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Legislative Council - Fifty-Fifth Parliament, First Session (55-1)
2022-11-03 Daily Xml
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Rail Safety National Law (South Australia) (Miscellaneous) Amendment Bill

Second Reading

The Hon. C.M. SCRIVEN (Minister for Primary Industries and Regional Development, Minister for Forest Industries) (12:43): I move:

That this bill now be read a second time.

I seek leave to insert into Hansard without my reading them the second reading speech and the explanation of clauses.

Leave granted.

I am pleased to introduce the Rail Safety National Law (South Australia) (Miscellaneous) Amendment Bill 2022. This Bill amends the Rail Safety National Law which is contained in the Schedule to the Rail Safety National Law (South Australia) Act 2012.

South Australia is the lead legislator for the Rail Safety National Law. This means that if the Bill passes both Houses of this Parliament, and has commenced in operation, the amendments to the National Law will apply in all Australian States and Territories, except for Western Australia. The amendments to the National Law will not apply in Western Australia until they are adopted there by way of mirror legislation.

Under the Rail Safety National Law, rail transport operators are responsible for ensuring that rail safety workers have the competence to undertake rail safety work in relation to their railway operations. An assessment of a rail safety worker's competence includes an assessment of the worker's competence in accordance with any applicable qualifications or units of competence recognised under the Australian Qualifications Framework.

The National Law provides that a certificate of competence that has purportedly been issued under the Framework to a rail safety worker, and that certifies the worker has certain qualifications or units of competence, is evidence that the worker has those qualifications or units of competence.

There have been incidents where rail safety workers have altered certificates of competence and provided the altered certificates to rail transport operators. The Bill amends the Rail Safety National Law to address this behaviour.

Under the amended National Law, it will be an offence for a rail safety worker to provide a document or information:

that is false or misleading in a material particular; or

that omits any matter or thing without which the document or information is misleading,

for the purposes of an assessment of the worker's competency to carry out rail safety work. A person found guilty of this offence will face a maximum penalty of $10,000.

The Bill also inserts a section into the National Law which provides the National Rail Safety Regulator with a new power to grant exemptions. The new power enables the Regulator to exempt all rail transport operators, or rail transport operators of a class, from section 114 of the National Law, in the event of an emergency.

Section 114 requires rail transport operators to prepare and implement a health and fitness program for rail safety workers. At the beginning of the COVID-19 pandemic in 2020, access to non-urgent medical services was limited, and this affected the ability of rail transport operators to meet the requirements of section 114.

While the Regulator currently has the power to grant rail transport operators an exemption from section 114, this power only allows the Regulator to grant exemptions to individual operators, on application. The narrow scope of the Regulator's power meant that at the beginning of the COVID-19 pandemic, the Office of the National Rail Safety Regulator had to work with each State and Territory to arrange for the responsible Minster in each jurisdiction to grant operators an exemption from section 114.

The Regulator's new power means that, in the event of a future emergency, the Regulator will be able to grant an exemption from section 114 to all rail transport operators, across all jurisdictions, at the same time. Like the section of the National Law that gives responsible Ministers an exemption power, the new section will limit the period of time for which exemptions can be granted to three months, will allow exemptions to be granted subject to conditions, and will allow for the variation and cancellation of exemptions.

It will be an offence for a rail transport operator to breach a condition placed on an exemption from section 114, without reasonable excuse. If an operator is prosecuted, it will be up to the operator to show that they had a reasonable excuse for breaching the condition. An operator found guilty of this offence will be subject to a maximum penalty of $100,000 if they are a body corporate, or $20 000 if they are an individual.

The amendments to the Rail Safety National Law that I have just outlined were approved by the responsible Ministers at the Infrastructure and Transport Minsters' Meeting held on 11 February 2022. As South Australia is the lead legislator for the National Law, the Parliamentary Counsel drafted the Bill on behalf of the Australasian Parliamentary Counsel's Committee.

I commend the Bill to the House.

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 42—National Rail Safety Register

This clause makes an amendment to the requirement that details of exemptions are to be included on the National Rail Safety Register. This is a consequential amendment to broaden the reference to exemptions to ensure it will cover Regulator exemptions granted under proposed new section 203A.

5—Amendment of section 117—Assessment of competence

This clause provides that it is an offence for a person to provide a document or information in relation to the assessment by a rail transport operator of that person's competence for carrying out rail safety work that is false or misleading in a material particular, or omits something, without which, the document or information is misleading. This is required as the general offence under section 226 of the Law for providing false and misleading information given in compliance with the Law does not apply where there is no obligation under the Law for a person to provide that information to a rail transport operator.

6—Amendment of section 203—Ministerial exemptions

This amendment is consequential on proposed new section 203A to ensure there is consistency with the provision regarding the grant of Ministerial exemptions.

7—Insertion of Part 6 Division 1A

This provision inserts proposed Division 1A (and section 203A).

Division 1A—Exemptions granted by Regulator in event of emergency

203A—Exemptions granted by Regulator in event of emergency

This clause provides for the ability of the Regulator to grant exemptions in the event of an emergency to the requirement under section 114 of the Law for a rail transport operator to prepare and implement a health and fitness program for rail safety workers who carry out rail safety work for the operator. For the purposes of the clause, emergency is defined to mean an event or circumstance that is declared to be an emergency or disaster by the Commonwealth or a State or Territory, or a Commonwealth, State or Territory authority that is responsible for managing responses to emergencies or disasters.

Similar to Ministerial exemptions under section 203 of the Law, an exemption under this provision may be granted subject to conditions and for a specified period, which cannot exceed 3 months. An exemption may be varied (but not so as to extend the operation of the exemption for a period that exceeds the maximum of 3 months) or cancelled, as may any conditions of the exemption. It is an offence for a rail transport operator to breach a condition of an exemption without reasonable excuse.

Exemptions of the Regulator under this clause are made by notice in the South Australian Government Gazette and must also be published on the Office of the National Rail Safety Regulator's website.

8—Amendment of heading to Part 6 Division 2

This amendment is consequential on proposed new section 203A to distinguish between exemptions of the Regulator granted under that section and those granted by the Regulator on application under Part 6 Division 2 of the Law.

Debate adjourned on motion of the Hon. L.A. Curran.

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