Independent Transport Safety Regulator v Patrick Portlink Pty Ltd t/as Patrick Portlink

DELIBERATION 10The parties informed the Court that these were the first prosecutions brought under the provisions of the Rail Safety Act. It is therefore appropriate to refer the purpose of that legislation and some of the provisions that are of particular relevance to the present proceedings. 11The second reading speech on the introduction of the Bill in November 2008 contained the following passage: The introduction of general duties in the rail industry, similar to general duties provided in the Occupational Health and Safety Act, will provide a positive duty on those carrying out railway operations to ensure so far as is reasonably practicable the safety of rail operations. It will be an offence for failing to discharge that duty. The extension of general duties to cover the providers of rail infrastructure and rolling stock, such as those who design, commission, manufacture, supply, install or erect rail infrastructure or rolling stock, will ensure sufficient powers and safeguards to regulate all parties in the supply chain. Duties of care will also apply to rail safety workers when carrying out rail safety work. The inclusion of general duties will also complement and clarify the function of the system of accreditation in the rail industry by making it clear that gaining accreditation is a threshold requirement only, and not a certification of safety. The granting of accreditation simply indicates that, in the opinion of the rail safety regulator, the operator has demonstrated to ITSRR the competency and capacity to manage risks associated with those railway operations. The New South Wales Occupational Health and Safety law will continue to apply to New South Wales rail operators, including in relation to their duties around workplace safety . 12Attention was drawn to the following provisions of the Rail Safety Act in dealing with these prosecutions: 3 Objects Having regard to the importance of rail safety and regulatory efficiency, the objects of this Act are as follows: (a) to provide for improvement of the safe carrying out of railway operations, (b) to provide for the management of risks associated with railway operations, (c) to make special provision for the control of particular risks arising from railway operations, (d) to promote public confidence in the safety of transport of persons or freight by rail. 6 The concept of ensuring safety (1) A duty imposed under this Act or the regulations to ensure, so far as is reasonably practicable, safety requires the person: (a) to eliminate risks to safety so far as is reasonably practicable, and (b) if it is not reasonably practicable to eliminate risks to safety, to reduce those risks so far as is reasonably practicable. (2) For the purposes of this Act or the regulations, regard must be had to the following matters in determining what is (or was at a particular time) reasonably practicable in relation to ensuring safety: (a) the likelihood of the risk eventuating; (b) the degree of harm that would result if the risk eventuated; (c) what the person concerned knows, or ought reasonably to know, about the risk and any ways of eliminating or reducing the risk; (d) the availability and suitability of ways to eliminate or reduce risk; (e) the cost of reducing or eliminating the risk. (3) This section is enacted for the avoidance of doubt. 8 Duties of rail transport operations and other persons carrying out railway operations (1) A rail transport operator who carries out railway operations must ensure, so far as is reasonably practicable, the safety of the railway operations. Maximum penalty: (a) in the case of a corporation (being a previous offender) -7,500 penalty units, or (b) in the case of a corporation (not being a previous offender) 5,000 penalty units, or (c) in the case of an individual (being a previous offender) -750 penalty units or imprisonment for 2 years, or both, or (d) in the case of an individual (not being a previous offender 500 penalty units. Note: "Safety" is defined in section 4 (1) as meaning the safety of people, including passengers, rail safety workers, other users of railways, users of rail or road crossings and the general public. (2) Without limiting subsection (1), a rail transport operator contravenes that subsection if the operator fails to do any of the following: (a) develop or implement, so far as is reasonably practicable, safety systems for the carrying out of the railway operations., (b) ensure, so far as is reasonably practicable, that each rail safety worker who is to perform rail safety work in relation to the railway operations is of sufficient good health and fitness to carry out that work safely and is competent to undertake that work, (c) ensure, so far as is reasonably practicable, that rail safety workers do not carry out rail safety work in relation to the operator's rail safety operations, and are not on duty, while the prescribed concentration of alcohol is present in their blood or while under the influence of a drug, (d) ensure, so far as is reasonably practicable, that rail safety workers who perform rail safety work in relation to the operator's railway operations comply with the operator's fatigue management program under this Act, (e) provide, so far as practicable, adequate facilities for the safety of persons at any railway premises under the control or management of the operator, (f) provide, so far as is reasonably practicable: (i) such information and instruction to, and training and supervision of, rail safety workers as is necessary to enable those workers to perform rail safety work in relation to the operator's railway operations in a way that is safe, and (ii) such information to rail transport operators and other persons on railway premises under the control or management of the operator as is necessary to enable those persons to ensure their safety. (3) Without limiting subsection (1), a rail infrastructure manager contravenes that subsection if the manager fails to do any of the following: (a) ensure, so far as is reasonably practicable, that any design, construction, commissioning, use, installation, modification, maintenance or decommissioning of the manager's rail infrastructure is done or carried out in a way that ensures, so far as is practicable, the safety of railway operations. (b) establish, so far as is reasonably practicable, such systems and procedures for the scheduling, control and monitoring of railway operations that ensure, so far as is reasonably practicable, the safety of the manager's railway operations. (4) Without limiting subsection (1), a rolling stock operator contravenes that subsection if the rolling stock operator fails to do any of the following: (a) provide or maintain rolling stock that, so far as is reasonably practicable, is safe, (b) ensure, so far as is reasonably practicable, that any maintenance, commissioning, use, modification, construction, repair or cleaning of rolling stock is carried out in a way that, so far as is reasonably practicable, ensures safety, (c) comply, so far as is reasonably practicable, with such rules and procedures for the scheduling, control and monitoring of rolling stock that have been established by a rail infrastructure manager in relation to the use of the manager's rail infrastructure by the rolling stock operator., (d) so far as is reasonably practicable, establish and maintain equipment, procedures and systems to minimise risks to safety of the operator's railway operations, , (e) make arrangements for ensuring, so far as is reasonably practicable, safety in connection with the use, operation and maintenance of the operator's rolling stock (5) This section applies to a person (other than a rail transport operator)) who carries out railway operations in the same way as it applies to a rail transport operator, but does not apply if the person carries out those operations as a rail safety worker or an employee. 11 Onus of proving limits of what is reasonably practicable under this Division In any proceedings for an offence against a provision of this Division consisting of a failure to comply with a duty to do something so far as is reasonably practicable, it is for the defendant to prove that it was not reasonably practicable to do more than was in fact done to satisfy the duty. 12 Safety management system (1) A rail transport operator must have a safety management system that complies with this section for railway operations for which the operator is required to be accredited . Maximum penalty: (a) in the case of a corporation-3,000 penalty units, or (b) in the case of an individual-300 penalty units. (2) The safety management system must: (a) be in a form approved by the ITSRR , and (b) comply with the relevant requirements, and the risk management principles, methods and procedures, prescribed by the regulations, and (c) identify and assess any risks to safety that have arisen or may arise from the carrying out of railway operations, for which the rail transport operator is required to be accredited, on or in relation to the rail transport operator's rail infrastructure or rolling stock's, and (d) specify the controls (including audits, expertise, resources and staff) that are to be used by the rail transport operator to manage risks to safety and to monitor safety in relation to those railway operations, and (e) include procedures for monitoring, reviewing and revising the adequacy of those controls, and (f) include the following: (i) measures to manage risks to safety identified under Division 3, (ii) a security management plan in accordance with section 16, (iii) an emergency management plan in accordance with section 17, (iv) a health and fitness management program in accordance with section 18, (v) a drug and alcohol management program in accordance with section 19, (vi) a fatigue management program in accordance with section 20. (3) A rail transport operator, before establishing, reviewing or varying a safety management system for railway operations for which the operator is required to be accredited, must consult, so far as is reasonably practicable, with: (a) persons likely to be affected by the safety management system or its review or variation, being persons who carry out those railway operations or work on or at the rail transport operator's railway premises or with the rail transport operator's rolling stock, and (b) trade unions, or other employee organisations, representing any such persons, and (c) occupational health and safety representatives or any other person who may be consulted with by an employer under section 16 of the Occupational Health and Safety Act 2000 , and (d) any other rail transport operator with whom the first-mentioned operator has an interface agreement under Division 3 relating to risks to safety of railway operations carried out by or on behalf of either of them, and (e) the public, as appropriate. (4) If the safety management system of a rail transport operator and the safety management system of another rail transport operator who has an interface agreement under Division 3 with the first-mentioned rail transport operator, when taken as one system, comply with this section, both safety management systems are taken to comply with this section. (5) A safety management system must be evidenced in writing and: (a) must identify each person responsible for preparing any part of the safety management system, and (b) must identify the person, or class of persons, responsible for implementing the system . (6) In this Part a reference to a safety management system includes a reference to a plan or program or other matter referred to in subsection (2) (f). 