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Legislative Council - Fifty-First Parliament, Second Session (51-2)
2008-04-30 Daily Xml
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ROAD TRAFFIC (HEAVY VEHICLE DRIVER FATIGUE) AMENDMENT BILL

Second Reading

Second reading.

The Hon. P. HOLLOWAY (Minister for Police, Minister for Mineral Resources Development, Minister for Urban Development and Planning) (17:50): I move:

That this bill be now read a second time.

I seek leave to have the second reading explanation inserted in Hansard without my reading it.

Leave granted.

The safety of heavy vehicle drivers, in the trucks that are their workplaces, and road safety for all members of the community, are high priorities for the community and the Government. We also value the important contribution of the heavy vehicle transport industry to the South Australian economy. It is estimated that the transport and storage industry contributes 4.8 per cent to the economy, accounts for 3.8 per cent of the workforce in South Australia, and supports a diverse range of industries. Nationally the road transport sector employs more than 2 per cent of the workforce and is expected to experience further growth with the land transport task anticipated by the National Transport Commission to double between the years 2000 and 2020.

These social and economic contributions are eroded by road crashes involving heavy vehicles, many of which may be preventable. It is important to recognise that the demands and actions of customers and other off road parties may influence the behaviour of heavy vehicle drivers in a way that leads to breaches of the law, inadvertent or otherwise, and possibly crashes. The costs of crashes where a heavy vehicle (truck or bus) is involved are borne by all Australians, and are estimated at $2 billion per year. The Australian Transport Safety Bureau estimates that up to 30 per cent of truck fatalities and 52 per cent of major crash insurance claims are fatigue related—at an estimated cost of $300 million per year. Of even greater importance, heavy vehicle crashes have a devastating impact on drivers, their families, the operators they work for, businesses big and small, and the community as a whole.

In line with its commitment to road safety, the Government has introduced a brief Bill to enable adoption in South Australia of model Heavy Vehicle Driver Fatigue legislation and model Compliance Scheme Regulations.

The implementation of the model Heavy Vehicle Driver Fatigue legislation will provide for a three tiered approach to management of fatigue of drivers of regulated heavy vehicles. Regulated heavy vehicles are trucks with a gross vehicle mass exceeding 12 tonnes, and buses seating more than 12 adults including the driver. Operators can choose standard hours, as set in the legislation, which allow a maximum of 12 hours work time in 24 (with minimum rest periods required within set intervals); or choose between basic fatigue management and advanced fatigue management that allow for progressively increased flexibility of work and rest hours for operators with systems and practices to safely manage the risk of driver fatigue, in accordance with fatigue management standards and business rules. There will also be new provisions for bus operators and 'two up' driver teams, developed in conjunction with fatigue experts, which will enable them to meet fatigue management and productivity requirements.

The model legislation also extends appropriate levels of responsibility for managing fatigue risks to those off road parties who have control over activities affecting driver work and rest times, and ultimately driver fatigue. This will bring heavy vehicle driver fatigue management into line with existing chain of responsibility requirements under the Road Traffic Act 1961 in relation to heavy vehicle mass, dimension and load restraint.

The implementation of the model Compliance Scheme Regulations will provide a legislative basis for administration of approved road transport compliance schemes for heavy vehicles and/or operators and drivers. Such schemes have been offered by administrative arrangement in South Australia since their inception in 1999, and provide significant incentives and flexibility for heavy vehicle transporters who demonstrate compliance with road laws. Adopting the model Compliance Scheme regulations through South Australian legislation will better align our administration of the schemes with other jurisdictions.

Heavy Vehicle Driver Fatigue

In 1999, South Australia and several other jurisdictions adopted national "Driving Hours regulations" that regulate driving, work and rest hours of drivers of heavy trucks and commercial buses (the existing Road Traffic (Driving Hours) Regulations 1999). In 2004 the Australian Transport Council recognised the importance of developing new national policy and legislation to combat driver fatigue, beyond simple prescription of driving hour limits.

The resulting model Heavy Vehicle Driver Fatigue legislation is soundly based upon expert advice regarding fatigue. The legislation has been developed by the National Transport Commission with the assistance of jurisdictional transport agencies, the heavy vehicle transport industry and unions. Transport Ministers of all States and Territories making up the Australian Transport Council have unanimously approved the reform. The Australian Transport Council also approved a national implementation date of 29 September 2008, which has strong industry support.

The National Transport Commission conducted a comprehensive public consultation process in cooperation with jurisdictions during development of the model Heavy Vehicle Driver Fatigue legislation. More than 30 public information sessions and a number of workshops were conducted with industry and union organisations including the South Australian Road Transport Association, the Australian Trucking Association and the Transport Workers' Union. Industry and union organisations had extensive input into the development of the model national provisions, with a number of amendments made in response to submissions received during this process. The South Australian Road Transport Association has been kept informed about progress of the reform in South Australia.

