PENTLAND CONCRETE PTY LTD v NATIONAL HEAVY VEHICLE REGULATOR [2026] SASC 79

On Appeal from MAGISTRATES COURT OF SOUTH AUSTRALIA (MAGISTRATE STRATTON- SMITH) MCCRM-23-029589 Appellant: PENTLAND CONCRETE PTY LTD Counsel: MR C JACOBI KC WITH MR C KUMMEROW - Solicitor: KJK LEGAL Respondent: NATIONAL HEAVY VEHICLE REGULATOR Counsel: MR J HANNERBERY KC - Solicitor: NATIONAL HEAVY VEHICLE REGULATOR Hearing Date/s: 04/05/2026 File No/s: SCCRM-25-049251 B SUPREME COURT OF SOUTH AUSTRALIA (Magistrates Appeal: Criminal) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. PENTLAND CONCRETE PTY LTD v NATIONAL HEAVY VEHICLE REGULATOR [2026] SASC 79 Judgment of the Honourable Justice Bochner 27 May 2026 MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - POWERS OF COURT STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - PRESUMPTIONS AS TO LEGISLATIVE INTENTION This is an appeal against an interlocutory decision made by a Magistrate on 17 November 2025 to remand the appellant for sentence on its plea to the District Court. On 12 October 2020, one of the trucks operated by the appellant collided with a tree and the driver was killed. Ultimately, the National Heavy Vehicle Regulator (“the respondent”) laid an information against the appellant, alleging offences pursuant to s 26F of the Heavy Vehicle National Law (“the National Law”). The appellant entered a plea of guilty in the Magistrates Court. On 16 June 2025, the respondent filed written submissions, in which it submitted that the jurisdictional limits of the Magistrates Court are not sufficient to address the criminality and culpability of the appellant and that the Court should exercise its discretion under s 9(7) if the Magistrates Court Act 1991 (SA) (“the MCA”) to refer the appellant to the District Court for sentence. The appellant raised that the operation of s 707 of the National Law precluded the transfer of the matter to the District Court for sentencing at this stage of the proceeding. The matter was argued on 17 November 2025, and the Magistrate delivered ex tempore reasons, in which he determined that he had the power to remit the matter to the District Court for sentence pursuant to s 9(7) of the MCA. That is the ruling that is the subject of this appeal. Section 707 of the National Law sets out how an indictable offence is to be brought. At the commencement of a prosecution, the regulator elects how it wishes the prosecution to be brought: either on indictment or in a summary way. It specifically provides for the possibility that a court may -- 1 of 18 -- consider that a defendant will not be punished adequately by a court of summary jurisdiction. The appellant says that the use of the words “any plea” and “if convicted” in s 707(3) necessarily includes both a guilty plea and a plea of not guilty. Thus, if the matter is so converted, the defendant must be rearraigned and can determine at that time whether to plead guilty or not guilty to the charges. The effect of the National Law is to apply this approach nationally to offences involving heavy vehicles. The appellant says that, in the context of an offence pursuant to s 26F of the National Law, the operation of s 9(7) of the MCA is displaced, and the procedure to be followed in the event that the Court is satisfied that the defendant, if convicted, would not be adequately punished in the Magistrates Court, is that set out in s 707(3). The respondent argues that the Magistrate did not err in his finding that s 9(7) of the MCA allowed the transfer of this matter to the District Court for sentencing. The respondent further contended that, if it is wrong on this point, then s 9(7) should be found to prevail over the provisions of the National Law. Held, allowing the appeal: It is the clear intention of the Parliament that the provisions of the National Law should prevail over those of the MCA and the Criminal Procedure Act 1921 (SA). Magistrates Court Act 1991 (SA) ss 9(4), 9(7), 42(1a)(c); Criminal Procedure Act 1921 (SA) ss 5(3), 5(10), 67, 108; Heavy Vehicle National Law (South Australia) Act 2013 (SA) ss 5, 26F, 707, 707A; Criminal Code 1899 (Qld) s 552D, referred to. New South Wales Commissioner of Police v Cottle [2022] HCA 7; Commissioner of Police (NSW) v Eaton (2013) 252 CLR 1, applied. Van Reesema v Police [2009] SASC 8; De Jong v Police [2010] SASC 191, discussed. -- 2 of 18 -- PENTLAND CONCRETE PTY LTD v NATIONAL HEAVY VEHICLE REGULATOR [2026] SASC 79 BOCHNER J. Introduction 1 This appeal addresses the operation of the Heavy Vehicle National Law (“the National Law”) in South Australia, and specifically, how it interacts with certain provisions of the Magistrates Court Act 1991 (SA) (“the MCA”) and the Criminal Procedure Act 1921 (SA) (“the CPA”). 2 The National Law is a scheme which is applied by most (but not all) states and territories within Australia, to achieve national consistency in the regulation of heavy vehicles. Amongst other things, it introduces a national regulator and seeks to introduce a consistent approach to regulation, including prosecutions, without local variation between states and territories. It is not a federal scheme; rather, the participating jurisdictions have adopted the law in Queensland to operate within their own jurisdiction. When the Queensland legislation is amended, so too is the adopting legislation in participating jurisdictions. 