Given the broad terms in which vehicle maintenance obligations are couched under the Heavy Vehicle National Law (HVNL), you may feel confused and overwhelmed about what your obligations actually are. This article provides a starting place for parties in the Chain of Responsibility (CoR) to consider their vehicle maintenance obligations and their strategies for compliance.
What are the key maintenance obligations?
The principal obligations for heavy vehicle maintenance under the HVNL are as follows:
- CoR parties must not use, or permit another person to use, a heavy vehicle on the road that is unsafe. A vehicle is unsafe where its condition or the condition of its components or equipment is such that using the vehicle would be unsafe or would endanger public safety
- CoR parties must not use, or permit another person to use, a heavy vehicle that contravenes an applicable heavy vehicle standard. Heavy vehicle standards arise under the Australian Design Rules and the Heavy Vehicle (Vehicle Standards) National Regulation, which set out various vehicle standards, including general safety requirements such as those relating to steering, tyres and vehicle configuration.
The primary duty for CoR parties – that is, to ensure so far as reasonably practicable the safety of their transport activities – intersects with these principal obligations. For example, an operator that does not inspect a heavy vehicle regularly and allows it to be used on the road whilst defective could be liable under s 89 and also for contravening its primary duty.
What are your responsibilities?
By and large, responsibilities for maintaining and inspecting heavy vehicles reside with the operator of a heavy vehicle, as the CoR party with the greatest capacity to control, eliminate and minimise risks associated with the vehicle.
An operator's responsibilities include:
- ensuring that its business has effective Maintenance Management Systems. According to the Daily Safety Check Guide and the NVHIM Fact Sheet – Brake Testing on the National Heavy Vehicle Regulator's (NHVR) website, daily checks should, at a minimum, cover brakes, lights and reflectors, windows, mirrors and wipers, structure and bodywork, brakes, and the engine, driveline and exhaust
- ensuring heavy vehicles are regularly maintained and inspected according to the applicable heavy vehicle standards. The National Heavy Vehicle Inspection Manual provides a standardised manual to inspect heavy vehicles
- if a defect is detected, not allowing the defective vehicle to be used until the defect can be rectified and the vehicle is safe and compliant with applicable standards.
A driver will also have duties in relation to heavy vehicle maintenance, although usually their obligations will not be as onerous as those of an operator. For example, if a driver observes a defect in a heavy vehicle such as an oil leak, a broken seatbelt, a broken mirror or flat tyre, then the driver's maintenance responsibilities are likely to be triggered such that they should:
- not drive the heavy vehicle, as it may be unsafe and non-compliant with heavy vehicle standards
- notify the operator of the nature of the heavy vehicle defect.
An executive must exercise due diligence to ensure that their business complies with safety duties, including the duty not to permit a vehicle to be used if it is unsafe. It is important for an executive of a business that owns and operates heavy vehicles to ensure that the business has, among other things:
- effective and sufficiently resourced Maintenance Management Systems
- systems for their management team, drivers and inspectors to report any suspected or actual heavy vehicle defects and record steps taken to rectify faults
- training for management, drivers and inspectors to ensure that they can identify heavy vehicle faults according to their respective roles and expertise.
Other CoR parties
Other CoR parties' maintenance responsibilities are only likely to be triggered where they observe a vehicle defect. In this case, their responsibilities are likely to involve not permitting the use of the unsafe or defective heavy vehicle and notifying the driver and operator of the suspected or actual vehicle non-compliance.
What happens if an operator contravenes their maintenance obligations?
A failure to comply with maintenance obligations could result in a heavy vehicle inspector issuing a defect notice. Generally, a major defect notice prohibits the use of a heavy vehicle until the regulator decides that the vehicle is no longer defective. A minor defect notice provides that a vehicle cannot be used until a specific action is taken to rectify the vehicle defect.
Prosecution under the HVNL
The maximum penalty for a business that permits a person to use a heavy vehicle that does not comply with applicable heavy vehicle standards is $15,000. The maximum penalty for a business that allows an unsafe heavy vehicle to be used is $30,000.
Remember, although the costs of maintenance can be high, they are arguably far outweighed by the serious costs and risks to your business, road users and infrastructure as a result of non-compliance with maintenance obligations.
In 2017, the South Australian Court of Criminal Appeal upheld a sentence of 12 years' imprisonment for the owner of a company for the offences of endangering life and manslaughter by sending out its driver in a truck with faulty brakes. As the Court stated: "The consequences of driving an unsafe heavy vehicle can be horrendous" R v Colbert (2017).
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.