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Questions posed on HVNL risk based approach

Alternative views also raised on need to throw out existing law

 

While the trucking industry is all but unanimous on the need for wholesale change of the Heavy Vehicle National Law (HVNL), a different emphasis is clear from non-industry quarters on the option of a risk-based regulatory approach.

Queensland government, academic and safety expert submissions to the National Transport Commission’s (NTC’s) HVNL reform paper on the subject point to a need for rigorous analysis and clarity on what a risk-based approach would look like and its efficacy.

While Victoria’s and South Australia’s transport departments withdrew their submissions from publication, that of Queensland’s Department of Transport and Main Roads (TMR), prefaced by director-general Neil Scales, was open to public reading.

In it, Scales emphasised the reality of federation in what is “conceptually” a national regulatory framework, and therefore the accountability of state ministers for outcomes, intended or otherwise, given the NHVL is essentially a series of state laws.

“The HVNL review process and resulting new law needs to recognise the constraints and obligations of this arrangement,” he writes.

While TMR is broadly in support of risk management, Scales insists a shared understanding of the new law’s objectives and intended outcomes was crucial to gaining political agreement.

The submission argues a “more objective and evidence-based assessment” of the present law must be undertaken for the consultative regulatory impact statement (RIS).

Unlike industry, TMR urges caution on wholesale changes, suggesting there be a focus on whether operational changes could “provide a better outcome”, rather than legislative reform.

“For example, problems with the inconsistency in enforcement activities would likely be best addressed through other means, such as changes to the national compliance strategy, uniform procedures or officer training,” it says.

In its defence, TMR says the HVNL provides “a single body of law” that is better than what went before and that it “currently houses all the regulatory models presented in the issues paper”.

On the issue of derogations, these were seen as a function of the speed at which the NHVR was constructed.

Regarding the industry’s appetite for risk-based regulation, the TMR questions whether that is particularly great, given the level accreditation scheme membership.

Asked separately about the TMR’s submission, Queensland Trucking Association CEO Gary Mahon takes issue only with reasoning on this aspect, pointing out to ATN that any reticence was more likely due to industry managers being busy enough complying with customer audits as opposed to schemes for which they derived marginal gain.

Mahon feels sure the action on HVNL reform will focus most on issues related to fatigue and access.

TARS

The University of NSW Transport and Road Safety (TARS) Research Centre critiques the review issues paper for making “sweeping generalisations about the NHVR that are not actually supported in reality”.

These include assertions that it is:

  • not risk-based, pointing to fatigue risk management
  • prescriptive and inflexible
  • challenging to enforce and comply with, insisting that prescriptive rules are easier to administer, enforce and comply with than risk-based regimes, “where the target of enforcement and compliance in less clearly specified”.

 

Read the point the ASBEFEO makes on prescriptive v. risk-based regulation, here


Submission authors Ann Williamson and Rena Friswell argue issues raise relate to how the law is managed rather than the law itself.

“For much of its lifespan, the NHVL has not been implemented as envisaged,” they write.

“In large part this has been because the National Heavy Vehicle Regulator (NHVR) was significantly under-resourced at inception and as a result has been unable to enact its functions fully.”

This puts the review’s timing under question as, at present, it can only test the law’s flawed implementation, not the law itself.

On risk analysis, given the range of subgroups the industry contains, the submission sees difficulties with weighing risk appropriately in each.

Such an approach would require “comprehensive data on risks, controls and outcomes” and like the TMR, TARS insists any HVNL changes would have to be evidence-based.

“Any further move to ‘principles-based’ regulation is likely to increase the compliance burden on smaller operations that have limited administration staff and resources,” the submission states.

“As the Issues Paper makes clear, these are the majority of operators in the industry.

“To adequately incorporate their concerns, the review should ensure that the number of smaller operators making submissions is in proportion to their representation in the industry.

“To do otherwise will result in conclusions and regulation that favours larger industry stakeholders whose concerns and capabilities are likely to be quite different.

“The fact that the needs of smaller and larger operators differ has been grappled with previously in the area of fatigue regulation, where the result has been to offer a choice of regulatory options with different levels of prescription.

“Under less prescriptive regulation, high quality, clear, comprehensive and easily accessible guidance materials on acceptable controls become vital.”

Elkins

Another questioning the need for a complete NHVR revamp now is former NHVR safety director Daniel Elkins.

A consultant and keen industry observer, Elkins also questions the thrust of the NTC inquiry.

“The stated purpose of the paper is to create an entirely new HVNL, is this not somewhat premature?” he asks.

“The Terms of Reference makes no reference to the creation of an entirely new law but the simplification of the current one.

“The paper provides a glowing recommendation of the virtues of risk-based regulation but fails to objectively discuss pitfalls of the approach or examine other regulatory approaches such as smart regulation.

“There is not a single example provided of what the NTC means when it talks about risk-based regulation. It discusses extensively styles and principles but has not offered up one practical example.

“The paper is a corollary of assumptions and unsubstantiated statements about the current state of the HVNL.

“There has been no attempt to objectively analyse, through either facts or evidence, whether the problems with the HVNL are adversely impacting the heavy vehicle industry, the supply chain or the regulator but more importantly productivity and safety outcomes.

“The cursory analysis attempts to purport to be a factual representation of a HVNL which is both ineffective in delivering safety outcomes and impinging on the productivity of industry.

“It does so without a skerrick of quantitative and little qualitative evidence to substantiate the position that the law is fundamentally flawed.”

Elkins says risk-based approach to regulation should focus on risks associated with non-compliance with legal rules, rather than the legal rules themselves.

And he gives four points on what such an approach might achieve:

  • enhance consistency in decision-making because the regulator’s response will be dictated by the relative level of risk
  • maximise efficiency by allocating resources to areas of highest risk
  • increase compliance by focusing on areas where the compliance risk is greatest
  • reduce the compliance burden by minimising regulatory intervention where the risks are relatively low.

“Adopting a risk-based approach therefore doesn’t necessitate a change in legislation but a change in the way the regulator conducts assessment of harm reduction and resultant compliance and enforcement activities,” his submission states.

“It requires a fundamental analysis of the data, tools and processes being utilised by the regulator to assess the performance of industry against reducing harm.”

That said, he underlines that the risk-based approach is studded with issues needing clarity before progress can be made on it.

“It is an acknowledged concern of the risk-based approach that many entities simply do not have the wherewithal to determine how to comply,” he says.

“Subsequently they require extensive guidance in the form of codes of practice and Standards.

“Entities are, in most cases, not bound to comply with these requirements and regulators, in many instances, are unable to enforce them.”

Also needing attention include issues surrounding shifting risk profiles, regulatory capture by industry, how to weight the cost of compliance between the risky and the rest, and how the compliance task would then be approached, especially given the dearth of data on the industry in this country.

 

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