JOYCE v THE CHIEF POLICE OFFICER (Administrative Review)
[2021] ACAT 49
•15 June 2021
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
JOYCE v THE CHIEF POLICE OFFICER (Administrative Review) [2021] ACAT 49
AT 19/2021
Catchwords: ADMINISTRATIVE REVIEW – review of decision refusing to withdraw infringement notice – summary offence – exceeding the speed limit – school zone speed limit – withdrawal of infringement notice unsuitable for school zone offences – technical reason argued – alleged defective signposts – signposting complied with the relevant standards – decision under review is confirmed
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 9
Road Transport (General) Act 1999 ss 34, 38, 95
Subordinate
Legislation cited: ACT Civil and Administrative Tribunal Procedures Rules 2020 r 130
Australian Standard Manual of Uniform Traffic Control Devices 1742.4 Speed Controls
Road Transport (General) Withdrawal of Infringement Notices Guidelines 2019 (No 1)Traffic Control Devices, Municipal Infrastructure Standards 13 s 1.1.3.1
Cases cited:Warren v Road Transport Authority [2021] ACAT 31
Tribunal: Presidential Member H Robinson
Date of Orders: 15 June 2021
Date of Reasons for Decision: 15 June 2021
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AT 19/2021
BETWEEN:
LAURENCE JOYCE
Applicant
AND:
THE CHIEF POLICE OFFICER
Respondent
TRIBUNAL: Presidential Member H Robinson
DATE:15 June 2021
ORDER
The Tribunal orders that:
The decision under review is confirmed.
………………………………..
Presidential Member H Robinson
REASONS FOR DECISION
By way of this application the applicant seeks review of the respondent’s refusal to withdraw a traffic infringement notice pursuant to section 34 of the Road Transport (General) Act 1999 (the RT(G) Act).
The role of the Tribunal
The Tribunal is conferred with jurisdiction to undertake merits review of the decision pursuant to section 95 of the RT(G) Act and section 9 of the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act). In undertaking a review of this kind, the Tribunal ‘stands in the shoes of the decision-maker’ and considers whether the decision was the correct or preferable decision.
The hearing
The matter was heard on 12 May 2021. The applicant was self-represented. The respondent was represented by Ms Bayer of the ACT Government Solicitor. The Tribunal had before it the documents provided by the respondent pursuant to rule 130 of the ACT Civil and Administrative Tribunal Procedures Rules 2020 (T Documents), further evidence filed by the applicant, and written submissions filed by both parties. Both parties also made oral submissions at the hearing.
For the most part, the factual evidence was not in contention. The substantive question was whether there was “insufficient and inadequate speed warning signage” of the change in speed, and whether, if so, this would be a basis for withdrawal of the infringement notice.
Background
On 23 July 2020 the applicant travelled to the ACT from NSW for the purpose of attending a medical appointment.
He drove through Queanbeyan and down Hindmarsh Drive, then turned north into Callum Street and right into Launceston Street in Phillip. He next drove east along Launceston Street. In doing so, he travelled past a mobile speed camera and, unbeknown to him, through a school zone.
When the applicant saw the mobile speed camera he checked his odometer. He was driving at 54km/h – well below what he believed to be the speed limit of 60km/h, but above the 40km/h speed limit for the school zone.
Shortly thereafter the applicant was issued with an infringement notice and a fine for exceeding the speed limit by less than 15 kilometres an hour (the infringement notice).
The applicant’s evidence, which was not contested and which I accept, was that he did not see any relevant school zone signs.
On 17 August 2020, the applicant applied to Access Canberra for withdrawal of the infringement. In that application he stated that he was unaware he was in a school zone and noted the placement of the school zone sign and the absence of warning signs on Callum Street.
On 26 February 2021 a delegate of the Chief Police Officer, wrote to the applicant advising of his decision to refuse to withdraw the infringement notice. The reasons for refusal were, among other things, that “as a motorist, it is your responsibility to adhere to the signage stipulated.”
On 8 March 2020 applicant wrote to the delegate and requested an internal review of the decision to refuse to withdraw the infringement. In that letter, the applicant set out his reasons for seeking the review and attaches a number of photographs of the signs leading to the school zone and in surrounding areas.
