes.

If I have not already stated so, I am pleased to support this bill. The opposition supports this bill on the basis that it does clarify our situation and it enables far less ambiguity in relation to prosecutions under section 128. We will have some questions in the committee stage. As I said, drug and alcohol testing is an important pillar of worker safety in this country and any enhancement to that regime is to be welcomed. I commend the bill to the house.

The Hon. A. KOUTSANTONIS (West Torrens) (12:21): Often these pieces of legislation, these national law reforms, come to the parliament on the basis of a pending court case or a pending testing of the legislation. I think it would have been better to allow the courts to adjudicate on this before we made the change. I have to say, I think the law is pretty clear as it stands, but the opposition will agree to the changes being promoted by the ministerial council.

I think it is pretty obvious that anyone turning up to work who is going to be attempting to do work on rail safety should be drug free and alcohol free while they are at work. Having to make these changes shows how some of our legislation needs to be in plainer language across the board because of the way courts are interpreting the legislative framework. When we first introduced this legislation nationally, obviously the drafters intended that everyone at work not be under the influence of anything that would inhibit their ability to conduct their work, whether it be alcohol or drugs.

Somehow some very clever lawyer has made an argument, probably in a magistrates court in New South Wales, that if you are employed in rail safety and you are a driver or working on rail safety and you turn up to work with alcohol or drugs in your blood system, the state cannot make a case against you because they have to prove intent to work on rail safety. I think by turning up to work that takes care of that. Anyway, here we are to repair that.

The opposition will support the government in making these changes because it is important that we listen to the expert advice on these matters. Again, I grow increasingly frustrated at the ability of some of our courts to misinterpret what the intent of our legislation is and to require these changes to be so prescriptive that the tighter we attempt to make this legislation, the more people slip through it.

I think this is an important reform the government want us to rush through the house, and we will do that. I thank the government for the briefings they have offered us and I thank the minister for the way he has conducted himself during this; it has been completely bipartisan and helpful. I thank the officers for being available to the opposition, and I thank my shadow ministerial colleague on carriage of this bill during a very busy time.

I commend the bill to the house, without any further debate, for a speedy and rapid pass through the House of Assembly. I can inform the government that when this goes to the upper house, the opposition will be supporting it unamended. I am not sure we have any questions in the committee stage on the one clause. Do we?

Mr Odenwalder: Yes.

The Hon. A. KOUTSANTONIS: We do, yes. We have some questions, and after that there will be a speedy passage through both houses of the parliament.

Mr PEDERICK (Hammond) (12:25): I rise, too, to support the Rail Safety National Law (South Australia) (Alcohol and Drug Offences) Amendment Bill. It is not very often that I am in agreement with the member for West Torrens.

The Hon. A. Koutsantonis: That's not true. We have been on the same side for a while now.

The DEPUTY SPEAKER: Order!

Mr PEDERICK: Well, yes, we were side by side a couple of weeks ago in this place—

The Hon. A. Koutsantonis: We were.

The DEPUTY SPEAKER: Order!

Mr PEDERICK: —at 1.30 in the morning and a couple of weeks before that as well. It is fascinating, sometimes, what happens in this place. This is important legislation, as outlined by the member for West Torrens and the member for Elizabeth. I actually acknowledge his commentary on medicinal cannabis because I am certainly a supporter of medicinal cannabis. I would like to see, as testing is rolled out, that we do not have any inadvertent outcomes.

There is talk of manufacturing plants around the state getting going under a very controlled framework, and, of course, it can be very beneficial to people. But you can have problems with testing, and I heard of one recently where there was false positive to methamphetamine, and that caused a young lad quite a bit of distress. It got sorted through—

Mr Odenwalder: It was human error.

Mr PEDERICK: Well, it can happen. Yes, humans are involved. But it can obviously be distressing for a range of reasons, and for a young person, a teenager or young adult, it can obviously have job-threatening circumstances, as drink-driving does. Certainly, in the role of safety at work, things have moved in leaps and bounds. Most of my life, I have been either self-employed or worked as a shearer, but I spent some of my time in the Cooper Basin for a couple of years in the early eighties, and let me just say that things were a little bit more cavalier than they are now.

We had some interesting times. I was earthmoving for 12 months. What I will say is that the actual oil rig companies took the lead, even back then and earlier than that. Obviously, working on the floor of a rig is very dangerous work. I was happy to see it live one day when I had to call in at an oil rig out near Tirrawarra out from Moomba—and you would not be able to do it now—because I was running out of fuel. The driller said, 'Just stand there in the corner.' I did not have any high-vis vest on and just watched them run pipe. It was pretty interesting, as they had the turntable running and throwing the chain, as they did in the day. They are all a bit different now: they are top-drive rigs.

