Police v Barnes - [2017] SASC 196

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v BARNES
[2017] SASC 196
Judgment of The Honourable Justice Doyle
22 December 2017
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - GENERAL APPROACHES TO INTERPRETATION - GENERALLY
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES
The respondent truck driver was charged with contravening s 250(1) of the Heavy Vehicle National Law (the National Law) in that he had worked more than 12 hours in the 24 hour period commencing at 12.30 pm on 29 November 2014.
A Magistrate found the respondent not guilty of this offence on the basis that, while he had worked for 14 hours during the 24 hour period commencing at 12.30 pm on 29 November 2014, the relevant 24 hour period commenced 7.45 am on 30 November 2014, and the respondent had not worked more than 12 hours in that period.
On appeal, the appellant contends that the Magistrate erred in construing the National Law as requiring that the relevant 24 hour period commence at 7.45 am on 30 November 2014.
Held per Doyle J, allowing the appeal:
1. The Magistrate erred in holding that the relevant 24 hour period commenced at 7.45 am on 30 November 2014, rather than the earlier time of 12.30 pm on 29 November 2014.
Heavy Vehicle National Law (South Australia) Act 2013 (SA) s 3, s 10, s 247, s 221, s 250, s 291, s 292, s 293, s 730, Schedule 1; Heavy Vehicle National Regulations (South Australia) s 4, referred to.
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; Independent Commission Against Corruption v Cunneen (2015) 256 CLR 1; Brayson Motors Pty Ltd (In Liq) v Federal Commissioner of Taxation (1985) 156 CLR 651; Police v Stevenson [2008] SASC 143; Master Education Services Pty Ltd v Ketchell (2008) 236 CLR 101; Shire of York v Rosmill Pty Ltd [2010] WASC 189, applied.
Mine Subsidence Board v Wambo Coal Pty Ltd [2007] NSWCA 137, considered.

POLICE v BARNES
[2017] SASC 196
Magistrates Appeal: Criminal

DOYLE J: The respondent truck driver was charged with contravening s 250(1) of the Heavy Vehicle National Law (the National Law)[1] in that he had worked more than 12 hours in the 24 hour period commencing at 12.30 pm on 29 November 2014.
[1] As enacted in the Heavy Vehicle National Law (South Australia) Act 2013 (SA).
A Magistrate found the respondent not guilty of this offence on the basis that, while he had worked for 14 hours during the 24 hour period commencing at 12.30 pm on 29 November 2014, the relevant 24 hour period commenced 7.45 am on 30 November 2014, and the respondent had not worked more than 12 hours in that period.
On appeal, the appellant contends that the Magistrate erred in construing the National Law as requiring that the relevant 24 hour period commence at 7.45 am on 30 November 2014.
Background
The respondent is a self-employed driver of a heavy vehicle. The management of the fatigue of drivers of heavy vehicles is governed by the provisions of Chapter 6 (ss 220 to 399) of the National Law, and the Heavy Vehicle National Regulation (the Regulations) made under s 730 of the National Law.
By way of overview of the legislative scheme in its application to the respondent, the respondent was a “solo driver” of a “fatigue-regulated heavy vehicle” for the purposes of the National Law. He drove on “standard hours”. Under s 250(1), the National Law provided that it was an offence to contravene either the maximum work time or minimum rest time stated in the standard hours. In particular, s 250(1) provided:
(1)The solo driver of a fatigue-regulated heavy vehicle commits an offence if, in any period stated in the standard hours for the driver, the driver—
(a) works for more than the maximum work time stated in the standard hours for the period; or
(b) rests for less than the minimum rest time stated in the standard hours for the period.
By reason of the combination of r 5 and Table 1 in Schedule 1 of the Regulations, for a solo driver of a fatigue-regulated heavy vehicle on standard hours, there is a maximum work time of 12 hours “in any period of 24 hours”. The Table relevantly provides:

Column 1 Total period	Column 2 Maximum work time	Column 3 Minimum rest time
In any period of …	… a driver must not work for more than …	… a driver must not rest for less than …
5½ hours	5¼ hours work time	15 continuous minutes rest time
8 hours	7½ hours work time	30 minutes rest time, in blocks of at least 15 continuous minutes
11 hours	10 hours work time	60 minutes rest time, in blocks of at least 15 continuous minutes
24 hours	12 hours work time	7 continuous hours stationary rest time
7 days (168 hours)	72 hours work time	24 continuous hours stationary rest time
14 days (336 hours)	144 hours work time	…

Under r 4 of the Regulations, the terms in the Regulations have the same meanings as they have in Chapter 1 or 6 of the National Law; and the counting of time is to be in accordance with the relevant provisions of the National Law (including, for the purposes of a period of hours in column 1 of the Table, s 247 of the National Law).
