Rail Safety Act 2006

regional services

.

tramway tracks early in the 21st century). Melbourne's network consists of 245 km (152.2 mi) of track, 500 trams,^[2] 28 routes, and 1,813 tram stops.^[3]

The Rail Safety Act 2006 is a law enacted by the Parliament of the

operations.

The Act was the State's first dedicated

The responsible Minister for the Act is the Minister for Public Transport, currently Jacinta Allan.

Outline

The stated purpose of the Act is "...to provide for safe rail operations in

The Act establishes a regulatory scheme with the following key elements:

• a number of performance based safety duties applying to a broad range of parties who can affect rail safety outcomes[10]
• an accreditation scheme concentrating on key rail industry operational parties^[11]
• a requirement that rail operators have a
  safety management system in place^[12]
• a broad range of sanctions and penalties^[13]
• cost benefit protections against excessive action by the regulator against industry participants^[14]
• alcohol and drug controls on rail safety workers[15]
• provision for the making of codes of practice to give guidance to regulated rail industry parties.^[16]

The Act also established the State's first dedicated public transport safety

Parts

The Act is divided into ten parts:

1. Preliminary
2. Principles of Rail Safety
3. Rail Safety Duties and Other Safety Requirements
4. Protection and Control of Rail Operations
5. Accreditation of Rail Infrastructure and Rolling Stock Operations
6. Alcohol and Other Drug Controls for Rail Safety Workers
7. Review of Decisions
8. Codes of Practice
9. General
10. Other Amendments to Acts, Savings and Transitional

Coverage

The Act regulates the

Duties

Victoria. The station is serviced by V/Line passenger trains on the Warrnambool railway line. V/Line

has responsibilities under the Rail Safety Act for the safety of its rail operations on this line and the other lines which form parts of its operation.

Part 3 of the Act sets out a number of performance based safety duties which are required to be observed by designated rail industry participants including:

• rail infrastructure managers[20] (including persons in charge of rail tracks)
• rolling stock operators^[21]
• rail
  contractors^[22]
• labour-hire entities^[23]
• rail safety workers.^[23]

"Rail contractor" is defined broadly by the Act to include a range of persons including those involved in design, construction, manufacture, supply, installation, maintenance, repair and modification who knows or ought reasonably to know that things were to be used as rail infrastructure or rolling stock.^[24]

The typical formulation of a safety duty specifies that persons in this category must ensure the safety of things for which they are responsible "so far as is reasonably practicable"^[25] although the formulation varies according to the party. Rail infrastructure managers and rolling stock operators, for example, are also required to provide or maintain systems of rail safety work that are, so far as is reasonably practicable, safe.^[26] Penalties for breach of the safety duties are substantial and vary among natural person and body corporate offenders.

The framework of safety duties in the Act seeks to give practical effect to the so-called "chain of responsibility" concept in the rail safety sector.^[27] That concept seeks to identify the parties who are in a sufficient position of control over risks, in this case to safety, and to allocate responsibility by law accordingly.

Accreditation scheme

Two key parties responsible for the direct operation of

Safety management systems

overhead wiring

.

Certain rail operators, that is infrastructure managers and

In essence, the SMS is the key safety plan for those parties who have ground level operational responsibilities in the rail sector.

Compliance

Compliance-related provisions to support the Rail Safety Act scheme were not included in that Act and instead were included in the then Transport Act 1983 (since renamed, the Transport (Compliance and Miscellaneous) Act 1983).^[34] The compliance support scheme centres on provisions enabling the appointment of authorised officers, conferral of coercive powers and a range of administrative and court-based sanctions. The key elements are:

• appointment of officers transport safety officers^[35]
• powers relating to entry to
  railway premises, inspection, securing sites, use of force and seizure of things^[36]
• powers to search, enter and require production of documents and information and to require name and address details^[37]
• sanctions and penalties such as improvement notices, prohibition notices and infringement notices^[38]
• powers to initiate prosecutions, receive safety undertakings and impose commercial benefits penalty orders, supervisory intervention orders, exclusion orders and adverse publicity orders.^[39]

