01 June 2023
17 min read
#Government, #Property, Planning & Development, #Transport, Shipping & Logistics, #Construction, Infrastructure & Projects
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With the imminent stand up of the High Speed Rail Authority (HSRA) on 13 June (and, dare we say it, the return to our screens of the fictional Nation Building Authority on 7 June), it seems the opportune month for a close look at rail.
We also have the benefit of the recent publication of Dr Kerry Schott’s report on Inland Rail and the Sydney Trains Review Initial Report, published in April and May respectively.
We’ve been following the evolution of high speed rail, and looking at some common themes in the thinking behind it and the recommendations and findings of those reports. This is our summary.
Prime Minister Albanese, as a former Infrastructure Minister, knows a fair bit about high speed rail and what’s feasible in a country like ours.
He’s indicated he’s keen to prioritise a high speed Sydney to Newcastle link, as the first stage in a Melbourne to Brisbane coastal corridor.
His thinking is surely reinforced by the work he initiated as Infrastructure Minister and by the report of the High Speed Rail Advisory Group (HSRAG) released while he was Deputy Prime Minister in August 2013.
Critically, the HSRAG report emphasises the need for clarity about where, when and how, and the need to maintain and build momentum. To make high speed rail a reality, it is vital to approach it as a series of smaller, achievable projects, each with tangible timelines, milestones and target dates, as well as staged completion within the foreseeable future.
As the report’s authors say, “the greatest immediate threat to high speed rail in Australia is not cost or timing or technology … it is simply inertia, brought about by perceptions that, even if desirable in concept, high speed rail is unrealistic or not within the contemplation of current generations.”
That inertia in turn has real consequences – it is “not benign”. Inertia delays realisation of the economic benefits of high speed rail. More practically, as cities spread and growth continues without factoring in a high speed rail future, the costs of the project grow exponentially and the options to make it a reality shrink further away.
The recommendations of the report, informed by the drive for momentum were:
Those threshold issues include:
Adding a 2023 lens, we might also task the HSRA with looking at opportunities for Australian manufacturing, broader use of renewables, how its program can dovetail with the current race to build energy infrastructure, climate change impacts and resilience, ensuring inter-operability, reducing environmental impacts of construction and operation, community engagement and social outcomes (such as skills legacy, indigenous workforce and business participation etc).
We’d certainly also recommend they read Dr Kerry Schott’s report.
Dr Kerry Schott’s report into Inland Rail provides further insights into some of the challenges of delivering ambitious linear infrastructure across boundaries and through communities.
Inland Rail refers to the project of upgrading 1,087km of track and developing 687km of new track between Brisbane and Melbourne, traversing regional NSW via Parkes. To date, the project is being delivered by the Commonwealth-owned Australian Rail and Track Corporation (ARTC), which operates the country rail network in NSW and national rail networks more broadly.
Some of Dr Schott’s findings are unique to ARTC and its management, but there are lessons to be learned for all projects of this kind. A key finding is the need for real technical expertise (including engineering, safety, environmental and procurement) in the governance frameworks to complement traditional board capabilities. The principal recommendation is to establish a project-focused subsidiary with the right expertise and singular focus on delivery.
It is evident Inland Rail would have benefited from better articulation of its end objectives, early engagement with communities to secure approvals, better and more comprehensive environmental assessment processes and a more structured focus on inter-operability, transport connections and impacts, risk management, corridor reservation, planning, interfaces, freight outcomes, community outcomes and staging of the project with clear milestones. Reading the report, our sense is there may initially have been a lack of appreciation for the complexity of the task of securing approvals and access to land across such a vast distance, compounded by a lack of precision about the route.
The day-to-day operations and maintenance of our suburban rail network may seem light years from high speed rail and Inland Rail, but they are all part of one continuum from concept to delivery to operations. It’s important to begin with the end in mind, as we all know. For rail, that means starting with a vision of an operating railway that delivers great customer service, is safe, resilient and reliable, seamlessly connects modes and communities, grows our economies and moves our people and freight.
The Sydney Trains review focuses on the reliability and resilience of the Sydney Trains network, a key piece of infrastructure supporting Sydney’s productivity. The review is being led by Ms Carolyn Walsh, the Chair of the National Transport Commission. So far we have an interim report and recommendations. The final report is anticipated in October.
Common themes emerge nevertheless.
One is the importance of having the technical and operational capability represented at the leadership table and having direct input into decision-making. In this case, it means Sydney Trains is to have a seat at the executive table, and be actively engaged in decision-making about major rail asset procurement. It also means the people who operate and maintain the trains, through the rail unions, are to be actively engaged at appropriate stages in the procurement of major rail assets.
Another theme is the development of plans and programs, clearly communicated and delivered on, to resolve the maintenance backlog and other operational issues as quickly as possible.
A third theme is the recognition of the interface issues between different owners and operations, and the potential for duplication of costs and a potential lack of clarity.
It will be interesting how the Sydney Trains review unfolds, and how these three rail initiatives unfold over coming years.
