on the chain of responsibility: duties review...

FEBRUARY 2015

ALC SUBMISSION ON THE CHAIN OF RESPONSIBILITY:

DUTIES REVIEW DISCUSSION PAPER

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PO Box 20 DEAKIN WEST ACT 2600P:+61 2 6273 0744 F:+61 2 6273 3073 E: [email protected]

www.austlogistics.com.au

©Australian Logistics Council, FEBRUARY 2015

THIS SUBMISSION HAS BEEN PREPARED WITH THE ASSISTANCE OF KM CORKE AND ASSOCIATES, CANBERRA.

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ALC view at a glance

ALC believes that the chain of responsibility laws contained in the HVNL are generally operating satisfactorily.

ALC also notes the general continued improvement of death and injury statistics relating to the operation of heavy vehicles.

On balance, the interoperation of:

» the general duty based obligations a person conducting a business or undertaking (PCBU) possesses under WHS law, that implies a requirement for continuous improvement such as should encourage a willing industry participant to adopt an approach to safety that is more than a ‘check box’ approach; together with

» more specific rules generally contained in the Heavy Vehicle National Law (HVNL)

should lead to better safety outcomes.

For this reason, ALC continues to the hold the view that more emphasis should be placed on explaining the current legislation. However, if there are any specific weaknesses in the HVNL that are identified, they can be corrected using the HVNL Legislation Maintenance Programme.

Moreover, businesses address their regulatory obligations in a holistic manner. It follows that all of the changes to be proposed in the chain of responsibility (if any) should be presented together so that the workability of the proposed legislation can be tested, implementation costs determined and changes to operational procedures designed and implemented.

It follows that whatever changes to heavy vehicle regulation are made as a result of the Roadworthiness Review, final consideration of any changes to the chain of responsibility legislation should be considered as part of the general duties review.

Any legislation prepared with a view of amending the HVNL as a result of considering submissions made to this discussion paper (or anything arising from the Roadworthiness Review as it relates to amendments to the law dealing with the chain of responsibility), must form part of the Regulatory Impact Statement.

Finally, ALC members have expressed concern about the quality of some regulatory impact statements that have been prepared proposing amendments to the law with many chronically understating both the time and cost required to instigate proposed reforms.

ALC therefore expects that any regulatory impact statement proposing amendments to the chain of responsibility should contain:

» a full analysis of the anticipated costs on industry (both in time and money) that any proposed changes will incur; as well as

» most importantly, an estimate of the increased safety outcomes that making such changes to the law will bring the only substantive reason to change a system that is generally functioning in a satisfactory manner.

Reviewing Options 1 and 2ALC does not support Option 1.

The current HVNL structure serves to buttress the general duties imposed on a PCBU by WHS legislation. Inserting a general duty in the HVNL to ensure workplace health and safety would be a unnecessary duplication the would not lead to any greater safety outcomes.

Moreover, the necessary effect of inserting a general duty into the HVNL is that in the event of an investigation, transport enforcement officers with authority to exercise powers under the HVNL would effectively be conducting the same investigation as workplace health and safety officers.

It is for those authorised to exercise powers established by the HVNL to ensure that those provisions of the National Law designed to manage and reduce specific behaviour that enhances safety outcomes specifically relevant to the operation of heavy vehicles set out by the chapters of the HVNL are enforced.

A more practical concern is that there could be a divergence of policy approach between transport enforcement and WHS officers as to what constitutes satisfaction of the duty to ‘take all reasonable steps to ensure (safety)’.

EXECUTIVE SUMMARY

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The NHVR must currently rely on enforcement services provided by jurisdictional regulators under service agreements.

However these regulators not only discharge duties on behalf of the NHVR but also must discharge responsibilities according to priorities established by the jurisdictions that employ them.

ALC members report that the compliance costs inherent in having to comply with the current law that is enforced in different ways by different jurisdictions, will undoubtedly increase as different jurisdictions establish different standards as to what constitutes the taking of all reasonable steps to prevent a breach of the HVNL.

ALC is therefore of the view that an extension of a duty-based regulatory regime cannot be supported unless and until the NHVR has full-time employees actively involved in the enforcement of the HVNL.

Finally, if a greater use of general duties is adopted, ALC believes that:

» at the same time there should be a complete review of the ‘command and control’ provisions contained in the National Law so as to remove those provisions dealing with behaviour that is considered to be better dealt with through imposing on the chain of responsibility participants broad general duties, so as to avoid people facing prosecution under multiple offences for the same behaviour; and

» compliance with any industry code of practice registered under the HVNL and developed to assist code participants manage chain of responsibility obligations should be regarded as a defence against any prosecution the person has failed to take all reasonable steps to prevent a particular contravention of the HVNL.

(The observations relating to Option 2 also apply if a general duty framed as ‘a party in the chain of responsibility must take all responsible steps to ensure that a breach of (the HVNL) does not occur’ is proposed).

In that case, participants in the chain of responsibility will incur unnecessary administrative costs in trying to ‘cut the difference’ between the different approaches of two statutory agencies.

For these reasons ALC does not support the implementation of Option 1.

ALC also does not support the introduction of Option 2.

Option 2 is preferable to Option 1 as the proposed duties are more closely aligned to more granular rules contained in the Chapters of the HVNL.

That said, as suggested on page 20 of the discussion paper, chain parties may not be certain about where their responsibilities begin and end.

This is a problem that perennially bedevils legislative designs incorporating general duties.

Given the atomised nature of the road transport industry generally it can be argued that the general duties imposed by WHS law, enhanced by sector specific rule based law as developed under the HVNL, is the regulatory design most likely to advance desired safety outcomes.

ALC does not accept an argument that a relatively prescriptive legislative regime precludes the targeting of poor performers and that the current legislative structure somehow requires every marginal breach of the law to be brought to sanction.

With appropriate internal guidelines and managerial guidance, ALC believes enforcement officers should be able to use lawfully gained intelligence to monitor those industry participants who are reasonably believed to be in breach of their chain of responsibility obligations (or indeed their general HVNL obligations) and deal with them using the laws currently in force.

The timing of any reform

As discussed above, whether or not a particular chain of responsibility participant has taken all reasonable steps to avoid non-compliance is somewhat subjective.

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Appropriate standard of duty

ALC reaffirms its previous view that there is no particular advantage in changing the standard of duty of ‘taking all reasonable steps’ of ensuring a breach of chain of responsibility legislation has not occurred.

Need for a rigorous RIS and an exposure draft of any legislative changes

It is unfortunate that this general duties review remains at the discussion paper stage while the Roadworthiness Review, being conducted by NTC and the NHVR, is at the Regulatory Impact Statement stage of development.

Businesses address their regulatory obligations in a holistic manner. It follows that all of the changes to be proposed in the chain of responsibility (if any) should be presented together so that the workability of the proposed legislation can be tested, implementation costs determined and changes to operational procedures designed and implemented.






» most importantly, an estimate of the increased safety outcomes that making such changes to the law will bring-the only substantive reason to change a system that is generally functioning in a satisfactory manner.

Other matters discussed in the discussion paperOnus of proof for extended liability

A general duty regime requires a careful examination of what should have done in a particular circumstance so as to comply with the law.

As this cannot be clearly determined until after the event, it would appear highly inappropriate to create a vicarious liability regime-it must be for the prosecution to prove that a particular person was in a position to have influence the manner by which a particular freight chain operates before liability can be alleged.

It goes without saying that ALC agrees that any new provision will need to be assessed against the COAG Principles and Guidelines-Personal Liability for Corporate Fault.

Penalty levels

ALC remains of the view that the monetary penalties contained in the HVNL are appropriate given the role the HVNL plays with regards to the regulation of safety.

More generally, the penalties contained in the HVNL have only just been reviewed. It is disappointing that this is an issue that appears to be continuously addressed. ALC believes that current penalty quanta should remain for a period of time so that the new national scheme can settle.

Impact on enforcement tools forward/impact on enforcement powers

ALC agrees with the direction of the discussion paper set out on pages 26 and 27 that these issues should only be reviewed once:

» any revised structure of the chain of responsibility; and more generally

» the interrelationship between the HVNL and WHS legislation

has been finally determined by the Transport and Infrastructure Council of COAG.

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ALC SUBMISSION ON THE CHAIN OF RESPONSIBILITY: DUTIES REVIEW DISCUSSION PAPER

Problem analysis

Chapter 5 of the discussion paper sets out what are argued to be potential problems with the chain of responsibility law as currently set out in the HVNL.

Part 5.2 discusses the concept of ‘safety as an integrated approach’.

ALC members operating within the freight chain and possessing duties under the chain of responsibility, treat safety in an integrated manner as a matter of course.

The HVNL establishes a regulatory relationship between the National Law and workplace health and safety(WHS) legislation1.

In particular, WHS law imposes obligations on a person conducting a business or undertaking (a PCBU) to take all reasonably practicable steps to ensure health and safety.2

The HVNL then generally performs the role of regulations made under WHS law so as to provide additional specific regulatory obligations (which can be enforced through sanctions) so particular behaviour that impacts on the safe operation of heavy vehicles can be more appropriately managed.3

To ensure compliance, ALC members analyse these laws and then prepare management systems to ensure that their statutory safety obligations are discharged.

The broad observation made on page 14 of the discussion paper that:

Because the HVNL does not apply a principles-based approach to risk management, instead opting for prescriptive requirements, it does not create a holistic and unified approach to achieving safety outcomes.

is therefore somewhat overstated.

The Australian Logistics Council (ALC) welcomes the opportunity to make a submission on the Chain of Responsibility Duties Review discussion paper (the discussion paper), published in November 2014.

The discussion paper is the next step in a line of reviews and discussion papers designed to consider the effectiveness of the chain of responsibility legislation contained in the Heavy Vehicle National Law (HVNL) set out in Part 3.1 of the discussion paper.

This submission should be read in conjunction with the ALC Submission on the Chain of Responsibility Task force Discussion Paper (August 2013- the 2013 ALC submission) and the ALC Submission to the Chain of Responsibility Review (March 2014- the 2014 ALC submission).

For convenience, these documents are attached to this submission.

1 Section 18 of the HVNL – discussed in section 4.9 of the discussion paper

2 Virtually any entity operating within the chain of responsibility is a PCBU.

3 This regulatory structure have been discussed at length in previous submissions – see pages 2-3 of the 2013 ALC submission and pages 6-8 of the 2014 ALC submission

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» more specific rules generally contained in the HVNL

should lead to better safety outcomes.

This is why ALC believes more emphasis should be placed on explaining the current legislation, although if there are any specific weaknesses in the HVNL that are identified they can be corrected using the HVNL Legislation Maintenance Programme.6

Finally, Part 5.5 suggests that amendments to the chain of responsibility laws may ‘promote proactive compliance’, with page 15 going on to say:

The HVNL, in some respects, perpetuates a command and control approach to compliance and enforcement. While flexibility may exist in the ‘all reasonable steps’ defence, parties are restricted to addressing each obligation applicable to them on a provision by provision and chapter by chapter basis.’

It is not immediately clear why it is thought that the imposition of a broad general duty will automatically lead to the adoption of a more proactive compliance mindset by chain of responsibility participants.

Any PCBU is obliged to adhere to the general duties applicable to such a person. That necessarily requires a degree of proactive compliance. If this obligation is insufficient to encourage a recalcitrant operator from improving safety performance, it is difficult to see how the imposition of a similar set of general duties within the HVNL will encourage improved cohort behaviour.

ALC finally observes that the discussion paper is weaker for the absence of any real specific examples of where the current laws have not delivered the safety outcomes expected by the Australian community as a result of the operation of the chain of responsibility laws.

Page 14 of the discussion paper then observes that current law ‘creates difficulties for regulators who must balance the various and, at times conflicting, objects of the law’, although again this is not much different than is the case for other regulators in other fields of regulation who are obliged to administer different complex regulatory codes (or different parts of the same code).

Parts 5.3 and 5.4 of the discussion paper deals with identifying who should discharge duties imposed under the chain of responsibility provisions of the HVNL, with page 10 of the Discussion Paper saying:

Framers of the HVNL envisaged that over time, as successful and unsuccessful enforcement activities emerge, the scope and boundaries of the WHS and HVNL obligations will become more clearly defined, in turn providing greater guidance will chain parties on the extent of the duties.4

ALC agrees with this observation, which generally reflects observations contained on pages 11 and 12 of the ALC 2014 submission.

ALC:

» generally believes that the chain of responsibility laws contained in the HVNL are operating satisfactorily; and

» notes the general continued improvement of death and injury statistics relating to heavy vehicles contained in government publications such as those gathered together in the attachment to the 2013 ALC submission.

ALC also believes that on balance the interoperation of:

» the general duty based obligations a PCBU possesses under WHS law, that implies a requirement continuous improvement such as should encourage a willing industry participant to adopt approach to safety that is more than a ‘check box’ approach5; together with

4 Footnote 20 of the discussion paper suggests that this was an observation drawn from a submission made to the Chain of Responsibility Taskforce by Bond University, at page 12 of the submission.

5 A concern expressed on page 7 of the discussion paper.

6 Effectively a combination of Options 3 and 4, as set out in the discussion paper.

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Discussing proposed options for reformOption 1: primary (general) duty of care

Part 6.1 of the discussion paper sets out an option creating an overarching primary duty of care (covering the entire HVNL) that applies broadly across parties and focusing on safety outcomes.

It suggests that legislation could look something like:

A person conducting a transport undertaking must so far as reasonably practicable ensure that their actions or omissions do not endanger the health or safety of any person.7

ALC does not support option 1.

As previously discussed, the current HVNL structure serves to buttress the general duties imposed on a PCBU by WHS legislation.

ALC members report that a general HVNL duty along the lines proposed discussion paper would simply be unnecessary duplication of that current statutory duty, without encouraging any greater safety outcomes.

