Perhaps one of the main failings of the current Chain of
Responsibility (CoR) laws is a lack of coherence,
which prevents them being readily understood by many participants.
The new amendments will remedy this shortcoming in a number of
respects: we examine the details.
As a first world nation, Australia is particularly reliant on
long-distance heavy-vehicle transport. We fall between states like
Singapore (which is too small to rely on heavy vehicle transport)
and Europe or the United States, which have highly developed
freight rail networks and also, in the case of Europe,
well-developed freight networks over inland waterways.
Australia's long distances and sparse population, however,
favour the use of heavy vehicles. So it makes sense that we are
pioneering a regulatory regime that encourages heavy vehicle
transport while facilitating the sharing of road
Understanding 'safety duties'
In hindsight, the current CoR laws were perhaps overdue for an
overhaul. Among the new concepts arriving in 'CoR 2.0' are
'safety duties'. The first of these duties is the principle
of shared responsibility; s 26A of the Heavy Vehicle National
Law and Other Legislation Amendment Bill 2016 states:
"The safety of transport activities relating
to a heavy vehicle is the shared responsibility of each party in
the chain of responsibility for the
It is helpful to have such an overarching statement of the
intent and philosophy of the new legislation. The Bill goes on to
"The level and nature of a party's
responsibility for a transport activity depends on –
the functions the person performs or is required to
perform, whether exclusively or occasionally, rather than
the person's job title; or
the person's functions described in written contract;
the nature of the public risk created by the carrying out
of the transport activity; and
the party's capacity to control, eliminate or minimise
'Transport activities' is another new concept. It is
defined to mean:
"activities, including business practices and
making decisions, associated with the use of a heavy vehicle on a
road, including, for example –
contracting, directing or employing a person
to drive the vehicle; or
to carry out another activity associated with the use of
the vehicle (such as maintaining or repairing the vehicle);
consigning goods for transport using the vehicle;
scheduling the transport of goods or passengers using the
packing goods for transport using the vehicle; or
managing the loading of goods onto or unloading of goods
from the vehicle; or
loading goods onto or unloading goods from the vehicle;
receiving goods unloaded from the vehicle."
These are broad and all-encompassing statements of principle
that get to the very heart of the business of heavy vehicle road
transport. In elevating substance over form, these amendments
recognise that it is what people actually do, rather than their job
description, that matters.
Duties are non-delegable
Section 26B(4) also contains the express statement that
"a duty under this Law may not be transferred to another
person". Such a clear statement of the intent of the
legislation is overdue.
This has been an issue of some confusion under the current law,
with some parties in the chain trying to shift responsibility for
compliance to other parties, and even to seek indemnity in the
event of breach. As we have written previously, this displays a
dangerous misunderstanding of the nature of CoR
The new s 26B(4) makes it clear beyond doubt that CoR
obligations are non-delegable, which should result in better
cooperation between parties in the chain. With the new principle of
shared responsibility, parties should recognise the need to work
together to secure compliance.
This should not have the effect of increasing the burden on any
particular party in the chain – in fact, it should have the
opposite effect. It should allow those carriers that feel they bear
the brunt of compliance to push back on their customers and
highlight, by pointing to the legislation, that CoR compliance is a
shared responsibility that cannot be transferred to another
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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