Page 3278 - Week 09 - Tuesday, 18 August 2009
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There are special provisions in relation to the transport of freight containers as this is an activity that has a history of frequent overloading and mass inaccuracy. The major concerns in this area are the incorrect description of shipping documentation or unevenly distributed freight within containers.
Overweight containers, when accompanied by shipping documentation that understates their weight, place an unfair burden on drivers and carriers as they may only first become aware of the problem when the container is actually placed on the vehicle or when the vehicle is weighed at a weighbridge. In recognition of this, the bill provides a defence in cases where the driver or carrier has relied in good faith on the accuracy of the information set down in the container weight declaration only to find that they are carrying a load that breaches the mass limits.
A key feature of the national scheme is the chain of responsibility concept, where parties who affect heavy vehicle road transport compliance are made accountable for their acts and omissions. These parties include not only the driver and vehicle operator but also off-road entities such as consignors, packers, loaders and receivers. Criminal liability may also extend to executive officers of corporations, partners in partnerships and managers of unincorporated associations where a person in a position to influence conduct did not take reasonable precautions or exercise due diligence to prevent a breach of the heavy vehicle road laws.
New evidentiary and mutual recognition provisions are included that will facilitate investigations of large transport companies that operate across jurisdictions and that breach the heavy vehicle road laws. Jurisdictions will enter into agreements to allow investigations that commence in one jurisdiction to continue cross border to enable appropriate evidence to be gathered to ensure successful prosecution.
The scheme includes special enforcement responses, such as the issuing of formal warnings and improvement notices. For example, our on-road inspectors, when intercepting a vehicle that is in minor breach, may issue a formal warning rather than a fine if the driver can demonstrate that he or she took reasonable steps to prevent the failure to comply and was unaware of the breach.
The bill also provides for significant fines for loading breaches and a range of sanctions to enable the courts to impose a punishment that best fits the offence, such as a commercial benefits penalty, a supervisory intervention order, a prohibition order and a compensation order. These sanctions and higher fines will act to deter those operators who deliberately overload for economic benefit to the detriment of the honest operator, thereby creating a more level playing field in what is a highly competitive industry.
I mentioned earlier that the national model legislation was not designed as template law and that jurisdictions were free to modify provisions to satisfy their legislative and legal policy frameworks. Briefly, the key changes to the national approach that were necessary to achieve compatibility with ACT criminal law and human rights policy relate to the following elements of the bill:
• the two-tiered penalty structure;
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