From January 1st 2009, the Rail Safety Act 2008 replaced the Rail Safety Act 2002 in New South Wales. The new legislation raises challenges for members of the Australasian Railway Association (ARA) to achieve compliance with the legislation and to strategically address its relationship with the NSW Rail Regulator and other industry participants. Different challenges will face different parts of the industry.
The ARAs fortnightly update (www.ara.net.au) addresses some of the key issues – it provides an outline of the changes arising from the new legislation and the potential effect of these changes on industry.
The NSW Rail Regulator has also put together information about the content of the new rail safety legislation, including summaries of key differences and a detailed comparison of specific differences between each provision of the new rail safety legislation and the old rail safety legislation. This information can be accessed at www.transportregulator.nsw.gov.au and then by clicking on the button labelled Rail Safety Reform.
Some of the challenges for ARA members arising from the new legislation include:
Making sure the business understands, and addresses the significance of, the new NSW Rail Regulator enforcement powers and court sanctions.
Achieving compliance with general duties and demonstrating this through Safety Management Systems.
Considering the methods (including contractual) and the objectives of consultation with the Rolling Stock Operators and Rail Infrastructure Managers (together defined as Rail Transport Operators) in relation to safety management.
Understanding the way in which the Rail Infrastructure Managers and Road Authorities will deal with their obligation to control road/rail interface risks.
The Rail Safety Act 2008 provides the NSW Rail Regulator with significantly increased enforcement powers. The most significant of these enhanced powers include:
the power to commence a prosecution for breach of general duties or other breaches of the legislation and
the power to accept a written undertaking provided in connection with a breach or alleged breach of the legislation, which is enforceable in court by the NSW Rail Regulator.
The enforcement powers, such as the power to issue improvement and prohibition notices, in the previous rail safety legislation continue to exist.
ARA members need to consider the nature of their relationship with the NSW Rail Regulator in light of the NSW Rail Regulators considerable new enforcement powers.
There are numerous similarities between the Rail Safety Act 2008 and the earlier 2002 Act. In his address to the Rail Safety conference, in Sydney on March 26th, NSW Transport Minister David Campbell, outlined some of these.
There is still a requirement for rail transport operators to be accredited and to have a safety management system – and the requirements for that system remain largely the same.
There is still a requirement for ITSRR to inspect and audit railway operators and for railway operators to report incidents or occurrences.
For the New South Wales rail industry, this means there are not significant differences in the responsibilities previously placed on them by the 2002 Act, said Campbell.
Accredited operators will continue to be required to manage the risks associated with their railway operations, focusing particularly on their high risks.
The main changes embodied in the new Act relate to channelling the requirements of accreditation to rail infrastructure managers and rolling stock operators and the introduction of general duties of safety.
The rationale for limiting accreditation to infrastructure managers and rolling stock operators is to funnel accountabilities and responsibilities back to the accredited party, said Campbell.
This approach is consistent with the principle that safety cannot be contracted out.
In many respects, the introduction of general duties simply re-enforces the obligation on those who have the greatest control over rail activities to ensure the safety of rail operations.
Campbell said that rail transport operators will benefit from the new legislation.
There are new obligations on roads authorities to seek to enter into interface agreements with rail infrastructure managers to jointly manage risks arising from rail or road crossings, he said.
He also mentioned that the Rail Safety Act 2008 retains a number of matters in the previous Act that are not included in the National Model Rail Safety Legislation.
Throughout the development of the Legislation the NSW Government would not agree to any provisions if it would mean lower standards of safety for the public and rail safety workers, Campbell said.
For example, since 2003 NSW rail safety laws have required drug and alcohol testing of rail safety workers. Therefore, the 2008 Act retains this requirement despite there being no corresponding provisions in the National Model Legislation.
Despite these additional requirements, the overall rationale of the Act remains the same, that is, the rail industry is expected to manage the risks associated with their railway operations, said Campbell.
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