Artboard 1Icon/UI/CalendarIcons/Ionic/Social/social-pinterest

Proceed with caution: Responding to notices to produce

15 September 2020

#Transport, Shipping & Logistics

Published by:

Rebecca Niumeitolu

Proceed with caution: Responding to notices to produce

Authorised officers have information-gathering powers under the Heavy Vehicle National Law (HVNL). These include the power to require a responsible person for a heavy vehicle to make available, or to produce, certain business documents and information relating to heavy vehicles and responsible persons for them (notice to produce) for inspection.

This article provides tips for businesses that receive notices to produce and to provide information under the HVNL.

Tip 1: Seek legal advice

Responses to notices to produce documents and information can be used by regulators as a springboard for further enforcement actions, charges or investigations under the HVNL. Accordingly, if you receive a notice to produce, and have the resources, it can be helpful to seek legal advice.

A lawyer can guide the disclosure process and advise you on the risks associated with disclosing information to the regulator. A lawyer may also be able to assist you in planning potential defences if you are aware that a notice to produce has been issued in the context of suspected contraventions of the HVNL.

Tip 2: Diarise the date when you are expected to provide a response to the notice

Diarise the date for compliance with the notice to avoid the risk of not meeting the deadline and exposure to pecuniary penalties.

It is an offence not to comply with notice to produce unless you have a reasonable excuse. For example, non-compliance with a notice to produce:

  • under section 569(1) - attracts maximum penalties of $33,700 for companies and $6,740 for individuals
  • under section 570(1) - attracts maximum penalties of $33,700 for companies and $6,740 for individuals
  • under section 570A - attracts a maximum penalty of $56,050 for a company and $11,210 for an individual.

If the notice to produce is broad and requires significant disclosure then you may consider writing to the relevant regulator to seek an extension for complying with the notice. Ensure that any extension you receive is in writing.

Tip 3: Ensure the notice to request is consistent with the authorised officer’s powers under the HVNL

Generally, where criminal proceedings could follow from a notice to produce, the aim is to provide only the documents and information that is strictly required from you and no more. You are not required to provide any documents or information requested that are not supported by a power under the HVNL.

For example, if an authorised officer included in a request to provide information pursuant to section 570, a request to attend your business premises to interview staff, you would not be obliged to provide such access to your site and employees because that request falls outside the scope of an authorised officer’s power under section 570.

As another example, a request under section 570 must be made for compliance purposes. If it is not apparent that the request is being made for compliance purposes, then this should be clarified prior to disclosing information to authorised officers.

Tip 4: Ensure that you do not disclose documents that are subject to legal professional privilege

Generally, legal professional privilege covers confidential communications and documents made or prepared for the dominant purpose of a lawyer providing legal advice. For example, emails between your business representatives and lawyers in which lawyers provide advice on the business’ obligations under the HVNL, risks of liability or ways to manage a breach of the HVNL.

Section 735A of the HVNL provides that nothing in that law compels a person to give information that is the subject of legal professional privilege to another person. This means that when responding to a notice to produce, you can exclude such communications prepared for the dominant purpose of seeking or providing legal advice.

Tip 5: You can’t avoid disclosure on the grounds that compliance might incriminate you or expose you to liability

Section 587 of the HVNL provides it is not a reasonable excuse for a person not to comply with a requirement imposed by an authorised officer, such as a requirement to comply with a notice to produce, because compliance might incriminate you or make you liable to penalty.

Businesses concerned that disclosure might incriminate them might consider with their lawyers whether there are alternative protections from disclosure, such as that information is covered by legal privilege, as well as options for planning ahead in view of potential criminal proceedings. 

Tip 6: You are entitled to appear with a lawyer if called to give oral evidence

Section 570A enables an authorised officer to issue a notice where the officer reasonably believes a person is capable of giving information, providing documents or giving evidence in relation to a possible contravention of a safety duty or executive duty, or that will assist to monitor or enforce compliance of such duties. It also allows authorised officers to require people to give oral evidence.

If required to give oral evidence, you can appear with a legal practitioner. While not mandatory, having a legal practitioner can be helpful to ensure that the scope of questions asked by the regulator are in line with the terms of section 570A and can offer comfort to people giving information in what can sometimes be an intimidating situation.

Tip 7: If you give oral evidence, ask for a transcript

You can ask for a transcript of your interviews with regulators. This can be helpful for planning possible defences and appeals against appealable decisions made by regulators that concern the information you provide to them under a notice to produce.

Author: Rebecca Niumeitolu

  • 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:

Rebecca Niumeitolu

Share this