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Legislative Council - Fifty-Fourth Parliament, First Session (54-1)
2019-04-03 Daily Xml
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Bills

Rail Safety National Law (South Australia) (Miscellaneous) Amendment Bill

Second Reading

The Hon. R.I. LUCAS (Treasurer) (18:09): I move:

That this bill be now read a second time.

I seek leave to have the second reading explanation inserted in Hansard without my reading it.

Leave granted.

I am pleased to introduce the Rail Safety National Law (South Australia) (Miscellaneous) Amendment Bill 2019, which amends the Rail Safety National Law. The National Law is contained in a schedule to the Rail Safety National Law (South Australia) Act 2012.

In December 2009, the Council of Australian Governments agreed to implement national rail safety reform, that created a single rail safety regulator, and to develop a rail safety national law, which a rail regulator would administer. The national rail reform:

supports a seamless national rail transport system;

ensures existing levels of rail safety are maintained;

streamlines regulatory arrangements and reduce the compliance burden for business; and

improves national productivity and reduce transport costs generally.

The Rail Safety National Law commenced operation on 20 January 2013. The Office of the National Rail Safety Regulator was established as a body corporate under the National Law, with its scope now also enacted through legislation in all jurisdictions.

The National Law was developed by the National Transport Commission, the Office of the National Rail Safety Regulator, together with jurisdictions and all these entities contribute to identifying legislative amendments. Ministers of the Transport and Infrastructure Council, which consists of Commonwealth, State, Territory and New Zealand Ministers with responsibility for transport and infrastructure issues approved this Rail Amendment Bill on 9 November 2018.

South Australia, as host jurisdiction, is responsible for the passage of the National Law and any Amendment Bills through the South Australian Parliament. Once commenced in South Australia, each participating jurisdiction has an Application Act that automatically adopts the National Law and subsequent amendments into its own legislation, except in Western Australia, where its Parliament needs to approve all amendments.

During its first five years of operation, the Rail Regulator has successfully discharged its obligations under the National Law including facilitating the safe operation of rail transport in Australia. This has been achieved by providing a scheme for national accreditation of rail transport operators and promoting the provision of national policies, procedures and guidance to industry, further progress in the consolidation of national rail safety data information and education and training for safe railway operations.

This Rail Amendment Bill constitutes the fourth amendment package to be considered by the South Australian Parliament. The first rail amendment package commenced on 1 July 2015, the second on 1 September 2016 and the third on 1 July 2017.

This Rail Amendment Bill extends the drug and alcohol provisions of section 127 of the National Law which governs the requirement for a rail safety worker to submit to a drug screening test, oral fluid analysis or blood test or a combination of these. For drug and alcohol testing, the Rail Amendment Bill:

inserts section 122A to define what constitutes a urine test;

amends section 127 to include urine test as a method of testing;

inserts section 127A that requires a rail transport operator to do all that is reasonably possible to facilitate an authorised officer in exercising drug and alcohol testing powers;

inserts sections 128A, 128B and 128C to prescribe offences and penalties for hindering, obstructing, assaulting, threatening or intimidating an authorised person or interfering, tampering or destroying a urine, oral fluid or blood sample; and

amends section 129 to ensure that urine, together with the existing oral fluid and blood for drug testing cannot be used for any other purpose.

This Rail Amendment Bill also:

amends section 244 of the National Law to provide an additional exception for the release of documents where lawfully provided for under the South Australian Freedom of Information Act 1991;

allows the Rail Regulator to access the use of private sector auditing, as approved by the Transport and Infrastructure Council, for the purpose of auditing the Rail Regulator's annual financial statements;

amends definitions in section 4 of 'level crossing' and 'rail or road crossing' and deletes the definition of 'railway crossing' to support consistency in the National Law;

creates penalties for public road managers who fail in their risk management duties at a road or rail crossing, consistent with the penalties for a rail infrastructure manager in Section 107(1) of the National Law for the same offences;

gives the Rail Regulator the explicit ability to enter premises for drug and alcohol testing; and

amends section 200 to substitute 'level crossing' instead of the deleted 'railway crossing'.

Variation regulations that will support the operation of the Rail Amendment Bill will be tabled in this Parliament approval following the Parliamentary process.

