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Legislative Council - Fifty-First Parliament, Second Session (51-2)
2007-10-25 Daily Xml
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RAIL SAFETY BILL

Second Reading

Adjourned debate on second reading (resumed on motion).

(Continued from page 1141.)

The Hon. P. HOLLOWAY (Minister for Police, Minister for Mineral Resources Development, Minister for Urban Development and Planning) (12:45): When we were discussing this measure some time back, I indicated that there were a couple of issues I wanted to put on the record. First of all, the Hon. John Dawkins asked a question about the construction of the tramline extension. The tram extension was constructed by Coleman Rail, which has a contract to design and construct the tramline, as well as having the rail safety accreditation in South Australia to undertake that task. Also, my advice is that TransAdelaide, which is operating the trams, does have rail safety accreditation to operate trams and maintain the infrastructure. I trust that information adequately covers the issues raised by the Hon. John Dawkins.

The Hon. Dennis Hood raised some issues with the minister, and I think he indicated in his second reading speech that he had received a response from the minister. I agreed that I would at least put those issues on the record and acknowledge the Family First interest in these matters and the fact that the government had responded to them. The first issue related to the prescribed concentration of alcohol: that is to be prescribed in regulations, as provided for in clause 4—Interpretation—as follows:

prescribed concentration of alcohol means the concentration of alcohol present in the blood of a person that is prescribed by the regulations (being a specified amount, or any greater amount, of alcohol in 100 millilitres of blood);

It is intended to be prescribed consistently with regulation 9 of the existing Rail Safety Regulations 1998, which prescribes a concentration of 0.02 grams or more of alcohol in a 100 millilitres of blood for the purpose of section 30 of the existing act.

The Hon. Dennis Hood also referred to the interaction between the Occupational Health, Safety and Welfare (Penalties) Amendment Bill, which this chamber completed considering this week. He asked whether that bill harmonises completely with this bill. My advice is that clause 12 of the Rail Safety Bill provides that, if there were any inconsistency between that act or regulations and a provision in the occupational, health and safety legislation, the latter prevails to the extent of any such inconsistency. It is not considered that there is any inconsistency, but this model provision has been included in order to promote legal certainty should any question arise.

This provision does not concern the specific offences and associated maximum penalties referred to under each of the two pieces of legislation as, despite being analogous or comparable in terms of duties and penalty levels imposed, they are indeed different offences. Clause 59 of the Rail Safety Bill imposes duties and obligations upon a rail transport operator to implement and comply with their safety management system developed under this act, whereas section 19 of the OHS act operates more broadly for the provision of a safe work environment and safe system of work, etc.

Clause 15—No double jeopardy regarding offences and penalties—provides that, where a particular act or omission constitutes an offence under the Rail Safety Act and regulations, as well as under the OHS legislation, the offender is not liable to be punished twice in respect of the same act or omission. In practical terms, a prosecutor would determine which offence to proceed with, depending upon the circumstances, including which count is able to be made out on the evidence, maximum penalties available under legislation, etc. Such principles are, I understand, fairly routinely addressed by prosecutorial practices.

In the case of a breach of clause 59, the Rail Safety Bill proposes a maximum monetary penalty of $100,000 for a natural person and $300,000 for a body corporate. These penalties are identical to the division 2 penalties that apply for a first offence breach of section 19 of the OHS&W act, once amended by the Occupational Health, Safety and Welfare (Penalties) Amendment Bill, which was considered by this council earlier this week.

In summary, any given incident in any field may give rise to potential breaches under the same or more than one law, as well as common law claims. This is the case, for example, for a road crash that could give rise to multiple offences under both the Road Traffic Act 1961 and possibly the Criminal Law Consolidation Act 1935, and a claim for damages in negligence. Clause 12 of the rail safety bill aims to clarify the relationship between the rail safety and occupational health and safety legislation, should any apparent inconsistency arise. Clause 15 aims to ensure that a defendant is not liable to be punished twice for the same act and omission under those two laws. I trust that adequately addresses the issues raised by honourable members. I commend the Rail Safety Bill 2007 to the council.

Bill read a second time and taken through its remaining stages.

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