The Heavy Vehicle National Law (HVNL) provides for the registration of an industry code of practice (RICP). As discussed in our previous article here, an RICP is developed through industry consultation and approved by the National Heavy Vehicle Regulator (NHVR). It is intended to provide practical, industry-focused guidance on how parties across the Chain of Responsibility (CoR) can identify and respond to risks associated with their respective HVNL obligations.
It is not mandatory for parties in the CoR to adopt an RICP. However, a key advantage of operating under an RICP is that if you were to be charged with contravening the HVNL, the court can rely on the RICP to determine what would be reasonably practicable in the circumstances to respond to a known hazard, risk, risk assessment or risk control. Adopting measures set out in an RICP can therefore help demonstrate compliance with a particular HVNL obligation in aid of your defence.
Currently, there is only one registered RICP under the HVNL, the Master Registered Code of Practice. Industry-specific RICPs that are under assessment or development include the Crane Code of Practice, Forest Log Haulage Registered Code of Practice, Managing Effluent in the Livestock Supply Chain, Waste and Recycling Industry Code of Practice for Load Management and the Tasmanian Agricultural and Horticultural Registered Industry Code of Practice.
The registration requirements (e.g. as to the content and broad industry consultation that must be undertaken etc.) and application process are quite involved. Further, the developer of an RICP must undertake to ensure that the RICP is kept up-to-date with any developments in the area, meaning that there is an ongoing administrative and financial cost for RICP developers.
So, what if you want to provide CoR compliance guidance within your business, supply chain or industry, but don't want to go through the formality and cost of developing and registering an RICP?
A slightly ‘lighter touch' approach is to develop your own CoR compliance guide.
While any such guide cannot be tendered ‘as of right' in any court proceedings to evidence the present state of knowledge and practice in terms of risk identification and management, developing or adopting the guidance in any such guide still has three important benefits:
- increasing CoR compliance awareness and sharing information on compliance measures within your business, supply chain or industry is an important compliance tool to help ensure compliance, hopefully contributing to the overall safety and avoiding non-compliance and any investigation or enforcement action
- even if compliance issues are identified and investigative or regulatory action is commenced, the provision and adoption of such CoR compliance guidance is still a positive and proactive compliance measure that can be put forward to regulators and the courts as evidence of the compliance efforts made by you and to avoid enforcement action or mitigate any potential penalty
- increasingly, commercial buyers of goods or services are requiring or welcoming evidence of the CoR compliance measures that are put in place in their suppliers' or contractors' businesses, as a condition of agreeing to work with them. Presenting such a guide can help you demonstrate to them the proactive approach that you are taking to compliance and help assure them that your business does not pose a compliance risk to them.
One word of warning as to the content of any such guide – you should be mindful when providing guidance that you do not overstep the mark and dictate how another party in the CoR must perform transport activities over which you do not have the responsibility, control or influence. If you do so, you may end up assuming responsibility for those activities. For this reason, it may be best to pitch such guidance at the level of general awareness and guidance.
We have recently worked with industry representative bodies in the turf growing and transport, livestock sale and transport, agricultural and veterinary chemicals manufacturing and distribution, and steel manufacturing, importing and distribution sectors to develop industry guides within those sectors. The produced guides:
- assist members of those industry associations to understand their own CoR compliance responsibilities
- can be provided by the members of those industry associations to other supply chain stakeholders as part of the management of supply chain compliance
- can be presented to commercial counterparts to demonstrate to them that the members of those industry associations are adopting a proactive and industry recognised practice approach to CoR compliance.
Similarly, many businesses that operate or manage large supply chains are developing their own CoR compliance guides or handbooks for use within their own supply chains. In addition to providing general awareness and guidance for the above purposes, such guides can also serve to communicate business compliance practices that are expected to be followed within the supply chains of those businesses and set compliance expectations and non-compliance consequences, as part of supply chain compliance management. We have worked with numerous businesses in the infrastructure projects, steel, concrete, construction, container transport and retail distribution sectors to develop such ‘private' CoR compliance guides.
If your industry does not have an RICP or you do not wish to take on the cost and responsibility of developing one, there is still ample room to develop your own CoR compliance guide that will still meet many important compliance goals within your business, supply chain or industry.
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.