An exposure draft of the draft guidelines for the development and registration of industry codes of practice under the Heavy Vehicle National Law has now been circulated to industry representatives for consultation. In this article we provide an advance introduction to the guidelines.
A prosecution under the Heavy Vehicle National Law (HVNL) requires you to prove that you took 'all reasonable steps' to avoid an offence. Taking all reasonable steps usually involves:
- undertake a risk assessment to identify the areas within your operations where Chain of Responsibility (CoR) breaches might arise;
- develop a risk-mitigation measure for each risk of breach identified to reduce or eliminate the risk of that breach occurring; and
- develop, document and implement a CoR policy and working practices to assist in the implementation of your risk and remedy assessment.
In the event you were charged with a CoR offence, you would then seek to rely on your CoR policy and procedures as evidence that you had taken all reasonable steps to avoid a breach.
Are your CoR policies and procedures adequate?
Before being able to rely on compliance with your CoR policy and procedures to defend a prosecution, you first need to satisfy the Court that your CoR policy and procedures are adequate. That is, your CoR policy and procedures need to properly identify the relevant CoR breach risks. They also need to provide a risk-mitigation measure that satisfactorily responds to each risk, in accordance with the current standards of expert knowledge and reasonable industry practice. If the Court does not accept that your risk assessment and CoR policy are sufficient, compliance with them will not save you.
How can you be assured that your CoR policy and procedures are sufficient and that compliance with them will provide a defence to prosecution?
Section 625 of the HVNL provides that where a person is charged with breach of a CoR law, proof that the person "complied with all relevant standards and procedures under a registered industry code of practice, in relation to matters to which the offence relates is evidence that the person took all reasonable steps".
If you have a Registered Code of Practice (RCP), you can be assured that compliance with it will satisfy the all reasonable steps test.
Definition: Registered Code of Practice (RCP)
An RCP is a CoR compliance code that addresses the common areas of CoR compliance, and it is capable of being used by any business with common operations.
Is there a one-size-fits all RCP solution?
The National Heavy Vehicle Regulator (NHVR) recognises that certain industry sectors have common and relatively standard transport activities. Examples include the movement of livestock, timber logs and bulk liquid products. In these cases, the CoR compliance elements of mass, dimension, load restraint and, potentially, speed and fatigue management, will be similar – if not identical – across the sector.
It is important to note that an RCP is not an off-the-shelf compliance policy suitable for everyone. Such policies are generally not worth the paper they are written on as they do not include any actual risk identification and mitigation tailored to the businesses concerned.
An RCP is tailored to the common functions, procedures and CoR risks shared by members of an industry. At its heart, and as stated in the draft guidelines, an RCP "will show operators how to assess the risks of their own operations, and create, implement and maintain a safety system adapted to their particular circumstances".
The requirements for an RCP?
Six codes have been accepted for registration before the release of the draft guidelines. Their registration will be recognised until 30 June 2017. They will have to be resubmitted for registration before they expire. Before being registered, the NHVR will review any draft RCP to ensure it meets the quality standards required for registration. The standards that must be met are contained in the guidelines. It is expected that the level of detail required will be higher than the current codes of practice, which have been registered under the old regime.
The purpose of any code is to comprehensively cover the field in its sphere of operation. So, to be accepted for registration, a code of practice must satisfactorily identify all CoR risks associated with the operations covered by the code. It must also provide for adapted control measures for each risk identified.
If the code of practice does not adequately address all of the CoR components (e.g. mass, dimension and load restraint) that apply to certain operations, it will not be accepted for registration.
It should be note that, to be accepted for registration, a code of practice must include detailed guidance for operators to be able to conduct their own customised risk-management process and develop customised controls for any risks unique to them. It must provide a formal procedure for monitoring, feedback and review in relation to the implementation and effectiveness of the code.
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.