Registered Industry Codes of Practice (RICP) are codes developed by any Chain of Responsibility (CoR) party that is registered by the National Heavy Vehicle Regulator (NHVR). They set out detailed, practical standards and procedures to achieve compliance with the Heavy Vehicle National Law (HVNL). In this article, we unpack the benefits of adopting these codes and look at how to do so.
Why develop or adopt an RICP?
RICPs operate on a voluntary 'opt-in' basis. Advantages that arise from developing and adopting RICPs include:
- RICPs translate HVNL requirements into workable, business solutions
RICPs are a useful tool for any party in the CoR or industry group to set out practical ways to achieve compliance with HVNL requirements. As they are developed by industry participants, they offer industry-focused solutions to compliance issues.
For example, the Master Code is an RICP administered by Safe Trucking and Supply Chains Ltd. It focuses on compliance with speed, fatigue, mass, dimension and loading requirements, as well as compliance with vehicle standards.
Rather than simply stating the HVNL requirements for various CoR parties, the Master Code offers options and procedures for CoR parties to implement to avoid these breaches. Rather than stating, "Don't allow a driver to drive in breach of work and rest options", it tells operators, "If you become aware the driver is impaired by fatigue, stop the driver immediately, and arrange for the drier to have a rest break" (page 50). It further prompts the operator to establish escalation processes to deal with drivers impaired by fatigue.
- RICPs are a buffer to charges
RICPs are admissible as evidence in proceedings as to whether or not a duty or obligation under the HVNL has been complied with pursuant to s 632A of the HVNL. If an HVNL contravention arises that is covered by an RICP, the Court can have regard to the RICP to ascertain the nature of a hazard or risk, risk assessment or risk control and to also determine what would have been reasonably practicable for the accused to do in response to such risks and HVNL obligations.
Therefore, if a party voluntarily adopted an RICP to set out its standards and procedures for compliance with a particular HVNL obligation and that party were charged for contravening that same obligation, it could produce the RICP as evidence in the proceedings to support a finding that it complied with that particular HVNL obligation.
- RICPs have the capacity to clarify regulatory grey-zones
An industry code of practice that is tabled for development is the Australian Livestock and Rural Transporters Association's 'Managing Effluent in the Livestock Supply Chain' code of practice (Effluent Management Code). The issue of restraining livestock effluent has long been an industry concern, particularly where effluent discharge is an inherent risk of transporting livestock and drivers may nonetheless be charged in respect of a failure to contain their loads.
Arguably, a code addressing this ongoing concern has the capacity to assist industry to comply with effluent load restraint requirements under the HVNL and to obtain the NHVR's tick of approval to their proposed steps for compliance with that obligation, while also giving industry (in particular drivers and operators) a buffer to defend against charges for failures to restrain effluent.
As the Effluent Management Code may assist CoR parties in the livestock transport supply chain to clarify their HVNL obligations, the same may be said of the capacity for RICPs to assist industries facing regulatory grey-zones to clarify their HVNL obligations.
How do you develop and register an RICP?
A RICP must comply with the NHVR's Industry Codes of Practice Guidelines for Preparing and Registering Industry Codes of Practice (Guidelines).
Before formally approaching the NHVR, it is useful for code developers to consider the target areas the code will cover, its purpose and to do an industry call-out to ascertain whether such a code would be adopted if introduced. This is because there are costs associated with developing, registering and maintaining a code.
Formal steps to register a code involve:
- the developer will speak with the NHVR and prepare a notice of intention to register an industry code of practice. This notice will be published by the NHVR
- the developer will need the 'green light' from the NHVR before development can start
- the developer will prepare the code through research and industry consultation, clarifying the scope of code, identifying risks with transport activities covered by it, suggesting measures to control risks and provide guidance to CoR parties adopting the code to develop their own risk management processes
- the code will be checked to ensure it achieves compliance with the HVNL with risks and controls proposed by the code linked to each provision of the HVNL it is designed to address
- an administrator of the code will be appointed to liaise with the NHVR and to manage the review and update of the RICP once it is registered
- the developer will submit the code with supporting documents to the NHVR with the assessment fee
- a qualified and experienced panel will assess the code
- the panel will make a recommendation to the NHVR on whether to register the code and the conditions of registration
- the NHVR will determine whether to register the code
- registrations will be subject to conditions for the administrator to engage in a review of the RICP and to update the code as best practice methods change or as the Guidelines are amended.
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.