Page 3776 - Week 12 - Thursday, 24 October 2013

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The heavy vehicle national law provides that a person who commits certain offences under the national law can be issued with an infringement notice by an authorised person. Rather than create a new infringement notice scheme that just applies to heavy vehicles, infringement notices will be issued within the existing infringement notice framework of the relevant state or territory where the offence occurs. This bill makes necessary amendments to the road transport legislation so it can operate effectively as a scheme for issuing, serving and enforcing infringement notices for offences under the national law.

The national law contains a total of 330 offences. Maximum penalties range from $1,500 to $20,000, although the penalty for a severe risk breach of mass requirements may be punished by a maximum penalty of $30,000. Due to variations in the value of penalty units across jurisdictions, expressing penalties in penalty units would produce inconsistent results across the nation. To achieve the national law’s objective that industry will be subject to the same outcome in the same circumstances in all participating jurisdictions, maximum penalties for offences in the national law are specified as dollar amounts rather than as penalty units as would normally be the case in the territory legislation.

Given this need for “the same outcome in the same circumstances”, the adoption bill for the national law also contains a number of aspects that depart from the normal ACT criminal law and human rights practices. Failing to include these aspects would be inconsistent with the territory’s commitments as a signatory to the intergovernmental agreement. For instance, a number of absolute liability offences are created under the national law. The mistake of fact defence does not apply to these offences, which means that a person cannot rely on honest and reasonable mistakes of fact to escape liability for his or her behaviour.

Absolute liability offences should only be created in exceptional circumstances. In this context it is relevant that the offences in the national law are essentially regulatory measures, the purpose of which is to prevent harm through the enforcement of minimum standards of conduct and care. While the mistake of fact defence is excluded, most of these absolute liability offences include a “reasonable steps” defence.

The offences in the bill that exclude the mistake of fact defence are based on earlier provisions of model heavy vehicle laws developed by the National Transport Commission that were previously implemented by jurisdictions and which are now updated into the consolidated national law.

Despite these differences, the Attorney-General is confident that many limitations on human rights under the national law are reasonable and justifiable. The human rights implications of the national law have been considered by other jurisdictions as part of their application of the national law and by the ACT human rights advisors. The consensus of views is that the amendments are an appropriate and proportionate limitation of rights.

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