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Legislative Council - Fifty-First Parliament, Third Session (51-3)
2009-10-13 Daily Xml
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RAIL COMMISSIONER BILL

Introduction and First Reading

Received from the House of Assembly and read a first time.

Second Reading

The Hon. G.E. GAGO (Minister for State/Local Government Relations, Minister for the Status of Women, Minister for Consumer Affairs, Minister for Government Enterprises, Minister Assisting the Minister for Transport, Infrastructure and Energy) (17:55): 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.

The Rail Commissioner Bill 2009 provides for the establishment of the Rail Commissioner for the purpose of acting as a rail transport operator under the Rail Safety Act 2007 for the delivery of State Government rail infrastructure projects and to carry out any other function conferred on the Commissioner by the Minister for Transport.

One of the Strategic Objectives in the State Government's Strategic Infrastructure Plan is to encourage the shift to rail transport for passenger and freight movements where justified by environmental, economic or social imperatives. The Government has invested approximately $2 Billion over 10 years along with an additional $585 Million of Commonwealth funding contributions to implement this Objective through a number of major and minor rail infrastructure projects, to be delivered through the Department for Transport, Energy and Infrastructure.

In late 2007, the State Government determined that it would take responsibility for rail infrastructure assets previously owned by TransAdelaide, and for new major rail infrastructure works proposed on the train and tram network to allow TransAdelaide to concentrate on operating train and tram services. The infrastructure is now vested in the Minister for Transport.

In September 2008, the Rail Safety Act 2007 was introduced, as part of a process towards a national regulatory scheme for rail safety. The new legislation carries new requirements for those seeking accreditation as a rail transport operator. A person or entity may only seek accreditation under that Act if he or she can establish that he or she has the 'effective management and control' of the proposed railway operations. This requirement is distinguished from the previous Rail Safety Act whereby the test was about merely being an 'owner' or an 'operator'.

The 2007 Act thereby removed the requirement for contractors to hold accreditation as an 'owner' but rather may perform their duties under the accreditation of the rail transport operator with 'effective management and control' of the proposed railway operations. For the Government, this means that rather than continuing to hire contractors with rail accreditation under the Rail Safety Act 1996 to carry out its business, it had to reconsider and determine who would have the 'effective management and control' of the newly announced rail infrastructure projects.

A statutory body corporate was considered the best option to ensure the required independence from the Minister for Transport.

The Bill incorporates a number of provisions (particularly in relation to the powers and functions of the Rail Commissioner) that are similar to provisions contained in the Highways Act 1926, the Passenger Transport Act 1994 and the Rail Safety Act 2007. In addition, it should be noted that this Bill is to be read in conjunction with the Rail Safety Act 2007.

The Rail Commissioner to be established under the Bill will be a body corporate with the statutory imperative to apply for and hold accreditation under the Rail Safety Act 2007. The Rail Commissioner will have the primary function of, and necessary powers to, deliver rail infrastructure projects as announced by the State Government. The Rail Commissioner will have the 'effective management and control' of these rail infrastructure projects, and will be subject to the limited direction of the Minister without derogating from the Rail Commissioner's 'effective management and control' of the projects. The Bill provides for a wider scope of operations to include rolling stock movement and maintenance, including movement for the purpose of operating a railway service. Although these functions will not be used immediately, there may be a requirement for the Rail Commissioner to have rolling stock accreditation for the testing and commissioning of the new trams if it is deemed that the Rail Commissioner has 'effective management and control' of that project.

The role of the Rail Commissioner at this point in time is to construct and deliver rail infrastructure projects, with the ongoing maintenance and management of the infrastructure being assigned to an appropriate accredited rail entity. This will generally be TransAdelaide, which will continue to act separately as another Government rail transport operator with its own accreditation for track maintenance and management and providing passenger transport services. It is the Government's wish that both the Rail Commissioner and TransAdelaide will work in partnership for the safety of rail in South Australia.

As an interim arrangement, so that rail construction contracts could be signed and work commenced, Rodney George Hook, the current Deputy Chief Executive of the Department for Transport, Energy and Infrastructure, was appointed by the Governor, pursuant to section 68 of the Constitution Act 1934, to be the Rail Commissioner with the powers to do all things relevant to the undertaking of rail infrastructure projects for a period of no more than 12 months, or until the Rail Commissioner Bill was enacted, whichever was sooner. Although the appointed Rail Commissioner under the interim arrangement has been exempt from Part 4 Division 2 of the Rail Safety Act 2007 which is the requirement to hold accreditation under that Act, he is required to act 'as if accredited' for the period of the interim appointment.

