National Railway Safety Regulator Bill: Deliberations

Meeting report

TRANSPORT PORTFOLIO COMMITTEE
6 March 2002
NATIONAL RAILWAY SAFETY REGULATOR BILL: DELIBERATIONS

Chairperson: Mr J P Cronin (ANC)

Relevant Documents
National Railway Safety Regulator Bill
National Railway Safety Regulator Bill-Version 2 [Document A]
Explanatory Memorandum on the National Railway Safety Regulator Bill-Version 2 [Document B]
(documents awaited; please email [email protected] for a copy)

SUMMARY
The National Railway Safety Regulator Bill distinguishes between the equally important issues of operational safety and personal security. The unavoidable overlap between these two aspects and the need for healthy and productive intergovernmental relations to address this matter was discussed.

The Committee discussed the definition of 'security' extensively. In addition considerations of the collection of information by the regulator and the composition of the board of the regulator. Furthermore, the public disclosure of minutes of the Board, concerns with advertisement of the application for a safety permit; and the definition of "railway occurrence" and its effect on the operational safety/personal was deliberated on.

MINUTES
The Committee worked with two documents; the National Railway Safety Regulator Bill - Version 2 [Document A] and the Explanatory Memorandum on the National Railway Safety Regulator Bill-Version 2 [Document B]. Document A consists of the substantive issues regarding the safety-security nexus, and the distinction between operational safety and personal security raised during the public hearings.

Mr Mervyn Panzera, Project leader of the Railway Regulator Team Office, explained the measures planned by the Department of Transport to tackle this matter, and then a page-by-page analysis of Document A, together with National Railway Safety Regulator Bill - Version 1 (the Draft Bill) will be engaged. The Chair then invited Mr Panzera to begin his address.

Briefing
Mr Panzera concluded the presentation of Part 1 on page 1 of Document B.

The Chair thanked Mr Panzera for the insight, and stated that it provided Members with a general view of the plans of the Department with regard to the separation of rail safety and rail security.

Discussion
Mr J H Slabbert (IFP) inquired whether the issue of reinstating the Transit Police Service (TPS) is relevant here at all, and its effect, if any, on the matter of rail safety.

The Chair replied that the Draft Bill encourages the forging of healthy intergovernmental relations between the National Railway Safety Regulator (the regulator), which deals primarily with operational safety, and the other equally important aspects of rail safety and security that are dealt with by other government departments. This relationship will improve the current standards of South African rail safety.

Mr Slabbert expressed concern at the increasing amount of Ministers involved in this initiative, in matters specific to the Department of Transport especially.

The Chair reminded Mr Slabbert that this is encouraged in the spirit of co-operation and healthy intergovernmental relations mentioned earlier. This does not deny that the various Ministers may indeed get in each other's way, but this is an important part of the puzzle.

Mr J J Niemann (NNP) agreed with Mr Slabbert, and reminded the Committee that the TPS have to be retrained and receive specialised training, and cannot be merely reinstated.

The Chair noted this concern, but reminded Members that this is not the primary purpose of the Draft Bill, as it deals with operational safety.

Mr Panzera added that the fundamental premise of the Draft Bill is that it is only concerned with operational safety, and matters of security are not dealt with.

Mr S B Farrow (DP) contended that Clause 32 on page 18 of Document A seems to reduce the number of regulations made in terms of safety matters. Furthermore, considerations of acts of terrorism are specifically excluded from this provision.

Mr Panzera replied that the intention is that such acts be incorporated under security matters, but if this is not readily apparent then it has to be amended to properly reflect this.

Mr Farrow stated that the maintenance of the infrastructure could also be covered by those Departments that also have their own maintenance programmes, and this would foster the establishment of intergovernmental relations.

Mr Panzera responded that all this is included under safety matters, and Mr Farrow is assured that the operators cannot evade these provisions because they have to declare to the regulator the precise manner in which they intend maintaining these systems via their Security Management System (SMS). These are measured against set standards, and are held accountable to meet these standards.

Mr Farrow stated that he understood the distinction between rail safety and security, but really wanted to know how the regulator would, in terms of Clause 30(b) on age 17 of Document A, hold the operator accountable here in this large category. It is suggested that enforcement would be made much easier if each were expressly spelt out, as in the original Clauses 30(b)-(d) on page 17 of Document A.

