Police v Siviour No. Scciv-01-602

POLICE v SIVIOUR
[2001] SASC 246
Full Court: Doyle CJ, Perry and Bleby JJ

DOYLE CJ This is an appeal against a decision by a Magistrate dismissing a charge of a summary offence. The appeal was referred to the Full Court by a Judge of this Court.
The issue on appeal is whether, in the relevant circumstances, a member of the police force had power to require the defendant to submit to an alcotest. The answer turns on whether an offence of driving at a speed in excess of an applicable speed limit, to which offence the defendant pleaded guilty before the Magistrate, is an offence against Part 3 of the Road Traffic Act, 1961 (SA) (“the RTA”). The power to require the defendant to submit to an alcotest depended upon the member of the police force believing on reasonable grounds that the defendant had committed an offence of contravening a provision of Part 3 of the RTA.
Facts
On 16 April 2000 the defendant was stopped by police officers who had observed him (using a laser gun) driving a motor car at 138 kph on a road at a place where the speed limit was 100 kph.
One of the police officers required the defendant to submit to an alcotest. He refused to do so.
The defendant was charged on complaint with refusing to submit to an alcotest contrary to s 47E of the RTA and with driving at a speed over the applicable speed limit contrary to r 20 of the Australian Road Rules (“the ARR”). The defendant pleaded not guilty to the first charge and guilty to the second charge.
At the close of the prosecution case, counsel for the defendant submitted that there was no case to answer on the first charge. The Magistrate upheld that submission and dismissed the first charge. The defendant was convicted and fined on the second charge.
The Magistrate held that there was no case to answer because, as he found, in the circumstances the member of the police force did not have the power to require the defendant to submit to an alcotest. That was because the speeding offence in question was not, in the Magistrate’s view, an offence of contravening a provision of Part 3 of the RTA.
Legislative provisions
Section 47E(1) of the RTA provides as follows:
“47E(1)Where a member of the police force believes on reasonable grounds that a person, while driving a motor vehicle or attempting to put a motor vehicle in motion -
(a)has committed an offence of contravening, or failing to comply with, a provision of this Part of which the driving of a motor vehicle is an element (excluding an offence of a prescribed class); or
(b)(Repealed)
(c)has behaved in a manner that indicates that his or her ability to drive the motor vehicle is impaired; or
(d)has been involved in an accident,
that member of the police force may, subject to subsection (2), require that person to submit to an alcotest or breach analysis, or both.”
The offence of failing to comply with a reasonable direction when required to submit to an alcotest is found in s 47E(3).
In the present case, the basis for the requirement to submit to an alcotest was s 47E(1)(a) - a belief on reasonable grounds that the defendant had committed an offence of contravening a provision of Part 3 of the RTA.
Part 3 of the RTA is headed “Duties of drivers, passengers and pedestrians”. Until 1999, this part of the RTA contained some 70 sections imposing duties on road users. By s 164A contravention of, or failure to comply with, a provision of the RTA is an offence.
In 1999 a fair number of the sections that imposed duties on road users were repealed. They were repealed in the context of the making by the Governor of the ARR, which came into operation on 1 December 1999.
Rule 3 of the ARR states that their object:
“....... is to provide road rules in this jurisdiction that are uniform with road rules elsewhere in Australia”.
It is evident that the ARR were made as part of a national scheme for uniform road laws throughout Australia.
The ARR are detailed. They comprise 351 rules plus Schedules. The ARR contain rules imposing duties on road users, in particular drivers, passengers, pedestrians and cyclists. They also prescribe requirements to be met by traffic control devices and road markings if they are to comply with the ARR. It is not disputed that the ARR are in force in South Australia.
The ARR are made under s 80 of the RTA (also enacted in 1999) which provides as follows:
“80The Governor may make -
(a)rules (Australian Road Rules) to regulate traffic movement, flows and conditions, vehicle parking, the use of roads, and any aspect of driver, passenger or pedestrian conduct; and
(b)regulations to deal with matters ancillary to this Part and the Australian Road Rules and to make miscellaneous provisions relating to matters of a kind referred to in paragraph (a).”
It is not disputed that the Governor had power to make the ARR, subject to one point to which I will come in due course.
