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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
2012-04-04 Daily Xml
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RAIL SAFETY NATIONAL LAW (SOUTH AUSTRALIA) BILL

Second Reading

Second reading.

The Hon. I.K. HUNTER (Minister for Communities and Social Inclusion, Minister for Social Housing, Minister for Disabilities, Minister for Youth, Minister for Volunteers) (22:01): 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) Bill 2012.

South Australia has the privilege to lead the way in this national reform process that will transform the way the rail industry is regulated in Australia. Australia has had a long history with railways being developed on a State and Territory basis with no contemplation of what occurs over the border.

By Federation in 1901, all States except Western Australia were linked by rail and more than 20,000 km of track had been laid. Sadly, those who envisaged a nation had not contemplated a national rail network. Three different gauges had been used. In 1917, a person wanting to travel from Perth to Brisbane on an east-west crossing of the continent had to change trains six times. It was not until June 1995 that trains could travel between Brisbane and Perth, via Sydney, Melbourne and Adelaide on a standard gauge track.

Rail regulation has had a similar history—with every State and Territory regulating its railways differently. Despite attempts to adopt a common approach inconsistencies between rail safety legislation exist. Over the last decade, there has been a significant attempt to establish consistency and uniformity across rail regulation, including a move in 2006 to create model rail safety law that each State and Territory was to adopt to ensure a consistent co-regulatory approach to rail regulation across Australia. Unfortunately, not all States faithfully delivered this law. South Australia's legislation was among the most consistent with the model law.

It has been the Council of Australian Governments' vision to improve this situation. Similar reforms are also currently underway for heavy vehicles and in commercial marine safety.

The introduction of this Bill will lead the way to nationally uniform regulation of rail transport operators. The aim for rail is to have one single national rail safety regulator who will provide the rail industry with a consistent and reliable co-regulatory approach which will cut red tape and enable those operators who work in multiple jurisdictions to have one certificate of accreditation, and only have to respond to one regulator rather than up to seven different regulators.

It is truly a reflection of the positive light within which South Australia is held by industry that it has been chosen as the host jurisdiction and home for the Office of the National Rail Safety Regulator, which will be created with the passage of this Bill. The National Rail Regulator Project Office has consulted extensively with all relevant stakeholders in all jurisdictions to ensure this Bill will be a workable national approach to rail safety regulation. This is no small task.

Like other recent national reforms such as the National Health Practitioners and the National Occupational Licensing Schemes, this Law is an applied law scheme. This approach is used where referral of power to the Commonwealth is not a desirable option. It requires a host jurisdiction to pass the national Law as a law of that State (generally included as a schedule to the Bill) and then for the other States and Territories to pass legislation applying the schedule in the host jurisdiction's law as their own law.

The Rail Safety National Law clearly expresses the intention, that despite many jurisdictions passing the law, only one single national entity is created. The Law provides for the establishment of the Office of the National Rail Safety Regulator, which comprises of the National Rail Safety Regulator and 2 non-executive members, all appointed by the South Australian Minister upon the unanimous recommendation of all the transport ministers and can include the Commonwealth Minister (the 'responsible ministers'). The Office will be a single body corporate that operates, and can engage staff, on a national basis.

The Law is similar to the existing South Australian Rail Safety Act 2007, which it repeals. The Law sets out the functions and powers of the National Rail Safety Regulator, and includes objectives of providing for the effective management of safety risks associated with railway operations and to promote public confidence in the safety of transport of persons or freight by rail. It covers accreditation; registration of rail infrastructure managers of private sidings; safety management; provision of information about rail safety; investigation and reporting by rail transport operators; drug and alcohol testing by the Regulator and enforcement officers; train safety recordings; auditing of railway operations by the Regulator; compliance and enforcement measures; exemptions; review of decisions; and general liability and evidentiary provisions.

There will be a common approach to the prescription of drug and alcohol requirements and fatigue management provisions. The majority of the Bill (apart from the Schedule which contains the Law) deals with testing procedures for drugs and alcohol because jurisdictions have decided to apply their own testing procedures. The procedures in the Bill are those currently used under the Rail Safety Act 2007, which in turn mirror those used for other modes of transport—that is, under the Road Traffic Act 1961 and the Harbors and Navigation Act 1993.

The application provisions of the Bill provide that a regulation made under the legislation may be disallowed if a majority of jurisdictions vote against it. This approach has been recommended by the Parliamentary Counsel's Committee and is supported by industry as providing the greatest certainty that regulations will remain the same in all jurisdictions. If a regulation were to be disallowed in one jurisdiction there would be inconsistent rules for industry and the National Regulator would have to administer several slightly differing administrative schemes. This would undermine the efficiencies and economies the reform is aimed to deliver.

The Council of Australian Governments anticipates that the National Regulator will commence operations by 1 January 2013. I hope the Bill will receive the support of all Members so that it may pass in a timely manner to give as much time to other State and Territory parliaments to pass their application laws by that time.

I commend the Bill to the House.

Explanation of Clauses

Part 1—Preliminary

1—Short title

This clause provides that the short title of this measure is the Rail Safety National Law (South Australia) Act 2012. South Australia is the host jurisdiction for this national scheme for rail safety and so is the first of the participating jurisdictions to introduce the legislation for consideration. The provisions of this measure, other than the provisions set out in the schedule to this measure, may, from time to time, in this explanation be referred to as the application provisions.

2—Commencement

This clause provides that the measure will come into operation on a day to be fixed by proclamation and that section 7(5) of the Acts Interpretation Act 1915 does not apply to this measure.

3—Interpretation

This clause contains definitions for the purposes of this measure. It also provides that a term used in the local application provisions of this measure (that is, the provisions other than the Rail Safety National Law (the RSNL) set out in the schedule to this measure) and also in the RSNL have the same meanings in those provisions as they have in the RSNL (to the extent that the context or subject matter does not otherwise indicate or require).