It was interesting how things were controlled. Certainly, someone working on an actual rig crew was limited to how many beers they could have on a night. I think that now most of them are dry camps. Certainly, the restrictions at mining camps have tightened right up—and rightly so—on general workers in that sort of industry, and I fully understand it.

I note that many jobs, whether they be in construction, machine work, engineering or maintenance, or whether they be in the meatworks industries—in abattoirs, of course, drug and alcohol testing is mandatory, and, let's be frank, that can cause some issues with retaining staff.

However, people need to be aware of the requirements. You have to be fit for work. Certainly, in an engineering sense, you have to be very sharp of mind working with heavy equipment. If you were on the kill floor at an abattoir and plenty of people next to you were swinging sharp knives, you would like to know that they were in control of their actions.

This bill in relation to national law—and I acknowledge the concerns that the member for West Torrens had in regard to a legal case—will clarify that a rail safety worker will be taken to be carrying out rail safety work when they arrive at their place of work, have signed on and are available, or otherwise, for duty.

The proposed amendments to this legislation clarify that a worker who has arrived at their place of work and signed on for the purpose of undertaking rail safety work and is available to undertake rail safety work, or is otherwise available, is deemed to be carrying out or attempting to carry out rail safety work; and I note that the member for Elizabeth will have some questions around that in committee.

Our state is the lead legislator for this legislation, and this amendment bill has been drafted on behalf of the national Parliamentary Counsel's Committee. The main driver in this legislation is to remove any ambiguity in relation to establishing whether a rail safety worker is carrying out or attempting to carry out rail safety work. I think this is the nub of the point, as the member for West Torrens alluded to, because this can impact the regulator’s ability to take forward a prosecution for a drug and alcohol breach under the rail safety national legislation.

It would be remiss of me to talk about rail and not give a brief exposé of what I have always said were the darkest three months of my life when I worked as a contractor and I had to join the Australian Workers Union. There was compulsory union membership. I signed the form only because I needed the money. I worked on that Melbourne-Adelaide rail standardisation project just north of Coonalpyn down towards Keith. That was standardising the rail gauge from broad gauge to standard gauge.

I acknowledge my young shearing friend at the time, Mark Elliott, who was my crew member. We were on there for several weeks before the big push went on adjusting the gauge. We were using an unclipping machine and slowly unclipping the track. They were still running trains, obviously, but train speeds had to slow down. We left most of the clips on the corners until the final push over Easter, but it was managed quite well.

Then we had the big push over the four days of Easter to do the final job. Concrete sleepers had been put in. The rail was lifted up to about waist height. There was a lot of manual labour as the pads were turned and then, as the machine moved along, the rail slotted down in the new slots at the standard-gauge width instead of the broad-gauge width. That was a legacy of our forefathers across all the states building different gauges, whether it be narrow, standard or broad.

I would like to acknowledge that I met many interesting characters on that job. I must say that they worked incredibly well over long days, from about six in the morning until six at night, because the job had to be done. During one failure of the machine that we were unclipping with—it was really meant to be a maintenance machine, not doing tens of kilometres of unclipping rail clips—I sat in a supervisor's car.

It was great: when the machine breaks down, it is not like when you are working for yourself at home on the farm. You call out the mechanics van and they come up and fix it. You use the hand tools for a while, which you did until you got puffed out. I sat in the van, and the supervisor said, 'Have a look at this.' I said, 'This plan says we are only supposed to be able to do eight kilometres a day.' I said to the bloke, 'We are doing 16.' He said, 'That's alright. Just keep it up.'

It was an interesting time and interesting work. Apart from having to buy the ticket—I managed to get through my shearing career without buying one—it was valuable for my income at the time. Certainly, in the broader sense, I acknowledge the reasons why we are putting this rail safety national law through. We do have to make sure people are safe. That does concern me if, as has been indicated by the member for West Torrens, we are fixing up legislation because someone has managed to find a slight hole in what has been legislated previously. With those few words, I support the passage of the bill.

The Hon. C.L. WINGARD (Gibson—Minister for Infrastructure and Transport, Minister for Recreation, Sport and Racing) (12:36): I would like to thank all the members for their contributions: the member for Elizabeth, the member for West Torrens and, of course, the mighty fine member for Hammond. I thank them for that as far as this important legislation is concerned. I would like to thank the staff involved for putting the bill together. As the member for West Torrens said, they were very diligent in everything they did, and I thank them very much for their help with that. I hope that we can move this efficiently and effectively through the committee stage.

Bill read a second time.

Committee Stage

In committee.

The CHAIR: The title is nearly longer than the bill itself. There are four clauses and a title.

Mr ODENWALDER: I have plenty of questions about the title, sir.

The CHAIR: I am sure you have.

Clause 1.

