NTC stands by flawed legislative approach to dangerous goods, but wants effort from jurisdictions to cut down on cross-border inconsistencies
By Brad Gardner | July 10, 2012
The National Transport Commission (NTC) is standing by the flawed existing approach to dangerous goods regulation for road and rail, but wants greater effort from the states and territories to address its shortfalls.
In its review of dangerous good regulation, the NTC has called for slight changes to the model law method currently used as opposed to completely overhauling the system by switching to applied law.
Model law allows the states and territories to adapt legislation to suit their individual needs, which has led to regulatory differences and varying implementation timeframes.
“The most significant inconsistency raised by industry – from the point of view of cost and inconvenience – was the failure of states and territories to implement the seventh edition of the Australian Dangerous Goods Code and model legislation on a common date, as they had agreed to do. This imposed, and continues to impose, significant costs on business,” the NTC says.
It recommends all states and territories implement the same definition of the code in their laws to eliminate inconsistencies.
Only the Northern Territory and Tasmania have adopted the entire definition of the code. Other jurisdictions made slight amendments, creating technical loopholes which have caused uncertainty over the application of the code.
“The current approach creates additional business cost and unnecessary complexity of differing regulation in the various Australian jurisdictions,” the NTC says.
The report also wants the Competent Authorities Panel, which is responsible for approving dangerous goods applications and exemptions, to provide more user-friendly information to operators.
“This information would cover the application process, the information required for applications and the available review mechanisms,” the NTC says.
Some in the industry feel the panel’s decision-making process lacks transparency and rationale, according to the report. The NTC says providing more information to applicants will help them better understand the system and the review mechanisms available to them if an application is denied.
Applicants have also complained the panel has been slow to act, prompting the NTC to call for a deadline to be set for decisions.
“The NTC has reviewed the model law and found that there is no timing laid down for the competent authority to make a decision,” it says.
“The NTC argues that business has a reasonable expectation that the competent authority will make a timely decision. As such, the NTC recommends that the model law be amended to include timelines for decisions about approvals, exemptions and determinations.”
The NTC has resisted calling for an applied law approach, which involves one jurisdiction enacting a law that other jurisdictions then apply. It is the process being used for national heavy vehicle regulations.
The report says the method creates national uniformity, but the NTC believes the model law system is salvageable. It supports giving the states and territories at least five more years to get it right.
“The NTC contends that a review should be done in 2017 to evaluate the regulatory outcomes from the regulation of land transport of dangerous goods,” the report says.
“If the problems still exist for business and are of significant size, then the NTC argues that this may be the time to reconsider changing to an applied law approach.”
Under model law there will still be eight state and territory regulators for dangerous goods, while applied law provides the option to create a single national regulator.
“While changing to an applied law approach would create more consistent laws for business, the NTC argues that the problems with the current system can be improved with renewed efforts at removing the current inconsistencies in requirements between states and territories,” the report says.
The document, which is open for public feedback until August 31, touches on the possibility of reducing regulatory overlap in dangerous goods.
It says dangerous goods requirements sometimes fall under environmental protection laws, security regulation and work health and safety laws.
“There may be room for improved liaison between the various responsible bodies where there are overlapping or inconsistent regulatory requirements that may unintentionally compromise safety, impose unnecessary regulatory burdens, and lead to regulatory duplication or inefficiency,” the report says.
It suggests looking at the matter when the Australian Dangerous Goods Code is revised.
The NTC has also called for an independent review to determine the best forum for developing and implementing future national dangerous goods transport policy. It wants the review to begin after national occupational health and safety laws are fully implemented.
NTC CEO Nick Dimopoulos says the group’s proposals will strengthen the dangerous goods regulatory framework.
“We believe these proposed changes have the capacity to make the system safer, more efficient and provide greater transparency,” he says.
“We encourage all those with an interest in the regulation of dangerous goods to share their views on the propose improvements.”
The NTC will make a final recommendation to the Standing Council on Transport and Infrastructure (SCOTI) by the end of the year.
Queensland, South Australia and Victoria all complied with the national-endorsed timeframe for implementing the code when they introduced it at the start of 2009. Western Australia applied it in early 2008, while New South Wales took until the middle of 2009 to act. Tasmania and the Northern Territory implemented the code last year.