13 Implementation of and compliance with safety management system (1) A rail transport operator must implement the rail transport operator's safety management system. . Maximum penalty: (a) in the case of a corporation-3,000 penalty units, or (b) in the case of an individual-300 penalty units. (2) A rail transport operator must not, without reasonable excuse, fail to comply with the rail transport operator's safety management for the railway operations for which the operator is required to be accredited. Maximum penalty: (a) in the case of a corporation-3,000 penalty units, or (b) i n the case of an individual-300 penalty units. (3) It is a reasonable excuse if the rail transport operator: (a) complies with the safety management system to the extent practicable while complying with a condition or restriction of accreditation, or (b) demonstrates that compliance with the system in particular circumstances would have increased the likelihood of a notifiable occurrence happening. (4) Subsection (3) does not limit the excuses that may be reasonable excuses. 21 Competence of rail safety workers (1) A rail transport operator must, so far as is reasonably practicable, ensure that each rail safety worker who is to carry out rail safety work in connection with railway operations for which the operator is required to be accredited has the competence to carry out that work. Maximum penalty: (a) in the case of a corporation-3,000 penalty units, or (b) in the case of an individual-300 penalty units . (2) For the purposes of subsection (1), the competence of a rail safety worker to carry out rail safety work must be assessed: (a) by reference to: (i) any qualification or unit of competence applicable to the work being carried out that is recognised under the Australian Qualifications Framework overseen by the Ministerial Council on Education, Employment, Training and Youth Affairs, or (ii) if subparagraph (i) does not apply, the prescribed provisions applicable to the rail safety work to be carried out, and (b) by reference to the knowledge and skills of the rail safety worker that are needed to enable the worker to carry out the rail safety work safely (3) For the purposes of subsection (2), a certificate purporting to have been issued under the Australian Qualifications Framework to a rail safety worker certifying that the worker has certain qualifications or units of competence is evidence that the worker has those qualifications or units of competence. (4) Nothing in this section prevents a rail transport operator from requiring a rail safety worker to undertake further training before carrying out rail safety work. (5) A rail transport operator must maintain records in accordance with the regulations of the competence of rail safety workers who carry out rail safety work in connection with railway operations for which the operator is required to be accredited. Maximum penalty (subsection (5): 25 penalty units. 23 Other persons to comply with safety management system A person, not being an employee employed to carry out railway operations, who undertakes railway operations on or in relation to rail infrastructure or rolling stock of a rail transport operator must comply with the safety management system of the rail transport operator to the extent that it applies to those railway operations. Maximum penalty: (a) in the case of a corporation-3,000 penalty units, or (b) in the case of an individual-300 penalty units 35 Accreditation required for railway operation (1) A person must not carry out, or cause or permit to be carried out, any railway operations unless the person: (a) is a rail transport operator who: (i) is accredited under this Part in relation to those operations, or (ii) is exempt under this Act from compliance with this section in relation to those operations, or (b) carries out those operations, or causes or permits those operations to be carried out, for or on behalf of: (i) a rail transport operator who is accredited under this Part in relation to those operations, or (ii) a rail transport operator who is exempt under this Act from compliance with this section in relation to those operations, or (c) is exempt under this Act from compliance with this section in relation to those operations. Maximum penalty: (a) in the case of a corporation-5,000 penalty units, or (b) in the case of an individual-500 penalty units. Note: If a body corporate and related bodies corporate are involved, an exemption may be given so that only one of the bodies need be accredited (related body corporate means related by virtue of section 50 of the Corporations Act 2001 of the Commonwealth) . (2) Subsection (1) does not apply to a rail safety worker, not being a rail transport operator, who carries out rail safety work for or on behalf of a rail transport operator or other person who: (a) is accredited under this Part in relation to that rail safety work, or (b) is exempt under this Act from compliance with this section in relation to that rail safety work. 175 Application of OH&S legislation (1) If a provision of the occupational health and safety legislation applies to railway operations, that provision continues to apply, and must be observed, in addition to this Act and the regulations made under this Act. (2I) If a provision of this Act or the regulations made under this Act is inconsistent with a provision of the occupational health and safety, the provision of the occupational health and safety legislation prevails to the extent of any inconsistency. (3) Compliance with this Act or the regulations made under this Act, or with any requirement imposed under this Act or the regulations, is not in itself a defence in any proceedings for an offence against the occupational health and safety legislation. Note: For example, a person may be guilty of an offence under the occupational health and safety legislation in respect of any act or omission that is expressly required or permitted to be done or omitted by or under this Act or the regulations made under this Act. (4) Where an act or omission constitutes an offence under this Act or the regulations made under this Act and: (a) under the occupational health and safety legislation, or (b) under the Road and Rail Transport (Dangerous Goods) Act 1997 , the offender is not liable to be punished twice in respect of the offence. 