The decision to investigate is a decision regulators take seriously. An investigation that is premature, unplanned or without a firm basis will only embarrass Regulators. Accordingly if the Regulator knocks on your door you can be almost guaranteed that they know what they are looking for.
In many cases the concerns of the Regulators can be quickly dealt with through production of your systems, processes, police and procedures and evidence of their level of compliance with those internal documents. Where the Regulator’s concerns remain and they determine that action is warranted, the it is important that action be taken to ensure that the investigation be well managed.
Collating your information early will assist in clarifying your position with the Regulator.
In complex prosecutions and in larger organisations, ongoing demonstrated corrective action is an integral element of “reasonable steps defence”, which can assist in mitigating penalties. It is important to collect your information that supports “reasonable steps defence”, while the Regulator is investigating your CoR activities.
Implementing the CoR framework throughout your organisation will help to:
- improve the safety of your employees, contractors and the public
- meet your social responsibility as a good corporate citizen
- meet your legal obligations and avoid penalties
Under the Heavy Vehicle National Law (HVNL) and supporting regulations, there are a wide range of fines and penalties that can be imposed on the company and/or the individual. Company fines are five times the amount of the individual fine.
Fines are specific to each offence and depending on the extent of the offence, generally fall into these categories for an individual and company:
Corporate (5 times the individual fine)
The fines can be extended to include a fine equal to 3 times the “commercial benefit” received from the offence.
Some offences have a defined escalation that increases the fine payable, for example:
|Exceeding mass requirements||$4,000||$6,000||$10,000||Plus $500 for every 1% over a 120% overload to a maximum of $20,000|
|Exceeding driver work hours||$4,000||$6,000||$10,000||$15,000|
Some offences have different limits based on the Heavy Vehicle involved:
|Type of heavy vehicle||Exceeding a speed limit by less than 15km/h||Exceeding a speed limit by 15km/h or more|
It’s important to understand that:
|Fines are added together||For example:|
|Penalties are ‘per offence’:|
|One investigation may have multiple offences||3 offences = $150,000|
(3 x $50,000)
|3 offences = $30,000|
(3 x $10,000)
|One entity may have|
|10 offences =|
(10 x $50,000)
|10 offences = $100,000|
(10 x $10,000)
The Only Defence
The following are not a defence and can be admissions of liability for offences:
|We didn’t have a proper register of our legal obligations||I didn’t realise we were not compliant||It was not my responsibility|
|We have always done it this way||I thought someone else was responsible||The driver was a rogue operator|
|It was a rouge member of staff we did not know about||I wasn’t involved in the decision||This was covered off in the contract, drafted by the lawyers|
|Fines are a cost of doing business||I didn’t think that was a real risk||It was outside the control of my company|
|It wasn’t on our Risk Register||How could I know if nobody told me||The contract penalties apply to stop time wasters, not to encourage speeding|
The only valid defence is:
As part of the supply chain I:
- did not know, and could not reasonably be expected to have known, of the contravention concerned
- I took all reasonable steps to prevent the contravention
- there were no steps I could reasonably be expected to have taken, to prevent the contravention.