Industry common ground found on chain of responsibility


Debate within the trucking industry over proposed changes to chain of responsibility (COR) laws hinges on a dilemma: how to keep customer executive officers focused on their transport safety responsibilities while protecting transport operators from an aspect of the law that struggles to go further than them. <br /><br /> While the argument, which stems in part from Australian Trucking Association (ATA) concerns for the vulnerability of operators, has been passionate and points are still being made, some common ground has been found by proponents of both sides.

Industry common ground found on chain of responsibility
Industry common ground found on chain of responsibility
By Rob McKay | September 28, 2012

Debate within the trucking industry over proposed changes to chain of responsibility (COR) laws hinges on a dilemma: how to keep customer executive officers focused on their transport safety responsibilities while protecting transport operators from an aspect of the law that struggles to go further than them.

While the argument, which stems in part from Australian Trucking Association (ATA)
concerns for the vulnerability of operators, has been passionate and points are still being made, some common ground has been found by proponents of both sides.

The Australian Livestock and Rural Transports Association (ALRTA) and the South Australian Road Transport Association (SARTA) have conducted a spirited defence of the reversal of the onus of proof that they see as essential to gaining and keeping consumer directors’ attention on their responsibilities.

SARTA Executive Director Steve Shearer says the heightened risk of personal liability had concentrated minds of customer executives and led to behavioural change, particularly as police and road authorities had used it proactively as a deterrent.

Shearer is in no doubt that the new laws will weaken the deterrent and lead to backsliding from customers, a point, he says, is also of serious concern in law enforcement circles.

While this weakening has been discounted in some quarters, the Australian Government Solicitor’s advice to the National Heavy Vehicle Regulator (NHVR)
Implementation Board appears to define it.

The part of that advice ATN has seen describes the changes on liability as "of a significantly ameliorated kind".

"The amelioration lies in the requirement that the prosecution prove an executive officers actual or constructive knowledge of the corporate offending before the onus of proof shifts to the executive officer to prove that he or she took reasonable steps or wan not in a position to take such steps," it says.

It goes on to state that the move would "tip the balance in favour of the defendant executive officer more than is currently the case in a number of jurisdictions, such as South Australia, Victoria and Queensland".

Shearer agrees.

"The new laws do weaken the existing law, according to the AGS, and all police and prosecutors with whom I have spoken, at all levels, completely agree," he says.

In the midst of the argument, however, the ATA, the Australian Logistics Council and ALRTA came together in a letter, to Queensland Premier Campbell Newman (pictured)
and copied to Standing Council on transport and Infrastructure (SCOTI) on the Heavy Vehicle National Law Bill 2, which sought, in part, that further development on COR "be undertaken by a collaborative industry-government Taskforce".

"We believe strong CoR laws are a vital component of heavy vehicle regulation in Australia," ATA Chairman David Simon, ALC Deputy Chairman Andrew Ethell and ALRTA Executive Director Philip Halton wrote two weeks ago.

Shearer says that discussion amongst ATA members had led to a consensus.

This was that Bill 2 was not "broken" but should not be altered further and that the ATA was united in working with government and the NHVR to develop an appropriate alternative legal construct, which must be equally effective as the current law.

Sources with an understanding of the issues say the political reality is that ministers want more transparency on reversal of onus of proof and removal of the catch-all provision that currently applies.

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