The inconsistent application of the rules of a state circus


By: Robert Belle*Photography by: Greg Bush

NOTICE: If you are from another state operating in NSW, TfNSW will still keep tabs on your demerit points

Regardless of direction, enforcement rules for truckers will vary

I recently spent some time flying around the country and reading a bit. Being the sad pup that I am, I threw a few textbooks in my bag while I was packing. Luckily, one of those textbooks was on constitutional law. Reading it made me think of a few things we come across here at Highway Advocates. Things that don’t seem right at all.

Victoria gets Guernsey first. In our view, its traffic and law enforcement camera system is problematic. They are totally outsourced to multinational companies, with camera footage that can be edited with basic software. Victoria Police are orchestrating the whole process. This alone is worth mentioning.

Sentencing laws in Victoria are also self-contained. An outright dismissal under section 76 means that a court, if satisfied that a person is guilty of an offence, may (without recording a conviction) dismiss the charge. In Victoria, unlike other states, if you receive an absolute discharge or dismissal after pleading guilty, you will continue to pay the points or the suspension. With certain fatigue and vehicle defect related offenses resulting in demerit points in the Heavy Vehicle State Act (HVNL), one would think that sentencing would have some uniformity across states. Only in Victoria can you escape conviction and still be punished.

Victoria gets a tick elsewhere, however. B-doubles in Victoria can operate at higher mass limit weights (HMLs) on most routes. The only criteria is that you must be eligible for the concessional mass.

However, going up the east coast in New South Wales and Queensland is an entirely new ballgame. They require operators to have permits and expensive software, and travel is restricted to certain routes. Yet, if you are the victim of a mass crime, you are prosecuted under “national” regulations. What would MM. Quick and Garren, the writers of our constitution?

RELATED ARTICLE: Inconsistent state laws are a bogeyman for truckers

Demerit points are another thorny issue. NSW and Queensland deserve special mention. In New South Wales, it has a professional driver provision in its licensing regulations. A professional driver with a NSW license is entitled to 14 points, compared to 13 points for other full NSW license holders. It has been changed somewhat recently and only comes into play if you are a professional NSW driver facing a demerit point suspension. If you incur 14 or more demerit points as a professional driver in three years, your license will be suspended. The period of suspension depends on the number of points accumulated.

The periods of suspension for professional drivers in New South Wales are:

• 14 to 15 demerit points – three months
• 16 to 19 demerit points – four months
|• 20 or more demerit points – five months.

In Victoria, Queensland, South Australia and Western Australia, for 12 or more points you walk or walk the gold point path. Get out of that golden path and you get suspension usually double what you would have gotten originally.

This is where it gets interesting. If you are a professional driver from another state operating in or through NSW, Transport For NSW (TfNSW) will always keep tabs on your demerit points. If you reach 13 points in NSW you will receive a letter (possibly) stating that you cannot drive in NSW for a specified period. Still, your NSW licensed cobber can continue with their extra point.

Worse still, the state where you are fired may decide to suspend you. The state where you recorded the offense will usually notify your local regulatory authority of your crime. You will then get the points or suspension that would have applied if you had committed the offense in your jurisdiction.

Drivers in the ACT and Northern Territory can magically avoid being demerited for offenses they commit elsewhere. And it can also happen to drivers from other states, especially if they commit their crimes in the territories. What makes federal territories so unique?

Queensland got particularly inventive on this one. It applies double demerit points to drivers with a Queensland license if they commit certain offenses within a specified time, even if they are not double demerit point offenses in the state where the license is issued. violation has occurred. Do you still have a headache?

All this and more. Remember that the Australian Rules of the Road Agreement was devised in 1999 to ensure national uniformity. It was assumed that various demerit point systems would follow. The National Heavy Vehicles Act had a similar purpose when it was discussed at the Council of Australian Governments. The National Transportation Commission (NTC) puts it this way:

“The HVNL is the result of a collaborative process led by the NTC. It involved industry and government to develop a nationally consistent approach to heavy vehicle legislation and regulation based on model laws developed by the NTC.”

Are we all feeling this nationally consistent love? With the NHVR taking over enforcement duties in New South Wales in August and (perhaps) Queensland next year, we should start to see a more consistent approach. Or will it just be a case of Coke or Pepsi – different colored shirts but the same stuff inside?

At Highway Advocates, we operate in all jurisdictions and apply a consistent national approach. We must navigate a myriad of complex statutory provisions and ever-changing practice notes and legal procedures. We are the link between your world and the world of law.

*ROBERT BELL, a former truck driver and currently a law student and practicing paralegal, is the CEO and Director of Highway Advocates Pty Ltd. Contact Highway Advocates Pty Ltd on [email protected]
or call 0488 010 101.

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