Balance between education and enforcement is still a work in progress

I read with great interest and even greater incredulity, the glowing story on the views of the NHVR’s former director of prosecutions in which she claims the NHVR strikes the right balance between education and enforcement.

I cannot sit here and just let the claims made by Belinda Hughes in that story stand without responding, based on my long and detailed knowledge of the NHVR’s actual practices.

First, I stress that SARTA has always been a strong supporter of the NHVR and the need for it to be effective in its difficult role. That said, we have been and will continue to be constructively critical where necessary to secure improvements and address errors and unfair action in specific cases, in the best interests of the industry, which includes having an effective NHVR and fair and consistent enforcement of the Heavy Vehicle National Law.

Yes, it is true that on the road the NHVR has generally achieved a far better, more effective and fairer approach to enforcement and ensuring safety and compliance by the industry, including applying a preference for inform and educate.

Of course there are and always will be exceptions but my experience has been that we can generally reach out to the right people within the NHVR and resolve such cases successfully, because we have a good and professional working relationship with the NHVR.

I take great exception, however, to Belinda Hughes’ gilding of the prosecution lily. I am aware of numerous cases, some of which have been substantial matters, where the NHVR has utterly failed to apply its much lauded “inform and educate before prosecute” policy. I have even written to the CEO and chairman of the NHVR about those failings.

The NHVR prosecutions unit obviously has a difficult job and its unreasonable to expect zero errors. My comments here are not about occasional oversights or errors but rather about fundamental failures of the NHVR prosecutions unit to comply with its own published Prosecution Policy and Procedures, which can be found on their website at these links:

NHVR Prosecution Policy

NHVR Prosecutions Unit   (i.e. the Prosecution Procedures)

The Prosecutions Procedures document sets out the five steps they (supposedly) follow, namely:

How do we do it?

  1. We receive briefs of evidence from the investigator and representations from customers and/or collection agencies from the different jurisdictions.
  2. We consider the evidence within the brief to determine if there is sufficient evidence to lay charges or proceed with the fine.
  3. We consider the evidence within the brief against the criteria in the Prosecution Policy.
  4. We draft appropriate charges and arrange for those charges to be filed in court.
  5. Once charges have been filed, we arrange for service of those charges on the defendant including a covering letter explaining the process and the prosecutor’s contact details.
  6. We appear as an advocate in court on behalf of the NHVR and prosecute the offence.

That all seems fair enough and it would be, if they adhered to it. The reality however, particularly over the last three years, has been that too often the NHVR prosecutions unit has utterly failed to follow Steps 1 and 2 and seemingly Step 3.

The NHVR makes a strong point, at every opportunity, that the industry is their customer. I know their senior management are committed to that concept and endeavour to ensure all NHVR staff understand and apply it in their dealings with the industry.

Yet the NHVR prosecutions unit, and even some of their investigations team, have all too frequently failed to even engage with the “customer” including the HV operator.

It’s also been clear that before leaping to the prosecution stage they have failed to review and consider the evidence at all, let alone to determine if there is sufficient evidence to lay charges and/or if there is a reasonable prospect of conviction; all of which is required under their Prosecution Policy and Procedures.

SARTA executive officer Steve Shearer. Image: James Graham

The NHVR Prosecutions Unit has at times simply accepted the allegations raised by a police force and taken for granted that Steps 1 to 3 have been met. It is a very serious and unacceptable, let alone unfair, failure to comply with their own policy and procedures when they just accept what they are handed at face value and without undertaking their own details assessment of the ‘evidence’.

The use of enforceable undertakings (EUs) is a sensible and reasonable approach that can have substantial benefits for the operator involved and even for the industry, if it genuinely leads to improved safety.

I am aware of cases where operators with a sound and proven good safety record, have been encouraged to take an EU rather than the expensive and stressful process of slugging it out in court.

Sometimes that makes sense and is reasonable but more often than should be the case the use of an EU becomes a chest-beating PR prop for the NHVR and specifically for the prosecutions unit.

I am aware of some cases where the EU itself was absurd and/or the way in which the prosecutions unit insisted the operator manage certain aspects of it was unreasonable and unjustifiable.

Working together for best outcomes

Even when the overwhelming evidence is that the operator gets it right virtually all the time, bar the one instance that went wrong, the NHVR prosecutions unit has been happy to ram an EU down the operator’s throat and then brag about it in the media.

If the NHVR and its prosecutions unit were truly serious about improvements to safety, they could and I suggest should, inform the industry about a given safety or compliance issue and how to avoid/address it, without shouting from the rooftops about having managed to impose yet another EU, as if that is the priority and the desired outcome.

Each time they do, this they are in fact engendering a growing negativity within the industry and adding to a sense of an adversarial environment, rather than building a truly collaborative and constructive relationship with the industry.

Used properly EUs are a good tool for improvement but they must not be treated by the NHVR as a feather in their cap or something to be bragged about.

NHVR should, in my view, adhere to its published procedures and policies and focus on its challenging work and not seek out awards and gongs for the trophy cabinet. The best test of their effectiveness and fairness is the level of support they enjoy from the broader industry based upon their actual performance as we work together to ensure the best safety outcomes.

As I said in my podcast on Copy Southbound with Bruce Gunter on August 11, 2023, the NHVR and police agencies need to realise the enormous stress and harm to drivers’ and operators’ mental health that they cause when they unnecessarily engage unreasonably and unfairly with drivers and HV operators.

Whether that be when NHVR/police unnecessarily and unjustifiably impose far greater costs on operators than they realise when unnecessarily defecting a rig over a component that is still well within the NHVR’s published wear tolerances, or fining a driver half their weekly wage over a technical error in their work diary, or threatening a driver with the loss of their home, with the intention to scare them into ‘assisting them with their enquiries’.

Yes drivers and operators must deal reasonably and professionally with NHVR officers and police who are going about their job but those officers are equally obliged to act reasonably and professionally in the performance of their duty and so too are the NHVR’s investigative teams and the prosecutions unit.

So in summary, I vehemently disagree with Belinda’s Hughes rose-coloured glasses perspective, unless of course she was speaking theoretically about the intent to balance education and enforcement, as distinct from the reality.

This is a work in progress and I believe that it is only by mature and professional dialogue between the industry and the NHVR and, if they would listen, the police, that we will actually achieve the right balance between education and enforcement to the same degree of compliance with which the industry is held to account in meeting our obligations.

  • Steve Shearer is the executive officer of the South Australian Road Transport Association.

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