HVNL and nexus

  • 19 Sep 2016
Key Points
  • The HVNL deals with multiple jurisdictions offences.
  • Nexus is potentially an issue where multiple jurisdictions.
  • The HVNL deals with nexus issues in Part 1.3.

Since HVNL offences (particularly corporation offences) may occur in multiple jurisdictions, simultaneously or consecutively, is it necessary for explanatory provisions regarding nexus?

It is always an interesting discussion when looking at potential charges against parties in the chain of responsibility to consider any nexus issues.

We note that there already exists, in Part 1.3 of the current HVNL, provisions dealing with its extraterritorial application.

Even if the HVNL was silent as to geographical nexus where offences occurred in multiple jurisdictions or outside NSW, the legislative framework creates criminal offences, punishable by fines and custodial sentences.

Part 1A of the Crimes Act 1900 (NSW) (“Crimes Act”) deals with the issue of geographical nexus and applies to all offences.

Section 10C(2) of the Crimes Act provides that a geographical nexus exists between NSW and an offence where:

  • The offence is committed wholly or partly in NSW; or
  • The offence is committed wholly outside NSW, but the offence “has an effect” in NSW.

Applying these provisions to any road law offence, it is likely that any offence under the provisions of the HVNL would be committed at least partly in NSW, and would not come to the attention of the NSW delegate Regulator otherwise.  If the offence were committed wholly in another State, ostensibly the corresponding delegate Regulator in the State in which the offence was committed would assume responsibility for the prosecution.

In the event an offence occurred wholly outside NSW but, for some reason, there was a desire to prosecute in NSW, the prosecution will need to demonstrate, if the issue was raised by a defendant, that the offence committed has an effect in NSW.  Section 10B(3) of the Crimes Act provides an offence “has an effect” in any place whose “peace, order or good government” is threatened by the offence, and any place in which the offence would have an effect, or would cause such a threat, if carried out.  The success of proving this matter will depend on the nature of the offence, including its categorisation, any effect on public safety and any specific effects on corporations or individuals in NSW.

It is therefore our current view that it is not necessary to include explanatory provision regarding geographical or jurisdictional nexus as there is sufficiency of it in the HVNL and also the NSW crimes legislation.

Post by Philip Cowdery 

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