Watts v The Chief Police Officer (Administrative Review)
[2023] ACAT 22
•3 April 2023
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
WATTS v THE CHIEF POLICE OFFICER (Administrative Review) [2023] ACAT 22
AT 104/2022
AT 105/2022
AT 106/2022
AT 107/2022
AT 108/2022
Catchwords: ADMINISTRATIVE REVIEW – review of decision refusing to withdraw infringement notice – summary offence – exceeding the speed limit – prior good driving record – whether the applicant was aware, or ought reasonably to have been aware, that the conduct constituting the offence was contrary to law – signposting and notice – decision under review confirmed
Legislation cited: Road Transport (General) Act 1999 ss 22, 38, 95
Subordinate
Legislation cited: ACT Civil and Administrative Tribunal Procedures Rules 2020 r 70
Road Transport (General) Regulation 2000 s 8
The Road Transport (General) Withdrawal of Infringement Notices Guidelines 2019 (No 1)
Cases cited:B & T Developments (ACT) 3 Pty Ltd & Ors v ACT Planning and Land Authority & Construction Occupations Registrar & Anor [2014] ACAT 75
Drake v Minister for Immigration and Ethnic Affairs [1979] FCA 39
Minister for Immigration & Ethnic Affairs v Pochi (1980) 44 FLR 41
Shi v Migration Agents Registration Authority [2008] HCA 31
Warren v Road Transport Authority [2021] ACAT 31
Tribunal:Presidential Member H Robinson
Date of Orders: 3 April 2023
Date of Reasons for Decision: 3 April 2023
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AT 104/2022
AT 105/2022
AT 106/2022
AT 107/2022
AT 108/2022
BETWEEN:
STUART WATTS
Applicant
AND:
THE CHIEF POLICE OFFICER
Respondent
TRIBUNAL:Presidential Member H Robinson
DATE:3 April 2023
ORDER
The following order is made for AT 104/2022, AT 105/2022, AT 106/2022, AT 107/2022 and AT 108/2022:
The decisions under review are confirmed.
The applications are dismissed.
………………………………..
Presidential Member H Robinson
REASONS FOR DECISION
On 23 March 2021, Transport Canberra and City Services (TCCS) implemented a new 40km/h speed zone on Northbourne Avenue, Barry Drive and adjacent streets in the Canberra City area. Thereafter followed what appears to have been a ‘grace’ period of some months, during which enforcement action was not taken. Speed cameras in the area were adjusted to detect cars driving above this limit from 21 June 2021.[1]
[1] Brief from Chief Minister, Treasury and Economic Development to Minister for Transport and City Services (Ministerial Brief), dated Tribunal Documents, page 13.
TCCS had anticipated that the reduction in the speed limit would lead to an increase in speeding offences detected, but the actual number of offences captured exceeded all expectations.[2] 4,672 vehicles were detected driving over the limit in the just over two days between 5am on 21 June 2021 and 9am on 23 June 2021.[3]
[2] Ministerial Brief, Tribunal Documents, page 13
[3] Ministerial Brief, Tribunal Documents, page 12
The applicant, Mr Stuart Watts, was not one of the initial four and a half thousand people pinged by the speed cameras. He was not detected driving over the limit until 9 July 2021, some weeks later. Five further infringements followed, the final on 28 July 2021. He received the first infringement notice only after he committed the sixth offence. He says, and I accept, that he was unaware of the change in the speed limit. He does not listen to local radio, watch local news, or engage in social media such as Facebook or (at that time) Twitter. He did not notice the change to the road signs.
The six infringements the applicant received over those three weeks in July 2021 are the only blemishes on his otherwise spotless 25-year driving record.
The applicant now seeks review, pursuant to section 95 of the Road Transport (General) Act 1999 (the Act) of the Chief Police officer’s refusal to withdraw five of those six infringements notices (the Reviewable Decisions). He relies upon his ‘prior good driving record’ and argues that he could not reasonably have been aware of the change in the speed limit and therefore could not adjust his behaviour to avoid the fines.
