ALC Submission to the Chain of Responsibility Review
ALC is represented on the Chain of Responsibility (COR) Taskforce, which was established by transport ministers to review the application of COR under the Heavy Vehicle National Law. As
part of this work, the NTC has released an options paper<http://ntc.gov.au/DocView.aspx?DocumentId=2490> which has been developed by the Taskforce to help identify potential improvements to the COR regime. The paper draws on submissions responding to an issues paper released in 2013 to which ALC also provided a submission.<http://austlogistics.com.au/wp-content/pdf/submissions/2013/ALC-Submission-on-the-Chain-of-Responsibility-Taskforce-Discussion-Paper.pdf>
A Paper will be presented to the May meeting of the Transport & Infrastructure Council to outline some guiding principles for the final position paper to be finalised this year.
ALC Position 1
The current relationship between the Heavy Vehicle National Law and Workplace Health and Safety law is satisfactory and does not require change.
ALC Position 2
The current Chain of Responsibility structure remains satisfactory. No evidence has been presented to suggest the creation of further general duties would either encourage greater compliance or improve safety outcomes.
ALC Position 3
There are no grounds to increase HVNL penalties to simply match penalties contained in primary WHS legislation.
ALC Position 4
No-one has produced sufficient evidence to permit the development of new duties or the identification of new duty holders as part of the Chain of Responsibility review process.
To the extent that new intermediate duties, process based requirements and specification standards are necessary, they can be developed through the HVNL Legislation Management Programme.
ALC Position 5
A case appears to have been made out to impose duties on the basis of the function or activity performed by someone rather than attempt to describe duty holders by way of job title. This can be developed through the HVNL Legislation Management Programme.
ALC Position 6
The provisions that impose liability on executive officers for offences committed by corporations should be reviewed against relevant COAG guidelines on director liability as part of this process. These can be found at https://www.coag.gov.au/node/434
ALC Position 7
The current formulation contained:
(a) in the reasonable steps defence established by section 618 of the HVNL; and
(b) the general duty relating to speed and fatigue contained in chapters 5 and 6 of the HVNL 3 that a person should show they took all reasonable steps to avoid a contravention of the HVNL remains satisfactory.
As the HVNL contains:
(c) matters prosecutors and courts may have regard to when considering whether all reasonable steps have been taken in relation to speeding or fatigue management offences;
(d) the capacity to make regulations to provide either ways or measures (or examples of ways or measures) for fatigue management offences; and
(e) a duty on the NHVR to identify and promote best practice method for complying with the HVNL and to manage risks to public safety arising from the use of heavy vehicles on roads there is plenty of guidance of what constitutes ‘all reasonable steps’. The NHVR should be resourced to promote best practice where gaps in participant performance is identified.
ALC Position 8
No case for the extension of enforcement powers has been made out. No additional powers should be conferred unless a case is made out that any new power or offence will increase compliance and safety outcomes and that the powers of regulators, when taken as a whole, are not seen to be disproportionate in those jurisdictions possessing charters of rights.
ALC Position 9
The NHVR should be placed under a statutory duty to publish guidelines that those providing services to the Regulator under service agreements, and prosecutors, must have regard to when considering the commencement of a prosecution of an offence under the HVNL. The NHVR and police forces should enter into a memorandum of understanding as to when and how police will exercise enforcement functions under the HVNL.
ALC Position 10
Service agreements made by the NHVR and jurisdictions should be published in full.
ALC Position 11
A person who complies with a registered industry code should be taken as having discharged the duty to take all reasonable steps to comply with the HVNL.