Changes to the duties and increases to the penalties under the Heavy Vehicle National Law

The National Heavy Vehicle Regulator has announced that, as of 1 October 2018, the Heavy Vehicle National Law (HVNL) will be amended so that every party in the heavy vehicle transport supply chain (i.e. party to the Chain of Responsibility) will have a duty to ensure the safety of their transport activities, so far as is reasonably practicable.

The amendments are primarily aimed at improving safety and promoting pre-emptive risk management by parties in the Chain of Responsibility by imposing a primary duty of care (to ensure safety, so far as is reasonably practicable) and increasing the penalties for breaches to more closely resemble workplace health and safety legislation.

On 14 June 2018, the Queensland Government passed the first of two bills that will start the process of changes to the HVNL, with the amendments to the duties and increases to penalties already passed and set to commence on a day to be fixed by proclamation (said to be 1 October 2018 by the Regulator).

Who is a party to the Chain of Responsibility?

Any party that undertakes specified functions that exercise, or have the capability of exercising, control or influence over any heavy vehicle transport task, is a party to the Chain of Responsibility and has obligations to ensure compliance with the HVNL.

This means that those who consign, pack, load or even receive goods are a party to the Chain of Responsibility and may be held liable for breaches under HVNL, irrespective of having any direct role in driving or operating a heavy vehicle.

The parties in the Chain of Responsibility for a heavy vehicle, include:

  • an employer of a driver;
  • a prime contractor (the party responsible for engaging the driver of a heavy vehicle by contract or other arrangement if the driver of the vehicle is self-employed);
  • an operator of the vehicle;
  • a scheduler, loader and/or unloader of a vehicle;
  • a sender of any goods for transport by the vehicle; and
  • a recipient of any goods in the vehicle.

As an example of the duties imposed: a prime contractor that places unrealistic timeframes on a driver, which in turn causes the driver to exceed their work/rest options or exceed the speed limit, would likely to be found to have breached its duties.

Amendments to the Heavy Vehicle National Law

Currently, the duties are based on whether a party took ‘all reasonable steps’ to prevent a breach from occurring based on an exhaustive list of ‘reasonable steps’.

The amendments remove this exhaustive list of reasonable steps and replace it with more broadly worded duties, similar to the duties under the workplace health and safety legislations, including:

  • the primary duty to “ensure, so far as is reasonably practicable, the safety of the party’s transport activities”;
  • the duty to eliminate ‘public risk’ so far as is reasonably practicable, and to the extent that it is not reasonably practicable to eliminate, to minimise the risk; and
  • duties on an ‘executive’ of a legal entity (e.g. a corporation) to exercise ‘due diligence’ to ensure their business complies with all duties.

The National Heavy Vehicle Regulator has provided guidelines for various parties to the Chain of Responsibility and recommended for safety management controls (such as business practices, training, procedures and review processes) to be implemented, which:

  1. identify, assess, evaluate, and control risk;
  2. manage compliance with speed, fatigue, mass, dimension, loading and vehicle standard requirements through identified best practices;
  3. involve regular reporting, including to executive officers; and
  4. document or record actions taken to manage safety.

Penalties

The amendments will bring with it an increase in penalties for breaches to the HVNL, which (again, similar to the health and safety legislations) will be divided into three categories:

  • Category 1: A reckless breach creating risk of death or serious injury- maximum penalty of:
    • $300,000 and/or 5 years imprisonment for an individual
    • $3,000,000 for a corporation
  • Category 2: A breach of a duty that creates exposure to risk of death or serious injury (without recklessness)- maximum penalty:
    • $150,000 for an individual
    • $1,500,000 for a corporation
  • Category 3: Any other breach with no such risk- maximum penalty:
    • $50,000 for an individual
    • $500,000 for a corporation

Summary

It is important that all parties to the Chain of Responsibility familiarise themselves with the changes to the HVNL to ensure compliance with their duties and to ensure they avoid significant penalties.

We recommend that steps are taken as soon as possible to start implementing appropriate procedures for safety and risk management of heavy vehicle transport in the lead up to 1 October 2018.

This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader’s specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.

Key contacts:

Christopher Rowden – Principal
Jay Hatten – Senior Associate

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