13Counsel for the prosecutor and senior counsel for the defendants both agreed that the sentencing process under the Rail Safety Act should broadly reflect the approach taken by the Court over many years to prosecutions under provisions of occupational health and safety legislation. In particular, sentencing provisions, in terms of applicable principle, would not be different: the Court concurs in that approach. 14Counsel for the prosecutor submitted that the Rail Safety Act , in a similar way to the Occupational Health and Safety Act 2000, sought to secure safety by placing specific duties of care on persons who carried out or had control over railway operations and rail infrastructure, including persons who employed or engaged rail safety workers. The Rail Safety Act incorporated the concept of ensuring safety in much the same manner as found in occupational health and safety legislation. The duty of care imposed on a rail transport operator under the Rail Safety Act was an absolute duty that was non-delegable. Pursuant to s 11 of that Act, the onus of proving that it was not reasonably practicable to do more than what was in fact done to discharge the duty under s 8(1) in a particular circumstance lay with the defendant, Portlink. In relation to the s 23 offence concerning Port Logistics, that defendant was not an accredited rail transport operator and in accordance with s 35(b)(i) of the Rail Safety Act, carried out railway operations at the Terminal on behalf of Portlink. Pursuant to the provisions of s 23, Port Logistics, not being an accredited rail transport operator, but being an entity carrying out rail operations on behalf of the accredited rail transport operator, Portlink, was required to comply with the safety management system of Portlink. Under this legislative scheme Portlink faced a maximum fine of $550,000 for a breach of s 8(1) of the Rail Safety Act while Port Logistics faced a maximum fine of $330,000 for a breach of s 23. Senior counsel for the defendants accepted that description of the legislative scheme and the maximum penalties applicable. 15It has long been accepted that the primary factor to be considered in determining an appropriate penalty is establishing the objective seriousness of the offence charged. In the present matters the Agreed Statement of Facts were that, on the morning of 28 May 2009, four large flat top container railways wagons were pushed past the stop block, which was demolished, then, after derailing, left the Terminal area crossing a public street and coming to partially rest in the front yard of a private dwelling. The wagons were over 20 metres in length and each wagon was capable of holding up to three, twenty-foot containers. As might be expected, photographic evidence before the Court showed that a large mobile crane was required to assist in the removal of the wagons from the private property and the street. The photographs further indicated that the leading wagon, on exit from the Terminal, uprooted a large tree and caused some property damage, namely, to the side fence of a private residence. While no person appears to have been in the vicinity or was in fact injured, senior counsel for the defendants properly observed that it was fortunate that the leading wagon came into contact with the tree and did not enjoy an uninhibited pathway through the front yard with the possibility of causing damage to the private home. 16Senior counsel for the defendants pointed out that there were extensive systems in operation although they were not enforced at the Terminal on the day of this incident. While the employee directing the shunting operations might be identified as being largely at fault, especially by not following usual procedure and preceding the last wagon during the shunting operation, the defendants did not seek to avoid or reduce the significance of the seriousness of their respective breaches by simply blaming that employee. The Court accepts the submissions for the prosecutor that the circumstances surrounding this very dangerous incident involved not only a failure to enforce existing safety policies as required by the Rail Safety Act but there were in fact defects in the safety system. In addition there were a number of aspects to the offences. These were identified in the prosecutor's written and oral submissions. 17While it may be accepted that this was an exceptionally long line of wagons being moved a considerable distance by five locomotives in circumstances where they were to arrive prior to the normal hours of the Terminal, nevertheless, the system broke down in many respects. At the time the shunting commenced, there were already a number of defective wagons being held in one of the sidings and an estimate had to be made as to whether there was sufficient room for these incoming wagons to be stabled. While the wagons were being shunted, there was a failure by the person in charge of that operation to precede the last wagon to ensure that there was sufficient space available on the siding where these four wagons eventually derailed, having demolished the inadequate siding block. There was no documentation in the safety system regarding the stabling of wagons at the Terminal and it was left to the train crew to decide for themselves where to stable the wagons. On this day, this assessment occurred where there were an abnormal number of wagons to be stabled. There was no information, instruction or direction provided to the work crew on the day as to the holding capacity of the Terminal or the holding capacity of each siding. In addition, the stop block was so inadequate that it was demolished by the wagons in the course of the derailment. 