Opinion, Sarah Marinovic

Prosecution alternative in enforceable undertakings

NHVR

The National Heavy Vehicle Regulator (NHVR) prosecution team has said that working with industry to prevent breaches is one of its main goals. One of the tools they wanted to use more was Enforceable Undertakings.

This is where a person charged with a Heavy Vehicle National Law offence agrees to take steps that will reduce the risk of breaches, in return for the prosecution being discontinued.  

Our experience in the early days was that the commitments required under Enforceable Undertakings were expensive and out of reach of most smaller operators. It often felt too difficult or cost prohibitive to pursue.  

But recently we’ve seen a number of lower cost Enforceable Undertakings being approved by the NHVR. This is an interesting development because it opens Enforceable Undertakings as a realistic option for more people.  

Firstly, it’s worth running over what an Enforceable Undertaking is. The NHVR describes it as “a high-level statutory agreement that may be used as an alternative to prosecution where the alleged offender can demonstrate to the NHVR their ability and willingness to undertake organisational reform; and implement effective safety measures for transport activities.” 

In practice, it means an agreement between the NHVR and someone who is alleged to have committed a heavy vehicle offence. The person puts forward various actions they will take. If the NHVR accepts the proposal then the prosecution is discontinued.  

The agreement is enforceable. Not complying with the undertaking is an offence with a maximum penalty of more than $10,000. The NHVR can also apply to a court for an order forcing the person to comply with the undertaking, cancelling the order or making them pay the NHVR’s costs to monitor compliance.  

The NHVR publishes all the accepted Enforceable Undertakings on their website. This means we can see what sort of promises they’ve accepted.  Most of the promises tend to focus on: 

  • Training and education
  • Updating policies and procedures
  • Publishing educational material 
  • Making donations.

Helpfully, the NHVR website also includes the cost of the proposals. The costs of the early undertakings were as high as $250,000. The lower cost undertakings in the early days were still measured in the tens of thousands.  

For many small operators, this made Enforceable Undertakings feel out of reach. They simply couldn’t afford it.  

In the past 12 months NHVR’s website shows that they’ve accepted a number of more conservatively priced proposals. There have been several that cost less than $5,000 (admitted still amongst many proposals that cost tens of thousands). It shows that NHVR is open to matching the proposal to the size of the entity. 

It’s important to keep in mind that this doesn’t mean Enforceable Undertakings are an easy way out. Or that every proposal will be approved. The NHVR will still only accept proposals that are proportionate to the breach and will make a real difference to compliance, both by the alleged offender and the broader industry.  

But it does mean that it’s a real option now for operators who in the past would have been intimidated by the costs. 

If you’ve been charged with a heavy vehicle offence and would like to consider an Enforceable Undertaking, our team at Ainsley Law is always happy to chat about your options.

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 sarah@ainsleylaw.com.au or phone 0416 224 601

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