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HEAVY VEHICLE LAW REFORM: WHERE DID IT ALL GO WRONG?
Back in mid-2020, this Australian Livestock and Rural Transporters Association column explored progress of the Heavy Vehicle National Law (HVNL) review and asked the questions “Has it hit the mark?” and “Can we expect real change?”. Now, with 2021 drawn to a close, we reflect on that analysis and instead ask “Where did it all go wrong?”.
On the past 18 months a lot has changed, and at the same time, nothing at all. Industry has lost confidence in the reform process and our laws have not changed at all.
The previous ALRTA column lauded the consultation process employed by the National Transport Commission (NTC). In the early days of the review, there were plenty of opportunities for industry and governments to comment on the current laws and to make proposals about how to make them better. The mid2020 regulatory impact statement (RIS) considered 250 formal submissions and 350 informal submissions. ALRTA had lodged a submission containing 108 recommendations, and like most other interested stakeholders, we lodged a response to the RIS outlining our preferred options for drafting the new law.
We were poised for real change. With that wealth of information, you’d think that the NTC would have by now developed a fully-costed, well-balanced policy proposal, and that we would have progressed to an implementation phase. But you’d be wrong.
What started out so promising has barely progressed at all. There is no agreed policy position. No costings. No draft legislation. We are still operating under the same laws, with the same problems, without a remedy in sight.
In October 2021, the NTC released the first tranche of refined policy proposals, focussing on reform of the general fatigue schedule (standard hours). The proposals were uncosted and industry was given just one week to respond.
It has been many years since there has been such a strong and immediate backlash against a new policy proposal. This one was right up there with the carbon tax and Road Safety Remuneration Tribunal.
Shockingly, the NTC had proposed to reduce maximum weekly working hours from 72 to 60 hours. On top of that, there would be a ban on all driving 14 hours after the commencement of a shift, a maximum 4 hour continuous work period and an extension of the minimum long rest break to 8 hours. At a minimum, this could represent a 17 per cent productivity reduction. It would also reduce driver’s wages, reduce flexibility and exacerbate driver shortages right across the road freight sector.
It was quite the opposite of what industry had been asking for, more flexibility to manage fatigue within the hours that we already have. Some elements of the NTC proposal were truly perverse. It should be obvious that banning all driving after 14 hours will just discourage drivers from taking breaks early when needed. We have said consistently that we do not want a law that discourages tired drivers from taking breaks by imposing productivity penalties.
So, back to the question, “Where did it all go so wrong?” and perhaps more importantly, “What are we going to do about it?”.
The NTC is a government Commission. These are established by governments as a way of passing on authority or responsibility. Ideally, commissions should encompass a mix of skills and experience and be able to speak without fear or favour, balancing the views of all stakeholders in developing decisions or recommendations concerning matters on which they have been given responsibility.
In the case of the NTC, it has no real decision-making authority. All major proposals must be considered and decided on by Ministers representing the Federal and State and Territory Governments, so the case for ensuring balance and independence within the NTC is particularly strong.
Yet, five of the six NTC Commissioners are long-term public servants. Three of these are either current or former heads of Federal or State transport departments, and one is employed as the NTC CEO. Each has a long list academic qualifications and is used to towing the government line. Their careers were forged in the fires of bureaucracy and they retain strong links with federal and state authorities.
Given this situation, the odds of industrycentric HVNL reform outcomes are very heavy stacked against us at all levels.
Like all stakeholders, government departments put their views forward to the NTC during the HVNL consultation process. NTC Commissioners then endorse these views, and department heads again advise Ministers to adopt their views, especially now that the NTC has ‘independently’ endorsed them.
So, should we be at all surprised that the NTC’s policy proposals ultimately reflect an academic and bureaucratic approach rather than a practical industry-centric approach?
The problem here is deep and fundamental. Fixing it requires change right at the top of the NTC. A better balance would be two bureaucrats, two industry representatives, one community representative and one academic. The NTC CEO should be stripped of commissioner status and required to follow the broad direction of the other independent commissioners.
Realistically, significant new safety and productivity improvements in road transport are most likely to arise via industry led innovation. Unlocking this potential must start with unshackling the NTC.
