McMasters v. Foley [2001] QDC 54 (6 April 2001)

"... a person to whom the provisions of s.78(3) of the TORUM Act 1995 applied (and) was disqualified from holding or obtaining a driver licence."

[2] The appeal is directed at the Magistrates ruling that on a proper construction of the Act and relevant regulations contained in the TORUM Regulation 1999, the circumstance of aggravation was not made out. Mr Swan expressed his ruling in terms of the regulation relied upon by the prosecution (s.24 of the TORUM Regulation 1999) being "ultra vires to the Act and of no effect", however a reading of his reasons for judgment as a whole clearly indicate that he further ruled that as a matter of law the circumstance of aggravation was not made out in the particular circumstances of the case.

[3] There is no doubt that s.78(3) is a penal provision in that a maximum penalty of 34 penalty units or imprisonment for a term not exceeding 18 months is prescribed. Therefore, any ambiguity in construction is to be resolved in favour of the person accused: Smith v. Corrective Services Commission (NSW) (1980) 147 CLR 134.

[4] It was common ground before Mr Swan that at the time alleged in the complaint the respondent was driving a motor vehicle; she was then a holder of a learner's permit, and had accumulated more than four demerit points on her traffic history. It is implicit in Mr Swan's reasons (and not disputed by the appellant) that he found that the letter from Queensland Transport (Exhibit 3) informing the respondent that her learner's permit was cancelled for six months was never received by her. It was common ground that the respondent neither returned her learner's licence to the Chief Executive, nor did she supply a statutory declaration in compliance with s.24(5)(b)(ii) of the TORUM Regulation 1999.

"Cancellation of licence for 4 or more points

(a) 4 or more demerit points are recorded on a person's traffic history; and

(b) the demerit points were allocated in a continuous 1 year period while the person held a learner or P type licence, but did not hold an open licence of another class; and

(c) the person holds a learner, P type or open licence.

(2) The person's licence is cancelled from the cancellation date.

(3) Also, the person is disqualified from holding or obtaining a Queensland driver licence for a period ending -

(a) if the licence is a learner, provisional, probationary or open licence - 3 months after the return date; or

(ii) if the disqualification period imposed under s.86(5) of the Act expires more than 3 months after the return date - when the disqualification period imposed under the Act ends.

(4) However, if the licence was the first licence granted after another licence was cancelled under this section, the person is disqualified from holding or obtaining a Queensland driver licence for a period ending 6 months after the return date.

(5) The chief executive must, by written notice (a "return notice") -

(a) inform the person that the person's licence is to be cancelled; and

(i) to return the person's licence to the chief executive in a specified way, and within a specified time of at least 14 days; or

(ii) if the person can not comply with subparagraph (i) - to give the chief executive, within the specified time, a statutory declaration stating why the person can not comply; and

(6) The person must comply with the return notice, unless the person has a reasonable excuse.

[6] The Prosecution relied upon s.24(3) and submitted to the Magistrate that because the respondent had not complied with the requirements of the letter (Exhibit 3) she is deemed to be disqualified. The Magistrate rejected this argument. He construed s.24(3) strictly and correctly determined any ambiguity in favour of the respondent.

[7] The Magistrate's ruling however does go further and potentially affects other prosecutions based on the same provision. The appellant submits that the Magistrate was wrong in law in ruling that s.24 was not a valid exercise of the regulation making power derived from the TORUM Act.

[8] The appellant submits that the power to make s.24 derives from s.150 of the TORUM Act; which relates to regulating driver management; and in particular s.150(1)(c) which is in these terms:

"A regulation may prescribe rules about the management of drivers including for example -

(c) rules about licences, including, in particular, the circumstances in which, and the reasons for which, they can be cancelled or suspended or conditions imposed on them;"

[9] Significantly s.150(1) does not refer to "disqualification".

[10] Section 24(3) provides inter alia that a person in the position of the respondent is disqualified "3 months after the return date" (subsection 3(1)). "Return date" is not defined, but as a matter of construction is referrable to either of the two events set out in s.24(5)(i) and (ii). As I have noted, on the evidence the Magistrate determined that neither of the events referred to in the sub-section occurred. The section is silent as to legal consequences in the event that a person does not comply with s.24(5), except that such a person could be charged with an offence pursuant to s.24(6). As such, the section in its terms is quite ambiguous.

[11] The appellant did not suggest that the power to create s.24(3) comes from any other source in the TORUM Act. The TORUM Regulation 1999 is a statutory instrument in terms of s.7(1) of the Statutory Instruments Act 1992. A statutory instrument is to be interpreted "to the full extent of, but not to exceed, the power conferred by the law under which it is made ..." (s.21(1)(a) of the Statutory Instruments Act 1992). Section 150(1)(c) talks only of cancellation, suspension and conditions on licences; it does not refer to disqualification. The appellant's argument that a reference to "disqualification" can be inferred because of the use of the word "including" in s.150(1) can not be accepted, because of the rules of statutory construction to which I have earlier referred. The heading to s.24 is "Cancellation of licence for 4 or more points". The heading to a section forms part of the provision to which it is a heading: s.35C(1) of the Acts Interpretation Act 1954. It follows therefore that the Magistrate's analysis was correct; and to the extent that s.24(3) sets out to impose a disqualification of the type referred to in s.78(3) of the Act; as alleged by the prosecution; it is not a valid exercise of the regulation making power in the TORUM Act..

[12] This construction is entirely consistent with the scheme of the Act. In the scheme of the Act cancellation and suspension are less serious, in terms of a person who then drives a vehicle, than disqualification.

[13] Mr Cooke QC further submitted that if one reads down s.24(3) in the light of s.129(1) of the Act there is no invalidity. I do not think there is any reason to read down the provision. Its proper construction is completely consistent with the scheme and objects of the Act. If a person caught by s.24 is to be considered disqualified for the purposes of a prosecution under s.78(3), it will be necessary for the law to be amended.

[15] The applicant will pay the costs of the respondent on the standard basis to be assessed or agreed.