Runaway train of legislation
CoR adds more to pile of red tape
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.
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.