Part 2—Application of Rail Safety National Law

4—Application of Rail Safety National Law

This clause provides that the RSNL, as amended from time to time, and as set out in the schedule to this measure—

applies as a law of this jurisdiction; and

as so applying may be referred to as the Rail Safety National Law (South Australia); and

as so applying is part of this measure

5—Interpretation of certain expressions

This clause defines certain terms used in the RSNL in order to give them a particular meaning in this jurisdiction. Among the terms defined for South Australia's purposes are the following: court, emergency services, Gazette, magistrate, medical practitioner, Minister and police officer.

This clause further provides that, for the purposes of this measure and the Rail Safety National Law (South Australia) and any other Act or law—

the Office of the National Rail Safety Regulator—

is not a State entity (and therefore not a South Australian entity); and

is not an agency or instrumentality of the South Australian Crown; and

an employee of the Office of the National Rail Safety Regulator is not a public sector employee employed by a public sector agency.

However, the Office of the National Rail Safety Regulator may still be taken to act on behalf of the Crown in right of South Australia and each other participating jurisdiction (see clause 12(3) of the RSNL).

6—No double jeopardy

This clause provides that if an act or omission is an offence against the Rail Safety National Law (South Australia) and is also an offence against a law of another participating jurisdiction and the offender has been punished for the offence under the law of the other jurisdiction, the offender is not liable to be punished for the offence against the Rail Safety National Law (South Australia).

7—Exclusion of legislation of this jurisdiction

This clause provides that the Acts Interpretation Act 1915 does not apply to the Rail Safety National Law (South Australia) or to instruments made under that Law.

Subject to subclause (3), the following Acts of this jurisdiction do not apply to this measure and the Rail Safety National Law (South Australia) or to instruments made under that Law (except as applied under the Law):

the Freedom of Information Act 1991;

the Ombudsman Act 1972;

the Public Finance and Audit Act 1987;

the Public Sector Act 2009;

the Public Sector (Honesty and Accountability) Act 1995;

the State Procurement Act 2004;

the State Records Act 1997.

The Acts referred to in the previous subclause apply to a State entity or an employee of a State entity exercising a function under the Rail Safety National Law (South Australia).

Part 3—National regulations

8—National regulations

Under Part 10 Division 9 of the RSNL, the Governor of South Australia, acting with the advice and consent of the Executive Council of South Australia, is nominated as the designated authority to make the national regulations, on the unanimous recommendation of the responsible Ministers for each of the participating jurisdictions.

This clause provides that the Subordinate Legislation Act 1978 (other than sections 10, 10A and 11) does not apply to the national regulations.

However, if a regulation made by the Governor for the purposes of the RSNL is disallowed in this jurisdiction, the regulation does not cease to have effect in this jurisdiction unless the regulation is disallowed in a majority of the participating jurisdictions (and, in such a case, the regulation will cease to have effect on the date of its disallowance in the last of the jurisdictions forming the majority).

Part 4—Provisions relating to drug and alcohol testing

This Part makes provision for the carrying out of drug and alcohol testing by the National Rail Safety Regulator under the RSNL in South Australia. While the head of power enabling the Regulator to test rail safety workers for the presence of a drug or alcohol is set out in Part 3 Division 9 of the RSNL, the details as to the procedures to be followed are to be included in the application provisions of each of the participating jurisdictions so to allow for local variation. In this State, the scheme, as provided under this Part, is to remain consistent with the scheme that has been operating here for some time (see Schedule 2 of the Rail Safety Act 2007).

Part 5—Repeal and transitional provisions and related amendments

This Part makes provision for the repeal of the Rail Safety Act 2007, for transitional arrangements and for related amendments to a number of Acts.

Schedule 1—Rail Safety National Law

Part 1—Preliminary

1—Short title

Provides that this Law may be referred to as the Rail Safety National Law (the RSNL).

2—Commencement

The RSNL will commence as provided by the application Act.

3—Purpose, objects and guiding principles of Law

Sets out the purpose, objects and guiding principles of the RSNL.

4—Interpretation

Sets out the definitions used in the RSNL.

5—Interpretation generally

Schedule 2 of the RSNL sets out the interpretation provisions that apply to the RSNL.

6—Declaration of substance to be drug

Provides for the declaration of substances as drugs for the purposes of the RSNL.

7—Railways to which this Law does not apply

Sets out railways that are not covered by the RSNL.

8—Meaning of rail safety work

Sets out the meaning of rail safety work.

9—Single national entity

Provides that the intention of Parliament is for the RSNL applied by this jurisdiction, together with other jurisdictions, to create 1 single national entity.

10—Extraterritorial operation of Law

Provides for the extraterritorial operation of the RSNL to the extent allowable.

11—Crown to be bound

Provides that the RSNL binds the Crown.

Part 2—Office of the National Rail Safety Regulator

Division 1—Establishment, functions, objectives, etc

12—Establishment

Establishes the Office of the National Rail Safety Regulator (ONRSR) as a body corporate. ONRSR would represent the Crown of each participating jurisdiction, but would not thereby become a Crown agency or instrumentality as such.

13—Functions and objectives

Sets out the functions and objectives of the ONRSR.

14—Independence of ONRSR

Provides that except as otherwise provided, the ONRSR is not subject to Ministerial direction in the exercise of its functions or powers.

15—Powers

Sets out the powers of the ONRSR.

Division 2—Office of the National Rail Safety Regulator

Subdivision 1—Constitution of ONRSR

16—Constitution of ONRSR

Sets out the membership of the ONRSR.

Subdivision 2—National Rail Safety Regulator

17—Appointment of Regulator

Provides for the appointment of the National Rail Safety Regulator (the Regulator).

18—Acting National Rail Safety Regulator

Provides for the appointment of an acting National Rail Safety Regulator.

