Public comment is requested on a proposal to introduce positive due diligence provisions on officers by the National Transport Commission in relation to the chain of responsibility provisions in the new Heavy Vehicle National Law.
An options paper, “Chain of Responsibility Review Assessment of Options Paper” (Options Paper) has been released for public comment due to industry stakeholders expressing concerns that the chain of responsibility provisions in the new Heavy Vehicle National Law (HVNL) does not identify all entities that exert influence on on-road activities. Chain of responsibility provisions are designed to ensure that any party in a position to control, influence or encourage road activities for heavy vehicles is identified and held accountable.
On 14 September 2012, the Australian Trucking Association, Australian Logistics Council and Australian Livestock and Rural Transporters Association jointly wrote to the Commonwealth and State Ministers, requesting that chain of responsibility and executive officer liability provisions in the HVNL be redrafted to be consistent with the affirmative duties in the uniform Work Health and Safety Acts (WHS Acts).
The purpose of the Options Paper is to provide a platform for the examination of options proposed by stakeholders in response to the questions posed in the chain of responsibility Review Issues Paper published in July 2013. The Options Paper summarises the feedback and options submitted by stakeholders in response to particular issues and examines the pros and cons of adopting each option under the HVNL. It is envisaged that the Options Paper will form the basis for consultation with regulatory bodies and industry groups. The Options Paper is not intended to reflect any final agreements or recommend any changes to the chain of responsibility framework or related areas. That stage of the review has not yet been reached.
Options for public comment
The Options Paper proposes the following options for comment:
- Adopting a provision similar to section 28 of the WHS Acts in the HVNL to create a duty for workers to “ensure their own health and safety and that of others”;
- Amending the HVNL to adopt the WHS Acts’ overarching general duties to ensure health and safety provisions;
- Changing the reasonable steps defence for extended liability offences so that the onus of proof rests with the prosecution;
- Adopting a “positive duty of due diligence” for executive officers;
- Redraft the specific duty provisions that relate to vehicle standards to ensure that parties that have influence over vehicle standards take reasonable steps to ensure breaches do not occur;
- Clarify the responsibilities of individual parties in the chain of responsibility and outline how they can ensure that they are complying with their obligations;
- Broadening the powers of authorised officers/inspectors to enter worksites and obtain documents;
- Adopting enforcement options such as officer-issued prohibition notices, court-ordered adverse publicity orders, injunction orders, restoration orders and enforcement undertakings;
- Reducing penalties for extended liability offences but increasing penalties for chain of responsibility breaches to match those imposed under the WHS Acts;
- Amending the status of codes under the HVNL so that compliance with the codes equates to compliance with the obligations in the HVNL;
- Assessing the application of the reasonable steps defence to the chain of responsibility provisions or create a requirement for authorised officers to consider whether a reasonable steps defence might be sustained before proceeding with a prosecution;
- Defining overlapping areas, obligations and responsibilities under the HVNL to avoid overlap with the WHS Act;
- Amending the HVNL to reflect the position that the WHS Acts will take precedence over the HVNL in the event of overlapping obligations; and
- Recognition that compliance with duties under one regime constitutes compliance with other regimes.
Who does this affect?
The HVNL affects all entities that exert influence on on-road activities of heavy vehicles operating in all States and Territories except WA. The following parties have specific duties under the HVNL – the operator/manager/scheduler, consignor/consignee, loading manager/loader/packer, driver/owner-driver.
The HVNL does not yet apply in WA, however the provisions will apply where heavy vehicles are crossing out of WA borders into another State or Territory. It should be noted that similar chain of responsibility provisions have been enacted in the Road Traffic (Vehicles) Act 2012 (WA) and theRoad Traffic (Administration) Act 2008 (WA) in relation to loads on vehicles, but does not include equivalent speed and fatigue provisions that apply to under HVNL. Therefore, at present the Options Paper does not affect WA, but it remains possible that it will if WA adopts the nationalised WHS Act.
The addition of positive duties of due diligence will mean that there is an onus on officers to demonstrate that they have taken reasonable steps to ensure the company has complied with the chain of responsibility provisions with the potential for jail terms or significant fines to be imposed in the event of an incident occurring where it can be demonstrated that the chain of responsibility requirements have been breached.
What do you need to do?
Submissions on the appropriateness of the options presented in the Options Paper need to be submitted by 14 March 2014.
Stakeholders should provide appropriate rationale and evidence supported by detailed examples and scenarios in their submission. Any submissions should include:
- Identification of areas where there may be deficiencies that require amendment in the current regime;
- Illustration of the extent of those deficiencies;
- An overview of how adopting an option or proposal will enhance the existing chain of responsibility regime; and
- Consideration of the impact on regulators or industry of not making the change.