Archive, Industry News

Fickle enforcement rules a state circus

OPINION: If you are from another state operating in NSW, TfNSW will still keep an eye on your demerit points

 

I recently spent some time flying around the country and caught up on some reading. Being the sad puppy I am, I threw a couple of textbooks in my bag while packing. As luck would have it, one of those textbooks was about constitutional law. Reading it got me thinking about a few things we come across here at Highway Advocates. Things that don’t seem fair at all.

Victoria gets the guernsey first up. Its traffic camera and enforcement system, in our opinion, has problems. They are totally outsourced to multinational corporations, with camera images that can be edited with basic software. Victoria Police are orchestrating the whole process. This alone is worthy of mention.

The sentencing laws in Victoria stand alone also. A section 76 unconditional dismissal means that a court, on being satisfied that a person is guilty of an offence, may (without recording a conviction) dismiss the charge. In Victoria, unlike other states, if you receive an unconditional discharge or dismissal upon a guilty plea, you will still cop the points or suspension. With some fatigue and vehicle defect breaches carrying demerit points in the Heavy Vehicle National Law (HVNL), you would think that sentencing would have some uniformity between states. Only in Victoria can you escape conviction yet still be punished.

Victoria gets a tick elsewhere, though. B-doubles in Victoria get to operate at higher mass limits (HML) weights as of right on most roads. The only criteria are that you have to be eligible for concessional mass.

However, travelling up the east coast into New South Wales and Queensland is an entirely new ballgame. They require operators to have expensive permits and software, and travel is restricted to certain roads. Yet, if you get breached on a mass contravention, you are prosecuted under ‘national’ regulations. What would Messrs Quick and Garren, the framers of our constitution, think of that?


RELATED ARTICLE: Inconsistent state laws a bugbear for truckies


Demerit points are another vexing issue. NSW and Queensland come in for special mention. In NSW, it has a professional driver provision in its licensing regulation. A professional driver licensed in NSW is entitled to 14 points, as opposed to 13 points for other NSW full licence holders. It has been changed somewhat recently and only kicks in if you are a NSW professional driver facing a demerit point suspension. If you incur 14 or more demerit points as a professional driver in three years, your licence will be suspended. The suspension period depends on how many points have been accumulated.

The suspension periods for professional drivers in NSW are:

• 14 to 15 demerit points – three months
• 16 to 19 demerit points – four months
|• 20 or more demerit points – five months.

In Victoria, Queensland, South Australia and Western Australia, for 12 points or more, you walk or travel the golden point path. Wander off that golden path and you cop a suspension generally double the one you would have gotten originally.

 

This is where it gets interesting. If you are a professional driver from another state operating in or through NSW, Transport For NSW (TfNSW) will still keep an eye on your demerit points. If you reach 13 points in NSW, you will get a letter (perhaps) stating that you cannot drive in NSW for a specified period. Yet your NSW-licensed cobber gets to drive on with their extra point.

Even worse, the state where you are licensed may decide to suspend you. The state where you’ve recorded the offence will generally advise your home regulatory authority of your crime. You will then get the points or suspension that would have applied if you’d committed the offence in your jurisdiction.

ACT and Northern Territory drivers can magically avoid being demerited for offences they incur elsewhere. And it can happen to drivers from other states as well, particularly if they commit their crimes in the territories. What makes federal territories so unique?

Queensland has gotten particularly inventive on this one. It applies double demerit points to Queensland-licensed drivers if they commit certain offences within a specified timeframe, even though they are not double demerit point offences in the state where the offence occurred. Does your head hurt yet?

All this and more. Remember, the Australian Road Rules agreement was dreamed up in 1999 to ensure we have some national uniformity. It was assumed that various demerit point schemes would follow suit. The Heavy Vehicle National Law had a similar purpose when discussed at the Council of Australian Governments. The National Transport Commission (NTC) frames it like this:

“The HVNL is the result of a collaborative process led by the NTC. It involved industry and government to develop a nationally consistent approach to heavy vehicle legislation and regulation based on model laws developed by the NTC.”

Are we all feeling that nationally consistent love yet? With the NHVR taking over enforcement duties in NSW in August and (perhaps) Queensland next year, we should start seeing a more consistent approach. Or will it simply be a case of Coke or Pepsi – different coloured shirts but the same stuff inside?

At Highway Advocates, we operate in all jurisdictions and apply a consistent national approach. We must navigate a myriad of complex legislative provisions and constantly changing practice notes and court procedures. We are the link between your world and the law world.

 

*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

Previous ArticleNext Article
Send this to a friend