First prosecution for breach of new Heavy Vehicle National Law chain of responsibility duties

In brief 3 min read

The National Heavy Vehicle Regulator (NHVR) has commenced its first prosecution into duty holders under the new chain of responsibility (CoR) provisions of the Heavy Vehicle National Law (HVNL), which has been adopted in all states and territories (other than Western Australian and the Northern Territory).

How does it affect you?

• Participants in heavy vehicle transport supply chains must be aware of their duties under the CoR provisions in the HVNL.
• Company executives in particular should be mindful of their personal obligations to conduct safety due diligence under the HVNL.

Background

The NHVR commenced an investigation into a Victorian trucking company, N Godfrey Haulage (the Company), after the NHVR received a tip-off on its confidential reporting line. The NHVR has now commenced a prosecution against the Company alleging that it breached its fatigue management duties under the HVNL. The Company's director is also being personally prosecuted for allegedly failing to comply with his due diligence duties under the HVNL.

The amendments to the HVNL that led to the prosecution

On 1 October 2018, the HVNL was amended to provide that each party in the CoR in the operation of a heavy vehicle has a positive duty to ensure, so far as is reasonably practicable, the safety of the party's transport activities relating to the vehicle. This duty mirrors the existing primary duty under the model WHS laws that have been implemented in a number of Australian jurisdictions.

The amendments also introduced obligations on executives to conduct due diligence to ensure the company complies with the safety duties it owes under the HVNL. 'Executives' include executive officers of corporations, partners and management members of unincorporated bodies.

The content of this due diligence obligation also mirrors the officer due diligence obligation under the model WHS laws. In summary, under the HVNL, executives must take reasonable steps to:

• acquire, and keep up to date, knowledge about the safe conduct of transport activities;
• gain an understanding of the nature of the entity's transport activities and associated hazards and risks;
• ensure appropriate resources are allocated and used to eliminate or minimise those hazards and risks;
• ensure appropriate processes are implemented to comply with safety duties; and
• verify that the resources and processes are being provided, used and implemented.

Executives face personal liability for civil and criminal penalties in the event of a breach of their due diligence obligations.

What's next?

Watch this space for further updates on this prosecution, which is currently ongoing. In the meantime, all parties involved in the heavy vehicle transport industry should ensure they are aware of, and comply with, their CoR obligations.