For all practical purposes, it is the same duty. The fact the same duty is contained in two separate laws does not add anything.

Moreover, the necessary effect of inserting a general duty into the HVNL is that in the event of an investigation, transport enforcement officers with authority to exercise powers under the HVNL would effectively be conducting the same investigation as workplace health and safety officers.8

The legislative policy that must be inferred as a consequence of the insertion of section 18 of the HVNL is that where there is systemic failure in the safety systems employed by a PCBU, it is for the workplace health and safety regulators to identify any duty shortfalls and where necessary prosecute - as currently happens in this industry.

It is for those authorised to exercise powers established by the HVNL to ensure that those provisions in the National Law designed to manage and reduce specific behaviour that impacts on safety outcomes are enforced.

A more practical concern is that there could be a divergence of policy approach between transport enforcement and WHS officers as to what constitutes satisfaction of the duty to ‘take all reasonable steps to ensure (safety)’.

In that case, participants in the chain of responsibility will incur unnecessary administrative costs in trying to ‘cut the difference’ between the different approaches of two statutory agencies.

The road transport industry is one of the seven broad industry groups identified as being a priority industry on which attention is to be focused so as to improve safety outcomes under the Australian Work Health and Safety Strategy 2012-2022.9

It can be inferred that WHS regulators still see a role in regulating safety issues that occur within the chain of responsibility.

Moreover, it is understood that Safework Australia is proposing to develop memoranda of understanding with industry specific safety regulators so as to define roles and responsibilities.

Any regulatory impact statement prepared to support something like Option 1 will need to carefully set out:

» the roles of WHS regulators exercising general workplace safety legislation and inspectors authorised to exercise powers under the HVNL enforcing a general duty;

» a comprehensive cost benefit analysis that attempts to properly quantify the additional costs that participants in the chain of responsibility will need to incur as a result of implementing a general duty regime; and

7 ALC notes the examples of legislation set out in the discussion paper are merely indicative, and are commented upon in that spirit. As discussed later in this submission, ALC would expect an exposure of draft legislation spelling out identified duty holders and duties to be discharged to give effect to any preferred reform option at the same time as the publication of any Discussion Regulatory Impact Statement prepared for the proposed reform is circulated for public comment.

8 WHS officers are invariably involved in investigations where death or serious injury has occurred.

9 Safework Australia Australian Work Health and Safety Strategy 2012-2022 (2012): 17

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» a full estimate as to the reduction in deaths and injuries that is expected to flow from the imposition of a general duty.

Finally, as with other papers prepared for the purposes of this review, the discussion paper again suggests that a general duty within the HVNL should be considered because such a duty is contained in rail safety legislation.

As ALC has indicated earlier, the Rail Safety National Law is designed having regard to the operational environment existing in the rail sector.

The scheme in force under that law may well be satisfactory in an environment in which a small number of accredited operators conduct operations on discrete infrastructure, but may not be quite as applicable in the road transport and environment which is an atomised industry, with participants of different sizes operating on public roads.

In that context, a more rule-based safety system may give rise to better safety outcomes in the heavy vehicle environment.10

Option 2: Chapter based duties

Part 6.2 of the discussion paper proposes the inclusion of high level duties within the applicable chapters covering speed, fatigue and mass, dimension and loading, with a chapter-based duty could also be included in the vehicle standards chapter.

ALC does not support the introduction of Option 2.

However, it is preferable to Option 1 as the proposed duties are more closely aligned to be more granular rules contained in the Chapters of the HVNL.

That said, as suggested on page 20 of the discussion paper, chain parties may not be certain about where their responsibilities begin and end.

This is a problem that perennially bedevils legislative designs incorporating general duties.

As one piece of literature discussing the regulation of banks suggests:

We have assumed so far that the bank knows the true portfolio risk. What if we this assumption? Recall that the principal virtue of ex-post regulation is that it makes full use of the bank’s specialised information on underlying risk. If the bank has no such specialised information, the advantage vanishes. On the other hand, the relative advantage of ex-ante regulation, arising from the fact that it is less sensitive to regulatory uncertainty about the risk preference of the bank, still holds. Therefore for a bank with poor risk management, pure ex ante regulation is optimal. Only when regulators are satisfied that the bank has developed sufficient expertise to measuring risk should they move towards including ex-post incentives. (Emphasis added)11

Given the atomised nature of the road transport industry generally it can be argued that the general duties imposed by WHS law, together with the sector specific rule based law contained in the HVNL is the regulatory design most likely to advance desired safety outcomes.

Moreover, page 20 of the discussion paper suggests that chapter based duties would ‘provid(e) regulators and enforcement agencies with broad enough scope to target the root cause of non-compliance’.

As ALC indicated in its 2014 submission to Phase 2 of the Heavy Vehicle Roadworthiness Review:

……..it goes without saying ALC supports a risk-based approach to determine roadworthiness.

However this is more a matter of culture and education of enforcement officers.

For instance, some enforcement officers do defect vehicles for having torn mudflaps.

In the perfect world, the National Heavy Vehicle Regulator would have an employee-employer relationship with enforcement operators and through that relationship create the environment to develop suitable enforcement practices.12

10 See the discussion contained on pages 8 and 9 of the 2014 ALC submission.

11 Daipa and Varotto Ex Ante Versus Ex Post Regulation of Bank Capital (2006):24 www.bis.org/bcbs/events/rtf06daripa_etc.pdf

12 Page 5

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ALC does not accept an argument that a relatively prescriptive legislative regime precludes the targeting of poor performers and that the current legislative structure somehow requires every marginal breach of the law to be brought to sanction.

With appropriate internal guidelines and managerial guidance, ALC believes enforcement officers should be able to use lawfully gained intelligence to monitor those industry participants who are reasonably believed to be in breach of their chain of responsibility obligations (or indeed their general HVNL obligations) and deal with them using the laws currently in force.

ALC is of the view that an extension of a duty based regulatory regime cannot be supported unless and until the HVNR has full-time employees actively involved in the enforcement of the HVNL.

As discussed above, whether or not a particular chain of responsibility participant has taken all reasonable steps to avoid non-compliance, is somewhat subjective.

The NHVR must currently rely on enforcement services provided by jurisdictional regulators under service agreements.

However these regulators not only discharge duties on behalf of the NHVR but also discharge responsibilities according to priorities established by the jurisdictions that employ them.

ALC members report that the compliance costs inherent in having to comply with the current law that is enforced in different ways by different jurisdictions will undoubtedly increase as different jurisdictions establish different standards as to what constitutes the taking of all reasonable steps to prevent a breach of the HVNL.

Therefore, after due consideration, ALC members have concluded that it is undesirable to create broad general duties as would occur through the adoption of either Option 1 or 2 unless and until enforcement powers are exercised by employees of the NHVR.13

However, if either Option 1 Option 2 is adopted, ALC believes that:

» at the same time there should be a complete review of the ‘command and control’ provisions contained in the National Law so as to remove those provisions dealing with behaviour that is considered to be better dealt with through imposing on the chain of responsibility participants broad general duties, so as to avoid people facing prosecution under multiple offences for the same behaviour; and

» compliance with any industry code of practice registered under the HVNL and developed to assist code participants manage chain of responsibility obligations should be regarded as a defence against any prosecution the person has failed to take all reasonable steps to prevent a particular contravention of the HVNL.

With regards to the last point, it is helpful to set out the ALC position supporting this proposition is published in 2013 ALC submission:

As Chris Maxwell indicated in his March 2004 review of Victoria’s Occupational Health and Safety laws:

1728. In my view, a similar provision should be inserted regarding compliance with the Codes of Practice. Given that each Code must be approved by the Minister, the Codes are given significant status under the Act. Moreover, their stated purpose according to s.55(1) is to provide –

“practical guidance to employers, self-employed people, employees, occupiers, designers, manufacturers, importers, suppliers or any other person who may be placed under an obligation by or under this Act.”

13 ALC still believes that the NHVR should publish prosecution guidelines that must be taken into account by officers providing services to the Regulator under service agreements, as well as believing that the NHVR and police forces should enter into memoranda of understanding as to when and how police will exercise enforcement functions under the HVNL, as set out on page 18 of the 2014 ALC submission.

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1729. The policy which underlies s.27 – that compliance with the regulations should be encouraged – applies with equal force to the Codes of Practice. Compliance with a relevant Code of Practice should, therefore, be deemed to constitute compliance with the relevant duty or obligation. This change would give legal effect to what the Authority already states in each Code of Practice.

As Victoria has elected not to adopt the model WHS legislation, compliance with a Code of Practice made under Victorian OHS law is deemed to be compliance with OHS obligations.

Arguably, this is regulatory best practice.

As the Productivity Commission observed in its 2013 draft report Regulator Engagement with Small Business:

While being optional for small business to access and implement, the availability of prescriptive regulations and guidance can help to educate small businesses and provide them with greater certainty. An extension to this model can involve a regulator accepting that a business is ‘deemed to comply’ or ‘deemed to satisfy’ a regulatory standard if they can demonstrate the full implementation of the steps prescribed within a regulatory instrument. 14

That said, it should finally be noted that ALC cannot agree to any proposed chapter based general duty until it has seen a properly drafted duty holder and the duty proposed to be discharged so that:

» practical workability;

» merit; and

» overall coherence with both the rest of the HVNL as well as general WHS legislation

can be assessed, with any regulatory impact statement prepared supporting this option needing to set out:

» what type of additional obligations the duty is intended to bring within any new duty;

» the cost to industry of the change; and

» the quantum of improvement in death and injury statistics expected by the change.

It should finally be noted the observations made with respect to Option 2 apply should it be the case that a general duty framed as ‘a party in the chain of responsibility must take all responsible steps to ensure that a breach of (the HVNL) does not occur’, as mooted on page 18 of the discussion paper.

Option 3: Additional specific obligations/Option 4: No legislative change; focus on operational/policy components

Part 6.3 of the discussion paper proposes an Option 3, which would see the HVNL include additional obligations to address specific risks and behaviours using the current specific duty constructions, whilst Part 6.4 an Option 4 suggesting no change to the current duties regime, with regulatory attention instead focused on providing more guidance and education on the obligations of parties and conducting more investigations of chain of responsibility breaches.

As indicated earlier, no specific examples have been cited supporting for the creation of more general duties within the HVNL-only assertions that change may lead to either greater compliance or create greater ease in bringing successful prosecution.

Moreover, there have been no estimates ever given as to the expected reduction of injuries or fatalities that will occur as a result of a change in regulatory structure.

ALC therefore sees no reason to change its current position contained in both the 2013 and 2014 ALC submissions, which is that more emphasis should be placed on explaining the current legislation. However, if there are any specific weaknesses in the HVNL that are identified, they can be corrected using the HVNL Legislation Maintenance Programme.15

14 Page 4

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Subsequent issues for consideration

Part 7 of the discussion paper deals with subsequent issues for consideration.

The following is a brief discussion of issues raised here that have not been dealt with earlier in this submission.

Appropriate standard of duty

Part 7.2 of the discussion paper discusses the requirements of a duty that identified parties participating in the chain of responsibility are expected to meet.

ALC has previously indicated that there is no particular advantage in changing the standard of duty of ‘taking all reasonable steps’ of ensuring a breach of chain of responsibility legislation has not occurred. See pages 13 and 14 of the 2014 ALC submission.

In making this observation, ALC notes that some stakeholders seem to think that changing the standard of duty to ‘all reasonably practicable steps’ will mean that whether an operator can afford to take a known step to mitigate risk or not will be relevant when considering whether or not a failure to take a particular step was practicable in a particular circumstance.

The touchstone whether or not a particular risk prevention measure is to be taken is whether or not the cost of doing so was ‘grossly disproportionate’ to the risk.

As Chris Maxwell said in his March 2004 review of Victoria’s occupational health and safety legislation:

....... Questions of cost should be determined objectively. Since 1989 it has been the law in Victoria that the ‘practicability’ factors in the act (including cost) are to be applied objectively, not by reference to the subjective circumstances of the particular employer. In the case of knowledge, this means that the duty to remove a risk regardless of the particular employers ignorance of the risk if he/she ought reasonably to have been aware of it.

Likewise with cost. Whether the cost of a risk prevention measure is ‘grossly disproportionate’ to the particular risk is to be determined objectively, regardless of the particular financial circumstances of the employer in question. Any other approach would create the intolerable situation where two workers in the same industry would receive different levels of safety protection merely because one worked for a prosperous employer and the other for a struggling employer.16

It follows that any change to the structure of the duty will need to be carefully considered by those advocating change.

Onus of proof for extended liability

Part 7.4 of the discussion paper deals with possibly extending liability for breaches of generally expressed duties.

A general duty regime requires a careful examination of particular management process so as to determine whether

As this cannot be clearly determined until after the event, it would appear highly inappropriate to create a vicarious liability regime-it must be for the prosecution to prove that a particular person was in a position to have influence the manner by which a particular freight chain operates before liability can be alleged.

15 See pages 2 and 3 of the 2013 ALC submission and pages 11-13 of the 2014 ALC submission.

16 State of Victoria Occupational Health and Safety Act Review March 2004: pp. 7-8. See also Safework Australia Interpretive Guideline-Model Work Health and Safety Act The Meaning of ‘Reasonably Practicable’ www.safeworkaustralia.gov.au/sites/SWA/about/Publications/Documents/607/Interpretive%20guideline%20-%20reasonably%20practicable.pdf

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It goes without saying that ALC agrees that any new provision will need to be assessed against the COAG Principles and Guidelines-Personal Liability for Corporate Fault.

Appropriateness of monetary penalties

Part 7.6 of the discussion paper discusses the appropriateness of monetary penalties and whether the development of a primary duty of care may mean reviewing the appropriateness of monetary penalties to ensure deterrence.

