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The HVNL has the power to raid YOU – Do you know your rights?

February 14, 2019

 

Under the Heavy Vehicle National Law (HVNL), the Roads and Maritime Services (RMS) and the police have significant powers to enter premises and seize materials.

The enforcement powers authorised officers have

Authorised officers are generally employees of state and territory regulators such as the RMS. Police officers are also given powers under the HVNL in addition to their regular powers. Both are authorised under the HVNL to carry out monitoring and investigations involving inspection and seizure of documents and materials that may be evidence of breaches of the HVNL.

An authorised officer may only enter a place without the occupier’s consent if they have a warrant, unless the place is open for carrying on a business or required to be open for inspection under the HVNL. An authorised officer must identify themselves and tell the occupier the reason for entry.

After lawfully entering a place, an authorised officer has a number of powers of investigation, including to search, inspect, examine and film documents or materials, as well as take an item or a physical or electronic copy of a document.

Information you will be asked for in a raid

You should keep records of your compliance with the HVNL for five years. The information that you may be required to produce for the regulator or a court will vary depending on the alleged breach. Generally, you are likely to be requested to produce applicable documents including, but not limited to:

  • Chain of Responsibility (CoR) policies and procedures;
  • work/rest diaries;
  • vehicle maintenance records;
  • training and induction records; and
  • transport provider contracts.

What you should do if your premises are raided

If your company is raided, you must ensure that the scope of the investigation is clearly set out in the search warrant and that only persons and materials relevant within the limits of the investigation are interrogated or seized.

If the RMS or the police raid your premises for HVNL-related information, you must provide all reasonable assistance to the officials within the following parameters:

  1. Ask to see the search warrant and the official’s identity card and make copies of these documents. If the officer fails to produce identification, you may refuse entry until they do so.
  2. Co-operate with the officers but do not volunteer information. You must not obstruct the officers from entering the premises or during the search, but you may assign a person to shadow the officers at all times.
  3. Do not make any statements or answer any questions without a lawyer or senior manager present. You may wish to ask the officers to wait in a meeting room with no records in it until a senior manager or lawyer arrives. Request that you be given time to brief the business, the shadowers, relevant employees and the IT managers. However, if the officers insist on initiating the inspection, you must comply.
  4. Tell the officers that they may not interview employees without the presence of the senior manager or lawyer, and that they must be shadowed by a lawyer or a senior manager at all times.
  5. Establish what the officers want to see – which employees; offices, cabinets and records; whose laptops; which IT accounts; which IT servers; and how long the inspection will last?
  6. Do not destroy, throw away or hide any documents, material, emails, computer files, etc.
  7. Do not tell anybody about the raid who is not required for the investigation. Brief the relevant employees and make sure that they are aware that they need to be available throughout the entire day. They cannot alert third parties or inform anyone outside the business nor destroy/hide documents including emails or access to email accounts; and they should not answer any questions without the presence of the senior manager or lawyer.
  8. Keep a written or audio record of all questions and answers. Make sure you have a copy of all documents copied by officers.

Don’t forget about legal professional privilege

Officers conducting a raid are not entitled to compel a person to produce a document that would disclose information that is subject to legal professional privilege.

Privileged documents include written communication between a company and an independent external or internal lawyer where the communication was made for the dominant purpose of:

  • obtaining legal advice; or
  • assisting in, or for use in, actual or contemplated legal proceedings.

If legal privilege over a document is claimed, the document should be placed in a sealed envelope under the supervision of an officer.

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