1. Transition to the new Chain of Responsibility – are you complying?

3. Tech Support/Moderation
Rosemary Pattison
Quality & RTO Officer
ARRB Group P: E:

4. Moderator Jerome Carslake E: Jerome.carslake@arrb.com.au NRSPP Manager
ARRB Group P: E:

5. Housekeeping
Webinar is = 45 mins
Question time = 15 mins + =

6. GoTo Webinar functions
Please type your questions here

7. Today’s presenter Geoff Farnsworth Partner Holding RedlichE:

8. Amendments to the Heavy Vehicle National Law coming in 2018

9. Summary
‘Primary duties’ - echoes Work Health and Safety Law and Rail Safety National Law
Primary duty of care, so far as reasonably practicable, to ensure the safety of transport activities
Executive officers
Required to exercise due diligence to ensure operations comply
May be convicted even if the company has not been prosecuted

10. Summary Max penalties:
Individual $50,000 - $300,000 (and/or 5 years imprisonment)
Corporation $500,000 - $3,000,000
Mass/load/fatigue/speeding:
Instead of ‘must not..’, now ‘must ensure…’
No more ‘all reasonable steps’ defence – now ‘unless reasonable excuse’, onus on prosecution

11. Questions

12. Message of the Regulator
Up to Directors and Executives to:
Set culture of the company
Understand obligations and ensure compliance
Due diligence includes
Knowledge about safe operation of transport activities
Understanding the nature of the companies transport activities
Understanding hazards and risk
Prove it

13. Mass, dimension and loading (restraint/ positioning) requirements
Current responsibilities
From commencement of amended HVNL Act
A person must not drive on a road a heavy vehicle that does not comply with mass/dimension/loading requirements. All reasonable steps defence applies.
Maximum penalties:
for a minor risk breach—$4,000; or
for a substantial risk breach—$6,000; or
for a severe risk breach—$10,000, plus an additional maximum $500 for every additional 1% over a 120% overload (but so that the additional maximum penalty does not exceed $20,000).
Instead of the ‘all reasonable steps’ defence, parties must ensure the vehicle complies unless the person has a reasonable excuse.
Penalties unchanged.

14. Fatigue Current responsibilities From commencement of amended HVNL Act
Driver duties - A person must not drive a fatigue-regulated heavy vehicle on a road while the person is impaired by fatigue.
Maximum penalty—$6,000.
Party in the chain duties - A party in the chain of responsibility for a fatigue-regulated heavy vehicle must take all reasonable steps to ensure a person does not drive the vehicle on a road while the other person is impaired by fatigue.
Maximum penalty—$10,000.
Driver duties and penalties unchanged, except reasonable steps defence omitted – there is no defence for driver’s breach of fatigue duties.
Party in the chain duties omitted.
Obligation of parties in chain to prevent fatigue offences now covered only by new section 26E.
Various amendments to work diary requirements.

15. Speeding Current responsibilities
From commencement of amended HVNL Act
Chapter 5 – Speeding imposes duties and penalties on parties in CoR to ensure speed limits not exceeded.
Chapter 5 – Speeding omitted – all speeding provisions and offences now covered only by the primary duty of care in new section 26C and 26E.

16. Duties of each party in the Chain of Responsibility
Current responsibilities
From commencement of amended HVNL Act
Separate offences and penalties for each area of compliance (mass, dimension, loading, speed and fatigue), together with ‘all reasonable steps’ defence.
New section 26C
Each party must, so far as is reasonably practicable:
Eliminate/minimise public risks; and
Not directly/indirectly cause or encourage a driver or other CoR party to contravene the HVNL or exceed a speed limit.
Each party in the chain of responsibility must ensure, so far as is reasonably practicable, the safety of the party’s transport activities (such as contracting a person to drive or maintain/repair the vehicle, packing and loading goods, receiving unloaded goods etc).
See penalties in ‘maximum penalties’ slide.

