Fundamentals for a better HVNL
The National Transport Commission (NTC) is reviewing the Heavy Vehicle National Law (HVNL) from first principles. We have invited submissions on fundamental principles for a better HVNL that improves safety and supports productivity.
In the Risk based approach to regulating heavy vehicles paper, we asked questions about object and scope, regulatory style, regulatory structure, and the relationship of the HVNL with other legislation.
This section outlines what we heard from state, territory and local governments, as well as regulators and a diverse range of industry stakeholders. Submissions have been broken into key parts:
- Objects of the law
- Style and structure; and
Objects of the law
What we said
In the Risk based approach to regulating heavy vehicles paper we invited submissions on whether the objects of the law should change. In the Assurance models and Effective enforcement papers we identified the link between compliance with the law and delivering on its objects. To achieve this, the objects have to be simple, clear and unequivocal.
The HVNL has a range of objects specified in section 3 of the law. They cover public safety, public amenity, the environment, road infrastructure, industry productivity and efficiency, and business practices.
The objects of the law outline the purpose and goals of the law. The scope of the law is about what is regulated by the HVNL, including which parties should be captured.
What we heard
Governments agreed that the HVNL should have a clear primary purpose of safety. Some departments suggested there should be further analysis of the conflict (real or perceived) between safety and productivity outcomes.
Governments also highlighted that the scope of the law and how it interacts with other laws (eg. Work health safety and the Australian Road Rules) requires further consideration.
One government department stated that the HVNL should not regulate heavy vehicle driver licensing, but that there may be a case for the HVNL to do more to regulate driver competency and fitness for duty.
The NHVR suggested the object of the law should be updated to reflect a more modern and responsive approach to the heavy vehicle task. This could include emphasising the shared responsibility of all parties to improving safety, efficiency, productivity, and national consistency in applying the law.
Drivers agreed that the HVNL should have a clear primary purpose of safety, and that productivity and regulatory efficiency should be reflected in the objects of the law.
One operator stated the scope should be expanded to include vehicle registration and driver licensing. Their view was that the law should consider the road network and its users as an ecosystem. This operator also stated the law should be more explicit about the obligation to ensure safe drivers and safe driving.
Peak bodies said they want national consistency and recognition of diversity in heavy vehicle transport to be reflected in the objects of the HVNL.
Most peak bodies view efficiency, productivity and improved safety outcomes as the ultimate end-goal of the future HVNL.
Peak bodies voiced views that licensing and registration should be regulated by the HVNL and that this is important to industry sustainability. Most peak bodies also viewed speed and drug and alcohol management as being out of scope for the HVNL.
There is broad agreement that the objects of the HVNL should have a clear primary purpose of safety, complementing more general WHS laws.
There is broad agreement that productivity and/or efficiency should be included in the objects of the law.
There are diverse views on how productivity and efficiency should be reflected in the objects. Some respondents say that safety should have absolute primacy, whereas others think that productivity should be given equal status as an object of the law.
There are diverse views about what the law should regulate. Industry largely share the view that licensing and registration should be part of the HVNL, however this view is not shared by governments.
Style and structure
What we said
The NTC invited submissions on how the style and structure of the HVNL can best manage risk and promote flexibility. We asked questions about how to create a cohesive and comprehensive legislative environment that delivers better safety outcomes.
Regulation can be prescriptive (rules-based), performance-based or principles-based. Under a risk-based regulation framework, these regulatory styles are differentiated based on how the risk management role is shared between the regulator and regulated parties.
On the HVNL microsite we asked respondents whether they would prefer a prescriptive and/or performance-based new law. Fifty-three per cent preferred a new law that has both prescriptive and performance-based elements. Only 13 per cent preferred a prescriptive piece of legislation.
The HVNL comprises the Heavy Vehicle National Law Act 2012 (Qld) and five sets of supporting regulations. A range of other instruments complement and build on the primary legislation and regulations. These include registered industry codes of practice (RICPs), rules and guidelines.
The NTC asked stakeholders whether obligations should be pushed down the legislative hierarchy. This would speed up amendments and make the law more responsive.
Elected representatives still have oversight of the law. For example, we should not set up a system that a future regulator could amend without due consideration of the impacts on industry and others.
What we heard
There is support across governments for a risk-based approach to regulation that has an appropriate balance of prescriptive and performance-based regulatory styles.
I was recognised a single regulatory style may not be suitable for all aspects of heavy vehicle regulation and that the future HVNL must recognise industry diversity. It was agreed however that the prescriptive nature of ‘how’ an operator must comply with the law should be reduced.
