Implementation of Chain of Responsibility (CoR) Legislation in Western Australia

1. Implementation of Chain of Responsibility (CoR) Legislation in Western Australia Paul BondManager, Heavy Vehicle Transport ComplianceMain Roads WA, Heavy Vehicle Operations

2. Legislation

3. Chain of Responsibility – What is it? CoR legislation extends the legal liability for breaches of transport law to all parties throughout the transport chain.

4. Chain of Responsibility – Why? CoR legislation aim is to encourage parties in the transport chain to promote compliance through positive actions to avoid breaches of transport law from occurring i.e being proactive instead of reactive.

5. Chain of Responsibility – What does (CoR) mean? If you use road transport as part of your business, you share the responsibility of preventing breaches under new CoR legislation. This means anyone who has control in the transport chain (including the operator and manager) can be held legally accountable if, by their actions, inactions or demands, they cause or contribute to road safety breaches.

6. Chain of Responsibility – What are the key components? • Legal accountability throughout the transport chain • Risk categorisation of breaches • Expanded enforcement powers • Increased legal defences • Clarification and broadening of general liability • Introduction of Container Weight Declarations • Wider sanctions

7. Chain of Responsibility – Breach category break points • Increase in the break point limits for breaches e.gWidth Breaches

8. Chain of Responsibility – What vehicle types does this reform cover? • In WA CoR laws will apply to all vehicle types, (including light vehicles <4.5 tonne).

9. Chain of Responsibility – What type of offences does it cover? In WA CoR laws WILL ONLY extend to vehicle mass, dimension & load restraint breaches. • Not under CoR but don’t forget …….. • Fatigue (Worksafe) • Speeding • Drugs & Alcohol & Health

10. Chain of Responsibility – Who has adopted the legislation? • All Australian jurisdictions have adopted the CoR Legislation. • CoR legislation has been included in the National Heavy Vehicle Law that will be administered by the National Heavy Vehicle Regulator. • All jurisdictions except WA and NT have agreed to adopt the NHVL within their own jurisdictions. **WA Government has stated that it will not sign up to the national scheme unless there are clear benefits for WA**

11. Chain of Responsibility – Has WA made changes to the national model law? Yes, consultation was conducted with WA industry in 2009/2010 and changes were made to the model CoR law to better reflect the unique transport issues faced by WA.

12. Chain of Responsibility – Has CoR law commenced in WA? • No • The CoR law is scheduled for commencement in September/October 2014 • This period will enable affected parties to become familiar with the new CoR requirements and provide time to modify business practices (if required)

13. Chain of Responsibility – Where can I find the CoR legislation? • Road Traffic (Administration) Act 2008 http://www.slp.wa.gov.au/legislation/statutes.nsf/main_mrtitle_4471_homepage.html • Road Traffic (Vehicles) Act 2012 http://www.slp.wa.gov.au/legislation/statutes.nsf/main_mrtitle_12926_homepage.html

14. Areas of Specific Coverage

15. Chain of Responsibility – Who is included in the Chain? If you are involved in any of the following road transport activities, you are a party in the ‘Chain of Responsibility’ and may be deemed liable in the event of a breach of the road laws: Consigning: a person or company commissioning the carrying of goods; Packing: placing goods in packages, containers or pallets; Loading: placing or restraining the load of the vehicle; Driving: the physical act of driving a vehicle; Operating: operating a business which controls the use of a vehicle; Receiving: paying for the goods / taking possession of the load.

16. Chain of Responsibility – Also extends to… Partners in a managed partnership Employers Any person who threatens, intimidates, coerces, induces or offers an incentive to another person to commit an offence Director(s) of a body corporate Unincorporated associations

17. Chain of Responsibility – Who influences the Chain?

18. Chain of Responsibility – What influences vehicle compliance? Scheduling Customer demands Loading practices Competitive pressure Vehicle capability Travel delays Staff demands

19. Compliance and Enforcement

20. Chain of Responsibility – Objectives / Strategy Continuation of current Compliance and Enforcement practices • Encouraging industry and community to voluntarily comply • Educate rather than prosecute • Focus on key safety and infrastructure protection messages • Intelligence-driven targeted enforcement

21. Chain of Responsibility – Enforcement Main Roads are the key enforcement agency via: • Transport Inspectors; • Intelligence Unit; • Dedicated Investigators. WA Police will also have the authority to enforce CoR.