ALC remains of the view that the monetary penalties contained in the HVNL are appropriate given the role the HVNL plays with regards to the regulation of safety.

Whilst there is suggestion in some literature that high penalties may be needed to encourage the development of desirable management practices that embraces an environment of continuous improvement, ALC remains of the view that this outcome is created (and enforced) by the imposition of a general duty on a PCBU by standard workplace health and safety legislation.

More generally, the penalties contained in the HVNL have only just been reviewed. It is disappointing that this is an issue that appears to be continuously addressed. ALC believes that current penalty quanta should remain for a period of time so that the new national scheme can settle.

Impact on enforcement tools forward/impact on enforcement powers

ALC agrees with the direction of the discussion paper set out on pages 26 and 27 that these issues should only be reviewed once:

» any revised structure of the chain of responsibility; and more generally

» the interrelationship between the HVNL and WHS legislation

has been finally determined by the Transport and Infrastructure Council of COAG.

Final observations-need for a rigorous RIS and draft legislation prior to making a final decision on changes to the chain of responsibility

ALC believes that any change to the chain of responsibility laws as contemplated by Options 1 and 2 could lead to significant changes in the way chain of responsibility participants conduct their businesses.

Industry-based codes of practice, such as those managed by ALC, will also require significant amendment.

ALC is also aware the Regulatory Impact Statement circulated for the purposes of the Roadworthiness Review being jointly conducted by the NTC and the HVNR is proposing to create a chain of responsibility duty for parties to:

take reasonable steps to ensure that business practices will not cause a heavy vehicle could be used on a road in a condition that is unsafe, unroadworthy or non-compliant with vehicle standards.

In its September 2014 submission to Phase 2 of the Heavy Vehicle Roadworthiness Review, ALC expressed its disappointment that there are two separate reviews being conducted simultaneously considering the structure of the chain of responsibility laws contained in the HVNL, and does so here.

Page 45 of the Australian Government’s Best Practice Regulation Handbook (August 2007) reads:

4.4 Exposure drafts

Consulting on and analysing the implementation options is an important part of the policy development process. Prior to finalisation, the details of complex regulations are required to be tested with relevant business interests. This allows the ‘devil in the detail’ to be made transparent. Releasing exposure drafts of complex regulations for significant matters is one approach departments and agencies can use to allow businesses and other stakeholders to provide more detailed comments and advice on how a regulation will work in practice.

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It is unfortunate that this general duties review remains at the discussion paper stage whilst the Roadworthiness Review is at the regulatory impact statement stage of development.

Businesses address their regulatory obligations in a holistic manner. It follows that all of the changes to be proposed in the chain of responsibility (if any) should be presented together so that:

» the workability of the proposed legislation can be tested;

» compliance costs determined; and

» changes to operational procedures designed and implemented.


Moreover, for the reasons set out above it will be insufficient if any draft legislation proposing changes to general duties is sent to the Transport and Infrastructure Council of COAG without the legislation first being tested by industry.





» most importantly, an estimate of the increased safety outcomes that making such changes to the law will bring-the only substantive reason to change a system that is generally functioning in a satisfactory manner.

Australian Logistics Council February 2015

AUGUST 2013

ALC SUBMISSION

ALC SUBMISSION ON THE CHAIN OF RESPONSIBILITY TASKFORCE

DISCUSSION PAPER

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©Australian Logistics Council, August 2013


CO

NT

EN

TS THE OVERALL STRUCTURE OF SAFETY LAWS APPLYING

TO HEAVY VEHICLES IS SATISFACTORY 02

IS THERE A CASE FOR SIGNIFICANT CHANGE? 04

PROVISION OF ADDITIONAL GUIDANCE 05

EXECUTIVE LIABILITY 06

ATTACHMENT 1 07

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The Australian Logistics Council welcomes the opportunity to respond to the discussion paper on the effectiveness of Chain of Responsibility provisions of the Heavy Vehicle National Law (the Discussion Paper).

» compliance and enforcement will be applied consistently and evenly to individuals, companies and government agencies;

» enforcement will be undertaken by authorised officers using lawful procedures with emphasis on preventative measures through education;

» endeavour to conduct investigations along the transport chain to the point at which liability can be proven.

ALC members believe that these intentions (which are supported) can be given effect through the current three tiered nature of safety regulation currently in force.

At its apex are the general duties imposed by the workplace health and safety (WHS) law requiring a person conducting a business or undertaking to take all reasonable steps to ensure that workplace risks are as low as reasonably practicable (ALARP).

The interrelationship between WHS law and the HVNL is established by section 18 of the HVNL, and is supported.

The second tier of regulation constitutes the Chain of Responsibility CoR provisions created under the HVNL.

The CoR provisions contained in the HVNL play the same functions as regulations under WHS law – that is, they specify in greater detail the steps that are required to ensure safety outcomes in areas where a high risk to safety has been identified.

The overall structure of safety laws applying to heavy vehicles is satisfactory

Paragraph 40 of the Discussion Paper sets out the principles published by AustRoads in 2006 to guide how the enforcement of the Chain of Responsibility (CoR) provisions (now largely published in the Heavy Vehicle National Law (the HVNL) are to be administered.

They are, as published:

» recognising that there is a wide ranging chain of responsible persons involved in the transport network and to make those parties aware of and accountable for their responsibilities, acts and omissions;

» achieving cooperation and uniformity in the compliance of influencing persons in the area of heavy vehicles;

» applying enforcement measures to improve road safety, protect infrastructure assets and the environment;

» effectively targeting those parties who constantly flout the law to discourage noncompliance practices that may give them a commercial advantage over those parties that work within the law and “do the right thing”;

» compliance and enforcement practice will be conducted in an equitable, impartial, predictable and consistent manner;

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These provisions therefore form the same role as regulations that are in force in the mining industry, either through stand-alone legislation (as is the case in NSW) or as regulations made under WHS legislation.1

» It should be recognised that it is ALC policy that industry specific issues are best dealt with by a specialist regulator – in the case of heavy vehicles the National Heavy Vehicle Regulator responsible for administering the HVNL. This is so regulators with specific expertise in a subject area will be making decisions in areas where they possess a greater background in the relevant area of regulation, lessening the possibility of regulatory failure. This means that ALC believes that to the extent that there are any technical safety regulations necessary to support the WHS general duties, such regulation should be made through the HVNL and not through general WHS legislation.

ALC notes paragraphs 178-179 of the Discussion Paper, which read:

In order to meet the model WHS Act primary duty of care, mechanisms for risk management must be implemented, whereby duty holders identify potential hazards, assess associated risks and take necessary steps to eliminate or reduce the risks, where applicable. Unlike the model WHS Act, the HVNL does not require explicit application of risk management.

In this respect, the model WHS Act is more system-oriented and less prescriptive than the HVNL. The WHS approach to risk management accommodates a wide and varied set of circumstances that fall within the scope of the work tasks, work lifecycle and work environment. Further, general duties provide duty holders with flexibility to secure compliance in an appropriate manner given workplace circumstances, type of work etc.

If it is correct to characterise the HVNL CoR provisions of being similar to WHS regulations, the CoR provisions should contain a number of intermediate duties, process based requirements and specification standards to ensure that fatigue, speeding and loading offences – specific safety risks identified in the transport industry – can be managed.

That is the role of regulations in the WHS context.

Relevant industry participants must otherwise comply with the ALARP safety requirements implicit in complying with the general duties imposed by WHS law.

It follows from this observation that there are no grounds to create any additional duties on individual participants (including executive officers) in the HVNL CoR provisions.

The third tier constitutes the industry codes of practice that are recognised by Part 13.2 of the HVNL.

ALC accepts that all parties in Australia’s logistics supply chain must take responsibility to ensure safety is given the highest priority.

It has therefore developed the National Logistics Safety Code2 (the NLSC), an industry based Code setting out clearly all participants’ responsibilities when they control or influence the movement of freight in the supply chain, particularly road transport laws and WHS legislation.

The NLSC is the platform from which all industries can develop their own industry solution to best suit their needs whilst maintaining levels of consistency for all parties whatever supply chain.

Further industry solutions are currently being assessed for suitable partnering with the NLSC.

ALC believes that the recognition of industry codes are an important part in the ‘buy in’ that encourages industry members to continue to develop safe business practices.

1 It is noted the National Mine Safety Framework has been developed in different ways. For example NSW has stand alone legislation (see the Mine Health and Safety Act 2004 (NSW) whilst in Victoria mines are regulated through regulations (see Part 5.3 of the Occupational Health and Safety Regulations 2007 (Vic)

2 A harmonisation of the Retail Logistics Safety Code and the Steel Code of Conduct

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Is there a case for significant change?

To that extent, ALC notes that principles 1 and 3 of the Principles of Best Practice Regulation published in the COAG Guide for Ministerial Councils and National Standard Setting Bodies require the establishment of a case for action before addressing a problem as well as the adoption of the option that generates the greatest net benefit for the community.3

It is noted that safety standards are improving, as indicated by the statistics in the attachment.

For that reason, ALC sees no reason to include, for its own sake, additional powers, additional penalties or the creation of additional duties simply for the sake of ‘harmonisation’ with either WHS law, or for that matter laws regulating the rail and domestic commercial vessel environments.

This is particularly the case where, as paragraph 111 of the Discussion Paper indicates:

Preliminary research conducted as part of the Heavy Vehicle Compliance Framework project suggests that enforcement officers empowered to use the ‘CoR toolkit’ are less likely to issue infringements than those not so empowered. That toolkit consists of CoR investigations and the suite of intervention strategies made possible by the C&E legislation such as improvement notices and warnings. This is in contrast to previous OH&S experience, which suggests that where infringement and warning options co-exist, warning options tend to reduce because of the comparative ease of infringements

It is of some concern that a burgeoning ‘toolkit’ could lead to the abandonment of discretion.

Finally, it is noted that the Road Safety Remuneration Tribunal has published a Draft Road Safety Remuneration Order which contain provisions designed to further regulate the heavy vehicle industry to guard against (in particular) fatigue in drivers.

There is some scope to see how the provisions of the proposed Award affect speed and fatigue in the heavy vehicle industry before embarking on more changes in the law.That said, if there is to be any change in the law (and no case has been made out), and given that for a considerable period in the future most enforcement services will be purchased by the NHVR under service level agreements, there is some argument to say that decision makers who are capable of making a decision should be required to have regard to guidelines published by the NHVR, which may assist more consistent decision making nationally.

There is a clear legislative precedent for such a provision.

Section 243ZG of the Customs Act 1901 reads:

Guidelines for serving infringement notices

The CEO must, by legislative instrument, make guidelines in respect of the administration of this Subdivision to which he or she must have regard when exercising powers under this Subdivision.

This could provide comfort for those who believe there are inconsistencies in the way CoR provisions are administered.

If change is to be contemplated, the other element that should be considered is a change to the HVNL so that those who comply with an Industry Code are taken to have complied with the legislation.

3 www.finance.gov.au/obpr/docs/COAG_best_practice_guide_2007.pdf#page=6

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As Chris Maxwell indicated in his March 2004 review of Victoria’s Occupational Health and Safety laws:

1728. In my view, a similar provision should be inserted regarding compliance with the Codes of Practice. Given that each Code must be approved by the Minister, the Codes are given significant status under the Act. Moreover, their stated purpose according to s.55(1) is to provide –

“practical guidance to employers, self-employed people, employees, occupiers, designers, manufacturers, importers, suppliers or any other person who may be placed under an obligation by or under this Act.”

1729. The policy which underlies s.27 – that compliance with the regulations should be encouraged – applies with equal force to the Codes of Practice. Compliance with a relevant Code of Practice should, therefore, be deemed to constitute compliance with the relevant duty or obligation. This change would give legal effect to what the Authority already states in each Code of Practice.4

As Victoria has elected not to adopt the model WHS legislation, compliance with a Code of Practice made under Victorian OHS law is deemed to be compliance with OHS obligations.

Arguably, this is regulatory best practice.

As the Productivity Commission observed in its 2013 draft report Regulator Engagement with Small Business:

While being optional for small business to access and implement, the availability of prescriptive regulations and guidance can help to educate small businesses and provide them with greater certainty. An extension to this model can involve a regulator accepting that a business is ‘deemed to comply’ or ‘deemed to satisfy’ a regulatory standard if they can demonstrate the full implementation of the steps prescribed within a regulatory instrument.

DRAFT RECOMMENDATION 3.1

Given the challenges small businesses face in fulfilling compliance requirements, including their generally lesser capacity to manage compliance and their higher compliance cost structures, regulators should:

» where possible, remove any unnecessary complexity in regulatory requirements and associated guidance material, particularly so that low risk small businesses can more effectively manage their own compliance

» set outcome based regulatory requirements, but also offer detailed guidance about acceptable solutions including, where feasible, offering a compliance pathway, which if fully implemented, would deem businesses compliant with requirement4

Provision of additional guidance

Section 624 of the HVNL reads:

624 Regulation for s 623

(1) For the purposes of section 623, the national regulations may provide for—

(a) the ways, or examples of ways, a person may identify and assess the aspects of the activities of the person, and relevant drivers for the person, that may lead to a relevant contravention by a relevant driver for the person; and

(b) the measures, or examples of measures, a person may take to eliminate or minimise the risks of aspects of activities of the person, or relevant drivers for the person, leading to a relevant contravention by the person or a relevant driver for the person.

ALC members report that that there are some grounds for the provision of additional guidance for specific duty holders through devices such as the regulations made under section 624.5

4 Page 86

5 Current draft regulations only provide very high level general guidance

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The example given was of a person described as a ‘time slotter’ (a position probably characterised under the HVNL as being a scheduler or a load manager) at large retail distribution centres.

It has been reported that the crux of the current debate relating to the safe delivery of goods is that time slots are translated into unreasonable deadlines and that the subsequent queuing that occurs increases the risk of fatigue.

