MAXIM RASICApplicantAND:CHIEF POLICE OFFICERRespondent
[2017] ACAT 41
•1 June 2017
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
RASIC v CHIEF POLICE OFFICER (Administrative Review) [2017] ACAT 41
AT 12/2017
Catchwords: ADMINISTRATIVE REVIEW - Road Transport (General) Act 1999 – withdrawal of infringement notice – Road Transport (General) Withdrawal of Infringement Notices Guidelines 2012
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 9, 68
Road Transport (General) Act 1999 ss 34, 38, 95
Subordinate
Legislation:Road Transport (General) Withdrawal of Infringement Notices Guidelines 2012 (No 1) DI2012-246
Tribunal: Senior Member A Foley
Date of Orders: 11 May 2017
Date of Reasons for Decision: 1 June 2017
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AT 12/2017
BETWEEN:
MAXIM RASIC
Applicant
AND:
CHIEF POLICE OFFICER
Respondent
TRIBUNAL:Senior Member A Foley
DATE:11 May 2017
ORDER
The Tribunal Orders that:
1.The decision under review is confirmed.
2.Written reasons for decision to be provided.
………… Signed……..
Senior Member A Foley
REASONS FOR DECISION
1.Maxim Rasic (the applicant) has sought review of a decision of the Chief Police Officer (the respondent) to refuse to withdraw a traffic infringement notice pursuant to section 34 of the Road Transport (General) Act 1999 (the Road Transport Act).
2.Jurisdiction to review the respondent’s decision is conferred on the Tribunal by section 95 of the Road Transport Act which is an authorising law for the purposes of section 9 of the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act). The review is an application for review by the ACT Civil and Administrative Tribunal pursuant to section 68 of the ACAT Act.
3.In the reasons below, a reference to ‘ACAT’ or ‘tribunal’ refers to the ACT Civil and Administrative Tribunal generally, whereas ‘Tribunal’ refers to the member who heard the application.
The Hearing
4.The matter was heard on 11 May 2017. The Tribunal had before it the documents provide by the respondent on which its decision was based (the T Documents), the submissions and statements of facts and contentions of the parties. The applicant was self-represented and appeared by telephone. The respondent was represented by Ms Hakelis of the ACT Government Solicitor.
5.The applicant and respondent made submissions and responded to questions from the Tribunal.
6.At the conclusion of the hearing the Tribunal confirmed the decision under review and indicated it would provide written reasons. These are those reasons.
Background
7.The applicant is a 64 year old man who resides in Bonython and is in receipt of a disability support pension.
8.On 5 February 2017 at approximately 12 noon the applicant was detected by a mobile speed camera driving his motor vehicle at 103km/h in an 80 km/h zone on Drakeford Drive, Kambah. The road in that vicinity is a divided carriageway with three lanes of traffic in each direction. On 24 February 2017 the applicant was issued with a traffic infringement notice imposing a penalty of $380 and three demerit points (the infringement notice).[1]
[1] T-Documents page 35
9.The applicant’s evidence was that he wished to “appeal the decision” to impose the penalty. The infringement notice provides seven options by which to respond to the notice, several of which would constitute an ‘appeal’.[2]
[2] T-Documents page 36
10.One of those options directed the applicant to a website where he completed online an ‘application for withdrawal of the infringement notice’. In his application the reasons he cited for withdrawal were extreme personal stress in view of the serious ill health of his mother, his sister and himself; extreme financial pressure due to difficulty managing on a disability support pension, and his prior good driving record.
11.On 16 February the delegate of the respondent considered the applicant’s submission as an ‘Application for a Withdrawal of an Infringement’ under section 34 of the Road Transport Act. The application was refused.[3] The applicant sought review of this decision and this written request was dealt with by the respondent’s delegate as an internal review. It seems this was done on 2 March 2017 though the respondent’s letter confirming the original refusal is incorrectly dated.[4]
[3] T-Documents page 29
[4] T-Documents pages 21-22
12.To forestall further enforcement action on his driver’s licence the applicant sought and was granted approval to pay the fine of $380 by instalments of $50 per fortnight which he has been paying up to the hearing.
