Allens

Construction & Major Projects

Client Update: Draft Rail Safety National Law released for comment

19 July 2011

In brief: The National Transport Commission (the NTC) yesterday released a consultation draft of the Rail Safety National Law and Regulations for public comment. If passed, the Law will replace the existing state and territory rail safety legislative schemes with a national scheme and will establish a single rail safety regulator. Partner Leighton O'Brien (view CV) and Lawyer Jonathan Adamopoulos report.

Background and context

The development of a national rail safety scheme and regulator is part of the Australian Transport Council's National Transport Policy Framework 2008. Presently, rail safety, including compulsory accreditation, is governed under state and territory rail safety schemes. While these schemes are based on a Model Rail Safety Act published in 2006, each jurisdiction (except the Australian Capital Territory) has its own rail safety regulator and there are still variances across jurisdictions. The NTC, in its regulatory impact statement, has highlighted that significant limitation with the current scheme is the need for a rail transport operator to be accredited separately in each jurisdiction that it operates in. In response, the NTC has released a draft Rail Safety National Law (the National Law) and Regulations and has invited submissions from the public on both.

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National accreditation framework

The primary change under the draft will be the replacement of state and territory accreditation schemes with a national scheme. This will allow rail transport operators to apply for accreditation with one body in respect of all rail operations across the country. This will significantly benefit rail transport operators that operate across jurisdictions.

The criteria for obtaining accreditation is largely consistent with current rail safety legislation. Applicants will be required, among other things, to demonstrate that they have:

  • the competence and capacity to manage safety risks arising out of the railway operations for which the accreditation is sought;
  • the competence to implement a safety management system prescribed under the National Law; and
  • the financial capacity (whether by insurance or otherwise) to meet reasonable potential accident liabilities arising from railway operations.

Under the National Law, a person will not require accreditation for railway operations where they are carrying out those operations on behalf of an accredited rail transport operator. This is consistent with the current accreditation regime.

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National regulator

In another significant change, the National Law will establish the Office of the National Rail Safety Regulator (the Regulator). It is proposed that the Regulator will be responsible for:

  • enforcing and monitoring compliance with the National Law;
  • investigating rail safety incidents;
  • conducting research and providing information to rail transport operators on rail safety;
  • establishing and maintaining the National Rail Safety Register (the register of accredited rail transport operators); and
  • accrediting rail transport operators under the National Law.

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Rail safety obligations

The National Law addresses the same areas of rail safety as the existing model rail safety legislation, such as drug and alcohol testing, safety management systems, fatigue management and road interface management. For most jurisdictions, some of the key changes proposed under National Law include:

  • an express obligation on persons (including corporations) who load onto/unload from rolling stock to ensure, so far as it is reasonably practicable, that their operations are carried out safely;
  • greater clarity on the establishment of safety management systems (including guiding principles for rail transport operators to follow);
  • an express obligation for rail transport operators to establish and maintain communication systems and procedures; and
  • an express obligation on rail infrastructure managers to consult with all affected parties before changing rail network rules.

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Directors' duties

The National Law also includes a duty on officers of corporations that have rail safety obligations to exercise due diligence to ensure that their corporation is complying with its duties. Due diligence will include:

  • acquiring up-to-date information on rail safety matters;
  • gaining an understanding of the nature of the corporation's railway operations and the associated safety risks; and
  • ensuring that the corporation has adequate resources and systems in place to minimise rail safety risks.

This provision mirrors the due diligence duty that will be implemented under the Model Work Health and Safety Act.

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Interaction with OHS duties

The interaction between duties under occupational health and safety (OHS) legislation and rail safety legislation will remain largely unchanged under the National Law. The obligations of rail transport operators under the National Law will overlap with their obligations under OHS legislation. Rail transport operators will continue to be expected to comply with both. This includes compliance with OHS regulations, which would require the appointment of principal contractors during construction work on rail infrastructure.

While the duties under the National Law are more prescriptive in nature, rail transport operators will not be able to rely on their compliance with the National Law as a defence to a breach under OHS legislation.

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Timeframe

The NTC is accepting public submissions on the draft National Law and the Regulations until 12 August 2011. It is expected the National Law will commence in 2013. A final draft of the National Law and Regulations will be provided by the NTC to the Standing Committee on Transport and Infrastructure in November this year. In the meantime, rail transport operators should consider how the National Law and the Regulations will affect their business.

For further information, please contact:

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