Responsible regulator

The

Development

Regulatory scheme

The development of the proposal for the Act was managed by the former Department of Infrastructure in Victoria^[42] as part of its Transport Legislation Review project. The department released an issues paper outlining the broad policy outline for rail safety scheme legislation in May 2004.^[43] The paper outlined a series of concerns about the former rail safety regulation framework in Victoria including concerns about safety trends and outcomes^[44] and comparisons with schemes in overseas jurisdictions.^[45] Comments on the issues paper were requested from industry parties and other interested stakeholders. Comments received from industry, government and other stakeholders resulted in the refinement of the proposal and changes to its design.^[46]

Governance scheme

The proposal for a new

The governance review also examined the case for merging the public transport regulator with the then Victorian

Ultimately, the proposals for both a new rail safety

in early October 2005.

Parliamentary approval

Introduction

The Rail Safety Act was introduced into the

The responsible

second reading

of the Rail Safety Bill on 6 October 2005 and set the context for the Bill in his speech in support as follows:

"This Bill heralds a new era in rail

Victoria. While Victoria has a proud rail safety record over the 150 years of rail operations in the State, new enhanced rail safety regulation and public transport governance is essential in order to maintain our current high safety levels and to generate continuous safety

improvements in the future.

Government and

freight

rail services has been largely devolved to private operators and away from direct Government control.

Victoria's challenge, and more broadly the challenge for the nation, is to learn from the

hazard identification and risk management -- activities aimed at preventing incidents, and at mitigating their consequences if ever they do occur. With these considerations in mind, it has been a key objective of the Government to develop a contemporary best practice rail safety regime for the State."^[54]

Debate, criticism and amendments

Victorian Parliament

between early October 2005 and late March 2006. The Rail Safety Act policy framework was later adopted nationally and has now been replicated in laws passed by the legislatures in all Australian States and the Northern Territory.

The Rail Safety Bill was the subject of a reasoned amendment moved by the then Opposition shadow Transport Minister Terry Mulder on 1 March 2006 in the Legislative Assembly. The amendment sought to defer the Parliament's consideration of the Bill pending the approval of a national model Rail Safety Bill which had adopted the Victorian policy framework but which was being developed on a later timetable by the National Transport Commission.^[55] Mulder stated:

"The National Transport Commission has developed a model Bill for rail safety throughout

Victoria has jumped the gun and decided to go it alone. As indicated in the second-reading speeches, the Government proposes to tidy up the legislation as it moves forward."^[56]

"In reality the rail industry is looking for and wants a single regulator. It wants simplification and

Victorian Government trying to take the agenda away from the National Transport Commission, putting in place a process and trying to drive the agenda from that point forward."^[56]

In response, the Minister observed that:

(Members) have spoken on a landmark piece of

Victoria leading and not following. We are leading the way in national rail safety reform. We are achieving objectives that many State Transport Ministers have been attempting to achieve along with their national colleagues. .... This is an important piece of legislation because the Rail Safety Bill will become the model legislation for all other Australian jurisdictions."^[57]

The Government moved a series of amendments to the Bill during the latter stages of its passage in the Legislative Assembly largely to give effect to national alignment matters agreed between the Department of Infrastructure and the National Transport Commission.[56]

Passage, assent and commencement

The Rail Safety Bill was passed by the Legislative Assembly on 1 March 2006^[56] and was introduced into the Victorian Legislative Council on 2 March 2006.^[58] Second reading was moved in the council on 28 March and the Bill was ultimately passed without further amendment on 29 March 2006.^[59]

The Rail Safety Bill received

on 1 August 2006. The Rail Safety Regulations 2006 which were required to support the operation of the Act also operated from the same date thereby formally commencing the new rail safety regulation scheme.

Amendments to the Act

The Act has been subject to some significant amendments since it was passed in 2006. These include requirements on rail infrastructure managers and road managers since 1 July 2010 to enter into "safety interface agreements".

, as one means of improving safety outcomes at those locations.

National impact

Victoria

provides an example of a rail activity conducted by a national operator in Victoria which is regulated by the Rail Safety Act.

2006 Model Bill

The development and passage of the Rail Safety Act in

satisfied the core national scheme requirements and required small changes only to be compatible with the national draft.

