Archive, Industry News

Inconsistent state laws a bugbear for truckies

OPINION: NSW has never forgotten the rejection over Queensland being awarded the HVNL guernsey

 

The current vibe around the transport industry is New South Wales transitioning to the National Heavy Vehicle Regulator (NHVR) for heavy vehicle enforcement in August 2022. Currently Transport for NSW (TfNSW), or whatever they are called this week, undertakes enforcement duties across various legislative instruments in NSW.

Those who travel through NSW regularly will know that this is a role that TfNSW cherishes and it remains to be seen if the Regulator will change the way things are done. We can only hope so.

Perhaps then we may see the end of some of the offences we encounter in our daily practice. Offences such as deeming an interstate registered heavy vehicle unregistered even when it is validly registered. We often wonder how something can be deemed unlawful in NSW when is it perfectly lawful elsewhere in the country.

The Regulator boasts how they will offer a more streamlined approach and a greater degree of consistency in regulating heavy vehicles. Maybe the enormous fines and points imposed if your trailer wheels drift over the edge line in a Safe-T-Cam or average speed zone may be looked at once the Regulator becomes the new ‘Sheriff’. These offences face some complicated statutory construction questions, in our opinion.

State management

Road transport is a state issue constitutionally – and so is licensing and registration. The Feds only have jurisdiction over the National Highway system and even then they allow the states to manage them through funding arrangements. This roundabout way brings us back to the Heavy Vehicle National Law (HVNL) and the Regulator. The HVNL is a schedule to the Heavy Vehicle National Law 2012 (QLD), which is applied in Queensland by the 2012 Act—confused yet?

The NHVR was created in 2013, a creature born out of the National Heavy Vehicle Law (Qld). We need to strip it back to understand how the law works.

The HVNL, which is applied through an application law of a state or territory, is drafted by the National Transport Commission (NTC).

The NTC is a Commonwealth entity with no legislative authority to enact laws or statutes. It drafts model legislation that is then applied or adopted by a state or territory. In the case of the HVNL, Queensland got the guernsey. This brought a smile to the face of the cane toads but peeved the cockroaches at the time and they had never forgotten this snub. NSW might have had a chance if it had gotten rid of its contemporaneously superfluous Legislative Council like Queensland did in 1922.


RELATED ARTICLE: Complexity in HVNL legislation


One clue to the Queensland connection in NSW is HVNL (NSW) section 730 – National Regulations which provides for the purposes of this section. The designated authority is the Queensland Governor acting with the advice of the Executive Council of Queensland on the unanimous recommendation of responsible ministers. Section 730 defines the ‘Queensland Governor’ as the Governor of the State of Queensland. The ‘Queensland Governor’ appears to become the ‘Governor-General’ for the purposes of the HVNL.

This is all very well, and we mean no disrespect to the Vice Regal institution in Queensland, but this is NSW we are talking about. In fact, any other states and territories that apply or adopt the HVNL. The National Regulations contain all the fine detail, the nitty-gritty that has a sting in its tail. We are not convinced that the Queensland Governor has any authority beyond the Queensland border.

Hip pocket pain

Regulations, or rules as they are known sometimes, do not pass through the process of parliament in the same way as acts or statutes. But these regulations, in many cases, affect us where it hurts – in the hip pocket. The complexity increases exponentially as a result. So, when we speak of the HVNL, we must also consider the regulations—feeling that streamlined effect yet?

2. truckie with lawyer owd june 2022 .jpg

Another aspect of the law that rails many is the criminality aspect. It is widely considered that most of the offences under the law and regulations may be considered regulatory in nature. The penalties in many aspects are manifestly excessive compared to most others. With the introduction of demerit points applied to some fatigue and defect offences in 2018, the overall penalty can be crushing.

What if these offences were not meant to be criminal in the first place? Again, we look at how the law is drafted, applied, or adopted.

When the NTC drafted the Law, they tried to make it ‘one size fits all’, but of course all States and Territories do it differently. They all have nuances, and the courts and tribunals vary. Therefore, each jurisdiction must make certain declarations in their application/adoption Acts to adapt these variances. One such declaration is ‘relevant court or tribunal’.

Let’s look at how each State or Territory has made such a declaration:

• Queensland – QCAT
• NSW – Local Court but doesn’t state whether in Civil or Criminal Jurisdiction
• ACT – ACAT
• Victoria – VCAT
• South Australia – Administrative and Disciplinary Division of the District Court
• Tasmania – Magistrates Court (Administrative Appeals Division) is declared to be the relevant tribunal or court for this jurisdiction for the purposes of Chapter 11 of the Heavy Vehicle National Law (Tasmania); and the Magistrates Court is declared to be the relevant tribunal or court for this jurisdiction for the purposes of all other Chapters of the Heavy Vehicle National Law (Tasmania).

Clear as mud as they say. In Victoria and SA, where the Regulator has set up camp already, we see police intercepting drivers and operators, issuing breaches, and then handing them over to the Regulator to prosecute. Is that something we can look forward to in NSW also? Will the NHVR allow multiple contraventions to be put on a single court attendance notice?

In one recent outcome we successfully achieved 20 dismissals on a 20 sequence court attendance notice., including seven critical breaches. Unfortunately, our client recently received a demand to pay over $3,500 in court fees and levies. We are onto that as this goes to print, but this has to stop. Multiple offences bite in so many ways.

One thing is for sure, though, this law is anything but streamlined and consistent. If you get snared by it, talk to Highway Advocates. We know what you need to know and always strive to get the best possible outcome for our clients. We are a genuinely national law firm.

 

*ROBERT BELL, a former truck driver and current law undergraduate and practising paralegal, is the CEO and a director of Highway Advocates Pty Ltd. Contact Highway Advocates Pty Ltd on robert.bell@highwayadvocates.com.au
or phone 0488 010 101.

Previous ArticleNext Article
Send this to a friend