Industry and unions have indicated support for consistent implementation of the model legislation, provided that adequate provision is made for rest areas for use by heavy vehicle drivers. This Government has therefore provided significant resources for its Roadside Rest Areas project in the State Budget 2007 2008.

The South Australian Bill provides the heads of power required to make regulations based upon the model legislation. The regulations will repeal and replace the existing Driving Hours Regulations. Industry and Unions will be consulted regarding any substantive local variations from the model legislation that may be identified as necessary during the process of drafting.

Only one substantive variation has been identified to date, appearing in clause 9 of the Bill, and the South Australian Road Transport Association has been made aware of it and understands the reason for its inclusion. The variation is from the model 'reasonable steps defence', which requires the person wishing to use it to establish that they took all 'reasonable steps' or there were none that could be taken, to prevent the offence. The South Australian Bill provides that a person must also show that they did not know, and could not reasonably have been expected to know, of the contravention concerned. This is consistent with:

the reasonable steps defence provided in the recent Compliance and Enforcement amendments to the Road Traffic Act in relation to heavy vehicle mass, dimension and load restraint;

model national legislation for Chain of Responsibility for Heavy Vehicle Speed Compliance recently approved by the Australian Transport Council; and

the Heavy Vehicle Driver Fatigue legislation as modified and implemented in Victoria in December 2007 (Victoria being the only jurisdiction to have enacted the model legislation to date), although unlike this Bill and the model legislation, the Victorian legislation limits availability of the defence to certain parties.

The National Transport Commission and jurisdictions at officer level have indicated in principle support for recommending to the Australian Transport Council a modification of the national model legislation in keeping with the approach in the South Australian Bill, which prevents a defendant who was aware of the offence using the reasonable steps defence.

Implementation of the model legislation will build upon the framework established by the Statutes Amendment (Road Transport Compliance and Enforcement) Act 2006. The provisions relating to mass, dimension and load restraint will be extended to the regulation of heavy vehicle driver fatigue. For example, off road parties who may influence road transport will be required to take reasonable steps, consistent with their role, to prevent driver fatigue; and revised penalties and sanctions will apply to heavy vehicle driver fatigue offences and breaches of work and rest limits. This will achieve the fairer distribution of responsibility among those parties who are in a position to exercise some control over risks to safety.

The reasonable steps that should be taken will vary depending on the nature of the parties and their contractual relationship, their respective knowledge and expertise, and the measures reasonably available to them in relation to the particular risks faced. For example, a consignor demanding a delivery time that could only be achieved by a transport operator prepared to allow drivers to speed, or take inadequate rest breaks, will be liable along with the transport operator unless reasonable steps were taken to avoid making such a demand.

The reform also addresses the current problem of a driver compliant with driving hours being in breach of occupational, health and safety laws. A vehicle is deemed to be a workplace under Occupational Health Safety and Welfare legislation. The reasonable steps duty under the reform complements the existing obligation to manage risks to health and safety 'so far as is reasonably practicable' under the Occupational Health, Safety and Welfare Act 1986. It is in the interests of all businesses not to create unsafe workplaces, particularly when this may directly affect the public who share the road with heavy vehicles.

Compliance with a relevant registered Industry Code of Practice will assist in demonstrating that an operator has taken reasonable steps in relation to management of fatigue. Such non binding codes assist smaller operators in developing low cost systems suitable to their operations.

The overall impact of implementing the model Heavy Vehicle Driver Fatigue legislation is positive as a result of anticipated improvements in road and workplace safety, and reduced road and workplace accidents involving heavy vehicle driver fatigue. Implementation of the reform will result in an increase in compliance costs for the road transport industry, some of which is likely to be offset by savings to organisations as a result of improved business systems, increased certainty regarding and improved compliance with occupational health and safety obligations, and safer working conditions.

Clearly the anticipated reduction in social and economic costs of road crashes, as a result of improved safety for heavy vehicle drivers and other road users, would be of significant benefit to the community as a whole. The National Transport Commission in its Heavy Vehicle Driver Fatigue Regulatory Impact Statement anticipates that full compliance with the proposed regime would result in national net benefits of up to $143 million per annum.

Compliance Schemes

The national 'Alternative Compliance Scheme' framework, now known as the National Heavy Vehicle Accreditation Scheme or NHVAS, was approved by the forerunner of the Australian Transport Council in 1997. National policy objectives include improving safety, productivity and compliance within the road transport industry.

In April 2000, NHVAS was implemented in South Australia by notices in the Government Gazette, with Mass Management and Maintenance Management modules offered to operators. At present the Department for Transport, Energy and Infrastructure manages over 660 operators, with a combined fleet of more than 11,700 vehicles, accredited in these modules.

The Transitional Fatigue Management Scheme has operated in South Australia since 1999 through accreditation under the Driving Hours Regulations rather than under the NHVAS. Over 335 employers and self employed drivers are registered and more than 1,350 drivers presently participate in the Scheme, also administered by the Department for Transport, Energy and Infrastructure.

