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Road Transport (General) Bill
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Page: 14826
Second Reading
Debate resumed from 8 December 2004.
Mr DONALD PAGE (Ballina—Deputy Leader of The Nationals) [11.15 a.m.]: As shadow Minister for Roads I indicate at the outset that the Opposition does not oppose the Road Transport (General) Bill, but it has a number of reservations and concerns that it wishes to raise relating to some of its provisions. The Road Transport (General) Bill, otherwise known as the chain of responsibility legislation, or compliance and enforcement legislation, goes a long way towards providing a legislative framework for the compliance and enforcement of mass, dimension and loading requirements for heavy vehicles. Before I refer to the details of the bill I would like to refer to this legislation in a broader context. One of the greatest tasks facing State and Federal roads and transport Ministers over the next decade is that of addressing road safety issues associated with the doubling of the road freight load.
Heavy vehicles currently carry nearly all metropolitan freight and most non-metropolitan freight. The Bureau of Transport Economics has told us that by 2020 the amount of freight being carried by road is expected to double. The current growth rate in the road freight sector is 1.3 times gross domestic product, in other words, the road freight sector is growing 30 per cent faster than the domestic economy generally, which we all know is growing quite strongly. Even with the Federal Government's additional Auslink expenditure on interstate rail freight, road freight will still play a vital role in facilitating and increasing freight load over the next 10 to 15 years. As a community we increasingly have an expectation that freight will be delivered on time. Businesses no longer warehouse large stocks of inventory; rather they have an expectation that goods will be delivered on request from warehouses in urban centres or as required, that is, just on time. In some respects trucks are becoming moving warehouses. This expectation of "just on time" delivery, combined with population and economic growth, is driving the growth in heavy vehicle freight demand.
There are several issues arising from this growth in road freight. These include, but are not limited to, road and driver safety, future road infrastructure needs, where roads will go with the possibility of new roads, as well as the ongoing wear and tear on existing road infrastructure. Other issues that arise as a result of increasing road freight are environmental issues such as increased greenhouse gas emissions and also the noise of trucks as they pass people and communities who live nearby and whose amenity, peace and enjoyment of their properties are being adversely affected. One of the greatest concerns to the travelling public is the rapid increase in road freight movements on major New South Wales routes such as the Pacific Highway. On the Pacific Highway heavy vehicles account for 15 per cent of traffic but are involved in 35 per cent of fatal crashes. Heavy vehicles are not necessarily always the cause of these accidents. However, when heavy vehicles are involved in crashes they often result in fatal consequences
On the whole, heavy vehicle drivers are responsible and are providing a service that is essential for our community. However, some issues within the heavy vehicle industry must be addressed. Many drivers travel at high average speeds on roads that also carry high volumes of local traffic, including tourist traffic and retirees. For example, on the Pacific Highway heavy vehicle interstate traffic, including B-doubles, mix with local light traffic 24 hours a day. Some drivers and operators are tampering with speed limiters that are required by law and that should restrict heavy vehicles in New South Wales to a maximum speed of 100 kilometres per hour. Of serious concern is the pressure being placed on drivers to deliver goods based on unachievable or unrealistic timetables. This pressure on drivers is reflected in the principal causes of fatal accidents involving heavy vehicles. Some 25 per cent of accidents involve drugs and alcohol, 11 per cent are the result of driver fatigue and 9 per cent are the result of driver misjudgments.
The issue of speed limiter tampering will be addressed by the Transport Legislation (Speed Limiters) Amendment Bill, which will amend the Act so that a person responsible for a heavy vehicle will be deemed to have committed a speed limiter tampering offence when a heavy vehicle travels at a speed of more than 115 kilometres per hour. That legislation is awaiting debate in the House, and the Opposition will support it. The Road Transport (General) Bill, which is before the House today, aims to address an associated problem of some in the logistics chain avoiding responsibility for the influence placed on drivers to break the law in order to meet delivery deadlines. The legislation is based on the national model provisions approved by the Australian Transport Council, comprising Federal and State roads Ministers, in November 2003. At that time the Federal Minister for Transport and Regional Services, John Anderson, called on the States and Territories to adopt appropriate chain of responsibility legislation to benefit road safety and long-term transport efficiency. He specifically called on the States and Territories to:
… when implementing their new laws... ensure that there is not an over-zealous, but a fair enforcement regime.
