Written by Spencer Pascal and Jessica Woods
The Heavy Vehicle National Law (HVNL) commenced on 1 September 2013 and was introduced in all states and territories, save and except for Western Australia and the Northern Territory. The HVNL regulates the use of heavy vehicles that have a gross vehicle mass of more than 4.5 tonnes. It includes the HVNL and five sets of regulations.
Importantly, the NHVL provides for the principle of “shared responsibility” which is often referred to as the Chain of Responsibility (CoR).
Primary Duty
The CoR legislation imposes a primary duty on every party in the CoR to “ensure, so far as is reasonably practicable, the safety of the party’s transport activities relating to the vehicle”1.
The following parties have obligations under the Chain of Responsibility legislation:
- the employer of a driver if the driver is an employee;
- a prime contractor for the driver if the driver is self-employed;
- an operator of the vehicle;
- a scheduler for the vehicle;
- a consignor of any goods in the vehicle;
- a consignee of any goods in the vehicle;
- a packer of any goods in the vehicle;
- a loading manager for any goods in the vehicle;
- a loader of any goods in the vehicle; and
- an unloader of any goods in the vehicle.
The level and nature of a party’s responsibility within the CoR will depend on the following:
(a) the functions the person performs or is required to perform;
(b) the nature of the public risk created by carrying out the transport activity; and
(c) the party’s capacity to control, eliminate or minimise the risk.
The NHVL defines “reasonably practicable” in relation to the duty as “that which is, or was at a particular time, reasonably able to be done in relation to the duty, weighing up all relevant matters”.2 Such relevant matters include:
- Likelihood
- Harm
- Knowledge
- Solutions
- Cost
The National Heavy Vehicle Regulator (NHVR) is Australia’s regulator for heavy vehicles and administers the HNVL. The NHVR has detailed some common breaches of the primary duty to be:
- Applying business practices or demands that cause a driver to breach fatigue management requirements, or speed limits.
- Failing to weigh, measure or secure loads.
- Setting schedules with unrealistic timeframes.
- Causing unreasonable delays in loading and unloading.
- Packing goods incorrectly.
- Entering terms in contracts and arrangements that encourage, reward or give incentives to the driver or other parties in the CoR to breach the law3.
Duty of Executive of Legal Entity
In addition to the primary duty, the HNVL impose a duty on executives of a legal entity to “exercise due diligence to ensure the legal entity complies with the safety duty”4.
The due diligence duty applies to:
- An executive officer of a corporation;
- A partner of an unincorporated partnership; and
- A management member of an unincorporated body.
Although there is considerable overlap between the two duties, it is possible for an executive to breach the due diligence duty without a breach of the primary duty. In addition, where an individual is found to have breached their primary duty, this does not mean an executive will be found to be in breach of the due diligence duty where the executive has exercised due diligence to ensure the business has complied with the safety duty.
Implications
The NHVL imposes penalties for a party in the CoR who breaches their respective duty.
The penalty imposed will depend on the nature of the breach of the primary duty. The maximum penalty for an individual is $300,000 and five years imprisonment. The maximum penalty for a business is $3 million. An executive who is found to have failed to exercise due diligence pursuant to the NHVL faces the same penalty as an induvial who is found to be in breach of the primary duty.
Although the HVNL does not operate in Western Australia or the Northern Territory at this time, the HVNL will apply to vehicles from those jurisdictions once they enter any state or territory which has adopted the legislation.
Should you wish to discuss the Chain of Responsibility legislation and its implications, please contact Jessica Woods on (03) 9947 4516 or Spencer Pascal on (02) 8047 2870.
