How to fight a heavy vehicle charge

The Heavy Vehicle National Law (HVNL) sets out obligations for operators, drivers, schedulers and others in the Chain of Responsibility (CoR). Breaches of fatigue, loading, mass and vehicle condition requirements carry significant penalties, including for both companies and individuals.

 

While compliance must always be the starting point, the HVNL does provide certain statutory defences that can be raised in limited circumstances. These defences are strictly interpreted, and the onus rests with the person raising them to prove they apply.

The deficiency defence

Under section 628 HVNL, a driver charged with a “deficiency” offence for example, where a vehicle contravenes a standard or is found to be unsafe, may have a defence if they can show that:

• They did not cause the deficiency; and

• They had no responsibility for, or control over, the maintenance of the vehicle.

Example: A driver is intercepted roadside and the vehicle is found to have worn brakes. If the driver had no role in maintenance and had properly reported defects, they may rely on the deficiency defence. If the driver ignored obvious signs of brake failure, the defence will not apply.

Fatigue law defences

The HVNL fatigue regime imposes strict rest and work hour requirements. Recognising that operational realities sometimes interfere, Parliament has allowed narrow statutory defences.

• Split Rest Break Defence (Section 255 HVNL): A solo driver under Basic Fatigue Management (BFM) hours may defend a charge for not taking seven continuous hours’ rest if they instead took one block of six continuous hours’ rest and another block of two continuous hours’ rest, provided they have not used this option in the previous 24 hours.

• Short Rest Break Defence (Section 252 HVNL): If a driver cannot take a required short rest (such as 15 minutes) because no safe rest area is available, it may be taken at the next suitable rest location within 45 minutes. Short rest breaks means rest time of less than one hour.

Example: A driver required to stop for 15 minutes encounters a stretch of highway with no truck parking bays. They continue to the next available safe rest area 30 minutes later. Provided records reflect this, the short rest defence may apply.

Primary duty and “reasonably practicable” compliance

Since the 2018 amendments, the HVNL imposes a primary duty (Section 26C) on every CoR party to ensure, so far as is reasonably practicable, the safety of their transport activities.

This is not expressed as a “defence”, but in practice, the test of what was reasonably practicable operates as the standard by which liability is judged.

Courts will consider: A duty-holder must do what is reasonably able to be done to ensure safety, considering and balancing the following factors:

Likelihood: The probability of the risk of the hazard or incident occurring.

Consequence: The degree of harm that might result if the risk eventuates.

Knowledge: What the duty-holder knows, or ought reasonably to know, about the hazard or risk and ways of eliminating or minimising it. The mastercode is very relevant to this aspect.

Availability and suitability of measures: What options exist to eliminate or minimise the risk, and whether they are appropriate.

Cost: What it would cost to eliminate or minimise the risk, including whether that cost is grossly disproportionate to the risk.

Example: An operator with a documented mass compliance system, driver training, regular audits, and a process for re-loading non-compliant vehicles will be better placed to argue they have met the primary duty than one with only a policy document filed away.

Tips to support your defence

• Immediately preserve all compliance records: logbooks, weighbridge tickets, communications, training records, maps, emails.

• Document contemporaneous observations: e.g. after loading, record what you saw, weighbridge reading, photos if feasible.

• If raising a defence, articulate which steps you considered reasonable at the time and why further steps were not feasible.

• Engage early legal advice.

Final word

The HVNL is structured to prioritise safety, with limited escape routes for parties who can show they acted responsibly and within the law’s narrow exceptions. Operators and drivers should view these defences as a safety net, not a strategy. The safer and more cost-effective approach is to invest in compliance up front.

If you are charged under the HVNL, having the right defence strategy can make all the difference.