Discuss About The Transportation Law In Australia For Roads?
Transportation law, as the name suggests, is that area of law which deals with the laws relating to the transport in any nation. These laws are applied broadly at the transport system level and in a narrow sense, at the behaviours, things and vehicles on the roads. The transport law is found mainly in two key areas, i.e., under the statutory Business law, which is enacted by the Parliament, or through the case laws. In Australia, there are different legislations which are covered under transport law and which specially relate to the roads (Livermore, 2011). Particularly, each jurisdiction has their own legislation which has to be strictly adhered, on the basis of the jurisdiction in which the person is. The road rules which are applicable in the nation, across all the states and territories of the nation is the Australian Road Rules, which is basically a set of model road rules and has been developed by the National Road Transport Commission (Swirk, 2017). On October 19th, 1999, the very first edition of these rules were published after decades of putting efforts in working towards a shared road safety policy with the officials from different jurisdictions across the nation (Commonwealth Attorney General’s Department, 2012).
In the following parts, the different aspects of transportation law in context of roads have been highlighted, whereby the legislations, the policies, the planning and the implementation of these with reference to four case laws have been elucidated.
The Constitution of Australia does not give the Parliament the legislative powers for the road transport law. And due to these reasons, the road laws are the responsibility of the parliaments of the state and the territory (Connolly, 2017). Earlier, there had been wide ranging differences in the eight sets of traffic rules which were applicable in the different parts of the nation and this called for a uniform road rule reform for the nation back in 1933. The initial attempt for establishment of the nation Road rules in the nation was taken back in 1947 where an Australian Road Traffic Code Committee was established by the Australian transport ministers. The initial version of the then drafted National Traffic Code was issued in the year of 1958 and the last one was issued in 1988 (Shepherd and Calvert, 2017).
This code, however, was not applied in a uniform manner, where some jurisdictions ignored major parts of it and the others adopted the same. After this a meeting of the Australian Road Traffic Committee was held in 1963 where the states were called for flexibility and for compromising for attaining a national traffic code. 1965 saw the recommendations being drawn for a nationwide standard in this regard. The project of the Australian Road Rules was initiated back in 1990s whereby a uniform set of road rules for state and territory of the nation was set out to be formed. After a lot of efforts of different agencies and regulatory bodies, finally in 1999, a uniform set of Australian Road Rules was drawn (Shepherd and Calvert, 2017).
Legislation and Regulation
As the population of the nation is separated by vast distance, the infrastructure of road transport becomes crucial for the sustenance of the communities of the nation, for the growth of a strong economy and also for improving upon the international competitiveness. Through its department, the Government of Australia contributes towards the economy’s prosperity and the wellbeing of the people of the nation through supporting the constant improvement in the infrastructure of road transport. The government also advices the Department for the transportation reforms and the innovations for the improvement of the efficiency of the road transport, for environmental performance and for the productivity safety (Department of Infrastructure and Regional Development, 2017a).
There are a number of vehicle standards, as well as, regulations which are applicable in the nation for the attainment of the objectives of the government (Department of Infrastructure and Regional Development, 2014a). The Motor Vehicle Standards Act, 1989 and Motor Vehicle Standards Regulations, 1989, for instance, makes it an offence if a new or used imported vehicle is imported, sold or presented to the Australian market for the very first time, unless the same complies with the National Standards, save for such situations where they have been given an exemption by the Administrator of Vehicle Standards (Department of Infrastructure and Regional Development, 2014b).
The Australian Road Rules contain certain basic rules for the drivers on road and also for the ones who ride the motor vehicles, who ride bicycles, for the passengers, pedestrians and the others on the road. Broadly, the act deals with matters like the speed limit depending upon the zone, area or the length of road and the manner of setting them, for instance by depicting the same through a sign; the rules regarding the turns, for instance the hook turns, u-turns, and the left or right turns; the rules regarding the changing of directions and for stopping; the manner of dealing with the arrows, traffic signs and lights; the manner in which the way is to be given in different situations, for instance at children or pedestrian crossing, when a light is not there, when facing the stop lines, and the like; the manner of dealing with specific road markings or traffic signs; level crossings; roundabouts; lights and warning devices; restrictions on parking and stopping; overtaking, keeping left, driving in lane, merging with traffic, special purpose lane; specification on the traffic signs with are applicable the special rules for the bicycle riders; rules of travelling in vehicle; rules for pedestrians; and miscellaneous road rules (Attorney-General’s Department, 2016).
