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13997 Cat. No. 97 2937 2 ISBN 0644
519827
1998
THE
PARLIAMENT OF THE COMMONWEALTH OF
AUSTRALIA
HOUSE OF
REPRESENTATIVES
NATIONAL
ROAD TRANSPORT COMMISSION AMENDMENT BILL
1998
EXPLANATORY
MEMORANDUM
(Circulated
by authority of the Minister for Transport and Regional
Development,
The Honourable Mark Vaile
MP)
NATIONAL ROAD TRANSPORT COMMISSION AMENDMENT BILL
1998
OUTLINE
The
purpose of the National Road Transport Commission Amendment Bill 1998
(the Bill) is to continue the current process of cooperative national road
transport reform in Australia. The Bill extends the life of the National
Road Transport Commission Act 1991 (the NRTC Act) for another five years
from its current sunset of 14 January 1999. In addition, the Road Transport
Reform (Heavy Vehicles Registration) Act 1997, the Road Transport Reform
(Vehicles and Traffic) Act 1993, and the Road Transport Reform (Dangerous
Goods) Act 1995, which were developed and implemented under this reform
process, will no longer be subject to the NRTC Act
sunset.
The NRTC Act established the National
Road Transport Commission (NRTC) as an independent road transport reform body
that is directly accountable to Commonwealth, State and Territory Transport
Ministers. In consultation with the Commonwealth, States and Territories, the
road transport industry, user groups and other interested parties, the NRTC
develops and progresses reforms aimed to produce a nationally uniform or
consistent road transport operating environment.
The Bill contains provisions relating
to:
• the extension of the sunset of the
NRTC Act, for another five years from 15 January
1999;
• removal of sunset from certain pieces
of Commonwealth Road Transport Reform
legislation;
• regular review of the NRTC Act
and the Commonwealth Road Transport Reform
legislation;
• the Australian Transport
Council (ATC) replacing the Ministerial Council for Road Transport (MCRT) as the
responsible Ministerial Council;
• allowance
for the involvement of New Zealand in deciding trans-Tasman road vehicle
standards;
• Defence Force exemptions from
road transport regulation under certain
circumstances;
• revised structure and focus
for the NRTC, including strategic planning requirements;
and
• consultation with the National
Environment Protection Council (NEPC) on motor vehicle noise and emissions
standards.
The NRTC Act was initially prepared
to give effect to the 1991 Heavy Vehicles Agreement and subsequently
amended to incorporate the 1992 Light Vehicles Agreement. These
Agreements are schedules to the NRTC Act. The Bill contains Heads of Government
Agreements varying the Heavy Vehicles Agreement and the Light Vehicles
Agreement, being the First Heavy Vehicles Amending Agreement and the
First Light Vehicles Amending Agreement. The amending intergovernment
Agreements will take the form of schedules 1A and 2A to the Bill, and will come
into force upon signature by Heads of
Government.
A Review of National Road Transport
Law was undertaken in late 1996, as required by the NRTC Act. The Bill and
Agreements have been drafted in consultation with States and Territories to put
the outcomes of the Review process into place.
The National Road Transport Commission
Amendment Act 1997 was passed by Parliament and came into effect in late
1997 to ensure the continuation of the NRTC Act for a further 12 months from its
original sunset of 15 January 1998. This was to allow the finalisation and
passage of the current Bill to implement the wider range of improvements to the
NRTC Act.
FINANCIAL IMPACT
STATEMENT
The NRTC is funded by all
jurisdictions for $3.605m in the current year (1997/98), with $1.24m (35%)
contributed by the Commonwealth and the remainder by the States and Territories
in proportion to their vehicle registrations. The Commonwealth has allocated
budget funding for the NRTC at this level of contribution until
2000/1.
In 1995 the Industry Commission
estimated that gains from seamlessness in regulation would improve capital and
labour productivity in road transport by 5%. The wider Australian economy will
also gain, the Industry Commission estimates that the reform of road transport
will increase GDP by more than $0.8 billion annually. The NRTC’s July
1996 Mass Limits Review report estimates that higher mass limits alone may bring
economy wide benefits with a net present value of over $1 billion. The
resources freed by road transport reform will provide a significant boost to
Australia’s economic development, in addition to the direct benefits of a
more efficient and safer road transport
industry.
NOTES ON
CLAUSES
Clause 1 - Short
title
This clause provides that the Act
be cited as the National Road Transport Commission Amendment Act
1998.
Clause 2 -
Commencement
This clause provides for
the Act to commence on a date to be fixed by proclamation, or within six months
of passage.
It is desirable for the
improvements to the NRTC and the road transport reform processes to come into
effect as soon as possible after passage of the Bill through the Parliament and
signature of the amending Agreements by Heads of Government. However, signature
of the Agreements by Heads of Government must occur before the Act can commence,
and proclamation will be sought once this is
secured.
Six months sets a time limit on
commencement, within which signature of the Agreements is
expected.
Clause 3 -
Schedules
This clause explains that the
schedules to the Bill set out amendments to the Acts
specified.
Schedule 1 - Amendments of the
National Road Transport Commission Act
1991
Schedule 1 to the Bill (items
1 to 105) provides for amendments to the National Road Transport Commission
Act 1991 (the Act).
Item 1 -
Section 3
Item 1 amends section 3 of
the Act to insert a definition of ‘Australian Transport Council’,
which is to replace the Ministerial Council for Road Transport as the
Ministerial Council responsible for road transport reform under the Act. This
amendment causes consequential amendments in items: 15, 17, 19, 22, 25 26, 27,
29, 30, 31, 36, 38, 39, 40, 43, 44, 45, 47, 52, 55, 56, 58, 67, 69, 70, 72, 73,
74, 75, 76, 77, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91 and
94.
Item 2 - Section
3
Item 2 amends section 3 of the Act to
insert a definition of ‘First Heavy Vehicles Amending Agreement’.
This Agreement will take the form as set out in Schedule 1A of the
Bill.
Item 3 - Section
3
Item 3 amends section 3 of the Act to
insert a definition of ‘First Light Vehicles Amending Agreement’.
This Agreement will take the form as set out in Schedule 2A of the
Bill.
Item 4 - Section 3 (definition of
Heavy Vehicles Agreement)
Item 4 amends
section 3 of the Act to amend the definition of ‘Heavy Vehicles
Agreement’ to mean the Original Heavy Vehicles agreement as amended by the
Original Light Vehicles Agreement and the First Heavy Vehicles Amending
Agreement.
Item 5- Section 3 (definition
of Light Vehicles Agreement)
Item 5
amends section 3 of the Act to amend the definition of ‘Light Vehicles
Agreement’ to mean the Original Light Vehicles Agreement, as amended by
the First Light Vehicles Amending
Agreement.
Item 6 - Section 3 (definition
of Ministerial Council)
Item 6 repeals
the definition of ‘Ministerial Council’ from section 3 of the Act,
as the Australian Transport Council is to assume the Ministerial Council for
Road Transport's roles and responsibilities under the
Act.
Item 7 - Section 3
Item 7 inserts a definition of
‘New Zealand member’ into section 3 of the Act, as provision is made
in the Act to allow for New Zealand to be represented on the Commission.
Item 8 - Section 3
Item 8 inserts a definition of
‘ordinary member’ into section 3 of the Act. The Chief Executive of
the Commission is to be a non-voting ex-officio member of the Commission and
there are to be five ordinary members (which may include a New Zealand member),
nominated by the Australian Transport Council and appointed by the Governor
General. This amendment causes consequential amendments in items: 14, 16, 20,
21, 23, 24, 33, 34, 35, 37, 41, 42, 46, 48, 49, 50, 54, 57 and
65.
Item 9 - Section 3
Item 9 inserts a definition of
‘Original Heavy Vehicles Agreement’ into section 3 of the Act which
refers to the Heavy Vehicles Agreement of 30 July 1991.
Item 10 - Section 3
Item 10 inserts a definition of
‘Original Light Vehicles Agreement’ into section 3 of the Act which
refers to the Light Vehicles Agreement of 11 May 1992.
