Opinion, Robert Bell

Fined for the hell of it

OPINION: Police are now using Google’s driving time logarithm to form evidence against truck drivers.

As some of you reading this may know, Highway Advocates was founded upon an idea, one that meant that drivers and operators might begin to receive advocacy aimed squarely at what many regard as oppressive enforcement. That was two years ago, and much has happened since then.

If you think enforcement was tough back then, you ain’t seen nothing yet … as they say. The National Heavy Vehicle Regulator (NHVR) was not then ensconced in New South Wales and we had still not seen the end of the
COVID-19 restrictions and the accompanying permits. Let’s not forget the $5,450 fines handed out like raffle tickets for the slightest error with those confusing and everchanging permits.

Much has been written about Police enforcing the Heavy Vehicle National Law (HVNL) and now we also have the NHVR expanding their wings. Transport for NSW and Transport and Main Roads (Qld) are also dipping into your pockets.

One glaring takeout we see across the board is the absolute lack of discretion applied combined with, in many cases, blatant overcharging. Many clients come to us with multi-sequence matters; the current record is 77. NSW and Victorian Police are the main culprits, with South Australian Police coming not far behind.

5 Copper in court may 2023.jpg

In NSW, multi-sequence court attendance notices have an extra sting in their tail. Each sequence attracts a $175 court cost and victim impact levy.

In a recent NSW matter, the NSW Highway Patrol, having seized our client’s work diary, proceeded to charge him with 49 sequences under the HVNL. This alone would attract $8575 in court costs, notwithstanding over $500,000 in potential maximum penalties and 21 demerit points.

The court costs are regarded as a fine under the Fines Act in NSW and are vigorously pursued as such.

This matter was finally dealt with under appeal to The District Court. Our delighted client received a total fine of $1000 and four demerit points. The Court, upon our representations, considered the combined effect of the potential fines, court costs and demerit points, and resentenced accordingly.

Our question is, therefore, why can’t prosecuting authorities do the same?

Zero discretion

In NSW, police can put charges on what is known as Form 1. What this means, in effect, is that only one principal charge may be put to the court, while the others are listed but not charged. This aligns with the known principles of totality and multiple offences. There are provisions in the HVNL that also deal with these principles. In addition, HVNL s590 provides that an authorised officer may give a formal warning for many offences under the Law, excluding substantial and severe mass, loading and dimension offences, and substantial, severe and critical fatigue breaches.

Let’s not forget that minor fatigue breaches for exceeding maximum work periods for standard and BFM hours are not considered contraventions of the law anyway. Yet, they are all routinely prosecuted without discretion. It’s almost as if they want to take drivers off the road and destroy lives.

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We also have concerns about how evidence is obtained. In the case above, many of the 49 sequences were charged using Google Maps. Not just the maps feature itself but the average driving time logarithm that Google utilises. Many of the sequences had an average speed of less than 90km/h, yet the police stated that Google said it would take a ‘light Vehicle’ over an hour to travel that same route.

We would probably find thousands of Google search results that indicate the earth was flat if we needed to. Would that stand up as evidence? Probably not.

Similarly, police are obtaining GPS data from the ‘responsible person’ for the heavy vehicle, then reconstructing drivers’ work diaries to allege fatigue and false and misleading entries. We say there is no lawful avenue for the police to reconstruct in this manner. However, the elephant in the room is the Chain of Responsibility (COR).

Suppose the person responsible for the heavy vehicle supplies the GPS data to the police. Doesn’t the responsible person for the heavy vehicle need to check the drivers’ work diaries against that GPS data to ensure compliance? One would hope that this was not an actual business model.

EWD evidence

One of the tools in our substantial arsenal is our partnership with Logmaster. Their electronic work diaries (EWDs) and Transport Compliance Module are second to none. Often, when appearing in court with these multi-sequence matters, one of the major factors, in many cases, of having all charges dismissed without conviction, are work diary entries produced by Logmaster. They show The Court that our client has accepted responsibility, is remorseful and unlikely to re-offend in the future.

Numerous electronic work diaries are available today, but there is only one that Highway Advocates chooses to partner with. The Logmaster platform allows users to share their driving and compliance records with us so that we may demonstrate to The Court these important principles. With supervised intervention orders becoming more common, we can also comply with order requirements easily, saving our clients an administrative burden.

So, contact us when you cop those multiple charges. As lawyers to the transport industry, you can benefit from our industry insider experience combined with the obvious benefits
that a Logmaster Regulator-approved EWD and Transport Compliance Module may bring to the table (or bar in some cases.) 

ROBERT BELL, a former truck driver and now managing director of Highway Advocates Pty Ltd, and his team of legal professionals assist truck drivers and operators across Australia. Contact Highway Advocates at admin@highwayadvocates.com.au or 0488 01 01 01. Visit their website at www.highwayadvocates.com.au

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