Australia: Industry codes – are they a get-out-of-jail-free card for compliance with the HVNL?

Last Updated: 2 December 2017
Article by Nathan Cecil
Most Read Contributor in Australia, October 2018

Previously in our Chain of Responsibility (CoR) articles we looked at how to develop and implement a registered industry code of practice (Registered Code). One of the benefits of adopting a Registered Code is that it can assist you to prove a defence in any prosecution under the Heavy Vehicle National Law (HVNL). Registered Codes are often put forward as 'get out of jail free cards'. But, is this accurate?

What is Registered Code?

A Registered Code is a document developed in accordance with the NHVR's Guidelines for Preparing and Registering Industry Codes of Practice (Guidelines) and registered under the HVNL. It must provide guidance to industry participants on how they can comply with the HVNL, including guidance on risk assessment, design and implementation of control measures and performance monitoring.

Section 625 of the current HVNL provides that where a person is charged with breach of a HVNL, 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". This position will largely be retained under the amended HVNL expected mid-2018. New s632A will provide that where someone is charged with an offence, they will be able to rely on a Registered Code to prove "what is known about a hazard or risk, risk assessment, or risk control, to which the code relates" and "what is reasonably practicable in the circumstances to which the code relates".

What this boils down to is:

  • A Registered Code should set out the current state of industry knowledge of compliance hazards and risks and best practice for how to respond to them
  • If you can demonstrate that you have followed a Registered Code, defending a prosecution will be easier as you will be able to show that you have applied current industry best practice risk assessment and response measures.

However, a Registered Code is not a get out of jail free card. There are still a few cracks that you could slip through, which would mean that the Registered Code does not help you at all.

A Registered Code provides generally applicable guidance; you must show appropriate risk assessment and response in your particular circumstances

A Registered Code is a higher-level document that has to be generally applicable to most/all participants within an industry or sector. The Guidelines provide:

"Do not propose control methods so specific or prescriptive that they would not apply to all participants in an industry. Only include specific control measures or treatments as examples and make sure they are understood as such.
Emphasise the adopter's responsibility to assess the full range of control measures and choose the most appropriate one/s."

This means that you will still need to apply the Registered Code to your business operations, including taking its general guidance and applying them to your particular circumstances.

A Registered Code won't be ready to implement off-the-shelf; you still have to assess the risks and control measures for your business

The Guidelines provide:

"[A Registered Code] can only identify risk types. It cannot anticipate every possible risk to which an enterprise is exposed due to its specific location, weather conditions, load and equipment types, organisational structure and business environment. To fill this gap, the Industry Code of Practice must explain to code adopters how they can use the risk management process to identify, assess and treat risks within their own enterprise.
The Industry Code of Practice must instruct and assist adopters to:
  • Develop a risk management process
  • Implement control measures
  • Document the customised risk management process
  • Establish a system for monitoring, feedback and review."

This means that you still have to use the risk management framework provided by a Registered Code to develop the actual working practices and compliance tools to be rolled out in your business. A Registered Code only gives you the general approach to compliance; you still have to fill in the gaps to actually get to compliance.

A Registered Code sets out what acceptable approach to compliance looks like; you still have to prove that you followed it

Merely waiving a Registered Code about won't help you.

You have to make sure that the Registered Code applies to your industry/sector/operations. You then have to prove that you appropriately followed the risk assessment and control guidance contained in the Registered Code. Most critically, you have to show that you actually conducted a risk assessment of your business and then designed, implemented and monitored the performance of suitable controls. You need to show that you converted the theoretical guidance contained in a Registered Code into actual practical and physical measures in your business.

In the circumstances of a Court prosecution, this means that you will likely still have to put on most or all of the factual witness and, potentially, expert evidence that you would need to put on in order to defend or mitigate a prosecution even if you weren't relying on compliance with a Registered Code.

Conclusion

Registered Codes are an excellent and very valuable tool to help you comply with the HVNL. However, they are not a get out of jail free card. You need to understand their limitations and ensure that you are filling those gaps, in order to endure that you get the full benefit of reliance on a Registered Code if you are investigated or prosecuted.

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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Nathan Cecil
 
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