Chain of Responsibility provisions

Changes to the Chain of Responsibility Provisions: One year on

18 November 2019

Readers may be aware that on 1 October 2018 changes to the Chain of Responsibility (CoR) provisions of the Heavy Vehicle National Law (HVNL) were implemented. These changes imposed a primary duty on each party in the supply chain to ensure that everything reasonably practical to guarantee safety in transport and reduce the risk of harm and loss, is done.

In November 2018 Rigby Cooke Lawyers partner and head of the Transport and Logistics industry group, Elizabeth Guerra-Stolfa warned that transport operators would be in ‘for a rude shock’ if they did not have in place appropriate systems and safeguards to ensure compliance with the new CoR provisions.

We have monitored enforcement action that has been taken around Australia since the new CoR laws came into effect. It is fair to say that the road authorities and regulators seem to be showing ‘more teeth’.

We have also discussed specific requirements under the HVNL including the mass limits which must be adhered to (our case study is available here) and the load restraint provisions and the limits to reliance on the Load Restraint Guide 2018 for compliance with those provisions (our article is available here).

Recent incidents, investigations and operations

As stated above, we have seen an increase in compliance and enforcement action being taken in relation to breaches of the HVNL.

In November 2018, shortly after the new CoR provisions came into effect, a Hari Om Transport heavy vehicle collided with several cars in a McDonald’s car park in Wollongong. This incident triggered an investigation into Hari Om Transport’s fleet of vehicles by Roads and Maritime Services in New South Wales (RMS). All ten vehicles in the fleet were issued with defect notices in relation to safety and compliance issues including faulty brakes, seatbelt defects and bald tyres.

In June 2019 the owner of transport operator A. Fife & Co was fined $88,000 and required to pay an additional $30,000 in legal fees as a result of prosecution for breaches of the CoR provisions. A police investigation was commenced after a fatal collision between an A.Fife & Co heavy vehicle and a car carrier near Wilton in New South Wales. This led to RMS to conduct a broader investigation into the transport operator and its compliance with the HVNL. Mr Fife (the owner of the transport operator) was charged with 24 offences relating to driver fatigue, failure to report change of activity and breaches of its primary duty and duty of care pursuant to the CoR provisions.

These cases are further examples of the serious consequences that arise from failure to comply with the HVNL.

In addition to enforcement action taken at a State level, the National Heavy Vehicle Regulator (NHVR) is actively monitoring and, in some cases, investigating transport operators. On 30 September 2019, the NHVR published a media release detailing its ongoing investigation into two Tasmanian heavy vehicle operators. The NHVR inspected the operators’ premises and vehicles in relation to potential breaches of maintenance and mass provisions under the HVNL. In relation to the investigation NHVR Director, Investigations Mr Steve Underwood said:

‘This is a timely reminder to all parties in the heavy vehicle supply chain to ensure they are aware of their responsibilities in relation to heavy vehicle safety’

Serious defects had been identified in heavy vehicles operated by the Tasmanian operators in the past, as such, this case provides an example of the ongoing compliance monitoring that the NHVR undertakes.

The NHVR also announced on 9 October 2019 that it had conducted a national operation in September 2019 inspecting more than 3500 heavy vehicles. Encouragingly, the operation determined that 93% of vehicles inspected were compliant with their permit conditions with an 82.3% compliance rate with the HVNL overall. This was the third national operation of its kind, dubbed ‘Operation Kingsize’, conducted by the NHVR with officers from ten agencies deployed in 142 locations across Australia. This is a significant expansion compared to the 2018 operation which was deployed in only 28 locations.

The NHVR has published the results of the operation with a total of 872 offences recorded with the most common offence relating to failure to carry a permit or required notice under the HVNL.

Offences for breaches of mechanical safety made up 31.8% of recorded offences with breaches of mass, dimension and loading requirements making up 12.8%, 5.2% and 4.8% of offences respectively. In relation to the operation, NHVR Chief Operating Officer Mr Paul Salvati stated that:

‘This year’s operation was also designed to better educate drivers on compliance with 25.9% of intercepts resulting in a warning and information for operators’

The NHVR’s significant expansion of its compliance operations, as well as its commitment to ongoing investigations, is a further reminder to parties in the supply chain to ensure that they are aware of their obligations under the HVNL and the importance of maintaining ongoing compliance.

Review of the HVNL

The National Transport Commission (NTC) is undertaking a review of the HVNL which has been underway since November 2018 and was discussed in our article ‘Can the National Heavy Vehicle Law get any heavier’ (available here). The NTC is currently consulting with Government and industry, with policy options due to be presented to Ministers in November 2020. Specifically, the NTC is reviewing:

  • Risk-based regulation
  • Effective fatigue management
  • Easy access to suitable roads
  • Safe people and practices
  • Vehicle standards and safety
  • Assurance models
  • Effective enforcement

The NTC welcomes comments from the public and industry and has published several issues papers in relation to the above issues which members of the industry may wish to consider. Members of the industry may also wish and are encouraged by the NHVR, to participate in the review and provide their feedback as to how the HVNL could be improved.

The NHVR’s investigations and compliance operations, as well as the current review of the HVNL being undertaken by the NTC, demonstrate the ongoing need for members of the supply chain to actively engage with and ensure their continuing compliance with their obligations under the HVNL.

If you have any questions or would like advice, please contact us.

Disclaimer: This publication contains comments of a general nature only and is provided as an information service. It is not intended to be relied upon as, nor is it a substitute for specific professional advice. No responsibility can be accepted by Rigby Cooke Lawyers or the authors for loss occasioned to any person doing anything as a result of any material in this publication.

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