Rail safety laws to be brought into line with new WHS regime
The Rail Safety Act 2008 was drafted based on the occupational health and safety legislation model so requires a number of consequential amendments to enable it to operate consistently with the Work Health and Safety Act 2011 (WHS Act).
NSW legislation to enact the national model work health and safety framework is due to commence on 1 January 2012.
The amendments to the Rail Safety Act 2008 will be effected by the Work Health and Safety Legislation Amendment Bill 2011 which will ensure arrangements consistent with the WHS Act apply in the mining and rail industries, and to the road and rail transport of dangerous goods.
The most significant change for the rail industry is the abolition of the ‘reverse onus of proof’. It means that in new prosecutions for acts or omissions that occur after 1 January 2012, ITSR will need to prove that the duty holder (a rail transport operator or other person carrying out railway operations, including designers, manufacturers and suppliers) failed to do everything reasonably practicable to comply with the duty.
Other key changes to be made to rail safety legislation are:
- New duty of due diligence for officers of corporations (this does not include volunteers) having duties and obligations under the Rail Safety Act 2008. This duty replaces the ‘deeming’ liability provisions in section 136 of the Rail Safety Act.
- New definitions of the key concepts of ‘reasonably practicable’ and ‘management of risks’ which align with WHS terminology.
ITSR has produced a fact sheet on WHS legislation and changes to the Rail Safety Act 2008. More information will be posted on the website in January 2012.