the future of cor and cor reform - marcus burke - national transport commission
TRANSCRIPT
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: [email protected]
Questions?
Thank you
For the latest NTC news and project
updates, register to receive our
e-newsletter and alerts at
www.ntc.gov.au
Like what you see?Be part of our conversation.
informa.com.au
Join our e-newsletter