Rail Safety National Law - The confusion between it and the WHS Legislation/OHS Act
Risk! Engineers Talk Governance
Episode 7, Season 1
In this episode of Risk! Engineers Talk Governance, due diligence engineers Gaye Francis and Richard Robinson discuss the Rail National Safety law and the confusion with how it stands in relation to WHS legislation, and why if you satisfy the requirements of the WHS legislation, you have, in turn, satisfied the requirements of the Rail Safety National law.
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Transcript
Megan (Producer) (00:02):
In this latest episode of Risk! Engineers Talk Governance, due diligence engineers Gaye Francis and Richard Robertson talk about the Rail Safety National Law. This follows Gaye's recent conference paper presentation at CORE, the Conference of Rail Excellence recently held in Melbourne. We hope you enjoy the episode, if you do, please subscribe across your favourite podcast platform, give us a rating and also check out the other episodes. Enjoy.
Gaye Francis (00:37):
Hi Richard. Welcome back for another podcast session.
Richard Robinson (00:40):
Brisk, isn't it?
Gaye Francis (00:41):
It is very brisk today! Today we thought we'd talk about Rail Safety National Law, and this follows on from two things. We currently give a Rail Safety National Law and OHS legislation workshop through Engineering Education Australia. And I also gave paper recently at the CORE conference, Conference on Rail Excellence. And there was a lot of interest in that and SFAIRP. So what we'll do today is we'll outline what the legislation actually is, what it means, and how you go about satisfying that legislation. So it's almost a promo for the course and the paper which we will attach at the end of the session as well. So you (Richard) can do the formal part.
Richard Robinson (01:30):
And you'll just chip in as usual.
Gaye Francis (01:31):
That's the one!
Richard Robinson (01:32):
I got that plan.
(01:34):
Well, first thing is just to understand what the Rail Safety National Law is. Now, just from a philosophical viewpoint, it was explained to us by a bunch of lawyers. There are two basic ways to have harmonised legislation and we need this process because Australia's basically a federation; basically each state is its own little country. Like Victoria had its own Navy for a while. And when we federated, they gave up the minimum powers necessary to create the federation. And that's one of the reasons why we have high court, because we had state Supreme Courts, because they were the High Court in each of the little nations -- 'cause we had our own ambassadors to London, and all the rest of it. And when we federated, in order to put our Superior Court in, we called it the High Court, rather than stopping the term Supreme Court and changing it all around. One of the things we were supposed to sort out was rail safety or rail harmonisation. The legislation sort of says we're gonna have standard gauge and we could go through a little brief history of how we got to the different gauges if anybody's got a passing interest, as explained to me by a Queensland rail engineer a while back.
Gaye Francis (02:34):
But I guess what we're saying is that has yet to be achieved.
Richard Robinson (02:38):
But you see, if we wanted to harmonise rail safety, and literally last time I looked, if you're driving a train from Sydney to Melbourne, for example, and once you cross the border, what means "go" in one state, apparently means "stop" in the other state, which has always mystified me a bit and we haven't resolved that one yet. So kudos to train drivers, I think is the first point!
(03:00):
Now, if you want to get around this problem of harmonisation, you have to have an inter government agreement. And that means like GST, all the states, and all the ministers from the states of the Commonwealth all have to agree and sign to take it forward. And in terms of actually harmonising legislation, there are two core ways you can do it.
(03:20):
You can do it like the model WHS legislation where somebody creates a model WHS Act and everybody says: Yep, we'll adopt that model act and we'll make little additions or ammendments to it to suit ourselves, which is what's actually happened. Or you can do it the way they did the Rail Safety National Law, which is one parliament passes legislation and then all the other parliaments say: Yes, that's our legislation subject to these modifications.
(03:43):
Now in the case of Victoria, for example, the Rail Safety National Act that went through South Australia, which is the one everyone agreed to adopt, that was 191 pages. And the Victoria modifications is 160 pages, which tells you something about the way in which this implementation has been done.
Gaye Francis (04:00):
So there's a lot of confusion 'cause you almost gotta read both lots, both the South Australian Act and then the (Victorian) modifications to get a full understanding of what the law is in that particular state.
