Industrial Relations Commission New South Wales

• Medium Neutral Citation: Independent Transport Safety Regulator v Australian Rail Track Corporation Ltd. [2013] NSWIRComm 31
• Hearing dates: 5 April 2013 (Written Submissions 18 April 2013)
• Decision date: 23 April 2013
• Jurisdiction: Industrial Court of NSW
• Before: Haylen J

Decision

(1) The defendant, Australian Rail Track Corporation Ltd, is found guilty of a breach of s 8(1) of the Rail Safety Act 2008, as particularised in the Amended Application for Order in Matter IRC 550 of 2012, to which the defendant entered a plea of guilty.

(2) The defendant is fined the sum of $160,000 with half that amount of be paid to the prosecutor by way of moiety.

(3) The defendant is to pay the costs of the prosecutor in a sum as agreed or, in the absence of agreement, as assessed.

• Catchwords: RAIL SAFETY ACT 2008 - s 8(1) - work team performing duties in rail corridor - fatal injuries received by team member when train unexpectedly appears at fixed work site - guilty plea entered - numerous failures in otherwise detailed safety system - failure to close line to be worked upon - failure to comply with system for closing line - failure to adequately audit and monitor safety communications - failure to use secondary safety system of flags and detonators near work site - safety rules capable of being read separately when required to be read together - failure of supervision at work site when Protection Officer required to implement secondary safety system - unsafe practices evolve whereby work performed on a line when train traffic operating - risks foreseeable - serious breach established - general and specific deterrence considered - many subjective factors mitigate level of penalty - early plea - first offender - established safety system - contrition demonstrated - steps taken to address deficiency in safety system - co-operation with investigating authorities - penalty imposed; CRIMES (SENTENCING PROCEDURE) ACT 1999 - s 22A - availability of discount for assistance to administration of justice - whether additional discount available where guilty plea entered and discount separately granted for utilitarian value of plea
• Legislation Cited: Crimes (Sentencing Procedure) Act 1999; Rail Safety Act 2002; Rail Safety Act 2008; Rail Safety National Law (NSW) 2012; Work Health and Safety Act 2011
• Cases Cited: Environment Protection Authority v Heggies Bulkhaul Ltd [2003] NSWLEC 77; Environment Protection Authority v Lubrizol International Inc [2003] NSWLEC 349; Independent Transport Safety Regulator v Patrick Portlink Pty Ltd t/as Patrick Portlink [2011] NSWIRComm 155; R v Da-Pra [2012] NSWSC 607; R v Fahda [2012] NSWSC 114; R v Kerry John Burke [2002] NSWCCA 353; R v Maglovski (No 2) [2013] NSWSC 16; R v Serone [2012] NSWSC 1232; R v Thomson; R v Houlton (2000) 49 NSWLR 383
• Category: Principal judgment
• Parties: Independent Transport Safety Regulator (Prosecutor); Australian Rail Track Corporation Ltd (Defendant)
• Representation: Mrs Thomspon of counsel (Prosecutor); Mr Hodgkinson SC with Ms K Dawson of counsel (Defendant); Crown Solicitor's Office (Prosecutor); Henry Davis York (Defendant)
• File Number(s): IRC 550 of 2012

Judgment

1 The Australian Rail Track Corporation Ltd ("ARTC") has pleaded guilty to a breach of s 8(1) of the Rail Safety Act 2008 ("the Act"). This judgment deals with the evidence and submissions put forward by the parties on sentence.

2 At the present time, ARTC employs fewer than 1000 people and also uses a number of contractors. It was created by way of inter-governmental agreement in order to form a "one stop" shop for all operators seeking access to the interstate rail network. It manages many thousands of kilometres of interstate track in South Australia, Western Australian, Queensland and New South Wales and also manages the Hunter Valley Coal rail network and other regional rail links in New South Wales. In its operations, it owns or leases rail corridors and sells access to train operators, providing railway operators with access to routes, the management of the network (including train control), the management of infrastructure maintenance, the development of new business and capital investment in the corridors. Nineteen operators currently use ARTC owned or leased networks.

3 On 5 May 2010, ARTC had responsibility, on behalf of Country Rail Infrastructure Corporation ("CRIC") for the management of additional network in regional New South Wales known as the Country Rail Network. As part of its operations on this day, the defendant, operating as a rail transport operator, carried out railway operations at the Broadmeadow Network Control Centre North at Broadmeadow, New South Wales. This Centre was responsible for the management and control of infrastructure and rolling stock for the section of railway between Bathurst railway station and Newbridge railway station signals.

4 On this day, Mr Marc Jenkinson, Mr Luke Jenkinson and Mr Jeremy Cleary signed-on for duty at the defendant's provisioning depot at Bathurst. This work team was later directed to perform rail safety work involving cutting sections of rail and moving cut sections of used rail from the north side of the Main Western Line to the south side of the Main Western Line in the section between Bathurst station and the Newbridge lights. Although arrangements were made for the line to be blocked while the work was performed, an XPT train had already left Bathurst station with the work team unaware that it was heading in their direction. At this time, the work team had a hi-rail utility vehicle close to the main western line and an excavator had been moved on to the rail track.

5 In due course the XPT approached the work site on a sharp left-hand bend at approximately 70 kilometres per hour and although the driver saw the work team on the line he was unable to stop the train. The XPT struck the excavator, propelling it along the track for approximately 20 metres when the extended arm of the excavator struck the hi-rail utility parked adjacent to the track, turning the utility on to its side and derailing the excavator. Mr Luke Jenkinson was ejected from the cabin of the excavator during the collision and received fatal injuries. A male passenger on the XPT received minor lacerations to his forehead as a result of the incident. The excavator, the hi-rail utility and the leading locomotive of the XPT all received significant damage as a result of the collision.

6 Following an investigation of this accident the Regulator commenced prosecution proceedings alleging that ARTC was in breach of s 8 (1) of the

Act. Separate proceedings were commenced against the same defendant for alleged breaches of s 13(2) and s 21(1) of the Act. Following lengthy consultation between the parties, the prosecutor ultimately withdrew the

s 13(2) and s 21(1) proceedings and filed an Amended Application for Order in relation to the s 8(1) proceedings. The defendant thereupon entered a plea of guilty to the Amended Application for Order.

7 The charge under s 8(1) of the Act alleged a failure to ensure, so far as reasonably practical, the safety of railway operations. The amended particulars of that charge were in the following terms:

2. The Defendant's railway operations were not safe in that the Defendant failed to, so far as was reasonably practicable, provide adequate information and instruction to, and training and supervision of rail safety workers as was necessary to enable those workers performing rail safety work using the Track Occupancy Authority ("TOA") method of protection in relation to its railway operations to do so in a way that was safe and in a manner that complied with its Network Rules and Procedures.

3. As a result of the alleged failures, as further particularised below, the railway operations carried out by the Defendant were not safe in contravention of section 8(1) of the Rail Safety Act 2008 (NSW) and it thereby did commit an offence against the Act.

Further particulars of the offence

4. At all material times the Defendant was an accredited rail transport operator pursuant to Part 3 of the Act and within the meaning of section 4 of the Act.

5. At all material times the Defendant carried out railway operations at the Broadmeadow Network Control Centre at Broadmeadow and on the section of rail infrastructure from Bathurst Station to Newbridge Station in the State of New South Wales.

6. At all material times the Defendant employed at the Broadmeadow Network Control Centre Brett Tuckey as a Network Control Officer, Michael Freund and Michael Clancy as Train Transit Managers and John Tyne as the Operations Manager Hunter Valley.

7. At all material times the Defendant employed Marc Jenkinson as a Civil Maintenance Worker Level 2 who performed the duties of a Protection Officer Level 2, Heath Hotham as a Work Group Leader, Shayne Kreymbourg as a Team Leader and Aaron Brough as a Team Manager at its provisioning depot in Bathurst.

8. As part of its rail operations the Defendant contracted Norris Track Pty Limited ACN 131 858 823 to supply rail safety workers for its railway operations including Luke Jenkinson and Jeremy Cleary as track workers.

9. On 5 May 2010, Luke Jenkinson, Jeremy Cleary and Marc Jenkinson were working as part of a work group carrying out track work under a track occupancy authority on the Main Western Line at a worksite located 270.500km from Sydney between Bathurst Station and Newbridge Station ("the worksite"). The Defendant's railway operations were unsafe in that Mr Luke Jenkinson was fatally injured and others in the work group and in the immediate vicinity were exposed to the risk of death or serious injury when train WT27 entered the worksite whilst they were carrying out track work on the line at or about 11:15am.

