Bills Digest no. 1 2009–10
Road Transport Reform (Dangerous Goods) Repeal Bill
2009
WARNING:
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Bill.
CONTENTS
Passage history
Purpose
Background
Financial implications
Main provisions
Concluding comments
Contact officer & copyright details
Passage history
Road Transport Reform
(Dangerous Goods) Repeal Bill 2009
Date introduced: 22 June 2009
House: House of
Representatives
Portfolio: Infrastructure, Transport, Regional Development and
Local Government
Commencement: Sections 1 to 3 commence on the day
of Royal Assent. Schedule 1 commences on a day to be fixed by
proclamation, but if any provisions do not commence within six
months of the day of Royal Assent, the provisions commence on the
first day after the end of the six months.
Links: The
relevant links to the Bill, Explanatory Memorandum and second
reading speech can be accessed via BillsNet, which is at http://www.aph.gov.au/bills/.
When Bills have been passed they can be found at ComLaw, which is
at http://www.comlaw.gov.au/.
To repeal the Road Transport
Reform (Dangerous Goods) Act 1995 so that the Australian
Capital Territory (ACT) government can implement the updated
Australian Dangerous Goods Code to govern the transport of
dangerous goods by road and rail in the ACT.
The states and territories are responsible for legislation
governing the transport of dangerous goods by road and rail.
Historically, inconsistencies in the legislation in the different
jurisdictions were a major problem for the road freight industry.
To deal with this problem, the states and territories agreed to
adopt a national code for the transport, by road, of dangerous
goods.
The mechanism for adopting the national code was for the
Commonwealth government to implement template legislation for the
ACT, which the states and the Northern Territory then applied in
their respective jurisdictions. The
Road Transport Reform (Dangerous Goods) Act 1995 (the Act) is
the legislation the Commonwealth government introduced under this
mechanism. The following is an excerpt from the Bill Digest for the
Road Transport Reform (Dangerous Goods) Bill 1994 which became the
Act.
The purpose of the Road Transport Reform
(Dangerous Goods) Bill 1994 is set out in clause 3 of the Bill and
is to regulate the transportation of dangerous goods by road in the
ACT and in the Jervis Bay Territory in order to 'promote public
safety and protect property and the environment'
In July 1991, a Special Premiers' Conference
agreed to the establishment of a National Road Transport
Commission. Subsequently, the National Road Transport
Commission Act 1991 was passed by the Commonwealth. The
National Road Transport Commission is an independent statutory body
which advises the Ministerial Council for Road Transport. Its
charter is derived from Intergovernmental Agreements on Heavy
Vehicles (1991) and Light Vehicles (1992).
Road transport plays an important role in the
Australian economy. Historically, each Australian jurisdiction has
had its own regulatory framework to deal with road transport.
Variations in these regulatory frameworks are regarded as
counterproductive - leading to increases in costs and reductions in
productivity.
The Heads of Agreement state that there should
be 'improvements in road safety and transport efficiency and
reductions in the costs of administration of road transport' and
that these goals will be achieved through the establishment of a
co-operative legislative scheme.
In 1992, the Ministerial Council for Road
Transport endorsed a proposal to divide the task of establishing
uniform road transport regulation for Australia into modules. To
date, the Commonwealth has enacted as model legislation for the
rest of Australia, the:
- the Road Transport Charges (Australian Capital Territory) Act
1993; and
- the Road Transport Reform (Vehicle and Traffic) Act 1993.
Another priority of the National Road Transport
Commission has been the transportation of dangerous goods. A draft
Bill covering the transportation of dangerous goods was circulated
for public comment, for industry comment, and presented to the
Ministerial Council on Road Transport where it obtained majority
support in September 1994.
