Ru­n­away train of leg­is­la­tion

CoR adds more to pile of red tape

Big Rigs - - SPECIAL REPORT - Bruce Honey­will

ROAD trans­port laws in most of Aus­tralia are in a state of flux that will see changes come far be­yond the cur­rent Oc­to­ber amend­ments.

Oc­to­ber brings into force the amend­ments to the Heavy Ve­hi­cle Na­tional Law, such as the much talked about changes to the Chain of Re­spon­si­bil­ity leg­is­la­tion, and other amend­ments that beef up the pow­ers of trans­port en­force­ment of­fi­cers.

As Queens­land Truck­ing As­so­ci­a­tion chief ex­ec­u­tive Gary Ma­hon said last year: “How can a driver be ex­pected to know and un­der­stand the hun­dreds upon hun­dreds of pages of leg­is­la­tion that are part of the job?”

Since the es­tab­lish­ment of the reg­u­la­tor and what many see as the flawed HVNL that fol­lowed in 2014, there seems to have been an at­tempt to mi­cro­man­age ev­ery step of a truck driver or owner’s work­ing life.

Un­der­stand­ably, the leg­is­la­tion and reg­u­la­tions were po­lit­i­cally driven by a voter back­lash fol­low­ing a se­ries of hor­rific truck­in­volved high­way tragedies.

But the leg­is­la­tion has been em­braced by var­i­ous state en­force­ment agen­cies and the overly pre­scrip­tive leg­is­la­tion has been pros­e­cuted to the full ex­tent of the law.

This may well change in the fu­ture. The Na­tional Trans­port Com­mis­sion is car­ry­ing out what is de­scribed as a “deep re­view” of the HVNL.

The NTC/HVNL re­form’s chal­lenge, Big Rigs was told by se­nior NTC ex­ec­u­tives, is to sim­plify the HVNL, re­duce its pre­scrip­tive na­ture and give the leg­is­la­tion a per­for­mance­based com­po­nent.

In other words, to make it eas­ier to un­der­stand and reg­u­late. Where is this re­form at? The NTC is car­ry­ing out con­sul­ta­tion to de­velop the terms of ref­er­ence of the re­view that will be put to the Truck In­dus­try Coun­cil in Novem­ber. There are more amend­ments to the HVNL com­ing but they won’t be any time soon.

From this Oc­to­ber, we live with a new era of Chain of Re­spon­si­bil­ity laws.

The cur­tain is raised on big­ger fines, po­ten­tial prison sen­tences, a wider ef­fect on all in­di­vid­u­als in the supply chain ex­tend­ing to man­ag­ing di­rec­tors of com­pa­nies and sig­nif­i­cant in­creases in power for trans­port of­fi­cers.

There are in­creased re­quire­ments for due dili­gence and prov­ing ac­tual steps have been taken in ev­ery link of the chain to re­duce risk.

The CoR amend­ments were passed into law from De­cem­ber 2016 and the Na­tional Heavy Ve­hi­cle Reg­u­la­tor has been fa­cil­i­tat­ing work­shops around the nation to ex­plain the changes that are now upon us. But wait, there’s more. The HVNL sig­na­tory ju­ris­dic­tions (all states ex­cept Western Aus­tralia and the North­ern Ter­ri­tory) have passed ac­com­pa­ny­ing leg­is­la­tion that is now ac­tive.

In June the “due dili­gence” amend­ments were passed and early in Septem­ber more amend­ments were passed that sig­nif­i­cantly in­creased the power of “au­tho­rised of­fi­cers” un­der the HVNL.

The Septem­ber amend­ments sig­nif­i­cantly en­large the in­ves­tiga­tive and en­force­ment pow­ers of au­tho­rised of­fi­cers and un­der cer­tain cir­cum­stances gives these of­fi­cers, with a court in­junc­tion, the right to re­strain trucks and truck driv­ers if the re­quire­ments of a breach are not fol­lowed.

Much more leg­is­la­tion has been dropped on the road trans­port in­dus­try than cov­ered by the first 2016 round of CoR amend­ments to the HVNL.