19—Functions of Regulator

Sets out the functions of the Regulator

20—Power of Regulator to obtain information

Gives the Regulator the power to obtain information that will assist in monitoring or enforcing compliance with the RSNL.

Subdivision 3—Non-executive members

21—Appointment of non-executive members

Provides for the appointment of non-executive members of the ONRSR.

Subdivision 4—Miscellaneous provisions relating to membership

22—Vacancy in or removal from office

Sets out when the office of a member of the ONRSR becomes vacant or may be removed.

23—Member to give responsible Ministers notice of certain events

Sets out that a member of the ONRSR must notify the Minister of the member's bankruptcy or conviction of an offence.

24—Extension of term of office during vacancy in membership

Provides that a member's term of office may be extended until a vacancy is filled.

25—Members to act in public interest

Provides that members of the ONRSR must act in the public interest.

26—Disclosure of conflict of interest

Provides that members of ONRSR must give notice of any conflict of interest.

Division 3—Procedures

27—Times and places of meetings

Provides that meetings are to be held in order to conduct the business of the ONRSR.

28—Conduct of meetings

Sets out the requirements for the conduct of ONRSR meetings.

29—Defects in appointment of members

Provides that ONRSR business is not affected by irregularity in the appointment of a member.

30—Decisions without meetings

Provides for decisions of ONRSR without a meeting.

31—Common seal and execution of documents

Sets out provisions for the use of the common seal of the ONRSR.

Division 4—Finance

32—Establishment of Fund

Establishes the National Rail Safety Regulator Fund (the Fund).

33—Payments into Fund

Provides for payments into the Fund.

34—Payments out of Fund

Provides for payments out of the Fund.

35—Investment of money in Fund

Allows for investment of funds and requires records to be kept.

36—Financial management duties of ONRSR

Sets out the duties of the ONRSR in relation to its financial management.

Division 5—Staff

37—Chief executive

Provides that the Regulator is the chief executive of the ONRSR.

38—Staff

Provides for the employment of staff by the ONRSR.

39—Secondments to ONRSR

Provides for the secondment of staff to the ONRSR from government agencies.

40—Consultants and contractors

Provides that the ONRSR may engage contractors and consultants.

Division 6—Miscellaneous

41—Regulator may be directed to investigate rail safety matter

Provides that the Minister may direct the Regulator to investigate or provide information or advice about a rail safety matter.

42—National Rail Safety Register

Provides that the Regulator must establish and maintain the National Rail Safety Register and sets out what is to be included in the Register.

43—Annual report

Requires the Regulator to provide an annual report to the responsible Ministers and sets out the requirements for the report.

44—Other reporting requirements

Provides that the national regulations may stipulate other reporting requirements.

45—Delegation

Provides the ONRSR with the power to delegate its functions or powers.

Part 3—Regulation of rail safety

Division 1—Interpretation

46—Management of risks

Provides that safety duties imposed by the RSNL are to eliminate or minimise risks to safety so far as reasonably practicable.

47—Meaning of reasonably practicable

Sets out the meaning of 'reasonably practicable' in relation to duties of safety.

Division 2—Occupational health and safety and railway operations

48—Relationship between this Law and OHS legislation

Sets out the relationship between this Law and occupational health and safety legislation.

49—No double jeopardy

Provides that there is no double jeopardy in relation to offences under the RSNL or occupational health and safety legislation.

Division 3—Rail safety duties

Subdivision 1—Principles

50—Principles of shared responsibility, accountability, integrated risk management, etc

Provides that rail safety is the responsibility of rail transport operators, rail safety workers and others who work on, with or supply rolling stock or rail infrastructure.

51—Principles applying to rail safety duties

Sets out the principles that apply to duties under the RSNL.

Subdivision 2—Duties

52—Duties of rail transport operators

Sets out the rail safety duties of rail transport operators.

53—Duties of designers, manufacturers, suppliers etc

Sets out the rail safety duties of designers, manufacturers and suppliers and others involved in things used as or in connection with rail infrastructure or rolling stock.

54—Duties of persons loading or unloading freight

Sets out the rail safety duties of persons loading or unloading freight from rolling stock.

55—Duty of officers to exercise due diligence

Provides that officers of a person who has a duty or obligation under the RSNL must exercise due diligence to ensure the person complies with that duty or obligation and sets out the meaning of 'due diligence'.

56—Duties of rail safety workers

Sets out the duties of rail safety workers carrying out rail safety work.

Subdivision 3—Offences and penalties

57—Meaning of safety duty

Sets out the meaning of safety duty for the purposes of the subdivision.

58—Failure to comply with safety duty—reckless conduct—Category 1

Sets out what is a 'category 1' offence in relation to a breach of a safety duty.

59—Failure to comply with safety duty—Category 2

Sets out what is a 'category 2' offence in relation to a breach of a safety duty.

60—Failure to comply with safety duty—Category 3

Sets out what is a 'category 3' offence in relation to a breach of a safety duty.

Division 4—Accreditation

Subdivision 1—Purpose and requirement for accreditation

61—Purpose of accreditation

Sets out the purpose for accreditation.

62—Accreditation required for railway operations

Sets out the accreditation requirements for a person carrying out railway operations.

63—Purposes for which accreditation may be granted

Sets out the purposes for which a rail transport operator may be granted accreditation.

Subdivision 2—Procedures for granting accreditation

64—Application for accreditation

Sets out the application process and requirements for accreditation.

65—What applicant must demonstrate

Sets out what an applicant for accreditation must show.

66—Regulator may direct applicants to coordinate applications

Provides that applicants may have to coordinate the preparation of applications for accreditation for rail safety reasons.

67—Determination of application

Sets out the process for granting accreditation and for imposing restrictions and conditions on accreditation.

