NatRoad calls for overhaul of 'poor' HVNL


Industry body underlines complexity and local council difficulties as report looms

NatRoad calls for overhaul of 'poor' HVNL
It is argued that the NVNL needs a full review

 

As the Queensland Parliamentary inquiry’s report on changes to the Heavy Vehicle National Law (HVNL) looms, the National Road Transport Association (NatRoad) has called for a complete overhaul.

Earlier this month, NatRoad gave evidence to the Transport and Public Works Committee’s probe, the outcome of which will see changes to the law in Queensland that will be adopted in other HVNL states and the ACT.

Big HVNL call

One of the messages NatRoad this week says it communicated to the parliamentarians at a public inquiry is that the current HVNL is "poor".

"The HVNL needs to be reviewed in its entirety and reviewed now," the industry body says.

"It has been more than five years since the law came into effect.

"We recommended that it is time that it was assessed for its usefulness in delivering safety and productivity to Australia’s heavy vehicle sector.

"In addition, Western Australia and the Northern Territory need to adopt the changed law so that the rules about heavy vehicles are the same Australia-wide."

Although there are changes that can be made as ‘band-aid’ solutions to the problems that arise in areas such as local government decision making on road access, "the prescriptive nature of the law makes it complex and difficult to comply with".

It also advised it is "illogical to give the National Heavy Vehicle Regulator (NHVR) responsibility for issuing permits when NHVR can’t make decisions about local or State road access.

"NatRoad members will not get the benefits they want to see in productivity and safety until the regulator is given the proper level of legislative authority to act in the national interest, and for the industry," it says.

It asked the committee to recommend a root and branch, evidence-based review of the HVNL that draws on the views of industry, the business community, all levels of government and all road users.

"We urged that review of the HVNL should be given to an independent government agency like the Productivity Commission," NatRoad says.

"This recommendation should be given critical priority as the HVNL is currently not fit for purpose and is not allowing the industry to operate in an efficient way. Gradual change is not good enough."

It is a call the National Heavy Vehicle Regulator (NHVR) supports.

 In evidence at the public hearing, Intergovernmental Relations manager Isuru Neelagama tells the committee: "You would have heard industry say that the NHVR is hamstrung by the way that the law was written when we were established.

"There are simple small changes that can be made as bandaid solutions to the problems that arise in areas like government decision-making, but the law needs to be reviewed in its entirety and reviewed now. It is more than five years since the law came into effect, and it is time that it was assessed for its effectiveness in delivering safety and productivity through harmonisation.

"What we are calling for at the NHVR is a root-and-branch policy based review of the legislation that draws on the views of the industry, the business community, all levels of government — state, local and federal — and all road users.

"Industry will not see the benefits they want to see from the NHVR — the very reason why we were set up — in productivity and safety until the regulator is given the proper level of legislative authority to act for the benefit of the national interest and for industry."

Changes backed

The Australian Trucking Association (ATA) states that he Heavy Vehicle National Law and Other Legislation Amendment Act 2016 makes changes to the chain of responsibility provisions in the law.

These changes:

  • introduce a primary safety duty into the law. Primary duties define the broad scope of a duty holder’s responsibilities and require them to consider their own business risks and how they can reasonably be eliminated or minimised. The model Work Health and Safety (WHS) Act and the Rail Safety National Law (RSNL) are also based on this approach.
  • extend CoR to cover vehicle maintenance and repairs, as proposed by the then chair of the ATA, David Simon, in 2013
  • replace the duty of care in the existing law, ‘all reasonable steps,’ with the WHS duty of care, ‘so far as is reasonably practicable.’
  • impose explicit due diligence obligations on the executives of chain parties, with the prosecution bearing the burden of proof. These obligations are comparable to s 27 of the model WHS Act.

The ATA supports them all.

"The Chain Of Responsibility [COR] concept was developed to help address these operational problems, by ensuring that customers can be held to account for their demands on trucking businesses," it says.

"In turn, the 2016 amendments and this bill will require customers and trucking businesses to increase their focus on developing systems to maintain safety."

Farmer worries

AgForce Queensland Farmers acknowledged widespread rural misconception on farmer obligations and, while backing the reforms, urges the Bill be delayed until December 1.

