It is important to remember that Chain of Responsibility (CoR) prosecution is not just about punishing parties for failing to comply with their Heavy Vehicle National Law (HVNL) obligations. It is also about educating parties on the right ways to manage their safety duties and responsibilities. In this article, we look at the steps in the CoR prosecution process so that you know what to expect in the event that you are investigated for a breach of the HVNL.
In the last couple of years, there have been significant changes to the HVNL. There has been an increased focus on the practices and processes of all parties in the Chain. The introduction of terms such as ‘shared responsibility’ and ‘due diligence’ for executives means that parties must be proactive rather than reactive in complying with their obligations.
The reality is that with the continual reshaping of the HVNL and with more changes forecast, it is possible that some of you will slip through the cracks with meeting your safety obligations. The National Heavy Vehicle Regulator (NHVR) makes an example out of companies with deficient CoR policies and procedures, so it is important to understand how it conducts the investigation and prosecution process. Through examining the CoR prosecution procedure, we aim to provide some helpful tips for managing this process.
Four steps in the CoR investigation and prosecution process
If you are under investigation for a breach of the HVNL, there are certain steps that will be taken by the NHVR:
1. Notice to Produce
The NHVR usually commences an investigation process by issuing you with a Notice to Produce. The Notice to Produce will require that you produce documents to the NHVR within a specified time period. These notices are drafted in broad terms and require parties to produce copies of relevant journey and transport documentation. Documents requested may include:
Important: Compliance with the Notice to Produce is crucial. Heavy fines will apply to parties who limit the documents they provide or simply ignore the notice altogether.
In many cases, the concerns of the NHVR will be addressed through production of the documents listed above.
2. Improvement Notice
An Improvement Notice may be issued where there is or has been a breach of the HVNL.
An authorised officer may issue an Improvement Notice requiring that you take action to stop the contravention from continuing or occurring again, or to remedy the matters or activities causing the contravention. Improvement Notices are considered one of the more educative and persuasive enforcement options available under the HVNL to ensure compliance with its requirements.
3. Court Attendance Notice
A Court Attendance Notice (CAN) is a formal notice requiring each listed defendant to attend court to answer to charges for an offence of the HVNL.
If the NHVR determines that your documents show deficient CoR procedures, proceedings for an offence under the HVNL are commenced by the issue and filing of a CAN. You don’t want this to happen.
The time limit for commencing any proceedings for certain mass, dimension and load offences under the HVNL by way of a CAN is the latter of “2 years after the commission of the offence; or 1 year after the offence comes to the complainant’s knowledge, but within 3 years after the commission of the offence”.
4. Entering a plea
Once you receive the CAN, you will have to decide whether to plead guilty or not guilty to the charge. Many factors specific to each individual case will dictate when (or whether) it is appropriate to enter a guilty plea, and whether it is appropriate to bring evidence of contrition for the offences as charged. Some of these factors include:
Caution: The costs of defending a CoR prosecution are not limited to just the legal costs (which may be significant). The costs to reputation and time are also significant (if not more important), and they can be difficult to measure.
Act now not later
Often it takes something going wrong before parties take a closer look at their systems and procedures and critically evaluate them. In the event that you find yourself facing a potential CoR investigation, it is imperative that you identify how to prevent future incidents from occurring. Moving forward in 2020, it is crucial that parties ensure they are proactive in managing their safety obligations. The parties in your chain must adopt the attitude of preventing any future breaches, which also includes rectifying any past breaches.
Although failure to comply with HVNL obligations can often lead to punishment, it is important to remember that it is also about educating parties on the right ways to manage their safety obligations. Ultimately, we all have the common objective of ensuring the safety of all road users.
Author: Rebecca Niumeitolu & Nathan Cecil
* A version of this article was originally published in CoR Adviser. This article is © 2019 Portner Press Pty Ltd and has been reproduced with permission of Portner Press.
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this newsletter is accurate at the date it is received or that it will continue to be accurate in the future.
Published by Nathan Cecil, Rebecca Niumeitolu