AMENDMENTS TO THE HEAVY VEHICLE NATIONAL LAWS: SIMPLIFYING THE LAW, INCREASING THE PENALTIES

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1 AMENDMENTS TO THE HEAVY VEHICLE NATIONAL LAWS: SIMPLIFYING THE LAW, INCREASING THE PENALTIES 22 August 2017 Australia Legal Briefings By Harold Downes and Sam Witton There are upcoming changes to the Heavy Vehicle National Law (HVNL) which will affect all businesses which touch upon or deal with the road transport industry. The changes have been brought about to lessen prescription in the laws, impose risk-based duties, increase consistency with the Model Work Health and Safety legislation and to enable regulators to impose higher penalties. WHAT ARE THE PRACTICAL IMPLICATIONS? RISK ASSESSMENT AND MANAGEMENT The Amendment Act removes detailed lists of reasonable steps from the HVNL. Instead the new law will require duty holders to ensure safety so far as is reasonably practicable. According to the Explanatory Memorandum, this will enable parties to be more innovative in responding to safety concerns. In short, the primary duty will allow parties in the COR to determine themselves how to comply with the primary duty. While this offers parties a greater degree of flexibility in determining how to comply, it will also mean that parties will be required to adopt a risk assessment and management approach to underpin consideration of the controls implemented to ensure safety so far as is reasonably practicable. SIMPLIFICATION The Amendment Act significantly increase the consistency between the HVNL and other safety laws. Parties in the COR will only need to adopt a single set of principles to guide the application and interpretation of the primary duty. This may minimise complexity and difficulty in interpreting COR obligations.

2 INCREASED LEGAL RISK In contrast to the HVNL currently, which contains many prescriptive obligations with comparatively low penalties for breaches, the new primary duty is broadly expressed with comparatively high penalties. Currently, the regulator must lay many charges in relation to breaches of the HVNL against a party in the COR in order to impose significant penalties. After commencement of the substantive provisions of the Amendment Act, the regulator will have the ability to lay a single charge in relation to a single breach of the primary duty against a COR party and seek significant penalties. This is likely to result in higher penalties in prosecutions for breaches of the HVNL. OVERVIEW Currently, the HVNL imposes a broad range of prescriptive obligations on parties in the heavy vehicle Chain of Responsibility (COR), including consignors, consignees, schedulers, packers, loaders, operators and employers. For example: Companies in the goods manufacturing and retail industries will generally have both inbound duties as consignees ordering goods to be delivered to their facilities, as well as outbound duties as consignors ordering goods to be delivered to customers. Companies in these industries may also have duties under the HVNL as schedulers. Companies in the construction and energy industries will have inbound duties as consignees arising in respect of delivery of materials by heavy vehicle to their sites. Companies in the transport industry which operate heavy vehicles will necessarily have duties under the HVNL as operators, employers and schedulers. The upcoming changes to the HVNL move away from a prescriptive approach to heavy vehicle obligations in favour of imposing a broader duty on each COR party to ensure, so far as is reasonably practicable, the safety of the party s transport activities relating to the vehicle. This marks a significant change in the regulation of heavy vehicles in Australia. It will require COR parties to determine themselves how to comply with their obligations by adopting a risk assessment and management approach. This document summarises the upcoming changes, the nature of new obligations, the new penalty regime and the practical implications for parties in the COR. AMENDMENTS TO THE HVNL The Heavy Vehicle National Law and Other Legislation Amendment Act 2016 (Qld) (Amendment Act) received royal assent on 9 December The commencement date for the substantive provisions of the Amendment Act is yet to be fixed by proclamation. However, it is expected that these will commence during On 6 November 2015, the National Transport Council noted that a 12 month period would be required

3 from the date of passage of the Heavy Vehicle National Law and Other Legislation Amendment Bill 2016 to the commencement of the substantive amendments to allow industry and regulators sufficient time to adjust. The amendments will be automatically adopted in all other participating jurisdictions through each jurisdiction s application legislation. WHAT S CHANGING? DUTIES (COR PARTIES) Obligations on all current COR parties are reframed under the Amendment Act into an overarching and positive duty of care, similar to the primary duty owed under the Model Work Health and Safety Act. Each party in the COR will have a primary duty to ensure the safety of their transport activities so far as reasonably practicable. The new primary duty will become section 26C of the HVNL and is drafted as follows: 26C Primary duty 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. Without limiting subsection (1), each party must, so far as is reasonably practicable eliminate public risks and, to the extent it is not reasonably practicable to eliminate public risks, minimise the public risks; and ensure the party s conduct does not directly or indirectly cause or encourage the driver of the heavy vehicle to contravene this Law; or the driver of the heavy vehicle to exceed a speed limit applying to the driver; or another person, including another party in the chain of responsibility, to contravene this Law. 3. For subsection (2)(b), the party s conduct includes, for example the party asking, directing or requiring another person to do, or not do, something; and the party entering into a contract with another person for the other person to do, or not do, something; or that purports to annul, exclude, restrict or otherwise change the effect of this Law.

