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Saturday, 23 March 2013

MacDonald v The County Court & Ors [2013] VSC 109: doesn't measure up

It would appear that resort to the National Measurement Act 1960 (Cth), called as a kind of evidence to the contrary to an allegation of speeding, has had its day. To my knowledge the argument has never been accepted, and it doesn't look like it will be. Perhaps someone may breathe new life into it (and individual accused drivers will continue to raise it) but there is a mounting body of law now saying that the one thing has got nothing to do with the other.

For those unfamiliar with it, the National Measurement Act 1960 (Cth) is a piece of legislation which has as its stated purposes,

(1) The objects of this Act are:

(a) to establish a national system of units and standards of measurement of physical quantities; and

(b) to provide for the uniform use of those uniform units and standards of measurement throughout Australia; and

(c) to co-ordinate the operation of the national system of measurement; and

(d) to bring about the use of the metric system of measurement in Australia as the sole system of measurement of physical quantities; and

(e) to provide for a national system of trade measurement;

The Act doesn't have anything to say about road safety cameras, and isn't aimed at regulating law enforcement activities. Even so, it's occasionally argued by self-represented accused that some kind of conflict between this Commonwealth Act and State law exists, enlivening s 109 of the Constitution and invalidating or displacing specific legislation like the Road Safety Act 1986.

Such arguments have been rejected repeatedly by appellate courts, both here and interstate where similar statutory schemes operate. I've written before about the flaws in approach that often characterises these attempted defences.

Some judgments dissect these 'pillars of justice' arguments in great detail, while others simply declare them devoid of merit and move on. I found the approach taken by Emerton J in MacDonald v The County Court & Ors [2013] VSC 109 to be a concise yet comprehensive exploration of the argument.

The case trod a well-worn path from the Magistrates' Court to a hearing de novo in the County Court, and from there by way of application for judicial review under O 56 before Emerton J in the Supreme Court. Her Honour said [at 25, then skipping to 27]:

Mr Macdonald contends that the speed cameras that were used to take the photos and record the speed of the vehicles in question did not comply with the requirements of the National Measurement Act and that, in the absence of approval and the provision of the certificate under by the National Measurement Act and National Measurement Regulations 1999 (Cth), the speed cameras were illegal. Mr Macdonald referred to the requirements of ss 19A, 19AAA and 19AAB of the National Measurement Act and asserted that the prosecution had failed to produce certificates establishing that the speed cameras had been verified in accordance with the requirements of Reg 18 of the Regulations.

Although I was not taken to it by Mr Macdonald, I have had regard to the National Measurement Act as in force in April 2008, when the speed cameras photographed and recorded the speed of the vehicles in question.

...

The system of verification of utility meters used for trade is contained in Part VA of the Act. However, it was common ground that a speed camera is not a utility meter for the purposes of Part VA. Rather, Mr Macdonald relied on Part VI, which contains the provisions that he referred to. These provisions – ss 19A, 19AAA and 19AB – do not require the doing of anything. Rather, they provide for the making of regulations, specifically for or in relation to the examination, approval and verification of ‘patterns’ of measuring instruments, for the issuing of certificates in respect of the approval and verification of patterns of measuring instruments and for the reception in evidence of documents purporting to be such certificates.

It is therefore necessary to have regard to the Regulations (as in force in April 2008). Although Mr Macdonald referred to regulations 18 and 80A, they do not appear to me to be relevant to the argument that he apparently seeks to make. Part VI of the Regulations deals with patterns of measuring instruments. Regulation 58 provides that an application may be made for approval of the pattern of a measuring instrument and then sets out the procedure by which that is undertaken. Regulation 60 provides that on application under Regulation 58, the approving authority may approve the pattern of a measuring instrument by certifying that the instrument is suitable for use for trade or as a legal measuring instrument. If the pattern of the measuring instrument is approved, the approving authority must issue a certificate of approval to the applicant. Regulation 63 sets out the form of the certificate of approval. Regulation 64 and Division 3 of Part VI deal with the circumstances in which an approval may be withdrawn or cancelled.

Part IV of the Regulations deals with the certification of individual measuring instruments. Regulation 36 provides that an application may be made for certification of a measuring instrument, and Regulation 37 provides that, upon application under Regulation 36, the certifying authority may examine the measuring instrument and may certify the measuring instrument. For a measuring instrument to be certified, it must have an approved pattern and bear a mark that identifies the particular instrument.

The relevant regulations are therefore largely permissive in character. A person may apply for approval or certification of a pattern or of an individual measuring instrument, but it is not mandatory.

Having regard to the Regulations, I can find no requirement that speed camera types or individual speed cameras be certified, verified, calibrated or otherwise approved under the National Measurement Act or the Regulations. Mr Macdonald could not point to any specific requirement in the National Measurement Act or the Regulations that speed cameras be approved, verified or certified either individually or more generally as to pattern. He argued, instead, that it was the general ‘tenor’ of the National Measurement Act that they be approved, verified or certified.

I do not accept this submission. In my view, the County Court was not prevented from finding the charges proven in the absence of approval, verification or certification under the National Measurement Act of either the pattern of the speed cameras or the individual speed cameras, as there was no such requirement.

It follows that the constitutional issue raised by Mr Macdonald based on the alleged inconsistencies between the Road Safety Act and the National Measurement Act and Regulations does not arise.

(Some of the sections Emerton J referred to (operating at the time of the offence in 2008) have since been repealed and replaced with similar provisions.)

There were other issues raised, relating to natural justice, rental agreements and the operation of the Magna Carta, but they were also found to lack substance.

The application was dismissed.

1 comment:

Anonymous said...

I've seen similar arguments raised numerous times in magistrates' courts in relation to parking meters, same outcome.