‘Operation Rolling Thunder’, a 16 hour heavy vehicle compliance operation concluding at 10pm, 1 February 2018 saw ACT, QLD, SA and VIC Police, in conjunction with NSW Roads and Maritime Services, stop and inspect more then 5,000 heavy vehicles. As part of this operation, more than 2,000 defect notices were issued for a range of offences.
The multi-agency, cross-jurisdictional approach seen in ‘Operation Rolling Thunder’ could be indicative of the way in which the Heavy Vehicle National Law (‘HVNL’), including the amendments expected to come into effect later in 2018, will be enforced.
Amendments to the HVNL
On 10 December 2018, ‘Chapter 1A Safety Duties’ of the Heavy Vehicle National Law and Other Legislation Amendment Act 2016 are due to automatically come into force, after being postponed in October 2017. These provisions seek to more closely align Chain of Responsibility (‘CoR’) laws with workplace health and safety laws.
Those amendments which bring the HVNL into line with the workplace health and safety laws include:
- The introduction of a positive duty on all parties in the CoR to ensure so far as is reasonably practicable, the safety of the party’s transport activities;
- Imposing an obligation on executives of a legal entity to exercise due diligence to ensure compliance with the safety duty; and
- Prosecution will have the onus of proof and must prove beyond reasonable doubt what a duty holder could have done, should have done and what was not done in ensuring the safety of the party’s transport activities.
The specific amendments contained in Chapter 1A reframe the current obligations imposed, by the HVNL, on participants in the CoR to create an overarching and positive duty of care, on all parties in the CoR. This is consistent with the approach adopted in other workplace health and safety laws.
Practically, this means that every person who is a party in the supply chain will have a positive duty to proactively manage risks to safety with respect to transport activities, and as such legal liability will attach to every party in the CoR. Executives will also have a positive duty to exercise due diligence to ensure the entity complies with its primary duty.
Further, the offences and penalties contained in Chapter 1A mirror the offence and penalty structure of the Work Health and Safety Act 2011.
Enforcement of the HVNL
In terms of enforcement action with respect to the HVNL, these amendments provide only one (1) significant change to the current regime. A new provision (s.570A) creates a power for authorised officers in certain circumstances to require a person to provide information in relation to a possible contravention of the primary duty, or that will assist in the monitoring or enforcing compliance with that duty. This is a compulsive power, in that a person must comply with the requirement to provide information, even if the information might tend to incriminate the person or make them liable to a penalty. However, that information cannot be used directly or indirectly against the person, other than in proceedings for false or misleading information.
This provision, while modelled on s.155 of the Work Health and Safety Act, is much more limited in its application, as it only applies to information that is relevant to the primary duty, and the authorised officer requiring the information must be specifically authorised by the Regulator or a relevant Police Commissioner to exercise the power.
In operations such as ‘Operation Rolling Thunder’, which adopt a multi-agency, cross-jurisdictional approach, it will be important to understand whether an officer has received authorisation to exercise the compulsive powers and are exercising them appropriately. This will provide an individual with protection against the Regulator using any incriminating information provided, against the individual.
Coming up to December 2018
While ‘Operation Rolling Thunder’ was focused on drivers of heavy vehicles, however, the amendments to HVNL, emphasises the responsibility of all participants in the supply chain.
Accordingly, once the amendments come into force on 10 December 2018, we would anticipate a similar operation, though focused on those who may be considered “upstream duty holders” who will be captured by the ‘primary duty’. Some examples of “upstream duty holders” would include:
- Businesses involved in the manufacturing and mining industries, which requires both receiving primary materials and delivering the manufactured good to customers;
- Businesses within the retail industry, requiring both the receipt of stock from suppliers for sale and potentially the delivery of goods to customers; and
- Businesses within the construction industry, requiring the delivery of materials to complete projects.
In addition to those considered to be “upstream duty holders”, all participants in the supply chain naturally include those in the transport industry who are; schedulers, loading managers, loaders and packers, and unloaders.
All of those participants must make sure terms of the consignments, work and / or employment contracts will not cause, encourage, reward, or incentivise the driver or any other participant in the supply chain to breach any provision of the HNVL.
Further, any contract or part thereof that requires a driver to beach any law is illegal.
All participants in the supply chain will need to be in a position to be able demonstrate what measures are in place to prevent breaches of the HVNL occurring, and that was reasonably practicable was done to prevent the contravention.
Leading up to December 2018, it is important that all participants in the supply chain review their policies and procedures, to ensure they do not in any way incentivise another party to breach a provision of the HNVL.