Mao v Chief Police Officer (Administrative Review)

[2025] ACAT 21

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

MAO v CHIEF POLICE OFFICER (Administrative Review) [2025] ACAT 21

AT 116/2024

Catchwords:               ADMINISTRATIVE REVIEW – review of infringement notice for camera-detected offence – prior good driving record - whether speed signage properly in place – driving 20 km/h above speed limit – "serious offence" – consideration of Road Transport (General) Withdrawal of Infringement Notices Guidelines 2019 (No.1) – “unreasonableness” – “mistake” – Application dismissed

Legislation cited:        ACT Civil and Administrative Tribunal Act 2008 s 68

Road Transport (General) Act 1999 s 24

Subordinate

Legislation cited:        Road Transport (General) Withdrawal of Infringement Notices Guidelines 2019 (No.1)

Cases cited:ABT17 v Minister for Immigration and Border Protection [2020] HCA 34

Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352
CTM v The Queen [2008] HCA 25; (2008) 236 CLR 440
DVO16 v Minister for Immigration and Border Protection (2021) 95 ALJR 375
Hands v Minister for Immigration and Border Protection (2018) 267 FCR 628
Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611
Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611
Minister for Immigration v Li [2013] HCA 18; (2013) 249 CLR 332
Ostrowski v Palmer [2004] HCA 30; (2004) 218 CLR 493

Texts/papers cited:     M Aronson, M Groves & G Weeks, Judicial Review of Administrative Action and Government Liability (Seventh Edition) (Sydney: Lawbook Co/Thomson Reuters, 2022)

Tribunal:Senior Member Dr W J Neville

Date of Orders:  28 March 2025

Date of Reasons for Decision:      28 March 2025

Date of Publication:  08 April 2025

AUSTRALIAN CAPITAL TERRITORY          )

CIVIL & ADMINISTRATIVE TRIBUNAL     )          AT 116/2024

BETWEEN:

KEVIN MAO
Applicant

AND:

CHIEF POLICE OFFICER
Respondent

TRIBUNAL:Senior Member Dr W J Neville

DATE:28 March 2025

ORDER

The Tribunal orders that:

1. The Application for Review filed on 28 October 2024 is dismissed.

   ………………………………..

Senior Member Dr W J Neville

REASONS FOR DECISION

Introduction

1. By Application for Review of a decision, filed with the ACT Civil and Administrative Tribunal (the ACAT or tribunal) on 28 October 2024, the Applicant seeks to review the infringement notice (the Notice) regarding a Camera Detected Offence under section 24 of the Road Transport (General) Act 1999 for exceeding the speed limit (by “greater than 15 but less than 30 km/h”). The specified speed limit at the relevant place (Monaro Highway) and time (9:19am) was 60 km/h, while the registered vehicle speed was 80 km/h. It was determined that the Applicant exceeded the speed limit by 20 km/h in a road works zone, where the speed limit was 60km/h.

2. The Applicant was directed to pay a fine of $468 and notified that he would lose six demerit points.

3. On 29 June 2024, the Applicant wrote to the Access Canberra Infringement Office (the Authority) seeking to have the Notice withdrawn. On 11 September 2024, the Applicant was notified that the Application for withdrawal was refused.

4. On 20 September 2024, the Applicant sought a review of that decision. On 3 October 2024, the Applicant was notified that the original decision not to withdraw the Notice would be confirmed.

5. The parties agreed that the matter be dealt with on the basis of written submissions, together with the materials as filed.

6. For the reasons that follow, the Application for Review must be dismissed.

Grounds of review

1. The first ground of review (as filed on 28 October 2024) stated:

   I believe the decision-maker has not reasonably considered prior good driving record on balance of the seriousness of the offence ‘generally’ considered to be unsuitable for withdrawal … I have held either a NSW or ACT drivers licence since 2016 with no parking or traffic offences in either jurisdiction.

2. The second ground of the Review Application raised a question of fact, namely, whether the speed signage was properly in place on the day in question. He concluded this ground stating, (therefore, it was more a submission but still an assertion of fact):

   [M]y memory of the journey on 25 April 2024 northbound on the Monaro Highway where I did distinctly remember a lack of signage despite sighting some construction machinery, and had wondered if the signage was removed due to it being a public holiday.

Evidence

1. In addition to the Applicant’s correspondence, applications and submissions, noted above and below, the Tribunal has before it the following evidence:[1]

   (a)Infringement Notice: 1 May 2024;

   (b)Email and smart form application for withdrawal: 29 June 2024;

   (c)Withdrawal of infringement notice checklist: 11 September 2024;

   (d)Email to Applicant with withdrawal outcome letter: 11 September 2024;

   (e)Email to Applicant with review outcome letter: 3 October 2024; and

   (f)Witness statement, dated 22 January 2025, of Ms Kitson, a representative for Access Canberra and a delegate of the Chief Police Officer, the Respondent in the current proceeding. That statement sets out evidence taken from the traffic camera operator’s log for the date and time in question here. It also sets out her inquiries from accessing the speed camera images and traffic adjudication system, which confirmed the location of the 60 km/h speed signs on the date and time in question.

   [1] Items (a) – (e) are contained in a Tribunal Book of documents provided by the Respondent. The matters referred to in item (f) (e.g various images – speed signs, image of Applicant’s vehicle with Road Sign on date and time in question, and traffic camera operator’s log) are in Supplementary Materials provided by the Respondent.