Mr Panzera informed Mr Farrow that the clause relates to regulations that may or may not be required, and are made by the Minister himself. Secondly, the proposed definition of "operator" on page 4 of Document A lists the three categories of persons regulated here. The aim in Clause 30 is not to spell out every conceivable scenario, but provides that if a contravention of that clause is established, the operator would be forced, via regulation, to comply with the standards set in the SMS.

Mr A R Ainslie (ANC) suggested that a legal duty of care should be inserted in the Draft Bill here, and this power should not be delegated to regulations.

Mr Panzera replied that the third star under the Preamble in Document A provides that the operators are primarily responsible here, and it is the subsequent responsibility of the regulator to ensure the operators comply with this.

Mr Slabbert requested clarity on the precise means by which the Draft Bill practically impacts rail safety in South Africa.

The Chair responded that this is an important concern, and the regulator will achieve this via its powers to investigate rail occurrences as defined in the proposed Clause 1 of the Draft Bill, and through its oversight function. The Member is assured that the regulator does not work with the operator but oversees its functioning, and this effectively makes cover-ups impossible. The regulator is also a permanent entity, such as the Canadian model, and serves to ensure adequate safety measures are in place, and also ensure that the plans proposed by the operators to maintain these are accurate and complied with. This removes the concern raised during the public hearings that the players in the game are the referees.

Mr Farrow suggested that new amendments to the Preamble in Document A regarding "occupational health and safety" be expressly defined in the Draft Bill, so that terminology consistent with OHASA is used.

The Chair agreed, and inquired of Advocate Thembi Mbangeni, the State Law Advisor, whether such a definition has to be expressly acknowledged in the Draft Bill.

Advocate Mbangeni replied that as the term is only used once to clarify a point, there is no need to define it.

Mr Farrow informed Advocate Mbangeni that the term does in fact appear more than once, as in point 2.4 on page 2 of Document B.

Mr Panzera informed Members that before the inclusion of Clause 34, the railway safety inspector had to acquire permission via a warrant before lawfully inspecting the property under the control of the operator. This has been changed by the proposed Clause 34 on page 18 of Document A.

The Chair stated that, during the public hearings, the Council for Scientific and Industrial Research (CSIR) raised concern with the need for South African rail systems to conform with those of other jurisdictions within the Southern African Development Community (SADC).

Mr Farrow informed members that this concern was highlighted during the debates on the compatibility of the various systems, and it is not entirely sure how rail systems in those other SADC countries would be suspended should they not meet the set standards. It is thus suggested that a viable verification system is set in place. It must be considered whether this is an ongoing or final process.

The Chair replied that this surely has to be an ongoing process, as the Draft Bill provides that the regulator has to "work towards harmonising [these systems]".

Mr Farrow agreed.

Mr Ainslie suggested that "promote" may even be employed here.

Advocate Mbangeni agreed with Mr Ainslie, as this emphasises the fact that it is a continuous process.

Ms P Coetzee-Kasper (ANC) suggested that the wording of the phrase "with a role to play" on page 1 of Document A is incorrect, and should be amended to provide "have a role to play".

Advocate Mbangeni agreed.

The Chair suggested "that have a role to play".

Clause 1: Definitions and interpretations
"Constitution"
The Chair noted that this definition has been removed from Document A.

Mr Farrow requested an explanation for its removal.

Advocate Mbangeni informed the Member that this term is already defined in the Interpretations Act, and the general rule is that once a term has been defined in this Act, it does not have to be defined in any subsequent piece of legislation.

Mr Ainslie stated that the Draft Bill itself does not contain a definition of "Constitution", and this thus creates confusion as to which "Constitution" is being referred to here. It should thus be defined.

The Chair called for the text of the Draft Bill to clearly state which Constitution is being referred to.

"Human factors"
The Chair noted that this definition has been inserted in Clause 1.

Mr Ainslie inquired whether this definition would assist the Federation of Unions of South Africa (FEDUSA) with their concern regarding working hours.

Mr Panzera replied that it would apply indirectly, because the Department believes that this concern is sufficiently covered by both the Basic Conditions of Employment Act and the Labour Relations Act.

