Legislative Council Fifty-Third Parliament, Second Session (53-2) 53 2 Parliament of South Australia Legislative Council published Bills Rail Safety National Law (South Australia) (Miscellaneous) Amendment Bill Rail Safety National Law (South Australia) (Miscellaneous) Amendment Bill Rail Safety National Law (South Australia) (Miscellaneous) Amendment Bill Second Reading Second Reading The Hon. K.J. MAHER Legislative Council Minister for Manufacturing and Innovation, Minister for Automotive Transformation, Minister for Aboriginal Affairs and Reconciliation The Hon. K.J. MAHER (Minister for Manufacturing and Innovation, Minister for Automotive Transformation, Minister for Aboriginal Affairs and Reconciliation) (16:24): I move: That this bill be now read a second time. I seek leave to have the second reading explanation inserted in Hansard without my reading it. Leave granted. I am pleased to introduce the Rail Safety National Law (South Australia) (Miscellaneous) Amendment Bill 2015, which provides for amendments to the Rail Safety National Law. The Rail Safety National Law (the National Law) is contained in a schedule to the Rail Safety National Law (South Australia) Act 2012. The National Law commenced operation on 20 January 2013. The Office of the National Rail Safety Regulator (the Regulator) was established as a body corporate under the National Law, with its scope now including New South Wales, Victoria, Tasmania and the Northern Territory through legislation enacted in those jurisdictions. It is expected that the National Law will also be operating in Western Australia by May 2015. During its first year of operation, the Regulator has successfully discharged its obligations under the National Law facilitating the safe operation of rail transport in Australia, including by providing a scheme for national accreditation of rail transport operators and promoting the provision of advice, information, education and training for safe railway operations. After making an outstanding contribution to the work of the Regulator in its early years, the inaugural Chief Executive Officer, Mr Rob Andrews, resigned and returned to England. He has been replaced by Susan McCarry, formerly the Deputy Director-General, Policy, Planning and Investment in the Department of Transport of Western Australia. Her experience in the rail industry and her expertise in government policy and regulatory reform processes will be of great benefit to the Regulator as it moves forward and matures. Since the National Law's commencement, the need for minor amendments has been identified. These minor amendments will improve the Law's operation by: removing a phrase from section 12 of the Rail Safety National Law (South Australia) Act, to ensure consistency in drafting style. This amendment has no substantive effect, relates only to the South Australian application provisions and does not amend the National Law itself; substituting the word 'cancel' for 'revoke' throughout the National Law to ensure consistent terminology; removing the requirement that before requiring a person to appear in person to provide evidence or documents, the Regulator must first take all reasonable steps to obtain information of which the person has knowledge in the form of a written statement or by production of documents; giving the Regulator an express power to suspend the accreditation of a rail transport operator for not paying its annual fee. The Regulator already has the power to suspend accreditation for a failure to pay an annual fee under existing broad powers in the National Law. An amending provision that expressly provides for the power to suspend is preferable because it is widely accepted that the most suitable response to a failure to pay an annual fee would be a suspension of that rail transport operator's accreditation. The amending provision gives the Regulator discretion to suspend the accreditation until payment of the late annual fee and to withdraw a suspension if an instalment plan for payment of the fee is made or for some other reasonable cause. Prior to suspending accreditation, the Regulator must notify the rail transport operator in writing of the intention to suspend. The Regulator's existing broad power to suspend, revoke, vary or impose conditions on accreditation will remain, in order to allow the Regulator to appropriately respond to other contraventions of the National Law; inserting an express requirement for rail infrastructure managers of registered private sidings to provide an annual activity statement to the Regulator. The requirement will allow the Regulator to better monitor the operational risk of registered private sidings. The maximum penalty for failing to submit a statement in accordance with the new requirement will be $5000 for an individual and $25,000 for a body corporate. The new provision will also become an infringement penalty provision, attracting an infringement penalty of $1,000. The penalties for the new provision are the same as those imposed for rail transport operators failing to submit a safety performance report; inserting a note at the foot of section 128(1) of the National Law to point out that, in some participating jurisdictions, provision is made that a positive breath sample from a person will be taken to indicate a concentration of alcohol in the person's blood for the purposes of the National Law. The note is considered necessary to explain that, while the National Law refers only to blood samples in the offence provision of section 128, the application laws of some jurisdictions provide that a reference to 'blood' is to be taken to include a reference to 'breath'; substituting the word 'rail infrastructure' for 'structure' to fix a typographical error in section 145 of the National Law. A rail safety officer has the power to enter or open rail infrastructure to examine the structure. To be consistent with the drafting of the rest of the paragraph of the section, the full term 'rail infrastructure' should be used in both cases; creating a new power that enables a rail safety officer to direct a person to produce documents. Currently, rail safety officers are only able to require production of documents when they are on railway premises. This inhibits their ability to perform their functions and oversee the safety management of railway premises. The maximum penalty for the new offence associated with failing to comply with a direction to produce a document without reasonable excuse will be a $5,000 fine; and inserting a power to allow the Regulator to waive or refund the whole or part of the fee to a person who applies for an exemption from provisions of the National Law. This