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What makes the National Heavy Vehicle Regulator tick?

25 February 2020

#Transport, Shipping & Logistics

Published by Rebecca Niumeitolu

What makes the National Heavy Vehicle Regulator tick?

The increasing purview of the National Heavy Vehicle Regulator (NHVR) in enforcement of the Heavy Vehicle National Law (HVNL) across the states and territories has us asking, what makes it tick? In this article we look at the grounds on which the NVHR decides to pursue charges against a party in the chain of responsibility (CoR).

NVHR’s prosecutorial functions

Section 659 of the HVNL sets out the NHVR’s functions. This relevantly includes bringing and conducting proceedings in relation to contraventions or possible contraventions of provisions of the HVNL and conducting or defending appeals and defend appeals from decisions on review arising therefrom.

When to prosecute?

Factors that the HVNR’s takes into account when deciding whether to prosecute are set out in the NHVR’s Prosecution Policy and the Prosecution Policy of the Commonwealth.

If you have ever wondered why some people get caught up in charges while others don’t for conduct that’s ostensibly the same, it’s because more goes in to the NHVR’s decision to prosecute than the mere existence of facts that a contravention or suspected contravention of the HVNL has occurred. As a public agency its decision to commence proceedings is geared towards public utility.

Factors that it takes into account include, but are not limited to:

  • resources available for worthy prosecutions
  • the impact that the prosecution will have in changing the accused’s conduct, penalising offenders and deterring future offenders
  • whether there are reasonable prospects of conviction based on an assessment of admissible, substantial and reliable evidence that the accused committed the offence
  • whether there is a public interest in prosecution
  • the seriousness of the offending behaviour with priority to cases involving fatalities, serious injury or high safety risks. This is why many reported cases commenced by enforcement agencies under the HVNL involve more than one-off breaches and tend to show systemic failing of a business or CoR parties to comply with HVNL obligation
  • whether the offending behaviour is serious enough to elevate it to a Chapter 1A offence if prospective charges concern an alleged breach of the primary duty. Conduct said to contravene the primary duty should be more serious where maximum penalties for non-compliance are significantly higher than other penalties under the HVNL, going up to $3,364,540 for companies and five years imprisonment for individuals.

Aside from the seriousness of the offending behaviour, the NHVR will also give priority to prosecute cases that undermine enforcement mechanisms under the HVNL. For example it prioritises the prosecution of cases involving the impersonation of authorised officers, the obstruction of authorised officers’ exercise of their powers, failures to comply with enforceable undertaking or notices issued pursuant to the HVNL and offences where employers discriminate or victimise employees (e.g. where employees report HVNL breaches).

Who to go after?

The NHVR’s policy provides that it targets persons who are primarily responsible for the alleged contravention in its prosecutions.

When to back-down or alter its approach? 

The NVHR is likely not to pursue charges if there is insufficient prospects or public interest in prosecution or where it could undermine confidence of the community in the criminal justice system.

The NVHR may also change its tack during charge negotiation. An accused and the NHVR have the opportunity to negotiate the charges that the NHVR will proceed on, if any. Consequences of charge negotiation could be that:

  • the accused pleads guilty in exchange for lesser charges
  • charges laid against the accused may be reduced, dropped altogether or the modified (e.g. from a severe risk breach to a substantial risk breach)
  • the accused could approach the NHVR and offer to make a voluntary promise to undertake organisational reform and to implement effective safety measure for transport activities. The HVNR’s policies around agreeing to such promises, otherwise known as enforceable undertakings is set out in its Enforceable Undertaking Policy. Importantly, the NHVR does not solicit enforceable undertakings and it is for the accused to offer them. In considering whether to drop charges in favour of an enforceable undertaking, the NHVR may have regard to whether the ‘alleged offender demonstrates an ability to effect profound reform of their activities to improve safety and to benefit the community in ways not able to be achieved by other sanctions. Advantages of making an offer such as this are that an accused will not have a conviction recorded against it and that reforms are likely to prevent long-term HVNL breaches. Although, any enforceable undertakings will be published on the NHVR’s website.

Conclusion

The NHVR currently employs safety and compliance officers to enforce compliance in South Australia, Tasmania, the ACT and Victoria. Its presence on our roads, which is anticipated to grow in other HVNL participating States is bound to put the NHVR’s prosecution policy into play on a more regular basis. CoR parties should be aware of its policy not only from a basic enforcement standpoint but also in the event that they fall subject to it and need to negotiate their liability exposure.

Author: Rebecca Niumeitolu

* A version of this article was originally published in CoR Adviser. This 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

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