Richard Robinson (04:12):
Yes. And it gets really quite confusing. I mean even with the model harmonized WHS legislation, you know, they have Section 18 and then they put numbers after it when they insert their own thing. You know, so for example, in the Commonwealth Act, there's an expression in there that with regards to Department of Defense and nothing in this Act shall interfere with the defense of the realm, basically. Meaning that if we're at war then the WHS legislation, well and preparation for these things, which is what the Defense Department is, it has a certain weight on the scales, which other civilian operations wouldn't have.
(04:50):
Now, the whole point of the Rail Safety National Law was it was meant to implement the core concepts under the model WHS legislation as it applies to railways.
(05:02):
That gets particularly confusing, because when they sort of say: What's the difference? Well, you know, just for example, Section 48: If a provision of the Occupational Health and Safety legislation applies to railway operations, that provision continues to apply and must be observed in addition to this Rail Safety National law. So they're basically saying the WHS Act applies. The Rail Safety National doesn't stand 'instead of', it stands 'as well'. And if the provision of this law is inconsistent with the provision of the Occupational Health and Safety legislation, the provision of the Occupational Health and Safety legislation prevails to the extent of any consistency; which says it's superior to, quite specifically. And compliance with this Rail Safety National law, with any requirement imposed to the law is not of itself a defense of proceedings of an offense against Occupational Health and Safety legislation. And evidence of relevant contravention of this Rail Safety National law is admissible in any proceedings for an offense against the Occupation Safety and Health legislation, which basically means it's superior.
Gaye Francis (06:11):
The health and safety legislation is superior.
Richard Robinson (06:14):
So we find it all a little bit strange because one starts to wonder why on earth you bother having a Rail Safety National in the first place, if all it is going to do is to apply to rail matters as opposed to any other safety obligation. But obviously if two trains run into each other, or a level crossing accident occurs, the provisions of the WHS legislation still apply. So it's curious...
Gaye Francis (06:36):
Our understanding is that the rail regulators then have agreements with the health and safety regulators to prosecute under the OHS and WHS legislation for rail matters. Is that correct?
Richard Robinson (06:48):
Yes, except when you have a complicated matter like the level crossing accident of Wallan Victoria, whereas a New South Wales train running on ARTC tracks. So it's being heard in a Victorian Magistrate's Court.
Gaye Francis (06:58):
Yes, yes.
Richard Robinson (07:00):
Which means it's rather difficult to actually separate out who's gonna be responsible for these things.
(07:06):
But see the other point though, is that in most jurisdictions now, they've actually stuck Criminal Manslaughter provisions in under the WHS legislation. So if they wanted to get you under criminal provisions, they'd have to go under the WHS legislation, not under the Rail Safety National law. Although obviously the five years for recklessness, new or made or let it happens, still applies under the OHS or the...
Gaye Francis (07:29):
the Rail Safety or WHS legislation.
Richard Robinson (07:31):
Or both. The main differences as far as we can tell is that that the Rail Safety National law applies to rail safety work. It obviously creates the regular <inaudible> in Adelaide. And it obviously enables the accreditation of railways, the ARO and all sorts of things. And it promotes safety management systems as applied in the rail business. So that is sort of helpful, because otherwise how would you do that if you didn't have a separate separate Act? But the core duties are identical, and the WHS legislation takes precedence and all the terms and ways that we can see.
(08:11):
Now that sort of leads you on to: What are you actually then going to do? Well, our observation is that if you wanna satisfy your duties under the Rail Safety National law, you've basically gotta satisfy your duties of WHS legislation. There'd be very little point in just satisfying the Rail Safety National law and then being beaten to pulp under the WHS legislation, you would think.
Gaye Francis (08:29):
<affirmative>. So in our terms, we are really saying the SFAIRP approach (so far as reasonably practical) is a modern definition of SFAIRP, and in railway safety terms, it asks the question: If you're affected in any way by a railway network, passenger, driver, at a level crossing or a railway worker, how would you expect that network and rolling stock to be designed and managed in order for it to be considered safe? So we're really applying the SFAIRP process to any of those rail safety matters.