10. The Defendant failed to ensure, so far as was reasonably practicable, the safety of its railway operations in that it failed to provide adequate information and instruction to, and training and supervision of rail safety workers as was necessary to enable those workers performing rail safety work using the TOA method of protection in relation to its railway operations to do so in a way that was safe and in a manner that complied with its Network Rules and Procedures, in that it failed to ensure:

10.1 network control officers did not issue a TOA for a fixed worksite when there was a train in the section and the protection officer had not provided the identification number of the lead unit of the train in compliance with ANPR 701;

10.2 that form ANRF002 "Track Occupancy Authority" required network control officers and protection officers to communicate and record all safety critical information including the specific location of the worksite, the identification of the lead unit of the train, the name and contact number of the protection officer and whether the TOA was for a fixed worksite or a track vehicle journey, in compliance with Network Rule ANWT 304 "Track Occupancy Authority" (ANWT 304), Network Procedure ANPR 701 "Using a Track Occupancy Authority" (ANPR 701) and Network RUle ANGE 204 "Network Communication" (ANGE 204);

10.3 adequate auditing and/or monitoring of pre-recorded voice communications relating to the TOA method of protection to ensure compliance with ANWT 304 and ANPR 701;

10.4 adequate auditing and/or monitoring of ANRF002 forms completed by network control officers and protection officers when applying the TOA method of protection to ensure compliance with ANWT 304 and ANPR 701;

10.5 adequate audits and/or inspections at worksites of the work performed by protection officers applying the TOA method of protection to ensure compliance with ANWT 304, ANPR 701 and Network Procedure ANPR 709 "Using Detonators";

10.6 protection officers who were designated as a worksite supervisors ensured that their supervision duties did not conflict with their protection duties in compliance with ANWT 300 and ANWT 304;

10.7 track workers did not enter the danger zone and commence work until all protection arrangements, including flags and detonators, were in place as required by ANWT 300 "Planning work in the rail corridor" (ANWT 300) and ANWT 304.

11. At all material times it was reasonably practicable for the Defendant to ensure the safety of its railway operations by undertaking the measures particularised in paragraphs 10.1 - 10.7 above.

8 At the sentencing hearing the evidence for the prosecutor comprised of an Agreed Statement of Facts, together with a number of attachments. The attachments included: copies of "track occupancy authority" ("TOA") forms completed on 5 May 2010; various Phoenix screen shoots; a train control graph; a number of photographs; a number of safety rules; copies of safety alerts, the worksite order checklist; a workplace safety observation for Protection Officer dated 28 April 2010; and, an improvement notice. The Agreed Statement of Facts appears as an annexure to this judgment.

9 Mr Timothy Ryan, Executive General Manager, Interstate Network of ARTC provided the evidence for the defendant. Mr Ryan explained ARTC's operations and organisational structure. He dealt with the defendants' rail safety accreditation under the Act and now under the Rail Safety National Law (NSW) 2012 ("the 2012 Act"). He noted that, as a consequence of its accreditation, the defendant was subject to regular audits by various Rail Safety Regulators, including the prosecutor. In addition to specific rail safety regulation, the defendant was also subject to general safety regulation by Comcare pursuant to the provisions of the Work Health and Safety Act 2011 (Cth). It was also subject to potential investigations by other bodies including, the Australian Transport Safety Bureau and the NSW Office of Transport Safety Investigation.

10 The defendant's safety management system was explained as providing an overall framework of policies that were supported by various procedures and processes. The safety management system complied with the defendant's obligations under various legislative schemes. The defendant was also accredited in four other States. At all times, the Network rules and procedures were a key part of the safety system. As a rail infrastructure owner the defendant was unable to make changes to its Network rules and procedures without first consulting various other participants and providing notice to the prosecutor.

11 The reporting systems included reports at the highest level to the Executive Committee and the defendant's Board of Directors through sub-committees. There were monthly safety performance reports, a monthly work health and safety report, reporting of significant safety incidents to the Board and a twice-yearly review of risk management. A broad sub-committee dealt with the management of risks associated with the defendant's environment, public and work health and safety functions and monitored processes and programmes adopted by management to ensure compliance with relevant policies and procedures. In addition, the defendant routinely reported incidents and the results of internal investigations to rail safety regulators and work health and safety authorities, including the prosecutor. An explanation was provided of the operation of train control reports that recorded all incidents on the defendant's Network and the operation of the risk register containing work related safety risks and hazards identified by the defendant. There were a number of safety personnel who assisted in the management of these processes. The defendant required local management to be responsible for safety with every manager accountable, although supported by advisers.

12 Induction training was provided to all personnel engaged by the defendant, including contractors who were to work on or about the railway track. Such inductions could be completed online and in relation to this accident, Mr Luke Jenkinson and Mr Jeremy Cleary, as contractors, had completed the online induction programme. In addition, all workers required to work on or near railway tracks were required to hold a rail safety work qualification and Track Safety Awareness or an equivalent qualification. Mr Luke Jenkinson and Mr Jeremy Cleary held these qualifications. Contractors could be required to hold additional qualifications and demonstrate specific skills. Additional training was available depending upon the nature of duties to be performed. Mr Mark Jenkinson held qualifications as a Protection Officer, Level 2 and had been certified as competent in applying the Network rules and procedures. Mr Brett Tuckey had received specific training in relation to his role as a Network Control Officer ("NCO"). Mr Ryan described a system of safety alerts also used by the defendant.

13 Where the defendant undertook infrastructure maintenance using its own staff it did so from a Provisioning Centre: these Centres were located around the defendant's Network, including Bathurst. Each Centre was managed by a team manager who was usually responsible for approximately 25 staff members. Mr Ryan gave details of regular briefings in relation to pre-work, weekly team meetings, use of notice boards and safety information. On the day of this accident, Mr Marc Jenkinson, Mr Luke Jenkinson and Mr Jeremy Cleary and all other workers based at the Bathurst Provisioning Centre participated in a toolbox talk safety meeting, including the viewing of a safety training video. Mr Ryan noted that, prior to this accident, the Bathurst Provisioning Centre had a good safety record. The Centre was subject to regular audits and inspections.

14 In relation to work in the rail corridor, Mr Ryan identified a number of Network rules that were applicable. There was a requirement for specific safe places to exist when working in the danger zone (specified to be an area three metres horizontally from the nearest rail and any distance above or below that three-metre distance). Work in that area could only be carried out using one of five protection methods. It was a requirement of the system that a Protection Officer be present. Mr Ryan provided particulars of the training required to be appointed a Protection Officer, Level 2.

15 A Track Occupancy Authority ("TOA") was described as a track protection measure whereby rail traffic was excluded from a defined section of the track to allow persons or vehicles to safely access and work in the danger zone of that section. A NCO from the relevant Network Control Centre excluded rail traffic. Where there were fixed work sites, the TOA required additional protection in the form of physical flags and a series of detonators placed 500 metres at both ends of the work site. A Protection Officer had to be present when work on the track occurred and it was the Protection Officer's responsibility to determine and implement the form of work track protection to be used, including a TOA. To obtain a TOA the Protection Officer was required to contact the relevant Network Control Centre and speak to an NCO: in this case, that person was Mr Brett Tuckey. Under this process a procedure was to be followed before a TOA would be granted. Work was not to commence at a fixed worksite until the granting of the TOA and the implementation of protection in the form of flags and detonators. The use of TOA type protection was widespread throughout the operations conducted by the defendant and was used by other operators in New South Wales, such as RailCorp.

16 Mr Ryan stated that the defendant recognised and sincerely regretted its contribution to the accident whereby Mr Luke Jenkison was fatally injured. The defendant regretted the tragic consequences for the worker and his family and friends and in particular, his brother and co-worker, Mr Marc Jenkinson as well as friend and co-worker, Mr Jeremy Cleary. Mr Ryan noted that the defendant had fully co-operated with the authorities in relation to all investigations conducted arising from the accident. Those investigations included not only the Prosecutor but also Comcare, WorkCover, New South Wales, the New South Wales Police Force and the New South Wale Coroner. Following the accident, the defendant offered to arrange and pay for counselling for Mr Jenkinson's family and that was taken up on one occasion. The defendant also provided financial support for Mr Jenkinson's funeral service. Other staff affected by the incident were also extended support and Mr Ryan noted that, in the days immediately following the accident, work at the Provisioning Centre was generally suspended to allow employees to deal with the accident. Counselling services were also provided.

17 Mr Ryan dealt with the other steps taken by the defendant after the accident. A memorandum was issued the following day reinforcing existing procedures in relation to the issue of TOAs. Adopting its normal practice, Mr Tuckey and Mr Jenkinson were stood down from safe working duties after the accident and were subsequently required to undertake refresher training prior to being permitted to return to full scale working duties. Mr Jenkinson's refresher training included retraining in the Protection Officer's duties, Level 2. Mr Tuckey also undertook a communications skills course as well as his refresher training. A little over a year after the accident, the defendant wrote to Mr Marc Jenkinson informing him that it had been concluded that, as Protection Officer at the relevant work site, he had failed to comply with the defendant's requirements, including Network rules and procedures. The defendant also concluded that Mr Tuckey had failed to comply with certain of the defendant's requirements under the NetWork rules and procedures and he was counselled and advised that this fact would be noted on his personal records.

