30 November 2022
The National Heavy Vehicle Regulator (NHVR) has accepted an enforceable undertaking (EU) from Origin Energy Services Limited (OESL) after the power retailer was charged with failing to respond to multiple notices from Transport for NSW, an authorised officer at the time, requesting information on a driver that did not divert into a weighbridge.
On 24 September 2021, a heavy vehicle failed to divert into a weighbridge as directed at 12-Mile in NSW. OESL was the registered operator of this heavy vehicle. Between 21 November 2021 and 26 January 2022, Transport for NSW issued three notices to produce to OESL requesting the name and home address of the driver in accordance with section 570A of the Heavy Vehicle National Law (HVNL). OESL did not respond to any of these notices.
Under the HVNL, failure to respond to such notices without reasonable excuse is an offence, with a maximum penalty of $10,000. It is not a reasonable excuse for a person to avoid these notices because complying might incriminate the person or make them liable for a penalty.
On 17 March 2022, Transport for NSW commenced a prosecution against OESL for failing to respond to the notices. OESL offered to enter into an EU, which was ultimately accepted. The NHVR took over the prosecution of OESL (and the regulation of heavy vehicles generally) from Transport for NSW on 1 August 2022.
The EU involved two initiatives:
Both initiatives, with a total estimated cost of $380,000, are to be completed within 12 months of the NHVR accepting the EU.
As with all EUs, whether the NHVR chooses to accept the EU is evaluated against its EU Guidelines, namely:
Considering all of the above criteria, the NHVR concluded that the nature and extent of the omission alleged against OESL warranted the acceptance of the proposed EU.
This is yet another example of NHVR’s preference for EUs over commencing or continuing prosecutions against companies for alleged breaches of the HVNL. It is easy to see why when you do a cost/benefit analysis.
As NHVR Director of Prosecutions Belinda Hughes aptly explained at the time of announcing the EU, “the value of this EU far exceeds the maximum fine the company would have received if this matter proceeded to court – with this outcome, the money will be reinvested into safety measures…the EU initiatives will deliver improved outcomes for an estimated five thousand staff employed by Origin energy (OESL’s parent company), as well as the wider transport industry.”
Authors: Nathan Cecil & Melanie Long
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