The Road Transport Reform (Dangerous Goods)
Bill will provide a vehicle for calling up the Australian Code for
the Transport of Dangerous Goods and the Australian Explosives Code
in a uniform manner. These codes provide common standards. At
present, the extent and manner in which these codes are adopted
throughout Australia varies. The Bill also puts in place a
framework permitting the making, administration and enforcement of
regulations relating to the transport of dangerous goods by
road.[1]
In 2003, Commonwealth, state and territory ministers agreed to
form the National Transport Commission (NTC) by building on the
National Road Transport Commission. This decision was embodied in
the Inter-Governmental Agreement for Regulatory and Operational
Reform in Road, Rail and Intermodal Transport (the
Agreement).[2] As
stated in the preamble to the Agreement, the NTC s function is:
to progress regulatory and operational reform
for road, rail and intermodal transport in order to deliver and
sustain uniform or nationally consistent outcomes.[3]
In replacing the National Road Transport Commission, the NTC
thus assumed the National Road Transport Commission s
responsibility for road transport but also had its remit extended
to include rail and intermodal transport. The NTC is now the main
body responsible for developing national transport policy. The
Australian Transport Council a ministerial forum for Commonwealth,
state and territory consultations, which provides advice to
governments on the coordination and integration of all transport
and road policy issues at a national level directs the activities
of the NTC and the NTC reports to the Australian Transport
Council.[4]
The Agreement tasks the NTC with responsibility for developing
model legislation that is, legislation, regulations and other
legislative instruments for adoption by the states and territories
with the purpose of ensuring consistent, nation-wide regulation. As
noted, in the past, the mechanism for doing so was template
legislation for the ACT. The Agreement replaced this process. Under
the new process, each state and territory is responsible for
adopting model legislation. Consequently, the Commonwealth has to
repeal existing legislation for the ACT when the ACT government
needs to introduce replacement legislation. As stated in clause
14.5 of the Agreement:
The Commonwealth, in agreement with the
Australian Capital Territory (ACT) and other relevant Parties will,
as soon as is practicable, repeal any Road Transport Legislation
that has been enacted by the Commonwealth on behalf of the
ACT.[5]
The NTC has developed model legislation for the seventh edition
of the Australian Code for the Transport of Dangerous Goods by Road
and Rail (ADG7).[6]
The Road Transport Reform (Dangerous Goods) Repeal Bill 2009 (the
Bill) repeals the existing legislation for the ACT so that the ACT
government can implement ADG7.
Inconsistency in state and territory regulation of land
transport is costly to business. The Productivity Commission, in
its draft report titled Annual Review of Regulatory Burdens on
Business: Social and Economic Infrastructure Services,
contains examples. One is the cost to the railway industry of
safety regulation duplication:
The Australasian Railway Association (ARA)
(sub. 22, p. 7) notes that safety regulation is duplicated as there
are safety regulators for each jurisdiction and overlaps between
rail safety legislation and OHS legislation.
The ARA in a survey of its members (Synergies
2008) estimates that the direct cost of complying with this
duplicated and overlapping rail safety regulation is $23 million
per year with an estimated cost of $42 million for the whole
industry.
The avoidable component, based on information
provided by the respondents to the survey, is between 5 and 75 per
cent of total compliance costs.[7]
Road transport has one of the longest histories of attempts to
apply consistent regulation but progress has been slow and only
partly successful:
The states and territories are largely
responsible for the regulation of road transport. Inconsistency in
road and vehicle regulation has been an ongoing issue for the road
freight industry:
- as early as 1991, Australian Transport Ministers agreed to
establish a National Road Transport Commission (NRTC) to develop
uniform regulation for the operation of vehicles and consistent
charging for vehicle registration
- in 1994, road reform was absorbed into the National Competition
Policy
- in 2004 the NRTC was replaced by the National Transport
Commission (NTC) which has a broader charter to reform transport
regulation.
The most recent attempt to produce a uniform
national approach involved the development of model laws whereby
individual jurisdictions agreed to model their own legislation,
standards and codes of practice on a model document. While this
approach enables jurisdictions to adapt the model to suit their
individual circumstances, this flexibility along with jurisdiction
specific exemptions, has resulted in differences in the adoption,
application, interpretation and enforcement of these model laws. As
a result a road transport business operating across state borders
still has to comply with multiple, often inconsistent
regulations.
Various NTC reviews have found that efforts to
achieve uniform or consistent legislative outcomes in this area
have not been successful (Department of Infrastructure, Transport,
Regional Development and Local Government 2008).[8]
Failure to pass the Bill would prevent the ACT government from
legislating to implement for the seventh edition of the Australian
Code for the Transport of Dangerous Goods by Road and Rail. The
Minister for Infrastructure, Transport, Regional Development and
Local Government, the Hon A Albanese, noted in the second reading
speech to the Bill that:
The repeal will come into effect on a day to be
fixed by proclamation to coincide with the passage of legislation
by the ACT Government to ensure that a seamless transfer to the new
dangerous goods transport provisions occurs.[9]
There are no direct financial implications for the Australian
Government.