13.On 6 March 2017 the applicant applied to the ACT Civil and Administrative Tribunal (the ACAT) for review of the reviewable decision.
The relevant law
14.Section 38 of the Road Transport Act empowers the Minister to issue “guidelines for the withdrawal of infringement notices.” Pursuant to this provision, the Road Transport (General) Withdrawal of Infringement Notices Guidelines 2012 (No 1) DI2012-246 (the Guidelines) were issued. Though described as ‘guidelines’ only, section 38(2) of the Road Transport Act provides “the administering authority for an infringement notice offence must comply with the guidelines” [emphasis added]. The Guidelines are a disallowable legislative instrument. As such they are binding on the Tribunal unless there is an inconsistency with legislation.
15.Schedule 1 of the Guidelines sets out the criteria for withdrawal of an infringement notice. The relevant criteria or ‘circumstance’ applicable to the applicant is item 1.4 of Part 1 of the Schedule. Item 1.4 provides:
Road Transport (General) Withdrawal of Infringement Notices Guidelines 2012 (No 1) Schedule 1
Part 1: Circumstances that apply to all infringement notices issued under the road transport legislation
Item Offences to
which
circumstance applies
Circumstance Comments, exceptions or other limitations 1.4
Infringement notice offences under the road transport legislation, other than offences relating to: (1) parking contrary to, or without a mobility parking scheme authority; (2) stopping in or near an intersection, children’s crossing or pedestrian crossing; (3) stopping contrary to a “No Stopping” sign.
Applicant’s previous good behaviour, having regard to:
· whether the applicant was issued any relevant infringement notices under the road transport legislation (or a corresponding law of another jurisdiction); or
· whether the applicant was convicted (including where an offence has been taken into account under section 57 of the Crimes (Sentencing) Act 2005) or found guilty of any other relevant offences under the road transport legislation, or any offence mentioned in section 29 of the Crimes Act 1900,
in the 5 year period before the commission of the infringement notice offence to which the withdrawal application refers.
In determining whether to withdraw an infringement notice on the basis of the applicant’s previous good behaviour, the administering authority must consider the following matters in addition to the applicant’s previous good behaviour:
· the circumstances of the alleged offence, including the level of risk posed by the applicant’s behaviour to other road users;
· the seriousness of the alleged 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.
The matter at issue
16.The matter at issue is whether there is a basis for withdrawing the infringement notice pursuant to Guideline 1.4 and whether the respondent has correctly exercised its function in considering this.
17.Clause 4 of the Guidelines provides that the circumstance for withdrawal of an infringement notice (in the case of Guideline 1.4 the “applicant’s previous good behaviour”) applies to the applicant’s offence type subject to any limitations or conditions mentioned in column 4 of the table.
18.The respondent’s submission was that its practice is to determine “previous good behaviour” under Guideline 1.4 not in general terms, nor in terms of the applicant’s overall driving record but only by having regard to the two dot pointed matters set out in the ‘circumstance’ column, namely whether the applicant has been issued with an infringement notice or has been convicted of a road transport offence in the prior five year period.[5]
[5] Respondent’s statement of facts and contentions dated 4 May 2017 at [11]
19.Applying this approach, the respondent says that as the applicant had been issued with and paid a previous infringement notice for a speeding offence (59 km/h in a 50 km/h zone) which occurred in the ACT on 9 March 2013, “the applicant does not meet the criteria set out in Guideline 1.4.”[6]
[6] Respondent’s statement of facts and contentions dated 4 May 2017 at [12]
20.However, the relevant circumstance set out for the withdrawal of an infringement notice in Guideline 1.4 is the “applicant’s previous good behaviour.” In considering whether there is an entitlement for withdrawal on that criterion ‘regard’ must be had to infringements and traffic offences within the prior five year period, but as the Guidelines read this is not conclusive of the required consideration.
21.Confining the inquiry solely to the applicant’s driving behaviour in the prior five year period he did have a previous speeding infringement in 2013. The applicant admitted this in his submissions (though he overlooked it in his withdrawal application). There was no other evidence of his driving history nor of any criminal history. The applicant says he has been licenced since 1974, and in the ACT since 1991. On the basis of this history, there was evidence capable of finding he was of prior good behaviour beyond the approach adopted such that he could conceivably meet the first step in satisfying this requirement.