Turning to the relevant definitions in the National Law, “work” is defined in s 221 as driving a fatigue-regulated heavy vehicle or engaging in any of the other associated tasks specified in the definition. “Work time” is defined as “any time the driver spends undertaking work in relation to the vehicle”. “Rest” is defined as “not work in relation to a fatigue-regulated heavy vehicle”, and “rest time” is defined as “any time not work time for the driver”.
The counting of time for the purposes of determining whether there has been a contravention of s 250(1) is governed by s 247. That section provides:
247—Time to be counted after rest time ends
When counting time in a period, the time must not be counted from within rest time, but instead must be counted forward from—
(a) if 1 or more major rest breaks are relevant to the period—the end of a relevant major rest break; or
(b) in any other case—the end of a relevant period of rest time.
Example—
An authorised officer intercepts the driver of a fatigue-regulated heavy vehicle on a Friday and inspects the driver's work diary. The driver operates under standard hours. The officer examines the work diary entries for the previous Monday. The entries show that the driver completed 7 continuous hours of stationary rest time at 6.30 am on that day, started work at that time, worked until 11 am that day, had 45 minutes of rest time, worked until 5 pm that day, then had stationary rest time until 4.30 am on the following day, Tuesday, and then worked until 6.30 am on that day.
In order to determine the total number of hours worked by the driver in a 24 hour period starting on the Monday, then in accordance with section 247(a) the officer must commence counting from the end of the relevant major rest break, which in this case is from 6.30 am on the Monday until 6.30 am on the Tuesday. Adding up the driver's work periods — 6.30 am to 11 am, 11.45 am to 5.00 pm and 4.30 am to 6.30 am — results in a total of 11¾ hours worked in the 24 hour period.
…
Under s 221, “major rest break” means “rest time of at least five continuous hours”.
Under ss 291 to 293, drivers operating within an area with a radius of more than 100 km from their base must keep a work diary that covers the preceding 28 days. This requirement applies irrespective of the number of days in the previous 28 days that the driver spent working.
Turning to the facts in this matter, the respondent arrived in Alice Springs at 6.00 pm on 27 November 2014, thereby completing that driving job and ceasing “work”. He did not work at all on 28 November 2014. He spent that day visiting friends in Alice Springs. He made no entry in his work diary during that day. The respondent commenced work again in Alice Springs at 12.30pm on 29 November 2014. The respondent’s work diary recorded that between 12.30 pm on 29 November 2014 and 12.30 pm on 30 November 2014 he worked a total of 14 hours, but interspersed with various periods of rest. It also recorded that he rested from midnight on 29 November 2014 until 7.45 am on 30 November 2014, when he resumed driving.
At some point during the afternoon of 30 November 2014 the respondent crossed the border back into South Australia. He was stopped by the police at 4.15 pm. When his work diary was examined, it revealed that he had worked 14 hours in the 24 hour period commencing 12.30 pm on 29 November 2014, resulting in the respondent being charged with an offence under s 250(1) of the National Law.
The Magistrate’s decision
There was no dispute at trial as to the above summary of the respondent’s hours worked. However, there was a dispute as to the proper method of determining whether there had been a breach of the maximum work time under s 250(1), and in particular the time from which the hours worked were to be counted.
The prosecution case was that the National Law treated all time as either work time or rest time; that there was no other category of time, such as time off or personal time. Any time spent not driving (or carrying out any of the related tasks within the definition of work) was rest time. It followed, on the prosecution case, that when the respondent commenced work at 12.30 pm on 29 November 2014, this was the end of a relevant major rest break for the purposes of s 247, and hence marked the commencement of a 24 hour period for the purposes of s 250(1). As the respondent worked 14 hours during that 24 hour period, he contravened the prescribed maximum work time.
