In brief - Productivity Commission's final report on the effectiveness of transport regulatory reforms expected by April 2020
On 12 November 2019, the Productivity Commission issued a draft report on the National Transport Regulatory Reform. The Draft Report comes eight years after the Council of Australian Governments endorsed the adoption of national regulation of heavy vehicles, rail and domestic commercial vessels.
The Heavy Vehicle National Law (HVNL) was passed by the Queensland Parliament, as the host jurisdiction for the HVNL, in 2012. The HVNL came into force in Queensland, New South Wales, Victoria, South Australia, the Australian Capital Territory and Tasmania on 10 February 2014. Western Australia and the Northern Territory chose not to apply the HVNL. Further amendments to the HVNL came into effect on 1 October 2018, which included reformulating the Chain of Responsibility obligations as a positive due diligence obligation.
The Commission was asked to report on the effectiveness of transport regulatory reforms, including the HVNL reform, and assess the scope for future reforms. In its Draft Report, the Commission has made a number of specific preliminary findings and recommendations. Most importantly, the Commission concludes that, while some gains from the reforms have been made, the expected benefits were excessively optimistic and have not been achieved.
The Commission urges industry participants to switch from "tick the box" technical compliance towards accredited, risk-based management safety management systems.
Is the National Heavy Vehicle Law "national"?
The Commission recognises that the HVNL reform has delivered more consistent regulation across most jurisdictions and is likely to have reduced compliance costs for interstate operators and increased road access for larger vehicles. The Commission notes that Western Australia and the Northern Territory remain outside the HVNL regime, choosing to apply a less prescriptive approach than the HVNL.
The Draft Report further notes that there are over 70 derogations from the HVNL. While some derogations are only administrative in nature, making the law more flexible, others fundamentally depart from the HVNL. The lack of mutual recognition or uniformity creates unnecessary costs for industry participants and is contrary to the objectives of the harmonisation reforms. Derogations result in operators being required to comply with multiple regulations. For example, periodic inspection requirements for heavy vehicles vary across jurisdictions. The Commission recommends to review and remove significant derogations, having regard to the implications for safety.
From a practical perspective, our experience defending HVNL prosecutions across the Eastern seaboard has shown that a key challenge with establishing uniformity for HVNL relates to the operation of different procedural and evidentiary laws in each state criminal jurisdiction. These differences significantly impact the way in which the HVNL operates.
Is the HVNL too prescriptive?
The Draft Report criticises the HVNL for being highly detailed, complex and excessively prescriptive. The Commission notes that the HVNL contains almost 800 sections in addition to five sets of regulations. The Commission further notes that although the prescriptive nature may provide certainty for some operators, it creates an impediment to achieving effective regulation and good safety outcomes.
The Commission urges the Australian, State and Territory governments to reform the HVNL to reduce the level of prescription in the legislation. The Commission recommends to adopt a more outcomes-based approach to legislation and regulation, which would improve road safety and reduce the burden of compliance and administration.
While this is the Commission's view, our experience working with industry participants is that the HVNL may not be prescriptive enough where it needs to be. For example, although the "so far as reasonably practicable test" reflects a similar concept in the Work Health and Safety legislation, it remains unclear what is specifically required to comply with the HVNL and defend a prosecution.
Have the reforms improved safety?
The Draft Report highlights that there have been significant improvements in heavy vehicle safety over the past decade, however, there is insufficient evidence to attribute positive heavy vehicle safety outcomes to the HVNL reforms. Notably, the report states that most multi-vehicle fatal crashes involving a heavy vehicle are not the fault of the heavy vehicle driver, and further notes that in 2017, the driver of the other vehicle was at fault 83 per cent of the time.
During our participation in public consultations with the National Heavy Vehicle Regulator, it has been observed that for most Australian states, motor vehicle licence testing and training contains minimal or no education on sharing main roads with heavy vehicles and/or heavy vehicle awareness. In this regard, the Commission encourages State and Territory governments to improve the behaviour of general road users when driving in the vicinity of heavy vehicles through education and enforcement measures.
The Commission acknowledges that fatigue remains a significant safety issue and is associated with roughly one in ten major heavy vehicle crashes. The Commission notes the positive impact of the introduction of standardised work diaries on fatigue-related safety outcomes.
Use of transport technology
The Commission highlights the potential of transport technologies to increase safety, productivity and environmental performance in the transport sector, while also noting costs and risks associated with the adoption of new technologies. In this respect, the Commission recommends that the Australian Design Rules and in-service vehicle standards be amended to allow for the expedited adoption of new and internationally approved transport technologies, including automated technologies.
What happens next?
The Productivity Commission has invited interested parties to make written submissions on the Draft Report by 15 January 2020. The final report is expected to be finalised by April 2020. We will report further following the release of the final report.
The Draft Report is available at https://www.pc.gov.au/inquiries/current/transport/draft.
This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2019.