power will provide consistency with the other powers of the Regulator to waive fees for accreditation and registration. The current fee for applying for an exemption is $1,000. This is the same as the fee for applying for registration and may be a significant cost for a smaller tourist and heritage rail transport operator. The Bill has the support of major stakeholders, including industry associations and the Rail, Tram and Bus Union. I commend the Bill to Members. Explanation of Clauses 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 (South Australia) Act 2012 4—Amendment of section 12—Conduct of preliminary breath test or breath analysis This amendment deletes certain words in section 12(1) to ensure consistency in style with section 13 and is not substantive. Part 3—Amendment of Rail Safety National Law 5—Amendment of section 4—Interpretation This clause amends the definitions of accredited person and registered person in section 4 to ensure consistency of terminology with other provisions of the Law and is not substantive. 6—Amendment of section 20—Power of Regulator to obtain information This clause deletes subsection (4) to remove the requirement that before requiring a person to appear in person to provide evidence or documents, the Regulator must first take all reasonable steps to obtain information of which the person has knowledge in the form of a written statement or by production of documents. 7—Amendment of section 72—Regulator may make changes to conditions or restrictions This clause amends section 72 to ensure consistency of terminology with other provisions of the Law and is not substantive. 8—Amendment of heading to Part 3, Division 4, Subdivision 4 This amendment is consequential. 9—Amendment of section 73—Cancellation or suspension of accreditation These amendments to section 73 are to ensure consistency of terminology with other provisions of the Law and are not substantive. 10—Amendment of section 76—Annual fees Section 76 of the National Law provides for the payment of the annual fee either as a lump sum or by instalments under an agreement. This amendment provides the Regulator with an ability to suspend the accreditation of a person for failing to pay the annual fee as so required. Before doing so, the Regulator must give the accredited person notice of his or her intention and give the person the opportunity to pay the outstanding fee (or instalment) or to negotiate (or re-negotiate) an agreement for payment. The Registrar also has the power to withdraw a suspension. 11—Amendment of section 91—Regulator may make changes to conditions or restrictions This clause amends section 91 to ensure consistency of terminology with other provisions of the Law and is not substantive. 12—Amendment of heading to Part 3, Division 5, Subdivision 4 This amendment is consequential. 13—Amendment of section 92—Cancellation or suspension of registration These amendments to section 92 are to ensure consistency of terminology with other provisions of the Law and are not substantive. 14—Insertion of section 96A This clause inserts new section 96A. 96A—Annual activity statements This provision requires that a rail infrastructure manager must provide the Regulator with an annual activity statement about the manager's railway operations carried out in a private siding that comes under section 83 of the Act. The statement must comply with the national regulations and must contain a description of the railway operations carried on in the siding, details of any changes to the railway operations, rolling stock or rail infrastructure and a description of risk management processes that apply to the siding. The report is to relate to the financial year or such other period agreed with the Regulator. 15—Amendment of section 128—Offence relating to prescribed concentration of alcohol or prescribed drug Section 128 of the Act makes it an offence for a rail safety worker to carry out rail safety work while there is a prescribed concentration of alcohol in his or her blood. This clause inserts a note at the foot of section 128(1) of the Act to indicate that in some jurisdictions, a concentration of alcohol in a sample of a person's breath will be taken to indicate a concentration of alcohol in a person's blood. 16—Amendment of section 145—General powers on entry This clause corrects the reference to 'structure' to refer instead to 'rail infrastructure'. 17—Insertion of section 168A This provision inserts new section 168A 168A—Power to direct production of documents This clause provides a rail safety officer with the ability to direct a person to make certain documents available for inspection or production. If a rail safety officer gives such a direction he or she must warn the person that it is an offence not to comply without a reasonable excuse. In an offence under this clause, the accused will have the burden of showing they had a reasonable excuse not to comply with the direction. 18—Amendment of section 203—Ministerial exemptions This clause amends section 203 to ensure consistency of terminology with other provisions of the Law and is not substantive. 19—Amendment of section 212—Regulator may make changes to conditions or restrictions This clause amends section 212 to ensure consistency of terminology with other provisions of the Law and is not substantive. 20—Amendment of heading to Part 6, Division 2, Subdivision 4 This amendment is consequential. 21—Amendment of section 213—Cancellation or suspension of an exemption These amendments to section 213 are to ensure consistency of terminology with other provisions of the Law and are not substantive. 22—Insertion of Part 6, Division 2, Subdivision 6 This clause inserts new section 214A. Subdivision 6—Waiver of fees 214A—Waiver of fees This provision provides that the Regulator may waive or refund the whole or part of any fee that is payable in relation to an application by a rail transport operator for an exemption from certain provisions of the Law granted by the Regulator. 23—Amendment of section 215—Reviewable decisions These amendments to section 215 are to ensure consistency of terminology with other provisions of the Law and are not substantive. 24—Amendment of section 233—Meaning of infringement penalty provision This amendment inserts a reference to section 96A in the table listing the provisions of the Law to which an infringement penalty applies and is consequential on clause 14 of this measure. 25—Amendment of section 249—Approved codes of practice These amendments to section 249 are to ensure consistency of terminology with other provisions of the Law and are not substantive. Debate adjourned on motion of Hon. A.L. McLachlan.