Have you been issued a penalty for driving an unregistered heavy vehicle even though it is registered?

In NSW and other States, there is a particular issue surrounding registration that many drivers have encountered. We have had a number of clients charged under the relevant legislation and have had successful outcomes with every one of them.

The relevant charge in NSW is Road Transport Act (NSW) s 68(1)

A person must not use an unregistered registrable vehicle on a road.

However, when this charge is applied against heavy vehicles, in almost every case the vehicle is actually registered. TfNSW knows it is, yet they still issue a penalty notice for $1449 and 4 Demerit points. A huge penalty and licence hit in one go.

The problem is caused by the way the registration laws work. Each State and Territory is responsible for overseeing the registration and use of vehicles on its roads.

In NSW the law says that any vehicle used on an NSW Road must be registered in NSW with TfNSW. You cannot actually register your vehicle in NSW unless it is garaged there. Therefore they have created an exemption for “vehicles temporarily in NSW.” The exemption allows visiting vehicles to rely upon their interstate registration, so long as certain requirements are met.

One of those requirements is that the vehicle needs to comply with all the laws in its home State/Territory about displaying number-plates. If the visiting vehicle doesn’t meet the requirements, then the exemption is withdrawn and the vehicle is treated as being unregistered in NSW.

What this means in essence, is that for any reason a camera in NSW cannot pick up your registration plate, because it is obscured or otherwise unrecognisable, the heavy vehicle is “deemed” unregistered, and the manifestly excessive penalty is issued.

We dispute that for a number of reasons, the first being that the “deeming’ argument is a legal fiction, it simply doesn’t exist. What the legislation does say is, under those circumstances, is that a heavy vehicle will become subject to the NSW registration provisions. In any other situation, that would mean you have 90 days to transfer your registration providing your vehicle was garaged in NSW.

It is a ludicrous, revenue-raising offence that apart from all the other legal issues, raises a Constitutional issue of some significance. Under the federation of Australia, The Consitution s 117 provides;

Rights of residents in States

A subject of the Queen, resident in any State, shall not be subject in any other State to any disability or discrimination which would not be equally applicable to him if he were a subject of the Queen resident in such other State.

Put simply, this means that a resident of say, Victoria, was detected with an obscured number plate in NSW, it would trigger the $1449/4 demerits points every time you went under a camera. 4 Cameras on one journey, no right to drive in NSW for at least three months.

If that same vehicle was detected in Victoria, it would not be deemed unregistered, and if a penalty notice was issued, it would be for about $120

If an NSW registered heavy vehicle was detected, it would be $686 and 3 demerit points. Still a harsh penalty but a different charge. They don’t deem the NSW registered heavy vehicle as unregistered.

This triggers the Constitutional issue.

There is a defence available hidden deep in the legislation also.

So, if that happens to you or has happened in the past, give us a call 24/7 on 0488-01-01-01 for a free legal appraisal of this, or any other heavy matter.

Give us a call – we know what you need to know.