The Bill does not appropriate funds.
Item 1 repeals the Road Transport Reform
(Dangerous Goods) Act 1995.
Subitem 2(1) provides that, despite the repeal
of the Road Transport Reform (Dangerous Goods) Act 1995,
the Act continues to apply in relation to an offence committed
before the commencement of the repeal (subitem
2(1)(a) or for proceedings for an offence alleged to have
been committed before the commencement of this item
(subitem 2(1)(b) or for any matter connected with
or arising out of such proceedings subitem
2(1)(c).
Subitem 2(2) provides that subitem
(1) does not limit the operation of Section 8 of the
Acts Interpretation Act 1901. Section 8 deals with the
effects of repealing an Act or part of an Act.
Item 3 provides that despite the repeal of the
Act, Section 44 of the Act continues to apply in relation to an
incident that occurred before the commencement of this item.
Section 44 allows a Commonwealth authority to recoup the costs of
dealing with an accident or similar involving dangerous goods.
Item 4 provides that despite the repeal of the
Act, sections 48 and 49 continue to apply in relation to an act or
omission that occurred before the commencement of this item. These
sections protect persons acting honestly and in good faith from
civil liability in defined circumstances.
Item 5 provides that, to avoid doubt, a law of
the ACT may make provision in relation to transitional matters
arising from the repeal of the Act.
Concluding comments
Despite progress in areas such as the transport of dangerous
goods, inconsistencies in state and territory legislation remain a
major barrier to the development of a national transport sector.
One option is to establish national authorities responsible for
regulating particular areas of transport. This is the approach
underlying the announcement by the Council of Australian
Governments in July 2009 of three proposed national regulators
governing heavy vehicles, maritime safety, and rail safety
respectively:
COAG agreed to implement national regulation
for maritime safety, rail safety and heavy vehicles; this will mean
improved safety, reduced costs and regulatory burden for Australian
transport companies as well as reduced costs of exports and
trade.[10]
The proposal to establish a national rail safety regulator
follows from the failure of the states to implement consistent rail
safety regulation:
Following the inability of model legislation to
deliver the required national rail safety regime, the A[ustralian]
T[ransport] C[ouncil] in July 2008 directed the NTC to prepare a
R[egulatory] I[mpact] S[tatement] for a single, national rail
safety regulatory and investigation framework.
The draft RIS, in evaluating various options,
concluded that the option of a single national safety regulator and
investigation framework was the superior option and would enable
the attraction and more efficient allocation of resources (NTC
2008).
The RIS was endorsed by the ATC in May 2009 and
it recommended that COAG proceed to develop a single national rail
safety framework (ATC 2009).[11]
The industry, as represented by the Australasian Railway
Association, and the Australian Rail Track Corporation have
endorsed the concept of a single national regulator.[12]
However, the Productivity Commission has cautioned against
seeing national regulation as the solution to problems of
inconsistency:
care should be taken to ensure that a national
framework does not impose additional regulatory burdens. The
effectiveness of these national regimes should be assessed once
they have been implemented and had time to take effect.[13]
Richard Webb
21 July 2009
Bills Digest Service
Parliamentary Library
© Commonwealth of Australia
This work is copyright. Except to the extent of uses permitted
by the Copyright Act 1968, no person may reproduce or transmit any
part of this work by any process without the prior written consent
of the Parliamentary Librarian. This requirement does not apply to
members of the Parliament of Australia acting in the course of
their official duties.
This work has been prepared to support the work of the Australian
Parliament using information available at the time of production.
The views expressed do not reflect an official position of the
Parliamentary Library, nor do they constitute professional legal
opinion.
Feedback is welcome and may be provided to: web.library@aph.gov.au. Any
concerns or complaints should be directed to the Parliamentary
Librarian. Parliamentary Library staff are available to discuss the
contents of publications with Senators and Members and their staff.
To access this service, clients may contact the author or the
Library’s Central Entry Point for referral.
Back to top