This action results from a recommendation from the Chain of Responsibility Task Force review of the Heavy Vehicle National Law Chain of Responsibility (CoR) provisions. Briefly, while the Taskforce recognised the need for a continued CoR regime, the need for improvement was noted.
NatRoad is an active participant in this process and is working hard with the NTC, industry and jurisdictional agencies to ensure a balanced and informed consideration of the many issues affecting the development and operation of an effective CoR regime.
The issues being considered are complex and interdependent.
For instance, general duties, while creating the space for operators to tailor CoR compliance regimes specific to the unique needs of their business, also possibly expose them to greater risk of ‘deeming’ and ‘extended liability’ provisions. Regulators, however, tend to prefer such approaches because they help to avoid a ‘checkbox’ mentality and make it easier for ‘reverse onus of proof’ based prosecutions.
Alternatively, a more specific positive duties approach can make it easier for operators to comply, as positive duties are defined for the various roles and functions of chain parties. Though there are problems here too: regulators are concerned that such an approach can promote the ‘checkbox’ mentality referred to above; while chain parties need to be aware of the cost and effort associated with a reasonable steps defence.
Coincident with all of this are the ongoing and very real concerns associated with the use and possible expansion of reverse onus of proof, deeming and extended liability provisions. In NatRoad’s opinion these are real and substantial issues that need to be very carefully considered and negotiated. Operator’s legal rights need to be very seriously regarded and defended, and relinquished in only the most extreme of cases. The Australian Trucking Association sought legal advice on this early last year and this advice emphasised the paramount importance of the ‘Golden Thread’ that runs through English Criminal Law: “that it is the duty of the prosecution” to prove a person’s guilt.
It is the basic legal right of a person to be presumed innocent until proven guilty and this must be preserved. Provisions such as ‘reverse onus of proof’ do away with such a presumption. While reasonable steps, defences can seriously degrade such rights due to its inherent evidentiary and costs burden. It is the opinion of the NatRoad Council that this basic right should be preserved without being comprised.
NatRoad’s commitment to such rights is demonstrated in its gaining for operators of a new Principle 1 in the NTC’s draft Compliance Framework for Heavy vehicle Telematics.
Principle 1 states “The access and use of telematics information must be consistent with Australia’s international human rights obligations: public authorities must not apply or enforce laws, policies or programs in a discriminatory or arbitrary manner, and no one must be subjected to arbitrary or unlawful interference with his or her privacy.”
NatRoad applauds the Federal Government and the NTC’s action in this area.
Given the above concerns and the complex nature of the issues being considered NatRoad is concerned that there is a real and urgent need to hasten slowly in the CoR reform process, otherwise industry may find itself saddled with a revised regime that results in a further erosion of operator’s legal rights.
David Galbally AM QC touched on such matters when he addressed the ATA’s 2014 TMC in Melbourne. As noted in the December 2014 issue of Prime Mover, he stated, “I want to deliver home a message that the authorities may not like: You as operators are part of the chain of responsibility and have your own rights – so your aim should be to protect those rights”.
NatRoad is working hard to ensure that operator rights receive the proper consideration and respect that they deserve in the CoR reform process. To this end the NatRoad Council is very carefully considering the NTC’s Chain of Responsibility: Duties Review Discussion Paper and how best to proceed from here to ensure that all parts in the chain are able to be fairly and appropriately included in the Chain of Responsibility.