National Regulator takes shape

With the release of the draft Regulatory Impact Statement (RIS) for the Heavy Vehicle National Law (HVNL) by the National Transport Commission, the trucking industry can start to see the shape of things to come, in terms of national truck regulation.

As a concept, the idea of one body controlling most of the laws governing those operating in the trucking industry, was welcomed warmly by everyone concerned. There was also a large amount of cynicism about the prospects of such a project actually achieving its aims.

The HVNL will bring together all of the laws developed by the NTC over the last 20 years, with the development of one single body of rules. A consistent enforcement philosophy could be expected to save the country millions of dollars currently being wasted by the industry just to cope with regulatory differences.

Now the first clear facts about the likely shape of the NHVR are appearing, the kind of harmony between states which will be practically possible looks like falling short of the kind of total reform the industry has been calling for. However, any improvement over the current situation will be regarded as progress and holds out the hope for a continuing process of improvement in harmony between interstate regulations.

“The consultation period for the RIS is for 10 weeks,” says George Konstandakos, Project Director for the NTC. “It runs until May 6 and we are looking for feedback on the proposals. If people in the industry feel strongly about the issues raised, this is their time to speak.

“We are working closely with the NHVR Project Office in Brisbane to get things right, to get the new national system to work properly on the ground. It is our aim to make those lines on the map invisible so that drivers don’t have to take a punt on whether they are legal or not when they cross the border.

“If all of the laws are consolidated nationally without the enforcement being included it will dilute the benefits. From the feedback we have received so far, the trucking industry want a new national regulator with teeth. They are looking for a single chain of responsibility enforcement policy driven by the new regulator.”

Speaking at the recent LBCA conference, Richard Hancock, who is the Project Manager for NHVR, professed his desire to get a real feeling about what it is the industry needs and expects from a national regulator. He told delegates, “I’m not just going to sit in my office in Brisbane, I want to know what the industry is thinking.”

“The NHVR can have its own resources, and that simple statement says a lot about what it can do,” said Mr Hancock to the LBCA. “These issues have not been fully agreed as yet, but I think the NHVR should have its own resources to undertake national prosecutions and pull together all of the data, nationally, about chain of responsibility. It should also be able to get the states and territories to do investigations on its behalf. A good national approach which works the way I think it should can start to deal with others in the supply chain apart from just drivers and owner operators.

The process began with the decision by COAG back in July 2009 to establish a single national system of laws for trucks. The plan was to have a National Heavy Vehicle Regulator in place by January 2013. The decision was for national law to be based on a new set of Queensland laws to be duplicated around the state parliaments to achieve harmony. Queensland was also to be the base of the regulator itself.

It was at this point the horse trading began. Each state has its own set of preferences and peculiarities when it comes to regulating trucks and each department in these states has its own axe to grind when looking at legislation. The RIS clearly demonstrates many of the arguments between states are far from a solution and the document is peppered with caveats leaving room for some form of compromise to be hammered out between stakeholders.

The RIS has been released before all of the major issues have been hammered out, on the understanding that jurisdictions will be continuing to make submissions during this next consultation phase. In its explanation of the situation the NTC notes, ‘This means that some provisions in the draft national law reflect recommended and not resolved outcomes on some issues’.

There are a number of areas where there is still considerable divergence between current regulations and the ideal of a single set of rules governing trucks and trucking. Western Australia has taken a different line in regulating several aspects of the rules. For instance, WA uses the OHS rules to regulate driver fatigue in the trucking industry in a system completely different from the strict hours based rules pertaining in the East.

“When we are dealing with the senior levels in the state governments we are getting considerable buy-in from these people,” says Mr Konstandakos. “I have seen a definite shift in the last few months, as we get closer to making this happen. The atmosphere is now positive and we are working hard to keep the momentum going.

“There are still 34 issues outstanding on which we need to get agreement. A lot of them are relatively small issues on which I am sure we can get an agreement. I think the fatigue scheme in Western Australia is probably the biggest we have to get over. We’re working hard on developing a concept to get WA across, fatigue experts are working to develop a template within AFM which will satisfy the needs of the industry in the West.”

The HVNL RIS discusses the disappointing failure of the Advanced Fatigue Management system. It says the system requires an overhaul as the barriers to entry are too high while stating the obvious fact that AFM has not been adopted to the extent anticipated when it was developed. The kind of suggestions being mooted include a new approach to creating what it calls ‘risk countermeasures’ or ‘offsets’.

The negotiation process is supposed to consist of the states working together to decide what the single regulation will be for the whole of Australia. If no agreement can be reached the issue is then sent to the Independent Expert Panel. This group is charged with arbitrating between the different factions and coming up with a solution which will pass into national law, presumably, whether the states like it or not.

Allowances for local productivity variations have been made throughout the process of the development of the national law. There is also an issue concerning the mutual recognition of accreditation schemes across borders, especially by WA. Mr Konstandakos expresses confidence that the state will come to an agreement on mutual recognition.

“If the national heavy vehicle law is to be truly national, it is absolutely essential that the needs of Western Australia be accommodated and the support by the ATA for a national regulator is contingent on finding a solution to that,” says ATA’s National Manager Government Relations and Communications, Bill McKinley. “In considering the RIS and in lobbying for our submission we will be taking up the position of the WA ATA very strongly. The solution which is adopted has got to satisfy the needs of the trucking industry in Western Australia and the Northern Territory, as well as the trucking industry in the Eastern States.”

The topic of Higher Mass Limits (HML) has led to an impasse between the states on nationally consistent rules. Each State and Territory allows variations and restrictions for particular areas and parts of the road infrastructure. Different configurations are allowed in different states over different roads at different times and the individual states are unwilling to give up both the productivity gains and the infrastructure protection they currently enjoy.

When the national law is enacted, each state is expected to introduce variations and derogations to the law, as passsed, to maintain the current situation for operators in each state who operate under HML. The inconsistency of approach, from state to state, looks set to continue in this area and will limit the acceptance and use of the HML scheme, especially for operators moving between states.

“From the industry’s point of view, we would like to see as few productivity sapping variations as possible,” says Mr McKinley. “The system needs to realise that some states in some areas have special productivity considerations, like harvest schemes. What we do not want to see is productivity schemes with the individual states setting their own extra requirements on top.

“The ATA thinks it is better that the NTC release the RIS now even though it has some un-stitched edges on it than narrowing down every detail between the States and then putting it out without time for consultation. Governments have to strike a balance when consulting on a process like this. We can accept there are a few loose ends at the moment. We would rather have some extra time than be presented with a polished package for a very short period of consultation.”

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