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Dodgy fruit from the TfNSW tree

OPINION: Did you view an identity card the last time a TfNSW officer handed you a pineapple?

 

Those of us that have been around the road transport industry for more years than we care to remember will recall the many guises of what we know as Transport for New South Wales (TfNSW). It all began back in 1932 when the Department of Main Roads (DMR) was created. It was responsible for a significant road construction and maintenance period throughout NSW. DMR was also responsible for many ferries and bridges throughout the state.

In January 1989, the DMR, Department of Motor Transport, and The Traffic Authority all amalgamated to become the Roads and Traffic Authority (RTA). This was legislated under the Transport Administration Act 1988 (NSW). The RTA was created as a state-owned corporation (SOC). It was done so for a specific reason. Nick Greiner, Premier at the time, introduced the SOC Act in 1988 in line with his vision to run NSW government like a business.

The RTA was created as a corporation and a state government agency rather than a government department because Greiner anticipated selling it off at a later stage. Sounds familiar, doesn’t it?

In November 2011, the RTA merged with NSW Maritime to become the Roads and Maritime Service (RMS). This is the guise most of us know and love/despise, depending on where you sit. In December 2019, the RMS was dissolved by an Act of Parliament, and TfNSW was created.

One may ask, why did this all happen? We will get the usual spin about efficiency and modernisation from the spin doctors, but the enforcement and sanctions seem to go on regardless of what they are called this week or the next. However, there is a little story we all should know that might inject some clarity.

RMS departure

In June 2018, a woman called Victoria Leeman sought relief through an application under section 789FC of the Fair Work Act 2009 as a “worker who reasonably believes that he or she has been bullied at work”. Victoria believed RMS employed her at the time.

In what could be described as a spectacular “own goal”, the NSW Crown Solicitor’s response was to submit that the Fair Work Act did not cover Victoria Leeman as the RMS does not, and cannot, employ anyone directly. Section 47A of the Constitution Act 1902 (NSW) precludes TfNSW, the State Transit Authority, and RMS (and any of their public subsidiary corporations) from employing staff.


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Let us just let that sink in for a minute, shall we? If the RMS could not employ staff, all the inspectors and other enforcement personnel were employed by whom?

The Fair Work Commission (FWC) went on to state that although Victoria Leeman was not employed by RMS, it did not preclude her from being “at work in” RMS. The FWC also stated that the RMS was a constitutional trading corporation, therefore captured by the Fair Work Act. A subtle difference indeed. The FWC concluded that RMS engaged in substantial trading activities. An interesting point to note also was the fact that RMS had several business names registered with ASIC at that time. ASIC publicly listed RMS as an unincorporated entity, the direct opposite of a corporation.

The RMS appealed the decision and lost again. The RMS disappeared not long after this decision, replaced by TfNSW. The Constitution Act 1902 (NSW) now states that an NSW government agency (TfNSW) cannot employ persons unless legislation specifically authorises it to do so.

It also states that the holding of any office under The Crown shall continue despite the demise of The Crown. An oxymoron of sorts.

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This is all very interesting to probably not many of us, but what does it mean for the industry in real terms? As opposed to police, transport inspectors do not have any inherent jurisdiction. In short, their uniform gives them no authority. TfNSW operates predominately in the enforcement area under delegated authority given by legislation. For instance, to enforce the Heavy Vehicle National Law, inspectors rely upon express authorisation by instrument from the National Heavy Vehicle Regulator (NHVR).

The question we may all ask now is this. How could those officers be authorised if the RMS did not employ them? It is a question that may never be answered but needs to be asked nonetheless. Even today, TfNSW officers have no authority without that individual authority given in the form of the identity card. That card must be produced for inspection or be on prominent display before any enforcement powers may be employed.

Think back now to when you have received that pineapple. Was that card produced or on display?

If not, anything that happened afterward possibly becomes “fruit from the poisoned tree”.

Team changes

Since our previous article, we have had significant changes in Highway Advocates. Travis McGeachy, a senior solicitor, has joined us and has had some great success in court already. Travis is a valuable addition to the Highway Advocates team.

We have also partnered with the professionals at HSE Global Pty Ltd. Owen Corey and Graham Agnew are highly experienced in the compliance and auditing field and bring their wealth of knowledge to bear on enforceable undertakings and other services that
we offer.

 

*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.

Photography: Greg Bush

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