3 The Explanatory Note to the National Law (“the 2012 Explanatory Note”) as it was first introduced in Queensland said: The principal objectives of the bill are to: 1. reconcile variations in state heavy vehicle laws to a single, unified approach applicable across all states and territories; and 2. establish a National Heavy Vehicle Regulator responsible for the administration of those laws.1 4 The National Law operates in South Australia, by virtue of the Heavy Vehicle National Law (South Australia) Act 2013 (SA) (“the SA Act”). The Heavy Vehicle National Law (South Australia) Bill was read for the second time in Parliament on 2 May 2013 (“the 2013 Second Reading Speech”); at that time, the Minister for Transport and Infrastructure said: The purpose of the Application Bill is to establish a national system of heavy vehicle regulation governed by one national law (the National Law), that brings together model legislation developed through national heavy vehicle regulatory reforms over the last 20 years. This includes registration; fatigue management; accreditation schemes; mass, dimension and loading limits; compliance requirements and enforcement powers for all heavy vehicles over 4.5 tonnes.2 5 The provisions which are the subject of this appeal, s 26F and s 707, were introduced into the National Law in 2017. Section 26F provides: 1 Explanatory Note, Heavy Vehicle National Law Bill 2012 (Qld). 2 Hansard, House of Assembly 2/5/2013. -- 3 of 18 -- [2026] SASC 79 Bochner J 2 26F—Category 1 offence (1) A person commits an offence if — (a) the person has a duty under section 26C; and (b) the person, without a reasonable excuse, engages in conduct related to the duty that exposes an individual to a risk of death or serious injury or illness; and (c) the person is reckless as to the risk. Maximum penalty: (a) if an individual commits the offence—$300 000 or 5 years imprisonment or both; or (b) if a corporation commits the offence—$3 000 000. (2) The prosecution bears the burden of proving that the conduct was engaged in without reasonable excuse. 6 The Explanatory Notes to the Heavy Vehicle National Law and Other Legislation Amendment Bill 2016 (Qld) (“the 2016 Explanatory Notes”) explained: A category 1 offence (section 26F) applies where a party has a primary duty and without a reasonable excuse, engages in conduct that exposes an individual to a risk of death or serious injury or illness, and is reckless to the risk. The penalty is $300,000 or 5 years imprisonment, or both for an individual and $3 million for a corporation. 7 Sections 707 and 707A provide: 707—Proceeding for indictable offences (1) The prosecution may bring a proceeding for an indictable offence— (a) on indictment; or (b) in a summary way. (2) However, a court of summary jurisdiction must not hear and decide an indictable offence in a summary way if— (a) at the start of the hearing, the defendant asks for the charge to be prosecuted on indictment; or (b) the court is satisfied— (i) after hearing submissions from the prosecution and defence at any stage of the hearing, that the defendant, if convicted, may not be adequately punished for the particular offence on a summary conviction; or (ii) on an application made by the defence, that the charge should not be heard and decided in a summary way because of exceptional circumstances. -- 4 of 18 -- [2026] SASC 79 Bochner J 3 (3) If the court decides that the offence be prosecuted on indictment— (a) the court must conduct the proceeding as a committal proceeding; and (b) any evidence given in the proceeding, before the court decided that the offence be prosecuted on indictment, is taken to be evidence in the committal proceeding; and (c) the court must disregard any plea that the defendant made at the start of the proceeding. 707A—Proceeding for other offences (1) The prosecution must bring a proceeding for an offence against this Law, other than an indictable offence, in a summary way. (2) The proceeding must start— (a) within 2 years after the offence is committed; or (b) within 1 year after the commission of the offence comes to the complainant's knowledge, but within 3 years after the offence is committed. (3) A statement in a complaint for an offence against this Law that the matter of the complaint came to the complainant's knowledge on a stated day is evidence of when the matter came to the complainant's knowledge. 8 Of these two sections, the 2016 Explanatory Notes said: Clause 108 amends section 707 and inserts a new section 707A. These sections detail how proceedings for offences are to be taken, and are required because of the addition of an indictable offence (section 26F) to the HVNL. Section 707 as amended allows the prosecution to bring a proceeding for an indictable offence on indictment or in a summary way. However the amendment also prohibits a court of summary jurisdiction hearing an indictable offence in a summary way if the defendant asks for the charge to be prosecuted on indictment; the court is satisfied either that the defendant may not be adequately punished on a summary conviction; or that the charge should not be heard and decided in a summary way because of exceptional circumstances. Section 707A provides that proceedings for offences other than indictable offences must be brought in a summary way, details the timeframes for bringing a proceeding and allows a statement that the matter of the complaint came to the complainant’s knowledge on a stated day to be evidence of when the matter came to the complainant’s knowledge. These matters were previously contained in section 707. The definition of complaint has also been moved to the general definitions in section 5. 9 An indictable offence is defined in s 5 of the National Law as “an offence mentioned in section 26F”. As to this amendment, the 2016 Explanatory Notes said: A definition of indictable offence is inserted in section 5 to mean 'an offence mentioned in section 26F'. This definition covers a category 1 offence under the primary duty of care which includes a custodial sentence of 5 years imprisonment. -- 5 of 18 -- [2026] SASC 79 Bochner J 4 10 Sections 26F, 707 and 707A, along with the definition of “indictable offence”, are replicated in participating jurisdictions. 