Legal status of a Code of Practice

When a code of practice is registered by the NHVR it does not create new legal requirements, but it does give a special status to the information in a code. Information about a hazard or risk, risk assessment, or risk control, to which the code relates can be used as evidence of what duty holders know, or ought to know about those things (s632A). In other words, parties in the CoR and executives, are effectively deemed to know the contents of a registered code.

Risk Management

Your knowledge of hazards, risks and controls is one of the factors that is relevant to determining whether you have done what is reasonably practicable to eliminate or minimise risks to public safety in your transport activities. Not knowing about a hazard, risk, or control, will be no defence to a breach of the primary duty if the information is in a registered code.

You are required to manage each risk and hazard that is identified in a registered code, if it is relevant to your transport activities. You do not have to implement the precise control measures recommended by a code of practice. You can implement other controls that are more practicable in your circumstances, so long as they achieve the same level of safety as the measures recommended by a code.

Executives have a duty to exercise due diligence, which includes (among other things) taking reasonable steps to “acquire, and keep up to date, knowledge about the safe conduct of transport activities.” For this reason, it is recommended that executives familiarise themselves with the contents of any code of practice that is relevant to their business or to their business partners’ activities.

Not knowing the contents of a relevant RICP puts you and your business at a disadvantage.

How the NHVR uses Registered Industry Codes of Practice

A Registered Industry Code of Practice (RICP) describe what good practice looks like in the view of industry experts and safety professionals. Our Safety and Compliance Officers (SCOs) and police officers may refer to an RICP when deciding how to respond to a breach detected during a roadside inspection. For example, they may consider whether the driver’s breach is in fact the result of a failure by a party in the CoR to implement measures recommended in an RICP.

Investigators may also use an RICP to determine whether a CoR party has done all that is reasonably practicable to ensure safety. In the event of court proceedings for a breach of the primary duty, an RICP can be admitted as evidence of what a party in the chain of responsibility knew or ought to have known about hazards or risks, risk assessments and control measures.

When a breach of the primary duty has been detected, the HVNL has compliance actions that may be taken as an alternative to prosecution, including:

Contents of an RICP may assist SCOs and investigators to decide which action is appropriate, and to identify improvement actions suitable for inclusion in an Improvement Notice, or Enforceable Undertaking.