Those folks at the Nation Building Authority will no doubt always be able to elicit a few laughs at the expense of our hard working public sector colleagues delivering major infrastructure. But, the signs are here of a much more pragmatic approach to future project delivery, with specialist expertise at the top table, and a focus on building momentum and getting things done in planned and manageable stages.
Holding Redlich advises on rail procurement, rail operations, rail safety, rail regulatory frameworks and governance of major projects. If you have any questions about this article, or any of the topics covered, please get in touch with a member of our team below.
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Audit Office of NSW: Managing the affairs of people under financial management and/or guardianship orders
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Law Council of Australia: Administrative Review Reform Issues Paper
The Law Council of Australia provided a submission to the Attorney-General’s Department in response to its comprehensive Administrative Review Reform Issues Paper (Issues Paper), which responds to each of the 67 questions set out in the Issues Paper in table form (12 May 2023). Read more here.
Law Council of Australia: Review of Commonwealth Secrecy Provisions
The Law Council’s National Criminal Law Committee, National Security Law Working Group, National Human Rights Committee, and Federal Dispute Resolution Section’s Military Justice Committee provided a submission to the Attorney-General’s Department in response to the Review of Secrecy Provisions (22 May 2023). Read more here.
Law Council of Australia: 2023 Workplace Reform Consultations
The Law Council of Australia provided a submission to the Department of Employment and Workplace Relations (Department) in relation to aspects of its 2023 Workplace Reform Consultations (22 May 2023). Read more here.
High Court of Australia Bulletin [2023] HCAB 04
The High Court of Australia has published a record of recent cases (19 May 2023). Read more here.
AAT Bulletin Issue No. 10/2023
The AAT Bulletin is a fortnightly publication containing information about recently published decisions and appeals against decisions in the AAT’s General, Freedom of Information, National Disability Insurance Scheme, Security, Small Business Taxation, Taxation & Commercial and Veterans’ Appeals Divisions Cases (22 May 2023). Read more here.
Reissued Practice Note SC EQ 4 – Corporations List
On 19 May 2023 the Chief Justice reissued Practice Note SC EQ 4 – Corporations List, with a commencement date of 22 May 2023. Read more here.
QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15
Courts and judges – bias – reasonable apprehension of bias – where appellant appealed to Full Court of Federal Court of Australia from decision dismissing application for judicial review of non-revocation of decision to cancel his visa on character grounds – where appellant sought recusal of judge sitting as member of Full Court constituted to hear appeal – where reasonable apprehension of bias on the part of challenged judge said to arise from judge's appearance, in former capacity as Commonwealth Director of Public Prosecutions, as counsel for Crown in opposition to appellant's appeal against conviction – where appellant's conviction causally related to cancellation of visa and non-revocation decision subject to challenge in Full Court – whether fair-minded lay observer might reasonably apprehend that judge might not be impartial – whether reasonable apprehension of bias on the part of challenged judge vitiated Full Court's jurisdiction.
Courts and judges – practice and procedure – whether application to disqualify judge for bias should be determined in the first instance by challenged judge alone or by all members of court as constituted.
Administrative Appeals Tribunal Act 1975 (Cth); Federal Court of Australia Act 1976 (Cth) and
Migration Act 1958 (Cth).
Attorney-General (Cth) v Huynh [2023] HCA 13
Constitutional law (Cth) – judicial power of Commonwealth – jurisdiction vested in State courts – State laws applicable to offenders convicted of Commonwealth offences – where s 78(1) of Crimes (Appeal and Review) Act 2001 (NSW) ("CAR Act") permitted convicted person to apply to Supreme Court of New South Wales for inquiry into conviction or sentence – where s 79(1)(a) of CAR Act permitted judge to direct an inquiry take place – where s 79(1)(b) of CAR Act permitted judge to refer whole case to Court of Criminal Appeal to be dealt with as an appeal – where convicted person applying under s 78(1) was convicted of Commonwealth offence – whether ss 78 and 79 applied of own force to person convicted of Commonwealth offence – whether s 68(1) of Judiciary Act 1903 (Cth) operated to apply ss 78(1), 79(1)(a) and 79(1)(b) of CAR Act to person convicted of Commonwealth offence – whether ss 78(1) and 79(1)(b) of CAR Act could be applied independently of s 79(1)(a) without different legal operation – whether ss 78(1) and 79(1)(b) of CAR Act impermissibly conferred on judge of State court acting in personal capacity a function without their consent – whether ss 78(1) and 79(1)(b) of CAR Act impermissibly imposed administrative duty on holder of State statutory office without State legislative approval.
Constitution, ss 51(xxxix), 76(ii), 77(iii); Crimes (Appeal and Review) Act 2001 (NSW); Criminal Appeal Act 1912 (NSW); Interpretation Act 1987 (NSW) and Judiciary Act 1903 (Cth).
FRK v Secretary, Department of Education [2023] NSWCATAD 126
ADMINISTRATIVE LAW – administrative review – government information – balancing the public interest considerations in favour of disclosure and against disclosure – disclosure not in the best interests of a child.
