Federal Register of Legislation - Australian Government

Primary content

SLI 2006 No. 358 Regulations as made
These Regulations, for section 7 of the National Transport Commission Act 2003, set out model legislation in the form of a Bill for an Act that makes provision for rail safety and other matters that form part of a system of nationally consistent rail safety laws and for other purposes.
Administered by: Infrastructure, Transport, Regional Development and Communications
Exempt from sunsetting by the Legislation (Exemptions and Other Matters) Regulation 2015 s12 item 44
Registered 19 Dec 2006
Tabling HistoryDate
Tabled HR06-Feb-2007
Tabled Senate06-Feb-2007

EXPLANATORY STATEMENT

 

Select Legislative Instrument 2006 No. 358

 

Issued by the Authority of the Minister for Transport and Regional Services

 

National Transport Commission Act 2003

 

National Transport Commission (Model Legislation — Rail Safety Bill) Regulations 2006

 

 

Section 52 of the National Transport Commission Act 2003 (the Act) provides that the Governor-General may make regulations, not inconsistent with the Act, prescribing all matters required or permitted by the Act to be prescribed or necessary or convenient to be prescribed for carrying out or giving effect to the Act.

 

The provisions of the Act are supported by the Inter-Governmental Agreement on Regulatory and Operational Reform in Road, Rail and Intermodal Transport (IGA), which serves to formalise the cooperative arrangements between the Commonwealth, States and Territories and define the roles and responsibilities of the National Transport Commission, the Australian Transport Council and the jurisdictions. Clause 14 of the IGA requires the Commonwealth to submit model legislation for inclusion in schedules to regulations under the Act. The proposed Regulations would implement this commitment.

 

The Regulations provide model rail safety legislation provisions for nationally consistent implementation in each State and Territory. The Bill is in model form to allow for implementation in each jurisdiction using the most convenient and effective regulatory manner available – for instance, the provisions may be incorporated into the law of a jurisdiction by way of amendment of existing legislation.

 

The objects of the Regulations are to:

(a)    provide for improvement of the safe carrying out of railway operations;

(b)   provide for the management of risks associated with railway operations;

(c)    make special provision for the control of particular risks arising from railway operations;

(d)   promote public confidence in the safety of transport of persons or freight by rail.

 

The Rail Safety Bill was developed and refined through extensive consultations with the rail industry, governments and the Rail, Tram and Bus Union.  The development process commenced in 2004 with the release of an issues paper (May 2004) followed by the release of a discussion paper in December 2004 and a round of face to face interviews with key stakeholder groups in January and February 2005.

 

The model Bill was circulated for public comment in October 2005 along with a draft Regulation Impact Statement (RIS) and draft recommendations arising from the review of institutional arrangements for administration of rail safety regulation.  The National Transport Commission (NTC) conducted information seminars for government and the rail industry in all jurisdictions to promote discussion and elicit feedback from as wide a range of interested parties as possible.  Sessions could not be conducted in the ACT and NT so special arrangements were made with those jurisdictions to attend sessions in NSW and SA, respectively. 

The RIS was assessed and approved by the Commonwealth Office of Regulation Review.  The Bill and RIS were approved by the Australian Transport Council (ATC) on 2 June 2006.

 

Details of the Bill are set out in the Attachment.

 

Section 7 of the Act provides that the regulations may set out model legislation, being legislation developed by the NTC in accordance with the IGA. Paragraph 7(2)(a) provides that model legislation does not have the force of law.  The schedules to the regulations serve only as a repository for nationally agreed reforms, which may then be implemented by jurisdictions.

 

Item 44 of the table to subsection 44(2) of the Legislative Instruments Act 2003 together with item 7 of Schedule 2 to the Legislative Instruments Regulations 2004 operate to provide that the proposed Regulation would not be subject to disallowance.  In addition, item 51 of the table to subsection 54(2) of the Legislative Instruments Act 2003 together with item 4 of Schedule 3 to the Legislative Instruments Regulations 2004 operate to provide that the proposed Regulation would not be subject to sunsetting.


Attachment

Rail Safety (Reform) Bill

 

Model Explanatory Memorandum

 

General

 

The main purpose of this Bill is to provide for rail safety legislation that will form part of a system of nationally consistent rail safety laws.  The Bill sets out legal duties and operating requirements that are to be applied on a nationally consistent basis to all parties responsible for rail safety and will underpin future national regulations, compliance codes and guidelines.

Australia has adopted a co-regulatory approach to rail safety.  Key characteristics of the ‘co-regulatory’ approach are as follows:

  • Responsibilities for regulatory development, implementation and enforcement are shared between industry participants, industry associations and governments.
  • Government’s role is to establish performance based obligations and specific duties necessary to achieve acceptable levels of safety, meet community expectations and maintain public confidence.
  • Rail industry participants accept accountability for achieving required safety outcomes in return for the flexibility to identify and implement the most effective and efficient means of addressing risks to safety.
  • Rail industry associations serve to represent industry interests in the regulatory development process, facilitate implementation of safety reforms and to provide guidance to industry in the form of codes and standards indicating effective and efficient means of compliance.
  • The Rail Safety Regulator’s role is to provide oversight.  In the rail safety context this includes assessing the capacity and competence of rail organisations to be safe, ensuring that safety management systems are in place, and monitoring the activities of, and safety outcomes achieved by, individual rail organisations; educating rail organisations on potential opportunities to improve safety performance; and, if necessary, enforcing compliance with performance based obligations and duties using available powers and sanctions.

The Bill builds on the existing co-regulatory approach through the implementation of a number of regulatory best practices, including by clarifying the roles and duties of responsible parties, providing for more timely and transparent decision-making by Rail Safety Regulators, and equipping Rail Safety Regulators with the powers and tools they require to monitor and enforce compliance with the legislation.  Importantly the Bill is intended to deliver a higher degree of regulatory harmonisation across Australian States and Territories.

The Bill provides for:

  • General safety duties that require all rail industry participants that form the ‘chain of responsibility’ to ensure the safety of their railway operations.  These statutory duties of care define the required level of safety and makes clear which parties have accountabilities for rail safety.

·        A system of accreditation to provide assurance that rail transport operators have the competence and capacity to operate safely before they are permitted to operate.  The system of accreditation requires that a rail transport operator must have a Safety Management System (SMS) suitable for the rail transport operator’s railway operations.  Specific accreditation requirements are to:

a)      Consult with persons who are intended to work on or at railway premises, both during the initial development of the SMS and in the on-going process of maintaining and changing the SMS

b)      Adopt an integrated approach to risk management to ensure that risks are assessed, evaluated and controlled jointly by those parties that will have a safety interface by virtue of the scope and nature of their intended operations

c)      Establish, implement and maintain: security, emergency, health and fitness, drug and alcohol and fatigue management plans.

·        Audit and inspection powers necessary to enable the rail safety regulator to monitor the compliance of duty holders with statutory duties and related accreditation requirements.

  • A hierarchy of compliance and enforcement powers and sanctions to facilitate an effective and proportionate regulatory response to detected forms of non-compliance by rail transport operators and other persons.
  • An array of checks and balances on regulator behaviour to ensure that regulatory decision-making processes are timely, transparent and nationally consistent.
  • Creation of subordinate legislation (regulations) to be used to specify more detailed requirements that are not appropriate for inclusion in the Bill itself.

