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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
2012-05-01 Daily Xml
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RAIL SAFETY NATIONAL LAW (SOUTH AUSTRALIA) BILL

Second Reading

Adjourned debate on second reading.

(Continued from 4 April 2012.)

The Hon. D.W. RIDGWAY (Leader of the Opposition) (17:08): I rise on behalf of the opposition to speak to the Rail Safety National Law (South Australia) Bill 2012. This bill repeals the state Rail Safety Act 2007, and it is part of the national reform to abolish the state rail regulators and establish a national regulator. If other states are to follow South Australia as a lead agency in moving to a national regulator, state regulators will not be needed anymore, and we will have a national regulator headquartered here in Adelaide.

The South Australian government claims that the legislation was the most consistent with the model law, and it has been nominated by the COAG to be the lead state on this legislation. In 2006, we dealt with legislation to establish the Rail Safety Act, and that legislation has been reasonably efficient over the five-year period. However, for some time, the industry has been seeking greater uniformity.

Many rail operators are obviously operating across jurisdictions, so a national regulator does make sense. The current law provides for accreditation and regulation of rail operators, including drug and alcohol testing and auditing of railway operations. As of 30 June 2011, there were nearly 50 regulated operators in South Australia. The state regulator is currently Brian Hemming, and he and his staff currently provide that accreditation and regulation to those 50 rail operators, the majority of whom are private operators.

The government agrees that the delivery under model law needs to be improved. Many operators are national companies, and they are seeking consistency over multiple jurisdictions, with one certificate of accreditation. Ms Vickie Chapman (shadow minister in another place) in her second reading contribution said that the last annual report from the Rail Safety Regulator stated:

South Australia has 4,730 route kilometres of rail track, on which an aggregate total of 17,590,448 kilometres were travelled by trains during the 2010-11 financial year.

These businesses must be regulated with an exceptionally high standard of safety, by virtue of not only the simple nature of their work but also the huge distances covered in transporting people and stock, as evidenced above.

Rail operators need either accreditation or an exemption from accreditation if they are operating on a track with a gauge of 600 millimetres or more. They pay annual fees for that accreditation, and the minimum fee is around $14,000, but very large operators—and our shadow minister used the example of Genesee & Wyoming—pay an annual fee of around $300,000 because they operate across states and therefore require various accreditations.

Operators have not yet been given any assurances by the minister as to what the fees will be under the new system and whether they will reflect a reasonable rate of implementing the program. Apparently, ministers are to meet in May to discuss what the revised cost to the industry will be. That had obviously not happened at the time this bill was debated in the House of Assembly and, as today is only 1 May, I assume that it still has not happened.

The advice from the minister's office is not very reassuring, in that they claim the costs will largely be met by the commonwealth. Of course, as the shadow minister Vickie Chapman said, it is still all taxpayers' money. The Productivity Commission will be keeping an eye on this additional cost to the industry and whether any jobs are lost as a result of the new system. The opposition will be very keen to keep up to date with this particular information.

The functions of the regulator are broadened under the bill. The duties of operators are codified, and offences for breach of those duties are provided for. Vickie Chapman made the legitimate point that these are possible areas where the government has not been able to achieve enforcement under the Work Health and Safety Bill, and there is a good reason why the government would want to push this bill through.

A common approach to the prescription of drug and alcohol requirement and fatigue management provisions is promoted through this bill. It has been made clear to the opposition in briefings that some of the other jurisdictions have failed in managing these areas well, so a national system is needed to bring them up to standard. Some provisions will be strengthened, including the prescribed concentration of alcohol allowed being reduced from .02 to zero.

Workers already submit to testing, and in the 15 years leading up to 2012 there were 149 reports of positive drug or alcohol or tests. That is around 0.17 per cent of all tested. It is a relatively small percentile, which is a positive indication; however, our shadow minister rightfully expressed concern that none of these 149 people were ever reported to the police.

