On 29 December 2004, Daniel Driver, a resident of Sydney, New South Wales, Australia, was caught speeding by a speed camera. He was driving a sedan at 99 km/h on a stretch of freeway near Wollongong, New South Wales, in a zone where the speed limit is normally 100, but was at the time 80. Daniel had passed but not noticed a temporary speed-limit sign because he was talking to his passenger at the time.
On 11 January 2005, Daniel received through the post a Penalty Notice from the Infringement Processing Bureau, which is part of the Office of State Revenue. The Penalty Notice described the alleged offence as "Exceed speed over 15 km/h (camera recorded) Class A" and stated that Daniel could either elect to have the matter dealt with at court, or pay a fine of $208 and accrue 6 demerit points against his driver's licence. Demerit points last for 3 years. A driver who has a balance of 12 demerit points at any time is liable to lose his or her licence.
Daniel wants to know what he should do.
The first task in advising Daniel is to establish the legal basis of his liability (if any).
The Commonwealth of Australia is a federation of 6 states (as well as a number of territories). One of those states is New South Wales.
In the Australian federation, responsibility for road transport and traffic management rests with the states. Accordingly, most of the law relevant to Daniel's situation is New South Wales law. However, in recent years the Australian states, encouraged by the Commonwealth, have taken measures to harmonise their traffic rules. This has involved adopting certain aspects of Commonwealth (Federal) law.
The sources of New South Wales law are, essentially:
For Daniel's situation, it is mostly legislation which is relevant. Unless stated otherwise, all the legislation referred to below is New South Wales legislation. Powers and functions given by that legislation to "the Governor" are exercised formally by the Governor of New South Wales but on the advice of one or more Ministers. Those powers are, in effect, given to the government of the day.
The Road Transport (Safety and Traffic Management) Act 1999, in section 71, authorises the Governor to make regulations with respect to a number of matters, including those matters set out in Schedule 1. Item 1(c) of Schedule 1 reads: "speed limits for vehicles (including speed limits that may be varied electronically or otherwise)".
The same section also provides that those regulations may "adopt or incorporate" publications approved by the Australian Transport Council and may apply to any offences created the provisions of the Federal Criminal Code.
Pursuant to those powers, the Governor has made the Road Transport (Safety and Traffic Management) (Road Rules) Regulation 1999 (the Road Rules Regulation). Clause 5 of the Road Rules Regulation defines the Australian Road Rules as a particular part of a particular publication of the National Road Transport Commission that comprises the road rules approved by the Australian Transport Council. Clause 6 of the Road Rules Regulation adopts the Australian Road Rules by stating that they are to be read with, and as if they formed part of, the Road Rules Regulation.
Rule 10 of the Australian Road Rules provides that if a rule of the Australian Road Rules contains the words "Offence provision.", then contravention of that rule is an offence, and the penalty for the offence is that which is specified for the offence under another law of the jurisdiction which has adopted the Australian Road Rules. (So, even though the road rules are broadly uniform throughout Australia, the penalties for breaches of those rules need not be.)
Rule 20 of the Australian Road Rules states: "A driver must not drive at a speed over the speed-limit applying to the driver for the length of road where the driver is driving. Offence provision." Rule 21 states: "The speed-limit applying to a driver for a length of road to which a speed-limit sign applies is the number of kilometres per hour indicated by the number on the sign." Daniel had passed, without noticing it, such a sign displaying the number "80".
Clause 37 of the Road Rules Regulation provides that the penalty for an offence against rule 20 of the Australian Road Rules is the maximum penalty and period of disqualification (if any) determined in accordance with clause 154. Clause 154(5) provides that the penalty for exceeding the speed limit by 30 km/h or less, without travelling in excess of 130 km/h, is 20 penalty units, without a period of disqualification. (Recall that Daniel was doing 99 km/h in an 80 km/h zone.)
The Crimes (Sentencing Procedure) Act 1999 provides in section 17 that a penalty unit is equivalent to $110. Therefore Daniel is liable, if the matter goes to court, to a maximum fine of $2,200.
Does Daniel have any defences? After all, Daniel did not deliberately ignore the speed sign, he simply failed to notice it.
The Road Rules Regulation provides in clause 33 that Chapter 2 of the Federal Criminal Code applies to an offence against that Regulation or the Australian Road Rules. Clause 33 of the Road Rules Regulation provides that all offences against that Regulation or the Australian Road Rules are "strict liability" offences for the purpose of Chapter 2 of the Criminal Code.
Chapter 2 of the Criminal Code states, in section 6.1, that where an offence is stated to be an offence of strict liability, there are no "fault elements" for any of the "physical elements" of the offence, but that a defence of "mistake of fact" is available.
Section 4.1 of the Criminal Code states that a physical element of an offence may be "conduct", which is defined as an act, an omission to perform an act, or a state of affairs. In this case, the conduct was driving a vehicle at a speed in excess of the applicable speed limit.
