Chain of responsibility: the new provisions have teeth and may bite hard

The Heavy Vehicle National Law and Other Legislation Amendment Bill 2016 has now been introduced in the Queensland Parliament. The proposed changes will significantly alter the current regime and impose a ‘primary duty’ on all parties in the chain of responsibility to ensure, so far as is reasonably practicable, the safety of road transport activities. This will mean that enforcement agencies can bring proceedings against parties in the chain without some harm or incident having to first occur. The proposed changes will also impose significant maximum penalties that give teeth to the primary duty and align with other national safety laws.

When will the changes commence?

The Bill is currently being considered by the Transportation and Utilities Committee with that committee to report back to Parliament by 1 November 2016. Once the amendments are passed, it is proposed that the changes will not commence for one year to allow regulators and industry participants to educate themselves and their staff and to put in place systems to ensure compliance.

What are primary duties?

Under the reforms, everyone in the chain of responsibility for a heavy vehicle will have a non transferable duty to ensure, so far as is reasonably practicable, the safety of their transport activities related to the vehicle.

Current chain of responsibility provisions deem parties in the chain to be responsible for a series of on-road offences such as breaches of a vehicle’s mass, dimension and loading requirements and breach by drivers of speed and fatigue requirements. The new provisions go further – it will no longer be necessary for a road offence to be committed before a party in the chain is liable under the HVNL. Instead, a party may be prosecuted because it does not have in place practices and procedures that ensure the safe operation of its transport activities.

The level and nature of each party’s obligations under the new provisions depends on the nature of the public risk created by their activities and their capacity to control, eliminate or minimise any risks.

Who are the parties in the ‘chain of responsibility’ to whom the primary duties apply?

The amendments do not significantly enlarge the current list of parties in the chain of responsibility. All of the following parties are part of ‘the chain’ and will be subject to the new primary duties:

1. a driver’s employer;
2. a prime contractor, if a driver is self-employed;
3. a vehicle operator;
4. a scheduler of a vehicle;
5. a consignor and consignee of goods in a vehicle;
6. a packer of goods in a vehicle;
7. a loading manager;
8. a loader; and
9. an unloader.

All Australian businesses that make use of heavy vehicles to transport goods, whether directly or indirectly, are potentially consignors and consignees and therefore part of the chain. The reach of this legislation is therefore significant and goes far beyond those parties directly involved in providing transport services.

Do the duties apply to managers as well as to the businesses they manage?

The primary duties are relevant to directors and managers, not just the businesses they are involved in managing. The Bill imposes a positive due diligence obligation on all ‘executives’ to exercise due diligence to ensure the business complies with its primary duty.

A failure to exercise due diligence may result in the executive being fined or jailed with the maximum penalty that applies being the same as the maximum penalty that would apply if the breach of duty had been committed by an individual.

What are the proposed penalties for a breach of the ‘primary duty’?

The failure to discharge a primary duty of care is an offence that can attract significant penalties, comparable to those in other national safety laws. The hierarchy of penalties is based on the nature of each risk and the actual harm or damage caused. The most serious category of breach attracts a maximum penalty of $300,000 or five years’ prison (or both) for individuals and $3 million for corporations.

What will happen to the existing ‘extended liability’ offences in the HVNL in relation to fatigue, mass, dimension, loading and speeding breaches?

Many of the previous offences that deemed parties in the chain to be liable in the event of mass, dimension, speed and fatigue offences (unless they could show they took ‘all reasonable steps’) will be omitted from the HVNL.

However, the Bill includes new offences that apply to a person who, without reasonable excuse, ‘permits’ another person to drive a vehicle in circumstances where the vehicle is does not comply with the HVNL, such as where the vehicle is overloaded or does not comply with loading or dimensional requirements. These sections will presumably apply to employers and operators and may extend to prime contractors.

What should parties in the chain of responsibility do to prepare for the changes?

The extensive changes to the HVNL mean that all parties need to:

1. consider and familiarise themselves with the new legislative regime of primary duties;
2. educate management and staff as to the new primary duties and the severe penalties associated with non-compliance; and
3. consider the risks associated with their transport services, what policies and practices are currently in place to manage those risks and what further steps could and should be taken to manage the risks and to document the steps taken to manage those risks.

To discharge the duties imposed, ad hoc unwritten and informal policies and activities than are not audited or supervised are highly unlikely to be adequate. Parties in the chain should use the time between now and the commencement of the changes to properly document policies and procedures and contractual responsibilities with other parties in the chain.

The provisions in the Bill are lengthy and complex. A more comprehensive bulletin discussing the new provisions is available here. Once the amendments are passed, Cooper Grace Ward will run educational seminars and webinars designed to assist clients to comply with the new provisions.

If you have any questions in relation to your obligations, or would like assistance in complying with your obligations, please contact Gillian Bristow on +61 7 3231 2925.