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How to respond to requests for information or documents under the Heavy Vehicle National Law

06 May 2020

#Transport, Shipping & Logistics

Published by:

Meshal Althobaiti

How to respond to requests for information or documents under the Heavy Vehicle National Law

Under the Heavy Vehicle National Law (HVNL) some authorities are given a multitude of compliance and enforcement powers which include the ability to require production of documents and the provision of information.

This article will give you a refresher about what your business can be required to produce and what steps it should take upon receiving a request from an authorised officer, such as a Notice to Produce under the HVNL.

Note: An authorised officer under the HVNL means any person declared by a law of a participating jurisdiction to be an authorised officer for the purposes of the HVNL.

Authorised persons include the Police, the Roads and Maritime Service (RMS) and the National Heavy Vehicle Regulator (NHVR).

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:

  • entry and exit times of a vehicle to various sites
  • copies of all transport documentation, such as bills of lading, consignment notes, CWDs and delivery orders
  • records of any communication with the operator of the vehicle and other parties in the Chain in relation to a consignment.

It is very important to note that 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.

An authorised officer can request various documents from a driver of a heavy vehicle or a person responsible for a heavy vehicle. These documents include, without limitation, the following:

  • any document, devise or anything else that the HVNL requires the driver to keep in their possession
  • any document issued under the HVNL
  • heavy vehicle accreditations
  • transport or journey documentation.

Why did you receive a Notice to Produce?

If you have received a Notice to Produce then it is likely that you or someone you know is being investigated for an offence. Therefore it is important that you take the Notice to Produce seriously. Any information you provide will likely be used as evidence against you.

If you are charged with an offence your response to the Notice to Produce can assist you. The documents that you provide under the notice may support your defence or plea for leniency on sentencing.

It is therefore important to think strategically and carefully when you reply to a Notice to Produce.

Limitation on Notices to Produce

You should note that the authorities do not have unlimited powers under the Notice to Produce.  The RMS and NHVR have broad powers to investigate alleged breaches of the law but there are rules about when they can issue a Notice, including who can be issued with one and what information can be requested.

Sometimes you may not be required to comply with some or all of the Notice to Produce in circumstances where the authority has sought to issue a Notice beyond their power. For example, a Notice may be issued to the wrong individual, or the Notice may seek information that the authorities are not actually permitted to request.

There may be a “reasonable excuse” for not responding, in that the request is oppressive and requires you to produce a substantial amount of documentation. In this case you may be able to negotiate a sample size to be produced.

Another example of a “reasonable excuse” may be that the production of the document will result in waiving your legal privilege. In such circumstances, it is prudent to obtain legal advice to substantiate the claim for privilege over the document/s to satisfy the authorised officer that you have a “reasonable excuse”.

In any event a Notice to Produce should never be ignored without first seeking legal advice. You need to determine whether or not the Notice complies with the legislation. Otherwise business will likely find itself trouble if it chooses to ignore a notice.

The Type of documents and information that can be produced.

The scope of documentation/information which an authorised officer can request from a party to the supply chain is very broad and the legislation does not afford the recipient of a request with many ways to duck and weave the requests.

The types of documents which can be requested broadly fall under three categories:

1. Transport documentation: any contractual document which is directly or indirectly associated with the actual or proposed road transport of goods or passengers, to the extent that the document relates to the transport method or is relevant to the transaction for their actual or proposed road transport.

Examples of such documents include, bills of lading, consignment notes, container weight declarations, contracts of carriage, delivery orders and load manifests. 

2. Journey documentation: anything (other than transport documentation) which is directly or indirectly associated with a transaction for the actual or proposed road transport of goods or passengers using a heavy vehicle by any transport method or which relates to a particular journey or to journeys generally. Examples of journey documents include (without limitation) any or all of the following:

  • a document kept, used or obtained by a responsible person for a heavy vehicle in connection with the transport of goods or passengers
  • a workshop, maintenance or repair record relating to a heavy vehicle used, or claimed to be used, for transporting goods or passengers
  • a subcontractor’s payment advice relating to goods or passengers or their transport
  • information reported through an intelligent transport system, driver manuals or instruction sheets, mass records; and/or
  • records kept, used or obtained by the driver of a heavy vehicle used, or claimed to be used, for transporting goods or passengers, including a driver’s run sheet, a work diary entry, a fuel docket or receipt, a food receipt, a tollway receipt, a pay record, or mobile or other telephone record.

3. Documents relating to a responsible person for a heavy vehicle:  A responsible person for a heavy vehicle means any person having, at a relevant time, a role or responsibility associated with road transport using the vehicle.

There are several examples in the legislation of what a “responsible person” may be. A responsible person ranges from the obvious, being the owner of a heavy vehicle, to a person further up the chain, like an owner or registered operator of an intelligent transport system for the vehicle.

What do I do if I don’t have the requested information or documents?

Often the documents that are requested are the type that the business was legally required to keep.

Whatever you do, do NOT create fake or false documents to make it seem that you have complied with the Notice to Produce.  The production of false documents or information in response to a Notice to Produce is a serious offence and one that will be held against you when the Court decides the penalty for the original offence that was being investigated by the authority.

Speak to a lawyer if you do not have the requested documents to assist you in preparing a response that will put you in the best position to avoid further penalty.

So how do I respond to an authorised officer’s request?

It is important to ensure you are complying with an authorised officer’s request for documents/information, whilst also protecting and not additionally prejudicing any explanation or defence you may have.

Upon receiving a request for documents/information:

  1. Report the request internally to your compliance officer, manager or director
  2. Make a note of how long you have been given to comply with the Notice to Produce. If it is a short period and you are concerned that you will not be able to fully comply in that timeframe, request a short extension and any requests for additional time should be submitted well before the time for compliance expires
  3. Get legal advice as such requests give rise to potential legal liability and penalties for non- or partial-compliance and should be escalated appropriately. Your lawyer can assist you with understanding the full scope of documents which may need to be produced and will also consider whether the request falls within the scope of powers given to the authorities under the relevant legislation. If there is a request that goes beyond the power given to the authorised officer, your lawyer can advise you on whether to object to that request
  4. Conduct thorough searches of all your records. This means anything archived or anything which may be in the possession of a third party. The legislation requires that you provide documents/information in your possession or control. If documents are in the possession of a third party, but you have the ability to obtain the document, it is likely within your “control” and ought to be produced
  5. Consider whether you have a reasonable excuse not to comply with the directions. As stated above, the right against self-incrimination is expressly excluded as a ‘reasonable excuse’ not to comply. However there are other instances in which you may have a reasonable excuse.

Author: Meshal Althobaiti

* This article was originally published in CoR Adviser. The article is © 2020 Portner Press Pty Ltd and has been reproduced with permission of Portner Press.

Disclaimer
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:

Meshal Althobaiti

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