The traditional approach to heavy vehicle enforcement in New South Wales has been to place legal liability on the driver. This is an inadequate approach because other parties in the heavy vehicle industry chain can have a major impact on driver speeds, driving hours, load sizes and driver behaviour. I believe accountability in the road transport sector should extend beyond the driver of the vehicle, and therefore I am generally supportive of the legislation. Furthermore, New South Wales has a responsibility to provide a fair enforcement regime that is consistent with the national model.
However, a number of industry concerns have been raised with the Opposition in relation to the legislation in its current form. While the bill is generally consistent with the national model developed by the former National Road Transport Commission that was endorsed by the Australian Transport Council in November 2003, the New South Wales Road Transport Association has raised concerns in regard to industry codes of practice, in particular. In a briefing note that I received from the Road Transport Association the organisation expressed the concern:
… that [the bill] does not enable recognition to be given by the Roads and Traffic Authority to industry Codes of Practice.
A code of practice is very important and would clarify responsibilities for all parties—drivers and operators, enforcement agencies and the trucking industry. It would also assist in determining a reasonable steps defence. I am not suggesting that a code of practice should be an alternative to the compliance provisions in this bill. It would need to be consistent with the fundamental compliance conditions relating to mass limits, dimensions and loading requirements. I believe a code of practice would be supplementary to the existing provisions in that it would clarify best practice for the trucking industry. I think a code of practice is central to the success of this legislation and that not having Roads and Traffic Authority recognition of industry codes of practice makes the legislation weaker, less effective and less clear. Without this recognition the legislation is less likely to meet its objective of improving compliance.
The legislation will allow authorities to charge anyone involved in the loading of a truck with a major breach when the truck has been loaded beyond the legal limit by more than 5 per cent. But how are those associated with the loading of the truck expected to get the load weighed when they are in the middle of nowhere? This legislation requires that the load has either been weighed or that documentation exists to show that the load is not overweight. In the case of livestock loading, it is not practical to weigh the load on the property and there would be no documentation regarding the weight of animals to assist the driver. Whilst it might be possible to obtain weight estimates, it would be difficult to do it accurately. Industry has generally expressed the view that 5 per cent tolerances are too narrow in circumstances when loads shift during transit or when there is difficulty measuring weight accurately at the pick-up point. I am also concerned that tolerances are too narrow given the unintentional loading and mass errors associated with trucking operations. These might include the non-inclusion of pallets in weight estimates or changes in the weight of the vehicle as a result of refuelling, additional spare tyres and the like.
Another concern raised with me relates specifically to the reasonable steps defence. The reasonable steps defence is not available to drivers and operators for some offences. If this legislation is to apply to all parties equally then all parties must have the same rights and responsibilities. This is another point made by the New South Wales Road Transport Association, which states:
… there should be equal access to defences for those parties which have taken reasonable steps, regardless of their position on the chain of responsibility.
It should be noted, however, that the national model bill provides the reasonable steps defence for minor risk breaches only while the New South Wales legislation extends the reasonable steps defence to substantial and severe risk breaches relating to load mass requirements. Therefore, I believe that part of the New South Wales legislation is stronger than the Federal model. The problem is that people are not treated equally under this legislation. I think it is a fairly powerful point of principle that all people involved in any part of the transport chain have access to a reasonable steps defence.
In regard to penalties, the legislation allows for the new fees designed to act as sanctions to be imposed by regulation. I have reservations about the imposition of new fees without the proper scrutiny of Parliament. Generally new taxes and fees should be subject to parliamentary scrutiny and the imposition of new taxes by regulation is an inappropriate delegation of legislative powers. The Legislation Review Committee has written to the Minister seeking an explanation in this regard. I certainly hope that when the Minister responds to the debate he will address the concerns raised by the Legislation Review Committee about allowing regulations and fees to be set by regulation outside the parliamentary process.
There is also concern within the trucking industry about extending the definition of "authorised officer" to include a police officer. Under the national model bill authorised officers will be consigned to a small group of specifically trained enforcement officers from road agencies and the police force. Under this legislation there are no requirements regarding the qualifications and attributes of those authorised to undertake enforcement for the purposes of the bill. The Legislation Review Committee has also written to the Minister for Roads in this regard, seeking an explanation as to why it is not specified that the authorised officer must be a member of staff of a public authority and why there are no other requirements regarding the qualifications or attributes of that person. I trust that the Minister will address the two issues that have been referred to the Legislation Review Committee and the other matters that I have raised.
