How do they impact you and your business?
On 1 October 2018, the Heavy Vehicle National Laws (HVNL), governed by the National Heavy Vehicle Regulator (NHVR) were amended.
According to the NHVR, the HVNL was amended “to provide that every party in the heavy vehicle transport supply chain has a duty to ensure the safety of their transport activities.”
What do these new Chain of Responsibility (CoR) Laws mean for you and your business?
In this article, we’ll cover the changes to the CoR laws, why they’ve been introduced and who they apply to. Keep in mind that this is not legal advice or opinion – we’re just reporting the changes as they’ve been announced. To check your compliance on legislative matters you should always engage the help of accredited professionals.
What are the changes to CoR laws?
The Regulator announced the introduction of a ‘primary duty’ in October 2018.
To understand primary duty, we need to understand what came before it: ‘deemed liability’.
As the NHVR’s guide for judicial officers and legal practitioners explains:
Since the HVNL commenced in February 2014, it operated on a ‘deemed liability’ basis. That is, when an on-road offence was detected, other “parties in the chain of responsibility” were deemed to be liable.
Parties in the CoR include employers, prime contractors, operators, consignors, consignees, schedulers, loaders and others.
In the guide, the NHVR explains how primary duty replaces deemed liability:
“The new legislative regime abolishes deemed liability for parties in the CoR and replaces it with a duty to ensure, so far as is reasonably practicable, the safety of the party’s transport activities relating to the vehicle.
“Each party in the chain of responsibility for a heavy vehicle must ensure, so far as is reasonably practicable, the safety of the party’s transport activities relating to the vehicle.”
In the past, says the NHVR, it was “Incumbent on those parties in the CoR to prove they had taken all reasonable steps to prevent [breaches] from occurring.
“As first enacted, the HVNL generally only contemplated offences against fatigue, speed, mass, dimension and loading of a heavy vehicle.”
Why were new laws introduced?
The goal of the regulator is to change behaviour – and make that behaviour safer.
The NHVR’s CEO Sal Petroccitto delivered some sobering statistics in his introduction of the amendments:
“The fatality rate in the road transport industry is over eight times higher than all other industries. In the 12-month period ending June 2017, 212 people died in crashes involving heavy vehicles or buses (just over four per week) and approximately 1,600 people were hospitalised from crashes involving heavy vehicles (more than 30 per week).
The Australian Work Health and Safety Strategy 2012–2022 has declared road transport a priority industry and the HVNL is a key component of the safety agenda.”
See Mr Petroccitto’s full foreword, including the sources for those statistics, in the NHVR’s guide for judicial officers and legal practitioners.
What will the new laws do?
The NHVR laws allow for authorised officers to exercise their powers to gather information.
From the Regulator’s report:
“Authorised employees of the NHVR or its delegates and police officers may exercise powers to enter places and vehicles, obtain evidence, question persons and request documents. They have particular powers relating to stopping, inspecting and directing heavy vehicles at the roadside.
The Regulator hopes that the principles of enforcement and sentencing is taken seriously by employers:
“The community is entitled to expect that both small and large employers will comply with safety requirements. General deterrence is a significant factor when safety obligations are breached.”
Who do the new laws apply to?
To determine exactly who is responsible, it’s important to understand the distinction between the Heavy Vehicle laws and regular workplace health and safety laws.
From the NHVR:
“A key difference between the duty provisions in the HVNL and those in the Model Workplace Health & Safety laws is that the duty applies not to workers and workplaces but to a party’s transport activities relating to a heavy vehicle.
‘Transport activities’ means activities, including business practices and making decisions, associated with the use of a heavy vehicle on a road, including, for example-
(a) contracting, directing or employing a person-
i. to drive the vehicle; or
ii. to carry out another activity associated with the use of the vehicle (such as maintaining or repairing the vehicle); or
(b) consigning goods for transport using the vehicle; or
(c) scheduling the transport of goods or passengers using the vehicle; or
(d) packing goods for transport using the vehicle; or
(e) managing the loading of goods onto or unloading of goods from the vehicle; or
(f) loading goods onto or unloading goods from the vehicle; or (g) receiving goods unloaded from the vehicle.”
