When a serious heavy vehicle incident occurs, most operators focus on the immediate priorities such as:
- Ensuring people are safe.
- Cooperating with emergency services.
- Supporting drivers and employees.
- Protecting the company from operational disruption.
What many companies do not appreciate is that from the moment a serious incident occurs, a regulatory investigation may already be underway.
Whether the incident involves a fatality, serious injury, major collision, fatigue concerns, mass breaches, loading issues, or suspected breach of primary duty issues, decisions made in the hours and days following the event can significantly impact the course of the investigation.
The investigation starts long before charges are considered
One of the most common misconceptions is that legal advice is only needed once charges have been filed.
In most cases by the time charges are filed, investigators may have spent months gathering evidence, conducting interviews, analysing documents, downloading electronic records, and examining compliance systems, policies and procedures.
Often the most important evidence is obtained in the early stages of an investigation.
That is why obtaining legal advice early can be critical.
Understanding your rights and obligations
Following a serious incident, companies and individuals may receive requests for information from investigators.
These requests can take various forms, including:
- Requests for records and documents;
- Requests to participate in interviews, whether under caution or pursuant to compulsory statutory powers;
- Notices issued under section 569 of the Heavy Vehicle National Law (HVNL) requiring information or documents to be produced.
Understanding the distinction between a record of interview conducted under caution and an interview conducted under statutory compulsion is critical. The extent to which a person is required to answer questions, the protections available to them, and the potential use of any information obtained can differ considerably.
Many operators make the mistake of assuming all interviews are the same. They are not. Early legal advice can assist individuals and businesses to understand their rights and obligations before engaging with investigators.
Understanding what information must be provided, what information may be protected, and the consequence of non-compliance is important.
Every situation is different.
- Sometimes full cooperation is required.
- Sometimes legal professional privilege may apply.
- Sometimes a person may have a right to decline to answer certain questions.
- Obtaining advice before responding can help ensure obligations are met while protecting legal rights.
Section 569 notices are serious
Investigators frequently utilise powers under section 569 of the HVNL to compel the production of information and documents.
It should be noted that failure to comply can itself constitute an offence.
However, receiving a notice does not mean that a prosecution will necessarily follow.
It does mean the companies and operators should carefully assess:
- What information is being sought;
- Whether the notice has been properly issued;
- Potential legal risks arising from the material provided;
- Whether legal professional privilege may apply to any documents.
Many businesses make the mistake of treating these notices as routine administrative requests.
They are not.
They are mostly a significant step in a regulatory investigation.
Internal investigations matter
Following a serious incident, companies/businesses should also consider conducting an internal review of the circumstances.
The purpose is not to assign blame.
The purpose is to understand what occurred, identify risks, preserve evidence, and ensure appropriate corrective action is taken.
Importantly, operators should ensure records are preserved and relevant information is secured.
Investigators may later examine:
- Driver records;
- Induction records;
- Fatigue records;
- GPS data;
- Maintenance records;
- Rosters and Schedules;
- Training records;
- Drug and alcohol testing records;
- Policies and procedures;
- Previous non-compliance reports.
What may appear insignificant immediately after an incident can later become a critical piece of evidence.
The investigation may continue for months
Many National Heavy Vehicle Regulator (NHVR) investigations continue for an extended period before any charging decision is made.
During that time investigators may:
- Conduct interviews;
- Obtain expert reports;
- Analyse electronic data;
- Examine company systems and policies;
- Consider the role of executives and managers.
The reality is that most prosecutions are not built overnight.
They are built progressively over many months.
Having legal guidance throughout that process allows businesses to understand where the investigation is heading and respond appropriately at each stage.
Primary duty investigations focus on risk
Importantly, investigators are often not examining the collision itself.
The focus is on the circumstances that existed before the incident occurred.
Primary Duty offences under the HVNL are risk-based offences.
Investigators may examine whether systems, supervision, training, monitoring and compliance processes were adequate before the event occurred.
Questions often include:
- Were known risks identified?
- Were concerns escalated?
- Were breaches investigated?
- Were compliance systems actively used?
- Were policies implemented in practice?
The investigation frequently focuses on the systemic issues that existed before the incident rather than the incident alone.
Early advice can make a significant difference
Every serious incident is different.
However, one principle remains consistent.
The earlier legal advice is obtained, the better positioned a business is to understand its obligations, protect its legal rights, and navigate what can become a lengthy and complex investigation.
By the time charges are filed, the investigation may have been underway for many months.
The most important decisions are often made long before anyone steps into a courtroom.
If your business is involved in a serious heavy vehicle incident, obtaining early legal advice should be considered part of your incident response plan.
About the author:
Kristy Speirs is a Special Counsel with Acorn Lawyers practising in criminal, regulatory and transport law. She is a former principal prosecutor with the NHVR and has extensive experience in complex investigations, prosecutions and chain of responsibility matters.