The Motor Vehicle Law Qld Noticeboard is your definitive resource for both civil and criminal aspects of motor vehicle law news as it occurs. Frequently updated by respected barristers Simon Cilento and Andrew West, the Noticeboard keeps you informed of the  latest key legislative and case developments relating to Queensland motor vehicle law. For more comprehensive information and analysis into these and other matters, Thomson Reuters' subscription service, Motor Vehicle Law Qld, the complete guide dedicated to motor vehicle law in Queensland, is available online, in looseleaf or on ProView eSub.

April 2017

 LEGISLATION

Updated 18 April 2017

Adoption of rail safety national law – Rail Safety National Law (Queensland) Act 2017

Commencement: This Act commences at the end of 30 June 2017.

The Rail Safety National Law (Queensland) Act 2017 will repeal the Transport (Rail Safety) Act 2010 and adopt the Rail Safety National Law for Queensland (see ss 4 and 64). Sections 5-14 of the Act contain adaptive provisions for the introduction of the National Law into Queensland. Interestingly, the Law is made not to apply to monorails (s 9). The sole remaining monorail in Queensland closed in early 2017.

Much of the Act is concerned with drug and alcohol testing procedures involving breath, saliva and blood analysis (ss 15-57). Understandably, because what will be involved is a change from a State based system to a National system, there is a wide range of transitional provisions to enable operators to seamlessly shift to the new regime.

The Rail Safety National Law is contained in the Schedule to the Rail Safety National Law (South Australia) Act 2012 (SA). The Law is intended to make provision for a national system of rail safety in Australia. Part 1 of the Law deals with various preliminary matters. Part 2 covers the establishment of a National Rail Safety Regulator, including the functions and objectives of the office, its procedures, financing, staffing and other matters.

Part 3 deals with the regulation of rail safety under 10 separate division headings. The first provides for interpretation in relation to the management of risks and the concept of what is “reasonably practicable”. Division 2 addresses the interplay between the Law and the Work Health and Safety Act 2011. It eliminates the possibility of double jeopardy. Division 3 imposes a scheme of rail safety duties on a principle of shared responsibility and accountability. There is a range of duties owed by rail transport operators, the designers, manufacturers and suppliers of rail equipment, people loading or unloading freight and rail safety workers. Officers must exercise due diligence. It is an offence to fail to comply with a safety duty. There are 3 categories of such offences, the most serious of which is Category 1 – reckless conduct. Division 4 deals with accreditation of railway operators under the headings of the purpose and requirement for accreditation, procedures for granting it, variation of it and cancellation, suspension or surrender of it. This is a significant part of the law because the Australian rail industry covers a wide range of operators from commercial heavy haul industrial railways down to volunteer operated tourist and heritage lines. Division 5 deals with the registration of private siding managers. Safety management is dealt with in Division 6 under headings covering safety management systems, interface agreements, other safety plans and programmes, provisions relating to rail safety workers and compliance by others. Divisions 7-11 deal respectively with information about rail safety, investigations and reporting by rail transport operators, drug and alcohol testing by the Regulator, train safety recordings and the audit of railway operations by the Regulator.

Part 4 of the Law is directed at securing compliance. It commences with a guiding principle and then has divisions dealing with rail safety officers, their functions and powers, their powers of entry, compensation for damage they cause and offences in relation to them. The related topic of enforcement measures is covered by Part 5. These embrace improvement notices, prohibition notices, non-disturbance notices, remedial action by the Regulator and injunctions.

Exemptions from the Law are dealt with in Part 6. They may be granted by the relevant Minister or the Regulator.

Rights of review of decisions are covered by Part 7 while Part 8 deals with general liability and evidentiary matters. Under this head there are provisions relating to such matters as legal proceedings, discrimination against employees, offences and court-based sanctions. Part 9 covers infringement notices. The Law ends with some general provisions in Part 10 including such important matters as civil liability, codes of practice and enforceable voluntary undertakings. There is provision for National Regulations.

Further Reading:

• Cherti v Queensland Rail [2014] QIRC 220. This was an unfair dismissal case involving a driver whose train overshot a platform. He set the train back and then proceeded on past a signal at danger. The signal had automatically gone to danger in the initial overshoot. Procedural fairness was a significant issue in the case. The driver was reinstated.

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