This Rail Amendment Bill has the support of major stakeholders, including the Australasian Railway Association, Australian Local Government Association and the Rail Tram and Bus Union.

I commend this Bill to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Rail Safety National Law

4—Amendment of section 4—Interpretation

This clause amends the definition of level crossing to address issues of national consistency in relation to the management of road and tram interfaces. The amended definition also clarifies that it includes a pedestrian crossing that crosses a railway (whether or not it is signed) and a pedestrian crossing that crosses a tramway where the crossing has a level crossing sign.

This clause also makes a technical amendment to the definition of rail or road crossing to incorporate the current definition of railway crossing (which is being deleted as this is no longer required as a separately defined term).

5—Amendment of section 43—Annual report

This clause amends section 43(2) to remove the reference to 'public sector auditor' and inserts a regulation making power to allow for the national regulations to make provision in relation to the preparation and auditing of financial statements. This is to allow for the ability for audits to be conducted by appropriately qualified private sector auditors (in accordance with the prescribed requirements).

6—Amendment of section 107—Interface coordination—rail infrastructure and public roads

This amendment inserts a penalty in relation to the existing obligations of a road manager regarding rail and road interfaces. This is the same penalty that currently applies to rail infrastructure managers to reflect that they have a shared responsibility with respect to interface coordination.

7—Insertion of section 122A

This amendment inserts an interpretation provision for the purposes of the amendments made by other provisions of this measure in relation to urine testing by the Regulator.

122A—Interpretation

The proposed new clause inserts a definition of urine test to cover both the screening and analysis of a urine sample for the presence of drugs.

8—Amendment of section 127—Authorised person may require drug screening test, oral fluid analysis, urine test and blood test

Section 127 of the Act provides for the drug and alcohol testing of rail safety workers by the Regulator. This amendment inserts a reference to a urine test to extend Regulator testing to the testing of urine samples.

9—Insertion of section 127A

This clause inserts a new provision to ensure that a person with control or management of railway premises must facilitate an authorised person in the exercise of the powers under the Act in relation to drug and alcohol testing by the Regulator.

127A—Facilitation of testing

The proposed new section provides that the manager of railway premises must give all reasonable assistance to an authorised person to undertake drug and alcohol testing of rail safety workers at the premises. This includes such things as allowing the authorised person to enter the premises, making rail safety workers available for testing and making other persons at the premises available to provide assistance to the authorised person in carrying out the drug and alcohol testing.

10—Insertion of sections 128A to 128C

This clause inserts new offences to support the facilitation of drug and alcohol testing by the Regulator.

128A—Offence to hinder or obstruct authorised person

The proposed clause makes it an offence to intentionally hinder or obstruct an authorised person who is exercising powers under Part 3 Division 9 of the Act which deal with drug and alcohol testing by the Regulator. The maximum penalty for this offence is a fine of $10,000.

128B—Offence to assault, threaten or intimidate authorised person

This clause makes it an offence for a person to directly or indirectly assault, threaten or intimidate an authorised person or an assistant of the authorised person. The maximum penalty for this offence is $50,000 or two years imprisonment, or both.

128C—Interfering or tampering with, or destroying, samples

This clause inserts an offence of unlawfully interfering or tampering with, or destroying an oral fluid, urine or blood sample provided or taken for the purposes of drug and alcohol testing by the Regulator under Part 3 Division 9. The penalty for this offence is $10,000.

11—Amendment of section 129—Oral fluid, urine sample or blood sample or results of analysis etc not to be used for other purposes

Section 129 of the Act provides that an oral fluid or blood test or the results of an analysis of an oral fluid or blood sample cannot be used for a purpose that is not contemplated by Part 3 of the Act or an application Act of a participating jurisdiction. This amendment extends the operation of this section to urine samples and urine testing.

12—Amendment of section 200—Temporary closing of level crossings, bridges etc

This amendment is consequential on the proposed changes to the definition of level crossing and deletion of the definition of railway crossing in section 4 of the Act by this measure. The amendment changes references to a railway crossing to references to a level crossing.

13—Amendment of section 244—Confidentiality of information

This clause amends section 244(3) of the Act to allow for the disclosure of information made or given in accordance with the Freedom of Information Act 1991 of this State as applied by the Rail Safety National Law (and as modified by the national regulations).

Debate adjourned on motion of Hon. I.K. Hunter.

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