11 Participating jurisdictions are at liberty to modify aspects of the National Law to suit their local circumstances. I note that, while South Australia has modified some aspects of the National Law, it has not modified ss 26F, 707 or 707A. The factual background 12 The factual background of this appeal is not in dispute. The appellant operates concrete agitator trucks. On 12 October 2020, one of its trucks collided with a tree and the driver was killed. Ultimately, the National Heavy Vehicle Regulator (“the respondent”) laid an information pursuant to the National Law against the appellant, alleging offences pursuant to s 26F of the National Law. These offences are indictable offences. 13 On the information, the respondent indicated that the offence was “Summary not punishable by imprisonment or detention”. It did not seek to have the matter heard through the committal stream of the Magistrates Court. 14 The file’s progress through the Magistrates Court was unremarkable. Following negotiations between the parties, a further Information, which alleged two offences pursuant to s 26F of the National Law, was filed. Again, the information indicated that the offences were “Summary not punishable by imprisonment or detention”. Nor did the respondent seek to have the matter proceed by way of committal hearing. The day after the filing of this latest Information, and consistent with the outcome of the negotiations between the parties, the appellant entered a plea of guilty to the first count and the second count was withdrawn. Sentencing submissions were listed for 17 June 2025. 15 On 16 June 2025, the respondent filed written submissions, in which it submitted: 37. The Regulator submits that given the gravity of the offending by Pentland, the jurisdictional limit of the Magistrates Court, as contained in section 9(4)(b)(ii) of the Magistrates Court Act 1991, that being a fine of $150,000, is not sufficient to address the criminality and the culpability of Pentland. 38. The Court should exercise the discretion contained in section 9(7) of the Magistrates Court Act 1991 and refer Pentland to the District Court for sentence.3 This was the first time that the respondent had suggested that the jurisdictional limit of the Magistrates Court was insufficient to punish the appellant adequately. 3 FDN 32 of Magistrates Court File. -- 6 of 18 -- [2026] SASC 79 Bochner J 5 16 Section 9(7) of the MCA provides: (7) If the court is of the opinion in any particular case that a sentence should be imposed that exceeds the limits prescribed by subsection (4), the court may remand the defendant to appear for sentence before a superior court. Section 9(4) does not allow the Magistrates Court, in a matter such as this, to impose a fine of more than $150,000. 17 The appellant raised with the Magistrate the operation of s 707 of the National Law, which, it said, precluded the transfer of the matter to the District Court for sentencing at this stage of the proceeding. The matter was adjourned for the parties to file written submissions on this point. 18 The question of the operation of s 9(7) of the MCA in the context of ss 26F and 707 of the National Law was argued on 17 November 2025. The Magistrate delivered ex tempore reasons, in which he determined that he had the power to remit the matter to the District Court for sentence pursuant to s 9(7) of the MCA. He said:4 As it is though, even if I am wrong, I do not consider s 707 is a bar to the clearly worded s 9 of the Magistrates Court Act. I also do not consider it is material whether the offence with which the defendant has been charged under s 26F is minor or major indictable offence, or whether it is a species of indictable offence exclusive to the Heavy Vehicle National Law. This court has jurisdiction to hear a prosecution under the Heavy Vehicle National Law. Section 9 of the Magistrates Court Act is a broad power given to the court to control its processes. It is not limited to indictable offences however they may be defined. The section refers to ‘any given case’. If the court determines, in any given case, that a sentence in excess of the jurisdictional limit should be imposed, it may remand the matter to a superior court. The focus on the imposition of a sentence means the section fits neatly in the period after conviction where s 707 no longer has any work to do. However, even if that 78 3 is wrong and s 707 applies to any stage of the proceedings, I do not consider s 9(7) should be read down and limited to require a committal process. Section 9(7) is a broad power that may be utilised at any time. Having regard to the fact the matter involved a fatality, the particular circumstances where the facts are the defendant was put on notice about problems with the fleet and was put on notice about issues with the subject vehicle’s brakes sometime in advance, the size of the fleet and the defects, the fact that it seems to be at the higher end of seriousness, I think it is appropriate the matter be remanded to the District Court for sentence. That is the ruling that is the subject of this appeal. Special reasons and permission to appeal 19 As the Magistrate’s decision to remand the appellant in the District Court is an interlocutory one, the appellant must establish that there are “special reasons” 4 Reasons for Ruling of Magistrate Stratton-Smith in National Heavy Vehicle Regulator v Pentland Concrete Pty Ltd dated 17 November 2025 (MCCRM-23-029589). -- 7 of 18 -- [2026] SASC 79 Bochner J 6 why it would be in the interests of the administration of justice to have the appeal determined before the completion of trial and that the Court should grant permission for an appeal.5 20 The need for “special reasons” limits the circumstances in which interlocutory judgments are permitted to be appealed, and requires there to be some