Shared responsibility: The new heart of CoR law

Perhaps one of the main failings of the current Chain of Responsibility (CoR) laws is a lack of coherence, which prevents them being readily understood by many participants. The new amendments will remedy this shortcoming in a number of respects: we examine the details.

As a first world nation, Australia is particularly reliant on long-distance heavy-vehicle transport. We fall between states like Singapore (which is too small to rely on heavy vehicle transport) and Europe or the United States, which have highly developed freight rail networks and also, in the case of Europe, well-developed freight networks over inland waterways.

Australia's long distances and sparse population, however, favour the use of heavy vehicles. So it makes sense that we are pioneering a regulatory regime that encourages heavy vehicle transport while facilitating the sharing of road infrastructure.

Understanding 'safety duties'

In hindsight, the current CoR laws were perhaps overdue for an overhaul. Among the new concepts arriving in 'CoR 2.0' are 'safety duties'. The first of these duties is the principle of shared responsibility; s 26A of the Heavy Vehicle National Law and Other Legislation Amendment Bill 2016 states:

"The safety of transport activities relating to a heavy vehicle is the shared responsibility of each party in the chain of responsibility for the vehicle."

It is helpful to have such an overarching statement of the intent and philosophy of the new legislation. The Bill goes on to state:

"The level and nature of a party's responsibility for a transport activity depends on –
  1. the functions the person performs or is required to perform, whether exclusively or occasionally, rather than –
    1. the person's job title; or
    2. the person's functions described in written contract; and
  1. the nature of the public risk created by the carrying out of the transport activity; and
  2. the party's capacity to control, eliminate or minimise the risk."

'Transport activities' is another new concept. It is defined to mean:

"activities, including business practices and making decisions, associated with the use of a heavy vehicle on a road, including, for example –
  1. contracting, directing or employing a person –
    1. to drive the vehicle; or
    2. to carry out another activity associated with the use of the vehicle (such as maintaining or repairing the vehicle); or
  1. consigning goods for transport using the vehicle; or
  2. scheduling the transport of goods or passengers using the vehicle; or
  3. packing goods for transport using the vehicle; or
  4. managing the loading of goods onto or unloading of goods from the vehicle; or
  5. loading goods onto or unloading goods from the vehicle; or
  6. receiving goods unloaded from the vehicle."

These are broad and all-encompassing statements of principle that get to the very heart of the business of heavy vehicle road transport. In elevating substance over form, these amendments recognise that it is what people actually do, rather than their job description, that matters.

Duties are non-delegable

Section 26B(4) also contains the express statement that "a duty under this Law may not be transferred to another person". Such a clear statement of the intent of the legislation is overdue.

This has been an issue of some confusion under the current law, with some parties in the chain trying to shift responsibility for compliance to other parties, and even to seek indemnity in the event of breach. As we have written previously, this displays a dangerous misunderstanding of the nature of CoR responsibilities.

The new s 26B(4) makes it clear beyond doubt that CoR obligations are non-delegable, which should result in better cooperation between parties in the chain. With the new principle of shared responsibility, parties should recognise the need to work together to secure compliance.

This should not have the effect of increasing the burden on any particular party in the chain – in fact, it should have the opposite effect. It should allow those carriers that feel they bear the brunt of compliance to push back on their customers and highlight, by pointing to the legislation, that CoR compliance is a shared responsibility that cannot be transferred to another party.

This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.