Introduction to the Heavy Vehicle National Law (HVNL)

The Heavy Vehicle National Law (‘HVNL’) is a national law governing the use of heavy vehicles on roads. The HVNL applies to vehicles exceeding 4.5 tonne gross vehicle mass (‘Heavy Vehicle’). The objectives of the HVNL include, to ensure public safety, manage the impact of heavy vehicles on the environment and road infrastructure, promote industry productivity and promote safe business practices.[1] In Victoria the HVNL is enforced by the National Heavy Vehicle Regulator (‘NHVR’) and Victoria Police.

Legislative Framework

In Victoria the HVNL is applied by the Heavy Vehicle National Law Application Act 2013 (Vic). The specifics of the law are found in the Schedule to the Heavy Vehicle National Law Act 2012 (Queensland). The HVNL Act is supported by 5 regulations which consist of:

  1. General Regulations
  2. Fatigue Management Regulations
  3. Mass, Dimension, Loading Regulations
  4. Registration Regulations
  5. Vehicle Standards Regulations

Chain of Responsibility (CoR)

Chain of Responsibility is embedded in the HVNL. Chain of Responsibility is a policy concept which imposes legal responsibilities in relation to the safety of transport activities on all parties involved in the transport activities.[2] The level of responsibility of a party depends on a number of factors such as, the functions the person or party performs, nature of the public risk, and the party’s capacity to control the risk.[3] Generally greater the level of control to manage the risk, the greater the responsibility the party will have.

All parties in the Chain of Responsibility have a primary duty under the HVNL, which is they must ensure so far as is reasonably practicable, the safety of the party’s transport activities relating to the vehicle.[4]

Risk Based Offences

Similarly to OHS legislation, the offences under the HVNL are risk based. A contravention can occur irrespective of whether harm or damage was caused. The categories of offences depend on the severity of the offence. There are four categories of offences which include:

  • Minor risk breach
  • Substantial risk breach
  • Severe risk breach
  • Critical risk breach

The penalties are dependent on the level of breach, minor risk breach offences have the most lenient penalties, where as critical risk breach offences have the most severe penalties.

Common Types of Offences

The common types of offences under the HVNL include:

  1. Offences relating to fatigue management – Such as false or misleading entries in work diaries
  2. Offences under mass management – Such as overweight vehicles
  3. Offences under load restraint – Such as insufficiently restrained loads
  4. Offences under vehicle standards – Such as poorly maintained heavy vehicles

Commencement of Proceedings

In Victoria a HVNL prosecution can be commenced by the NHVR or Victoria Police. Individuals and companies can both be prosecuted under the HVNL.

Upon being charged, a defendant will be served with a preliminary brief which will contain the charge sheet, summons, summary of facts, and a copy of the evidence relied on by the prosecution to support the alleged contravention(s). The evidence will depend upon the type of contravention(s) and may include witness statements, work diary records, vehicle registration information, photographs, vehicle speed readings and so forth.

The matter will be listed for a mention hearing in the Magistrates’ Court to determine how the matter will proceed. The defendant can decide to plead guilty, not guilty or seek an adjournment if there is a proper basis.

Alternatives to Prosecution

Under the HVNL there are several options available to defendants which can result in the prosecution discontinuing with the Prosecution.

Formal Warning

The authorising officer can issue a formal warning and discontinue with prosecution if the authorising officer believes the defendant had exercised reasonable diligence to prevent the contravention and was unaware of the contravention.[5] However a formal warning cannot be given in the following circumstances:

  1. Mass, dimension, or loading contravention of substantial or severe risk breach.
  2. Fatigue contraventions of maximum work requirement or minimum rest requirement of substantial, severe, or critical risk breach.

A formal warning can be withdrawn within 21 days by an authorising officer by giving notice to the defendant. Formal warnings can be a suitable option depending on the circumstances.

Enforceable Undertaking

An Enforceable Undertaking is an enforceable promise made by the promisor to comply with commitments and undertake specified activities in the time periods stipulated. If the promisor fails to comply with the undertaking, the prosecution can commence legal proceedings.

The prosecution can accept an Enforceable Undertaking by the defendant depending on the circumstances.[6] If an Enforceable Undertaking is accepted, the prosecution will discontinue with the prosecution in exchange for the defendant’s commitment to undertake organisation reform and to implement effective safety measures to prevent further contraventions.

The Enforceable Undertaking is drafted using the prescribed form available on the NHVR’s website. The NHVR has developed a Policy and Guideline for ‘Proposing an Enforceable Undertaking’.

Enforceable Undertakings are unlikely to be accepted in the following circumstances based on the above Guideline:

  1. For Category 1 Offences
  2. Where a death or very serious injury has occurred
  3. For minor offences
  4. Where prosecution has not commenced
  5. Where a trial has been held
  6. If the person proposing the undertaking has been convicted of:
    1. An offence against s26F, s27G, s26H of the HVNL
    2. Breach of duty under OHS or WHS legislation
    3. Failure to comply with an undertaking under HVNL or another law
    4. An offence under division 2 of chapter 13 of HVNL or an offence involving dishonesty and fraud punishable by imprisonment of 6 months or more
    5. Any other offence involving death, serious injury or illness of any person involved in the business

The benefits of an Enforceable Undertaking include avoiding prosecution, improvement of OHS measures in the business and reducing the likelihood of further contraventions. Enforceable Undertakings can be onerous, and the fulfilment of obligations can be time consuming and costly. Therefore, it should be carefully considered whether proposing an Enforceable Undertaking is appropriate in relation to the contravention(s).