The defence case was that time leading up to 12.30 pm on 29 November 2014 was not rest time; rather, it was time off or personal time. Accordingly, the reference in s 247 to the end of a relevant major rest break could only be a reference to 7.45 am on 30 November 2014. And as the respondent had not worked more than 12 hours in the 24 hour period commencing at 7.45 am on 30 November 2014, he did not contravene the prescribed maximum work time under s 250(1).
The Magistrate essentially accepted the defence case. Her Honour accepted that in the period leading up to 12.30 pm on 29 November 2014, the respondent was “not working at all”, with the result that when he started work at 12.30 pm on that day, it was not the end of “a relevant major rest break” for the purposes of s 247(a). This was so, despite the respondent having recorded the hours on 29 November 2014 leading up to 12.30 pm in his work diary as “my rest time”. The Magistrate explained:
I find that the defendant erroneously recorded as ‘my rest’ a period of time in Alice Springs when he was not working at all.
In my view the defendant could have properly omitted any reference or entry on the ‘My Rest’ section of the diary page dated 29 November 2014. He had done so it would have been plain that he started work at 12.30pm on 29 November 2014 and that had his first ‘major rest break’ for the purpose of counting time, was between midnight and 7.45am on 30 November 2014. The only relevant 24 hour period would then have commenced at 7.45am on 30 November 2014. It would follow that at the time the defendant was stopped on 30 November 2014 (at 4.15pm), no offence had been committed.
The maximum work time
Before the Magistrate, and until the day of the hearing of the appeal, the parties proceeded on the basis that the “maximum work time” for the purposes of a contravention of s 250(1) of the National Law, being the number of hours in column 2 of the Table in the Regulations (in this case, 12 hours), was an expression of the maximum total hours that may be worked within the relevant period, being the period in column 1 of the Table (in this case, a 24 hour period).
However, on the hearing of the appeal, the respondent’s counsel drew attention to the definition of “maximum work time” in s 5 of the National Law, namely:
maximum work time means the maximum time the driver of a fatigue-regulated heavy vehicle may drive a fatigue-regulated heavy vehicle, or otherwise work, without taking a rest.
Focusing upon the concluding works “without taking a rest” the respondent contended that the maximum work time in column 2 of the Table was properly to be understood as providing a maximum continuous hours that may be worked within the relevant period of time; in this case, a maximum of 12 continuous hours within a 24 hour period.
Despite this argument being raised for the first time on appeal, the appellant did not object to the respondent relying upon it. The appeal thus proceeded on the basis that the respondent relied upon this argument, by way of alternative contention, as sustaining the Magistrate’s finding of not guilty. I gave the appellant leave to file supplementary submissions addressing this contention. While a matter of alternative contention, the fundamental nature of the contention makes it appropriate that I address it first, and hence before dealing with the Magistrate’s reason for finding the respondent not guilty.
If the definition of “maximum work time” were to be construed in isolation, there would be force in the respondent’s construction, and its application to the specification of 12 hours in column 2 of the Table in the Regulations. The concluding words of the definition are capable of indicating a prohibition against driving for a continuous period of hours (here, 12 hours).
But it is trite that legislation is not to be construed this way. It is to be construed having regard to the broader context of the legislation as a whole, as well as the objective or purpose of the legislation.[2] When such an approach is taken, it becomes tolerably clear, in my view, that the reference to maximum work time in s 250(1) is not intended to be confined to a prohibition against driving for a continuous period of hours, but rather extends to a prohibition against driving for a total period of hours.
[2] CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408; Independent Commission Against Corruption v Cunneen (2015) 256 CLR 1 at [57].
The first matter in this respect is that, having regard to the introductory words of s 250(1) (“in any period stated in the standard hours”), the text of s 250(1)(a) contemplates a prohibition against driving a specified number of hours within some larger time frame. That is precisely what then appears in the Regulations, namely the specification of a maximum number of hours for certain periods of time (for example, 5¼ hours work time in a period of 5½ hours, 7½ hours work time in a period of 8 hours, and so on). If the prohibition were intended to be one directed to a maximum continuous hours of driving, as opposed to a maximum total hours of driving, it is difficult to understand the rationale, let alone the need, for the specification of the relevant time periods. If Parliament intended to prohibit driving for more than a certain number of hours continuously, the specification that the driver not do so within a particular period would be redundant. For this reason, it seems to me that the s 250(1) contemplation that there would be a proscribed maximum work time within a specified period suggests that the maximum work time was intended to be a measure of total hours worked and not continuous hours worked.
