Rail Safety Act 2006

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]

The proposal for a new public transport regulator was developed separately but concurrently with the development of the rail safety regulatory scheme. The Department commissioned a further review which led to a detailed report on the subject.[47] The review examined governance arrangements for safety regulation in the public transport sector drawing on Australian and overseas models. Recommendations were made aimed at improving the governance, accountability and methodology of the then public transport regulator which at that time obtained its powers to regulate safety through delegation from the Secretary of the Department of Infrastructure.[48] Particular concerns were expressed about the lack of independence of the regulator function and the perceived lack of clarity about its charter and accountabilities as well as conflict of interest concerns.[49] Ultimately, the review recommended the creation of an independent statutory office with a clearer charter and accountability arrangements.[50]

The governance review also examined the case for merging the public transport regulator with the then Victorian marine safety regulator, the Director of Marine Safety.[51] While not recommended at that time, the review found that integration of the functions could be examined in two to three years time once the public transport regulatory schemes had been settled and further examination of marine safety regulation had occurred.[49] The Victorian Government ultimately pursued the full integration of its public transport and marine safety regulators five years later as part of its Transport Integration Act proposal.[52]

Ultimately, the proposals for both a new rail safety regulation scheme and new public transport safety governance arrangements were presented to the Victorian Parliament as proposed legislation in early October 2005.

The Rail Safety Act was introduced into the lower house of the Victorian Parliament, the Victorian Legislative Assembly, as the Rail Safety Bill. The Bill was introduced at the same time as the Transport Legislation (Safety Investigations) Bill, a proposal to establish an independent public transport and marine safety investigator in Victoria, and the Bills were debated together.[53]

The responsible Minister for both Bill proposals was the then Minister for Transport, Peter Batchelor. The Minister moved the 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 safety in 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 transport operators must remain vigilant about rail safety performance. Together, we need to seek further safety improvements in an industry where, as international and interstate experiences show, incidents have the potential for serious consequences for life and limb. This is a particular issue for Victoria where the responsibility for the delivery and operation of passenger 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 safety regulation improvements in other jurisdictions and industries and to adopt best practice regulation that facilitates better 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]

The Bill which became the Rail Safety Act was considered by the 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 Australia and is still in the process of consulting with industry groups and State Governments. 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 regulations which are uniform across all States. As I have said, the Minister was not prepared to do that. I understand that the Victorian Government has agreed to follow several provisions of the model Bill. But there are other parts of the model Bill that the minister has not seen fit to follow. This has all the hallmarks of the 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 legislation which sees 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]

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 Royal Assent on 4 April 2006 to become the Rail Safety Act 2006.[60] The Act was ultimately proclaimed to commence 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.

The development and passage of the Rail Safety Act in Victoria in March 2006 was followed by policy and legislation developments at the national level. In June 2006, the Australian Transport Council approved a model Rail Safety Bill for adoption in law by the States and the Northern Territory. The regulatory framework in the national model Bill adopted the scheme set out in the Victorian Act. Accordingly, the Victorian legislation 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]

A further national proposal emerged in 2008 at the instigation of the Rudd Government. 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 Council of Australian Governments are pursuing a centralisation proposal (sometimes called the "single national rail safety regulator") to establish a safety regulator for all rail operations in Australia including interstate railways and domestic state and territory urban systems (heavy rail, light rail and tram) and shortlines.[63] The proposal forms part of a "seamless national economy" proposal being pursued by the Commonwealth Government[64] and COAG.

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 underway between the Commonwealth Government and States and Territories 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.

"The Overland" operating at Moorabool near Geelong in Victoria.

The Overland is a passenger train between Melbourne, Victoria and Adelaide, South Australia. Operated by private company, 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.

Tourist and heritage railway operations in 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 New South Wales, Victoria and the Western Australian rail safety regulator who have pointed to a lack of quantitative or qualitative evidence of impacts of the current jurisdiction-based national system on operator costs, particularly in light of the predominance of intrastate urban rail movements in Australia over 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 jurisdictions and stakeholders have contrasted the more decentralised regulatory position in other large rail 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]

The centralisation proposal remains unresolved although the current proposal suggests a start up date of 1 January 2013 for a new system[73] which is still in evolution. Recent developments suggest that a centralised regulator will be established to take over the rail safety regulation functions of a majority of jurisdictions but that the most populous jurisdictions such as New South Wales and 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.