2. Summarised, in the refusal letter from the Infringement Review Officer of 11 September 2024, it was noted that (a) the Applicant relied upon his good driving history as the principal basis for withdrawing the Notice; (b) when considering an application for withdrawal of such a notice, the authority must consider the seriousness of the offence; and (c) driving 15 km/h above the sign posted speed limit was considered to be a serious offence. The Authority noted that the Road Transport (General) Withdrawal of Infringement Notices Guidelines 2019 (No.1) (the Guidelines) did not permit withdrawal of a Notice in circumstances where there was a “serious offence.” The Authority also noted the Applicant’s responsibility as a driver to “look out for and follow road signs”, notably in circumstances where he stated that he was unfamiliar with the area in question on the day he was recorded as speeding above the relevant speed sign.

3. Also summarised, in the refusal letter regarding the Applicant’s review dated 3 October 2024, it was noted that certain offences (noted in Attachment A to the Schedule to the Guidelines) are generally considered to be unsuitable for withdrawal “due to the level of risk they pose and the seriousness of the offence.” The offence with which the Applicant was charged (i.e “non-school zone speeding offences where the speed limit has been exceeded by greater than 15 km/h”) is the first of the offences generally regarded as to be unsuitable for withdrawal.

4. It was also noted in this letter that the Applicant’s contention that relevant signage was not in place was incorrect because, the Authority confirmed, “the signage has been in location for many months on both north and south bound roads on the Monaro Highway … The signs have been in place and are not being removed out of hours.” The Applicant’s evidence was that from his “memory”, he recalled there being intermittent machinery on the side of the road and median strip.” He went on to say that “there were no barricades, cones or modified speed limit signage which I assumed was because it was a public holiday”.

Submissions of the parties

1. In more detail to those set out at the start of these reasons, the submissions that follow relevantly outline the essential facts and features that gave rise to the original Notice, and which give rise to the current Application for Review.

2. The grounds of review articulated by the Applicant in his Application, summarised, were that (a) the decision-maker did not “reasonably consider” the Applicant’s prior good driving record; and (b) it was/is the Applicant’s recollection is that there was no relevant signage on the day in question. He also made the submission that (his reading) of the reasons indicated that the relevant signage started after the northbound speed camera, and if this be the case, in his submission, there was no opportunity for him to adhere to a speed limit that was not notified to him.

3. In his original challenge to the Notice, his documentation sent to Access Canberra on 29 June 2024 recorded that the Applicant confirmed that he was unfamiliar with the Monaro Highway where the road works were located on the date in question. As an observation only at this stage: one might think that driving along an unfamiliar road where road works are obviously being undertaken would warrant particular caution, and attention to any signage.

4. Put in more legal terms, these two grounds are (a) a matter of proper or reasonable consideration of evidence, and (b) subject to the correct reading of the reasons, the second issue may be an issue of fact or relevant evidence.

5. The submissions of the parties are as follows.

Applicant’s outline of submissions

1. The Applicant’s written submissions, filed on 6 January 2025, include:

   Originally, I made the application for a review of the decision by the Infringement Office not to withdraw the Infringement on the basis that the decision maker has not reasonably considered a prior good driving record against the seriousness of the offence in accordance with Road Transport (General) Withdrawal of Infringement Notices Guidelines 2019 (Withdrawal Guidelines). The letter from the original decision maker states that: ‘The Road Transport (General) Withdrawal of Infringement Notices Guidelines 2019 does not allow the withdrawal of a serious offence on the grounds of good behaviour.’ However, I believe this is not necessarily true as the Withdrawal Guidelines state that: ‘Certain offences are generally considered to be unsuitable for withdrawal due to the level of risk they pose and the seriousness of the offence.’ I understand the use of the term ‘generally’ in the Withdrawal Guidelines provides some degree of leniency as to the decision on whether or not an offence can be considered serious (which understandably may be above the discretionary capabilities of a frontline infringement officer). I ask that, essentially, the Tribunal take into consideration the serious of the offence (i.e. travelling 20 km/hr above the temporary speed limit due to an once-off unawareness of road works signage - explained further in the letter with good reason) on balance against my prior good driving record of over 7 years in NSW and the ACT (license history documentation lodged, please refer to document index) when deciding the outcome of this matter.

   Following the provision of photographic evidence by the Respondent’s representative (which I understand has been filed with the Tribunal), and interrogation of this information with the letter from the Infringement Office on the internal review of the original decision against the withdrawal of the Infringement (filed with the ACAT Application and also by the Respondent), I wish to draw to your attention further evidence which will substantiate my initial application for the withdrawal of the Infringement on grounds of a good driving record at the points below. Furthermore, the evidence listed below will justify why I have consistently believed there to be a lack of signage, in addition to confusion around camera positioning resulting from the internal review.

   ●      Lack of signage - The ACT Government City Services website includes Guiding principles for temporary traffic management plans for all temporary traffic management which I understand includes temporary road works. On page 2 of this document it is annotated that ‘Temporary Traffic Management must be designed to accord with AS1742 part 3 and the Traffic Control at Worksites Manual (RMS 2012). I refer to the Traffic Control at Work Sites as published by Transport for NSW on the presumption that the ACT adheres to the larger jurisdiction’s traffic management frameworks. I will refer to this document as the NSW Traffic Manual and an extract of the relevant sections of the document has been lodged for ease of reference. Section 4.5.5 - Implementation (page 60) states that ‘When implementing a temporary speed zone, the conditions in Table 4-9 must be met;’ the first item of Table 4-9 is the condition that the ‘Roadwork Speed Limit signs are to be erected on both sides of the carriageway.’ Given the images provided in the Respondent’s supplementary material dated 13 November 2024, which includes images of the relevant roadwork speed limit sign and my vehicle travelling past the sign on the opposite side of the carriageway on 25 April 2024, I note the lack of a similar or duplicate roadwork speed sign on the side of the carriageway that I was travelling (the left lane). Further, I note the lack of barriers, cones, machinery, or personnel evident in the photographs of 24 April and 25 April suggesting the presence of roadworks, which leads to the second point.

