The National Transport Commission (NTC) recently released the Consultation Draft – Heavy Vehicle National Law Penalties Framework Review (Review) for public comment. Submissions on the Review can be submitted to the NTC until 14 February 2014 and will be published online.
The NTC intends to submit a final report in May 2014 to the Standing Committee on Transport and Infrastructure (SCOTI) which directed that nationally consistent penalties be set in the Heavy Vehicle National Law (HVNL) which regulates all vehicles over 4.5 tonnes.
Heavy Vehicle National Law
The HVNL was proclaimed in 2012 and will commence on 10 February 2014 in Queensland, New South Wales, Victoria, South Australia Tasmania. The HVNL is likely to commence in the Australian Capital Territory and Northern Territory at a later date to be advised. Western Australia does not plan to introduce the HNVL at this stage.
The HVNL provides a single set of national penalties that will apply to regulated parties regardless of where they operate in Australia to promote consistency, equity and fairness in enforcement across the country.
Purpose of the Review
The review assesses the appropriateness of the monetary penalties that may be imposed by a court or via infringement notices, as well as the use of demerit points in particular circumstances under the HVNL.
The Review is intended to revisit matters that were not fully debated and explored when the framework was devised in 2011 and 2012. The ultimate aim is to achieve national consistency in the penalties regime and compliance and enforcement under the HVNL.
The Review Points
The Review will investigate and make recommendations on the following 11 points:
- Principles that govern the use of monetary penalties including with regard to deterrence.
- Relativities between laws including laws on penalties attaching to light vehicle offences, transport laws such as rail and state and territory laws and practices generally.
- Relativities within the law , ie., whether penalties attaching to various offences in the HVNL are internally coherent and consistent.
- Maximum penalties including whether existing maximum court imposed penalties are fair and reasonable and act as a deterrent.
- Use of infringements ie., whether the offences currently listed as infringeable are appropriate and the feasibility of imposing infringements on chain of responsibility parties other than the driver.
- Level of infringement ie., whether ten per cent is an appropriate and effective proportion of the maximum court imposable penalty from a road safety and equity perspective.
- Implications of the HVNL’s reversal of Compliance and Enforcement model legislation including removing higher penalties for second and subsequent offences.
- Whether it is fair and reasonable to attach the corporate multiplier to all companies regardless of size and whether a corporate multiplier for infringement penalties should be adopted.
- The impact of only attaching demerit points to fatigue-related heavy vehicle offences and whether demerit points should be extended to other offences under the HVNL.
- Costs to be incurred in implementing changes to be recommendations as a result of the investigation into the above points 1 to 9.
- The implications of the decision to specify penalties as a monetary value (rather than as a penalty unit) and the appropriateness of increasing penalties annually by CPI.
Registration penalties will not be considered as part of this Review. They remain the responsibility of states and territories for some time after the HVNL commences in 2014.
Truly harmonised HVNL?
The ultimate aim of recommendations arising out of the Review is to achieve national consistency in the penalties regime and compliance and enforcement under the HVNL. However, New South Wales, South Australia and the Northern Territory currently propose to make local additions and variations to aspects of the HVNL. A list of proposed derogations relating to HVNL penalties appear in an appendix to the Review.
Clients who are stakeholders and will be regulated by the HVNL should consider the terms of the Review and its implications. Any individual or organisation can make a submission to the NTC until 14 February 2014.