The hearing
The hearing took place on 6 February 2023. The applicant represented himself and attended remotely. The respondent was represented by Ms Kivela of the ACT Government Solicitor. Both parties were well prepared, helpful and presented clear and concise arguments. After hearing from the parties, I reserved my decision.
Background
The relevant offences and Reviewable Decisions are:
Tribunal matter number
Date of offence
Time of offence
Reviewable decision date
Reviewable decision reference number
AT 104/2022
19/07/2021
9:50am
20/11/2021
2780613154
AT 105/2022
20/07/2021
9:02am
20/11/2021
2780617690
AT 106/2022
28/07/2021
7:01am
23/11/2021
2780727627[4]
AT 107/2022
17/07/2021
9:48am
20/11/2021
2780617433
AT 108/2022
22/07/2021
4:49pm
20/11/2021
2780610918
[4] There was a typographical error in the reviewable decision. This is the correct infringement number.
The first infringement notice, for driving 53km/hr in a 40km/hr zone on 9 July 2021 was withdrawn on 4 November 2022 because the applicant had not had any offence on his record in the previous five year period prior to the offence.
The applicant admits liability for the relevant offences, in that he does not dispute that he was driving at the recorded speeds and that those speeds were more than the legal limit.
Although the offences were committed in July 2021, the applicant did not receive notice of those offences until 13 December 2021. The notices were mailed between 5 and 13 August 2021. The delay was not the fault of either party – the notices were quite properly sent to his employer, the Commonwealth, as the registered owner of the vehicle, and it appears to have taken some time for them to find their way to the applicant. Nonetheless, it was not in issue that, given the mail out date, even had the notices gone directly to him, all the offences would have been committed before the applicant received an infringement notice for any of them.
Role of the tribunal
This is an application for review of a “reviewable decision”. Such reviews are conducted as a merits review, which means that the tribunal ‘stands in the shoes’ of the original decision maker[5] and determines the correct and preferable decision. A “correct” decision is one rightly made in accordance with law; the “preferable” decision is one in which discretionary considerations are appropriately applied.[6] The decision is made on the information before the Tribunal, at the time of the hearing.[7]
The Legislation
[5] Minister for Immigration & Ethnic Affairs v Pochi (1980) 44 FLR 41, Smithers J at [46]; B & T Developments (ACT) 3 Pty Ltd & Ors v ACT Planning and Land Authority & Construction Occupations Registrar & Anor [2014] ACAT 75 at [41]
[6] See Shi v Migration Agents Registration Authority [2008] HCA 31 at [140]
[7] Drake v Minister for Immigration and Ethnic Affairs [1979] FCA 39 at [589]
The Act provides for the issuing of infringement notices for certain “infringement notice offences”, including exceeding the speed limit.
Section 34 of the Act provides that a person served with an infringement notice may apply to the administering authority for withdrawal of the notice. Pursuant to section 8(2) of the Road Transport (General) Regulation 2000, the administering authority is the Chief Police Officer.
Section 38 of the Act provides that the Minister may issue guidelines for the withdrawal of infringement notices. The administering authority (and the Tribunal standing in its shoes) is bound to comply with the Guidelines (section 38 of the Act).
The relevant guidelines are the Road Transport (General) Withdrawal of Infringement Notices Guidelines 2019 (No 1) (Guidelines). These provide as follows in relation to the withdrawal of infringement notices:
Grounds for Withdrawal of Infringement Notices
Withdrawal of an infringement notice has the effect that the offence never happened, that is, all penalties associated with the offence (financial and demerit points) do not apply. In determining whether to withdraw an infringement notice, the administering authority may take into account:
•the circumstances in which the infringement notice was issued, including the level of risk posed by the applicant’s behaviour to other road users or public passengers:
•the seriousness of the offence; and
•the extent to which the applicant was aware, or ought reasonably to have been aware, that the conduct constituting the offence was contrary to law.
