Rail Safety National Law (South Australia) Act 2012

The Law imposes obligations on a broad range of persons involved in the railway industry:

• Rail transport operators (rail infrastructure managers and rolling stock operators) face the heaviest obligations: accreditation, safety management systems, interface agreements, reporting, and audit.
• Designers, manufacturers, and suppliers of rolling stock, railway infrastructure, or associated plant must ensure their products are safe for their intended purpose (section 53 of the Schedule).
• Persons loading or unloading freight onto or from rolling stock have a duty to manage risks arising from the loading or unloading (section 54 of the Schedule).
• Officers of an entity that has a safety duty must exercise due diligence to ensure the entity complies (section 55 of the Schedule). This makes directors and senior managers personally accountable.
• Rail safety workers must not perform rail safety work while impaired, and must comply with the safety management system (section 56 of the Schedule).
• Other persons at a railway site must not interfere with the safe operation of the railway (section 119 of the Schedule).

Private siding managers who qualify for exemption from full accreditation must instead be registered (sections 82 to 98 of the Schedule).

Rail transport operators must:

• Hold current accreditation for each category of railway operations they carry out (section 62 of the Schedule). Operating without accreditation is an offence.
• Maintain a safety management system that addresses all identified risks (sections 99 to 104 of the Schedule), review it periodically, and amend it when directed by the Regulator.
• Notify the ONRSR of notifiable occurrences promptly and investigate them (sections 121 to 122 of the Schedule).
• Enter into and comply with interface agreements wherever their operations intersect with those of another operator or with public roads or private roads (sections 105 to 111 of the Schedule).
• Maintain specific plans and programs: security management plan (section 112), emergency management plan (section 113), health and fitness management program (section 114), drug and alcohol management program (section 115), and fatigue risk management program (section 116).
• Assess the competence of rail safety workers (section 117) and keep records identifying those workers (section 118).
• Provide information to the ONRSR on request (section 120 of the Schedule).

Rail safety workers must not carry out rail safety work if impaired by drugs or alcohol, and must comply with the safety management system's requirements concerning their role.

Drug and alcohol testing of rail safety workers is addressed in both the state wrapper (Part 4, sections 9 to 23) and the national law (Part 3 Division 9, sections 122A to 129 of the Schedule). The two sets of provisions operate together. The state provisions define the apparatus, analysts, couriers and testing kits used in South Australia and set out detailed procedures for the collection, analysis, and evidentiary use of breath and blood samples.

The ONRSR has extensive powers. Rail safety officers appointed under section 135 of the Schedule may enter any place, vehicle, vessel or aircraft connected with railway operations (section 143), inspect and copy documents (sections 154 and 157), seize evidence (sections 158 to 164), require persons to provide names and produce documents (sections 168 and 168A), and take samples.

The ONRSR may issue improvement notices requiring a person to remedy a contravention or a likely contravention (sections 175 to 178), prohibition notices immediately stopping unsafe work or operations (sections 179 to 181), and non-disturbance notices preserving an accident scene (sections 182 to 185). The Regulator can also carry out remedial action and recover its costs (sections 193 to 195).

The ONRSR may grant accreditation (section 67), vary it (section 69), cancel or suspend it (section 73), or immediately suspend it where there is a risk to safety (section 74). Similar powers exist for registration.

The Regulator can grant exemptions from the requirements of the Law, either upon Ministerial direction (section 203), in an emergency (section 203A), or on application (sections 205 to 214A). An exemption may be subject to conditions.

Courts may, in addition to criminal penalties, make commercial benefits orders (section 230), supervisory intervention orders (section 231), and exclusion orders (section 232) against convicted offenders.

The penalty scheme is tiered by culpability:

Category 1 (section 58 of the Schedule). A person who has a safety duty and, without reasonable excuse, recklessly engages in conduct exposing an individual to a risk of death or serious injury or illness faces: for an individual, $300,000 or five years imprisonment or both; for a body corporate, $3,000,000.

Category 2 (section 59 of the Schedule). A person who fails to comply with a safety duty and the failure exposes an individual to a risk of death or serious injury or illness faces: for an individual, $150,000; for a body corporate, $1,500,000.

Category 3 (section 60 of the Schedule). A person who fails to comply with a safety duty (whether or not anyone is exposed to risk) faces: for an individual, $50,000; for a body corporate, $500,000.

Breach of a condition or restriction of an accreditation or registration also attracts a penalty under sections 78 and 98 of the Schedule respectively. Carrying out railway operations without accreditation is a separate offence under section 62.

Infringement notices may be served for lower-level breaches, allowing offenders to pay a fixed penalty in lieu of prosecution (Part 9 of the Schedule, sections 233 to 242).

The ONRSR may also accept enforceable voluntary undertakings (sections 251 to 257 of the Schedule), which operate as alternatives to prosecution.

Applications for accreditation must satisfy the Regulator that the applicant has the competence and capacity to manage the relevant risks (section 65 of the Schedule). There is no prescribed statutory timeframe for determination, but the Regulator may impose conditions. Annual fees are payable under section 76, with the Regulator having power to increase fee amounts under section 76A and to waive fees in appropriate cases under section 77.

