Roads and Traffic Authority of NSW v Birchfield; Roads and Traffic Authority of NSW v Dunlop

Acts Interpretation Act 1901 (Cth) Evidence Act 1995 LEGISLATION CITED : Interpretation Act 1987 Mining Act 1992 Road Rules 2008 Road Transport (Safety and Traffic Management) Act 1999

Bank of NSW v Commonwealth (1948) 76 CLR 1 Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd and Minister for Mineral Resources (No 2) (2010) 172 LGERA 25 CASES CITED : O'Sullivan v Watson (1986) 7 NSWLR 693 Pidoto v State of Victoria (1943) 68 CLR 87 R v James Henry Ryman (unreported - NSW District Court, Judge Ellis - 12 March 2010)

Halsbury's Laws of England (4th ed, 2007) TEXTS CITED : Oxford English Dictionary (2nd ed, 1989) Stroud's Judicial Dictionary Of Words And Phrases (7th ed, 2006)

Roads and Traffic Authority of NSW (Plaintiff) PARTIES : Jeffrey Birchfield (Defendant) Ian Craig Dunlop (Defendant)

COUNSEL : Mr T Lynch (Plaintiff) Submitting appearances filed (Defendants)

SOLICITORS : Hunt & Hunt (Plaintiff) Submitting appearances filed (Defendants)

• 14 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

2010/267999 ROADS AND TRAFFIC AUTHORITY OF NSW V BIRCHFIELD & 2010/268011 ROADS AND TRAFFIC AUTHORITY OF NSW V DUNLOP

JUDGMENT 1 Each of Jeffrey Birchfield and Ian Craig Dunlop (the Defendants) received a Court Attendance Notice for failing to comply with "Trucks must enter" signage contrary to Road Rule 105 near the Marulan Heavy Vehicle Checking Station. Mr Dunlop was alleged to have committed the offence on 28 October 2009 and Mr Birchfield on 26 November 2009. The matters came before Magistrate Beattie at the Goulburn Local Court on 18 June 2010. There were 11 other similar matters involving other truck drivers before Magistrate Beattie on that day. 2 Her Honour heard argument from the RTA, which was the Prosecutor in each case, on whether the signage at the Marulan Heavy Vehicle Checking Station complied with or satisfied the requirements of r 105. Although the Defendants were unrepresented and took no part in the argument, the Magistrate held that the signs did not comply with r 105 with the result that the charges were dismissed. 3 The RTA now appeals to this Court on the basis that the Magistrate committed an error of law. The Defendants filed submitting appearances and took no part in the hearing of the Appeal. This meant that there was no contradictor for the submissions put by the RTA. However, Mr Lynch of counsel, who appeared for the RTA, put the arguments in a fair and dispassionate manner, providing as much assistance as he could, bearing in mind that there was no contrary argument put by any other person. 4 Rule 105 of the Road Rules provides: If the driver of a truck drives past a trucks must enter sign, the driver must enter the area indicated by the information on or with the sign. Maximum penalty: 20 penalty units Note: Truck and with are defined in the Dictionary. Trucks must enter sign 5 The sign, contravention of which was alleged, read as follows: Heavy Vehicle Checking Station 300m Vehicles over 8t GVM MUST ENTER

6 The alleged gross vehicle mass (gvm) of Mr Dunlop's vehicle was 10.4 tonnes and the gross vehicle mass of Mr Birchfield's vehicle was alleged to be 16 tonnes.

The argument before the Magistrate 7 The RTA put 3 submissions to the Magistrate as follows:

(1) in the context of the signs requiring diversion to a Heavy Vehicle Checking Station the signs should be construed as an exercise of power under r 105;

(2) that the reference to "truck" in r 105 was an "example" of the operation of the rule, and thus it was not limited in its operation to trucks;

(3) the sign "substantially complied" with the requirements of r 105. 8 Her Honour rejected all of those submissions.

