16 October 2019
Published by Rebecca Niumeitolu
The Heavy Vehicle National Law (HVNL) is an intricate statute that contains a wide range of mechanisms to address the contraventions of its terms. This article walks you through the nuts and bolts of the nine enforcement mechanisms that may be used in response to HVNL offences.
1. Formal warnings
An authorised officer can issue a formal warning if they reasonably believe that a person has contravened the HVNL but exercised reasonable diligence to prevent the contravention and was unaware of it. Formal warnings cannot be given for substantial or severe risk breaches of mass, dimension or loading requirements or for substantial, severe or critical risk breaches of work and rest requirements.
2. Enforceable undertakings
A person can offer an undertaking to the Regulator in respect of a contravention or an alleged contravention of the HVNL. An enforceable undertaking may be accepted where the Regulator or authorised officer reasonably believes that the undertaking will ensure that the person complies with the HVNL.
3. Infringement notices
An authorised officer can issue an infringement notice as an alternative to prosecution for an offence under the HVNL. Usually infringement notices are issued for ‘strict liability’ offences; that is, where a person engages in non-compliant conduct and that in and of itself constitutes an offence, without the authorised officer or regulator needing to prove as well that the offender had the mental intention or fault to engage in that conduct. Infringement payment levels are indexed each year and available on the National Heavy Vehicle Regulator website here. They are set at 10 per cent of the maximum penalty for an HVNL contravention that can be imposed by the Court.
A court may issue a penalty against a person whom it finds guilty of an offence under the HVNL. Maximum penalties are set out under the provisions of the HVNL. For example, if a person is found guilty on indictment for a category 1 contravention of a primary duty, then the maximum penalty that a court may impose is $3 million for a corporation or $1 million for an individual. If a provision of the HVNL does not distinguish between an individual and corporate penalty, the maximum penalty under that provision is to be taken as the maximum penalty for an individual and the maximum penalty for a company will be five times the individual’s maximum penalty. For example, the maximum penalty for an individual for tampering with a speed limiter fitted to a heavy vehicle under s 93(1) is $11,210. Therefore, the maximum penalty for a corporation is $56,050.
In determining the appropriate penalty to impose on a person, the court will take into account various factors listed under the HVNL, such as risk of accelerated road wear, damage to infrastructure and public safety. The court will also take into account the objects of sentencing, listed under the crimes sentencing procedure legislation of each state – such as punishment, deterrence, rehabilitation and community protection.
5. Supervisory intervention orders
A court can make a supervisory intervention order requiring a person, at the person’s own expense, to take certain actions. These orders last for one year. They are commonly made where a company has committed an offence and there is some systematic reason for that offence (for example, a lack of staff training or compliance procedures). Often, the underlying purpose of such an order is to rehabilitate a business and get it into a position where it can comply with the HVNL.
6. Prohibition orders
A court can make a prohibition order to prohibit a person from having a specific role or responsibility associated with road transport. The order can last for a maximum of one year. These orders are made when the court finds a person guilty of an offence under the HVNL and considers the person to be, or to be likely to become, a systematic or persistent offender against the HVNL.
7. Compensation orders
Compensation orders often arise where there has been damage to road infrastructure as a result of an offence. The amount of a compensation order is the amount that the court considers appropriate for loss incurred, or likely to be incurred, by the road manager.
Compensation orders are not to be made in respect of personal injury or death, loss of income or property that is not a part of the road infrastructure. Usually compensation for these matters would be brought by way of private civil proceedings.
A court can also order an injunction requiring a person to cease contravening the HVNL. These orders are relatively rare, as they would need to arise in circumstances where there continues to be a persistent breach by the offending party.
Imprisonment is the most severe enforcement mechanism that can be imposed under the HVNL against individuals. An individual can be sentenced to a maximum of 5 years’ imprisonment if they commit a category 1 breach of the primary duty.
Executives should note that breaches of their executive duty under s 26D can also expose them to the risk of imprisonment, if they fail to exercise due diligence to ensure that their businesses comply with, among other things, their primary duty.
A final note on enforcement options
The diverse enforcement options available under the HVNL are aimed at accommodating the wide variety of activities taking place in the supply chain relating to heavy vehicles; the personal circumstances of specific CoR parties may also make one enforcement mechanism more favourable than another. Regulators have a discretion as to what enforcement approach to take in the circumstances. Often, the less intrusive, or ‘softer’ enforcement approaches are applied as against those organisations who can demonstrate that they are attempting to meet their obligations, but have misjudged what is required. The more intrusive options are applied as against those organisations that disregard their obligations. What enforcement tools would you prefer to be on the receiving end of?
Author: Rebecca Niumeitolu
* A version of this article was originally published in CoR Adviser. This article is © 2019 Portner Press Pty Ltd and has been reproduced with permission of Portner Press.
Published by Rebecca Niumeitolu