18 Prior to the accident and in conjunction with other railway participants, the defendant had been involved in the development of national consolidated safety working rules to apply across the defendant's entire Network. TOA rules, procedures and forms had been the subject of various reviews in this process. While this process was undertaken and in light of an improvement notice issued by the Prosecutor, the defendant proposed certain amendments to the TOA form: in accordance with the then Regulations that proposal required feedback and consultations, including consultation with the prosecutor. Despite other difficulties, the defendant adopted the new form and process and all qualified workers subsequently received training in relation to the new TOA forms. Under this system, NCOs were to ask Protection Officers who required a TOA whether or not they were at a fixed or non-fixed work site. Mr Ryan noted that the new TOA form implemented a recommendation arising out of a Coronial Inquest relating to this accident.

19 Prior to the accident, the defendant employed an Operational Compliance Officer whose duties included auditing recorded voice communication on a regular basis, as well as completed TOA forms and train graphs. Prior to the accident, the procedure in relation to recorded voice communications was audited by the prosecutor on a number of occasions. In approximately August 2011, the defendant developed and implemented a formalised procedure that provided for a random monitoring of recorded voice communications between Network Control and the field. The recordings were monitored, evaluated and reported on in relation to aspects such as clarity of transmission, recognising callers' identities and locations, identifying safe work locations and train numbers.

20 At the time of the accident the defendant also required inspections of work sites by local managers: this applied to the Bathurst Provisioning Centre. These inspections were described by Mr Ryan and continued. There was a review undertaken of the Protection Officer's pre-work briefing and working books and work site protection plans and Mr Ryan also explained this process.

21 Mr Ryan spoke of the defendant as striving to be a good corporate citizen. The defendant operated in many country areas and therefore its focus had been to support local charitable and community events. Examples were provided. The defendant was also said to be active in the Australasian "Rail Safety Week" where operators co-ordinated and promoted rail safety. The defendant's participation in this event in 2012 was dealt with by Mr Ryan. Mr Ryan was not required for cross-examination.

DELIBERATION

22 The present prosecution arises as one of the early cases brought under the provisions of the Rail Safety Act. The different legislative setting and purpose of the Act were discussed in Independent Transport Safety Regulator v Patrick Portlink Pty Ltd t/as Patrick Portlink [2011] NSWIRComm 155. In that judgment the Court had regard to the Minister's Second Reading Speech and particular provisions of the Act (see [10] - [13]). In Portlink, all parties agreed that the sentencing process under the Rail Safety Act should broadly reflect the approach taken by the Court over many years to prosecutions under provisions of Occupational Health and Safety legislation. The Court adopted that approach and no different submission was made in the present proceedings.

23 Counsel for the prosecutor drew attention to the fact that the penalties for first offenders under this legislative regime provided a maximum penalty of $550,000. The Court accepts that the penalties imposed by Parliament are an indication of the seriousness with which a contravention is to be viewed. It was also common ground that the definition of "previous offender" under the 2008 Act appeared to have the effect of excluding from consideration any prior convictions under the former Rail Safety Act 2002, thus, requiring the defendant in the present matter to be dealt with on the basis that there were no relevant prior convictions. The Court therefore proposes to proceed upon that basis.

24 In addressing the objective seriousness of this offence, recognition is to be given to the variety of elements that led to the unsafe system in operation on the day of the accident. The prosecutor's written submissions provided a detailed analysis of the various acts and/or omissions of the defendant as exposed by this workplace accident and it is therefore sufficient to deal in a summary way with these elements. Because of the seriousness of this offence it should be initially observed that both the on-site work team and the authorising NCO proceeded on assumptions that were incorrect and had not been checked and in part adopted a practice that had grown in relation to safety rules for work performed on a railway line. Here, the work team understood that their work site had been protected by a TOA authorised by the NCO. However, when the TOA was issued the NCO believed that the work crew would work on the track behind the path of the XPT - that is, that the train had already passed the work team. A practice had also developed whereby NCOs issued TOAs for track vehicle journeys (as distinct from fixed or stationary work sites) when a Control Officer knew there was rail traffic in the section without the Protection Officer being required to see and acknowledge rail traffic pass the point where the track vehicle was proposed to be mounted on the track and the journey commenced.

25 In the present case, the NCO, acting upon an incorrect assumption, issued a TOA without requiring the Protection Officer at the site to observe the train pass the point where the track was to be occupied and to provide the NCO with the number of the lead train locomotive. This step was vital because the Phoenix Signalling Control system, via its large monitor, was unable to precisely place a train on a particular section of line. In addition, the practice of issuing a TOA without verification from the Protection Officer as described above appeared to be available because the specified Network rule could be read separately from the Network procedure, although a glossary of terms expressly stated that the Network procedures were to be read in conjunction with the Network rules.

26 Further, while the voice communications between the NCO and the Protection Officers could be audited and monitored, the system was, nevertheless, inadequate because of the ad hoc manner of the reviewing process leading to an absence of a policy or procedure for assessing the appropriateness of the voice communications and their effectiveness in conveying the safety requirements of the defendant's rules or procedures. The same defect was to be found in the failure to provide adequate auditing and monitoring of the forms completed by NCOs and Protection Officers when applying the TOA method of protection to ensure compliance with the defendant's safety rules.

27 In the present case there was also a failure of the Protection Officer to comply with the rules and procedures requiring the placement of flags and detonators at a significance distance either side of the work location and there were inadequate audits and inspections of work sites to ensure that these procedures were followed. There was a failure to provide adequate instruction, information and training to persons who were carrying out the dual roles of Protection Officer and work site supervisor at the same time such as to ensure that the supervision duties did not conflict with Protection Officer duties as required by the rules and procedures of the defendant. A Protection Officer was required to place flags and detonators as a secondary protection and would necessarily leave workers at the site unsupervised while this took place. There was also a failure to ensure that track workers did not enter the danger zone and commence work until the Protection Officer had completed all the protection arrangements under the rules and procedures, including the placement of flags and detonators. No work should have commenced until all measures, including these secondary measures to be taken by the Protection Officer, were completed.

28 The abovementioned deficiencies were accepted by the defendant and were included in the Statement of Facts. Senior counsel for the defendant, however, submitted that, firstly, if the defendant's rules and procedures had been followed then this accident would not have occurred and secondly, he noted that, in [10] of the Particulars, the charge was framed by reference to a failure to comply with a number of the defendant's safety rules and procedures. While it can be accepted immediately that this was not a case where there was a total failure to have appropriate safety rules (rather, there was an abundance of safety rules), nevertheless, the evidence demonstrated a breakdown in the effectiveness of those various rules. The defendant has since taken a number of steps to address those very matters in order to improve the effectiveness of its safety systems. Having regard to the risk identified in the charge, namely, that the work team was exposed to risk of death or serious injury when the XPT entered the work site while they were carrying out work on the line and that there was also a danger of the XPT being derailed. the Court accepts the submissions for the prosecutor that, taken together, the failures established by the evidence constitute an objectively serious breach. Importantly, the unsafe rail operations together with the consequences flowing from the failures were reasonably foreseeable and ought to have been foreseen by the defendant. As submitted by the prosecutor, this is an offence that is to be assessed as falling within the higher end of the range of penalties having regard to all the circumstances.

29 This is a case where both general and specific deterrence should feature in the setting of an appropriate penalty. The Court has previously drawn attention to the fact that it is now frequently the case that defendants have applied considerable resources, both human and financial, to create extensive safety systems. Nevertheless, circumstances arise that demonstrates flaws or gaps in those systems. Industry and employers generally need to be made aware of their responsibility to constantly review, audit and re-assess their existing safety rules to ensure that they are, firstly, applied in the workplace and secondly, to ensure that any gaps are discovered and addressed. In relation to specific deterrence, the evidence clearly establishes the very wide-ranging safety system adopted by the defendant as well as the prompt steps taken to address the deficiencies in those systems exposed by this accident. The defendant, nevertheless, continues to operate in this highly dangerous industry where work is required to be performed on rail corridors. Having regard to all of the evidence, whilst specific deterrence will form an important element of the penalty to be imposed, that element should be modified in recognition of the matters raised by senior counsel for the defendant.

30 As to subjective factors, both parties submitted that, in this case, there was an early plea. The Court is satisfied on the material placed before it that, although there were a number of appearances before the Deputy Registrar prior to the plea being entered, during that time there were negotiations that significantly altered the thrust of the prosecution and involved the withdrawal of two other proceedings and an Amended Application for Order in the present matter. In light of the concession made by the prosecutor and based on the other material before the Court, it is accepted that this was an early plea entered by the defendant that should attract a discount of 25 per cent. The defendant is also to be regarded as a first offender and as such is entitled to a measure of leniency. Further, the evidence discloses the defendant's remorse and contrition, including the early plea and the assistance provided to both the family of Mr Luke Jenkinson and also to fellow workers. The defendant took significant steps to alter its systems in order to overcome the deficiencies exposed by this accident and co-operated with authorities during their investigations. The evidence of Mr Ryan establishes the defendant as a good corporate citizen involved with the communities in which it operates and participating more widely in the promotion of safety in rail operations. All these matters will be taken into account in mitigating the penalty to be imposed.