Policy and Regulation
Since there very implementation back in 1999, the Australian Road Rules have been updated on regular basis. And with certain exceptions, these rules are applied uniformly across every state and territory. The responsibility of maintaining these rules in a regular manner is entrusted upon the National Transport Commission for making sure that these are always updated (National Road Transport Association, 2017). And for doing so, the cooperation of the road transport, as well as, the law enforcement authorities of the State and Territory and of the Commonwealth Department of Infrastructure and Regional Development is undertaken. And this process also includes consultation from the general public in an extensive manner (Department of Infrastructure and Regional Development, 2015a).
As is the case with the different laws for each jurisdiction, there are a number of policies which are applied for the roads with reference to the transport laws of the nation. One of these is the Heavy Vehicle National Law, which along with its regulations, became applicable from the February 10th, 2014 in the jurisdictions of Victoria, Tasmania, South Australia, Queensland, New South Wales and Australian Capital Territory (Department of Infrastructure and Regional Development, 2016a). This law is looked after by the National Heavy Vehicle Regulator and looks after the heavy vehicles which weigh more than 4.5 tonnes in terms of gross vehicle mass. Apart from the nation law, there are four regulations under this law, which are the “Heavy Vehicle (Fatigue Management) National Regulation”, the “Heavy Vehicle (General) National Regulation”, the “Heavy Vehicle (Mass, Dimension and Loading) National Regulation”, and the “Heavy Vehicle (Vehicle Standards) National Regulation”. However, in Western Australia and in Northern Territory, the provisions of this law have still not been applied (NHVR, 2017).
The Federal Interstate Registration Scheme was initiated in 1987 as an alternative to the state based Heavy Vehicle National Law under the Interstate Road Transport Act, 1985. It provides the uniform operating conditions and charges for the heavy vehicles which are used only for the purpose of interstate carriage of goods or passengers, in commerce or trade, or for the purpose which is aligned with the carriages of such kind (Department of Infrastructure and Regional Development, 2017b).
In order to plan the different aspects of the road related aspects, often guidelines are offered by independent parties. In this regard, Austroads has offered certain guidelines for the planning and assessment of the road freight access in the industrial areas. These guidelines help the participants in gaining an understanding of the needs and the challenges which are associated with the development of road freight road access and the circulation in the industrial areas. These guidelines also provide a process which is easy to follow and which informs the guides the ones who are involvement in both planning and assessing of the industrial areas road freight road access (Austroads, 2014).
Driver licensing and vehicle registration are the responsibilities of the territory and state governments and the authority of each state and territory drawn for these two purposes participates in the “Austroads Registration and Licensing Task Force”, as is done by the “Commonwealth Department of Infrastructure and Regional Development”. This task force is responsible for the promotion of harmonization and the consistency of the registration of vehicle in the nation and it also helps in collaborating between different jurisdictions. This task force also develops and promotes the national procedures and policies which are required for these purposes, thus effectively helping in the planning phase of driver registration (Department of Infrastructure and Regional Development, 2014c).
The implementation of these rules can better be explained with the help of case studies or the case laws, which have taken place in the nation. Four of such cases have been included in this discussion.
Austin J, in this case stated that the Australian Road Rules were a part of the New South Wales law as a result of the statutory provisions. In this regard, Austin J made reference to the Road Transport (Safety and Traffic Management) Act 1999 (NSW) and stated that this act made extensive provisions regarding the safety, as well as, traffic management. The very objective of this act was to provide a system of traffic and safety management which was consistent with the uniform national approach, which had been envisaged through the agreements scheduled to the Commonwealth’s National Road Transport Commission Act 1991, particularly its section 3(a); and also form improving upon the safety and the efficiency of the transport on the road and the road related areas, in reference to section 3(c) (Kidd, 2015).