But along with the ATA, the Australian Livestock and Rural Transporters Association (ALRTA) urges the reforms to be implemented without delay.

"As the peak national association representing the operators of heavy vehicles servicing the agricultural supply chain, the ALRTA can say without a doubt that other parties in the agricultural supply chain can, and do, influence on road safety outcomes," ALRTA says.

It gives the following examples:

  • it is "not uncommon" for primary producers to request that drivers load more weight into vehicles than can be legally carried. This is because such practices will decrease transport costs, especially when only a partial load would otherwise remain
  • feedlots often will not apply feed and water curfews to livestock prior to transport resulting in a level of effluent generation that cannot be contained within the vehicle. Producers routinely aim to maximise the weight of the animals for sale without regard for load restraint risks that will arise later in the trip
  • saleyards engage in business practices that impact on driver fatigue or incentive to speed. This can come about through queuing practices, livestock weighing practices (e.g. delays caused by post-sale weighing), provision of poor quality loading infrastructure or other directions given to drivers entering the site
  • parties in the chain can sometimes ‘turn a blind eye’ to defective vehicles or fatigued drivers if they are the lowest cost or most convenient option.

The ATA also addresses recent concern raised by the National Farmers Federation (NFF) and other farm associations.

It notes that the farm sector is under an obligation to observe the WHS Act and argues reasonably practicable steps that primary producers could undertake with respect to contracted transporters would include:

  • making sure that their conduct does not contribute to unsafe practices by a transporter
  • providing information about the expected weight of goods or stock so that the transporter knows which vehicle is appropriate, and which permits if any would be required
  • helping the transporter with scheduling by providing realistic estimates of the time required for loading, any confirmed delivery times and travel times on local roads
  • making sure there is safe access to the producer’s property, equipment or people necessary for loading
  • correctly applying feed and water curfews to livestock
  • in particular, understanding the provisions of the HVNL and not expecting drivers or trucking businesses to break or evade them.

It quotes an unnamed owner-driver in the livestock sector as saying: "If people hire trucks, they should be obligated to make sure they are unloaded in a timely way, and if it’s livestock it should be as soon as they arrive.

"Multinational companies should not be turning trucks full of livestock away; drivers should not be expected to try to sleep with animals on board and no alternative accommodation."

Executive officer liability

One area of policy agreement amongst industry bodies is extending positive executive officer due diligence obligations to all major safety related duties in the HVNL as agreed by the Transport and Infrastructure Council (TIC).

This point was supported by the Queensland Transport Association (QTA), ATA and the Australian Logistics Council (ALC).

 "The QTA supports the amendments which are proposed to align the HVNL and WHSA executive officer liability provisions, reducing compliance costs and administration for businesses," its submission states.

The ATA In 2015, transport ministers agreed to extend the executive officer due diligence obligation to include these other provisions, subject to the outcomes of a regulator4y impact statement (RIS).

Of the four options, the ATA supports extending "the due diligence obligation for COR offences to cover specified non-COR offences", as this would create a consistent approach to executive officer liability across the HVNL, and lead to higher levels of compliance and safety.

Chain effect

On COR, ALRTA argues against any exemptions given that, "with deeming provisions removed, assigning liability for breaches to chain parties one or more steps removed from the offence will naturally become more difficult.

"The transport operator is always first in line in any investigation – yet the ALRTA is prepared to put safety first and is supportive of COR laws while others in the chain apparently are not.

"It is also critically important to remember that the chain party definitions enshrined in the HVNL are based on a description of role (e.g. consignor or loading manager) rather than particular business type (e.g. primary producer or saleyard operator).

"This is useful for identifying influential parties, but also for limiting the extent of their liability to matters that they ought reasonably to have knowledge about.

  • It argues that absolving any particular business type from COR would establish a dangerous precedent that will result in:
  • other influential lobby groups seeking a similar exemption for their members
  • lives unnecessarily lost through reckless or wilfully dangerous business practices by exempt business types.

"The principle is, and should remain, that chain parties be defined by their role, influence and knowledge rather than any particular sectoral interest or influence," it says, adding that COR laws "encourage chain parties to work together in cooperation, rather than simply manifesting downward pressure on transport costs with no regard for safety outcomes".

 

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