Any Australian business which has its goods transported by heavy vehicles, or is involved in that transport, will likely be subject to the new Heavy Vehicle National Law (National Law), now being progressively introduced into most Australian States and Territories.
A central element of the new National Law is the continuation of the road transport ‘chain of responsibility’ concept. This operates to require that all participants in the road transport chain take steps to ensure safety over key areas of compliance.
These duties extend beyond trucking or logistics companies and will likely capture participants in the manufacturing, retail, construction and stevedoring industries, as well as intermodal transport operators who will also form part of the 'chain'. This means that the introduction of the new National Law will affect most major Australian businesses.
Businesses should consider the new National Law and take steps to ensure that their systems of work relating to the transport of their goods, or the operation of heavy-vehicles in participating jurisdictions will provide a sound basis for complying with all relevant duties and obligations.
New Heavy Vehicle National Law
The National Law will apply to all parties in the heavy vehicle road transport chain – from businesses whose goods are being transported, to those receiving them, as well as those with responsibility for loading or delivering them.
A central element of the National Law is the continuation of the road transport ‘chain of responsibility’ concept. This operates to require that all participants in the road transport chain take steps to ensure safety over key areas of compliance. These duties will therefore extend beyond trucking and logistics companies to participants in the manufacturing, retail, construction and stevedoring industries as well as intermodal transport operators who will also form part of the ‘chain’. As a result, the introduction of these new laws will affect most major Australian businesses.
The National Law commenced (in whole or in part) in Queensland, New South Wales, Victoria, South Australia, Tasmania and the Australian Capital Territory on 10 February 2014. The Northern Territory has also committed to adopting the National Law at a later date. Western Australia is not expected to adopt the National Law at all and so the regulation of heavy vehicles in that state will continue under existing arrangements (although, some new ‘chain of responsibility’ laws are due to commence operation in Western Australia in March 2014).
The proposed timetable for commencement of the National Law is summarised in further detail below.
Overview of the National Law
The National Law builds on historical attempts to ‘harmonise’ regulation in this area, under the existing or previous road transport regulation. However, while these existing or previous laws went some way towards national consistency, it remained a reform objective for the Australian Governments and the National Transport Commission to better align and standardise these laws across state boundaries – regulating an area of genuine interstate trade.
The commencement of the National Law will therefore mark a second wave of harmonisation of regulation in the heavy vehicle industry. The intention of the National Law is to achieve consistency of regulation for heavy vehicles across Australia. To achieve that objective, key features of the National Law include the establishment of:
- a single and independent National Heavy Vehicle Regulator (National Regulator), which has been charged with responsibility for administering the National Law and facilitating a more nationally-consistent approach to compliance,
- a single set of rules for heavy vehicles in all participating jurisdictions, covering:
- vehicle standards and maintenance,
- arrangements to ensure that drivers are not permitted, or encouraged, to speed,
- arrangements relating to the permissible mass and dimension of loads and the way in which they are restrained on vehicles, and
- arrangements for the management of the rest and work periods for drivers, so as to reduce the risks associated with driver fatigue.
- A nationally consistent system of accreditation for mass management, maintenance management and driver fatigue management.
What will change with commencement of the National Law in participating states?
The first stage of implementation of the National Law saw the establishment of the National Regulator on 21 January 2013. Since that time the National Regulator has been administering the following aspects of the National Law in relevant jurisdictions:
- the National Heavy Vehicle Accreditation Scheme which provides for a national accreditation system, and
- Performance-Based Standards Scheme which administers vehicle design approvals on a national basis.
From 10 February 2014, the National Regulator will also be responsible for administering a single set of nationally-consistent rules and standards in each of the participating jurisdictions.
This includes duties commonly referred to as ‘chain of responsibility’ obligations. Chain of responsibility laws are intended to hold all parties in the logistics supply chain (including consignors, loaders, packers, operators, employers, prime contractors, schedulers and consignees) responsible for breaches of road transport laws relating to:
- speed limits applicable to the vehicle,
- mass, dimension and load requirements applicable to the vehicle and load, and
- fatigue management requirements.
Generally, compliance with chain of responsibility laws will require duty holders to demonstrate that they have taken ‘reasonable steps’ to prevent breaches (including those committed by drivers and other parties) of road transport laws. Developing a system which is capable of demonstrating these ‘reasonable steps’ often requires co-ordination and risk management activities over different parts of the business and consideration of how the business will interact with and rely on other members of the chain. We have assisted a number of clients in the development or review of these systems.
Chain of responsibility laws therefore apply to those businesses that include road transport logistics operations as well as any business that arranges for their goods to be moved by road in any of the participating jurisdictions. Many business are likely to be responsible for a number of ‘links’ within the supply chain.
Importantly, the National Law also imposes legal liability for such breaches on ‘Executive Officers’ of those organisations. This area of legal compliance remains a matter which senior leaders within businesses need to understand and in relation to which they will need to verify compliance.
What will not change with the commencement of the National Law?
State and Territory police and authorised officers in each of the participating jurisdictions will continue to enforce heavy vehicle offences under the National Law, however for the immediate future they will do so ‘on behalf of’ the National Regulator under interagency service agreements.
This arrangement is expected to achieve a more consistent compliance approach among participating jurisdictions.
In time, these functions may be assumed directly by the National Regulator.
Some matters are not intended to be covered under the National Law. In particular, vehicle licensing, driving under the influence of alcohol or drugs and dangerous goods will continue to be administered in accordance with local laws at the state or territory level.
Although the National Law proposes to introduce a national system of registration for heavy vehicles, the commencement of these provisions has been delayed (until approximately 2015). For now, registration of heavy vehicles will continue to be managed under existing local requirements.
Overview of Commencement Arrangements by Jurisdiction
Click here to view table.
What should businesses do to get ready for the commencement of the National Law?
Those businesses with operations involving the movement of goods by road in any of the participating jurisdictions should (if they have not already):
- review their business activities to identify all operations that may give rise to an obligation under the National Law and identify any particular duties that may be owed (e.g. as a consignor of goods or as a heavy vehicle fleet operator etc.),
- hold briefings on these changes for senior leaders and directors,
- review any existing compliance arrangements and assess whether they will provide a sound basis for asserting compliance with any applicable requirements owed under the National Law, and
- where necessary, update existing arrangements or implement new measures to achieve compliance. This may require consultation with other parties in the supply chain to identify appropriate measures, updating contracting arrangements with third parties, making changes to existing operating procedures (such as fitness for work arrangements) or providing updated training or information to employees or contractors regarding the duties owed and compliance arrangements in place.