Best practice rail safety regulation
|Collections||ANU School of Regulation and Global Governance (RegNet)|
|Title:||Best practice rail safety regulation|
|Keywords:||rail safety regulation|
|Publisher:||The Australian National University, The National Research Centre for OHS Regulation (NRCOHSR)|
|Series/Report no.:||Working Paper (National Research Centre for OHS Regulation (NRCOHSR), The Australian National University) ; No. 31|
Regulating rail safety, and in particular, achieving regulatory best practice, is no easy task. The disaggregation and privatisation of the rail system, and the broader industry restructuring that took place in the 1990s have produced an industry that is structurally diverse, characterised by technological and corporate complexity and subject to competitive pressures as never before. Moreover, the multiplicity of different rail organisations that has emerged from this process – ranging from large, sophisticated commercial operators through to small heritage railways - has resulted in considerable variation in available resources, skills, experience and understanding, and in safety performance itself. There is much evidence to suggest that there are serious deficiencies both in the rail industry’s approach to safety and in the regulatory response to it, although the nature of these deficiencies varies considerably from State to State. In New South Wales, the Glenbrook and Waterfall accidents highlighted a series of major problems that (according to Hopkins analysis of the Glenbrook enquiry) include: a rule focussed culture [which] tended to deaden awareness of risks; the organisational and occupationally fragmentation of the railway system; a powerful culture of punctuality - of ‘on time running’ - whose side effect was to undermine safety; a railway culture that was profoundly risk blind, even risk denying; and a rail culture that disempowered its employees. Victoria too, although it has not experienced the same sorts of high profile accidents as New South Wales, nevertheless confronts safety and regulatory problems of considerable magnitude. For example, in 2004 a Department of Infrastructure report documented the absence of any sustained improvement in rail incident trends and a number of serious rail incidents that have exposed deep deficiencies in the current regulatory system. According to the Report, the latter include: the absence of any clear definition of the respective responsibilities of the industry and the Safety Regulator; no explicit obligation to demonstrate that a Safety Management System (SMS) is capable of systematically and continually controlling and minimising the risks that have been identified and assessed by a rail organisation; inadequate specification within the SMS and no mandated performance standard for its scope or quality; a lack of penalties for disregarding non-conformance or non-compliance reports, and a lack of guidance for industry and the regulator for the conduct of safety investigations. The limitations of safety arrangements in other jurisdictions are less well documented but there is reason to believe that they are also, for the most part, substantial. More broadly, it is doubtful whether either the industry or government has come to terms with the implications of privatisation or the shift from “largely Government owned entities, which often combined the roles of policy maker, regulator and service deliverer … [to] privatised or corporatised entities [which] have to some extent separated these roles”.7 Nor have effective measures been taken to re-create a safety culture within the industry, notwithstanding that the disaggregation of the rail system in the 1990s was “largely responsible for the destruction of the previously existing safety culture, which was ‘fundamental’ to maintaining optimal safety”. Couple all this with the industry’s inherent vulnerability to high severity albeit low probability, accidents, and the extent of the regulatory challenge, is easy to grasp. That challenge involves essentially three issues: (i) what sort of standards should be imposed upon rail enterprises; (ii) what role(s) should the regulator take with regard to enforcement; and (iii) what roles should there be for workers and third parties. We address these issues in the following sections, with a particular focus on the first two questions, which in the context of the contemporary rail industry in Australia are both controversial and crucial to its future safety performance. In doing so, we assume the goals of rail safety regulation to include (as specified by the National Transport Commission): public trust; the safety of rail users, the general public and rail employees; the need to balance safety and efficiency; and to deliver regulatory oversight at lowest possible cost, to which we would add continuous improvement and best industry practice. This article is a synthesis. It draws on the author’s own work on occupational health, major hazard facilities and environment regulation, on that of colleagues at Regulatory Institutions Network at Australian National University most notably, Elizabeth Bluff, Andrew Hopkins and Christine Parker, and on recent reports on rail safety regulation, in seeking to develop a framework for best practice rail safety regulation.
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