In November 2018, the National Heavy Vehicle Regulator (NHVR) released its National Compliance and Enforcement Policy (the Policy) which sets out the NHVR’s approach to compliance activities, investigations and enforcement.
The Policy states that the NHVR and its partner agencies will enforce the Heavy Vehicle National Law (HVNL) in a nationally consistent, proportionate, fair and risk-based manner.
According to the Policy, enforcement responses will be proportionate to both the duty holder’s behaviour and identified safety risk in each circumstance.
The National Road Transport Association (NatRoad) strongly supports this approach, but whether it becomes a reality remains to be seen.
The problem is that the HVNL is still littered with high fines for strict liability offences.
The lack of proportionality associated with these penalties, especially for minor offences, is exacerbated by annual indexation. Our members frequently complain about receiving fines for minor offences which cause no safety risk.
The Policy does not recognise the current constraints of the HVNL in terms of a large number of strict liability offences and how these will be dealt with under a risk-based approach.
A further problem is that the Policy does not apply to police officers, so they will continue enforcing the letter of the law.
Authorised officers have a range of escalating enforcement tools at their disposal ranging from warnings and directions through to improvement notices, defect notices, infringement notices, suspensions or cancellations of licenses or registrations and ultimately, prosecutions.
Infringement notices are punitive measures, whereas improvement and defect notices are remedial, requiring the duty holder to fix the issue causing the breach. The enforcement approach should favour a remedial response before punishment.
However, infringement notices are often the ‘go-to’ tool.
For example, NatRoad has become aware that in NSW a Safe-T-Cam will identify number plates not displayed correctly which will result in an infringement notice being issued for an unregistered vehicle – not a defect notice or a warning letter about a damaged or illegible numberplate, but a $1,392 fine including 4 demerit points for the driver and $692 for the owner for use of an unregistered vehicle.
How is the Policy going to change this situation?
Enforcement action should target the minority of operators who wilfully flout the laws and bring the whole industry into disrepute. With the new chain of responsibility provisions, NatRoad also wants to see the regulator focus on the practices of off-road parties.
All parties in the chain of responsibility must believe that enforcement is likely and therefore regulators must allocate sufficient resources to this element of the law.
The Policy mentions the principles of fairness, transparency and accountability.
To meet these principles, the NHVR needs to collect and publish information on the nature and outcome of enforcement activities in jurisdictions, including prosecutions.
The industry should feel confident that the NHVR is indeed applying a risk-based approach.
NatRoad applauds the good intentions of the NHVR, but until the HVNL is revised to be more risk-based and outcome focussed, NatRoad remains cynical about the words in the Policy translating into action on the road.