On 22 March 2021 a different delegate of the Chief Police Officer wrote to the applicant, stating, amongst other things:
After careful consideration, I have determined the original decision not to withdraw the traffic infringement notice will remain unchanged.[1]
[1] T document 3 page 11
The delegate considered that:
…the signs situated on Launceston Street after the bridge crossing, were clear and unobstructed on the day of the offence. No additional signage is required.[2]
[2] T document 3 page 11
On 12 April 2021, the applicant made his application to the tribunal for review of the decision to refuse to withdraw the infringement notice.
The law
The Road Transport (General) Act 1999 provides for the issuing of infringement notices for certain “infringement notice offences”, including exceeding the speed limit.
Section 34 of the RT(G) Act provides that a person served with an infringement notice may apply to the authority for withdrawal of the notice. Section 38 provides for the Minister to make “guidelines” for the waiver of infringement notice penalties. Section 38(2) of the RT(G) Act provides that the authority must comply with the Guidelines. This means that the authority was bound to comply with the Guidelines, and the Tribunal, standing in the shoes of the authority, must also comply with the Guidelines.
The Minister has made guidelines, being the Road Transport (General) Withdrawal of Infringement Notices Guidelines 2019 (No 1) (the Guidelines).
The introduction to the Guidelines provides:
GROUNDS FOR WITHDRAWAL OF INFRINGEMENT NOTICES
Withdrawal of an infringement notice has the effect that the offence never happened, that is, all penalties associated with the offence (financial and demerit points) do not apply.
In determining whether to withdraw an infringement notice, the administering authority may take into account:
·the circumstances in which the infringement notice was issued, including the level of risk posed by the applicant’s behaviour to other road users or public passengers;
·the seriousness of the offence; and
·the extent to which the applicant was aware, or ought reasonably to have been aware, that the conduct constituting the offence was contrary to law.
Certain offences are generally considered to be unsuitable for withdrawal due to the level of risk they pose and the seriousness of the offence. These offences are outlined in Attachment A to this schedule.
Disagreeing with a law, or finding it inconvenient, to adhere to it are not grounds for having an infringement notice withdrawn.
The Guidelines set out several bases upon which an infringement notice may be withdrawn. The only basis relevant to this matter is where there is a “technical reason”, which includes where the signage is defective:
An infringement notice may be withdrawn for administrative or technical reasons where those reasons are outside the control of the applicant and contributed either wholly or materially to the circumstance in which the applicant was issued with an infringement notice.
For example:
·A machine, device, instrument, sign, signal or other thing (whether used or installed by, or under, authority of the road transport legislation) was missing, defective or malfunctioning, and the absence, defect or malfunction contributed to the circumstance in which the applicant was issued with an infringement notice.
However, in addition to this, Attachment A provides that offences that are generally considered unsuitable for withdrawal include:
…school zone speeding offences where the speed limit has been exceeded by any margin.
The use of the word ‘generally’ suggests that it would usually not be appropriate to waive or withdraw an infringement notice issued for speeding in school zones, but there remains discretion to do so in appropriate cases. The Guidelines provide little further guidance on when the discretion should be exercised.
The applicant’s arguments
The applicant argues that:
…on making right hand turn at a safe 20kph, a driver while completing a safe lane change has only 27 metres and 5 seconds to see with clear straight line of sight view [of] the school warning signs.
In his submission:
This is inadequate and insufficient warning. [emphasis in original]
The basis for the applicant’s calculations was set out in the submissions and the respondent did not take issue with them.
In support of his application the applicant also filed evidence about the visibility and notice that was given for other school zone signs, primarily along the route he took to attend his medical appointment. Again, none of this evidence was seriously challenged.
The applicant submitted that:
The ACT government has done a magnificent job of providing information and directional signage as well as warning signage in the majority of cases with clear straight line of sight view so that drivers can drive in the ACT with safety but in the situation of the intersection of Callum St and Launceston St has failed to provide adequate and sufficient warning signs… [emphasis in original]
He further submitted that the ACT Government has set what he describes as a “precedent”, at the intersection of Corrado Street and Dennison Street, providing warning signage of a school zone in an intersecting street. He says that this should be standard, and that a driver should only be liable for a speeding fine if they have been given a clear straight line of sight view of adequate and sufficient warning signs.
