Greens oppose Government bill that fails regional communities and their right to public transport

Abigail spoke to oppose the Government's rail trails bill, which actually stands to disenfranchise regional communities and their public transport. 

Abigail said: 

On behalf of The Greens, I oppose the Transport Administration Amendment (Rail Trails) Bill 2022. According to the Minister's second reading speech, the bill is intended to remove the need for authorisation from an Act of Parliament every time a new rail trail is proposed, allowing the Minister to instead determine by regulation when disused rail corridors may be used for rail trails. Importantly—and I will come back to this later—although the bill is marketed by the Minister and in its title as being about rail trails, it is much broader than that. It would allow, for instance, for a road to be built across a rail corridor for purposes completely unrelated to a rail trail.

Let us be clear. This bill would reduce the powers of this Parliament. It takes an issue that is highly divisive in some communities, particularly where they lack adequate public transport and are desperate for rail services to be restored, which otherwise would have had the benefit of scrutiny and debate in Parliament, and instead deals with it by regulation. When a regulation is made, it is only through the diligence of the community or of people in this place that it gets scrutinised, and only if a member of Parliament chooses to move a disallowance. It is not otherwise proactively brought to this Parliament's attention. Moving powers of Government Ministers from an Act of Parliament to subordinated legislation should never be done lightly or underestimated in terms of its weakening of the democratic process and of the Westminster system of lawmaking on which this Parliament is founded.

As the Legislation Review Committee noted in its report tabled today, by delegating the authorisation of the use of a disused railway line for other purposes, the bill decreases the level of parliamentary oversight applying to the creation of rail trails. I question the real agenda here. To the extent that a community endorses a rail trail proposal and there is broad support for that, you would expect the passage of a bill for that rail trail to be relatively straightforward and to not take much time. Although there is a lot of legislation that comes before this House that is subject to a protracted process, it is also the case that a lot of legislation comes through here that is not. That is because it is supported by the community, and that gets reflected in this Parliament.

Just a couple of years ago, one of the proposals for a rail trail in the Northern Rivers was put before us. That was an incredibly contentious and divisive proposal and that is why it took so long. But I believe that, in the process of debating that bill in this place, we were able to inform the community, we were able to reflect the community's concerns and we were able to put on record what we expected to see in future iterations of a rail trail bill. I think some of that has been taken into account in the way this bill has been drafted, so that was by no means a waste of this Parliament's time. When a bill effectively takes away the proper workings of democracy and devalues an issue that is at the heart of many communities outside of Sydney, I really think we need to look at it very carefully. Not all rail trail proposals can be treated equally, which is why they need to be under separate bills.

I put on record that The Greens are very supportive of rail trails. We are very supportive when they are in the right place, with broad community support, and where the land is retained in public hands and rail services could be reinstated. Importantly, not every community is looking at this from the same basis. In some of our communities we do not have the same burning need for rail services to be reinstated. But in the north of our State, in particular, the context is that people are unable to get to their work or to pick up their kids from school. They are unable to get to medical appointments because they do not have rail services, they do not have bus services, the taxi industry is drying up and community transport services are not being well funded. People are really struggling.

When you go to a place where people would otherwise want the trains to come back and say, "We have a great idea for what is effectively a business; we will create all of this extra tourism to your region by creating this rail trail", you can imagine how upset they are. If the Government does not want them to be upset by the idea of a rail trail, I suggest that it take really proactive steps to increase other types of public transport in these areas. I cannot understand how we are trumpeting the great tourism benefits of a rail trail that could potentially impact on people and communities that cannot get to where they need to go. That is the context.

On the one hand, you might look at this bill on the face of it and say, "Sure, we will chuck in some rail trails. That's a lovely idea. People love to cycle." But when you are an older person with mobility issues, when you are a carer of somebody with a disability, when you cannot get around cheaply or when you cannot get anywhere without a car, it is really offensive. Again, this is why these proposals need to come to us on a case‑by‑case basis. On the other hand, there absolutely are places where there are disused rail lines and the community is not really that interested in having those train services back. They have long accepted that they do not have that. They have public transport in other ways, or perhaps the socio-economic indicators are different, and they are not as concerned. By all means, go and put the rail trail there. That is why these have to be considered on a case-by-case basis.

We have concerns about the level of scrutiny that any sublease might be subjected to. I understand that under this bill the Minister would basically authorise a council, or a few councils acting together, to lease the land for the use of a rail trail—or, as we now know, for a road or other things—and then there is no real restriction on a sublease. It is important that we look at tightening that provision. The Greens will move an amendment that takes that into consideration and tries to tighten that. We need to consider not just the legal rights but also the practical implications of how hard it is to restore train services. If businesses have put up an establishment or are getting some sort of revenue in from a rail trail, it makes it that much harder to reinstate a rail service.