feature of the case which takes it out of the ordinary and distinguishes it from the normal case. This was explained by Bleby J in Van Reesema v Police,6 where he said:7 I consider that, for there to be “special reasons” to grant permission to appeal under s 42(1a)(c), there must be some feature of the case which takes it out of the ordinary and distinguishes it from the usual cases. An arguable case by itself will generally be insufficient. There must be something about the unusual features of the case that calls for the granting of permission to appeal. (footnotes omitted) 21 The appellant relies on the decision of the in De Jong v Police,8 where it was held that a misunderstanding and “confusion with respect to the process undertaken and the associated risk of a miscarriage of justice constitute constitutes “special reasons” to grant permission to appeal under section 42(1a)(c)”.9 22 The appellant submits that it is in the interests of justice to have the appeal determined before sentence. If the appellant is not permitted to appeal the Magistrate’s interlocutory judgment, the appellant would be sentenced by the District Court on its plea and then may appeal that sentence on the basis that there was no power for it so to sentence. In this circumstance, if the appeal was allowed, the sentence would then be quashed and the matter remitted in the Magistrates Court. The appellant submits that determining the appeal at this time avoids these unnecessary steps. 23 Further, the appellant submits that there is a proper question of law, as to the proper procedure to be followed where the defendant faces a charge which carries significant penalties. The appellant states that if they succeed in the appeal, they would then be entitled by s 707(3)(c) of the National Law to be put back in a position to decide how to plead based on knowledge of the prosecution’s intention to proceed on indictment. 24 The respondent concedes that special reasons exist in this case, and did not suggest that leave to appeal should not be granted. 5 Magistrates Court Act 1991 (SA) s 42(1a)(c). 6 [2009] SASC 8. 7 Ibid, [23]. 8 [2010] SASC 191. 9 Ibid, [46.] -- 8 of 18 -- [2026] SASC 79 Bochner J 7 The appellant’s submissions 25 The appellant says that s 707 is a part of the national scheme to introduce uniformity in the way in which heavy vehicles are regulated in participating jurisdictions. It sets out the way in which indictable offences are to be prosecuted; it specifically provides for the possibility that a court may consider that a defendant will not be punished adequately by a court of summary jurisdiction. While participating jurisdictions have the ability to modify the National Law to suit local circumstances, South Australia has not chosen to modify this aspect of the National Law (noting that it has modified other aspects). As a result, the intention is that s 707 will operate in South Australia in the same manner in which it operates in other jurisdictions and without the overlay of local legislation. 26 The appellant says that the National Law divides offences into two categories: indictable offences and all other offences. Only one offence has been categorised as an indictable offence: an offence mentioned in s 26F. Unlike the CPA, it does not differentiate between major indictable and minor indictable offences. It also does categorise offences as summary offences; rather, it provides that offences other than indictable offences are to be brought in a summary way. 27 Section 707 then sets out how an indictable offence is to be brought. At the commencement of a prosecution, the regulator elects how it wishes the prosecution to be brought: either on indictment or in a summary way. Once the prosecution has commenced in a summary way, there are two ways in which it can be converted to a proceeding on indictment. First, the defendant can ask that it be dealt with on indictment. Second, the Court can determine that a charge should not be dealt with in a summary way, in two circumstances. The first of these circumstances is the one relevant to this matter and is found in s 707(2)(b)(i): (b) the court is satisfied— (i) after hearing submissions from the prosecution and defence at any stage of the hearing, that the defendant, if convicted, may not be adequately punished for the particular offence on a summary conviction. 28 Once the Court determines that the matter should be prosecuted on an indictment, pursuant to s 707(2)(b)(i), s 707(3) sets out how the matter is to be dealt with. First, the current proceeding is effectively converted to a committal proceeding and any evidence already given is treated as evidence in the committal proceeding; and second, any plea made by the defendant at the start of the proceeding (when it was being dealt with in a summary way) must be disregarded. The appellant says that the use of the words “any plea” in s 707(3)(c) necessarily includes both a guilty plea and a plea of not guilty. Thus, if the matter is so converted, the defendant must be rearraigned and can determine at that time whether to plead guilty or not guilty to the charges. 29 In effect, the prosecution makes an election as to how the matter should be dealt with at the time that it commences the proceeding; once it elects to have a -- 9 of 18 -- [2026] SASC 79 Bochner J 8 matter dealt with in a summary way, the Court and the defendant then have the ability to elect whether it should continue to be dealt with in a summary way. The appellant says that the purpose of this section is to protect the defendant from any prejudice caused by a late change to the manner in which the prosecution is brought. The appellant notes that the wording of s 707 is similar to, and has its origins in s 552D of the Criminal Code 1899 (Qld). The effect of the National Law is to apply this approach nationally to offences involving heavy vehicles. The 2016 Explanatory Notes makes it clear that the intention was to achieve national consistency in the procedure for dealing with indictable offences. The appellant says that, in the context of an offence pursuant to s 26F of the National Law, the operation of s 9(7) of the MCA is displaced, and the procedure to be followed in the event that the Court is satisfied that the defendant, if convicted, would not be adequately punished in the Magistrates Court, is that set out in s 707(3). 