If regard is had to the content of the Regulations, a construction of maximum work time referrable to continuous hours becomes even more problematic.
The first reason for this is the italicised text in the second row of the Table (as extracted earlier in these reasons). In column 2, under the heading “Maximum work time”, the words “a driver must not work for more than” refer more naturally to a total number of hours rather than a continuous period, at least when they are read as following the italicised text in column 1 (namely “in any period of”).
The second reason is the specification of multiple maximum work times in column 2. While each relates to a different period of time (as specified in column 1), it does not make much sense to specify multiple differing maximum continuous hours of working. For example, if it is prohibited to work for more than 5¼ continuous hours, then there seems little rationale for, or utility in, also prohibiting working for a greater number of continuous hours (for example, 12 continuous hours).
The third reason is that the figures in column 2 for maximum work hours extend beyond 12 hours (in a 24 hour period) to 72 hours (in a 7 day period) and 144 hours work time (in a 14 day period). It is absurd to suggest that someone might work for 72 continuous hours, let alone 144 continuous hours. It is plain that the Regulations intended that the column 2 figures be total hours and not continuous hours.
That said, it is necessary to be careful in drawing upon the Regulations in construing the meaning of terms used in the legislation itself. Ordinarily, the terms of regulations are not taken into account in construing terms used in legislation.[3] However, there is an exception or qualification to that general principle in circumstances where the regulations are contemporaneous with the legislation and together form an interdependent scheme. In those circumstances the terms of the regulations may be of some assistance in construing the operation of the legislative scheme.[4] In my view this qualification to the general principle has application in the circumstances of this case, at least in underscoring the legislative intention that the maximum work time be referable to a specified number of hours within a relevant period of time.
[3] Mine Subsidence Board v Wambo Coal Pty Ltd [2007] NSWCA 137 at [41].
[4] Brayson Motors Pty Ltd v Federal Commissioner of Taxation (1985) 156 CLR 651 at 652; Police v Stevenson [2008] SASC 143 at [44]; Master Education Services Pty Ltd v Ketchell (2008) 236 CLR 101 at [19]; Shire of York v Rosmill Pty Ltd [2010] WASC 189 at [42].
But in any event, and returning to the legislation itself, there is another aspect of s 250 that is relevant, namely the example provided in the legislation. Under s 10 of Schedule 1 to the National Law,[5] if the National Law includes an example of the operation of a provision, then the example and the provision are to be read in the context of each other and the other provisions of the National Law. There is a qualification to this, namely that if the example and provision so read are inconsistent, then the provision prevails. I have earlier set out the relevant passages from the example in s 250. That example proceeds on a basis that assumes the focus is on total hours within a relevant period, not continuous hours.
[5] Which is made relevant to the interpretation of the National Law by s 10 of the National Law.
Finally, I consider that a construction of maximum work time in s 250(1) of the National Law that is referable to total hours rather than merely continuous hours is consistent with the purpose of the National Law, which is relevantly the promotion of public safety through the management of driver fatigue. While proscribing specified numbers of continuous hours of driving goes some way to reducing the risk of driver fatigue, a broader focus upon the total hours of driving within various periods is more consistent with the broader legislative objective of promoting public safety through the management of driver fatigue.
For all of these reasons, it is my view that the concluding words in the s 5 definition of maximum work time must be understood as merely drawing a contrast between, on the one hand, driving and other work time, and, on the other hand, rest time. They are not to be understood as confining the notion of maximum work time to a continuous number of hours. They are simply a reference to the requirement that once the maximum hours have been worked, then the balance of the relevant period must be spent resting. It follows that the Magistrate correctly approached the application of s 250(1)(a) on the basis that it contained a prohibition against driving for a total number of hours rather than a continuous number of hours.
Counting of hours

In my view the Magistrate erred in her approach to the counting of hours in determining whether there had been a contravention of s 250(1)(a).
The first point in this respect is that I consider that the effect of the provisions I have set out above is that the notions of “work” and “rest”, and “work time” and “rest time”, are intended to be exhaustive of a driver’s time. They do not allow for a third category of time, for example, when the driver is between driving jobs, or having personal time or time off.