Improvement notices must specify a reasonable period for compliance (section 178). Prohibition notices take effect immediately upon service (section 181). Non-disturbance notices may specify a period during which the site must not be disturbed.

Review of Regulator decisions is available: first by internal review by the Regulator under section 216 of the Schedule, then by appeal to the Administrative and Disciplinary Division of the District Court of South Australia (section 217, read with section 5(1)(a) of the state wrapper).

Proceedings for offences must be commenced within three years of the commission of the offence, or within one year of the ONRSR becoming aware of the offence, whichever is the later (section 218 of the Schedule).

Occupational health and safety legislation. Section 48 of the Schedule preserves the operation of OHS legislation but section 49 ensures no double jeopardy where conduct is an offence under both the Rail Safety National Law and OHS law. Section 6 of the state wrapper similarly prevents double punishment across participating jurisdictions.

Other South Australian administrative statutes. Section 7 of the state wrapper expressly excludes the application of the Freedom of Information Act 1991, Ombudsman Act 1972, Public Finance and Audit Act 1987, Public Sector Act 2009, Public Sector (Honesty and Accountability) Act 1995, State Procurement Act 2004 and State Records Act 1997 to the ONRSR (save where a State entity exercises functions under the Law).

The national regulations. Part 3 of the state wrapper (section 8) applies the national regulations made under the Rail Safety National Law, subject to limited South Australian disallowance provisions. The Subordinate Legislation Act 1978 (SA) does not apply to the national regulations except for sections 10, 10A and 11.

Civil liability. Section 246 of the Schedule confirms that compliance or non-compliance with the Law does not itself create civil liability. Civil claims for personal injury arising from railway operations may be pursued under the general law of negligence.

Road Traffic Act 1961 (SA). The state wrapper drug and alcohol provisions in Part 4 incorporate defined terms from the Road Traffic Act 1961 (SA) for breath analysing instruments, approved blood test kits, and the analyst approval regime, creating a consistent testing framework across road and rail.

Non-transferability of accreditation. Section 79 of the Schedule states that accreditation cannot be transferred or assigned. If a rail transport operator sells or transfers its railway operations, the purchaser must apply for its own accreditation before taking over operations (section 80). Failing to do so exposes the new operator to criminal liability.

Operators bound by interface agreements they did not negotiate. The Regulator has power to give directions about interface coordination under section 110 of the Schedule, which means an operator may be required to enter into or amend interface agreements even if it does not agree with the other party.

Safety management system amendments on direction. Section 104 of the Schedule allows the ONRSR to direct an operator to amend its safety management system. Non-compliance is an offence. Operators must build internal systems that are capable of rapid amendment to accommodate Regulator directions.

Immediate suspension without notice. Section 74 of the Schedule allows the Regulator to immediately suspend an accreditation where there is an immediate risk to safety, without prior notice or opportunity to be heard. The practical consequence is that operations must cease immediately.

Personal liability of officers. Under section 55 of the Schedule, every officer (director, secretary, senior manager) of a duty-holder entity must exercise due diligence to ensure the entity complies with its safety duties. A Category 1 conviction of an officer can result in up to five years imprisonment. Officers cannot rely on delegation or absence from the decision as a defence if they failed to exercise the required diligence.

Drug and alcohol testing following notifiable occurrences. Section 16 of the state wrapper requires compulsory blood testing following a prescribed notifiable occurrence. A rail safety worker involved in such an occurrence may be required to provide a blood sample regardless of consent.

Train safety recordings. Section 131 of the Schedule restricts the disclosure of train safety recordings (black boxes). Evidence of the recording is generally not admissible in civil proceedings (section 132). Parties pursuing civil claims arising from rail incidents need to seek alternative evidence.

Freight operator building new line. A company seeking to construct and operate a new freight railway in South Australia must apply for accreditation under sections 62 to 67 of the Schedule before commencing operations. Its application must demonstrate that it has a safety management system, appropriate competence and capacity, and the capability to comply with all obligations. Constructing a line without proceeding through accreditation exposes the operator to a Category 3 offence (up to $500,000 for a corporation) and potentially a Category 2 offence if workers are exposed to risk.

Train driver returned positive breath test. A rail safety worker who tests positive to a breath analysis under sections 12 to 16 of the state wrapper at the prescribed concentration of alcohol faces an offence under section 128 of the Schedule. The evidentiary certificates produced by the authorised person and analyst are admissible in criminal proceedings and are presumptive evidence of the matters they certify under section 20 of the state wrapper. The worker cannot rebut the presumption except by presenting an independent blood test that demonstrates the instrument over-read.

Interface between high-speed passenger rail and level crossing. A new passenger rail operator and a road authority must negotiate an interface agreement under section 107 of the Schedule addressing the risks at level crossings where the railway intersects a public road. If they cannot agree, the Regulator may give directions under section 110. Failure to comply with the agreement or the directions exposes both parties to enforcement action.

Regulator discovers systemic maintenance failures. The ONRSR, following an audit under section 133 of the Schedule, discovers that an operator has failed to maintain a significant number of track structures in accordance with its safety management system. The Regulator issues a prohibition notice under section 179 stopping train movements on the affected sections until remediation is complete. If remediation does not occur, the Regulator may carry out remedial action itself under section 193 and recover the costs from the operator under section 195.