22. Chain of Responsibility – What may prompt an investigation? • Number (and type) of offences detected over a defined period of time • Fatal or serious crashes • Complaints • Informants • Intelligence

23. Chain of Responsibility – Compliance approach

24. Chain of Responsibility – What will change from an enforcement perspective? Transport Inspectors will continue to undertake their daily core businessand on-road compliance activities. (CoR) will permit investigators and authorised officers to undertake further investigations to detect a breach of the road law. Traditionally only the driver or company are held responsible. (CoR) provides the legislative authority to investigate other persons who may have contributed to a breach of the road law. IF YOU ARE DOING THE RIGHT THING NOW THEN NOTHING WILL CHANGE FOR YOU

25. Chain of Responsibility – Sharing the responsibility? • Traditionally drivers and operators have been the target of enforcement activities. • Others in the transport chain also have a responsibility: • to ensure transport law is complied with; and • not put undue pressure on drivers to break the law. • To promote a ‘level playing field’ for industry.

26. Chain of Responsibility – What you need to do? Whichever activity you perform in the ‘chain’, it is important that you take reasonable steps to manage the risk and ensure road safety is not compromised. There are no limits to the ways in which you can do this. What constitutes reasonable steps will vary according to each individual’s circumstances.

27. Chain of Responsibility – What is ‘reasonable steps’ defence? Must Prove: • Did not know of the breach, and • Could not be reasonably expected to have known, and • Took all reasonable steps to prevent the breach

28. Chain of Responsibility – How do you take ‘reasonable steps’? Taking reasonable steps means you must: • regularly identify and assess the risks associated with your activities; and • manage those risks. You can manage those risks by: • doing all you can to eliminate the risk; or • if you can’t - do everything you can to reduce or minimise the likelihood of the risk occurring. Doing nothing is not an option

29. Chain of Responsibility – What is ‘reasonable’? Things to consider: • Nature of transport task • Expertise / experience / training • Risk management approaches • Policies • Procedures • Monitoring / auditing

30. Chain of Responsibility – How do you take ‘reasonable steps’? Taking reasonable steps could include: • reviewing business practices, • changing commercial arrangements, • adopting a risk management approach, • appropriate training policies, • appropriate supervision, • ensuring responsibilities are known

31. Chain of Responsibility – Questions for you to consider? • Have you taken all reasonable steps to comply with the CoR legislation? • Are you loading your vehicles correctly? • Are you satisfied that your contractors are able to take the loads they say they can, legally?

32. Actions and Consequences

33. Chain of Responsibility – Action/Inaction • Under CoR/C&E legislation:- In-Action is as culpable as Action ! • Therefore doing nothing is not an option

34. Chain of Responsibility – Consequences • Failure to comply can result in: • Prosecution • Corporate Fines • Personal Fines • No one in the chain is exempt from fines!

35. Chain of Responsibility – Penalties? Systematic or persistent offender • Commercial Benefits Penalty orders • Licensing and Registration Sanctions • Driver Licence • Registration • Supervisory Intervention Orders – • (e.g. despatches/planners) • Prohibition Orders

36. Chain of Responsibility – Penalties? • 1- RSA 1910 100 penalty Units x33 = $386,100 • 2 -RSA 1910 250 penalty Units x12 = $351,000 • 3- RSA 1910 500 penalty Units x7 = $409,500 • 4- RSA 1910 100 penalty Units x 2 = 23,400 • 5 -RSA 1910 50 penalty Units x 2 = $11,500 • 6 -RSA 1910 500 penalty Units x3 = $175,500 • 7 -RSA 1910 500 penalty Units x7 = $409,500 • 8 -RSA 191ZB 500 penalty Units x19 = $1,111,500 • Total 85 Charges • Total maximum for all offences = $2,787,500

37. Chain of Responsibility – Actions • Companies/Employers need to have a system for their own compliance • Companies/Employers need a system to ensure provider complies • Know where you are and where you should be – Gap Analysis • System must be auditable and preferably certifiable • Do not be fooled by false compliance

38. Case Studies

39. Chain of Responsibility – Case Studies Potato Harvest • Daily overloads • 5% to 15% over • Cubic line marked on truck • Mass per cubic metre variable • Water content • Variety • Potato size

40. Chain of Responsibility – Case Studies GrainCorp • Multiple Mass loading breaches • Paid carrier for excess grain • $18.23m fines • Based on NSW RTA points system • Escape on Supreme Court ruling on technicality • NSW RTA strengthened laws • GrainCorp CEO immediate resignation

41. Chain of Responsibility – Summary • Know & comply with the law – ignorance is no excuse • Identify, assess and manage risks • Liability for both in-actions / actions • Documented, Auditable process Influence = Control = Accountability = Liability

42. Chain of Responsibility – Need more information? • Industry associations • Legal practitioner (transport law) • Consultancies specialising in CoR • Transport South Australia Youtube video • Main Roads website - www.mainroads.wa.gov.au • Dedicated phone support via our HVO Help Desk 138 HVO (486)

43. Chain of Responsibility – Acknowledgement Main Roads would like to acknowledge the contribution of Mike Wood from Latus Pty Ltd in allowing us to use their material that assisted in the development of this presentation.

44. Questions?