Subdivision 3—Variation of accreditation

68—Application for variation of accreditation

Provides for an accredited person to apply for the variation of the accreditation.

69—Determination of application for variation

Provides for the determination of an application for variation of accreditation.

70—Prescribed conditions and restrictions

Provides that a varied accreditation is subject to any conditions and restrictions prescribed by the national regulations.

71—Variation of conditions and restrictions

Provides that an accredited person may apply to the Regulator to vary or revoke any conditions or restrictions on the accreditation.

72—Regulator may make changes to conditions or restrictions

Gives the Regulator the power to vary or revoke a condition of accreditation at any time and sets out the process for so doing.

Subdivision 4—Revocation, suspension or surrender of accreditation

73—Revocation or suspension of accreditation

Provides that the Regulator may revoke or suspend a person's accreditation in particular circumstances.

74—Immediate suspension of accreditation

In the case of an immediate and serous risk to safety the Regulator may suspend an accreditation immediately.

75—Surrender of accreditation

Sets out the manner in which a person may surrender his or her accreditation.

Subdivision 5—Miscellaneous

76—Annual fees

Provides for the payment of accreditation fees.

77—Waiver of fees

Gives the Regulator the power to waive or refund fees.

78—Penalty for breach of condition or restriction

Provides that it is an offence to breach a condition or restriction of accreditation that applies under Part 3.

79—Accreditation cannot be transferred or assigned

Provides that it is not possible to transfer or assign an accreditation.

80—Sale or transfer of railway operations by accredited person

Provides for the waiver by the Regulator of compliance with certain requirements of Part 3 in relation to the application for accreditation by a person proposing to purchase railway operations of an accredited person.

81—Keeping and making available records for public inspection

Requires that current notices of accreditation or exemptions or other prescribed documents must be available for inspection.

Division 5—Registration of rail infrastructure managers of private sidings

Subdivision 1—Exemptions relating to certain private sidings

82—Exemption from accreditation in respect of certain private sidings

Provides for the exemption from accreditation for railway operations carried out by a rail infrastructure manager in a private siding.

83—Requirement for managers of certain private sidings to be registered

Provides that a rail infrastructure manager of a private siding that is connected with, or has access to, the railway of an accredited person or another private siding, must be registered in relation to that private siding.

Subdivision 2—Procedures for granting registration

84—Application for registration

Sets out the application process for the registration of a rail infrastructure manager in relation to a private siding.

85—What applicant must demonstrate

Sets out what the Regulator must be satisfied of before granting registration to an applicant.

86—Determination of application

Sets out the process for the determination of an application for registration and the imposition of conditions and restrictions

Subdivision 3—Variation of registration

87—Application for variation of registration

Provides that a registered person may apply to the Regulator for the variation of registration at any time, and sets out the process required.

88—Determination of application for variation

Sets out the process for determining an application for the variation of registration.

89—Prescribed conditions and restrictions

Provides that registration as varied is subject to any conditions or restrictions prescribed by the national regulations.

90—Variation of conditions and restrictions

Provides for the application by a registered person for the variation or revocation of conditions or restrictions of registration.

91—Regulator may make changes to conditions or restrictions

Provides that the Regulator may vary, revoke or impose new conditions or restrictions on the registration of a registered person.

Subdivision 4—Revocation, suspension or surrender of registration

92—Revocation or suspension of registration

Provides that the Regulator may suspend or revoke registration of a registered person in certain circumstances.

93—Immediate suspension of registration

Provides that registration may be suspended immediately by the Regulator if there is an immediate and serous risk to safety.

94—Surrender of registration

Provides that a person may surrender his or her registration and sets out the process required.

Subdivision 5—Miscellaneous

95—Annual fees

Provides for fees prescribed by the national regulations to be paid by a registered person.

96—Waiver of fees

Provides that the Regulator may waive or refund fees.

97—Registration cannot be transferred or assigned

Provides that it is not possible to transfer or assign registration.

98—Offences relating to registration

Sets out the offences in relation to registration including breach of a condition or restriction of registration.

Division 6—Safety management

Subdivision 1—Safety management systems

99—Safety management system

Requires a rail transport operator to have a safety management system in relation to the railway operations for which he or she is required to be accredited. Sets out the requirements for that safety management system.

100—Conduct of assessments for identified risks

Sets out the manner in which a rail transport operator must make an assessment of risks for the purposes of the safety management system.

101—Compliance with safety management system

It is an offence for a rail transport operator to fail to comply with the operator's safety management system.

102—Review of safety management system

A rail transport operator must review the safety management system in accordance with the national regulations.

103—Safety performance reports

Requires a rail transport operator to give the Regulator a safety performance report in relation to the operator's railway operations.

104—Regulator may direct amendment of safety management system

Provides that the Regulator may direct a person to amend the person's safety management system.

Subdivision 2—Interface agreements

105—Requirements for and scope of interface agreements

Sets out the requirements for an interface agreement between 2 or more rail transport operators or a rail transport operator and 1 or more road managers to manage risks to safety.

106—Interface coordination—rail transport operators

Requires a rail transport operator to identify and assess risks to safety arising from the operator's railway operations due to the operations of any other rail transport operator. Provides for entering into an interface agreement in order to manage those risks.

107—Interface coordination—rail infrastructure and public roads

Requires a rail infrastructure manger to identify and assess risks to safety arising from railway operations carried out on the manager's rail infrastructure in relation to a public road or any rail or road crossing that is part of a public road. Provides for entering into an interface agreement with a road manager in order to manage those risks.

108—Interface coordination—rail infrastructure and private roads

Requires a rail infrastructure manger to identify and assess risks to safety arising from railway operations carried out on the manager's rail infrastructure due to the existence of any rail or road crossing that is part of the road infrastructure of a private road. Provides for entering into an interface agreement with the road manager in order to manage those risks.

