The Heavy Vehicle National Law and Other Legislation Bill 2016 was introduced into Queensland parliament on 13 September 2016 and looks to amend the Heavy Vehicle National Law. The Bill was referred to the Transport and Utilities Committee for comment by 1 November 2016.
The proposed law will apply in Queensland, Victoria, New South Wales, South Australia, Tasmania and the Australian Capital Territory. The amendment is made as part of the move towards greater consistency with other national safety legislation.
The explanatory notes of the Bill contemplate the commencement of the amendments 12 months following its passage. This period is intended allow industry and regulators sufficient time to adjust to the amendments.
The key changes
The Bill proposes a number of significant changes.
Perhaps most noteworthy is the primary duty which requires that ‘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.’
The primary duties include eliminating public risks to the extent reasonably practicable, and not causing or encouraging a driver or other person in the Chain of Responsibility to exceed the speed limit or contravene the law.
The ‘reasonably practicable’ requirement will replace the existing requirement to take ‘all reasonable steps’, consistent with Victoria’s Occupational Health and Safety Act and Rail Safety National Law. The practical effect of this change is that individuals and businesses involved in the Chain of Responsibility must satisfy a standard that requires more proactive consideration of risks and safety measures. Whereas previously a charge could be defeated if it could be shown that reasonable steps were taken to avoid an incident occurring, under the reform the person charged must satisfy a court it fulfilled its primary duty.
In addition, the Bill gives enforcement agencies greater powers. An authorised officer will be able to compel a person to provide information in relation to a possible contravention of a duty or to enforce compliance with a duty.
Moreover, there will be greater options for persons in contravention of the law, in particular voluntary enforceable undertakings will be available as an alternative for contraventions of the new law (except for a ‘category 1 offence’, which concerns recklessly exposing an individual to a risk of death or serious injury or illness).
There are a number of penalties under the proposed law which range from $50,000 for a relatively minor breach by an individual up to $3 million for a reckless breach of duty by a corporation creating a risk of death or serious injury or illness. The latter can also result in a prison term up to 5 years for an individual.
The existing reverse burden of proof will be changed to the more conventional burden of proof whereby the prosecuting authority must establish that reasonable diligence was not exercised.
Who is responsible?
Under the Bill, those caught within the Chain of Responsibility remain largely the same as the current law, expressly including a driver’s employer, a prime contractor if the driver is a self-employed, a vehicle operator, a scheduler of a vehicle, a consignor or consignee of any goods in the vehicle, a packer of any goods in the vehicle, a loading manager, a loader, and an unloader.
The primary duty must be upheld by the business and its employees, but also the executives within those businesses in a personal capacity. This applies to executive officers of corporations, partners of partnerships and managers of unincorporated bodies. The executives are held to have committed the same offence as their business entity unless they can prove that they exercised reasonable diligence to ensure that the business did not engage in the relevant offending conduct. However, the liability of executive officers will no longer be limited to circumstances where a corporation has contravened the national heavy vehicle law. In addition, executive officers may be prosecuted for breaching the primary duty even if the corporation has not.
How to prepare
The proposed laws place a greater emphasis on policies and practices as this will inform what is ‘practicable’ in the circumstances. Therefore businesses and individuals should develop or revise their safety and risk management policies accordingly. Rigby Cooke can review your policies and procedures and provide a risk analysis for you and your company.
This article originally appeared in the Spring 2016 edition of InTransit. Other articles in this newsletter included:
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