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Law of the land: needless complexity in HVNL

OPINION: HVNL inconsistencies across the states and territories are enough to make you go “Hmmm!”

Heavy vehicle legislation is becoming increasingly complex. Remember when they said the Heavy Vehicle National Law (HVNL) would make things easy to understand? We see the whole range of offences and enforcement across the country here at Highway Advocates, and they have us scratching our heads on more than one occasion. This month’s column will detail a few that might have you scratching yours.

Does calling a law national make it so? If Queensland had a law called the National Parks Act (QLD), could that law apply to all National Parks across Australia? Western Australia and Northern Territory have yet to sign on the dotted line for the HVNL. The NT originally signed, but they must have their toes crossed. They reneged soon after. Could that be something to do with the fact that the NT is a Federal Territory, not a State?

A Federal Territory, even one with a self-government act like the NT, would have problems enforcing another State law. Hence, no HVNL in the NT.

Western Australia has always wanted to do its own thing and the HVNL is not its thing at this point in time. However, drivers from participating States still have to comply with the HVNL for up to seven days while operating in WA. Think of it this way, if you will. While in WA you must comply with Queensland legislation in a State that does not apply that legislation. Does your head hurt yet?

A driver (or subject of The King) who is a resident in another State, is then treated differently to a resident of WA while in that State. That starts to take the shape of the number 117. To make matters worse, cameras have been installed in WA that monitor interstate driver movements while in WA. How does this happen? Because we let it!

Under surveillance

Turning now to the eastern states, in particular NSW. Here comes another head-scratcher. The Safe-T-Cam system came about because of reforms implemented after the tragic Grafton and Kempsey bus and truck crashes. They are used as surveillance devices, not unlike CCTV. ‘Outsourced’, like almost everything in NSW, they are now used for a whole raft of offences.

Many operators around the country will relate to receiving notices to produce purporting to force operators to disclose drivers’ names and addresses under the threat of heavy fines. The wording on the notice goes a little bit something like this:

“Your vehicle was detected travelling between Safe-T-Cams faster than the allowable travel time. Therefore it is alleged you have committed an offence under the HVNL.”

OK, so what is the allowable travel time? What is the offence?


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Frequent enquiries draw a blank, with a typical response being “it is a policy” breach. An unknown policy – and then you are accused of breaking the law! How and why does this happen? We know it happens because we let it. However, we do know it faces some possible legal hurdles.

Without a specific reason for doing so, these notices requiring the production of work diary records may be described as a ‘fishing exhibition’. A term used in law, a ‘fishing exhibition’ may be a process that seeks to ‘cast a wide net’ to catch something. It has been widely held in common law that when it is necessary to require production, the process must identify expressly and precisely the legitimate forensic purpose for which access to the documents is sought. The process may be creature of statute, however the reason for initiating that process may not enjoy that protection. Furthermore, a ‘fishing exhibition’ is not a legitimate forensic purpose and should not occur in this manner.

We think this is a case of just dropping a line and seeing what you catch. It would be interesting to see the statistics on how many notices are issued compared to detected breaches. The data would confirm it one way or another. The allowable travel time answer seems to be floating around space, out of reach for mere mortals. Safe-T-Cams are not approved speed or average speed cameras under the HVNL or any other legislation. Shall we go on?

Defence divested

While we are on the subject of Safe-T-Cams, I’ll shout a drink to anyone who can find a reference to them in the HVNL or any other legislation prescribed for fatigue-related heavy vehicles. Yet inexplicably they are used to provide evidence of making false or misleading entries in your work diary. Let’s draw this one out for a big finish, shall we?

A non-prescribed, gazetted, or authorised camera takes a picture that initiates a prosecution. The Prosecution avers that you made a false or misleading entry according to the said camera and the ‘fishing exhibition’ that follows.

That prosecution is then treated as a strict, or even absolute, liability offence. The HVNL has stripped away most defences over time, including a mistake in fact. Yet the wording of the offence appears to include the mental element of mens rea, or guilty mind (intent). For those nerds among us, actus reus non facit reum nisi mens sit rea, “the act is not culpable unless the mind is guilty”.

This is just about enough things to make you go ‘hmmm’ for one session. There’s plenty more where these come from, though.

Remember, a policy is not law, quickly becoming a feature of our legal landscape. For answers to some of these questions or others not yet asked, contact the team at Highway Advocates Pty Ltd. It’s 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 or see the website at www.highwayadvocates.com.au

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