   ●      Improper duration of signage - Section 4.5.4 - Duration (NSW Traffic Manual (page 60)) states that ‘Signs showing roadwork speed limits must only be displayed when the speed zone authorisation applies and for the duration of the need. The duration of need is typically: • While active works are underway and the site is attended; or • While warranted by changed road conditions. Outside of restriction and need, roadwork speed limit signs must be removed or covered appropriately.’ I propose that neither conditions for the duration of the roadwork speed limit sign to remain in place on 25 April 2024 were met, that being because there were no ongoing active works underway nor attendance at the site (the images provided by the Respondent do not show any active workers), nor was the modified speed limit (from 80 to 60 kilometers per hour) warranted by changed road conditions. Therefore, according to the relevant manual, the roadwork speed limit sign should have been removed or covered. In the letter from the Infringement Office of 3 October 2024 informing me of the outcome of the internal review, the delegate states that ‘the signs have been in place and are not being removed out of hours’ which contradicts the requirements for proper duration for signage.

   ●      Confusion around speed camera placement - In the letter from the Infringement Office of 3 October 2024 informing me of the outcome of the internal review, and as referenced in my original application to the Tribunal, the decision maker states that signage begins just after the speed camera northbound to which I suggested that I therefore did not have an opportunity to adhere to the lower speed limit. This has since been clarified in the directions hearing of 25 November 2024 to not be the case due to some confusion around which speed camera the signs were placed in reference to. However I believe this shows, to some extent, a lack of fidelity from the Respodent’s [sic] delegates on the matter given the Infringement is reliant on a speed camera.

   As a general comment on road safety, I place heavy emphasis on road awareness as I ride a motorcycle fairly regularly including for commuting which demands a high level of awareness due to the heightened risks of an accident.

   Given the facts of this matter now known, I ask that the Tribunal consider my good driving record, the errors in the road works signage and confusion caused by the letter providing the outcome from the internal review, that the correct and preferrable decision is for the Tribunal to make a substitute decision to withdraw the Infringement. Given the facts and arguments presented, I am grateful of your consideration of whether or not the seriousness of the offence warrants the penalty which not only includes a fine but also a permanent mark against my otherwise impeccable record.

Respondent’s outline of submissions

1. The Respondent’s submissions received on 4 February 2025 state:

   …

   20.In the Application for Review of a Decision dated 28 October 2024 and written submissions filed with the Tribunal on 5 January 2025, the applicant argues, in summary, that:

   (a)     the infringement should be withdrawn based on the applicant's prior good driving record;

   (b)     the signage displaying the road work speed limit was insufficient; and

   (c)     the signage displaying the road work speed limit ought to have been removed or covered at the time the applicant was detected by the traffic camera.

   21.It is the respondent's position that the Tribunal is also bound to apply the RT Guidelines and in accordance with those guidelines, an infringement notice for the offence which is the subject of this application is generally considered unsuitable for withdrawal due to the public safety risks. On that basis, the respondent submits that in the absence of any justification for deviating from that position, the issue of the infringement notice should be confirmed.

   22.However, if the Tribunal is not persuaded that is the correct or preferable approach, these submissions will address the applicant's arguments in relation to the criteria for consideration of withdrawal provided in the RT Guidelines.

   Prior good driving record

   23.The Tribunal, standing in the shoes of the decision maker, must have regard to the RT Guidelines. The RT Guidelines provide that in determining whether to withdraw an infringement notice based on an applicant's prior good driving record, the administering authority must take into account:

   (a)     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;

   (b)     the seriousness of the offence; and

   (c)     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.

   24.The applicant has provided a Traffic Record Report from Transport NSW which does not disclose any traffic offences. The applicant has not provided his ACT driving history. This leaves the Tribunal with incomplete evidence regarding the applicant's driving history.

   25.When considering withdrawal on the grounds of prior good driving record, the RT Guidelines require the administering authority to consider the seriousness of the offence. Given that this offence has been specifically listed in Attachment A to Schedule 1 to the RT Guidelines it can safely be concluded that offences of this nature are considered "serious" by the Legislature due to the risks to public safety. It is on that basis that this type of offence is generally considered unsuitable for withdrawal.

   26.The applicant was detected traveling at 80km/h in a non-school zone with a speed limit of 60km/h. The applicant was therefore traveling at 20km/h over the speed limit. Driving more than 5km/h above the speed limit is an offence characterised by the RT Guidelines as generally unsuitable for withdrawal.

   27.This interpretation was supported in the matter of Warren v Road Transport Authority (Administrative Review) [2021] ACAT 31, where the applicant sought withdrawal of an infringement notice for stopping in a no-stopping zone. The applicant sought withdrawal based on his prior good driving record and that the circumstances requiring him to stop were exceptional. Senior Member Katavic found in relation to the applicant's prior good driving record:

   Even accepting that the applicant has an unblemished driving record, for which he is to be commended, that is not enough to warrant withdrawal of the infringement notice in circumstances where the legislature has seen fit to characterise this particular offence as one which is unsuitable for withdrawal. It is not a sufficient reason alone to have the infringement notice withdrawn.

   28.Similarly in the matter of Watts v The Chief Police Officer (Administrative Review) [2023] ACAT 22, the applicant sought withdrawal of infringement notices for exceeding the (then) recently reduced 40km/h speed limit at the Northbourne Avenue/Barry Drive intersection. The applicant argued that he was unaware of the reduced speed limits and asserted that the change had been insufficiently publicised such that he did not have an opportunity to change his driving behaviour. Senior Member Robinson, addressing the circumstances in which the infringement notice was issued, including the level of risk posed by the applicant's behaviour to other members of the community, found:

   ...the original speed limit of 60km/h in the city area was considered an unacceptable risk to members of the community, and for this reason it was lowered. The act of driving above the speed limit presented a risk to other 1nembers of the community, albeit one taken unknowingly.

