The Future of Chain of

Responsibility & CoR Reform

Chain of Responsibility & Heavy Vehicle Safety Conference

Marcus Burke, Project Director, Heavy Vehicle Compliance

and Technology

National Transport Commission

2 December 2015

National Transport Commission (NTC)

The NTC is an independent statutory body.

“To champion and facilitate changes that improve

productivity, safety and environmental outcomes.”

“To develop national regulatory and operational reform

and implementation strategies for road, rail and

intermodal transport.”

http://www.ntc.gov.au/

Introduction

Chain of Responsibility (CoR)

1. Background and current state

2. NTC Chain of Responsibility Duties Review

Recommendations

3. Next steps

4. Opportunities for the future

Background

CoR is fundamentally about safety:

safety of drivers, safety of the community

Ensuring those that influence on-road safety are doing so

positively and can be held appropriately accountable when

they don’t.

The key questions for the CoR review:

• Is the law effective?

• Is the current law clear?

• Does it focus on safety outcomes?

Background

Extensive consultation process:

• September 2012 – Industry letter to Australian transport ministers

• Late 2012 – Taskforce established

• July 2013 – NTC releases CoR Issues Paper

• February 2014 – NTC Assessment of Options Paper released

• June 2014 – Taskforce report

• November 2014 – NTC releases Duties Review Discussion Paper

• May 2015 – Ministers give in-principle support for primary duties

approach

• November 2015 Ministers endorse final recommendations

• May 2016 Draft Bill to be presented to Ministers

What is the problem?

Stakeholders have identified a number of key issues

with the current CoR regime:

• Inconsistencies between the Heavy Vehicle National

Law (HVNL) and other national safety laws

• Inconsistencies of obligations within the HVNL

• Legislation too prescriptive and complex

• Cost and burden to industry of complying

• Reliance on individual offences and incidents to

prosecute

• Concerns around burden of proof

• Safety

Policy Paper

• Sets out 26

recommendations

implementing a

primary duties

approach

• All recommendations

endorsed by Transport

and Infrastructure

Ministers.

Chain of Responsibility Primary Duties

How do make certain that all parties in the supply chain

are ensuring the safety of road transport? Including:

- Speed

- Fatigue

- Mass, Dimension and Loading

- Vehicle Standards and Maintenance

Chain of Responsibility Primary Duties

Recommendation 1

That the HVNL be amended by reformulating the

existing prescriptive HVNL obligations on current chain

of responsibility parties so that each party in the chain

of responsibility has a primary duty of care to ensure, so

far as is reasonably practicable, the safety of road

transport operations, consistent with the objects of the HVNL.

CoR Primary Duties (cont)

Recommendation 1

That the Primary Duty of Care applies to

- all current chain of responsibility parties

-based on the role they perform within the chain,

- limited to the existing regulatory framework of the

HVNL, and to the extent such persons:

• manage or control road transport operations,

and/or

• engage in conduct that will result in, encourage or

otherwise provide incentives in relation to the

conduct of road transport operations

CoR Primary Duties (cont)

Recommendation 1

That, to the extent possible, the Primary Duty of Care

replaces the existing chain of responsibility obligations

of all current chain of responsibility parties

Example - Scheduler

That each scheduler has:

a) a Primary Duty of Care to ensure, so far as is

reasonably practicable, the safety of road transport

operations, and

b) without limiting (a), and so far as is reasonably

practicable, the Primary Duty of Care for schedulers

requires such persons to ensure that the scheduling of:

- the transport of goods and/or passengers is such that

it will not result in, encourage or provide incentive to

breach speed requirements by the driver; and

- driver’s work and rest times are such that they will not

result in, encourage or provide incentive to breach

fatigue requirements by the driver.

Primary Duties – Key points

• Safety focus – outcomes focus

• Restructure and replace existing chain of

responsibility obligations

Primary Duties – Key Questions

To whom should these duties apply?

What standard of care should apply?

What should the penalties be for breaches?

How should these duties apply to executive officers?

