The only potential defence to a breach of the Heavy Vehicle
National Law (HVNL) is to show that you took 'all reasonable
steps' to prevent the relevant breach.
The first step is to identify any likely breaches, i.e. risks,
and to develop and implement appropriate measures to prevent or
mitigate those risks. This article will provide guidance on how to
approach and document this risk assessment.
Some of the factors that a court may consider in assessing
whether you have taken 'all reasonable steps' include
taking steps to:
prevent, manage, minimise or eliminate the likelihood of a CoR
breach or risk to public safety occurring;
exercise supervision or control over other parties in the CoR
involved with the load and its transportation;
provide information, training and supervision in CoR compliance
and the implementation of any CoR policy to workers;
maintain work systems and equipment to enable CoR compliance;
address and remedy any instances of non- compliance.
Each of the above steps is aimed at avoiding a breach or risk of
a breach occurring during business operations. But before you can
do this, you must first assess the areas of your operations that
give rise to the risk of a breach occurring. That is, you must
conduct a CoR risk assessment.
For those CoR parties subject to duties in relation to fatigue
and speed (which can include employers, prime contractors,
operators, schedulers, consignors, consignees, loading managers,
loaders and unloaders), the 'all reasonable steps' defence
for those offences specifies that a party cannot be found to have
taken all reasonable steps unless it has conducted such a risk
assessment at least annually.
Four-step Chain of Responsibility risk assessment process:
Step 1: Hazard identification – Identify the activities
or areas of your business giving rise to potential CoR
Step 2: Risk assessment – Assess the likelihood of a
breach occurring and the likely severity of its impact on road
infrastructure and public safety.
Step 3: Control implementation – Develop and implement
control measures to eliminate or reduce the likelihood or
consequences of a breach.
Step 4: Review/response – Periodically review the process
(at least annually for fatigue and speed) and/or execute additional
control measures in response to any actual breach.
When it comes to the second step, conducting a risk assessment,
an effective assessment needs to consider both the likelihood and
severity of any breach occurring.
The HVNL categories the severity of offences as follows:
a risk of a party gaining a minor unfair commercial advantage
over those who operate legally; and
no risk to safety or infrastructure.
a risk of damage to infrastructure, increasing traffic
congestion and unfair competition; and/or
some risk to safety, although not an appreciable risk.
an appreciable risk to safety; and/or
a more severe risk to infrastructure, greater risk of traffic
congestion or a greater level of unfair competition
a contravention of fatigue regulated work/rest times adversely
affecting a driver's ability to drive safely.
How to introduce your control measures
Your CoR risk assessment process can leverage off the workplace
health and safety risk assessment processes, which all businesses
should have in place.
If a potential breach has a high likelihood of occurring and the
outcomes of a breach will be of 'critical' severity, the
risk assessment for such a potential breach would be high, meaning
that appropriate high-risk control measures would need to be put in
Conversely, a potential breach with a low likelihood and minor
severity outcomes would result in a low risk rating, meaning that
low-risk control measures would be more appropriate.
The different categories of control measures typically
Elimination – Removing a hazardous activity or process
Substitution – Replacing a hazardous activity or process
with a less hazardous one;
Physical modification – Modifying the environment or
equipment physically to reduce risk; and
Behavioural modification – Providing additional training,
instructions and supervision to workers, site visitors and those
handling relevant road cargo.
In many instances, it may be appropriate to implement a
combination of control measures across your different areas of
Remember, document the risk assessment process and all steps
taken under it (including work practice modifications and training)
and keep those records for a minimum of three years (at least six
years is recommended).
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
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This decision will be significant to aviation industry participants in assessing whether claimants in the context of international or domestic carriage by air have commenced claims in an appropriate forum in Australia.
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