   29.The respondent submits that the applicant's conduct, by driving at 20km/h above the speed limit in a roadworks zone, presented a significant risk to the safety of other members of the community and potentially road workers at the site. The commentary in the RT Guidelines, as well as the comments of the Tribunal in Warren and Watts, clearly support the submission that claiming to have a prior good driving record does not outweigh the necessity to impose a penalty which is representative of the risk presented by "serious" offences.

   Insufficient signage

   30.In his Application for Review of a Decision, under 'Reasons for Applying for Review', the applicant referred to the internal review outcome letter as a ground under which the infringement should be withdrawn. The relevant paragraph of the internal review outcome letter stated, in response to the applicant's claim in his application for internal review:

   You further stated that there was a lack of signage in the location. The signage has been in location for many months on both the north and south bound roads on the Monaro highway. Signage starts just after the speed camera northbound and after the prison on the southbound side. This is in addition to the other subsequent signs along the length of the area. The signs have been in place and are not being removed out of hours.

   31.The applicant understandably understood the words "Signage starts just after the speed camera northbound" to mean that the signs displaying the 60km/h speed limit were only in place farther beyond the camera that had detected him speeding. Were this true, drivers would of course be unaware of the 60km/h speed limit until after detection by the camera.

   32.The reference in the internal review outcome letter to the "speed camera northbound" was a reference to the fixed speed camera permanently in place on the Monaro Highway, as opposed to the mobile traffic camera that had detected the applicant's car. The respondent filed with the Tribunal 'Respondent's Supplementary Material' on 13 November 2024 in response to this aspect of the application. The supplementary material includes the following evidence to support this proposition:

   (a)     An image taken from the fixed speed camera at 12:21PM on 24 April 2024, being the day before the applicant was detected by the mobile traffic camera, showing a white sign displaying '60 ROAD WORKS';

   (b)     An image taken from the fixed speed camera at 7:49AM on 25 April 2024, being 90 minutes before the applicant was detected by the mobile traffic camera, showing the same white sign displaying '60 ROAD WORKS';

   (c)     An image taken from the mobile speed camera at 9:19AM on 25 April 2024, showing the applicant's car in the foreground and a cluster of road signs in the background. Given that the sign displaying '60 ROAD WORKS' was photographed there 90 minutes earlier, and there is nothing to suggest it was removed in the interim, the respondent submits that the cluster must have included this sign displaying '60 ROAD WORKS';

   (d)     Traffic Camera Operators Log dated 25 April 2024, signed by Traffic Camera Operator Brett Hunt on 25 April 2024. This document states that the location of the traffic camera was 'Monaro highway - road works' in Hume between Sheppard Street and Lanyon Drive, 1.3km from Tralee Street/Monaro Highway intersection on the western side of the carriageway, capturing northbound traffic. The session occurred between 8:20AM and 10:00AM. Beside the words 'Site within speed restriction signs' is a checkbox marked 'Yes'. Beside the words "'Your speed has been checked" sign displayed' is a checkbox marked 'Yes'. The document states that the number of vehicles checked was 1,349 and that the number of vehicles detected speeding was 17.

   33.The supplementary material provides contemporaneous evidence which confirms that signage showing the 60km/h speed limit was in place and in view just after the fixed speed camera northbound on the Monaro Highway at the time the applicant's car was captured by the mobile traffic camera.

   34.Based on the supplementary material provided which shows the signs in situ, the applicant's repeated assertions that there was an absence of signage cannot be correct.

   35.The applicant's argument that the signage was insufficient is without basis. The applicant has not provided any evidence to counter that put by the respondent that might demonstrate that there was otherwise an absence of signage showing the reduced speed limit. On the contrary, all available evidence suggests that there was sufficient signage in place at the relevant time. The internal review outcome letter correctly states that signs for the reduced speed limit were in place beginning just after the [fixed] speed camera on the northbound side, as well as "other subsequent signs along the length of the area". The images taken from the fixed speed camera provided in the supplementary material show the sign displaying '60 ROAD WORKS'. The Traffic Camera Operators Log dated 25 April 2024 states that the site of the mobile traffic camera was within the speed restriction signs.

   36.Considering 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, the respondent submits that it is the driver's responsibility to be aware of, and abide by, the signposted speed limits.

   37.In Watts, Senior Member Robinson addressed 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:

   ...the changes to the speed limit were signposted for many months. It is the responsibility of all drivers to be aware of and abide by speed limits, and that means checking signs. Complacency, while understandable in the circumstances, is ultimately no excuse for consistent breaches of this kind.

   38.If the applicant did not notice the speed signs in the roadworks zone, this may be attributed to complacency. In line with SM Robinson's comments above, complacency is not a compelling reason for withdrawal.

   Improper duration of signage

   39.The applicant contends that the road work speed limit signs ought to have been removed or covered because he was detected speeding on a public holiday and did not see roadworks being undertaken at the site. This is not a ground for withdrawal under the RT Guidelines.

   40.Section 21(1) of the RT Road Rules provides that 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.

   41.Section 20 of the RT Road Rules requires drivers to adhere to the speed limit as signposted. It is irrelevant whether the applicant noticed active roadworks occurring at the time he was driving through the roadworks zone. As a driver, the law does not allow him to determine what speed limit should apply in certain circumstances; nor does it allow him the discretion to decide whether he should comply with the sign posted speed or not. Disagreeing with a law, or finding it inconvenient, to adhere to it are not grounds for having an infringement notice withdrawn.