To whom does the duty apply?

No change to parties covered:

• Operators, prime contractors and employers

• Schedulers

• Consignors

• Consignees

• Loading Managers

• Loaders

• Unloaders

• Packers

What is the standard of care?

Currently ‘all reasonable steps’

Ministers agreed to change from ‘all reasonable steps’ to ‘so

far as reasonably practicable’

Will apply throughout the Heavy Vehicle National Law.

What is the standard of care?

reasonably practicable, includes —

(a) likelihood of the hazard or the risk concerned occurring

(b) degree of harm that might result from the hazard or the risk

(c) what the person concerned knows, or ought reasonably to know,

about —

(i) the hazard or risk;

(ii) ways of eliminating or minimising the risk;

(d) the availability and suitability of ways to eliminate or minimise the

risk;

(e) after assessing the extent of the risk and the available ways of

eliminating or minimising the risk — the cost associated with available

ways of eliminating or minimising the risk (including whether the cost is

grossly disproportionate to the risk)

Penalties and principles

• Align penalties with other national safety laws

• Principles for application of the duties

• Removal of reverse onus of proof on chain of

responsibility parties

Other Elements

• Investigative powers – changes to align with WHS

legislation

• Clarify status of codes of practice

Heavy Vehicle Roadworthiness Review

• Primary duty on operators, prime contractors and

employers should include maintenance and vehicle

standards

• Introduction of enforceable undertakings

How do duties apply to executive

officers?

• Currently a range of offences apply to executive

officers with a reverse onus of proof

• Due diligence obligation on executive officers to

ensure that their organisations meet primary duties

• Removes reverse onus of proof.

Implementation

Substantial implementation period required in order to

ensure:

• Guidance material

• Communication

• Training for authorised officers

Benefits of change

• Clarify and simplify existing CoR obligations

• Assist CoR parties and regulators to better

understand and apply the law

• Simplify enforcement

• Better align with Australia’s national safety laws

• Reduce red tape and compliance cost

What does it mean for operators?

• For those already doing the right thing there shouldn’t

be major changes

• Opportunity to better align your systems and processes

for WHS and the HVNL

• Move from a compliance focus to a risk management

focus

• Greater flexibility

Next steps

• Ministers agreed all recommendations at their

November meeting

• A draft Bill to amend the HVNL will be prepared for

ministers’ consideration in May 2016

• If agreed, bill will go to Queensland parliament.

Further work

• NTC to develop Regulatory Impact Statement to on

extending the due diligence obligation from the

primary duties to the entire HVNL.

• Proposed future project to review investigative and

enforcement powers.

Opportunities for the future

Opportunities in:

• Education and awareness

• Compliance and Enforcement

• Technology

How do we ensure that all parties in the chain of

responsibility are positively influencing safety?

Opportunities for the future

Education and awareness

• Role for governments and for industry

• Need for further guidance material

• Only industry truly know how to apply the laws to

their particular business and operations

• Conversations are important

How do we ensure that all parties in the chain are

aware of their obligations?

Opportunities for the future

Compliance and Enforcement

• National regulator can better target national (cross-

border) issues

• Improved consistency of resources and skills across

states.

• Full use of the all compliance and enforcement tools

currently in the law.

Opportunities for the future

Technology

• Technology can increase transparency

• Enable all parties to better manage their risks

Opportunities for the future

Question

How can government and industry work together to

further improve safety in the road transport sector?

How do we ensure that all parties in the chain of

responsibility understand their responsibilities and are

positively influencing safety?

Summary

Primary safety duty on all chain of responsibility parties

to ensure the safety of road transport operations.

- standard of care

- penalties

- executive officers

Aim is to reduce the number of heavy vehicle crashes

on our roads.

Summary

Please read recommendations and sign up for further

information on reforms

http://www.ntc.gov.au

Further information

Marcus Burke

Project Director – Heavy Vehicle Compliance & Technology

Email: mburke@ntc.gov.au

Questions?

Thank you

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