In South Australia, as in other jurisdictions, accreditation schemes usually provide incentives (e.g. access to additional routes, improved flexibility of work and rest hours, increased mass limits) for participating operators who are required in turn to demonstrate increased accountability for risk management and compliance, and/or to better manage the impact of their vehicles on road infrastructure.

The provision of new Fatigue Management modules (to replace the Transitional Fatigue Management Scheme) through NHVAS, along with the existing NHVAS modules, presents an opportunity to better align South Australia's administration of the Scheme with other implementing jurisdictions, currently New South Wales, Queensland and Victoria. This will minimise 'jurisdiction shopping' as well as providing a legislative basis for the administration and enforcement of the existing schemes of heavy vehicle accreditation.

As with the general approach to the model fatigue legislation, the Bill provides heads of power in the Road Traffic Act so that regulations based upon model Compliance Scheme legislation can be made.

The Road Traffic Act already provides for authorised officers and police officers to exercise certain compliance and enforcement powers in relation to an 'approved road transport compliance scheme'. The NHVAS is currently the only such scheme prescribed. The regulations will include provisions for administration of the schemes, setting fees for accreditation, and penalties not exceeding $50,000 for offences relating to compliance schemes.

Under existing arrangements NHVAS accreditation services are provided by the Department for Transport, Energy and Infrastructure free of charge. Participants in the Transitional Fatigue Management Scheme are required to pay a once off registration fee of $50 under the Driving Hours Regulations.

Compliance requirements will not be significantly increased but will be made more transparent. From 1 July 2008 operators will be charged $80 per operator (per module) and $25 per vehicle (for nomination in one or more modules) per two year renewal period in NHVAS. In the case of operators in the Fatigue Management modules of NHVAS, only employers and self employed drivers will be charged $80 for every two year accreditation period, with no fees payable for nomination of employed drivers or vehicles.

The proposed costs will enable partial recovery of the cost of administering the scheme in South Australia and are broadly consistent with fee structures applicable in other implementing jurisdictions. In addition, the per vehicle charge for the Mass Management and Maintenance Management modules will ensure that the proposed fee is automatically scaled to the size of the operation in order to avoid a disproportionate impact on smaller businesses including family businesses.

As membership in the Scheme will continue to be voluntary, operators will be able to assess the cost to them of participation, compared with the benefits that accrue from membership. It is worth noting that national accreditation reviews point to significant savings for businesses associated with safer work practices adopted as a result of accreditation. Anticipated improvements in compliance rates are also expected to contribute to improvements in road and workplace safety to the benefit of the industry and the whole community.

Conclusion

The Government is committed to improving road and workplace safety. It is also committed to providing a safer and fairer system—a more level playing field within the heavy vehicle transport industry—as a result of more effective enforcement and enhanced levels of compliance; and improved industry efficiency as a result of enhanced regulatory harmonisation between jurisdictions. These outcomes will benefit road transport organisations and the community alike.

This Bill is a product of significant cooperation, consultation and effort within South Australia and at the national level and I look forward to receiving bipartisan support in the Parliament during its debate and passage.

I commend the Bill to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Road Traffic Act 1961

4—Amendment of section 5—Interpretation

This clause makes consequential amendments to definitions of terms used in the Act, such amendments being necessary to reflect the extension of the responsibilities under the proposed Road Traffic (Heavy Vehicle Driver Fatigue) Regulations 2008 to persons prospectively involved in the chain of responsibility such as consignors and loaders.

5—Repeal of Part 3AA

This clause substitutes a new Part 3AA into the principal Act, providing a regulation making power in relation to the establishment of a scheme for the management of fatigue in drivers of regulated heavy vehicles.

6—Amendment of heading to Part 4 Division 3B Subdivision 2

This clause makes a consequential amendment.

7—Substitution of section 121

This clause repeals section 121 of the Act, the bulk of which (subsections (1), (3) and (4)) has been relocated in the measure to become proposed section 173AA, and substitutes the remaining subsection (2) as section 121.

8—Amendment of section 165—False statements

This clause amends section 165 of the Act to make it clear that a record compiled under the Act is not false or misleading merely because the record contains a spelling error.

9—Insertion of section 173AA

This clause relocates the bulk of what was section 121 of the Act so as to become section 173AA, and makes changes to that provision so that provisions dealing with the reasonable steps defence become of general application to the relevant offences under the Act, and any regulations under the Act, rather than being limited to Part 4 Division 3B of the Act as is currently the case. This is because the new offences under the proposed Road Traffic (Heavy Vehicle Driver Fatigue) Regulations 2008 rely in part on the defendant being able to avail himself or herself of the reasonable steps defence.

10—Amendment of section 176—Regulations

This clause amends the regulation making power in section 176 of the Act to provide a power to make provisions in relation to the establishment and administration of approved road transport compliance schemes (including the imposition of penalties and expiation fees and the prescription of fees in relation to such schemes).

Debate adjourned on motion of Hon. D.W. Ridgway.

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