The effect of this is in turn that the period leading up to 12.30 pm on 29 November 2014 was “rest time”. And as it extended for more than five hours, it was a “major rest break” within the meaning of the National Law.[6] On the face of it, this would require that the counting of hours for the purposes of s 247 begin at this point of time.
[6] The appellant contended that the reference to a “relevant” major rest break meant that the period of rest must be 7 hours (being the minimum rest time for a 24 hour period). I do not need to decide whether 7 hours or 5 hours would be sufficient, because the period of “rest” here exceeded both of those figures.
There is nothing in the legislation that suggests a contrary view. While the notion of a “break”, in common usage, might connote a period between two periods of work within a particular shift or stretch of work, the operation of the legislation must of course be determined by reference to the statutory definitions and language. Approached in that way, the terms of the legislation are clear; when the respondent commenced work on 29 November 2014, this represented the end of a “major rest break” (given that it is defined to mean rest time of at least five continuous hours).
Nor in my view is there anything in the legislation that suggests that the counting of work time must stop and recommence each time the driver subsequently has a major rest break. In the context of the present case, there is nothing in the legislation that suggests that the counting of work time was to stop when the respondent took a major rest break from midnight on 29 November 2014 and to recommence when he resumed work at 7.45 am on 30 November 2014. While work time may also be counted from that time, that need not be to the exclusion of the earlier period continuing to run.
It is true that this has the effect that during the morning of 30 November 2014 there were two 24 hour periods running. But there is nothing unworkable, or even confusing, about the legislation operating in that way. To the contrary, it is plain to me that this is precisely how the legislation was intended to operate. It was intended to operate by reference to a series of rolling, and potentially overlapping, periods of time.
This interpretation and approach is consistent with the purpose of the legislation. On the Magistrate’s construction of the legislation there would be a differential approach to the maximum driving time. As the facts of this case illustrate, depending upon when the driver had time off, there would be periods of time when he would be able to drive more than 12 hours within a 24 hour period. That is unlikely to have been what Parliament intended. It is more likely that Parliament intended that drivers of heavy vehicles such as the respondent be subject to a general prohibition against driving for more than 12 hours in any 24 hour period following any major rest break. I do not accept that the legislation was intended to permit a driver to drive more than 12 hours in the first 24 hour period following a day off, with the 12 hour maximum only taking effect during subsequent 24 hour periods.
I conclude by observing that I have reached the above conclusion based upon a construction of the objective intention of the National Law. I do not consider that the evidence of the respondent, or the relevant police officer, as to their understanding of the operation of the legislative scheme was in any way relevant to the construction issue. Nor do I consider that the format or content of the respondent’s work diary was of any relevance to the construction issue.
Other matters
In his written outline of argument, the respondent raised some alternative contentions based upon the provisions of the National Law relating to the significance of some of his driving time being in the Northern Territory (a non-participating jurisdiction under the National Law), and the significance of the differing time zones. However, the respondent’s counsel abandoned these contentions in oral argument, and so there is no need for me to address them.
Disposition of the appeal
Having determined that the Magistrate erred in her approach to the counting of hours under the National Law, and hence that the respondent did drive for more than the 12 hours proscribed in respect of a 24 hour period, it follows that the appeal must be allowed.
The issue remains what order I should make. The respondent contends that I should not make a finding of guilty of a contravention of s 250(1); that the matter should be remitted to the Magistrate for her Honour to determine two other matters raised by the respondent at trial, but which it had not been necessary for her Honour to consider given her finding of not guilty on the basis that the respondent had not driven more than the proscribed 12 hours. The first of these matters was the “compliance with a direction” defence under s 618 of the National Law; the second was the “reasonable steps” defence under s 629 of the National Law.
I heard brief submissions in relation to these two potential defences. I am not satisfied that the first of them has any merit at all on the facts of this case, and so do not consider that it would stand in the way of me making a finding of guilty. However, the position is not as straightforward in relation to the reasonable steps defence. While there are some difficulties with the respondent’s position in relation to this defence, I am not satisfied that it is appropriate for me to determine that issue on this appeal, given the breadth of the factual issues that it potentially raises, and the potential relevance of the evidence given by the various witnesses to the outcome of this defence.
For that reason I propose to allow the appeal, but remit the matter to the Magistrate for determination according to law.