One government department suggested that a transition to a more performance-based law should be implemented in stages, as risks and challenges become better understood.
Governments emphasised that while performance-based regulation can deliver improved safety outcomes and productivity gains, this style of regulation presents challenges for smaller operators.
One government department noted that the National Heavy Vehicle Accreditation Scheme was a form of risk-based safety management system, yet only a limited number of operators have joined the scheme.
Governments were supportive of placing obligations lower in the hierarchy of legislative instruments. Some general comments about regulatory structure, included:
- all subordinate legislation (eg. standards and guidelines), should be approved by ministers in the first instance
- fundamental legislative principles on the rights and liberties of individuals and the institution of Parliament must be considered
- the development of criteria for determining where obligation should be placed would be helpful in the structuring and drafting of the new HVNL; and
- the law should be flexible to be able to adapt to changing circumstances and make consequential changes based on priority, risk and urgency..
Local governments agreed the HVNL should strike a balance between prescriptive, performance-based and principles-based law.
Local governments agreed with placing obligations lower in the legislative hierarchy to simplify the law.
One local government cautioned there must still be incentives and penalties to ensure compliance with all levels of the hierarchy.
What we heard
Enforcement and regulators agreed that transitioning to an outcomes, performance-based approach will deliver significant improvements for safety, diversity, and innovation.
Enforcement and regulators stated that prescriptive regulation is expensive and that moving to a performance-based approach will create efficiencies.
Enforcement and regulators stated that outcomes-focused regulation should not result in diminished obligations and responsibilities.
Enforcement and regulators outlined several key principles and priorities for the review. The first outcome was a simplified, easy to understand harmonised law. Enforcement and regulators were of the view that the law should:
- be simplified so it can be understood and effectively used by industry, governments, regulators and enforcement agencies
- achieve a successful harmonised national law by removing unnecessary derogations
- wherever possible, ensure administrative and regulatory details are dealt with through regulation and legally enforceable guidelines, standards, codes of practice and business rules.
Enforcement and regulators were of the view that the revised law should allow flexibility, as to not inhibit policing, enforcement, compliance and regulatory bodies from appropriately targeting their highest risk issues.
Heavy vehicle drivers commented that the rules should be simplified. Drivers suggested that the regulations should be detailed and outline specific requirements for different organisations, locations and models.
Drivers stated that fatigue should be moved into a performance-based space rather than on the spot fines for items such as recording the wrong time zone.
A heavy vehicle driver suggested that the HVNL should be repealed and replaced with an easy to read and mandatory Master Code of Practice.
The driver proposed that the Master Code could run alongside the Australian Road Rules and Australian Design Rules.
Operators supported a risk management approach that recognises that a prescriptive law is appropriate in some circumstances.
Operators also highlighted that a risk-based approach will require a significant change to enforcement.
Operators were of the view that the legislative structure should allow for low order instruments to solve real issues quickly as they arise.
An operator suggested that road transport could be conducted under a similar model to the Civil Aviation Safety Authority and states defer powers to the Commonwealth.
Peak bodies were divided on the preferred regulatory style for a future HVNL. While some industry peak bodies were supportive of moving to a risk-based approach, others preferred the clarity provided by prescriptive legislation.
Peak bodies who were supportive of moving to a risk-based regulatory style believed this approach would allow legislation to accommodate technological changes and transition to a less onerous compliance regime over time.
Peak bodies who were not supportive of moving to a risk-based regulatory style viewed that any further move to ‘principles-based’ regulation is likely to increase compliance burden on smaller operators. They believed that moving away from a prescriptive approach can reduce certainty about what compliance may look like for parties.
Peak bodies suggested that any changes to the regulatory style should allow sufficient time for implementation.
Peak bodies were supportive of moving towards a risk-based legislative structure.
The majority of peak bodies were supportive of moving as much regulatory detail as possible to regulations or legislative instruments.
Most respondents agreed that the new HVNL should contain a balance of regulatory styles that address risk. Most respondents agreed there needs to be a tiered approach that addresses the diversity of the industry, including owner drivers and large multinational operators.
Most respondents were supportive of placing obligations as low in the hierarchy of legislative instruments as is appropriate. Most respondents were supportive of moving towards a risk-based legislative structure.
Some respondents suggested however that any changes to the regulatory style should allow sufficient time for implementation. The transitional arrangements need further consideration. · Respondents did not agree on the areas in the law that should adopt a prescriptive, performance-based or outcomes-focused regulatory style. This requires further analysis and discussion.
