PATRICIA GABRIELA VÁZQUEZ DEL MERCADO

Another important enforcement initiative was the introduction of the ‘Three Strikes and You’re Out’ program (hereafter referred to simply as the three strikes system) in July 1998 with the support of the road transport industry, to reduce speeding by heavy vehicles. The system addresses operators as well as drivers and is targeted at operators of heavy vehicles detected by the Police Service travelling at over 115kph. It involves a graduated range of sanctions for both speed-limited and non-speed limited vehicles. A first offence of a speed- limited vehicle results in a warning, a second offence the calibration of the speed limiter, a third offence leads to a 28 day suspension of the vehicle’s registration while fourth and subsequent offences each result in a three month suspension. For non-speed limited vehicles the first offence leads to a warning, a second offence to the fitting of a speed limiter, a third offence to calibration of the limiter, a fourth offence results in a 28 day suspension of vehicle registration and subsequent offences each cause a three month suspension. By addressing operators as well as drivers, and by suspending the registration of the offending vehicle and in so doing affecting the earning capacity of the operator the three strikes system would seem to provide a more effective deterrent than simply issuing speeding fines. This especially the case given suggestions that some companies routinely pay fines or that some drivers are prepared to forego fines when they balance this against bonus/penalties which may apply to delivery schedules or the risk of missing a load in the case of owner/drivers.

The three strikes system has been adopted in a number of jurisdictions and has the strong support of bodies like Queensland Transport (written submission, page 10). It also commands strong support from a number of bodies, including industry associations. The ATA, for example, saw it as a method for dealing with unscrupulous operators and driving the ‘cowboy’ element out of the industry, something which heavier penalties on drivers were unlikely to achieve:

…the industry realised that drivers should not bear the full brunt of increased penalties when in some instances they may have been pressured by their employer or consignor to do so

As at 25 May 2000 1571 speeding offence ‘strikes’ had been recorded by the RTA in NSW, with 63% of detected vehicles travelling at 120 kph (exceeding the speed limit by at least 20 kph) and about 12.5% travelling at 130kph or more (written submission, RTA). Of these (1571) offences 267 (or 16.9%) were recorded by NSW registered trucks. Of the remainder, 740 (47.1%) by federally registered (FIRS) trucks, 355 (22.6%) by Victorian registered trucks, 87 (5.5%) for both Queensland and South Australian registered trucks, 18 (1.1%) for ACT registered trucks, 9 (0.6%) for Western Australian registered trucks and 4 (0.3%) for Tasmanian registered trucks. Several things are apparent from these figures, including the relatively low detected offence rate for NSW registered trucks given the number of vehicles based in this state. However, most striking by far is the significant number of offences (almost half) incurred by federally registered trucks even though they comprise only about 2% of the national heavy vehicle fleet. Two FIRS trucks also held the dubious distinction of recording the highest speeds (152 kph or more than 50 kph over the speed limit on the Hume Highway at Mittagong). The Federal Interstate Registration Scheme (FIRS) provides for registration of vehicles involved in interstate trade (though by no means all), and is administered by the federal government, with each state acting as its agent. The Report will return to the issue of federally registered vehicles shortly.

Table 27: Breakdown of the registration of vehicles that have recorded ‘strikes’ in NSW

NSW FIRS ACT QLD SA VIC WA

TAS

NT

No. of offences 267 740 18 87 87 355 9 4

% of total 16.9 47.1 1.1 5.5 5.5 22.6 0.6 0.3

Source: written submission, RTA.

In its own assessment the RTA finds the three strikes system hard to judge, noting that for one thing it depends on the effectiveness of detection (ie the probability of being caught) and in relation to this there were some worrying trends.

An analysis of the ‘3 strikes’ data showed that the number of speeding incidents reported by Police for January to April 2000 was down 40% from the same period last year. Analysis of RTA speed data from Culway sites shows that there has been an increase in the incidence of speeding heavy vehicles.

Increased Police activity does not guarantee reductions in the incidence of heavy vehicle speeding. Speed survey data (7 day, 24 hour/day surveys), from three sites on the section of the Hume Highway where there had been significant enforcement of the ‘3 strikes’ scheme by Police (Goulburn to Sydney), has been analysed. The analysis revealed that even on this section of the highway, the percentage of heavy vehicles speeding remain very high (50-70%) and had increased since the implementation of the ‘3 strikes’ scheme. The increase was, however, less than at the Culway sites. There was a slight decrease in the Goulburn area

(written submission, RTA).

There is need for caution in interpreting evidence in relation to one route (albeit the busiest and very competitive Sydney/Melbourne corridor) and trends over such a limited period of time. Nevertheless, the observations are consistent with other evidence presented to the Inquiry that the speeding problem is not improving and may well be getting worse, and that

some elements of the industry are becoming more adept at evading enforcement. Along with other measures, the three strikes scheme is failing to have a clearly demonstrable effect (which is not to say the situation may not have been even worse had it not been for the scheme).

