2021 saw a big uptick in the number of enforceable undertakings accepted by the National Heavy Vehicle Regulator (NHVR), a trend that confirms a shift in the regulator's approach to enforcement and penalising contraventions of the Heavy Vehicle National Law (HVNL).
Last year, the NHVR accepted a total of seven enforceable undertakings offered by companies alleged to have breached the HVNL. This was up from only two accepted by the regulator in 2020.
The enforceable undertaking regime became part of the HVNL in 2018. However, it was not until March 2020 that the NHVR first accepted an enforceable undertaking offered by an alleged offender. Line honours went to a construction company accused of breaching mass requirements, whose undertaking to commit very significant resources to improve the safety of its transport activities persuaded the NHVR not to prosecute.
In general, the NHVR may accept an enforceable undertaking if the alleged offender demonstrates an ability and willingness to:
- undertake organisational reform
- implement effective safety measures for transport activities.
Despite the emphasis placed on offenders cleaning up their own act, a notable feature of some recent enforceable undertakings is an investment in the safety of the heavy vehicle industry more broadly.
In November 2021, a transport operator committed to funding the development of a web-based driver education platform for the heavy vehicle industry, as part of its enforceable undertaking. The platform will provide engaging educational materials around key risks in the industry for use by other transport operators. The promise to develop heavy vehicle safety awareness campaigns also appears in a number of other undertakings accepted by the NHVR. Sharp-eyed readers may spot the products of these commitments in the coming months.
If your business faces prosecution for breaching the HVNL, consider whether proposing an enforceable undertaking to the NHVR may be appropriate and achievable. There is no one-size-fits-all approach to crafting such a proposal, but if 2021 is anything to go by, a firm commitment to overhauling safety practices, along with a little creativity, may be rewarded.
- This article was originally published in CoR Adviser. The article is © 2022 Portner Press Publishing Pty Ltd and has been reproduced with permission of Portner Press.
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