Laws that deter motorists from disputing traffic penalties could be open to legal challenge
   27 November 2019

It’s entirely understandable that the Parliament introduced laws designed to slow down heavy vehicles travelling on the notorious down track of the South Eastern Freeway, following a series of accidents involving out of control trucks which have resulted in serious injuries and at least two deaths.

The new rules, which impose harsher penalties for trucks and buses travelling faster than 60 km/h between the Crafers interchange and the tollgate, are obviously aimed at preventing unsafe driving along the steep 7km stretch of road. 

But the designation of a “truck” as any vehicle over 4.5 tonnes, and the automatic six-month suspension for a first offence, has resulted in a number of motorists of non-commercial heavy vehicles (such as ute drivers) who have lost their license or been fined more than $1000 despite not being aware these laws applied to them.

Frank Pangallo from the SA-BEST party has proposed some amendments which, in the Society’s view, would make the laws fairer, but our real sticking point with the current road rules is that if you challenge a road violation in court and lose, you’ll be dealt a much bigger punishment than the original fine or suspension.

Under existing laws, a first offence will result in a six-month licence disqualification, six demerit points and a fine of $1036, but if you challenge the expiation in court you could be slapped with a fine of up to $5000 and lose your licence for at least 12 months. The former Government introduced these higher penalties with the express intention of deterring motorists from electing to be prosecuted. 

This reflects a concerning trend where higher penalties are attached to court convictions in order to dissuade motorists from challenging expiation notices. 

We say that people should not receive additional punishments for wanting to pursue what they might believe is a legitimate defence to a road traffic penalty. If they don’t succeed, then the original penalty should stand. Typically, the only way a driver can explain their circumstances is to choose to be prosecuted and have the charge heard by a court.

On the flipside, the Law Society has noted an increasing trend of motorists being charged by police with driving offences without being given the opportunity to be expiated, meaning they have no choice but to face court and will likely receive a penalty that is significantly greater than if they were handed an on-the-spot expiation notice.

The Law Society holds the view that the law should not overtly inhibit drivers from exercising their constitutional right to challenge an expiation in court. 

Hefty on-the-spot fines and immediate licence disqualifications are legitimate measures to promote road safety. But there are some situations in which a driver genuinely doesn’t deserve the penalty they’ve been issued. Sometimes the police can make an error, road safety detection devices could be defective, or extraordinary circumstances may justify a driver’s conduct.  

Making it too prohibitive to challenge an expiation in court won’t make our roads safer. It just restricts drivers from having a right of reply.   

We would not be surprised if someone ends up challenging these laws in the High Court.

Read the Law Society’s submission to the Statutes Amendment (Suspension of the South Eastern Freeway Offences) Bill 2019