Administrative Decisions Review Act 1997 (NSW); Civil and Administrative Tribunal Act 2013 (NSW); Government Information (Public Access) Act 2009 (NSW); Health Records and Information Privacy Act 2002 (NSW); Privacy and Personal Information Protection Act 1998 (NSW) and State Records Act 1998 (NSW).
Willoughby City Council v Blanc Black Projects Pty Limited [2023] NSWLEC 54
APPEAL – Section 56A of the Land and Environment Court Act 1979 (NSW) – appeal against a Commissioner’s decision to refuse the imposition of an affordable housing condition when determining a development application in a Class 1 appeal – whether the Commissioner misconstrued the applicable legislative scheme – application of s 7.32 of the Environmental Planning and Assessment Act 1979 (NSW) – application of cl 6.8 of the Willoughby Local Environmental Plan 2012 and cl 10 of the State Environmental Planning Policy No 70 – Affordable Housing (Revised Scheme) – consideration of the Newbury tests in the context of the statutory provision – errors of law found – eppeal upheld – remitter order made.
Environmental Planning and Assessment Act 1979 (NSW); Environmental Planning and Assessment Amendment (Affordable Housing) Act 2000; Environmental Planning and Assessment Amendment (Affordable Housing) Bill 2000; Interpretation Act 1987; State Environmental Planning Policy No 70-Affordable Housing (Revised Schemes) and Willoughby Local Environmental Plan 2012.
Integrated Trolley Management Pty Ltd v Chief Commissioner of State Revenue [2023] NSWSC 557
TAXES AND DUTIES – payroll tax – liability – employment agents – employment agency contracts – trolley collection and cleaning services provided by subcontractors to supermarkets – whether services of the service provider “in and for” business of a client of the employment agent.
Payroll Tax Act 2007.
Webb v Port Stephens Council [2023] NSWCATAP 133
ADMINISTRATIVE LAW – access to government information – whether disclosure would undermine competitive neutrality of an agency or place it at a disadvantage in any market – whether disclosure would diminish competitive commercial value of information – whether disclosure would prejudice a person’s legitimate business, commercial, professional or financial interests.
Government Information (Public Access) Act 2009 (NSW); Civil and Administrative Tribunal Act 2013 (NSW); Copyright Act 1968 (Cth) and Legal Profession Uniform Law Application Act 2014.
NSW Legislation
Regulations and other miscellaneous instruments
Victims Rights and Support Amendment Regulation 2023 – published LW 26 May 2023.
Liquor Amendment (Alternative Age Verification) Regulation 2023 – published LW 17 May 2023.
Environmental planning instruments
Burwood Local Environmental Plan 2012 (Amendment No 24) – published LW 26 May 2023.
Lake Macquarie Local Environmental Plan 2014 (Amendment No 46) – published LW 26 May 2023.
Tumut Local Environmental Plan 2012 (Map Amendment No 1) – published LW 26 May 2023.
Willoughby Local Environmental Plan 2012 (Amendment No 32) – published LW 26 May 2023.
Blayney Local Environmental Plan 2012 (Amendment No 12) – published LW 19 May 2023.
Bourke Local Environmental Plan 2012 (Amendment No 4) – published LW 19 May 2023.
Hornsby Local Environmental Plan 2013 (Amendment No 12) – published LW 19 May 2023.
North Sydney Local Environment Plan 2013 (Amendment No 35) – published LW 19 May 2023.
Orange local Environmental Plan 2011 (Amendment No 33) – published LW 19 May 2023.
Sydney Local Environmental Plan 2012 (Map Amendment No 5) – published LW 19 May 2023.
Wakool Local Environmental Plan 2013 (Amendment No 6) – published LW 19 May 2023.
Wollongong Local Environmental Plan 2009 (Amendment No 53) – published LW 19 May 2023.
Bills introduced by government
Environmental Planning and Assessment Amendment (Housing and Productivity Contributions) Bill 2023 23 May 2023.
First Home Buyer Legislation Amendment Bill 2023 23 May 2023.
Law Enforcement (Powers and Responsibilities) Amendment (Digital Evidence Access Orders) Bill 2023 24 May 2023.
Statute Law (Miscellaneous Provisions) Bill 2023 25 May 2023.
Bills passed by both Houses of Parliament
Government Sector Finance Amendment (Grants) Bill 2023 25 May 2023.
Revenue Legislation Amendment Bill 2023 25 May 2023.
Commonwealth Legislation
Legislative Instrument
Migration (Granting of contributory parent visas, parent visas and other family visas in financial year 2022/2023)
Instrument (LIN 23/016) 2023 25/05/2023 – LIN 32/016 as made.
Public Governance, Performance and Accountability Amendment (2023 Measures No. 2) Rules 2023 23/05/203 – as made.
Disclaimer
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this newsletter is accurate at the date it is received or that it will continue to be accurate in the future.
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