30 In arguing that the National Law displaces the operation of the MCA, the appellant relies on the decision of the High Court in New South Wales Commissioner of Police v Cottle,10 to the effect that the intention of the legislature is determinative as to which Act prevails. In that case, the Court said: 22 In Eaton, the plurality expressed the applicable principle of statutory construction as follows: "Argument on the appeal proceeded upon the basis that the two statutes should be read together, in order to determine whether there is any relevant inconsistency in their respective operation. The question of the relationship between the two statutes is one of legislative intention. In Associated Minerals Consolidated Ltd v Wyong Shire Council, Lord Wilberforce pointed to several possible interpretations where the field of application of two related statutes is different, but where the later statute does not expressly repeal or override the earlier: 'The problem is one of ascertaining the legislative intention: is it to leave the earlier statute intact, with autonomous application to its own subject matter; is it to override the earlier statute in case of any inconsistency between the two; is it to add an additional layer of legislation on top of the pre-existing legislation, so that each may operate within its respective field?'" (footnotes omitted) 23 After consideration of this Court's decision in Ferdinands v Commissioner for Public Employment, the plurality in Eaton referred to the presumption that statutes do not contradict one another. In that respect, the principle that an Act of Parliament should be construed in a way that best achieves a harmonious result also informs the construction of two statutes which may share a field of operation. Nonetheless, if, properly construed, it is concluded that the two statutes or provisions cannot "stand or live together", the presumption is displaced. That "requires the construction of, and close attention to, the particular provisions in question". Ultimately: 10 [2022] HCA 7, [22]-[23]. -- 10 of 18 -- [2026] SASC 79 Bochner J 9 "The question as to the operation of the statutes remains a matter to be gleaned by reference to legislative intention. That intention is to be extracted 'from all available indications'." (footnotes omitted) 31 The appellant submits that primacy must be given to the National Law dealing specifically with an offence pursuant to s 26F of the National Law, over the MCA’s general provision. 32 The appellant submits that an indication of legislative intention is found in the use of the words “at any stage of the hearing” in s 707(2)(b)(i). This means that this section applies at all stages from the commencement of the matter to the time of final determination. The temporal application of this section could not have been expressed more broadly. Even where a plea of guilty is entered, there remains the requirement for a hearing, on the question of sentence. In this matter, at the time that the respondent sought the transfer of the matter to the District Court, while a guilty plea had been entered and one count had been withdrawn, the operation of s 707(2)(b)(i) remained open. The matter had not yet been finally determined and the hearing was still in progress. 33 The appellant submits that the Magistrate erred in qualifying the temporal application of the subsection by the words “if convicted”. On the construction placed on the subsection by the Magistrate, it operated only until a defendant is found guilty or enters a plea of guilty. Once either of those has occurred, the time for the transfer of the proceeding from one dealt with in a summary way to one dealt with on indictment has passed. 34 The appellant says that this misconstrues the words “if convicted”; these words are hypothetical not conditional. Further, the construction favoured by the Magistrate is inconsistent with s 707(3)(c) and renders it otiose. On this construction, there would be no need to disregard any plea made by the defendant, because ss 707(2)(b) and 707(3) have no application once the defendant entered a plea of guilty. 35 The appellant contends that the words “if convicted” merely provide the premise against which the Court is to consider whether or not it would be able to punish the defendant adequately, as the threshold for determining whether the matter should be heard in a summary way. 36 The appellant further submits that the words “any plea” in s 707(3)(c) are inconsistent with the construction placed on s 707(2)(b)(i) by the Magistrate. If the construction favoured by the Magistrate (and the respondent) were correct, then only pleas of not guilty would be disregarded, because once a plea of guilty had been entered, s 707(2)(b)(i) ceases to operate. It is unlikely that the legislature would have used the words “any plea” if only a plea of not guilty was intended. -- 11 of 18 -- [2026] SASC 79 Bochner J 10 37 If the purpose of s 707(3) is to put the defendant in the position it would have been in before it admitted the elements of an offence that it believed would be dealt with summarily, the construction preferred by the Magistrate defeats this. If the defendant pleads not guilty, then it has not admitted any elements of the offence; it suffers no prejudice if the matter is then converted to one dealt with on indictment. Conversely, if it has admitted the elements of the offence, then it is conceivable that prejudice would be suffered if the offence is no longer dealt with summarily. 