Rail safety harmonisation gathers steam

The process for harmonising rail safety throughout Australia’s states and territories has commenced with South Australia passing the Rail Safety National Law (South Australia) Bill 2011 (SA Bill) through both houses of parliament.

The Bill will repeal South Australia’s current Rail Safety Act 2007 (SA) (RSA) and adopt, in full, the Draft Rail Safety National Law 2011 (National Draft) which was prepared by the National Transport Commission and released for public comment in July 2011. It is intended that the remaining states and territories will soon follow suit, with each Australian transport minister approving the National Draft and committing to adopt uniform legislation by 1 January 2013.

The National Draft adopts the terminology and principles of the Model Work Health and Safety legislation by introducing:

• the ‘so far as is reasonably practicable’ standard in relation to duties;
• a duty on officers to exercise due diligence;
• expanded duties on designers, manufacturers and suppliers involved in rail infrastructure;
• principles applying to duties; and
• category 1, 2 and 3 offences for breaches of the legislation.

While the intention is for the National Draft to apply uniformly across the country, it is thought that the process will likely mirror the ‘disharmonious harmonisation’ of work health and safety legislation. In particular the National Draft only requires jurisdictions to ‘substantially correspond’ to the proposed laws. This wording has caused some industry concern in that it allows for a state-by-state interpretation of the National Draft, which could potentially lead to inconsistencies across the various jurisdictions.

The potential for differences to emerge between the states is already apparent in relation to the SA Bill which has maintained state-specific procedures in relation to drug and alcohol testing of rail safety workers. The transition for those operating in New South Wales has already commenced, with the current Rail Safety Act 2007 (NSW) having adopted the ‘due diligence’ duty and ‘so far as is reasonably practicable’ standard as a result of the Work Health and Safety Legislation Amendment Act 2011 (NSW) in November last year.

The impact of the National Draft’s terminology and principles may be greater for operations in Queensland where the current Transport (Rail Safety) Act 2010 (Qld) contains the concept of ‘reasonable diligence’ (as part of potential defences to prosecutions) but does not expand on what this means.

If New South Wales and Queensland are to keep in line with their commitments to harmonise rail safety by 1 January 2013, those operating in relation to railways or rail infrastructure should begin to consider:

• whether they are a duty holder under the National Draft;
• how the National Draft will interact with existing health and safety obligations (including general work health and safety legislation, mining safety legislation and construction-specific regulations); and
• whether their current arrangements with railway contractors leave them liable for rail safety under the National Draft.