Mr ODENWALDER: I jest. I will try to get through this as quickly as possible. I do just have some very brief questions. I will, since it is a convenient place, ask my first question at clause 1, if that is okay. Regarding consultation, I understand that industry groups and, obviously, state, local and commonwealth governments were consulted. During this consultation, or during the framing of this amendment, was there any objection to this measure, particularly, I am thinking, from unions or workers' representatives? Was there any rejection of it at all?

The Hon. C.L. WINGARD: No.

Mr ODENWALDER: We are going even faster than I thought, sir. My follow-up question again goes back to the concerns I have and the member for Hammond has. Were any concerns raised about the testing for cannabis or medicinal cannabis, either now or into the future?

The Hon. C.L. WINGARD: I am informed no. Just to clarify, for the member's edification, I am informed that it is only the oral testing that is used, which means it is not kept in the system as long, whereas with the blood testing, I am told, it stays in the system longer. The oral testing is the form of testing that they use.

Mr ODENWALDER: I do not have the act in front of me. I thought there was a reference to blood testing, but in any case I will take your word for it. I am happy with that. I will move on to clause 4, if that is possible.

Clause passed.

Clauses 2 and 3 passed.

Clause 4.

Mr ODENWALDER: The member for West Torrens raised the issue of the impetus for this bill. According to the minister's second reading speech and the briefings we had, the original wording of the act threatened to derail certain prosecutions under section 128. I am wondering if the minister can enlighten the house about what those cases may have been, how many prosecutions have been lost as a result of this ambiguity, if any, and in which jurisdictions.

The Hon. C.L. WINGARD: Just to clarify my previous answer too, I may have said blood testing. My apologies; it is urine testing that keeps it in the system longer. That is why they do the oral testing. I am told there are a couple of cases that have not been able to go forward and the reason is that they can test now if you are about to do the work, but they cannot prosecute if you have a positive test when you are about to do the work. If you are tested when you are attempting to do the work, you can be prosecuted, if that makes sense. There is a slight difference. We are clarifying it to say that the testing is all happening when you are attempting to do the work because that way, if there is a positive test, the prosecution can proceed.

Mr ODENWALDER: I understand the bill. What I am asking, though, is what was the impetus for the bill? Were there failed prosecutions on the basis of the original wording of the act?

The Hon. C.L. WINGARD: Yes, as I outlined at the start of the previous answer, there were two that could not go forward in New South Wales, I think. To clarify, so that there is not that impediment, if we just have the one definition, if you like, and we stick to that, it will make it far clearer for prosecutions going forward.

Mr ODENWALDER: I apologise; I did not hear your references to New South Wales before, that there were two cases in New South Wales. My next question at clause 4 is: can you clarify what we mean by signing on, just so there is no further ambiguity? Further to that, to hurry things along, what circumstances would fit the bill for being 'otherwise on duty', which is not signed on? Why are we introducing this kind of catch-all, 'otherwise on duty' provision? I guess what I am asking is: when would a worker be on duty but not signed on?

The Hon. C.L. WINGARD: The explanation here is that if someone is signed on or they are on duty, it is the same thing. If someone rocks up to work and they are sitting in the car park, they are not signed on or on duty, but once they are signed on or on duty they are deemed to be doing the work. Fundamentally, I suppose you could explain it that if they are signed on and being paid then they are considered to be signed on or on duty. If they have pulled up in the car park, then they are not considered to be signed on or on duty. Does that clarify that?

Mr ODENWALDER: No, with respect.

The CHAIR: Point of clarification, member for Elizabeth?

Mr ODENWALDER: Point of clarification, yes, indeed. There are two provisions: new subsections (1a)(b)(i) and (1a)(b)(ii). One is when the worker has signed on for the purposes of carrying out rail safety work, which is pretty much what you just described and pretty easy to understand, but then subparagraph (ii) states 'is otherwise on duty for the purposes of carrying out rail safety work'. I am just wondering what that means. It is suggesting something different from signing on, being 'otherwise on duty'.

The Hon. C.L. WINGARD: To clarify a little bit further from what my answer was before, if someone has signed on, they are at work. They are signed on and ready to go. They might just be sitting in the crib room. They might not be doing any work, but they are deemed to be signed on, therefore they are subject to the testing, obviously. If they are otherwise on duty and performing a task—they have gone beyond that stage; they might be out in the field doing something—they are, in that description, on duty for the purpose of carrying out the rail safety work.

So there are two steps: one is actually signing on and being there, and you are covered there; the other is you are out in the field and you are doing some work, and you are doing that work for the purpose of carrying out rail safety work, and that covers you there as well.

Clause passed.

Title passed.

Bill reported without amendment.

Third Reading

The Hon. C.L. WINGARD (Gibson—Minister for Infrastructure and Transport, Minister for Recreation, Sport and Racing) (12:45): I move:

That this bill be now read a third time.

Bill read a third time and passed.