Rail Safety Regulation

Introduction

As part of national competition reform, access to Australia’s government-owned railway infrastructure began in April 1993 with the commencement of third-party freight operations on the interstate rail track by the National Rail Corporation (NRC). This was the start of major structural changes within the rail industry that saw most freight operations privatised and a separation of ‘Above Rail’ operations (freight and passenger trains) and ‘Below Rail’ activities (track ownership, maintenance and construction), access to the rail network to run trains and allocation of train paths). 

In July 1996, Federal and State governments signed an Intergovernmental Agreement (IGA) to legislate terms for national safety and accreditation processes. This aimed to establish a cost effective, nationally consistent approach to rail safety to ensure that there was no barrier to the entry of third party operators based on:

1. safety and accreditation of railway owners and operators;
2. mutual recognition of accreditation between accreditation authorities;
3. development and implementation of performance based standards;
4. greater accountability and transparency; and
5. facilitating competition, and technical and commercial innovation consistent with safe practice.

Despite ongoing national reform since 1996, each State and Territory across Australia continues to have its own Rail Safety Regulator. More recently, the National Transport Commission (NTC) and representatives of all jurisdictions and the rail industry have developed a national model Rail Safety Bill (2006) and supporting model Rail Safety Regulations which were expected to be in place by the end of 2008 in all mainland States and Territories. This followed an extensive review of the current co-regulatory approach to rail safety in Australia.

The rail industry dismisses the continued need to retain State borders for rail operations and has long advocated for a single national rail safety regulator.
Earlier in 2008 Australia’s Transport Ministers, through the Australian Transport Council (ATC), agreed there is a need for a national approach to transport policy.

The initial steps to reform will focus on proposals for a single national system for the regulation, registration and licensing of heavy vehicles, a national rail safety regulator and a national rail safety investigator. In July 2009, the Council of Australian Governments (COAG) agreed: (Endnote 4)

1. ‘implement national regulation for maritime safety, rail safety and heavy vehicles; this will mean improved safety and reduced costs and regulatory burden for Australian transport companies as well as reduced costs of export and trade.’ 
2. ‘to develop a national rail safety regulatory system with further consideration of the scope and form of the regulator following receipt of advice at the end of 2009 from the Standing Committee on Transport on specific safety requirements within jurisdictions, especially in relation to urban systems and the interface with interstate and freight operations.’

The timetable provides for COAG approval of a national plan by mid-2011.

Rail Safety Regulation

The Australian rail industry is currently governed by seven State and Territory Rail Safety Regulators each with different regulations and processes to service a small population of 21 million and a 38,550 km rail network. The USA has one regulator for 220 million people. There are also three independent Investigatory bodies that undertake ‘just culture’ investigations. Compliance investigation is undertaken by all seven Rail Safety Regulators.

Rail safety regulation comprises many components some of which are briefly summarised in the following overview.

Legislation - National model Rail Safety Bill 2006 (Endnote 1)
This model legislation was developed by the National Transport Commission, approved by the ATC and supported by the rail industry and includes the following features:

1. general duties that apply to responsible parties and establish a ‘chain of responsibility’ for rail safety;
2. risk management criteria based on the requirement to ensure so far as is reasonably practicable, that rail operations are safe;
3. detailed requirements for the development and contents of safety management systems;
4. clear criteria for the accreditation of rail infrastructure managers and rolling stock operators;
5. clearer responsibilities for the Rail Safety Regulator and strengthened audit and enforcement powers; and
6. a hierarchy of sanctions and penalties where breaches of rail safety requirements occur.

This model legislation receives legal effect when reproduced in each State and Territory jurisdiction’s legislation.  However, the existing State and Territory rail safety jurisdictions have retained variances to the National Model Rail Safety Regulations which appear difficult to remove under existing arrangements.

National Model Rail Safety Regulations 2006 (Endnote 2)
The Regulations specify more detailed requirements that are not appropriate for inclusion in the national model Bill and mandate regulatory requirements applicable to parties responsible for rail safety. They draw significantly on the requirements specified in the National Accreditation Package (endorsed by the ATC in 2004) and the Australian Rail Safety Standard – 4292.1 (2006).

