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Who is who in the enforcement zoo

OPINION: Faceless NTC bureaucrats in a swanky Melbourne office block are setting enormous penalties for us

 

The Australian Transport Association (ATA) recently called for the abolition of the National Transport Commission (NTC). While this would appear to be an ambitious gambit, we don’t necessarily disagree with the premise on which it is based. The NTC is a good starting point for who’s who in the zoo.

The NTC is a Federal Government entity created by the National Transport Commission Act 2003 (Cth). The NTC Act has given it a sweeping mandate, permitting it to draft legislation affecting truck drivers and operators across the Commonwealth. A rather large elephant in the room rears its head at this point however as the Federal Government does not have the constitutional seat of power to legislate on road transport. It is a State Government responsibility.

All manner of road transport legislation that affects us daily leads back to state coffers. The Heavy Vehicle National Law (HVNL) road rules, and the plethora of other rules and regulations we encounter, all emanate from within the state capitals, not the federal one, the ACT.

So, we may ask, how does the NTC have so much sway when it doesn’t have the jurisdiction bestowed upon it? Smoke and mirrors come to mind, although it sits in plain sight once you connect the dots.

Through its parent Commonwealth Act, the NTC has an ongoing responsibility to develop, monitor and maintain uniform or nationally consistent regulatory and operational reforms relating to road transport. They have the mandate to create model legislation relating to road transport. And they relish that role.

All very good, one might say. However, the NTC Act (Cth) section 7 provides that regulations setting out model legislation and road transport legislation does not have the force of law. This means the NTC may create model legislation until the cows come home, but they cannot enforce it or enact it into law.

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How does it affect the side of the road near you? When you are copping that proverbial pineapple, as it were? How was the seed planted in the first place? The NTC writes or drafts the law that we know. Some faceless academics or bureaucrats in a swanky Melbourne office block write legislation and set enormous penalties without considering the actual consequences to real people.

To top this off, they allow these fines to increase yearly and permit small operators to face penalties multiplied by five for most offences under the HVNL. Yet they never have to face scrutiny for this and remain largely ringfenced against complaints or submissions.

You only have to look at the results of the so-called “reviews” of the HVNL conducted to this point. Remember, rubbing your face against a cheese grater may be a way of describing that process in actuality.

So we now have the HVNL and regulations made under it drafted by the NTC, and we also have an entity called the National Heavy Vehicle Regulator (NHVR) created from within that law drafted by the NTC. However, how do they get it into law, given they are a federal entity?

The answer is to give it to a state to enact, which can allow it to be applied or adopted by other states and territories should they respectively choose to do so.

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The HVNL was a legislative flop from the very outset when the States (COAG) could not agree in unison. On August 19, 2011, the Feds released an elaborate document called the Intergovernmental Agreement on Heavy Vehicle Regulatory Reform, an agreement between all the States and Territories to establish a national system for all heavy vehicles over 4.5 tonnes, consisting of uniform laws administered by a single national regulator. Sounds impressive when you read it in context.

However, it didn’t achieve that purpose from the very beginning and still doesn’t to the present day. Barnett from Western Australia refused to sign it, and the Northern Territory did sign it, only to renege when they realised they couldn’t apply a state law in federal territory.

The devil in detail is a key part of any government publication – and this agreement is no exception. The agreement provided that Queensland would host the National Law and, by extension, would be the home of the Regulator. Why Queensland, one may ask? Queensland is the only unicameral state in the Federation, having abolished its upper chamber or Legislative Council in 1922.

Unlike the other states around the Commonwealth, it only has the 93-member Legislative Assembly. This means that Queensland may pass legislation very quickly and without the checks and balances that the upper house may provide in other States.


RELATED ARTICLE: Needless complexity in HVNL


Unicameral legislatures, or parliaments with only one chamber, are uncommon in Westminster parliamentary democracies. Generally, the preferred model is two chambers with both a Lower House and an Upper House of review.

Hence, Queensland was and remains the repository for the HVNL. Queensland adopted the HVNL, the Regulator ensconced itself at Newstead and the other participating states and territories adopted or applied the Queensland Law, drafted by the NTC, as a law of their jurisdiction applied with various derogations (changes).

Fast forward to 2023 and we have the NHVR franchise expanding, having secured the agreement of New South Wales to further the branding. We know the NHVR utilise police in South Australia and Victoria to conduct interceptions and breaches, then take over carriage of matters at court. Let’s hope this does not become the norm de rigueur in NSW.

Another concern for us and the industry is HVNL section 569, which provides the Regulator functions only to include provisions of the HVNL or powers conferred upon the Regulator by the HVNL. This means the HVNL may not prosecute registration offences, drug or drunk driving, or other offences that fall under other road transport legislation of the various jurisdictions that apply the HVNL.

Highway Advocates regularly deals with both the NHVR and police in all jurisdictions, and our report card on prosecutorial conduct is not glowing at this point in time.

Remember, who watches the watchtower?

Highway Advocates, now more than ever, is the link between your world and the law world.

ROBERT BELL a former truck driver and current law undergraduate and practising paralegal, is the CEO and a director of Highway Advocates Pty Ltd. Contact Highway Advocates Pty Ltd on robert.bell@highwayadvocates.com.au
or phone 0488 010 101 or see the website at www.highwayadvocates.com.au

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