The Rule of Law

A comprehensive review of HVNL has many detractors who argue it was never fit for its purpose but provides the chance to bring about some real change for the industry.
Ken Kanofski.

Back in November 2018 the nation’s federal and state Transport Ministers asked the National Transport Commission (NTC) to lead the review of the Heavy Vehicle National Law (HVNL) and its supporting regulations.

The current HVNL, which has been in place since 2014, runs to some 800 sections with five supporting regulations. The NTC spent two years undertaking its own review of the NHVL between March 2019 and May 2021 and identified a number of areas requiring attention, although no changes were ever forthcoming.

Progress seemed stalled until February 2022 when former NSW Roads and Maritime Services CEO, Ken Kanofski, was given the task of heading the HVNL Review and undertook extensive consultation across industry stakeholders including the peak associations as well a number of individual operators.

With 20 years’ experience as a CEO within the NSW Government, Ken was engaged as an independent consultant to undertake stakeholder input on the safety and productivity aspects of the HVNL and to prepare a package of reforms for the Transport Ministers.

In early August 2022 the Infrastructure and Transport Ministers’ Meeting (ITMM) agreed to progress a package of the proposals and in September 2022 directed the NTC to complete an impact statement on the legislative reforms which is an important step in the process of changing law.

The Review includes suggestions for key reforms in the areas of access, fatigue management, enforcement, and accreditation.

In relation to access, the review recommends jurisdictions to implement online real time access decision making and greater use of “right of access routes” along with the economic appraisal of some modest increases in mass and dimension.

Industry bodies such as the ATA have long been agitating for improvements in the access permit scheme which was originally purported to be one of the shining benefits of the HVNL and a major remit of the NHVR in cutting red tape and improving productivity, but which has left many operators disappointed and frustrated. There are also several suggested reforms to the current PBS system.

The Review addresses a path towards simplified fatigue management, including record keeping, without compromising safety and supports a risk-based regulatory approach.

Suggestions for the management of fatigue include the encouragement and incentivising of modern fatigue detection and distraction technologies as well as more take up of Electronic Work Diaries (EWDs).

Revised medical standards and assessments, as part of the driver licencing process, are proposed, as is a two-tiered fatigue management system incorporating a Fatigue General Schedule, similar to the existing standard for driving and rest periods, and a Fatigue Certification Scheme for those who undertake the training and meet the requirements to be able to operate under circumstances similar to the current basic and advanced fatigue management schemes.

Of interest to those at the pointy end of the industry, mainly the drivers, is a detailed list of reforms in relation to enforcement including a review of offences and penalties being undertaken in consultation with state and territory jurisdictions, the NHVR, Police and the industry.

The review includes a consideration that roadside enforcement should focus on the immediacy of fatigue risks, rather than historical breaches, and that the time frame for issuing infringements for fatigue breaches should be limited to the previous 14 days.

Furthermore, infringements for work/rest breaches should shift from focusing on specific incidents to focusing on overall breach risk profiles and relating back to improvements to chain of responsibility enforcement.

The Review also suggests the primary mechanism for addressing administrative errors or oversights such as spelling or mathematical errors detected at the roadside should be the rectification of the errors, and any forthcoming associated penalties should be proportionate to the risk involved.

Accreditation presents an increasing administrative burden at many levels and the Review calls for improvements to be made to the existing National Heavy Vehicle Accreditation Scheme (NHVAS) for a single, modular, opt-in (voluntary) certification scheme which will be administered by the NHVR.

The overall aim of this reform is to improve safety and productivity outcomes for the NHVAS by offering a compulsory Safety Management System core module and more flexible and diverse alternative compliance.

In keeping up with technology, electronic documentation will replace NHVAS paper-based requirements, with operators retaining the option to carry paper copies of documents if they wish.

An important aim is to reduce the need for multiple audits including those currently insisted upon by customers to meet their own chain of responsibility obligations. A National Auditing Standard will be recognised in law as part of the scheme.

Some of the proposed reforms will require a new HVNL while other non-legislative reforms will be progressed by nominated state or territory governments.

A Steering Committee consisting of senior bureaucrats will oversee the implementation of both legislative and non-legislative reform and to provide ongoing industry engagement.

There is criticism that there is no representation from industry on the steering committee which held its first meeting at the end of September 2022.

Ken Kanofski will continue to be engaged as an adviser to the HVNL Steering Committee which will oversee the progress of reform activities and engage with all jurisdictions and other bodies key to reform including the NTC, Austroads and the National Heavy Vehicle Regulator with the aim to resolve issues related to implementation of the reform activities.

The intention of the Review was to examine areas of reform within the HVNL to change it to be more performance-based and outcomes-focused with improvements in the areas of safety, productivity, compliance and enforcement.

After some four and a half years, many of the key suggestions seem likely to be finally implemented but the wheels of reform turn slowly and it is very likely that no changes will be effected until 2024.

The final package if implemented as expected will not appease everyone, but, definitely goes a long way to rectifying the shortcomings of the original HVNL and will improve productivity and safety across the industry.

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