Rule 20 of the ARR provides as follows:
“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.”
The speed limit applicable to the defendant is to be found in r 25. Because r 20 contains the words “offence provision”, a contravention of r 20 is an offence: r 10 of the ARR. The ARR do not fix penalties for offences. Rule 10(2) provides:
“(2)The penalty for an offence is the penalty applying to the offence under another law of this jurisdiction.”
The penalty provision is to be found in reg 50 of the Road Traffic (Road Rules - Ancillary and Miscellaneous Provisions) Regulations 1999, which regulations also came into operation on 1 December 1999. Regulation 50(1) provides that “A person who is guilty of an offence against a provision of the Rules .... is liable to a penalty not exceeding $1,250”.
Prior to the enactment of s 80 of the RTA in 1999, when the statutory provisions creating rules for road users were repealed, s 176 of the RTA contained a general power in the usual form to make regulations and rules. Section 176 includes a power to impose penalties for offences against regulations under the Act, and by implication confers a power to create offences by regulation.
It is convenient to deal here with a submission advanced by Mr Cuthbertson, counsel for the defendant on the appeal. The submission is that the Governor’s power to create offences under the ARR is not found in s 80 of the RTA, but is to be found in s 176 of the RTA. The point was made that s 164A of the RTA had been, and still is, the provision which creates offences against the RTA and s 176 had been, and still is, the provision which empowers the creation of offences and the fixing of penalties under regulations and rules.
I do not accept that submission. It is well established that a power to regulate conduct includes a power to create offences. The conferral of a power to regulate conduct is the usual way of conferring power to create offences consisting of the failure to observe requirements imposed in relation to that conduct. There is no reason why s 80 of the RTA should not be read as empowering the Governor to make the ARR, and also to provide that a breach of the ARR constitutes an offence and, had the Governor seen fit to do so, to fix penalties for those offences in the ARR. The fact that s 176 of the RTA probably also empowers the making of regulations constituting a breach of the ARR as an offence is not a reason to limit the meaning that s 80 would otherwise have.
Issues on appeal
With that rather long preamble, I come to the point at issue.
The point is whether an offence consisting of a breach of r 20 of the ARR is, for the purposes of s 47E(1)(a) of the RTA, “..... an offence of contravening, or failing to comply with, a provision of this Part”, namely Part 3 of the RTA. I record that s 80 is in Part 3 of the RTA.
It is now necessary to turn to the Acts Interpretation Act, 1915 (SA). Section 4(1) of the Act contains a number of definitions. The expression “this Act” is defined as follows:
“‘this Act’, when used in an Act, includes statutory instruments made under the Act in which the expression is used.”
Section 14BA provides as follows:
“(1)A reference in an Act to some other Act (whether an Act of this State or of the Commonwealth or a place outside this State) includes, unless the contrary intention appears, reference to statutory instruments made or in force under that other Act.
(2)A reference in an Act to a Part or provision of that Act or some other Act (whether an Act of this State or of the Commonwealth or a place outside this State) includes, unless the contrary intention appears, reference to statutory instruments made or in force under that Act or other Act insofar as they are relevant to that Part or provision.”
“Statutory instrument” is defined in s 4(1) of the Act in a manner that would include the ARR.
Section 14BA was inserted in 1990. It is clearly drawn from an earlier provision, inserted in 1983, which was as follows:
“14b. ..........
(2)A reference in an Act to some other Act shall, unless the contrary intention appears, be deemed to include reference to statutory instruments made under that other Act and, where the reference is to a Part or provision of the other Act, the reference shall, unless the contrary intention appears, include a reference to statutory instruments made under the other Act insofar as they are relevant to that Part or provision.”
An examination of the predecessor provision indicates that in 1990 Parliament effectively broke it into two parts, and in the second part included, for the first time, a reference in an Act to a particular part or provision of the same Act.
The submissions for the appellant proceeded on the basis that the reference in s 47E(1)(a) of the RTA to an offence was to be treated as a reference to an offence against r 20 of the ARR by the virtue of the terms of s 14BA(2). The submission was that the reference in s 47E(1)(a) to “a provision of this Part” is, by virtue of s 14BA(2), to be read as a reference to a rule or regulation made under the RTA, and that a rule or regulation made under a provision in Part 3 is a rule or regulation “relevant to that Part”.
