Legal Beagle by Graeme Edgeler

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Legal Beagle: Necessity: or the Sky is Falling

15 Responses

  • SteveH,

    I really don't understand the "safety" justification for making law change retrospective. How exactly does invalidating old tickets make the anything less safe? To whatever degree speeding is dangerous, it's dangerous whether or not the speeder is caught and fined, surely?

    Since Sep 2009 • 444 posts Report Reply

  • Andrew Geddis,

    I reckon very few people would actually have appealed five- or ten-year-old speeding fines (it was a fair cop, even if the posted limits had expired), but the Minister of Transport has said this wasn’t about revenue, but safety. Well, even if there aren’t speed limits, dangerous driving would still be illegal, and careless driving would still be illegal, so driving at 150km/h in a school zone would not suddenly go unpunished.

    First of all, driving at 150 km/h was still unlawful irrespective of the status of the councils' speed limits - open road (100 km/h) and urban (50 km/h) speed limits are set by Land Transport Rules, not councils (https://www.nzta.govt.nz/resources/rules/setting-speed-limits-2003/#23). So if a given Council's different speed limits (i.e. a 40 km/h limit near schools; 80 km/h limit on a rural road) were invalid, the limit would default to these (still valid) ones.

    Second, there is precisely no "safety" issue involved with retrospectively validating the speed zones. None whatsoever. There probably is with regard to validating Council set speed zones for the future. For instance, the rural road out to my house is Council zoned 80 km/h for a reason - anyone who is led to believe by signs that they can drive it at 100 km/h will probably run off the road pretty quickly!

    However, Bridges doesn't want to be the guy on the radio saying "we should be allowed to keep the money that was taken off people for speeding even though it was unlawfully gathered". So he dresses the whole issue up as "safety" because, well, who doesn't like safety?

    Dunedin • Since Nov 2007 • 200 posts Report Reply

  • Rich of Observationz,

    anyone who is led to believe by signs that they can drive it at 100 km/h will probably run off the road pretty quickly

    That's why all vehicles are equipped with a large glass thing in front of the driver, so one can see what the road does and control the vehicle appropriately.

    Back in Wellington • Since Nov 2006 • 5550 posts Report Reply

  • Marcelo Rodriguez Ferrere,

    So I'm not convinced this was necessary.

    But that's not the test for urgency, is it? Otherwise the sky would be falling on a worryingly consistent basis, since it's increasingly being used as a default option (as detailed in the Urgency Project a few years back here). But despite all that, this really is quite an astonishing use of the mechanism; the safety justification even more so. Good post Graeme. Biggles should feature more in your writing.

    Dunedin • Since Nov 2006 • 33 posts Report Reply

  • Ian Dalziel, in reply to Rich of Observationz,

    roads collar...

    That’s why all vehicles are equipped with a large glass thing in front of the driver, so one can see what the road does and control the vehicle appropriately

    Hmm - there's always that loose nut behind the wheel to factor in...

    Christchurch • Since Dec 2006 • 7887 posts Report Reply

  • Andrew Geddis,

    That’s why all vehicles are equipped with a large glass thing in front of the driver, so one can see what the road does and control the vehicle appropriately.

    Of course, on that approach we don’t need set speed limits anywhere … just a general rule to “drive safely” – or, like Montana had until the late 1990’s, a requirement to drive at a “reasonable and prudent” speed. Some problems with that, but:

    (1) At least some people are over-confident about their driving abilities, and so will think they are driving in a safe or reasonable and prudent manner when in fact they are not. So a rule that says “no matter how good a driver you are, don’t go faster than 80 km/h here” counteracts that.

    (2) Deciding whether a given speed is “unsafe” or “unreasonable and imprudent” gives discretionary power to rule-enforcers … on (say) my stretch of road, one cop may say going 100 km/h is fine, another may say it isn’t and so ticket me.

    (3) Speed zones can form a sort-of “risk heuristic” – they can be a way of alerting drivers to what to expect on a given stretch of road. So if I’m driving along the open road in a 100 km/h zone, then come to an 80 km/h zone, it alerts me to the fact that road conditions have changed and that I really need to adjust my driving behaviour accordingly.

    None of which is to say that sticking to speed limits takes away a driver’s responsibility to drive safely – and that’s not what the law says either: http://legislation.govt.nz/act/public/1998/0110/latest/DLM435152.html

    Dunedin • Since Nov 2007 • 200 posts Report Reply

  • steven crawford,

    If they hadn’t changed the law retrospectively, drivers who had lost there licences, due to accumulating demerit points – might have started asking to have there demerit points credited. And there might have been requests for compensation for the humiliation of not being able to drive for the six mounths.

    Atlantis • Since Nov 2006 • 4310 posts Report Reply

  • Patrick Xavier,

    The feared consequences that had necessitated the passing of retrospective validating legislation had in fact occurred, because the validating legislation itself hadn’t done enough to fix the problem.

    Then there's AG v Spencer, referred to here.

    Since Nov 2006 • 49 posts Report Reply

  • Graeme Edgeler, in reply to steven crawford,

    If they hadn’t changed the law retrospectively, drivers who had lost there licences, due to accumulating demerit points – might have started asking to have there demerit points credited. And there might have been requests for compensation for the humiliation of not being able to drive for the six mounths.

    But would there have been many? And would most of them have been time-barred so they couldn't sue anyway, etc.?

    Wellington, New Zealand • Since Nov 2006 • 3202 posts Report Reply

  • steven crawford, in reply to Graeme Edgeler,

    And would most of them have been time-barred so they couldn’t sue anyway, etc.?

    I’m going to need legal advice about what that means :-)

    Atlantis • Since Nov 2006 • 4310 posts Report Reply

  • Graeme Edgeler, in reply to steven crawford,

    I’m going to need legal advice about what that means :-)

    There are time limits on how quickly you can sue someone, and how quickly you can challenge a ticket or appeal a conviction. Many of the people who would have been able to challenge their tickets (by eg saying the open road speed limit technically applied, so they weren't speeding) will have been too late to do much about it.

    Wellington, New Zealand • Since Nov 2006 • 3202 posts Report Reply

  • Rich of Observationz,

    I'd by right in thinking that this is ex-post-facto law and contrary to e.g. the ECHR? Or does the fact that it's an infringement rather than a crime put it outside this requirement?

    (I believe that e.g. English law doesn't have infringements. Even the most minor motoring offences are criminal, but they're dealt with by an infringement procedure where paying the fine settles the case)

    In somewhere like the US, or an EU country subject to the ECHR, they'd be unable to rectify an admin error like this, right and would just have to suck it up. (Or in the US case, send cops around the speeding motorists houses to shoot them in the head, as permitted (at least for non-white motorists) under the unwritten parts of the constitution).

    Back in Wellington • Since Nov 2006 • 5550 posts Report Reply

  • Rich of Observationz,

    Come to that, isn't this Act fairly firmly in conflict with S26 (1) of NZBORA? And I don't see an AG report in Hansard as required by S7 of that Act?

    I know the Bill of Strictly Optional and Tiresome Rights General Guidelines Only allows parliament to ignore any of the enshrined rights at will, but is the AG report also optional?

    Back in Wellington • Since Nov 2006 • 5550 posts Report Reply

  • Stuart Hoar,

    Graeme, you say that you opined but I think in fact that you averred.

    Auckland • Since Jul 2015 • 1 posts Report Reply

  • Graeme Edgeler, in reply to Stuart Hoar,

    Graeme, you say that you opined but I think in fact that you averred.

    Capt. W. E. John disagrees.

    Wellington, New Zealand • Since Nov 2006 • 3202 posts Report Reply

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