Justin Austin referred to schedule 1 and section 71 for creating a board authority for regulation making regarding the traffic and safety management, which took His Honour to regulation 5 and 6 of the Road Transport (Safety and Traffic Management) (Road Rules) Regulation 1999 (NSW) based on the applicable authority. As these provisions incorporated the Australian Road Rules as had been published into the regulation by the National Road Transport Commission, they were deemed to be a part of the law of NSW (Kidd, 2015).
As per Rule 20 of the Australian Road Rules, the driver should refrain from driving at a speed which is over the prescribed speed limits. However, an exemption to this requirement is provided under rule 305 of the Australian Road Rules. Under Rule 305, the driver of the police vehicle has the exemption from certain compliances of the provisions of these rules. And these rules would be available on the basis of reasonableness of the particular situation. So in order to take a benefit under these exemptions, there is a need for the defendant to show that on the basis of balance of probabilities, the driver had taken the reasonable care by being the driver of the police vehicle. And it also has to be established that in the given situation, it would be deemed as sensible for not applying the rule 20 of these rules (Supreme Court, 2017).
The case here did not dispute upon the respondent being police vehicle driver and it was also provided that the driver had taken the reasonable care as was required on his part, based on the situation given. And in this case it was stated by the court that the defendant was not required to show that the rule 20 in this case should not apply. The court also found out that even though he was driving a police vehicle, it was not required on his part to display blue and red flashing lights or for him to sound the alarm. This case was an example of the best manner in which the Australian Road Rules are used in the nation (Supreme Court, 2017).
In this case, the ARRs were deemed as a part of national scheme of the uniform road rules. Through clause 6 of the regulations, these had been incorporated. Though, the operation of Schedule 1’s clause 7 and 14 of these regulations and regulation 7 of the ARR are not applicable for the drivers of vehicles in NSW (Kidd, 2015).
This case made it clear that the governor had the valid power for making the regulations on the basis of Road Traffic Act 1961 (SA) section 80(a). Further, this particular power was extended for making the regulations beyond regulations which were contemplated through the ARRs. This case helped in clarified the power of the governor to make regulations even beyond the ARRs. In Howie v Burgess (For the City of Playford) 23/9/05  SASC 368, it was stated that the governor had not been validly appointed and on this basis, the ARR was challenged stating that the same was not enacted validly. However, the court rejected this argument and upheld the validity of the ARR (Kidd, 2015).
To conclude the discussion carried on till now it can be clearly stated that the Australian Road Rules are the predominately the rules which are followed in the nation when it comes to the transport laws which are followed in the nation. The Australian Road Rules were drafted after a lot of efforts put in by the law making bodies of the nation. The most important aspect of these rules was that it provided a uniform set of rules which were to be applied in the nation and which contained different provisions applicable, including the speed limits, the manner of reading the signs, the special purpose laws and the like. Apart from these rules, there are different legislations and regulations which are applicable in the nation; and each of these is related to a particular aspect of road rules. These legislations are managed by specified bodies which not only ensure their commencement but also their applicability. There are certain areas in which a certain set of laws apply, for instance Heavy Vehicle National Law, and at the same time, an alternative to these laws can be applied, for instance Federal Interstate Registration Scheme. This is due to the different policies adopted in the nation. The planning of these rules is also a crucial task, for which, the guidelines are given by renowned entities. The ways in which these rules are applied have been demonstrated through the case laws. In short, the transport laws with reference to roads are a wide area and for each specific issue, a separate set of law needs to be adhered with.