17. Questions

18. Executives’ duties and liability
Current responsibilities
From commencement of amended HVNL Act
Executive officers (i.e. directors and managers) of a corporation that commits an offence also commit the offence if they knowingly authorised or permitted the conduct.
However, it is a defence for the executive officer to prove they:
exercised reasonable diligence, or
were not in a position to influence the conduct.
The onus is on the executive officer to prove they were diligent.
New section 26D
An executive officer of a party in the chain of responsibility must exercise due diligence to ensure that the party complies with its section 26C duty.
The executive may be convicted even if the company has not been prosecuted.
Due diligence includes taking reasonable steps:
To know about the safe conduct of transport activities;
To understand hazards and risks associated with those transport activities; and
To ensure the party uses appropriate resources and processes to minimise and eliminate hazards and risks.
The prosecutor must prove the executive did not exercise reasonable diligence.

19. Maximum penalties Current responsibilities
Subject to indexation
Current responsibilities
From commencement of amended HVNL Act
Range of penalties between $3,000 and $15,000 for individuals, 5x individual penalty for corporations, categorised into minor, substantial, severe and critical risk breaches.
Many existing penalties (e.g. re mass, fatigue, loading) unchanged. Significant new penalties introduced to mirror the Model WHS Act:
Breach of new section 26C or 26D
Category 1 offence – recklessly engaging in conduct exposing an individual to a risk of death or serious injury or illness: Individual $300,000, or 5 years imprisonment, or both; Corporation $3,000,000
Category 2 offence – contravention exposing an individual, or class, to a risk of death or serious injury or illness: Individual $150,000; Corporation $1,500,000
Category 3 offence – other contravention of the duty: Individual $50,000; Corporation $500,000

20. Defences Current responsibilities
From commencement of amended HVNL Act
It is a defence for the person charged (of an applicable offence) to prove that they did not know/could not have known of the contravention and took all reasonable steps to prevent the contravention, or there were no reasonable steps that could have been taken.
‘All reasonable steps’ defence omitted.
The onus is on the prosecution to prove that the party did not do everything reasonably practicable in the circumstances to avoid the offence.
New section allowing an industry code of practice to be used as evidence as to whether or not a duty has been complied with.

21. Questions

22. Container weight declaration
Current responsibilities
From commencement of amended HVNL Act
Each consignor or packer of the goods commits an offence if the weight of the container exceeds the maximum gross weight marked on the container or the container’s safety approval plate. All reasonable steps defence applies.
Maximum penalty—$10,000.
Each consignor or packer of the goods must ensure, so far as is reasonably practicable, the weight of the container does not exceed the maximum gross weight marked.
Penalties unchanged.

23. Keeping relevant documents/copies of permits/false or misleading documentation
Current responsibilities
From commencement of amended HVNL Act
A driver must keep relevant documents in the driver’s possession. All reasonable steps defence applies.
Maximum penalty $3,000 (false/misleading penalty $10,000)
Each relevant party for a driver must ensure the driver complies, unless the relevant party has a reasonable excuse (false/misleading – must ensure so far as is reasonably practicable documents are not false/misleading).
Penalties unchanged.

24. What do executives need to do?
Examples of the due diligence activities (explanatory memorandum)
Develop a safety management plan;
Make information readily available;
Make appropriate resources and processes available to minimise risks in relation to the maintenance of vehicles; and
Establish processes for considering and responding to information about incidents, hazards and risks.

25. What else can I do? Obtain specific advice
Review policies and procedures - do they adequately minimise or eliminate risks?
Review all contracts with drivers and transport operators - do they incentivise or require breaches?
Consider tying payment/incentives to HVNL compliance
Train management and personnel

26. Questions

27. Thank you for your participation today
For further information, please contact:
Geoff Farnsworth
Partner
Holding Redlich T: E:

28. Australasian New Car Assessment Program (ANCAP)
Thu, Apr 20 2:00 PM - 3:00 PM AEST ANCAP: Not all 5 star cars are created equal. Future requirements and fleet considerations.

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