The Territory’s case
The Territory submitted the relevant standard for placement of signs in the ACT is contained within Australian Standard Manual of Uniform Traffic Control Devices 1742.4 Speed Controls (Speed Control Standard).[3] The Territory submitted that the signs in issue in this matter complied with the Speed Control Standard. The applicant does not disagree with this. Indeed, he acknowledges that the Territory has met the minimum standard, but says that in this case, the minimum is not enough.
[3] Incorporated pursuant to Section 1.1.3.1 of the Traffic Control Devices, ACT’s Municipal Infrastructure Standards 13
Part 2.1 point 2.2 of that Speed Control Standard, sets out the rules for the installation of speed limit signs. Part 2.1 point 2.2 does not contain a prescribed minimum distance that a speed sign must be placed from an intersection, and the placement of the speed sign zone, in this instance complies with the requirements of part 2.1 point 1.2 point two. This is because it is located at the boundary of the default limit, is prominently displayed to approaching drivers installed on both sides of the road, is not obscured, and does not obscure another sign.
The Speed Control Standard references the “V 85” equation when determining distances. The applicant in his application notes that a driver making the right hand turn at a safe 20km/h (the speed at which 85% of all vehicles were observed to travel) has only 27 metres to see and react to the school zone sign. The Territory submits that on that assumption of speed, and free flowing traffic conditions when making that right hand turn, the distance required to read and respond to a sign under the Speed Control Standard is only 12 metres. Hence, the sign placement is clearly well in excess of the minimum distance required by part 2.1 point 2.2 for drivers traveling at 20km/h. The respondent also notes that a visibility distance of 24 metres between each sign is considered sufficient where a driver is travelling at 40km/h. The calculations were set out in the submissions and not challenged.
Accordingly, the respondent’s position is that the signage meets and exceeds the minimum standard and there is no evidence before the Tribunal that would establish that some greater distance is necessary.
Decision
The Guidelines state that it is not generally appropriate to withdraw a speeding fine issued in a school zone. This reflects the importance of driving at a lower speed where children or young people may be crossing the road. Notwithstanding that the Guidelines provide that the infringement notice in this case is not of a kind that would ‘generally’ be withdrawn, it remains open to the Tribunal to exercise its discretion to do so, after considering all of the relevant circumstances.[4]
[4] See e.g. Warren v Road Transport Authority [2021] ACAT 31 at [17]
One circumstance where it may be appropriate to waive an infringement notice is where a sign is “missing, defective or malfunctioning” such that it would excuse non-compliance.
The applicant says the sign was defective.
The only evidence I have before me of any defect with the signage is that the applicant did not see it. I do not doubt his evidence or his honesty and I acknowledge his past driving record and his dedication to ensuring he complies with road rules generally. He did not see the school zone speed sign, and he would have slowed down if he had. However, that he did not see the sign on this one occasion does not convince me that the sign itself is defective.
The school zone speed sign complies with and indeed exceeds the minimal standards for street signage set out in the Australian Standards. While compliance with the Australian Standard need not be determinative of reasonableness, it is nonetheless of some weight in considering whether the signage is inadequate.
The applicant suggests that, notwithstanding what the minimum visibility requirements are, the appropriate standard is that used on other, similar signs. He has produced evidence that suggests that, at least in the surrounding suburbs, greater distance and visibility is usual. I accept that the Territory has exceeded the minimum standards for distance and notice in relation to other school zones. However, I do not accept the applicant’s argument that the placement of a greater warning or distance at other locations creates a “precedent” that requires placement of signs with additional distance at all locations.
There is no evidence before the Tribunal of any ongoing or systemic problems at that interaction or that school zone.
Accordingly, on the evidence before me, I am not satisfied the applicant has established circumstances such that it would be appropriate to withdrawal of the infringement notice. I am satisfied that the decision under review was the correct and preferable decision and I confirm the decision.
In saying that, however, I note the thorough feedback provided by the applicant in relation to the placement of the school zone signs on Launceston Street. This may be an opportune time for the relevant agency to consider whether it is possible to give motorists more notice of the school zone.
………………………………..
Presidential Member H Robinson
| Date(s) of hearing: | 17 May 2021 |
| Applicant: | In person |
| Solicitors for the Respondent: | Ms M Bayer, ACT Government Solicitor |
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