Advice from industry experts is always invaluable. In Toll Australia's April 2021 Road Transport Safety and Compliance Newsletter, Ray Hassall, Director of Statutory Compliance at the National Heavy Vehicle Regulator (NHVR), sat down to answer some questions about operators' compliance and the NHVR's approach to enforcement.
Q: Can you explain the NHVR's philosophy when it comes to enforcement?
A: The NHVR aims to be a modern regulator, working with partner agencies and industry to drive a safe and productive heavy vehicle industry and supply chain.
Pivotal to our national compliance and enforcement approach are:
- a collaborative model for the planning and delivery of compliance and enforcement activities. By working with partner agencies and industry, we are able to develop strategies that emphasise targeted compliance activities, interventions or enforcement responses that are proportionate to both the industry participant's behaviour and identified safety risks
- an intelligence and data-driven approach to regulatory activities, enabling delivery of a truly intelligence-led heavy vehicle regulatory environment to deliver positive safety and productivity outcomes
- a focus on performance-based outcomes rather than a prescriptive approach to regulation (where appropriate) that allows us to better target enforcement efforts at those parts of industry not doing the right thing, enabling safe operators to get on with doing business.
This philosophy is underpinned by the National Regulatory Model, our pathway to becoming a modern intelligence-led, risk-based regulator. This approach can look very different to traditional heavy vehicle enforcement action where a vehicle might be intercepted at random, the driver's work diary checked and the vehicle weighed for compliance with mass limits, and an infringement notice issued to the driver (usually) for any detected non-compliance with prescriptive rules. We use data to identify higher risk entities and target them on road or off road and look for the underlying causes of non-compliance, wherever they arise.
Q: Are you able to tell us what resources are dedicated to enforcement across the country?
A: NHVR employs:
- an investigative team of eight based in our Brisbane and Adelaide offices
- a proactive compliance team of nine in our Victorian office
- an intelligence branch with seven staff located in our Brisbane and Adelaide offices
- more than 70 Safety and Compliance Officers across Victoria, South Australia, Tasmania and the ACT supported by our Brisbane-based National Operations Team.
In addition to these dedicated resources, many other teams within NHVR provide support to the enforcement function.
Compliance and enforcement services for the HVNL in Queensland and NSW are delivered exclusively by the Department of Transport and Main Roads (TMR) and Transport for NSW (TfNSW). TfNSW employs 14 investigation officers delivering HVNL-related services under a service level agreement. TMR most recently reported 12 investigation officers delivering HVNL-related services under a service level agreement. Some police services have also appointed officers under the HVNL.
Q: Since the NHVR opened its doors in 2014, how many sanctions and what kind of sanctions have been issued against parties other than drivers and operators?
A: All compliance and enforcement services were delivered by road agencies under delegation in 2014 and for several years afterwards.
The overwhelming majority of enforcement actions undertaken before the changes to Chain of Responsibility (CoR) laws in October 2018 were court-based enforcement or infringement notices against drivers, and to a lesser extent, operators.
Since that time, the NHVR has actively worked to address this imbalance, and in 2020:
- accepted two enforceable undertakings
- issued two prohibition notices
- issued multiple improvement notices.
We have also invested in building capability and systems to better identify and respond to offences committed by parties other than drivers and operators. This includes the formation of an investigations team to exclusively target serious breaches of the HVNL committed by all parties in the supply chain, including executive officers.
Q: How aware do you think customers are about their responsibilities under the HVNL and, in particular, their obligations under the primary duty?
A: We regularly survey the industry on a range of topics, including their obligations under the HVNL. Our most recent industry-wide survey, in late 2020, indicated a relatively high awareness of primary duty obligations. We work tirelessly to educate the industry and raise awareness of safety obligations across a range of channels.
These channels include in-person information days across the country, industry and social media platforms, as well as a suite of website and digital communication tools.
Q: Is the NHVR currently engaged (or been recently engaged) in any investigations involving parties other than drivers and operators? What can you tell us about those investigations?
A: Yes. In February 2021 alone, the NHVR laid charges in Victoria against a consignor as a result of load shift for containerised goods and in South Australia against a manufacturing company for a breach of duty in relation to an alleged failure to properly restrain a load.
We also recently laid charges against a company director for a breach of the obligation to ensure due diligence in relation to BFM obligations.
While these charges are yet to be heard and the defendants are entitled to a presumption of innocence, they clearly demonstrate our intent to hold the supply chain accountable.
We have an ongoing interest in what we are referring to as 'engine remapping', having entered premises with police in several jurisdictions to obtain evidence of this form of offending. These investigations have so far resulted in improvement notices, as well as charges being laid against an operator.
Q: What can we expect to see from the NHVR in terms of interventions along the supply chain in the future?
A: Implementation of the National Regulatory Model includes:
- expansion of our proactive compliance function to help identify and address issues before adverse events occur
- increased use of improvement notices and intervention orders to address the underlying causes of unsafe behaviour
- better risk modelling to target non-compliant activities and reduce our interactions with compliant parties
- improved awareness and use of the Heavy Vehicle Confidential Reporting line
- sharing data with other aligned regulatory agencies.
Q: What advice does the NHVR have for operators that may be struggling with customers that don't hold up their end of the CoR bargain?
A: It is vital for all links in the supply chain to be aware of their safety obligations and the consequences of failing to meet them.
While the NHVR devotes significant time and resources to education and awareness, we encourage everyone in the freight and supply chain to be safety advocates. This can be as simple as helping others become familiar with the Master Code or to discuss safety and productivity with the regulator. Importantly, if they aren't a safe contracting party, don't deal with them and let us know.
The HVNL Sanction Pyramid
To put the above into perspective, the below HVNL Sanction Pyramid graphically sets out the possible enforcement action and penalties associated with breaches of the HVNL:
The NHVR will pursue comprehensive enforcement of any breach of the HVNL. This includes improvement notices and behavioural modification for (more common) minor breaches (represented by the bottom of the pyramid) to the more grievous court sanctions and penalties for more serious offences - which are represented by the top of the pyramid.
Remember, the best way to avoid enforcement action and penalties under the HVNL is to ensure that you don't commit offences in the first place. The only way of doing that is to ensure that you have robust systems in place to help you and your business do things the right way.
The NHVR is dedicated to ensuring industry-wide compliance with the HVNL. It has extended its practice to now oversee and ensure the safety of the operators in the industry and to customers whose demands are causing operators to breach the HVNL through a breach of the primary duty.
The NHVR is undertaking and implementing new strategies to ensure that all links in the chain comply with all of their safety obligations before an adverse event occurs. It is also critically important that the transport industry does all they can to ensure that they meet their safety obligations to assist the regulator in making the industry safer.
At the end of the day, it is incumbent on the industry to make sure that they are compliant with the HVNL, not because they may incur a penalty for breaches of the law, but because it makes the transport industry a safer place to work.
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.