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Chain of responsibility reforms to align with OHS laws

Tuesday, 29 March, 2016 - 11:00
Industry news

Chain of responsibility safety

Reform of Australia’s chain of responsibility regime under the Heavy Vehicle National Law looks likely to occur, with a view to better alignment with other national safety laws, clarification and simplification of chain of responsibility (CoR) obligations, improved compliance and, ultimately, better safety outcomes, according to an expert in the area.

Marissa Dreher, Director of Dreher Legal, a Melbourne based firm practising exclusively in OHS law, said an extensive review and consultation process was undertaken following growing concern by industry groups that there is an unnecessary, increased cost and burden to duty-holders who are trying to comply with legislation which is prescriptive, complex and inconsistent – not only with other national safety laws, but within the Heavy Vehicle National Law (HVNL) itself.

The key recommendations include:

  • To reformulate the existing prescriptive HVNL obligations on current CoR parties and replace them with a “principles” or “outcomes-focused” approach. “So each party will have a primary duty of care to ensure the safety of road transport operations,” said Dreher, who also serves as a board member for the SIA.
  • The primary duties are qualified by the standard “so far as is reasonably practicable” (replacing the current standard of “all reasonable steps”),
  • The primary duties apply to all current CoR parties, based on the role they perform within the chain,
  • The primary duties will be limited to the existing regulatory framework of the HVNL, and
  • The primary duties replace the existing CoR obligations of all current CoR parties to the extent possible.

Dreher said other reforms being considered include:

  • Introducing a proactive duty on officers to exercise due diligence to ensure corporate compliance with the HVNL (similar to that under the Model WHS Act),
  • The adoption of general principles applicable to the primary duties (also similar to those under other national safety laws, such as non-transferable and concurrent duties, and the principle of shared responsibility),
  • The removal of the reverse onus of proof on CoR parties, and
  • Increased maximum penalties in line with those available under other national safety laws.

“A benefit of moving to a primary duties approach is that it creates greater flexibility for duty-holders to develop proactive, innovative and adaptive risk management strategies in relation to their CoR obligations,” said Dreher.

“These strategies could be tailored to the specific circumstances within their organisation, allowing them to develop solutions that work best for their business.”

Further, Dreher said duty-holders may be able to comply with their CoR duties under an amended HVNL by utilising and integrating their current policies and procedures for managing safety arising from their WHS/OHS and other transport duties.

A draft Bill to amend the HVNL is due to be prepared for ministerial consideration in May this year, and if the amendments to the HVNL are ultimately adopted, Dreher said it is anticipated that they will commence in late 2016 or early 2017.

“CoR parties should track the progress of these proposed reforms, to ensure that they are aware of, and understand, any significant changes that may affect them,” she said.