11 March 2019
Published by Adam Vrahnos
Pursuant to section 705 of the Heavy Vehicle National Law (HVNL), the National Heavy Vehicle Regulator (NHVR) has the power to make guidelines about the preparation and content of an industry code of practice that is registered under the HVNL. And with that power, comes great responsibility to ensure parties in the Chain of Responsibility (CoR) are in compliance with the HVNL.
On 29 November 2019, the NHVR approved the first Registered Industry Code of Practice, otherwise known as the Master Code.
The Master Code is an industry-led framework which provides a set of national standards and procedures to assist businesses in the CoR to comply with the various obligations under the HVNL.
The Master Code sets the benchmark for businesses to identify the common CoR risks arising from supply chain activities and guide businesses on how to identify CoR risks arising in their business and assess which of the available and suitable methods, systems or tools are appropriate for their business.
However the Master Code isn’t just a safety and compliance tool for businesses in the CoR. It also has legal standing. Section 632A of the HVNL applies in a proceeding for an offence under the HVNL and allows a registered industry code of practice to be admissible as evidence of whether or not a duty or obligations under the HVNL has been complied with.
A court may:
Accordingly, the Master Code isn’t simply a set of suggestions to help businesses with their safety and compliance under the HVNL. The Master Code can and will be used against CoR parties if it can be shown that they have completely failed to identify and address the common risks identified in the Master Code.
Given the significance of the Master Code in the CoR space, we will spend the next few months addressing the Master Code’s application to each “pillar” of the CoR regime. In this article, we address the application of the Master Code to mass, dimension and load restraint.
Mass, dimension and load restraint
Given it is early in 2019, we start with a refresher on the mass, dimension and load restraint obligations under the HVNL.
The first port of call is the overarching primary duty under section 26C of the HVNL. Under section 26C, each party in the CoR for a heavy vehicle must ensure, so far as is reasonably practicable, the safety of the party’s transport activities relating to the vehicle.
Each party must, so far as is reasonably practicable:
In order to comply with the “primary duty”, CoR parties must address the mass, dimension and loading requirements under Chapter 4 of the HVNL. The purpose of that chapter is to:
The HVNL attempts to achieve this purpose by imposing mass, dimension and loading requirements for heavy vehicles, restricting access to certain roads by some heavy vehicles and allowing regulatory schemes to apply more flexible mass limits. Particularly in relation to load restraint, with some recent fatalities on our roads being partly attributed to a failure to properly secure loads, there is a significant spotlight on load restraint and all parties subject to CoR must ensure they are compliant with this very technical area.
Pursuant to sections 96, 102 and 111 of the HVNL, a failure to comply with the requirements under Chapter 4 or allowing another person to be in breach, will result in a breach unless there is a reasonable excuse.
The stated purpose of the mass, dimension and loading requirements in the HVNL is to decrease the risks associated with excessively loaded or excessively large heavy vehicles and as a consequence, improve public safety.
Accordingly, mass breaches are often the target of prosecution as mass breaches are often easy to detect in roadside inspections. Mass breaches get particular attention because of the disproportionate impact over mass heavy vehicles have on public infrastructure and because the poor performance of an over-mass heavy vehicle often leads to crashes with disastrous consequences.
The Master Code identifies a range of risks associated with non-compliant mass, dimension and load restraint, including risks that:
We set out below a list of contributing factors, as extracted from the Master Code, which may cause safety risks or encourage breaches of heavy vehicle mass, dimension and loading requirements:
How to approach compliance
The Master Code recommends parties implement a risk-based approach to manage safety and ensure compliance with the HVNL provisions in relation to mass, dimension and loading.
There are many ways that this can be achieved and there isn’t going to be one control that can be implemented which will address every risk. Every compliance framework must be agile enough to respond to new and existing risks in a business’ commercial activities.
For all CoR parties, risks and the controls to mitigate those risks will vary. For most CoR parties, there will be a control for the implementation of a business-wide policy not to enter a contract that is considered to have a risk of causing a driver or operator to breach mass, dimension and loading requirements.
However, other controls will be unique to the specific business and where they sit along the CoR. For example, employers and prime contractors will have to make sure a review process in place to check a driver or subcontractor is performing the activity according to their employment or contractual arrangements and that those arrangements are effective in managing mass, dimension and loading risks.
On the other hand, a scheduler will need to have a control in place to make sure route (journey) plans take into consideration mass and dimension requirements to ensure the route/ infrastructure is suitable for the load and complies with any route permits or conditions as applicable.
As stated above, the Master Code isn’t just a list of suggestions but a tool to assist CoR parties to ensure compliance with the HVNL but also extends to other safety matters beyond the core responsibilities of CoR.
Author: Adam Vrahnos
* A version of this article was originally published in CoR Adviser. This article is © 2019 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 Adam Vrahnos