38 For these reasons, the construction advanced by the respondent and favoured by the Magistrate cannot be correct. 39 The appellant further says that the Magistrate erred in finding that, even if s 707 applied, the power to remand to the District Court pursuant to s 9(7) of the MCA was not displaced. While the Magistrate stated that s 9 was a broad power, he did not explain why it would be that the specific provisions of the National Law would not prevail over the general provisions of the MCA. 40 The appellant says that, if the respondent wishes to have this matter dealt with by the District Court, then it must satisfy the Magistrates Court that it may not be able to punish the appellant adequately; once this submission is accepted by the Magistrate, then the appellant’s plea of guilty is to be disregarded and the matter is to proceed by way of a committal proceeding. The respondent’s submissions 41 The respondent submits that the Magistrate did not err in his finding that s 9(7) of the MCA allowed the transfer of this matter to the District Court for sentencing. The proper construction of the words “if convicted” in s 707(2)(b)(ii) leads to the conclusion that it did not apply in the circumstances before the Magistrate. The respondent further contends that, if it is wrong on this point, then s 9(7) should be found to prevail over the provisions of the National Law. 42 The respondent says that the words “if convicted” refer to a future potential occurrence. If a defendant has already been convicted, then s 707(2) cannot apply. It only operates where a conviction has not yet occurred but is contemplated. “Convicts” is defined in s 9 of the National Law in the following way: 9—Meaning of convicts and convicted of an offence (1) For the purposes of this Law, a court convicts a person of an offence if the court finds the person guilty, or accepts the person's plea of guilty, for the offence whether or not a conviction is recorded. (2) For the purposes of this Law, a person is convicted of an offence if a court convicts the person of the offence. The effect of this definition is that the appellant was convicted from the time that the Court accepted its plea of guilty; as a result, s 707 has ceased to operate. Once -- 12 of 18 -- [2026] SASC 79 Bochner J 11 the appellant was convicted, the Court was no longer required to follow the process set out in s 707(3). From this time, it was open to the Magistrate to follow the procedure set out in s 67 of the CPA and s 9(7) of the MCA. The authorities which address these provisions make it clear that it is open for a Magistrate to remand a defendant for sentence to another court, without the need for a committal proceeding. 43 The respondent relies on s 108 of the CPA, which provides: 108—Division not to apply to certain matters (1) If a defendant charged with a minor indictable offence does not elect, in accordance with the rules, for trial in a superior court, the Magistrates Court will not proceed to deal with the charge in accordance with this Division (and the matter will instead be dealt with by trial conducted in the Magistrates Court or by plea entered in the Magistrates Court) unless section 102(8) applies to the defendant. Note— In relation to trials and pleas for minor indictable offences conducted in the Magistrates Court see Division 4. (2) If a defendant charged with a major indictable offence pleads guilty before the commencement of committal proceedings under this Division, the Magistrates Court may, subject to section 116(1)— (a) determine and impose sentence on the defendant; or (b) commit the defendant to a superior court for sentence. (3) To avoid doubt, subsection (2) applies regardless of whether the Director of Public Prosecutions has made a determination as to the appropriate charge or charges to be proceeded with in relation to the information charging the major indictable offence. 44 The division in question prescribes the procedure to be used in committal proceedings. In effect, it provides that, in the Magistrates Court, minor indictable offences will not be subject to a committal proceeding unless the defendant elects to proceed to trial in a superior court. The respondent submits that the offence in this matter should be viewed as a minor indictable offence, based on the definition of “minor indictable offence” in the CPA: 5(3) All offences apart from summary offences are indictable and of these— (a) the following are minor indictable offences: (i) those not punishable by imprisonment but for which a maximum fine exceeding twice a Division 1 fine is prescribed; (ii) those for which the maximum term of imprisonment does not exceed 5 years; (iii) those for which the maximum term of imprisonment exceeds 5 years and which fall into one of the following categories: -- 13 of 18 -- [2026] SASC 79 Bochner J 12 (A) an offence involving interference with, damage to or destruction of property where the loss resulting from commission of the offence does not exceed $30 000; (AB) an offence involving a threat to interfere with, damage or destroy another person's property where, if the threat had been carried out, the loss would not have exceeded $30 000; (B) an offence against section 24(2) of the Criminal Law Consolidation Act 1935 (recklessly causing harm to another); (C) an offence against section 56 of the Criminal Law Consolidation Act 1935 (indecent assault) (not being an offence committed against a child under the age of 14 years); (D) an offence involving $30000 or less against Part 5 of the Criminal Law Consolidation Act 1935, other than an offence against Division 3 (robbery) or an offence of violence; (E) an offence against section 169(1) or 170(1) of the Criminal Law Consolidation Act 1935 (serious criminal trespass etc) where the offence is a basic offence within the meaning of that Act and the intended offence is an offence of dishonesty (not being an offence of violence) involving $30 000 or less or an offence of interference with, damage to or destruction of property involving $30,000 or less; and (b) all other indictable offences are major indictable offences. It says that an offence pursuant to s 26F of the National Law falls squarely within s5(3)(a). The maximum fine exceeds twice a Division 1 fine (which is $75,000), and the maximum period of imprisonment does not exceed five years. 