Section 6.1 of the Criminal Code states that a fault element for a particular physical element of an offence may be intention, knowledge, recklessness or negligence. However, since the offence of which Daniel stands accused is an offence of strict liability, it does not matter whether or not Daniel's driving in excess of the speed limit was intentional, reckless or negligent. It's enough that Daniel performed the prohibited act.
However, Daniel may still be able to raise the defence of mistake of fact. Section 9.2 of the Criminal Code sets out the circumstances where this defence can be raised. To successfully raise this defence, it must be the case that:
It may be the case that Daniel considered whether or not he was driving in a 100 km/h zone and had a mistaken belief that he was doing so. And it is the case that, were that belief true, his conduct in driving at 99 km/h in such a zone would not have constituted an offence. However, the problem for Daniel here is the word "reasonable": it is unlikely that a court would consider a belief based on failing to notice a prominently displayed speed-limit sign to be a reasonable belief.
There is one further defence available. The Road Rules Regulation provides in clause 35 that, in addition to any defence available under Chapter 2 of the Criminal Code, a person is not liable to a penalty under that Regulation or the Australian Road Rules if the offence was the result of an accident, or could not have been avoided by any reasonable efforts on the person's part. Again, it is unlikely that a court would accept that defence in this case.
Therefore, Daniel cannot raise any defence which would have any real chance of success.
However, Daniel need not go to court and face the possible maximum fine of $2,200.
The Road Transport (General) Act 1999 provides, in section 15, that a police officer or "other authorised officer" may serve a penalty notice on a person if it appears that the person has committed an offence under a provision of the road transport legislation that is prescribed by the regulations as a penalty notice offence. The regulations are to prescribe the amount of penalty for each such offence, but only up to the amount that the person would be liable for if the person went to court. Section 17 of the same Act provides that a person who has paid the penalty prescribed for a penalty notice offence is not liable to any further proceedings for the alleged offence.
The Road Transport (General) (Penalty Notice Offences) Regulation 2002 (the Penalty Notice Regulation) provides, in clause 5, that the offences listed in Schedule 2 are penalty notice offences, and that the table contained in Schedule 2 indicates the amount of penalty and the classes of "authorised offcer" for each such offence. Schedule 2 indicates that the penalty for an offence against rule 20 of the Australian Road Rules, where the driver of a class A motor vehicle exceeded the speed limit by not more than 30 km/h and was not travelling in excess of 130 km/h, is $208. This is the amount shown on Daniel's Penalty Notice.
Clause 3 of the Penalty Notice Regulation defines "class A motor vehicle" to include a vehicle with a GVM not exceeding 4.5 tonnes. The clause also defines "GVM" as having the same meaning as it has in the Road Transport (Safety and Traffic Management) Act 1999. That Act, in its Dictionary which is given effect by section 3, defines "GVM" or "gross vehicle mass" as the maximum loaded mass of the vehicle as specified by the vehicle's manufacturer (if that figure exists, can be identified, and is still appropriate given any modifications to the vehicle), otherwise by the Roads and Traffic Authority. In any event, speeding in a class A motor vehicle attracts the lowest penalties, so there is no point in disputing the Infringement Processing Bureau's characterisation of the sedan that Daniel was driving as "Class A".
Schedule 2 to the Penalty Notice Regulation also indicates that the officer authorised to issue this particular Penalty Notice is an officer of class 1. Clause 3 states that the authorised officers of each class are specified in Schedule 1. Schedule 1 states that a Class 1 officer is either a special constable under the control and direction of the Commissioner of Police, or a person employed by the Office of State Revenue and authorised by the Chief Commissioner of State Revenue for the purposes of the Penalty Notice Regulation. (Recall that the Infringement Processing Bureau is part of the Office of State Revenue.)
Section 16 of the Road Transport (General) Act 1999 provides that penalty notice may be served personally or by post.
So, assuming that the officer of the Infringement Processing Bureau who signed the Penalty Notice was appropriately authorised by the Chief Commissioner of State Revenue, the Penalty Notice was lawfully served on Daniel and the amount of the penalty is correct.
None of the provisions reviewed so far makes any mention of demerit points, and the Road Rules Regulation does not provide for a period of disqualification in the case of the offence alleged against Daniel.
These sanctions come from the Road Transport (Driver Licensing) Act 1998. Section 14 of that Act obliges the Roads and Traffic Authority to maintain a "demerits point register" and to record on that register the demerit points specified by regulation for particular offences. Section 16 empowers the Roads and Traffic Authority to suspend, or refuse to renew, a driver's licence where the holder of that licence has a balance of 12 or more demerit points. The section (like section 14) also provides for demerit points to "expire" after 3 years from the date of the offence which gave rise to them. It also specifies the period of cancellation, which is 3 months if no more than 15 demerit points are registered against the driver concerned. Section 15 states that the regulations may prescribe offences (relating to the driving or use of motor vehicles) for which demerit points may be incurred, and the number of demerit points incurred for each such offence.