109—Identification and assessment of risks

Provides for the manner of identification and assessment of risks by rail transport operators, rail infrastructure managers or road managers.

110—Regulator may give directions

Provides for the Regulator to give directions in certain circumstances in relation to the entering into of an interface agreement by various parties. The Regulator may, in the absence of an interface agreement, determine the arrangements that are to apply in relation to the management of identified risks to safety.

111—Register of interface agreements

Provides that a rail transport operator or road manager must keep a register of any interface agreements to which it is a party, or any arrangements determined by the Regulator to apply under clause 110.

Subdivision 3—Other safety plans and programs

112—Security management plan

Requires a rail transport operator to have a security management plan in relation to the operator's railway operations and sets out the requirements for that plan.

113—Emergency management plan

Requires a rail transport operator to have an emergency management plan in relation to the operator's railway operations and sets out the requirements for that plan.

114—Health and fitness management program

Requires a rail transport operator to prepare and implement a health and fitness program for rail safety workers who carry out rail safety work in relation to the operator's railway operations. The program to comply with requirements prescribed by the national regulations.

115—Drug and alcohol management program

Requires a rail transport operator to prepare and implement a drug and alcohol management program for rail safety workers who carry out rail safety work in relation to the operator's railway operations. The program to comply with requirements prescribed by the national regulations.

116—Fatigue risk management program

Requires a rail transport operator to prepare and implement a program for the management of fatigue of rail safety workers who carry out rail safety work in relation to the operator's railway operations. The program to comply with requirements prescribed by the national regulations.

Subdivision 4—Provisions relating to rail safety workers

117—Assessment of competence

Requires a rail transport operator to ensure that a rail safety worker carrying rail safety work is competent to do so. Sets out the process for assessing that competence.

118—Identification of rail safety workers

Requires a rail safety worker to carry identification that allows for the checking of training or competence by a rail safety officer.

Subdivision 5—Other persons to comply with safety management system

119—Other persons to comply with safety management system

Requires persons other than employees carrying out railway operations in relation to rail infrastructure or rolling stock of a rail transport operator, to comply with the operator's safety management system.

Division 7—Information about rail safety etc

120—Power of Regulator to obtain information from rail transport operators

Gives the Regulator the power to obtain certain information from rail transport operators.

Division 8—Investigating and reporting by rail transport operators

121—Notification of certain occurrences

Requires a rail transport operator to provide information about a notifiable occurrence that happens on or in relation to the operator's railway premises or operations.

122—Investigation of notifiable occurrences

Regulator may require an operator to investigate a notifiable occurrence or other occurrences that have endangered safety.

Division 9—Drug and alcohol testing by Regulator

123—Testing for presence of drugs or alcohol

Provides that a rail safety worker may be tested for the presence of drugs and alcohol in accordance with the RSNL and the application Act.

124—Appointment of authorised persons

Provides that the Regulator may appoint authorised persons in relation to drug and alcohol testing.

125—Identity cards

Requires authorised persons to have identity cards.

126—Authorised person may require preliminary breath test or breath analysis

Provides for an authorised person to require a rail safety worker to submit to breath testing.

127—Authorised person may require drug screening test, oral fluid analysis and blood test

Provides for an authorised person to require a rail safety worker to submit to a drug screening test, oral fluid analysis or blood test.

128—Offence relating to prescribed concentration of alcohol or prescribed drug

Sets out the offences for a rail safety worker in relation to undertaking rail safety work while there is the prescribed concentration of alcohol present in his or her blood, or a prescribed drug present in his or her oral fluid or blood or is under the influence of drugs or alcohol.

129—Oral fluid or blood sample or results of analysis etc not to be used for other purposes

Restricts the use of samples of oral fluid or blood or other forensic material collected for drug and alcohol testing for the purposes of the RSNL.

Division 10—Train safety recordings

130—Interpretation

Defines the meaning of 'train safety recording'.

131—Disclosure of train safety recordings

Provides for restrictions on the disclosure of rail safety recordings .

132—Admissibility of evidence of train safety recordings in civil proceedings

Restricts the use of train safety recordings in civil proceedings.

Division 11—Audit of railway operations by Regulator

133—Audit of railway operations by Regulator

Provides for the audit of the railway operations of a rail transport operator by the Regulator.

Part 4—Securing compliance

Division 1—Guiding principle

134—Guiding principle

Sets out the guiding principles in relation to the enforcement of the RSNL.

Division 2—Rail safety officers

135—Appointment

Provides for the appointment of rail safety officers by the Regulator.

136—Identity cards

Requires rail safety officers to have identity cards.

137—Accountability of rail safety officers

Sets out requirements for the accountability of rail safety officers.

138—Suspension and ending of appointment of rail safety officers

Provides that the Regulator may suspend or terminate the appointment of a rail safety officer.

Division 3—Regulator has functions and powers of rail safety officers

139—Regulator has functions and powers of rail safety officers

Provides that the Regulator has the functions and powers of a rail safety officer under the RSNL, and a reference to a rail safety officer includes a reference to the Regulator.

Division 4—Functions and powers of rail safety officers

140—Functions and powers

Sets out the functions and powers of rail safety officers.

141—Conditions on rail safety officers' powers

The powers of a rail safety officer are subject to any conditions set out in his or her instrument of appointment.

142—Rail safety officers subject to Regulator's directions

Provides that the Regulator may give directions to a rail safety officer in the exercise of his or her powers.

Division 5—Powers relating to entry

Subdivision 1—General powers of entry

143—Powers of entry

Sets out a rail safety officer's powers of entry.

144—Notification of entry

Provides that notification of entry by a rail safety officer may not be required.

145—General powers on entry

Sets out the general powers of a rail safety officer on entry to a place.

146—Persons assisting rail safety officers

Persons assisting a rail safety officer may accompany the officer on entering a place.

