Defences

	So you want to take it further!
	Accept the fine on the condition that proof of claim can be provided
	Object to the fine
	Legislative Framework for the Alleged Offence
	Does the National Measurement Act 1960 apply?
	Is the speedometer accuracy legislated?
	Defence of Honest & Reasonable Mistake
	Challenge to the accuracy of a speed detection device
	Need some help?

What is your defence argument?

The accuracy of the speed measuring device (speed camera or radar device) is challenged in regard to its capacity to measure in accordance with the Australian legal units of measurement, in this case velocity and speed.

Specifically this means that the speed measuring device should:

be certified as a measuring instrument under the National Measurement Act 1960, by an appointed legal metrology certifying authority appointed by the Australian Government Department of Industry, Tourism and Resources, National Measurement Institute (NMI).
have a Certification Certificate issued by an authorised certifying authority, normally NATA accredited.
have an approved pattern of measurement. To apply for pattern approval of a measuring instrument, a test report should be obtained from an approving authority and an application for pattern approval should be submitted to NMI. Once approval is granted the Chief Metrologist issues a pattern approval certificate.
have a Verification Certificate (certifying that the device is calibrated and operating correctly) issued by an authorised verfiying authority, normally NATA accredited.

This leads to a fairly obvious question: Have the speed measuring devices been certified as outlined above?

Does the National Measurement Act apply to a State?

The Australian Constitution states:

5. This Act, and all laws made by the Parliament of the Commonwealth under the Constitution, shall be binding on the courts, judges, and people of every State and of every part of the Commonwealth, notwithstanding anything in the laws of any State; ..... (you can read this here)

51. The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to: - (xv.) Weights and measures: (you can read this here)

109. When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid. (you can read this here)

This is what the National Measurement Act 1960 and its associated Regulations state:

The National Measurement Act 1960 (you read about it and download it here) states under:

Part II - Units and standards of measurement, 7 Australian legal units of measurement (page 8) that:

“Subject to subsection 7A(2), the Australian legal units of measurement of a physical quantity are the sole legal units of measurement of that physical quantity.”

Part II - Units and standards of measurement, 10 Measurements to be ascertained in accordance with appropriate standards of measurement, certified reference materials or certified measuring instruments (page 10) that:

"When, for any legal purpose, it is necessary to ascertain whether a measurement of a physical quantity for which there are Australian legal units of measurement has been made or is being made in terms of those units, that fact shall be ascertained by means of, by reference to, by comparison with or by derivation from:....

(h) a certified measuring instrument;

Part I—Preliminary, 3 Interpretation, states:

certified measuring instrument means a measuring instrument that has been certified in accordance with the regulations.

National Measurement Regulations 1999 Statutory Rules 1999 No. 110 as amended and made under the National Measurement Act 1960 state:

Part I—Preliminary, 3 Interpretation, states:

legal measuring instrument means a measuring instrument used, or intended for use, in the determination of a physical quantity:
(a) for:
(i) law enforcement; or
(ii) demonstrating compliance, or lack of compliance, with a law of the Commonwealth or of a State or Territory; or
(b) that is, or may be, relevant to a proceeding in which the quantity is an issue.

The Regulations then go on to define requirements with respect to legal measuring instruments for:

60 Approval of patterns of measuring instruments
63 Certificates of approval
65 Re-examination of approved patterns
67 Grounds for canceling and varying approvals other than on application

And generally for:

54 Marking of reference materials
55 Matters to be stated in certificates
72 Application for appointment of verifying or certifying author

Does the National Measurement Act apply to the Victorian Road Safety Act?

It is interesting to note the following:

In the Victorian Road Safety Act 1986 the word "speed" is used 73 times.
In the Road Safety (General) Regulations 1999 the word "speed" is used 89 times.
In neither of the above documents is there a definition of "speed".
The definition of "speed" is found in the National Measurement Regulations 1999 in Schedule 1 - Australian legal units of measurement, Part 4 - Additional derived units of measurement, item 4.17 where velocity and speed is defined as a base unit of metre per second (m/s)

A conclusion that can be drawn is that if the Victorian Road Safety Act contains statements such as "an excessive speed infringement under section 89A of the Act", then the definition of the word "speed" is fundamental to the application of the Victorian Road Safety Act.

