If you're an employer operating heavy vehicles in NSW, understanding how an Enforceable Undertaking (EU) works under the Heavy Vehicle National Law (HVNL) could be critical to your legal strategy. When facing allegations of non-compliance, knowing who initiates the charge – and how that affects your legal options – can significantly impact strategic decision-making.
In the event of an alleged contravention of the HVNL, the National Heavy Vehicle Regulator (NHVR) may accept an EU as an alternative to prosecution. There are detailed guidelines and discretionary factors the NHVR apply when considering EU proposals. In 2023-2024, 16 EUs were accepted.
EUs have long been a useful feature of responsive regulatory frameworks. In the context of the HVNL, they represent an opportunity for duty-holders who might otherwise be criminally convicted and punished, to instead implement safety programs in relation to transport activities relating to a heavy vehicle. Those programs can significantly improve safety outcomes of individuals working in such activities, and more generally, everyone else who use public roads on which heavy vehicles travel. Indeed, "promoting a strong safety outcome" and "broad transport community benefits" are key factors the NHVR consider when assessing EU proposals.
EUs are a legislative mechanism the NSW government would (presumably) want on the table for potential safety programs or initiatives that could significantly improve the sobering fatality and serious injury data for NSW roads: 352 lives lost in the last 12 months and 10695 serious injuries in the 12-month period ending September 2024.
But the NHVR EU Policy and Guidelines apply to the NHVR. It does not appear that the NSW Police – who also have responsibility for enforcing compliance with the HVNL in that jurisdiction – have their own published EU Policy and Guidelines in relation to HVNL offences.
In New South Wales, where the Police charge and prosecute alleged offences against the HVNL, police prosecutors can only accept an EU as an alternative to prosecution where they have the NSW Police Commissioner's written authority to do so under s590A(10) of that law. While it may exist, we are unaware of any such written authority.
What does this mean? In a practical sense, it means if the NSW Police have laid charges against you for an alleged offence against the HVNL in that jurisdiction, the important remedy (or mechanism) of applying for an EU to achieve safety outcomes on public roads may be more challenging.
While the example above is NSW-centric, the HVNL operates in all Australian jurisdictions, except Western Australia and the Northern Territory. Police officers in these jurisdictions also have powers and functions (including enforcement powers) in respect of the HVNL. But the NHVR Compliance and Enforcement Policy expressly states that it does not affect the exercise of any applicable discretion by police officers exercising powers under the HVNL.
The 'take-home message' – it is important to understand not just the law, but also who is enforcing it and how that agency exercises its regulatory and prosecutorial discretion. Those factors can change what legal options are available to you and what strategy to deploy in a particular case.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