18The Court accepts the prosecutor's submission that, in these circumstances and especially without supervision in-field, the risk presented in this shunting operation was foreseeable and in fact had been experienced in mid-2007 where corrective action was limited to that particular Terminal and not given wider consideration within the operation of the defendants. The safety system had proposed controls on induction training, checking for and ensuring relevant competencies were held by those involved in rail operations, that there were present in-field supervision and monitoring of training crews, such that it amounted to a hierarchy of controls. The system had broken down to the extent that no records could be located of either of the two employees on the day having induction training relating to this particular Terminal and no checks were made of the competencies held by the train crews who were supplied to Port Logistics by the labour hire company. No checks were carried out of the train crew's competencies prior to them being rostered for work and it eventuated that the certificates of competency actually held by the train crew had not been re-assessed as required by the safety system. The train driver's certificate had expired some little time before this incident and the employee in charge of shunting was due to be re-assessed some months earlier but had not been so re-assessed. 19The failures and omissions of the defendants as particularised and as explained by the evidence now before the Court demonstrates that there were reasonably practicable measures available to the defendants to meet these circumstances. Indeed, the capacity of the defendants to take the remedial steps set out in the Agreed Statement of Facts following the accident is evidence of that fact. In all the circumstances, this incident is to be properly regarded as a serious breach by both defendants. 20In relation to the respective culpability of each defendant, counsel for the prosecutor submitted that Portlink, being the accredited rail transport operator, had the greater responsibility to ensure safe railway operations. Portlink had failed to provide such supervision, monitoring and auditing of the operations carried out on its behalf by Port Logistics to ensure that the operations were safe in accordance with its obligations under s 8 (1) of the Rail Safety Act. It was also to be recognised that Portlink faced a maximum fine of $550,000 while Port Logistics faced a maximum fine of $330,000. Senior counsel for both defendants accepted those submissions as to the relative culpability for the defendants and in the view of the Court, that was a proper acceptance of the relative culpability of the defendants. 21This is a case where both general and specific deterrence necessarily form a significant element of the penalty to be imposed. This is the first prosecution brought in the Court under the Rail Safety Act and it is appropriate that the attention of rail operators be drawn to their extensive obligations under the Act and how well established systems may, nevertheless, fail to be observed in practice: such circumstances commonly arise in the field of occupational health and safety and serve to underline the obligation of operators in this inherently dangerous industry to ensure that their systems are complied with in practice. Both defendants conduct businesses that are continuing and although recognition may be given to the scope of existing safety practices and business organisation, the circumstances of this incident require that specific deterrence form a significant element of the penalty. 22There are a number of subjective factors to be considered. Neither defendant has a prior record for the purposes of the operation of the Rail Safety Act . That is a good record in an inherently dangerous industry and speaks well of the defendants' attention to matters of safety. Both defendants are entitled to the leniency usually extended to first offenders. In addition, it is accepted that both defendants entered a guilty plea at the time that the Amended Applications for Order were presented to the Court. In all the circumstances, it is appropriate that they be each accorded a discount of 25 per cent for the utilitarian value of their pleas. Importantly, there has been co-operation with the investigators following this incident and that matter will be taken into account in mitigation. The evidence before the Court establishes that each defendant has demonstrated remorse and contrition for these breaches and has taken responsibility for these breaches. Extensive measures were taken to address the risk demonstrated to exist in the operations of each defendant.

ORDERS 23Having regard to the abovementioned matters, the Court makes the following orders: (a) in relation to Patrick Portlink Pty Ltd t/as Patrick Portlink in Matter No IRC 248 of 2011: (i) the defendant, Patrick Portlink Pty Ltd t/as Patrick Portlink, is found guilty of a breach of s 8(1) of the Rail Safety Act 2008 as particularised in the Amended Application for Order in Matter No IRC 248 of 2011 to which it entered a plea of guilty; (ii) the defendant is fined the sum of $90,000 with half that amount to be paid to the prosecutor by way of moiety; (iii) the defendant is to pay the costs of the prosecutor in a sum as agreed or, in the absence of agreement, as ordered by the Court. (b) in relation to Patrick Container Ports Pty Ltd t/as Patrick Port Logistics in Matter No IRC 251 of 2011: (i) the defendant, Patrick Container Ports Pty Ltd t/as Patrick Port Logistics, is found guilty of a breach of s 23 of the Rail Safety Act 2008 as particularised in the Amended Application for Order in Matter No IRC 251 of 2011 to which it entered a plea of guilty; (ii) the defendant is fined the sum of $47, 000 with half that amount to be paid to the prosecutor by way of moiety; (iii) the defendant is to pay the costs of the prosecutor in a sum as agreed or, in the absence of agreement, as ordered by the Court. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 November 2011