The review of the Heavy Vehicle National Law (HVNL) by the National Transport Commission (NTC) is under way, with the release of the Terms of Reference, Approach document and 4 of the 8 issue papers as part of the review.  The NTC requests submissions from interested parties in response to their issue papers, with the overall aim of identifying opportunities to improve the HVNL and deliver a modernised law that will enhance safety for all road users.

Terms of Reference and HVNL Review Approach

Released in November last year, the Terms of Reference establish the purpose, priorities and scope of the review.  NTC’s stated intention in reviewing the HNVL is to assess the effectiveness of the current HVNL, create a risk-based approach to regulating fatigue, and increase the use of technology in regulating heavy vehicles. These intentions are supported in the HVNL Review Approach paper, which sets out the process of the review, including the planned release of 8 issue papers and the opportunities for consultation on each issue paper.

Issues Paper 1:  A risk-based approach to regulating heavy vehicles

The first Issues Paper released in March 2019 examines the HVNL and identifies problems in the current regulatory approach including that it is not nationally consistent (it has not been adopted in Western Australia and Northern Territory) and is “highly prescriptive” and considerably longer than the model work health and safety legislation .  It emphasises the aspirations of a new HVNL to promote risk-based regulation which “…targets regulatory effort to material risks[1] rather than merely providing prescriptive measures which fail to prioritise the more critical breaches and risks.  A new HVNL also aims to ensure any new law is proportionate and nationally consistent.

Submissions to the paper closed at the end of May 2019.  Of the 38 submissions publicly available, 27 considered whether a risk-based approach to regulating heavy vehicles was appropriate, with 20 suggesting it was.  The primary concern of the dissenting submissions was the lack of clarity in the law in a risk-based approach compared to a prescriptive approach, especially for small businesses.  Further, 21 submissions considered whether placing obligations lower in the hierarchy of legislative instruments (to improve flexibility in the law) was appropriate.  Of these submissions, 13 approved of placing obligations lower in the legislative hierarchy.

Issue Paper 2: Effective Fatigue Management

In May 2019 the second Issues Paper was released addressing specific risks associated with driver fatigue.  The paper states that there are significant problems with current controls for driver fatigue which rely on drivers noticing their own fatigue, or enforcement officers pulling them over.  The Issue Paper identifies poor management of fatigue risks under the current HVNL, including the lack of mandatory fatigue training, lack of regulation of shorter journeys and lighter vehicles and the minimal controls to mitigate fatigue once a driver is on the road.

The Issue Paper outlines six high-level matters the new HVNL should contain including continuous improvement in risk controls for fatigue, a harmonised approach across all journey and vehicle types and more efficient enforcement and proportional sanctions.  Submissions in response to this paper close on 16 August 2019.

Issue Paper 3:  Easy access to suitable routes

A third Issue Paper was released in June 2019 week titled ‘Easy Access to Suitable Routes’.  It identifies the importance of road access in planning suitable routes and examines how the HVNL regulates heavy vehicle access to roads through permits and notices.  It proposes a simpler, more consistent, fairer and more transparent decision-making system for permits and notices which is intended to reduce delays in decision-making and improve heavy vehicle access to roads.  Submissions close on 16 August 2019.

Issue Paper 4: Safe People and practices

The fourth issues paper addresses the heavy vehicle drivers.  It is said that “…the primary duty sets an expectation that CoR [chain of responsibility] parties do what is reasonably practicable to make sure transport activities relating to a heavy vehicle are safe. This is a shared responsibility of all CoR parties, but it generally doesn’t include the driver.

There is no explicit provision for competency (i.e. appropriate knowledge, skills or experience), no fitness for duty standard, or a national system for heavy vehicle driver licensing.  There is no mechanism in the HVNL to prosecute a driver who is not ‘fit’ to drive.

This is despite the fact that “[d]river competency was a causal factor in around 15 per cent of significant safety incidents at Toll between April 2018 and March 2019 (Toll Group, 2019b, p. 11). Data from National Transport Insurance (NTI) also found that one in five crashes is due to driver error (NTI, 2019)”.

While drivers have WHS Act responsibilities with respect to their own level of competency, the issues paper identifies the concern that “…enforcing the primary duty under the HVNL as well as WHS duties may be challenging” and that “…[t]he NTC isn’t aware of any CoR or WHS prosecutions where competency has played a key role”.

The questions to which responses are sought include, ‘what should the future HVNL do to regulate safe people and practices so heavy vehicle drivers and others are safe’ and whether the primary duty and chain of responsibility in the HVNL “comprehensively cover the people who can influence the safe driver and their practices’.

Consultation on this issues paper is open until 30 August 2019.

Conclusion

The HVNL Review is set to release the remaining Issue Papers by the end of August this year and extensive consultation will be commenced with the aim of submitting policy recommendations and draft legislation to the Transport and Infrastructure Council of COAG in November 2020.  The drafting of new legislation is expected to take place between November 2020 and November 2021 with legislation to be presented to Ministers in November 2021.

Thank you to Ross Watkins for his contribution to this article.

[1] National Transport Commission, A risk-based approach to regulating heavy vehicles. March 2019. Page 48.

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