The appeal 9 The Summons originally filed in each matter contended that the Magistrate erred in dismissing the prosecutions, in substance, for not accepting the submissions that had been made to her. When the appeal came on for hearing Mr Lynch sought to file an Amended Summons in each case which abandoned the arguments that had been put to the Magistrate but simply alleged that the Magistrate erred in directing herself that the sign could not relied upon to found the prosecutions and for not directing herself that the sign was effective for the purposes of r 105 and that it amounted to a direction to drivers of trucks having a gross vehicle mass over 8 tonnes. 10 Those new grounds, on their face, disguised (although I do not use the term pejoratively) the matters that the RTA wished to raise on appeal. The RTA expressly abandoned the submissions that had been put to the Magistrate and argued the validity of the Notices on a completely different basis, as will later appear. 11 That the amendment was permissible in the circumstance of this case was made clear by the Court of Appeal's decision in O'Sullivan v Watson (1986) 7 NSWLR 693 at 697-698 and 702. There was no question of different evidence being called to deal with the argument now sought to be put. In those circumstances I granted leave to the RTA to file an Amended Summons in each of the proceedings.

The legislative framework 12 Road Rule 15 defines a vehicle as including a motor vehicle as well as other types of transportation. 13 The Dictionary to the Rules defines motor vehicle as meaning a vehicle that is built to be propelled by a motor that forms part of the vehicle. 14 Truck is defined as meaning a motor vehicle with a gvm over 4.5 tonnes, except a bus, tram or tractor. 15 Those definitions have the result that all trucks are vehicles, but only some vehicles are trucks. Furthermore, by reason of those definitions a sign requiring vehicles over 8t gvm to do something would necessarily include all trucks over 8t gvm but would not include all trucks. However, each of the Defendants was prosecuted under r 105. That required the driver only to enter the area indicated when such driver drove past a "Trucks must enter" sign. There was no such sign erected at any point prior to the Marulan Heavy Vehicle Checking Station. The Magistrate took the view that the signs in fact erected did not even substantially comply with the sign identified in r 105. 16 The RTA does not now dispute that the sign itself was ultra vires r 105. The RTA argues, however, that notwithstanding that fact, the Defendants were obliged to comply with the sign because they amounted to an instrument and under s 32(1) Interpretation Act 1987 an instrument is to be construed as operating to the full extent of but not in excess of the power conferred by the Act under which it is made. In other words, to the extent that the sign required other than trucks to enter the heavy checking station, the sign should be read down in accordance with s 32(1). 17 Section 3(1) of the Interpretation Act defines "instrument" in this way: instrument means an instrument (including a statutory rule or an environmental planning instrument) made under an Act, and includes an instrument made under any such instrument. 18 The Road Rules 2008 are made pursuant to s 72A Road Transport (Safety and Traffic Management) Act 1999. They are therefore "statutory rules", with the result that they themselves are an instrument within the meaning of the definition in the Interpretation Act. 19 Apart from what it is said to include, the definition of instrument under the Interpretation Act is circular. Halsbury's Laws of England (4th ed, 2007) says this: The word 'instrument' as applied to a writing may ... include documents which affect the pecuniary position of parties although they do not create rights or liabilities recognised in law; but usually it applies to a document under which some right or liability, whether legal or equitable, exists. 20 The definition given in Stroud's Judicial Dictionary Of Words And Phrases (7th ed, 2006) is this: An "instrument" is a writing, and generally imports a document of a formal legal kind. 21 The RTA points to certain provisions in Pt 20 of the Road Rules which contain reasonably precise requirements for traffic control devices and traffic signs. 22 The definition of "document" in the Evidence Act 1995 is this: document means any record of information, and includes: (a) anything on which there is writing, or (b) anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them, or (c) anything from which sounds, images or writings can be reproduced with or without the aid of anything else, or (d) a map, plan, drawing or photograph. 