Crown Law defends constitutional challenge

Crown
Law acted for the Attorney-General and the Queensland Police Service in
successfully defending a constitutional challenge to section 114 of the Transport
Operations (Road Use Management) Act 1995.

Section
114 deems the registered owner of a vehicle to have committed a prescribed
offence even if the actual offender was someone else. ‘Prescribed
offence’ includes exceeding the speed limit. However, it is a defence for
the owner to give a statutory declaration that the person was not driving and
either giving the actual offender’s details or establishing that the person did
not and could not ascertain the actual offender’s details.

The
registered owner of a vehicle received an infringement notice for a speeding
offence. He claimed that s. 114 was invalid for infringing the principle
in Kable v DPP (NSW) (1996) 189 CLR 51. The Magistrates Court
stated the question of invalidity for the opinion of the District Court, and
the stated case was removed into the Court of Appeal. The defendant
claimed that s.114 impermissibly required the Magistrates Court to find as a
fact, a fiction (that the owner was the driver). 

The
Court of Appeal unanimously dismissed the challenge: Attorney-General (Qld)
v Morris [2015] QCA 112. The Court held that s. 114 did not depend on
a factual finding that the owner was the driver. It relevantly required
findings only that a speeding offence happened and that the defendant was the
registered owner. Section 114 did not require a finding of the driver’s
identity. It therefore did not intrude impermissibly on the judicial
fact-finding function.