The development of the Bill has been underpinned by a set of principles.  Each principle has been given effect in the provisions of the Bill.  Specific examples of how principles are embodied in the provision of the Bill are provided for the purpose of illustration.  The principles are as follows:

  • Principle of shared responsibility which states there are a number of persons who share responsibility for rail safety and who form part of the rail safety chain of responsibility; and Principle of accountability which states that managing risks associated with the carrying out of rail infrastructure operations or rolling stock operations is the responsibility of the person best able to control that risk.  These principles are given effect via the establishment of statutory duties of care for rail transport operators [clause 28], their contractors and subcontractors [clause 28(5) and clause 71] designers, manufacturers and suppliers [clause 29] and rail safety workers [clause 70].
  • Principle of integrated risk management which provides that if approaches to managing risks associated with a railway have a particular impact on other railways or railway networks, the best practicable rail safety outcome should be sought.  This principle is given effect by the accreditation requirement [clause 33(2)(c)] to have interface co-ordination plans in circumstances where there are safety interfaces between rail transport operators and or other parties.  If there is non-compliance with the requirement, the Rail Safety Regulator may direct applicants for accreditation (or variations of accreditation) to coordinate their applications and cooperate with each other with a view to getting the best safety outcome [clause 35]. The Rail Safety Regulator may also take action against either of the rail transport operators for failing to meet the prescribed requirements for interface co-ordination plans and safety management plans [clause 61 and 58, respectively]. Model consequential provisions that impose complementary obligations on other parties, in particular, road authorities are also included [Part 10].
  • Principle of transparency and consistency which provides that rail regulatory decision making processes should be timely, transparent and nationally consistent.  Achieving consistency requires a common interpretation of legislative requirements and a coordination of decision making processes.  Nationally approved guidelines to support common interpretation by regulators and participants in the rail industry is provided for in clause 153.  Coordination of decision making processes between State and Territory Rail Safety Regulators is provided for in clause 36, which requires Rail Safety Regulators to make decisions having regard to nationally approved guidelines that will address such matters as decision-making processes and timeframes on accreditation applications affecting more than one jurisdiction, the manner of consultation between corresponding Rail Safety Regulators, and recording and notifying decisions and reasons for decisions in such cases  Rail Safety Regulators are required to give reasons for their decisions and to make them in a timely fashion [clause 37].
  • Principle of participation, consultation and involvement which provides that if people and organisations share responsibility for rail safety they should participate and be involved in the management of risks associated with rail operations.  The principle is given effect by provisions such as that which requires rail transport operators to consult with rail safety workers during the development, implementation and maintenance of their SMS [clause 57(3)].
  • Principle of proportionate, consistent and fair enforcement which states that all enforcement action should be proportionate to the seriousness of the non-compliance; a consistent approach should be undertaken in similar situations or circumstances in order to achieve consistent outcomes; and all compliance and enforcement activities should be undertaken with impartiality, balance and integrity.  Part 5 of the Bill provides a range of escalating administrative sanction and enforcement options which can be utilised at the discretion of the regulator to apply the most suitable motivator or deterrent. Checks and balances on the use of these powers are provided for in Part 6.

In relation to this latter principle, it is important to note that all stakeholders strongly support the view that a considered and balanced approach to compliance and enforcement, rather than a punitive approach, is required to maintain a cooperative and collaborative relationship between the regulator and the regulated.  The presence of cooperative and collaborative relationships between parties (including the regulator and the regulated) is widely acknowledged as being critical to the establishment and maintenance of a safety culture and effective regulation under a co-regulatory regime.  It is intended that the rail safety regulator will, in undertaking its functions, rely primarily on a cooperative approach to achieving compliance through education, information dissemination and instructive warnings with the threat of enforcement action remaining so far as is possible, in the background.

It is intended that enforcement powers and sanctions will be applied in circumstances where the regulated remains inactive, uncooperative and or defiant in respect to addressing a safety concern.  The over-riding principle is one of making a proportionate response to a detected form of non-compliance with the Act or the regulations.  It should be acknowledged that in certain circumstances (e.g. repeat offender) a proportionate response may mean the direct issue of enforcement action at the more punitive end of the hierarchy. If such a response in consistent with the regulators stated compliance and enforcement policy, and is fair in light of the circumstances, then this would represent an appropriate use of the regulators compliance and enforcement powers.  The powers and sanctions included in the Bill make proportionate responses feasible if and when needed.

The model Bill includes heads of power for the making of regulations that will prescribe necessary requirements, including, for example:

  • the railways and classes of railways to which the Bill does not apply
  • the information that must be contained in an application for accreditation
  • the form of a notice of accreditation and information that must be specified in the notice
  • the form and requirements for safety management systems.

The model Bill and regulations will also be supported by national compliance codes that will address such matters as:

  • Medical fitness assessments for Rail Safety Workers
  • Management of Fatigue for Rail Safety Workers
  • Drug and Alcohol testing programs for Rail Safety Workers.

The model Bill will also be supported by national guidelines that will address such matters as:

  • What an applicant for accreditation must demonstrate
  • Management of change
  • Medical fitness for duty
  • Safety Management Systems
  • Competency and Training of Rail Safety Workers
  • Fatigue Management Program
  • Management of Risk / justified decision making (SFAIRP)
  • Disclosure of information by Regulators
  • Business rules to give effect to ‘Uniform Administration’
  • Recognition of industry developed Codes and Standards
  • Compliance and Enforcement.

The package of reforms that is being developed and delivered is to provide for a nationally consistent legislative framework inclusive of these subordinate instruments.

 

Clause Notes

Introductory Note from the National Transport Commission

This note has been prepared by the National Transport Commission to explain that the Rail Safety Bill provides model legislative provisions for implementation, with any necessary adaptations, in each State and Territory. The Bill has been prepared in model form because its provisions, in some cases relate to administrative and criminal justice matters, in respect of which there is an imperative for jurisdictions to maintain consistency with their respective local legal policy requirements and legislative drafting practices.   Accordingly there is need to provide for a limited number of ‘local variations’.  A number of the model provisions have also been classified as ‘non-core’ provisions, because their implementation in all jurisdictions is not considered essential to achieve nationally consistent rail safety outcomes.   

Part 1 – Preliminary

Part 1 of the Bill outlines the purpose and objects of the Bill, and provides a commencement provision and interpretative provisions, including definitions. 

Clause 1

sets out the main purpose of the Bill, which is to provide for safe railway operations in (jurisdiction).

Clause 2

provides for the Bill to come into operation on a day or days to be proclaimed.

Clause 3

sets out the objects of the Bill, which are -

  • to provide for improvement of the safe carrying out of railway operations
  • to provide for the management of risks associated with railway operations
  • to make special provision for the control of particular risks arising from railway operations
  • to promote public confidence in the safety of transport of persons or freight by rail.

Clause 4

defines terms used in the Bill; for example ‘accredited person’, ‘rail infrastructure’, ‘rail infrastructure manager’, ‘Rail Safety Regulator’, ‘rail safety work’, ‘rail safety worker’, ‘rail transport operator’, ‘railway’, ‘railway operations’, ‘rolling stock’, ‘rolling stock operator’, ‘safety management system’.

Clause 5

provides that the Minister may declare in the Government Gazette any substance to be a drug for the purposes of the Bill.

Clause 6

sets out the types of railway to which this Bill does not apply. These are railways in underground mines, slipways, railways used only to guide cranes, aerial cable operated systems, railways operated solely in amusement or theme parks, and any other railways, or classes of railway, that are prescribed by the regulations. These are railways that are covered by specific forms of safety regulation, or whose operation is judged to pose no significant risk.

Clause 7

explains the nature of the duty to ensure safety under the Bill.

Sub-clause (1) provides that a duty imposed on a person under the Bill or the regulations to ensure, so far as is reasonably practicable, safety, requires the person to -

  • eliminate risks to safety so far as is reasonably practicable
  • if it is not reasonably practicable to eliminate risks to safety, to reduce those risks so far as is reasonably practicable.

Sub-clause (2) sets out certain matters to which regard must be had in determining what is, or what at a particular time was, reasonably practicable in relation to ensuring safety.

The concept of ensuring safety so far as is reasonably practicable is consistent with the concept of ensuring safety in Occupational Health and Safety legislation.

Clause 8

sets out the classes of work carried out by rail safety workers which are taken to be rail safety work for the purposes of the Bill, including any work that is prescribed by the regulations to be rail safety work. It also specifies activities that are not to be regarded as rail safety work, including any work that is prescribed by the regulations not to be rail safety work.

Clause 9

provides that examples used in the Bill are to be read as part of the Bill and that an example for a particular provision is not exhaustive and does not limit the meaning of the provision, but it may expand the meaning of the provision.

Clause 10

provides that notes used in the Bill help to explain the meaning of particular provisions, but are not to be read as part of the Bill.

Clause 11

provides that the Bill binds the Crown.

 

Part 2 – Occupational Health and Safety Legislation

The Occupational Health and Safety Act (local variations) is the main Act that deals with the health, safety and welfare of people at work, including people at work in railway operations.  Part 2 of the Bill outlines how the Bill relates to occupational health and safety legislation and creates additional protections, rights and obligations necessary because of the special risks associated with railway operations. This Part makes it clear that the Bill provides for an increase in the standard of protection of people at work in railway operations and never results in lesser protection that the occupational health and safety legislation would otherwise provide.

Clause 12

provides that if a provision of the occupational health and safety legislation applies to railway operations, that provision continues to apply, and must be observed in addition to this Bill and the regulations made under this Bill.