Adoption of the model national Bill was gradual. The national proposal was subsequently adopted by legislation in South Australia (in 2007), New South Wales (2008) and Tasmania (2009) and eventually in Western Australia (2010), the Northern Territory (2010) and Queensland (2010).

Once it was clear that a majority of other jurisdictions had implemented the new framework, the Victorian Rail Safety Act was amended to acknowledge that the Victorian statute forms part of the nationally consistent rail safety scheme^[62]

2008 centralisation proposal

A further national proposal emerged in 2008 at the instigation of the

. This followed soon after the approval of the national model Rail Safety Bill and before most States and the Northern Territory were able to embed the model Bill into their local laws.

The Australian Transport Council and the

.

The proposal envisages the establishment of an applied laws scheme and a central rail safety regulation bureaucracy for Australia located in Adelaide in South Australia and the abolition of the current rail safety regulators in the States and the Northern Territory.^[65]

Negotiations are currently^[

on this centralisation proposal. Final approval and adoption of legislation and other arrangements is still to occur. There has been both support for and opposition to the full centralised regulatory proposal since it was first raised.

Support

Great Southern Rail, the train operates between the Melbourne terminal of Southern Cross, and Adelaide Parklands Terminal in Adelaide, and covers 828 kilometres between capitals.^[66]

]. When in Victoria, the train operates under the Victorian Rail Safety Act and in South Australia under the companion South Australian Act of the same name. Coordinated regulatory activity is ensured by the regulators of each State and by the Rail Safety Regulators' Panel.

The original centralisation concept has been supported by interstate rail interests and jurisdictions such as Tasmania, Queensland, South Australia, the Commonwealth and the Northern Territory. Those parties have argued that having separate rail safety regulators in each jurisdiction is inefficient and costly for the rail industry, particularly cross border operators, and also for Governments.^[67]

Supporters of the proposal have also asserted that Australia's regulatory system for rail needs to be modernised to reflect a national approach to transport policy planning and to support the safe, efficient and sustainable growth of the railway industry. It has also been suggested that the establishment of a national rail safety administration will "...deliver better rail safety outcomes for Australia, as it will draw on a national pool of knowledge and resources".^[68]

Advocates of the project have also suggested that the cost savings that might accrue as a result of more centralised rail safety laws and bureaucracy will result in better safety results because rail operators will use any monetary savings to improve their safety systems.^[69]

In addition, smaller jurisdictions generally see the rail safety regulation function as expensive and wish to shift costs to the Commonwealth Government. Concerns have also been expressed about the progress of harmonisation across Australia, including since the approval of the national model Rail Safety Bill.

Criticism

Victoria are also regulated by the Rail Safety Act. This picture shows locomotive 12A on the Monbulk Creek trestle bridge near Belgrave just outside Melbourne. The train is operating as part of the famous Puffing Billy tourist railway

.

The centralised regulator proposal has been opposed at times by

interstate movements.^[70]

These jurisdictions have also pointed to the good performance of rail safety regulation in Australia in recent years which has seen long-term trends point to reductions in deaths and injuries from rail operations. Agreement has already been reached to excise the Melbourne tram system from the national proposal; however Victoria and New South Wales in particular have indicated ongoing difficulties with ceding safety control over the large Melbourne and Sydney suburban rail systems to an entity located in Adelaide.

Some

federations, particularly the European Union and Canada, where countries and provinces retain strong local control of rail safety regulation and administration, especially in relation to urban and metro systems. Some concerns raised in this context have reflected on the lack of subsidiarity

consideration evident in the national proposal.

Concerns have also been expressed about the single mode aspect of the national centralisational proposal which would remove rail safety regulation from the New South Wales and Victorian regulators. Critics argue that the national proposal militates against the contemporary integrated transport directions evident in these larger jurisdictions in recent years.^[71] These directions have seen transport safety regulators becoming increasingly multi modal and covering modes such as rail, tram, bus and maritime in the one agency as a way of sharing safety expertise, reducing duplication and minimising opportunities for regulatory capture. The national proposal would reverse this modern trend and create a single rail safety regulator.