I was at first attracted to this submission, but on reflection I agree with Mr Cuthbertson that it faces some difficulties.
The issue can be identified by reading s 14BA(2) in its application to the circumstances of this case. I consider that it is to be read as follows:
A reference in the RTA, namely in s 47E(1)(a), to a provision of the RTA, namely a provision in Part 3 the contravention of which is an offence, includes a reference to the ARR, being a statutory instrument made under the RTA, insofar as the ARR are relevant to a provision of Part 3, the contravention of which is an offence.
To put the issue a little differently, the issue is whether the ARR can be regarded as a statutory instrument relevant to the provision or Part referred to, namely, a provision of Part 3 which it is an offence to contravene or fail to comply with.
As can be seen, the meaning of “relevant” in this context is far from clear. There is a real question whether a concept of such uncertain scope should be relied upon to give rise to criminal liability.
I have come to the conclusion that there is a simpler answer to the question that arises on appeal. I do not need to decide the point just identified.
By virtue of the definition of “this Act” in s 4 of the Acts Interpretation Act, a reference in the RTA to “an offence against this Act” would include a reference to an offence against a statutory instrument made under the RTA. An example of a provision containing such a reference is s 41(1) of the RTA, which confers a power on a member of the police force to give reasonable directions “for the purpose of ascertaining whether an offence against this Act has been .......... committed”. There is no need to go to s 14BA to achieve this result.
By virtue of s 14BA(1), a reference in the RTA to an offence against some other Act will include a reference to an offence against a statutory instrument made under that other Act. An example of such provision is to be found in s 168(1)(b) dealing with the power of a Court to disqualify a person from holding or obtaining a driver’s licence if the person is convicted of an offence under the RTA “or any other Act” involving the use of a motor vehicle.
I can see no reason why the reference in s 14BA(1) to a reference “to some other Act” should not be read as including what I would call a global reference, as is found in s 168(1)(b), and also a reference to a particular provision of another Act. Usually the greater would be read as including the lesser. Likewise, if a reference in an Act to “this Act” includes statutory instruments made under the Act, I would have thought that a reference in an Act to a particular provision of the Act would include a reference to a statutory instrument made under that particular provision.
In other words, my starting point is that the definition of “this Act” in s 4(1), and the provision in s 14BA(1), coupled with the general principle that the greater includes the lesser, suggests that the reference in s 47E(1)(a) to an offence against a provision of Part 3 of the RTA includes a reference to an offence against a statutory instrument made under a provision of Part 3 of the RTA.
But, if that is correct, what is s 14BA(2) intended to achieve?
In my opinion, s 14BA(2) assumes what I have already suggested, and goes on to provide for a further situation. It deals with the situation in which there is a reference in an Act to a particular Part or provision of the same Act, or to a particular Part or provision of another Act and, assuming that includes a reference to a statutory instrument made under that particular Part or provision, goes on to provide further that it will include a reference to a statutory instrument made under yet another Part or provision of the Act referred to, if that statutory instrument is relevant to the Part or provision first referred to.
There is a reason why this might have been thought necessary. A cross-reference in an Act to a particular section of the Act, or of another Act, even if it picks up a statutory instrument made under that particular section, would not pick up a statutory instrument made under another provision of the Act, and in the scheme of that Act the provision to which cross-reference is made, or the statutory instrument picked up under it, might not achieve its full effect without reference to a statutory instrument, particularly one of a general nature, made under some other provision of the other Act.
Section 14BA(2) is a rather obscure provision, but I have come to the conclusion that this must be its intended effect. There are several reasons why I have come to that conclusion. First, as I already indicated, s 4(1) and s 14BA(1) appear to me to deal already with cross references to particular provisions. Secondly, I can see no reason why Parliament would limit a cross-reference to a particular Part or provision by reference to a concept of relevance, when it has not chosen to do so when the reference is simply to “this Act” or to “some other Act”. Thirdly, a consideration of the predecessor provision, s 14b(2), which is set out above, in my opinion indicates fairly clearly that as originally drafted the provision operated in the manner suggested by me.