147—Use of electronic equipment

Provides that equipment present at a place of entry may be used by a rail safety officer in order to access information found.

148—Use of equipment to examine or process things

Provides that a rail safety officer may bring equipment to a place in order to examine or process things found at the place entered in order to determine if they may be seized.

149—Securing a site

Sets out the powers of an authorised officer (rail safety officer or police officer) to secure a site to protect evidence.

Subdivision 2—Search warrants

150—Search warrants

Sets out procedures and requirements for search warrants.

151—Announcement before entry on warrant

Provides that an announcement is required before entering a place on a warrant.

152—Copy of warrant to be given to person with control or management of place

Requires a copy of a warrant to be given to the person in charge of a place.

Subdivision 3—Limitation on entry powers

153—Places used for residential purposes

Sets out limitations on the power of entry in relation to residential premises.

Subdivision 4—Specific powers on entry

154—Power to require production of documents and answers to questions

Provides that a rail safety officer may require a person to produce documents or answer questions on entry to a place.

155—Abrogation of privilege against self-incrimination

Provides that a person cannot refuse to answer a question or give information on the grounds of self-incrimination. However, such answers or information cannot be used against them in civil or criminal proceedings other than those for providing false or misleading information.

156—Warning to be given

Provides that a rail safety officer must give a person certain warnings before requiring a person to answer a question or provide information.

157—Power to copy and retain documents

Gives a rail safety officer the power to copy and retain documents.

Subdivision 5—Powers to support seizure

158—Power to seize evidence etc

Gives a rail safety officer the power to seize anything that he or she reasonably believes may be evidence of an offence against the RSNL.

159—Directions relating to seizure

Provides that, in order to seize something, a rail safety officer may give certain directions to a person who has control of it.

160—Rail safety officer may direct a thing's return

Provides that a rail safety officer may also give directions in relation to the return of something.

161—Receipt for seized things

Provides that a receipt is to be provided for anything seized.

162—Forfeiture of seized things

Provides for the forfeiture of things seized in certain circumstances.

163—Return of seized things

Provides that a person may apply to the Regulator for the return of a thing that has been seized.

164—Access to seized thing

Provides that a person may be given access by a rail safety officer to something that has been seized.

Division 6—Damage and compensation

165—Damage etc to be minimised

Provides that in the exercise of a power under the RSNL, a rail safety officer must take reasonable steps to cause as little damage, detriment and inconvenience as is practicable.

166—Rail safety officer to give notice of damage

Provides for a rail safety officer to give notice of any damage to a thing in exercising a power under the RSNL.

167—Compensation

Provides that a person may apply for compensation from the Regulator for any loss or expense incurred due to the exercise of a power under Part 4 Division 5 of the RSNL.

Division 7—Other matters

168—Power to require name and address

Provides that a rail safety officer may require a person to give his or her name and address in certain circumstances.

169—Rail safety officer may take affidavits

Gives rail safety officers the authority to take an affidavit.

170—Attendance of rail safety officer at inquiries

Provides that a rail safety officer may participate in an inquiry in relation to an incident involving rail safety.

171—Directions may be given under more than 1 provision

Provides for a rail safety officer to be able to give one or more directions in relation to an exercise of power.

Division 8—Offences in relation to rail safety officers

172—Offence to hinder or obstruct rail safety officer

Provides that it is an offence to hinder or obstruct a rail safety officer in the performance of his or her duties.

173—Offence to impersonate rail safety officer

Provides that a person must not impersonate a rail safety officer.

174—Offence to assault, threaten or intimidate rail safety officer

Provides that it is an offence to assault, threaten or intimidate a rail safety officer.

Part 5—Enforcement measures

Division 1—Improvement notices

175—Issue of improvement notices

Provides for the issue of improvement notices by a rail safety officer in certain circumstances.

176—Contents of improvement notices

Sets out the required contents of an improvement notice.

177—Compliance with improvement notice

Requires a person issued with an improvement notice to comply with it.

178—Extension of time for compliance with improvement notices

Allows for an extension of time in order to comply with an improvement notice.

Division 2—Prohibition notices

179—Issue of prohibition notice

Provides for the issue of a prohibition notice by a rail safety officer in certain circumstances which involve an immediate risk to safety.

180—Contents of prohibition notice

Sets out the required contents of the prohibition notice.

181—Compliance with prohibition notice

Requires a person to comply with a prohibition notice or direction under this Division.

Division 3—Non-disturbance notices

182—Issue of non-disturbance notice

Provides that a rail safety officer may issue a non-disturbance notice to a person with the control or management of a railway premises in order to facilitate the exercise of his or her powers under the RSNL.

183—Contents of non-disturbance notice

Sets out the required contents of a non-disturbance notice.

184—Compliance with non-disturbance notice

Provides that a person must comply with a non-disturbance notice unless they have a reasonable excuse.

185—Issue of subsequent notices

Provides that further notices may be issued if a rail safety officer considers it necessary.

Division 4—General requirements applying to notices

186—Application of Division

Provides that this Division applies to an improvement notice, prohibition notice or non-disturbance notice.

187—Notice to be in writing

Provides that a notice must be in writing and if given orally must be reduced to writing as soon as practicable.

188—Directions in notices

Provides that directions contained in a notice may refer to an approved code of practice or offer a person a choice of ways in which to remedy a contravention.

189—Recommendations in notice

Provides that an improvement notice or a prohibition notice may include recommendations.

190—Variation or cancellation of notice by rail safety officer

Provides that a rail safety officer may make minor changes to a notice.

191—Formal irregularities or defects in notice

Provides that irregularities in a notice will not invalidate the notice.

192—Serving notices

Sets out provisions for the service of notices.

Division 5—Remedial action

193—When Regulator may carry out action

Provides that the Regulator may take remedial action to make a situation or premises safe where a person fails to take reasonable steps to comply with a prohibition notice.

