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Australia – Keep On Trucking: New National Heavy Vehicle Laws Start.

11 February, 2014

 

Legal News & Analysis – Asia Pacific – Australia – Shipping, Maritime & Aviation

 

WHAT YOU NEED TO KNOW

 

  • From 10 February 2014, a new Heavy Vehicle National Law commences in New South Wales, Queensland, South Australia, Tasmania and Victoria. The National Law regulates vehicles over 4.5 tonnes gross vehicle mass and establishes the National Heavy Vehicle Regulator based in Queensland.
  • The primary obligations under the National Law relate to mass, dimension and loading requirements, speeding and fatigue management.
  • If there is a contravention of the requirements under the National Law, everyone in the chain of responsibility (including employers, prime contractors of drivers, operators of vehicles, schedulers, loading managers, consigners and consignees of goods) are taken to have committed an offence, unless it can be shown that all reasonable steps were taken to prevent the contravention.
  • The “chain of responsibility” will be a major focus of the new Regulator, with a dedicated Chain of Responsibility unit to be established to coordinate investigations and prosecutions.
  • Specific aspects of the penalties set out in the National Law are the subject of a further review.

 
WHAT YOU NEED TO DO

 

  • Develop or review your organisation’s procurement and chain of responsibility policies and procedures to ensure that your organisation can establish that it has taken all reasonable steps to ensure compliance with the National Law. “Reasonable steps” can include measures taken to:
    • include compliance assurance conditions in relevant commercial arrangements with other responsible persons;
    • provide information, instruction, training and supervision to employees to enable compliance with the National Law;
    • maintain equipment and work systems to enable compliance with the National Law;
    • address and remedy similar compliance problems that may have happened in the past; and
    • review and make any appropriate submissions to the proposals for the penalties framework under the National Law by 14 February 2014.

 

New National Regulator

 
The National Heavy Vehicle Regulator is a new national regulator for all vehicles over 4.5 tonnes gross vehicle mass.

 
The Regulator was established in Queensland on 21 January 2013 under the Heavy Vehicle National Law 2012 (Qld). From that date, the Regulator has been the administrator of the National Heavy Vehicle Accreditation Scheme and the Performance Based Standards Scheme, and will continue to administer those schemes.

 
From 10 February 2014, Queensland, New South Wales, South Australia, Tasmania and Victoria will adopt the National Law and the Regulator will cover these jurisdictions as well.

 
The Regulator aims to act as a “one stop shop” for heavy vehicle road transport businesses and will administer the National Law. However, your relevant State road transport authority will still be the point of contact for registration, inspections, driver licensing, and all matters related to the carriage of dangerous goods.

 
In addition, the relevant State or Territory police and authorised officers will continue to enforce heavy vehicle offences under the National Law.

 
New National Law

 
The National Law provides for the registration of heavy vehicles, as well as a prohibition on using or permitting to be used an unregistered heavy vehicle. In addition, the National Law requires compliance with the vehicle standards prescribed by the Heavy Vehicle (Vehicle Standards) National Regulation 2013. These standards cover requirements including general safety requirements, vehicle marking and configuration, dimension requirements, lights and reflectors, braking systems, emissions, alternative fuel systems, and maximum road speed limiting.

 
Chain Of Responsibility

 
One of the key features of the National Law is the emphasis on the extension of liability among parties in the “chain of responsibility”. The parties in a chain of responsibility could include:

 

  • employers;
  • prime contractors of drivers (the person who engages the driver);
  • operators of vehicles;
  • schedulers who schedule the transport of goods or passengers or schedules the work and rest times for drivers;
  • loading managers who supervise the loading/unloading of goods or who manage the premises where this occurs;
  • a commercial consignor of goods (the person who directly or indirectly engages a vehicle operator, has possession of the goods immediately before being transported, or loads a vehicle with goods); and
  • a consignee of any goods (the person who actually receives the goods after completion of their road transport).

 
The Regulator’s website states:


If you consign, pack, load or receive goods as part of your business, you could be held legally liable for breaches of road transport laws even though you have no direct role in driving or operating a heavy vehicle. In addition, corporate entities, directors, partners and managers are accountable for the actions of people under their control.

