Heavy Vehicle National Law
Penalties Matrix Process and
Demerit Point Assessment
Process
June 2015
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Heavy Vehicle National Law Penalties Matrix Process and Demerit Point Assessment Process
Report outline
Title
Heavy Vehicle National Law Penalties Matrix Process and Demerit Point
Assessment Process
Purpose
Development of processes to standardise the setting of maximum penalties and
determination of demerit point penalties for offences under the Heavy Vehicle
National Law (HVNL)
Abstract
The NTC has developed a penalties matrix process and demerit point assessment
process to assist in setting maximum penalties and analysing the suitability of
demerit point penalties for offences under the HVNL.
Key words
Penalties; penalties matrix; demerit points; Heavy Vehicle National Law.
Contact
National Transport Commission
Level 15/628 Bourke Street
Melbourne VIC 3000
Ph: (03) 9236 5000
Email: [email protected]
www.ntc.gov.au
ISBN978-1-921604-78-2
Heavy Vehicle National Law Penalties Matrix Process and Demerit Point Assessment Process
Summary – project purpose
The National Transport Commission (NTC) has developed a penalties matrix process and demerit
point assessment process to assist in setting maximum penalties and analysing the suitability of
demerit point penalties for offences under the Heavy Vehicle National Law (HVNL). The NTC
anticipates that these processes will be used, primarily, to help ensure that maximum penalties and
demerit points for new and amended offences under the HVNL are consistent with the objects
and intentions of the law. This will also help ensure that these penalties are consistent with existing
penalties in the HVNL, as well as other state and territory transport laws. Both processes will be used
to guide deliberation by governments in consultation with other government agencies and with other
stakeholders on the development and setting of penalties.
Please refer to the attached ‘HVNL Penalties Matrix Process’ and ‘HVNL Demerit Point Assesssment
Process’.
Recommendations
1. That the NTC and the HVNL maintenance group (the inter-government body that periodically
reviews the law) use the ‘Penalties Matrix Process’ to assess penalties for new and amended
offences under the HVNL.
2. That the NTC and the HVNL maintenance group use the ‘Demerit Point Assessment Process’
when considering the suitability of new and amended offences for demerit point penalties.
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Heavy Vehicle National Law Penalties Matrix Process and Demerit Point Assessment Process
Contents
Report outline
ii
Summary – project purpose
iii
Recommendations
iii
1. Project objectives, background and consultation1
1.1 Objectives
1
1.2 Background
1
1.3 Consultation
2
Penalties Matrix Process
2
Demerit Point Assessment Process
2
1.4 Recommendations
3
2. HVNL Penalties Matrix Process4
Phase 1
4
Phase 2
7
3. HVNL Demerit Point Assessment Process9
Principles for attaching demerit points
9
4. References11
Penalties matrix process
11
Demerit point assessment process
11
1. Project objectives, background
and consultation
Key points
NTC has developed a penalties matrix process and demerit point assessment process to help
ensure that maximum penalties and demerit point penalties set by the Heavy Vehicle National
Law are consistent with the objects of the law and with existing penalties in the law, as well as
other transport laws.
Separate processes for setting maximum penalties and for assessing penalties for demerit
points are provided in this paper.
1.1Objectives
The NTC has developed a penalties matrix process and demerit point assessment process to assist in
setting maximum penalties and analysing the suitability of demerit point penalties for offences under
the Heavy Vehicle National Law (HVNL). These processes will help ensure that maximum penalties
and demerit points for new and amended offences under the HVNL are consistent with the objects
and intentions of the law. It will also ensure that penalties are consistent with existing penalties in the
HVNL, as well as other state and territory transport laws.
1.2Background
In 2011, ministers directed that nationally-consistent penalties be set in the HVNL. The penalty
framework for the Law was developed in a compressed timeframe and was complicated by the
significant variation between state and territory offences and penalties. Accordingly, ministers agreed
that a review of the HVNL penalties regime would commence once the law was enacted.
The 2012 HVNL Penalties Framework Review analysed matters that were not fully explored during
the development of the HVNL penalty framework. In their feedback to the review, the Queensland
Department of Transport and Main Roads (TMR) proposed the development of a penalties matrix to
ensure that maximum penalties are set in a manner consistent with the intentions of the HVNL. TMR
considered this would provide certainty for governments and industry that HVNL penalties are set
using appropriate criteria and would remove the need for the NTC to individually assess the rationale
from each state and territory, and from industry, supporting particular penalty levels.