194—Power of Regulator to take other remedial action

Provides that the Regulator may take remedial action where the person with the control or management of premises cannot be found and thus no prohibition order could be issued.

195—Costs of remedial or other action

Provides that reasonable costs of remedial action may be recovered by the Regulator.

Division 6—Injunctions

196—Application of Division

Provides that this Division applies to an improvement notice, a prohibition notice or a non-disturbance notice.

197—Injunctions for non-compliance with notices

Provides that the Regulator may apply to the court for an injunction in relation to a notice.

Division 7—Miscellaneous

198—Response to certain reports

Provides that in response to certain reports, the Regulator may give directions in a notice to a rail transport operator to install safety or protective systems, devices, equipment or appliances in relation to rail infrastructure or rolling stock, as specified in the notice. Sets out the requirements for such a direction.

199—Power to require works to stop

Sets out provisions to ensure the safety or operational integrity of a railway in relation to works being carried out near a railway.

200—Temporary closing of railway crossings, bridges etc

Provides that an authorised officer may close temporarily a railway crossing, bridge, subway or other structure for crossing over or under a railway, if there is an immediate threat to safety.

201—Use of force

Provides that in exercising a power to enter railway premises or do anything in or on railway premises, a rail safety officer must not use more force than is reasonably necessary.

202—Power to use force against persons to be exercised only by police officers

Provides that force against a person must not be used by a person who is not a police officer.

Part 6—Exemptions

Division 1—Ministerial exemptions

203—Ministerial exemptions

Provides for exemptions from the RSNL granted by the Minister, after consultation with the Regulator.

Division 2—Exemptions granted by Regulator

Subdivision 1—Interpretation

204—Interpretation

Provides that this Division applies to specified provisions of the RSNL.

Subdivision 2—Procedures for conferring exemptions

205—Application for exemption

Provides for a rail transport operator to apply to the Regulator for an exemption from a particular provision of the RSNL .

206—What applicant must demonstrate

Sets out what an applicant for an exemption must demonstrate before an exemption may be granted by the Regulator.

207—Determination of application

Sets out the provisions for the determination of an application for an exemption by the Regulator.

Subdivision 3—Variation of an exemption

208—Application for variation of an exemption

Provides that a rail transport operator may apply to the Regulator for a variation of an exemption.

209—Determination of application for variation

Provides for the determination of an application for the variation of an exemption by the Regulator.

210—Prescribed conditions and restrictions

Provides that an exemption granted by the Regulator that is varied is subject to any conditions or restrictions prescribed by the national regulations.

211—Variation of conditions and restrictions

Provides that a rail transport operator who has been granted an exemption may apply to the Regulator for the variation of a condition or restriction imposed on the exemption.

212—Regulator may make changes to conditions or restrictions

Provides that the Regulator may at any time vary or revoke a condition or restriction imposed on an exemption, or impose a new condition or restriction.

Subdivision 4—Revocation or suspension of an exemption

213—Revocation or suspension of an exemption

Gives the Regulator the power to suspend or revoke an exemption in certain circumstances.

Subdivision 5—Penalty for breach of condition or restriction

214—Penalty for breach of condition or restriction

It is an offence for a rail transport operator to contravene a condition or restriction of an exemption granted by the Regulator.

Part 7—Review of decisions

215—Reviewable decisions

Sets out the decisions made under the RSNL that are reviewable (a reviewable decision) and who is eligible to apply for a review.

216—Review by Regulator

Sets out the process that applies in respect of a reviewable decision made by the Regulator.

217—Appeals

Provides for an appeal to the court in respect of certain decisions.

Part 8—General liability and evidentiary provisions

Division 1—Legal proceedings

Subdivision 1—General matters

218—Period within which proceedings for offences may be commenced

Sets out the period in which proceedings for an offence may be commenced.

219—Multiple contraventions of rail safety duty provision

Provides that 2 or more contraventions of a rail safety duty arising out of the same factual circumstances may be charged as a single offence or as separate offences.

220—Authority to take proceedings

Provides that certain legal proceedings will first require the approval of the Minister or the Regulator.

Subdivision 2—Imputing conduct to bodies corporate

221—Imputing conduct to bodies corporate

Provides for certain conduct to be imputed to bodies corporate.

Subdivision 3—Records and evidence

222—Records and evidence from records

Provides that the Regulator may sign a certificate that certifies as to matters required to be recorded in the National Safety Register for the purposes of legal proceedings.

223—Certificate evidence

Provides for the Regulator, a rail safety officer or a police officer to provide a certificate as to any matter that appears in certain records, that is admissible as evidence in court proceedings.

224—Proof of appointments and signatures unnecessary

Provides that it is not necessary to prove appointments or signatures.

Division 2—Discrimination against employees

225—Dismissal or other victimisation of employee

Provides that it is an offence for an employer to victimise an employee who has assisted or made a complaint in relation to a breach or alleged breach of an Australian rail safety law.

Division 3—Offences

226—Offence to give false or misleading information

Provides that it is an offence to give false or misleading information or documents.

227—Not to interfere with train, tram etc

Provides that it is an offence to interfere with rolling stock, rail infrastructure or equipment of a rail transport operator.

228—Applying brake or emergency device

Provides that it is an offence to apply a brake or emergency device on a train or tram or on railway premises without a reasonable excuse.

229—Stopping a train or tram

Provides that it is an offence to stop a tram or train without reasonable excuse.

Division 4—Court-based sanctions

230—Commercial benefits order

Provides for a court to make a commercial benefits order on the application of the prosecutor or the Regulator if a person is found guilty of an offence.

231—Supervisory intervention order

Provides for a court to make a supervisory intervention order on the application of the prosecutor or the Regulator if a person is found guilty of an offence and the court considers the person to be a systematic and persistent offender against the rail safety laws.