The Road Transport (Driver Licensing) Regulation 1999 (the Driver Licensing Regulation) provides in clause 36 that the offences for which demerit points may be incurred, and the number of demerit points for each such offence, are those listed in Schedule 1. The clause also states that where the offence was committed "over a long weekend", the number of demerit points to be allocated to that offence is the number shown in Column 3 of Schedule 1 against that offence. The clause defines "over a long weekend" to include the period from 24 December 2004 until 3 January 2005 (inclusive). The offence alleged against Daniel took place on 29 December 2004, so it was committed "over a long weekend".
Schedule 1 to the Driver Licensing Regulation contains, in Part 1, item (c), an entry for an offence against Rule 20 of the Australian Road Rules where the speed limited is not exceeded by more than 30 km/h and the speed of the vehicle does not exceed 130 km/h. The number of demerit points applicable to such an offence is normally 3, but in Column 3, which is entitled "Long weekend demerit points", the figure is 6.
Accordingly, the number of demerit points specified in Daniel's Penalty Notice is correct.
If Daniel took the matter to court, what would be the status, as evidence, of the speed camera recording on the basis of which the offence is alleged?
To answer that question, we need to return to the Road Transport (Safety and Traffic Management) Act 1999. Section 44 of that Act defines an "approved speed measuring device" as a device of a type approved by the Governor by order published in the Government Gazette as being designed to measure the speed at which a vehicle is travelling. Section 45 defines an "approved camera recording device" as a device of a type approved by an appropriate approval authority by order published in the Government Gazette as being designed for attachment to an approved speed measuring device for the purpose of taking photographs of vehicles being driven in excess of speed limits. The section also provides for the recording on any such photograph of various items of information, such as the speed of the vehicle (as measured by the approved speed measuring device), the date, time and location, and the applicable speed limit. The section defines "appropriate approval authority" as being the Commissioner of Police, or (in the case of a digital approved camera recording device), the Governor.
Section 46 of the same Act provides for production in court and admission into evidence of a certificate to the effect that the speed measuring device used to measure the speed of the vehicle involved in the alleged offence has been approved, was tested by a person authorised to do so within a period before the alleged offence which is prescribed by regulation, and was accurate and operating properly at the time of the alleged offence. (Clause 156 of the Road Rules Regulation states that the prescribed period for testing is 12 months.) Section 46 also provides that such a certificate is evidence of accuracy and reliability of the device, and that no further evidence to that effect is required unless evidence to the contrary is adduced.
Section 45 deals with the use as evidence of photographs taken by an approved camera recording device. The provisions are broadly parallel to those concerning approved speed measuring devices: that is, a photograph taken by an approved camera recording device is taken to be evidence of the matters recorded on that photograph unless evidence to the contrary is adduced. However, the production of a certificate regarding inspection of the device is obligatory, and the inspection must have been conducted by a person authorised to do so within 30 days (in the case of a digital camera) or 168 hours (otherwise) before the time recorded on the photograph.
In another factual situation, it may be appropriate to challenge the photographic evidence on the basis that one or more devices used to produce it were not approved, were not accurate and reliable, had not been tested or inspected in the appropriate period, or had been tested or inspected by a person not authorised to do so. But in this case, Daniel does not dispute that he was driving at 99 km/h at the date, time and location alleged.
None of the few defences available against the offence alleged is likely to succeed.
There is a possibility that Daniel could show that the officer of the Infringement Processing Bureau who served the Penalty Notice was not authorised to do so by the Chief Commissioner of State Revenue. However:
Accordingly, the best option for Daniel is to be prepared to pay the $208 fine by the due date, and accept the resulting 6 demerit points. However, before doing that, Daniel may (depending on his driving record) be well served by writing to the Infringement Processing Bureau to express his contrition, promise not to re-offend, and request the cancellation of the Penalty Notice. Not infrequently (in the case of first offenders), Penalty Notices are cancelled on this basis.
The provisions which underlie the service on Daniel of the Penalty Notice are many and complex. They include provisions of the Federal Criminal Code, the Australian Road Rules, and the following New South Wales legislation:
This complexity can be ascribed, in part, to:
Nevertheless, a good argument could be made that a citizen is entitled to expect that (as far as is consistent with the constitutional structure of the Australian federation and the scheme of co-operative federalism adopted by the states and territories in regard to the road rules) there would be set out, in one reasonably accessible place, a complete list of offences against the road rules, stating for each such offence:
However, the difficulty with achieving such legislative consolidation is that there is generally little political mileage for a government in making a place for such a project in a busy parliamentary schedule. Accordingly, any such consolidation is more likely to occur (if at all) as an incident of a broader, and more politically pressing, reform of the road transport legislation.