"Operator"
The Chair noted the objections raised by FEDUSA regarding this proposed definition on page 4 of Document A and page 5 of the Draft Bill.

Mr Panzera stated that the proposed definition of "person" on page 5 of the Draft Bill includes an "operator".

The Chair disagreed, but stated that this definition would be reconsidered at a later stage.

"Safe railway operation"
The phrase ", and does not include security" has been added.

"Security"
This definition has now been included in the Draft Bill.

"Safety"
The Chair noted that the insertion of these two definitions on page 5 of Document A clarifies matters significantly. Does the Draft Bill contain a definition of "occurrence", as used in this new definition?

Mr Panzera informed the Chair that this is covered under the proposed definition of "railway occurrence" on page 4 of Document A.

Mr Slabbert asked for the reason behind the inclusion of the phrase "excludes criminal activity" in this definition.

The Chair explained that this reinforces the conceptual distinction in this Draft Bill between "security", which would include criminal matters, and "safety", which covers accidents, injuries and so forth as detailed in the respective definitions of those terms.

Mr Farrow agreed with Mr Slabbert because, for example, the (popular) theft of copper wire is a criminal act and constitutes a safety concern, but could also cause injury to commuters, which would then bring it within the scope of "security" as well.

The Chair understood the concern, and called for the phrase "excludes criminal activity" to be removed from the proposed definition of "safety" on page 5 of Document A.

Mr Panzera agreed to effect the amendment.

Mr Slabbert contended that the major shortcoming here is that the personal safety of the commuters are of lesser importance than the safety of the rail property.

The Chair disagreed with Mr Slabbert. The safety of commuters is a very important concern, because if the copper cables are stolen, the operator has to have an adequate backup system and fail-safes in place to ensure the rail system still operates at acceptable standards of safety. The role of the regulator here is to better monitor and regulate such systems, and in this way alone it is indirectly involved in ensuring commuter security.

Advocate Mbangeni stated that the term "criminal activity' has been adequately defined in other pieces of legislation, and therefore does not have to be expressly defined in the Draft Bill.

Mr Slabbert understood this.

The Chair replied that the State Law Advisors are not expected to be aware of this, but there is simply not enough legislation to adequately deal with rail crimes specifically, and this is reason for the inclusion of this matter in the Draft Bill.

Clause 1(5)
The Chair requested clarity on this provision, to be found on page 5 of Document A.

Mr Panzera informed the Chair that "standards" include "rules", and thus the phrase "any rule" was deleted from this definition.

Clause 1(6)
Mr Farrow suggested that the effect of the encroachment of informal housing settlements on the rail system has to be addressed here, but at a later date if preferred.

Clause 1(7)
Mr Ainslie reminded members that the CSIR presentation inquired whether "death" is included under "threat" in this provision. Is it possible to defined "death" in terms of "injury"?

The Chair requested Advocate Mbangeni to look into this matter.

Clause 2: Purpose of Act
Clause 2(a)
The Chair noted the FEDUSA proposal in point 3.2.4 on page 3 of Document B.

Mr Farrow suggested that safety has to be both promoted and ensured, and thus "ensured" has to be included here.

Mr Ainslie disagreed, because this implies that safety is "guaranteed", which is impossible, as noted by the FEDUSA submission referred to above. All that can be expected of the regulator is that it does its level best.

The Chair agreed with Mr Ainslie.

Clause 2(e)
The Chair called for this subclause to be amended to now provide "harmonise the railway safety regime".

Mr Ainslie suggested that the word "promote" be included here, as "harmonise" seems to imply that rail safety will be guaranteed.

The Chair agreed with him.

Clause 3: Application of Act
Clause 3(d)
The Chair referred to Clause 3(d) on page 7 of the Draft Bill, and noted that the South African Transport and Allied Workers Union (SATAWU) presentation contended that these exemptions are not easily issued. This does not however mean that the regulator has carte blanche here. The present formulation of this provision is satisfactory.

Clause 5: Objects of Regulator
FEDUSA suggested that this title be changed to "objectives of Regulator".

Mr Panzera stated that the Department preferred "objectives" as well, but was later informed that "objects" reflects the proper terminology.

The Chair said the title of the clause should remain as it is.