I therefore conclude that the reference in s 47E(1)(a) to an offence of “...... failing to comply with a provision of this Part .......” is a reference to an offence against r 20 of the ARR, because r 20 is part of a statutory instrument made under s 80 of the RTA; s 80 is in Part 3 of the RTA; and by virtue of the definition of “this Act” in conjunction with ordinary principles, the reference in s 47E(1)(a) to a provision of this Part includes a reference to a statutory instrument made under a provision of that Part.
It is therefore unnecessary for me to deal with the difficulties that otherwise might arise under s 14BA(2).
Other points
Mr Cuthbertson relied upon s 22 of the Acts Interpretation Act. That provision provides as follows:
“22(1)Subject to subsection (2), where a provision of an Act is reasonably open to more than one construction, a construction that would promote the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) must be preferred to a construction that would not promote that purpose or object.
(2)This section does not operate to create or extend any criminal liability.”
The approach that I have taken to the meaning of s 47E(1) and s 80 does not require reliance on s 22. That section is not being used to “create or extend” any criminal liability.
Mr Cuthbertson argued that because the police prosecutor did not rely on s 14BA(2) before the Magistrate, the appellant should not be allowed to rely on it now to have the appeal upheld. There is no question here of prejudice to the defendant. The successful submission was made at the close of the case for the prosecution, and if the appeal is allowed relying on s 14BA(2) or on the ground identified by me, the case will be remitted to the Magistrate to continue with the hearing. The defendant will be at liberty to lead any evidence that he seeks to lead. This is not a case in which fairness requires that the prosecutor be bound by its manner of arguing the case at first instance: cf Crawford Earthmovers Pty Limited v Fitzsimmons (1972) 4 SASR 116 at 132-133.
Mr Cuthbertson submitted that if the appellant’s submissions succeed, the Court should nevertheless do no more than identify the Magistrate’s error, and should not set aside the dismissal of the charge and remit the matter to the Magistrate for further hearing. He relied in part on the fact that this case has been taken on appeal because it is a test case, on the outcome of which other cases turn.
In some cases it will be appropriate to follow that course, but usually that will be so when there is some unfairness to the defendant, at least in a broad sense, if the matter is remitted to the Magistrates Court, or when the defendant’s case has been selected by the prosecutor as a convenient vehicle for a test case. In the present case it was the defendant’s submission that has given rise to the point. Under the circumstances, I do not accept Mr Cuthbertson’s submission.
Conclusions
For these reasons, the appeal should be allowed, the dismissal of the charge by the Magistrate should be set aside, and the matter should be remitted to the Magistrates Court for hearing and determination.
The divergence in the reasons of the members of the Court suggests that s 14BA requires some reconsideration by Parliament.
PERRY J I have had the benefit of reading in draft the reasons for judgment of Doyle CJ in which the circumstances of the case, including the relevant statutory provisions, are identified.
I regret that I have reached a conclusion which differs from his. The reasons why I differ may be explained shortly.
I am unable, with respect, to accept that the words in s 14BA(1) “a reference in an Act to some other Act ... includes ... reference to statutory instruments made or in force under that other Act”, in some way apply to statutory instruments made or in force under the Act in which the reference appears.
Neither do I think that one can reach the same result by looking at the word “Part” where that appears in s 47E(1)(a). In order to read the words “an offence” against “a provision of this Part” to include an offence against a statutory instrument made under that Part, in my view, one could only do so, if at all, by reference to s 14BA(2).
But I do not consider that s 14BA(2) avails the appellant either.
I accept that by reason of s 14BA(2) of the Acts Interpretation Act 1915, unless the contrary intention appears, the reference in s 47E(1)(a) of the Road Traffic Act 1961 (“the RTA”) to the committal of “an offence of contravening or failing to comply with a provision of this Part of which the driving of a motor vehicle is an element ...” must be understood to extend to a contravention or failure to comply with a statutory instrument made or in force under the RTA or under any other Act insofar as the statutory instrument is relevant to that provision.

The requirement of relevance applies, irrespective of the source of the statutory power to make the statutory instrument in question.
