Is The Heavy Vehicle National Law Too Complex to Comply?
If you think the Heavy Vehicle National Law is too complex to fully comply with, you aren’t alone. Specialist lawyer Gillian Bristow is of the same opinion, expressing the view at the 2015 NatRoad Conference in Brisbane recently.
Ms Bristow said the 750 page HVNL was too complex and “buried” critical information, making it difficult for operators to comply.
She pointed out that there is no specific chapter on Chain of Responsibility (CoR) but that related provisions were scattered through-out various sections of the law.
Ms Bristow is special counsel at law firm, Cooper Grace Ward and has more than 2 decades of transport law experience under her belt. She said operators have the most to lose under Chain of Responsibility but are too often seen as “easy targets”.
Another concern raised by Bristow is the extremely broad definition of executive officer under current legislation. She said at present it is affecting all those concerned or anyone taking a management role in a corporation, making them liable for up to 170 different offences.
Ms Bristow highlighted that under reforms submitted to the government, the range of offences would be reduced to 58 and the onus will be on the prosecution to prove guilt. This differs from the current legislation under which the industry person/corporation has the onus to prove their innocence.
She went on to encourage operators to have written contracts in place so that responsibilities were clearly outlined. While this would add to a company’s administrative burden, it is an important step for a “reasonable steps” or “reasonably practicable” defence.
In an article on PrimeMoverMag.com.au Ms Bristow was quoted,
“You operate as a customer when you engage sub-contractors, so you need to take reasonable steps to ensure safety down the chain,” she said, adding that a condition cannot be incorporated into a contract that indemnifies others. “It may not always be in an operator’s commercial interest to ‘dob in’ their customers so the operator risks bearing the brunt of legal action.”
Another crucial piece of advice from Bristow was for operators who receive breach notices to attend court as this will get a better reception from a magistrate. It will also give operators a chance to explain themselves and what happened in person, instead of operators just accepting the notice and taking a fine.
Ms Bristow explained at the conference,
“However this legislation is changed or not changed as a result of the review we are going to be left with some kind of formula that makes you responsible for taking all reasonable steps to ensure safety”,
“You will have to have some form of compliance system in place in order to be able to manage these sorts of offences.”
Later this year changes to the National Law will be considered by Ministers. It is expected that any new legislation passed will take effect as of 2017.
If you’re still hazy about the details of Chain of Responsibility legislation, get more information here.