Richard Robinson (09:01):
Well, that's right. The duty (of care) is the same, so that's what you do. I mean there's a few other points we could probably make, but I actually don't know that it actually, you know, it actually comes back to our basic observation that the WHS legislation was a direct spin-off of due diligence as a defense against negligence in the Common law, and they elevated the Statute law and then they continued that elevation through into the Rail Safety National law, so it became far more peculiar and probably effective or focused, I suppose is probably the way to put it, to rail operations. And that's fine. We don't have a philosophical problem with that. But you know, it's a bit like, you know, when we had that incident in Wallan with that level crossing accident there, I mean, which jurisdiction? Well, it happened in Victoria, so it has to be in Victoria, even though, as I said, it's...
Gaye Francis (09:48):
...had different parties involved.
Richard Robinson (09:51):
All different parties. Yeah. So, yeah, it's complicated.
Gaye Francis (09:55):
So I guess that's the difference then between doing a compliance order or a compliance review with, you know, to each letter of the legislation and achieving the requirements of SFAIRP.
Richard Robinson (10:07):
Well, that's always been our point. There's no point in actually... I mean, I keep coming across lawyers who tell Boards that what you need to do is a compliance audit. And it's probably true that if you've done a compliance audit, it probably will be difficult to prove beyond reasonable doubt on a statutory basis, that the Board and the Board members were liable. Will that make their organisation safer?
Gaye Francis (10:30):
Probably not.
Richard Robinson (10:31):
And if you want to be safe, what you've gotta do first of all, is manage things to satisfy the Laws of Nature. Why won't the two trains collide? And then having done that and demonstrated to yourself in engineering or scientific or however terms you wish to think about it: How have you've done that? Functional safety terms, 61508, and so forth. What makes you confident that you've done that in a way which would satisfy post-event legal scrutiny? I mean, you may recall when we did the functional safety assessment on the I IEC 61508 for how two trains would get past each other in New South Wales on a single line track, your (Gaye's) first job, as I recall, was pretty much going through every crossing every time there was a...
Gaye Francis (11:12):
That trains could interact.
Richard Robinson (11:14):
Interact, yeah. Confirming that the watchdog would prevent that interaction from improperly occurring. I don't think it was one of your favourite jobs, but you did it! <laugh>
Gaye Francis (11:25):
And it did take a very long time.
Richard Robinson (11:27):
And I would remind you that in the times that when we were the certifiers and our signature R2A's signatures were sitting on the functional safety assessment in orange of who was then the train controller in New South Wales, there were no rail accidents in that time for any of the mechanisms that we are talking about under the, well, it was TOCS, train order control system, and then it turned to Tmax train management and control system.
Gaye Francis (11:50):
So with any of our rail safety jobs that we do, and in-line with the WHS legislation and the Rail Safety National law, we still always go through our four processes. What's our argument for completeness? Have we got all of key credible critical issues on the table? For all of those, what are the controls that you can put in place.
Richard Robinson (12:11):
The possible practical precautions, those things that can be technically done?
Gaye Francis (12:15):
And this is probably one of the things where railways fall down a little bit. They're very narrow looking in that they're not often looking for new technology and new solutions to apply to railways and the application to railways. But the legislation requires you to look for those further controls.
Richard Robinson (12:33):
Are we allowed to give that example of the GPS system on the trains in New South Wales? You see, without going through the detail of how R2A got involved in this thing, but basically what happened was that they put in this new train control system and it had a whole lot of checks in it and so forth, well, at least it was supposed to have it. And then they had a near miss incident. And apparently it was some redundancy in the software and the processing and all these sort of things. And it turned out that for various reasons, the IT people hadn't quite got the work done. And the near miss occurred, and I wasn't actually at the meeting, but I heard about it afterwards, that, you know, the question was: Well, we had a redundant system here, why didn't it work?
