Executives now have a positive duty to exercise due diligence to ensure that their businesses comply with their safety duties. Safety duties include Chain of Responsibility (CoR) parties’ primary duty under section 26C as well as a list of additional duties, such as the obligation not to permit unsafe vehicles to be used and the obligation to comply with heavy vehicle authorisations.
This article provides you with an overview of the recently changed executive responsibilities.
Who is an executive?
An executive under the Heavy Vehicle National Law (HVNL) includes directors as well as individuals in management positions who are responsible for controlling or directing the use of heavy vehicles.
What is ‘due diligence’?
It can be helpful to think of due diligence is a minimum standard of behaviour that the HVNL imposes on executives in relation to supervising and implementing systems to support their businesses’ transport activities.
To discharge these obligations, executives are expected to have an ongoing understanding of their businesses’ transport activities, legal obligations and risks associated with their business’ transport activities. They are also expected to ensure that their businesses are equipped with appropriate resources to eliminate or minimise those risks and to implement processes to deal with safety hazards, to comply with business’ primary duty and to report incidents.
How is the obligation to exercise due diligence different from executives’ current exposure to prosecution under extended liability provisions?
CoR parties will be familiar with extended liability provisions under the HVNL. For example, section 183 of the HVNL provides that if a mass, dimension or loading requirement is breached, other parties in the Chain, such as the driver’s employer, are also taken to have committed a mass, dimension or loading offence (as applicable).
The executive duty obligation under section 26D is different for two main reasons:
What types of actions can executives take to comply with their duties under section 26D?
What are tell-tale signs that executives are not complying with their duty?
What if executives breach their duty?
The maximum penalty for a contravention of section 26D turns on which safety duty the executive is has failed to ensure the business is complying with. For example:
Author: Rebecca Niumeitolu
* A version of this article was originally published in CoR Adviser. This article is © 2018 Portner Press Pty Ltd and has been reproduced with permission of Portner Press.
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 Rebecca Niumeitolu