The HVNL Penalties Framework Review’s Final Report approved by ministers in May 2014
recommended that:
[T]he NTC work with governments and industry to develop a penalties matrix to ensure
penalties are set accurately. This process should occur alongside, or as part of, any chain
of responsibility amendment package.
The Report also recommended that:
[A] broad, systematic demerit points review process be incorporated into the proposed
penalties matrix exercise.
The attached penalties matrix process and demerit point assessment process fulfil these
recommendations.
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Heavy Vehicle National Law Penalties Matrix Process and Demerit Point Assessment Process
1.3Consultation
Penalties matrix process
In September 2014, the NTC developed a penalties matrix and assessed a representative sample of
HVNL offences to evaluate the matrix’s integrity as a tool for assessing maximum penalty levels. The
sample offences covered a broad suite of offence categories, with the addition of some particular
offences nominated for assessment by stakeholders in the HVNL Penalties Framework Review, which
was completed in June 2014.
The NTC consulted with stakeholders on the form and process of the matrix and stakeholders
suggested several changes.
NSW, Victoria and South Australia requested further information on the overall process for using
the penalties matrix. In addition, they proposed that the penalties matrix process include extra steps
to consider:
• the principles for sentencing and setting penalties
• consistency with other offences
• consultation with stakeholders.
To help make the process less subjective, Tasmania, South Australia and NSW also recommended
that definitions be provided for ‘further important elements’ that the NTC suggested could inform
the development of penalties. Some stakeholders have subsequently suggested that these ‘elements’
could be rationalised and re-calibrated.
The NTC has therefore amended the penalties matrix process to:
1) Provide further information on how to use the matrix, by including in the process:
• Consideration of the principles for setting penalties. These principles include consideration
for existing offences and penalties for like offences.
• Consultation with stakeholders.
2)Remove some redundant elements:
• Safe business practices are already covered by the element of public safety.
• Improper use of information is already covered by false or misleading conduct.
3)Provide definitions for ‘further important elements’.
4)Under ‘further important elements’, changed the zero score for the minor risk category to
‘not applicable’.
Demerit point assessment process
In October 2014, the NTC assessed the principles for attaching demerit points which were discussed
in the Heavy Vehicle National Law Penalties Framework Review Issues Paper & Consultation
Guide against the eight HVNL offences that currently impose a demerit point penalty. In addition,
12 offences identified by stakeholders as potential candidates for demerit points during the HVNL
Penalties Framework Review were also assessed.
The following principles for attaching demerit points were used in the assessment:
1. The demerit point scheme augments fines for road law offences by providing deterrence for
persistent offenders.
2. Heavy vehicle drivers should only accrue demerit points for behaviour-related offences.
3. Demerit points should attach to offences that involve making a deliberate choice to take risks on
the road that threaten road safety.
4. Since demerit points have the capacity to severely impact on a driver’s livelihood, they should
attach to offences that are clearly safety-related.
5. Demerit points should only attach to offences with potentially significant safety consequences, ie
they should be limited to severe and critical offences.
Heavy Vehicle National Law Penalties Matrix Process and Demerit Point Assessment Process
6. The number of points attached to an offence should reflect the relative seriousness of the offence,
in the context of the actual or potential impacts.
7. It may also be appropriate to attach demerit points to offences associated with a particular road
safety problem (such as a high volume of vehicles in a poor technical condition).i
Following the release of the assessment for consultation, stakeholders suggested the following
changes be made to the demerit point assessment process.
NSW and Victoria requested that further information on the demerit point assessment process.
The ATA and Natroad suggested that the process be separated from the penalty matrix process in
order to avoid confusion between the two processes. In addition, the ATA proposed the removal
of Principle 5 and 7. The ATA considered that Principle 7 could potentially overturn established
compliance approaches in favour of an undesirable ‘flavour of the month’ approach, while Principle
5 contradicted the position of the Australian Law Reform Commission, which considers that demerit
points are suitable for minor breaches.
NSW also disagreed with Principle 5 and the concept of only attaching demerit points to ‘offences
with potentially significant safety consequences (i.e. limited to severe and critical offences)’. NSW
considered that this principle does not acknowledge that demerit points also provide a deterrent to
unsafe behaviour.
Following this feedback the NTC made the following amendments to the demerit point assessment
process:
1) Providing further information on the demerit point assessment process.
2)Separate the reports into two separate papers being the penalties matrix process and demerit
point assessment process.
3)Removal of Principle 5 as it is considered that the core of the principle is covered within other
principles.
