Few loopholes in work diary legislation

By: Sarah Marinovic*


LEGAL OPINION: Can you opt out of Australian work diary laws?

Few loopholes in work diary legislation
"Logbook and licence please": a recent Operation Austrans in NSW

 

There’s a great deal of frustration with work diaries. Many drivers feel trapped, forced to complete and carry a record that is later used as proof to impose fines. I’m sure most drivers wouldn’t feel so frustrated if the system was straight forward, but often the prosecutions are for honest mistakes made in the context of a difficult system.

It’s no surprise in this context that some drivers try to find ways to protect themselves. Often the solutions aim to find a loophole in the rules so that the diary either doesn’t need to be completed or so that it can’t be relied on.

Most of these plans don’t work. In fact many of them are offences in themselves.

Some of the suggested work arounds I’ve heard lately are:

  • Don’t sign the work diary because the authorities can’t force you to
  • Write "subject to mistakes" next to your signature
  • Don’t fill the work diary out because no one can make you create evidence against yourself
  • Argue that the work diary cannot be used as evidence in court because the signature was not witnessed by a Justice of the Peace.

Unfortunately none of these suggestions will work. The work diary legislation contains provisions that address each of them. The law requires drivers to complete the work diary and to sign it. Failing to do so is an offence. Including false or misleading information is also an offence, so mistakes in the work diary can be captured under that. Finally, there’s no legal requirement that a declaration be witnessed in order to be used as evidence.

It’s important to be are aware of this so as not to get yourself in trouble. I often see misinformation shared between colleagues and friends. It’s done with the best of intentions, to help out a mate, but in practice it can have the opposite effect. Not only could you be unknowingly committing and offence, but you’re setting yourself up for a worse penalty.

Courts have discretion to waive or reduce penalties where a driver has made an honest mistake. They also have the discretion to impose harsher penalties if they think the driver is not respecting the law or is deliberately trying to avoid it. Not completing your work diary, refusing to sign it or indicating that you may have made mistakes can come across as though a driver is not sincerely trying to follow the law. This may not be the truth of the situation, but it is how most magistrates will see it.

So not only could you find yourself before a court for an offence that wouldn’t have occurred if you had completed the diary according to the instructions, but there’s a good chance you will also receive a bigger fine than you would have for a simple mistake.

The take-home point is to remember the work diary laws are carefully written to overcome most loopholes. If it sounds too good to be true then it probably is.

If you do have a suggestion that you think could work, then it’s a good idea to run it past a heavy vehicle lawyer before trying it for yourself. My team at Ainsley Law are always happy to chat with drivers. A quick phone call before the fact can save you having to call me for help with a court appearance.

 

*SARAH MARINOVIC is a principal solicitor at Ainsley Law – a firm dedicated to traffic and heavy vehicle law. She has focused on this expertise for over a decade, having started her career prosecuting for the RMS, and then using that experience as a defence lawyer helping professional drivers and truck owners. For more information email Sarah at sarah@ainsleylaw.com.au or phone 0416 224 601.

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