Role of the Regulator

The Rail Safety Regulator is responsible for administering the rail safety legislation in their State or Territory. The responsibilities of rail safety officers appointed by the Rail Safety Regulator, include monitoring compliance with the requirements for safety management systems through a program of annual safety audits. These officers also have powers to enter and inspect railway premises, to conduct an investigation, seize evidence and issue certain directions and notices where a breach of the rail safety law is found. (Endnote 1)

Despite rail industry participation in the development of the national model legislation and regulations for rail safety for implementation by the end of 2008, the industry remains committed to further reform to achieve a single national rail safety regulator. This view is supported by the House of Representatives Standing Committee on Transport and Regional Services Report (July 2007) – The Great Freight Task (Recommendation #21) and the following recent statements. (Endnote 3)

‘Lack of a single national rail (safety) regulator, differing legislation between jurisdictions and minimal harmonisation of standards, operating rules, procedures and systems continue to waste scarce resources and is an impediment to cross-border operation, overall rail competitiveness and industry productivity’
‘Uniformity of rail safety regulation remains a major issue notwithstanding finalisation of the model rail safety legislation initiative. It would appear that each jurisdiction will be adopting different positions on what is supposed to be uniform legislation.’

The adoption of different positions on what is supposed to be uniform legislation hampers progress towards harmonisation and imposes administrative and cost burdens on operators by having to be compliant for multiple jurisdictions.

The rail industry acknowledges the COAG July 2009 decision to further consider the establishment of a national rail safety regulator and a national rail safety investigator. However, it is disappointed with the proposed mid-2011 target date for approval of a national plan and has called for COAG to reconsider its decision and to fast track the review of options for consideration before the end of 2009 or early 2010 at the latest.

Accreditation of Train Operators

Once a train operator has been provided access under an access agreement, the train operator must be accredited by the ‘Rail Safety Regulator’ in each State in which they operate. If operating from Brisbane to Perth, this means accreditation by five State Regulators although the principle of mutual recognition applies.

Accreditation attests that an operator has demonstrated to the satisfaction of the ‘Rail Safety Regulator’ that the operator has the capacity and competence to manage the risks to safety associated with the rail operations for which accreditation has been sought. There is no prescription on how operators identify the risks associated with their operations and they can choose the methodology most appropriate for identifying risks.

Further detailed information on Accreditation requirements, guidelines and processes is available from the individual State ‘Rail Safety Regulator’ (or their equivalent) websites. The ARA website www.ara.net.au provides quick links to these websites.

Rail Industry Safety and Standards Board (RISSB)

RISSB is wholly owned by the Australasian Railway Association (ARA) and is responsible for development and management of rail industry national standards, rules and codes of practice. RISSB is accredited by Standards Australia as a Standards Development Organisation and all new standards commenced by RISSB from 1 July 2007 will be published as Australian Standards. This accreditation provides the rail industry with assurance that RISSB standards are developed using a rigorous and transparent process.

The RISSB Board receives advice from four Standing Committees (Operations; Rolling Stock; Infrastructure; and the Wheel-Rail Interface Committee). These Standing Committees oversees relevant development projects involving wide consultation including Rail Safety Regulators. For more information see www.rissb.com.au

Australian Code of Practice (ACOP)

The initial Code of Practice was developed by the Commonwealth to address safe working rules and infrastructure standards for the interstate rail network. Ownership of this Code of Practice was transferred to the ARA-owned Code Management Company (now RISSB) in July 2003.

The ACOP now consists of four different categories of document – Rules; Standards; Code of Practice; and Guidelines. For more information about RISSB development activities associated with the ACOP see www.rissb.com.au

Endnotes
1.  National Transport Commission Fact Sheet, July 2006 – New National Rail Safety Laws: An Overview. 
2.  National Transport Commission website www.ntc.gov.au - Rail Safety: Legislation and Regulation.
3.  Rail Productivity Information Paper, March 2008 – prepared by John Hearsch Consulting Pty Ltd for NTC – p22.
4.  COAG Meeting 2 July 2009 – Communique

Revised July 2009