Opinion, Robert Bell

Erroneous authority – Highway Advocates

Highway Advocates

With the National Heavy Vehicle Regulator (NHVR) now operating in full swing in Queensland, the Regulator now prosecutes in every participating state and territory.

Of course, this is notwithstanding the fact that the Heavy Vehicle National Law (HVNL) does not apply in what comprises over 50 per cent of Australia’s land mass (Western Australia and Northern Territory).

The HVNL is drafted by the National Transport Commission (NTC) who write the Law, then give it to Queensland to enact. The Regulator is a corporate entity created by section 656 of the Law, and they have taken 10 years to establish themselves as a road and prosecuting authority in the very state they call home.

We can establish from all of the above that the HVNL is State Law, not Federal, and the individual states and territories may do what they like with the Law, and they often do. The devil in the detail can be found in the various adoption and application laws that establish the parameters for the Law as it stands in those states and territories.

The HVNL, as state law, is subject to the nuances of state and territorial legislation, which can create significant differences in how the law is applied from one state to another.

What we are about to tell you highlights the challenges in creating a uniform law that operates across state borders where each state has the authority to adapt the law to its specific needs and constitutional mandates.

HVNL section 16 purports to give the Law extra-territorial jurisdiction, as far as possible. This was an attempt by the NTC, in our opinion, to make a silk purse out of a sow’s ear, to give the Law something that only Federal Legislation may do. That is to have reach across state borders when no other state or territory legislature may have similar effect.

The caveat in section 16, as far as possible, restricts the Law to have jurisdiction on events or offences that occur in or of the state or territory concerned. The various state and territory constitutions and self government acts restrain the Law in this fashion.

Misguided police

Here at Highway Advocates, we often encounter matters prosecuted by various police forces who seem to be under the mistaken belief that their authority extends beyond the borders of which they are confined. It is important to remember this, and for you to get your court papers to us as soon as possible so we can examine them for this important detail.

This requirement flows from the state constitutions and the self-government acts of the territories, which relevantly mandate the state or territory laws must be for the ‘peace, order and good government’ of the state or territory concerned.

What this means for many of you reading this, is that the Law may have extra-territorial effect under certain circumstances. For example, if you are a truck driver on a journey from Bundaberg to Melbourne and you are wheeled into the pads at Moree, your work diary and any breaches detected may have an effect on the peace, order and good government of NSW.

However, if you are wheeled in the Broadford weighbridge in Victoria, and a zealous police officer seizes your work diary and goes back through camera sightings in Queensland, they may have a problem. We often encounter this scenario when many or all the alleged offences did not occur in or of the state in which they are detected.

If this occurs, it is important to get us to remind the various prosecution authorities of the extent of their authority, or that of the courts in which the prosecution has nexus.

While in Victoria, it is salient to have a look at the Application Act in that state for some more legislative quirks. The Application Act (Vic) section 12 provides that only ‘members of the force’ are authorised officers for the purposes of The Law in Victoria. Section 17 states the relevant road authority is the ‘Roads Corporation’.

This now begs the question, who is operating the vehicles operating in Victoria painted up in NHVR livery? Only a police officer may be regarded as an ‘authorised officer’ in this jurisdiction. HVNL s 583(1) purports to empower the Regulator to exercise a power that is conferred upon authorised officers under this Law, accordingly the functions of the Regulator include the powers exercisable by the Regulator under this subsection.

However, pursuant to HVNL s 583(2), that power does not extend to a power that requires the physical presence of an authorised officer. Clearly, something for us all to ponder.

If the Regulator does not possess authority when that authority does not extend to anything that requires the physical presence of that said officer, who then is demanding that you produce your work diary and licence on the roadside?

Unanswered questions

The role of the NHVR and police, combined with the limits of their authority, especially in scenarios where offences are detected outside the jurisdiction where they occurred, are particularly critical, and may mean the difference between multiple charges with potentially crushing penalties and demerit points, or no charges at all in some cases.

These questions, and many more like them, remain to be answered. For truck drivers and companies operating under these laws, understanding these details is crucial to navigating the legal landscape effectively and ensuring compliance while minimising legal risks. But there is one thing that all of you can be sure of. Highway Advocates will not shy away from asking these puzzling questions, even if we know the correct answer.

Highway Advocates, keeping you on the road where you belong.

Robert Bell

Robert Bell, together with his team of legal professionals, are Highway Advocates Pty Ltd, a legal practice focused on heavy vehicle drivers and operators. It is their unique ‘Industry Insider’ advantage that keeps them at the forefront of this area of law. Robert’s experience in the transport industry, coupled with his insight, is a guiding force for the team of legal professionals appearing in Courts all around Australia, achieving outcomes that consistently exceed expectations. Highway Advocates are lawyers to the heavy vehicle industry, keeping you on the road where you belong. Contact Highway Advocates on 1300 238 028 or send your court notices and enquires to info@highwayadvocates.com.au

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