If the definition of "speed" is with in the National Measurement Regulations, then those Regulations and Act must underpin the Victorian Road Safety Act. Consequently any requirements of the National Measurement Act and Regulations must apply.

It is also interesting to note that whilst the Victorian Road Safety (General) Regulations contain a section titled "306. Testing of speed measuring devices", this section does not preclude the National Measurement Act or specify an alternative testing standard. The Victorian Road Safety Act and Regulations are silent on the qualifications of the testers and details of any tests to be undertaken, rather they only specify required accuracy.

Who can Certify & Test Speed Measuring Devices?

Commonwealth Government

This is what the National Measurements Institute say about Measurement legislation:

Legal metrology comprises all measurements carried out for any legal purpose and includes measurements that are subject to regulation by law or government decree.

The Commonwealth has a constitutional head of power for 'weights and measures'. This is set out in section 51 (xv) of the Constitution.

The National Measurement Act, its Regulations and Guidelines, together with state and territory legislation, provide a legal framework for the measurement system.

National Measurements Institute

This is what the National Measurements Institute say about themselves on their web site:

The National Measurement Institute (NMI), a division within the Department of Industry, Tourism and Resources, is responsible for Australia's national infrastructure in physical, chemical, biological and legal measurements. Under the National Measurement Act 1960, NMI is responsible for coordinating Australia’s national measurement system,...

The Chief Executive Officer of NMI reports to the Minister for Industry, Tourism and Resources through the Secretary of the Department. The Chief Metrologist provides scientific leadership and takes responsibility for specific functions in metrology.

As the Chief Metrologist and NMI cannot itself carry out all the work of pattern approval testing, cerifying and producing certified reference materials, certifying measuring instruments, verifying utility meters and verifying reference standards of measurement, the Regulations allow for the appointment of authorities to do this work.

National Association of Testing Authorities, Australia (N.A.T.A.)

This is what N.A.T.A say about themselves on their web site:

The National Association of Testing Authorities, Australia (NATA) is the national organisation for conformity assessment of technical operations such as laboratories, inspection bodies and reference material producers. By way of a Memorandum of Understanding, the Commonwealth Government recognises NATA as the sole national accreditation body for establishing and maintaining competent laboratory practice. NATA also represents Australia in the International Laboratory Accreditation Cooperation (ILAC), the Asia Pacific Laboratory Accreditation Cooperation (APLAC) and on the OECD1 Working Group on Good Laboratory Practice.

What does the Victorian Government think of N.A.T.A?

On the 23rd September 2004, the Victorian Premier Hon Steve Bracks signed a Memorandum of Understanding between the State of Victoria and the National Associated of Testing Authorities, Australia. You can view a copy here...

This document includes the following statements:

B(v) In 1984, the Victorian Government formally determined that all test results produced in private laboratories and submitted to government departments or agencies for statutory purposes, in general, should carry a NATA endorsement.
B(vi) The State of Victoria, along with the other States and Territories and the Commonwealth, was a party to the 1990 Agreement on Standards, Accreditation and Quality which included recognition of NATA’s role as the national authority for the accreditation of laboratories.
3.8 NATA will assist the Victorian Government to assist the Commonwealth Government where possible in pursuing the objectives of the National Measurement Act 1960 (Cth), including by:

(ii) Collaborating with the Victorian Department of Justice in matters pertaining to legal weights and measures;
4.1 The State of Victoria recognises NATA as Australia’s national authority for the accreditation of laboratories that conduct tests and measurements in all technical fields...
4.2 To the maximum extent practicable, departments and agencies of the State of Victoria, to satisfy their own testing needs, will use NATA accredited laboratories or laboratories accredited by organisations with which NATA has a mutual recognition agreement.
4.5 All Victorian department and agency laboratories whose principal function is to provide testing services to either Government or outside agencies will be encouraged by the State of Victoria to obtain and maintain accreditation by NATA.

When considering all of the above, you have to wonder why the organisations testing speed measurement devices for the Victorian Government are not N.A.T.A certified.