HVNL amendment: COR poised to become risk-based

By: Anjali Behl


Gillian Bristow discusses the proposed provisions and what operators must do to avoid being caught in the COR trap

HVNL amendment: COR poised to become risk-based
Gillian Bristow

 

The Heavy Vehicle National Law and Other Legislation Amendment Bill 2016 has been tabled in the Queensland Parliament and if accepted, the proposed provisions will bring about some important changes in the existing chain of responsibility (COR) laws.

The ramifications of these proposed changes include proceedings being brought against parties in the chain even before an incident occurs.

Moreover, the proposed changes call for greater penalties in case of breaches.

In its industry advisory published late last month, Cooper Grace Ward Lawyers warn that the "proposed changes will significantly alter the current regime and impose a ‘primary duty’ on all parties in the chain of responsibility to ensure, so far as is reasonably practicable, the safety of road transport activities".

ATN speaks to Cooper Grace Ward Lawyers special counsel Gillian Bristow to understand the implications of some of these provisions and what managers and operators must do to avoid being caught in the COR trap.

Primary duty

The Bill proposes to include a new primary duty section to increase a level of non-transferable duty on each party within the chain.

The proposal states: "Each party in the chain of responsibility for a heavy vehicle must ensure, so far as is reasonably practicable, the safety of the party’s transport activities relating to the vehicle."

Bristow says this proposal means that business owners, operators and managers will have to take steps to ensure the employees are aware of the safe practice guidelines and procedures to effectively manage risk.

"The introduction of a primary duty that applies regardless of whether an incident has occurred means that parties in the chain of responsibility will need to take proactive steps to identify the risks associated with their transport activities and implement measures to manage those risks.

"The new legislation will shift the focus of chain of responsibility to being risk based, not outcome based.

"The effect of the positive due diligence obligation will be that directors and managers will need to take proactive steps to keep up to date with knowledge about safe practices and ensure that resources are available and processes are in place to manage risk, respond to incidents and to verify that applicable processes are followed."

Reasonably practicable

Not unlike the Work Health and Safety (WHS) regulations, the scope of the term ‘reasonably practicable’ will be determined by what can be done and whether it is reasonable to do it.

"Based on the approach taken under WHS legislation, what is reasonably practicable will be determined objectively," Bristow says.

"There are two elements to what is ‘reasonably practicable’:

  1. "The party must first consider what can be done (that is, what is possible in the circumstances for ensuring safety).
  2. The party must then consider whether it is reasonable in the circumstances to do all that is possible."

"To identify what is or was ‘reasonably practicable’ all of the relevant matters must be taken into account and weighed up and a balance achieved that will provide the highest level of safety that is both possible and reasonable in the circumstances.

"The relevant matters include:

  1. The likelihood of a safety risk, or damage to road infrastructure, happening.
  2. The harm that could result from the risk or damage.
  3. What the person knows, or ought reasonably to know, about the risk or damage.
  4. What the person knows, or ought reasonably to know, about the ways of removing or minimising the risk or preventing or minimising the damage.
  5. The availability and suitability of ways to remove or minimise the risk.
  6. The cost associated with the available ways, including whether the cost is grossly disproportionate to the likelihood of the risk or damage.
  7. Under WHS legislation, ‘reasonably practicable’ measures have been held to include conducting adequate hazard identification and risk assessments, developing specific operating procedures and instructing and training workers in the specific operating procedures."

Public risk

The advisory states that: "The level and nature of each party’s obligations under the new provisions depends on the nature of the public risk created by their activities and their capacity to control, eliminate or minimise any risks."

Explaining this, Bristow says the proposed provisions include some general principles for primary duties such as shared responsibility that depend on the duties associated with each party’s role in the chain of command.

"In similar terms to other national safety laws, the proposed new provisions include a number of general principles applicable to the primary duties," Bristow says.

"One of these principles is the shared responsibility principle. This principle provides that the level and nature of a party’s responsibility depends on:

  1. "The functions that person performs or is required to perform.
  2. The nature of the risk created by the party’s activities.
  3. The party’s capacity to control, eliminate or minimise the risk."

What can be done

The new proposals intend to impose "significant" penalties in case of breaches or failure to discharge a primary duty of care compared to other national safety regulations.

The penalties are based on the nature of each risk and the scope of the resulting damage, with the most serious breach attracting a penalty of $300,000 or five-year imprisonment, or both, in case of individuals and $3 million for corporations.

Considering the magnitude of these repercussions, Bristow suggests business owners, directors and managers must take the following to protect themselves and their business:

  • "Identify and consider the risks associated with their business and ways of removing or minimising those risks.
  • Consider what policies and practices are currently in place to manage those risks and what further steps could and should be taken to manage the risks.
  • Consult with other parties in the chain to manage relevant risks.
  • Analyse any incidents or near misses and take steps to ensure that any practices and procedures are modified to prevent future incidents.
  • Consider risk management practices set out in industry codes of practice, reputable technical standards and industry publications.
  • Properly document policies and procedures and contractual responsibilities with other parties in the chain and put in place measures to ensure that policies and practices are followed."

  

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