I note that a compensation provision has been included in the bill, which attempts to preclude compensation being payable to those who have been given a lease over the land and transport corridor. When it comes to trying to reinstate a rail service, there is a provision to say that compensation of certain kinds is not payable. But the Legislation Review Committee has pointed out that it does not preclude all types of compensation and, importantly, any compensation that may be payable under the terms of the lease itself may still need to be paid despite the provision. Again, this sets up a practical limitation when a government wants to bring back—if, in fact, it wants to bring back—train services in the future.

Like a decision to pave a road over part of the rail corridor, instead of building a bridge or doing something else or going around it, a rail trail puts in place structures and customs and habits within a community that are very difficult to work around should anyone wish to reinstate rail in the future. That is why it is so important that we make sure that we are really tightly regulating how these things occur. I acknowledge that the bill is not quite as bad as it might otherwise have been. We have had good debates in this place on previous rail trails, and I believe that has informed the Minister's drafting of this bill. It certainly is not as bad as it might otherwise have been. It does, on the face of it, seek to attempt to preserve rail corridors for future use for train services. But although train services are legally entitled to repurpose the land, the bill does not really take into account what happens in practice once land is allowed to be used for something else.

I also worry about the reliance on the strategy document around rail trails. For example, it envisages that a council will be the ones to actually propose the rail trail. But when it comes to the legislation, none of that is built in. Of course, it is just a framework document; it is not something with any legislative standing. Our amendments will seek to try to build in some sort of process where at least the council is the one that has to come to the Government, rather than the other way around, when it comes to suggesting that we have a rail trail.

If there is a council resolution where a majority of councillors have agreed that the rail trail is a good idea, that is a pretty good indicator that the community might be on board. Even if that is what is intended, at the moment the legislation says that it is something that the Minister will decide to do on the basis of having consulted with the council. I do not think that is sufficient, and that is why we need to futureproof. Perhaps the Minister will not be the one in the driving seat in five years or 10 years, so it would be nice to futureproof this legislation to ensure that the very broad discretion given to the Minister is not misused or used in a way that was not intended by the current Minister.

We thank the Government, the Minister's office and Minister Stokes' office for taking the time to talk to us about our concerns on the bill. We also thank the shadow Minister for taking the time to engage with us in relation to our amendments. The Greens support the idea of rail trails in the right place and with the capacity to bring back trains in the future. But this whole debate again highlights the need for the Government to urgently review the needs of regional communities when it comes to public transport and particularly the long‑term strategy of building in the rail services that we need, not just now but also 10, 20 and 30 years in the future. The car will not replace the train and the bus; it is simple mathematics. Cars take up much more space on our roads, et cetera. It is not a realistic proposal. If we are really serious about providing for the regions, the very least we can do is ensure that they can get from A to B when they need to get there. The Greens do not support the bill and do not think it is necessary. We would like to see rail trails come individually. We would support the review that the Opposition has suggested, and we will be moving amendments to try to at least make the bill a little bit better.

Abigail then moved Greens' amendments. Three Greens' amends were supported and passed successfully! Six Greens' amends were not supported and did not pass.  

Ms ABIGAIL BOYD (21:04): By leave: I move The Greens amendments Nos 1, 2, 4, 5 and 9 on sheet c2022-135F in globo: 

No. 1 Name of Act. 

Page 2, proposed section 1, line 3. Insert "Roads and" before "Rail Trails".

No. 2 Using disused railway lines for rail trails only. 

Page 3, Schedule 1[3], proposed section 99E, lines 17–26. Omit all words on those lines. Insert instead—

(2) The regulations may authorise the use of subject land for a rail trail.

(3) The regulations may, for the purposes of the use of the subject land for a rail trail, also authorise—

(a) the removal of railway tracks and other works from the subject land, and

(b) the rail infrastructure owner to enter into a lease of the subject land with a local council or joint organisation (anauthorised lease).

(3A) A regulation made under subsection (2) must apply to a specified rail trail project and not to rail trails generally.

(3B) Before recommending the making of a regulation under subsection (2), the Minister must—

(a) carry out a cost-benefit analysis, comparing using the subject land for a rail trail with re-opening the railway line for rail services, and

(b) arrange for independent community consultation to be carried out, and

(c) make the outcome of the independent community consultation publicly available.

No. 4 Using disused railway lines for rail trails only. 

Page 3, Schedule 1[3], proposed section 99E(4), line 27. Omit "(a)(i)".

No. 5 Council and community support required. 

Page 3, Schedule 1[3], proposed section 99E. Insert after line 33—

(4A) A regulation may not be made under subsection (2) unless—

(a) the council of the area in which the subject land is located agrees to the use of the subject land for a rail trail, and

(b) there is local community support for the use of the subject land for a rail trail, based on the outcome of the independent community consultation carried out under subsection (3B).

No. 9 Meaning of "rail trail". 

Page 4, Schedule 1[3], proposed section 99E(9). Insert after line 8— rail trail means a track or trail on a disused railway line used mainly for walking or cycling.

I will go through the amendments slightly separately, so let's start with amendment No. 1. I make the point that I made during the second reading debate: I note again that the Minister's contribution in reply was very much focused on rail trails. I understand that rail trails are part of the delegation that is been given to the Minister under this bill. But the Minister is also delegated the authority to build a road over the corridor to do other things. So the Act is misnamed. It should be called the roads and rail trails bill. It allows that sort of road infrastructure to be built as well as a rail trail, so let's be honest about that.

