We have been keeping a close eye on the potential changes to the chain of responsibility in the heavy vehicle national laws (CoR), providing updates on developments as they arise. On 8 July 2015, the National Transport Commission (NTC) released the latest development on this issue with its second discussion paper in relation to CoR, ‘Primary Duties for Chain of Responsibility Parties and Executive Officer Liability’. Submissions to this paper will be open to the public until 7 August 2015.
In March 2015, we provided an update on the NTC investigation into the development of broader duties within CoR by reviewing the submissions to the first NTC discussion paper. The NTC’s investigation was intended to feed into the work undertaken by the Chain of Responsibility Taskforce set up by COAG (Taskforce) which was given until May 2015 to present the preferred CoR duties approach to the Ministers on the Transport and Infrastructure Council of COAG (TIC).
However, the May 2015 TIC meeting media release was silent about the progress of the CoR and executive liability provisions review, what the NTC’s recommendations were (they have since become publicly available) and whether the Ministers had made any decisions in that regard.
Since our last blog article, an NTC media release has confirmed that the transport ministers have given “in-principle support” to reform of the CoR laws to mirror a WHS approach. The NTC is of the view that primary duties for safety will “…ensure better alignment with…” WHS laws by use of a focus on a performance-based approach to responsibilities rather than a prescriptive approach.
In short, the NTC recommendations were that:
- The CoR provisions be consolidated into one chapter of the HVNL allowing more prescriptive obligations and duplication to be eliminated, and consistency of construction achieved;
- A primary duty of care approach be taken for CoR obligations;
- The primary duties be drafted for current parties in the chain (i.e. there will not be any extension of the CoR obligations to new parties); and
- The primary duties will address vehicle safety (in addition to fatigue, speed and mass, loading and dimension).
The second NTC Discussion Paper seeks feedback in relation to the following issues:
- The impact of the primary duties on chain parties and regulators;
- Whether the primary duties’ standard of care should be based on “take all reasonable steps” (the current CoR approach) or “so far as reasonably practicable” (the WHS approach);
- What level of penalties are appropriate for the new primary duty offences (noting that the current penalty ranges for CoR offences are lower than WHS offences); and
- Treatment of executive officers.
The NTC has been asked to provide detailed recommendations to the Ministers at their next TIC meeting on 6 November 2015. Subject to agreement, the NTC propose to draft legislation for the Ministers to consider in May 2016.