4)Removal of Principle 7 as it is considered that the core of the principle is covered within other
principles.
1.4Recommendations
To ensure that penalties remain consistent as the HVNL evolves over time, the NTC recommends:
1. That the NTC and the HVNL maintenance group (the inter-government body that periodically
reviews the law) use the ‘Penalties Matrix Process’ to assess penalties for new and amended
offences under the HVNL.
2. That the NTC and the HVNL maintenance group use the ‘Demerit Point Assessment Process’
when considering the suitability of new and amended offences for demerit point penalties.
Note that these processes are not intended to provide a single, final result, but to provide a starting
point for discussions and a framework for comparison to ensure that penalties for new and amended
offences in the HVNL are set consistently with existing offences.
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Heavy Vehicle National Law Penalties Matrix Process and Demerit Point Assessment Process
2. Heavy Vehicle National Law Penalties
Matrix Process
To ensure that new and amended offences under the HVNL have corresponding monetary penalties
that are:
• consistent with the objects and intentions of the law; and
• consistent with existing penalties in the HVNL.
all such offences should be initially assessed against the penalties matrix. Setting penalties for these
offences would involved two phases:
Phase 1: The NTC assesses the relevant offence/s against the penalties matrix. This will include
consideration of the offence and matrix outcome against the principles for setting penalties.
Phase 2: This information forms the basis for consultation with stakeholders on the final
penalty amount.
Phase 1
Step 1: The elements of the offence – namely the behaviours and outcomes the offence is seeking
to prevent from occurring – will be assessed against the primary objects of the HVNL, namely the
impact on:
• public safety
• environment/public amenity
• road infrastructure.ii
The following definitions will be used to clarify the primary objects of the HVNL:
Table 1: Heavy Vehicle National Law objects
Definitions for Heavy Vehicle National Law objects
Public safety – the safety of persons or property, including the safety of—
(a) the drivers of, and passengers and other persons in, vehicles and combinations
(b)persons or property in or in the vicinity of, or likely to be in or in the vicinity of, road
infrastructure and public places
(c) vehicles and combinations and any loads in them.iii
Environment/public amenity — includes:
(a) ecosystems and their constituent parts, including people and communities
(b)all natural and physical resources
(c) the qualities and characteristics of locations, places and areas, however large or small, that
contribute to their diversity and integrity, intrinsic or attributed scientific value or interest,
amenity, harmony and sense of community
(d)the social, economic, aesthetic and cultural conditions that affect, or are affected by, things
mentioned in paragraphs (a) to (c).iv
Road infrastructure — includes:
(a) a road, including its surface or pavement
(b)anything under or supporting a road or its surface or pavement
(c) any bridge, tunnel, causeway, road-ferry, ford or other work or structure forming part of a
road system or supporting a road
(d)any bridge or other work or structure located above, in or on a road
(e) any traffic control devices, railway equipment, electricity equipment, emergency telephone
systems or any other facilities (whether of the same or a different kind) in, on, over, under or
connected with anything mentioned in paragraphs (a) to (d).v
Against each object, a numerical score applicable to the ‘worst case scenario’ will be given for each
relevant offence, as per table 2.
Table 2: Severity ratings
Numerical score
Severity of risk
Risk/Impact
0
N/A
Not applicable to offence
1
Low
Minimal risk/impact
2
Medium
Some/marginal risk/impact
3
High
Appreciable/significant risk/impact
4
Extreme
Critical/serious risk/impact
Step 2: The offence will then be assessed against some additional important elements, again from a
worst case scenario perspective. These elements are:
1. Unfair commercial advantage
2. Frustration of enforcement
3. False/misleading/fraudulent conduct
4. Undermines confidence in the regulatory framework.
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Heavy Vehicle National Law Penalties Matrix Process and Demerit Point Assessment Process
The following definitions will be used to clarify these elements.
Table 3: Definitions of additional rating elements
Unfair commercial advantage
An unfair commercial advantage is a commercial benefit that results from failing to comply with
legal requirements while others in the industry do comply with legal requirements.
Frustration of enforcement
Frustration of enforcement constitutes a deliberate and improper effort to undermine or prevent
the proper enforcement of a law or regulation.
False/misleading/fraudulent conduct
Conduct by a party that is fraudulent, dishonest or deceptive, and is likely to lead others into error
or has the tendency to deceive such persons. This could include conduct ranging from lying, to
making false or inaccurate claims, to creating a false impression, to leading others to a wrong
conclusion, to omitting important information.