4 The primary duty is expressed broadly. It replaces many specific and prescriptive obligations under the current HVNL, such as those under Chapter 5 (Vehicle operations speeding). In contrast to the primary duty, the current duty to ensure business practices will not cause a driver to exceed the speed limit (s.204), is expressed as follows: A relevant party for the driver of a heavy vehicle must take all reasonable steps to ensure the relevant party s business practices will not cause the driver to exceed a speed limit applying to the driver. Examples of reasonable steps regular consultation with other parties in the chain of responsibility, unions and industry associations to address compliance issues reviewing driving, work and trip records a program to report and monitor (for example, by GPS tracking) incidents of speeding and related risks and hazards training and information about speeding for drivers of heavy vehicles, staff and parties in the chain of responsibility for heavy vehicles (within the meaning given by section 214) regular maintenance of vehicle components that relate to complying with speed limits (for example, speedometer, engine management system and speed limiters) Chapter 5 in its entirety will be omitted from the HVNL. Many specific duties, such as s.204 above, will be replaced by the primary duty. The reasonable steps defence will also be omitted and cease to be available after the amendments commence. Categories of offences Offences in respect of the primary duty have been hierarchised into 3 categories, adopting the same approach as the Model WHS Act. A person will commit a category 1 offence if: 3. The person has a duty under s.26c, the person, without a reasonable excuse, engages in conduct related to the duty that exposes an individual to a risk of death or serious injury or illness, and the person is reckless as to the risk. Under the Amendment Act the prosecution bears the onus of proving that the conduct was engaged in without reasonable excuse. Shared responsibility The Amendment Act provides that each party in the COR must share responsibility for the safety of transport activities. However, the level and nature of a person s responsibility will depend on:

5 the functions the person performs or is required to perform, whether exclusively or occasionally, rather than the person s job title, or the person s functions described in a written contract, and the nature of the public risk created by the carrying out of the transport activity, and the party s capacity to control, eliminate or minimise the risk: (s.26a). Consistent with the concept of shared responsibility, the Amendment Act also provides that more than one person can concurrently have a duty under the HVNL in relation to the same matter. Each person must discharge their duty in relation to the matter to the extent to which that person: has the capacity to influence and control the matter, or would have had that capacity but for an agreement or arrangement purporting to limit or remove that capacity: (s.26b). DUTIES OF EXECUTIVES The Amendment Act imposes on executives of legal entities to which the primary duty applies a duty to conduct due diligence. The new duty is framed as follows: 26D Duty of executive of legal entity (1) If a legal entity has a duty under section 26C, an executive of the legal entity must exercise due diligence to ensure the legal entity complies with the duty. (3) In this section due diligence includes taking reasonable steps to acquire, and keep up to date, knowledge about the safe conduct of transport activities; and to gain an understanding of the nature of the legal entity s transport activities; and the hazards and risks, including the public risk, associated with those activities; and 3. to ensure the legal entity has, and uses, appropriate resources to eliminate or minimise those hazards and risks; and

6 4. to ensure the legal entity has, and implements, processes to eliminate or minimise those hazards and risks; and for receiving, considering, and responding in a timely way to, information about those hazards and risks and any incidents; and for complying with the legal entity s duty under section 26C; and 5. to verify the resources and processes mentioned in paragraphs (c) and (d) are being provided, used and implemented. executive, of a legal entity, means 3. for a corporation an executive officer of the corporation; or for an unincorporated partnership a partner in the partnership; or for an unincorporated body a management member of the body. Executives may be found liable for a breach of their duty to conduct due diligence even where the corporation has not been proceeded against for, or convicted of, an offence relating to the duty to comply with s.26c. The maximum penalty for a breach of the executive s due diligence duty is the same as the penalty for contravention by an individual (see part 4 below). PENALTIES Penalties for offences will increase significantly under the Amendment Act. A breach of the primary duty may attract the following maximum penalties: Breach Penalty (corporation) Penalty (individual) Category 1 (element of recklessness) $3,000,000 $300,000 or 5 years imprisonment (or both) Category 2 (exposure to risk of death or serious injury) $1,500,000 $150,000 Category 3 (breach with no such risk) $500,000 $50,000

7 KEY CONTACTS If you have any questions, or would like to know how this might affect your business, phone, or these key contacts. HAROLD DOWNES PARTNER, BRISBANE Harold.Downes@hsf.com LEGAL NOTICE The contents of this publication, current at the date of publication set out above, are for reference purposes only. They do not constitute legal advice and should not be relied upon as such. Specific legal advice about your specific circumstances should always be sought separately before taking any action based on this publication. Herbert Smith Freehills 2017 SUBSCRIBE TO STAY UP-TO-DATE WITH LATEST THINKING, BLOGS, EVENTS, AND MORE Close HERBERT SMITH FREEHILLS LLP 2017