Prohibition notices are back in the NVHR spotlight

The National Heavy Vehicle Regulator (NHVR) has been busy with its alternative enforcement tools under the Heavy Vehicle National Law (HVNL). 

In November 2020, off the back of investigations into fatigue management and safety practices, the NHVR issued prohibition notices to two related companies, Punjab Roadtrains Pty Ltd trading as Auswide Transport Solutions and Southern Cross Freight Lines, in November and which were subsequently lifted. Also in November, the NVHR lifted a prohibition notice issued to Sidhu Investments (Qld) Pty Ltd trading as Auswide Linehaul Services (ALS).

With the potential to see more action in this space, this article provides guidance on the grounds on which the NVHR can issue prohibition notices and options for businesses on whom they are imposed.

What is a prohibition notice?

A prohibition notice is a direction by an authorised officer to a person that prohibits that person from carrying on an activity or carrying on an activity in a certain way.

When can a prohibition notice be issued?

A prohibition notice can only be issued if the authorised officer reasonably believes that an activity involving a heavy vehicle is occurring or may occur that will involve an immediate or imminent serious risk to the health or safety of a person.

Who can a prohibition notice be issued to?

It can only be issued to a person who has control over the activity to which the prohibition notice is directed.

In what format can a prohibition notice be issued?

A direction that is pursuant to a prohibition notice can be given both verbally or by written notice. If given verbally, the authorised officer must give notice of it in writing as soon as practicable after giving the verbal direction. 

Section 576B of the HVNL provides that a written prohibition notice must include:

• a statement that the authorised officer believes they have grounds to issue the notice
• identification of the activity that the authorised officer says involves safety risks
• identification of the provision under the HVNL the authorised offer believes is or is likely to be contravened by the activity.

A notice can also include directions to cease or modify any activities giving rise to CoR risks.

What can you do if you are issued with a prohibition notice?

You broadly have two options:

• you can comply with the prohibition notice and seek to rectify risks associated with your heavy vehicle activities, as identified in the notice
• you can contest the application of the prohibition notice by seeking internal review and, if that is not successful, an appeal.

How do you appeal with a prohibition notice?

As appeals are technical, it can be helpful to obtain legal advice to guide you through this process.

Generally, there are usually two layers to the internal review or appeal process. 

1. Staying the application of the prohibition notice

‘To stay’ the prohibition notice means to stop its application.

It is important that you take note of when the direction under the prohibition notice applies to you. If it applies immediately, you should move swiftly to seek to stay the application of the prohibition notice. This is because it continues to apply until and unless it is stayed or overturned on internal review or appeal.

A failure to comply with a prohibition can result in a penalty of $11,390 for individuals and $56,950 for companies (as at the date of this article).

2. Seeking to overturn the prohibition notice altogether

You only have 28 days after being notified of the prohibition notice to appeal it.

This is unless you obtain an extension of time from the NHVR or, request and receive a statement of reasons for the prohibition notice, in which case the period of appeal only starts once you are given the statement of reasons. It can be helpful to ask for a statement of reasons if you are unclear as to the basis for the prohibition notice being issued to you.

The NHVR website provides a form for lodging internal review applications. Usually, it is recommended that when completing the form, you attach:

• the original prohibition notice issued to you
• any statement of reasons provided by the authorised officer
• any further details of why you say the prohibition notice should not apply to you. Grounds for review are varied, it might include that the prohibition notice is issued to you when you have no control over the relevant activity. Alternatively, you could seek to dispute that the basis on which the authorised officer issued the prohibition notice is affected by error – perhaps you did not have any contravention of the HVNL that lead to the notice being issued, perhaps there were no reasonable grounds for the officer to reasonably believe your activities involve an immediate or imminent serious risk to the health or safety of a person. 

What if you don’t comply with the prohibition notice?

As stated above, failure to comply with a prohibition notice can lead to stiff penalties – $11,390 for individuals and $56,950 for companies.

Is a prohibition notice the same as a prohibition order?

No. A prohibition notice is issued by an authorised officer in circumstances where the person that is the subject of the notice has not been charged and convicted for contraventions under the HVNL. Whereas a prohibition order is an order issued by court after a person is convicted of offences under the HVNL.

What is the end-point of a prohibition notice?

A prohibition notice can be lifted once the authorised officer is satisfied that you have remedied activities that could pose a risk to a person’s health or safety. In the case of ALS, the NHVR lifted the prohibition notice because it believed that ALS had taken sufficient steps to rectify safety risks associated with its transport practices, which included giving training to drivers, introducing controls for fatigue management, conducting inspections on its vehicles, engaging an external safety consultant and installing real-time monitoring of driver fatigue.

Author: Nathan Cecil 

• 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 article is accurate at the date it is received or that it will continue to be accurate in the future.

Published by:

Nathan Cecil

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