National Safety Laws Aim for Maximum Penalties for COR Offenders
NTC CEO Paul Retter recently stated that he wants reforms to restructure and consolidate existing obligations.
Progress towards marrying chain of responsibility (COR) provisions under the Heavy Vehicle National Law (HVNL) with work health and safety (WHS) law is making steady progress, but members of the industry should be aware that it will also mean higher penalties for breaches.
Earlier this year, lawyers made note of the WHS direction being taken, the NTC has acknowledged this with its latest discussion paper.
In his foreword, NTC CEO Paul Retter explained:
“The intention of these reforms is not to extend the scope of duties but to restructure and consolidate existing obligations to ensure current parties in the chain of responsibility take a performance based approach to their responsibilities.”
Support has been given in principle to for reform of COR laws to mirror a WHS approach.
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The NTC believes the primary attention to duties for safety will ensure better safety alignment with WHS laws by using an approach that is focused on the performance of companies in the chain, rather than having to use a prescriptive approach.
The NTC’s second COR Discussion paper says inconsistencies, compliance costs and a lack of proactivity are all concerns. “The maximum penalties prescribed by the HVNL are considerably lower than those for other safety-based legislation, such as the Model WHS Act and RSNL [Rail Safety National Law].
There are concerns that this may lead to “mixed messages, potentially misleading industry and courts about the seriousness of the risk of non-compliance with the NVNL. Fines of up to $600,000 and 5 years in prison may be foreshadowed, the discussion paper explained:
COR’s existing prescriptive requirements in favour of the WHS Act’s primary duties approach, which provides an overarching responsibility a party must meet but gives them the flexibility to determine the approach they will take to comply.
Under the Model WHS Act the maximum court applicable fines under the HVNL is higher than the maximum court-imposable fines under the HVNL, which is just $20,000 for an individual. The post went on to state:
“Maximum penalties for breaching the primary duties could be amended to be better aligned with the maximum penalties available under the national safety laws, including adoption of hierarchy of penalties based on the nature of the actual harm or damage caused.”
There are 3 categories under the WHS Act, based on the severity of the offence.
• For an individual, the maximum fine in the highest offence category is $300,000 and/or five years behind bars.
• For an individual running a business – such as a contractor or owner-driver – the fine is $600,000 and/or five years in prison.
• For the lowest offence category are significantly higher than what exists under the HVNL.
Also, keep in mind that anyone running a business faces fines of up to $100,000, while an employee can be fined up to $50,000.
In the lowest category, depending on the offence, body corporates can be fined from $500,00, up to $ 3 million in the highest category.
The NTC explained in the discussion paper,
“Significant risks to road safety remain because the way the law is structured does not encourage COR parties to proactively identify and prevent risks, and does not provide sufficient deterrent effect because appropriate penalties are not provided for,”
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Penalties and fear of imprisonment for breaches are a crucial part of providing a level of deterrence, the NTC paper stated.