Undermines confidence in the regulatory framework
To subvert or weaken confidence in the regulatory framework as described in section 4 of the
HVNL, and in the Regulator’s ability to achieve this framework and enforce the HVNL.
Examples of undermining confidence may include:
• Making improper use of a person’s position or of information that comes to the person’s
knowledge
• Obstructing an authorised officer
• Impersonating an authorised officer.
As with step 1, each element will be allocated a numerical score of between 0 (not applicable to
offence) and 4 (extreme).
Step 3: The total numerical score will determine the HVNL risk category for the offence. The risk
categories and associated penalties are already established in current national and state and territory
road transport legislation.
Table 4: Risk Categories and their associated penalties
Total
numerical
score
Current HVNL risk category
Current HVNL
maximum penalty
1–5
Minor - Minimal risk/impact
$1000–$3000
6–8
Substantial - Some/marginal risk/impact
(not an appreciable risk)
$4000–$6000
9–11
Severe - Appreciable/significant risk/impact
$8000–$10000
12+
Critical - Critical/serious risk/impact
$15000–$20000
Heavy Vehicle National Law Penalties Matrix Process and Demerit Point Assessment Process
Step 4: Following the matrix exercise, consideration will be given to how the offence and matrix
outcome satisfies the principles for setting penalties.vi These principles are that:
• Maximum penalty levels should be set at a level that gives courts the ability to tailor a
particular penalty to a level that will deter and punish a worst case offence, including repeat
offences.
• Maximum penalty levels should aim to provide an effective deterrent to the commission of
the offence, and should reflect the seriousness of the offence within the relevant legislative
scheme.
• Offences should reflect the degree of seriousness of the violation in safety, equity and
infrastructure degradation terms.
• A higher maximum penalty will be justified where there are strong incentives to commit
the offence, or where the consequences of the commission of the offence are particularly
dangerous or damaging. Safety risks should attract the most serious penalties.
• A maximum penalty should be consistent with penalties for existing offences of a similar kind
or of a similar seriousness.
Phase 2
The information obtained through phase 1 will form the basis for consultation with stakeholders on
the final penalty amount. An example is shown in table 5
Table 5: Sample penalties matrix assessment
Provision
93 (1) Person must
not tamper with
speed limiter fitted
to heavy vehicle – A
person must not
tamper with a speed
limiter that is required
under an Australian
road law or by order
of an Australian court
to be, and is, fitted to
a heavy vehicle.
Maximum penalty –
$10000
Step 1
Primary HVNL Objects
Severity
Numerical
score
Public safety
Extreme
4
Environment/public amenity
N/A
0
Road infrastructure
N/A
0
Further important elements
Severity
Numerical
score
Unfair commercial advantage
High
3
Frustration of enforcement
N/A
0
Undermines confidence in the regulatory
framework
N/A
0
False/misleading/fraudulent conduct
Extreme
4
Step 2
Step 3
Total
11
Outcome
Severe
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Heavy Vehicle National Law Penalties Matrix Process and Demerit Point Assessment Process
Table 5: Sample penalties matrix assessment (continued)
Step 4
Justification against the principles for setting maximum penalty levels.
1. Maximum penalty levels should be set at a level that gives courts the ability to tailor a particular
penalty to a level that will deter and punish a worst case offence, including repeat offences.
The current penalty of $10,000 reflects the seriousness of the offences and is an effective
deterrent.
2. Maximum penalty levels should aim to provide an effective deterrent to the commission of
the offence, and should reflect the seriousness of the offence within the relevant legislative
scheme.
Tampering with a speed limiter and the direct result of a speeding vehicle not only results
in significant public danger but also creates an unfair advantage to one operator over other
compliant operators. Some operators may regard the potential costs and penalties associated
with corporate non-compliance as an acceptable risk when weighed against potential
commercial benefits that can be achieved through operating speeding vehicles.
3. Offences should reflect the degree of seriousness of the violation in safety, equity and
infrastructure degradation terms.
The use of a heavy vehicle with a tampered speed limiter could result in the heavy vehicle
speeding. A speeding heavy vehicle represents a significant risk to public safety.
4. A higher maximum penalty will be justified where there are strong incentives to commit
the offence, or where the consequences of the commission of the offence are particularly
dangerous or damaging. Safety risks should attract the most serious penalties.