232—Exclusion orders

Provides for a court to make an exclusion order on the application of the prosecutor or the Regulator if a person is found guilty of an offence and the court considers the person to be a systematic and persistent offender against the rail safety laws.

Part 9—Infringement notices

233—Meaning of infringement penalty provision

Sets out the meaning of an 'infringement penalty provision'.

234—Power to serve notice

Provides the Regulator with the power to serve an infringement notice on a person who has breached an infringement penalty provision.

235—Form of notice

Sets out the requirements for an infringement notice.

236—Regulator cannot institute proceedings while infringement notice on foot

Provides that the Regulator must not institute proceedings in relation to a breach for which an infringement notice has been served and is current.

237—Late payment of penalty

Provides for payment of an infringement penalty after the time for payment has expired.

238—Withdrawal of notice

Provides that the Regulator may withdraw an infringement notice at any time.

239—Refund of infringement penalty

Provides that if an infringement notice is withdrawn by the Regulator, any infringement penalty paid must be refunded.

240—Payment expiates breach of infringement penalty provision

Provides that if an infringement penalty is paid and a notice has not been withdrawn, then no proceedings can be taken in respect of the alleged breach.

241—Payment not to have certain consequences

Provides that payment of an infringement penalty is not to be taken to be an admission of liability for the purpose of any proceedings instituted in respect of the breach.

242—Conduct in breach of more than 1 infringement penalty provision

Provides that if a person's conduct constitutes a breach of 2 or more infringement penalty provisions, an infringement notice may be served in relation to the breach of any 1 or more of those provisions. However, a person is liable to pay no more than one infringement penalty in respect of the same conduct.

Part 10—General

Division 1—Delegation by Minister

243—Delegation by Minister

Provides that the Minister may delegate a function or power of the Minister under the RSNL.

Division 2—Confidentiality of information

244—Confidentiality of information

Provides for the protection of confidential information.

Division 3—Law does not affect legal professional privilege

245—Law does not affect legal professional privilege

Provides that information or documents that are subject to legal professional privilege are protected.

Division 4—Civil liability

246—Civil liability not affected by Part 3 Division 3 or Division 6

Provides that nothing in Part 3 Division 3 (Rail safety duties) or Division 6 (Safety management) affects civil proceedings.

247—Protection from personal liability for persons exercising functions

Provides that certain persons exercising a function under the RSNL are protected from personal liability for things done or omitted in good faith. Any liability attaches instead to the ONRSR.

248—Immunity for reporting unfit rail safety worker

Provides certain health professionals with immunity for providing information that discloses a rail safety worker as unfit to carry out rail safety work.

Division 5—Codes of practice

249—Approved codes of practice

Provides that responsible Ministers may approve a code of practice for the purposes of the RSNL.

250—Use of codes of practice in proceedings

Provides that an approved code of practice may be used in proceedings for an offence against the RSNL as evidence of whether or not a duty or obligation has been complied with.

Division 6—Enforceable voluntary undertakings

251—Enforceable voluntary undertaking

Provides that the Regulator may accept a written rail safety undertaking in relation to a contravention or alleged contravention of the RSNL (other than for a Category 1 offence).

252—Notice of decisions and reasons for decision

Provides that the Regulator must give notice and reasons of the Regulator's decision to accept or reject an undertaking and must publish a notice of the decision to accept a rail safety undertaking and the reasons for doing so.

253—When a rail safety undertaking is enforceable

Provides that a rail safety undertaking accepted by the Regulator is enforceable.

254—Compliance with rail safety undertaking

Provides that it is an offence for a person to fail to comply with a rail safety undertaking made by that person.

255—Contravention of rail safety undertaking

Provides that the Regulator may apply to the court for enforcement of an rail safety undertaking.

256—Withdrawal or variation of rail safety undertaking

Provides that a person who has made a rail safety undertaking may, with the written agreement of the Regulator, withdraw or vary the undertaking.

257—Proceedings for alleged contravention

Provides that no proceedings for a contravention or alleged contravention of the RSNL may be brought against a person if there is a rail safety undertaking in effect in relation to that contravention. A rail safety undertaking may be accepted by the Regulator in relation to proceedings that have not been finalised, in which case the proceedings are to be discontinued.

Division 7—Other matters

258—Service of documents

Sets out the procedures for service.

259—Recovery of certain costs

Provides for the recovery by the Regulator from a rail transport operator of the reasonable costs of inspection of railway infrastructure, rolling stock or railway premises (other than an inspection under Part 3 Division 11).

260—Recovery of amounts due

Provides that fees, charges and other amounts payable under the RSNL may be recovered a debt due to the Regulator.

261—Compliance with conditions of accreditation or registration

Provides that a person who complies with a condition or restriction of accreditation or registration, will be taken to have complied with the RSNL.

262—Contracting out prohibited

Prohibits the ability for a contract or agreement to exclude, limit or modify the operation of the RSNL or any duty under the RSNL.

Division 8—Application of certain South Australian Acts to this Law

263—Application of certain South Australian Acts to this Law

Sets out the application of certain South Australian Acts to the RSNL and provides that the national regulations may modify these Acts for the purposes of the RSNL.

Division 9—National regulations

264—National regulations

Sets out provisions in relation to the making of the national regulations.

265—Publication of national regulations

Provides that the national regulations are to be published on the NSW legislation website.

Schedule 1—National regulations

This Schedule sets out the matters in relation to which the national regulations may be made.

Schedule 2—Miscellaneous provisions relating to interpretation

This Schedule sets out provisions governing the interpretation of the RSNL. These provisions are necessary due to the disapplication of the Acts Interpretation Act 1915.

Debate adjourned on motion of Hon. D.W. Ridgway.


At 22:02 the council adjourned until Thursday 5 April 2012 at 11:00.


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