It was thought that the provision of clear guidance to this specific class of duty holder would assist in the proper comprehension of statutory responsibilities held by the duty holder.

It was finally noted that the freight transport and logistics industry devoted considerable time and resources to develop relevant guidelines such as the August 2007 Guidelines for Managing Heavy Vehicle Driver Fatigue (the Guidelines).

Consideration should be given to expressly referring to these guidelines in section 224 of the HVNL as a document that could be taken into account when considering whether a person was fatigued.

Executive Liability

For the reasons previously expressed, there would appear no grounds to reframe executive liability provisions to ‘create a positive duty to prevent offending conduct’.

However, if this is wrong the appropriate trade off would appear to be treating compliance with an industry code of practice as being deemed compliance with CoR responsibilities, as adherence with an industry code must be, by necessary implication, recognition of the need to ensure a safe workplace that complies with the HVNL.

There is some scope for the CoR taskforce to exercise its own judgment whether the executive officer liability provisions in the HVNL are consistent with the COAG Principles and Guidelines relating to director liability.

Australian Logistics Council August 2013

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MAJOR CRASH INCIDENTS V GROWTH IN FREIGHT

> the major crash rate per ‘000 units has improved by 42.7% since 2003

> Significant growth from 150 to 209 billion tonne kilometres carried since 2003.

> Average cost per major crash has decreased 13% from the last report.

Source, 2013 Major Accident Investigation Report, National Truck Accident Research Centre, National Transport Insurance

MAJOR CRASH INCIDENTS (PER ‘000) V GROWTH IN FREIGHT TASK

When investigating only multi vehicle fatal incidents, it was established that in every 2011 NTI insured vehicle fatal incident, the driver of the lighter vehicle or the third party, was at fault. This was a highly significant outcome from the 2011 data. In 2009, the truck was at fault in 18% of NTI insured incidents involving a fatality.

TRANSPORT & STORAGE SERIOUS CLAIMS

> Safe Work Australia estimates the transport and storage industry employed 549,000 workers in 2010-2011, or 5 percent of the workforce.

> There were 9535 claims for serious injury or illness in the transport and storage sector in 2010-2011.

> The incidence rate of serious claims in the transport and storage industry has fallen by 23 percent, from 31.5 claims per 1000 employees in 2000-01 to 24 claims per 1000 employees in 2009-2010. Note, the transport and storage industry still has the highest incidence rate of all industries.

Source, Safework Australia, 24 September 2012.

SERIOUS CLAIMS: INCIDENCE RATES BY YEAR

MARCH 2014

ALC SUBMISSION TO THE CHAIN OF RESPONSIBILITY REVIEW

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©Australian Logistics Council, March 2014


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SUBMISSION TO CHAIN OF RESPONSIBILITY REVIEW

ALC POSITIONS

ALC Position 1 The current relationship between the Heavy Vehicle National Law and Workplace Health and Safety law is satisfactory and does not require change. ALC Position 2 The current Chain of Responsibility structure remains satisfactory. No evidence has been presented to suggest the creation of further general duties would either encourage greater compliance or improve safety outcomes.

ALC Position 3

There are no grounds to increase HVNL penalties to simply match penalties contained

in primary WHS legislation.

ALC Position 4 No-one has produced sufficient evidence to permit the development of new duties or the identification of new duty holders as part of the Chain of Responsibility review process. To the extent that new intermediate duties, process based requirements and specification standards are necessary, they can be developed through the HVNL Legislation Management Programme. ALC Position 5 A case appears to have been made out to impose duties on the basis of the function or activity performed by someone rather than attempt to describe duty holders by way of job title. This can be developed through the HVNL Legislation Management Programme.

ALC Position 6

The provisions that impose liability on executive officers for offences committed by

corporations should be reviewed against relevant COAG guidelines on director

liability as part of this process.

ALC Position 7 The current formulation contained:

(a) in the reasonable steps defence established by section 618 of the HVNL; and

(b) the general duty relating to speed and fatigue contained in chapters 5 and 6 of

the HVNL

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that a person should show they took all reasonable steps to avoid a contravention of

the HVNL remains satisfactory.

As the HVNL contains:

(c) matters prosecutors and courts may have regard to when considering whether

all reasonable steps have been taken in relation to speeding or fatigue

management offences;

(d) the capacity to make regulations to provide either ways or measures (or

examples of ways or measures) for fatigue management offences; and

(e) a duty on the NHVR to identify and promote best practice method for

complying with the HVNL and to manage risks to public safety arising from the

use of heavy vehicles on roads

there is plenty of guidance of what constitutes ‘all reasonable steps’. The NHVR

should be resourced to promote best practice where gaps in participant performance

is identified.

ALC Position 8

No case for the extension of enforcement powers has been made out. No additional

powers should be conferred unless a case is made out that any new power or offence

will increase compliance and safety outcomes and that the powers of regulators,

when taken as a whole, are not seen to be disproportionate in those jurisdictions

possessing charters of rights.

ALC Position 9

The NHVR should be placed under a statutory duty to publish guidelines that those

providing services to the Regulator under service agreements, and prosecutors, must

have regard to when considering the commencement of a prosecution of an offence

under the HVNL.

The NHVR and police forces should enter into a memorandum of understanding as to

when and how police will exercise enforcement functions under the HVNL.

ALC Position 10

Service agreements made by the NHVR and jurisdictions should be published in full.

ALC Position 11

A person who complies with a registered industry code should be taken as having

discharged the duty to take all reasonable steps to comply with the HVNL.

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SUBMISSION TO CHAIN OF RESPONSIBILITY REVIEW

Introduction The Australian Logistics Council (ALC) welcomes the opportunity to make a submission to the Chain of Responsibility Review Assessment of Options Paper (the options paper). ALC commends the National Transport Commission (NTC) secretariat in the structure and content of the options paper, which generally captured most of the ideas emanating from Chain of Responsibility (COR) taskforce meetings held over the previous 12 months. The main issues appear to be: from the regulator perspective:

increased powers to investigate and sanction, generally through the incorporation of powers contained in workplace health and safety (WHS) legislation broadly in force around Australia; and

the creation of broad general duties for mass and loading offences (in particular) as

well as for company officers and senior managers; and from the broad industry perspective:

greater identification of duty holders and duties so the ‗right person‘ is prosecuted; and

greater legislative support for approved industry generated documents developed in

a co-regulatory environment. This includes statutory recognition of registered industry codes as complete defences to COR prosecutions when the terms of the Code have been complied with, as well as the ability for non-governmental accreditation schemes to confer the same benefits to the accredited operators as those operating under the National Heavy Vehicle Accreditation Scheme (NHVAS).

ALC believes the provisions of the Heavy Vehicle National Law (HVNL) should be treated as if it were a set of regulations made under WHS law, with industry-specific safety requirements exclusively prescribed in the National Law and not in fragmented statutory instruments ranging from road safety remuneration orders made under the Road Safety Remuneration Act 2012 to any WHS instruments that may be made as a result of the Australian Work Health and Safety Strategy 2012-2022. Regulations of this nature set out specific duties that must be complied with by people participating in industries with safety risks thought to require more management than other industries. For those other industries, compliance can be managed though the prescription of general duties supported by guidance published by either industry groups or safety authorities. For this reason, ALC believes time and effort should be spent developing:

the intermediate duties, process based requirements and specification standards that are considered necessary to ensure safety outcomes, through the HVNL Legislation Maintenance Programme; and

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suitable standards for the assessment of registered industry codes by the National Heavy Vehicle Regulator (HVNR) so as to facilitate the creation of industry codes which, if followed, would be a complete defence where a person had to show that all reasonable steps were taken to avoid a breach of the HVNL – something likely to improve compliance rates.

rather than the creation of general duties in the HVNL. ALC also believes that investigation policies and priorities should be established by the National Heavy Vehicle Regulator (NHVR). As the scheme of national regulation for heavy vehicle matures, the NHVR will play a greater role in directing enforcement.

As an example, during March 2014 the NHVR issued instructions to the relevant state and territory road transport authorities to not enforce section 468 and paragraph 470(2)(b) of the HVNL against drivers or operators, in relation to the carriage of documents for mass management or maintenance management in a circumstance where the NHVR was satisfied that there is no safety issue arising from these provisions and there would be no merit in seeking to enforce these requirements until ministers and Parliament have had an opportunity to consider a proposed amendment to remove this requirement.1

The NHVR will increasingly play this sort of role.

ALC therefore believes that mechanisms should be put in place to allow the NHVR with a greater capacity to control the manner by which enforcement objectives are prioritised and investigations conducted.

These ideas are now further discussed.

1 NHVR Heavy Vehicle Update 5 March 2014

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The function of the COR provisions within the HVNL

In its response to NTC‘s first discussion paper on the effectiveness of COR provisions of the HVNL, ALC set out the following views: ALC notes paragraphs 178-179 of the Discussion Paper, which read: In order to meet the model WHS Act primary duty of care, mechanisms for risk management must be implemented, whereby duty holders identify potential hazards, assess associated risks and take necessary steps to eliminate or reduce the risks, where applicable. Unlike the model WHS Act, the HVNL does not require explicit application of risk management. In this respect, the model WHS Act is more system-oriented and less prescriptive than the HVNL. The WHS approach to risk management accommodates a wide and varied set of circumstances that fall within the scope of the work tasks, work lifecycle and work environment. Further, general duties provide duty holders with flexibility to secure compliance in an appropriate manner given workplace circumstances, type of work etc.

If it is correct to characterise the HVNL CoR provisions of being similar to WHS regulations, the CoR provisions should contain a number of intermediate duties, process based requirements and specification standards to ensure that fatigue, speeding and loading offences – specific safety risks identified in the transport industry – can be managed. That is the role of regulations in the WHS context. Relevant industry participants must otherwise comply with the ALARP safety requirements implicit in complying with the general duties imposed by WHS law. It follows from this observation that there are no grounds to create any additional duties on individual participants (including executive officers) in the HVNL CoR provisions. The third tier constitutes the industry codes of practice that are recognised by Part 13.2 of the HVNL. ALC accepts that all parties in Australia‘s logistics supply chain must take responsibility to ensure safety is given the highest priority. It has therefore developed the National Logistics Safety Code (the NLSC), an industry based Code setting out clearly all participants‘ responsibilities when they control or influence the movement of freight in the supply chain, particularly road transport laws and WHS legislation. The NLSC is the platform from which all industries can develop their own industry solution to best suit their needs whilst maintaining levels of consistency for all parties whatever supply chain. Further industry solutions are currently being assessed for suitable partnering with the NLSC. ALC believes that the recognition of industry codes are an important part in the ‗buy in‘ that encourages industry members to continue to develop safe business practices.

This remains ALC‘s view. An operator is a person conducting a business or undertaking (PCBU) for the purposes of WHS law. It therefore holds the general duty to take all reasonably practicable steps to ensure worker safety universal to all PCBU‘s, captured by section 19 of the Model WHS law, which reads: (1) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of:

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(a) workers engaged, or caused to be engaged by the person; and (b) workers whose activities in carrying out work are influenced or directed by the person, while the workers are at work in the business or undertaking. (2) A person conducting a business or undertaking must ensure, so far as reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of business or undertaking.

Section 18 of the HVNL says:

(1) This Law does not limit the application of the primary WHS Law or any regulations made

under that Law.

(2) Evidence of a relevant contravention of this Law is admissible in any proceeding for an

offence against the primary WHS Law.

(3) Compliance with this Law, or with any requirement imposed under this Law, is not, in itself,

evidence that a person has complied with the primary WHS Law or any regulations made

under that Law or with a common law duty of care.

(4) In this section—

primary WHS Law, for a participating jurisdiction, means the law that is declared by a law of

that jurisdiction to be the primary WHS Law for the purposes of this Law.

This makes clear the interrelationship between WHS and heavy vehicle law.

It particularly means that a PCBU2 as well as an officer of a company3 will need to comply

with WHS obligations.

When making its original submission on the structure of the HVNL and its accompanying

Regulatory Impact Statement (RIS) in 2011, ALC said:

While the 2011 RIS does not discuss the workplace health and safety laws due to commence

in 2012, ALC notes those laws impose a general duty on ‗persons conducting a business or

undertaking (PCBU) to ensure, as far as reasonably practicable, the health and safety of

workers and ‗other persons‘.

However, with respect to specific work practices in higher risk industries, the ALC view

reflects that published in the National Review Into Model Occupational Health and Safety

Laws (the ‗Stewart-Compton Report‘), which said:

PROVIDING FOR DETAIL IN REGULATIONS AND GUIDANCE MATERIAL

6.126 Currently, various regulations and legislation unrelated to the central OHS

legislation impose obligations on business operators in specific industries. Examplles

include ‗chain of responsibility‘ regulation in the road transport industry and the

regulation of various parties to clothing outworker arrangements.

2 Or employer, in those states that have not applied the model WHS law

3 Through the terms of section 27 of the model WHS law

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6.127 These and other industries have safety issues and requirements that are

specific to the nature of the industry. The changing nature of work and work

relationships and arrangements means that other specific requirements may be

needed in the future. We consider that the detail required is not appropriate for the

model Act, but is appropriate for regulations, codes of practice and guidance material

under the Act.4

It is therefore appropriate for the HVNL prescribe specific duties5 (such as intermediate duties, process-based requirements and specification standards), as set out in pages 14 -15 and Appendix B of the Options Paper, but not broad general duties. It is also appropriate that where an incident involving death and serious injury involved, it is appropriate for WorkCover and the police (where there are reasonable grounds to believe an offence against the criminal law is involved) to use their powers contained in WHS and the criminal law (as the case requires). These officers should be supported by officers undertaking enforcement obligations under a service agreement with the NHVR whilst investigating the specific duty offences created in the HVNL.6 However, enforcement officers should concentrate on ensuring compliance with the specific duties set out in the HVNL. Comparisons with the Rail Safety National Law Some taskforce participants have argued that the HVNL should have a general duty structure similar to that contained in the Rail Safety National Law. However, there are material differences in the way heavy vehicle and road safety is regulated. Most relevant duties are imposed on rail transport operators who are described as being rail infrastructure managers (the person with effective control of rail infrastructure) and rolling stock operators (a person who has effective control and management of the operation of the rolling stock).7 Rail transport operators must also be accredited. Accreditation is to attest:

that the rail transport operator has demonstrated to the Regulator the competence and capacity to manage risks to safety associated with those railway operations.

