Lawyer flags CoR changes

At the recent NatRoad Conference in Brisbane, Gillian Bristow, special counsel for law firm Cooper Grace Ward, warned delegates that proposed reforms to the existing Chain of Responsibility (CoR) legislation would deliver both good and bad news for transport operators.

While the reforms tabled by the National Transport Commission are yet to be finalised, Ms Bristow, who has 20 years of experience in transport law, said it's likely authorities will usher in several key changes to the Chain of Responsibility legislation currently set out in the Heavy Vehicle National Law (HVNL).

On a positive note, the reforms could see the legislation move away from the 'extended liabilities' category of offence, which deem the operator to be automatically guilty unless they can prove they took 'all reasonable steps' to prevent an offence from occurring, to a 'general duties' model that allows operators to ensure the safety of their operation 'as far as practicable'.

"In other words you take some very prescriptive provisions, you throw them out and you replace them with a general duty to ensure safety," Ms Bristow said, adding that this would then align the HVNL more closely with existing Workplace Health & Safety (WHS) and National Rail legislation.

Proposed reforms would also reduce the list of offences for 'executive officers' under current CoR legislation from 170 to 58.

However, Ms Bristow cautioned delegates that the legal definition of the 'executive officer' title was very broad, and can be applied to anyone who takes part in the management of a corporation.

"So the reach of the HVNL with respect to picking up people … is enormous," she said.

Ms Bristow also said the shift to a general duties model and the simplification of offences for executive officers would come at a price, with CoR submissions suggesting the current penalty regime was far too moderate.

"The proposal is … that we'll bring the penalties in this legislation more in line with WHS and rail," she said.

That could see penalties run to hundreds of thousands of dollars and gaol time for individuals, and millions of dollars for corporations.

"It's all rather sobering from that perspective," she said.

Other proposed reforms span the inclusion of heavy vehicle maintenance to fall within the scope of CoR legislation and the introduction of specific role-based duties for parties in the chain beyond operators, primary contractors, and employers – namely consignors, consignees, loaders and so on.

Ms Bristow said that while the HVNL represented a significant step forward for the road transport industry, it was "one enormous piece of legislation", the lawyer labelling it "intricate" and "complex".

The legislation was problematic in many respects, she said.

"It is very difficult for anyone in the chain of responsibility to comply simply because of the way the legislation is set out," she told delegates.

"It doesn't deal with players in the industry, it deals with areas … so you will not find a chapter titled 'Chain of Responsibility', you will not find a chapter titled 'Penalties' and you will not find a chapter called 'All Reasonable Steps'."

Instead, these crucial aspects to the legislation are scattered throughout the HVNL, which in hard copy form runs to 750 pages.

"It's hard work; it's hard work for lawyers and it's hard work for you," she told delegates.

"Hopefully the net result is that some of the reviews will make it a bit easier."

Despite its inherent complexity, Ms Bristow said it was essential that road freight operators were aware of the impact a CoR investigation could have on their business, with the potential damage to an operator's reputation far exceeding any stipulated financial penalty.

"Even if you win [a CoR legal case], you lose," she said, before going on to describe road freight operators as "easy targets".

Ms Bristow urged operators who were served with a court attendance notice to always offer some form of representation in court, and stressed the importance of effective compliance policies.

"You're going to have to have some kind of compliance system in place in order to be able to manage these sorts of offences," she said.

She also urged operators to closely scrutinise customer contracts to determine their level of liability.

Transport Ministers will meet on proposed reforms to the existing CoR legislation in November, with agreed changes likely to come into effect in 2017.