Item 11 - Section 3
Item 11 inserts a definition of
‘TTMRA road vehicle standard’ into section 3 of the Act. Under the
Trans-Tasman Mutual Recognition Arrangement, the Commonwealth, New Zealand, the
Australian States, the Northern Territory and the Australian Capital Territory
have agreed that Australia and New Zealand are to pursue a cooperation program
to develop internationally harmonised standards to apply to road vehicles to be
traded across the Tasman.
Item 12 -
Subsection 5(1)
Item 12 replaces the
existing subsection 5(1), which provides for the Commission to consist of three
memers, with a new subsection providing for the Chief Executive's ex-officio
membership and for five part time 'ordinary
members'.
Item 13 - Subsection 5(2)
Item 13 amends the existing subsection
5(2), to allow the NRTC to operate with up to two vacancies, rather than one
following the increase of the number of ordinary members from three to five.
This allows the Australian Transport Council the flexibility to appoint as few
as three Commissioners, should they
wish.
Item 14 - Subsection 6(1)
See Item
8.
Item 15 - Subsection 6(1)
See Item
1.
Item 16 - Subsection 6(2)
See item
8.
Item 17 - Subsection 6(2)
See Item
1.
Item 18 - Subsection 6(3)
Item 18 repeals the existing
subsection 6(3), and will allow the Australian Transport Council to reappoint
members for third and subsequent terms if it considers this would retain
valuable skills and experience on the Commission, despite the provision in the
original Heavy Vehicles Agreement which limited members to two terms. The First
Heavy Vehicles Amending Agreement will now allow further appointments, making
such a provision in the Act redundant.
Item 18
then inserts a new subsection 6(3) that makes provision for the appointment of a
New Zealand member. This is a two stage process. If, in the future, the New
Zealand Government seeks to have a representative on the Commission, the
Australian Transport Council (ATC) is to consider such a request. The ATC may
consider any undertakings by New Zealand that it will make a financial
contribution to the Commission.
If the ATC
makes a declaration that New Zealand is entitled to have a representative, then
the second stage of new subsection 6(3) provides that the ATC must then accept a
nomination from New Zealand, provided that there is a vacancy on the Commission
and New Zealand does not already have a member on the
Commission.
Item 19 - Subsection 7(1)
See item
1.
Item 20 - Subsection 7(1)
Item 20 amends the existing subsection
7(1), concerning the appointment of a Chairperson and Deputy Chairperson, to
ensure that it applies only to ordinary members (that is, it does not apply to
the Chief Executive). The appointment of the Chief Executive is separately
provided for in section 26.
Item 21 -
Subsection 7(2)
See Item
20.
Item 22 - Subsection 7(2)
See Item
1.
Item 23 - Subsection 7(3)
Items 23 and 24 amend the existing
subsection 7(3), concerning the cessation of the appointment of a Chairperson
and Deputy Chairperson, to ensure that it applies only to ordinary members (that
is, it does not apply to the Chief Executive).
Item 24 - Subsection 7(3)
See Item
23.
Item 25 - Subsection 8(1)(e)
See Item
1.
Item 26 - Paragraph8(1)(f)
See Item
1.
Item 27 - Subsection 8(2)
See Item
1.
Item 28 - Subsection 8(6)
Item 28 repeals subsection 8(6) of the
NRTC Act. Section 8(6) was inserted by the NRTC Amendment Act 1997 as a
consequence of the twelve month extension of the NRTC Act. Thus it is made
redundant by the comprehensive extension provided by the current
Bill.
Item 29 - Subsection 9(1)
See Item
1.
Item 30 - Subsection 9(2)
See Item
1.
Item 31 - Subsection 9(3)
See Item
1.
Item 32 - After section 10
Item 32 inserts new sections 10A and
10B.
New section 10A provides for the
Commission's objectives to be linked to the principles and objectives agreed by
Heads of Government in the Heavy and Light Vehicles Amending Agreements.
New section 10B provides that the Commission
must develop motor vehicle noise and emission standards in conjunction with the
National Environment Protection Council (NEPC).
This provision formalises the current
processes in place for the Commission's consultation with NEPC in the
development of motor vehicle noise and emission standards.
Item 33 - Section 12
See Item 8.
Item 34 - Section 13
See Item 8.
Item 35 – Subsection 14(1)
See Item 8.
Item 36 - Subsection 14(1)
See Item
1.
Item 37 – Subsection 14(2)
See Item 8.
Item 38 - Subsection 14(2)
See Item
1.
Item 39 - Subsection 14(3)
See Item
1.
Item 40 - Paragraph 14(3)(a)
See Item
1.
Item 41 – Subsection 14(4)
See Item
8.
Item 42 - Section 15
See Item 8.
Item 43 - Subsection 15(1)
See Item
1.
Item 44 - Paragraph 15(2)(a)
See Item
1.
Item 45 - Subsection 15(3)
See Item
1.
Item 46 - Subsection 15(3)
See Item 8.
Item 47 - Section 16
See Item
1.
Item 48 - Section 17
See Item 8.
Item 49 - Subsection 18(1)
See Item 8.
Item 50 - Subsection 18(2)
Item 50 amends the existing subsection
18(2), concerning the termination of the appointment of members if they fail to
attend three consecutive Commission meetings without having leave granted, to
ensure that it applies only to ordinary members (that is, it does not apply to
the Chief Executive), and not to the New Zealand member. This is because the
New Zealand member may only participate in voting on matters related to TTMRA
road vehicle standards, which may not be considered at every meeting of the
Commission.
Item 51 - After Subsection
18(2)
Item 51 inserts a new subsection
18(2A) after subsection 18(2), concerning the termination of the appointment of
the New Zealand member. This provides that the New Zealand member’s
appointment may be terminated by the Governor-General if they fail to attend
three consecutive meetings at which there is voting on a matter relating to
TTMRA road vehicle standards; or if they contravene section 25 (Disclosure of
interests) without reasonable
excuse.
Item 52 - Subsection 18(3)
See Item
1.
Item 53 - At the end of section 18
Item 53 adds new subsections 18(4),
18(5) and 18(6) to the end of the existing section 18, to make provision for New
Zealand to have the appointment of its member terminated at its
request.
It also adds new subsection 18(7),
which inserts a definition of a ‘TTMRA road vehicle standard
meeting’ to mean a meeting of the Council at which a TTMRA road vehicle
standard matter is to be decided.
Item 54
- Section 19
See Item 8.
Item 55 - Subsection 19
See Item
1.
Item 56 - Subsection 20(2)
See Item
1.
Item 57 - Subsection 20(2)
See Item 8.
Item 58 - Subsection 20(3)
See Item
1.
Item 59 - Paragraph 21(2)(b)
Item 59 amends the existing paragraph
21(2)(b), concerning the calling of special meetings, to provide that at least 2
ordinary members, other than the Chairperson, must request the Chairperson to
call a special meeting.
Item 60 - At
the end of section 21
Item 60 inserts
subsection 21(3) at the end of section 21, to provide that the New Zealand
member may only be one of the 2 ordinary members requesting a special meeting if
the meeting is to consider a TTMRA road vehicle standard matter.
Item 61 - After section 22
Item 61 inserts a new section 22A, to
provide that the Commission may make resolutions outside of a meeting. This new
section makes clear that the Commission may conduct its business by such methods
as it determines, for example by
correspondence.
Item 62 - Section 23
Item 62 amends the existing section
23, concerning quorums at Commission meetings, to provide that a quorum consists
of 3 ordinary members.
Item 63 - At the
end of section 23
Item 63 adds
subsection 23(2), to provide that a New Zealand member may not be counted as
part of a quorum unless that part of a meeting is to consider a TTMRA road
vehicle standard matter.
Item 64 - After
section 23
Item 64 inserts subsection
23A, to provide for the presence of a New Zealand nominee at voting on matters
relating to TTMRA road vehicle standards. It provides that a vote on a matter
concerning a TTMRA road vehicle standard may not take place unless the New
Zealand nominee (either the New Zealand member or another ordinary member that
New Zealand has nominated to represent its interests) is present, or if they are
not present a minimum of 14 days notice of the meeting has been given to each
ordinary member (which includes the New Zealand member).