Concerns have been expressed about the provisions relating to the immediate suspension of a person's driver's licence. The exceptional circumstances limitation in the legislation must be reconsidered. Its removal would give local courts the power to review and overturn the immediate suspension of a person's driver's licence. The Opposition has been contacted by the Law Society, which believes the courts should be able to review and overturn the immediate suspension of a driver's licence when the circumstances warrant it. The Opposition generally supports this legislation. There is no doubt that the extension of liability for offences beyond drivers and operators is long overdue. Authorities must also have the appropriate powers if they are to investigate effectively and prosecute those who break New South Wales road transport laws, thus endangering all members of the travelling public.
Under this legislation authorities will be empowered to inspect or search heavy vehicles. I note that business premises can be searched only after obtaining a search warrant or by consent. There is a need for a broader system of compliance and enforcement for those members of the heavy vehicle transport industry who knowingly and intentionally break our road laws and put the safety of other traffic and pedestrians at risk. While the Opposition has a number of concerns, the most significant of which is the absence of a provision that ensures a mandated code of practice in the legislation, we will not oppose the bill. I expect the legislation to provide a safer road environment for all those in the transport chain. However, I would like the Government to respond to the concerns that I have raised on behalf of The Nationals and the Liberal Party during my speech.
Ms NOREEN HAY (Wollongong) [11.30 a.m.]: I support the Road Transport (General) Bill. My constituents have asked me a number of questions, and whilst a number of them have been answered by previous speakers, I want to place on record further answers to alleviate fears that seem to be developing in some areas. The general question is about the need to implement compliance and enforcement [C and E] provisions. The C and E reforms are an improved framework for the regulation of the heavy vehicle industry and other participants in the road transport task. The general objectives of the C and E reforms are to improve compliance outcomes for road safety, infrastructure and the environment, while minimising the adverse impacts of road transport to the community. They will also help create a level playing field for industry by making it more difficult for those who operate outside the law to gain a competitive advantage.
Has the industry been consulted? If so, what was the industry input? The road transport industry has been consulted widely on the development of the national provisions, and the national model provisions have been in the public domain since mid-2002. Industry representatives were part of the national legislative advisory panel that assisted in the development of the provisions. They are generally supportive of the provisions and welcome the extending of liability beyond the driver and operator. The Australian Trucking Association and the New South Wales Road Transport Association were disappointed that the "reasonable steps" defence is available to drivers only in the case of minor offences.
In New South Wales the current requirement of producing evidence that a vehicle has been weighed will be maintained. The focus is on encouraging behaviour that complies with the regulations and in that regard nothing will change from what drivers and operators currently experience. It is expected that some sectors of industry will continue to argue for full access to a "reasonable steps" defence by drivers and operators in all cases. Those sectors of industry that are being brought into the chain of responsibility for the first time—for example, loaders, consignors and receivers—are concerned about their new liabilities. The Roads and Traffic Authority [RTA] has established an industry liaison group to assist with the communication task to ensure that all parties are made aware of their obligations under C and E.
What are the checks and balances for the enhanced enforcement powers? It is anticipated that the more intrusive of the enhanced powers will be delegated only by the chief executive of the RTA to a small number of appropriately trained authorised officers. The enhanced powers will not be applicable to general RTA inspectors whose current roadside enforcement activities will not be substantially impacted upon. A similar system has been adopted successfully in Victoria where the enhanced enforcement powers have already been enacted. Detailed procedural guidelines will be finalised before commencement of the new regime. Those will clearly define the methods and circumstances of when it is appropriate to invoke the enhanced powers.
How will the chain of responsibility [CoR] provisions work in practice? It is not the intention of the new provisions to make each offence an automatic CoR investigation. CoR investigations are, by their nature, very time and resource intensive and will be pursued only in those instances it is considered appropriate. Triggers that the RTA may use to initiate a CoR investigation include, but are not limited to, evidence of systemic and habitual breaches, evidence of continued unfair commercial advantage as a result of breaches and evidence of unreasonable demands and pressures on other parties in the supply chain to breach. A specialist audit and investigations unit will lead CoR investigations. Those investigations will be a strategic tool that will supplement the current enforcement practices of the RTA; they will not replace them. For example, a particular industry sector in which evidence suggests that compliance is poor may be targeted. A successful prosecution will then potentially act as a deterrent across the broader industry, hence increasing compliance levels.