Certain offences are generally considered to be unsuitable for withdrawal due to the level of risk they pose and the seriousness of the offence. These offences are outlined in Attachment A to this schedule.
Disagreeing with a law, or finding it inconvenient, to adhere to it are not grounds for having an infringement notice withdrawn.
The Guidelines set out several bases upon which an infringement notice may be withdrawn. Those include “prior good driving record” as follows:
Prior good driving record
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; 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.
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.
The applicant’s argument
The applicant’s argument is, effectively, that the new speed limit was not appropriately publicised and that these circumstances meant that he was not reasonably aware of the new speed limit and did not have an opportunity to change his behavior.
The applicant submitted that he was not the only person to be ignorant of the change to the speed limit. He cited an article from the Canberra Times[8] which stated that during the first three weeks of July 2021, some 18,437 fines, totaling about $4.8 million in revenue, were issued to motorists. Twelve hundred motorists were caught the first day alone. The revenue collected from these breaches made up half of the red light and fixed camera revenue in the 2021 financial year (which is usually about 11 or 11 and a half million for the entire year). I note that, while the applicant drew these figures from the media, the respondent did not dispute them.
[8] Canberra Times, Speed cameras rake in $1.6 million a week in new city centre 40km/h zones, 28 July 2021
The applicant also cited figures from a Ministerial Brief[9] dated 29 June 2021 (the Brief) that he obtained under the Freedom of Information Act 1989. The brief noted that:
Between 5am Monday 21 June 2021 and 9am Wednesday 29 June 2011, 4,672 vehicles have been detected driving over the new 40km/h speed limit …
While it was anticipated that there would be an increase in speeding offences detected, the actual number of offences captured has exceeded all expectations.
[9] Ministerial Brief, paragraph 7; Tribunal Documents, page 13
A brief set out a number of options, including a proposal to write to all ACT license holders to advise of the revised speed limits. This was not accepted.
The applicant noted that the infringement notices were printed and issued in bulk, in very close succession or on the same day on some occasions. The timing, he said, meant:
There was no opportunity for recipients to be notified of an offence and then have the opportunity to correct behavior. Correction of behaviour is the primary purpose of fines and demerits to serve as a deterrent …. People had no opportunity to change behaviour when multiple fines were issued on the same date.
This, the applicant submitted, meant reliable drives could commit multiple offences before becoming aware of their behavior, yet, in the meantime, incur significant financial penalties and demerit points. This risk was acknowledged in the Brief.[10]
[10] Ministerial brief, paragraph 9; Tribunal Documents, page 13
The applicant also referred to another article in the Canberra Times,[11] this one on 16 July 2023, in which a spokeswoman for the ACT government said that additional signage was installed in July 2021, September 2021 and December 2021 following community feedback. This was, he said, evidence that previous communications and signs had not worked.
[11] on 16 January 2023
Additionally, the applicant submitted that Road safety experts such as Dr Ingrid Johnston, Chief Executive of the Australasian College of Road Safety, recommended to the ACT government that flashing signs be implemented to complement the existing signage. This was not done.
The applicant stated that he fully supports the speed changes to enhance road safety, particularly in built-up areas and near the tram. However, he said, the location of these cameras, leaving the CBD to City Hill, pointing away from the city and going into a 70-kilometre zone, and on the outer approach to Barry Drive, did not assist with safety. He noted that there appear to be no cameras adjacent to the tram where most pedestrians cross.
The applicant concluded that:
While the intention is right, the Northbourne Avenue speed changes reveal shortcomings in policy planning implementation. It failed as a deterrent, and it has punished individuals who are responsible and safe drivers. I wish to note that all of my infringements were at speeds below the pre‑existing limit. I did not suddenly start speeding in July 2021.
The respondent’s position
The respondent’s starting position is that the changes to the speed limit were appropriately marked, and drivers could observe signs.