45 The respondent contends that the legislature could not have intended one offence (an offence pursuant to s 26F) to be excluded from the general operation of the CPA and the MCA. 46 In support of this submission, the respondent points to other anomalies between s 707 and other aspects of the CPA, such as the requirement that the matter commence on indictment, rather than on information, as is the case in South Australia. It says that, while the aim of the National Law is to achieve national consistency, this is against the background of the laws in place in local jurisdictions. Thus, where a defendant in South Australia is charged with offences under the National Law, the criminal procedures in place in South Australia will apply. This matter has been conducted in an orthodox manner in accordance with the applicable laws in this State. 47 The respondent submits that, in choosing whether to proceed on indictment or in a summary way, it was entitled to take into account the ability to seek the transfer of the matter pursuant to s 9(7) of the MCA; it was entitled to seek the transfer of the matter without the need to entertain a committal process, if, after -- 14 of 18 -- [2026] SASC 79 Bochner J 13 the appellant entered a plea of guilty, it satisfies the Court that the appellant would not be adequately punished in the Magistrates Court. The fact that criminal procedure varies from state to state means that the operation of s 707 will also vary from state to state, despite the goal of national consistency. When making the decision to plead guilty to the offence, the appellant should have considered the possibility that the matter would be remanded to the District Court for sentence pursuant to s 9(7) of the MCA. Consideration 48 The principles that I need to apply in determining which law prevails are those set out Commissioner of Police (NSW) v Eaton.11 They have already been set out in these reasons, at [30], as part of the extract from New South Wales Commissioner of Police v Cottle.12 I will not repeat them. 49 The CPA is a general statute which controls the Court procedures to be followed in criminal matters in South Australia. It applies to all courts exercising criminal jurisdiction. It underwent major amendment in 1992, at which time s 5, which is headed “Classification of Offences” was substantially amended. It is this section which makes a distinction between summary offences, major indictable offences and minor indictable offences. 50 The MCA is also a general statute, which establishes the Magistrates Court and, amongst other things, sets out the procedure to be followed in certain circumstances, including where the Magistrates Court considers that a penalty should be imposed which exceeds its jurisdictional limit. 51 The National Law, on the other hand, seeks to regulate the operation and control of heavy vehicles in South Australia, in accordance with a national scheme. It has a very specific and limited sphere of operation. It prescribes, amongst other things, offences involving heavy vehicles and the procedure to be followed in their prosecution. The procedure set out in the National Law is not consistent with the procedure set out in the CPA or with s 9(7) of the MCA. 52 In my view, there are clear indications that it was the intention of Parliament that the provisions of the National Law should prevail over those of the CPA and the MCA. 53 The first indication is the 2012 Explanatory Note: it states that the principal objective of the Bill is to reconcile state heavy vehicle laws to create a single, unified approach, administered by a single, national regulator. This is reinforced by the terms of the 2013 Second Reading Speech, which emphasises the purpose of the Bill, which is to “establish a national system” including enforcement powers. 11 (2013) 252 CLR 1. 12 [2022] HCA 7. -- 15 of 18 -- [2026] SASC 79 Bochner J 14 54 The second indication is contained in the 2016 Explanatory Notes, which states that the bill to amend s 707 of the National Law and to add s 707A to it describes how proceedings for offences “are to be taken”. This statement is not qualified by any indication that its operation is limited to the State of Queensland, or that it is to operate subject to local legislation governing criminal procedure. In the context of a bill seeking to amend legislation that has been adopted nationally, with a view to operating a uniform, national scheme, the lack of such a qualification indicates that it is intended to describe the procedure for offences nationally. 55 Third, the use of the words “at any stage of the hearing” in s 707(2)(b)(i) indicates that the prohibition on a court of summary jurisdiction hearing an indictable offence in a summary way is unlimited in time. This indicates that the prohibition applies both before and after a conviction; these words could not be wider in their operation. I do not consider that these words are qualified by the words “if convicted”. Their context indicates that they are positing a hypothetical situation, not limiting the very broad operation of the words immediately preceding them. I reject the respondent’s submission that the definition of “convicts” in s 9 of the National Law supports its reasoning. Taken in the context of the National Law as a whole, the operation of s 707 is not limited to the period before a person pleads guilty to an offence. 