31 One further matter remains for consideration. The concluding submission for the defendant drew attention to the provisions of s 22A of the Crimes (Sentencing Procedure) Act 1999 ("the Sentencing Act) and the power of the Court to reduce penalties for facilitating the administration of justice. It was submitted that, as a result of a report in August 2009 prepared by the Sentencing Council in relation to the reduction of penalties at sentence, s 22A had been further amended to allow disclosures made during the trial to be included in considerations as to whether such disclosures warranted a further discount on penalty. Attention was also drawn to the Minister's Second Reading Speech that appeared to indicate that co-operation in the form of admissions or disclosures during the course of a trial could qualify for a discount under this provision and that may also encompass behaviour such as agreements to limit the facts in issue during the trial and so reduce the number of witnesses. In this case, senior counsel for the defendant submitted that the extensive Agreed Statement of Facts qualified for a further discount under the provisions of s 22A of the Sentencing Act.

32 Section 22 A of the Sentencing Act is in the following terms:

22A Power to reduce penalties for facilitating the administration of justice

(1) A court may impose a lesser penalty than it would otherwise impose on an offender who was tried on indictment having regard to the degree to which the administration of justice has been facilitated by the defence (whether by disclosures made pre-trial or during the trial or otherwise).

(2) A lesser penalty that is imposed under this section in relation to an offence must not be unreasonably disproportionate to the nature and circumstances of the offence.

33 The Minister's Second Reading Speech dealing with this matter was as follows:

Item [2] of schedule 1.2 inserts a new subsection which requires that any lessor penalty imposed as a result of a guilty plea will not be unreasonably disproportionate to the nature and circumstances of the offence. This reflects provisions elsewhere in the Act which ensure the reasonableness of discounts given. Item [3] of schedule 1.2 explicitly recognises a sentencing court's power to reduce penalties for facilitating the administration of justice. The Act currently provides for the court to impose a lesser penalty where the defence has made disclosure before the trial that facilitates the administration of justice. However, the Council edges that there is no point of difference between disclosure and co-operation pretrial and co-operation during the trial. As such, the latter will be included in the legislation as a basis upon which to impose a lesser penalty.

Co-operation may be in the form of admissions or disclosures in the course of the trial but may also compass behaviour such as agreement to limit the facts in issue during a trial and hence reduce the number of witnesses required where the court is of the view that such behaviour is sufficient to justify a reduction of the sentence. I note that this provision will not result in defendants being penalised for the poor performance of their counsel; it merely provides the ability to reduce a penalty where the course of justice has been facilitated. Moreover, the amendment is not made to simply reward the defence where is has complied with mandated disclosure requirements; hence the court is provided with the discretion to impose a lesser penalty, which it may or may not exercise, having regard to the degree to which the defence has facilitated the administration of justice.

34 It is appropriate to firstly consider the statutory context within which s 22A lies. Part 3 of the Sentencing Act deals with sentence procedures generally and Div 1 comprises ss 21 - 25. Those provisions deal with: a general power to reduce penalties, aggravating, mitigating and other factors in sentencing, the requirement to take into account a guilty plea, power to reduce penalties for facilitating the administration of justice, power to reduce penalties for assistance provided to law enforcement officers and the ability to take other matters into account. Section 21A(3) identifies a number of mitigating factors to be taken into account in determining an appropriate sentence. Sub-section (3)(k) identifies a plea of guilty by the offender as such a mitigating factor. Section 22(1) then provides that in passing sentence for an offence where the offender has pleaded guilty, the court must taken into account the fact that the offender has pleaded guilty and the timing of the guilty plea or an indication of the intention to plead guilty as well as the circumstances in which the offender indicated an intention to plead guilty. It is then open to the court to impose a lesser penalty than it would otherwise have imposed. Sub-section 1(A) provides that a lesser penalty imposed under the section must not be "unreasonably disproportionate to the nature and circumstances of the offence." Section 23(1) permits a court to impose a lesser penalty than it would otherwise impose because of the degree to which the offender has assisted or undertaken to assist law enforcement authorities in the prevention, detection, investigation of or in proceedings relating to the offence concerned or any other offence. Sub-section 2 lays down a number of matters to be considered in taking that course and sub-section 3 requires that a lesser penalty, nevertheless, must not be unreasonably disproportionate to the nature and circumstances of the offence.

35 On their face these provisions deal with related but not overlapping concepts. It is difficult to detect a legislative intention that the very same matters will attract more than one discount. In R v Thomson; R v Houlton (2000) 49 NSWLR 383, the Court of Criminal Appeal held that the utilitarian value of a plea to the criminal justice system should generally be assessed in the range of 10 per cent to 25 per cent discount on sentence. The primary consideration in determining where in the range a particular case should fall was the timing of the plea. At [154], Spigelman CJ noted that the complexity of issues about which evidence would have to be gathered and adduced affected the value of the plea: the greater the difficulty of assembling the relevant evidence and the greater the length and complexity of the trial, the greater the utilitarian value of the plea.

36 In the present matter the Court has accepted that the defendant entered an early plea of guilty having regard to all the circumstances disclosed by the evidence and that a discount at the highest level identified in Thomson and Houlton should be applied. That discount encompasses the fact that a detailed Statement of Agreed Facts was presented to the court by the parties: the utilitarian value of that plea was high, given the complexity of the defendants' operations and the multitude of safety rules and procedures applied.

37 The Court's own researches indicate that the report of the Sentencing Council that led to the amendment of s 22A of the Sentencing Act clearly suggested that s 22A was directed at situations where the defence had provided assistance that reduced the time necessary to complete the hearing of an otherwise contested matter. While a trial was necessary, the degree of defence assistance might be assessed as qualifying for a discount pursuant to the provisions of s 22A of the Sentencing Act. There was no direct suggestion that s 22A applied in circumstances where a plea of guilty had been entered. The following cases illustrate the point. In R v Fahda [2012] NSWSC 114; R v Serone [2012] NSWSC 1232; R v Da-Pra [2012] NSWSC 607; and, R v Maglovski (No 2) [2013] NSWSC 16 the provisions of s 22A of the Sentencing Act were considered in the context of a jury trial where a not guilty plea had been received but where the defence had submitted that assistance provided by the defendant should qualify for a discount. As with the sentencing report, these cases discussed and distinguished circumstances where mandatory disclosures were made or disclosures as to undeniable facts leaving in some cases, nevertheless, a largely fully contested case for trial. It is in this area that s 22A may arise for consideration. That section, therefore, did not appear to be applicable in the circumstances of the present case.

38 The above analysis had led the Court to the tentative conclusion that s 22A of the Sentencing Act had no role to play in the present proceedings. Since arriving at that position, the Court has received further written submissions from the prosecutor regarding the operation of s 22A. The primary position for the prosecutor is that, for similar reasons already expressed by the Court, s 22A has no role to play where a plea of guilty has been entered as in the present case. Attention was drawn to the judgment in R v Kerry John Burke [2002] NSWCCA 353 where Sperling J, (Giles JA and Levine J, agreeing), in speaking of s 22A before the 2010 amendment, held that the provision had "no application where there has not been a trial." It should also be noted that, in the Minister's Second reading Speech, reference was made to disclosures and assistance both "pre-trial" and "during the trial." The Court agrees with the further submission of the prosecutor that the amendment to s 22A would not alter that conclusion.

39 The relevant discussion in Burke appears in the following paras in the judgment of Sperling J:

[30] The applicant co-operated in the ASIC investigation, producing documents readily, and submitted to an interview in which he readily admitted the facts on which the charges were later based. The applicant submits that a discount should have been allowed in addition to the discount for the plea of guilty.

[31] There is no statutory provision for such a discount as in the case of a plea of guilty. S22 of the Crimes (Sentencing Procedure Act) 1999 relates to a plea of guilty. S23 relates to assistance to law enforcement authorities, but that is assistance which aids the apprehension and/or conviction of other offenders.

[32] A full confession and co-operation with the investigating authorities from the start does not entitle an offender to a discount over and above the discount for a plea of guilty. Such behaviour may be relevant in other ways, such as being evidence of contrition in conjunction with other evidence. As I have said, the sentencing judge declined to find contrition. The applicant's co-operation and admissions were in the face of overwhelming evidence of his offending, and I do not think that he erred in failing to regard it as evidence of contrition.

[33] The applicant invoked s22A(2) of the Crimes (Sentencing Procedure) Act 1999 which provides that a court may impose a lesser penalty on an offender who has been tried on indictment having regard to the degree to which the defence has made pre-trial disclosures for the purposes of the trial. This provision has no application where there has not been a trial.