22.The second step for a withdrawal application under Guideline 1.4 is that the respondent “must consider the following matters in addition to the applicant’s previous good behaviour”, namely a set of limitations or conditions being (i) the circumstances of the offence including the risk, (ii) its seriousness, and (iii) the applicant’s awareness that his manner of driving constituted an offence. The respondent’s contention is that the decision maker is not required to undertake this second step “where the ‘good behaviour’ threshold is not met.”[7] Nonetheless, the respondent says an offence of driving at 23km/h over the speed limit of 80km/h would demonstrate such seriousness given the heightened risk to road users.
[7] Respondent’s statement of facts and contentions dated 4 May 2017 at [13]
23.The applicant’s evidence was that he was driving in the centre of three lanes of divided traffic, the traffic was light, it was the middle of the day, the road surface was dry and he had at most two other vehicles in his immediate vicinity. However, the question is whether his manner of driving at 23km/h above the designated speed limit was ‘serious’. He does not deny the speed.
Tribunal’s conclusions on the matter at issue
24.The Tribunal’s view is that decision under review to refuse the applicant’s withdrawal should stand. The Tribunal affirms that decision.
25.The Tribunal finds that the respondent has not been correctly interpreting the requirements for determining the ‘applicant’s previous good behaviour’ in Guideline 1.4. It is incorrect to exclude an applicant from the possible benefit of this ground of withdrawal purely on the basis of whether the applicant has been issued with an infringement notice or been convicted of a road transport offence in the prior five year period. The applicant’s prior driving behaviour more broadly and his or her prior good behaviour more generally should also be considered and given due weight. This is the correct interpretation of the Guidelines and is intended to have a corrective effect on the respondent’s future practice.
26.However the applicant’s manner of driving at 23km/h above the designated speed limit was ‘serious’ and means that the limitation for the application of the concession to withdraw he would otherwise be entitled to under Guideline 1.4 for his ‘previous good behaviour’ does not apply.
27.There was evidence of the applicant’s significant adverse financial position. The respondent correctly contended this is not a relevant consideration for a withdrawal under the Guidelines.[8]
[8] Respondent’s statement of facts and contentions dated 4 May 2017 at [14]
28.It should be noted the applicant took the option of withdrawal in response to the infringement notice when he sought to ‘appeal the decision’. Another possible option open to him was to “apply for a waiver of the Infringement Notice Penalty.”[9] The infringement notice form provides little information of the basis for such an application saying merely “you must be able to meet strict criteria.”[10] From information provided by the respondent at the hearing it appears while this option does take account of financial hardship, the conditions of waiver were not ones that the applicant could satisfy. It is not the respondent’s current practice if a withdrawal application is unsuccessful to make a separate determination as to whether a waiver of penalty might be applicable. Nor is it the respondent’s practice to alert an unsuccessful applicant for withdrawal to that potential alternative. The Tribunal suggests that in future this should be a part of the respondent’s regular practice.
[9] T-Documents page 36
[10] T-Documents page 36
29.The respondent accepted the applicant’s application to pay the infringement penalty by instatements pending the outcome of this review. To the date of the hearing the applicant has paid $200. It was agreed between the parties that as from the date of the hearing, instalments would be reduced to the minimum amount allowable of $10 per fortnight until paid in full.
Decision
30.The Tribunal confirms the decision under review to refuse a withdrawal application of infringement notice 2734169538.
………………………………..
Senior Member A Foley
HEARING DETAILS
FILE NUMBER:
AT 12/2017
PARTIES, APPLICANT:
Maxim Rasic
PARTIES, RESPONDENT:
The Chief Police Officer
COUNSEL APPEARING, APPLICANT
N/A
COUNSEL APPEARING, RESPONDENT
N/A
SOLICITORS FOR APPLICANT
N/A
SOLICITORS FOR RESPONDENT
ACT Government Solicitor
TRIBUNAL MEMBERS:
Senior Member A Foley
DATES OF HEARING:
11 May 2017
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