A majority of submissions to the National Transport Commission’s Duties Review Discussion Paper (NTC Discussion Paper), received in January and February 2015, have provided tentative support to amending chain of responsibility legislation in order to mirror the work health and safety legislative approach. While the views in the submissions to the NTC Discussion Paper differ, and many are contingent upon further investigation taking place, these initial findings show that there is a willingness for reform to take place similar to what we experienced with WHS. If changes to chain of responsibility laws were to proceed along these lines, it could mean that parties beyond those currently nominated in the legislation will be captured by the legislation and have duties in relation to heavy vehicle safety.
Brief history of reviews to date
Following a COAG decision to set up a taskforce review of the Heavy Vehicle National Law’s chain of responsibility (CoR) and executive liability provisions, an options paper was produced in February 2014 (Options Paper) by the Chain of Responsibility Taskforce (Taskforce). The Taskforce then prepared a Chain of Responsibility Review Taskforce Report dated June 2014 (Taskforce Report). After analysing the 18 submissions received in response to the Options Paper, the Taskforce Report recommended (amongst other things) that the NTC establish a process to investigate development of broader duties within the chain of responsibility legislation. This led directly to the NTC Discussion Paper issued in November 2014.
The NTC Discussion Paper
The Discussion Paper set out four main options for reforming the CoR duties by:
- revising the legislation to take a similar approach to WHS legislation by including an overarching primary duty of care which might have the effect of causing the legislation to apply to a wider range of parties;
- amending the current legislation to include an overarching duty to be inserted into each of the chapters;
- amending the current legislation to add specific duties to ‘fill gaps’ but keeping the current approach; and
- not making any legislative change but rather to focus on education, further guidance material and operational guidelines.
Of the submissions received, a majority supported amending the CoR provisions and most of those were comfortable with using the WHS approach to both the overarching primary duty of care and the term “so far as reasonably practicable”. The National Heavy Vehicle Regulator is one of the parties who support the first option involving reform of the CoR legislation and adoption of the WHS approach to an overarching primary duty. It is important to note that the majority’s support was predicated on a need for further investigation and provision of the detail around the proposed duties. The Australian Logistics Council was one of few respondents who did not support the first option at all (whether or not further investigation or detail was provided). It was of the view that “more emphasis should be placed on explaining the current legislation”.
The Taskforce were given until May 2015 to present the preferred approach to CoR duties to the Ministers on the Transport and Infrastructure Council. It remains to be seen what the Taskforce’s recommendations will be but it appears that the parties involved in investigation and enforcement of CoR provisions and those on the other end of that equation share an appetite for reform that mirrors the WHS approach.