EXPLANATORY STATEMENT

 

Select Legislative Instrument 2008 No. 277

 

Issued by the Authority of the Minister for Infrastructure, Transport, Regional Development and Local Government

 

National Transport Commission Act 2003

 

National Transport Commission (Model Rail Safety (Amendment No. 2) Bill) Regulations 2008

 

Section 52 of the National Transport Commission Act 2003 (the Act) provides that the Governor-General may make regulations, not inconsistent with the Act, prescribing all matters required or permitted by the Act to be prescribed or necessary or convenient to be prescribed for carrying out or giving effect to the Act.

 

The provisions of the Act are supported by the Inter-Governmental Agreement on Regulatory and Operational Reform in Road, Rail and Intermodal Transport (the IGA), which serves to formalise the cooperative arrangements between the Commonwealth, States and Territories and define the roles and responsibilities of the National Transport Commission, the Australian Transport Council and the jurisdictions. Clause 14 of the IGA requires the Commonwealth to submit model legislation for inclusion in schedules to regulations under the Act. The proposed Regulations would implement this commitment.

 

The Regulations provide amendments to the National Transport Commission (Model Legislation - Rail Safety Bill) Regulations 2006 (the Model Rail Safety Bill). The amendments relate to a number of changes. Firstly, they refine the existing provisions in the Model Rail Safety Bill relating to obligations on rail transport operators to co-operatively manage rail interfaces. Secondly, they set out new obligations on rolling stock operators, rail infrastructure managers and road managers to jointly manage risks arising from level crossings and other road/rail interfaces. Lastly, the Regulations amend some unintended errors and insert a number of new definitions to improve the operation of the Model Rail Safety Bill. The Regulations are in model form to allow for implementation in each jurisdiction using the most convenient and effective regulatory manner available – for instance, the provisions may be incorporated into the law of a jurisdiction by way of amendment of existing legislation.

 

The objects of the Regulations are to:

 

(a)    establish complimentary obligations on rail transport operators, rail infrastructure managers, road authorities and the owners/managers of private roads to jointly manage the safety risks of locations where two or more railways meet, or where roads and railway interface (this includes level crossings, where rail goes over a road and where a road goes over a rail bridge, and in areas where rail and road are in close proximity);

 

(b)   impose new requirements on road and rail infrastructure managers to enter into agreements (referred to as ‘Interface Agreements’) that contain measures that provide for the management of safety risks where roads and railways intersect;

(c)    enable parties to jointly or separately identify and assess safety risks, or to adopt the identification and assessment carried out by another party;

 

(d)   remove inconsistencies and unintended drafting errors in the Model Rail Safety Bill; and

 

(e)    insert a number of new definitions into the Model Rail Safety Bill.

 

Provisions proposing obligations on road managers to jointly identify, assess and control risk at road and rail crossings were firstly included in the exposure draft of the Model Rail Safety Bill released for public comment in October 2005. Concerns raised by State and Territory road authorities and representatives of local government organisations led the National Transport Commission (the Commission) to exclude the proposed provisions from the Model Rail Safety Bill at that time. Instead, the Commission sought the in-principle support of the Australian Transport Council to develop additional provisions to impose complementary obligations on road and rail infrastructure managers to manage road-rail interfaces jointly. The Commission began developing the new obligations in June 2006, when Australian Transport Ministers approved the model Rail Safety Bill, as well as the Commission’s recommendation to develop the additional provisions relating to road/rail interfaces.

 

The proposed amendments are a product of a lengthy policy development process that has included substantial consultation at all stages of their development. Successive iterations of these legislative provisions were prepared with the assistance and upon the advice of the national Rail Legislation Advisory Panel (comprised of representatives from Commonwealth, State and Territory departments responsible for transport, the Australian Rail Track Corporation Ltd and the Rail Tram and Bus Union) and the Rail Safety Package Steering Committee (comprised of representatives from the same organisations as those participating on the Rail Legislation Advisory Panel). The Rail Safety Package Steering Committee also prepared information materials to assist with consultation.

 

There have been three formal rounds of consultation. During these rounds of consultation, local government associations were contacted and invited to comment on the provisions. Engagement with local government occurred at various points during the development process and was facilitated through the peak body, the Australian Local Government Association. Representatives of local government attended information sessions held in capital cities both when: (1) the exposure draft of the Model Rail Safety Bill was released in October 2005; and (2) when the exposure draft of the model Regulations and draft RIS for consultation were released for public comment during August and September 2006. However, in early 2007 it was identified that there had not been sufficient engagement with local government organisations.

 

Representatives of State and Territory transport agencies (members of the steering committee) took on the responsibility to engage in targeted consultation with state level local government associations and their members. This resulted in valuable input in March 2007. This was followed by the Commission directly undertaking consultation with representatives of state level local government associations. State and Territory road authorities were provided with opportunities to comment each time the proposed provisions have been forwarded to Transport Agency Chief Executives (TACE). This combined with the public rounds of consultation, provided State and Territory road authorities with ample opportunities to comment and be involved in the refinement of the proposed provisions.

 

The proposed Regulations were circulated for public comment in August 2006 along with a draft Regulation Impact Statement (RIS). The RIS was assessed and approved by the Commonwealth Office of Regulation Review. The Regulations were approved by the Australian Transport Council on 14 December 2007.

 

Section 7 of the Act provides that the regulations may set out model legislation, being legislation developed by the NTC in accordance with the IGA. Paragraph 7(2)(a) of the Act provides that model legislation does not have the force of law. The schedules to the regulations serve only as a repository for nationally agreed reforms, which may then be implemented by jurisdictions.

 

Item 44 of the table to subsection 44(2) of the Legislative Instruments Act 2003 together with item 7 of Schedule 2 to the Legislative Instruments Regulations 2004 operate to provide that the proposed Regulation would not be subject to disallowance. In addition, item 51 of the table to subsection 54(2) of the Legislative Instruments Act 2003 together with item 4 of Schedule 3 to the Legislative Instruments Regulations 2004 operate to provide that the proposed Regulation would not be subject to sunsetting.