Enforcement mechanisms under the HVNL – Rail, Road & Cycling

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The Heavy Vehicle National Law (HVNL extension) provides for a wide range of enforcement mechanisms. Often in our monthly articles we look in-depth at one or two of these mechanisms, so it be can easy to lose track of the bigger picture. In this article, we will give you an overview and quick rundown of all the enforcement mechanisms available to authorized officers, National Heavy Vehicle Regulator (NHVR) and the courts under the HVNL.

Formal Warnings

At the ‘less serious’ end of the enforcement spectrum are formal warnings. A formal warning can be issued by an authorized officer (being an authorized police officer or any person specified in the HVNL to be an authorized officer), if they reasonably believe that a person has contravened the HVNL but has 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.

Enforceable undertakings

Currently, enforceable undertakings (EUs) are a popular enforcement mechanism with the National Heavy Vehicle Regulator (NHVR). An EU is when a person (ie an individual or company) offers to make an undertaking to the NHVR in respect of a contravention or an alleged contravention of the HVNL. This offer will include an undertaking to, for example, provide further training to the company’s employees or invest in industry education or to upgrade their company’s equipment. An EU will be accepted where the authorized officer or NHVR reasonably believes that the person is willing and capable of complying with their obligations under the undertaking.

Infringement notices

An authorized officer can issue an infringement notice as an alternative to prosecution of an offense under the HVNL. Usually infringement notices are issued for ‘strict liability’ offenses under the HVNL. Strict liability offenses are those where non-compliant conduct in of itself constitutes an offence, such that the contravening person’s intention or fault is irrelevant to the contravention.

Infringement payment levels are indexed each year and available on the NHVR website. They are set at 10 per cent of the maximum penalty for an HVNL contravention that can be imposed by the Court.

Penalties

A court may issue a penalty against a person who it finds guilty of a contravention under the HVNL. Maximum penalties are set out under the provisions of the HVNL. In determining the appropriate penalty to impose on a person, the court will take into account various factors listed under the HVNL. For example, the 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.

Supervisory Intervention Orders (SIOs)

SIOs are court orders which require the convicted person, at their own expense and for a stated period of no more than a year, to carry out a range of things to improve their current and future compliance with the HVNL. SIOs will only be ordered by a court if it is satisfied that the person is capable of improving the convicted person’s ability or willingness to comply with the HVNL.

Prohibition orders

A court can make a prohibition order to prohibit a person from having a specific role or responsibility associated with road transport. Like SIOs, the order can only last for a maximum of one year. These orders are made when the court finds a person guilty of an offense under the HVNL and considers the person to be, or likely to become, a systematic or persistent offender of the HVNL.

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.

Injunctions

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

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 five years’ imprisonment if they commit a category 1 breach of the primary duty.

Executives should note that breaches of their executive duty under s26D of HVNL 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.

Conclusions

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 and a range of offenses – from less to more serious. This includes not just the act itself, but also the attitude and actions of the person before and following the incident that is the subject of the contravention. Therefore, the enforcers of the HVNL (ie authorized officers, the NHVR and the courts) have some discretion when it comes to choosing which enforcement mechanism(s) to impose and consideration will be given to all the surrounding circumstances.

This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader’s specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.

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