Top prosecutor reveals new approach at NHVR

For Paul Alsbury, prosecutions are an essential part of the compliance toolbox – but only one part.

As the National Heavy Vehicle Regulator’s (NHVR) newest Executive Director of Statutory Compliance, Alsbury is clear that the regulator’s power to take operators and drivers to court must be exercised carefully, consistently, and as part of a broader strategy to improve safety.

“We know that we cannot prosecute ourselves out of a problem,” Alsbury said during a fireside chat with operator and Road Freight NSW (RFNSW) Chair, Austin Vella, at the RFNSW annual conference in Sydney last week.

“There’s a lot of things involved in terms of managing risk and getting compliance. Prosecuting is just a small part of it. So I definitely bring the philosophy that prosecutions are one tool in a compliance toolbox, and there’s a lot of other things there.”

That philosophy has been shaped by Alsbury’s decades of work across criminal law, transport regulation, policing and anti-corruption and his most recent position before the NHVR as Assistant Commissioner – General Counsel, Policy and Legal Command with Queensland Corrective Services.

Alsbury also said new NHVR CEO Nicole Rosie brings with her a philosophy of taking a “joined-up” approach when it comes to compliance and obligations on industry.

“It’s never just one agency that is involved in relation to an issue – there’s often a number of agencies.

“So, we need to make sure that we have a joint approach with whatever other enforcement authorities are involved, and, most importantly, with industry.”

Concerns were raised by Vella about the “pain and suffering” that prosecutions can cause when cases are pursued inappropriately. Alsbury responded by underlining the discipline with which the NHVR makes its decisions.

“When the decision is made to prosecute someone, it should be made, and at the NHVR it is made, based on a very comprehensive assessment of the evidence,” added Alsbury, who oversees the prosecution and investigations unit.

“The NHVR has a prosecution policy which is consistent with the prosecution policy of agencies in common law jurisdictions, including the New South Wales DPP [Director of Public Prosecutions].

“So there must be sufficient evidence to support a reasonable prospect of conviction, and that’s sufficient admissible evidence. Possible defenses that may be available to a defendant need to be considered and prosecution needs to be in the public interest.”

Alsbury acknowledged that mistakes had been made in the past, but stressed the regulator’s commitment to continual improvement.

“Are mistakes made, or have mistakes been made? There have been, but we’re committed to making sure a very disciplined approach to our prosecutions is undertaken by very highly qualified employees. So there have been errors. We have learned from that.”

More than anything, Alsbury emphasised that enforcement must sit within a wider framework of prevention and collaboration. His experience in anti-corruption taught him that the best outcomes come from addressing risks before they become breaches.

“Prevention is really important in the anti-corruption space. It’s really, really important in terms of transport and the heavy vehicle industry,” he said.

That means working with other regulators and agencies, as well as industry itself, to avoid the situation where drivers or operators are forced into impossible choices between conflicting laws, he said.

“You shouldn’t – as a citizen, as a truck driver, as an operator – have to make a decision about which law you obey and which law you break,” Alsbury said.

“So again, there has to be that joined-up approach between regulators and enforcement agencies and law enforcement agencies to make sure those situations just don’t exist within our legal frameworks.”

The session also canvassed the controversial proposal to increase fines, in some cases to double their current levels. Alsbury, who has been thinking about the impact of penalties for more than 25 years, offered a nuanced view.

“Penalties and prosecutions are important. They’re not everything. They’re one tool but they’re important in terms of deterrence, in relation to deterring people from committing offences,” he said.

“Is everyone influenced positively by an increase in fines? No. There will be some people who will continue to offend regardless. And of course, we all know that when people commit acts that are not compliant with the law, they often don’t think about it with a clear head, and weigh up all the pros and cons.

“More often than not, there’s pressure acting on their mind, so not everyone will respond to increased penalties. It’s one part, perhaps a small part, but it’s one part, and it is significant.”

On where the money goes, Alsbury explained the current arrangements in NSW.

“Half the fine revenue goes to consolidated revenue. So it goes into the government’s coffers. Half of it goes to the National Heavy Vehicle Regulator. But it is quarantined. It doesn’t go into our general accounts to be used, for example, salaries and general operating expenses.

“It can only be used for certain things, which include road safety campaigns, roadside infrastructure and those sorts of things.

“Should it go back to industry? That’s really a policy issue. I think that half that goes to the NHVR should be applied for the benefit of industry and safety initiatives.”

Session host Vella also raised the issue with Alsbury of whether driver assessors and authorities sit within the chain of responsibility (COR) if a newly-licensed driver is deemed to be lacking the required skills to safely drive a truck.

“They’re not caught up in the COR, as the definitions are currently,” he said.

“Whether they should be is again, a policy question, but if people are being licensed and they don’t have the requisite skills, then that’s a regulatory issue that really has to be looked at.

“It’s a safety issue, so it makes it quite an important issue to be looked at as soon as possible.”