WHS-style chain-of-responsibility provisions of the Heavy Vehicle National Law (HVNL) commenced on Monday 1st October 2018
The WHS-style chain-of-responsibility provisions of the Heavy Vehicle National Law (HVNL) commenced on Monday 1st October 2018, recognising that every party in the heavy vehicle transport supply chain has a duty to ensure safety. The reforms remove prescriptive obligations, providing greater flexibility for industry on how they achieve safety outcomes, it encourage parties in the chain to be proactive in managing risks, whilst also implementing nationally agreed changes, such as strengthening inspectors’ investigative and enforcement powers, increasing freight volumes where mass is not a constraint, transferring load restraint performance standards from guidance material to the HVNL, and reducing administrative and regulatory burdens.
The new laws also impose a positive duty of care on all parties that can influence road safety and requiring officers to exercise due diligence to ensure their companies comply with their duties. Executive officers may be held liable for any breaches committed by their company. These changes will also see an increase in penalties for individuals with corporate multipliers applying to corporations. (see change 7)
So, what are the major changes that have been enacted?
Change 1 – Vehicle standards (maintenance) has being included
In recognition of the fact that vehicle design, construction and roadworthiness play a key role in road safety, vehicle standards were added as a new CoR compliance component.
This means that all parties in the Chain will have some responsibility in relation to the roadworthiness of vehicles used in their supply chain.
Change 2 – The standard of legal duty has changed
Previously, a business could only be prosecuted where a breach of a CoR component has occurred. The previous test was whether a business took “all reasonable steps” to prevent that breach from occurring.
The new standard requires all parties in the Chain to take “all reasonably practicable steps to ensure the safety of their transport activities”. It is forward-looking, rather than incident-based. This means that businesses could be prosecuted for failing to put in place CoR control structures and practices, even if a CoR accident/incident has not occurred.
Change 3 – Executive liability is different
Previously, a member of the Executive could only be prosecuted where a breach of a CoR component is committed by their business. The previous test was whether an Executive exercised “reasonable diligence” to prevent that breach from occurring.
The new standard requires Executives of all parties in the Chain to exercise “due diligence” to ensure that their businesses comply with all duties under the CoR. It is forward-looking, rather than incident-based. This means that Executives could be prosecuted for failing to put in place CoR control structures and practices, even if a CoR accident/incident has not occurred.
Change 4 – New powers for authorised officers
Authorised officers now have increased powers to obtain documents and information as evidence of potential breaches, particularly from third party providers outside the supply chain.
The new duties mean that authorised officers do not need to link an investigation to an offence or roadside inspection; allowing for a much more proactive approach in addressing unsafe practices across the entire supply chain.
Change 5 – Your CoR management system will more closely align with your WHS management system
The changed standards of duty for businesses and their Executives brings them into line with the well-known tests under WHS law.
This means that many aspects of existing WHS management systems can be adapted as part of your CoR management. For example, existing WHS risk assessment, safe work procedures, training needs analyses, incident registers and compliance reporting frameworks can be equally applied or applied with a little adaption to CoR management.
Change 6 – Industry codes are coming
The new laws mandate that any registered industry codes must provide much greater compliance substance than those in the past, in order to be accepted for registration. The new generation of industry codes will be designed to identify the common CoR risks faced by an industry and canvas the available range of suitable control measures that could be adopted to respond to those risks, as well as giving individual industry participants guidance on how to conduct risk assessment and analysis tailored for their own individual business.
Change 7 – Penalties for breaches have increased
Penalties have increased to align with those under existing WHS laws and in order to ensure that businesses and their Executives give greater attention to CoR compliance management, the new penalties are as follows:
| Offence | Penalty | |
|---|---|---|
| Category 1 offence – for a person who is reckless as to the risk. | Individual – maximum $300,000 or 5 years imprisonment, or both. | Corporation – maximum $3,000,000. |
| Category 2 offence – for exposure to risk of death or serious injury. | Individual – maximum $150,000. | Corporation – maximum $1,500,000. |
| Category 3 offence – for breaches of the safety duty. | Individual – maximum $50,000. | Corporation – maximum $500,000. |
To learn more about how the legislation changes affect you and your company, and to identify any gaps you may have in meeting the new laws reach out to our Zenergy Consulting Practice today on 1300 333 400 or read up on some of the details on our CoR blog series located on our website.
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