Road Transport (Minimum Toll Expenditure Calculation) Order 2018

This Order prescribes methods for calculating the “minimum expenditure amount in tolls” for the purposes of clause 127A of the Road Transport (Vehicle Registration) Regulation 2017 (the Regulation). It sets out which toll payments may be counted when assessing whether a minimum toll-spend threshold for the previous financial year has been met, and it limits the counting of certain tolls in specified circumstances. The Order applies only to tolls paid using a tolling account (cl 4). It distinguishes between tolls linked to an e-tag (an electronic tag associated with a tolling account, cl 3) and tolls identified by photographic activation of a camera (photograph matched vehicles, cl 3), and it specifies how those amounts may be aggregated for the purposes of the minimum expenditure calculation (cls 4A, 5, 6).

Mechanically, the Order does the following:

• Declares its name and commencement date: the Road Transport (Minimum Toll Expenditure Calculation) Order 2018, commencing on 16 April 2018 (cls 1-2).
• Provides definitions that invoke and import terms from clause 127A of the Regulation and other instruments, and notes that notes in the Order do not form part of it (cl 3).
• Requires that the methods in the Order be used only in respect of tolls paid using a tolling account (cl 4).
• Specifies special rules for the 2017-2018 financial year where a tolling account has more than one e-tag: only tolls from the two e-tags that incurred the greatest amount of tolls may be counted, plus any photograph matched vehicle tolls, while excluding amounts paid under the M5 Cashback Scheme (cl 4A).
• Provides a general method for accounts with e-tags for any previous financial year: count tolls paid in respect of e-tag matched vehicles and photograph matched vehicles, excluding amounts paid under the M5 Cashback Scheme (cl 5).
• Enables the Authority to treat two or more e-tags as a single e-tag where appropriate, including where an e-tag has been replaced by another (cl 5A).
• Provides the method for accounts with no e-tags: only tolls paid in respect of photograph matched vehicles may be counted, excluding M5 Cashback amounts (cl 6).

The Order expressly excludes from the minimum expenditure calculation any toll amounts paid by registered participants in the M5 Cashback Scheme in connection with the M5 South-West Motorway to which that Scheme applies (cls 4A(3), 5(3), 6(3)). The Order relies on cross-references to the Regulation and other instruments for definitions and to situate the calculation required by clause 127A of the Regulation (cl 3).

The Order is terse and revolves around a small set of interlocking definitional and methodological concepts. Those concepts determine what may be counted toward a statutory minimum toll-expenditure test that is administered under clause 127A of the Regulation. The central concepts are:

• Tolling account (cl 3). A tolling account is an account provided by a toll service provider for the purpose of enabling the account holder to pay tolls. The Order restricts its methods to tolls paid via such accounts (cl 4).

• e-tag and e-tag matched vehicle (cl 3). An e-tag for a tolling account is the electronic tag linked with that account that tracks tolls incurred for one or more registrable light motor vehicles. An e-tag matched vehicle is a registrable light motor vehicle identified for the purposes of the account as incurring a toll because of the presence in or with the vehicle of an e-tag linked to the account.

• Photograph matched vehicle (cl 3). A photograph matched vehicle is a registrable light motor vehicle identified for the account as incurring a toll because it activated a camera, rather than because of an e-tag’s presence.

• Minimum expenditure amount in tolls for a previous financial year (cl 3). The Order does not itself define different thresholds; instead it adopts the meanings used in clause 127A of the Regulation for registration fee waivers (clause 127A) and in clause 5 of the Motor Vehicles Taxation Regulation 2016 for motor vehicle tax exemptions. Therefore the Order’s operation is hinged to those external definitions, and it supplies only the counting method to determine whether the externally-defined threshold has been met.

• M5 Cashback Scheme (cl 3). The Order identifies the M5 Cashback Scheme as a specific NSW Government programme enabling participants to claim back tolls paid on the M5 South-West Motorway, and it expressly excludes tolls refunded under that Scheme from counting toward the minimum expenditure amount (cls 4A(3), 5(3), 6(3)).

• Methods for different account types (cls 4A, 5, 6). The Order distinguishes between three basic situations:

  • accounts with more than one e-tag for the 2017-2018 year (special rule in cl 4A),
  • accounts with e-tags for any previous financial year (cl 5), and
  • accounts with no e-tags (cl 6).