Clause 13

provides that if a provision of this Bill or the regulations made under this Bill is inconsistent with a provision in the occupational health and safety legislation, then the provision in the occupational health and safety legislation prevails to the extent of any inconsistency.

Clause 14

provides that if a person complies with this Bill or regulations made under this Bill it is not a defence in itself against any proceedings for an offence against the against the occupational health and safety legislation.

Clause 15

provides for evidence of a relevant contravention of this Bill or the regulations made under this Bill to be admissible in any proceedings for an offence against the occupational health and safety legislation.

Clause 16

prevents a person who comments an offence under this Bill or the regulations made under this Bill and under the occupational health and safety legislation from being punished twice in respect of the offence.

 

Part 3 – Administration

Division 1 – The Rail Safety Regulator

Clause 17

provides that it is for each jurisdiction to enact appropriate provisions to enable the establishment of the individual or body referred to in this Bill as the Rail Safety Regulator.

Clause 18

sets out the functions of the Rail Safety Regulator including –

  • to administer, audit and review  the accreditation regime under this Bill
  • to work with parties involved in railway operations to improve rail safety in this jurisdiction and nationally
  • to provide information to corresponding Rail Safety Regulators
  • to collect and publish information relating to rail safety
  • to provide or facilitate the provision or advice, education and training in relation to rail safety
  • to monitor, investigate and enforce compliance with this Bill.

Clause 19

sets out the information to be included in annual reports by the Rail Safety Regulator.

Clause 20

enables the Rail Safety Regulator to delegate any of their function under this Bill or under the regulations to a rail safety officer or to any other person.

Clause 21

enables the Rail Safety Regulator to exercise any function conferred on a rail safety officer under this Bill or the regulations.

Division 2 – Rail Safety Officers

Clause 22

enables the Rail Safety Regulator to appoint a person who holds appropriate qualifications or has appropriate experience to perform the functions of a rail safety officer under this Bill, and also enables the Rail Safety Regulator to appoint a class of persons who hold the appropriate qualifications and experience as rail safety officers under this Bill. This appointment may be subject to conditions in sub-clause (3).

Clause 23

provides for the making of agreements between responsible Ministers of two or more jurisdictions to allow rail safety officers appointed in any one of those jurisdictions to exercise powers under the corresponding rail safety laws of the other jurisdiction or jurisdictions.

Clause 24

provides that the Rail Safety Regulator must issue a rail safety officer with an identification card.

Clause 25

provides that a rail safety officer must not exercise powers conferred under this Bill unless an identification card has been issued.

Clause 26

provides that a rail safety officer exercising a power under this Bill must display his or her identification card if the officer is not wearing an approved uniform or badge or if requested to do so or as soon as practicable after the request is made.

Clause 27

provides that a person who has ceased to be a rail safety officer must return his or her identification card to the Rail Safety Regulator within the period specified by the Rail Safety Regulator.

 

Part 4 – Rail Safety

Division 1 – General Safety Duties

Part 4 Division 1 contains a range of safety duties on rail industry participants that require them to ensure the safety of railway operations. In particular, safety duties are imposed on rail transport operators (infrastructure managers and rolling stock operators), contractors and subcontractors to rail transport operators, and designers, manufacturers and suppliers of things to be used as or in connection with rail infrastructure or rolling stock to ensure, so far as is reasonably practicable, the safety of railway operations.

These safety duties will impose an explicit obligation to conduct railway operations safely, improving the transparency as to what is required by the legislation for all stakeholders.  The expression of the required outcome (in the form of a general duty) rather than prescriptively defining how it must be achieved maintains the flexibility for organisations to determine the most cost effective and practical means of compliance.

The Bill indicates that the recommended formulation of the duty is to ensure safety, so far as is reasonably practicable.  So Far As Is Reasonably Practicable (SFAIRP) is a qualification on what would otherwise be an absolute duty, requiring the duty holder to guarantee (‘ensure’) safety.  The qualification recognises that safety cannot be guaranteed, and that the pursuit of safety cannot occur regardless of cost.  Although expressed in slightly varying forms, all Commonwealth, State and Territory OHS legislation qualifies the general requirement for duty holders in a similar manner.

It should be noted that a drafting note included in the Bill (in relation to this clause) clearly indicates that there is expected to be local variations in the formulation of general duties, to ensure that there is consistency with the formulation of general duties included in OHS law and other forms of jurisdictional law that have adopted the use of general duties.  This flexibility for local variation of the formulation of the rail safety duties acknowledges that inconsistency between rail safety law and OHS law (within the jurisdiction) is likely to cause conflict and confusion, and that there is little justification for rail transport being subject to a different safety standard (whether this be in perception or in reality) to that which applies to other industries operating within the jurisdiction..

Clause 28

imposes a general safety duty on rail transport operators to, ensure the safety of their respective railway operations. The standard to which they must do so is ‘so far as is reasonably practicable’. The concept of ensuring safety so far as is reasonably practicable is explained in clause 7. 

A rail transport operator contravenes this general duty if the operator fails to do any of the particular things set out in sub-clause (2); for example, if the rail transport operator fails to develop and implement, so far as is reasonably practicable, safe systems for the carrying out of the person’s railway operations.

Further, a rail infrastructure manager contravenes the general safety duty by failing to do any of the things set out in sub-clause (3), being things which are particular to the role and responsibility of the rail infrastructure manager; for example, by failing to ensure that any installation, modification, design, construction, commissioning, maintenance or decommissioning of rail infrastructure is done in a way that ensures, so far as is reasonably practicable, the safety of railway operations.

A rolling stock operator contravenes the general safety duty if the operator by failing to do any of the things set out in sub-clause (4), being things which are particular to the role and responsibility of the rolling stock operator; for example, by failing to provide or maintain rolling stock that, so far as is reasonably practicable, is safe.

Sub-clause (5) provides that the general safety duty on rail transport operators in this clause extends to any contractor engaged by the operator, and to any employees of the contractor, for matters over which the rail transport operator has control (irrespective of any contract by which the rail transport operator purports to transfer control over such matters to the contractor).

A breach of the general safety duty in sub-clause (1) is an indictable offence.

Clause 29

imposes general duties on other key rail industry participants, such as designers, manufacturers and suppliers, relating to the safety of their activities.

Sub-clause (1) imposes a duty on those who design, commission, manufacture, supply, install or erect any thing and who know, or ought reasonably to know, that the thing is to be used as or in connection with rail infrastructure or rolling stock to ensure, so far as is reasonably practicable, that the thing is safe for its intended purpose, and must ensure the thing has been tested to be safe and any necessary information is provided to ensure the safety of the thing’s use.

Sub-clause (2) imposes a duty on those who decommission any rail infrastructure or rolling stock to ensure, so far as is reasonably practicable, that the decommissioning is carried out safely and that any necessary testing or examinations have been carried out to ensure this.

Sub-clause (3) provides that a person who breaches a duty under subclause (1) or (2) is guilty of an indictable offence.

Sub-clause (4) provides that a person will not be guilty of breaching a duty under this clause simply because the person has supplied the thing in the person’s capacity as a financier and the person has not acquired any other interest in the thing. In that situation, the duty lies instead on the person from whom the financier acquired the thing.

Division 2 - Accreditation

Part 4 Division 2 outlines the purpose of accreditation under the Bill and the details of the accreditation system.  Under the Bill, the purpose of accreditation is to provide assurance to the public that a rail transport operator has demonstrated competence and capacity to manage risks to safety associated with the railway operations for which accreditation has been sought.

The Bill makes it clear that gaining accreditation is no more than a threshold requirement for rail transport operators: a precursor to being permitted to operate.  The granting of accreditation simply indicates that, in the opinion of the rail safety regulator, the rail transport operator has the capacity, competency and systems to carry out the railway operations for which it is seeking accreditation.  The granting of accreditation is not a certification of safety.  No such warranty could ever be given by a rail safety regulator.

The Bill limits the range of parties to be accredited: only the rail infrastructure manager and the rolling stock operator (collectively referred to as rail transport operators) are required to be accredited.  In many Australian jurisdictions this is consistent with current practice, while it will represent a narrowing of the range of accredited parties in some other cases (particularly in New South Wales and South Australia).  The logic of the focus on rail transport operators is that infrastructure managers and rolling stock operators should be primarily responsible for demonstrating the competence and capacity of those other parties with whom they contract due to the fact that the accreditation process essentially relates to the operation of whole systems, characterised by multiple, interacting risks that need to be managed in a systemic fashion.  Rail transport operators need to be able to demonstrate that their contractors’ practices fit with, and form part of the rail transport operators’ safety management systems.  Both the capacity and competence of the rail transport operator to manage the contractor and the capacity and competence of the contractor to fulfil the safety critical functions which they are proposing to undertake will be assessed.