Clause 5(a)
Mr Farrow suggested that "occupational health and security" be inserted after the word "safety" in this provision.

The Chair disagreed, as the primary concern of the regulator under the Draft Bill is operational safety.

Mr Farrow then inquired whether any systems have been put in place to ensure these "objects" are fulfilled because, if not, "no-one would take responsibility".

The Chair informed Mr Farrow that this concern is solved by the following clause entitled "co-operative government", which is perfectly placed both literally and conceptually, to address this issue. It is expected that this provision would please SATAWU and the Rail Commuters Action Group (RCAG), as it definitely pleases the Chair himself.

Clause 7: Functions of Regulator
Mr Ainslie asked whether the concerns raised by CSIR regarding the collection and dissemination of data would be relevant here. The onus is not only on the regulator to collect data on safety reports and the occurrence of accidents and injuries, but it has to go one step further and disseminate these findings to the general public, or at least make it available to the public.

The Chair informed him that this issue would be dealt with more effectively under Chapter 7, beginning on page 19 of Document A and page 8 in the Draft Bill.

The Chair recognised that this issue would very well be relevant here.

Mr Farrow agreed, because such information could be used as a very effective "measurement tool" by which to gauge compliance with acceptable operating standards.

Mr Panzera contended that Clause 40 on page 20 of Document A covers this concern, together with Clause 20 on page 14.

Mr Ainslie replied that the only problem with Clause 40 is that it is not mandatory, as it provides that the regulator "may" establish means to collect such information. CSIR have called for this function to be made mandatory.

Mr Panzera supported this proposal.

The Chair stated that it would be provisionally agreed to effect this amendment, and noted that it is useful to include it here.

Mr Slabbert suggested a contradiction between Clause 20, which provides that the regulator "must" supply the report, and Clause 40, which provides that the regulator "may" establish those bodies referred to in Clause 40.

The Chair informed Mr Slabbert that the two clauses actually refer to different concerns, but this Committee suggests that both include the word "must", and not "may".

Clause 8: Board of Regulator
Clause 8(5)(a)
Mr Slabbert inquired as to the precise manner in which "proven managerial capabilities" on page 8 of Document A is to be established.

The Chair noted this "valid point", and stated that there may very well be worthy applicants with vast experience and acumen in this field, but who may yet not have the requisite managerial knowledge. This provision would prevent such applicants from becoming members of the board. Indeed, the need for this phrase is not entirely clear, as the board does not really serve any managerial function, in the strict sense of the word.

Mr Farrow suggested that the particular safety and security providers be included here.

The Chair agreed, and informed the Member that this is the intention of the Task Team headed by Mr Panzera.

Mr Farrow inquired whether those persons with specialised acumen regarding "hazardous goods" are also accommodated here.

The Chair replied that representatives from the safety and transport industries would probably be more important in this provision.

Mr Farrow maintained that this selection should be broadened so that the regulator has all the necessary expertise to properly address any rail event, and these concerns could even be included under Clause 8(5)(a)(v) on page 9 of Document A.

The Chair requested Mr Panzera to consider this proposal, and suggested that the Department of Safety and Security has to be included under Clause 8(5)(b).

Mr Slabbert asked which Department would be responsible for reintroducing the TPS.

The Chair stated that it would probably fall with the Department of Safety and Security.

Clause 8(5)(b)
The Chair noted that the phrase "one or more of" has been deleted from page 9 of Document A, and the provision has now been cleared up.

Clause 14: Minutes of board meetings
Ms S K Mnumzana (ANC) inquired as to the regulatory mechanism to be applied to the minute-taking procedure.

Mr Farrow suggested that the time frame for such minutes in Clause 14(1) should be "within 30 days", as this period is standard procedure.

Mr Panzera suggested that "30 days" rather be adopted, and inquired as to the date from which this period would run.

Mr Farrow stated that it would run from the date of the approved minute, and inquired whether the public would have access to these minutes.

The Chair agreed with Mr Panzera, and informed Mr Farrow that the Promotion of Access to Information Act (POATIA) could be used to acquire such information. Members of this Committee would receive the report from the regulator on board proceedings, but could also use POATIA to acquire the minutes. This would provide sufficient information to this Committee.

