13 Oct 2016

National rail safety regulatory harmonisation is coming to Queensland

By Shae McCartney, Patrick Lawler

Rail safety harmonisation should benefit rail transport operators through consistent national requirements and a decreasing regulatory burden.

Rail safety laws in Queensland are being overhauled to align with the rest of the nation, with the introduction of the Rail Safety National Law (Queensland) Bill 2016 into State Parliament last month.

The implementation of the Bill will achieve the outcomes sought by the Intergovernmental Agreement made in 2011 for the harmonisation of rail safety regulation and investigation.

The Rail Safety National Law currently applies in all States and Territories of Australia other than Queensland. 

The Rail Safety Bill at a glance

The Bill will apply the Rail Safety National Law as a law of Queensland and retain the co-regulatory approach to rail safety.

The Bill will repeal the Transport (Rail Safety) Act 2010 (Qld) and amend numerous other Queensland Acts, notably the:

  • Coal Mining Safety and Health Act 1999;
  • Mining and Quarrying Safety and Health Act 1999; and
  • Work Health and Safety Act 2011,

to make it clear that the Rail Safety National Law prevails over those Acts to the extent both apply.

The Queensland Rail Transit Authority Act 2013 is also amended to clarify the operation of the Rail Safety National Law to Queensland Rail Ltd and the Queensland Rail Transit Authority.

There are a number of changes for Queensland from its repealed predecessor, the major differences being:

An independent single national rail safety regulator

Rail safety in Queensland is currently regulated by the Department of Transport and Main Roads. Under the Rail Safety National Law, the Office of the National Rail Safety Regulator (ONRSR) administers rail safety and an office will be established in Queensland. This represents a significant administrative change in rail safety regulation.

The ONRSR objectives are to facilitate the safe operations of rail transport, exhibit independence, rigour and excellence in carrying out its regulatory functions and promote safety and safety improvement as a fundamental objective in the delivery of rail transport in Australia.

Rail safety investigations

As part of the National Rail Safety Investigation Reforms project, on 20 January 2013 the Australian Transport Safety Bureau (ATSB) became the national, no-blame safety investigator for rail in participating States.

Currently, the State conducts safety investigations on intrastate track and the ATSB investigates on interstate track. No-blame rail safety investigations on intrastate track will in the future be conducted by the ATSB. It will also have a role in selectively investigating some accidents where the outcome of those investigations might enhance rail safety.

Cost benefit analysis

The ONRSR will be required to undertake a cost-benefit analysis if a particular decision is likely to result in significant costs or expenses to rail transport operators (RTOs). However, whatever the outcome of the analysis, it will not necessarily prevent a decision being made.

Duties for loaders and unloaders

Currently RTOs have the primary safety responsibility for the loading or unloading of rolling stock, with no specific obligation imposed on persons engaged in loading or unloading of rolling stock. The new Bill recognises that there is a shared responsibility for safety and a new duty (and penalty regime) will be introduced for parties which load or unload rail freight.

Drug and alcohol management

Drug and alcohol testing of rail safety workers currently extends only to train drivers, who may be tested by Queensland Police Officers. 

The National Rail Safety Law will extend drug and alcohol testing to all rail safety workers (including train drivers) and it will be an offence if such work is to be carried out or has been carried out by persons with an alcohol reading of greater than 0.00. This policy will be supported by ONRSR undertaking random testing of rail safety workers.

Fees and penalties

The ONRSR will now collect annual accreditation fees in order to cover the costs of undertaking its regulatory functions, and there will be separate rail safety investigation fee paid by rail transport operators to cover the rail safety investigations carried out by ATSB.

Penalties for offences under the Rail Safety National Law will be aligned nationally and with Workplace Health and Safety legislation. This will result in a number of significantly higher penalties.


Persons who are accredited under the current regime will be taken to be accredited under the Rail Safety National Law for the railway operations.

Next steps for the national Rail Safety Bill 2016

The introduction to Queensland of the Rail Safety National Law should benefit RTOs (particularly those operating interstate) through consistent national requirements and a decreasing regulatory burden.

A commencement date for the Act has been set for 30 June 2017 if it is passed.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.