Item 65 - Section 24
See Item 8.
Item 66 - At the end of section 24
Item 66 adds new subsection 24(2)
which provides that a New Zealand member is not entitled to vote except on
matters relating to existing or proposed TTMRA road vehicle standards.
Item 67 - Subsection
25(2)
See Item
1.
Item 68 - Subsection
26(1)
This item amends subsection 26(1)
to require that the Australian Transport Council appoint the Chief Executive of
the Commission on the recommendation of the Commission, where formerly they were
appointed by the Commission.
This provision
retains the accountability of the Chief Executive to the Commission (in that the
Chief Executive is appointed - or can be terminated - on the recommendation of
the Commission). However, it also strengthens the accountability of the Chief
Executive to the Australian Transport Council, as it will now have the ultimate
power to appoint or terminate.
Item 69 -
Subsection 27(3)
See Item
1.
Item 70 - Subsection
28(2)
See Item
1.
Item 71 - Section
36
This item amends section 36 to
provide that the Commission may accept moneys from New Zealand. Although there
are currently no arrangements in place for New Zealand to contribute to the
Commission's funding, subsection 6(5) provides that the Australian Transport
Council may consider any undertakings to pay money provided by New Zealand,when
deciding whether to declare that New Zealand is entitled to request a nomination
of a Commissioner. This amendment allows the Commission to accept any such
funding.
Item 72 - Subsection
39(1)
See Item
1.
Item 73 - Subsection
39(2)
See Item
1.
Item 74 - Subsection
39(3)
See Item
1.
Item 75 - Subsection
39(4)
See Item
1.
Item 76 - Subsection
40(3)
See Item
1.
Item 77 - Subsection
40(5)
See Item
1.
Item 78 - After Part
6
Item 78 inserts new Part 6A –
Strategic Plans.
New Section 41A provides that
the Commission will be required to prepare an annual strategic plan, to be
approved by the Australian Transport Council and published.
New subsection 41A(1) states that the Commission
is to prepare a draft strategic plan each financial year. New Subsection 41A(2)
provides that in developing its strategic plan, the Commission must consult the
National Environment Protection Council (NEPC). This provision will ensure that
environmental considerations are taken into account at the strategic planning
stage of the Commission's work. The Commission is also able to consult other
stakeholders.
New subsection 41A(3) provides
that the Australian Transport Council must approve or disapprove the strategic
plan. If the Australian Transport Council is not satisfied with the draft
strategic plan, under subsection 41A(4) the Council must direct the Commission
to make whatever alterations it requires, and specify a time in which these
alterations are to be addressed. New subsection 41A(5) requires the Commission
to comply with this direction. New subsection 41A(9) provides that this
direction will be by resolution in accordance with the Heavy Vehicles
Agreement.
New subsection 41A(6) provides that
if the Commission provides an altered plan in accordance with the Australian
Transport Council's direction, the Council will approve the
plan.
New subsection 41A(7) provides that when
a draft plan is approved by the Australian Transport Council, it becomes a final
strategic plan, which is to be published by the Commission under new subsection
41A(8) in a manner determined by the
Commission.
Item 79 - Before Part
7
Item 79 inserts new Part 6B –
Exemptions from uniform road transport legislation for defence-related purposes.
The new part includes new subsections 41B, 41C, 41D, 41E, 41F and 41G, which
provide for arrangements for exemptions in certain circumstances for Defence
forces from specified road transport law.
Subsection 41B(1) provides that the
Minister administering the Act may exempt the Australian Defence Force (ADF) and
its members from the operation of all or parts of the ‘uniform road
transport legislation’ for ‘defence-related purposes’.
‘Uniform road transport legislation’ is defined in section 41G (see
below). Subsection 41B(6) defines ‘defence-related purposes’
as those which relate to the defence and security of Australia and the
incidental aspects of that defence and security, the management of emergencies
and disasters, peacekeeping and protection of the States or Territories from
‘domestic violence’. The ADF only participates in emergencies,
disasters and domestic violence issues at the formal request of a jurisdiction.
The level of ADF involvement will depend upon the type of support requested.
All other ‘defence-related purposes’ are as a result of government
direction or policy. Domestic violence situations may take the form of a
terrorist act, hostage crisis or general civil unrest for which the jurisdiction
may request support from the ADF. Subsection 41B(6) is restricted by the
operation of subsection 41B(3), that is, the incidental aspects of the defence
and security of Australia are limited to those aspects relating to the special
and other circumstances set out in subsection 41B(3) (see
below).
Subsection 41B(2) provides that
the exemptions declared by the Minister under subsection 41B(1) may be
unconditional or subject to conditions as set out in the
declaration.
Subsection 41B(3) is the
key subsection of section 41B and provides that the Minister must, prior to
making a declaration under subsection 41B(1), be satisfied of the circumstances
set out in paragraphs 41B(3)(a), (b) and (c). Paragraph 41B(3)(a) provides that
the Minister must not make a declaration, unless he or she is satisfied that,
because of special circumstances, a declaration to exempt is in the interests of
the security, defence or international relations of Australia. Paragraph
41B(3)(b) provides that the Minister may make such a declaration if a State or
Territory applies for protection against domestic violence and that the making
of the declaration is likely to assist in providing that protection. Paragraph
41B(3)(c) provides that, where there is an emergency or disaster, the Minister
may make a declaration where it is likely to assist the ADF in its involvement
in that emergency or disaster. Paragraph 41B(3)(c) is based on the fact that
the ADF can only respond to a request by States and Territories to assist in
emergencies or disasters and, in so responding, would generally be under the
direction and management of State or Territory based emergency services, police
operations, etc. As detailed above, ADF assistance is provided at the request
of a jurisdiction. The ADF may not manage the emergency or disaster relief but
may provide advice, manpower and technical equipment, the movement of which may
not necessarily accord with the day-to-day exemptions. This subsection allows
the ADF to react to State and Territory requests in a timely manner. Disasters
may take the form of flood relief, drought relief, emergency rescues,
etc.
Subsection 41B(4) provides that a
declaration has effect as set out in the
declaration.
Subsection 41B(5) provides
that the Chief of the Australian Defence Force (CDF) must notify a State or
Territory of an instance where an exemption under subsection 41B(1) has been
used, provided that such notification would not prejudice the defence, security
or international relations of Australia. The primary intention of this clause
is to ensure that public safety or other public interests are not unduly
prejudiced by, for example, ADF damage to a road or bridge during movements
exempt from uniform road transport
legislation.
Subsection 41C(1) provides
that the Minister may declare that the armed forces of a foreign country, or its
members, are exempt from the operation of all or parts of the uniform road
transport legislation when the operations of that armed force are in accordance
with an arrangement approved by the Department of
Defence.
Subsection 41C(2) provides that
the exemptions under subsection 41B(1) may be unconditional or subject to
conditions as decided by the Minister in the
declaration.
Subsection 41C(3) provides
that the Minister must not make a declaration under subsection 41C(1) unless
special circumstances apply, in a similar manner to the special circumstances
described in paragraph 41B(3)(a). This limits the operation of armed forces of
foreign countries to operating within the scope of arrangements referred to in
subsection 41C(1) which necessarily means that armed forces of foreign countries
cannot have greater powers than the ADF whilst in Australia. That is, for
reasons of sovereignty, the ADF would not be in a position to agree to
arrangements where a visiting foreign force has greater powers than the
ADF.
Subsection 41C(4) provides that a
declaration has effect as set out in the
declaration.
While sections 41B and 41C relate
to the special circumstances in which the ADF is to be exempted from
Commonwealth, State and Territory uniform road transport legislation, section
41D sets out where, by agreement with the States and Territories, the ADF is
to have continuing, but variable, exemptions from that
legislation.
Subsection 41D(1) provides
that the Minister may declare, in writing, that the ADF and its members are
exempt from the uniform road transport legislation for activities done by the
ADF in relation to the defence or security of Australia. Subsection
41D(3) provides that the Minister must not make such a declaration unless he
or she is satisfied that it is in the interests of the defence or security of
Australia that such a declaration is to be
made.