40 The prosecutor, however, did draw attention to two judgments of Lloyd J dealing with environmental prosecutions in the Land and Environment Court. In Environment Protection Authority v Lubrizol International Inc [2003] NSWLEC 349, his Honour had regard to the agreement on facts by the defendant who had otherwise pleaded guilty. His Honour regarded the agreement on facts as "reducing the prosecutor's effort and the court's time in resolving the matter" and thus, was a matter to be taken into account under s 22A(1) of the Sentencing Act.

41 In the second case, Environmental Protection Authority v Heggies Bulkhaul Ltd (2003) NSWLEC 77, his Honour allowed a 25 per cent discount for an early plea of guilty in recognition of the "utilitarian value of a plea to the criminal justice system" but noted that at the time of the offence, s 22A of the Sentencing Act had not yet commenced. At [40], however, his Honour took into account the defendant's co-operation with the prosecutor prior to the commencement of the prosecution and thereafter, culminating "... in the production of an agreed statement of facts, minimising the prosecutor's effort and the court's time in determining the matter."

42 In both these cases his Honour allowed a full 25 per cent discount for the utilitarian value of the early plea. It does not appear that any submission was made by the parties regarding the operation of s 22A of the Sentencing Act. It may well be that his Honour's views on the application of s 22A were expressed, per incuriam, and no reference is made to the decision of the Court of Criminal Appeal in Burke. Having considered the matter afresh in light of the further written submissions received from the prosecutor, the Court is fortified in its earlier tentative view that s 22A of the Sentencing Act has no application in the present matter. Having confirmed that view there is no need to deal further with the prosecutor's alternative argument should it be found that s 22A had some application, nor is it necessary to deal with the submissions challenging these proceedings as being "on indictment" as described in s 22A.

ORDERS

43 Having regard to the matters considered above, the Court makes the following orders:

(1) The defendant, Australian Rail Track Corporation Ltd, is found guilty of a breach of s 8(1) of the Rail Safety Act 2008, as particularised in the Amended Application for Order in Matter IRC 550 of 2012, to which the defendant entered a plea of guilty.

(2) The defendant is fined the sum of $160,000 with half that amount of be paid to the prosecutor by way of moiety.

(3) The defendant is to pay the costs of the prosecutor in a sum as agreed or, in the absence of agreement, as assessed.

ANNEXURE

AGREED STATEMENT OF FACTS

1. At all material times the Independent Transport Safety Regulator (formerly known as the Independent Transport Safety and Reliability Regulator) ("the Prosecutor"), was a corporation constituted under section 42B (1) of the Transport Administration Act 1988 (NSW), whose address is Level 22, 201 Elizabeth Street, Sydney, New South Wales, and a body empowered under section 134 (1) of the Rail Safety Act 2008 (NSW) (the "Act") to institute proceedings for contraventions of the Act.

2. At all material times Australian Rail Track Corporation, (the "Defendant"), was a corporation whose office is situated at Passenger Terminal Drive, Mile End in the State of South Australia.

3. At all material times, the Defendant was an accredited rail transport

operator pursuant to Part 3 of the Act and section 4 of the Act.

4. At all material times the Defendant carried out railway operations as a rail infrastructure manager on the Country Regional Network, including signalling operations at the Broadmeadow Network Control Centre North ("NCCN") and maintenance of the rail infrastructure being the Main Western Line from Bathurst Station to Newbridge Station in New South Wales.

Broadmeadow Network Control Centre.

5. The NCCN is used by the Defendant to carry out signalling operations and control of train movements in respect of the railway operations occurring on the Main Western Line, including the section of rail infrastructure from Bathurst Station to Newbridge Station in the State of New South Wales.

6. As at 5 May 2010, the NCCN was equipped with a number of network control panels located on defined workstations also known as "Boards" that were operated by employees of the Defendant known as Network Controllers (variously referred to as "network control officers", "NCOs" and "train controllers").

7. The Board responsible for signalling operations on the rail infrastructure between Bathurst and Newbridge Stations was known as the "West Board". The West Board also controls the train movements and work on track access for the following locations:

(a) Wallerawang to Orange (including the rail infrastructure between Bathurst and Newbridge Stations),

(b) Wallerawang to Merrygoen,

(c) Merrygoen to Dubbo,

(d) Dubbo to Narromine,

(e) Broken Hill Yard, and

(f) Dubbo Yard.

Broadmeadow Network Control Centre

8. The Network Rules and Procedures are a suite of rules for conducting work on and in relation to the rail network in NSW ("Network Rules and Procedures"). Pursuant to the Rail Safety (General) Regulation 2008, the Defendant cannot, and at all relevant times could not, amend the Network Rules without complying with specific consultation and notice obligations in relation to other rail transport operators and the Prosecutor.

The defendant's employees

9. As part of its railway operations, the Defendant employed at the NCCN:

(a) Brett Tuckey as a Network Controller from 2005 at ARTC Network Control Centre South at Junee ("NCCS") and from 2007 at the NCCN.

(b) Michael Freund and Michael Clancy as Train Transit Managers rresponsible for management and supervision of Network Controllers at the NCCN, including Brett Tuckey;

(c) John Tyne as the Operations Manager, Hunter Valley with management responsibility for the NCCN.

10. At all material times, the Defendant employed at its Bathurst Provisioning Depot ("Bathurst Depot"):

(a) Marc Jenkinson as a Civil Maintenance Worker including to perform the duties of a Protection Officer Level 2 from September 2008 onwards;

(b) Heath Hotham as a Work Group Leader;

(c) Shane Kreymborg as a Team Leader;

(d) Aaron Brough as a Team Manager.

11. At all material times, the Defendant had contracted Norris Track Pty Ltd to provide rail safety workers including Luke Jenkinson and Jeremy Cleary to carry out rail safety work.

12. Brett Tuckey worked regularly on the West Board at NCCN.

13. As a qualified Protection Officer Level 2, Marc Jenkinson had received training in the Network Rules and Procedures prior to the incident and had been certified as competent in applying the Network Rules and Procedures prior to the incident.

14. Marc Jenkinson was experienced in his role including as a Protection Officer and had, on other occasions prior to the incident, requested and obtained a form of worksite protection known as a Track Occupancy Authority ("TOA").

15. As Network Control Officer, Brett Tuckey had received training in the Network Rules and Procedures prior to the incident and had been certified as competent in applying the Network Rules and Procedures prior to the incident.

16. Brett Tuckey was experienced in his role and had, on numerous occasions prior to the incident, authorised and issued forms of worksite protection including TOAs.

The incident

17. On 5 May 2010, Brett Tuckey was rostered on by the Defendant to work as a Network Controller on the West Board from 07:00am to 15:00pm. Brett Tuckey commenced work on the West Board at 07:00am.

18. On 5 May 2010, Marc Jenkinson, Luke Jenkinson and Jeremy Cleary were rostered on by the Defendant at the Bathurst Depot to work from 07:00am to 15:30pm ("the Work Group"). Each member of the Work Group signed on for work at the Bathurst Depot at 7:00am.

19. At or about 7:10am, train WT27, operated by Rail Corporation New South Wales ACN 59 325 353 ("RailCorp") departed Central Station in Sydney, driven by David Oliver, a RailCorp employee. Train WT 27 was operated by RailCorp as the daily XPT passenger service from Sydney to Dubbo which was scheduled to depart Central Station at 7:10am.

20. On 5 May 2010, from about 7:30am to 9:30am, the Work Group, along with other workers based at the Bathurst Depot, participated in a fortnightly "toolbox talk" safety meeting at the Bathurst Depot. The meeting was chaired by Health Hotham and included the viewing of a safety training video entitled "For What?"..

21. At or about 10:20am, Heath Hotham directed the Work Group to attend a worksite located on the Main Western Line located 270.500km from Sydney ("the Worksite") to cut sections of used rail track located on the north side of the Main Western Line and move the sections of cut rail to the south side of the Main Western Line. The cut sections of rail were to be moved using a Kohmatsu hi-rail excavator already located at the Worksite that was capable of being mounted on and moving on rail track ("the Excavator").The Worksite was located approximately 2.5 kilometres east of Newbridge Station, and immediately west of a left hand bend in the track which was situated in a deep cutting.

22. At the time Heath Hotham directed the Work Group to attend the Worksite to conduct the work, he was aware that the daily XPT service was scheduled to travel through the section of rail track between Bathurst and Newbridge Stations.

23. At or about 10:48am, WT 27 arrived at Bathurst Station approximately 5 minutes behind the scheduled running time. At Bathurst Station, Gary Pearce, who was employed by the Defendant as a Work Group Leader, boarded the train by entering the driver's cabin for the purpose of conducting an inspection of the rail corridor and track condition between Bathurst and Orange.