The amended HVNL will in­crease the power of au­tho­rised of­fi­cers to al­low them to re­quire a whole fleet or class of ve­hi­cles to be pro­duced for in­spec­tion where there is a rea­son­able be­lief that ve­hi­cles in that fleet or class are de­fec­tive or do not com­ply with the HVNL.

Un­der sec­tion 568, au­tho­rised of­fi­cers can re­quire the pro­duc­tion of a driver’s li­cence where, by law, the driver is re­quired to carry a li­cence.

The max­i­mum penalty for fail­ing to pro­duce a driver’s li­cence will be $6000.

There is now a re­quire­ment for op­er­a­tors to iden­tify, to au­tho­rised of­fi­cers, third par­ties such as tech­nol­ogy sup­pli­ers or data man­agers who may hold in­for­ma­tion about the heavy ve­hi­cle.

A new power to per­mit an au­tho­rised of­fi­cer to is­sue a pro­hi­bi­tion no­tice to a per­son where the au­tho­rised of­fi­cer rea­son­ably be­lieves there is an ac­tiv­ity oc­cur­ring (with a heavy ve­hi­cle) that in­volves, or will in­volve, an im­me­di­ate or im­mi­nent se­ri­ous risk to a per­son.

The pro­hi­bi­tion no­tice will make il­le­gal the car­ry­ing out of that ac­tiv­ity un­til the mat­ters giv­ing rise to the risk have been reme­died.

The penalty for non-com­pli­ance with a pro­hi­bi­tion no­tice is $10,000.

Na­tional Heavy Ve­hi­cle Reg­u­la­tor has been given the au­thor­ity un­der sec­tion 726 (d)(2) to pub­lish court out­comes, in­clud­ing nam­ing the of­fence of which a per­son has been con­victed and the penal­ties im­posed (but the per­son con­victed can­not be named). De­fence un­der CoR Much has been writ­ten of the CoR amend­ments since they were passed in 2016.

The NHVR has car­ried out pro­grams around the nation to ex­plain the changes.

Prob­a­bly the big take­away is the idea that, un­der the amend­ments, it is a le­gal de­fence to demon­strate that all rea­son­able steps were taken to pre­vent a breach of the act, or that there were no rea­son­able steps that could have been taken to pre­vent the breach.

For this de­fence to be vi­able, the per­son be­ing in­ves­ti­gated must be able to prove that all – not just some – rea­son­able steps were taken.

There are no re­stric­tions on the ways in which a per­son can demon­strate they took rea­son­able steps but busi­ness prac­tices should in­clude meth­ods to iden­tify, as­sess, con­trol, mon­i­tor and re­view sit­u­a­tions that put driver safety at risk, in­clud­ing risk iden­ti­fi­ca­tion, risk as­sess­ment and risk con­trol.

All this must be un­der­writ­ten with a doc­u­mented set of busi­ness prac­tices and en­sure that all em­ploy­ees are trained in their use.

As­sess­ing, act­ing and record­ing are now the trin­ity of de­fence.

Un­der the HVNL, there is the pro­vi­sion that ev­ery party in the heavy ve­hi­cle trans­port supply chain has a duty to en­sure the safety of their trans­port ac­tiv­i­ties.

A sig­nif­i­cant bur­den has been added to the red tape of a trans­port op­er­a­tor as the only way to meet the trin­ity of de­fence to a CoR breach is by record­ing risk as­sess­ment and ac­tions taken.

Ev­ery­one wants the high­ways and the work­place of trans­port work­ers safer. No one will ar­gue with that.

But the huge volume of leg­is­la­tion that is not at all un­der­stand­able to most of us means lawyers will do well as breaches head for the courts.

In the mean­time we need to live with the ru­n­away train that is the grow­ing truck­load of Aus­tralia’s trans­port leg­is­la­tion.

❝ As­sess­ing, act­ing and record­ing are now the trin­ity of de­fence.

PHO­TOS: BRUCE HONEY­WILL

WEIGHTY LOAD: The huge volume of leg­is­la­tion that is not at all un­der­stand­able to most of us means lawyers will do well out of the cur­rent amend­ments.

A sig­nif­i­cant bur­den has been added to op­er­a­tors’ red tape.

The NTC is car­ry­ing out a “deep re­view” of the HVNL.

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