Under the new arrangement, where the national regulation will be providing for penalties for breach of safety—as high as five years in prison or $3 million for corporate breaches—it would certainly seem warranted that such test readings are reported. I would also be interested in some clarification on when reporting would occur under the new system.

With regard to fatigue management, a common approach to fatigue management is supposedly promoted. This is a hot topic within the heavy transport industry. I received a letter that makes some comments in relation to this, (I think a number of other members may have received an email from a gentleman last night), and I might put some of his comments on the record. Similar legislation to appoint national regulators for heavy vehicles and commercial marine vessels will be introduced soon. The new Queensland government will be the host state for heavy vehicles, and the new Queensland transport minister confirms that the act will be introduced shortly. We look forward to seeing that legislation.

The Australian Railway Association has confirmed its support for the bill, and I indicate that the opposition will be supporting the bill. I would now like to indicate that I received correspondence from Mr Scott Parham. As I previously mentioned, I think he sent the email to a number of members of the Legislative Council, and it refers to fatigue management. I spoke to him and indicated we would not be proposing any amendments but, given that he took the time to contact the Legislative Council, I will read his remarks into the record for his benefit. Under the heading 'Driver Fatigue Submission', he states:

I believe the second reading of [the Rail Safety National Law (South Australia) Bill 2012] is pending however at this late stage I wish to express my concern with various aspects of the Bill relating to driver fatigue, and urge caution in its passing.

Profit and efficiency in the Australian rail sector does not have to come at the expense of safety.

The proposed State legislation and regulations, that may ultimately lead to a national regulatory regime, leave a lot to be desired with respect [to] worker safety, industry best practice and social and corporate responsibility.

In the absence of strong, prescriptive legislation and regulations, the undesirable and dangerous practices that have crept into the industry...over recent years will be seen by corporate participants as tacit government approvals for their practices.

Unlike road transport and aviation that have specific Acts and regulations relating to fatigue and operational limitations, there are no legislative instruments that deal with fatigue and fatigue management in railways. Many professionals within the industry are currently suggesting the processes in place are inadequate due to the lack of legislative control, especially when compared to that of the road transport and aviation industry.

The proposed Rail Safety National Law (and associated regulations)—

in Mr Parham's view—

appears grossly inadequate in the areas of fatigue and the limitations of shifts when considering and comparing the Road Traffic (Heavy Vehicle Driver Fatigue) Regulations 2008 under the Road Traffic Act...

I just wanted to put those few comments of Mr Parham. He does think this is deficient. I did have a discussion with him in relation to the differences between trains, heavy vehicles and aviation.

A train is on a rail and, although they do occasionally come off, incidents are very rare and in fact I am not aware of any significant rail incidents where the cause has been determined to be driver fatigue. There have been other external influences often when it comes to major accidents, especially on a long haul where somebody is at a level crossing or there has been a flood or damage to the track.

I just put those few comments on his behalf, but I indicated in my conversation with him that we certainly would not be moving any amendments. I did thank him for making contact. I think it is important that, when members of the community feel inclined to make contact, we actually thank them for their contributions. With those few comments, I indicate that the opposition will be supporting the bill without amendment.

The Hon. M. PARNELL (17:17): The Greens support the Rail Safety National Law as a major safety regulatory and productivity reform which seeks to establish uniform national regulation of rail transport operators and establish a single national rail safety regulator, and we are also pleased that the office of the national rail safety regulator will be located in Adelaide.

The national law will replace seven separate regulatory authorities, three investigatory agencies and 46 pieces of state, territory and commonwealth legislation. In South Australia, the law will replace the Rail Safety Act 2007, which itself was based on model legislation devised in 2006 by the National Transport Commission and representatives from all states and territories. The new Rail Safety National Law covers accreditation, registration of rail infrastructure managers, safety management, investigation and reporting by rail transport operators, drug and alcohol testing, train safety recordings, auditing of railway operations, compliance and enforcement and review of decisions.