24. At or about 10:50am, the Work Group arrived at the Worksite, having travelled from the Bathurst Depot in two vehicles, one being a hi-rail utility vehicle capable of being mounted and moving on rail track.

25. At or about 10:51am, WT27 departed Bathurst Station approximately 6 minutes behind the scheduled timetable and passed signal BT56 and proceeded westwards along the Main Western Line towards Newbridge Station. At the time WT 27 passed signal BT56, the signal was green indicating the track was clear ahead.

26. At or about 10:54:13am, Marc Jenkinson telephoned Brett Tuckey at the NCCN to request a Track Occupancy Authority ("TOA"). The following conversation occurred, as recorded on the audio logs maintained by the Defendant:

BT: Broadmeadow west.

MJ: Yeah mate its Marc Jenkinson speaking, I was just wondering if I could get a TOA between Bathurst and Newbridge?

BT: Right oh Marc, so... from where to where.

MJ: BT56 to NE1.

BT: Ok BT56 to NE1.

MJ: Yep.

BT: Ok so we show from 10:54.

MJ: Yep.

BT: How long do you want it for Marc?

MJ: Mate, I want it for as long as I can get depending on trains, but 15:00 would be good.

BT: Alright, no at, at the moment I will give you to 13:20.

MJ: Yep no worries mate. You got that one from Blayney coming up is that right?

BT: No, 9837 is running late.

MJ: Oh ok.

BT: He's a down train.

MJ: Ok.

BT: And I expect him at Bathurst there at about 13:40.

MJ: Alright no worries.

BT: Ok, Marc what's your contact number?

MJ: 0419246233.

BT: Ok the TOA number will be 11.

MJ: Yep.

BT: 2, authority is given to occupy the main line between Bathurst BT56 signal and Newbridge NE1 signal, Make 3 commencing at 10:54 today's date the fifth, fifth, two thousand ten. To be fulfilled by 13:20 on the fifth, fifth, two thousand ten, tick number 4 work to be performed.

MJ: Track work.

BT: Track work. Tick number 5, train number WT27 is ahead follow and be prepared to stop. Delete 6. 7, blocking facilities have been applied at Broadmeadow west. Protection B Tuckey at Broadmeadow west. Number 9, authorised by B Tuckey at Broadmeadow west. Read it back to me when your ready thanks.

MJ: No worries Brett. Number 1 is TOA number 11 authority is given to occupy the main line between Bathurst BT56 and Newbridge NE1 signals. Commencing 10:54 hours, to be fulfilled by 13 20 on the fifth of the fifth two thousand and ten. Tick in 4 is track work. Tick in 5 train number WT27 is ahead follow and be prepared to stop. 6 is a cross. 7 is Broadmeadow. 8 is Mr Jenkinson to B Tuckey at Broadmeadow. And 9 is B Tuckey at Broadmeadow.

BT: 8, the details of this form have back by the protection officer M Jenkinson to B Tuckey at Broadmeadow west. Show the time now at one zero five eight (10:58).

MJ: No worries Brett. Thanks for that mate.

BT: Thanks mate."

27. During the course of the voice communications, both Brett Tuckey and Marc Jenkinson completed identical TOA forms.

28. At the time Marc Jenkinson telephoned Brett Tuckey to request a TOA, the Phoenix screen located on the West Board showed the section of track between BT56 and NE1 to be occupied by WT27.

29. At or about 10:54:47am Brett Tuckey applied blocking facilities to the rail track between signals BT56 and NE1.

30. At or about 10:58am, Brett Tuckey issued a TOA number 11 for the section of rail track between signals BT56 and NE1.

31. At the time Brett Tuckey issued a TOA, the train control graph completed by him indicated that the scheduled running of WT27 would pass through the section of track in which the proposed Worksite would be located.

32. After the TOA was issued, Marc Jenkinson completed a worksite protection plan and a pre-work brief document, and provided a pre-work briefing to Luke Jenkinson and Jeremy Cleary. Luke Jenkinson and Jeremy Cleary then signed the pre-work brief document. Marc Jenkinson then said to Luke Jenkinson and Jeremy Cleary "Prepare the gear".

33. Luke Jenkinson moved the hi-rail utility vehicle to a position on the south side of the Main Western Line adjacent to the sections of used rail.

34. Jeremy Cleary took the oxy-acetylene hoses from the tray of the hi-rail utility vehicle and laid the hoses across the rail track and commenced cutting the sections of used rail.

35. At or about the same time, Luke Jenkinson crossed the Main Western Line and started up the engine of the Excavator and then mounted the Excavator on the rail track. Luke Jenkinson was not certified to operate an excavator unless he was under the supervision of a person who held a certificate to operate the plant. Marc Jenkinson was a certified operator for an excavator and it was intended that Luke Jenkinson would operate the Excavator under Marc Jenkinson's supervision.

36. During the setting up of the work, Marc Jenkinson was not supervising the worksite, as he was taking off wet weather clothing beside the second work vehicle parked a short distance away from the worksite.

37. At or about 11:15am, WT 27 exited the left hand bend approaching the Worksite at approximately 70 kilometres per hour. Gary Pearce in the right hand side of the driver's cabin first saw the Excavator mounted on the track, which was then seen by David Oliver, who then applied the emergency brakes.

38. The leading locomotive of WT 27 struck the Excavator at a point approximately 270.512 kilometres west of Sydney, propelling the excavator along the track for about 20 metres when the extended arm of the Excavator struck the hi-rail utility parked adjacent to the track, turning the utility onto its side and derailing the Excavator.

39. Luke Jenkinson was ejected from the cabin of the Excavator during the collision and received fatal injuries. One male passenger on WT27 received a minor laceration to his forehead as a result of the incident.

40. There was significant damage to the Excavator, the hirail utility and the leading locomotive of WT 27 as a result of the collision. The oxyacetylene hoses connected to fuel tanks on the hi-rail utility and laid across the rail track were severed as a result of WT 27 passing over the hoses.

41. Photographs were taken by the rail safety officers who attended the incident on 5 May 2010.

Signalling operations

42. At all material times, the West Board at NCCN was commissioned with an electronic control system called the Phoenix Train Control System ("Phoenix") which was used by the Defendant for control of the movement of rolling stock. The West Board had a number of Phoenix screens that provided the Network Controller with a remote diagrammatic view of signals and rail infrastructure and the position of trains or other rolling stock within the area for which the Network Controller was responsible.

43. The position of trains or rolling stock is relayed to the Phoenix system on the West Board through a system of track circuitry known as Rail Vehicle Detection ("RVD") which is connected to railway signals and the Phoenix system. When rolling stock occupies a section of track in RVD territory (also known as a block) the track circuit is completed and the position of that train or rolling stock within that section of track appears on the Phoenix screen as represented by a red rectangle, or a number of red rectangles (positioned end to end) depending on the length of train as it passes over one or more track circuits, with the number of the train represented on the red rectangle in yellow with letters such as "WT 27" identifying the train.

44. The presence of a train on the track circuits activates signals known as controlled signals (also known as "absolute signals")depicted on Phoenix screens as a base and connected coloured circle orientated in the direction of train travel by turning them to red to prevent other trains entering the occupied section of track. Some track machines such as a hi-rail excavator, however, may not activate track circuits.

45. A Network Controller can control the movement of rolling stock through the area of rail infrastructure for which they are responsible by interacting with the Phoenix system to activate signals or sets of points by using a computer mouse to move a cursor across the Phoenix screen, opening menus and activating the particular signal or set of points by clicking on certain commands.

46. At all material times, the Phoenix system automatically made a continuous record of the diagrammatic view on the Phoenix screens on the West Board at each point in time and of all manual interactions of the Network Controller with the Phoenix system ("Phoenix logs"). The Defendant is able to recall and review these records like point-in-time photographs of the Phoenix screen.

47. At all material times, the Boards at the NCCN including the West Board were equipped with train control graphs which are large paper graphs with one axis representing the location of the train and one axis representing time. Network Controllers are responsible for completing the train control graphs by drawing a line across the graph representing the location of particular trains at particular times as determined from the Phoenix system or from reports from train drivers as to their present location. Network Controllers are also responsible for recording on the train control graphs the location and time of any work on track authorities, including track occupancy authorities that are issued by the Network Controllers in relation to the rail infrastructure for which they are responsible.

Voice Communications

48. At all material times, each Board at the NCCN was equipped with three systems for voice communications:

(a) The CountryNetTrain Radio ("CountryNet") system for radio communications between Network Controllers and train drivers that is operated by the Network Controller by interacting with the Voice Communication System ("VCS") touch screen panel and a telephone handset.

(b) The VCS for communications between Network Controllers and field staff on fixed telephone lines and mobile phones via a touch screen panel and a telephone handset.

(c) A desktop telephone console that is operated by Network Controllers in the same manner as a digital telephone.

