ALC sees overreach in speed limiter enforcement proposals


NTC discussion paper remedies described as reversing onus of proof and penalising innocent parties

ALC sees overreach in speed limiter enforcement proposals
Michael Kilgariff says ALC members want clear evidence justifying any changes to the law.

 

The Australian Logistics Council (ALC) has raised enforcement concerns to the National Transport Commission (NTC) in its submission on the Enforcement Approaches for Speeding Heavy Vehicles Discussion Paper.

The NTC has sought industry responses to proposals for the immediate grounding of heavy vehicles travelling 15 km/h or more above posted speed limits and the triggering of a strict liability offence for operating a heavy vehicle with a defective speed limiter if that vehicle is detected travelling at or above 115 km/h.

The ALC makes a strong representation that the proposals are a regulatory step too far.

"As a general proposition, ALC believes the Heavy Vehicle National Law (HVNL) exists to encourage improved safety outcomes," managing director Michael Kilgariff writes.

"It does not exist to unnecessarily expose operators to criminal sanction, or consignors/consignees to undue costs and delays to their business through the creation of powers and offences under the HVNL, that do not seem to lead to improved safety outcomes.

"ALC member responses received on the Discussion Paper make clear that there must be clear evidence justifying any changes to the law.

"In particular, there must be clear evidence to justify changing the usual operation of law requiring a prosecutor to prove beyond all reasonable doubt all integers of an offence before someone can be found guilty of an offence."

The representative body:

  • highlights that no evidence has been presented to demonstrate that the act of a speeding offence means that a speed limiter is faulty or that someone had tampered with a unit
  • argues it is not reasonable or proportionate to put operators to the cost of having to provide evidence to rebut the assumption that either road standards have not been met, or that a speed limiter has been tampered with
  • outlines how grounding a heavy vehicle would have wide-reaching financial and logistical implications for consigners and consignees
  • disputes the suggestion that these proposed changes are comparable to ‘anti-hoon’ laws.
  • states that if this proposal is to proceed, it should be done so following a comprehensive regulatory impact statement (RIS).

At a time when transport ministers nationally have sought reform of managers’ liability provisions in freight and logistics, such a move is seen as retrograde.

"ALC believes it is inappropriate to impose what is effectively a reverse onus of proof in this situation, for the same reasons that the reverse onus of proof in the context of executive officer liability has been scrutinised and a decision made to remove the liabilities," Kilgariff says.

He notes Part 2.4.2 of the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers (2011) says: "Vicarious, collective or deemed liability should only be used in limited circumstances. This is because it cuts across the fundamental principle that an individual should be responsible only for his or her own acts and omissions."

He adds that if the proposals were to be progressed, and RIS would be crucial "because of the potential impact that could be suffered by third parties unconnected with the unlawful behaviour that has been committed if a vehicle is grounded".

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