Increased speed means not only an increased risk of crashing but also increased severity
if a crash occurs; a heavy vehicle that is travelling at high speeds and is involved in an
accident poses a real risk of death or disabling injury to other road users and the general
public. A compliant speed limiter is an important road safety risk mitigation tool that helps
ensure that heavy vehicles are used in a safe manner. Practices that either directly or indirectly
encourage or support speed limiter tampering heighten the risk of heavy vehicle road
crashes occurring.
5. A maximum penalty should be consistent with penalties for existing offences of a similar kind
or of a similar seriousness.
This penalty is consistent with the penalties other ‘tampering’ offences prescribed in the HVNL
(see section 91 and 335).
Heavy Vehicle National Law Penalties Matrix Process and Demerit Point Assessment Process
3. Heavy Vehicle National Law Demerit
Point Assessment Process
To ensure that new and amended offences under the HVNL only attract demerit points where this is:
• consistent with the objects and intentions of the law; and
• consistent with existing penalties in the HVNL.
All such offences should be initially assessed against this process. The NTC recommends the
following process for assessing the suitability of offences for demerit points:
Phase 1: The NTC assesses the relevant offence/s against the principles for attaching demerit
points.
Phase 2: This information will form the basis for consultation with stakeholders.
Principles for attaching demerit points
The following principles for attaching demerit points will be applied as part of the process:
1. The demerit point scheme augments fines for road law offences by deterring persistent offenders.
2. Heavy vehicle drivers should only accrue demerit points for behaviour-related offences.
3. Demerit points should attach to offences that involve making a deliberate choice to take risks on
the road that threaten road safety.
4. Since demerit points can have a severe impact on a driver’s livelihood, they should attach to
offences that are clearly safety-related.
5. The number of points attached to an offence should reflect the relative seriousness of the offence,
in the context of the actual or potential impacts.vii
Where an offence satisfies all of the five principles outlined above, demerit points should be further
considered by stakeholders.
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228 Duty of driver to avoid driving
while fatigued - A person must
not drive a fatigue-regulated heavy
vehicle on a road while the person
is impaired by fatigue.
•
Principle 1:
Should provide
a deterrence
for persistent
offenders
•
Principle 2:
Should attach to
driver behaviourrelated offences
•
Principle 3:
Should attach
to offences that
involve making a
deliberate choice
to take risks
•
Principle 4:
Should attach to
offences that are
clearly safetyrelated
Sample demerit point assessment for section 228 of the HVNL, which currently imposes a three point demerit penalty.
Table 6: Sample demerit point assessment
Currently imposes
3 demerit points
Principle 5:
The number of
demerit points
should reflect
the relative
seriousness of the
offence
Yes
Were all
principles
satisfied?
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Heavy Vehicle National Law Penalties Matrix Process and Demerit Point Assessment Process
Heavy Vehicle National Law Penalties Matrix Process and Demerit Point Assessment Process
4. References
Penalties matrix process
i
For principles 1–3, see NTC, Heavy Vehicle Driver Fatigue: Risk Categorisation, Sanctions, Demerit
Points and Penalties Policy Proposal (2006, 11–13). For principles 4 and 5, see NTC, Heavy Vehicle
Driver Fatigue Final Regulatory Impact Statement (2006, 18). For principles 6 and 7 see SWOV
Institute for Road Safety Research, Bestpoint Criteria for Best Practice Demerit Point Systems
(2012, 28).
ii Heavy Vehicle National Law (HVNL), section 3. The NTC notes that the objects of ‘industry
productivity and efficiency’ and ‘productive, efficient, innovative and safe business practices’
are also listed in section 3 of the HVNL. However, these objects are positive considerations and
cannot be used in the determination of a worse case impact arising from a breach.
iii HVNL, section 5.
iv Environmental Protection Act 1994 (QLD), Section 8.
v HVNL, section 5.
vi Heavy Vehicle National Law Penalties Framework Review Issues Paper & Consultation Guide
(October, 2013).
Demerit point assessment process
viiFor principles 1–3 see NTC, Heavy Vehicle Driver Fatigue: Risk Categorisation, Sanctions, Demerit
Points and Penalties Policy Proposal (2006, 11–12). For principle 4, see NTC, Heavy Vehicle Driver
Fatigue Final Regulatory Impact Statement (2006, 18). For principle 5, see SWOV Institute for Road
Safety Research, Bestpoint Criteria for Best Practice Demerit Point Systems (2012, 28).
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Level 15/628 Bourke Street
Melbourne, VIC 3000
P: (03) 9236 5000
[email protected]
www.ntc.gov.au
ISBN 978-1-921604-71-3