 
The Regulator has indicated that in late 2013, it will establish a dedicated Chain of Responsibility unit to coordinate investigations and prosecutions. Until this time, State and Territory authorities will continue to exercise functions in relation to chain of responsibility.

 
“Reasonable Steps” Defence

 
The National Law makes clear that a person who is charged with an offence cannot use the defence of mistake of fact.

 
A person can, however, rely on a reasonable steps defence if it can be shown that:

 

  • the person did not know, and could not reasonably be expected to have known, of the contravention concerned; and
  • either the person took all reasonable steps to prevent the contravention, or there were no steps the person could reasonably be expected to have taken to prevent the contravention.

 
A court may consider various matters when deciding whether a person has taken all reasonable steps, including:

 

  • the circumstances of the alleged offence, including any risk category for the contravention;
  • the likelihood and degree of harm likely to result from the risks;
  • the measures available and the measures taken to:
    •  include compliance assurance conditions in relevant commercial arrangements with other responsible persons;
    •  provide information, instruction, training and supervision to employees to enable compliance with the National Law;
    •  maintain equipment and work systems to enable compliance with the National Law; and
    • address and remedy similar compliance problems that may have happened in the past;
  • whether the person had custody or control of the heavy vehicle, its load or any goods included in the load; and
  • the personal expertise and experience that the person had or ought reasonably to have had.

 

Mass, Dimension And Loading

 
The Heavy Vehicle (Mass, Dimension and Loading) National Regulation 2013 prescribes specific requirements on the maximum permissible mass and dimensions of heavy vehicles, and requirements for securing and restraining loads on heavy vehicles.

 
The National Law imposes the following maximum penalties for non-compliances with these requirements, as follows:

 

Mass Dimensions Loading
Minor risk $4,000 $3,000 $3,000
Substantial risk $6,000 $5,000 $5,000
Severe risk $10,000 (plus $500 for every 1% over a 120% load up to $20,000)* $10,000 $10,000
* Certain aspects of these, and other penalties under the National Law, remain subject to review. This review is addressed in more detail in the section ” New National Law penalties” below.

 

If a person has contravened these requirements, everyone in the “chain of responsibility” is taken to have committed an offence and is liable for the maximum penalties set out above, unless the person can establish the “reasonable steps” defence.
In determining whether a person has taken all reasonable steps in relation to mass, dimension or loading offences, a court may consider the measures taken and available to:

 

  • accurately and safely weigh or measure the heavy vehicle or its load, or to safely restrain the load;
  • provide and obtain sufficient and reliable evidence from which the weight or measurement of the heavy vehicle or its load might be calculated;
  • manage, reduce or eliminate a potential contravention arising from the location of the heavy vehicle or the load;
  • manage, reduce or eliminate a potential contravention arising from weather and climatic conditions; and
  • exercise supervision or control over others involved in activities leading to the contravention. 

Speeding And Fatigue Management 

The National Law imposes the following obligations on parties in the chain of responsibility in relation to speeding and fatigue management, with penalties of up to $10,000 applying for contraventions:


  • an employer or prime contractor of a driver, or the vehicle operator, must take all reasonable steps to ensure that their business practices will not cause the driver to exceed speed limits or drive while impaired by fatigue;
  • anyone who schedules the activities of a heavy vehicle or its drivers must take reasonable steps to ensure the schedule does not cause the driver to exceed speed limits or drive while impaired by fatigue;
  • loading managers must take reasonable steps to ensure the arrangements for loading and unloading goods do not cause the driver to exceed speed limits or to drive while impaired by fatigue;
  • persons who consign goods for transport by heavy vehicle or who receive the goods must take reasonable steps to ensure the terms of the consignment do not cause the driver to exceed speed limits or encourage the driver to drive while impaired by fatigue; and
  • a person must not ask any person in the chain of responsibility (directly or indirectly) to do something which would have the effect of cause a driver to exceed a speed limit or drive while impaired by fatigue, for example, requiring the driver to complete a journey in a time which cannot be complied with unless the driver exceeds a speed limit or does not have the required rest time.

