Who is in the chain
Section 5 of the HVNL defines "party in the chain of responsibility, for a heavy vehicle" as each of the following: "(a) if the vehicle’s driver is an employed driver, an employer of the driver; (b) if the vehicle’s driver is a self-employed driver, a prime contractor for the driver; (c) an operator of the vehicle; (d) a scheduler for the vehicle; (e) a consignor of any goods in the vehicle; (f) a consignee of any goods in the vehicle; (g) a packer of any goods in the vehicle; (h) a loading manager for any goods in the vehicle; (i) a loader of any goods in the vehicle; (j) an unloader of any goods in the vehicle."
A business is often several of these at once: a manufacturer that packs and loads its own product and books the truck is a consignor, a packer, a loader and possibly a scheduler. A heavy vehicle, under section 6, is one "with a GVM or ATM of more than 4.5t", or a combination that includes one, so the chain reaches well below semi-trailers. The NHVR’s own summary: "Everyone who works with heavy vehicles, from the business that employs a driver or owns a vehicle, to the business that sends or receives goods, is accountable for the safety of the heavy vehicle, its driver, and its load throughout the journey."
The primary duty (section 26C)
"(1) Each party in the chain of responsibility for a heavy vehicle must ensure, so far as is reasonably practicable, the safety of the party’s transport activities relating to the vehicle. (2) Without limiting subsection (1), each party must, so far as is reasonably practicable: (a) eliminate public risks and, to the extent it is not reasonably practicable to eliminate public risks, minimise the public risks; and (b) ensure the party’s conduct does not directly or indirectly cause or encourage (i) the driver of the heavy vehicle to contravene this Law; or (ii) the driver of the heavy vehicle to exceed a speed limit applying to the driver; or (iii) another person, including another party in the chain of responsibility, to contravene this Law."
Subsection (3) says what "conduct" includes: "the party asking, directing or requiring another person to do, or not do, something" and "the party entering into a contract" that requires it or "that purports to annul, exclude, restrict or otherwise change the effect of this Law". A delivery window that can only be met by speeding, or a contract clause pushing all responsibility onto the carrier, is conduct under 26C.
The duty is modelled on work health and safety law: it is a duty to manage risk "so far as is reasonably practicable", judged on what the party knew or ought to have known and what it could reasonably have done. It is not a duty to guarantee outcomes, and it is not satisfied by a policy nobody follows. The risks it covers are the ones the HVNL regulates: speed, fatigue and work and rest hours, mass, dimension and loading, and vehicle standards.
Executive due diligence (section 26D)
Where a legal entity has a safety duty, "an executive of the legal entity must exercise due diligence to ensure the legal entity complies with the safety duty", and "the executive may be convicted of an offence ... even if the legal entity has not been proceeded against". Due diligence "includes taking reasonable steps (a) to acquire, and keep up to date, knowledge about the safe conduct of transport activities; and (b) to gain an understanding of the nature of the legal entity’s transport activities and the hazards and risks, including the public risk, associated with those activities; and (c) to ensure the legal entity has, and uses, appropriate resources to eliminate or minimise those hazards and risks; and (d) to ensure the legal entity has, and implements, processes to eliminate or minimise those hazards and risks, for receiving, considering, and responding in a timely way to information about those hazards and risks and any incidents, and for complying with the legal entity’s safety duties; and (e) to verify the resources and processes ... are being provided, used and implemented." Volunteer executives are excluded. The maximum penalty for an executive is the penalty for an individual under the relevant offence category.
Prohibited requests and contracts (section 26E)
"A person must not ask, direct or require (directly or indirectly) the driver of a heavy vehicle or a party in the chain of responsibility to do or not do something the person knows, or ought reasonably to know, would have the effect of causing the driver (a) to exceed a speed limit applying to the driver; or (b) to drive a heavy vehicle while impaired by fatigue or unfit to drive; or (c) to drive a fatigue-regulated heavy vehicle while in breach of the driver’s work and rest hours option; or (d) to drive a heavy vehicle in breach of another law in order to avoid driving while impaired by fatigue or unfit to drive or while in breach of the driver’s work and rest hours". This is the section that catches the customer who says "be here by six or lose the contract". The driver’s side of the same rules, and the work diary that records them, are on their own pages.
The three offence categories
| Section | Offence | Maximum penalty, individual | Maximum penalty, corporation |
|---|---|---|---|
| 26F, Category 1 | Breach of the primary duty by conduct that "exposes an individual to a risk of death or serious injury or illness" where the person "is reckless as to the risk", without reasonable excuse | $300,000 or 5 years imprisonment or both | $3,000,000 |
| 26G, Category 2 | A contravention of the duty that "exposes an individual, or class of individuals, to a risk of death or serious injury or illness" | $150,000 | $1,500,000 |
| 26H, Category 3 | A contravention of the duty | $50,000 | $500,000 |
For Category 1 "the prosecution bears the burden of proving that the conduct was engaged in without reasonable excuse". Section 26I allows a court that is not satisfied of the higher category to convict of a lower one. Note that no crash is needed: exposure to risk is the offence.
What "reasonably practicable" looks like in a business
- Consignors and schedulers: delivery windows that can be met inside the work and rest hours at legal speeds; no penalties for lateness caused by rest breaks; load weights declared accurately.
- Packers and loaders: loads restrained to the Load Restraint Guide, mass within the limits on the mass limits page, container weight declarations correct.
- Operators and employers: fatigue management, vehicle maintenance, driver licensing and training checked, a way for drivers to report problems without penalty.
- Executives: the five due-diligence steps above, documented: knowledge, understanding, resources, processes, verification.
- Consignees and unloaders: unloading arrangements that do not keep drivers waiting past their hours, and no demand that a driver arrive outside them.
The NHVR registers industry codes of practice, including a Master Code, which a party can use as evidence of what was reasonably practicable; following a registered code is not a defence in itself but is the accepted starting point.
Western Australia and the Northern Territory
The HVNL applies in New South Wales, Queensland, Victoria, South Australia, Tasmania and the ACT. Western Australia and the Northern Territory have not adopted it; each has its own heavy vehicle law with its own chain of responsibility provisions. A business whose freight crosses into WA is under the HVNL for the eastern leg and WA law for the western one.
Common mistakes
- Believing CoR is the carrier’s problem. The consignor and consignee are named parties.
- Contract clauses that shift liability. Section 26C(3)(b) makes such a clause itself conduct under the duty.
- A policy without verification. Section 26D(3)(e) requires executives to verify processes are used.
- Treating a clean crash record as compliance. The offences are about exposure to risk.