The road freight transport industry is governed by the Heavy Vehicle National Regulator (HVN Regulator). The HVN Regulator is established through the Heavy Vehicle National Law (HVN Law). Its jurisdiction extends far and wide, operating in all states and territories except for Western Australia and the Northern Territory.
The HVN Regulator administers the HVN Law, and the regulations established under it. Many freight companies often find themselves having to comply with both the HVN Law, and liaising with the HVN Regulator in relation to the same. In this post, we consider key matters that trucking companies need to consider when dealing with the HVN Law, and how it is that they can best cooperate with the HVN Regulator.
The HVN Regulator’s powers
Under the HVN Law, the HVN Regulator is empowered to issue information gathering notices, defect notices, improvement notices, and prohibition notices.
Information gathering
Under s 569 of the HVN Law, the HVN Regulator has a broad power to compel operators of heavy vehicles to produce documents. There are no qualifications for this rule. Trucking companies are required to comply with these notices when they are issued by the HVN Regulator promptly.
Vehicle defect notices
There are three categories of defect notices: (i) minor defect notice, or (ii) major defect notice, or (iii) self-clearing defect notices.[1]
- Minor defect notices require action to be taken within a certain time to amend any safety risk that is not imminent nor a serious safety risk. If action is not taken within that timeframe, the vehicle may not be allowed to be used.
- Major defect notices on the other hand, are issued where these is an imminent and serious safety risk. When such notices are issued, vehicles must not be used on the road, unless provided otherwise in the notice.
- Self-clearing notices are typically issued where no safety risk is posed, but require corrective action to be taken within 28 days, otherwise the vehicle may not be used.
Improvement notices
Section 572 of the HVN Law also empowers the HVN Regulator to issue an improvement notice. These are issued where the HVN Regulator believes that a contravention of the HVN Law has taken place. Such notices aim to prevent these contraventions from taking place, and can require trucking companies to remedy activities that may cause the contravention of the HVN Law. Generally, there must be at least a 7-day requirement in the notice, for it to be complied with.
As a first step, it is critical to identify whether the notice has been issued correctly. In order for an improvement notice to be valid, it must provide the following:
(a) the reasonable belief that the person has contravened or is contravening a provision of the HVN Law and that it is likely that the contravention will continue or be repeated;
(b) the reasons for that belief;
(c) the provision of the HVN Law in relation to which that belief is held;
(d) that the action required to be taken to stop the contravention from continuing or occurring again or to remedy the matters; and
(e) the rights for review and appeal.
Once an improvement notice has been complied with, a clearance certificate is then issued, meaning that the requirement(s) of the improvement notice will stop being operative.
Prohibition notices
Section 576A of the HVN Law empowers the HVN Regulator to issue a prohibition notice. These are issued where the HVN Regulator reasonably believes that an activity involving a heavy vehicle may involve an immediate or serious risk to the health and safety of a person. The notice would then prescribe a direction prohibiting the activity, which, in a worst case scenario, can require trucking companies to halt their operations altogether. Such a direction can remain in place until the matter has been remedied.
Reviewing or appealing notices
Where a trucking company has received an improvement notice or a prohibition notice, there are a number of steps that can be taken immediately to mitigate the consequences. This may be because of the unjustified requirements imposed by the HVN Regulator, or an erroneous assumption made as to that company’s activities, and how it may or may not infringe the HVN Law.
Where a company finds itself in such a situation, avenues for review are available under the HVN Law. There is a two-step process to reviews and appeals:
- Having the relevant notice reviewed by a senior officer within the HVN Regulator, that holds a position that is not less senior that the authorised officer who made the relevant decision; and
- If a company is still dissatisfied, an administrative appeal may be made to the relevant state or territory’s administrative and civil tribunal.[2]
Such processes are complicated and often require extensive submissions to be made. This is where lawyers are able to help guide road freight transportation companies through the remedial process.
What to do if you receive a notice from the NHVR
The HVN Law equips the HVN Regulator with many more powers than those listed above. However, in our experience, the above provisions are frequently used by the HVN Regulator, causing road freight transportation companies to halt their business activities. Compliance with directions given by the HVN Regulator are therefore necessary so that businesses can continue their income-earning operations.
If you find yourself at the receiving end of a notice from the HVN Regulator in relation to compliance with the HVN Law and/or its regulations (as to which, see Schedule 1 below), we suggest that you follow these steps:
- Gather all relevant documents: this includes emails, letters, company manuals developed in accordance with the HVN Law, notices received from the HVN Regulator etc;
- Prepare a chronology: this will help to get your account of events in order and make briefing a lawyer a good deal more efficient;
- Arrange a discussion with Patrick & Associates as soon as you are able: evidence or information gathering can never start too soon. Something that may not appear important to you may be critical in assisting your lawyers.
Patrick & Associates have handled a number of matters against the HVN Regulator. They are therefore well-equipped to assist companies in navigating the regulatory framework involved in this industry and would welcome the opportunity to assist you.
Schedule 1 – Regulations
The HVN Law establishes five sets of regulations which must be complied with:
- Heavy Vehicle (Fatigue Management) National Regulation;
- Heavy Vehicle (General) National Regulation;
- Heavy Vehicle (Mass, Dimension and Loading) National Regulation;
- Heavy Vehicle (Registration) National Regulation; and
- Heavy Vehicle (Vehicle Standard) National Regulation.
Broadly speaking, each of the regulations respectively address the following issues, with which trucking companies must comply:
- Work/rest hours for drivers of heavy vehicles and a company’s and driver’s responsibility for managing those hours so as to effectively reduce adverse impacts of fatigue;
- The use of PBS vehicles and how to obtain approval of a PBS vehicle;
- The amount of mass a heavy vehicle may carry, the dimension of heavy vehicles and how heavy vehicles may be loaded;
- How heavy vehicles and their operators are to be registered in the records of the HVN Regulator; and
- The vehicle standards with which a single heavy vehicle or heavy combination must comply for its use on a road.