It follows, in my view, that even although the relevant statutory instrument, in this case r 20 of the Australian Road Rules (“ARR”), is a rule which may properly be regarded as having been made by the Governor pursuant to the power conferred upon him by s 80 of the RTA, it does not necessarily follow that the rule is within the meaning of s 14BA(2) relevant to a provision of Part 3 of the RTA. This is so, notwithstanding the fact that s 80 of the RTA is within Part 3 of that Act. As I have said, the concept of relevance must be addressed, whether the enabling power is within Part 3 or is to be found outside that Part.
Putting it another way, I am unable to accept the proposition that a given statutory instrument within the meaning of s 14BA(2) must necessarily be regarded as relevant to a provision of a Part of an Act, simply because the enabling power to make the statutory instrument is within that Part. Because of its subject matter, a given statutory instrument made under one Part of an Act may clearly be relevant to another Part altogether, and have no relevance to the Part within which the enabling power is to be found, other than that circumstance.
I do not accept that a contravention of a rule made under s 80 of the RTA can properly be regarded as a contravention of s 80 itself.
Furthermore, s 80 does not itself identify any subject matter to which a particular rule may be relevant. It is purely an enabling power.
It is necessary, therefore, to look elsewhere within Part 3 to identify a provision in that Part with respect to which an Australian Road Rule, in this case ARR 20, is relevant. It is at this point that the concept of “relevance” becomes difficult to apply in this context. I am unable to identify any provision in Part 3 to which ARR 20 could be said to be relevant.
If this construction of s 47E, even considered in association with s 14BA(2), bleeds s 47E(1)(a) of sensible content, that is a product of the attempt by the parliamentary draftsman, when drawing up the 1999 amendments to the RTA, to rely on the Acts Interpretation Act to achieve what would far more plainly and directly have been achieved by incorporating a specific reference to the Australian Road Rules in the subsection.
Laws which create criminal liability ought to be cast in clear and easily identifiable terms which are both understandable by and accessible to ordinary citizens. That goal is hardly achievable if the draftsman imposes on those seeking to identify the content of the criminal law, the task of embarking on the tortuous and difficult exercise of determining whether a statutory instrument may or may not be “relevant” to an Act said to create criminal liability. Such a process is apt to destroy the certainty which is an essential characteristic of the criminal law.
The differences in the reasoning adopted by each of the members of the Court in this case are a clear illustration of the problems which are apt to arise if that certainty is lacking by reason of obscure drafting.
I would draw the attention of the legislature to the situation exposed by this case.
I would dismiss the appeal.
BLEBY J. I gratefully adopt the statement by the Chief Justice of the circumstances giving rise to this appeal. I also agree with the orders proposed by the Chief Justice, but for different reasons.
Section 47E of the Road Traffic Act (RTA) is in Part 3 of the Act. The requirement of s 47E(1) on a person to submit to an alcotest or breath analysis is dependent, for present purposes, on the belief on reasonable grounds of a member of the police force that the person, while driving a motor vehicle, has committed an offence of “contravening, or failing to comply with, a provision of this Part....” The offence which the police officer in this case believed on reasonable grounds had been committed was not an offence created by Part 3 of the Act or by any provision of it.
Section 80 of the Act, which is also in Part 3, provides:
“80. The Governor may make -
(a) rules (Australian Road Rules) to regulate traffic movement, flows and conditions, vehicle parking, the use of roads, and any aspect of driver, passenger or pedestrian conduct; and
(b) regulations to deal with matters ancillary to this Part and the Australian Road Rules and to make miscellaneous provisions relating to matters of a kind referred to in paragraph (a).
I agree that the power to regulate necessarily involves the power to create an offence, and is therefore derived from paragraph (a) of that section. If I am wrong in that, the creation of an offence would necessarily be a matter “ancillary to.... the Australian Road Rules”, and thus would be supported by paragraph (b).
The relevant offence in this case is created by a combination of Rules 20, 25 and 10 of the Australian Road Rules. The penalty for the offence is not specified by the Australian Road Rules, and I do not see that s 80 of the Act confers any power on the Governor to make a rule or regulation fixing a penalty for breach of the Australian Road Rules. The power to make a regulation imposing a penalty is to be found in s 176 of the Act. The penalty for the breach of the relevant rule in this case is fixed by Regulation 50 of the Road Traffic (Road Rules - Ancillary and Miscellaneous Provisions) Regulations 1999. The source of power for that regulation is s 176(1) and (1a)(i) of the Act.
