Lawyers call for COR penalties focus


NTC review may open way for national law to more closely reflect Work Health and Safety Act

Lawyers call for COR penalties focus
A change in approach by regulators and courts may be needed

 

Any reform of the chain of responsibility provisions in the new Heavy Vehicle National Law (HVNL) should examine how penalties are treated, according to transport lawyers.

The National Transport Commission (NTC) is reviewing the provisions and submissions are due by Friday.

Breaches of the HVNL are criminal offences and attract heavy penalties that range from $3,000 to $10,000 per breach "and deficiencies in processes and implementation may result in dozens, or even hundreds of breaches", Barry Sherriff and Luisa Gonzaga of law firm Norton Rose Fulbright point out in an advisory.

"There is said to be unanimous agreement amongst the stakeholder groups that the current penalties imposed under the HVNL should be increased and be aligned with those that may be imposed under the [Work Health and Safety] Act," they state.

"This would see a very significant increase in penalty levels under the HVNL, reflecting the seriousness of breaches, particularly those relating to systems failures that allow multiple or repeated breaches to occur.

"This increase in penalties may, in our view, require a change in approach by the regulators and the courts to take a holistic approach to breaches rather than adding up a number of relatively small penalties and often reaching the same or a higher total penalty.

"Changes to the penalty levels may accordingly produce a change in the nature or at least perception of these offences."

They underline that ‘parties to the chain’ need to attend to risks that the law presents in the event of a breach.

"Once the facts have been proven (e.g. mass weight limits were exceeded), the burden is then on the accused to prove a reasonable steps or reasonable diligence defence," the lawyers say.

"It is therefore critical that your business have and effectively implement policies and processes for compliance associated with the role of the business in the chain, including taking reasonable steps to identify how others along the chain (e.g. carriers) are providing for compliance."

If it is agreed that the provisions are brought closer to the WHS Act other aspects they highlight include expansion of parties in the chain, so the weight of the law does not fall unfairly on drivers, and clarification of executive officer liability, and the appropriateness of a reversed onus of proof for extended liability.

"If this option is accepted this will make compliance obligations for executive officers a lot clearer and mean that compliance under the HVNL is aligned with compliance under the WHS Act," the lawyers say.

"Further, adopting the due diligence definition will ensure that those who govern the organisation will be aware of the hazards and risks associated with the business and promote safe work practices, ongoing compliance and continuous improvement.

"Conversely, adopting the definition of due diligence will make it easier for the prosecuting body to demonstrate a breach by an executive officer and not require the prosecutor to prove that breach by the executive officer has caused a breach by a driver."

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