• Administrative discretion to aggregate e-tags (cl 5A). The Authority may treat two or more e-tags as one for calculating the minimum expenditure amount under cl 4A, including where one e-tag has been replaced by another.

The Order affects a narrow set of parties because it deals solely with the mechanics of counting tolls for a statutory minimum-expenditure test. The direct effects fall to the following actors:

• Tolling account holders and registered vehicle owners. The primary effect is on account holders whose toll payments are relevant to meeting the minimum expenditure amount for the previous financial year under clause 127A of the Regulation. How their tolls are characterised by e-tag matching or photograph matching, and whether they have participated in the M5 Cashback Scheme, will determine which tolls can be counted (cls 3, 4, 4A, 5, 6).

• Toll service providers. The Order applies only to tolls paid using a tolling account (cl 4). Toll service providers supply those accounts and maintain records that will be necessary to identify e-tag matched and photograph matched tolls and to report amounts. While the Order does not impose explicit recordkeeping requirements on toll service providers, the mechanics it prescribes require that providers be able to identify and distinguish e-tag matched and photograph matched transactions for specific accounts and financial years (cl 3 definition of e-tag and photograph matched vehicle).

• The Authority. The Order gives the Authority a decision-making role under cl 5A: the Authority may treat two or more e-tags as one e-tag in calculating the minimum expenditure amount under cl 4A if it determines it is appropriate (cl 5A(1)). The Order therefore places a discretionary interpretive function with the Authority for cases, for example, involving replacement tags (cl 5A(2)).

• Participants in the M5 Cashback Scheme. Registered participants in that Scheme are explicitly singled out. Any toll amounts they paid in connection with use of the relevant part of the M5 South-West Motorway cannot be counted toward the minimum expenditure amount (cls 4A(3), 5(3), 6(3)). That alters the arithmetic for those individuals or entities when establishing whether they meet the required threshold.

• Agencies administering registration fee waivers and motor vehicle tax exemptions. The minimum expenditure amount in tolls is defined with reference to different statutory regimes: it has the meaning given in clause 127A of the Regulation as to registration fee waivers, and in clause 5 of the Motor Vehicles Taxation Regulation 2016 as to exemptions or reductions of motor vehicle tax (cl 3). Agencies responsible for applying those concessions will be affected by how toll amounts are counted under this Order.

The Order is principally prescriptive about calculation methods and confers a limited administrative right to the Authority; it does not impose a broad set of duties or create explicit new rights beyond those calculation rules. The operative duties and rights that appear from the text are:

• Duty to use tolling accounts. The methods specified in the Order can only be used in respect of tolls paid using a tolling account (cl 4). Practically, that means any person seeking to have tolls count towards the minimum expenditure amount must ensure those tolls were charged to a tolling account as defined in cl 3.

• Duty to apply the specified counting rules. Administrators or applicants assessing whether the minimum expenditure amount has been reached for a previous financial year must apply the counting methods that the Order supplies for the relevant account type: the special 2017-2018 multi-e-tag rule (cl 4A), the general e-tag account rule (cl 5), or the no-e-tag rule (cl 6). Those methods dictate which transactions are eligible to be counted.

• Duty to exclude M5 Cashback amounts. In all relevant counting methods, any toll amount paid during the year by a registered participant in the M5 Cashback Scheme in connection with the relevant part of the M5 South-West Motorway cannot be counted towards the minimum expenditure amount (cls 4A(3), 5(3), 6(3)). The duty to exclude those amounts is absolute in the text.

• Administrative discretion vested in the Authority. The Authority has a positive right to determine that two or more e-tags may be treated as one for the purposes of calculating the minimum expenditure amount under cl 4A (cl 5A(1)). The Authority may take into account, among other things, whether an e-tag has been replaced by another (cl 5A(2)). That is a discretionary power rather than a duty to act, and the Order does not set out criteria beyond the example in cl 5A(2).

• Reliance on external definitions. The Order makes explicit that words or expressions used in the Order that are defined for the purposes of clause 127A of the Regulation have the same meanings as in that clause unless otherwise defined in the Order (cl 3(2)). Therefore, the rights to waivers or tax exemptions that depend on satisfying clause 127A or the Motor Vehicles Taxation Regulation 2016 are preserved but their application is constrained by the counting rules in this Order.