   42.It remains open to the applicant to dispute liability, if the applicant considers that he is not guilty of the offence. The applicant was notified of that option on 2 June 2024, 11 September 2024, 20 September 2024, and 3 October 2024. Prosecutions for traffic offences are heard in the ACT Magistrates Court. (citations omitted)

Applicant’s submissions in reply

1. The Applicant replied to the Respondent’s submissions on 18 February 2025:

   Arguments against the Respondent’s written submissions

   3.The Applicant agrees that the Tribunal must, as the decision maker, have regard to the Road Transport Guidelines, however, the Tribunal may also consider under the Guidelines, which provides a degree of discretion, that the grounds for withdrawal can be applied if it deems that public safety was not put at risk or heightened risk by the Applicant on 25 April 2025 and that therefore the actions of the Applicant on that day cannot be considered ‘a serious offence’.

   3.1.   The arguments presented in these submissions will demonstrate that as the Applicant cannot be considered to have committed a ‘serious offence’, given a reasonable interpretation of that concept, the issue of the infringement notice should be withdrawn on the basis of a prior good record as the offence can no longer be considered unsuitable for withdrawal under the Guidelines.

   4.Regarding the Respondent’s claim that the Applicant has provided incomplete evidence regarding the Applicant’s driving history by not providing an ACT driving history - the Respondent is clearly implying that the Applicant does not have a clear driving history. However, the Respondent, being the Chief of Police Officer, can easily search for the Applicant’s driving history in its records and the Respondent’s submissions would clearly present a besmirched record if that was the case.

   4.1.   However, if the Tribunal wishes to impose the additional cost on the Applicant to make this request to the Respondent’s organisation to retrieve this information, the Applicant would be willing to provide it to the decision maker’s satisfaction.

   5.Applicant’s arguments against the Respondent’s citation and interpretation of case law:

   5.1.   Warren v Road Transport Authority (Adminstrative [sic] Review) [2021] ACAT 31 (Warren v Road Transport Authority) - The Applicant in Warren v Road Transport Authority solely relied on a defence of an unblemished driving record, however the offence that is generally considered unsuitable for withdrawal in Warren v Road Transport Authority is ‘stopping contrary to a “no stopping” sign’. The Applicant submits that the current matter before the Tribunal relates to a fundamentally different offence for which a degree of discretion may be applied by the chain of decision makers in regards to whether the supporting evidence and claims activates the term ‘generally’ and thereby renders the grounds of a good driving record suitable for the withdrawal of the infringement notice valid. The Legislature inherently provides for this leniency via the use of the word ‘generally’. Therefore, the Respondent’s interpretation of the outcome of Warren v Road Transport Authority is not applicable to this case before the Tribunal.

   5.2. Watts v The Chief Police Officer (Administrative Review) [2023] ACAT 22 (Watts v The Chief Police Officer) - The comparison of this case to Watts v The Chief Police Officer, which the Respondent is keen to highlight to suggest that the Applicant is posing an unreasonable level of risk to other members of the community, is clearly wrong. The area where the Applicant was found to have travelled at higher than posted limits in Watts v The Chief Police Officer, Northborne [sic] Avenue/Barry Drive intersection, is a highly trafficked area by pedestrians, whereas the Applicant in this matter travelled above the speed limit on a two lane carriageway where there is generally, and evidently, no pedestrian traffic. Further, The Respondent has failed to mention that the Applicant in Watts v The Chief Police Officer engaged in a pattern of speeding in the relevant zone, albeit unknowingly. Therefore, the Respondent’s argument that the Applicant endangered the community, therefore committing a serious offence generally unsuitable for withdrawal, and should therefore not be granted an exemption on the basis of a good driving record, is invalid.

   6.The key dispute in this matter relates to the Respondent suggesting that because the Applicant was travelling at 20km/h over the speed limit, the Guidelines’ encouragement that such an offence is ‘generally’ unsuitable for withdrawal should be considered absolute. However, the Applicant believes that this is not the intention of the Legislature and that exceptional circumstances in this case allow for the applicability of the withdrawal on the basis that the Applicant is relying on a good driving record given the criteria for a serious offence has not been met in light of a reasonable interpretation of the term ‘serious offence’ as to allow a ‘generally’ unsuitable reason to be suitable. The Applicant is not arguing that the good driving record outweighs the seriousness of the offence, but that the offence may not be considered ‘serious’ within a reasonable view given the leniency that the Guidance allows at the discretion of the decision maker so as to permit the infringement to be withdrawn on the basis of a good driving record.

   6.1.   Further, the Applicant suggests that 20km/h is not materially significant over 15km/h which is the stated cutoff for a ‘serious offence’, when considering the context in which the incident occurred in relation to pedestrian traffic and the exceptional circumstances outlined below, to warrant a dismissal of the withdrawal on the grounds of a good driving record.

   7.The Applicant will address below the Respondent’s counterclaims to the Applicant’s submission of 5 January 2025.

   8.Insufficient signage - The Respondent provided documents on 13 November 2024 as supplementary material including 3 images and a completed Traffic Camera Operators Log. The Respondent claims that the supplementary material provided confirms that the signage showing 60km/h was placed after the fixed speed camera and before the mobile traffic camera which captured the Applicant’s vehicle.

   8.1.   Firstly, none of the evidence provided by the Respondent categorically proves which camera is the fixed speed camera and which camera is the mobile traffic camera as there is only one image of the Applicant’s vehicle rather than one each showing the front and rear. Given they are relatively close to each other as shown by the two images, the Tribunal should seek further clarification from the Respondent requesting telemetry and location data from the owners of the equipment to be able to fully conclude that it is the correct camera which detected the Applicant’s vehicle travelling overspeed of 20km/h after the road works sign but before the speed camera.