Clause 30

clarifies that the purpose of accreditation is to attest that a rail infrastructure manager or a rolling stock operator has demonstrated to the Rail Safety Regulator the competence and capacity to manage risks to safety associated with their particular railway operations and thereby has gained permission to operate the railway operations.

Clause 31

provides that it is an offence if a person carries out any railway operations without being accredited to do so, or without being exempt from the requirement to be accredited, or without doing so on behalf of a rail transport operator who is accredited or exempt. It is also an offence if the rail infrastructure manager of rolling stock operator causes or permits another person to do so; for example, by using a contractor to carry out the railway operations.

Clause 32

enables accreditation to be granted for parts of railway operations and for specific activities only. It also enables accreditation to be granted for a limited, rather than an indefinite period, but only where the applicant has requested this.

Clause 33

makes provision in relation to applications for accreditation.  It provides that rail transport operators may apply to the Rail Safety Regulator for accreditation in respect of their railway operations.

Provisions of this clause -

  • specify the manner and form in which an application for accreditation must be made, and the things which must accompany an application
  • allow the Rail Safety Regulator to require an applicant to supply further information or verify by declaration information supplied for the purposes of the application.

Clause 34

sets out the criteria on which accreditation applications by rail transport operators are to be assessed.  It provides that the Rail Safety Regulator must accredit a rail transport operator in respect of their railway operations if the Regulator is satisfied, having regard to guidelines, that the applicant has demonstrated-

  • that the applicant is a rail transport operator in relation to the railway operations for which accreditation is sought
  • the competence and capacity to manage risks to safety associated with the person’s railway operations
  • the competency and capacity to implement the proposed safety management system and the financial capacity to meet potential accident liabilities arising from the railway operations
  • that the consultation requirements have been met
  • that the applicant has complied with any prescribed requirements.

Clause 35

enables the Rail Safety Regulator to direct rail transport operators to co-ordinate their applications for accreditation to ensure that railway operations are carried out safely. A direction given under this clause may require each rail transport operator to jointly assess risks to safety associated with the interface of their respective railway operations and to determine appropriate controls that will form part of each rail transport operator’s safety management system, such that they can demonstrate competence and capacity to carry out their proposed railway operations safely.

Clause 36

makes provision for the co-ordination of the determination of applications for accreditation and applications for variations of accreditation or the conditions or restrictions of accreditation where the applicant operates or is applying to operate in two or more jurisdictions.

The Rail Safety Regulator must consult with the Rail Safety Regulator or Rail Safety Regulators in each of the other relevant jurisdictions prior to determining the application with the aim of co-ordinating decision-making between each jurisdiction.

The Rail Safety Regulator must also take into account guidelines issued for the purposes of this clause.

The guidelines that are intended to be made for the purpose of this clause will include such matters as the process and timeframe for Rail Safety Regulators to follow in such cases, the manner of consultation between the relevant Rail Safety Regulators, and factors that should be taken into account, and a national register for recording decisions and reasons for decisions, with a view to achieving consistency of decision-making. The guidelines will be national guidelines that have been approved by the Australian Transport Council. The objectives of such guidelines are to facilitate nationally consistent outcomes in decisions on applications to which this clause applies, along with improved transparency and timeliness of decision making on such applications.

If the Rail Safety Regulator does not act consistently with the guidelines, the Rail Safety Regulator must provide the applicant with reasons for not doing so and the applicant will have a right to seek review of the determination. 

Clause 37

sets out requirements on the Rail Safety Regulator to determine an application and to provide a notice containing the prescribed information to the applicant of the determination. The determination must be made within 6 months of the Rail Safety Regulator receiving the application, unless further information is required by the Rail Safety Regulator, or unless the Rail Safety Regulator extends the time for determination of the application.

If accreditation is granted, the notice of accreditation must specify the scope and nature of the railway operations for which accreditation is being granted, the manner in which they are to be carried out and any conditions imposed by the Rail Safety Regulator on the grant of accreditation.

A notice refusing an application or imposing conditions must include reasons for the Rail Safety Regulator’s decision and must be accompanied by a notice containing information about the right of review under Part 6.

Clause 38

makes provision for an accreditation to be subject to any conditions or restrictions prescribed by the regulations for the purpose of this clause.

Clause 39

provides that an accredited person must not fail to comply with a condition or restriction of accreditation.

Clause 40

provides for an accredited person to pay the annual accreditation fee prescribed by regulations.

Clause 41

provides for additional fees for late payment of accreditation fees to be imposed by the regulations.

Clause 42

provides for the Rail Safety Regulator to waive the whole or part of an accreditation fee.

Clause 43

provides for surrender of accreditation, in accordance with regulations.

Clause 44

makes provision for Rail Safety Regulator to suspend or revoke accreditation, or impose or vary conditions of accreditation, where the regulator considers the accredited person -

  • is no longer able to demonstrate to the satisfaction of the Rail Safety Regulator the matters referred to in clause 34 or to satisfy the conditions of accreditation
  • is not managing the rail infrastructure or operating rolling stock in relation to any rail infrastructure to which the accreditation relates and has not done so for at least the preceding 12 months
  • has contravened this Bill or the regulations.

However, sub-clause (3) provides that before suspending or revoking accreditation, or imposing or varying the conditions of accreditation under this clause, the Rail Safety Regulator must give the accredited person notice in writing that the Rail Safety Regulator is considering taking such action, must allow the accredited person at least 28 days to show cause why that action should not be taken, and must also consider any submission that the accredited person makes in this regard.

Sub-clause (4) provides that the Rail Safety Regulator must include in the written notice of suspension or revocation the reasons for the suspension or revocation and information about the right of review under Part 6.

Clause 45

provides for the immediate suspension of an accreditation, or part of an accreditation, for up to six weeks, where there is an immediate and serious risk to safety.

Sub-clause (2) provides if the accredited person is accredited in another jurisdiction, the Rail Safety Regulator must give notice of the suspension to the corresponding Rail Safety Regulator in that jurisdiction.

Sub-clause (3) enables the Rail Safety Regulator to reduce the period of suspension, or to extend the period of suspension by up to a further 6 weeks. Sub-clause (4) provides that the Rail Safety Regulator may withdraw a suspension.

If the Rail Safety Regulator proposes to extend the period of suspension, sub-clause (5) requires the Rail Safety Regulator to give the person whose accreditation has been suspended notice in writing of this intention, as well as the opportunity to show cause why the suspension should not be extended. The Rail Safety Regulator must also, before making a decision to extend the suspension, consider any submission that the person makes.

Sub-clause (6) provides that if the Rail Safety Regulator extends the suspension, the Rail Safety Regulator must give reasons for that decision and information about the right to seek review of that decision.

Clause 46

provides that a rail transport operator must ensure that the current notice of accreditation or exemption and any other document prescribed by regulations for the purpose of this clause are available for inspection.

Clause 47

makes provision for the accredited person to apply for a variation of accreditation.

Provisions of this clause -

  • address the manner and form in which an application for variation of accreditation must be made, and the information and fee which must accompany an application and
  • allow the Rail Safety Regulator to require an applicant to supply further information or verify by declaration information supplied for the purposes of the application.

Clause 48

provides that clause 35 (requiring two or more rail transport operators to co-ordinate their applications to ensure interfaces between their respective railway operations are managed safely) and clause 36 (requiring Rail Safety Regulators to co-ordinate their decision where an applicant is either accredited, or applying for accreditation, in two or more jurisdictions) apply to an application for variation in the same way they apply to an application for accreditation. 

Clause 49

provides that the Rail Safety Regulator must give an applicant for a variation notice in writing that the application has been granted or refused within 6 months of receiving the application, unless further information is required by the Rail Safety Regulator, or unless the Rail Safety Regulator extends the time for determination of the application.

If the application for a variation is granted, the notice must also include prescribed details of the applicant (such as the name and registered address of the applicant), information on how the variation affects the scope and nature and manner of carrying out the applicant’s railway operations, any conditions or restrictions, and any other prescribed information.

