On 25 November 2008 the NSW Legislative Council passed the Rail Safety Bill 2008 (NSW) (“Bill”) to replace the Rail Safety Act 2002 (NSW). This Bill was introduced as part of the Inter-Governmental Agreement for Regulatory and Operational Reform in Road, Rail and Intermodal Transport and will implement the national model rail safety legislation. The Bill is awaiting assent. The NSW Government has announced that it intends for the Act to commence operation by 31 December 2008.

Two of the main changes in the Bill, building upon the safety reforms already implemented following the Glenbrook and Waterfall rail accidents, include allocating the requirements for accreditation under the Bill to rail infrastructure managers and rolling stock operators and providing for general duties to ensure public safety. In the event of any conflict between these general safety duties under the Bill and the safety duties under the Occupational Health and Safety Act 2000 (NSW) (“OH&S Act”), the OH&S Act will prevail.

The Bill also introduces the following key changes:

• Although the general safety duties will be subject to the notion of complying to the extent ‘reasonably practicable’, the onus, like in the OH&S Act, will be on the defendant to show it was not reasonably practicable to comply with the duty.
• Certain contractors will no longer be required to be accredited under the Bill. Instead, these contractors will be subject to the general safety duties outlined in the Bill and any contractor management requirements contained in the safety management systems of the accredited operators for whom they work.
• Co-ordination will be required between regulators across jurisdictions to reduce costs and bureaucratic red-tape.
• Rail safety workers will need to carry a form of identification which will enable competencies and training to be easily verified.
• Increased interface obligations between private sidings operators, rail operators and road authorities.
• Operators of private rail sidings will be required to be registered under the Bill.

Two items retained from the Rail Safety Act 2002 (NSW) (but which are not included in the national model legislation) are regulations dealing with the random testing for drugs or alcohol of persons carrying out rail safety work and the maintenance of existing fatigue management provisions. The Independent Transport Safety and Reliability Regulator (ITSRR) will continue to have a role in this regard.

Please click on the following link for the full text of the Bill : Rail Safety Bill 2008 (NSW).