Subsection 41D(2) provides that
the exemptions under subsection 41B(1) may be unconditional or subject to
conditions as decided by the Minister in the
declaration.
Subsection 41D(4) provides
that a declaration has effect as set out in the
declaration.
Subsection 41D(5) provides
that a declaration has no effect unless it has been consented to by the
Australian Transport Council in accordance with the Heavy Vehicles Agreement.
This establishes a formal mechanism through which the Commonwealth, States and
Territories agree the day-to-day exemptions for the ADF. The intention of this
provision is to replace the current, inconsistent, informal methods by which the
ADF is required to obtain exemption from each State and Territory jurisdiction
in its usual operations. Most importantly, it will allow the ADF to operate non
standard vehicles which are related to the defence and security of Australia on
a daily basis. Further, subsection 41D(6) provides that the declaration
under subsection 41D(1) is a disallowable instrument for the purposes of section
46A of the Acts Interpretation Act 1901. This further distinguishes
section 41D declarations from section 41B and 41C declarations in that day to
day operations of the ADF are to be open to Parliamentary and public scrutiny
while enabling the protection of national security movements as
necessary.
Subsection 41E(1) provides
that the Minister administering the NRTC Act, as amended, may delegate , in
writing, his or her powers under sections 41B and 41C to the CDF. Subsection
41E(2) provides that the CDF as delegate is subject to the directions of the
Minister.
Application of the Defence Act
1903
It is important to note that the
effect of this section is to transfer the exemption from an automatic,
legislative exemption in the Defence Act 1903 (Defence Act) to one which
is subject to being made by the relevant body, in accordance with sections 41B,
41C and 41D. The intention of section 41F is only to restrict the scope
of section 123 of the Defence Act as it applies to certain permissions under
regulations developed by the NRTC relating to some dimension and load
limits.
Subsection 41F(1) provides that
sections 41B, 41C and 41D have effect in addition to, and not instead of,
anything in the Defence Act. An exception to this provision is specified in
subsection 41F(2), which provides that subsection 123(1) of the Defence
Act does not apply to permissions, whether in the form of a licence or
otherwise, under certain Road Transport Reform Regulations or equivalent
permissions under State or Territory legislation. The relevant permissions are
set out under regulation 7 (exemption by Gazette notice) and subregulation 9(1)
of the Road Transport Reform (Oversize and Overmass Vehicles) Regulations as
being those which exempt a vehicle or combination from a requirement of the Road
Transport Reform (Heavy Vehicle Standards) Regulations or the Road Transport
Reform (Mass and Loading) Regulations specified in subregulation 9(3) or 9(4).
Essentially, subregulations 9(3) and 9(4) refer to certain mass and dimension
limits, including Gross Vehicles Mass and Gross Combination Mass limits. In
effect, section 41F means that the ADF must obtain permission from the States in
these areas, either through the arrangements in section 41D, which are approved
by the Australian Transport Council, or, on a case by case basis from each State
or Territory jurisdiction.
Section 41G
provides that ‘uniform road transport legislation’, in Part 6B
includes Commonwealth Road Transport Legislation and so much of that legislation
as is applied or adopted by a State. This includes the parts of State or
Territory laws that apply the substance of the Commonwealth law under new part
8A of the Heavy and Light Vehicles
Agreements.
Item 80 - Subsection
42(2)
See Item
1.
Item 81 - Subsection
43(1)
See Item
1.
Item 82 - Subsection
43(1)
See Item
1.
Item 83 - Subsection
43(2)
See Item
1.
Item 84 - Subsection
43(3)
See Item
1.
Item 85 - Subsection
43(4)
See Item
1.
Item 86 - Paragraph
44(1)(a)
See Item
1.
Item 87 - Paragraph
44(1)(b)
See Item
1.
Item 88 - Subsection
44(1)
Section 44 deals with the
Ministerial Council's ability to issue certificates that may be used to evidence
that it has done something or made a particular decision. The amendments to
this section allow the Australian Transport Council to issue certificates for
actions or decisions it has been responsible for, but also to issue certificates
to evidence actions or decisions taken or made by the Ministerial Council for
Road Transport prior to the commencement of these
amendments.
Item 89 - Paragraph
44(2)(a)
See Item
1.
Item 90 - Paragraph
44(2)(b)
See Item
1.
Item 91 - Subsection
44(3)
See Item
1.
Item 92 - At the end of section
44
Item 92 adds to the end of section
44 a reference to actions or deeds of the Australian Transport Council, a
definition of 'opinion' to apply in this section, and defines 'Ministerial
Council' as the Ministerial Council for Road Transport for the purposes of the
section.
Item 93 - Subsection
46(1)
This item extends the life of the
Act, from seven years from 15 January 1992, to twelve years. Thus the Act will
have a new sunset of 14 January 2004. The Commission will have a clearly
limited life, unless a review conducted under section 47 determines that the Act
should be renewed.
Item 94 - Subsection
46(2)
See Item
1.
Item 95 - Subsection
47(1)
This item provides that a review
will be undertaken not less than twelve months prior to the sunset of the Act.
This review will establish whether the national road transport reform process,
coordinated by the Commission, has been successful, and whether the Act should
be renewed (with or without amendment) or allowed to sunset. The review leading
to the current amendments was provided to Heads of Government about 9 months
prior to the sunset date, and this has proved inadequate for the development and
passage of necessary amendments. Twelve months will allow a more effective
process to be followed.
Subsection 47(1) was
amended by the National Road Transport Commission Amendment Act 1997 to
18 months, to ensure that a further review was not required during 1997/98
following the extension of the sunset of the Act by a
year.
Item 96 - Subsection
47(1)
As the Australian Transport
Council is to be responsible for undertaking future reviews, subsection 47(1) is
amended to replace the original provision for the Commission to undertake the
review.
Item 97 - Paragraph
47(1)(a)
The amendment to paragraph
47(1)(a) is consequential to the amendment to subsection 47(1) under item 96
above.
Item 98 - After Schedule
1
This item adds Schedule 1A which
contains the text of the First Amending Heavy Vehicles Agreement. This is an
intergovernment agreement amending the original Heavy Vehicles Agreement to
support the amendments to the Act and other Review
recommendations.
Item 99 - At the end of
the Act
This item adds Schedule 2A
which contains the text of the First Amending Light Vehicles Agreement. This is
an intergovernment agreement amending the original Light Vehicles Agreement to
support the amendments to the Act and other Review
recommendations.
Item 100 - Transitional
- members holding office under the National Road Transport Commission Act
1991
This item ensures that, in the
event that there are members of the Commission appointed whose term commences
before the sunset of the current Act and does not end until after the this
amendment Act commences (item 100(1)), they will unambiguously be subject to the
provisions applying to ordinary members for the period of their term following
the commencement of this amending Act.
Items
100(2) and 100(3) provide that such a member's term expires immediately before
the commencement of this item, and the Act then has effect as if the person was
immediately appointed under the amended Act for the remainder of his or her
original term of appointment.
Item 101 -
Transitional - person holding office as Chairperson under the National Road
Transport Commission Act 1991
This
item has the same effect as item 100, but applies to the Chairperson of the
Commission rather than to members.
Item
102 - Transitional - members holding office as Deputy Chairperson under the
National Road Transport Commission Act
1991
This item has the same effect
as items 100 and 101, but applies to the Deputy Chairperson of the Commission
rather than to members or the
Chairperson.
Item 103 - Transitional -
Appointment of Chief Executive
Officer
This provision provides that
the requirement that the Chief Executive of the Commission be appointed by the
Australian Transport Council (under subsection 26(1)) will only apply to
appointments that occur after the commencement of these amendments. Thus there
can be no question as to validity of the appointment of a Chief Executive if he
or she is appointed prior to commencement of these amendments by the Commission
with a term that extends beyond 14 January
1998.
Item 104 - Transitional -
evidentiary certificates under section 44 of the National Road Transport
Commission Act 1991
This
transitional provision ensures that evidentiary certificates issued under
section 44 of the Act continue to have the full effect they were intended to
have when they were issued, despite the proposed amendments made to section 44
by this Bill.
