Australia: Ongoing National Heavy Vehicle Regulator investigations target executives

Last Updated: 8 August 2019
Article by Nathan Cecil
Most Read Contributor in Australia, September 2019

The National Heavy Vehicle Regulator (NHVR) has issued a warning to supply chain executives that they will be targeted in test cases under the amended Heavy Vehicle National Law (HVNL).

In issue 59 of the NHVR's 'On the Road newsletter', the NHVR advised industry that it is currently undertaking six active investigations in relation to "serious offences nationally under the HVNL". In addition to this, another eight cases are being monitored and considered for further action.

The NHVR warned that these investigations target "serious, systemic safety breaches" and examine whether executives have satisfied their individual due diligence obligations.

The NHVR has identified that the current round of investigations include:

  • directions to disregard work/rest requirements
  • the absence of a system for managing risks
  • ineffective driver monitoring systems
  • poor load restraint practices.

The investigations focus on the failure of executives to ensure that their businesses have systems in place aimed at preventing Chain of Responsibility (CoR) breaches and eliminating or minimising risks. They also examine whether executives adequately monitor conformance and compliance by their employed drivers.

Since the HVNL was amended late last year, the NHVR is no doubt keen to try out the new offences for executives. Under the 'old' HVNL, a breach of the CoR laws was only said to have occurred if executives committed an offence, unless they could show that they had exercised reasonable due diligence to avoid the breach occurring.

However, as we have highlighted in past issues, the current HVNL stipulates that executives have an independent and positive duty to ensure, so far as reasonably practical, that their business is complying with its CoR safety duties, including the primary safety duty.

This means that no incident, accident or on-road offence needs to occur before an executive can be investigated and prosecuted. Executives must actively ensure that their business is identifying and managing transport activity risks and implementing and monitoring systems and processes to eliminate or minimise them. If executives neglect to do so, they may be in breach of their obligations regardless of whether an accident, incident or breach has occurred. As the NHVR states in its newsletter, executives "have to ensure they understand the hazards and risk associated with their transport activities and ensure they devote sufficient resources to implementing processes [aimed at] eliminating or minimising those hazards and risks".

The HVNL specifies that executives are required to:

  • understand what transport activities their business undertakes
  • understand the risks and hazards arising from those activities
  • understand how to manage transport activity risks safely
  • ensure that their business has and uses appropriate resources to eliminate or minimise those risks
  • ensure that the business has and implements processes to eliminate or minimise those risks, including processes for information gathering and risk and incident response and remediation
  • check that those resources and processes are being used, implemented and are effective in eliminating or minimising those risks.

The above duties apply to the executive of any business in the CoR. That is, any business which conducts any regulated 'transport activity' (such as packing, consigning, loading, unloading or receiving goods or operating premises at which heavy vehicles are regularly loaded/unloaded), regardless of whether or not their business owns or operates any heavy vehicles.

If safety is not incentive enough, maximum penalties for executives are $300,000 and up to five years in jail.

Given the NHVR's warning, businesses need to ask themselves what they are doing to manage their CoR safety risks.

This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.

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