The chain of responsibility (CoR) is not new, but it is time to take responsibility for our actions. According to the Australian Livestock and Rural Transporters Association, it has evolved, but the basic concept is the same: any party in a position to control, influence or encourage on-road behaviours is identified and held accountable.
So why, after more than 20 years, is it still not working?
Australian heavy vehicle laws have included a CoR since 1997. This was carried into the Heavy Vehicle National Law (HVNL) in 2012 and in recent years WA has adopted it too.
However, CoR seldom touched off-road parties. When a driver committed an offence there was only one link in the chain, the operator. It was thought that the key failing of CoR was that an incident had to occur before extended liability was triggered. It did not prevent incidents, it merely allocated blame to parties after the fact.
In October 2018, positive general duties and improved investigative powers were introduced. At the same time ‘fairness’ was balanced by removing automatic deeming. This meant that chain parties were legally obligated to take proactive steps to identify and control risks before accidents occurred and that authorities had sweeping powers to proactively check compliance.
At the core, the reformed CoR laws are no different to workplace health and safety laws. In 2020, Australians expect our loved ones to return from work safe and well. For a driver, the truck is their workplace. Drivers have a right to a safe workplace, free from unsafe demands and influences.
ALRTA took it as a positive sign when peak farming groups voiced strong concerns about the reformed CoR laws. However, many primary producers are still not aware of their CoR obligations and so take no action to identify and control risks. In contrast, larger more sophisticated supply chain parties who are well-aware of their obligations will often attempt to limit their own liability by burdening drivers with additional declarations and paperwork rather than changing anything material about their own practices.
The March 2020 NHVR Issues Paper on Improving Awareness and Practices in the Livestock Supply Chain states that “most supply chain members believed road transport operators should manage mass management risks”. This is entirely unsurprising. While all rural supply chain parties publicly claim to support safe roads and workplaces, there is a prevailing view that liabilities for mass, fatigue, speed or loading should not extend to off-road parties.
ALRTA routinely encounters this attitude when working with supply chain parties to improve practices or infrastructure standards. For example:
- Effluent Code of Practice: Prominent producer groups oppose a code because information about industry best practice may increase liabilities for those who do not identify and control risks.
- National Ramp Standards: Prominent producer groups have formally opposed the establishment of a standard for liability reasons.
- National Vendor Declarations: ALRTA wrote to SAFEMEAT requesting improved recording of mandatory water withholding periods. Producer groups opposed changes for liability reasons.
- Saleyard Owners: The Australian Livestock Markets Association (ALMA) publicly argues that CoR should not apply to saleyard owners that do not also operate the facility. This is despite the fact that saleyards are purpose-built facilities for handling live freight.
NHVR, state road agencies and police simply do not have sufficient resources to properly investigate the role of all chain parties when lower-level offences occur. Infringements for lower-level offences are only ever issued to the driver or operator. With negligible threat of enforcement action for other chain parties, low-level offences become wide-spread and highly persistent (e.g. a farmer or agent asking for one or two more animals to be loaded onto a full truck so they are not left behind).
CoR has not worked well for high-level cases either. More than a decade ago GrainCorp was successful in overturning 330 alleged overloading breaches attracting $18.23m in fines. More recently, actions commenced by NSW RMS against Forbes and Dubbo Saleyards has only resulted in vigorous political lobbying, a review of the RMS charges, an NHVR Issues Paper and government funding for ALMA to re-write the rules in their own code of practice.
To date, not a single rural supply chain entity has been infringed for failing to take proactive steps to identify and control safety risks. Authorities do not even make use of other means of influencing practice change such as issuing improvement notices and warnings beyond the operator.
CoR laws have great potential to change attitudes and practices. But without a credible enforcement threat the rural supply chain continues to look the other way. How many lives will be lost before we see real enforcement action?