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Rail safety operators must also operate a safety management system that meets the specifications contained in Division 6 of Part 3 of the Rail Safety National Law (contained in the Attachment as well as seven pages of requirements contained in Schedule 1 of the Rail Safety National Law Regulations 2012. A safety management system must also contain a: 4 ALC Response to the draft Heavy Vehicle National Law and Accompanying Regulatory Impact Statement (May

2011): 32 5 This submission uses the term ‘specific duties’ in the same way as employed by the Option Paper

6 As well as the pre-existing general duty provisions relating to speed and fatigue, if necessary

7 Definitions contained in section 4 of the Rail Safety National Law. Loaders , officers and workers also have

general duties – see sections 54 – 56 of the Rail Safety National Law 8 Section 61 of the Rail Safety National Law

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security management plan;

emergency management plan;

health and fitness management programme;

drug and alcohol management programme; and

fatigue risk management programme.9 The rail structure is appropriate in the circumstance where there are relatively few rail infrastructure managers and certainly compared to heavy vehicle operators, very few rolling stock operators, most of whom are relatively large and sophisticated entities. Trains also operate on a very discrete piece of infrastructure.10 In the context of this industry it is appropriate to impose on participants in this industry general duties to support the offence (and impose severe penalties for breaching those general duties) as well as imposing penalties for failing to comply with a safety management programme.11 Conversely, the heavy vehicle industry is an atomised industry, with participants of different sizes operating on public roads. It is therefore appropriate for safety to be generally regulated through specific duties prescribed by the HVNL. Conclusions In this context, it is appropriate that general WHS duties and the criminal law are used when considering incidents that arising from the operation of heavy vehicles where relevant facts exist and the broader public interest requires action. Given a general improvement in the safety performance of the industry ALC does not

currently accept that there is either a problem to be solved, or a net benefit for the

community gained, through the creation of additional general duties in the HVNL.

The structure of the development of the speed and fatigue chapters of the HVNL were

developed only after much consideration, to deal with the issues of speed and fatigue – the

issues identified as posing the greatest safety risk in this industry.

Much more work needs to go into proving a case to change chapters 3 and 4 of the HVNL

over and above a mere need for either textual consistency or ease in bringing prosecutions.

ALC Position 1 The current relationship between the HVNL and WHS law is satisfactory and does not require change.

9 Section 99 of the Rail Safety National Law

10 The only real interaction with other significant pieces of infrastructure is at level crossings

11 Sections 57-60 and section 101 of the Rail Safety National Law

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ALC Position 2 The current COR structure remains satisfactory. No evidence has been presented to suggest the creation of further general duties would either encourage greater compliance or improve safety outcomes. If follows that if the CoR and associated specific duties prescribed in the HVNL serves the

same purpose as regulations under WHS legislation, the penalty levels should not be

increased simply to reflect the levels found in primary WHS legislation.

ALC concludes by noting that if penalty levels were an issue, it should have been raised in

the now closed HVNL Penalties Framework Review conducted by NTC.

ALC Position 3

There are no grounds to increase HVNL penalties to simply match penalties contained

in primary WHS legislation.

Prosecuting the right party

The main reason for industry‘s nomination of COR to the Forward Work Programme for the

HVNL was due to a perception that the party ‗most guilty‘ for a safety breach was not

brought to account.

Equally, enforcement officers appear to be of the view that they needed more investigatory

powers and sanctions to ensure results delivering the best protection of the public interest

were achieved.

Discussing this issue requires an initial discussion on how the provisions of the HVNL should

be presented.

The HVNL should simply express rights and obligations

Whilst the HVNL permits examples to be included in legislation, ALC believes that as far as

possible, laws should state rights and obligations.

Sometimes attempts to educate can lead to confusion.

For example, the duty contained in section 204 is:

204 Duty of employer, prime contractor or operator to ensure business practices will not cause driver to exceed speed limit (1) A relevant party for the driver of a heavy vehicle must take all reasonable steps to ensure the relevant party‘s business practices will not cause the driver to exceed a speed limit applying to the driver. Examples of reasonable steps— • regular consultation with other parties in the chain of responsibility, unions and industry associations to address compliance issues • reviewing driving, work and trip records • a program to report and monitor (for example, by GPS tracking) incidents of speeding and related risks and hazards

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• training and information about speeding for drivers of heavy vehicles, staff and parties in the chain of responsibility for heavy vehicles (within the meaning given by section 214) • regular maintenance of vehicle components that relate to complying with speed limits (for example, speedometer, engine management system and speed limiters) Maximum penalty—$10000. Notes— 1 Section 622 sets out some of the factors a court may consider in deciding whether a person has taken all reasonable steps. 2 Section 623 sets out 1 method by which an employer, prime contractor and operator can take all reasonable steps for the purposes of this section.

The question can be asked, does the requirement for examples and provisions to be read in the context of each other and of the other provisions of the law effectively mandate some form of telematics in vehicles? 12 Examples can also date, which is another reason not to place them in primary legislation (in particular).

Generally speaking, the specific duties contained in the HVNL satisfactorily set out the

obligations of an operator, or duty holder (as the case arises).

Creating additional duties or duty holders

Some industry participants argue there should be some additional duties should be created

to ensure the ‗right‘ party in the COR is prosecuted.

ALC has argued that those proposing additional duties (or duty holders) will need to show that: (a) a particular practice is so commonly followed in the industry then ‗of course‘ it should be included in the law; or

12Section 10 of Schedule 1 to the HVNL reads 10 Use of examples If this Law includes an example of the operation of a provision— (a) the example is not exhaustive; and (b) the example does not limit, but may extend, the meaning of the provision; and (c) the example and the provision are to be read in the context of each other and the other provisions of this Law, but, if the example and the provision so read are inconsistent, the provision prevails.

Whilst subsection 4(5) to Schedule 1 provides that notes do not form part of the law. Paragraph 10(c) of the

definition is a paragraph not contained in other similar interpretation clauses (see for instance section 15AD of

the Acts Interpretation Act 1901 (Cth). One possible interpretation is that reading paragraphs 10(b) and 10(c)

of Schedule 1 together could mean that in any case the examples at the foot of section 204 are steps a person

must take if ‘all reasonable steps’ are to be taken.

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(b) it is so well known that a particular duty holder should make sure a particular duty is discharged then ‗of course‘ the duty holder should carry out the duty, or face penalty.

This is because people will be subject to penalty if they are caught by any new law.

Unfortunately, progress made by the Taskforce during 2013 was slow. Moreover, the

Taskforce must report to the Transport and Infrastructure Council this calendar year.

ALC believes there is insufficient time to develop additional duties in a way that can satisfy

industry, government and the community that the test set out above can be satisfied such

that the right behaviour (and people) are brought within the law and that no ‗unintended

consequences‘ are created.

If participants believe that further duties should be created, they should be logged for

development through the HVNL Legislation Maintenance Programme.

ALC Position 4 No-one has produced sufficient evidence to allow for the accurate imposition of either new duties or duty holders as part of the COR review process. To the extent that new intermediate duties, process based requirements and specification standards are necessary, they can be developed through the HVNL Legislation Management Programme.

With respect to duty holders, some industry participants believe that some people performing

functions within the supply chain may influence behaviour that encourages speeding and

driving whilst fatigued but are not within the chain of responsibility.

They include ‗time slotters‘ and ‗retail managers‘.

One difficulty is that descriptors such as ‗time slotters‘ are industry terms of art. In the

dynamic industries served by the Australian transport and logistics industry, terms and titles

can change, which can make the task of interpretation unnecessarily difficult.13

Perhaps it may be wiser to impose duties on the basis of work performed rather than by

using titles such as (for example) a ‗scheduler‘.

It would appear that the note appearing at the foot of section 214, which explains who is in

the chain of responsibility for speeding offences, which says:

The exercise of any of these functions, whether exclusively or occasionally, decides whether a person falls within any of these definitions, rather than the person‘s job title or contractual description.

is insufficient.

13

As exemplified by the discussion as to how to determine whether a ‘trade meaning’ of a word exists and if so its ambit see Re Collector of Customs v. Bell Basic Industries Ltd [1988] FCA 371 para 16

13

ALC Position 5 A case appears to have been made out to impose duties on the basis of the function or activity performed by someone rather than attempt to describe duty holders by way of job title. This can be developed through the HVNL Legislation Management Programme.

Executive officer liability

Some Taskforce participants have argued for a specific set of duties for executive officers of

corporations in the HVNL.

This could include replicating the contents of section 27 of the model WHS law.

For the reasons discussed earlier no case has been made out for the creation of further

additional general duties in the HVNL.

Mere replication of WHS duties is also opposed – WHS law is the place where behaviour

captured by the general duty of PCBU‘s (and where the PCBU is a corporation, its senior

management) is regulated - and if behaviour is adjudged to be in breach of the community

expectations set out in that law, that behaviour should be dealt with under that law.

The HVNL is designed to operate similar to regulations under WHS law. That means the law

does, and should, create specific duties to be followed. It is for the HVNL to specify the

extent that liability for breaching specific duties should be extended to managers.

The appropriateness of whether an offence should be extended should be assessed against

the COAG principles and guidelines relating to director liability.

Although that exercise was conducted towards the end of the development of the HVNL, it was performed at some haste and with fairly limited advice. The offences listed in Schedule 4 of the HVNL (provisions specified for liability of executive officers for offences by corporations) should be reviewed as part of this process. A further expression of the ALC position on changing the law relating to executive officer liability is contained in the responses to relevant options set out in the Options Paper. ALC Position 6

The provisions that impose liability on executive officers for offences committed by

corporations should be reviewed against relevant COAG guidelines on director

liability as part of this process.

Reasonable steps defence

ALC also believes the current formulation contained:


(b) the general duty relating to speed and fatigue contained in chapters 5 and 6 of the

HVNL

14

that a person should show they took all reasonable steps to avoid a contravention remains

satisfactory.

This formulation has been brought forward from the previous Model Law and reinforces an

obligation for continuous improvement.

It should be read as imposing a requirement that such steps as:

ought reasonably to be taken by way of precaution against the occurrence of (at

least, speed and fatigue offences) under any circumstances that may reasonably be

anticipated; and

to prevent continuance of offending practices when discovered

should be taken. 14

ALC also believes that the requirement to show all reasonable steps adds a legislative

emphasis that makes clear that a duty holder must do everything that could reasonably be

required of it to discharge the relevant obligations contained in the HVNL which is

appropriate.15

Finally, notwithstanding the reservations about the use of examples made above, the HVNL

does contain:

matters prosecutors and courts may have regard to when considering whether all

reasonable steps have been taken in relation to speeding or fatigue management

offences16;

the capacity to make regulations to provide either ways or measures (or examples of

ways or measures) for fatigue management offences17; and

a duty on the NHVR to identify and promote best practice method for complying with

the HVNL and to manage risks to public safety arising from the use of heavy vehicles

on roads18

There is therefore guidance as to what the phrase ‗all reasonable steps‘ means. If more guidance is necessary, the HVNL provides mechanisms to provide it. There is no reason to amend the concept. This analysis also confirms why additional duties should not be created merely to ‗guide‘ decision makers in prosecuting the ‗right‘ person. To create further duties specifically in the COR divisions of chapters 5 and 6 of the HVNL runs the risk of confusing the parliamentary intention of what constitutes ‗all reasonable steps‘. ALC Position 7

14 Rolfe v Willis [1916] HCA 26

15

Chu v. Telstra Corporation [2005] FCA 1730 paras 34-35 16

Section 623 of the HVNL 17

Section 624 of the HVNL 18

Paragraph 659(2)(j) of the HVNL

15

The current formulation contained:


(b) the general duty relating to speed and fatigue contained in chapters 5 and 6 of

the HVNL

that a person should show they took all reasonable steps to avoid a contravention of

the HVNL remains satisfactory.

As the HVNL contains:

(c) matters prosecutors and courts may have regard to when considering whether

all reasonable steps have been taken in relation to speeding or fatigue

management offences;

(d) the capacity to make regulations to provide either ways or measures (or

examples of ways or measures) for fatigue management offences; and

(e) a duty on the NHVR to identify and promote best practice method for

complying with the HVNL and to manage risks to public safety arising from the

use of heavy vehicles on roads

there is plenty of guidance of what constitutes ‘all reasonable steps’. The NHVR

should be resourced to promote best practice where gaps in participant performance

is identified.

Powers of officers Enforcement officers have suggested the ‗right person‘ can be identified, and sanctions better framed, if some relevant provisions from the model WHS law was brought across to the HVNL. However, ALC notes that the current suite of powers possessed by enforcement officers is

quite extensive.

