Australia: Transport & chain of responsibility - ignorance of the law is no excuse

Last Updated: 10 July 2016
Article by Geoff Farnsworth

Ignorance may be bliss when it comes to Chain of Responsibility (CoR), but only if 'bliss' means a short-term, unsustainable ecstatic state. Moreover, ignorance is not just harmful to you, but can affect others in the chain by exposing them to problems you have created. This is a bit like a game of 'pass the parcel'. So how can you avoid being left holding the parcel when it 'blows up'?

'C' stands for 'Chain'

The Heavy Vehicle National Law (HVNL) is different to many laws in that it doesn't always impose absolute obligations. Instead, it creates a somewhat subjective obligation to take 'all reasonable steps' to achieve a particular objective. The steps that are required to satisfy that obligation will differ from person to person, even if those people are adjacent in the chain. This can be intensely frustrating for people who like their law to be black and white, which is not at all surprising in light of the criminal penalties that can apply for breaches of CoR.

CoR is about systems

While it may not resolve frustrations entirely it is important to remember that CoR is about systems. On the upside, CoR does not require that your compliance system is perfect, it just needs to be defensible in the event that, despite your best intentions, something does go wrong. This applies not only to your systems and the way you do business, but also to the way your customers and suppliers do business. It is a chain, after all. So, how can you control or influence the way others conduct themselves? The answer is pre-qualification.

Pre-qualify your suppliers and contractors

Before you do business with another company, find out what they know about their CoR obligations. Do this by:

  • giving them a questionnaire;
  • getting a guarantee or commitment from them that they are compliant and will stay compliant; and
  • auditing that commitment from time to time. Better still, get them to conduct an independent audit and send you the results.

Remember: Include CoR compliance in any tenders you issue for transport-related services.

Bear in mind that if your supplier is cutting corners or is ignorant of CoR, they may be ignorant of other matters, too. You can't afford to be doing business with suppliers who are prepared to compromise the safety of themselves and others.

Contract terms

You should include appropriate terms in contracts. At a minimum, these terms can require CoR compliance, but should go further than that. Contract terms could give you a right to terminate the contract if you believe there has been a breach of CoR compliance. The terms could require your contractor to forfeit a right to payment and/or pay liquidated damages in the event of non-compliance. A non-compliant supplier is potentially exposing you to criminal sanctions.

Training

It's in your interest that your suppliers, contractors and customers understand the CoR obligations and are appropriately trained. Why not discuss training with them and even include them in your CoR training events? In that way, you can develop a collective responsibility for CoR. Training can also focus on real-life examples and the development of proper practices, procedures and policies relevant to your business, including how to respond to a CoR incident.

Code of practice

Ultimately, you may wish to consider developing a code of practice and including your suppliers, contractors and customers in the development. The National Heavy Vehicle Regulator (NHVR) will shortly be releasing new guidelines in relation to the development of industry codes of practice that can offer real protection against liability and prosecution.

Conclusion

The adage that 'any chain is only as strong as the weakest link' certainly applies to CoR. Spend some time thinking about who you interact with and whether there are any ways you can improve your chain.

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.

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Authors
Geoff Farnsworth
 
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