Bureaucrats went too far on demerit points, lawyer claims

Law firm questions legality of demerit points for work diary offences and launches FOI request to find out

Bureaucrats went too far on demerit points, lawyer claims
Bureaucrats went too far on demerit points, lawyer claims
By Brad Gardner | September 4, 2009

A law firm has raised doubts over the legality of demerit points for work diary offences in New South Wales.

King Christopher Lawyers has found evidence it claims shows truck drivers should not be receiving demerit points if found guilty of work diary breaches under fatigue management regulations.

The firm's David King-Christopher points to the Road Transport (Driver Licensing) Amendment (Fatigue and Speeding) Regulation, which was passed to apply demerit points to fatigue management infringements.

In an explanatory note on the regulation, Minister for Roads Michael Daley writes that those who are "convicted" of offences will receive demerit point penalties.

However, a clause in the regulation goes beyond Daley’s description by extending demerit points "where a court finds the person guilty of the offence".

King-Christopher has launched a freedom of information request to obtain the minutes submitted by Daley to the Executive Council regarding the regulation.

"What those minutes will say is whether demerit points should be applied to those who are convicted [of an offence] or those who are found guilty," he says.

If the minutes show demerit points are only meant to apply to convictions, the firm plans to appeal against instances where drivers have been penalised for being found guilty on the basis bureaucrats went beyond the intention of the regulation.

"I don’t think the Minister and the [roads] department are on the same page," King-Christopher says.

"My gut feeling is there has been a big misunderstanding over what was drafted and what was applied."

Under NSW law, a court can record a guilty verdict for a fatigue management breach but waive financial penalties in extenuating circumstances under the Crimes (Sentencing Procedure) Act.

However, magistrates cannot rule on demerit points, meaning truck drivers who leave court with no financial penalty still face the prospect of losing their licence.

Law Society President Joe Catanzariti says the current policy "is just wrong" because offenders given a second chance by magistrates are still penalised.

The policy has angered many in the industry because drivers are being hit with demerit points for what they claim are minor offences.

One NSW driver faced a $250 fine for incorrectly filling out his work diary. The magistrate, however, decided against fining him because the driver suffered from Asperger’s syndrome, which is a form of Autism.

But soon after the court case was adjourned, the RTA still decided to slug the driver with four demerit points.

Daley last month attempted to put a stop to nit-picking RTA officers, vowing that demerit points will not be issued for insignificant breaches such as spelling mistakes.

However, Daley has refused to abolish the policy despite threats from the Opposition that it will pass a disallowance motion against fatigue management unless demerit points are lifted.

The demerit points policy has also caused confusion, with claims the RTA is telling companies and drivers that magistrates are still responsible for issuing points.

Because of this, drivers who have had their fines waived have left court thinking no other penalty would apply.

An RTA spokesperson says drivers should plead not guilty if they think they have done nothing wrong.

"If they plead guilty, demerit points will always be applied," the spokesperson says.

ATN has contacted Daley’s office for comment.

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