Although respondents were supportive of moving towards a risk-based legislative structure, respondents did not agree on what the legislative structure should include.
What we said
The NTC has invited submissions on the scope of the HVNL, including who it should regulate and what parties’ duties should be. Developing the right set of duties will be critical to ensuring the law's objects are achieved.
The HVNL currently imposes several duties:
- the primary duty on chain of responsibility (COR) parties to ensure, so far as is reasonably practicable, the safety of transport activities relating to a vehicle (s 26C of the HVNL)
- a duty on executives of legal entities to exercise due diligence to ensure the relevant legal entity complies with the primary duty (s 26D of the HVNL)
- duties on responsible entities, operators and drivers to comply with container weight declarations (ss 190–192 of the HVNL)
- a duty on the driver to avoid driving while fatigued (s 228 of the HVNL)
- duties on authorised officers relating to exercising their powers (ss 578 and 582 of the HVNL); and
- confidentiality duties on people who exercise functions under the HVNL (ss 728 and 728A of the HVNL).
Most duties have clear links to the objects of the law, but some are less obvious. Similarly, many prescriptive requirements under the law are associated with the duties in the law, but not all of them.
What we heard
There is broad support by governments for retaining the primary duty in the HVNL.
One government department said further analysis is required before deciding on whether the primary duty should be expanded.
There is a view that the primary duty should be expanded to persons with “control and influence” on heavy vehicle operations. However, one government department cautioned that applying the primary duty more broadly (beyond the current COR list) may result in unintended regulation of parties that are far-removed from heavy vehicle transport.
The NHVR raised that the operation of the primary duty could be improved if COR parties more effectively shared information. They report that COR parties are not consulting with operators or drivers on safety critical issues that affect the driving task. For example, consignors may not be sharing information on load restraint requirements to packers. They suggest establishing a duty to share knowledge or consult across the COR.
The NHVR also reported the quality of heavy vehicles and componentry parts is an issue repeatedly raised by operators, however manufacturers are not captured by the primary duty.
Drivers emphasised that they continue to bear the brunt of enforcement under the HVNL, despite the introduction of the primary duty on COR parties. They state that regulators do not go up the chain and that they are focused on roadside enforcement which only involves the driver.
One driver also noted that COR parties often attempt to circumvent obligations by making drivers fill in detailed forms certifying they have “done everything right”. This task is becoming onerous and does not serve to improve safety.
The majority of operators also agree that the definition of parties in the COR (and therefore the primary duty) does not capture everyone it should. One operator identified stevedores, freight forwarders, brokers and agents as examples of parties who may be able to disavow themselves of safety responsibilities because they are not explicitly mentioned as a party in the COR.
Operators have also emphasised that drivers should be subject to the primary duty.
Peak bodies expressed strong support for retaining the primary duty, but also identified opportunities to extend its reach and improve its enforcement. Many peak bodies submitted the current definition of parties in the COR does not capture everyone it should. Third party repairers were commonly mentioned as a party that should be covered, although not all peak bodies agree on this point.
Peak bodies raised that third party customer auditing of operators has increased significantly since introducing the primary duty in October 2018. This has been administratively burdensome and has not led to improved safety practices.
One peak body stated the HVNL must be better aligned to WHS model law. Currently drivers and other parties not in the HVNL definition of COR are captured by WHS duties applying to ‘persons conducting a business or undertaking (PCBU) and to ‘workers’, however the NHVR does not have WHS law functions. They suggest that extending the primary duty to persons with “control and influence” on transport activities would bring greater alignment between WHS and the HVNL, making it easier for parties to develop safe practices which comply with both laws.
There is support across government, regulators and industry for retaining the primary duty in the future HVNL. Many stakeholders acknowledge opportunities to reconsider its scope and the way it is enforced.
A large group of peak industry bodies and operators agree the primary duty should apply to drivers.
There is broad support for clarifying what the primary duty requires and reducing instances of third party customer auditing which does not help operators to improve safety practices.
Not all stakeholders agree that third party repairers should be included as parties in the COR and captured by the primary duty. One industry body noted that while third party repairers should do their job competently they cannot force operators to undertake recommended repairs to the vehicle.
On the issue of including drivers in the COR, drivers have highlighted that despite the primary duty drivers still bear the brunt of enforcement as regulators may be reluctant to go up the chain.
Last updated 17 February, 2020