As ALC said in its response to the 2013 Discussion Paper prepared for the Chain of

Responsibility review:

……, ALC notes that principles 1 and 3 of the Principles of Best Practice Regulation published in the COAG Guide for Ministerial Councils and National Standard Setting Bodies require the establishment of a case for action before addressing a problem as well as the adoption of the option that generates the greatest net benefit for the community.3

It is noted that safety standards are improving, as indicated by the statistics in the attachment. (Note attachment not reproduced) For that reason, ALC sees no reason to include, for its own sake, additional powers, additional penalties or the creation of additional duties simply for the sake of ‘harmonisation’ with either WHS law, or for that matter laws regulating the rail and domestic commercial vessel environments. This is particularly the case where, as paragraph 111 of the Discussion Paper indicates:

16

Preliminary research conducted as part of the Heavy Vehicle Compliance Framework project suggests that enforcement officers empowered to use the ‗CoR toolkit‘ are less likely to issue infringements than those not so empowered. That toolkit consists of CoR investigations and the suite of intervention strategies made possible by the C&E legislation such as improvement notices and warnings. This is in contrast to previous OH&S experience, which suggests that where infringement and warning options coexist, warning options tend to reduce because of the comparative ease of infringements. It is of some concern that a burgeoning ‗toolkit‘ could lead to the abandonment of discretion.

(Emphasis in the original)

In discussion with ALC members, it is clear that there remains concern that increasingly

amongst enforcement officers that increasingly, fewer warnings – the lowest enforcement

action identified under the Braithwaite ‗enforcement pyramid‘ are being issued; instead more

formal enforcement action is being taken.

Where a number of reviews dealing with similar issues are being conducted simultaneously,

it is important that the findings of one review should be given due regards by the other

reviews operating in the same timeframe.

ALC notes with regret that at the time of writing enforcement officers were unable to specify

which additional powers contained in other safety laws they thought were particularly

necessary to discharge their responsibilities.

More work needs to be conducted before considering whether further enforcement powers

are necessary.

ALC Position 8

No case for the extension of enforcement powers has been made out. No additional

powers should be conferred unless a case is made out that any new power or offence

will increase compliance and safety outcomes and that the powers of regulators,

when taken as a whole, are not seen to be disproportionate in those jurisdictions

possessing charters of rights.

The ALC solution

As discussed earlier, there is a general wish to ensure the right party is prosecuted.

However, ALC believes it is inappropriate to further prescribe further specific duties or duty

holders just to achieve that aim.

At the end of the day, the issue isn‘t necessarily the law but rather the choices made by

those investigating and preferring charges.

That is why in its original paper ALC suggested:

……. if there is to be any change in the law (and no case has been made out), and given that for a considerable period in the future most enforcement services will be purchased by the NHVR under service level agreements, there is some argument to say that decision makers who are capable of making a decision should be required to have regard to guidelines published by the NHVR, which may assist more consistent decision making nationally. There is a clear legislative precedent for such a provision.

17

Section 243ZG of the Customs Act 1901 reads: Guidelines for serving infringement notices The CEO must, by legislative instrument, make guidelines in respect of the administration of this Subdivision to which he or she must have regard when exercising powers under this Subdivision. This could provide comfort for those who believe there are inconsistencies in the way CoR provisions are administered. If change is to be contemplated, the other element that should be considered is a change to the HVNL so that those who comply with an Industry Code are taken to have complied with the legislation. As Chris Maxwell indicated in his March 2004 review of Victoria‘s Occupational Health and Safety laws: 1728. In my view, a similar provision should be inserted regarding compliance with the Codes of Practice. Given that each Code must be approved by the Minister, the Codes are given significant status under the Act. Moreover, their stated purpose according to s.55(1) is to provide – ―practical guidance to employers, self-employed people, employees, occupiers, designers, manufacturers, importers, suppliers or any other person who may be placed under an obligation by or under this Act.‖ 1729. The policy which underlies s.27 – that compliance with the regulations should be encouraged – applies with equal force to the Codes of Practice. Compliance with a relevant Code of Practice should, therefore, be deemed to constitute compliance with the relevant duty or obligation. This change would give legal effect to what the Authority already states in each Code of Practice.4

As Victoria has elected not to adopt the model WHS legislation, compliance with a Code of Practice made under Victorian OHS law is deemed to be compliance with OHS obligations. Arguably, this is regulatory best practice. As the Productivity Commission observed in its 2013 draft report Regulator Engagement with Small Business: While being optional for small business to access and implement, the availability of prescriptive regulations and guidance can help to educate small businesses and provide them with greater certainty. An extension to this model can involve a regulator accepting that a business is ‗deemed to comply‘ or ‗deemed to satisfy‘ a regulatory standard if they can demonstrate the full implementation of the steps prescribed within a regulatory instrument.

ALC believes that the problem that led to nominating the COR review onto the HVNL

Forward Work Programme was the uneven manner by which the current HVNL provisions

are being enforced across the country.

There is also some concern as to what constitutes the taking of ‗all reasonable steps‘ as that

term is used in the reasonable steps defence as well as in chapter 6 of the HVNL.

These are undesirable outcomes requiring correction.

18

ALC believes that a national scheme should possess national consistency. Whilst Appendix

H of the options paper lists the various prosecution guidelines in force across Australia, there

should be one set of guidelines that should be considered by those enforcing a national law

when making decisions about who to investigate and then whether to prosecute.

That is best done by the NHVR, who will over time take a greater responsibility for the

coordination and prioritisation of enforcement.19

Requiring the NHVR to make prosecution guidelines and authorised officers to have regard

to them when making decisions offers the advantages over the status quo of:

consistency of policy approach; and

a greater surety for operators that the ‗right‘ parties are being prosecuted for HVNL

offences.

It would also be appropriate for the Regulator to enter into a memorandum of understanding

with police forces so that, to the extent practicable, there is a similarity of approach by them.

To the extent that there is inconsistency in approach, the NHVR will be clearly politically

responsible and will need to defend the relevant shortfall to the Transport and Infrastructure

Council and the community.

Finally, it remains the case that for the time being the NHVR is totally reliant on jurisdictions

to provide enforcement services, that are paid for by industry under the ‗user pays‘ concept

that has been adopted to fund the national scheme of regulation.

ALC therefore believes that the service agreements should be published in full, so industry

has a full understanding of what services the NHVR has requested, and can test how well

jurisdictions have provided the requested service.

ALC also believes that the recognition of registered industry codes as a complete defence to

prosecutions in suitable circumstances would enhance safety outcomes through the creation

of an incentive for enrolled operators to adopt and use safety systems designed to limit

safety breaches, which would not only improve productivity outcomes but also limit the

number of offences committed.

Commitment to following a code would also guide particularly small operators in ascertaining

what constitutes ‗all reasonable steps‘ to protect against HVNL offences without overly

diminishing the ‗continuous improvement‘ requirement implied by the structure of the Law,

thus offering them a reduction in compliance costs.

For these reasons, the ALC solution offers a net public benefit to the community.

ALC Position 9

The NHVR should publish prosecution guidelines that must be taken into account by

officers providing services to the Regulator under service agreements.

The NHVR and police forces should enter into a memorandum of understanding as to

when and how police will exercise enforcement functions under the HVNL.

19

Giving effect to its functions set out in paragraphs 659(2)(b)-(d) of the HVNL

19

ALC Position 10

Service agreements made by the NHVR and jurisdictions should be published in full.

ALC Position 11

A person who complies with a registered industry code should be taken as having

discharged the duty to take all reasonable steps to comply with the HVNL.

The options paper contains specific options and proposals for consideration.

They are discussed in the following table.

Australian Logistics Council

March 2014

20

Options and Proposals for Consideration Topic 1: Duties 1. General Duties

Option 1: Amend the HVNL to provide an overarching, HVNL-wide general duty based upon the general duties contained within the model Work Health and Safety Act (WHS Act) and Rail Safety National Law (RSNL).

Disagree The HVNL plays the role of regulations under WHS legislation, through (generally) the creation of specific duties on identified duty holders. No evidence has been presented to suggest the creation of further general duties would either encourage greater compliance or improve safety outcomes.

Option 2: Amend the HVNL to provide for chapter specific general duties based upon the current construct of section 229 Duty of party in the chain of responsibility to prevent driver driving while fatigued and mirrored within the mass, dimension and loading (MDL), speed and potentially vehicle standard chapters of the HVNL.

As above

2. Specific Duties (intermediate duties, process-based requirements and specification standards)

Proposal 1: Redraft Chapter 4 – Vehicle operations – mass, dimension and loading to include specific duty provisions similar to those found at Chapters 5 – Vehicle operations – speeding and 6 – Vehicle operations – driver fatigue (ie specific duties relating to business practices, terms of consignment, requests and contracts).

No-one has produced sufficient evidence to allow for the accurate imposition of either new duties or duty holders as part of the COR review process. The need for any new intermediate duties, process based requirements and specification standards are necessary, (or in this case, the application of the specific duties imposed on duty holders in chapters 5 and 6 to chapters 3 and 4) can be considered and developed through the HVNL Legislation Management Programme.

Proposal 2: Redraft Chapter 3 – Vehicle operations – vehicle standards, to include specific duty provisions that require those parties that have influence over vehicle standards to take reasonable steps to ensure breaches do not occur.

As above

21

3. Onus of Proof for Extended Liability

Option 1: Change the reasonable steps defence for extended liability offences so that onus of proof rests with the prosecution.

Agree. ALC also believes that the ‘mistake of fact’ defence should also be reintroduced.

4. Executive Officer Liability – Reassessment of Section 636

Option 1: Redraft section 636 to align with the model WHS Act – moving to a positive duty with due diligence. Due diligence to be defined within the HVNL

No case has been made out for the creation of further additional general duties in the HVNL. Secondly, mere replication of duties is opposed – WHS law is the place where the general duty of PCBU’s (and where the PCBU is a corporation, its senior management) to observe safety is regulated, and if behaviour is adjudged to be in breach of the community expectations set out in that law, the behaviour should be dealt with under that law. Thirdly, no-one has produced sufficient evidence to either permit the development of new duties or identify new duty holders as part of the COR review process. To the extent that new intermediate duties, process based requirements and specification standards are necessary, they can be developed through the HVNL Legislation Management Programme.

Option 2: Retain section 636 as drafted (ie. deemed liability for executive officers) retaining reasonable diligence but defining this term similar to the definition of ‗due diligence‘ provided in the model WHS Act

The due diligence provision contained in model WHS law is merely an inclusive definition (that also adds some duties – as to which see the comment made above.) As an inclusive definition does not cover everything that could constitute due diligence specify what constitutes ‘due diligence’, it does not advance the current situation. ALC does not believe there is any material difference between undefined concepts of ‘due diligence’ and ‘reasonable difference’.

Option 3: Redraft section 636 to include prescribed and positive duties on executive officers to take reasonable steps.

This appears to be a mix of options 1 and 3. See previous comments.

22

Option 4: Maintain the current section 636, however remove ‗knowingly authorised or permitted‘ and ‗who knew or ought reasonably to have known‘.

This effectively appears to be a repeal of subsection 636(1) of the HVNL. ALC has no opinion on this issue.

.

5. Executive Officer Liability – Reassessment of Executive Officer Liability Offences under Schedule 4

Option 1: Reassess the offences listed in columns 1, 2 and 3 of Schedule 4 to ensure alignment with the COAG Principles and Guidelines.

The provisions that impose liability on executive officers for offences committed by corporations should be reviewed against relevant COAG guidelines on director liability as part of this process.

Options and Proposals for Consideration Topic 2: Parties & Roles

6. Understanding of Roles/Activities/Undertakings and Responsibilities of Parties

Proposal 1: Need for clarity on responsibilities and how parties in the chain can comply with obligation. This can be achieved through further examples provided in the HVNL and regulations or through additional fact sheets and guidelines.

As the HVNL contains: (a) matters prosecutors and courts may have regard to when considering whether all reasonable steps have been taken in relation to speeding or fatigue management offences; (b) the capacity to make regulations to provide either ways or measures (or examples of ways or measures) for fatigue management offences; and (c) a duty on the NHVR to identify and promote best practice method for complying with the HVNL and to manage risks to public safety arising from the use of heavy vehicles on roads there is plenty of guidance of what constitutes ‘all reasonable steps’. The NHVR should be resourced to promote best practice where gaps in participant performance is identified. .

Proposal 2: Amend the HVNL to include statutory obligations on the steps parties in the chain must take in order to comply with their obligations under the HVNL. This would be achieved by providing a list of tasks that a party in the chain must complete to comply with CoR provisions.

As above

Proposal 3: Provide within the HVNL, a requirement on an employer to notify

Disagree. This effectively replicates WHS obligations.

23

employees of their roles, activities, undertakings and responsibilities to ensure that employees are aware of their CoR obligations.

7. Parties in the Chain of Responsibility

Proposal 1: There is a need to target ALL entities that exert influence over business practices to the extent that it may cause a breach of the HVNL.

No-one has produced sufficient evidence to permit the development of new duties or the identification of new duty holders as part of the COR review process. To the extent that new intermediate duties, process based requirements and specification standards are necessary, they can be developed through the HVNL Legislation Management Programme.

Proposal 2: There is a need to target individuals that create demand for road transport that results in breaches (ie. inventory managers, time slotters, retail managers, load owners and freight customers).

As above. A case appears to have been made out to impose duties on the basis of the function or activity performed by someone rather than attempt to describe duty holders by way of job title. This can be developed through the HVNL Legislation Management Programme.

Proposal 3: There is a need to target employees and workers under the CoR provisions, such as with the model WHS Act approach.

As above

Proposal 4: One way to manage the above three proposals is to expand the current definitions of ‗parties in the chain of responsibility‘ (ie. consignees, schedulers etc) to include parties such as inventory managers, time slotters, retail managers, load owners and freight customers.

As above.

Proposal 5: Another way to manage the proposals 1, 2 and 3 as discussed above, may be to amend the HVNL to relocate the definition of ‗parties in the chain of responsibility‘ from the Act to the regulations. This would mean that the definition could be expanded and additional parties could be added as needed to without the difficulty that comes with amended an Act.

Only as a last resort, and only if it is decided as a matter of statutory presentation to continue to use descriptions of the person who should discharge a duty, as opposed to just identifying the duty. Regulations should not generally be used to expand the class of person who can face criminal liability established in primary legislation.

