Changes to chain of responsibility – will you be ready in time?

As outlined in our November transport update, the Queensland Parliament (as the host jurisdiction) has now passed major changes to the chain of responsibility provisions in the Heavy Vehicle National Law (HVNL). Those changes will be automatically rolled out in all Australian states and territories (except Western Australia and the Northern Territory) and are likely to come into force in mid-2018.

The changes will:

• Impose a new ‘primary duty’ on all parties in the chain of responsibility to ensure, so far as is reasonably practicable, the safety of their road transport activities. The current chain of responsibility provisions deem parties in the chain to be responsible for a series of on-road offences such as breaches of 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 place practices and procedures that ensure the safe operation of its transport activities.
• Alter the current penalty regime by introducing a hierarchy of penalties based on the nature of the risk and the actual harm or damage caused. The most serious category of breach of the primary duty will attract a maximum penalty of $300,000 or five years’ prison (or both) for individuals and $3 million for corporations.
• Impose a positive obligation on all ‘executives’ to exercise due diligence to ensure the business complies with its primary duty. An executive is not confined to a partner or director but, in the case of a corporation, extends to ‘a person who is concerned or takes part in the management of the corporation’. A breach of the due diligence obligations can result in the executive being jailed or fined up to $300,000.

The new provisions are similar to the obligations and penalties imposed in workplace health and safety legislation. Recent decisions in the workplace health and safety area make it clear that the courts will take a robust approach to what is ‘reasonably practicable’ and we anticipate a similar approach will be taken to the new chain of responsibility provisions. For example, in DPP v Toll Transport Pty Ltd [2016] VCC 1975, a major transport company was fined $1 million after a stevedore was crushed to death while working on the weather deck of a ship at the Port of Melbourne. The court stressed that in workplaces where ‘the risk of catastrophic injury or death is high, constant, and readily foreseeable, the term “so far as is reasonably practicable” must involve the creation of strict, rigorous and comprehensive standards which are then religiously maintained’. Our alert explaining this decision is available here.

To assist transport operators and others in the chain of responsibility to understand their obligations under the new provisions, we are running half-day training courses in February and March 2017. All of the details are available here.