By Maurice Lynch, Partner, Amanda Lazarou, Senior Associate and Mousa Ayache, Paralegal

NSW directors and company found criminally liable, convicted and fined for breaches of the HVNL.

Background

The Heavy Vehicle National Law (HVNL) is Australia’s unified regulatory framework for heavy vehicles over 4.5 tonnes gross vehicle mass. It sets minimum standards for vehicle operation, driver conduct, and business practices across six participating jurisdictions, administered by the National Heavy Vehicle Regulator, and applies in Queensland, New South Wales, Victoria, South Australia, Tasmania, and the Australian Capital Territory. It places legal obligations on every party in the supply chain – not just the driver or operator – and includes regulations throughout the chain of responsibility for the safety of transport activities relating to a vehicle for fatigue management; mass, dimension and loading; and vehicle standards. Penalties for breach range between $70,000.00 to $400,000.00 (together with up to 5 years imprisonment) for individuals; and $700,000.00 to $2,100,000.00 for corporations.

On 11 June 2023, a coach travelling towards the Hunter Valley NSW, rolled over. The crash resulted in the death of 10 passengers and injuries to 25 passengers. The driver of the bus had an opioid in his system at the time of the incident. On 26 August 2026, the driver’s employer, Linq Buslines Pty Ltd (Linq) and two of its directors, were convicted of breaches of the HVNL, and each fined $12,000.00, with the company receiving total fine of $650,000.00. The directors pled guilty to two breaches of the between November 2022 and June 2023 based on agreed facts which read that they “failed to take reasonable steps to ensure that appropriate action was undertaken to manage and address issues identified over speeding in a timely manner”.

The allegations against Linq were that their recruitment processes were inadequate, and it failed in its management of driver speeding and fatigue. Under the HVNL, the executive of a heavy motor vehicle operator must exercise due diligence to ensure that heavy vehicle operators comply with their safety duties under the regime. In the present case, the Court was critical of Linq’s reference checks during recruitment and found it had breached their duty of care by employing the driver, despite having knowledge of the driver being stood down by a previous employer for an opioid dependency. Additionally, the company had no policies requiring potential drivers to undergo a medical assessment or fill out a medical fitness form, nor was there a requirement for drivers to produce a driving record and provide valid references or referees from previous employers.

The presiding Judge stated that: ‘directors cannot put their hands over their ears and rely on a policy’ and ‘that there needs to be a higher level of due diligence when recruiting drivers of heavy vehicles’. The Court found that the company and its directors had placed the community at risk throughout the time that the driver was employed in their recruitment and retention of the bus driver. Further, they had failed to identify and assess the risk the driver posed, particularly with his opioid dependency. Put simply, the Court has clearly stated that the onus is on corporations to proactively take steps to ensure compliance with the legislative framework – and any breaches will be treated seriously. Processes without proper application and adherence will be considered lip service to the HVNL requirements.

Takeaway

The mere fact that an operator has a policy in place to address compliance with the HVNL will not mean that the operator and its executives will be found to have complied with their obligations under the HVNL. It is simply not enough to have a process in place, corporations must walk the walk and talk the talk. Operators need to make sure that they:

• have, maintain and regularly update a robust due diligence system and evidence of this reflecting the clear requirements of the HVNL – particularly regarding recruitment, retention and employee management. These policies should address medical fitness.
• evidence of action plans and workable systems to ensure that appropriate notifications are made when a driver breaches heavy vehicle legislation (e.g. past/present drug use).
• carefully consider a prospective employee’s past driving history and its impact on current operations including the risk that past history poses to road users and others in the chain of responsibility.