By Andrew Watt, Chain of Responsibility Australia

The Heavy Vehicle National Law (HVNL) is in transition to impose personal liability on local government executives. Although the HVNL has been around in one form or another since 2004, the 2018 changes will apply a direct duty of care on local government executives.

NHVR advice is that “In mid-2018, the Heavy Vehicle National Law (HVNL) will be amended to provide that every party in the heavy vehicle transport supply chain has a duty to ensure the safety of their transport activities.”. This is in addition to the current fines for parties in the chain of responsibility and applies to the transport activities where provided by local government or provided to local government.

This primary duty represents an obligation to eliminate or minimise potential harm or loss (risk) by doing all that is reasonably practicable to ensure safety. The maximum penalty per offence is $300,000 or five years imprisonment or both for an individual or $3,000,000 for Corporation. This fine targeting executives is:

• payable by the executives concerned
• is not reimbursable
• is not payable under an insurance policy (and legal defence costs may also not be reimbursable)
• is separate to the fines for individual offences set out in the HVNL

The HVNL extension applies though:

• The HVNL is a State law applicable to all entities
• The local government laws in each state extend the law to local governments
• The new amendments to the HVNL, extend the duty of care liability directly to executives

The new duty of care offence has caught many by surprise, particularly since organisations had not reviewed their systems for:

National WHS Laws and the shift:

o   To PCBU (Person Conducting a Business or Undertaking); away from the previous simplistic approach of employer/employee

o   To the Hierarchy of Control in preference to the general risk approach

HVNL / Chain of Responsibility 

Relevance of historic practices that were adopted prior to the new WHS and HVN Laws, including:

o   Decisions on hazards and risks

o   Pre-procurement assessment of hazards

o   Procurement focused on probity and price, and undertaken without updated hazard assessment and risk decisions

The days of the driver being the first person to be prosecuted by the NHVR appear to be numbered. With the current and emerging HVN Laws, local government and their executive who can't demonstrate an appropriate and effective risk management systems will be the first point of call for HVNL breaches as well as WHS Laws.

It’s not just the contract manager’s responsibility, it's everyone’s responsibility. In-line with RMS NSW contracts, the contractor’s CoR performance will need to be assessed and monitored across risks identified in the CoR management plan.

In many areas this will require co-ordinated effort across a range of local government activities and include the active involvement from executives, risk managers and change managers, to ensure that:

• the hazards are identified
• effective and efficient solutions are developed and implemented
• solutions can and are monitored to provide ongoing assurance

For further information and support see coraustralia.com or call Andrew Watt on 0400 440 900.