If the application for a variation is refused, or is granted subject to conditions or restrictions, the notice must also include the reasons for doing so, and information on seeking a review of the decision.

Clause 50

provides that a variation of an accreditation is subject to any conditions and restrictions that are prescribed by the regulations to be applicable to the accreditation as varied. 

Clause 51

provides that the Rail Safety Regulator may direct a rail transport operator to amend the person’s safety management system within a specified period. The direction must be in writing and must state the reasons why the Rail Safety Regulator considers the amendment is necessary. It is an offence to fail to comply with the direction.

Clause 52

enables an accredited person to apply for a variation of a condition or restriction to which the person’s accreditation is subject, other than a condition or restriction that is prescribed by the regulations to be applicable to the person’s accreditation. Such an application must be made in the same manner as an application for accreditation under clause 33 and the Rail Safety Regulator must decide the application and provide notice to the applicant of the decision as far as possible in the same manner as the requirements for the determination of an application for accreditation.

If the Rail Safety Regulator refuses the application, the notice to the applicant must include the reasons for the refusal and information on how to seek a review of the decision.  

Clause 53

provides that the Rail Safety Regulator may, of its own volition, vary or revoke a condition or restriction to which an accreditation is subject, other than a condition or restriction that is prescribed by the regulations to be applicable to the accreditation. Unless the Rail Safety considers the immediate variation or revocation is necessary in the interests of safety, the Rail Safety Regulator must give prior notice to the accredited person and allow the person an opportunity to make representations to the Regulator.

Reasons for making a decision to vary or revoke the condition or restriction must be given to the accredited person, along with information on how to seek a review of the decision.

Clause 54

provides that accreditation is personal to the person who holds it and is not capable of being transferred or assigned.

Clause 55

provides that if railway operations are to be sold or transferred by an accredited person, the Rail Safety Regulator may exercise its discretion, when considering an application for accreditation from the proposed transferee, to waive compliance with some or all of the accreditation requirements, provided that the proposed transferee has the requisite competence and capacity. The waiver of compliance may however be subject to such conditions and restrictions as the Regulator may impose.

Division 3 – Private Sidings

Clause 56

provides for exemptions from accreditation for private siding railway operations.

Sub-clause (1) provides that a rail infrastructure manager of a private siding is not required to be accredited in respect of the private siding.

However, sub-clause (2) requires the rail infrastructure manager of any private siding that is connected to a railway or siding of an accredited person to register the private siding with the Rail Safety Regulator, comply with any conditions or restrictions imposed by the Rail Safety Regulator, to have and implement an interface co-ordination plan with the accredited person, and to notify the accredited person of any matters that may give risk to safety risks on the accredited person’s railway. It is an offence if the rail infrastructure manager of the private siding fails to comply with any of these requirements.

Division 4 – Safety Management

Clause 57

Sub-clause (1) provides that a rail transport operator must have a safety management system for their operations that is in the approved form and complies with the prescribed relevant requirements and the prescribed risk management principles, methods and procedures.

The Bill itself prescribes that rail transport operator’s safety management system must include such matters as -

·        any required interface co-ordination plans

·        a security management plan

·        an emergency plan

·        a health & fitness management program

·        an alcohol & drug management program

  • a fatigue management plan.

Regulations that will be made under this section will prescribe additional detail on the content of safety management systems. The regulations will, for example, specify that the rail transport operator’s SMS must include a management of change process.

The safety management system must identify and assess risks to safety and specify controls to manage those safety risks.

Importantly, there is an explicit requirement that the safety management system include procedures for reviewing and revising the adequacy of the specified controls.

Sub-clause (2) sets out who the rail transport operator must consult with before establishing, reviewing or varying the safety management system.

Sub-clause (3) provides that where a there is a safety interface between the railway operations two rail transport operators who have an interface co-ordination plan to manage the safety risks associated with that interface, and if both operator’s safety management systems, considered as one, meet the requirements for a safety management system set out in this clause, then the safety management system of either of the operators is also taken to comply with the requirements.    

Sub-clause (4) requires the safety management system to be documented and to specify who is responsible for its implementation.

Clause 58

provides that a rail transport operator must implement and comply with the safety management system. It is a reasonable excuse to fail to comply with the safety management system if the rail transport operator complies with it to the extent practicable while complying with a condition or restriction of accreditation, or demonstrates that compliance with the safety management system would have posed an unacceptable safety risk.

Clause 59

provides that a rail transport operator must review the safety management system in accordance with the regulations at least once each year or at such other time as is agreed with the Rail Safety Regulator.

Clause 60

provides that a rail transport operator must give the Rail Safety Regulator a safety performance report each calendar year, or within such longer period as is agreed with the Rail Safety Regulator. This clause also specifies the required form and content of the safety performance report.

Clause 61

provides that a rail transport operator must identify, so far as is responsibly practicable,  potential risks to the safety of the rail transport operator’s railway operations posed by the railway operations carried out for or on behalf of any other rail transport operator.

In circumstances where risks to safety are identified, the two or more rail transport operators with the safety interface must develop and implement interface coordination plans to minimize or eliminate identified risks to safety. Rail transport operators must also keep and maintain registers of all interface coordination plans to which they are a party.

Clause 62

specifies the required content of a security management plan.

Clause 63

specifies the required form and content of an emergency plan.

Clause 64

provides that a rail transport operator must have and implement a health and fitness program that complies with prescribed requirements for rail safety workers who carry out rail safety work for the operator.

Clause 65

provides that a rail transport operator must prepare and implement an alcohol and drug management program for rail safety workers that complies with this Bill and the regulations.

Clause 66

provides that the Rail Safety Regulator may arrange with a rail transport operator for the testing, in accordance with the regulations, of any person on duty for the purpose of carrying out rail safety work for the presence of alcohol or any other drug.

Clause 67

provides that a rail transport operator must prepare and implement a program for the management of fatigue or rail safety workers in accordance with the prescribed requirements.

Clause 68

provides that a rail transport operator must ascertain whether its rail safety workers are competent to carry out rail safety work.

To do so, the rail transport operator is required to ascertain that its workers hold the required nationally endorsed units of competency and qualification for rail safety work recognised under the Australian Quality Training Framework approved under the Skilling Australia’s Workforce Act 2005 of the Commonwealth or, in the event that the appropriate units and qualification do not exist under that Act (for instance, because that Act is repealed), the appropriate units and qualification under any other prescribed legislation.

The rail transport operator is entitled to rely on a certificate that purports to certify that the rail safety worker holds certain qualifications, in the absence of proof that the rail safety worker does not hold such qualifications.

Clause 69

provides that a rail transport operator must ensure that each of their rail safety workers has a form of identification that is sufficient to enable the Rail Safety Regular to check the type of competence and training they have for the rail safety work they are performing and that the rail safety worker must provide this identification on request.

Clause 70

sets out the duties of rail safety workers.

Sub-clause (1) requires a rail safety worker, when carrying out rail safety work, to take reasonable care for his or her own safety and for the safety of other persons who may be affected by the worker’s acts or omissions and to co-operate with the rail transport operator to enable the rail transport operator to comply with applicable rail safety requirements.

Sub-clause (2) provides that a rail safety worker carrying out rail safety work must not intentionally or recklessly interfere with or misuse anything provided to him or her by the rail transport operator in the interests of safety or under the Bill or Regulations.

Sub-clause (3) provides that a rail safety worker, when carrying out rail safety work, must not wilfully or recklessly place the safety of another person on or in the immediate vicinity of rail infrastructure at risk.

Sub-clause (4) provides that for the purposes of determining whether a rail safety worker failed to take reasonable care, regard must be had to what the rail safety worker knew about the relevant circumstances.

A rail safety worker who contravenes sub-clause (1), (2) or (3) is guilty of an indictable offence.

Clause 71

sets out the obligations of contractors who undertake railway operations on or in relation to rail infrastructure or rolling stock of rail transport operators to comply with the safety management systems of the rail transport operators to the extent that the safety management systems apply to the contractors’ railway operations.

Division 5 – Information about Rail Safety etc

Clause 72

empowers the Rail Safety Regulator to require a rail transport operator to provide such information about safety related matters, including financial and insurance arrangements, as is required by the Rail Safety Regulator. It is an offence to fail to comply with this requirement.

Division 6 – Investigating and Reporting by Rail Transport Operators

Clause 73

Sub-clause (1) requires a rail transport operator to inform the Rail Safety Regulator if any accident or incident occurs that is of a kind defined as a notifiable occurrence.

