Publications / Food and Agribusiness
New National Heavy Vehicle laws have the potential to affect those involved in the Food and Agribusiness industry. New penalties will be imposed for non compliance, and liability will cover a broader range of people than ever before.
In 2009 COAG recognised a need to harmonise heavy vehicle regulation across Australia bringing improvements to productivity, efficiency and safety in heavy vehicle regulation. COAG determined that a National Heavy Vehicle Regulator (NHVR) and related legislation should be created to achieve these goals. In 2012, Queensland took the first steps in this process, passing the Heavy Vehicle National Law Act 2012 (Qld) (Act) (see McCullough Robertson’s reports on this progression in updates on 8 August 2012 and 29 August 2012).
In New South Wales, preparations to adopt the HVNL have commenced, with bills being introduced to amalgamate existing road transport legislation and pave the way for the implementation of the HVNL. There is currently no indication as to whether the New South Wales counterpart of the HVNL will differ from the HVNL as it has been introduced in Queensland.
Early in 2013, the NHVR head office commenced operations in Brisbane and final substantive amendments to the Act were passed. The NHVR is currently providing services to transport operators and associations (generally) relating to the National Heavy Vehicle Accreditation Scheme and the Performance-Based Standards Scheme around Australia (with the exception of the Accreditation Scheme in Western Australia). Eventually, the NHVR will be a ‘one-stop-shop’ for matters under the Act and have close to nationwide coverage with the remaining States and territories (except for Western Australia) expected to implement mirror laws in coming months.
The Act applies to all road vehicles weighing more than 4.5 tonnes, and will affect many businesses and individuals in the chain of transportation. The Act imposes obligations relating to vehicle mass, dimension and loading, standards and safety, speed and fatigue, among other areas with its objects being to:
- promote public safety;
- manage the impact of heavy vehicles on the environment, road infrastructure and public amenity;
- promote industry productivity and efficiency in the road transport of goods and passengers by heavy vehicles; and
- encourage and promote productive, efficient, innovative and safe business practices.
The Act applies to a broad section of persons and businesses, including employers, prime contractors, operators, drivers, schedulers, loading managers, consignors and consignees, packers and loaders and unloaders, as well as the drivers themselves. The obligations imposed on those persons by the Act span across the various steps in the chain of transportation.
For example, in the supply chain of cotton, numerous, complex responsibilities may be found:
- the producer of cotton who engages an operator to transport cotton may be a ‘consignor’ under the Act. As a consignor this person will have obligations to take all reasonable steps to ensure that the terms of the consignment do not cause the driver to speed, and do not cause a relevant party (such as a driver’s employer, prime contractor or operator) to cause the driver to speed. The consignor may also have responsibilities for other obligations under the NHVL e.g. to the extent that it has the ability to influence loading and may not have ensured the load complied with the necessary requirements;
- a cotton baler, who receives the cotton, but is also required to send it further down the supply chain may find it has ‘loading manager’ obligations under the Act to ensure the loading of the product does not breach any of the obligations under the Act. As a loading manager the person will similarly have obligations relating to speed – to take all reasonable steps to ensure the arrangements for loading and unloading goods will not cause a driver to speed (in addition to obligations for mass and dimensions etc.); and
- the driver of the vehicle responsible for transporting the cotton bales will also have certain obligations in relation to speed and load. For example, the driver must not drive a heavy vehicle on a road where there is non-compliance with the mass, dimension or loading requirements. If a driver is found to be operating a vehicle in breach of the obligations they may have liability under the Act unless the driver can establish that the driver took reasonable steps to meet their obligations or is able to establish another defence.
Where a vehicle is found to be operating in breach of the obligations, charges for that breach can be brought against other parties in the chain of transport e.g. consignors (to the extent that they had influence over the relevant conduct). The liability will not necessarily be confined to the driver. Similarly, drivers caught speeding may be held liable, along with their employer, prime contractor etc. (unless those persons can establish reasonable steps were taken to meet their obligations or prove another available defence). Additional offences exist if a party in the transport chain induces the breach e.g. speeding, via the requirements they make of others.
These are examples of just three of many obligations that may apply within one supply chain and highlight the importance of understanding the new legislation and how your obligations are required to be managed.
In the short history of this Act, McCullough Robertson has been active in advising its food and agribusiness clients on ways to best manage their liabilities under the Act and the operation of the Regulator. McCullough Robertson will continue to monitor the progression of this Act and the NHVR and will keep you updated about what it means for your business as further developments occur.