John Eder Riley v RAB Garth Christian Seip

The Court of Appeal of the Australian Capital Territory heard an appeal concerning a charge of driving with a blood alcohol concentration above the prescribed limit. The appellant, John Eder Riley, had been charged under the *Road Transport (Alcohol and Drugs) Act 1977* following a breath analysis. The core of the dispute revolved around the validity of the screening test used by police, which the appellant argued was invalid due to a failure to properly notify the approval of the testing device under the *Legislation Act 2001* (ACT). If the screening test was invalid, the subsequent arrest and breath analysis would be tainted, rendering the evidence inadmissible.

The legal issues before the Court of Appeal were whether the notification of the approval of the Lion Alcolmeter SD-400 screening device, published in the ACT Special Gazette on 29 February 2000, constituted sufficient notification under the *Legislation Act 2001* to render the device enforceable. Specifically, the court had to determine if section 62 of the *Legislation Act 2001*, which states that a registrable instrument is unenforceable unless notified, applied to the device's approval given its prior notification in the Gazette, despite arguments that subsequent amendments to the Act required re-notification on the register. The court also considered the interpretation of section 63 of the *Legislation Act 2001*, which defines "notification" as having been notified in the register or Gazette.

The Court of Appeal reasoned that section 63 of the *Legislation Act 2001* clearly defined "notification" to include publication in the Gazette. It found no basis in the language of sections 61, 62, or 63 to restrict the definition of notification in the Gazette to publications made after the commencement of section 61, nor did section 123, which provided a transitional period for pre-existing instruments, alter this definition. The court concluded that the notification of the device's approval in the ACT Special Gazette on 29 February 2000 was sufficient to make the instrument effective and that it did not cease to be effective due to subsequent amendments. Consequently, the appeal was dismissed. The court ordered that each party bear their own costs of the appeal, taking into account that the appellant's argument had succeeded at first instance and that the appeal served the public interest by providing an authoritative determination of the relevant legal principles.