Clause 18: Financial year of Regulator
The Chair noted that the concerns with the financial year have no been resolved on page 13 of Document A.

Clause 22: Railway undertakings requiring safety permit
The Chair noted that FEDUSA wanted this title to be changed to "operating permit", but Members are in support of the current formulation on page 14 of both Document A and the Draft Bill.

The Chair approved of the new wording of Clause 22(1) on page 14 of Document A.

Clause 23: Application for safety permit
Mr Ainslie noted the concern raised by FEDUSA in point 3.2.11 on page 3 of Document B. He questioned the use of "may" and not "must in Clause 23(5) on page 15 of Document A. It is suggested that "must" be incorporated in the spirit of public access and transparency. Furthermore, under what circumstances may the regulator advertise or not?

Mr Farrow contended that all other statutory bodies must advertise, and this also ensures publication in the Government Gazette. Thus "must" has to be included because other governmental departments and organisations want this information.

Advocate Mpahlela, from the Department, stated that the fact that the provision requires applicants to publish the notice of his/her application implies the applicant him-/herself has to cover the costs of such advertising. For this reason "may" is preferred.

Mr Ainslie agreed that the onus is on the applicant to advertise the application, and suggested that it be shifted onto the chief executive officer of the board.

Mr Panzera agreed.

Mr Slabbert asked how often the chief executive officer inspects the rail systems.

Mr Panzera replied that SMS requires an annual review should any changes be made to the rail system, together an audit of infrastructure and rolling stock by the operator. The regulator would then verify the findings of this audit by conducted his/her own audit and inspection of the rail system, to ensure it complies with set standards.

The Chair called for this provision to remain is it is.

Mr Farrow inquired whether the concerns raised here by both CSIR and SATAWU regarding the relationship with NOSAS could be incorporated here, with regard to Clause 29 on page 15 of the Draft Bill.

The Chair disagreed with Mr Farrow, as this provision is already broad and generic in nature. Furthermore, SATAWU proposed that "circumstances" in Clause 28(c) on page 15 of the Draft Bill be made more specific, and want the amended provision to provide "in consultation with organised labour".

Mr Panzera replied that the issue with "organised labour" is sufficiently covered by the Basic Conditions of Employment Act, and the "circumstances" referred to in Clause 28(c) are detailed in regulations. Furthermore, the "standards" referred to in Clause 29 on pages 15-16 of the Draft Bill refer to "operational standards" alone.

Clause 29: Standards
Mr Farrow inquired as to the replacement of the "Minister" by the "board" in Clause 29(1) on page 16 of the Draft Bill.

Mr Panzera informed him that this now provides that the "board" may submit or reject standards without referring the matter to the Minister for approval.

Mr Farrow noted that the wording of Clause 29(2) on page 16 of the Draft Bill differs from the corresponding clause on page 16 in Document A.

Mr Panzera informed him that the State Law Advisors preferred the wording in Document A.

Clause 30 : Regulations regarding design, construction, operation and alteration
The Chair noted that Clause 30(b)-(d) on page 16 of the Draft Bill has now been "cleaned up", because it had been too elaborate, and the new Clauses 30(b) and (c) are contained at the top of page 17 of Document A.

Mr Farrow asked to what extent the other relevant Departments would assist in addressing "uncontrollable" factors such as the encroachment onto rail systems mentioned earlier.

The Chair replied that all matters of potential safety issues are being flagged for later discussion.

Clause 31: Regulations regarding infrastructure or activity affecting safe railway operations
Mr Panzera stated that the intention is that Clause 31 on page 17 of Document A allows the regulator scope to create future recommendations. The recommendations may have to be devised at a future date if needed. In this regard, Clause 31(l) would be relevant to Mr Farrow's concern with future encroachment, and allows the regulator to address that issue via regulation should it arise. Metrorail was also of the opinion that the judiciary do not have sufficient power to address this issue, and this further influenced the decision to include this provision.

Clause 34: Powers and duties of railway safety inspector
Mr Panzera stated that the amended Clause 34 on page 18 of Document A was influenced by the FEDUSA and SATAWU concerns with the rail inspector being a "toothless bulldog". This provision now allows the regulator to grant the inspector sufficient powers and authority to do his job properly. Clauses 34(1) and (2) of Document A resolve this problem by doing away with the warrant requirement under the corresponding clauses on page 17 of the Draft Bill.