Item 105 - Transitional -
acts of Ministerial Council to be attributed to Australian Transport
Council
This item ensures that there
will be a 'seamless' transition between the Ministerial Council for Road
Transport and the Australian Transport Council, by providing that anything done
by or in relation to the former under the Act will be treated under the Act as
if it had been done by the
latter.
SCHEDULE 1A - FIRST HEAVY
VEHICLES AMENDING AGREEMENT
The First
Heavy Vehicles Amending Agreement is an agreement made between the Commonwealth
of Australia, the states of New South Wales, Victoria, Queensland, South
Australia, Western Australia and Tasmania, the Northern Territory and the
Australian Capital Territory. Despite its membership of the Australian
Transport Council, and the provision made to allow for its representation with
regard to matters relating to Trans-Tasman road vehicle standards, New Zealand
is not a party to the
Agreement.
Recitals
The
Recitals identify the Heavy Vehicles Agreement as the ‘Principal
Agreement’, which all the parties wish to
amend.
Item
1
Item 1 provides that the First Heavy
Vehicles Amending Agreement will come into force immediately on signature by all
Heads of Government. Once the Agreements commence, the Act can also be
commenced by proclamation.
Item
2
Item 2 contains the amendments to be
made to the Principal Agreement.
Item
2(a)
Item 2(a) deletes Recital C in the
Principal Agreement and replaces it with a new recital
C.
New Recital C expresses Heads' of Government
recommitment to the road transport reform process, with consultative involvement
of all stakeholders.
The original Recital C
provided that the parties agreed that the principles underlying their agreement
were that there should be improvements to road safety and transport efficiency
and reductions in the cost of administration.
The parties have acknowledged that these are
narrowly focussed principles, and a broader ranging list of principles would
better reflect what the parties wish to achieve from the reform process under
the Agreement. It is recognised that some of the new principles may be to some
extent conflicting. There is no explicit or implicit prioritisation of the
principles. However, the parties wish that all these principles be taken into
account in the process, even if decisions have to be made by the Commission or
the Australian Transport Council to prioritise them in particular circumstances.
Item
2(b)
Recital G(f) is amended to remove
the reference to re-enactment of the Commonwealth Road Transport Legislation.
As the Act’s sunset will no longer apply to the Commonwealth Road
Transport Legislation, it is no longer necessary to re-enact it following future
reviews. However, Commonwealth Road Transport Legislation will still be subject
to these future reviews, which might decide to amend or repeal
them.
Item
2(c)
Item 2(c) adds three new recitals
to the Heavy Vehicles Agreement.
New Recital H
outlines the relevant part of the Trans Tasman Mutual Recognition Arrangement,
which provides a cooperative scheme is to be developed whereby road vehicles
certified as meeting trans-Tasman road vehicle standards will be able to be
freely traded between Australian and New Zealand. This provides the context for
provisions that provide for the Commission and the Australian Transport Council
to consider these standards, and to allow for New Zealand involvement in this
consideration.
New Recital I indicates that the
parties intend to progressively apply the substance of the Commonwealth Road
Transport Legislation as it is enacted. Clause 8(1) of the Heavy Vehicles
Agreement contemplated that when a complete body of integrated Commonwealth Road
Transport Legislation is available, this would be automatically applied by all
States and Territories. As this legislation is now being developed in a
‘modular’ fashion, the parties have agreed to progressively
implement, through their own legislative processes, the substance of the modules
of Commonwealth law as they are enacted, prior to the implementation of the
integrated body of Commonwealth legislation. The flexibility afforded to the
jurisdictions in meshing the substance of the reforms with the bulk of their own
law is intended to ensure that the reforms are delivered to industry as soon as
possible. New clause 8A specifies more detail of how this is to be
achieved.
New Recital J reflects agreement that
has been reached between the Commonwealth and the other parties that it is
appropriate in some circumstances that the Australian Defence Force (ADF) is
able to operate at variance with the Road Transport Legislation. The details of
how the ADF may operate at variance to the relevant Commonwealth, State and
Territory law are spelt out by the new sections 41B to 41G in the body of the
Act.
Item
2(d)
This item inserts a number of new
definitions into the
Agreement.
‘Australian Transport
Council’ is defined, because that Ministerial Council will assume the
functions and roles of the Ministerial Council for Road Transport, which was
established by the Heavy Vehicles Agreement. Transport Ministers decided to
rationalise their Council structure in this way because the Councils had common
membership and their business was conducted at the same meetings. As the
Australian Transport Council consists of two Ministers from some jurisdictions
(such as NSW), and one from the remainder, for the purposes of this Agreement
each jurisdiction will have only one vote. Which Minister will exercise that
vote will be a matter for the particular jurisdiction. New Zealand is a member
of the Australian Transport Council.
‘COAG’ is defined as the Council
of Australian Governments. Under the Trans Tasman Mutual Recognition
Arrangement (TTMRA), COAG has the final discretion in deciding trans-Tasman road
vehicle standards.
‘The First Heavy
Vehicles Amending Agreement’ is defined as this
Agreement.
‘New Zealand Minister’
is defined under this Agreement as the Minister responsible for TTMRA road
vehicle standards.
‘Ordinary
member’ is defined to be a member of the Commission other than the Chief
Executive Officer. This is consistent with the definition of ordinary member in
the Bill.
‘TTMRA road vehicle
standards’ are defined as trans-Tasman road vehicle standards developed
under the TTMRA.
Item
2(e)
This item amends clause 2 to
ensure that the Commonwealth Act referred to by the Agreement is the National
Road Transport Commission Act 1991, as amended from time to time consistent
with the Heavy Vehicles Agreement and any Agreements that subsequently amend the
Heavy Vehicles Agreement. This will encompass the Light Vehicles Agreement,
both the Amending Agreements scheduled here, and any subsequent
Agreements.
Item
2(f)
This item amends the definition of
‘Voting Member’ to set out when the New Zealand member will
participate in voting. New Zealand will not participate in most matters which
will relate to road transport reform within Australia, but will participate in
voting on matters related to TTMRA road vehicle standards and in voting to
decide whether New Zealand should be able to nominate a member on the
Commission.
Item
2(g)
This item adds a new clause 3A to
the original Agreement that has the effect of giving all roles and
responsibilities under the Agreement to the Australian Transport
Council.
Item
2(h)
This item amends clause 7(4) to
extend the provision for the Commonwealth Act to have only a six year term to
allow for twelve years, in line with the extension of the sunset to 14 January
2004 agreed by Heads of Government. The Commonwealth Road Transport Legislation
is also removed from the application of the sunset, as the parties have
recognised that it is essential that the road transport industry has certainty
that the legislation regulating it will
continue.
Item
2(i)
Item 2(i) amends clause 8(1) of
the original Heavy Vehicles Agreement to make it subject to the amendments set
out in in the following item, 2(j).
Item
2(j)
This item inserts new clauses 8A,
8B and 8C. These will follow the existing clause 8 of the Heavy Vehicles
Agreement.
While subclause 8(1) provides that
the States and the Northern Territory will automatically adopt the Commonwealth
Road Transport Legislation enacted in the ACT, the parties have decided that for
the time being the States and the Northern Territory will progressively apply
the substance of this legislation. Clause 8A provides that they will do this so
as to provide a uniform or consistent national operating environment for road
transport. This is a fundamental aim of the Agreement.
The Commonwealth will continue to enact, on
behalf of the Australian Capital Territory, the Commonwealth Road Transport
Legislation developed by the National Road Transport Commission in conjunction
with the parties, and approved by the Australian Transport Council. The other
parties, by progressively applying the substance of this legislation, will
provide a uniform or consistent national operating environment, but will be able
to do so through their own legislative frameworks, which will enable them to get
the reforms in place considerably more quickly than they have been able to do to
date.
Clause 8(A) is expressed to operate
until a decision is made under clause 8(B). Clause 8(B) provides that within
three years of the Amending Agreement being executed, (or such later time as it
decides), the Australian Transport Council will review the preferred means of
implementing a uniform or consistent nationally integrated road transport law,
and make recommendations to Heads of Government. Currently this is the
mechanism outlined in subclause 8(1), which requires automatic adoption. Clause
8(B) provides that Heads of Government will decide the preferred mechanism by
unanimous vote.
