Opportunistic fines and compounding penalties

LEGAL OPINION: An insignificant over height NSW tunnel offence can see your licence and truck rego suspended, as well as the fines and penalties already received

As we reflect upon the year just past, most of you will have experienced in one way or another, the usual end of year ‘operation this or that’ targeting heavy vehicles. It is a familiar story and the enforcement authorities around the country appear to show little discretion towards drivers and operators of heavy vehicles.
Apart from the usual blitz on fatigue, another type of offence is gaining some heavy attention from several angles. The issue of over height vehicles triggering alarms has garnered some attention from media, but more importantly, from enforcement authorities who apply punitive sanctions. In In an article in another transport publication dated June 9, 2023, it was stated in an emergency meeting around on the same date that the NSW Minister for Roads John Graham, NHVR chairman Duncan Gay and acting chief executive Ray Hassall, the National Heavy Vehicle Regulator has agreed to refer all over height breaches at tunnels as “aggravated” events.
What this means, in effect, is that when a heavy vehicle triggers an alarm at a tunnel or bridge, it initiates a process of some savagery. The combined enforcement authorities decided: “In future all tunnel over height incidents will be deemed aggravated no matter what the level of the breach and Transport for NSW will be able to take action against owners and operators more often.”
This may be viewed alike to mandatory sentencing and the process that swings into places imposes sanctions at several levels. For example, if an over height vehicle triggers the alarm without impacting the tunnel infrastructure, it initiates a process whereby several authorities issue extra curial penalties and sanctions. Suppose a truck driver inadvertently exceeds the maximum height for the Eastern Distributor Tunnel at Moore Park in Sydney without actually damaging or impacting upon the tunnel?

Multiple penalties

The penalties and sanctions applied are as follows:
A penalty notice for the offence of Disobey Clearance/Low Clearance Sign Tunnel/Bridge etc will be issued for the staggering amount of $4,376 and 12 demerit points, which amounts to a demerit point suspension for most drivers. In most cases, another penalty notice for $758 will be issued for the offence of Driver Heavy Vehicle Contravene Condition of Exemption.
Now here’s the real kick. As if those penalties and demerit points weren’t enough on their own, Transport for NSW will then chime in with their own special brand of punishment. They will apply a discretionary suspension in accordance with clause 66(1)(d) of the Road Transport (Driver Licensing) Regulation 2017 (NSW). This suspension may be appealed within 28 days of receiving the suspension notice but unlike typical licence suspensions, the application to the Local Court to appeal the suspension does not stay the suspension. This means a separate application must be made to The Court, and normally that means a driver will suffer a period of suspension before the appeal is heard.
But wait, there’s more. Transport for NSW will also suspend the registration of the relevant heavy vehicle for six months, which is subject to the same appeal process. Remember also, we have that penalty notice with an eye wateringly 12 demerit points. That will be treated as a conviction unless it is court elected, to be dealt with by a court.
We believe these combined sanctions are manifestly excessive, especially as they do not consider potentially extenuating circumstances. If this happens to you or one of your drivers, contact us here at Highway Advocates, we have dealt with several of these matters already and know the process inside and out. Fatigue offences are our bread and butter here at Highway Advocates, our outcomes with these matters are unparalleled.

Fatigue laws

We note that the Safe-T-Cam at Bargo, NSW has recent been relocated to another site north of the Pheasant’s Nest parking bay.
The Hume Highway between Sydney and Melbourne is the busiest freight corridor in Australia. It is traditionally an overnight journey for most truck drivers, and drivers are aware that they are being monitored by the Safe-T-Cam network.

The Hume Highway, Australia’s busiest freight corridor. Photo by Greg Bush

A driver travelling overnight from Melbourne to Sydney is, therefore, put in a position created by very prescriptive fatigue laws, which prevent them from having shorter fatigue breaks along the way. Drivers are then placed in the invidious position of having to drive on through the night, possibly tired, so that they may get to rest area past the last Safe-T-Cam gantry at Bargo. The problem for truck drivers in NSW is that the large parking area at Pheasant’s Nest is undergoing extensive renovations and is mostly unavailable for the purpose of parking large, heavy vehicles.
Even when it was in full operation, most truck drivers relate that if you weren’t there by midnight, you had no hope of finding a parking space suitable for a fatigue-related heavy vehicle. A driver is then placed with the unenviable prospect of trying to find a suitable parking space in the metropolis of Sydney.
A driver might head to the BP at Eastern Creek in the vain hope that a space may be available. Almost certainly, once a driver arrives there, they will find any available spaces taken up by rigid vehicles using the space as a quasi-depot. The driver then might try and find a street with a verge in what may be termed as an industrial area or estate. Of course, there will be no facilities such as toilets. However, if a driver was to find a space off the roadway in an industrial estate, they would find themselves parked in what is defined as a built-up area.
In short, we say this is akin to shooting fish in a barrel. If you are caught in the net, the maximum penalty for a critical risk breach is now approaching $20,000 and 4 demerit points.
At Highway Advocates, we only deal with offences directed towards heavy vehicle drivers and operators. Look for our billboards up down major highways, we have that ‘industry insider’ advantage that sets us apart from the rest. Highway Advocates, keeping you on the road where you belong.

ROBERT BELL, a former truck driver and now managing director of Highway Advocates Pty Ltd, and his team of legal professionals assist truck drivers and operators across Australia. Contact Highway Advocates at admin@highwayadvocates.com.au or 0488 01 01 01. Visit their website at www.highwayadvocates.com.au


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