The Greens strongly support rail as a means of transport, and we support it strongly for a number of reasons, not the least of which is the increased urgency for us to reduce our carbon footprint, to reduce carbon pollution. We also need to reduce our reliance on declining oil supplies, and we all know that rail, as a means of transport for either freight or people, is one of the most efficient methods there is. Steel on steel is far more efficient than rubber on bitumen or propellers through water, even.

We are great supporters of rail. We think more freight should go by rail. We think more people should go by rail, but that is going to involve a major increase in infrastructure spending, which is why the Greens went to the last federal election with plans and a policy for a feasibility study into high-speed rail. When the result of that election was so close, the Greens managed to secure a commitment from the Gillard Labor government for a $20 million high-speed rail feasibility study, which will be concluded in July. We already know that this will be a transformational nation-building project and that it will have massive economic benefits.

Whilst the logical starting point for such a project is the connection of the big east coast cities and Canberra, we should also be advocating in the longer term for a connection to South Australia. I would just love to see high-speed rail coming in through regional South Australia to Adelaide.

I was a regular train passenger on the Melbourne to Adelaide route. I recall that in the early 1990s the time it took the Overland to get from Adelaide to Melbourne had not changed since the 1930s. I understand that what was a 13 or 14-hour overnight trip has now been reduced to a 10½ hour daytime trip, but my recollection also of the overnight trip is of spending a lot of time at sidings in the middle of nowhere, waiting for freight trains to go past. It is quite remarkable, really, that a service cannot have greatly improved in nearly a century. I think as a nation we need to do much better, and a national regulation scheme such as this has to be part of that solution.

In terms of specific issues in relation to this bill, there are two issues I want to raise, and I have obtained these from a number of locations. Firstly, we had a look at the submissions that were made to the draft bill. We looked at the submissions made by the Australasian Railway Association Inc., the Australian Rail Track Corporation Ltd, the South Australian Freight Council, SCT Logistics and also Heritage Rail SA Inc., amongst others.

It is that last submission I want to refer to. This is the group that is involved with heritage rail, as its name implies, but often tourist rail. Their concern was whether the costs associated with this new national regulatory regime would impact on their operations—put them out of business, for example. We all know that, when the insurance reforms came in a few years ago, operations such as the Pichi Richi Railway and others were really struggling. They were putting their hand out to government to help them pay insurance premiums.

What I would like to know is whether or not the anticipated costs associated with this new national regime are likely to be problematic for these small tourist operations, particularly ones that rely on volunteer labour. I do not have a complete list but, just so that the minister can address her remarks, we have the Pichi Richi Railway, which I have mentioned.

We also have the National Railway Museum and, whilst it does not necessarily have kilometres of track, my understanding is it does still operate vehicles. What will the impact be on that organisation? SteamRanger, as I understand it, has overall responsibility for the Cockle Train. We have Southern Encounter, the Highlander, the Bugle Ranger, Strathlink and a number of other services. We also have the Tramway Museum at St Kilda. Will they be covered? I think the last one on my list is the Murray Bridge Wharf Railway.

There may well be more that I have missed, but we have a number of heritage tourist operations that are concerned that the new regime will have considerable cost associated with it, so I would ask the minister to address that. What are the costs likely to be, and what capacity does government have to assist in keeping those operations going? I think they form an important part of the tourist landscape here in South Australia. Of course, the overriding consideration has to be making sure that those services, even if they are non-profit and run by volunteers, are safe. You do not want to be killed on a commercial service, you do not want to be killed on a volunteer-run tourist railway either, so that has to be non-negotiable.

Probably the main issue that has been raised in the media—the Hon. David Ridgway has referred to it already—is the standards of work for train drivers in particular, especially around fatigue. Trying to get to the bottom of this has been a bit difficult. We certainly have in the current legislation requirements for rail operators to have plans for dealing with the safety of drivers and, in particular, fatigue issues. It is in the current act.

