New Rail Safety Laws - What's Changing
Introducing national consistency
All Australian States and the Northern Territory are implementing new rail safety laws consistent with a national model (the National Model Rail Safety Bill 2006) to improve consistency and overall safety in the rail industry.
Rail operators and unions have participated in an extensive consultation process at the national and state levels to develop the new laws. In NSW, the Rail Safety Act 2002 has been replaced by the Rail Safety Act 2008 which commenced on 1 January 2009.
The key changes
The Rail Safety Act 2008 will implement the National Model Rail Safety Bill 2006 and build on rail safety reforms introduced over recent years in response to the Special Commissions of Inquiry into the Glenbrook and Waterfall rail incidents.
The key differences between the 2002 and 2008 Acts include:
- Limiting the requirements of accreditation to rail infrastructure managers and rolling stock operators
- Introducing general duties for operators, contractors, designers, suppliers and manufacturers of equipment, and rail safety workers
- Registration of private sidings (a 2-year transition applies)
- New obligations on rail infrastructure managers and roads authorities to jointly manage risks arising from rail or road crossings, such as level crossings, road over rail bridges and rail over road bridges (a 3-year transition applies)
- Guidelines for regulators to ensure consistent administration of accreditation and approach to enforcement.
- Persons who design, commission, manufacture, supply, install or erect rail infrastructure or rolling stock, or things used in connection with rolling stock or rail infrastructure are required to ensure, so far as is reasonably practicable, that the thing provided is safe to use and that adequate information is supplied to ensure its safe use.
- Rail safety workers have ageneral duty under the Rail Safety Act 2008 that when carrying out rail safety work they:
- take reasonable care for the safety of people who may be affected by their acts or omissions
- cooperate with the operator so far as is necessary to enable the operator to comply with the rail safety legislation in the interests of safety
- take reasonable care for their own safety.
- Managers and directors are subject to ‘deemed liability’ provisions, consistent with the National Model Rail Safety Legislation, that are designed to ensure managers and directors are not shielded from responsibility for safety breaches by the corporate legal structure.
Under these provisions, contraventions of the legislation by a corporation would be deemed to have been committed by its directors and managers unless they were not in a position to influence the conduct of the corporation in relation to its contravention, or used all due diligence to prevent the contravention by the corporation. However, an officer of a corporation who is a volunteer is not liable to be prosecuted, pursuant to these provisions, for anything done or not done by him or her as a volunteer.
In addition, if an employee contravenes a provision of the Act or the regulations, whether by act or omission, their employer is taken to have contravened the same provision.
- Continuing accredited operators will have 12 months (i.e. until 1 January 2010) to comply with the new safety management system (SMS) requirements. The Rail Safety (Safety Management Systems) Guideline 2006 - No 1 will apply during the transition.
- Rail infrastructure managers of private sidings will have 2 years to register private sidings.
- Requirements in relation to road or rail crossings interface coordination agreements between rail infrastructure managers and roads authorities will come into effect in 3 years.
- New competency requirements will come into effect in 2 years. The Guidelines for Certification of Competency will apply during the transition.
- Carolyn Boden – 02 8263 7122 (regarding the review of accreditation notices)
- Celia Murphy – 02 8263 7123 (for other enquiries about the new Act).
Introducing general duties
The Rail Safety Act 2008 introduces duties on rail transport operators and others carrying out railway operations to ensure, so far as is reasonably practicable, the safety of their railway operations. The aim is to provide a positive duty on those who have the greatest control over particular railway operations to ensure the safety of rail operations.
General duties also apply to contractors, designers, suppliers and manufacturers of equipment, and rail safety workers:
The general duties are based on the National Model Rail Safety Legislation.
Under the Rail Safety Act 2008 it will be for the defendant to prove, on the civil standard, that they did everything reasonably practicable to eliminate or minimise risks to the safety of their railway operations.
The Act includes guidance on what is required by a duty holder to ensure safety so far as is reasonably practicable.
The Occupational Health and Safety Act 2000 will continue to apply to NSW rail operators, including in relation to their duties around workplace safety. If there is any overlap or conflict between the Occupational Health and Safety provisions and the Rail Safety provisions, the former will apply.
ITSRR and WorkCover will continue to have arrangements in place to ensure that the most appropriate agency leads any investigation into breaches of safety obligations that overlap OHS legislation.
Accreditation under the Rail Safety Act 2008
Who will be accredited?
Some organisations previously accredited by the Independent Transport Safety and Reliability Regulator (ITSRR) under the Rail Safety Act 2002 will not require accreditation under the Rail Safety Act 2008.
The Rail Safety Act 2008 requires all railway operations to be conducted by, or on behalf of, a rail transport operator, who is either accredited in relation to those operations, or has obtained an exemption from the requirement to be accredited in relation to those operations from the ITSRR. Rail transport operators are those organisations with effective management and control of rail infrastructure and/or rolling stock operations.
A maintainer of infrastructure or rolling stock will only be accredited if they have effective management and control of the movement of rolling stock, as the maintenance work itself will be covered by the rail transport operator (the accredited party).
Arrangements for current accredited operators
Operators who require accreditation under the Rail Safety Act 2008 do not need to reapply for accreditation but will be issued with a new notice of accreditation in the months after the Act has commenced.
Existing notices of accreditation will continue to apply until new notices have been issued. Any current conditions and/or restrictions of accreditation and outstanding statutory notices will be carried over to the new notice of accreditation.
ITSRR is reviewing all current accreditation notices to assess which operators need to be accredited under the Rail Safety Act 2008. After the commencement of the new Act, operators will be contacted progressively over the next few months and provided with their draft notice of accreditation for review.
As part of the consultation process, operators will be given the opportunity to meet with senior ITSRR staff to discuss their obligations under the new Act and to ensure the permissions granted in the draft notice of accreditation are consistent with the scope and nature of their railway operations.
The same consultation process will be offered to currently accredited operators who no longer require accreditation under the new Act.
Managing risk so far as is reasonably practicable
Before being accredited, rail infrastructure managers and rolling stock operators must satisfy ITSRR that they have the competence and capacity to manage risks
to safety associated with their railway operations, as well as the competence and capacity to implement their safety management system.
The new Act will not require rail operators to run risk-free railway operations but to eliminate any reasonably foreseeable risk to safety arising from their operations or, if it is not reasonably practicable to do so, control the risk so that it is managed so far as is reasonably practicable.
Contractors
ome NSW accredited infrastructure and rolling stock maintenance contractors will not be required to be accredited under the Rail Safety Act 2008.
Instead, these contractors will be subject to the general duties and the contractor management requirements in the safety management system of the accredited operators to whom they provide services.
Accredited operators will need to demonstrate to ITSRR that their contractors’ practices fit with and form part of their safety management system. ITSRR will monitor the management of contractors through its audit and inspection program.
Transitional arrangements for the Rail Safety Act 2008
More information
TSRR is developing a range of fact sheets on the Rail Safety Act 2008 covering topics including accreditation, general duties and safety management systems.
To find out more email contact@transportregulator.nsw.gov.au or contact one of the following ITSRR officers: