Having found the delegation had been properly given to Mr An, the s72 Certificate signed by him is valid and is admissible as evidence of the licence status of the defendant as at the relevant date.

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Drive while disqualified - Whether s 72 evidentiary certificate admissible - Delegation of road transport authority functions

Public Sector Management Act 1994 ss 14, 21

Road Transport (Safety and Traffic Management) Act 1999 s 25

Knowles v McGrory [2025] ACTMC 11

Road Transport Authority v Candy [2025] ACTMC 5

Administrative Arrangements 2016 (No.3) ss 4, 7, Schedule 2

Public Sector Management (Head of Access Canberra Functions) Declaration 2016

Road Transport Legislation (Access Canberra) Delegation 2017 (No.1)

1. Mr Starkey pleaded not guilty to a charge of driving whilst disqualified. The matter came before me on 28 July 2025 for hearing. Following the prosecution's opening, defence indicated he would be objecting to the admission of the Evidentiary Certificate pursuant to s72 of the Road Transport (General) Act 1994, to be led by the prosecution. Oral submissions from defence were made, and the matter then adjourned for written submissions from the prosecution and the defence in reply.
2. On 1 October 2025, I ruled the s72 Certificate was admissible and informed the parties that I would give my reasons at a later date. These are my reasons.
3. Defence objected to the s72 Certificate, claiming it was invalid, in that the person who signed the Certificate did not have the delegated power to do so. This submission adopted the reasoning of Magistrate Temby in Road Transport Authority v Candy [2025] ACTMC 5 where His Honour found an Evidentiary Certificate pursuant to s25 of the Road Transport (Safety and Traffic Management) Act 1999 was invalid for the same reason.
4. Defence submitted the same irregularity arose in regard to the s72 Certificate, that is, that the delegations to Access Canberra employees all stem from the Public Sector Management (Head of Access Canberra Functions) Declaration 2016, which was signed by Andrew Barr, the Chief Minister on 20 September 2016. His Honour Magistrate Temby found that under the relevant Administrative Arrangements at the time, the Chief Minister was not the Minister responsible for the Road Transport legislation, in particular the Road Transport (Safety and Traffic Management) Act, and therefore the Chief Minister could not delegate the power to provide Evidentiary Certificates to the head of Access Canberra. His Honour found that the Minister for Road Safety was in fact the Minister responsible for that particular legislation pursuant to Administrative Arrangements 2016 (No.3) Schedule 2, part 2.4.
5. The DPP submitted that Magistrate Temby was wrong, however, I note there was no appeal by the DPP from His Honour's decision. If this has been the DPP's position in the many prosecutions using Evidentiary Certificates under the Road Transport legislation since Magistrate Temby's decision, I would have expected prosecutors to be equipped to address the issue and able to respond to the decision of Candy. I make no criticism of the individual prosecutor in this matter, and I commend her on the written submissions she later provided.
6. I should note that after adjourning for written submissions from the prosecution, the prosecution obtained a new s72 Certificate, presumably to address the defect with the older Certificate. The prosecutor then made her submissions based on this later Certificate. Magistrate Temby's decision in Candy was handed down on 24 February 2025. No attempt was made to obtain a new s72 Certificate prior to the hearing before me on 28 July 2025. Presumably the prosecution took the view that the earlier Certificate was valid. However, for reasons unknown, it then sought a new Certificate. The defence submits the new Certificate suffers from the same irregularity.
7. I have not considered this later Certificate. It had not been tendered at the hearing. The prosecution opened its case based on a s72 Certificate dated 31 October 2024. It was this Certificate that was objected to, and in my view the prosecution should not then be allowed to provide the further Certificate dated 15 August 2025. My consideration is only in relation to the Certificate dated 31 October 2024.
8. So, it now becomes necessary for me to undertake my own consideration of the delegation history in this matter. I will note at the beginning, that I disagree with Magistrate Temby's decision, and after tracing the relevant delegations and legislative instruments, I consider the Certificate was validly issued. I found this task complicated and arduous, and I would hope that if either party disagree with this decision, that they consider an appeal, rather than raise it before another magistrate who is then required to undertake the same exercise that has now been done by Magistrate Temby, Magistrate Theakston in Knowles v McGrory [2025] ACTMC 11 and myself.
9. I have unapologetically tried to simplify my reasons.
10. The prosecution intended to tender a s72 Evidentiary Certificate in relation to the status of the defendant's driving licence at the time of the offence.

First question: Who has the authority to sign a s72 Certificate pursuant to the Road Transport (General) Act?

1. Section 72 of the Act provides:
   1. Certificate evidence and other evidentiary provisions

(1) A certificate that appears to be signed by or on behalf of the road transport authority or the MAI commissioner, and states any of the following matters, is evidence of:

(a) a matter that appears in or can be worked out from the demerit points register or driver licence register kept under the Road Transport (Driver Licensing) Act 1999;

1. The Road Transport Authority has the relevant authority to perform the function of providing the Evidentiary Certificate.

Who in fact signed the s 72 Certificate to be tendered by the prosecution?

1. This Certificate, dated 31 October 2024, was signed by Alexander An with a position described as A/g Manager Licence and Registration, PN 36999, Delegate of the Road Transport Authority. The Certificate states Mr An is "delegated under s17(1) of the Road Transport (General) Act 1999".
2. Section 17 provides:
   1. Delegation of road transport authority's functions

(1) The road transport authority may delegate the authority's functions under the road transport legislation to -

(a) the chief police officer; or

(b) a public employee; or

(c) a person prescribed by regulation.

(2) A delegate may subdelegate to a suitable person a function delegated under subsection (1) (a) or (b).

1. It is not disputed that Mr Alexander An was an employee of Access Canberra. Access Canberra is not an administrative unit of the Government, it is merely a business unit.

Was the function to sign the s72 Certificate given to Mr An from the Road Transport Authority, and if so, when?

1. The relevant delegation is found at Road Transport Legislation (Access Canberra) Delegation 2017 (No.1). This delegation is signed by David Snowden, A/G Dep Director General, Access Canberra on 8 August 2017. This instrument delegates the function given by s72 of the Road Transport (General) Act from the Director-General of Access Canberra to the staff member occupying the relevant position number. Alexander An's position number, being 36999 appears in the column for the exercise of the function in relation to providing Certificates of evidence pursuant to s72.

Did David Snowden have the power to delegate this function?

At the time of making this instrument, the Head of Access Canberra is Deputy Director-General, Access Canberra.

2. The Head of Access Canberra can sub-delegate the function to a public employee (s17 Road Transport (General) Act and s21(4) Public Sector Management Act 1994).

Was the function given to the Head of Access Canberra, and if so, when?

1. Section 21 of the Public Sector Management Act 1994 provides:
   1. Exercise of certain director-general functions by head of Access Canberra

(1) The responsible Minister may declare that a function given to a director-general under a territory law dealing with a relevant matter may be exercised by the head of Access Canberra (a declared function).

Note 1 Function includes authority, duty and power (see Legislation Act, dict, pt 1).

Note 2 A provision of a law that gives an entity (including a person) a function also gives the entity powers necessary and convenient to exercise the function (see Legislation Act, s 196 and dict, pt 1, def entity).

(3) The head of Access Canberra may exercise a declared function.

(4) The head of Access Canberra may delegate a declared function to a public servant or another person.

Note For the making of delegations and the exercise of delegated functions, see the Legislation Act, pt 19.4.

(5) However, the head of Access Canberra may only delegate a declared function to the extent permitted by other territory laws.

(6) Nothing in this section limits the exercise of a declared function by the director-general given the function.

(7) Anything done in the exercise of a declared function is not invalid only because of a defect or irregularity in, or in relation to, a declaration.

Access Canberra means the business unit known as Access Canberra.

head, of Access Canberra, means the person occupying the position (however described) of head of Access Canberra.

relevant matter means a matter mentioned in an administrative arrangement -

(a) responsibility for which is allocated to the responsible Minister; and

(b) relating to Access Canberra.

responsible Minister means the Minister responsible for Access Canberra.

1. The important matters to note from this provision are:
   1. The "responsible Minister" is defined as the Minister responsible for Access Canberra.
   2. The "relevant matter" is a matter mentioned in an administrative arrangement, for which responsibility is allocated to the responsible Minister, (that is the Minister responsible for Access Canberra) and relates to Access Canberra.

Who was the Responsible Minister at the time of the delegation to public employee by Snowden on 8 August 2017?

1. The answer to this question is found in the Administrative Arrangements. Section 14 of the Public Sector Management Act provides:
   1. Ministerial responsibility and functions of administrative units

(1) For the Australian Capital Territory (Self-Government) Act 1988 (Cwlth), section 43 (1), the Chief Minister may make a determination allocating responsibility to a Minister in relation to the following matters:

(a) governing the Territory in relation to a stated matter;

(b) an Act;

(c) the Executive's powers under a Commonwealth law;

(d) prerogatives of the Crown for the matters mentioned in paragraphs (a) to (c).

(2) The Chief Minister must determine which administrative unit is responsible for a matter mentioned in subsection (1).

(3) For the Australian Capital Territory (Self-Government) Act 1988 (Cwlth), section 43 (2), any Minister is authorised to act on the Chief Minister's behalf or on behalf of another Minister.

