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Proctor : March 2018
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25 PROCTOR | March 2018 Notes 1 Ferrier Hodgson and Azurium, Transport 2050: Look out! Here comes the future (4 May 2017), ferrierhodgson.com/au/media-and-publications/ publications/-/media/7e398fd069ca4ba8a8fe9fc1f2 60a802.ashx. 2 Australian Logistics Council and ACIL Allen Consulting, The Economic Significance of the Australian Logistics Industry, Australian Logistics Council, austlogistics.com.au/wp-content/ uploads/2014/07/Economic-Significance-of-the- Australian-Logistics-Indsutry-FINAL.pdf. 3 Ferrier Hodgson and Azurium, above n1. 4 Ibid. 5 Safe Work Australia, Work-Related Traumatic Injury Fatalities, Australia (October 2016), safeworkaustralia.gov.au/system/files/ documents/1702/work-related-traumatic-injury- fatalities.pdf. 6 The Heavy Vehicle National Law and Other Legislation Amendment Bill 2016 was by passed by Queensland Parliament (as the host jurisdiction for the Heavy Vehicle National Law) on 1 December 2016. The reforms will automatically roll out to other participating jurisdictions by way of each state and territory applying the uniform law. 7 DPP v Toll Transport Pty Ltd [2016] VCC 1975. The failure to ensure safety ‘so far as is reasonably practicable’ can have devastating consequences. The test was recently applied in a Victorian workplace health and safety case in which Toll Transport was charged with failing to provide, so far as was reasonably practicable, a safe system of work.7 In that case, an employee whose vision was almost completely obscured by the load he was transporting fatally injured another employee when the trailer he was manoeuvring struck the other employee. The court held that the risk of vehicles and crew colliding was “readily foreseeable” and that Toll Transport’s system of work was “hopelessly inadequate and vague”. Cannon J concluded that a substantial fine of $1,000,000 was necessary to reflect the gravity of Toll Transport’s breach and to deter other parties from failing to do their “utmost” to ensure safety. How does the primary duty apply to off-road parties? Current laws impose liability upon chain of responsibility parties for on-road offences such as breaches of mass, dimension, speed, fatigue and loading requirements. The reforms extend this liability to include off-road breaches such as failure to implement procedures that ensure the safety of transport activities. Parties using road transport to send and receive goods must ensure that: • the loads they require to be transported are appropriately secured and do not breach vehicle mass or dimension limits, and • delivery requirements do not cause or encourage breaches by requiring drivers to breach speed limits, driving hour limits or driver rest requirements (new section 26E). For example, a business’s delay in making goods available for transport that compels a driver to breach speed or rest limits to meet a delivery deadline may constitute a breach of primary duty by both the driver’s employer and the business. Directors’ due diligence obligation The HVNL reforms will also impose a positive obligation on business executives (defined as “any person concerned in or taking part in management of the business”) to exercise due diligence to ensure the business complies with its primary duty (new section 26D). For certain prescribed offences, such as tampering with speed limiters, if a corporation commits the offence, the executive officer will also be found to have committed the offence if they did not exercise reasonable diligence to prevent such conduct. How will the primary duties be enforced? The HVNL reforms will give enforcement authorities power to require a person to provide information for the monitoring or enforcement of a primary duty (new section 570A). They also allow for the use of voluntary enforceable undertakings as an alternative to prosecution, whereby parties agree to be bound to take specific steps to ensure compliance (new part 10.1A). What are the penalties for breach? Failure to discharge the primary duty can attract significant pecuniary penalties and a jail sentence. The penalties under the HVNL reforms are divided into three categories: • Category 1: a reckless breach creating risk of death or serious injury attracts a maximum penalty of $300,000 or five years’ imprisonment for individuals (or both), or $3 million for corporations. • Category 2: a breach of duty creating risk of death or serious injury (without recklessness) carries a maximum penalty of $150,000 for individuals and $1,500,000 for corporations. • Category 3: any other breach attracts a maximum penalty of $50,000 for individuals and $500,000 for corporations. How should parties in the chain prepare for the changes? Parties in the chain of responsibility need to take proactive steps to prepare for the reforms, anticipated to commence in mid-2018. These steps may include: • identifying and considering the risks associated with their business and ways of removing or minimising those risks • properly documenting policies and procedures to manage identified risks • implementing measures and conducting audits to ensure that policies and practices are followed • consulting with other parties in their supply chain to identify and manage risks • documenting contractual responsibilities with other parties in their supply chain. Gillian Bristow is special counsel and Emily Ng is a solicitor with Cooper Grace Ward Lawyers. by Gillian Bristow and Emily Ng Transport law
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