HVNL review: a case for change


As attention turns to developing policy options for a revamped Heavy Vehicle National Law (HVNL), submissions to the review underscore industry’s appetite for reform, with greater operational flexibility and control at the forefront

HVNL review: a case for change
NTC reports 13 per cent of respondents prefer prescriptive legislation, 34 per cent performance-based, and 53 per cent a combination of both

 

A collective sigh of relief could be felt around the industry when the National Transport Commission (NTC) cut the ribbon on the Heavy Vehicle National Law (HVNL) review in late 2018.

With the terms of reference approved by the Transport and Infrastructure Council (TIC) of federal, state and territory ministers, a series of eight issues papers addressing key tenets of the law were to follow in 2019.

"It is now widely accepted that, while the first iteration of the HVNL in 2012 was an improvement on the previous multi-jurisdictional situation, it now needs to be comprehensively overhauled," federal transport minister Michael McCormack said emphatically at the time.

These have been drip fed throughout the year for public commentary. At the time of writing (ATN’s September print edition), seven had been released to the public, with the first three now closed for consultation.

NTC says it will use the submissions to help form a regulatory impact assessment of policy reform options.

Two of the most significant areas of potential reform have been addressed in the first two issues papers: Risk-based approach to regulating heavy vehicles (the law’s foundation) and Effective fatigue management (the first of four papers addressing ‘what is regulated’).

RISK-BASED PROPOSAL

A lengthy document comprising 800 sections, the NTC makes no secret of its assessment of the HVNL in its current iteration.

In its words, it is considerably different in scale and style from comparable laws, "large and highly prescriptive, with a lot of detail in the primary legislation… and reflective of an era when access to digital technology and innovation was not a consideration."

‘Prescriptive’ regulation can be summarised as leaving risk identification and application with the government, while regulated parties are required to adhere to those controls – the law dictates exactly what they must do.

The NTC, reflecting a majority of industry’s opinion, concedes the current regulation does not sufficiently target the most significant risks to heavy vehicle safety.

"The controls used by the HVNL are not proportionate to the risks they seek to manage and, with a focus on inputs, are often poorly targeted to reducing harm.

"These provisions can be inconsistent in approach, difficult to read and interpret, onerous for industry to comply with and difficult for the National Heavy Vehicle Regulator (NHVR) to administer."


How positives were reported from a HVNL reform meeting


The main measure of the HVNL’s failure is its inability to win national buy-in: Western Australia and the Northern Territory do not subscribe to it, while every participating jurisdiction has derogated, applying local variations or exceptions. The aim of the new legislation is to reverse that trend and achieve greater harmony.

It is the NTC’s own view that the law should go the way of a risk-based approach, a common system "being applied across regulated sectors around the world".

‘Risk-based’ regulation would mark a shift from a focus on the legal rules to harm prevention and the promotion of outcomes, with enforcement tailoring its compliance activity based on the severity of potential risks.

"The evidence shows that a risk-based approach to regulation, both in legislation and administration, maximises regulatory efficiency and best addresses community priorities," NTC notes.

 "This ensures regulations are effective and efficient."

INDUSTRY RESPONSE

Most quarters of the industry agree with this view – in particular, the regulator established to enforce it.

The NHVR says it wants to enforce a law that recognises the benefits of modern business practices, vehicle performance and technology, and:

•   is simplified, easy to understand and harmonised

•   is agile and responsive in meeting industry’s needs

•   is an outcome rather than prescriptive focus approach

•   is risk-based, data and intelligence-led regulator

•   promotes productivity and certainty with an improved and modern access regime.

"Efficiencies will be delivered by moving from a prescriptive approach, which has high costs, to an assurance and risk-based approach," NHVR CEO Sal Petroccitto states.

From the submissions, a more flexible risk-based approach, albeit retaining some prescriptive elements – more on that later – is the preferred option for industry.

Many operators say they are playing their part in driving a safer, more compliant and professional industry, and deserve to be recognised for that, rather than being burdened by a law bent on administrative and prescriptive measures.

Ron Finemore Transport (RFT) founder and eminent industry advocate Ron Finemore contends: "In my 50-plus years in the industry, I can say that the large majority of industry operators have greatly improved their safety performance, particularly in the last 20 or so years.

Ron Finemore.jpg

"The supply chain is also now starting to acknowledge its safety responsibilities, thanks to the increased focus on the Chain of Responsibility laws."

Despite these efforts, he says the regulations offer no incentive – and in fact can be detrimental – to compliant and innovative operators.

"We still see vast investments in innovation and improved safety technology and systems go unrecognised – sometimes these advances are even often penalised by the current structure of the law, which just encourages the prescriptive and administrative approach by some to enforcement activities rather than achieving real safety and productivity gains."

ON THE CONTRARY

The flip side of the debate is that prescriptive law makes the rules abundantly clear for operators and authorities alike, while a risk-managed approach may deviate from that and add ambiguity.

For example, Toll Group general manager, road transport safety and compliance Sarah Jones agrees that a "risk management approach be adopted", while recognising that "prescriptive law is appropriate in some circumstances".

Sarah Jones.jpg

"Operators may not necessarily have the skills or resources to interrogate their data and experience to develop bespoke risk management interventions," she says.

"For such operators, prescriptive law may provide certainty and comfort. This is particularly true for owner-drivers.

