The amendments to the Heavy Vehicle National Law (HVNL) have now passed through Queensland Parliament (the host jurisdiction). The National Transport Commission has announced that the amended HVNL is expected to take effect in “early to mid-2018”.
The HVNL seeks to ensure the safe and efficient use of heavy vehicles on roads by all parties in the supply chain by ensuring that each and all of those parties are legally responsible for complying with the law.
The key changes are:
- Reformulation of most existing obligations as “primary duties”, meaning that all parties will have a primary positive duty of care so far as reasonably practicable to ensure the safety of heavy vehicle road transport operations, including the risks of speed, fatigue and mass, dimension and loading;
- The penalties for the most serious breaches of these primary duties will be consistent with the model, work health and safety laws;
- Introduction of positive executive officer due diligence obligations in line with safety legislation and to complement existing executive officer liability provisions and remove the reverse onus of proof; and
- Replacement of the current “all reasonable steps” defence with a requirement in relation to the primary duty that all parties be able to show that they did what was “reasonably practicable” to prevent or avoid the breach. This means the onus is on the prosecutor to show what reasonably practicable steps were not taken in relation to the primary duty.
What are the legal implications of these changes?
The amendments will not change the persons covered by the legislation.
However, you should be aware that as the changes are intended to be complementary to safety laws, “reasonable practicability” is likely to be interpreted similarly to the term under the model work, health and safety legislation, except in the context of heavy vehicle road transport operations. This means the duties of each party in the supply chain will, depending on the circumstances of each case, include the likelihood of the hazard or risk, the degree of harm that might result, what a party ought to have known about the hazard or risk and how to minimise it, the means of minimising any risk and the costs associated with taking such steps (including whether the costs are grossly disproportionate to the risk).
The due diligence obligations of executives include the requirements to take reasonable steps to acquire and keep up to date knowledge about the safe conduct of transport activities and take reasonable steps to ensure a business has, and implements, processes for eliminating or minimising risks.
What does this really mean?
In practical terms, the proposed reforms to the HVNL will make defending a prosecution for breach of the primary duties easier because the onus of proof is changed and compliance will be easier because of consistency with work, health and safety laws, but it means it is more important than before to document all positive reasonably practicable steps taken by your organisation to comply with laws (for example, conducting safety audits and inspections, providing training and conducting regular maintenance checks, developing and carrying out a safety management plan and ensuring those down the supply chain are doing the same). While the changes may result in clarifying certain obligations given the considerable guidance material and case law to explain the application of the test under safety laws, they are also likely to result in less of a prescriptive “check the box” approach towards compliance. The changes also mean that the maximum penalties include imprisonment for individuals and more significant monetary penalties for both individuals and corporations.