Mr Farrow inquired whether the "database" used to measure performance and compliance of the operator referred to earlier could be included under Clause 34(2)(b) of Document A.

Mr Panzera stated that this would be better covered by Clause 34(1) that deals with a regular audit by the regulator.

Both the Chair and Mr Farrow were satisfied with the manner in which these concerns have been adequately incorporated into this clause.

Clause 38: Railway occurrence reporting
The Chair disagreed with the concern raised by FEDUSA in point 3.2.16 on page 3 of Document B, as it is not desirable to have "organised labour" jointly responsible here.

Clause 39: Railway occurrence investigations
Clause 39(1)
Mr Farrow asked whether the term "railway occurrence" in this clause included "criminal activities" discussed earlier.

Mr Panzera replied that 'railway occurrence" includes considerations of occupational health and safety, as well as criminal activities.

The Chair suggested that this is the wrong route to go, and the current definition of "railway occurrences" should remain as it is, and so too should Chapter 7. These two portions of the Bill should not be combined, as it would only confuse matters. Chapter 8 broadens the scope and allows the regulator to maintain records of all rail incidents, and in this chapter the principles of "co-operative government" mentioned in the Bill are important.

Mr Farrow disagreed.

Mr Panzera agreed with the distinction in Clause 40(2) on page 20 of Document A proposed by the Chair, and stated that Mr Farrow's concern would be adequately accommodated under Clause 43(b) on page 20 of Document A.

Mr Farrow agreed.

Clause 39(3)
The Chair noted that CSIR inquired about the public's access to the report in Clause 39(3) on page 19 of Document A.

Mr Farrow maintained that these have to made available to the public, so that the spirit of transparency and public interest may be served. This report is more urgent that he information referred to in Clause 14 on page 12 of Document A discussed earlier, as this report deals with the findings of actual accidents and incidents. These have to be made available to the public, even though the matter may be sub iudice at the time.

Advocate Mpahlela contended that the allegations contained in this report could result in serious litigation if it became public knowledge, as it could very well be defamatory in nature. Caution should thus be exercised in navigating this issue.

The Chair stated that a new provision to the effect of "in the interests of/mindful of the responsibility to inform the public" should be inserted after Clause 39(3)(b) on pages 19-20 of Document A. The State law Advisor is requested to formulate this provision by the next meeting of this Committee.

Clause 41: Provision of information
The Chair questioned the inclusion of this provision, and requested clarity on the meaning of the term "a person" as it is too widely framed. The result is that this provision effectively empowers this regulator to instruct anyone to provide the information.

Mr Panzera replied that this refers to any ancillary information that may be required by the regulator.

Advocate Mpahlela added that the provision allows the regulator to acquire the information from the person who currently holds that information, but who is not the operator itself.

The Chair called for this issue to be revisited.

Clause 44: Appeal to chief executive officer against decision of railway safety inspector
The Chair noted that the concerns raised by SATAWU regarding the four levels of appeal contained in Chapter 9 on pages 19-20 of the Draft Bill has been resolved here.

Mr Panzera explained that Clause 44(1) on page 20 of Document A provides for appeals to the chief executive officer, and Clause 45(1) on page 21 of the same document deals with appeals to the board. Thus the four levels of appeal have now been reduced to just two, and appeals to the Minister are no longer possible.

The Chair agreed, as the previous procedure was too lengthy.

Clause 45: Appeal to board against decision of chief executive officer
Advocate Mpahlela requested that this clause be inserted under the clause granting the Minister the power to make general regulation.

The Chair agreed.

Clause 46: Offences
The Chair noted that SATAWU had contended that the Draft Bill imposes sanctions that are criminal in nature, and relies on a court-based process with prolonged litigation, and suggested that compliance orders or administrative fines be issued instead.

Mr Panzera replied that court action is considered a last resort here. For this reason the regulator has been granted significant powers to deal with matters before it reaches this stage. It is believed that the current formulation in Chapter 10 on pages 21-22 of Document A is satisfactory.

There were no further questions or comments.

The meeting was adjourned.