Over the past decade as a trucking lawyer, I’ve worked with a lot of professional drivers. All of them have been charged with heavy vehicle offences, but most of them are not bad drivers. In fact, the majority are good people who want to do the right thing. Unfortunately, with such complex laws, it’s easy to get tripped up by an honest mistake.
One such driver came into my office just a few months ago. He had been charged with numerous driver fatigue offences and was facing enormous fines. It became apparent that he had misunderstood an aspect of the work diary requirements, and then made that same error over and over again. It was an honest mistake.
The part he was particularly frustrated about was that his work diary had been checked by police and RMS inspectors multiple times, and always given the all clear. It wasn’t until one particular officer went over it with a fine tooth comb that all of the mistakes were identified.
I understand his frustration. We should be able to rely on the police and road authorities for guidance. When your work diary is signed off as compliant, you should feel confident that you’re doing things properly.
Had the errors been picked up earlier, this driver would have fixed the problem. He would most likely have faced just one fine, or maybe even a caution.
My new client asked me a question I’ve heard many times. “Surely, they can’t charge me for pages that have been signed off as complaint?” Unfortunately, they can.
There is no law in NSW (or most other States) that stops a police officer or roads officer from going back over work diary pages that have been checked previously.
In fact, in most States, the situation is even harsher. You can actually be charged and convicted for offences that you committed as a result of incorrect legal advice from the authorities. So for example, if an RMS officers incorrectly explains how to count time in your work diary, you can could be fined for the breaches that arise from that advice.
When this happens, most magistrates are understanding and reduce the penalty. But that’s not a lot of comfort. It’s not fair that a person should have a mark against their record for a mistake caused by the authorities.
Things need to change so that honest drivers aren’t punished for offences because of misunderstandings or bad advice.
The first step needs to be simplifying the driver fatigue laws. Of course, safety is paramount. We all want our colleagues and other road users to get home safely to their families. But we need to find a practical way to do it that reflects the realities of being on the road. We need to strip away the unnecessary layers of complexity that make it hard for both drivers to understand and for the authorities to properly enforce. Hopefully the review of the Heavy Vehicle National Law succeeds in delivering this.
In the meantime, I have two key tips to help drivers protect themselves. Firstly, make sure you understand the rules. Be confident to keep asking until you’re sure you have the right answer. Ask experienced colleagues what they think. Watch the videos on the NHVR website. Don’t be embarrassed to call a lawyer for a quick chat (we’re not all scary!).
Secondly, keep notes of all advice given to you by the authorities. Carry a small notebook with your work diary. Having proof of what you were told and when can make a big difference to the outcome if a mistake does happen.