(13:14):
And the answer was from the IT people was: Well, we couldn't get it working, so we just let it go with just the one system. And apparently that was a fairly chill meeting. To cut a long story short, that's where R2A turned up. And the first thing we said: Well, you need a way to independently verify where the trains are. And the obvious thing to do, in this day and age, and this was 20 years ago now, was GPS. And everyone sort of looked at each other and said: Retrospectively and retrofitting GPS on all trains, the freight trains that traveled through New South Wales rural, that'd be hard! That'd be a long (process). How can we do that? Well, we quite literally found out a week later, in order to make the train control system work, you had to have good radio communications with the trains. In order to prevent ghosting between the radio towers i.e. having trains on the same frequency, talking on the same frequency, they have towers on different frequency with different geographic coverage. In order for the train to know which tower and which frequency it was talking to, it had to know where it was. And in order to know where it was, the radio engineers, the communication engineers had put GPS on the train.
Gaye Francis (14:21):
So this control already existed!
Richard Robinson (14:23):
Well, that function already existed. Which was just absurd. Now we only found that a week later.
(14:28):
So the next thing to do is to say: Well, let's do a trial. And the trial was basically whenever the driver pushed a push to talk, the GPS location was in code and sent off to train control. And that meant we could actually formulate a watchdog, which was a safety critical computer platform by the defense people in Adelaide, running a safety critical language called Ada, which was very small piece of software, which gave at least a good overview of what the train and train controllers were actually doing with the train management system. And that was the way in which it was certified. Which you (Gaye) spent a lot of your time sorting out <laugh>.
Gaye Francis (15:02):
And I guess that's the third step, isn't it? Determining what the reasonableness of each of those further controls is. You know, is it reasonable to do?
Richard Robinson (15:10):
Well then the (conference) paper, because we do a lot of work in marine pilotage, all the marine pilots have personal pilotage units these days, which have matured vigorously over the last 30 years. They're all battery controlled. You could quite literally give a driver a marine pilotage personal pilotage unit and the train driver would have a genuine, independent knowledge of where they were and if the communication <inaudible> working properly, what all the environmental factors around the track would be, where all the track gangs are and everything. And because the marine pilotage guys have got so good at, it's looking at, I think, all eight satellite systems now -- Galileo, the Europeans, the American GPS, the Russians, the Indians, the Japanese, the Chinese. There are so many satellite navigation systems and they know to their centimeter where they're, and they also have to put in, you know, G3 and G4 and G5 communications and they're all toughened up and robust to prevent hacking and all sorts of things these days. And to do that for train drivers, probably $3,000 a unit and probably at least $50 million to code all rails train and rail tracks to handle that sort of, where are we and what are we doing here sort of thing.
Gaye Francis (16:24):
But that's one of the other points, isn't it? Technology's become, or has advanced so much in the last 10 and 15 years that what may not have been reasonable 20 years ago may entirely be reasonable now.
Richard Robinson (16:37):
Ubiquitous, I think is the word you're seeking.
Gaye Francis (16:40):
Yes. And then the last step, of course, is to make sure you've got a quality control system to make sure that what you say you're gonna do remains in place and remains robust and effective.
Richard Robinson (16:52):
Yeah. People keep forgetting. I mean, safety means you don't want it to go wrong. But from a legal point of view, liability only rises because of inadequate, insufficient, or failed precautions. It doesn't arise because something's risky per se. That the nonsense. People keep talking about riskiness and I think, they don't what they're talking about. The question is SFAIRP'iness not riskiness,
Gaye Francis (17:12):
I don't know that SFAIRP'iness is actually a word, but...
Richard Robinson (17:16):
SFAIRP isn't a word either, actually <laugh>.
Gaye Francis (17:20):
So I hope you've enjoyed the podcast today. We just wanted to run through that there is some confusion with the Rail Safety National law and its interaction with the WHS legislation. But all the rail organisations that we've talked to said that if you satisfy the requirements of the WHS legislation, you have, in turn, satisfied the requirements of the Rail Safety National law.
(17:44):
So thank you for joining us again. Thanks Richard. And, we'll see you next time.
Richard Robinson (17:50):
Thanks, Gaye.