Some stakeholders have criticised the safety credibility of the centralisation proposal, observing that the proposal is more directed at

economic benefits rather than safety

improvements and that, as a result, it has the potential to increase rail safety risks. Several stakeholders have also raised the prospect of any new regulator becoming subject to regulatory capture.^[72]

Current directions

The centralisation proposal remains unresolved although the current proposal suggests a start up date of 1 January 2013 for a new system

Victoria and potentially other large rail States such as Queensland and Western Australia may retain a local regulatory presence under service level agreements. Jurisdictions which choose to operate under service level agreements may do so through their existing regulators operating in conjunction with the Adelaide-based national regulation bureaucracy and under centrally determined policy

and operational directions.

See also

• Rail transport in Victoria
• Railways in Melbourne
• Trams in Melbourne
• Buses in Melbourne
• Transport Legislation Review
• Safety
• COAG
• Transport Integration Act
• Director, Transport Safety
• Chief Investigator, Transport Safety
• Tourist and Heritage Railways Act
• Transport Act 1983
• Transport (Compliance and Miscellaneous) Act 1983

References

1. ^ "Investing in Transport" (PDF). Victorian Department of Transport. p. 69. Retrieved 22 December 2008.^{[permanent dead link]}
2. ^ Yarra Trams Facts & Figures Archived 14 March 2007 at the Wayback Machine
3. ^ TramTracker News Release Archived 29 November 2006 at the Wayback Machine
4. ^ This Act is now known under the title Transport (Compliance and Miscellaneous) Act 1983.
5. ^ Transport Integration Act 2010 - see paragraph (m) in the definition of "transport legislation" in section 3.
6. ^ ^{a b c} Transport Integration Act 2010, section 194.
7. ^ Rail Safety Act 2006, section 1.
8. ^ Rail Safety Act 2006, section 11(1).
9. ^ Rail Safety Act 2006, Part 2.
10. ^ Rail Safety Act 2006, Part 3.
11. ^ Rail Safety Act 2006, Part 5.
12. ^ Rail Safety Act 2006, Division 4 of Part 3.
13. ^ The Rail Safety Act 2006 amended the then Transport Act 1983 in respect of these matters. The Transport Act has since been renamed the Transport (Compliance and Miscellaneous) Act 1983. See Part 7 of that Act.
14. Transport Integration Act 2010
    - see section 175.
15. ^ Rail Safety Act, Part 6.
16. ^ Rail Safety Act 2006, Part 8.
17. marine safety
    responsibilities previously regulated by the Director of Marine Safety under the Marine Act 1988.
18. ^ Rail Safety Act 2006, see the definition of "railway" in section 3.
19. ^ Rail Safety Act 2006, section 6.
20. ^ Rail Safety Act 2006, section 20.
21. ^ Rail Safety Act 2006, section 21.
22. ^ Rail Safety Act 2006, section 22.
23. ^ ^{a b} Rail Safety Act 2006, section 23.
24. ^ Rail Safety Act 2006, section 22(1).
25. ^ Rail Safety Act 2006 - see, for example, section 22(2) which specifies the duty of rolling stock operators
26. ^ Rail Safety Act 2006 - see, for example, section 22(1) in relation to rolling stock operators.
27. marine safety, taxi and accident towing
    sectors.
28. ^ Rail Safety Act 2006 - see sections 36 and 37.
29. ^ Rail Safety Act 2006, section 35.
30. ^ Rail Safety Act 2006, section 38.
31. ^ Rail Safety Act 2006, section 3, definition of "rail operator".
32. ^ Rail Safety Act 2006, Division 4 of Part 3. See in particular, section 27.
33. ^ Rail Safety Act 2006, section 25.
34. ^ Transport (Compliance and Miscellaneous) Act 1983, Part 7.
35. ^ Transport (Compliance and Miscellaneous) Act 1983, subdivision 2 of Division 4B of Part 7.
36. ^ Transport (Compliance and Miscellaneous) Act 1983, subdivisions 4, 7 and 8 of Division 4B of Part 7.
37. ^ Transport (Compliance and Miscellaneous) Act 1983, subdivision 5 of Division 4B of Part 7.
38. ^ Transport (Compliance and Miscellaneous) Act 1983, subdivisions 9 to 11A of Division 4B of Part 7.
39. ^ Transport (Compliance and Miscellaneous) Act 1983, Division 6 of Part 7.
40. ^ Transport Integration Act 2010, section 171.