Sub-clause (2) enables two or more rail transport operators to jointly inform the Rail Safety Regulator of a notifiable occurrence that affects them both or all.

Sub-clause (3) empowers the Rail Safety Regulator to give a notice to a rail transport operator requiring information to be provided by the rail transport operator to the Regulator or to another public authority (for instance, an Occupational Health and Safety authority) on any other accident or incident that could affect the safety of the railway operations.

Clause 74

empowers the Rail Safety Regulator, by notice to a rail transport operator, to require the operator to conduct an internal investigation into any notifiable occurrence or any other accident or incident that could endanger the safety of the railway operations. This provision will often be triggered by a report of a notifiable occurrence or other occurrence under clause 73, or following a Rail Safety Regulator audit or inspection under clause 75.

Division 7 – Audit and Safety Inspections by Rail Safety Regulator

Clause 75

empowers the Rail Safety Regulator to conduct routine audits and safety inspections of all rail transport operators’ railway operations and, for that purpose, may prepare annual audit programs.

The Rail Safety Regulator may also inspect railway operations of rail transport operators even though those rail transport operators are not included in an annual audit program.

Twenty four hours written notice is required before rail transport operators may be inspected under this clause.

 

Part 5 - Enforcement

Division 1 – Entry to Places by Rail Safety Officers

Clause 76

provides that a rail safety officer may, for compliance and investigative purposes, enter any railway premises at any time they are open or railway operations are being carried out, or the occupier consents, or the safety officer has a warrant or any place open to the public.

Clause 77

provides that a rail safety officer may only enter residential premises if the occupier consents or is authorised to do so under a warrant.

Clause 78

provides that a rail safety officer must give the occupier of the railway premises reasonable notice of the intention to enter unless giving notice would defeat the purpose for which it is intended to enter the premises, or the occupier has given consent, or the rail safety officer believes there is an immediate risk to safety because of the carrying out of railway operations at the premises, or the safety officer has a warrant.

Division 2 – General Enforcement Powers

Clause 79

provides general powers needed by rail safety officers after entering a place under this Part.  It empowers a rail safety officer who enters railway premises or residential premises to do various things, including to inspect, to inquire, to take samples, to make sketches and recordings, to search for evidence, to require production of documents and to make copies of them.

Clause 80

provides that a rail safety officer may use such assistants and equipment as he or she considers reasonably necessary to carry out enforcement powers under this Part under the supervision and control of the rail safety officer. For instance, to enter particular locked premises, a locksmith might be required, or to gain access to certain electronically stored data, an information technology specialist might be needed. This provision would authorise the use of such assistants.

Clause 81

empowers the rail safety officer or authorised assistant to operate electronic equipment and devices at premises that are entered under this Part to obtain access to information. For instance, the rail safety officer may require a rail transport operator’s employee to operate a computer at the premises to obtain data stored on the computer.  However, this provision does not authorise any use of the equipment or device that might damage the equipment or device.

Clause 82

empowers the rail safety officer to bring onto premises that are entered under this Part things such as trucks and machinery that are reasonably necessary to examine or process potential evidence at the premises and may carry out such examination or processing at the premises. 

Clause 83

provides that a rail safety officer may secure any part of railway premises to preserve evidence that might be relevant for compliance or investigative purposes.

Division 3 – Search Warrants

Clause 84

provides that a rail safety officer may apply to a magistrate for a warrant to enter and search a particular place if he or she believes on reasonable grounds there is, or may be within the next 72 hours, a document or thing at that place which may provide evidence of the commission of an offence against a rail safety law.

Clause 85

provides that a rail safety officer may seize a thing not described in the search warrant where the officer reasonably believes that the thing –

  • is of a kind which could have been included in the warrant or
  • will afford evidence about the commission of an offence against a relevant transport safety law –

and the officer believes on reasonable grounds that seizure of the thing is necessary to prevent it being concealed, lost, destroyed or used in the contravention of a relevant rail safety law.

Division 4 – Powers to Support Seizure

Clause 86

empowers a rail safety officer, for the purpose of seizure of a thing as evidence, to direct the person in control of the thing to take it to a place nominated by the officer and at a time nominated by the officer, and, if necessary to keep control of the thing at that place and time. The officer may make a further direction about the thing if it is necessary and reasonable. Failure to comply with the original or further direction is an offence, unless the person to whom the direction is given has a reasonable excuse.

Clause 87

empowers a rail safety officer to require the person in control of a thing that has been produced pursuant to a direction under the previous clause to collect that thing and return it to the place from which it was taken.

Clause 88

provides that if a rail safety officer seizes a thing, he or she must provide a receipt to the person from whom the thing was seized or the owner to the thing.  The receipt must describe generally the thing seized and its condition.

Clause 89

provides that a rail safety officer must allow the owner of a seized thing to inspect it and, if it is a document, to copy it.

Clause 90

empowers a rail safety officer to issue a notice prohibiting the use or removal or any other dealing with a thing that the officer is empowered to seize but which can not readily be moved.  This is called an embargo notice. For instance, the rail safety officer may be authorised to seize a piece of machinery that is too heavy to be moved by the officer. Until such time as the officer can arrange for the collection of the machinery, an embargo notice may be used to prohibit the use or interference with the machinery, thereby ensuring its evidentiary value is not diminished. 

The notice must either be served on the owner of the thing, or, if the owner can not be located, the notice may be attached to the thing itself. It is an offence to knowingly contravene the notice or cause someone else to contravene the notice, without the consent in writing of the officer or the Rail Safety Regulator, or unless the person moved the thing to protect it and notified the officer within 48 hours of doing so. It is also an offence if the person upon whom the notice is served fails to take reasonable steps to prevent another person from contravening the notice.

Any sale or other dealing with a thing in a manner that is contrary to an embargo notice will be void.

Division 5 - Forfeiture

Clause 91

provides that things seized must not be retained any longer than necessary and must be returned, unless they are required as evidence in legal proceedings, or are forfeited under the next clause, or are required by law to be retained, destroyed or disposed of.

The rail safety officer is empowered to impose safety- related conditions on the return of a thing; for example that upon the return of an item of seized machinery, a safety device be fitted to the machinery before it is re-used in railway operations. The owner of the thing must comply with such conditions.

Clause 92

provides for the forfeiture to the Crown of a thing that has been seized as evidence if the thing can not be returned to its owner, or the owner can not be found despite reasonable enquiries, or if the rail safety officer who seized the thing considers the further retention of the thing is necessary to prevent its use in the commission of a rail safety offence.

Clause 93

notes that jurisdictions may use their own provisions to make provision for the forfeiture of a thing that has been seized upon conviction of its owner of an offence against the rail safety laws.

Clause 94

provides that the Crown may deal with a thing forfeited under either of the previous clauses as it sees fit, including by destroying or disposing of the thing.

Division 6 - Directions

Clause 95

empowers a rail safety officer to issue a direction to a rail transport operator or a rail safety worker to provide reasonable assistance to the officer to enable the officer to exercise powers under this Part. Reasonable assistance might include such things as unlocking a locked door, operating safety equipment, and providing access to databases on a computer.

It is an offence to fail to comply with the direction without reasonable excuse, and the officer must, when giving such a direction warn the person to whom the direction is given of this fact.

Clause 96

empowers a rail safety officer to direct a person who the rail safety officer reasonably suspects has committed a rail safety offence or other specified classes of persons present on railway premises to provide their name and address and, if necessary, evidence of each person’s name and address to the rail safety officer.

The officer must, when giving such a direction warn the person to whom the direction is given that it is an offence to fail to comply with a direction under this clause without reasonable excuse.

Clause 97

provides it is an offence to fail to comply with a direction under the previous clause without reasonable excuse.

Clause 98

empowers a rail safety officer to direct a person to produce a document or other thing for inspection at a specified time and place.

The officer must, when giving such a direction warn the person to whom the direction is given that it is an offence to fail to comply with a direction under this clause without reasonable excuse.

Clause 99

provides it is an offence to fail to comply with a direction under the previous clause without reasonable excuse.

Division 7 – Improvement Notices

Clause 100

provides that an improvement notice may be served by where a rail safety officer believes that a person is contravening a provision of a rail safety law, or has contravened a provision of a rail safety law and it is likely that the contravention will continue or be repeated, or if the person is carrying out or has carried out railway operations that threaten safety.