The were 17 advisory signs for the 40km/h speed zone:
(a)Northbourne Avenue – Northbound between London Circuit and Barry Drive – seven 40km/h signs and one Variable Message Sign,
(b)Northbourne Avenue – Southbound between Barry Drive and London Circuit – five 40km/h signs, and
(c)Barry Drive – Westbound between Northbourne Avenue and Marcus Clarke Street – four 40km/h signs.
There were also road markings at each location.
Additionally, the respondent contended, there was a significant communication with the community at the time the changes to the speed limit were announced and prior to enforcement commencing on 5 July 2021, including:
(a)the installation of permanent road signage and road markings indicating the new 40km/h speed zones;
(b)Variable Message Signs (VMS) being used during May, June, and July. Temporary VMS boards remain in place highlighting the new speed zones;
(c)a joint media release from Minister Cheyne and Minister Steel reminding Canberrans to slow down in the 40kph speed zones;
(d)radio advertisements across multiple time slots, and either side of the news during peak hour, to alert motorists to the speed zone changes;
(e)20 media articles covering the change including from ABC News, Canberra Times and the Riot ACT, as well as most major Canberra radio stations; and
(f)significant coverage on social media from both community-based and ACT Government notice board groups.
The respondent’s position was that, it light of the above, it had met any obligations it had under the Act and the Guidelines to notify the change in speed.
The respondent’s position in relation to the applicant’s current claim is that, because the applicant now has an offence on his record (albeit, withdrawn) he no longer has a clean driving record and is therefore not eligible for a further withdrawal on this ground.
Considerations
When standing in the shoes of the decision maker, the Tribunal is required to apply the Guidelines and that is what I have done.
No offence committed under the road transport legislation in the previous five-year period
The Guidelines provide that a good driving record is no offence committed under the road transport legislation (other than parking offences) in the previous five year period.
The applicant’s 25-year driving history is marred only by the five reviewable offences. Nonetheless, the respondent’s position is that, in considering the Reviewable Decisions, the fact the applicant committed the first driving offence (the infringement notice for which was waived) means that he no longer has a ‘good driving record’ at the time he committed (and applied for the withdrawal of) the others.
The situation of the applicant is an unfortunate one. On one level, his actions leading to the offences, and infringement notices, are so temporally and spatially close that they could be considered a ‘course of conduct’ rather than the one incident. Nonetheless, the Act treats each infringement as a separate event, and no argument was put that would allow me to find otherwise.
As to whether the first offence, in relation to which the infringement notice was withdrawn, should be considered, it is interesting to note that the Guidelines state that:
Withdrawal of an infringement notice has the effect that the offence never happened, that is, all penalties associated with the offence (financial and demerit points) do not apply (emphasis added).
That is not quite correct.
Section 36(4) of the Act provides, relevantly, that:
(4) The effect of the service of a withdrawal notice is as follows:
(a) this part, other than this section, ceases to apply to the infringement notice;
Part 3 is entitled “Infringement notices for certain offences”. The purpose of part 3 is to create a system of infringement notices for certain offences against the road transport legislation and other legislation as an alternative to prosecution.[12] Where an infringement notice is withdrawn, the person served with the notice will not be liable for any financial or demerit penalty associated with the notice. However, the Act clearly provides that a person may still be subject to prosecution where an infringement notice is withdrawn.[13] Moreover, as a matter of practice, it appears that the fact of the offence is recorded on the person’s driving record, even if there is no infringement notice to pay.
[12] See Road Transport (General) Act 1999, section 22(1)
[13] Section 22(2)(b)(c)
What this means is that, notwithstanding the infringement notice was withdrawn, the applicant is not a person in relation to whom it can be said that he has committed “no offence … under the road transport legislation, … in the previous five year period.”
On this basis, it seems that the exception set out in the Guidelines for a ‘good driving record’ was not available in relation to the Reviewable Decisions. Nonetheless, I have also considered the other issues.
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 respondent contended that “[t]he five infringements in dispute … show a pattern of driving over the signposted speed limit.”
