Are you a senior manager or Board member of a business in the heavy vehicle supply chain (this includes organisations outside of typical heavy vehicle operators)? If so you may have personal, positive obligations under the Heavy Vehicle National Law.
Changes to the HVNL
In just under 12 months from now (mid-2018), changes to the Heavy Vehicle National Law (HVNL) will commence in all jurisdictions except Western Australia and the Northern Territory. The changes are significant, particularly for Officers of companies involved in the supply chain who will have a positive duty to exercise due diligence in respect of heavy vehicle safety, broadly aligned to the model WHS laws.
In short, the amendments relate to the ‘chain of responsibility’ (CoR) provisions (which extend liability in relation to the safe operation of heavy vehicles beyond typical transport operators to any party with influence or control in the supply chain) and will align the HVNL with the model WHS laws. The key changes are as follows:
The obligations on all CoR participants will reflect the model WHS laws and apply a positive duty of care to ensure the safety of transport activities “so far as reasonably practicable”.
Penalties will be introduced for breaches, similar to the model WHS laws, set at a maximum fine of $3 million for a corporation or $300,000 or five-years imprisonment, or both, for a person (including Officers).
Enforceable undertakings will be available as an alternative to prosecution.
Officers of supply chain participants will have a positive duty to exercise due diligence to ensure the safety of transport activities.
Further changes expected
To support these amendments, in June 2017 Transport Ministers agreed to implement a series of further changes to ‘give teeth’ to the CoR amendments. These changes will include providing police and the Regulator with additional powers to investigate breaches of the HVNL and respond with enforcement action. The key amendments are likely to be:
- broader powers to investigate accidents
- the ability to issue prohibition notices like the model WHS laws
- the ability to direct the inspection of vehicles if they have a reasonable suspicion of systemic maintenance or defect issues
- power for courts to issue injunctions
- allowing the Regulator to publish the outcomes of prosecutions
A draft bill dealing with these matters is in the process of being developed and will be submitted to Transport Ministers for consideration in November 2017. We will keep you updated on its progress.
It also appears that further changes are on the horizon in relation to the obligation on an Officer to ensure that their businesses comply with the HVNL.
What should you do now
Any business involved in the transport of goods via heavy vehicles, even only as a consignor, an unloader or loader of goods, should review the obligations it will have under the HVNL come mid-2018 and provide its workers with the education required to discharge the duty.
Most importantly, Officers of organisations in the supply chain should ensure that they understand the HVNL and how the changes will impact what positive steps they need to take in relation to heavy vehicle safety. As a start, the changes will require all Officers to have a solid understanding of the regulatory regime underpinning the heavy vehicle supply chain in New South Wales.
For further information go to Minter Ellison Partner Harriet Eager on +61 2 9921 4932 or email Harriet.Eager@minterellison.com