Whatever else s 80 of the Act does, it does not itself create an offence. It merely empowers the Governor to make rules that do. Therefore, without the aid of s 14BA(2) of the Acts Interpretation Act 1915, the prosecution in this case could not succeed. Section 14BA(2) provides:
“(2) A reference in an Act to a Part or provision of that Act or some other Act (whether an Act of this State or of the Commonwealth or a place outside this State) includes, unless the contrary intention appears, reference to statutory instruments made or in force under that Act or other Act insofar as they are relevant to that Part or provision.”
Any rule or regulation made under s 80 of the Act and any regulation or rule made under s 176 of the Act would fall within the definition of “statutory instrument”: s 4 Acts Interpretation Act.
Thus, when s 47E of the RTA refers to “an offence of contravening, or failing to comply with, a provision of this Part” it includes an offence of contravening or failing to comply with a provision of any statutory instrument made or in force under the RTA. As I have said, that would include the Australian Road Rules and any regulation made under s 80 together with any relevant regulation made under s 176. It would include any rule or regulation made or in force under any part of the RTA. However, the inclusion brought about by s 14BA(2) is subject, in every case, to the qualification “insofar as they are relevant to that Part or provision”. In other words, s 14BA(2) of the Acts Interpretation Act imports, by reference, into s 47E of the RTA any relevant offence prescribed by any rule or regulation under the RTA, but only insofar as it is relevant to Part 3 of the RTA.
The phrase “relevant to” has as its usual meaning “bearing upon”, “connected with” or “pertinent to” the subject matter or purpose in question.
In my opinion, a rule or rules prescribing the maximum speed at which a vehicle may be driven, and prescribing that a breach of such a rule is an offence, is a rule that is relevant to Part 3 in the sense referred to in s 14BA(2) of the Acts Interpretation Act. It is relevant to the Part in the sense that it derives its authority from a section (section 80) contained in Part 3. However, that is not all. The heading to Part 3 accurately defines the scope of the Part. It is entitled “DUTIES OF DRIVERS, PASSENGERS AND PEDESTRIANS”. Looking at the Act as a whole, one would expect a provision such as s 80 to appear in Part 3 and not in any other Part of the Act. Observance of a speed restriction is not only an “aspect of driver... conduct” (s 80) but is plainly one of the duties of a driver with which Part 3 is concerned. The prescription of the speed limit is plainly “relevant to” a Part of the Act which is concerned with duties of drivers. No other part of the RTA purports to deal with speed limits or the conduct generally of drivers of motor vehicles.
As the result in this case shows, the drafting technique of relying on s 14BA(2) of the Acts Interpretation Act is less than satisfactory. Nevertheless, in my opinion it is one which is sufficient to incorporate the relevant Rule into the phrase “a provision of this Part” in s 47E(1).
Although a statutory instrument cannot be used to construe the Act from which it is derived, there is an anomaly presented by this statutory scheme if the Australian Road Rules are not included by reference, in s 47E of the RTA. Section 47E(1)(a) excludes from the class of relevant offences which might give rise to the requirement to submit to an alcotest or breath analysis, “an offence of a prescribed class”. The only offences so prescribed are prescribed in Reg 8 Road Traffic (Miscellaneous) Regulations 1999. The only offences so prescribed is a class of offences prescribed under the Australian Road Rules. If the offences under the Australian Road Rules are not included in the offences to which paragraph (a) refers, the subsequent exclusion of some of them is superfluous.
I do not need to have resort to s 22 of the Acts Interpretation Act to interpret s 47E of the RTA. I am therefore not restricted by the provisions of subsection (2) of that section which require that to resolve an ambiguity a purposive construction required by subsection (1) may not be used “to create or extend” any criminal liability.
I also agree with the Chief Justice that the failure of the police prosecutor to rely on s 14BA(2) of the Acts Interpretation Act before the Magistrate does not now prevent the appellant from relying on the section.
I also agree, for reasons given by the Chief Justice, that it would be inappropriate not to set aside the Magistrate’s dismissal of the charge. I agree that it should be set aside and the matter remitted to the Magistrates’ Court for hearing and determination.

[2001] SASC 246

22 August 2001