23 In addition, the RTA points to the meaning of "document" in the Oxford English Dictionary (2nd ed, 1989) which has as its fourth meaning: Something written, inscribed, etc, which furnishes evidence or information upon any subject, as a manuscript, title-deed, tomb­stone, coin, picture, etc. 24 Of course, in this age of technology, computers and electronics it is accepted that a document might be a component part of a computer such as a hard drive because that drive, when properly interpreted contains (as the Evidence Act allows) marks, figures, symbols or perforations which have meaning for a person who can interpret them. The RTA's contentions 25 The RTA argues, therefore, that a road sign is by virtue of the definition in the Evidence Act, a document. It says an instrument is a formal legal document in the manner I have described earlier, with the result that any road sign in accordance with the Road Rules is "an instrument made under" the Road Rules which are themselves an instrument. 26 The RTA then points to s 32 Interpretation Act which provides: 32 Instruments to be construed so as not to exceed the powers conferred by the Acts under which they are made (1) An instrument shall be construed as operating to the full extent of, but so as not to exceed, the power conferred by the Act under which it is made. (2) If any provision of an instrument, or the application of any such provision to any person, subject-matter or circumstance, would, but for this section, be construed as being in excess of the power conferred by the Act under which it is made: (a) it shall be a valid provision to the extent to which it is not in excess of that power, and (b) the remainder of the instrument, and the application of the provision to other persons, subject-matters or circumstances, shall not be affected. (3) This section applies to an instrument in addition to, and without limiting the effect of, any provision of the instrument or of the Act under which it is made. 27 In this way, it is argued, although the sign in question is not authorised by r 105 because r 105 does not authorise the sign to direct all vehicles over 8t GVM to enter the weighing station, the sign should simply be construed as operating to the full extent of the power that r 105 does in fact authorise. The result, it is said, is that because the sign could authorise a truck (as defined) to enter, it should effectively be read as if that was all it directed and nothing more. In that regard, Mr Lynch took me to what Dixon J said in Bank of NSW v Commonwealth (1948) 76 CLR 1 at 371. In the passage which follows, Dixon J was discussing the effect of what can be described as a severability clause to deal with the possibility that certain legislation might be found to be unconstitutional. Dixon J said: The effect of such clauses is to reverse the presumption that a statute is to operate as a whole, so that the intention of the legis­lature is to be taken prima facie to be that the enactment should be divisible and that any parts found constitutionally unobjection­able should be carried into effect independently of those which fail. To displace the application of this new presumption to any given situation arising under the statute by reason of the invalidation of part, it must sufficiently appear that the invalid provision forms part of an inseparable context. The general provision contained in s. 15a of the Acts Interpretation Act 1901-1941 produces this effect, as does s. 46 (b), which similarly deals with severance in subordinate legislation. 28 Similarly, attention was directed to what Preston J said in Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd and Minister for Mineral Resources (No 2) (2010) 172 LGERA 25 in a matter that concerned an exploration licence which was granted by an Instrument of Renewal issued by the relevant Minister. Under s 114(3) of the Mining Act 1992 the period for which an authority is renewed may not on any one occasion exceed 5 years. The Minister renewed the authority to 28 February 2011 when the earlier instrument was due to expire 5 years prior to that on 1 March 2006. However, the Minister inserted the date 22 February 2006 but left the expiry date as to 28 February 2011, that is, a period in excess of the 5 year period. 29 Preston J said: [80] I agree with the submissions of CMA and the Minister that A216 should be construed as operating to the full extent of, but so as not to exceed, the power conferred by s 114(3) of the Mining Act . This means that the period for which A216 should be construed as having been renewed is up to but not exceeding five years, that is to say, until 22 February 2011 rather than 28 February 2011.

[81] This construction of A216 is required by s 32 of the Interpretation Act which provides: (1) An instrument shall be construed as operating to the full extent of, but so as not to exceed, the power conferred by the Act under which it is made. (2) If any provision of an instrument, or the application of any such provision to any person, subject-matter or circumstance, would, but for this section, be construed as being in excess of the power conferred by the Act under which it is made: (a) it shall be a valid provision to the extent to which it is not in excess of that power, and (b) the remainder of the instrument, and the application of the provision to other persons, subject-matters or circumstances, shall not be affected. (3) This section applies to an instrument in addition to, and without limiting the effect of, any provision of the instrument or of the Act under which it is made.

