From 1 July 2017, Queensland will have the same rail safety laws as the rest of Australia (known as the ‘Rail Safety National Law’ (RSNL)).
Key takeaways for miners
- To the extent that the RSNL applies to a mining railway that would otherwise be regulated by other mining safety legislation in Queensland, the RSNL applies in place of the other mining safety legislation.
- Operators of above-ground railways that are used solely for mining operations and are not connected to a mainline freight or passenger railway were not previously regulated by the Transport (Rail Safety) Act 2010 in Queensland. Under the RSNL, such operators are required to be accredited – there is however a 36-month transitional period in which such an operator may gain accreditation under the RSNL.
- The RSNL introduces a duty for persons who load or unload freight on rolling stock to ensure, so far as is reasonably practicable, that such operations are carried out safely and so as to ensure the safe operation of rolling stock.
Rail Safety National Law
On 28 February 2017, the Queensland Parliament passed the Rail Safety National Law (Queensland) Bill 2016 (Qld) (the Bill). The purpose of the Bill is to adopt the Rail Safety National Law as a law of Queensland and to establish the Office of the National Rail Safety Regulator (ONRSR) as the rail safety regulator in Queensland.
The Rail Safety National Law (RSNL) was created following an agreement of the Council of Australian Governments (COAG) to deliver a consistent approach to rail safety policy and regulations (and to remove the inconsistencies) between the previous state and territory rail safety regimes.
Section 3 of the RSNL sets out the objects of the RSNL, which include (among others):
- establishing the ONRSR and setting out the functions and powers of the ONRSR;
- establishing a national system of rail safety, including by providing a scheme for national accreditation of rail transport operators in respect of railway operations;
- providing a system for the:
- effective management of safety risks associated with railway operations; and
- continuous improvement of the safe carrying out of railway operations;
- promoting public confidence in the safety of transport of persons or freight by rail;
- promoting the provision of advice, information, education and training for safe railway operations; and
- promoting the effective involvement of relevant stakeholders, through consultation and cooperation, in the provision of safe railway operations.
Adoption of the RSNL brings Queensland into line with all of the other states and territories in Australia (which have all previously adopted the RSNL as law).
Queensland has adopted the majority of the national model law provisions from South Australia (see Schedule 2 of the Rail Safety National Law (South Australia) Act 2012 (SA)). The differences between the model law and Queensland’s adoption are minor, and include:
- an adjusted fee for rail safety investigations;
- a requirement that all ‘national regulations’ (i.e. regulations approved by the Ministers of all states and territories under section 264 of the RSNL) applying to the Queensland adoption of the RSNL are subject to Queensland parliamentary scrutiny; and
- replication of the drug and alcohol testing provisions contained in the Transport Operations (Road Use Management) Act 1995 (Qld).
The Bill also repeals the Transport (Rail Safety) Act 2010 (Qld) and makes a number of consequential amendments to other pieces of Queensland legislation.
Mining safety legislation displaced
To the extent that a mining railway could be regulated under both the RSNL and the Coal Mining Safety and Health Act 1999 (Qld) or the Mining and Quarrying Safety and Health Act 1999 (Qld), the RSNL applies to the exclusion of the relevant mining safety legislation.
The RSNL will commence in Queensland on 1 July 2017. Rail operators that were not previously regulated by the Transport (Rail Safety) Act 2010 (Qld) in Queensland have a 36-month transitional period to gain accreditation under the RSNL. For example, the repealed Transport (Rail Safety) Act 2010 (Qld) did not apply to railways used for mining operations and not connected to a mainline freight or passenger railway. The RSNL has narrowed this exemption to operators of underground railways used in connection with mining operations. Therefore, operators of above-ground railways that are not connected to a mainline freight or passenger railway are now required to obtain accreditation under the RSNL (but have a 36-month transitional period to obtain accreditation).
New duty for persons who load or unload rolling stock
The RSNL imposes a duty on persons who load or unload rolling stock in relation to the transport of freight by railway to ensure, so far as is reasonably practicable, that the loading or unloading is carried out safely and to ensure the safe operation of rolling stock.
To satisfy the duty, persons who load or unload rolling stock must demonstrate that they have exercised “due diligence” (as defined in the RSNL) to ensure that the person complies with the duty or obligation, including by taking reasonable steps to ensure that the person has available for use, and uses, appropriate resources and processes to eliminate or minimise risks to safety.
Failure to comply with the duty to load and unload rolling stock safely is subject to the same fines imposed on other duty holders under the RSNL; being a fine within a range of A$50,000 to A$300,000 for an individual or A$500,000 to A$3,000,000 for a corporation.
The Bill received royal assent from the Governor of Queensland on 9 March 2017.
The full text of the Bill is available here.
The contents of this publication are for reference purposes only and may not be current as at the date of accessing this publication. They do not constitute legal advice and should not be relied upon as such. Specific legal advice about your specific circumstances should always be sought separately before taking any action based on this publication.
© Herbert Smith Freehills 2020