MOTORING: The Rule of Law is a two-way street

We must presume that the NTSA’s initial list of “minor” traffic offences is a work-in-progress – it still needs to be edited for accuracy of language, clarity of legal meaning,  and proof-reading for typographical errors and spelling mistakes.

Hopefully it will also be reviewed: • for what is on the list and should not be, and•  for what is not on the list but should be, and•  for bizarre anomalies in the levels of fines•  for the absence of countervailing obligations on road makers and law enforcers.

After all, this is an important document.  It plays a key role in our road transport system.  It also empowers some quite humbly qualified officials, mostly with limited motoring experience, to act as a unilateral witness, prosecutor, judge and executioner, with a mandate to relieve taxpayers of their hard-earned money.

That is not a level of authority to be granted lightly, nor ever to be granted with impunity.

The validity of the content of a law, the quality of its presentation, and the integrity of its enforcement  must be something the public can trust and believe in as the work of very experienced and thoroughly professional experts; people who recognise that the “rule of law” is not about the power-to-punish (that is just one tool) but the integrity of individual and social rights (that’s the core principle).

Leaving aside the initial errors, omissions and anomalies in the details (and there are many),  the first principle of the minor offences schedule  is not yet clear:  What determines whether any particular offence is “minor”?  Surely there must be some sort of definition – or how can policy or law hope to be consistent, fair and proportionate?

The global understanding of a minor (fixed-penalty) offence rests on three pillars: First, that the offence, in and of itself,  does not pose a real and present danger to other road users.

Second, that the offence is quite likely to be committed by simple mistake rather than a willful act of villainy.

Third, that the offence is objectively clear; not requiring any nuanced interpretation.

Certainly, the breach of any established rule can literally and legitimately be defined as an offence, but there are a great many rules which are predominantly “technical”, or inherently “harmless”, which even a law-abiding soul might transgress by mistake or by a modest margin or in mitigating contexts;  breaches which, in many circumstances, might be addressed by nothing more than a warning, or punished with a proportionately minor penalty. If that sounds like a reasonable basis to you, then some of the 38 items on the latest “First Schedule of Minor Offences” won’t…and you might wonder why hundreds of other minor and possibly unwitting misdemeanours (for some of which motorists suffer considerable harassment and cost) have been left out.

Measures to improve competence and compliance in our motoring system are welcome.   Bring ‘em on!  But where oh where is even the smallest shred of evidence to suggest that competence and compliance apply not only to those who use the roads, but also (and arguably even more so) to those who make them?  Can we please have  equivalent lists of fixed-penalty offences for road design, construction, maintenance, marking, signage, driver tuition, driver testing, and roadside traffic enforcement?  The “rule of law” is a two-way street.

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