Attorney-General’s Department. (2016) Australian Road Rules. [Online] Government of South Australia. Available from: https://www.legislation.sa.gov.au/LZ/C/R/AUSTRALIAN%20ROAD%20RULES/CURRENT/2014.205.UN.PDF [Accessed on: 10/09/17]
Austroads. (2014) Guidelines for Planning and Assessment of Road Freight Access in Industrial Areas. [Online] Austroads. Available from: https://www.onlinepublications.austroads.com.au/items/AP-R470-14 [Accessed on: 10/09/17]
Commonwealth Attorney General’s Department. (2012) Australian Road Rules. [Online] Commonwealth Attorney General’s Department. Available from: https://www.ntc.gov.au/Media/Reports/%28F1D63B25-98A0-8E5A-EBD4-BA6FC69ABF7D%29.pdf [Accessed on: 10/09/17]
Connolly, A.J. (2017) The Foundations of Australian Public Law. Victoria: Cambridge University Press.
Department of Infrastructure and Regional Business Development. (2014a) Road Transport & Vehicles Legislation. [Online] Australian Government. Available from: https://infrastructure.gov.au/roads/legislation/index.aspx [Accessed on: 10/09/17]
Department of Infrastructure and Regional Development. (2014b) Legislation. [Online] Australian Government. Available from: https://infrastructure.gov.au/vehicles/imports/legislation.aspx [Accessed on: 10/09/17]
Department of Infrastructure and Regional Development. (2014c) Austroads Registration and Licensing Task Force. [Online] Australian Government. Available from: https://infrastructure.gov.au/roads/legislation/task_force.aspx [Accessed on: 10/09/17]
Department of Infrastructure and Regional Development. (2015a) Australian Road Rules. [Online] Australian Government. Available from: https://infrastructure.gov.au/roads/legislation/road_rules.aspx [Accessed on: 10/09/17]
Department of Infrastructure and Regional Development. (2016a) Heavy Vehicle Regulation. [Online] Australian Government. Available from: https://infrastructure.gov.au/roads/vehicle_regulation/ris/index.aspx [Accessed on: 10/09/17]
Department of Infrastructure and Regional Development. (2017a) Roads. [Online] Australian Government. Available from: https://infrastructure.gov.au/roads/index.aspx [Accessed on: 10/09/17]
Department of Infrastructure and Regional Development. (2017b) Federal Interstate Registration Scheme. [Online] Australian Government. Available from: https://infrastructure.gov.au/roads/motor/firs/index.aspx [Accessed on: 10/09/17]
Kidd, D. (2015) Judicial consideration of Australian Road Rules. [Online] Kidd’s Law Publications. Available from: https://www.kiddslaw.com/motor-and-traffic-law/damages-funds-management/ [Accessed on: 10/09/17]
Livermore, J. (2011) Transport Law in Australia. The Netherlands: Kluwer Law International.
National Road Transport Association. (2017) Proposed changes to Australian Road Rules. [Online] National Road Transport Association. Available from: https://www.natroad.com.au/2017/07/proposed-changes-to-australian-road-rules/ [Accessed on: 10/09/17]
NHVR. (2017) Heavy Vehicle National Law (HVNL). [Online] NHVR. Available from: https://www.nhvr.gov.au/law-policies/heavy-vehicle-national-law-and-regulations [Accessed on: 10/09/17]
Shepherd, I.W., and Calvert, F.A. (2017) The Australian Road Rules – What Are They And Where Are They Going?. [Online] National Transport Commission. Available from: https://www.ntc.gov.au/Media/Reports/(A5FBDED5-A457-1A08-045E-2FBFF491BA5A).pdf [Accessed on: 10/09/17]
Supreme Court. (2017) Bryson v Fensom  NTSC 25. [Online] Supreme Court. Available from: https://www.supremecourt.nt.gov.au/doc/judgements/2002/0/20020501sc25.htm [Accessed on: 10/09/17]
Swirk. (2017) Rules on the road: protecting us and making it easier. [Online] Swirk. Available from: https://www.skwirk.com/p-c_s-12_u-55_t-88_c-311/rules-on-the-road-protecting-us-and-making-it-easier/nsw/maths/on-the-move/controlling-movement [Accessed on: 10/09/17]
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