Legal, Opinion

Authorised anomalies with Regulator powers

Highway Advocates

OPINION: Understanding the power of the National Heavy Vehicle Regulator can be a complex endeavour

 

Much has been said, by all and sundry, about the way various prosecution and enforcement bodies conduct themselves. Police have the inherent jurisdiction to enforce most, if not all, criminal legislation currently published, while other prosecution entities have certain restrictions or caveats placed upon them.

The National Heavy Vehicle Regulator (NHVR), or The Regulator as they like to be known, appears only to have the power conferred upon them by the Heavy Vehicle National Law (HVNL), or The Law as it is referred to in the relevant legislation. The HVNL section 659(1) provides that the Regulator’s main function is to achieve the object of The Law. HVNL section 658 talks about the Regulator’s general powers under the Law.

The Regulator has published its prosecution policy, which states that the NHVR’s policy is to prosecute duty holders, including corporations and their executives, for breaches of the HVNL where there is a reasonable prospect of a conviction and it is in the public interest. They also state that they prosecute specific and territory legislation in South Australia, Tasmania, Victoria, and the ACT. They actually mean that they prosecute offences other than those contained within the HVNL. Not quite a uniform law, then, is it?

Another point gleaned from published information states that the team of lawyers employed by the NHVR provide operational and prosecution support to the NHVR and our partner agencies. What does this mean, though? Who are the partner agencies? One may assume that they mean Police in various jurisdictions. In South Australia and Victoria, while The Regulator refers to them as ‘partners’, they appear to have dual roles. Police in those states may commence prosecutions independently and certainly do in Victoria. Anyone dealing with the VicPol Heavy Vehicle Unit will know it is a role they cherish.


RELATED ARTICLE: Fined for the hell of it


The Regulator also prosecutes on behalf of VicPol in Victoria. In SA, Police investigate and breach, but only The Regulator prosecutes.

So, in those States, at least, we have the Police investigating and issuing court summons with certain vigour, only to have The Regulator take over at that penultimate point. To understand how this occurs, we must examine the ‘Application’ Acts those States have enacted. These are The Acts that state how The Law will play out in the various participating states and territories, excluding Western Australia and the Northern Territory (a sizeable chunk of Australia).

NHVR-IMGP1274.jpg

The ‘Application’ Acts contain all the devil in detail, something The Law lacks in certain respects. The Law’, drafted but not enacted by the National Transport Commission (NTC), cannot be all things to all people, and there are certain declarations that participating jurisdictions must make. One of those relates to ‘authorised officers’ under The Law. In SA and Victoria, only Police have been declared to be so. The Regulator does not seem to have that necessary legislative intendment.

Yet, in both States, we have Police and NHVR enforcing The Law. If only Police were ‘authorised officers’ in those States, where does the NHVR get their authority from? We know their lawyers may prosecute, but we can safely assume the people driving around in the NHVR-branded vehicles are not so. Branding may be the operative word, or perhaps ‘franchise’ would be more appropriate.

If they are not ‘authorised officers’, maybe, they are the defined ‘road authority’ in each of those States? The HVNL section 5 defines a ‘road authority’ for a participating jurisdiction, which means an entity declared by a law of that jurisdiction to be the road authority for that jurisdiction for the purposes of this Law.

Officer impersonators

In Victoria, the ‘road authority’ is ‘The Secretary’ of the entity previously known as VicRoads, but now known (this week at least) as the Department of Transport. In SA, the ‘road authority’ is the Minister to whom the administration of the Road Traffic Act 1961 is committed is declared to be the “road authority”.

The burning question now is this: Who is responsible for those NHVR vehicles and officers in those States? HVNL section 585 states that impersonating an ‘authorised officer’ is an offence with a maximum penalty of $10,000. There is no such offence of impersonating The Regulator.

If only The Law were what it was supposed to be in the first place. We now have branded licences and number plates that were supposed to be part of the proposed federal scheme, except they are not. We have The Regulator prosecuting offences outside of The Law in some jurisdictions but not all.

We know one thing for certain, The Law is State Law. It is not Federal legislation. States and Territories may do what they like with it, and they do. As a Law Firm that deals almost with Heavy Vehicle offences, the status quo causes us some concern. In our opinion, applying The Law poses more questions than it answers. One thing is certain, though – Highway Advocates will never shy away from asking these difficult questions. If you get prosecuted by the NHVR or any of their ‘partner agencies’ for any offence, contact Highway Advocates. We know what you need to know.

 

*ROBERT BELL and his team of legal professionals are Highway Advocates, a focused legal practice dealing with heavy vehicle offences throughout Australia. Robert is an ‘industry insider’ with a wealth of transport sector experience. He is the guiding force behind the successful outcomes that Highway Advocates consistently achieve. Contact Highway Advocates at admin@highwayadvocates.com.au or 0488 01 01 01. Visit www.highwayadvocates.com.au

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