 
Further, if a driver commits a speeding offence or contravenes the work and rest requirements set out in the Heavy Vehicle (Fatigue Management) National Regulation 2013, any party in the chain of responsibility is considered to have also committed an offence, unless it can show that establish the “reasonable steps” defence.

 

The following examples of “reasonable steps” are provided in the National Law:

 

  • regular consultation with other parties in the chain of responsibility, unions and industry associations to address compliance issues;
  • reviewing driving, work and trip records;
  • a program to report and monitor incidents of speeding and related risks and hazards;
  • training and information for drivers, staff and parties in the chain of responsibility;
  • regular maintenance of vehicle components that relate to complying with speed limits

 
The National Law also provides that a party in the chain of responsibility will be regarded as having taken all reasonable steps in relation to speeding or fatigue management if the party did all of the following to prevent a contravention:

 

  • identify and assess the aspects of the activities of the party and drivers that may lead to a contravention;
  • identify and assess risks and the measures that may be taken to eliminate or minimise the risk, and take these measures;
  • carry out these identification and assessment processes at least annually and after each events that indicates a possible contravention; and
  • keep a record of the actions taken for at least 3 years.

 
New National Law Penalties

 
A key feature of the National Law is that uniform penalties have been adopted. This is a significant development given that under the previous legislative frameworks, depending on the State or Territory in which an offence occurred, the penalty for any one offence could vary substantially.

 
However, specific aspects of the uniform penalties regime remain subject to a further targeted review.

 
This review (available here) identifies 11 terms of reference, under each of which a range of specific proposals / positions are put forward. Stakeholder input is invited on the 83 proposals, which include:

 

  • should the $20,000 cap on the maximum penalty for a “severe risk” breach of the mass requirements be removed;
  • whether the term “unsafe” should be defined to remove any subjectivity; and
  • if owner-driver corporations should be treated differently from other corporations.

 
Submissions on the National Law penalties review will be accepted until 14 February 2014.

 
Case Study

 
Consider the facts of this hypothetical case study:

 

Company “X” owns and operates heavy vehicles for road transport. Company “A” engages X to deliver four large containers of goods to Company “B”.


At Company X’s loading site, it has engaged Company “Y” as a contractor to load the goods onto the trucks. Company “Y” loads the four containers onto the trucks but one is not secured properly.


Company X directs one of its employees, Joe, to drive the truck. Joe has just finished a 14 hour shift, but there is no other driver available for another 4 hours, and Company B needs the goods within the next 3 hours.


While driving the goods to Company B, Joe feels sleepy and swerves suddenly when he realises he has moved into the wrong lane. As he swerves, one of the containers comes off the truck and hits an oncoming vehicle.


In this case, Company Y is the loading manager at the site and may have contravened the National Law by not complying with the loading requirements. Under the National Law, if Company Y is found to have committed an offence, all parties in the chain of responsibility, including Company X as the driver’s employer, Company A as the consignor and Company B as the consignee, are also taken to have committed an offence unless they can establish the “reasonable steps” defence.

 
Each of the Companies may also be liable for breaching the fatigue management requirements for not taking all reasonable steps to ensure that Joe did not drive while he was impaired by fatigue.

 

Implications For Businesses

 
If your organisation owns or operates heavy vehicles, it is important to determine whether any processes and systems will need to change to reflect the new National Law. This may involve liaising with the Regulator as the new regulator.

 
If your organisation is part of a supply chain that involves the use of a heavy vehicle, you should develop or review your procurement and chain of responsibility policies and procedures to ensure that your organisation is complying with its obligations under the National Law, and in particular, whether your organisation can show that it has taken all reasonable steps to ensure compliance with the National Law.

 

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For further information, please contact:

 

Stephen Nettleton, Partner, Ashurst

stephen.nettleton@ashurst.com

 
Vince Rogers, Partner, Ashurst
vince.rogers@ashurst.com

 
Shane Bosma, Ashurst
shane.bosma@ashurst.com

 
Amanda Ngo, Ashurst
amanda.ngo@ashurst.com

 

Homegrown Shipping, Maritime & Aviation Law Firms in Australia

 

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