The change in legislation affects everyone along the chain, so if you’re unsure about where you and your organisation are liable, it’s important to seek professional advice.
When could CoR laws apply?
Under the Heavy Vehicle National Laws, offences are categorised under the basis of risk.
The regulator says that “The categorisation recognises the potential damage to road infrastructure and that risk to people’s safety increases with the severity of the offence.
“Fatigue management, mass, dimension and loading and speed compliance offences are categorised according to the risk they present.”
Here’s how the regulator categorises breaches:
- Minor breach – risk of someone gaining a minor unfair commercial advantage over those who operate legally, but no risk to safety or infrastructure.
- Substantial breach – risk of damage to infrastructure, increasing traffic congestion and unfair competition. It may also involve some risk to safety, although not an appreciable risk.
- Severe breach – appreciable risk to safety, more severe risk to infrastructure, greater risk of traffic congestion or a greater level of unfair competition.
- Critical breach – contravention of fatigue regulated maximum work time and/or minimum rest time which would adversely affect the driver’s ability to drive safely.
Penalties
There are three categories of breaches. If you’re familiar with OHS/WHS laws, they’ll be familiar to you as they follow the Model WHS legislation.
Here are the penalties as listed by the Regulator at the HVNR Chain of Responsibility Forum July 2017:
| Category | Penalty |
| 1. Breach of duty creating risk of death or serious injury or illness (reckless) | 5 years imprisonment and/or $300,000 and $3 million |
| 2. Breach of duty creating risk of death or serious injury or illness | $100,000 for an individual and $1 million for a corporation |
| 3. Other breach of duty | $50,000 for an individual and $500,000 for a corporation. |
What does that mean for you if you are a Consignor or a Consignee, or someone who is not running a transport company?
Michael Crellin the former Manager – Chain of Responsibility – Regulatory Compliance at the National Heavy Vehicle Regulator, in his address at the last year’s Chain of Responsibility Forum, said the reality comes down to just three things:
- Observe
- Record
- Report
One will only be held responsible for that which they can influence and control.
This means shippers, 3PLs, freight brokers and consignees, as well as transport companies must focus on risk management practices, systems and processes, and ensure they are current and working.
Watch Michael’s full address to the forum here.
The NHVR’s Chain Of Responsibility Gap Assessment Tool might also help you get a clearer picture of your responsibilities and liabilities.
For a consignor, for example, the Regulator asks:
- Does your business have a system of engagement with other parties in the supply chain?
- Do you have documented policies and procedures for mass management?
- Do you have documented policies and procedures for dimension management?
- Do you have documented policies and procedures for loading management?
- Does your business have fatigue management policies and procedures?
- Does your business have a system to review your business practices to ensure that they do not cause or encourage a party in the Chain of Responsibility to operate vehicles that are unsafe or defective?
- Does your business have a system to review the effectiveness of speed management practices?
For consignees, the focus shifts slightly:
- Does your business have a system of engagement with other parties in the supply chain?
- Do you have documented policies and procedures for mass management?
- Has your business conducted a risk assessment of your dimension management obligations?
- Does your business have a system to review your business practices to ensure that they do not cause or encourage a party in the Chain of Responsibility to fail to comply with loading requirements ?
- Does your business have fatigue management policies and procedures?
- Does your business have a system to review your business practices to ensure that they do not cause or encourage a party in the Chain of Responsibility to operate vehicles that are unsafe or defective?
- Does your business have a system to review conditions of the delivery times to ensure they do not cause a driver to exceed the speed limit?
Of course, this isn’t an exhaustive list, nor is it passable as legal advice – but it gives an idea of where the regulator will be looking.
Are you compliant?
As we mentioned before, the best way to make sure you’re compliant is to engage the help of accredited professionals.
In the meantime, the NHVR has provided some resources to get you started.
Its website has videos, documents and presentations that explain the chain of responsibility changes and provide plenty of background on safety management systems.
And to help you or your company get a clearer picture of your responsibilities and liabilities, use the NHVR’s handy CoR Gap Assessment Tool.
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