[86] In this case, A216 properly can be construed so as to confine the period for which A216 is renewed within the limits of power in s 114(3) of the Mining Act , namely for five years until 22 February 2011 rather than until 28 February 2011 Such a construction would not cause the authority to "operate differently or produce a different result from that which was intended" (Peters v Attorney-General for NSW at 41) of effect a "change to the substantial purpose and effect" of A216 (Harrington v Lowe at 328) It would not create an authority which either the Parliament or the Minister did not intend to create This is not a case where the Parliament or the Minister intended the renewed authority of A216 "to operate fully and completely accordingly to its terms, or not at all" Victoria v Commonwealth (Industrial Relations Act Case) (1996) 187 CLR 416 at 502 Were the offences proved? 30 Whilst I acknowledge the ingenuity of the RTA's argument, I do not think it is correct. It ultimately depends for its correctness on a road sign being a document and therefore an instrument within s 3(1) Interpretation Act, and on s 32 of that Act being applicable to the sign. In my opinion, the argument fails at both points. 31 First, I do not accept that the road sign is an instrument within the meaning of the definition in s 3(1). It is to be noted that the argument that it is an instrument succeeds only by pointing to dictionary definitions of what an instrument is. The only definition of instrument in a relevant Act is the definition in s 3(1). Although that definition has some slight usefulness in identifying that a statutory rule or an environmental planning instrument falls within the definition, the definition is otherwise entirely circular. The enquiry must be, therefore, whether Parliament can, by the words it has used in defining "instrument" have intended including such things as traffic signs as instruments. 32 It is possible to discern from various provisions in the Interpretation Act that what was intended by the use of the word "instrument" throughout the Act is some form of enactment by some person or some body having the power to bring about a result by the enactment. (In saying that I am conscious of the need to avoid an infinite regression of definition where one word, such as "enactment", becomes substituted for another like "instrument".) For example, ss 5(1), 21A and 21B speak of instruments being "enacted or made" relative to the commencement of the Act. Such a statement does not apply easily or at all to a sign promulgated under a portion of the Road Rules. 33 Similarly, the word "instrument" is frequently used in the Interpretation Act as something which is in the same category as an "Act" - see, for example, ss 5-17 and 19. Further, references to "instruments commencing" (s 25 and 26) do not sit easily with an instrument being other than a source of power or obligation. 34 When one turns to consider how s 32 might operate on a road sign if the road sign is an instrument as defined, reference can be made to what Latham CJ said in Pidoto v The State of Victoria (1943) 68 CLR 87 at 108-111 about how a court is supposed to read down legislation so that it is within power. Latham CJ was discussing the relevant equivalent of s 32 in s 46 of the Acts Interpretation Act 1901 (Cth). The submission had been made that that provision of the Acts Interpretation Act should be read as affecting the operation of all laws in the sense that all laws are to be held to be valid in all cases to which they are, according to their terms, applicable, irrespective of failure to operate in other cases. Latham CJ said: Upon this view no legislation would ever be completely invalid if a case could be discovered to which it could have been validly applied. This argument may be illustrated by an example. Let it be supposed that the Commonwealth Parliament passes a general statute dealing with larceny which, according to its terms, is plainly beyond Commonwealth legislative power because the Parliament has no power to make general criminal laws. Prima facie the law is invalid. But the Commonwealth has full powers of legislative control, e.g., in relation to all the territories of the Commonwealth, in relation to acts and defaults of postal, customs and other Commonwealth officers, and in relation to acts which constitute parts of inter-State and foreign trade and commerce. Then, it is said, the statute should be treated as valid in relation to such cases as those mentioned, that is, to all larcenies in the Federal Capital Territory, the Northern Territory, Norfolk Island, &c., in relation to larcenies by postal, customs and other Commonwealth officers, and in relation to people who, in the course of transactions in inter-State trade and commerce, are guilty of the acts which are penalized by the statute. When any person was charged with an offence under the statute the inquiry would be, not whether the statute in its general terms was within Commonwealth power, but whether such a statute could have been passed with some limitation or limitations which would have resulted in the statute being valid and applicable to the person who was on that particular occasion charged with an offence. If this question could be answered in the affirmative, it is said that the effect of the Acts Interpretation Act is that the statute must be held to be valid in its operation in relation to that person. It would be left to the Court to discover and prescribe an appropriate limitation as various cases presented themselves. One person A could be convicted under the statute because he committed larceny in the Northern Territory, another person B because he was a customs officer, C for some other reason, while D, E and F, whose acts fell within the precise words of the statute, could not be convicted because the courts which dealt with D and E and F found themselves unable to think of a category which, if specified in the statute, would have validly included them within the scope of Commonwealth legislative power.

