EXPLANATORY STATEMENT

 

Select Legislative Instrument 2008 No. 34

 

Issued by the Authority of the Minister for Infrastructure, Transport, Regional Development and Local Government

 

National Transport Commission Act 2003

 

National Transport Commission (Model Rail Safety (Amendment No. 1) Bill) Regulations 2008

 

Section 52 of the National Transport Commission Act 2003 (the Act) provides that the Governor-General may make regulations, not inconsistent with the Act, prescribing all matters required or permitted by the Act to be prescribed or necessary or convenient to be prescribed for carrying out or giving effect to the Act.

 

The provisions of the Act are supported by the Inter-Governmental Agreement on Regulatory and Operational Reform in Road, Rail and Intermodal Transport (IGA), which serves to formalise the cooperative arrangements between the Commonwealth, States and Territories and define the roles and responsibilities of the National Transport Commission, the Australian Transport Council and the jurisdictions. Clause 14 of the IGA requires the Commonwealth to submit model legislation for inclusion in schedules to regulations under the Act. The proposed Regulations would implement this commitment.

 

The purpose of the proposed Regulations is to amend the model Rail Safety Bill to better reflect the intended policy underpinning the Bill. The amendments do not impose a regulatory change; they are minor and non-controversial changes arising from unintended errors and inconsistencies. The Regulations are in model form to allow for implementation in each jurisdiction using the most convenient and effective regulatory manner available – for instance, the provisions may be incorporated into the law of a jurisdiction by way of amendment of existing legislation.

 

The objects of the Regulations are to:

 

(a)    clarify the intended policy underpinning the model Rail Safety Bill; and

(b)   remove inconsistencies and unintended errors in the model Rail Safety Bill.

 

The National Transport Commission (Model Rail Safety (Amendment No. 1) Bill) Regulations 2008 were developed as a result of consultations between the Parliamentary Counsel Committee (PCC) and the National Transport Commission (NTC). The amending Bill provides for a number of minor amendments and clarifications to the model Rail Safety Bill, which was approved by the Australian Transport Council (ATC) on 2 June 2006. The Bill did not require a Regulatory Impact Statement (RIS) as it did not provide for any changes to the regulatory environment. The NTC utilized the expedited approvals process pursuant to the ATC’s Approval Procedures for Reforms Addressing Administrative Processes or Minor Amendments to Agreed Reforms, which provides for delegated approval for proposals that are minor and non-controversial and which are agreed to unanimously by Transport Agency Chief Executive (TACE) members. This process also removed the need for the usual two-month, formal voting arrangements set out in the Agreements scheduled to the National Transport Commission Act 2003.

 

The draft model Rail Safety Amendment Bill No 1 was sent to TACE members in October 2006. TACE members unanimously endorsed the draft Amendment Bill, with the exception of clause 15(1) which was subsequently omitted from the National Transport Commission (Model Rail Safety (Amendment No. 1) Bill) Regulations 2008. The model Regulations were approved by TACE members on 24 November 2006.

 

Section 7 of the Act provides that the regulations may set out model legislation, being legislation developed by the NTC in accordance with the IGA. Paragraph 7(2)(a) provides that model legislation does not have the force of law. The schedules to the regulations serve only as a repository for nationally agreed reforms, which may then be implemented by jurisdictions.

 

Item 44 of the table to subsection 44(2) of the Legislative Instruments Act 2003 together with item 7 of Schedule 2 to the Legislative Instruments Regulations 2004 operate to provide that the proposed Regulation would not be subject to disallowance. In addition, item 51 of the table to subsection 54(2) of the Legislative Instruments Act 2003 together with item 4 of Schedule 3 to the Legislative Instruments Regulations 2004 operate to provide that the proposed Regulation would not be subject to sunsetting.