Australia: Heavy Vehicle Chain of Responsibility – time to get into gear

Last Updated: 25 November 2016
Article by Shae McCartney and Brett Thompson

Businesses face prosecution and large fines if they do not have practices and procedures in place to ensure the safe operation of their transport activities.

Now is the time for all participants in the heavy vehicle industry to review their supply chain systems and practices to ensure compliance with the Heavy Vehicle National Law (HVNL).

Legislation to enact the next phase in national Chain of Responsibility Reforms and Heavy Vehicle regulation is currently being considered by Queensland Parliament. The amendments restructure existing obligations to place a positive duty on all chain of responsibility parties to ensure "so far as reasonably practicable" the safety of their transport activities.

Once the changes, which also introduce a positive due diligence obligation on executive officers, have passed in Queensland, they will be introduced in all participating States and Territories (excluding Western Australia and Northern Territory) and all amendments are expected to commence on a single date in 2018.

What are the key changes?

The Bill will:

  • restructure existing HVNL obligations on all current chain of responsibility parties to impose a positive primary duty of care, consistent with other safety laws such as the model Work Health and Safety Act;
  • impose a due diligence obligation on executive officers relating to the new primary duties.
  • improve compliance; and
  • simplify enforcement.

The primary duty of any party in the supply chain is to take proactive measures to ensure safe practices up and down the chain. Further, if the party has executive officers, those officers have a positive duty to ensure the party complies with the primary duty.

These amendments do not change the scope of the chain of responsibility laws which continue to apply to any party in the supply chain that has influence or control of the supply chain including operators, prime contractors and employers, schedulers, consignors, consignees, loading managers, loaders, unloaders and packers.

The National Heavy Vehicle Regulator, which is responsible for overseeing the HVNL, has stated that because the new laws focus on managing risk, businesses will have the flexibility to implement measures that best allow them to prevent breaches of the law. This means, as a party in the chain, you can proactively reduce risks related to your transport operations, rather than reacting when there's a possible breach of the law.

The intention is that safety outcomes will improve in the road transport sector if all parties focus on overall safety outcomes and have the freedom to implement innovative approaches to responding to safety concerns

How can you prepare?

The proposed changes should not be cause for alarm for organisations and officers that are complying with the current laws. However, the changes are a good opportunity to review supply chain systems and practices to ensure your business is meeting its safety obligations.

This can include:

  • review and clearly map out the responsibilities of all parties in your supply chain;
  • check commercial arrangements to ensure you have appropriate compliance and assurance terms;
  • review your workplace WHS policies and procedures and amend if necessary;
  • review and update fatigue management plans;
  • train staff and officers in their chain of responsibility obligations.

Businesses face prosecution and large fines if they do not have practices and procedures in place to ensure the safe operation of their transport activities. Further, as all parties in the supply chain must comply there are likely to be strong commercial imperatives to be able to evidence a robust due diligence system that ensures compliance in an auditable way. It therefore pays for businesses to focus on overall safety prevention and facilitate a "compliance culture" within their organisations.

Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this bulletin. Persons listed may not be admitted in all states and territories.

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