Provisions in the Heavy Vehicle National Law (HVNL) concerning load restraint requirements are relatively black and white. They provide that:
- a person must not drive a heavy vehicle that does not comply with loading requirements
- it is evidence that a load was not properly secured where it falls off a heavy vehicle
- it is evidence that a load was incorrectly placed, secured or restrained where it was restrained in a manner inconsistent with the National Transport Commission (NTC) Load Restraint Guide
- where a load restraint contravention arises other Chain of Responsibility (CoR) parties may also be held liable
- the maximum penalty for a severe breach of load requirements is $10,000 under the current HVNL and up to $3 million under the amended HVNL.
Issues for CoR parties transporting livestock include: 'What should be done with effluent generated in transit which does not so easily fit into the tick-box approach that may be applied to restraining other types of goods in transport?' and 'Who should be responsible for the restraint of this by-product where it is generated?'
The NTC's recent discussion paper Effluent and load restraint (NTC Paper) attempts to grapple with these regulatory grey areas. It acknowledges that restraint requirements, enforcement policies and heavy vehicle guidelines concerning the restraint of effluent have fallen short of addressing the practicalities of transporting livestock.
These shortcomings in the regulatory framework are demonstrated by:
- the fact that effluent was only first mentioned in the 2018 Load Restraint Guide (it was not earlier considered to be a load type that could be restrained)
- the tendency to penalise drivers and operators for effluent spills when they may have less control than other CoR parties over the likelihood of effluent being produced during transit (such as farmer/consignors who may overfeed livestock resulting in the increased effluent)
- the strict application of standards to small and minor spills "that pose no safety or environmental issue".
In a sense, the strict application of restraint standards to minor spills is contrary to the underlying purposes of the HVNL which are not to penalise CoR parties for incidents inconsequential to driver, road and environmental safety and for accidents outside their sphere of influence.
Why are effluent controls important?
Insufficient effluent controls pose a risk to road and driver safety, public health, environmental contamination, animal welfare and biosecurity.
To avoid these risks there are various regulatory schemes and industry standards guiding transport practices for livestock. These include, the 2018 Load Restraint Guide, Australian Animal Welfare Standards, and Guidelines for the Land Transport of Livestock and the Australian Livestock Transporters Association's Stock Preparation Pre-Transport Guide.
Why spillage can arise in controlled environments?
Even the best industry practices for the transportation of livestock cannot eliminate all chances of effluent spills. The generation of waste is an inherent possibility for the transportation of any live animal.
In 2015 Farm Online reported on the potential inequities resulting from the strict application of the restraint requirements when Martins Stock Haulage was fined $350 plus legal costs following a company roll out of effluent tanks across half its fleet and where the magistrate apparently "deemed the driver had done all he could to contain the load" (Simone Norrie, A Fine Mess).
The NTC Paper identified a case study where a driver was issued a penalty notice for $307 when dry cow effluent was detected on the side of a crate 15 minutes from where the cattle were loaded onto his truck. On appeal the operator argued that "due to animal welfare standards it was impossible to completely fill the sides of the livestock crates and still have sufficient ventilation." The fine was withdrawn. The case demonstrates how potentially conflicting regulatory frameworks and inherent factors of transporting live animals can render certain load restraints impracticable.
Industry bodies such as the Australian Livestock and Rural Transporters and Tasmanian Livestock Transporters Association identify that risks of effluent spills are exacerbated by the lack of or costly access to appropriate effluent dumping facilities on transport routes.
What will the NTC be doing?
The NTC Paper proposes the modifications to the HVNL and Load Restraint Guide to clarify CoR parties' responsibilities for livestock transportation in respect of minor, incidental and unavoidable effluent spills:
- amending the definition of CoR parties to include a person who prepares live animals for transport
- making the requirement for drivers not to drive a vehicle in breach of restraint requirements subject to the "so far as reasonably practicable" test and including parties preparing animals for transport into the CoR parties which may also be liable for restraint breaches
- making the minor, incidental or unavoidable escape, release or discharge of part of a load, including the discharge of effluent, an exception to the presumption that where a load has fallen it is evidence that the load was not properly secured.
The NTC Paper is certainly a step in the right direction to addressing the uncertainties surrounding restraining livestock effluent. CoR parties should keep their eye on this space for new amendments.
This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.