49. At all material times, the Defendant had in place a system for automatically recording all voice communications via the CountryNet, the VCS or telephone between Network Controllers and Protection Officers and Network Controllers and train drivers together with the time those communications took place ("audio logs").

50. At all material times, the Defendant was able to review the audio logs of all voice communications to and from the NCCN and to compare the audio logs with the Phoenix logs.

51. At all material times, the Defendant had, as part of its safety management system ("SMS"), Network Rules and Procedures that prescribed how voice communications should be conducted.

52. ANGE 204 'Network communications' provides that all voice communications must be clear, brief and unambiguous and if the communication concerns a work on track method such as TOA, that the receiver of a message must repeat back the message to the sender and the sender must confirm the message has been repeated correctly.

Track Occupancy Authorities

53. One of the signalling operations that could be performed by a Network Controller was implementing the work on track method known asTOA.

54. A TOA is used to exclude rail traffic from a defined section of track to allow persons or vehicles to safely work in the danger zone in that section of the track. The danger zone is an area defined as three metres from the nearest running line of the rail track (unless a safe place exists or has been created within that area).

55. TOA is one of five types of worksite protection provided by the Network Rules and Procedures that may be used to ensure the safety of persons working in the rail corridor (also known as a work on track method).

56. At all material times, as part of its SMS, the Defendant had Network Rules and Network Procedures on which it relied for the safety of its railway operations, including the protection of worksites within the rail corridor by TOA.

57. The Network Rules and Procedures that are relevant to the TOA method of worksite protection included:

(a) ANWT 300 'Planning work in the Rail Corridor' ("ANWT 300");

(b) ANWT 304 'Track Occupancy Authority' ("ANWT 304");

(c) ANGE 204 'Network communication' ("ANGE 204");

(d) ANPR 701 'Using a Track Occupancy Authority' ("ANPR 701").

58. At all material times, the Defendant's Glossary of Terms provided that the Network Procedures were to be read in conjunction with the Network Rules.

59. ANWT 304 provides that all worksites within the rail corridor must have a Protection Officer whose primary duty is to keep the worksite and the workers safe.

60. At all material times, the Defendant employed Protection Officers who were responsible for ensuring the safety of worksites in the rail corridor by assessing the risks to the safety at the worksite and determining what protection is appropriate for the risks present at the worksite. ANWT 300 provides that one of the relevant considerations as to whether a particular method of protection is appropriate is the number of qualified workers at the worksite to ensure the protection of the worksite.

61. ANWT 304 provided that a TOA may be issued "following a train movement" if the Network Controller ensured that the train had passed:

(a) The proposed fixed worksite;

(b) The starting point from which the track vehicle to be protected by the TOA will travel.

62. ANPR 701 provided that a TOA (to start after a train movement) may be obtained if the Protection Officer:

(a) contacts the Network Controller and tells the Network Controller the location and type of work to be done;

(b) watches the rail traffic pass the point from which the track is to be occupied;

(c) gives the Network Controller the identification number of the lead unit of the train.

63. A Protection Officer confirms the location of the worksite by referring to sign posts located approximately every 500 metres alongside the Main Western Line that indicate the distance from a central point in Sydney.

64. ANGE 204 required that a communication from a worksite must include the sender's name, safe-working designation and location.

65. ANWT 304 required Network Controllers, before authorising a TOA, to record in permanent form the details of the TOA. ANWT 304 also required Network Controllers to record, in permanent form, the issue of the TOA, and that if a written authority was issued, that it must be issued on a Track Occupancy Authority form ANRF 002. The Defendant's Glossary of Terms defined "permanent form" as a record made in writing or in a computer system and that is kept for reference and audit.

66. ANWT 304 required Protection Officers to keep written records about a TOA.

67. ANWT 304 did not require a TOA form in certain circumstances, for example during token working or in areas where half pilot staffs are provided or within the yard limits of an attended location.

68. ANWT 304 and ANPR 701 required that the Network Controller must apply blocking facilities to prevent the entry of rail traffic into the portion of track within the TOA limits.

69. Before work could commence at a fixed worksite protected by the TOA in RVD territory, ANPR 701 required a Protection Officer to place out a red flag or light and 3 detonators on the rail track ("Flags and Detonators") a minimum of 500 metres either side of the worksite with the detonators spaced 20 metres apart. ANPR 709 also provided direction to Protection Officers on the placement of Flags and Detonators.

70. The placement of Flags and Detonators was relied upon by the Defendant as a form of secondary protection to the TOA to warn the driver of any train or track vehicle that had entered the section protected by TOA that a fixed worksite was ahead and to stop the train or track vehicle.

71. ANWT 304 also provided that a Protection Officer must tell workers for whom the Protection Officer is responsible about the kinds and limits of the protection in place before work begins.

72. ANWT 304also provided that the danger zone must not be occupied before the TOA is issued and protection has been applied.

73. ANWT 300 and ANWT 304 provided that the Protection Officer's primary duty is to keep the worksite and the workers safe ("Protection Duties") and required Protection Officers to be satisfied that other work would not interfere with Protection Duties.

Defendant's failure to ensure safety of railway operations so far as was reasonably practicable..

74. The Defendant failed to ensure, so far as was reasonably practicable, the safety of its railway operations in that it failed to provide adequate information and instruction to, and training and supervision of rail safety workers as was necessary to enable those workers performing rail safety work using the TOA method of protection in relation to its railway operations to do so in a way that was safe and in a manner that complied with its Network Rules and Procedures.

Issuing a TOA while train in section

75. When TOA number 11 was issued on 5 May 2010, Brett Tuckey and Marc Jenkinson failed to comply with relevant Network Rules and Procedures that applied to the issue of a TOA in that:

(a) WT 27 was in the section to be protected at the time the request was made;

(b) Brett Tuckey did not ask and Marc Jenkinson failed to state the location of the proposed Worksite, and specifically whether it was a fixed worksite or a track vehicle journey contrary to ANPR 701;

(c) Marc Jenkinson did not sight train WT 27 pass the proposed Worksite contrary to ANPR 701;

(d) Brett Tuckey did not ask and Marc Jenkinson did not provide the i dentification number of the lead unit of train WT 27 contrary to ANPR 701.

76. Prior to the incident, the Defendant had issued a number of safety alerts to Network Controllers at the NCCN regarding the correct application of the Network Rules and Procedures relating to TOA, including Safety Alerts 1/2008, 6/2008 and 2/2009.

77. Notwithstanding the safety alerts issued by the Defendant, the Defendant's system failed to prevent Brett Tuckey issuing a TOA for a fixed worksite when there was a train in the section, without Marc Jenkinson first visually sighting and providing to Brett Tuckey the identification of the lead unit of the train.

78. John Tyne, the Defendant's Manager of Operations Hunter Valley with management responsibility for NCCN has stated that, at the time of the incident, it was a practice for Network Controller to issue a TOA for track vehicle journeys in RVD territory where the Network Controller had established from the Phoenix screen that a train was in the section but was ahead of the starting point of the track vehicle journey but the Protection Officer had not sighted the rail traffic pass that point, nor provided identification of the lead unit of the train to the Network Controller. However, as noted above, the TOA in effect at the time of the incident was for a "fixed worksite" and not for a track vehicle journey.

79. At all material times, it was reasonably practicable for the Defendant to ensure that Network Controllers and Protection Officers complied with Network Rules and Procedures and did not issue a TOA with a train in the section unless the Protection Officer had visually identified the train and provided the lead unit number to the Network Controllers or the train was clear of the section.

80. On 25 May 2010, the Prosecutor issued Rail Industry Safety Notice number 31 ("RISN 31"), which inter alia, directed rail transport operators that Network Control Officer MUST NOT issue the TOA unless the Protection Officer has personally seen the train pass and has correctly stated the identification number of the lead unit" and that a "Protection Officer MUST NOT accept a TOA if there is stated to be a train ahead (item 5 ticked on the TOA form) UNLESS he/she has personally seen the train pass and has provided the required certification to the Network Control Officer.

81. The Defendant has distributed RISN 31 to all Network Controllers at NCCN who have signed and acknowledged the interpretation of the Network Rules and Procedures as set out in RISN 31.

TOA Form

82. Under the Defendant's system, the ANRF 002 form ("TOA Form") was used to assist Network Controllers and Protection Officers to comply with the Network Rules and Procedures in relation to TOAs. The TOA Form provided, however, did not itself (although the Network Rules and Procedures did) require Network Controllers and Protection Officers to communicate and record on the ANRF 002 form all safety critical information that the Network Rules and Procedures ANWT 304, ANPR 701 and ANGE 204 required, including:

(a) the specific location of a worksite with reference to the kilometre signposts;

the identification number of the lead unit of the train;

(b) the contact number of the Protection Officer;

(c) specifically, whether the TOA was for a fixed worksite or a track vehicle journey; and

(d) where the work was to commence.