Proposal 6: Redraft the definition of consignor to focus on the role of the

See proposal 1 and 2

24

consignor rather than the individual named on documentation.

Options and Proposals for Consideration Topic 3: Compliance & Enforcement 8. Enforcement Powers

Proposal 1: Broaden the entry powers for authorised officers.

Principles 1 and 3 of the Principles of Best Practice Regulation published in the COAG Guide for Ministerial Councils and National Standard Setting Bodies require the establishment of a case for action before addressing a problem as well as the adoption of the option that generates the greatest net benefit for the community. It is noted that safety standards are improving. For that reason, ALC sees no reason to include, for its own sake, additional powers, additional penalties or the creation of additional duties simply for the sake of ‘harmonisation’ with either WHS law, or for that matter laws regulating the rail and domestic commercial vessel environments. This is particularly the case where, as paragraph 111 of the 2013 Discussion Paper for the COR Review indicates: Preliminary research conducted as part of the Heavy Vehicle Compliance Framework project suggests that enforcement officers empowered to use the ‘CoR toolkit’ are less likely to issue infringements than those not so empowered. That toolkit consists of CoR investigations and the suite of intervention strategies made possible by the C&E legislation such as improvement notices and warnings. This is in contrast to previous OH&S experience, which suggests that where infringement and warning options coexist, warning options tend to reduce because of the comparative ease of infringements It is of some concern that a burgeoning ‘toolkit’ could lead to the abandonment of discretion.

25

No additional powers should be conferred unless a case can be made out that any new power or offence will increase compliance and safety outcomes and that the powers of regulators, when taken as a whole, are not seen to be disproportionate in those jurisdictions possessing charters of rights.

Proposal 2: Redraft sections regarding the powers of inspectors. The focus of that redrafting should be the pursuit of clarity which will assist inspectors in exercising their powers within the extent allowed by law. NTC Note – It was agreed at the 4th Taskforce Meeting that NSW would clarify at a CoR regulator forum, what specific provisions/powers/changes they would recommend to broaden the entry powers and enhance the clarity of powers for authorised officers. ALC Observation – this meeting did not occur

As above

Proposal 3: Amend section 569 of the HVNL to provide for the instantaneous production of transport documents at business premises not limited to written requirements and not inhibited by time (retrieval and delivery).

As above

Proposal 4: Broaden the parameters of the power to require production of documents under section 569 to remove the limitation of needing to be satisfied that documents are in possession or under control of person/company.

As above

Proposal 5: Amend section 570 of the HVNL to align the power to compel persons to answer questions with section 155 of the WHS Act (knowledge and documents and at a time and place etc) OR Proposal 6: Amend section 570 so that it extends to all people who may have information and not just a responsible person for a heavy vehicle. AND/OR Proposal 7: Amend section 570 to include additional information that may be integral to an investigation for example information relating to business practices.

As above

Proposal 8: Amend the HVNL to provide that where a driver of a heavy vehicle is charged with a breach of the HVNL for which an operator may also be liable (via extended liability), and an officer does not take action against the operator of the heavy vehicle, that either the Regulator or the authorised officer working on behalf of the Regulator, are required to notify the operator that a

Agreed.

26

breach has occurred.

Proposal 9: Produce enforcement guideline to assist officers in making decisions that pertain to the CoR regime.

The NHVR should publish prosecution guidelines that must be taken into account by officers providing services to the Regulator under service agreements. The NHVR and police forces should enter into a memorandum of understanding as to when and how police will exercise enforcement functions under the HVNL.

Proposal 10: Amend the HVNL to require authorised officers who break seals when conducting searches of heavy vehicles, to reseal the thing or if the officer does not have a seal available, to leave an auditable account of their actions.

Agree, if this is within scope of this review.

9. Extra-Territorial Activities

Proposal 1: Formalised information exchange amongst law enforcement agencies and jurisdictions

Agree.

Proposal 2: Enhanced coordination including the national rollout of technology between jurisdictions.

Agree.

Proposal 3: Ensuring regulatory agencies including the NHVR are appropriately equipped with adequate resources and technology to conduct cross-border investigations.

Agree.

10. Penalties for Chain of Responsibility Offences

Proposal 1: Reduce penalties for extended liability offences compared to the substantive driver offences.

This is a matter that should be dealt with in the HVNL penalties review being conducted parallel with this review.

Proposal 2: Increase penalties for CoR provisions to align HVNL CoR penalties with penalties under the WHS Act.

As above However, that said, ALC believes the HVNL should be taken as serving the purpose of WHS regulations. There has been no case made to expand penalties, except to bring WHS and HVNL provisions into alignment. In that context, ALC disagrees with the proposal.

11. Non-Government Accreditation Schemes and Industry Codes of Practice

Option 1: Amend the status afforded to Agree

27

codes of practice under the HVNL so that compliance with a relevant code of practice is deemed to constitute compliance with the relevant duty or obligation (ie. covers all defences, not just reasonable steps).

Option 2: Amend the status afforded to codes of practice under the HVNL to align with the model WHS Act (ie. can be considered by a court in determining what is reasonably practicable in the circumstances to which the code of practice relates).

This option does not appear to materially change the current law, and also presupposes that the ‘all steps’ test is changed to a ‘reasonably practicable’ test – which ALC sees no reason to change.

Option 3: Amend the HVNL to provide that the Regulator can approve non-governmental accreditation schemes for the purposes of providing the same benefits as those operating under the NHVAS.

ALC will require further information before coming to a final decision.

12. Defences under the HVNL

Proposal 1: Reassess the application of the reasonable steps defence to CoR provisions. Further information from the ATA and NSW is required on this issue to determine the extent of this assessment.

The current formulation contained in the reasonable steps defence established by section 618 of the HVNL and the general duty relating to speed and fatigue contained in chapters 5 and 6 of the HVNL that a person should show they took all reasonable steps to avoid a contravention of the HVNL remains satisfactory.

Proposal 2: Create a requirement for authorised offices to consider whether a reasonable steps defence might be sustained before proceeding with a prosecution. This requirement could (a) be a statutory requirement as proposed by industry, or (b) a requirement contained in guidelines which reflects current state and territory practices.

The NHVR should be placed under a statutory duty to publish guidelines that those providing services to the Regulator under service agreements, and prosecutors, must have regard to when considering the commencement of a prosecution of an offence under the HVNL. The NHVR and police forces should enter into a memorandum of understanding as to when and how police will exercise enforcement functions under the HVNL.

Proposal 3: Develop operational guidelines to direct situations where infringement notice penalties can be issued in relating to the production of a weighbridge certificate. For example, guidelines could be developed to state something along the lines of ‗if a weighbridge certificate is produced and there is no reason to doubt its accuracy, than the authorised officer should conduct further investigation into the offence before issuing an infringement notice penalty‘.

Agree, if this idea is within scope.

28

Proposal 4: Redraft the CoR offences (duty and extended liability) to adopt the ‗reasonably practicable‘ test from the model WHS Act.

See proposal 1 above

13. Enforcement Measures

Proposal 1: Adopt the model WHS Act enforcement measures currently unavailable under the HVNL. These are officer issued prohibition orders, court ordered adverse publicity orders, injunction orders, restoration orders and enforcement undertakings accepted by both the court and the NHVR.

Principles 1 and 3 of the Principles of Best Practice Regulation published in the COAG Guide for Ministerial Councils and National Standard Setting Bodies require the establishment of a case for action before addressing a problem as well as the adoption of the option that generates the greatest net benefit for the community. It is noted that safety standards are improving. For that reason, ALC sees no reason to include, for its own sake, additional powers, additional penalties or the creation of additional duties simply for the sake of ‘harmonisation’ with either WHS law, or for that matter laws regulating the rail and domestic commercial vessel environments. This is particularly the case where, as paragraph 111 of the 2013 Discussion Paper for the Chain of Responsibility Review indicates: Preliminary research conducted as part of the Heavy Vehicle Compliance Framework project suggests that enforcement officers empowered to use the ‘CoR toolkit’ are less likely to issue infringements than those not so empowered. That toolkit consists of CoR investigations and the suite of intervention strategies made possible by the C&E legislation such as improvement notices and warnings. This is in contrast to previous OH&S experience, which suggests that where infringement and warning options coexist, warning options tend to reduce because of the comparative ease of infringements

29

It is of some concern that a burgeoning ‘toolkit’ could lead to the abandonment of discretion. No additional powers should be conferred unless a case can be made out that any new power or offence will increase compliance and safety outcomes and that the powers of regulators, when taken as a whole, are not seen to be disproportionate in those jurisdictions possessing charters of rights.

Proposal 2: Adoption of Regulator issued prohibition notices.

As above

Proposal 3: Adoption of Regulator accepted enforceable undertakings OR adoption of court accepted enforceable undertakings.

As above

Proposal 4: Adoption of court issued adverse publicity orders.

As above

14. Overlapping Obligations

Option 1: Define overlapping areas, obligations and responsibilities under the HVNL to avoid overlap with the WHS Act.

There will be times where WorkCover officers will choose to investigate, usually in cases of death and serious injury. ALC has never suggested that WorkCover should lose jurisdiction. A clear memorandum of understanding between the Regulator and Safework Australia should be published on the NHVR website to explain how the relationship between WHS authorities and the NHVR and the agencies supplying it with services under a service agreement operates.

Option 2: Amend the HVNL to reflect the position that the model WHS Act will take precedence over the HVNL in the event of overlapping obligations

Section 18 of the National Law HVNL is satisfactory.

Option 3: Recognition that compliance with duties under one regime constitutes compliance with other regimes.

There is some scope for proposing an amendment to section 275 of the model WHS code so that compliance with a registered HVNL industry code is evidence of compliance with general responsibilities.

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Options and Proposals for Consideration Topic 4: Miscellaneous Issues 15. Consistency in the Drafting and Construction of the Framework

Proposal 1: Amend section 227 to state that the ―exercise of any of those functions, whether exclusively or occasionally, decides whether a person falls within any of these definitions, rather than the person‘s job title or contractual description‖.

Agreed

Proposal 2: Redraft the MDL, speed and fatigue chapters and in particular the CoR provisions in a consistent manner.

This is a technical amendment that can, subject to seeing what is actually proposed, could be supported. This is probably better managed through the HVNL Legislation Maintenance Programme process.

Proposal 3: Redraft section 194 to remove the mental element of the consignee intending a result or being reckless or negligent as to the doing of the act or making of the omission that in a contravention of a mass, dimension or loading requirement.

This reflects the policy contained in the previous Model Law. No clear argument has been provided as to why the section should change.

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ATTACHMENT – Extract from Division 6 of Part 3 of the National Rail Safety Law

Division 6—Safety management

Subdivision 1—Safety management systems

99—Safety management system

(1) A rail transport operator must have a safety management system for railway operations in respect of which the operator is required to be accredited that—

(a) is in a form approved by the Regulator; and

(b) provides for systems and procedures for compliance with the risk management obligations under this Law; and

(c) identifies any risks to safety in relation to railway operations in respect of which the operator is required to be accredited; and

(d) provides for the comprehensive and systematic assessment of any identified risks; and

(e) specifies the controls (including audits, expertise, resources and staff) that are to be used by the operator to manage identified risks and to monitor safety in relation to those railway operations; and

(f) includes procedures for monitoring, reviewing and revising the adequacy of those controls; and

(g) addresses and includes any other matter prescribed by the national regulations that is relevant to the railway operations for which the rail transport operator is accredited.

Maximum penalty:

(a) in the case of an individual—$150 000;

(b) in the case of a body corporate—$1 500 000.

(2) The safety management system for a rail transport operator must also include the following matters prepared in accordance with the requirements of this Division:

(a) measures to manage identified risks to safety for the purposes of interface agreements;

(b) a security management plan;

(c) an emergency management plan;

(d) a health and fitness management program;

(e) a drug and alcohol management program;

(f) a fatigue risk management program.

(3) Before establishing a safety management system in relation to railway operations in respect of which a rail transport operator is required to be accredited or reviewing or varying any such safety management system, the operator must, so far as is reasonably practicable—

(a) consult with—

(i) persons likely to be affected by the safety management system or its review or variation, being persons who carry out those railway operations or work on or at the operator's railway premises or with the operator's rolling stock; and

(ii) health and safety representatives (within the meaning of the occupational health and safety legislation) representing any of the persons referred to in subparagraph (i); and

32

(iii) any union representing any of the persons referred to in subparagraph (i); and

(iv) any other rail transport operator with whom the first mentioned operator is required to enter into an interface agreement relating to risks to safety of railway operations carried out by or on behalf of either of them; and

(v) the public, as appropriate; and

(b) provide the persons consulted with a reasonable opportunity to make submissions on the proposed safety management system; and

(c) advise those persons in a timely manner of the outcome of the consultation process.

(4) If the safety management system of a rail transport operator and the safety management system of another rail transport operator who has an agreement referred to in subsection (3)(a)(iv) with the first mentioned operator, when taken as 1 system, comply with this Law, both safety management systems are taken to comply with this Law.

(5) A safety management system must be evidenced in writing and must identify—

(a) each person responsible for preparing any part of the safety management system; and

(b) the person, or class of persons, responsible for implementing the system.

100—Conduct of assessments for identified risks

(1) In conducting an assessment for the purposes of section 99(1)(d), the rail transport operator must—

(a) examine and analyse each identified risk, including—

(i) the nature of the risk; and

(ii) the likelihood of the risk occurring; and

(iii) the magnitude and severity of the consequences should a risk be realised; and

(iv) the range of control measures available and considered to eliminate or minimise the risk; and

(b) consider risks cumulatively as well as individually; and

(c) use assessment methodologies that are appropriate to the risks under consideration.

