Reform could see the approach go down the path of work health and safety provisions
Chain of responsibility (COR) reform could see it have wider scope, an occupational health and safety legal expert believes.
Norton Rose Fulbright senior associate Nicki Milionis states most submissions to the National Transport Commission’s (NTC) Duties Review Discussion Paper give some support to extending COR to mirror the work health and safety (WHS) provisions.
“While the views in the submissions to the NTC Discussion Paper differ, and many are contingent upon further investigation taking place, these initial findings show that there is a willingness for reform to take place similar to what we experienced with WHS,” Milionis says.
“If changes to chain of responsibility laws were to proceed along these lines, it could mean that parties beyond those currently nominated in the legislation will be captured by the legislation and have duties in relation to heavy vehicle safety.”
The discussion paper set out four main options for reforming the CoR duties by:
- revising the legislation to take a similar approach to WHS legislation by including an overarching primary duty of care which might have the effect of causing the legislation to apply to a wider range of parties
- amending the current legislation to include an overarching duty to be inserted into each of the chapters
- amending the current legislation to add specific duties to ‘fill gaps’ but keeping the current approach
- not making any legislative change but rather to focus on education, further guidance material and operational guidelines.
Another expert, King & Wood Mellesons dispute resolution/litigation partner Sarah Harrison, underlined last year how serious this can be for managers.
“The addition of positive duties of due diligence will mean that there is an onus on officers to demonstrate that they have taken reasonable steps to ensure the company has complied with the chain of responsibility provisions with the potential for jail terms or significant fines to be imposed in the event of an incident occurring where it can be demonstrated that the chain of responsibility requirements have been breached,” Harrison says.
Milionis notes a majority, including the National Heavy Vehicle Regulator (NHVR), support amending the COR provisions and most of those “were comfortable with using the WHS approach” to both the overarching primary duty of care and the term “so far as reasonably practicable”.
Against that, she highlights Australian Logistics Council as one of the few respondents that did not support the first option at all (whether or not further investigation or detail was provided). It was of the view that “more emphasis should be placed on explaining the current legislation”.
The COR Taskforce is to present the preferred approach to CoR duties to ministers on the Transport and Infrastructure Council next month.