56 My conclusion about the effect of the words “if convicted” when juxtaposed with the words “at any stage of the hearing” is reinforced by the prohibition on a court of summary jurisdiction from hearing and deciding “an indictable offence in a summary way if … the court is satisfied either that the defendant may not be adequately punished on a summary conviction…”. The Court has not finished hearing a matter until its final disposition, in this case, by pronouncing the sentence to be imposed. Thus, the Court is prevented from continuing with the hearing, even if it is limited to the question of sentence, once the condition is s 707(2)(b)(ii) has been satisfied. 57 Fourth, the terms of the SA Act make it clear that the Parliament could have modified its adoption of the amendments made by the Parliament of Queensland, if it chose to do so. Section 5 provides: 5—Amendments to Schedule to maintain national consistency (1) If— (a) the Parliament of Queensland enacts an amendment to the Heavy Vehicle National Law set out in the Schedule to the Heavy Vehicle National Law Act2012 of Queensland; and (b) the Governor is satisfied that an amendment that corresponds, or substantially corresponds, to the amendment made by the Parliament of Queensland should be made to the Heavy Vehicle National Law (South Australia), the Governor may, by regulation, amend the South Australian Heavy Vehicle National Law text. -- 16 of 18 -- [2026] SASC 79 Bochner J 15 (2) The Governor may, as part of a regulation made under subsection (1), make any additional provisions (including so as to modify the terms of an amendment that has been made to the Heavy Vehicle National Law by the Parliament of Queensland or to provide for related or transitional matters) considered by the Governor to be necessary to ensure that the amendment to the Heavy Vehicle National Law has proper effect in South Australia. (3) A regulation made under this section may, if the regulation so provides, take effect from the day of the commencement of an amendment to the Heavy Vehicle National Law made by the Parliament of Queensland (including a day that is earlier than the day of the regulation's publication in the Gazette). 58 When s 707 was amended and s 707A was inserted, the Parliament of South Australia did not seek to modify them so as to make them consistent with the CPA and the MCA, nor did it in any other way, make the operation of the amendment subject to the provisions of the CPA or the MCA. This leads me to conclude that the intention of Parliament was to have offences pursuant to the National Law prosecuted consistently with the other jurisdictions taking part in the national scheme, even though this procedure is not the same as for the prosecution of other offences in South Australia. 59 The respondent’s submission that the intention that South Australian law should apply because the matter was commenced by way of an information rather than an indictment must be rejected. I consider that the use of the phrase “on indictment” in s 707 indicates the classification of the offence, not the mechanics by which it is commenced. 60 Fifth, the same reasoning must be applied to the adoption by the South Australian Parliament of the definition of “indictable offence” in the National Law. This definition differs substantially from the way the term is defined in the CPA; most importantly, it does not differentiate between major and minor indictable offences. The fact that the Parliament could have introduced this difference into the definition but choose not to do so indicates that the intention was that indictable offences under the National Law are to be prosecuted in accordance with the terms of the National Law, rather than the terms of the CPA. To import the division between major and minor indictable offences into the National Law is artificial and derogates from the uniformity of the national scheme. The respondent’s attempt to shoehorn the definition of “indictable offence” in the National Law into the classification of offences in the CPA goes against the context of the National Law. It is also contrary to the express terms of s 5(10) of the CPA. 61 Sixth, the use of the words “any plea” in s 707(3)(c), where it provides that “the court must disregard any plea” is indicative of the intention that s 707 continues to operate after the defendant has entered a plea of guilty. If the respondent was correct in its construction of s 707, the use of the word “any” before the word “plea” would be rendered redundant. “Any” plea indicates a plea of guilty as well as a plea of not guilty; if the operation of s 707(3) was limited to situations where a plea of not guilty had been entered, this would be apparent on the face of the text. -- 17 of 18 -- [2026] SASC 79 Bochner J 16 62 For these reasons, I consider that the Magistrate erred when he found that s 707 no longer applies once a person has pleaded guilty to an offence. I also consider that he erred in determining that s 9 of the MCA continues to operate to allow the matter to be remanded to another court for sentencing, even though the procedure set out in s 707(3) has not been complied with. 63 The appeal must be allowed. Once the Court was satisfied that the appellant might not be adequately punished if sentenced in the Magistrates Court, the procedure set out in s 707(3) should have been followed. I will hear the parties on the terms of the orders to be made, and on the question of costs. -- 18 of 18 --