What should you do if a Chain of Responsibility (CoR) breach or
other incident of non-compliance occurs? How you respond is just as
important as the steps you have taken to avoid any non-compliance
in the first place.
CoR breach prevention
There are several ways you can avoid committing or being
involved in a CoR breach, including:
taking director and executive officer due diligence and
taking all reasonable steps to avoid breachesconducting a risk
assessment and developing a response/mitigation plan
developing a CoR compliance policy
implementing customer and business partner CoR compliance
assurance conditions in contracts implementing effective management
and board reporting.
However, despite taking the above steps, it is possible that a
CoR breach or another non-compliance incident may still occur.
Remember, although you are required to exert influence over the
conduct of other parties in the chain, you do not actually have
control over them. Regardless, you can be held responsible for a
CoR breach occurring anywhere along the road transport supply
chain, even if you were not actually performing the function during
which the non-compliance occurred.
Responding to a CoR compliance problem
Whether or not you were actually responsible for causing the
non-compliance, what you do in response to the incident is just as
important as the steps you have taken to prevent it. This is
because the action you take in response to a CoR non-compliance
incident is intended to prevent breaches from happening in the
future. This is outlined in s 620 of the Heavy Vehicle National Law
(HVNL), which provides that in assessing whether
you have taken "all reasonable steps" to prevent a CoR
breach from occurring, a court may have regard to "the
measures available and measures taken...to address and remedy
similar compliance problems that may have happened in the
It is important to note that the wording of the section empowers
a court to assess your performance in responding to past CoR
Tip: A CoR compliance problem is not necessarily a breach of
the HVNL. It may also be an instance in which a CoR compliance
policy or practice has not been followed or implemented properly,
even if it doesn't actually result in a breach of the
As such, in relation to any breach, you may be judged on how you
have previously responded to circumstances in which no breach has
taken place. This means that the threshold for response action on
your part is quite low. In turn, this means that you must be active
and alert in monitoring CoR compliance by your business and your
business partners, and ensure that you step in and act when
performance is not up to scratch. This is consistent with the
active CoR duty to "take all reasonable steps".
At a macro level, you must ensure that your response measures
are positively changing operations and/or CoR compliance
performance. If the same or similar type of breach or
non-compliance incident keeps cropping up, this demonstrates that
the actions that you are taking in response are not working.
It means that when a court judges you on the "measures
available and measures taken...to address and remedy similar
compliance problems that may have happened in the past", you
will score a 'fail'. You must aim for a system of continual
improvement in your operations and compliance.
If it doesn't exist on paper, it didn't happen
Courts, judges and lawyers love paper. If you don't document
your incident identification, risk assessment and response on
paper, in the court's eyes it never happened.
So, it is essential that you record non-compliance incidents in
your response log that forms part of your risk assessment. You
should also give written notice of any required action to rectify
the problem to your business partners and keep records of this
notice, their response and your consideration of the suitability of
Similarly, you must keep board reporting of incidents, along
with minutes of the board's consideration and resolutions.
These records will be the only thing that you have to demonstrate
compliance in the event of a prosecution.
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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