14 February 2013 National Transport & Logistics Regulation Becomes Reality. Is Your Supply Chain Ready?

By Tim Hemingway, Partner and Andrew Draper, Senior Associate

In Brief

After years in the making, the establishment in late January of two new national transport regulators represents a critical shift in land transport regulation in Australia and serves as an important reminder of the way that transport regulation impacts everyone who uses transport in their supply chains, not only those who provide transport services.

The National Rail Safety Regulator (NRSR) and the National Heavy Vehicle Regulator (NHVR) both commenced operation in late January. These two new regulators join the Australian Maritime Safety Authority (AMSA) which is responsible for domestic commercial vessel safety.

What has changed?

Until now, domestic transport regulation has been administered largely by State and Territory authorities. Different regimes have applied in the various jurisdictions and, whilst there were many similarities, numerous subtle (and sometimes not so subtle) differences made compliance for businesses operating in more than one State or Territory a challenge.

The establishment of new national regulators does not of itself eliminate all of those discrepancies, but a level national playing field is getting closer and the new regulators should assist operators who can now address many of their needs through one national authority for each transport mode, instead of multiple State and Territory bodies.

How does this affect me?

Transport operators: If you are a heavy vehicle, rail or commercial vessel operator, the new national laws and regulators are intended to make compliance easier and simplify running your business and its administration. Rail operators should enjoy streamlined one-stop-shop accreditation, a unified approach to safety compliance and nationally consistent communication and signalling systems. Heavy vehicle operators should benefit from the NHVR's administration of the National Heavy Vehicle Accreditation Scheme and national Performance Based Standards for heavy vehicles, and (once allocation of responsibilities and service levels have been worked out between the NHVR and the States and Territories) clearer transport route access principles.

Businesses that use the services of transport providers in their supply chains: Over time, these simplified regulator structures should drive greater ease of compliance and greater efficiencies for transport providers and ultimately assist in reducing transport and supply chain costs for users of transport services. However, the simplified regulator structures will not alone deliver these results – consistently applied national transport laws are also required.

We now have national regulators, but what about national laws?

We are not quite there yet.

The National Heavy Vehicle Law has been passed in Queensland, with the rest of the country expected to take up the law by the middle of the year (although Western Australia has yet to confirm its support, consistent with its position of not having taken up the sorts of 'chain of responsibility' laws that were in place in other jurisdictions – see below). And even with a single NHVR, heavy vehicle operators will still need to deal with State and Territory-based authorities for things like registration and driver licensing.

The National Rail Safety Law has been passed in South Australia, New South Wales, Tasmania and the Northern Territory, with the rest of the country expected to take up the law during the course of 2013.

What are the laws and regulations about?

Two words: safety and consistency. It's all about creating a culture of compliance across all states, supported by singular national regulators that are there to take action against behaviours and practices that pose safety risks – think operator fatigue management, safe loading, equipment standards and accreditation – wherever they may occur.

National Heavy Vehicle Law

Readers will recall that State and Territory based heavy vehicle 'chain of responsibility' laws previously dealt with driver fatigue management, safe loading (mass, dimension and load restraint) and speeding, in different ways and to varying degrees depending on the jurisdiction. The National Heavy Vehicle Law enshrines these 'chain of responsibility' laws, on a uniform national basis. Severity of breach is assessed according to magnitude of risk and, importantly, everyone in the transport chain is potentially liable – from consignee, packer and loader through to consignor, with liability extending to employers and to directors and managers of organisations in breach. Serious penalties and a range of corrective and other orders apply. The key defence is to be able to show that 'reasonable steps' were taken to prevent the relevant breach.

Rail Safety National Law

Chain of responsibility principles are likewise enshrined in the new national rail safety law, such that everyone in the rail transport chain has 'rail safety duties'. The new law's accreditation and registration requirements create a nationally consistent set of standards for equipment and infrastructure operators and the law mandates a number of basic safety processes that must be in place to manage risks. Serious penalties and a range of corrective and other orders apply.

What should I do now?

If transport is part of your supply chain, now is the time to review your operations and processes and how they are documented (including your contractual arrangements with transport providers) to ensure you are minimising your risk of liability. We are here to help.

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This article is not legal advice and the views and comments are of a general nature only. This article is not to be relied upon in substitution for detailed legal advice.

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