The amendments to the Heavy Vehicle National Law
(HVNL) mean that executive officers must
proactively exercise due diligence and ensure compliance with all
areas of the HVNL, not just with the 'primary safety' duty.
We look at the reforms and their potential impact.
Under the HVNL, strict penalties have always applied to the
executive officers of parties in the Chain of Responsibility
(CoR) if they fail to take reasonable steps to
ensure corporate compliance in relation to mass, dimension, load
restraint, fatigue or speed laws. However, recent reforms have
increased the scope of executive officers' liability.
Executive officer liability in the past
As a refresher, 'executive officer liability' refers to
the personal liability of individuals who are concerned with, or
who take part in, managing corporations. It makes executive
officers responsible for decisions they make that might result in
harm to others.
Under the HVNL, executive officers have an 'active duty'
to exercise reasonable diligence in relation to CoR compliance.
This duty cannot be delegated. Their liability comprises:
corporate accessorial liability, where an
executive officer "knowingly authorised or permitted the
conduct" that constituted their corporation's
corporate derivative liability, where an
executive officer "knew or ought reasonably to have
known" either of the conduct constituting the offence or
that there was a substantial risk that the offence would be
The executive officer liability reforms were undertaken in two
Phase 1 was implemented in 2016, and focused on the due
diligence obligations of executive officers in relation to
'primary safety' duties; and
Phase 2 was a consultative process to consider extending the
due diligence obligation across all duties under the HVNL, rather
than just the 'primary safety' duty – subject to the
outcomes of a regulatory impact statement (RIS)
process. Transport ministers approved this change in November 2016,
and the National Transport Commission is currently preparing
amendments to the HVNL to put the change into effect.
The incoming amendments create a positive due diligence
obligation to ensure that participants of the chain comply with
their 'primary safety' duties, and are intended to
encourage executive officers to adopt a more proactive approach to
safety and compliance. They are less prescriptive than the previous
provisions, in order to foster innovative and flexible action.
Section 636(2) of the HVNL, relating to corporate derivative
liability, will be reformulated, and the new criteria for
satisfying the primary safety duty will be 'as far as
reasonably practicable', rather than the previous
'reasonable steps' approach. This will bring CoR compliance
closer to other national safety legislation, such as work health
and safety (WHS) law and the Rail Safety National
In addition, the burden of proof on executive officers will be
removed – instead, the prosecution will bear the burden of
proof. Executive officers will be innocent unless proven
The impact of the changes
The incoming changes mean that it is even more critical that all
parties in the supply chain (particularly 'higher-ups')
exercise due diligence to avoid breaches of the HVNL. As a starting
point, the reforms will:
Promote performance-based compliance from executive
officers. As it is not prescriptive, the due diligence
obligation encourages innovative and flexible outcomes. Practically
speaking, executive officers will be required to undertake a much
more tailored risk assessment of their organisation's CoR
compliance footprint and ensure that suitable policies, working
procedures, training programs and contracting and business
practices are in place.
Help prevent executive officers from using the
corporation entity to shield them from the consequences of their
decisions – by providing that officers can be liable
for failing to discharge their duty of care even if the corporation
does not commit any CoR breach.
Help create the strong road safety culture desired by
National Transport Commission. Increasing the breadth of
liability will ensure that CoR remains at the forefront of how
corporations perceive responsibility.
Lessons for executive officers
Executive officers should:
be aware of the CoR breach risks faced by your business;
ensure that assessments are undertaken to identify CoR risks
within your business;
understand your business's CoR activities and performance;
implement, monitor and evaluate the CoR compliance policy or
policies and procedures.
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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