When will the C and E reforms be implemented in New South Wales? It is anticipated that the new provisions will commence in mid 2005. Implementation is being accompanied by a comprehensive awareness and publicity campaign to assist all stakeholders prepare for the introduction of the C and E reforms. What special defences are available in New South Wales? The national model bill provides special defences that are tailored to the role and responsibility of each of the parties in the chain. New South Wales has retained that principle. One special defence is known as the reasonable steps defence [RSD]. It is available for some parties in certain circumstances. If available, it requires that a person did not know and could not reasonably be expected to have known of the breach concerned, and had taken all reasonable steps to prevent the breach, where there were steps the person could reasonably be expected to have taken. Off-road parties—that is, consignors, loaders, packers and receivers of loads—will have access to the RSD. The provisions set out a list of possible factors that might constitute reasonable steps.
On-road parties, drivers and operators will have access to the RSD only in the case of minor dimension and load restraint breaches. That is to cover those times when, even though complying with sensible, reasonable business practice, an unforseen breach still occurs. In the case of mass, drivers and operators will retain access to the current limited reasonable efforts defence that applies in New South Wales. This means that defendants are required to demonstrate either that they have weighed the loaded vehicle or that they are in possession of sufficient and reliable evidence from which the mass was calculated. It will be available for minor, substantial and severe mass breaches. It is important to note that with all these defences the burden of proof rests with the defendant. The different defence provisions for different parties recognise the fact that the chain of responsibility is about appropriate responsibility, not equal responsibility.
What are container weight declarations? A container weight declaration is intended to accurately state the weight and contents of a freight container. All containers should have one. The new provisions mandate that accurate container weight declarations must be provided by the person defined as the "responsible entity", namely the person in Australia who consigns or otherwise engages the road carrier or offers the container for transport by road in Australia. Without a container weight declaration, a driver is not to transport the container. Those provisions are designed to ensure that drivers and road operators receive the correct information to enable the selection of the appropriate vehicle to transport the container within the relevant legal mass limits.
How do the New South Wales provisions differ from the national model C and E bill? The national model C and E bill has both "desirable" and "essential" aspects. That distinction recognises that each jurisdiction has its own individual legal systems, yet also achieves nationally consistent outcomes. For that reason, the RTA has decided to depart from the national model provisions in the following main aspects. In relation to not registering industry codes of practice, whilst not prohibiting the development of industry codes of practice and in fact being supportive of any efforts industry makes to ensure their business systems and processes meet the legal requirements, the RTA does not believe it is its role to register any such codes. The RTA maintains that industry itself is in the best position to assess its risks and to develop appropriate systems to mitigate them.
In relation to application of mass dimension and load restraint provisions, the national model bill applies the provisions relating to mass dimension and load restraint offences only to cases where the load on the vehicle is, or may be, a factor in the breach. That effectively means that the bill does not apply the categorisation of breaches to dimensions offences where there is no load, for example, where a trailer has been configured incorrectly making the vehicle too long. That distinction will not apply in New South Wales, meaning that all dimensions breaches will be prosecuted under compliance and enforcement provisions and determined as minor, substantial or severe, regardless of whether a load is a factor in that breach.
I now turn to special mass defences for drivers and operators. The national model provisions allow access to a "reasonable steps" defence for drivers and operators only in the case of a minor breach. New South Wales has decided to maintain its current provisions in terms of special mass defences for drivers and operators. That means there will be no change to the status quo for drivers and operators. The current reasonable efforts defence, under which defendants are required to demonstrate either that they have weighed the loaded vehicle or that they are in possession of sufficient and reliable evidence from which the mass was calculated, will remain. It will be available for minor, substantial and severe mass breaches.
What concessions are made for uncertainties with loading practices in the field? It is important to note that these new provisions will not change the statutory limits. Whilst acknowledging that the transportation of particular loads can be more problematic than others, the responsibility remains with the operator to develop business systems that ensure statutory mass limits are not exceeded. For example, after making best efforts to manage the risk when loading, the first load could be used to test the accuracy of the precautions, moving the vehicle to a level site and assessing the mass using on-board scales, and then making any necessary adjustments to the loading practice. I commend the bill to the House.
Mr JOHN TURNER (Myall Lakes) [11.41 a.m.]: I want to speak only briefly on the bill, as the honourable member for Ballina, who led for the Coalition, has outlined the Opposition's position on it. For some years I served as shadow Minister for Roads. In that time I had meetings with the industry relating to the development of a chain of responsibility. There was great enthusiasm in the industry for that, and I commend the industry for following the matter through to a stage where it is part of the legislation now before the House.
