Prime Mover Magazine

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Michael Kilgariff

Change on the horizon

February 2015

ALC, on behalf of the logistics industry, is keen to ensure that any changes to the laws are done in such a way that enhances efficiency and improves safety without imposing unnecessary or onerous regulatory burdens on logistics companies.

While these matters relate directly to the heavy vehicle industry, invariably they affect all parties in the supply chain. It is essential therefore that all parties in the chain are aware of these possible developments and changes, and to understand how they may potentially impact on their business.

Currently, there are two policy reviews underway that could lead to significant changes to the structure of the HVNL and therefore how participants in the chain of responsibility do business.

The first of these relate to ‘duties’ under the HVNL. At the request of the Transport and Infrastructure Council of the Council of Australian Governments, the National Transport Commission (NTC) is considering possible changes to the duties owed by participants in the Chain of Responsibility imposed by the HVNL. This is to try to ensure that the right person within the Chain of Responsibility is brought to account when something goes wrong.

Currently, the HVNL requires participants to take ‘all reasonable steps’ to prevent both speeding and the operation of vehicles whilst the driver is fatigued, but otherwise it sets out very specific technical rules that apply to specific participants within the chain of responsibility.

As part of the options paper released by the NTC, four possible options are being proposed.  The first is to create an overarching primary duty of care covering the entire HVNL.

It is possible that a person conducting a transport undertaking (a deliberately wide term designed to capture most if not all of the current participants in the chain of responsibility) will be obliged to take, so far as is reasonably practicable, all steps to ensure that their actions or omissions do not endanger the health and safety of any person.

This is similar to the duty that is owed to people by people conducting a business or undertaking for the purposes of workplace health and safety law.

A second option proposes the inclusion of high level duties within the applicable chapters of the HVNL covering speed, fatigue and mass, dimensions and loading, as well as possibly vehicle standards.

For example, with respect to the mass, dimension and loading of heavy vehicles, a duty could be created requiring that a person conducting a transporting undertaking must so far as reasonably practicable ensure that breaches of the HVNL relating to mass, dimension and loading obligations do not occur.

Another example, with respect to speed, could be to create a duty providing that a person conducting a transport undertaking must, so far as reasonably practicable, ensure that a breach of speeding laws do not occur.

A third option would see the HVNL include additional laws to address specific risks and dangerous behaviours that have been identified. This approach uses the current specific duty constructions in the law so as to extend Chain of Responsibility in a targeted and precise way.

The final option is no change to the current duties regime – instead, regulatory attention would focus on providing more guidance and education and conducting more investigations of Chain of Responsibility breaches.

At the same time, the National Transport Commission and the National Heavy Vehicle Regulator are developing what is called the Heavy Vehicle Roadworthiness Program. The aim is to establish a ‘national system that has systemic integrity and support a rigorous risk-based approach to assuring the roadworthiness of heavy vehicles used on Australian roads’.

Issues to be considered during the development of the program include:
• The quality of auditors currently used in accreditation schemes;
• The standardisation of inspection systems,
• The possible extension of the range of duties that could be imposed on Chain of Responsibility participants; and
• the possible development of a requirement of some (or all) operators to maintain a safety management system.

Whilst there will be no great change to the law in the immediate future, it is important that people operating within the Chain of Responsibility follow this debate carefully so they are not caught short if and when any changes to the law takes place.

I look forward to keeping you abreast of the outcomes of these two reviews in future editions of Prime Mover magazine.

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