All aboard: Western Australia’s rail safety laws to follow national lead

By Nick Beech and Holly Gretton

Western Australian rail operators need to be aware that the state’s rail safety laws will be changing. For those rail operators with operations in other Australian states and territories, these are likely to be welcome changes, as WA is currently the only jurisdiction whose rail safety laws are not consistent with the other states and territories.

Current state of play

The Rail Safety National Law (RSNL) was passed in South Australia in 2012. The RSNL is a Schedule to the Rail Safety National Law (South Australia) Act 2012. All states and territories, except for WA, introduced an adoption act to adopt and modify the RSNL in that state or territory. The effect of introducing an adoption act is such that any changes made by South Australia to the RSNL and associated regulations are automatically adopted in that state or territory.

Rather than introduce an adoption act, WA currently has ‘mirror legislation’ in place – Rail Safety National Law (WA) Act 2015 (Current WA Act) – which means the WA Parliament is required to legislate any changes made to the RSNL in order for them to have effect in WA. Due to the cumbersome nature of the mirror legislation approach, WA’s rail safety laws have been ‘falling out of step with the RSNL as it applies in all other jurisdictions.’[1] In particular, WA has not adopted eight legislative amendment packages to the RSNL that have been passed by the SA Parliament since 2015. As a result, the Current WA Act does not include certain recent provisions of the RSNL.

Proposed changes

To bring WA in line with the rest of the country, the WA Parliament has introduced the Rail Safety National Law Application Bill 2023 (WA Bill). The WA Bill introduces the ‘adoption’ approach in WA, meaning that the RSNL and any subsequent amendments will apply as a law of WA, subject to being disallowed by Parliament.

If the WA Bill is passed, some of the changes that will be implemented are as follows.

Processes regarding drug and alcohol testing

The Current WA Act contains specific local provisions for alcohol and drug testing in connection with rail operations that will not be affected by the proposed changes.

However, the proposed changes will introduce a new duty on the person with control or management of railway premises to facilitate drug and alcohol testing of rail safety workers by authorised persons. Examples of this include allowing the authorised person entry to the railway premises and making the rail safety worker available for testing.

If the processes regarding drug and alcohol testing are not complied with, there will be penalties for non-compliance. Specifically, it will be an offence:

  • to fail to facilitate or give reasonable help to an authorised person in carrying out testing without reasonable excuse with a maximum penalty of $10,000;
  • to hinder or obstruct an authorised person in exercising powers in relation to drug and alcohol testing with a maximum penalty of $10,000;
  • to directly or indirectly assault, threaten or intimidate, or attempt to assault, threaten or intimidate an authorised person or person assisting an authorised person with a maximum penalty of $50,000 or two years’ imprisonment or both; and
  • to interfere or tamper with, or destroy, a sample of a person’s oral fluid, urine or blood unless by the direction of an authorised person or in accordance with legal requirements with a maximum penalty of $10,000.

Regulator’s enhanced powers to produce documents

It is proposed that rail safety officers be able to direct a person to produce documents:

  • required to be kept by them under the RSNL;
  • prepared under the RSNL for the management of rail infrastructure or the operation of rolling stock that the officer reasonably believes is necessary for the officer to consider to understand or verify a document required to be kept under the RSNL; or
  • held by, or under the control of the person relating to the carrying out of railway operations.

This change will mean that rail safety officers can obtain documents without the present limitation of having to first enter railway premises.

A direction will be subject to the rail safety officer giving a warning that it is an offence to fail to comply with the direction, unless the person has a reasonable excuse, with the offence attracting a maximum penalty of $5,000.

Where to next?

The WA Bill was introduced and presented for first and second reading in the Legislative Assembly on 22 June 2023. We expect the WA Bill will ultimately be passed as introduced. Accordingly, rail safety operators should make themselves aware of the changes to be introduced and ensure systems are updated to ensure compliance.

[1] Explanatory Memorandum - WA Bill, page 1.


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