In addition to the probability of offences being detected, the certainty of punishment once an offence has been detected, and the imposition of penalty that actually influences offender behaviour in the desired direction are critical elements in an enforcement regime with genuine deterrence value. While the three strikes system would seem to meet these elements in principle, in practice there have been some major problems and again FIRS registered trucks figured heavily. In its written submission (at page 10) the RTA asserted:

The key problem with FIRS is that the scheme restricts the action that can be taken against the operators of vehicles registered under it. Suspension of a vehicle registration must be undertaken by the State in which the vehicle is registered not the State in which the offence occurred. As the ‘3 Strikes’ system is not applied uniformly by all States, operators can avoid sanctions by registering in Jurisdictions where the system does not currently operate thus limiting the effectiveness of the scheme as a whole.

Recognition of this problem extended beyond the RTA to other parties such as the ATA who observed:

The speeding trucks legislation has been embraced especially by NSW however, in a nationally consistent approach, it appears not all other state authorities are taking this legislation to the full limit (written submission, ATA page 19).

The RTA pointed to another evasion device that while not restricted to operators with FIRS trucks, was easier for them to avail.

The sanction applied to operators under the ‘3 Strikes’ scheme is the suspension of their vehicle’s registration. To avoid this sanction heavy vehicle operators can transfer the registration of the vehicle to another entity such as their spouse or subsidiary company, prior to suspension action taking place. Under the current regulations the transfer cannot be prevented because there is no reason to suggest that the person/company to whom the vehicle is being transferred is ‘not a fit and proper person to be the holder of the registration of the vehicle’. It should be noted that for non-FIRS vehicles stamp duty is paid on the transfer. This would be $7,000 on a typical prime mover. Stamp duty is however not paid on FIRS registrations. So, as happened recently, a FIRS operator can transfer the registration of their vehicle to avoid sanction at virtually no cost.

The NSW Minister for Roads has written to the Federal Minister for Transport and Regional Development on a number of occasions asking the Commonwealth Government to either honour its commitment to repeal FIRS legislation or make provision for States such as NSW to take direct action against offending operators. However, the Commonwealth has not taken the necessary action (written submission, RTA pages 10-11).

A virtually identical concern was raised by the submission of the Traffic Services Branch of the NSW Police Service:

There is a very large loophole in the legislation that allows Federal Interstate registered vehicles to thwart both Safe-T-Cam provisions as well as the 3 Strikes legislation. Information from operational police indicates that the 3 strikes legislation seems to have little affect on FIR’s vehicles at all.

The greater tendency to speeding amongst federally registered vehicles appears to be a long- term problem. In their 1989 pilot survey Hensher and Battellino (1990:552) found that federally registered vehicles had average trip speed 11kph faster than the average for all other trucks and the gap was even greater when compared to trucks registered in NSW. The Inquiry heard some submissions claiming that the enforcement problems in relation to FIRS trucks did not simply relate to speeding but also included logbook/driving hours offences. The TWU (oral submission, Michael Kane), for example, claimed there was a problem in relation to both checking and falsification of logbooks carried by FIRS trucks. However, some drivers suggested that a general decline in the level of logbook inspection outweighed any differential treatment accorded to FIRS trucks.

In summarising its position, the RTA was quite emphatic:

There is a need to ensure all trucks operating in NSW are subject to its laws – there is an urgent need to dismantle the Federal Interstate Registration Scheme which is currently providing a shield for unscrupulous operators against NSW road transport law (written

submission RTA executive summary).

It is the view of this Report that federally registered vehicles constitute a problem far beyond their number both in the commission of speeding offences and their capacity to evade punishment which other transport operators, especially those with vehicles registered in NSW, must bear for behaving in a similar fashion. The Inquiry regarded this as an extremely critical issue that undermined the legitimacy of the enforcement regime, and was going to recommend that further urgent action be taken to address it. However, just prior to the completion of this Report the Inquiry learned from the RTA that the federal government is in the process of making the desired changes and has consulted with the RTA in developing these amendments.

Notwithstanding this belated but welcome measure, the prolonged misuse of FIRS as a means of regulatory evasion is one of a number of issues that have cast a shadow over the push of a more coordinated nationally administered safety strategy in relation to long distance trucking. The Report will examine the question of national coordination in greater depth in a later section.

4.2.4 Conclusion

Speeding trucks are not an isolated problem, and as with regard to other hazardous practices such as excessive driving hours regulatory agencies have had to confront sometimes quite elaborate attempts to evade their enforcement measures. During the 1980s evidence of widespread speeding (one NSW study of articulated trucks found over 80% exceeded the then 80kph limit and 15% of these were travelling in excess of 100kph. Cited in May et al, 1984:184) was used to argue that a more ‘realistic’ speed limit was warranted. Even ignoring the short-term effects of the resulting changes, a more sober assessment of truck speeding is that speeding remains pervasive because the intense competition for work, scheduling pressures, unpaid loading/unloading time, and incentive/task-based payment systems encourage such behaviour.