LEGAL OPINION - Offence highs and lows

By: Sarah Marinovic

What is the HVNL’s ‘risk-based categorisation’ and can you dispute it?

LEGAL OPINION - Offence highs and lows
Legal column from Sarah Marinovic

The Heavy Vehicle National Law (HVNL) uses ‘risk-based categorisation’ for all mass, dimension, loading and fatigue offences. This is a system whereby each offence is divided into different categories based on the potential risk to safety and damage to infrastructure.

There are four categories:

* Minor
* Substantial
* Severe
* Critical (which applies to fatigue offences only).

So for example, a driver who works a few extra minutes over their hours might receive a penalty notice for ‘exceed work hours – minor risk’. An operator who allows their truck to be driven many tonnes over the mass limit might be charged with ‘not comply with mass requirement – severe risk’.

Which category a breach falls into can significantly change how it is treated. The HVNL uses the risk categories to:

* Decide whether you will need to go to court – usually penalty notices can be issued for lower category offences, whereas the higher category offences can only be prosecuted through court

* Set the penalties – for a penalty notice, the amount of the fine depends on the risk-category. If your case goes to court, the maximum penalty that the magistrate can impose is determined by the risk category. The category also determines the number of demerit points

* Signal to the magistrate how serious the offence is – the higher the risk category, the higher the presumption is about how much risk the breach posed to public safety or infrastructure and the more likely it is that you will receive a bigger fine.

Numerical limits

With so much riding on the categorisation, I can understand why drivers and operators are concerned about being placed into too high a category. Recently I’ve had a number of people approach me for advice on whether they can dispute the category.

The scope to successfully dispute a risk category depends on what type of offence you have been charged with. To understand why this is the case, I need to explain how the risk categories are decided.

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There is a misconception that deciding the risk category is always up to the discretion of the charging officer. Many people think that the officer assesses how dangerous they think the offence is and chooses a risk category accordingly. For most offences this is not the case.

For fatigue, dimension and mass offences the risk categories are decided entirely by numerical limits. So, for example, whether your dimension offence is a minor risk or severe risk depends entirely on how many millimetres you’re over the limit. Whether your fatigue offence is substantial or severe depends on how many extra hours you worked. There’s no scope for the officer to look at the situation and decide whether they think what you did was a serious risk or not.

The exception to this is loading offences. For a breach of the loading rules, the risk category depends on whether the load has actually shifted and the extent of the risk it poses to public safety, infrastructure and public amenity. In this case it is the charging officer’s assessment of the situation that decides which risk category is applied.

Offence dispute

So, where does this leave us? If you have been charged with a loading offence then it can be possible to successfully dispute the risk category. The assessment of whether an incident posed an appreciable risk to public safety etc. is a judgment call, and people may hold different opinions.

Unfortunately, if you have been charged with a mass, dimension or fatigue offence the scope to dispute the risk category is very limited. It would usually only be possible if the officer has made a miscalculation (e.g. they measure your truck incorrectly, or add up your work hours wrong).

This can be frustrating for people who are charged with a high risk category offence in circumstances where the actual danger caused by the incident is very low.

There are many scenarios where in purely numerical terms a breach falls within the severe or critical risk category, but when the actual circumstances are considered, it’s clear the real risk was low.

In situations like this we rely on magistrates to look at the situation objectively and make sure the penalty is proportionate to what actually happened. Thankfully, in my experience this usually happens.

*SARAH MARINOVIC is a principal solicitor at Ainsley Law – a firm dedicated to traffic and heavy vehicle law. She has focused on this expertise for over a decade, having started her career prosecuting for the RMS, and then using that experience as a defence lawyer helping professional drivers and truck owners. For more information email Sarah at or phone 0416 224 601.

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