New Clause 8C supports the
Australian Defence Force exemption provisions in the
Bill.
Item
2(k)
This item amends clause 10 to
enable the Australian Transport Council to take over the functions and powers
previously exercised by the Ministerial Council for Road
Transport.
Item
2(l)
This item amends subclause 11(1)
to include the New Zealand Minister in the Australian Transport Council's role
under this Agreement, in relation to TTMRA road vehicle standards. This
reflects that the New Zealand Government will not ordinarily be involved in
matters concerning road transport reform within
Australia.
Item
2(m)
This item adds in paragraph 12(a)
TTMRA road vehicle standards to the matters on which the Australian Transport
Council may consider policy questions. This reflects the addition of this
significant new element into the
Agreement.
Item
2(n)
This item extends the functions of
the Ministerial Council by inserting new paragraphs 12 (aa), (ia), (ja) and
(la).
New paragraph
12(aa) provides that the Council may recommend to COAG that it agree a TTMRA
road vehicle standard. Under the TTMRA, COAG is to have the final decision on
trans-Tasman standards agreed by Ministerial
Councils.
New paragraph 12(ia) provides that
the Council may receive and decide requests from New Zealand that it nominate a
New Zealand member on the Commission. This enables the Council to decide
whether New Zealand will be able to nominate a member on the Commission to
represent its interests in developing and recommending TTMRA road vehicle
standards. However, when New Zealand does have a member on the Commission, it
participates in the cooperative programme to develop these standards, and
participates in ATC's and COAG's consideration of the standards, with an equal
vote to each of the Australian
jurisdictions.
New paragraph 12(ja) provides
that the Council has the function of appointing or terminating the appointment
of the Chief Executive of the Commission. It does this on the recommendation of
the Commission.
New paragraph 12(la) provides
that the Council can give the Commission directions on its strategic plan.
All the above new functions support the
Council's ability to fulfil new roles that are provided for it elsewhere in the
Agreement and in the amending Bill.
Item
2(o)
This item adds a new subclause
13(4) to the Agreement to provide for Australian Transport Council meetings to
consider a matter concerning TTMRA road vehicle standards, all members of the
Council (including the New Zealand member) must have been given 28 days notice
(or such shorter period as they unanimously accept). A vote on a recommendation
to COAG on a TTMRA road vehicle standard cannot be taken by the Australian
Transport Council unless such notice has been given. This notice would be given
by the Commission. This provision ensures that all parties, including New
Zealand, have acceptable notice of proposed consideration of TTMRA road vehicle
standards matters.
Item
2(p)
This item adds a new paragraph to
clause 16 to specify the voting requirements for TTMRA road vehicle standards.
Subclause 6(5) of the TTMRA provides that a trans-Tasman standard, agreed by
Ministers, is to be implemented unless COAG disapproves it by a vote of one
third or more. To ensure that voting at Ministerial level is undertaken so that
the result will not change without a deliberate change in the vote of an
Australian jurisdiction or of New Zealand at COAG level, this provision provides
that a standard to be recommended to COAG will go forward unless it is similarly
disapproved by a vote of one third or
more.
Items 2(q), 2(r), 2(s), 2(t) and
2(u)
As Papua New Guinea already has
observer status on the Australian Transport Council, from the date of these
amendments it will also have observer status on the Ministerial Council under
this Agreement. These items amend the provisions in clause 18 that currently
provide for the observer status of the Australian Local Government Association
to extend them to provide for Papua New
Guinea.
Item
2(v)
The functions of the National Road
Transport Commission are outlined under clause 20 of the Heavy Vehicles
Agreement. They are closely aligned with the responsibilities of the
Ministerial Council under clause 12. Thus it is necessary to make similar
amendments under clause 20 to those made under clause 12 to ensure that the
Commission can provide the necessary support to
ATC.
The proposed amendment to subclause 20(1)
is to make explicit that the Commission has a responsibility to facilitate the
implementation of road transport reforms. The reforms can only be of benefit
when they are implemented, and to successfully fulfil its obligations the
Commission is required to do what it can to make implementation of these reforms
easy for the parties.
Item
2(w)
Item 2(w) amends subclause 20(1)
to provide for additional matters on which the Commission may make
recommendations to the Australian Transport Council.
New paragraph 20(1)(aa) covers amendments of
the Road Transport Legislation - this makes clear that once the Road Transport
Legislation is in place, maintaining its usefulness and relevance to an evolving
road transport environment will become more and more
important.
New paragraph 20(1)(ab) provides
that the Commission may make recommendations on road transport reforms that are
not covered by the Road Transport Legislation. This allows reforms that could
be implemented without legislation to be recommended by the
Commission.
Under new paragraph 20(1)(ac) the
Commission may make recommendations to the Australian Transport Council on
recommendations to COAG on TTMRA matters. This allows for the fact that ATC
does not make the final decision, but must agree a recommendation to COAG on a
TTMRA road vehicle standard.
New paragraph
20(1)(ad) provides for the Commission to recommend the appointment or
termination of the appointment of the Chief Executive of the Commission. This
supports the Council’s role of making this appointment or termination on
the recommendation of the
Commission.
Item
2(x)
Under the original Act and
Agreements, the Commission was responsible for undertaking a review into its own
legislation. This is being amended to give the Australian Transport Council the
responsibility to undertake the review and report to Heads of Government.
Paragraph 20(1)(f) gave the Commission the function of making recommendations in
the review. This item deletes this responsibility.
Item
2(y)
This item adds new clause 20A,
which provides that the Commission shall pursue rigorous analysis of issues
involved in road transport reform. This mandate will allow the Commission to be
proactive in its development of solid advice to the Australian Transport
Council.
Item
2(z)
This item inserts new clause 20B
in the original Agreement, providing for motor vehicle noise and emission
standards to be developed in conjunction with the National Environment
Protection Council (NEPC) in the development of, as provided for in new section
10B (at item 32 of the Bill).
Item 2(z) also
inserts new clause 20C, which requires the Commission to prepare strategic plans
as provided in new Part 6A of the
Act.
Item
2(za)
This item deletes paragraph
21(1)(b), and provides in its place for the Commission to comprise five
part-time ordinary members and the Chief Executive of the Commission. This is
consistent with the provision made in the Bill at item 12 of Schedule
1.
Item
2(zb)
This item makes a number of
consequential amendments to change references to ‘member’ or similar
phrases to ensure that they apply to ‘ordinary members’, and not to
the Chief Executive of the
Commission.
Item
2(zc)
This item amends paragraph 21(2)
to allow New Zealand to request membership on the Commission. As the Commission
will be responsible for recommending to the Australian Transport Council that it
recommend Trans-Tasman road vehicle standards to COAG, provision has been made
for New Zealand to request that it be represented on the Commission to consider
these matters. Under proposed subsection 6(4) of the Act, the Australian
Transport Council is to consider such a request, and may make a declaration that
New Zealand may nominate an ordinary
member.
This item provides, consistent with the
Bill, that if ATC makes such a declaration they will nominate a person put
forward by New Zealand, so long as there is an available vacancy and there is
not already a New Zealand member. Once the decision to allow New Zealand to
nominate a member is made, then New Zealand is able to freely determine which
person will represent it on the
Commission.
Item
2(zd)
This item amends subclause 21(5)
to ensure that Commission members may be reappointed. This recognises that
Ministers may wish to retain the services of individuals for more than two
terms, if those individuals, through their abilities, skills and experience, can
continue to add value to the work of the
Commission.
Item
2(ze)
This item amends the provisions
in clause 22 defining the quorum for meetings of the Commission. As the
Commission has been expanded to allow up to five members to be appointed, the
quorum has been correspondingly expanded to three. The amendment also provides
that the New Zealand member, if one has been appointed, should be included in
the quorum when the Commission considers TTMRA
matters.
Item
2(zf)
This item amends clause 27(1) to
limit the role of the Commission with respect to the internal administration of
States and Territories in applying national road transport legislation, no
matter how implemented. This is necessary because of the new paragraph 8A
inserted by item 2(j).
