It is a defence to many offences under the Heavy Vehicle National Law (HVNL) if you have taken 'all reasonable steps' to prevent the offence. Here, we discuss how you can comply with this requirement.
One factor that a Court will consider when deciding whether you have taken all reasonable steps will be those measures taken by you to exercise supervision or control over others involved in the activities leading to the offence, including your customers, contractors and agents, i.e. your business partners.
The rationale behind this requirement is that all parties in the CoR share a joint duty to comply with the HVNL, and that a breach by one may be considered a breach by all.
CoR compliance – your supervision and control of others
There is no fixed or absolute rule on the level and scope of supervision and control that will satisfy this requirement. This is because what is reasonable for any business or dealing will depend on the circumstances.
At one end of the spectrum, you could exercise supervision and control over the relevant CoR business practices of your partners by installing your own CoR compliance officer in the office of each of your business partners and requiring their final approval and sign-off on all CoR-related decisions and operations. At the other end of the spectrum, you could simply mention in passing to your business partners that you expect them to comply with CoR laws.
What is 'reasonable' and what satisfies the HVNL will fall somewhere in between these two ends of the spectrum. The HVNL does provide some guidance as to what matters might help to establish that you have exercised reasonable supervision and control over others, including the steps taken by you to:
- include compliance assurance conditions in relevant commercial arrangements with your business partners;
- provide information, instruction, training and supervision to employees to enable compliance with the HVNL;
- maintain equipment and work systems to enable compliance with the HVNL; and
- address and remedy similar compliance problems that may have happened in the past.
To some extent, you are 'deputised' under the HVNL to monitor and enforce compliance by your business partners. Whether this is a fair and effective form of regulation is a matter for debate. Regardless, it is the law as it stands.
Compliance assurance conditions
Compliance assurance conditions in commercial arrangements will include terms and conditions or compliance policies which you insist upon. These will put your business partners on notice of their obligations under the HVNL and require them to comply.
In order to be a compliance assurance condition, these obligations need to have teeth. In other words, if your business partner does not comply with their obligations under the HVNL, there should be a consequence. More on this later.
Information, instruction, training and supervision of employees
Providing information, instruction, training and supervision to your employees is key to supervising the CoR performance of your business partners. It may seem obvious, but if your employees don't know what is required under the CoR, they cannot monitor the compliance of your business partners.
Equipment and work systems
Safe working systems should already be implemented in your business. CoR compliance can be integrated into these systems to try to reduce the likelihood or severity of any CoR breach.
For example, detailed load restraint plans can be developed for any standard and recurring cargos. Another example of a safe working system would be modifying booking systems to require supervisor sign-off for any urgent road carriage booking so as to ensure that speed and fatigue requirements will not be breached as a result.
Response to past compliance problems
A failure to identify, report and respond to any past HVNL breaches may be fatal to trying to satisfy the all reasonable steps defence. Your CoR compliance practices and work systems must ensure that any HVNL breaches with which you are concerned (including breaches by other parties in the chain) are reported internally, addressed and followed by the implementation of any necessary response measures.
Response measures may include warnings, requiring remediation plans, or even non-payment for services provided in breach or termination of any agreements.
As with all compliance measures under the HVNL, record-keeping is essential. This should include:
- records of all staff training modules;
- toolbox meetings;
- information provided to workers;
- attendance at meetings and training programs; and
- details of any breach, its consideration and the response measures (if any) that were implemented.
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.