Such an application of the Acts Interpretation Act appears to me to require the Court to perform a feat which is in essence "legislative and not judicial" ( R. v. Burgess; Ex parte Henry ]. To recur to the illustration given, the view suggested should, in my opinion, be rejected for the reason that it could not reasonably be supposed that it was the intention of Parliament, as disclosed in the statute, taken together with the Acts Interpretation Act , to produce such a hotch-potch of irregularly and partially operating law with respect to larceny: Compare Attorney-General for Manitoba v. Attorney-General for Canada ].

Where the law itself indicates a standard or test which may be applied for the purpose of limiting, and thereby preserving the validity of, the law, the case is different. …

But in the absence of any indication in a law of the nature of the standard or test to be applied for the purpose of reading down a general expression contained in the law, the court is left to guesswork. …

[I]f a law can be reduced to validity by adopting any one or more of a number of several possible limitations, and no reason based upon the law itself can be stated for selecting one limitation rather than another, the law should be held to be invalid. In such a case the law cannot be saved by the Acts Interpretation Act . 35 What is being suggested in the present case is that the Court, regarding all traffic signs as instruments and subject to s 32, should read them down so that, although on their face they are ultra vires rule 105, they should be read to the extent that they do not exceed the power in r 105. 36 When it is considered that, rather than a court reading down a legislative provision to bring it within power, it is a motorist who must, on seeing the sign in question, decide if it applies to him or her by reading it within the power of the rule, failing which a penalty would be imposed, the process that s 32 envisages cannot possibly have been intended to apply to traffic signs. As Judge Ellis pointed out in R v James Henry Ryman (unreported - NSW District Court, Judge Ellis - 12 March 2010) when considering exactly the same point, the legislation creates a strict liability offence in the criminal field. For that reason, a rule such as r 105 should not be interpreted broadly but should be interpreted narrowly. 37 A motorist should be in the position of being assumed to know the Road Rules. Such a motorist should not be in the position of having to decide whether a non-authorised sign is required to be complied with on the basis that the motorist falls within the class authorised to be directed by the Rule although not clearly identified by the sign. In the present case, for example, the sign wrongly required a bus over 8t gvm to enter the Heavy Vehicle Checking Station. On the other hand, a truck driver driving a truck over 4.5t but under 8t might wonder, if he knew of r 105, whether he was required by this sign to enter the Heavy Vehicle Checking Station. Where a conviction and penalty is likely to follow a breach by the driver of a vehicle, no driver should be placed in the position of having to interpret a sign and read it down by the process contained in s 32. Section 32 must be seen as applying only to legislation whether primary or subordinate. 38 The RTA offers no reason for the fact that the signs in question do not comply with r 105. The RTA accepts that the signs are ultra vires r 105 but seeks to save their effectiveness in reliance on the arguments earlier discussed. In my opinion, the signs are not saved in this way. The RTA no longer challenges the Magistrate's determination that the sign did not substantially comply with r 105 (see r 315). The drivers concerned were not obliged to comply with them, and the Magistrate was not in error in dismissing the charges. In the same way, Judge Ellis was correct in upholding the appeal in Ryman. 39 I make the following orders:

(2) The Plaintiff is to pay the Defendants' costs of the proceedings.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.