83. The Network Rules and Procedures relied upon by the Defendant to ensure the safety of worksites under the TOA method of protection depend on compliance by Network Controllers and Protection Officers including that they communicate all safety critical information fully and clearly. The TOA Form in omitting to require a Network Controller or a Protection Officer to record the particular safety critical information set out above in permanent form created the potential for safety critical information not to be communicated and thereby caused a risk to safety.

84. After the incident, on 30 August 2010, the Prosecutor issued an Improvement Notice to the Defendant requiring the Defendant to review the adequacy of the TOA Form and the Network Rules and Procedures.

85. Under the Rail Safety (General) Regulation 2008, in order to do this, the Defendant was required to undertake a consultation process which involved consulting about proposed changes to the Network Rules and Procedures and the TOA Form with other rail transport operators and stakeholders.

86. The Defendant commenced the consultation process with the Prosecutor, and then with various stakeholders, in September 2010. The consultation process continued until November 2011 when a final amended TOA Form, known as Form ANRF 002B, was developed and adopted.

87. In response to the Improvement Notice, the Defendant developed and implemented ANRF 002b that is now used as the TOA form in relation to the Defendant's railway operations in RVD territory.

88. RailCorp uses a TOA form in substantially the same form as the TOA Form. RailCorp did not agree to make any changes to its TOA form following the consultation process described above, and continues to use its TOA form in substantially the same form as the TOA Form in use by ARTC at the time of the incident.

Auditing and monitoring recorded voice communications

89. The Network Rules and Procedures relied upon by the Defendant to ensure the safety of worksites under the TOA method of protection depended on Network Controllers and Protection Officers communicating all safety critical information fully and clearly. The failure of a Network Controller or a Protection Officer to communicate safety critical information in the manner required by the Network Rules and Procedures created a risk to safety.

90. Prior to the incident, the Defendant had a system for monitoring and reviewing pre-recorded voice communications between Network Controllers and Protection Officers to monitor whether safety critical information was being communicated in accordance with the Network Rules and Procedures.

91. At the time of the incident, the Defendant's monitoring system for reviewing pre-recorded voice communications between Network Controllers and Protection Officers was inadequate to ensure compliance by Network Controllers and Protection Officers with relevant TOA Network Rules and Procedures because it was not formally recorded in any policy or procedure document. As a result the Defendant's monitoring system was ad hoc and was not adequately targeted at ensuring compliance with the Network Rules and Procedures relevant to TOA.

92. Prior to the incident, the Defendant had implemented a voice communications monitoring program conducted by Janette Paterson, who was employed by the Defendant as a Compliance Officer from July 2007. Ms Paterson was responsible for reviewing voice communications for both the NCCN and the NCCS.

93. Prior to the incident, the Defendant had in place a system of demerit points that applied to Network Controllers. Under the demerit system, Train Transit Managers or the Operations Manager at NCCN were responsible for counselling the Network Controllers and deducting points from an individual Network Controller according to the severity of any safe-working breach identified. However, the Defendant did not have a documented policy or procedure that required specific re-training or re-certification if a Network Controller or Protection Officer was found not to have complied with Network Rules and Procedures when conducting voice communications relating to TOA.

94. After the incident, the Defendant developed a policy document titled "Network Control Recorded Communications OPP-01-02" which, as of 12 July 2011, provides that voice communications are to be reviewed, and if non-compliance with rules or procedures are identified, the breach is to be reported to the Operations Manager.

95. At all material times, it was reasonably practicable for the Defendant to formally record its monitoring system in a policy or procedure document.

Auditing and monitoring TOA forms

96. The Network Rules and Procedures relied upon by the Defendant to ensure the safety of worksites under the TOA method of protection depend on Network Controllers and Protection Officers communicating and recording in permanent form safety critical information fully and clearly. The failure of a Network Controller or a Protection Officer to record safety critical information in permanent form in the manner required by the Network Rules and Procedures created the potential for safety critical information not to be communicated and thereby caused a risk to safety.

97. Prior to the incident, the Defendant had an auditing and inspection system in place for reviewing completed TOA Forms for adherence to the Network Rules and Procedures.

98. At the time of the incident, the Defendant's auditing and inspection system for completed TOA Forms for adherence to the Network Rules and Procedures was inadequate to ensure compliance by Network Controllers and Protection Officers with relevant Network Rules and Procedures because it was not formally recorded in any policy or procedure document. As a result the Defendant's monitoring system was ad hoc and was not adequately targeted at ensuring compliance with the Network Rules and Procedures relevant to TOA..

99. Prior to the incident, the Defendant's auditing and inspection system for ensuring TOA Forms were completed in accordance with the Network Rules and Procedures was conducted by Janette Paterson. Ms Paterson was responsible for reviewing TOA forms for both the NCCN and the NCCS at Junee.

100. As at the date of the incident, the Defendant had a system of demerit points that applied to Network Controllers. Under the demerit system, Train Transit Managers or the Operations Manager at NCCN were responsible for deducting points from an individual Network Controller according to the severity of a safe-working breach identified when conducting an audit of TOA forms.

101. Prior to the incident, the Defendant did not have any documented policy or procedure that required specific re-training or re-certification to occur if a Network Controller or Protection Officer was found not to have complied with Network Rules and Procedures when completing a TOA form.

102. After the incident, the Defendant developed a policy document titled "Network Control Recorded Communications OPP-01-02" which, as of 12 July 2011, provides that TOA forms are to be reviewed, and if non-compliance with rules or procedures are identified, the breach is to be reported to the Operations Manager.

103. At all material times, it was reasonably practicable for the Defendant to formally record the system for auditing TOA forms in a policy or procedure document.

Auditing and inspecting worksites

104. As at 5 May 2010, the Defendant had in place a system to both inspect and audit worksites. Prior to the incident, this inspection and audit system was utilised in the Bathurst Depot. However, this system was inadequate to ensure compliance with Network Rules and Procedures and safe work practices.

105. Prior to the incident, Team Leaders and Team Managers of the Defendant would conduct ad hoc worksite inspections on average about once per month.

106. Prior to the incident, the Defendant had developed checklists including documents titled "Worksite Audit Checklist" and "Workplace Safety Observation for worksite supervisor" that provided direction on what matters should be inspected during a worksite audit, including compliance with the Network Rules and Procedures in relation to TOA.

107. Marc Jenkinson has confirmed that prior to the incident he had been on worksites which were the subject of audits and inspections, however, he had not been the responsible protection officer on those worksites. He stated that none of the worksites in which he was the responsible protection officer had been audited or inspected in the 6 months that he had been a qualified protection officer level 2 up to and including 5 May 2010.

108. Since the incident, the Defendant has introduced additional auditing and inspection requirements, including the requirement that each Team Leader, Work Group Leader, Safety Coordinator and Engineer conduct 1 worksite inspection per week and each Team Manager conduct 3 worksite inspections per week or 12 per month.

109. At all material times, it was reasonably practicable for the Defendant to conduct more regular and more targeted worksite inspections to ensure compliance with Network Rules and Procedures relating to TOA.

Conflict between protection and supervision duties

110. ANWT 300 and ANWT 304 state that "The Protection Officer must be satisfied other work will not interfere with protection duties". However, the Defendant did not have any documented instructions for the position and role of worksite supervisors other than the Network Rules and Procedures.

111. It was reasonably practicable for the Defendant to provide information and instruction to, or training and supervision of persons who have protection and supervision duties to minimise the risks arising from conflicts between those roles, in particular, that work in the danger zone does not commence until secondary protection in the form of Flags and Detonators are laid.

Track workers not to enter danger zone

112. As at the date of the incident, Luke Jenkinson and Jeremy Cleary both held Rail Industry Safety Induction ("RISI") cards, which certified that they had completed rail safety training provided by RailCorp. The Defendant accepted RISI cards as equivalent qualifications to its own "Track Safety Awareness" ("TSA") training which qualified workers to work within the rail corridor. As such, Luke Jenkinson and Jeremy Cleary were not required by the Defendant to undertake separate TSA training.

113. However, Luke Jenkinson and Jeremy Cleary were required by the Defendant to complete, and did so, an online general induction training program. That training listed moving trains, other rail traffic and track equipment as hazards involved with rail work. It also required workers to work in the protected area and never walk onto a non-protected track.

114. The RISI training provided instructions to rail safety workers that work could not commence in the danger zone until the Protection Officer had directed that work could commence.

115. Neither the RISI training nor the Defendant's TSA training provided any information and instruction to rail safety workers that work within the danger zone under TOA could not commence until the protection officer had laid flags and detonators as secondary protection for the worksite.

116. As a result of the Defendant's failure to ensure, so far as was reasonably practicable, the safety of its railway operations in the terms described above, Luke Jenkinson was fatally injured and the safety of other persons in the vicinity were put at risk when train WT27 entered the Worksite located 270.500km from Sydney on the Main Western Line on 5 May 2010 at or about11:15 am.

Decision last updated: 23 April 2013