Enforceable undertakings: a prosecution alternative

As a modern regulator, we use a risk-based model to tackle the greatest safety risks on our roads. 

To do this, we use tailored regulatory activities and responses that are appropriate and proportionate to the nature of the safety risk and behaviour of industry and supply chain participant. 

Our focus is to deter serious and consistent offenders who put other’s lives at risk by seeking strong sentences, but also try to change the behaviours that breed a culture of offending and risk the overall safety of the heavy vehicle industry. 

Enforceable undertakings (EUs) are one way the NHVR can encourage and monitor safer behaviours in an individual or a company and improve safety for all road users.

So, what is an EU?

An EU is a legal agreement between a defendant charged under the Heavy Vehicle National Law (HVNL) and the NHVR. 

There is specific criteria that is considered in the EU process, which could include a company implementing measures such as education, training, processes, policies, technology or systems that demonstrate tangible improvements to the safety of the company’s operations.  

This agreement is recorded, legally enforceable and is published on the NHVR’s website. 

What happens if the NHVR accepts the EU?

If the NHVR accepts the EU, the court matter is withdrawn, and no court penalty is pursued. 

EUs last for 12 months and are actively monitored by the NHVR. The company must submit evidence to show the agreed activities have been completed, to avoid further legal action. 

If the defendant does not comply with their EU, they will be prosecuted for breaching the agreement.

Why would the NHVR accept an EU instead of a prosecution?

EUs are designed to tackle the root of the issue that caused the offence to occur in the first place. 

Immediate corrective action can be taken by the company, and robust safety systems and training can be established to protect themselves, and others, from safety risks long term. 

It also allows a company to implement strategies and procedures that will protect them in future, instead of receiving a fine, which may not lead to improved operations. 

You will see that the NHVR has already entered into more EUs over the last few months than in the previous year, because in most cases, a company or person spending money on safety instead of a fine, means a better safety outcome for everyone.

An example?  

A recent example of the benefits of an EU is best demonstrated by the matter of a civil construction and infrastructure company Eifers Pty Ltd. 

Eifers Pty Ltd was never charged with any offences, but their driver was. Eifers stepped in and proposed to complete an EU so the employed driver wouldn’t face a conviction and fines for mass limit and load restraint breaches.

Eifers has pledged to complete a series of safety, risk and policy activities valued at $44,000 and as a result the NHVR withdrew all charges against the driver. The activities include completing mass and load restraint training, a new policies and procedure manual, certification of safety management systems including quality management, occupational health and safety, and environmental performance, plus production of a heavy vehicle safety video. 

It’s encouraging to see a company put their hand up to be accountable for their role in ensuring safe operations on and off the road.

I’m pleased to say every company has either successfully completed or are progressing well with their EUs. 

For more information visit www.nhvr.gov.au/law-policies/enforceable-undertakings.

About the author:

Belinda Hughes is the NHVR Director Prosecutions.

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