Some concerns remain about the matter, but the legislation overall provides for new responsibilities throughout the trucking industry, making parties to road transport and supply other than drivers and transport operators more accountable and legally liable for breaches of road transport laws. The bill will strengthen the enforcement of sanctions in relation to the investigations attached to road laws, provide a "reasonable steps" defence for mass offences for drivers, operators and owners, and encourage road transport participants to adopt active risk management strategies to prevent breaches of the law.
The whole concept of the bill is to go outside the immediate driver, and look down the chain to see where an offence has been committed. I attended conferences of the Road Transport Association at both Albury and Coffs Harbour when this matter was vigorously debated and I made a short speech. I commend those people for following this matter through. There was a genuine desire for this proposal to come to fruition, in full knowledge of the effects that that may have. People were prepared to work with provisions relating to a chain of command. However, we need a mandated code of practice that is clear so that people understand their responsibilities under it. I am sure it would also help with any relevant legal proceedings that may occur under this legislation.
There is no doubt that there are cowboys in the industry. I was heartened, when I attended those conferences, that the finger of responsibility for breaches was pointed at the cowboys, not only at the truck-driving level, but right up to directors of the companies involved, and others. I well remember many years ago, probably before this matter was even being debated, the concerns that country members of this place had, in fact still have, regarding heavy vehicles on our roads. All honourable members would have been receiving complaints from constituents about methods of driving, bearing in mind that only a small number of people are responsible for the complaints made.
However, one leading organisation, which I will not name, used to advertise that its customers could send their products, et cetera, by its air express to Melbourne and that they would be there next day. The "air express" was actually a truck hurtling at excessive speed down the Hume Highway. That decision was made at board level. This legislation will stamp out that sort of activity and, hopefully, give people at the bottom of the chain, who are doing it tough in this industry, some relief from anxiety that they will be driven to early graves, as often occurs as a result of demands placed on them. This legislation is good for the industry, which I congratulate on driving it through to fruition.
Mr JOSEPH TRIPODI (Fairfield—Minister for Housing) [11.45 a.m.], in reply: I thank honourable members for their contributions and for expressing concerns they have about the bill. The honourable member for Ballina, who led for the Opposition, raised a number of issues, and I will respond to them. The first relates to codes of practice. The Government supports the development of industry codes of practice, and is working with the National Transport Commission to finalise guidelines for industry codes. The Roads and Traffic Authority will work with industry associations to develop codes of practice that help operators to comply with road transport law in New South Wales. Another issue raised relates to work done by the Legislation Review Committee. I note that the Minister has responded directly to the committee.
Issues were also raised about the power to impose fees. That provision, which is in the existing Act, provides legislative certainty to the imposition of fees for cost recovery. Fees are the subject of regulations, which can of course be disallowed by resolution of either House. Another matter raised relates to authorised officers. The extended powers provided by the bill will be exercised only by specifically authorised officers who have been trained in the provisions of the bill. As the shadow Minister noted, a warrant will be required to search any premises, and that will provided necessary checks and balances to these powers. I commend the bill to the House.
Motion agreed to.
Bill read a second time.
In Committee
Clauses 1 to 37 agreed to.
Mr JOSEPH TRIPODI (Fairfield—Minister for Housing) [11.47 a.m.]: I move:
Page 33, clause 38 (1), line 29. Insert "or combination" after "vehicle".
This amendment clarifies the application of the length breaches covered by clause 38 to "vehicles" and "combinations". All of the other dimensions required in the bill as drafted apply to both "vehicles" and/or "combinations". A "combination" is defined as "a group consisting of a motor vehicle connected to one or more other vehicles". The policy that New South Wales has adopted in applying the dimensions requirements in the bill is that they should apply to vehicles or combinations, loaded or unloaded, as the potential safety implications of an over-dimension vehicle could be the same regardless of the vehicle configuration. The definition of "vehicle" in clause 3 of the bill covers "any description of vehicle on wheels" and so would seem to cover a "combination" of vehicles anyway. However, to remove any possible future confusion, and for consistency with the dimensions requirements, the amendment inserts the words "or combination" after the word "vehicle" in clause 38 (1).
Mr DONALD PAGE (Ballina—Deputy Leader of The Nationals) [11.48 a.m.]: Though the Opposition was advised of this amendment only a short time ago, a reading of it appears to confirm what the Minister said, that it is a clarifying amendment, and for that reason we do not oppose it.
Amendment agreed to.
Clause 38 as amended agreed to.
Clauses 39 to 267 agreed to.
Schedules 1 to 3 agreed to.
Bill reported from Committee with an amendment and passed through remaining stages.
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