The South Australian Road Transport Association (SARTA) has announced it has won a major court case against the Heavy Vehicle National Law (HVNL) on its implementation in Western Australia and the Northern Territory.
SARTA, with the support of the ALRTASA and the Australian Trucking Association (ATA), contested the case in the Magistrates’ Court, challenging the National Heavy Vehicle Regulator’s (NHVR) attempt to apply the HVNL to actions by a driver in WA.
According to SARTA, the HVNL was applied to the driver while they were within WA even though they were fully compliant with the WA fatigue law in the state and compliant with the HVNL when in South Australia.
The case was about the NHVR’s attempt to prosecute a driver under s245 of the HVNL, claiming they were in breach of the HVNL within WA because they worked hours that would’ve been illegal under the HVNL had it been done in SA.
This arose despite the driver not breaching the HVNL while in SA and not breaching the WA laws when in WA.
“Kings Council and barristers appeared for both sides and SARTA, along with the ATA and the ALRTASA, funded the defence at significant cost,” SARTA’s Steve Shearer says.
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“We did this because of the very important principle involved; namely that state sovereignty is vital and the NHVR must not seek to apply s245 in a non-participating jurisdiction (WA or NT) other than in the circumstances for which it was intended.
“That circumstance is that if a driver enters WA/NT from SA and returns within seven days and works hours within WA/NT that have the effect of creating a breach within SA when they return, then the hours worked within WA/NT can be counted as if they were worked in a HVNL jurisdiction.
“A good example is if a BFM driver returns to SA from Perth and, instead of taking a seven hour sleep break near the border, they have it much closer to Perth and at the time they re-enter SA they have done 13 hours of work since the end of their last sleep break and they continue to drive for another two hours. That would mean that they have worked 15 hours since their last sleep break, 13 in WA and two in SA, and that would be a breach in SA”
Shearer says when the HVNL came in and WA and NT opted out, they initially said they would enact ‘enabling provisions’ within their state laws so all hours worked by a driver in WA/NT can be counted if they return to SA within seven days.
However, he says WA and the NT later decided not to do that, impacting how s245 can be applied.
“The court handed down its decision rejecting the NHVR’s arguments in favour of the defence case,” Shearer says.
“This is an important win for the industry and a great example of the value of effective industry associations like SARTA, LRTASA and the ATA.
“This issues applies equally to drivers who enter the NT from Queensland, NSW or SA and return within seven days. That includes every driver from WA/NT who make weekly trips out of WA/NT into the HVNL states and return.”
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