Legal Opinion - Penalties unbalanced


Truck operators are professionals; we need to stop treating them like criminals

Legal Opinion - Penalties unbalanced
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Because of COVID, every Australian has realised that truck drivers and operators are essential to our health and wellbeing. They have kept working during the crisis and put their own health on the line. Drivers are spending long hours on the road, complying with changing border restrictions, and sacrificing their family time so the rest of us are looked after. Now, more than ever, society needs to recognise their professionalism and support the industry. One way of doing this is to rethink the way the industry is regulated.

At this point in time, it is a crime if an operator or driver breaches the road rules or the heavy vehicle laws. It’s no different from any other criminal offence like theft or assault. You can get a conviction, a heavy fine and, with the added punishment of demerit points, it can destroy your business, your career and your livelihood. This is the last thing we need now.

However, we believe there is an alternative to the criminal approach. It is possible to regulate the heavy vehicle industry in a way that recognises its professionalism, ensures fair outcomes and enhances road safety.

Demerits system

Firstly, the demerit point system for professional drivers needs to be reviewed or replaced with a fairer scheme.

In most jurisdictions, a heavy vehicle driver gets the same number of demerit points as the driver of a light vehicle. This fails to consider that in a 12-month period, a heavy vehicle driver covers 15 to 20 times the number of kilometres of an ordinary driver. Yes, you are professional, and society expects you to drive to a higher standard. Still, you are more likely to incur demerit points because of the extra time spent on the road and the fact that offences are applied exclusively to heavy vehicle drivers. It is unfair to suspend your licence for incurring 12 demerit points over a three-year period, during which you could have clocked up 600,000km: it would take a light vehicle driver 30 to 40 years to drive this distance.

New South Wales is slightly more generous and will only suspend a professional driver’s licence if they have 14 points. However, this is only available if your licence is issued in that state; if you are an interstate licensed driver passing through NSW and you commit a demerit point offence you are limited to 12 points. And some states and territories have double demerit points which in effect alters the intention of parliament when the law was passed. The inconsistencies between the states for what is intended to be a national scheme, is unfair and may even be unconstitutional.

Demerit points are an "extra-curial" penalty. This means they are a "punishment that is inflicted upon an offender otherwise than by a court of law": R v Wilhelm [2010] NSWSC 378. The courts should have a discretion not to impose demerit points if, for example, the driver would lose their licence and the overall outcome is disproportionate to the nature of the offence.

And the demerit points system is a blunt instrument that doesn’t differentiate between drivers who deliberately flout the law and those who make honest mistakes.

Tribunal alternative

Secondly, the heavy vehicle industry should be regulated like any other profession or industry where breaches of the rules are dealt with by a disciplinary procedure not by a criminal court. What would this look like?

If an operator or driver is charged with a fatigue, overloading or any other breach, they could elect to go before a road transport tribunal which would consist of members from the industry, lawyers and other relevant experts who are qualified to assess the nature and seriousness of the matter. The operator or driver would appear at the hearing, explain the circumstances, provide any evidence and answer questions. Using their expertise, the tribunal members could assess the degree of risk arising from the breach.

The tribunal could impose a range of sanctions including a warning, a reprimand, an apology, a course of training, conditions on the driver, a fine, a suspension of licence, or even disqualification. None of these sanctions would be criminal. They would not show on a criminal record but would be listed in your traffic history.

In Australia, tribunals regulate the conduct of teachers, nurses, doctors, lawyers and many other professionals. The UK has already decriminalised parking and some traffic offences and established a Traffic Penalty Tribunal to review these cases. We think a similar approach is needed for the heavy vehicle industry.

By treating operators as professionals rather than criminals, all of society wins and no-one goes without. Highway Advocates always promotes the fact that every defendant truck driver we represent has a story worth hearing. 

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*Adam Cockayne is the legal practitioner director of Highway Advocates and is a lawyer with 25 years’ experience in criminal and administrative law. Robert Bell, a former truck driver, and current law undergraduate and practising paralegal, is the CEO and a director of Highway Advocates. Contact Highway Advocates on robert.bell@highwayadvocates.com.au or phone 0491 263 602.

 

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