• No express recordkeeping or notice obligations. The Order does not, on its face, create express duties to retain records, provide information, or notify the Authority or toll service providers. However, compliance with the counting rules necessarily requires the ability to demonstrate which tolls were e-tag matched or photograph matched and whether M5 Cashback refunds were claimed. Those evidentiary duties will arise from the application of the counting method in practice and from underlying statutory processes applying clause 127A or related provisions.

The Order does not itself prescribe penalties, offences, sanctions, or a detailed enforcement regime within the text provided. There are no provisions in the Order that create criminal or civil penalties, nor are there procedural enforcement mechanisms such as infringement notices, administrative review steps, or audit powers expressed in this instrument. The enforcement implications in practice therefore arise from two sources indicated in the Order:

• Interaction with clause 127A of the Regulation and other statutes. The Order exists to provide the method required by clause 127A of the Regulation for calculating the minimum expenditure amount in tolls. Any penalties, consequences, or administrative enforcement mechanisms associated with failing to meet or correctly demonstrate the minimum expenditure amount will be those set out in the Regulation or in the statutes that use the minimum expenditure amount as an eligibility trigger. The Order itself does not reproduce or expand those enforcement provisions.

• Authority discretion and administrative determinations. The Order vests a discretion in the Authority to treat two or more e-tags as one for the purposes of calculating the minimum expenditure amount under cl 4A (cl 5A). That discretion implies that a party seeking to have multiple e-tags aggregated may apply to or otherwise interact with the Authority. The Order does not specify procedural rights of review, time limits, or the form of decisions the Authority must provide when exercising this power. Any enforceable decision-making framework, including internal review or appeal rights, will thus be found in the statutes or instruments establishing the Authority’s general decision-making processes rather than in this Order.

• Evidential and administrative consequences. Although the Order has no penalty provisions, its counting rules will have practical consequences for access to registration fee waivers or motor vehicle tax exemptions, which are consequences established under other instruments. Where an applicant’s calculation under the Order fails to meet the required minimum expenditure amount, the applicant will be ineligible for the relevant concession; such ineligibility may have fiscal or administrative consequences. The Order does not set out appeals procedures against such determinations; those processes will be governed by the primary instruments that confer the concessions and the general administrative law framework.

• Absence of express compliance or audit powers. The Order contains no express audit or disclosure powers directed to toll service providers, account holders, or the Authority beyond the counting methods themselves. Enforcement and compliance monitoring therefore depend on the wider legal framework in which clause 127A and associated tax or registration waiver regimes operate.

The Order is explicitly designed to operate within an existing statutory framework and repeatedly cross-references other instruments for definitions and substantive meaning. Its textual interactions with other laws are as follows:

• Connection to clause 127A of the Regulation (Road Transport (Vehicle Registration) Regulation 2017). The Order exists to specify the method to be used for the purposes of clause 127A in calculating the minimum expenditure amount in tolls for the previous financial year (cl 5 introductory wording and cl 4A(1)). The Order does not replace clause 127A; it supplies the computational rules that clause 127A requires administrators to apply. Words or expressions defined in clause 127A are used with the same meanings in the Order unless otherwise defined (cl 3(2)).

• Motor Vehicles Taxation Regulation 2016. For the purpose of motor vehicle tax exemptions or 50% reductions, the phrase “minimum expenditure amount in tolls for a previous financial year” has the meaning given in clause 5 of the Motor Vehicles Taxation Regulation 2016 (cl 3 definition). Thus the Order’s counting rules affect eligibility for motor vehicle tax concessions that rely on that external definition.

• Roads Regulation 2018 (toll service provider definition). The Order adopts the definition of “toll service provider” from clause 78 of the Roads Regulation 2018 by reference (cl 3). That ties the identity of account providers to the roads/toll regulatory regime and implies that tolling accounts and accounts’ legal treatment remain subject to the Roads Regulation and any obligations it imposes.

• Roads Act 1993 and the meaning of toll. The Order’s note refers to the definition of “toll” in clause 127A of the Regulation, which in turn takes “toll” to mean a toll levied in connection with use of a tollway, bridge, tunnel or road-ferry within the meaning of the Roads Act 1993, excluding administrative charges or fees paid in connection with the toll or a tolling account (cl 3 note). Therefore the Order excludes those administrative charges from the calculation indirectly by cross-reference.

• Road Transport Act and Interpretation Act 1987. The Order notes that the Act and the Interpretation Act 1987 contain definitions and other provisions that affect interpretation and application (cl 3 note). This indicates that principles of statutory construction, application of definition hierarchies, and any relevant machinery in the enabling Act will operate alongside the Order.