   8.2.   The Respondent further states that the evidence provided supports the proposition that an absence of signage cannot be correct, but failed to address the Applicant’s argument that signs should have been erected on ‘both sides of the carriageway’ per Traffic Control guidance. None of the evidence provided by the Respondent shows that this is the case, and the Applicant notes that in the case Watts v The Chief Police Officer the Respondent advised that 17 advisory signs were posted for an updated speed zone whereas it is clear that in this matter, there was only 1.

   8.3.   The Applicant further notes that there was no “Your speed has been checked” sign as noted in the Log or as can be seen in the images, which correlates with the Applicant’s position that there was a lack of signage. Given the lack of signage that the evidence points to, the Respondent’s assertion that the images showing the one sign in situ contradicts the Applicant’s view that there was an absence of signage is patently false.

   8.4.   In regards to the Respondent’s reference to Watts v The Chief Police Officer and whether or not a driver should be reasonably aware of and the lack of noticing of speed signs constituting complacency, the Applicant submits that Watts v The Chief Police Officer referred to ‘consistent breaches’ rather than a singular incident and that because of insuffient [sic: “insufficient”] signage, as proven by all available photographic evidence, the Tribunal cannot draw a conclusion that the Applicant has been complacent and should have been reasonably aware of the single sign.

   8.5.   Altogether, the evidence supporting the lack of sufficient signage can be characterised as the first exceptional circumstance to support withdrawal of the infringement on the basis that the matter is suitable for withdrawal by way of the Applicant relying on a good driving record given the criteria for a ‘serious offence’ has not been met from a reasonable interpretation of the term ‘serious offence’.

   9.Improper duration of signage

   9.1.   The Respondent claims that the Applicant contends that the roadworks should have been removed or covered because the Applicant was detected speeding on a public holiday and did not see roadworks being undertaken at the site. The Applicant understands that this is not grounds for withdrawal, however, notes that the Respondent’s claim is an oversimplification or misunderstanding of the Applicant’s position.

   9.2.   The Applicant does not suggest that the signage should have been removed for his convenience, but rather that according to the correct Traffic Control procedures the signage should have been removed or covered. This challenges the principle of causality. Had the correct Traffic Control procedures been followed, there would have been no infringement as the Applicant would have been driving at the listed speed for the road at 80 km/h. Furthermore, the presence of both limited signage and a mobile speed camera suggests that an active decision was made to not comply with the correct Traffic Control procedures.

   9.3.   This existence of the signage at the time of the incident presents the second exceptional circumstance which supports the Applicant’s argument that no ‘serious offence’, from a reasonable interpretation of the term, was committed and that the withdrawal of the infringement on grounds of a prior good record should be permitted at the discretion of the Tribunal and as accommodated by the intention of the Legislature.

   10.Recommendation

   10.1. The Tribunal, given the arguments presented by the Applicant, should review the decision to refuse the withdrawal of the infringement notice on the basis of an interpretation of the Legislature contrary to its intention and without consideration of the exceptional circumstances relevant to the incident.

Outline of principle

1. The outline of principle is in three parts:

   (a)relevant sections of the Guidelines;

   (b)case law regarding “unreasonableness” in decision-making; and

   (c)case law regarding “mistake” of either law or fact.

The Guidelines

1. In general terms, the Guidelines note various bases upon which infringement notices may be withdrawn. Importantly, because they are “guidelines”, their application in any one case is necessarily discretionary. As set out in Schedule 1 of the Guidelines, some of the grounds upon which such Notices may be withdrawn include, insufficient evidence, exceptional circumstances, and prior good driving record. It is only this last ground that the Applicant seeks to rely upon. That ground is in the following, mandatory terms:

   In considering whether to withdraw an infringement notice based on an Applicant’s prior good driving record, the administering authority must 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 members of the community;

   ·The seriousness of the offence;

   ·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.

   A good driving record is no offence committed under the road transport legislation, excluding parking offences (or a corresponding law of another jurisdiction) in the previous five year period.

   …

   Attachment A

   Offences that are generally considered unsuitable for withdrawal

   ·non-school zone speeding offences where the speed limit has been exceeded by greater than 15 km/h

   ·…

Unreasonableness in decision-making

1. There is much discussion, at the highest level, regarding “unreasonableness” and matters relating thereto. For current purposes, I need only note the following. I acknowledge that the principles below have invariably arisen in cases of judicial review, as opposed to merits review. However, some basic principles, such as in relation to “unreasonableness”, have wider application.

2. Every case is completely fact-specific, and therefore, fact-dependent.[2] This is also to say that the facts of one matter will rarely (or completely), if ever, assist in the resolution of another, even similar, matter.

   [2] See comments by Nettle and Gordon JJ in Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at [84] (SZVFW)

3. Courts and tribunals should be careful not to bring an unduly critical eye to decision-making in administrative matters. For example, in Minister for Immigration and Ethnic Affairs v Wu Shan Liang, the High Court said:[3]

   30.    [A] court should not be "concerned with looseness in the language ... nor with unhappy phrasing" of the reasons of an administrative decision-maker. The Court continued: "The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error".

   31.    These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed (internal citations omitted)

   [3] Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272 (internal citations omitted)

4. In Minister for Immigration and Multicultural Affairs v Eshetu (Eshetu), the High Court (Gleeson CJ and McHugh J) said, at [40], in very well-known statements that are often cited:[4]

   Someone who disagrees strongly with someone else's process of reasoning on an issue of fact may express such disagreement by describing the reasoning as "illogical" or "unreasonable", or even "so unreasonable that no reasonable person could adopt it". If these are merely emphatic ways of saying that the reasoning is wrong, then they may have no particular legal consequence.

   [4] Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611

5. Likewise, the comments of Crennan and Bell JJ regarding what constitutes an “unreasonable” decision in Minister for Immigration and Citizenship v SZMDS are equally well-known.[5] Because those comments have been noted in later Full Federal Court decisions, I need not set out the earlier High Court remarks here.

