Under the Heavy Vehicle National Law (HVNL), the only defence to a breach is if you took 'all reasonable steps' to prevent the occurrence of the breach. Some of the matters that a Court may take into account in weighing up whether you have taken all reasonable steps include steps taken by you to:

  • manage, reduce or eliminate a potential contravention;
  • exercise supervision or control over others involved in the supply chain;
  • include compliance assurance conditions in your arrangements with others involved in the supply chain;
  • maintain work systems to enable compliance with the HVNL; and
  • address and remedy past breaches.

Preparing and implementing a Chain of Responsibility (CoR) compliance policy can help you satisfy the above requirements. But, what should be included in your policy?

There is no definition in the HVNL as to what must be included in a CoR compliance policy. So, the level of detail and content will fall within a range, depending on the position, operations, exposure and needs of the particular business concerned.

Statement of intent

At the highest level, a compliance policy is essentially a statement of intent or commitment to a particular standard of behaviour. Many companies have these kinds of policies in relation to, for example, equal opportunity employment, the handling of customer complaints and flexible working arrangements. Typically, they can be as short as a sentence or paragraph and contain a:

  • statement that compliance with the particular ideal is a core value of the business concerned;
  • commitment to adhere to the standard imposed by that ideal;
  • desire that other parties involved with the business commit to the same standard; and
  • contact point for any questions concerning compliance.

The HVNL requires more than this. The all reasonable steps defence imposes an active standard on those in the CoR – to take all reasonable steps. A statement of intent or principle, without more, is unlikely to satisfy this active requirement. Like an election promise with no underlying plan, it rings a little hollow.

Operational level

An operational level compliance policy will include the matters discussed above, but also seek to put some meat on the bones as to:

  • how the statement of intent will be implemented in practice; and
  • what will be done within the business and vis a vis those that it deals with if compliance is not achieved.

Some businesses are reluctant to show their hand and include such detail. They feel that this will give the authorities some advantage in investigating them, by highlighting the areas of conduct or performance that the authorities can zero in on to see whether the policy has in fact been followed.

Again, the duty imposed under the HVNL is an active one. It is not passive or merely reactive. Your compliance policy can't live in the Cloud, only to be plucked out of the air after the fact. It needs to reside on the ground alongside your business.

An active and visible compliance policy can also be an active deterrent to prosecution. If an incident occurs and your business is subject to investigation, the best way to avoid a prosecution is to be able to demonstrate, by the production of relevant written records, that your business has identified the reasonable steps that it is required to take and has actually taken them. For this to occur, your policy and records of its implementation and success need to be set out in detail and in writing.

Comprehensive policy and procedure

At the most comprehensive end of the spectrum is a detailed compliance policy and procedure document, which, in addition to the above matters, includes:

  • specific details of what steps are required to be taken in all reasonably anticipated circumstances in order to achieve compliance;
  • specific detail as to how compliance with the mandated steps will be monitored and measured; and
  • specific sanctions or remedial action that will be imposed or taken in the event of non-compliance.

Such combined policy and procedures manuals leave nothing to chance, providing express and detailed guidance to individuals as to what is required in any likely situation.

Whatever the level of CoR compliance policy implemented by your organisation, it is essential that implementation is checked and recorded, to prove that the policy is more than just a promise on a piece of paper.

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.