Australia: What to do when you are facing Chain of Responsibility prosecution

Last Updated: 9 March 2018
Article by Nathan Cecil
Most Read Contributor in Australia, August 2018

Chain of Responsibility (CoR) prosecution is not just about punishing parties for failing to comply with their Heavy Vehicle National Law (HVNL) obligations. It is also about educating parties about the right ways to manage their obligations. In this article, we take a closer look at the CoR prosecution procedure and provide some helpful tips to managing this process.

From mid-2018, the HNVL is due to change significantly. There will be an increased focus on the practices and procedures of all parties in the supply chain. The introduction of terms such as "shared responsibility" and "due diligence" for executive officers suggests that parties must be pro-active, not re-active in complying with their obligations.

You might ask, what does this have to do with CoR prosecution?

Well, in recent months, the regulator made an example out of companies with deficient CoR policies and procedures. In a recent case involving a large waste collection company, the Court has stressed that even where road transport is conducted by a contractor or third party, it is critical that every party in the Chain has an "active system in place to manage the risk and to minimise the chances of road transport law being breached".

The case highlights some of the following key concepts:

  1. The critical importance of properly managing the compliance conduct of contractors and third parties within the Chain;
  2. The essential need to include CoR compliance assurance conditions in all supply chain contracts;
  3. Where contractors do not have their own reliable compliance systems in place, the need to subject contractors to internal awareness, training and compliance controls; and
  4. The need to ensure that businesses have a documentary compliance framework and for this to be complete and substantive.

Therefore, it is important to identify how the regulator conducts its investigation/prosecution process.

Notice to Produce

The regulator will usually commence an investigation process by issuing a Notice to Produce (Notice).

The Notice will usually require production of documents within a specified time period. Notices are usually drafted in broad terms and require parties to produce copies of relevant journey and transport documentation. This can often include some of the following:

  • Entry and exit times of the vehicle to various sites
  • Copies of all transport documentation such as bills of lading, consignment notes, CWDs and delivery orders
  • Records of any communication with the operator of the vehicle and other parties in the chain.

Compliance with the Notice is crucial and heavy fines will apply to parties who limit the documents provided or simply ignore the Notice.

In many cases the concerns of the Regulator can be addressed through production of the above documents.

Improvement Notice

An Improvement Notice can be issued where there is or has been a breach of the HVNL.

An authorised officer may issue an Improvement Notice requiring a person to take action to stop the contravention from continuing or occurring again or to remedy the matters or activities occasioning the contravention.

Improvement Notices are considered to be one of the more educative and persuasive enforcement options available under the HVNL in order to ensure compliance with its requirements.

What if your documents show deficient CoR procedures?

This is the message most parties don't want to receive.

Proceedings for an offence under the HVNL are commenced by the issue and filing of a Court Attendance Notice (CAN). A CAN is a formal notice requiring each listed defendant to attend court to answer to charges for an offence of the HVNL.

The time limit for commencing any proceedings for certain mass, dimension and load offences under the HVNL by way of a CAN is the later of "2 years after the commission of the offence; or 1 year after the offence comes to the complainant's knowledge, but within 3 years after the commission of the offence."

Entering a plea

Once you receive the CAN, you will have to decide whether to plead guilty or not guilty to the charge. There are many factors that will be specific to each individual case which will dictate when (or whether) it is appropriate to enter a guilty plea, and whether it is appropriate to bring evidence of contrition for the offences as charged. Some of these factors include:

  1. What are the defences available to you in relation to the charges; and
  2. What are the potential fines and costs of defending the charges.

Costs

The costs of defending a CoR prosecution are not limited to just the legal costs (which may be significant). The costs to reputation and time are also significant (if not more important) and can be difficult to measure.

When faced with a potential CoR investigation, the most important step is to identify how to prevent future incidents from occurring. Unfortunately, it often takes something bad to go wrong before parties evaluate their systems and procedures. Under the new laws, it is crucial that parties are pro-active and engage with their transport activities with the attitude of rectifying any potential safety breaches.

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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