Under the Heavy Vehicle National Law (HVNL),
the only defence to a breach is if you took 'all reasonable
steps' to prevent the occurrence of the breach. Some of the
matters that a Court may take into account in weighing up whether
you have taken all reasonable steps include steps taken by you
manage, reduce or eliminate a potential contravention;
exercise supervision or control over others involved in the
include compliance assurance conditions in your arrangements
with others involved in the supply chain;
maintain work systems to enable compliance with the HVNL;
address and remedy past breaches.
Preparing and implementing a Chain of Responsibility
(CoR) compliance policy can help you satisfy the
above requirements. But, what should be included in your
There is no definition in the HVNL as to what must be included
in a CoR compliance policy. So, the level of detail and content
will fall within a range, depending on the position, operations,
exposure and needs of the particular business concerned.
Statement of intent
At the highest level, a compliance policy is essentially a
statement of intent or commitment to a particular standard of
behaviour. Many companies have these kinds of policies in relation
to, for example, equal opportunity employment, the handling of
customer complaints and flexible working arrangements. Typically,
they can be as short as a sentence or paragraph and contain a:
statement that compliance with the particular ideal is a core
value of the business concerned;
commitment to adhere to the standard imposed by that
desire that other parties involved with the business commit to
the same standard; and
contact point for any questions concerning compliance.
The HVNL requires more than this. The all reasonable steps
defence imposes an active standard on those in the CoR – to
take all reasonable steps. A statement of intent or
principle, without more, is unlikely to satisfy this active
requirement. Like an election promise with no underlying plan, it
rings a little hollow.
An operational level compliance policy will include the matters
discussed above, but also seek to put some meat on the bones as
how the statement of intent will be implemented in practice;
what will be done within the business and vis a vis
those that it deals with if compliance is not achieved.
Some businesses are reluctant to show their hand and include
such detail. They feel that this will give the authorities some
advantage in investigating them, by highlighting the areas of
conduct or performance that the authorities can zero in on to see
whether the policy has in fact been followed.
Again, the duty imposed under the HVNL is an active
one. It is not passive or merely reactive. Your compliance policy
can't live in the Cloud, only to be plucked out of the air
after the fact. It needs to reside on the ground alongside your
An active and visible compliance policy can also be an active
deterrent to prosecution. If an incident occurs and your business
is subject to investigation, the best way to avoid a prosecution is
to be able to demonstrate, by the production of relevant written
records, that your business has identified the reasonable steps
that it is required to take and has actually taken them. For this
to occur, your policy and records of its implementation and success
need to be set out in detail and in writing.
Comprehensive policy and procedure
At the most comprehensive end of the spectrum is a detailed
compliance policy and procedure document, which, in addition to the
above matters, includes:
specific details of what steps are required to be taken in all
reasonably anticipated circumstances in order to achieve
specific detail as to how compliance with the mandated steps
will be monitored and measured; and
specific sanctions or remedial action that will be imposed or
taken in the event of non-compliance.
Such combined policy and procedures manuals leave nothing to
chance, providing express and detailed guidance to individuals as
to what is required in any likely situation.
Whatever the level of CoR compliance policy implemented by your
organisation, it is essential that implementation is checked and
recorded, to prove that the policy is more than just a promise on a
piece of paper.
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
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This decision will be significant to aviation industry participants in assessing whether claimants in the context of international or domestic carriage by air have commenced claims in an appropriate forum in Australia.
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