Heavy vehicles / Rules & compliance / Chain of responsibility / COR: Past reviews & amendments

COR: Past reviews and amendments to chain of responsibility laws

COR: Chain of responsibility: past reviews & amendments

Industry Request for Review of the CoR provisions and the Taskforce Review

On 14 September 2012, the Australian Trucking Association (ATA), the Australian Logistics Council (ALC) and the Australian Livestock and Rural Transporters Association (ALRTA) jointly wrote to Commonwealth and State ministers, requesting that CoR and executive officer liability provisions in the HVNL be re-drafted based on affirmative duties, consistent with the Work Health and Safety approach. In November 2012 the then Standing Council on Transport and Infrastructure established the Chain of Responsibility Taskforce to review the HVNL CoR provisions (the Taskforce Review). The taskforce, comprising representatives from industry, regulators, the Transport Workers Union and Safe Work Australia reported to ministers in May 2014 (Chain of Responsibility Taskforce, 2014). The Taskforce Review recommended there be further investigation of both the existing duties regime and executive officer liability. This recommendation was accepted by ministers in May 2014 and the NTC was asked to undertake this further investigation.

CoR Duties Review

In November 2014, the NTC released the Chain of Responsibility: Duties Review Discussion Paper for public consultation. The paper acknowledged the view of stakeholders that although CoR is achieving its objectives, there was opportunity to improve the regime to remove inconsistencies and ensure that regulators can target all behaviours that may adversely influence road safety. Twenty-five submissions were received in response to 2014 Discussion Paper.

The 2014 Discussion Paper proposed four options to remove inconsistencies and ensure that off-road behaviours are appropriately managed:

  • Option 1: Primary (general) duty of care – an overarching duty applicable across the HVNL and to all parties in the chain.
  • Option 2: Chapter-based duties – the placement of an overarching duty applicable to all chain parties within the relevant chapters.
  • Option 3: Additional specific obligations – duties applicable to identified and defined chain parties (similar to what currently exists within the HVNL).
  • Option 4: No legislative change - focus on operational/policy components.

Based on the stakeholder feedback, the NTC recommended to ministers that a primary duties regime be developed, on the basis this option would best clarify existing responsibilities and, ensure that behaviours that may adversely influence road safety could be better targeted by regulators. In May 2015 transport ministers endorsed this recommendation and agreed the NTC develop detailed policy recommendations for ministerial consideration in November 2015 on the formulation of primary duties on current CoR parties, and including executive officers, limited to the existing framework of the HVNL.

Executive Officer Liability Review

In 2014 the NTC undertook an assessment of the HVNL’s executive officer liability provisions in section 636 and Schedule 4 of the HVNL to ensure consistency with the COAG Personal Liability for Corporate Fault Principles and Guidelines (COAG, 2012).

The NTC found the HVNL was not consistent with principle 4 which provides that the imposition of personal criminal liability on a director for the misconduct of a corporation should be confined to situations where:

  • there are compelling public policy reasons for doing so
  • liability of the corporation is not likely on its own to sufficiently promote compliance
  • it is reasonable in all the circumstances for the director to be liable.

In May 2015 ministers agreed that 58 of 129 offences currently attracting EoL under section 636 of the HVNL should be retained including key safety offences in the area of vehicle standards, mass dimension and loading (MDL), speeding and driver fatigue where executive officers may have direct responsibility. Ministers also agreed in principle that these offences should require a burden of proof consistent with the COAG principles and guidelines, that is, they should attract type 1 liability (i.e. that the onus of proof will rest with the prosecution).

Publications

Last Updated: 18/12/2015