On 1 September 2013, the Heavy Vehicle National Law commenced in all Australian states except Western Australia for all vehicles over 4.5 tonnes gross vehicle mass. This is the most significant road transport reform Australia has seen with up to eight different sets of legislation being repealed and replaced with one set of national rules administered by the National Heavy Vehicle Regulator. Partner, Frazer Hunt and Senior Associate, Maurice Lynch discuss the new law.
One of the main focuses of the National Heavy Vehicle Regulator is to increase activity in compliance and enforcement of chain of responsibility. The chain of responsibility provisions of the Heavy Vehicle National Law mean that if you consign, pack, load or receive goods as part of your business, you could be held legally liable for breaches of road transport laws even though you have no direct role in driving or operating a heavy vehicle.
The purpose of chain of responsibility is to make sure all participants in the supply chain share equal responsibility for ensuring that breaches of road transport laws do not occur. If you exercise control or influence over any transport task, you have responsibility to ensure compliance with the National Heavy Vehicle Law. Failure to comply can result in criminal prosecution. Some examples of breaches of the National Heavy Vehicle Law which the chain of responsibility applies to are as follows:
- A heavy vehicle driver breaches fatigue management requirements or speed limits.
- A heavy vehicle driver breaches mass, dimension or loading requirements, for example transporting an overweight container or not preparing an accurate Container Weight Declaration to accompany the transportation of a container.
- Issuing instructions, actions or demands to parties in the supply chain which make, cause or contribute to an offence under a road transport law.
- Providing incentives to people in the supply chain to break the Heavy Vehicle Law.
Once there has been a breach of a Heavy Vehicle Law, the prosecuting authority will consider the actions of all participants in the supply chain and what procedures they have in place to prevent breaches of road transport law occurring. Each party in the supply chain must take "all reasonable steps" to ensure a heavy vehicle driver can perform their duties without breaching a Heavy Vehicle Law.
If "all reasonable steps" have been taken and there are no other reasonable steps which could have been taken to prevent the breach of the Heavy Vehicle Law, then a prosecution under chain of responsibility will not be possible despite a breach of a Heavy Vehicle Law. Needless to say "all reasonable steps" will require companies to alter their procedures to ensure that they have a risk identification, risk assessment and risk control methods and practices to prevent breaches of a Heavy Vehicle Law. Such methods and practices will be different for each party involved in the supply chain.
Each breach of the Heavy Vehicle Law will be categorised as either a minor, substantial, severe or critical breach. The categorisation of offence will determine what penalties will apply for the breach, and whether you have a defence to the breach. For example, if you are a driver or operator and you have committed a substantial or severe risk breach, unless the breach is in relation to a Container Weight Declaration offence, you do not have a "reasonable steps" defence for any mass, dimension or load restraint breach.
In relation to the penalties, there are three types of penalties that can apply and these are as follows:
- Infringeable offences that involve the election to pay a penalty, or have a matter heard before a court.
- Court imposed penalties for offences which can only be dealt with by a court.
- Demerit points for the specific driver in question.
Compared with the previous regime, some penalties are higher, some lower, and some remain the same. However, the key change is that each of the penalties apply uniformly in each Australian State and Territory.
There will be consistent enforcement of the chain of responsibility regime across the country by the Heavy Vehicle Regulator.