Item
2(zg)
This item inserts new clause 31A
which allows the Commission to accept funds from New Zealand. If New Zealand
wishes to nominate a member to the Commission, under the Act the Australian
Transport Council is to consider what undertakings it has made or funds it has
provided under this clause.
Item
2(zh)
This item amends the provisions
in subclause 38(1) of the Agreement providing for the review of the Act and Road
Transport Legislation.
Item 2(zh)(a) provides
that the review report should be prepared 12 months prior to the expiry of the
Act. This will ensure that, if legislative amendment is necessary, there is
sufficient time for the necessary consultation between the parties, drafting and
passage of legislation. Six months has proven manifestly inadequate in the case
of the first Review.
Item 2(zh)(b) removes the
reference to the expiry of the Commonwealth Road Transport Legislation, as
amendments cited above (Schedule 2 of the Bill and item 2h of this amending
Agreement) have removed the provisions tying the life of this legislation to the
sunset of the Act.
As the Australian Transport
Council is to be responsible for undertaking future reviews, item 2(zh)(c)
replaces the original provision for the Commission to undertake the
review.
Items 2(zh)(d), (e) and (f) are
consequential amendments to the removal of the application of the sunset to the
Commonwealth Road Transport
Legislation.
Item
3
Item 3 provides that the parties wish
to confirm the commitments they made under the Heavy Vehicles Agreement in all
other respects to those amended in this amending
Agreement.
SCHEDULE 2A - FIRST LIGHT
VEHICLES AMENDING AGREEMENT
The First
Light Vehicles Amending Agreement is an agreement made between the Commonwealth
of Australia, the states of New South Wales, Victoria, Queensland, South
Australia, Western Australia and Tasmania, the Northern Territory and the
Australian Capital Territory. Despite its membership of the Australian
Transport Council, and the provision made to allow for its representation with
regard to matters relating to Trans-Tasman road vehicle standards, New Zealand
is not a party to the
Agreement.
Recitals
The
Recitals identify the Light Vehicles Agreement as the ‘Principal
Agreement’, which all the parties wish to
amend.
Item
1
Item 1 provides that the First Heavy
Vehicles Amending Agreement will come into force immediately on signature by all
Heads of Government. Once the Agreements commence, the Act can also be
commenced by proclamation.
Item
2
Item 2 contains the amendments to be
made to the Principal Agreement.
Item
2(a)
Item 2(a) cross references the
amended principles to which Heads of Government are committing to at Recital C
of the Heavy Vehicles Amending Agreement. It also repeats the Heads' of
Government recommitment to the road transport reform process, with consultative
involvement of all stakeholders.
Item
2(b)
Item 2(b) adds three new recitals
to the Light Vehicles Agreement.
New Recital G
outlines the relevant part of the Trans Tasman Mutual Recognition Arrangement,
which provides for a cooperative scheme to be developed whereby road vehicles
certified as meeting trans-Tasman road vehicle standards will be able to be
freely traded between Australian and New Zealand. This provides the context for
provisions that provide for the Commission and the Australian Transport Council
to consider these standards, and to allow for New Zealand involvement in this
consideration.
New Recital H indicates that the
parties intend to progressively apply the substance of the Commonwealth Light
Vehicles Transport Legislation as it is enacted. Clause 8(1) of the Light
Vehicles Agreement contemplated that when a complete body of integrated
Commonwealth Light Vehicles Transport Legislation is available, this would be
automatically applied by all States and Territories. As this legislation is now
being developed in a ‘modular’ fashion, the parties have agreed to
progressively implement, through their own legislative processes, the substance
of the modules of Commonwealth law as they are enacted, prior to the
implementation of the integrated body of Commonwealth legislation. The
flexibility afforded to the jurisdictions in meshing the substance of the
reforms with the bulk of their own law is intended to ensure that the reforms
are delivered to industry as soon as possible. New clause 8A specifies in more
detail how this is to be achieved.
New Recital
I reflects agreement that has been reached between the Commonwealth and the
other parties that it is appropriate in some circumstances that the Australian
Defence Force is able to operate at variance with the Light Vehicles Transport
Legislation. The details of how Defence may operate at variance to the relevant
Commonwealth, State and Territory law are spelt out by the new sections 41B to
41G in the Act.
Item
2(c)
This item inserts a number of new
definitions into the Agreement.
The 'amended
Act' is defined as the National Road Transport Commission Act 1991 as
amended from time to time. The Act was first amended by the National Road
Transport Commission Amendment Act 1992 (NRTC Amendment Act 1992), which
incorporated the Light Vehicles Agreement into the Act as a
schedule.
‘Australian Transport
Council’ is defined, because that Ministerial Council will assume the
functions and roles of the Ministerial Council for Road Transport, which was
established by the Light Vehicles Agreement. Transport Ministers decided to
rationalise their Council structure in this way because the Councils had common
membership and their business was conducted at the same meetings. As the
Australian Transport Council consists of two Ministers from some jurisdictions
(such as NSW), and one from the remainder, for the purposes of this Agreement
each jurisdiction will have only one vote. Which Minister will exercise that
vote will be a matter for the particular jurisdiction. New Zealand is a member
of the Australian Transport Council.
‘COAG’ is defined as the Council
of Australian Governments. Under the Trans Tasman Mutual Recognition
Arrangement, COAG has the final discretion in deciding trans-Tasman road vehicle
standards.
‘The First Light Vehicles
Amending Agreement’ is defined as this
Agreement.
‘New Zealand Minister is
defined under this Agreement as the New Zealand Minister responsible for TTMRA
road vehicle standards.
‘TTMRA road
vehicle standards’ are defined as trans-Tasman road vehicle standards
developed under the Trans Tasman Mutual Recognition Arrangement (TTMRA), as they
relate to Light Vehicles. This reflects that the Light Vehicles Agreement
applies to Light Vehicles (that is, those with a gross mass of less that 4.5
tonnes).
Item
2(d)
This Item amends the definition of
‘Voting Member’ to define when the New Zealand Australian Transport
Council member will participate in voting. New Zealand will not participate in
most matters, which will relate to road transport reform within Australia, but
will participate in voting on matters related to TTMRA road vehicle
standards.
Item
2(e)
Subclause 7(4), which limited the
life of the NRTC Amendment Act 1992 and the Commonwealth Light Vehicle Transport
Legislation to the term of the Act, is deleted. The further six year life of
the Act is adequately dealt with in the amending Bill and the Heavy Vehicles
Agreement, and this deletion also effects the removal of the application of the
sunset clause to the Light Vehicles Transport
Legislation.
Item
2(f)
Item 2(f) amends subclause 8(1) of
the original Light Vehicles Agreement to make it subject to the amendments in
the following item, 2(g).
Item
2(g)
This item inserts new clauses 8A,
8B and 8C. These will follow the existing clause 8 of the Light Vehicles
Agreement.
While subclause 8(1) provides that
the States and the Northern Territory will automatically adopt the Commonwealth
Light Vehicles Transport Legislation enacted in the Australian Capital
Territory, the parties have decided that, for the time being, the States and the
Northern Territory will progressively apply the substance of this legislation.
Clause 8A provides that they will do this so as to provide a uniform or
consistent national operating environment for road transport. This is a
fundamental aim of the Agreement.
The
Commonwealth will continue to enact, on behalf of the Australian Capital
Territory, the Commonwealth Light Vehicles Transport Legislation developed by
the National Road Transport Commission in conjunction with the parties, and
approved by the Australian Transport Council. The other parties, by
progressively applying the substance of this legislation, will provide a uniform
or consistent national operating environment, but will be able to do so through
their own legislative frameworks, which will enable them to get the reforms in
place considerably more quickly than they have been able to do to date.
Clause 8(A) is expressed to operate until a
decision is made under clause 8(B). Clause 8(B) provides that within three
years of the First Heavy Vehicles Amending Agreement being executed, (or such
later time as it decides), the Australian Transport Council will review the
preferred means of implementing a uniform or consistent nationally integrated
road transport law, and make recommendations to Heads of Government. Currently
this is the mechanism outlined in subclause 8(1), which requires automatic
adoption. Clause 8(B) provides that Heads of Government will decide the
preferred mechanism by unanimous vote.