In amendment No. 2 we have sought to restrict this to rail trails only. If this is about rail trails, let's get rid of the delegation in relation to road and road infrastructure. That is what amendment No. 2 is trying to do. I will not touch on (3A) within amendment No. 2 because I think that we will get to that when I move amendment No. 3. Effectively, what we are trying to get at here is if you establish a rail trail, you should make a separate regulation for each rail trail. That will ensure that the relevant community and stakeholders are made aware, but also that the disallowance procedure does not become too cumbersome. I am particularly aware that you could end up with a situation where a rail trail is declared with much fanfare and perhaps supported by the community, but then a concreting over of a completely different bit of rail corridor in a different bit of the State is thrown in, and we are not supposed to focus on that as much. What we are trying to do—and I understand this is the intention of the Minister—is to make sure that each regulation can be dealt with individually.

What we have tried to do in the end of that amendment plus some of the amendments that follow is to take what the Minister is saying about how we have a guideline and a lovely, shiny document talking about how a rail trail gets implemented, but it does not have the status of law. So let's build that in. Let's arrange for independent community consultation to be carried out. Let's make that transparent. Let's have a cost-benefit analysis that compares reinstating train services and the benefit that that would bring the local economy versus introducing a rail trail.

That has dealt with amendments Nos 1 and 2. Amendment No. 4 is consequential upon amendment No. 2. Amendment No. 5 is an extension of that amendment. If, under the guidelines, the idea is that a council applies to have an area of land made into a rail trail, then let's have the Minister's discretion bounded by that having happened first. So the council of the area in which the subject land is located agrees to the use of it for a rail trail, meaning that they pass that resolution. That is a really good start. If that is something that is going to happen anyway, under the Minister's proposed structure, that is great. But let's futureproof it in case that structure changes. Similarly, and again reflecting on exactly what is in those guidelines, real independent community consultation needs to be carried out. Amendment No. 9 is again consequential upon amendment No.2. That is the reason for all of the amendments. I commend them to the Committee.

The five amendments were negatived and did not pass.

Ms ABIGAIL BOYD (21:14): I move The Greens amendment No. 3 on sheet c2022‑135F:

No. 3 Using disused railway lines for rail trails only. 

Page 3, Schedule 1[3], proposed section 99E. Insert after line 26— (3A) A regulation made under subsection (2)(a) must apply to a specified area of subject land for a specified project.

I did cover the amendment in my previous contribution. We would feel a whole lot more comfortable with this legislation if we knew that each project was being dealt with separately. I note that the drafting note on the sheet is not quite right; it still has "for rail trails only". That is not what this does. It treats the existing section 99E as it is. Whether it is for the purposes of a rail trail or any other purposes, the idea is that we have a separate regulation for each specified project.

The amendment was agreed to and PASSED successfully. 

Ms ABIGAIL BOYD (21:16): I move The Greens amendment No. 6 on sheet c2022-135F:

No. 6 Term of leases. 

Page 3, Schedule 1[3], proposed section 99E(5), line 34. Omit "30 years". Insert instead "10 years".

The bill provides for a lease of 30 years. As I said in my contribution to the second reading debate, the Legislation Review Committee was unclear as to whether or not the compensation provision operated effectively to limit the amount of compensation that might otherwise be payable under a lease. Given that 30 years is a very long time, it would be preferable in our view to make it 10 years, even if it was on a rolling basis. It is not just that the compensation that is still payable could end up being a monetary hurdle; one could also, if subleases have been made on the basis of those 30 years, end up with some well-established activities on the land, which would again make it that much harder to plan for the future and reinstate rail. That is why we have proposed the amendment. I commend it to the Committee.

The amendment was negatived and did not pass.

Ms ABIGAIL BOYD (21:20): By leave: I move The Greens amendments Nos 7 and 8 on sheet c2022‑135F in globo:

No. 7 Subleases. 

Page 3, Schedule 1[3], proposed section 99E(8). Insert after line 42— (a1) the circumstances in which a sublease of an authorised lease may be entered into.

No. 8 Subleases

Page 4, Schedule 1[3], proposed section 99E(8)(b), line 1. Insert "or sublease" after "authorised lease".

Amendment No. 8 is about the authorised lease. The regulations will specify the circumstances in which that authorised lease gets entered into but, of course, it can then be subleased. The Greens expect that the sublease terms would also be specified in the regulation, so that it is not just a free‑for‑all. That is what we are asking for here. The Greens have put forward amendment No. 8 on the basis that it would get us there, but the advice from the Parliamentary Counsel's Office is that No. 7 is also necessary, because that then ties the legislation nicely into it—or is it the other way around? Anyway, both amendments are needed to bolster the provision and make sure that it flows properly. I hope that The Greens get support for these amendments.

The two amendments were agreed to and PASSED successfully. 



See the full transcript in Hansard, here.

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