Opinion, Robert Bell

Yardstick or goalpost? – Highway Advocates

Is the NHVR within its rights to increase penalties each year in line with CPI? You be the judge.

The Heavy Vehicle National Law (HVNL) in Australia has long been the subject of debate and contention, particularly concerning the maximum penalties imposed for offences under this legislation.

HVNL penalties are widely regarded as some of the highest in the country’s transport sector, but recent developments and interpretations of the law have raised important questions.

In this article, we delve into the complexities and controversies surrounding HVNL penalties and their implications for individuals and corporations involved in the heavy vehicle industry.

The maximum penalties under the Heavy Vehicle National Law are probably the highest available under any transport legislation throughout Australia.

The National Heavy Vehicle Regulator (NHVR) and other prosecuting authorities believe the maximum penalty for a critical risk breach is currently $18,900.

If you are a corporation charged for an offence under the HVNL, the maximum penalty that would be imposed upon the individual will be five times higher. With mass offences, expect even a greater penalty depending on the overload percentage.

The Regulator believes the Law allows them to increase penalties every year by CPI. That presents a problem for several reasons, and we do not believe this can occur.

Maximum penalties are viewed by courts as a ‘yardstick’ that allows them to assess an offence. They represent the legislature’s assessment of the seriousness of the offence. Any increase in the maximum penalty for an offence is an indication to the courts that sentences for that offence should be increased.

In general, when legislation increases the maximum penalty for an offence, that must be taken by the courts as reflecting community standards in relation to the seriousness of the offence. In addition, the courts are required to give effect to the obvious intention of the legislature that the existing sentencing patterns are to move in a sharply upward manner.

Put simply, the Regulator’s view that the maximum penalty for HVNL offences should increase every year is somehow reflecting community attitudes towards these offences.

To put it into some context, the value of a penalty unit in NSW has remained the same ($110) for at least the last decade. Get caught doing over 40km/h above the speed limit in NSW, the maximum monetary penalty a court may impose is 20 penalty units ($2,200).

A simple mistake in your work diary and you are looking at a purported maximum penalty fast approaching $20,000.

The fly in the ointment for the Regulator and other prosecuting authorities is section 596 of the HVNL. It provides that the penalty stated at the end of a provision is the maximum penalty that may be imposed under that provision.

All the participating jurisdictions apply or adopt the Queensland version of the HVNL with some amendments on a state-by-state basis. However, the HVNL (Qld) at this current point in time provides that the maximum penalty for a critical breach as stated at the end of the relevant provision is $15,000, not $18,900.

The Regulator relies upon HVNL section 737, which states that the maximum penalty will increase on July 1 each year in accordance with the method prescribed by the National Regulations and that the new penalty will be reflected by the stated penalty provision. The method prescribed by the Regulations is CPI indexation factor x maximum penalty amount.

The overall monthly CPI Factor peaked at 8.4 per cent in December 2022, and was sitting at 4.9 per cent in October 2023. How is it that the purported maximum penalties under the HVNL have increased during that period, yet the CPI Indexation Factor has decreased some 3.5 per cent? At the end of June 2022, it was 6.8 per cent, and in June 2024, it had decreased to 5.4 per cent. You be the judge.

The real elephant in the room, however, is HVNL section 737A, which states the enactment of a new penalty is to take effect when that new penalty is inserted into the end of the relevant provision of the Law by an amending Act.

In short, if the State Legislation has not been amended by inserting the new penalty into that Law, then the maximum penalty is the one stated in the legislation. A NSW Court, for instance, cannot be forced to look at the website of an entity based in Queensland to know what the maximum penalty is for an offence under NSW legislation.

We say the maximum penalty has not been correctly calculated according to the National Regulations and may not be increased unless that increase is reflected in the actual legislation. To consider any other maximum penalty other than that may be a sentencing error.

Blink of an eye

Another contentious issue we often encounter is weighbridge ‘avoidance’ offences when, in most cases, a driver inadvertently misses a weighbridge entrance or when the flickering directional arrow changes in the blink of an eye.

We don’t believe the relevant legislative provision in the Heavy Vehicle National Law is fit for purpose, as it appeared to be drafted with roadside stops in mind.

The Mount White southbound Heavy Vehicle Safety Station (HVSS) entrance is probably the most missed entrance in the country. There is a very good reason for this as you can’t see the actual weighbridge from the entrance off the highway.

A very important Supreme Court case in NSW looked at this issue as far back as 2010 when the then RTA appealed a decision of the Local Court Goulburn when two drivers avoided convictions for not entering the Marulan HVSS.

The RTA appealed to the Supreme Court on a point of law and was soundly spanked in a legal sense. Davies J held that the weighbridge signs did not substantially comply with Road Rule 105 as was applied at the time. He went on to state, most importantly, that the weighbridge signs were not ‘legal instruments’ for the purpose of the then Road Rule.

We believe that the same situation exists today, and many truck drivers are being penalised under an HVNL provision that is not fit for purpose.

Highway Advocates, lawyers to the heavy vehicle industry, keeping you on the road where you belong.

Robert BellROBERT 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 1300 238 028. Visit their website at www.highwayadvocates.com.au

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