1. The relevant Administrative Arrangement existing at the time that Snowden gave the authority to the position number now occupied by Mr An was Administrative Arrangements 2016 (No.3).
2. Section 4 of the Administrative Arrangements provides:
   1. Ministers - matters allocated

For the Self-Government Act, section 43 (1), a Minister mentioned in schedule 1, column 1 is allocated responsibility for the following matters relating to the powers of the Executive:

(a) governing the Territory in relation to the matters mentioned in schedule 1, column 2 opposite the reference to the Minister;

(b) executing and maintaining the Territory enactments mentioned in schedule 2 under the reference to the Minister;

(c) exercising the powers of the Executive under the Commonwealth laws mentioned in schedule 2 under the reference to the Minister;

(d) exercising prerogatives of the Crown for the matters mentioned in paragraphs (a), (b) and (c).

1. Turning then to schedule 1, the Minister for Road Safety is responsible for policy relating to transport regulation and safety. In the same schedule, the Chief Minister, is responsible for Access Canberra and in particular:

fair trading and registration, inspection and regulatory services (including transport regulation and licencing)*

2. An asterisk appears next to this phrase referring to further information in the table, stating:

*this is a matter relating to Access Canberra (see Public Sector Management Act 1994, s 37A (8), def relevant matter, par (b)). (This section has now been renumbered to s21 by amendment dated 2 September 2016).

3. The role of Responsible Minister for the purposes of s21 of the Public Sector Management Act is clearly identified in Schedule 1 as belonging to the Chief Minister, not to the Minister for Road Safety. Accordingly, it is the Chief Minister, that has the authority to declare a function given to a Director-General under a territory law dealing with a relevant matter to be exercised by the head of Access Canberra.
4. Section 7 of the Administrative Arrangements provides:
   1. Administrative units - Ministers responsible and functions

For the Public Sector Management Act, section 14 -

(a) a Minister mentioned in schedule 1, column 1 is allocated responsibility for the administrative unit or units mentioned in column 3 opposite the reference to the Minister; and

(b) an administrative unit mentioned in schedule 1, column 3 is allocated responsibility for -

(i) the matters mentioned in column 2 opposite the reference to the unit; and the prerogatives of the Crown for the matters mentioned in subparagraph (i); and

(ii) the prerogatives of the Crown for the matters mentioned in subparagraph (i); and

(c) an administrative unit mentioned in schedule 2 is allocated responsibility for -

(i) the Territory enactments mentioned in schedule 2 under the reference to the unit; and

(ii) powers of the Executive under Commonwealth laws mentioned in schedule 2 under the reference to the unit.

1. Turning to Schedule 2, it identifies the Road Transport (General) Act (with some exceptions not relevant for these purposes) and identifies the Minister for Road Safety as the responsible minister for the administrative unit, being Justice and Community Safety Directorate, and the administrative unit is allocated responsibility for the legislation that is listed. It is the Directorate, not the Minister that has the allocated responsibility for the Road Transport (General) Act.
2. Returning to where we began - section 17(1) of the Road Transport (General) Act provides that the Road Transport Authority has the authority to delegate its functions.

1. Section 16 of the Road Transport (General) Act provides:
   1. Road transport authority

(1) There is to be an Australian Capital Territory Road Transport Authority (the road transport authority).

(2) The director‑general is the road transport authority.

1. Accordingly, it is the Director-General of the Road Transport Authority who can delegate its functions.

Who is the Director-General of the Road Transport Authority?

1. Section 16(3) of the Road Transport (General) Act provides:
   1. Road transport authority

(3) For this section, in relation to the exercise of a function under a provision of the road transport legislation, the director-general is the director-general of the administrative unit responsible for the provision.

What is the administrative unit responsible for the provision, namely s72 Road Transport (General) Act?

1. According to Schedule 2 of the Administrative Arrangements, the Justice and Community Safety Directorate is the administrative unit responsible for the Road Transport (General) Act. The Director-General of the Justice and Community Safety Directorate is the person with the function pursuant to s72 of the Act, not the Minister responsible for that administrative unit.
2. This is where I disagree with Magistrate Temby, in that he was of the view that the function was held by the Minister for Road Safety, and only that person could then delegate it. However, the function is in fact held by the Director-General of the administrative unit, and the Chief Minister has the authority pursuant to s21(1) of the Public Sector Management Act to declare a function given to a Director-General under a territory law dealing with a relevant matter, to be exercised by the head of Access Canberra.
3. Consistent with the Administrative Arrangements, the Public Sector Management (Head of Access Canberra Functions) Declaration 2016, was signed by Andrew Barr as the Chief Minister, on 20 September 2016. The function provided by s72 of the Road Transport (General) Act, exercisable by the Director-General of the Justice and Community Safety Directorate was specifically listed to be exercised by the head of Access Canberra. This was a valid declaration as the Chief Minister was the Responsible Minister for the purposes of s21 of the Public Sector Management Act.
4. Having found the delegation had been properly given to Mr An, the s72 Certificate signed by him is valid and is admissible as evidence of the licence status of the defendant as at the relevant date.

I certify that the preceding thirty-six [36] numbered paragraphs are a true copy of the Reasons for Decision of her Honour Magistrate Campbell.