The Order’s own text records a set of amendments and insertions made after its original commencement. The amendment notes in the clauses indicate the following changes by reference to amending instruments and schedule items:

• Clause 3: The definitions clause records amendments in 2019, cited as "Am 2019 (198), Sch 1 [1]-[3]". That indicates that definitions in cl 3 were amended or supplemented by the 2019 amending instrument identified in the Order.

• Clause 4A: This clause was inserted in 2018, cited as "Ins 2018 (281), Sch 1 [1]". Clause 4A provides the special method for calculating the minimum expenditure amount for tolling accounts with more than one e-tag for the 2017-2018 financial year.

• Clause 5: The main method for accounts with e-tags records amendments in 2019, cited as "Am 2019 (198), Sch 1 [4] [5]". This indicates that the content of cl 5 as printed has been altered by the 2019 instrument.

• Clause 5A: This clause was inserted in 2018, cited as "Ins 2018 (281), Sch 1 [2]". It was later amended in 2019, cited as "Am 2019 (198), Sch 1 [6]". Clause 5A gives the Authority the discretion to treat two or more e-tags as one for calculation purposes and provides the example of tag replacement.

• Clause 6: The method for accounts without e-tags was amended in 2019, cited as "Am 2019 (198), Sch 1 [7]".

• Commencement: The Order commenced on 16 April 2018 (cl 2). The Order’s name is recorded in cl 1.

These amendment notes in each clause are the only amendment-history material present in the Order text supplied. They identify the years, amending instrument numbers and schedule items but do not reproduce the amending instruments themselves. The notes show that the Order has been subject to iterative refinement in 2018 and further amendments in 2019, notably inserting cl 4A and cl 5A in 2018 and then making other adjustments in 2019. The Order does not provide explanatory notes about the policy reasons for each amendment within the text itself; it simply records the amending citations.

Where assessing practical effect, users should consult the amending instruments cited (2018 (281) Sch 1 items and 2019 (198) Sch 1 items) to trace precisely what language was added or altered at each step. The Order itself contains no consolidated history of commencement dates for specific amended provisions beyond the overall commencement date of the instrument and the inline amendment citations.

The text of the Order supplied does not record any litigation history. There are no case references, reported decisions, or notes of judicial consideration included in the instrument. Consequently, within the four corners of this Order the following points hold:

• No judicial interpretive guidance is recorded in the Order. The Order does not include references to court or tribunal decisions addressing its provisions or their interaction with clause 127A of the Regulation.

• No administrative review precedents are cited. The Order contains no statement of prior administrative determinations, and the text does not identify any prior disputes or appeals arising from its operation.

• Practical implication for practitioners. Because the Order itself does not include litigation history, any interpretive issues arising from ambiguous phrases, the Authority’s exercise of discretion under cl 5A, or the application of the counting rules in complex factual patterns are not addressed by this instrument. To locate any judicial or tribunal treatment of disputes under the counting rules, a user must search external legal databases, the decisions of courts and tribunals, and published determinations under the Regulation and associated instruments.

• Absence of recorded precedent increases reliance on statutory text and agency practice. In the absence of recorded litigation references in the Order, administrators and affected parties must rely on the text of the Order, the definitions imported from clause 127A and other regulations, and any administrative guidance issued by the Authority or the agencies administering registration fee waivers and motor vehicle tax concessions. Where the Authority has a discretion under cl 5A, the absence of reported decisions means that applicants cannot point to established criteria or settled precedent within the Order itself for how that discretion has been exercised.

• Where disputes arise they will be addressed under the applicable judicial or administrative review mechanisms relevant to the Regulation and the Authority’s enabling statute, not under this Order directly. Parties should seek primary materials,Regulation clause 127A, the Motor Vehicles Taxation Regulation 2016, any policy statements or administrative guidelines, and any reported decisions,to understand how disputes about counting have been resolved in practice.

Because no litigation history is recorded in the instrument provided, the Order should be treated as a technical rule that may yet be subject to judicial or administrative interpretation, but any such interpretations fall outside the text and must be sourced elsewhere.