New
clause 8C supports the Defence exemption provisions in the
Bill.
Item
2(h)
This item adds a new Part IVA,
consisting of a new clause 8D. This clause has the effect of giving all roles
and responsibilities under the Agreement that were formerly exercised by the
Ministerial Council for Road Transport to the Australian Transport
Council.
This item also provides that where the
term 'Ministerial Council' appears in the Agreement, it will now mean the
Australian Transport Council.
Clause 8D finally
includes the New Zealand Minister in the Australian Transport Council's role
under this Agreement, in relation to TTMRA road vehicle standards. This
reflects that the New Zealand Government will not ordinarily be involved in
matters concerning road transport reform within
Australia.
Item
2(i)
This item adds TTMRA road vehicle
standards to the matters on which the Australian Transport Council may consider
policy questions under paragraph 9(a) of the original Agreement. This reflects
the addition of this significant new element into the
Agreement.
Item
2(j)
This item extends the functions of
the Ministerial Council by inserting new paragraph
9(aa).
New paragraph
9(aa) provides that the Council may recommend to COAG that it agree a TTMRA road
vehicle standard. Under the TTMRA, COAG is to have the final decision on
trans-Tasman standards agreed by the Australian Transport
Council.
Item
2(k)
This item adds a new subclause
10(4) to the Light Vehicles Agreement to provide for Australian Transport
Council meetings to consider a matter concerning TTMRA road vehicle standards,
all members of the Council (including the New Zealand member) must have been
given 28 days notice (or such shorter period as they unanimously accept). A
vote on a recommendation to COAG on a TTMRA road vehicle standard cannot be
taken by the Australian Transport Council unless such notice has been given.
This notice would be given by the Commission. This provision ensures that all
parties, including New Zealand, have acceptable notice of proposed consideration
of TTMRA road vehicle standards
matters.
Item
2(l)
This item replaces clause 13 of
the original Agreement with a new clause that incorporates the voting
requirements specified in the previous clause 13 and specifies the voting
requirements for TTMRA road vehicle standards. Clause 6(5) of the TTMRA
provides that a trans-Tasman standard, agreed by Ministers, is to be implemented
unless COAG disapproves it by a vote of one third or more. To ensure that
voting at Ministerial level is undertaken so that the result will not change
without a deliberate change in the vote of an Australian jurisdiction or of New
Zealand at COAG level, this provision provides that a standard to be recommended
to COAG will go forward unless it is similarly disapproved by a vote of one
third or more.
Items 2(m), 2(n), 2(o),
2(p) and 2(q)
As Papua New Guinea
already has observer status on the Australian Transport Council, from the date
of these amendments it will also have observer status on the Ministerial Council
under this Agreement. These items amend the provisions in clause 15 that
currently provide for the observer status of the Australian Local Government
Association to include Papua New
Guinea.
Item
2(r)
The functions of the National Road
Transport Commission are outlined under clause 17 of the Light Vehicles
Agreement. They are closely aligned with the responsibilities of the
Ministerial Council under clause 9. Thus it is necessary to make similar
amendments under clause 17 to those made under clause 9 to ensure that the
Commission can provide the necessary support to the Australian Transport
Council.
This item inserts in clause 17(1)
provision to make explicit that the Commission has a responsibility to
facilitate the implementation of road transport reforms. The reforms can only
be of benefit when they are implemented, and to successfully fulfil its
obligations the Commission is required to do what it can to make implementation
of these reforms easy for the
parties.
Item
2(s)
Item 2(s) amends subclause 17(1)
to provide for additional matters on which the Commission may make
recommendations to the Australian Transport Council.
New paragraph 17(1)(aa) covers amendments of
the Light Vehicles Transport Legislation - this makes clear that once the Light
Vehicles Transport Legislation is in place, maintaining its usefulness and
relevance to an evolving road transport environment will become more and more
important.
New paragraph 17(1)(ab) provides
that the Commission may make recommendations on road transport reforms that are
not covered by the Light Vehicles Transport Legislation. This allows reforms
that could be implemented without legislation to be recommended by the
Commission.
Under new paragraph 17(1)(ac) the
Commission may make recommendations to the Australian Transport Council on
recommendations to COAG on TTMRA matters. This allows for the fact that Council
does not make the final decision, but must agree a recommendation to COAG on a
TTMRA standard.
Item
2(t)
Under the original Act and
Agreements, the Commission was responsible for undertaking a review into its own
legislation. This is being amended to give the Australian Transport Council the
responsibility to undertake the review and report to Heads of Government.
Paragraph 17(1)(c) gave the Commission the function of making recommendations in
the review. This item deletes this responsibility.
Item
2(u)
Subclause 17(3) of the original
Light Vehicles Agreement already provides for the NRTC to develop motor vehicle
noise and emission standards for light vehicles in conjunction with the National
Environment Protection Authority. The amendments at section 10B of the Bill and
item 2(z) of the First Heavy Vehicles Amending Agreement are consistent with
this provision.
However, this item amends
subclause 17(3) in the original Agreement to recognise that since the
National Environment Protection Act 1994 came into force, the National
Environment Protection Authority is known as the National Environment Protection
Council (NEPC).
Item
2(v)
Item 2(v) inserts a new subclause
17(9), which requires the Commission to undertake strategic plans in relation to
Light Vehicles as provided in new Part 6A of the
Act.
Item
2(w)
This item amends clause 19 to
limit the role of the Commission with respect to the internal administration of
States and Territories in applying national road transport legislation, no
matter how implemented. This is necessary because of the new paragraph 8A
inserted by item 2(h).
Item
2(x)
This item amends the provisions in
clause 29(1) of the original Agreement providing for the review of the Act and
the Light Vehicles Transport Legislation.
Item
2(x)(a) provides that the review report should be prepared 12 months prior to
the expiry of the Act. This will ensure that, if legislative amendment is
necessary, there is sufficient time for the necessary consultation between the
parties, drafting and passage of legislation. Six months was manifestly
inadequate.
Item 2(x)(b) removes the reference
to the expiry of the Commonwealth Light Vehicles Transport Legislation, as
amendments cited above (Schedule 2 of the Bill and item 2(e) of this Agreement)
have removed the provisions tying the life of this legislation to the sunset of
the Act.
As the Australian Transport Council is
to be responsible for undertaking future reviews, item 2(x)(c) replaces the
original provision for the Commission to undertake the
review.
Items 2(x)(d), (e) and (f) are
consequential amendments to the removal of the application of the sunset to the
Commonwealth Light Vehicles Transport
Legislation.
Item
2(y)
This item amends subclause 29(3)
amending the reference to the Act to ensure that the reference is to the amended
Act, as defined in item 2(c).
Item
3
Item 3 provides that the parties wish
to confirm the commitments they made under the Light Vehicles Agreement in all
other respects to those amended in this amending
Agreement.
Schedule 2 - Amendment of
other Acts
The Road Transport Reform
(Dangerous Goods) Act 1995, the Road Transport Reform (Heavy Vehicles
Registration) Act 1997 and the Road Transport Reform (Vehicles and
Traffic) Act 1993 all cease to be in force when the National Road
Transport Commission Act 1991 ceases. While the application of a sunset to
an Act establishing a statutory body is soundly defensible, the continuity of
these pieces of 'Road Transport Reform' legislation is crucial to provide the
road transport industry with a stable operating environment. Accordingly, this
link is to be broken to ensure that these Acts will not automatically expire
with the expiry or repeal of the Act. However, under the Heavy and Light
Vehicles Agreements they will continue to be subject to review by the Australian
Transport Council at least every six
years.
Item 1 repeals section 8 of the Road
Transport Reform (Dangerous Goods) Act
1995.
Item 2 repeals section 7 of the
Road Transport Reform (Heavy Vehicles Registration) Act
1997.
Item 3 repeals section 5 of the
Road Transport Reform (Vehicles and Traffic) Act
1993.