   [5] See Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [128] and [129]

6. More summarily still, more recent Federal Court decisions have recorded that “unreasonableness” is now more usually limited to irrational processes underlying conclusions of fact or opinions, and unreasonable choices regarding the exercise of discretionary power.[6] Further, it can safely be said that unreasonableness review, such as in the present matter, focuses particularly on the process in the fact-finding exercise.[7]

   [6] Generally, see the detailed discussion in SZVFW, cited earlier in these reasons, on these matters

   [7] There are multiple Full Federal Court, and other, authorities on these now basic points: see ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; (2020) 269 CLR 439; Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99; Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1

7. The cases referred to (and many others) note that:

   (a)factual errors (even errors as to material facts) are not, in themselves, the bases for review, because fact-finding is the decision-maker’s job;

   (b)an issue of the “materiality” of any claimed error must be examined. This means that it falls upon the person who alleges error to show that, as a fact or relevant inference, the error is such that if it had not been made, the ultimate decision would have gone another way;

   (c)according to the High Court in Minister for Immigration v Li, a decision which lacks an evident and intelligible justification is sometimes (but not necessarily) at risk of being viewed as relevantly unreasonable; [8]

   (d)given the Applicant’s ground of review in which he says that the decision-maker “did not reasonably consider” his good driving record, it is important to note that the Full Federal Court of Australia has confirmed that, for a period of time, the relevant test regarding reasonable consideration of materials/submissions put before a decision-maker required that there was a “proper, genuine and realistic” assessment of those materials. However, today, the proper approach is that the decision-maker is required to apply an “active intellectual process” to the matters raised by and materials provided by the Applicant. This latter process is designed to ensure or to guard against what are described as “decisional checklists or formulaic expressions.”[9]

Matters of “mistake”

[8] See Minister for Immigration v Li [2013] HCA 18; (2013) 249 CLR 332. Much of the parts of the summary here draws heavily from the long-held and long-time magisterial study by M. Aronson, M. Groves & G. Weeks, Judicial Review of Administrative Action and Government Liability (Seventh Edition) (Sydney: Lawbook Co/Thomson Reuters, 2022) Chapters 5 and 6.

[9] See Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352 at 364, Hands v Minister for Immigration and Border Protection (2018) 267 FCR 628 at 630 [3], and DVO16 v Minister for Immigration and Border Protection (2021) 95 ALJR 375 at 380 [12] and [77]

1. The Applicant raises a number of matters in his “defence”, and upon which he seeks to have the Tribunal set aside the penalties imposed upon him because of his speeding as set out above. He has not formally raised a defence of “mistake”. However, for more abundant caution, his contentions regarding the said driving having taken place on a public holiday, his lack of familiarity with the highway in question, and/or contentions regarding signage (or lack of it), could be taken to be, or to allude to, various kinds of “mistakes”, to which the Tribunal could, or should have regard. By “mistake”, strictly speaking, I am not referring to Oscar Wilde’s famous comment in Lady Windermere’s Fan (Act 3) that “experience is the name everyone gives to their mistakes.”

2. I need only note the comments of the High Court in Ostrowski v Palmer, where a person wanted to fish for rock lobster. He checked with authorities on where to fish; he took their advice. Alas, that advice was wrong, for the regulations forbad him to fish where he did. The Court said: “no defence.” The mistake was one of law.[10]

   [10] Ostrowski v Palmer [2004] HCA 30; (2004) 218 CLR 493

3. In CTM v The Queen, the High Court said:[11]

   Honest and reasonable mistakes of fact do not cover the whole field of risk of criminal liability to which a person may be exposed by making an error. Mistakes of law are not a ground of exculpation: ignorance of the law is no excuse. ... The concept of mistake itself is protean. The state of mind that, in a given set of circumstances, will qualify as a mistaken belief in a fact or state of affairs may be a matter of difficulty. An honest and reasonable belief in a certain fact or state of affairs may be very different from an absence of concern. (citations omitted)

Consideration & disposition

[11] CTM v The Queen [2008] HCA 25; (2008) 236 CLR 440

1. A few preliminary observations are important. First, in a “review”, it is not a case of the simple (and definitely not, the automatic) “substitution” of the Tribunal’s decision for that of the earlier decision-makers, in the event that the Tribunal may have a different view of the facts of the matter.[12] Basic questions the Tribunal relevantly asks are whether the decision under review was the correct or preferable one, and/or were there any relevant procedural defects in the process that led to the decision, which adversely impacted upon that decision. Subject to the answers to these questions, section 68 of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act) provides various remedies available to the Tribunal.

   [12] Generally, see s 68 of the ACAT Act regarding the powers and courses of the tribunal in reviewing decisions of the kind under consideration here

1. Secondly, it is for the Applicant to show that there has been a relevant, and material, error in the decision-making processes that have now led to the current Review Application. Thirdly, absent any application to amend, the Applicant is bound by the terms or grounds of review as set out in his Application.

2. Along the way, there was some change in the Applicant’s grounds of Appeal. I will deal firstly with the Grounds as set out in his original Application for Review.

3. The first paragraph (each of the three paragraphs is un-numbered) simply sets out what is described as the “context of the original infringement”, namely that he was exceeding the speed limit by 20 km/h in a road works zone when travelling northbound on the Monaro Highway on 25 April 2024. The usual speed limit of this road was 80 km/h. There is nothing contentious in this summary, but it also does not set out any ground of appeal.

4. Paragraph [2] contends that the Applicant “believes” that the decision-maker “has not reasonably considered [his] prior good driving record on balance of the seriousness of the office” [sic: presumably the Applicant means “offence”]. He confirmed that he has held a driver’s licence since 2016 with no parking or traffic offences in either NSW or the ACT.