The present appointee will also be appointed as Rail Commissioner once the Bill is enacted. The appointment reflects the reporting arrangements in place within the Department for Transport, Energy and Infrastructure where Mr Hook, as Deputy Chief Executive of the Department for Transport, Energy and Infrastructure, has effective management and control of the rail infrastructure projects currently being delivered through the Department. The Bill allows for the appointment of one or more Deputy Rail Commissioners. These appointees will assist the Rail Commissioner to demonstrate 'effective management and control' and provide a significant role in the Rail Commissioner's governance structure.

The Bill provides that, with the approval of the Minister, the Rail Commissioner may make use of staff, equipment or facilities of an administrative unit of the Public Service or another agency or instrumentality of the Crown, under an arrangement with that body. It also specifies the responsibilities of the Rail Commissioner and the Commissioner's staff and gives them the power to undertake all works necessary to deliver the rail infrastructure projects as directed by the Government. The Rail Commissioner will use the resources within the Department for Transport, Energy and Infrastructure for staffing the office, and undertaking the rail infrastructure project works.

The Bill provides a structure and process, as well as capacity, to undertake the rail infrastructure projects, including the power to do associated roadworks and install traffic control devices. The Bill provides the Rail Commissioner with a high degree of autonomy when undertaking rail infrastructure projects; however Ministerial approval has been retained in accordance with other relevant statutes.

These rail infrastructure projects are a significant priority of this Government, and will allow the Government to achieve its Strategic Objective in relation to rail infrastructure for South Australia, particularly within the metropolitan area. The Rail Commissioner as a statutory authority will come under the scrutiny of the South Australian Rail Regulator and the Minister for Transport as required by the Rail Safety Act 2007. This demonstrates the Government's commitment to rail safety, the implementation of the new rail safety legislation as well as ensuring the delivery of safe and efficient transport infrastructure projects meeting the State Government's Strategic Objective for the benefit of commuters and the wider community.

The opportunity is also being taken in this Bill to rectify a technical irregularity with respect to the authority operating rolling stock on rail infrastructure that has been laid on a road; and with respect to constructing, repairing, altering and maintaining rail infrastructure placed on roads.

The Bill therefore amends the Railways (Operations and Access) Act 1997 and the TransAdelaide (Corporate Structure) Act 1998 to:

allow rail transport operators to maintain and operate existing rail infrastructure and rolling stock on (as well as over, under, alongside, etc.) roads; and

validate the existence of any rail infrastructure installed to date on a road by a rail transport operator; and

enable rail transport operators to install and maintain rail infrastructure and operate on roads in the future with the Minister's approval (absolutely or conditionally).

I commend the Bill to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

These clauses are formal.

3—Interpretation

This clause contains definitions for the purposes of the measure. It also provides that, unless the contrary intention appears, an expression used in this measure that is defined in the Rail Safety Act 2007 has the same meaning as in that Act.

Part 2—Rail Commissioner

Division 1—Establishment of Rail Commissioner

4—Establishment of Rail Commissioner

This clause establishes the Rail Commissioner (the Commissioner). The Commissioner—

is a body corporate; and

has perpetual succession and a common seal; and

is capable of suing and being sued; and

is an instrumentality of the Crown and holds property on behalf of the Crown; and

has the functions assigned by or under this measure or another Act; and

has the powers necessary or expedient for, or incidental to, the performance of the Commissioner's functions (including the power to enter into contracts), together with such other powers conferred by or under this measure or another Act.

The Commissioner falls within the description of a public sector agency for the purposes of the Public Sector Management Act 1995 (and also the proposed Public Sector Bill) and so the relevant provisions of that Act will apply to the Commissioner.

5—Appointment etc of Rail Commissioner

The Commissioner will be constituted by a person appointed from time to time by the Governor for the purpose, and the Governor may also appoint 1 or more suitable persons to be a deputy of the Commissioner. A person appointed as a deputy of the Commissioner may act as the Commissioner in appropriate cases. The clause makes further provision in the usual terms relating to the removal of a person appointed under this proposed section or a vacancy in the office of the Commissioner.

6—Ministerial direction

This clause provides that the Commissioner is subject to the direction (which must be given in writing) of the Minister. Any such direction of the Minister must be tabled in Parliament and a statement of the fact that a direction was given must be included in the Commissioner's next annual report.

Division 2—Functions

7—Functions

This clause sets out the functions of the Commissioner. They are—

to construct railways, railway tracks and associated track structures;

to manage, commission, maintain, repair, modify, install, operate or decommission rail infrastructure;

to commission, maintain, repair, modify, install, operate or decommission rolling stock;

to operate or move, or cause the operation or movement of, rolling stock on a railway by any means (including for the purposes of constructing or restoring rail infrastructure);

to move, or cause the movement of, rolling stock for the purposes of operating a railway service;

to act as a rail transport operator for railway operations carried out by the Commissioner;

to hold accreditation (if successful application is made) under the Rail Safety Act 2007 as a rail transport operator in relation to railway operations carried out, or proposed to be carried out, by the Commissioner;

to enter into agreements or arrangements relating to the management of risks associated with railway operations (including where rail infrastructure interfaces with roads);

to operate passenger transport services by train or tram;

to hold accreditation (if successful application is made) under the Passenger Transport Act 1994 to operate passenger transport services by train or tram;

to enter into service contracts relating to the operation of passenger transport services under Part 5 of the Passenger Transport Act 1994;

to carry out any other function conferred on the Commissioner by the Minister.