The improvement notice may require the person to take specified action by a specified date to remedy the contravention or to stop the contraction or unsafe railway operations from continuing or occurring again.  An improvement notice must set out the bases of the rail safety officer’s belief, and may include directions on the measures to be taken to remedy the contravention or unsafe operations.

Clause 101

provides that it is an offence to fail to comply with an improvement notice without reasonable excuse. 

In the case of proceedings against a person for failing to comply with an improvement notice, it is a defence if the person establishes that the contravention of the rail safety law or the unsafe railway operations for which the improvement notice has been issued has been remedied within the period specified in the notice, though by a method different from that specified in the improvement notice.

Clause 102

provides for the amendment or withdrawal of improvement notices by a rail safety officer and when the amendment or withdrawal is to have effect.

Clause 103

provides that the service, amendment or cancellation of an improvement notice does not affect proceedings for offences in connection with the matter in respect of which the improvement notice was served.

Clause 104

provides that the Rail Safety Regulator may arrange for the remedial work to be carried out if the person on whom an improvement notice is served fails to comply with the improvement notice.

Division 8 – Prohibition Notices

Clause 105

provides that where a rail safety officer believes on reasonable grounds that an activity is occurring at railway premises or in the immediate vicinity of rail infrastructure or rolling stock, that involves or will involve an immediate risk to the safety of a person or railway operations, the rail safety officer may serve on a person who has or appears to have control over the activity a prohibition notice prohibiting the carrying on of the activity until the matters giving rise to the safety risk have been remedied.  A prohibition notice must set out the bases of the rail safety officer’s belief, and may include directions on the measures to be taken to remedy the risk.

Clause 106

provides that it is an offence to fail to comply with prohibition notice without reasonable excuse. 

Clause 107

empowers a rail safety officer to verbally direct a person not to do a particular act, if it is not possible or reasonable to serve a written notice on the recipient for the same purpose. For instance, a verbal direction may be necessary to immediately prohibit an unsafe train from leaving a station. If giving a verbal prohibition, the rail safety officer must also state the reasons for doing so, Within 5 days after the direction is given, the officer must serve a prohibition notice on the person, otherwise the direction ceases to have effect.

It is an offence to fail to comply with a direction under this clause without reasonable excuse. 

Clause 108

sets out the manner by which a rail safety officer may amend or withdraw a prohibition notice and when the amendment or withdrawal is to become effective.

Clause 109

provides that the service of a prohibition notice does not affect proceedings for offences in connection with the matter in respect of which the prohibition notice was served.

Division 9 – Miscellaneous

Clause 110

provides that a rail safety officer may, on the same occasion, give directions under one or more provisions in Part 4.

Clause 111

provides that an authorised person may temporarily close or regulate a railway crossing, bridge or other structure for crossing or passing over or under a railway if satisfied it is necessary because of an immediate threat to safety. An authorised person is defined as someone who holds a specific authority from the Rail Safety Regulator to temporarily close or regulate railway crossings.

Clause 112

provides that if damage is caused to rail infrastructure or rolling stock, railway premises or a road vehicle as a result of the unreasonable exercise of power under Part 4, the rail safety officer must take reasonably steps to reasonable steps to return the rail infrastructure or rolling stock, railway premises or road vehicle to the condition it or they were in immediately before the action was taken.

Clause 113

provides that a rail safety officer, or person assisting an officer, must not use more force than is reasonably necessary to enter any railway premises, or to do anything in or on any railway premises.

Clause 114

provides that a rail safety officer, or person assisting an officer who is not a police officer, must not use force against another person in exercising a power under this Part.

Clause 115

Sub-clause (1) provides that a natural person is not excused from complying with a direction under this Part to provide information or produce a record, or a device or other thing that may contain a record, on the ground that compliance with the direction may result in information being provided that might incriminate the person.

Sub-clause (2) provides that any information, record, device or other thing obtained as a direct result of the compliance with a direction in not admissible in evidence against the person in criminal proceedings  -

  • if the person claims beforehand that it might incriminate them or
  • unless the person’s entitlement to make this claim was drawn to their attention before the information was given or the record, device or thing was produced.

Sub-clause (3) provides that, with the exception of subclause (2), any information given, or record, device or other thing produced by a person as a direct result of the compliance with the direction may be used in evidence in any criminal or civil proceedings against the person.

Part 6 – Review of Decisions

Clause 116

provides that the Ombudsman Act applies to the Rail Safety Regulator and rail safety officers irrespective of whether the regulator is a public statutory authority.

Clause 117

provides that certain decisions make under the Act are reviewable decisions and specifies these decisions in the table set out in this provision.

Clause 118

provides for the internal review by the Rail Safety Regulator.  The clause sets out the procedure for applying for internal review and the procedures that must be followed by the Rail Safety Regulator in reviewing the decision.

Clause 119

provides for review by the Tribunal of reviewable decisions under the Bill.  A person may apply to the Tribunal for a decision that was made, or that was subject to internal review, by the Rail Safety Regulator.

Part 7 – General Liability and Evidentiary Provisions

Division 1 - General

Clause 120

provides that indictable offences under this Bill may be heard in the Magistrates’ or Local Court, (as the case may be), and need not be heard in the County, District or Supreme Court (as the case may be).

Clause 121

provides that proceedings for offences against a rail safety law may be commenced within 2 years after the commission of the alleged offence or a further period of one year commencing on the day on which the Rail Safety Regulator, a rail safety officer or a police officer first obtained evidence of the commission of the alleged offence considered reasonably sufficient to warrant commencement proceedings.

Clause 122

provides that only the Rail Safety Regulator, or a person authorised by the Rail Safety Regulator may initiate prosecution or fee recovery proceedings under this Bill, and also provides that such proceedings may not be initiated in the Supreme Court without the permission of the Rail Safety Regulator or authorised rail safety officer, and that any proceedings against a government department or statutory body may not be initiated without the permission of the Minister.

A certificate purporting to provide authorisation or consent that purports to have been signed by the Rail Safety Regulator or Minister for the purposes of this clause is evidence of the authorisation or consent and does not require proof of the signature of the Rail Safety Regulator or Minister to be proved.

Clause 123

provides that where an offence is committed by a body corporate and it is necessary to prove mens rea in relation to particular conduct, it is sufficient to show that a director, employee or agent of the body corporate engaged in that conduct within the scope of his or her role and had the necessary mens rea.

In such a case, the body corporate will be bound by the conduct and state of mind of the director, employee or agent, unless the body corporate can establish it took reasonable precautions and exercised due diligence,

Similarly, where an offence is committed by an employer not being a body corporate (for instance, an employer who is a natural person), and it is necessary to prove mens rea in relation to particular conduct, it is sufficient to show that an employee or agent of the employer engaged in that conduct within the scope of his or her role and had the necessary mens rea,

In such a case, the employer will be bound by the conduct and state of mind of the employee or agent, unless the employer can establish it took reasonable precautions and exercised due diligence to prevent the offence from occurring.

Clause 124

provides that the Rail Safety Regulator must keep certain records relating to the accreditation of rail transport operators and that any certificate purporting to be signed by the Rail Safety Regulator that certifies particulars of any such record is prima facie evidence of the matters it certifies, without the need for proof of the signature of the Rail Safety Regulator and without the need for production of the actual record.

Clause 125

provides that a certificate purporting to be signed by the rail Safety Regulator that certifies particulars of matters that appear in or can be calculated from records that are kept by the Rail Safety Regulator is prima facie evidence of the matters it certifies.

Clause 126

provides that it is not necessary to formally prove the appointment of certain officials, ‘office holders’, and that a signature purporting to be that of an office holder is presumed to be the signature it purports to be.

Clause 127

provides that a person may be charged with and punished for more than one breach of this Bill relating to the same rail infrastructure, railway premises or rolling stock provided the breaches relate to different parts of the rail infrastructure, railway premises or rolling stock.

Clause 128

provides that directors, partners and managers of bodies corporate, partnerships and unincorporated associations, respectively, may be held personally liable for offences committed by their bodies corporate, partnerships or unincorporated associations, unless they can establish they either were not in a position to influence the conduct of the body corporate, partnership or unincorporated association in relation to the offence, or else they personally took reasonable precautions and exercised due diligence to prevent the offence from occurring.

Division 2 – Discrimination against Employees

Clause 129

provides that it is an offence to dismiss or otherwise victimise an employee who has given a public agency information about an alleged rail safety breach or has raised concerns about rail safety.