The Order’s brevity and reliance on cross-references create several practical traps and interpretive issues that practitioners should note. These are concrete mechanisms and points of friction that arise from the Order’s wording:

• Counting limited to tolls paid via a tolling account (cl 4). The Order’s methods apply only to tolls paid with a tolling account. Cash payments, third-party payments not routed through a tolling account, or tolls paid using non-account mechanisms are excluded from these counting methods. Parties seeking to meet the minimum expenditure amount must ensure their tolls were charged to a qualifying tolling account.

• Distinction between e-tag matched and photograph matched vehicles (cl 3 and cls 5-6). The Order differentiates tolls attributable to an e-tag present in or with a vehicle from those identified by camera activation. For accounts with e-tags, both e-tag matched and photograph matched tolls may be counted (cl 5(2)(a)-(b)). For accounts without e-tags, only photograph matched tolls can be counted (cl 6(2)). Misclassification or lack of clear records distinguishing these categories will affect calculations.

• 2017-2018 multi-e-tag special rule (cl 4A). For the 2017-2018 financial year, where an account had more than one e-tag, only the amounts of tolls paid in respect of the two e-tags that incurred the greatest amount of tolls can be counted, plus any photograph matched tolls (cl 4A(2)). Practitioners should not assume that all e-tag tolls are additive for that year; the cap to two highest-spending tags is an explicit limit.

• Authority discretion to treat tags as one (cl 5A). The Authority may treat two or more e-tags as one e-tag for the purposes of cl 4A. That discretion is not constrained in the Order by procedural detail or criteria besides the example of replacement tags (cl 5A(2)). Parties relying on aggregating multiple tags must seek an Authority determination, and the Order provides no timetable or decision-making process.

• Exclusion of M5 Cashback amounts (cls 4A(3), 5(3), 6(3)). Any toll paid during the year by a registered participant in the M5 Cashback Scheme in connection with the M5 South-West Motorway cannot be counted. The exclusion is specific and absolute. Claimants must identify whether any tolls were paid under that Scheme to ensure correct exclusion.

• Definitions imported from other instruments (cl 3). The Order imports meanings from clause 127A of the Regulation and clause 5 of the Motor Vehicles Taxation Regulation 2016. Those external definitions will determine thresholds, the exact meaning of “toll”, and other key terms. Failure to reconcile the Order’s counting method with the external definitions may lead to incorrect calculations.

Compliance with this Order is task-specific and mostly evidentiary: it requires using the correct counting method for the account type, excluding specified cashback amounts, and engaging the Authority where tag aggregation is needed. Concrete steps for affected parties and administrators are as follows, grounded in the Order’s provisions:

1. Ensure tolls are paid through a tolling account (cl 4). The methods in the Order apply only to tolls charged to a tolling account. If a person wishes to have tolls counted toward the minimum expenditure amount, they must ensure those tolls were incurred on and charged to a tolling account as defined in cl 3.

2. Distinguish e-tag matched versus photograph matched transactions (cl 3, cls 5-6). Maintain records that clearly identify which transactions were e-tag matched and which were photograph matched. For accounts with e-tags, both categories may be counted (cl 5(2)). For accounts without e-tags, only photograph matched tolls can be counted (cl 6(2)).

3. For 2017-2018 multi-e-tag accounts, apply the two-highest-tag rule (cl 4A(2)). If a tolling account had more than one e-tag during 2017-2018, count only the tolls paid in respect of the two e-tags that incurred the greatest amounts in that financial year, plus any photograph matched tolls. Prepare to demonstrate which two e-tags meet that criterion using toll service provider records.

4. Exclude M5 Cashback amounts (cls 4A(3), 5(3), 6(3)). Identify any toll payments during the relevant year by registered participants in the M5 Cashback Scheme for the relevant part of the M5 South-West Motorway, and exclude those amounts from the calculation. Retain evidence of participation in the Scheme and the amounts refunded or claimed.

5. Where multiple e-tags should be treated as one, apply to the Authority under cl 5A. If two or more e-tags ought to be treated as a single e-tag for the purposes of cl 4A,for example, because an e-tag was replaced,seek a determination from the Authority under cl 5A(1)-(2). Prepare factual evidence of tag replacement, account linkage, and timelines to support the requested treatment.

6. Reconcile calculations with definitions in external instruments (cl 3). Since the Order adopts meanings from clause 127A of the Regulation and clause 5 of the Motor Vehicles Taxation Regulation 2016, ensure that the counting method is applied against the correct external threshold and that the definition of “toll” used in the Regulation is respected (for example, excluding administrative charges).