(2) The rail transport operator must keep a detailed record of all aspects of the assessment process, including—

(a) the risks considered; and

(b) the likelihood, severity of consequences and control measures considered, including reasons for selecting certain control measures and rejecting others.

101—Compliance with safety management system

(1) A rail transport operator must implement the operator's safety management system.

Maximum penalty:



(2) A rail transport operator must not, without reasonable excuse, fail to comply with the operator's safety management system for the operator's railway operations.

Maximum penalty:



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(3) Subsection (2) places an evidential burden on the accused to show a reasonable excuse.

102—Review of safety management system

A rail transport operator must review the operator's safety management system in accordance with the national regulations at such times or within such periods as are prescribed (or, if no times or periods are prescribed, at least once each year or at such other time as is agreed between the operator and the Regulator).

Maximum penalty:


(b) in the case of a body corporate—$50 000.

103—Safety performance reports

(1) A rail transport operator must give the Regulator a safety performance report about the operator's railway operations in respect of which the operator is required to be accredited for each reporting period that—

(a) is in a form approved by the Regulator; and

(b) complies with the requirements (if any) prescribed by the national regulations for the purposes of this section; and

(c) contains—

(i) a description and assessment of the safety performance of the operator's railway operations; and

(ii) comments on any deficiencies, and any irregularities, in the railway operations that may be relevant to the safety of the railway; and

(iii) a description of any safety initiatives in relation to the railway operations undertaken during the reporting period or proposed to be undertaken in the next reporting period; and

(iv) any other information or performance indicators prescribed by the national regulations for the purposes of this section.

(2) A rail transport operator must submit a report in accordance with this section within 6 months after the end of each reporting period.

Maximum penalty:



(3) In this section—

reporting period means a financial year or such other period as is agreed from time to time by the Regulator and the rail transport operator.

104—Regulator may direct amendment of safety management system

(1) The Regulator may, by written notice given to an accredited person, direct the person to amend the person's safety management system in a specified manner within a specified period, being not less than 28 days after the giving of the direction.

(2) Before giving a direction to amend a safety management system under subsection (1), the Regulator must, if the intended amendment is likely to result in significant costs or expenses to the accredited person or any other person—

(a) conduct or cause to be conducted a cost-benefit analysis of the effect of the intended amendment; and

(b) consult with the Premier or Chief Minister, the Treasurer, and any other Minister, of a participating jurisdiction whose area of responsibility is likely to be affected by the intended amendment.

34

(3) A direction under subsection (1)—

(a) must state the reasons why the Regulator considers it necessary for the rail transport operator to amend the safety management system; and

(b) must include (if applicable) the results of any cost-benefit analysis carried out under this section; and

(c) must include information about the right of review under Part 7.

(4) An accredited person must not, without reasonable excuse, fail to comply with a direction under subsection (1).

Maximum penalty:



(5) Subsection (4) places an evidential burden on the accused to show a reasonable excuse.

Subdivision 2—Interface agreements

105—Requirements for and scope of interface agreements

(1) An interface agreement must include provisions for—

(a) implementing and maintaining measures to manage risks identified under section 99(1)(c) associated with the interface; and

(b) the evaluation, testing and (where appropriate) revision of measures in relation to identified risks and incidents considered; and

(c) the respective roles and responsibilities of each party to the agreement in relation to those measures; and

(d) procedures by which the parties to the agreement will exchange information about, and monitor compliance with, their obligations under the agreement; and

(e) a process for keeping the agreement under review and its revision.

(2) An interface agreement may—

(a) be entered into by 2 or more rail transport operators or by 1 or more rail transport operators and 1 or more road managers; and

(b) include measures to manage any number of risks to safety that may arise because of, or partly because of, any railway operations; and

(c) include measures to manage any number of risks to safety that may arise from any railway operations because of, or partly because of, the existence or use of any road infrastructure; and

(d) make provision for or in relation to any matter by applying, adopting or incorporating any matter contained in any document; and

(e) consist of 2 or more documents.

106—Interface coordination—rail transport operators

A rail transport operator must—

(a) identify and assess, so far as is reasonably practicable, risks to safety that may arise from railway operations carried out by or on behalf of the operator because of, or partly because of, railway operations carried out by or on behalf of any other rail transport operator; and

(b) determine measures to manage, so far as is reasonably practicable, those risks; and

35

(c) for the purpose of managing those risks—seek to enter into an interface agreement with the other rail transport operator or rail transport operators.

Maximum penalty:



107—Interface coordination—rail infrastructure and public roads

(1) A rail infrastructure manager must—

(a) identify and assess, so far as is reasonably practicable, risks to safety that may arise from railway operations carried out on or in relation to the manager's rail infrastructure because of, or partly because of—

(i) the existence of road infrastructure of a prescribed public road; or

(ii) the existence or use of any rail or road crossing that is part of the road infrastructure of a public road; and


(c) for the purpose of managing those risks—seek to enter into an interface agreement with the road manager of that road.

Maximum penalty:



(2) The road manager of a public road must—

(a) identify and assess, so far as is reasonably practicable, risks to safety that may arise from the existence or use of any rail or road crossing that is part of the road infrastructure of the road because of, or partly because of—

(i) the existence of road infrastructure of a prescribed public road; or

(ii) the existence or use of any rail or road crossing that is part of the road infrastructure of a public road; and


(c) for the purpose of managing those risks—seek to enter into an interface agreement with the rail infrastructure manager of the rail infrastructure.

(3) Nothing in this section authorises or requires a road manager to act inconsistently with, or without regard to, the functions, obligations or powers conferred on it by or under an Act or law.

108—Interface coordination—rail infrastructure and private roads

(1) A rail infrastructure manager must—

(a) identify and assess, so far as is reasonably practicable, risks to safety that may arise from railway operations carried out on or in relation to the manager's rail infrastructure because of, or partly because of, the existence or use of any rail or road crossing that is part of the road infrastructure of a private road; and

(b) consider the extent to which those risks are managed by any prescribed protocols; and

(c) consider whether it is necessary to manage those risks in conjunction with the road manager of that road and—

36

(i) if the rail infrastructure manager is of the opinion that it is necessary that those risks be managed in conjunction with the road manager—give written notice of that opinion to the road manager and determine measures to manage, so far as is reasonably practicable, those risks; or

(ii) if the rail infrastructure manager is of the opinion that the management of those risks does not need to be carried out in conjunction with the road manager—keep a written record of that opinion; and

(d) unless paragraph (c)(ii) applies—for the purpose of managing those risks, seek to enter into an interface agreement with the road manager.

Maximum penalty:



(2) If a rail infrastructure manager gives a road manager of a private road a written notice under subsection (1)(c)(i), the road manager must—

(a) identify and assess, so far as is reasonably practicable, risks to safety that may arise from the existence or use of any rail or road crossing that is part of the road infrastructure of the road because of, or partly because of, railway operations; and


(c) for the purpose of managing those risks—seek to enter into an interface agreement with the rail infrastructure manager.

Maximum penalty:



109—Identification and assessment of risks

A rail transport operator, rail infrastructure manager or road manager that is required under this Subdivision to identify and assess risks to safety that may arise from operations carried out by another person may do so—

(a) by itself identifying and assessing those risks; or

(b) by identifying and assessing those risks jointly with the other person; or

(c) by adopting the identification and assessment of those risks carried out by the other person.

110—Regulator may give directions

(1) This section applies if the Regulator is satisfied that a rail transport operator, rail infrastructure manager or road manager referred to in this Subdivision—

(a) is unreasonably refusing or failing to enter into an interface agreement with another person as required under this Subdivision; or

(b) is unreasonably delaying the negotiation of such an agreement.

(2) The Regulator may give a written notice to the rail transport operator, rail infrastructure manager or road manager (as the case requires) and the other person that—

(a) warns of the Regulator's powers under this section, including the power to issue a direction under subsection (3) at any time after a specified date; and

(b) includes a copy of this section; and

(c) may contain suggested terms for inclusion in an interface agreement.

37

(3) If the Regulator gives a notice under subsection (2) to a rail transport operator, rail infrastructure manager or road manager, the Regulator may, in writing, require the operator or manager to provide such information as the Regulator reasonably requires for the purposes of making a direction under this section.

(4) If a notice is given under subsection (2) and an interface agreement has not been entered into by or on the date specified in the notice, the Regulator—

(a) may determine the arrangements that are to apply in relation to the management of risks to safety referred to in section 106, 107 or 108 (as the case requires); and

(b) may direct any of the persons to whom the notice is issued to give effect to those arrangements; and

(c) must specify the time within which a direction is to be complied with.

(5) A direction under subsection (4)—

(a) must be in writing; and

(b) must set out any arrangements determined by the Regulator under that subsection.

(6) A person to whom a notice or direction is given under this section must comply with the notice or direction within the time specified in the notice or direction.

Maximum penalty:



111—Register of interface agreements

(1) A rail transport operator must maintain a register of—

(a) interface agreements to which it is a party; and

(b) arrangements determined by the Regulator under section 110,

that are applicable to the operator's railway operations.

Maximum penalty:



(2) A road manager must maintain a register of—

(a) interface agreements to which it is a party; and

(b) arrangements determined by the Regulator under section 110,

that are applicable to any road in relation to which it is the road manager.

Maximum penalty:



Subdivision 3—Other safety plans and programs

112—Security management plan

(1) A rail transport operator must have a security management plan for railway operations in respect of which the operator is required to be accredited that—

(a) incorporates measures to protect people from theft, assault, sabotage, terrorism and other criminal acts of other parties and from other harm; and

(b) complies with this Law and any requirements prescribed by the national regulations.

Maximum penalty:


38


(2) The rail transport operator must ensure—

(a) that the security management plan is implemented; and

(b) that appropriate response measures of the security management plan are implemented without delay if an incident of a kind referred to in subsection (1)(a) occurs.

Maximum penalty:



113—Emergency management plan

(1) A rail transport operator must have an emergency management plan that complies with subsection (2) for railway operations in respect of which the operator is required to be accredited.

Maximum penalty:



(2) The emergency management plan must—

(a) address and include the matters that are prescribed; and

(b) be prepared—

(i) so far as is reasonably practicable—in conjunction with any of the emergency services that would be expected to attend in the event of a significant incident involving the operator's railway operations and any other person who is prescribed; and

(ii) in accordance with the national regulations; and

(c) be kept and maintained in accordance with the national regulations; and

(d) be provided to the relevant emergency services and any other person who is prescribed; and

(e) be tested in accordance with the national regulations.

(3) A rail transport operator must ensure that the appropriate response measures of the emergency management plan are implemented if an emergency occurs.

Maximum penalty:



114—Health and fitness management program

A rail transport operator must prepare and implement a health and fitness program for rail safety workers who carry out rail safety work in relation to railway operations in respect of which the operator is required to be accredited that complies with the prescribed requirements relating to health and fitness programs.

Maximum penalty:



39

115—Drug and alcohol management program

A rail transport operator must prepare and implement a drug and alcohol management program for rail safety workers who carry out rail safety work in relation to railway operations in respect of which the operator is required to be accredited that complies with the prescribed requirements relating to drug and alcohol management programs.

Maximum penalty:



116—Fatigue risk management program

A rail transport operator must prepare and implement a program, in accordance with the prescribed requirements, for the management of fatigue of rail safety workers who carry out rail safety work in relation to railway operations in respect of which the operator is required to be accredited that complies with the prescribed requirements relating to fatigue risk management programs.

Maximum penalty:



Subdivision 4—Provisions relating to rail safety workers

117—Assessment of competence

(1) A rail transport operator must ensure that each rail safety worker who is to carry out rail safety work in relation to railway operations in respect of which the operator is required to be accredited has the competence to carry out that work.

Maximum penalty:



(2) For the purposes of subsection (1), the competence of a rail safety worker to carry out rail safety work—

(a) must be assessed—

(i) in accordance with the provisions of the AQTF and any qualification and units of competence recognised under the AQF applicable to that rail safety work; or

(ii) if subparagraph (i) does not apply—in accordance with any qualifications or competencies prescribed by the national regulations; and

(b) must be assessed by reference to the knowledge and skills of the worker that would enable the worker to carry out the rail safety work safely.

(3) A certificate purporting to have been issued under the AQF to a rail safety worker certifying that the worker has certain qualifications or units of competence is evidence that the worker has those qualifications or units of competence.

(4) Subsection (2) does not apply if—

(a) it is not reasonably practicable for a rail transport operator to assess the competence of a rail safety worker to carry out rail safety work in relation to the operator's rail infrastructure or rolling stock in accordance with that subsection; and

(b) the operator satisfies the Regulator that—

(i) the worker has otherwise acquired the necessary qualifications and competencies applicable to that rail safety work; and

(ii) the worker has the knowledge and skills that would enable the worker to carry out the rail safety work safely.

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(5) Nothing in this section prevents a rail transport operator from requiring a rail safety worker to undertake further training before carrying out rail safety work.

(6) A rail transport operator must maintain records in accordance with the national regulations of the competence of rail safety workers who carry out rail safety work on or in relation to the operator's rail infrastructure or rolling stock.

Maximum penalty:



118—Identification of rail safety workers

(1) A rail transport operator must ensure that each rail safety worker who is to carry out rail safety work in relation to the operator's railway operations has a form of identification that is sufficient to enable the type of competence and training of the worker for that rail safety work to be checked by a rail safety officer.

Maximum penalty:



(2) A rail safety worker who is carrying out rail safety work must, when requested by a rail safety officer to do so, produce the identification provided in accordance with subsection (1) to the officer.

Maximum penalty: $2 500.

Subdivision 5—Other persons to comply with safety management system

119—Other persons to comply with safety management system

A person, not being an employee employed to carry out railway operations, who undertakes railway operations on or in relation to rail infrastructure or rolling stock of a rail transport operator must comply with the safety management system of the rail transport operator to the extent that it applies to those railway operations.

Maximum penalty:



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