We also have draft regulations which have been out, as I understand it, for public comment for some little while. They certainly have not been gazetted yet, even though they have been written in South Australian form. Presumably, they will be gazetted once the legislation is passed. However, they are on the National Transport Commission website, Rail Safety National Law Regulations 2007. Proposed regulation No. 29, under the heading, Fatigue Risk Management Program, lists a page and a half of things that need to be taken into account by rail transport operators in preparing their fatigue risk management program. So, it is not a new issue.

As I understand it, a lot of the controversy probably flows from the release in February 2012 of the Fatigue Risk Management—Hours of Work and Rest Draft Regulatory Impact Statement. What I thought was quite interesting was that this purports to be a discussion paper to the extent that it canvasses different options. Under the heading, Options assessed, option 1 states, 'No prescribed hours of work/rest are included in national law.' In other words, you set out the standards that you want to meet but you do not actually say that the maximum that a train driver can go is 12 hours or 10 hours or 11 hours.

I thought it was interesting that this document is dated February 2012, yet that option has already been incorporated into regulations that were drafted last year. So, I can understand why some stakeholders feel that decisions have been made and that the opportunity to have input into them might not be a genuine opportunity.

The other thing that I think has led to some of the media commentary recently is that some states do have in black and white the hours of work stipulated in their legislative arrangements. As I understand it, it is New South Wales and Queensland. In those states, many people are keen to make sure that those numbers—such as 12-hour maximum shifts—are incorporated into the national law.

As the Hon. David Ridgway pointed out, we have had a few people write to us saying that we should vote against this bill because it does not actually have written in it the maximum hours of work. My view on these things is that that is a level of detail that is best left to either subordinate legislation or to individual fatigue management plans that are written under the guidance of subordinate legislation. I do not see that those concerns, as legitimate as they are, are reason for us not to be supporting this bill.

What I would ask the minister to do, perhaps in summing up, or if she gets anything before we go out of committee, is just to explain to us how the situation is likely to change in South Australia in terms of drivers, fatigue management and the length of shifts. I think that if the minister can put on the record assurances that safety will still be paramount and that this is not a backdoor method for ever increasing the length of shifts for train drivers then that might alleviate some of the concerns out there in the community. With those words, the Greens will be supporting this legislation.

The Hon. I.K. HUNTER (Minister for Communities and Social Inclusion, Minister for Social Housing, Minister for Disabilities, Minister for Youth, Minister for Volunteers) (17:29): I would like to thank the Hon. Mr Ridgway and the Hon. Mr Parnell for their contribution and for their indication of support on behalf of their respective parties. The Hon. Mr Parnell asked a question about the tourist and heritage sector and how they would be treated. My understanding is that the cost recovery framework for rail safety regulations has been considered by the responsible ministers, the Standing Committee on Transport and Infrastructure.

The national fee framework will include fees payable by the Tourist and Heritage Railways; however, each jurisdiction, through government policy, may choose to pay this charge on behalf of the tourist and heritage sector. This allows South Australia to continue to subsidise the sector as a community service obligation, and that, I understand, is our intention.

In terms of managing issues relating to drugs and fatigue, etc., I understand there will be a common approach to the prescription of drug and alcohol requirements and fatigue risk management provisions. The majority of the bill deals with testing procedures for drugs and alcohol. It has been agreed that jurisdictional testing procedures will align with the local Road Traffic Act. The testing procedures in the bill are based on those currently used under the Rail Safety Act 2007, which in turn, I understand, mirror those used for other modes of transport. It is not the government's intention in any way to reduce any focus on safety through this proposal. I commend the bill to the council and I look forward to an expeditious committee stage.

Bill read a second time.

Committee Stage

Bill taken through committee without amendment.

The Hon. I.K. HUNTER (Minister for Communities and Social Inclusion, Minister for Social Housing, Minister for Disabilities, Minister for Youth, Minister for Volunteers) (17:33): I move:

That this bill be now read a third time.

Third Reading

Bill read a third time and passed.

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