The applicant does not deny a “pattern of driving over the signposted limit” but asks that this by put into context of his otherwise very safe driving record.
The use of the word “pattern” is somewhat disingenuous in this context. The respondent did not suddenly become prone to speeding nor does he have a pattern of conduct that suggests he wilfully defies the speed limit or presents a danger to other road users or pedestrians. On the material before me, he was and is a safe driver, at least in relation to speed limits.
Nonetheless, the original speed limit of 60 km/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 members of the community, albeit one taken unknowingly.
The seriousness of the offence
Four out of the five infringements were for the offence of “not in a school zone”, driving ≤ 15km/h faster than limit. These are offences of lesser seriousness.
Infringement 2780617690 was for “non-school zone exceed speed limit by > 15 but ≤ 30km/h”. Under Annexure A of the Guidelines, this is an offence that is generally considered unsuitable for withdrawal due to its serious nature. Having an unblemished driving record is not sufficient reason alone to withdraw the notice in circumstances where the legislature has seen fit to characterise this offence as one which is unsuitable for withdrawal.[14]
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
[14] Warren v Road Transport Authority [2021] ACAT 31 at [26]
As set out above, the respondent contends that there “was ample signage of the speed limit and a public campaign warning of the change of speed limit in the months leading up to the change.”
That there were 17 speed advisory signs in the relevant area is not in dispute. It also is not in dispute that literally thousands of drivers didn’t notice them. I can only speculate as to why that was. Perhaps it is as simple as most people driving the same route, every day, become complacent about the signs, and simply do not look. Those same thousands also presumably do not watch local television, subscribe to local newspapers, have Facebook, or monitor Twitter, or at least do not pay much attention to public service announcements or advertisements.
I do not have any information before me as to what the usual approach to advising the public about changes to road conditions, such as speed, is. Gone are the times when everyone watched the same 6pm news. The somewhat limited evidence before me does show that the government attempted to reach a wide audience across various other print, broadcast, and internet media. The campaign was not perfect, and internal government correspondence before the Tribunal indicates that as late as 28 June 2021, officials were discussing a possible need for a broader deterrence or education campaign.[15]
[15] T-documents, pages 8-9
This does raise an interesting question about how, in an age of diversified media, a more effective education program could have been conducted. The Brief, and some internal correspondence, suggested a mail-out. The executive declined this option.[16] The respondent submitted it was too expensive and may not have been productive in any case. There is no evidence upon which I could conclude a mailout would have been more efficient than the campaign that was conducted. It, too, would have taken time.
[16] Ministerial Brief dated 1 July 2021, page 2
Having to all the above, the situation I am left with is this: 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.
The fact that some infringement notices may not have been received for a period after an offence had occurred is problematic, but it does not abrogate the responsibility to be aware of the speed limit.
Significantly, the offences in this case did not occur in the immediate period after the introduction of the new limits, but months after they were notified, and weeks after the speed cameras were turned on.
Conclusion
Mr Watts’ situation is unfortunate. He is a sympathetic applicant for review – a uncontested long time responsible driver, he has had the misfortune of accumulating a significant number of fines in a short period of time in circumstances where he was genuinely unaware of a change in the law. He is undoubtedly not the only one. I acknowledge his sense of injustice about the circumstances under which he has incurred the infringement notices and the offences recorded on his otherwise clean driving record.
However, the ground upon which the applicant seeks withdrawal of the infringement notices, being prior good driving record, is not made out. I am also not satisfied that he could not reasonably have been aware of the decrease in the speed limit. Additionally, infringement 2780617690 is not an offence it would be appropriate to withdraw, given the wording of the Guidelines.
Accordingly, I confirm the decisions under review as the correct and preferable decisions.
………………………………..
Presidential Member H Robinson
Date(s) of hearing: | 6 February 2023 |
Applicant: | In person |
Respondent: | Ms S Kivela, ACT Government Solicitor |