"There are instances where a prescriptive approach is the right approach, typically where the outcome sought is measurable and unvarying.

"For example, stipulating vehicle dimensions, allowable projections, required safety features, mass limits, fatigue outer limits and performance standards for load restraint."

It’s a view backed by the Australian Small Business and Family Enterprise Ombudsman (ASBFEO), Kate Carnell.

"Our industry feedback from many small operators is that the existing prescriptive rules actually provide them with better clarity and that the likely confusion that regulation will bring requires significant lead times around implementation," she says.

Carnell suggests a two-tier approach, allowing small business operators to retain access to key elements of the current prescriptive HVNL, alongside the elements that provide productivity improvements, safety and environmental concerns.

Further, the rapid shift to a risk-based approach may present an interpretation challenge for regulators and enforcement. 

"After all, the success of a risk management approach is judged not by one’s actions (prescriptive), but by the outcome of the actions," Jones adds.

"The outcome sought is the prevention of harm, so in effect regulators and enforcers are being asked to quantify an absence and the contribution the operators’ actions make to that absence.

"This is a different skill set to that required to identify an on-road breach and issue an infringement."

FATIGUE

Fatigue management is recognised as one of the more contentious aspects of the HVNL, due to the complexities and gaps in knowledge around the human body’s responses to work and rest, and the pitfalls of trying to apply a ‘one size fits all’ approach to regulating it.

In essence, an operator can be compliant but still fatigued, but also noncompliant and not fatigued.

"For example, the existing law directs operators’ attention to vehicles 12 tonne and above operating more than 100 kilometres radius from base – it creates a perception that fatigue is principally a risk in larger vehicles travelling longer distances," Jones says.

"In fact, our data suggests that time on task is not the key variable in fatigue events, with most such events occurring in the first one to two hours of the shift."

There is almost complete consensus that a prescriptive approach in this space is prohibitive and counterproductive, and the law needs to be founded on flexibility for the operator.

The NTC itself admits that the current rules "cause problems that include misunderstanding the prescriptive work and rest hour regimes, onerous administration and inconsistency between jurisdictions".

As articulated by National Road Transport Association (NatRoad) CEO Warren Clark, "administrative fines for an error in failing to sign and date a diary page have little to do with controlling the risks of driving whilst fatigued." 

Of great concern is Finemore’s view – one shared by many drivers’ submissions – that the current system can actually contribute to fatigue.

"Our drivers are often stressed and anxious about work diary compliance, which adds to their fatigue rather than being able to focus on better safety outcomes."

Another of the NTC’s critiques of the HVNL is that it doesn’t accommodate sophisticated fatigue management systems and practices, even though they may be more effective. 

Finemore’s company is an example of an operation that has used extensive measures – including complex technological systems – to reduce fatigue incidents, which, he says, are contributing better outcomes to industry than the current laws.

"RFT has invested heavily in fatigue and distraction monitoring technology simply because we believe it can stop crashes happening rather than looking at them in the rear vision mirror," he says.

"I consider fatigue and distraction detection technology a real-life saver.

"With this technology, we can provide true flexibility, better safety and transparency when used in the right way with the right support mechanisms."

"[It] needs to include greater flexibility [for] companies and drivers to better manage their fatigue and trips overall rather than trying to put them in a ‘one size fits all’ prescriptive and often unsafe framework."

He believes the law should instead focus on apprehending those who seriously flout the rules to gain a commercial advantage, while rewarding those who demonstrate investments in safety with greater operational flexibility.

That view is shared by the Australian Trucking Association (ATA) chair Geoff Crouch.

"Those within industry capable of demonstrating effective driver fatigue risk management should face minimal interference from prescriptive requirements, whereas those less capable in fatigue risk management should face more prescriptive requirements to supplement any shortfalls," he emphasises.

The ATA won kudos for its calls for a ‘humanised’ approach to fatigue management, which includes:

•   an extra hour for drivers using a new version of standard hours to get home, with sensible risk controls

•   easier to use work diaries, with less risk of getting fined for paperwork mistakes

•   a length incentive for operators that fit wider sleeper cabs

•   more flexibility under a performance-based framework for operators to manage fatigue as a risk.

Crouch, McCormack, Maguire.jpg

TO COME

Seven issues papers were released in total, with the others including: suitable routes, safe vehicles, safe people and practices, accreditation schemes (also worded by the NTC as ‘assurance’) and managing compliance.

Consultation on the first five issues papers has closed however consultation for the final two papers remains open. ATN will analyse these in due course.

The next phase of work is about developing and analysing policy options for the future HVNL, NTC announced today.

"We are progressively adding to a summary of outcomes on what we have heard from consultation. The purpose is to share what we have heard, including major points of agreement and disagreement.

"We are also developing and collating suggested policy options on the HVNL review site. These suggested policy options will inform the Consultation Regulatory Impact Statement (RIS) to be released in early 2020.

"We want to continue hearing from you to ensure we have a comprehensive set of suggested policy options to inform this Consultation RIS.

"You can suggest policy options on the HVNL review site and provide feedback on the suggested policy options we publish."

"In line with stakeholder feedback, we are now moving to developing and analysing policy options. As a result, we will not publish a planned eighth issues paper on other policy matters. This work will be covered in the policy options phase."

 

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