5. The Applicant’s submissions, filed on 6 January and 18 February 2025 and set out above, essentially repeat, but in somewhat more detail, his reliance upon his prior good driving record.[13] Properly, he refers to the Guidelines (also set out above), and understandably emphasises the word “generally”, which appears in Attachment 1 of them. Respectfully, this mis-reads that term when read in the context of the offences that are provided as examples of those that are generally, or usually, unsuitable to result in an infringement being withdrawn. In my view, it is a highly nuanced if not inaccurate interpretation to use the word “generally” to highlight or to emphasise discretion, rather than what follows, namely, a list of examples of the kind of offences that would not be considered so as to warrant the withdrawal of an infringement notice. Discretion is certainly part of the overall consideration, but not in the way the Applicant contends.

   [13] See also the Applicant’s submissions of 18 February 2025 at [5] and [6]

6. As well, the decision-maker must have regard to the mandatory terms in the Guidelines, such as 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.”

7. Respectfully, simply to focus upon his good driving record, and his nuanced reference to “generally” in the Guidelines:

   (a)seeks to distinguish the two decisions of this Tribunal referred to in the Respondent’s submissions that deal with similar contentions in other matters and where the application for review was refused.[14] In those “speeding cases”, the focus was on the seriousness of the offence.

   (b)the Applicant’s reference and insistence (see paragraph [3] of his submissions of 6 January 2025) to “on balance”, highlights that he firmly, if not strongly, disagrees with the Respondent’s decision, and in turn, his reference to that decision being “not reasonable.” However, as such, it comes readily within the High Court’s comments (noted above) in Eshetu about “strong disagreement”, but which has no legal consequence.

   (c)The Respondent (and equally in the subsequent reviews of it) in my view, plainly had regard to the Applicant’s contentions regarding his prior good driving record. The various decision-makers, but most particularly the primary decision-maker, clearly had regard to the Applicant’s good driving record and did so by bringing an “active intellectual process” to the matters before them, according to the authorities noted above. The evidence before the Tribunal makes this perfectly clear. The primary decision-maker plainly had due regard to the Guidelines and applied them in a manner which, although the Applicant disagreed with the result, was proper and without relevant error. Disagreement, even firm disagreement, without more, is insufficient reason to set aside the original decision.

   (d)In his submissions in reply, filed on 18 February, to a significant degree, the Applicant relies upon the discretion of both the principal decision-maker (which he implicitly says miscarried, but provides no evidence or detail how, other than specific disagreement with the decision), and the discretion that now rests with the Tribunal, so that it is exercised differently and in favour of the Applicant.

   [14] See paragraphs [27] – [29] and [37] of the Respondent’s Submissions filed on 4 February 2025, which gives references to the authorities

8. The Applicant’s first ground of review has not been made out and must be dismissed.

9. The Applicant’s second Ground of Review relates to the speed signage on the road at the time, and on the date, set out above. These matters are canvassed over two pages in his January submissions, and over one and a half pages in his February submissions. Interposed with these matters are issues the Applicant raises regarding “confusion around speed camera placement.”

10. In his January 2025 submissions, the Applicant refers to and relies upon various parts of the NSW Traffic Manual regarding speed signs where there are roadworks. Earlier in those submissions, he referred to ACT “Guiding principles for temporary traffic management plans for all temporary traffic management.” It appears that the NSW guidelines have slightly different requirements. The Applicant averred that he presumed the ACT adhered to the guidelines of the larger jurisdiction of NSW and its guidelines.[15] The Applicant’s submissions said that (a) there was a lack of signage, and (b) there was improper signage duration. These same contentions are repeated in the February submissions.

    [15] The temporary traffic management guidelines for both jurisdictions were filed with the tribunal by the Applicant on 6 January 2025

11. At this juncture, I need to note a number of matters from the Respondent’s material. First, (as noted above) there is a witness statement from Ms Kitson, from the Infringement Review Office, in which she sets out a range of material based on her checking of various camera operator’s logs, and the retrieval of images from speed cameras. As she stated, in all of the retrieved images, the 60 km/h speed signs complained of by the Applicant are in the identical position, thus negativing his complaint about them not being either properly visible, and thereby he was properly on notice of the correct driving speed.

12. The difficulty for the Applicant is that his evidence is based on his recollection (which is perfectly understandable), whereas in terms of speed signage, the Respondent can (and has) relied upon retrieved images and material from the camera operator’s log on the day (and at the relevant times) in question. Ms Kitson’s witness statement provides cogent evidence to support the decision of the original decision-maker.

13. Further, I note that in the Respondent’s submissions, beginning at paragraph [32], the distinction between (and material taken from) images from the fixed camera on the day in question, and those from the mobile traffic camera is important evidence. In my view, it further supports the decision of the principal decision-maker. Further, as submitted by the Respondent, at paragraph [34], the supplementary material provided shows the signs on the day in question in situ. I accept and agree with the submission that follows, namely, the Applicant’s contentions regarding the absence of relevant signage cannot be maintained.

14. All drivers have a duty of care, for their own benefit and safety, and those of other drivers, to pay proper attention to driving conditions and sign-posted speed signs.

15. On the evidence and submissions provided by the Applicant, there is no basis for the Tribunal to interfere with, or to substitute any view of its own, for the principal decision in this matter (and the reviews since undertaken). The principal decision-maker properly and reasonably followed the Guidelines. There was no evident improper exercise of discretion when making the decision under review. No relevant error, of any kind, has been established by the Applicant.

16. In addition to these reasons, I accept and adopt the submissions on behalf of the Respondent. Accordingly, the Application for Review of a Decision, filed on 28 October 2024, must be dismissed.

    ………………………………..

Senior Member Dr W J Neville

Date of hearing:	19 February 2025
Applicant and Respondent:	By consent matter dealt with on the papers