Archive, Industry News

Rolling Thunder to roll along the chain says lawyer

HVNL reforms seen as easing task of tackling links beyond trucking

 

An Operation Rolling Thunder-like blitz rolling into terminal and distribution centre offices will be almost certain after December 10, a senior legal expert believes.

Law firm DFW (Australia) partner Damian Hegarty argues that date sees ‘Chapter 1A Safety Duties’ of the Heavy Vehicle National Law and Other Legislation Amendment Act 2016 are due to automatically come into force, after being postponed in October 2017.

These provisions seek to more closely align Chain of Responsibility (COR) laws with workplace health and safety (WHS) laws.

Those amendments which bring the HVNL into line with the workplace health and safety laws include:

  • the introduction of a positive duty on all parties in the COR to ensure so far as is reasonably practicable, the safety of the party’s transport activities
  • imposing an obligation on executives of a legal entity to exercise due diligence to ensure compliance with the safety duty
  • prosecution will have the onus of proof and must prove beyond reasonable doubt what a duty holder could have done, should have done and what was not done in ensuring the safety of the party’s transport activities.

He notes in a legal update that the specific amendments contained in Chapter 1A “reframe the current obligations imposed, by the HVNL, on participants in the COR to create an overarching and positive duty of care, on all parties in the COR”.

This is consistent with the approach adopted in other workplace health and safety (WHS) laws.

“‘Operation Rolling Thunder’ was focused on drivers of heavy vehicles, however, the amendments to HVNL emphasises the responsibility of all participants in the supply chain,” Hegarty says.

“Accordingly, once the amendments come into force on 10 December 2018, we would anticipate a similar operation, though focused on those who may be considered ‘upstream duty holders’ who will be captured by the ‘primary duty’.”

Amongst those captured are businesses:

  • involved in the manufacturing and mining industries, which requires both receiving primary materials and delivering the manufactured good to customers
  • within the retail industry, requiring both the receipt of stock from suppliers for sale and potentially the delivery of goods to customers
  • within the construction industry, requiring the delivery of materials to complete projects.

In addition to those considered to be ‘upstream duty holders’, all participants in the supply chain naturally include those in the transport industry who are; schedulers, loading managers, loaders and packers, and unloaders.

Asked whether there were weaknesses in COR before the change that hindered enforcement along the change, Hegarty tells ATN: “We do not necessarily believe the lack of a ‘primary duties’ was/has been standing in the way of the authorities.

“Rather, given the primary duties closely reflect duties imposed by health and safety obligations, it provides the springboard for further joint operations to be undertaken by authorities.”

He sees a trigger for a more wide-ranging approach in a new provision, section 570A, which creates a power for authorised officers in certain circumstances to require a person to provide information in relation to a possible contravention of the primary duty, or that will assist in the monitoring or enforcing compliance with that duty.

“This is a compulsive power, in that a person must comply with the requirement to provide information, even if the information might tend to incriminate the person or make them liable to a penalty,” Hegarty says.

But there are shields, as such information cannot be used directly or indirectly against the person, other than in proceedings for false or misleading information.

“This provision, while modelled on s.155 of the Work Health and Safety Act, is much more limited in its application, as it only applies to information that is relevant to the primary duty, and the authorised officer requiring the information must be specifically authorised by the Regulator or a relevant Police Commissioner to exercise the power,” Hegarty says.

“In operations such as ‘Operation Rolling Thunder’, which adopt a multi-agency, cross-jurisdictional approach, it will be important to understand whether an officer has received authorisation to exercise the compulsive powers and are exercising them appropriately.

“This will provide an individual with protection against the Regulator using any incriminating information provided, against the individual.”

He advises supply chain participants to ensure they are able demonstrate what measures are in place to prevent HVNL breaches occurring, and whatever was “reasonably practicable” was done to prevent the contravention.

In the months before December, they should review their policies and procedures, to ensure they do not in any way incentivise another party to breach any HNVL provision.

 

Previous ArticleNext Article
Send this to a friend