The purpose of the Bill
On 1 December 2016, the Queensland Parliament passed the Heavy Vehicle National Law and Other Legislation Amendment Bill 2016 which will be to be incorporated within the uniform national law, Heavy Vehicle National Law (HVNL).
The HVNL regulates the use of heavy vehicles. All Australian states and territories with the exception of Western Australia and the Northern Territory are participating jurisdictions for the purposes of the HVNL.
The rationale for the amendment was to allow for a more flexible approach to compliance with ‘Chain of Responsibility’ by providing an overarching and positive duty of care consistent with the duty of care approach adopted in other national safety laws.
Each party in the chain of responsibility has a primary duty of care to ensure the safety of their transport activities ‘so far as reasonably practicable’.
An implementation period has been proposed that will see these reforms come into effect in midway through 2018.
A primary duty is to eliminate public risks and, to the extent it is not reasonably practicable to eliminate public risks, to minimise public risks. It is also important the party’s conduct does not directly or indirectly cause or encourage the driver of the heavy vehicle to contravene this law.
Parties (Chain of Responsibility)
The level and nature of a party’s responsibility for a transport activity depends on the functions the person performs or is required to perform rather than the person’s job title or those which are described in the person’s job description. The following parties are considered to have a primary duty of care:
(a) if the vehicle’s driver is an employed driver—an employer of the driver;
(b) if the vehicle’s driver is a self-employed driver—a prime contractor for the driver;
(c) an operator of the vehicle;
(d) a scheduler for the vehicle;
(e) a consignor of any goods in the vehicle;
(f) a consignee of any goods in the vehicle;
(g) a packer of any goods in the vehicle;
(h) a loading manager for any goods in the vehicle;
(i) a loader of any goods in the vehicle;
(j) an unloader of any goods in the vehicle.
What is ‘so far as reasonably practicable’?
Reasonably practicable, in relation to a duty, means that which is, or was at a particular time, reasonably able to be done in relation to the duty, weighing up all relevant matter, including the likelihood of a safety risk, or damage to road infrastructure happening including the harm that could result from the risk or damage.
It also includes what the person knows, or ought reasonably to know, about the risk or damage and about the ways of removing or preventing the risk or preventing or minimising the damage.
Costs are also taken into consideration including whether the cost is grossly disproportionate to the likelihood of the risk or damage.
Breaches of Primary Duties
Category 1 offence
A party has a primary duty and without a reasonable excuse, engages in conduct that exposes an individual to a risk of death or serious injury or illness, and is reckless to the risk.
The penalty is $300,000 or 5 years imprisonment, or both for an individual and $3 million for a corporation.
Category 2 offence
Where a party has a primary duty, breaches the duty and thereby exposes an individual, or class of individuals, to a risk of death or serious injury or illness.
The penalty is $150,000 for an individual and $1.5 million for a corporation.
Category 3 offence
Where a party has a primary duty and breaches that duty.
The penalty is $50,000 for an individual and $500,000 for a corporation.
The law has introduced the Chain of Responsibility concept which is designed to drive greater accountability along the various parties involved during the transport process and its various functions. However in order to ensure compliance, it is necessary to educate employees on the new law as well as providing them with the knowledge and skills to use as evidence in the event of an incident to show that the person took all reasonable steps to prevent the contravention.