Opinion, Robert Bell

NHVR truck search powers constrained

The Heavy Vehicle National Law gives officers the right to search premises, but on the other hand truck searches comes with some limitations

 

When most of you have read this, Highway Advocates will be three years old. Still a toddler compared to many legal firms, we have seen a lot in our relatively short life. One of our main take outs from over 3000 cases and enquiries is how enforcement against heavy vehicles has evolved.

We also know that the Heavy Vehicle National Law (HVNL) and the regulations made under it are complex and convoluted. There are several Supreme Court cases that say much the same thing. The Law also strips away many of the common law rights that many of us take for granted. Can you all remember the Reasonable Steps defence that was part of the Law once but not anymore?

Another aspect of the Law that is often misinterpreted is the vehicle search provisions found in the Law. Again, drafted contrary to the plain English style. The HVNL gives authorised officers the right to search business premises without a warrant. However, the right to search heavy vehicles comes with some caveats.

A search may not be conducted on a general suspicion. Consistent with the common law, there must be a factual basis to ground the suspicion reasonably: see George v Rockett (1990) CLR 104, where this was discussed in detail by the High Court.

Both authorised officers and police may search heavy vehicles under certain conditions. One of the search powers found in the HVNL is section 520 in that it allows heavy vehicles to be searched for certain items only.

Section 520 is found under Part 9.3 of the Law – Powers in Relation to Heavy Vehicles. Drill down further, and we find Division 4 – Inspecting and Searching Heavy Vehicles. Section 520 permits the searching of heavy vehicles for monitoring purposes only. In short, it allows authorised officers to enter and inspect a heavy vehicle for the reasons of inspecting, examining, or filming any part of the heavy vehicle or any part of its equipment or load. It also allows the inspection of a relevant document, electronic relevant document, and relevant information.

Section 520 also allows an authorised officer to take necessary steps to allow this power, including the authority to open an unlocked door or an unlocked panel or thing on a heavy vehicle; and move but not take away anything that is not locked up or sealed.

Relevant documents and information generally mean a document or information relating to a heavy vehicle and required to be kept under the HVNL or a heavy vehicle accreditation.

A search under section 520 requires consent by virtue of section 520(4), which provides that an authorised officer may not use force when exercising a power under this section.

Section 521 provides that an authorised officer may, using necessary reasonable help and force, enter and search a heavy vehicle for investigation purposes if the officer reasonably believes the vehicle is being, or has been, used to commit an offence against the HVNL; or that is being, or has been, committed; or the vehicle, or a thing in the vehicle, may provide evidence of an offence against the HVNL that is being, or has been committed; or the vehicle has been or may have been involved in an incident involving the death of, or injury to, a person or damage to property.

The required reasonable belief may be formed during or after an inspection of a heavy vehicle under section 520 or independently of an inspection of a heavy vehicle under section 520.

To further cloud already murky waters, HVNL s 726B states the following: To remove any doubt, it is declared that evidence lawfully obtained by a police officer using powers other than the power under this Law is not inadmissible in proceedings for a contravention of this Law only because the evidence was obtained using the other powers.

Consent required

In plain English, authorised officers and police may search your truck for relevant documents and information only by consent. They cannot use force to conduct that search, and a refusal of consent cannot be used to ground a reasonable belief that an offence has been committed.

RELATED ARTICLE: Will Chain of Responsibility come into play in Queensland?

Section 521 permits the search for investigation purposes but only when the authorised officers hold a reasonable belief. Your heavy vehicle cannot be searched in this manner on a mere suspicion or “fishing expedition”.

In George v Rockett, the High Court observed, “When a statute prescribes that there must be reasonable grounds for a state of mind, including suspicion or belief – it requires the existence of FACTS which are sufficient to induce that state of mind in a reasonable person”. The Court went on to discuss that a suspicion and belief are not one and the same.

If you believe your heavy vehicle has been searched beyond the power granted under the HVNL or otherwise, contact us here at Highway Advocates. We are assisting clients in all jurisdictions where this has occurred. If evidence is obtained by way of a fishing exhibition, it may be that that evidence is inadmissible.

Highway Advocates are keeping you on the road where you belong, as well as preserving and protecting what little rights you have under the HVNL.

Robert Bell

ROBERT BELL, together with his team of legal professionals, are Highway Advocates Pty Ltd, a legal practice focused on heavy vehicle drivers and operators. It is their unique ‘Industry Insider’ advantage that keeps them at the forefront of this area of law. Robert’s experience in the transport industry, coupled with his insight, is a guiding force for the team of legal professionals appearing in Courts all around Australia, achieving outcomes that consistently exceed expectations. Highway Advocates are lawyers to the heavy vehicle industry, keeping you on the road where you belong. Contact Highway Advocates on 1300 238 028 or send your court notices and enquiries to info@highwayadvocates.com.au
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