Proposing Activities

When proposing activities under an Enforceable Undertaking, the focus should be placed on activities that can provide a tangible benefit to the business, industry, and the wider public. Examples of activities that could be proposed in an Enforceable Undertaking include:

  1. Conducting additional training such as Chain of Responsibility, load restraint, fatigue management
  2. Conducting external audits of business to identify and control OHS risks in transport activities
  3. Implementation of management systems or technological aids to improve compliance to HVNL
  4. Implementation of Electronic Work Diaries (‘EWD’)
  5. Hosting events to promote heavy vehicle safety
  6. Volunteering time with industry partners to improve heavy vehicle safety
  7. Making a donation to initiatives to improve heavy vehicle safety
  8. Raising awareness of heavy vehicle safety issues through publications
  9. Development of training materials or information webinars on specific heavy vehicle safety issues
  10. Making a video to raise awareness of heavy vehicle safety initiatives

If an Enforceable Undertaking is accepted, the prosecution will monitor its progress according to the activities committed to the time periods. This may include submitting evidence of completion of activities to the NHVR when required.

Infringement Notice

The prosecution can also issue an infringement notice to the defendant as an alternative to prosecution in court for prescribed offences that are infringeable.[7] The current payment level for infringeable offences is 10% of the maximum court imposed penalty for that offence.

Court Sanctions

The court has discretion to impose a number of sanctions under the HVNL.

Imprisonment

The court has the power to imprison individuals for certain contraventions under the HVNL. The court can imprison individuals for a category 1 contravention of the safety duty.[8]

Monetary Fines

The court has discretion to impose a monetary fine under the HVNL. Companies can be imposed with a maximum fine of 5 times the maximum fine for an individual.[9]

Injunction

The court has discretion to impose an injunction on an individual under the HVNL.[10] An injunction is a court order which requires a person to do something or refrain from doing something, such as contravening the HVNL. An injunction can also be obtained for failure to comply with improvement and prohibition notices.

Commercial Benefits Penalty Order

The court has the power to make a commercial benefits penalty order upon convicting a person for an offence under the HVNL.[11] This order requires the person to pay as a fine an amount estimated by the court to be the, ‘gross commercial benefit’ received by the person from the commission of the offence. In estimating the gross commercial benefit, the court will consider a number of factors such as monetary benefits, value of any goods involved in the offence and the distance over which the goods were transported.

Cancelling or Suspending Registration

The court has the power to cancel or suspend a vehicle registration, upon convicting a person for an offence under the HVNL.[12] The court can further make an order to disqualify a person from applying for registration for a specified period.

Supervisory Intervention Order

The court has power to issue a Supervisory Intervention Order (SIO) under the HVNL.[13] A SIO is a court order which requires a convicted person at their own expense to do stated things that will improve the person’s compliance with the HVNL. This may include conducting additional training, obtaining expert advice with compliance to HVNL, installing technological aids such as an Electronic Work Diary or implementing a management system to ensure compliance with HVNL. A SIO can only be issued for a maximum period of 1 year.

The court can only make an SIO order if it is satisfied the order is capable of improving the convicted person’s ability or willingness to comply with the HVNL with regards to the person’s history of offending. It is important to note the court has power to suspend other sanctions until the SIO ends.[14]

Prohibition Orders

The court has discretion to issue a prohibition order under the HVNL.[15] A prohibition order is a court order which prohibits a convicted person for having a stated role or responsibility associated with road transport. A prohibition order can be used to prohibit a person from acting in a certain role in a company.

However, a prohibition order cannot be used to prohibit a convicted person from driving a vehicle or having a vehicle registered under their name.[16]  The court is obligated to consider the appropriateness of an SIO prior to making a prohibition order with regards to the convicted person’s history of offending.[17] A prohibition order can only be issued for a maximum period of 1 year.

Compensation Orders

The court has discretion to order a convicted person to pay compensation to the road manager for damage caused to road infrastructure by the offence under HVNL.[18] The court will have regard to a number of factors in assessing the amount of compensation to be paid by the order.

Compensation orders cannot include compensation for personal injury or death, loss of income, or damage to property that is not part of the road infrastructure.[19]

 

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[1] Heavy Vehicle National Law 2013 (Victoria) s 3.

[2] ibid s 26A.

[3] ibid s 26A.

[4] ibid s 26C.

[5] ibid s 590.

[6] ibid s 590A.

[7] ibid s 591.

[8] ibid s 26F.

[9] ibid s 596.

[10] ibid s 596A.

[11] ibid s 597.

[12] ibid s 598.

[13] ibid s 600.

[14] ibid s 602.

[15] ibid s 607.

[16] ibid s 607(2).

[17] ibid s 608.

[18] ibid s 611.

[19] ibid s 614.