An employee is defined to include a natural person who works under a contract for services.

A public agency is defined to include an Australian Rail Safety Regulator, a rail safety officer, a police officer and a police officer of another jurisdiction.

Clause 130

provides that the defendant bears the onus of proof in showing that the fact that the employee or contractor provided information about an alleged rail safety breach or raised concerns about rail safety was not the dominant reason for the dismissal or victimisation of the employee or contractor.

Clause 131

provides remedies of reinstatement or compensation for employees or contractors if an employer or prospective employer is found guilty of an offence of dismissing or victimising the employee or contractor.

Division 3 – False or Misleading Information

Clause 132

provides it is an offence to provide false or misleading information to the Rail Safety Regulator or an official exercising a power under a rail safety law (including a rail safety officer).

Division 4 – Other Offences

Clause 133

provides it is an offence to obstruct or hinder a rail safety officer or person assisting a rail safety officer, including concealing from or failing to provide, documents or other things requested by the rail safety officer or person assisting a rail safety officer.

Clause 134

provides it is an offence to impersonate a rail safety officer.

Clause 135

provides it is an offence to interfere with, or operate any equipment, rail infrastructure or rolling stock owned or operated by a rail transport operator, without the permission of the rail transport operator.

Clause 136

provides it is an offence to operate the brake or emergency device on a train or tram or railway premises without reasonable excuse.

Clause 137

provides it is an offence to stop or attempt to stop a train or tram that is moving, without reasonable excuse.

Division 5 – Infringement Notices

Clause 138

provides that an infringement notice may be served in the alternative to prosecution proceedings for prescribed offences.

Clause 139

provides that the applicable infringement penalty for a prescribed offence is set out in Schedule 1 and must not exceed 20% of the maximum fine that could be imposed by a court for that offence.

Division 6 – Enforceable Voluntary Undertakings

Clause 140

provides that a Rail Safety Regulator may, instead of or in addition to proceedings for a breach of an offence accept an undertaking from the alleged offender. An undertaking may address such matters as the steps that will be taken by the alleged offender to ensure compliance in future and steps to remedy the alleged contravention.

Clause 141

enables the Rail Safety Regulator to apply to a Magistrates’ Court or Local Court (as the case may be) for the enforcement of the undertaking if the Rail Safety Regulator considers the person who has entered into the undertaking has contravened the undertaking.

Division 7 – Court-based Sanctions

Clause 142

provides that each jurisdiction will provide its own method of stating the relevant monetary penalty for the offences in the Bill.

Clause 143

provides for a maximum daily penalty to be imposed for ongoing contraventions of the rail safety laws.

Clause 144

provides for the imposition by a court of a penalty of up to three times of the estimated gross commercial benefit that was derived or could have been derived by a person or an associate of the person from the commission of an offence against a rail safety law.

An associate is defined for the purposes of this clause as a person who has a particular type of close personal or commercial relationship with the offender.

Clause 145

provides that the court may, upon the application of the prosecutor or the Rail Safety Regulator, make a supervisory intervention order against an offender who is considered by the court to be a systematic and persistent offender against the rail safety laws.

The supervisory intervention order may require the offender to do such things as the court orders to improve the offender’s compliance with the rail safety laws, including obtaining expert advice on how to maintain compliance and to publish safety performance reports.

Clause 146

provides it is an offence to fail to comply with a supervisory intervention order.

Clause 147

provides that a court may also, upon the application of the prosecutor or the Rail Safety Regulator, exclude an offender who is considered by the court to be a systematic and persistent offender against the rail safety laws from carrying out all or specified railway operations for the period specified in the order.

An exclusion order may only be made if the court is satisfied that a supervisory intervention order is not appropriate.

Clause 148

provides it is an offence to fail to comply with the exclusion order.

Part 9 - General

Division 1 - Confidentiality

Clause 149

provides that a Rail Safety Regulator, a rail safety officer and other delegates or persons engaged or previously engaged in the administration of this Bill must not disclose information obtained in the course of that engagement except –

  • as required under this or any other Act
  • with the consent of the person from whom the information was obtained or relates
  • in connection with the administration of rail safety laws and corresponding rail safety laws
  • for law enforcement purposes, rail safety inquiries or public safety
  • in accordance with the regulations.

Regulations made under this clause are intended to prescribe the additional checks and balances that will apply to the disclosure of information, including consultation requirements with persons likely to be affected by the release of the information.

Division 2 – Civil Liability

Clause 150

provides that a breach of any duty in Division 1 or 4 of Part 4 does not automatically give rise to a civil action, and conversely, compliance with any duty in Division 1 or 4 of Part 4 does not automatically provide a defence to any civil action.

Clause 151

provides that authorised persons and rail safety officers are not liable for actions done honestly and in good faith in the course of exercising powers under the Act. This provision is subject to local variations.

Clause 152

provides an immunity from civil or other action to a medical practitioner or physiotherapist or optometrist who raises concerns in good faith about the fitness of a particular rail safety worker to a Rail Safety Regulator or a rail transport operator or a person engaged by a rail transport operator or who reports the results of any tests or examination performed on the rail safety worker or any opinion the practitioner has formed from such tests or examination.

Division 3 – Compliance Codes and Guidelines

Nationally approved guidelines are intended to guide regulator behaviour and provide rail organisations with a nationally consistent set of expectations regarding what the regulator is looking for, the process to be followed by the regulator and the conduct of the regulator. They are intended to be detailed rules, procedures and technical standards for infrastructure, rolling stock, etc that can be voluntarily adopted by rail organisations with confidence of knowing that, if adhered to, the rail organisation will be ‘deemed to comply’ with the regulatory requirements to which the code or standard relates to.  These instruments therefore are intended to be used to specify a means of compliance, not a regulatory requirement.

 

Clause 153

provides for the approval of compliance codes and guidelines.  The provisions of this clause –

  • empower the Minister to approve compliance codes and guidelines to provide guidance to persons who have duties or obligations under the Bill
  • empower the Minister to approve a variation or revoke a compliance code or guideline
  • state that a compliance code or guideline takes effect the day it is published in the Government Gazette.

Approved compliance codes or guidelines must be made available for inspection by members of the public without charge.

Clause 154

provides that failure to comply with a compliance code or guideline does not give rise to any civil or criminal liability.

Clause 155

provides that a person who complies with a compliance code that makes provision for a duty or obligation imposed by the Act or regulations is deemed to have complied with that duty or obligation.

Clause 156

provides that an order by the Minister approving a compliance code or guideline or variation is subject to being disallowed by Parliament.

Division 4 - Miscellaneous

Clause 157

provides that the Rail Safety Regulator may recover as a debt from a rail transport operator the reasonable costs of entry and inspection of railway infrastructure, rolling stock or railway premises in respect of which the person is accredited.

Clause 158

enables amounts due under the Act or regulations to be recovered by the Rail Safety Regulator as a debt due to the jurisdiction.

Clause 159

provides that an accredited person who complies with a condition or restriction of accreditation that makes provision for a duty or obligation under the Act or regulations is deemed to have complied with that duty or obligation.

Clause 160

provides for the making of regulations that prescribe persons who must give rail transport operators notice of any operations that might adversely affect the safety of the rail transport operators’ railway operations.

Clause 161

provides that any contract or agreement that purports to exclude or limit or modify the operation of the Act or of any provision of the Act is void.

Clause 162

provides the Governor in Council may make regulations under the Act with respect to various relevant matters.  

Part 9 – Transitional

Clause 163

provides a note that transitional provisions will be as required for each jurisdiction.  

Part 10 – Consequential Amendments

Note 1

provides that local variations will apply.  

Note 2

provides that requirements to the effect of those set out in Notes 3 and 4 will be needed to make the provisions for interface co-ordination plans in Part 4 of the Bill fully effective.

Note 3

provides that consequential amendments are required to appropriate legislation in each jurisdiction to include requirements on road and land use management and planning authorities to take reasonable steps to give notice to and consult with rail transport operators in respect of activities that are reasonably likely to affect railway operations.

Note 4

provides that consequential amendments are required to appropriate legislation in each jurisdiction to include obligations on road authorities to develop and implement interface co-ordination plans in conjunction with rail transport operators in relation to level crossings, road under rail and road over rail crossings.

Schedule 1

Infringement Penalties

allows for the inclusion in local legislation of a schedule of appropriate infringement penalties.

Endnotes

(none)