New investigative and enforcement powers set to become part of ‘chain of responsibility’ reforms22 August 2017 Topics: Transport and logistics
In May 2017, Australia’s transport ministers approved recommendations to change investigative and enforcement powers under the Heavy Vehicle National Law. If the recommendations are passed by Parliament, the National Heavy Vehicle Regulator and its enforcement officers will have an armoury of new powers to inspect fleets of vehicles, gather documents and information, and issue prohibition notices.
In June 2016, the transport ministers asked the National Transport Commission to review the enforcement and investigative powers in chapters 9 and 10 of the Heavy Vehicle National Law (HVNL). The Commission examined whether the powers are appropriate, given the ‘primary duty’ to be imposed on all parties in the chain of responsibility will be to ensure, so far as is reasonably practicable, the safety of their road transport activities.
Some of the more significant changes proposed include:
- the extension of the new section 570A information-gathering power (originally introduced in the context of the new primary duty) to the investigation of breaches by executive officers of their new due diligence obligation to ensure their company complies with the new primary duty;
- changes to provisions enabling an enforcement officer to obtain specified documents or information, to empower an enforcement officer to also require a responsible person to identify third parties who hold documents or information relevant to the investigation of an offence;
- a new power enabling an enforcement officer to require the production of a driver’s licence, where, by law, the driver is required to carry a licence;
- changes to powers requiring the production of vehicles for inspection, enabling an enforcement officer to require a whole fleet or class of vehicles to be produced where they have a reasonable belief that the whole fleet or class of vehicles is defective;
- a new power enabling an enforcement officer to issue notices prohibiting the carrying on of an activity or the carrying on of the activity in a specific way, until the enforcement officer is satisfied that risk-factors have been remedied;
- a new power enabling the courts to grant injunctions to combat ongoing safety issues; and
- a new provision authorising the National Heavy Vehicle Regulator to publish court outcomes, including penalties imposed.
Where to from here?
A draft bill will be put before the transport ministers for their approval in November 2017. Following the transport ministers’ approval, the bill is likely to be tabled for consideration by the Queensland Parliament (as host jurisdiction for the HVNL) in early 2018. If the bill is passed, the changes will likely commence in mid-2018, alongside the new primary duty.
Cooper Grace Ward is hosting a half-day training course in Melbourne on 10 October 2017 and again in Brisbane on 26 October 2017. This course will be a masterclass for directors, executives and managers on the new chain of responsibility regime. Details of that course are available here.