A member asked almost 7 years ago

Road traffic (Admin) act

Could it be argued that section 35 in the road traffic (admin) act is inconsistent with our constitution and imperials application act, in the sense that our right to the presumption of innocence and the right to silence are non existent?

Law Advisor Research Team
Researchers at LawAdvisor

Hi there. You have raised an interesting question. As you know, Section 35 of the Road Traffic (Administration Act) 2008 deals with the duty to take reasonable measures to be able to comply with driver identity request. It is extremely unlikely that you would be successful in challenging this law for several reasons.


First, the presumption of innocence which you mentioned is the basis of your challenge is not a constitutional right. Instead, the origin of this legal principle comes from the Common Law. That means that rather than being written into the Constitution of Australia, it was a concept that developed over many years in Britain, and was eventually passed on to Australia through the Commonwealth legal system. This means that a constitutional challenge would not be possible.


The presumption of innocence is the basis of our adversarial system of trials, and so you are right in thinking it is important. In our justice system a criminal defendant is considered innocent until the prosecution are able to prove that he is guilty beyond reasonable doubt. Similarly, in the civil system, and defendant is considered innocent of any wrong doing until a plaintiff can prove on the balance of probability that they are liable for some damage or wrong. The power that police have to require an individual to provide identification does not go to a presumption of innocence or guilt, but is rather a power which allows police to ensure the administration of justice. If no person was required to identify themselves to the State, it would be impossible for the criminal justice system to work.


In addition, in order to challenge a law on the basis of constitutional invalidity you will have to seek special leave to appear in the High Court of Australia. This is because the High Court is the only court which may hear constitutional matters. Special leave is a special type of permission given by the High Court allowing you to bring your case before them. The High Court only hears cases in which there is an issue of broad public importance. It is unlikely that your concerns would pass this high threshold test, as it is clearly in the public interest that Police be able to properly identify individuals they suspect of committing an offence. If police did not have the power to know the identity of persons they believed to be committing an offence they would not be able to administer the law properly.


Suggested way forward

If you are still interested in exploring the possibility of a constitutional challenge, we recommend that you speak with a lawyer who is experienced in constitutional issues. By pressing the “Take Action” button – which will become available soon – LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Answered almost 7 years ago   Legal disclaimer

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