The new Heavy Vehicle National Law (HVNL) will commence on 1 October 2018. The new laws will have a wide ranging impact on the construction sector, including the obligations of civil contractors. This article tells you what you need to know to finalise (or kick-start, if you are behind) your preparation for the new laws and penalties.
Why is it important to be ready for the new laws? Aside from the clear safety advantages, four words: ‘it pays to comply’.
What is the Chain of Responsibility (CoR)?
The CoR is a principle that underpins the HVNL. It recognises that transport safety risks don’t just transpire when a driver hits the road, they often arise because of failings in the larger transport supply chain.
The CoR manifests itself in the obligations we see imposed not just on drivers and operators but on all parties that can directly affect safety outcomes of transport activities.
The list of responsible parties includes businesses that consign, receive or deliver machinery, building materials, waste and other goods using heavy vehicles. It also includes parties involved in loading and loading a heavy vehicle.
In summary, the CoR in the HVNL context means that the regulator’s net is cast wide and if a transport risk or incident arises, any party involved in it, or a party who had the ability to control or avoid that risk, could get caught.
What is covered?
With a couple of exceptions, the CoR laws apply to heavy vehicles across Australia. A heavy vehicle is a vehicle or combination with a gross vehicle mass (maximum permitted loaded mass) of 4.5 tonnes or more.
The CoR laws cover the major causes of unsafe loads, vehicles and drivers:
The new laws call on CoR parties to step it up a notch.
Key differences between the old and the new laws are:
What this means for businesses is that they need to get on the front-foot with their safety compliance and reporting measures.
For a CoR business to ensure, so far as reasonably practicable, the safety of its transport activities, reverse engineering a reasonable steps defence, figuring out what the business did or did not know in respect of a single breach and the steps taken to counter its occurrence will not be enough. Under the new laws, CoR parties are required to have the following business practices in place:
Examples of the above systems in practice include:
So, how much will it hurt to get wrong?
Maximum penalties under the new HVNL have been dramatically increased.
Maximum penalties for a corporation are $3 million. Maximum penalties for an individual (eg: executives) are $300,000 and up to five years in jail.
So, the answer is, ‘it will hurt if you do not get this right’. Not many businesses will be able happily to swallow $3 million in unbudgeted and unprofitable expense. Not many bosses will enjoy being fined $300,000 and sent on a mandatory holiday from home for five years.
In addition, courts can disqualify individuals from running a transport business or being in charge of any relevant ‘transport activity’ and make orders for businesses to be subject to a program of performance management and oversight by the regulators, called a ‘supervisory intervention order’.
With the new laws coming in on 1 October 2018, it’s likely that the regulator will be on the prowl to set an example for industries to comply with their new HVNL obligations; the construction industry, which so heavily relies on the use of heavy vehicles, is one such industry to keep a close eye on. As we see it, there are two choices, comply or face the unforgiving burden of paying up.
Authors: Nathan Cecil & Rebecca Niumeitolu
Nathan Cecil, Partner
T: +61 2 8083 0429
Geoff Farnsworth, Partner
T: +61 2 8083 0416
Harry Kingsley, Partner
T: +61 3 9321 9888
Suzy Cairney, Partner
T: +61 7 3135 0684
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this newsletter is accurate at the date it is received or that it will continue to be accurate in the future.
Published by Nathan Cecil, Rebecca Niumeitolu