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Improvement Notices and how your business can respond to one

08 June 2020

#Transport, Shipping & Logistics

Published by Meshal Althobaiti

Improvement Notices and how your business can respond to one

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 about the right ways to manage their obligations and the National Heavy Vehicle Regulator (NHVR) makes an example out of companies with deficient CoR policies, procedures and working practices.  

The HVNL gives regulators such as the NHVR a mixed bag of enforcement tricks. Some, such as infringement notices and court prosecution, are punitive. Others are intended to be remedial. One example of a remedial enforcement tool is an Improvement Notice. An Improvement Notice will require you to take a specified action to improve safety. Failure to comply with a notice is an offence.

Improvement Notices

An Improvement Notice may be issued where there is or has been a breach of the HVNL. It is a formal notice issued under s 572 of the HVNL. The notice identifies areas at risk of breaching the HVNL in your business operations, and requires you to take steps to address the issue. Improvement Notices are considered to be one of the more educative and persuasive enforcement options available under the HVNL in order to ensure compliance with its requirements.

An Improvement Notice will ordinarily follow a Notice to Produce or Direction to Produce Information or Documents. However, in serious transport incidents, an Improvement Notice may be issued at the same time as a Notice to Produce or Direction to Produce Information or Documents (for example, if there has been an accident involving a fatality).

Who can issue an Improvement Notice?

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. Authorised officers are those who are formally appointed by the NHVR, typically from the ranks of:

  • the NHVR
  • State or Territory police officers
  • State or Territory road safety authority officers, e.g. RMS, VicRoads, Main Roads.

Not all authorised officers are empowered to issue an Improvement Notice. Only those authorised officers who are formally authorised under their terms of appointment can issue an Improvement Notice.

Is the Improvement Notice valid?

An Improvement Notice can only be issued where an authorised officer:

  • reasonably believes that you/your business has contravened or are contravening a provision of the HVNL
  • in the circumstances, it is likely that the contravention will continue or be repeated.

An Improvement Notice must be issued in the approved form and must set out the following:

  • that the authorised officer reasonably believes that a contravention has occurred or is occurring
  • that the authorised officer reasonably believes that the contravention will likely continue or be repeated
  • the reasons for the above belief
  • that you/your business are required to take steps to stop the contravention from continuing to occur or occurring again, or address the matters or activities giving rise to the contravention
  • the time within which you/your business must take the above steps
  • how you/your business is to report to the authorised officer to satisfy them that you/your business has taken the above steps 
  • your rights to a review of or appeal the decision to issue you/your business with the Improvement Notice.

An Improvement Notice is not required to set out the steps that you/your business is required to take to address the contravention and stop it from occurring or occurring again. However, an Improvement Notice may set out the steps suggested by the authorised officer.

What to do if you receive an Improvement Notice and your options

There are three options available when you receive an Improvement Notice:

1. Comply with the terms and conditions of the Improvement Notice with a view to being issued a Clearance Certificate:

  • the timeframe to comply with the Improvement Notice is a minimum of seven days, unless the authorised officer is satisfied the person can comply earlier
  • if an Improvement Notice has been complied with, an approved authorised officer may issue a “Clearance Certificate”. Once a Clearance Certificate has been issued, each requirement of the Improvement Notice as stated within the certificate stops being operative.

2. Seek and apply for an internal review through the relevant officer:

  • you may apply for review of the Improvement Notice through the relevant officer who issued the Improvement Notice to you. Your application must be in writing, set out the reasons for requesting the review and include any supporting evidence
  • if your application is successful, the Improvement Notice may be amended or revoked by the relevant officer. If the Improvement Notice is revoked by the relevant officer, you will be issued with a clearance certificate and, as stated earlier, the Improvement Notice issued to you stops being operative.

3. Challenge the Improvement Notice:

  • you may seek to bring the Improvement Notice before the court for review in circumstances where the terms and conditions are onerous and incapable of being performed satisfactorily or are unnecessary in order to achieve the stated objective or outcome of the Improvement Notice.

If you receive an Improvement Notice, you must take the steps set out in the notice and/or take other steps to address the contravention and stop it from occurring or reoccurring. This must be done within the timeframe set out in the Improvement Notice.

While the Improvement Notice may set out recommended steps, you are not bound to take those steps. You can take other steps that have the same remedial outcome. However, you may have to justify how these steps are equivalent to the ones recommended to satisfy the authorised officer and obtain a Clearance Certificate. As such, if you can take any steps recommended, it is usually helpful to do so.

Steps could include changing your business practices or transport documentation and contracts, or providing additional information, instruction, training and supervision to staff. The Improvement Notice must allow you at least seven days to take those steps and respond to the authorised officer. However, that period can be shortened if it is reasonably practicable for you to take those steps sooner, and doing so would not result in greater cost or interruption to your business. So, it is very important that you consider and respond to an Improvement Notice as soon as possible.

The Improvement Notice will set out how you are to report back to the authorised officer, usually through a dedicated email address.

Request for more time

As discussed above, the time mandated for compliance with an improvement notice can be very short, typically seven days. Where the compliance period is too short to develop and implement a sufficient response, you may be able to seek an extension of time for compliance with the improvement notice.

However, an extension will not likely be granted if there is a real and continuing risk of breaches occurring during the extension period, so you may have to satisfy the authorised officer that no breaches are likely to occur during the extension period or implement a temporary stop-gap solution.

Contravention of an Improvement Notice

A person must comply with the Improvement Notice unless there is a reasonable excuse not to (or the notice has been revoked under section 575 of the HVNL). The failure to comply with an Improvement Notice is an offence under the HVNL and may result in a penalty of up to $11,210 for the 2019/20 FY.

Conclusion

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.

So act now before being forced do so later with an Improvement Notice.

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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