The Rail Commissioner's functions include the carrying out of design work, roadwork and any other necessary or associated work relating to the Commissioner's functions.

Division 3—Special powers

8—Power to enter, inspect, etc railway premises etc

This clause provides the Commissioner (or a person authorised by the Commissioner) with the power to enter railway premises or any other land or premises to perform actions relating to the Commissioner's functions. The clause then sets out the procedures to be followed in relation to the exercise of this power.

9—Power to acquire land etc

This clause provides the Commissioner with the power—

subject to the approval of the Minister, to acquire (by agreement or compulsory process) land or an interest in land for the purposes of carrying out railway operations, establishing or maintaining rail infrastructure or any other purpose connected with this measure; and

subject to the approval of the Minister, to sell, transfer, lease or otherwise deal with or dispose of any land or interest in land vested in the Commissioner; and

to remove or cut back any tree or other vegetation on or overhanging rail infrastructure.

The Land Acquisition Act 1969 applies in relation to the compulsory acquisition of land under this clause.

10—Power to carry out works

This clause provides the Rail Commissioner with the power, subject to the approval of the Minister, to carry out such works as the Commissioner thinks fit in relation to the construction, commissioning and maintenance of rail infrastructure; the operation or management of rolling stock; the establishment, maintenance, extension, alteration or discontinuance of a passenger transport service; or any other function of the Commissioner. The clause sets out the procedures to be followed in relation to the exercise of this power.

11—Power to close or limit use of railways

This clause provides the Commissioner with the power, subject to the approval of the Minister—

to close a railway temporarily or permanently; or

limit the use of a railway temporarily or permanently,

for the purposes of railway operations carried out by the Commissioner.

Division 4—Miscellaneous

12—Staff

This clause makes provision for staffing of the Rail Commissioner's office. The Commissioner's staff will consist of Public Service employees assigned to assist the Commissioner and any person (who will not be a Public Service employee) appointed to the staff by the Commissioner with the Minister's approval.

13—Delegation

This clause provides the Rail Commissioner with the ability to delegate by written instrument any of the Commissioner's functions or powers (other than the power to delegate) to a particular person, or to the person for the time being performing particular duties or holding or acting in a particular position, and a delegated function or power may (if the instrument of delegation so provides) be further delegated.

14—Conflict of interest

This clause requires the person constituting the Rail Commissioner, or a deputy or delegate of the Commissioner, to inform the Minister in writing of—

any direct or indirect interest that the person has or acquires in any business, or in any body corporate carrying on business, in Australia or elsewhere; or

any other direct or indirect interest that the person has or acquires that conflicts or may conflict with the functions of the Commissioner.

The person constituting the Commissioner, or a deputy or delegate of the Commissioner, must take steps to resolve a conflict or possible conflict between a direct or indirect interest and the person's functions in relation to a particular matter, and, unless the conflict is resolved to the Minister's satisfaction, the person is disqualified from acting in relation to the matter.

15—Common seal and execution of documents

This clause makes provision for the common seal of the Commissioner, and the manner in which documents are to be executed by the Commissioner.

Part 3—Miscellaneous

16—Precedence over roads

This clause provides that, subject to any pre-existing contract, agreement, understanding or undertaking with a road maintenance authority, the construction, commissioning and maintenance of rail infrastructure takes precedence over roadwork.

The clause enables the Rail Commissioner (subject to the approval of the Minister)—

to close a road temporarily or permanently for the purposes of railway operations (and the Roads (Opening and Closing) Act 1991, with such modifications as may be prescribed by regulation, applies to any such permanent road closure); and

to require a council to construct or reconstruct a portion of road within the area of the council so as to conform with the construction, reconstruction or maintenance of rail infrastructure within the council area.

17—Inconsistency of by-laws

This clause provides that if a by-law made by a council is inconsistent with this measure or a regulation made under this measure, the measure or regulation prevails and the by-law is, to the extent of the inconsistency, invalid.

18—Regulations

This clause provides for a regulation making power for the purposes of this measure.

Schedule 1—Related amendments and transitional provisions

The Schedule contains related amendments to the Railways (Operations and Access) Act 1997 and the TransAdelaide (Corporate Structure) Act 1998 relating to operations over roads and provisions for matters of a transitional nature.

Debate adjourned on motion of Hon. J.M.A. Lensink.


[Sitting suspended from 17:56 to 19:47]


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