41. ^ Transport Integration Act 2010, section 191 (the Minister may compel the Director to investigate a particular matter) and 193(2).
42. ^ The successor to the Department of Infrastructure in rail safety and other areas is the Department of Transport.
43. ^ The paper was titled "Improving Rail Safety in Victoria: issues paper for a review of the rail safety regulatory framework" and was released on 24 May 2004.
44. ^ Improving Rail Safety in Victoria, Department of Infrastructure, May 2004, Parts B.
45. ^ Improving Rail Safety in Victoria, Department of Infrastructure, May 2004, Parts C, D and E.
46. Victorian Parliament
    .
47. ^ Review of the Role and Accountability Arrangements for Public Transport and Marine Safety Regulation in Victoria, TFG International Pty Ltd, November 2004.
48. ^ Transport Act 1983.
49. ^ ^{a b} Review of the Role and Accountability Arrangements for Public Transport and Marine Safety Regulation in Victoria, TFG International Pty Ltd, November 2004 - see findings relating to terms of reference 3 for the review, page 5.
50. ^ Review of the Role and Accountability Arrangements for Public Transport and Marine Safety Regulation in Victoria, TFG International Pty Ltd, November 2004 - see findings relating to terms of reference 4 for the review, pages 5-6.
51. ^ This office was established under the Marine Act 1988.
52. ^ Transport Integration Act 2010, section 171 and related amendments to the Marine Act 1988.
53. ^ This process is available under Victorian Parliamentary procedure and the Bills become known as cognate Bills.
54. Legislative Assembly
    , 6 October 2005.
55. ^ See National Context below. The text of the reasoned amendment moved by Mr Mulder was 'this house refuses to read this Bill a second time until a final resolution has been reached by all States in relation to the National Transport Commission's draft Rail Safety Bill and that further discussion has been entered into via invitation from the Federal Government to simplify regulation for rail operators in all States'. Parliament of Victoria, Hansard, Legislative Assembly, 1 March 2006.
56. ^
    Legislative Assembly
    , 1 March 2006.
57. ^ Parliament of Victoria, Hansard, Legislative Assembly, 1 March 2006.
58. Legislative Council
    , 2 March 2006.
59. Legislative Council
    , 28 and 29 March 2006
60. Victorian Parliament
    .
61. ^ Rail Safety Act 2006, Division 2 of Part 4.
62. Parliament that this Act form part of a nationally consistent scheme that regulates and promotes the maintenance of, and continuous improvement in, rail safety
    ."
63. ^ see www.coag.gov.au
64. ^ Sww www.coag.gov.au.
65. ^ See COAG and ATC communiques since 2008.
66. ^ "Great Southern Railways - The Overland". Archived from the original on 10 December 2007. Retrieved 12 February 2011.
67. ^ See the submissions by these jurisdictions in response to the regulatory impact statement released in late 2008 in respect of the centralisation proposal.
68. ^ See National Transport Commission website as of July 2011.
69. ^ Statements made by National Transport Commission staff and industry advocates during National Rail Safety Regulator Public Information Forums throughout Australia during July 2011.
70. ^ See submissions made by jurisdictions into the centralised regulator concept.
71. ^ Victoria, for example, enacted a Transport Integration Act in 2010 which pursues a policy and organisational direction which contrasts sharply with the national rail safety regulation centralisation proposal. New South Wales too passed legislation in 2010 which conferred additional safety responsibilities on its multi-modal safety transport safety regulator.
72. ^ For example, see the submission by Public Transport Victoria in response to the regulatory impact statement released in late 2008 in respect of the centralisation proposal.
73. ^ See communiques at www.coag.gov.au and outcomes from the Australian Transport Council.

External links

• Department of Transport
• Transport Safety Victoria
• Australian Transport Council
• Council of Australian Governments