Transitional Provisions Rail Safety National Law (Queensland) Act 2017 (Qld) -

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Insight 24 April 2017

Transitional Provisions Rail Safety National Law (Queensland) Act 2017 (Qld)

WHO SHOULD READ THIS

Organisations involved in rail and rolling stock design, development and operations in Queensland.

THINGS YOU NEED TO KNOW

From 1 July 2017 the new Rail Safety National Law will apply in Queensland with certain transitional provisions.

WHAT YOU NEED TO DO

Be aware of relevant transitional provisions and have a plan in place to ensure a smooth transition to the new regime.

Recently, we provided a brief overview of the Rail Safety National Law (Queensland) Act 2017 (Qld) (Act) which, operationally, takes effect from 1 July 2017 and will apply the Rail Safety National Law (RSNL), with minor modifications, as a law of Queensland. To view this update please click here.

Transitional provisions

Part 6 of the Act provides for the transitional provisions and the Act also allows for transitional regulations to be made to help facilitate the change to the RSNL. Any transitional regulations made will expire within three years of the commencement of the Act.

Sections that apply immediately

Some key aspects of the RSNL will take effect immediately (i.e. without a transitional period) on 1 July 2017. The following table provides some guidance on what to look out for in this respect.

Duty	Effect
Notifiable occurences	From 1 July 2017 Reportable Category A incidents must be reported to the Australian Transport Safety Bureau.
Directions and Notices	Previous issued notices (e.g. improvement notices, prohibition notices and enforceable undertakings) and other directions in force as at 1 July 2017 will continue to apply. Any actions taken pursuant to them will continue to be recognised.
Safety duties	General safety duties under the RSNL will apply from 1 July 2017 including new safety duties for loaders and unloaders of freight on or from rolling stock.
Drug and alcohol testing	Changes to testing (and who can be tested) will come into effect on 1 July 2017, including reducing the blood alcohol limit from 0.02% to 0.00%.
Mining operations and railway safety	Where an above-ground mining railway could be regulated by the RSNL and relevant mining safety legislation, the Act makes it clear that the RSNL will apply to the exclusion of the mining safety legislation. While the RSNL will not apply to a railway in a mine that is underground, or chiefly underground, that is used in connection with the performance of mining operations it will apply to the operation of above-ground railways, resulting in the need for accreditation (subject to the transitional arrangements).

Transitional arrangements

Some key aspects of the transitional provisions are outlined below. It is important to note that the transitional arrangements for those holding or entitled to exemptions under the current regime will be somewhat different, and the impacts will depend on the type of exemption.

Status	Transition Period
For entities currently accredited	All those accredited under the current regime for railway operations of a stated scope and nature will automatically be taken to be accredited under the RSNL for the same operations. A party that is already accredited under the current regime, and continues to comply with their existing conditions, cannot be prosecuted for a failure to meet the new or changed conditions of the RSNL during a two year transition period.¹ After that period, compliance with the conditions of accreditation under the RSNL is required.
For entities reliant on related body corporate exemptions	Those related bodies corporate (of entities that are accredited) that have an exemption under the current regime and continue to comply with any existing conditions under that regime cannot be prosecuted for a failure to meet the new or changed conditions of the RSNL for the duration of a two year transition period.² The exempt entity would however need to reapply to be granted an exemption under the RSNL before the expiry of this period or alternatively become accredited in that period to continue operations.³
For entities with Private Sidings exemptions	The regime for private sidings under the RSNL is different again, as the Act itself now states that rail infrastructure managers of a private siding are not required to be accredited except for railway operations involving the operation of rolling stock.⁴ There is no longer a requirement to obtain an ‘exemption notice’ as exists currently. Previously, private sidings were individually registered if they connected to an accredited railway. This changes under the RSNL as the rail infrastructure manager is now required to hold the registration. The change means a rail infrastructure manager may, under the RSNL, have one registration pertaining to multiple private sidings. There is provision to rollover the registrations under the current regime to become registrations under the RSNL.⁵ Those with existing registrations also cannot be prosecuted for a failure to meet the new or changed conditions of the RSNL during a two year transitional period, so long as their actions would not constitute an offence under the current regime.⁶
For entities with particular railway exemptions	Those who were granted an exemption for particular railway operations under the current regime have a three year transitional period.⁷ The exempt entity would however need to reapply to be granted an exemption under the RSNL before the expiry of this period or alternatively become accredited in that period to continue operations.⁸
For entities who will only now be caught under the new regime	For entities involved in railway operations to which the current regime did not apply, but which the RSNL will require to be accredited or to apply for an exemption, there will be a transitional period of three years from commencement of the RSNL for the person to seek and obtain the new accreditation or the new exemption.⁹ In addition, the transitional provisions also explain how those with current submissions for accreditation or exemption will be transitioned to the RSNL.

Where to next?

The Minister for Transport, Jackie Trad, has stated that the:

‘National Rail Safety Regulator and the Department of Transport and Main Roads will work together to provide rail operators with information and educational resources to guide them through the changes.’¹⁰

To assist with the transition, there will be an industry information session for all accredited operators in Queensland scheduled for 5 May 2017. Details will be provided by the Office of the National Rail Safety Regulator to accredited operators in Queensland.

Stay tuned

Our next article in this series will focus on rail automation.

¹ _{Rail Safety National Law (Queensland) Act 2017 (Qld) s101.}
² _{Rail Safety National Law (Queensland) Act 2017 (Qld) s67(2).}
³ _{See note in Rail Safety National Law s62(1).}
⁴ _{Rail Safety National Law s82(1).}
⁵ _{Rail Safety National Law (Queensland) Act 2017 (Qld) s75(3)-(4).}
⁶ _{Rail Safety National Law (Queensland) Act 2017 (Qld) s76(1).}
⁷ _{Rail Safety National Law (Queensland) Act 2017 (Qld) s68(4).}
⁸ _{Rail Safety National Law s205.}
⁹ _{Rail Safety National Law (Queensland) Act 2017 (Qld) s66.}
¹⁰ _{The Honourable Jackie Trad, ‘National reforms to improve rail safety’ (Media Release, 28 February 2017).}

This publication covers legal and technical issues in a general way. It is not designed to express opinions on specific cases. It is intended for information purposes only and should not be regarded as legal advice. Further advice should be obtained before taking action on any issue dealt with in this publication.

Transitional Provisions Rail Safety National Law (Queensland) Act 2017 (Qld)

WHO SHOULD READ THIS

THINGS YOU NEED TO KNOW

WHAT YOU NEED TO DO

Transitional provisions

Sections that apply immediately

Transitional arrangements

Where to next?

Stay tuned

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Transitional Provisions Rail Safety National Law (Queensland) Act 2017 (Qld)

WHO SHOULD READ THIS

THINGS YOU NEED TO KNOW

WHAT YOU NEED TO DO

Transitional provisions

Sections that apply immediately

Transitional arrangements

Where to next?

Stay tuned

About the authors

In other news

Queensland’s new project trust regime to commence on 1 March 2021

McCullough Robertson strengthens its National Construction and Infrastructure team with key Partner hire in Brisbane

New Industrial Relations Laws – What it means for you

Payment Times Reporting Scheme