Publications / Work Health and Safety
Further to the introduction of the Heavy Vehicle National Law Act 2012 (Act) as reported on by McCullough Robertson on 8 August 2012 and 29 August 2012 the Heavy Vehicle National Law Amendment Bill 2012 (Bill) has been introduced into parliament to resolve policy and technical matters that remained unresolved at the time the principle Act was passed.
The introduction of the Bill was foreshadowed by the Project Office of the National Heavy Vehicle Regulator (NHVR) with the intention that, on its passing, it would complete the Act. The Bill contains 12 amending provisions. However, the structure of the amending provisions mean significant renumbering of the current Act is required. Due to the proposed significant renumbering of provisions of the Act the Bill, if passed, will replace the Act in its entirety. A link to the Bill can be found here
While the Bill is said to provide generally for policy and technical matters, there are some other significant matters that have been further defined or introduced. These matters include the:
- clarification of the definition of Executive Officer to expressly include directors of corporations
- amendment to the deeming provisions under the Act (currently deeming executive officers liable for offences committed by a corporation) to require Executive Officers to ‘actively authorise or permit the offence or be reckless as to the possible commission of the offence’ (see Explanatory Notes to the Bill), if they are to be found personally liable for the offence
- addition of Schedule 4 which lists all offences that an executive officer may be found liable for under the liability of executive officer provision (proposed s636 of the Bill). The Explanatory Notes to the Bill also replicate this list and provide an explanation as to why each section has been determined not exempt from liability. This provides a very clear outline of the legislature’s intention underlying these provisions
- abrogation of the privilege against self incrimination. This would mean that a person cannot refuse to comply with a requirement made by an authorised officer under the Act because compliance might incriminate the person or expose the person to penalties under the Act. However, the Bill also provides that information provided in compliance with a requirement made by an authorised officer will not be admissible against the person in criminal proceedings. This is similar to the position that exists under the harmonised work health and safety laws
- exclusion of the mistake of fact defence and clarification as to whether the reasonable steps defence may apply. Notably the mistake of fact defence is excluded from the offence provisions for employers, prime contractors, operators, schedulers, consignors, consignees and loading managers about requirements made by them that result in a driver driving while fatigued and no provision is made for those persons to raise reasonable steps defences to the alleged offence
- amendment to the penalties imposed for breaches of the Act. The penalties currently applying under the Act are consistent with Queensland’s regulatory system. Further consultation has taken place on a national basis and the penalties proposed under the Bill represent nationally agreed penalties (penalties taking views from each jurisdiction into consideration). These penalties are intended to be further reviewed in 2014
- insertion of a new part about the requirements for the commissioner’s consent for mass or dimension exemptions
- removal of sections of the Act about recording information with the intention that they be moved to national fatigue regulations
- clarification that the definition of heavy vehicle is to apply to vehicles with a GVM or ATM of more than 4.5 tonnes
- introduction of provisions about Performance Based Standards (PBS) vehicles and their operation on roads that are authorised to be used by PBS vehicles that meet or exceed those standards
- clarification of registration provisions (noting that the registration requirements are not intended to commence operation until a later time)
- amendment of the definition of ‘cause of fatigue’, ‘impaired by fatigue’ (this has been widened – the provision in the Act refers to a person impaired to the extent that they are ‘incapable of driving…’ and is now proposed to refer to the affect on a person’s ability to safely drive a fatigue regulated vehicle), and
- amendments to authorised officer powers e.g. clarifying the power of an authorised officer to inspect, examine and film any part of a heavy vehicle’s equipment.
In further updates it has also been confirmed that the NHVR will open its doors in Brisbane on 21 January 2013. Additionally, the NHVR Board members have been appointed by the Minister for Transport and Main Roads and the Board has confirmed that Project Director Richard Hancock has been appointed as the NHVR CEO. It is anticipated that by July 2013 the NHVR will be responsible for administering the Act and regulating all vehicles over 4.5 tonnes across Australia.
McCullough Robertson will continue to provide updates as further developments in national heavy vehicle regulation occur.
Focus covers legal and technical issues in a general way. It is not designed to express opinions on specific cases. Focus is intended for information purposes only and should not be regarded as legal advice. Further advice should be obtained before taking action on any issue dealt with in this publication.