CARR Title

IMPORTANT INFORMATION

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The author asserts his right to publish this information in the public interest
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TAKE HEED OF THESE REPORTS

BEWARE OF POLICE IMPERSONATORS

On 26 February 2015, a young woman driver was pulled over by a man pretending to be a police officer on the NSW mid-north coast. The woman was driving on the Pacific Highway just north of Coffs Harbour, when she noticed a car behind her with a flashing red light on the dashboard.

After she pulled over, a man carrying a torch approached her car and asked to see her driverís licence. When she saw that his car had no number plate on the front, she drove away and reported the matter to police.

This is the second such report in the past few months of people impersonating police and pulling motorists over. What is very dangerous about this is that the motorists who fall for this scam are vulnerable to attack, rape and robbery.

What you need to know is this. You are NOT obliged to pull over for anybody, including police, if you think that there may be something suspicious or untoward. If you are pulled over by a person in what appears to be a police car, you are well within your rights to treat this with a great deal of suspicion and refuse to do so.

The best thing is to keep driving and try to find a police station and at the same time, call 000 and report to the emergency service that you suspect that a person who is trying to pull you over is not a police officer. Make sure to give the operator your exact location and direction of travel and make sure that all your car doors are locked and the windows are shut. If possible, try and note the number plate of the other car.

If it turns out that the person trying to pull you over is really a cop and he tries to berate or intimidate you or even try to book you for failing to stop, make sure you video record the encounter and tell the cop in no uncertain terms that you had no evidence that he was a real cop, just because he had flashing lights on his car. Anybody can go to Dick Smith or Jaycar and buy flashing blue and red strobe lights. Anybody can slap a magnetic sign saying "Police" on the sides of their car.

Tell him that in light of the cases of people impersonating police officers who were pulling people over, you had every right to be suspicious until you ascertained that he was the real thing and then you pulled over. Tell him that if he wants to make an issue of it, he can arrest you and then you will take the matter to court, have the charge thrown out and then proceed to sue him for wrongful arrest and other damages.

Police have certain powers, but they are certainly not unlimited. People also have the legal right to protect themselves against crooks and scammers. So always exercise those rights and ensure that when you are driving, you are always cognisant of safety issues and you take all the appropriate actions to keep yourself secure.

But please remember - ALWAYS video record every encounter with police, as you are legally entitled to do so in any public place. If a cop objects to this, tell him to look up the relevant laws and in most states, the police handbooks state that people have the right to record anything in public places. That video recording may be the evidence you need to beat a wrongful arrest or wrongful booking charge


NSW TRIES TO REMOVE LEGAL RIGHTS OF CITIZENS

In January 2015, it was announced by NSW Environment Minister Rob Stokes that litterbugs will face fines of up to $500 when dobbed in by fellow citizens unless they can prove they are innocent. Until now, infringement notices were only issued if offenders were caught directly by Environment Protection Authority officers, police or councils.

Under an overhaul of the Stateís pollution reporting system, the Government is empowering every citizen to report motorists flinging rubbish from their car windows. From March 2015, anyone reported to the litter hotline will face fines of up to $200 for individuals, $500 for lit cigarettes during fire bans and $900 for a corporation. The new rules mean motorists dobbed in to the hotline will be fined unless they can prove otherwise, Environment Minister Rob Stokes said.

Of course this is complete and utter nonsense from Rob Stokes. The truth is that this idiocy flies in the face of one of the fundamental pillars of our legal system, which is the guaranteed presumption of innocence. Here is an extract from the EPA Victoria website:

The driver of a vehicle is DEEMED to be guilty of an offence? Without being duly convicted of that offence in a court of law? When did Australia suddenly adopt the North Korean legal system? This is just utter crap, because a person is INNOCENT of any offence unless he has been convicted of it. And here is the proof that this deeming is just utter nonsense.

Here is an extract from the Australian Attorney-Generalís website.

So immediately we can see that what Rob Stokes said about motorists having to prove their innocence is just an utter load of garbage (pardon the pun). Any person who is accused of littering, whether the accusation comes from a policeman or fellow motorist, does not have to do one solitary thing to prove that he did not litter.

It is entirely up to the prosecution, in these cases the Environment Protection Authority, to prove their allegations beyond reasonable doubt in a court of law. Deeming somebody to be guilty of an offence without proving it cannot be sustained and nobody should ever swallow that crap.

Of course CARR advises people not to litter, however if you are accused of littering or any other offence for that matter, the most important thing to do is - ADMIT NOTHING. Donít argue the matter with anybody because if you do, invariably you will say something that can be used against you.

If you receive an infringement notice for littering, make a copy and send it back and state firmly that no fine or other penalty can be imposed until you are proven to be guilty of an offence in a duly constituted court of law and it is entirely the onus of the prosecution to prove its case beyond reasonable doubt.

Over the years, CARR has become increasingly annoyed at this attempted chipping away at the fundamental legal rights of Australians, whether it be by infringement notices that presume that motorists are guilty, to this idiocy by the NSW government that thinks that it can remove our guaranteed legal right to the presumption of innocence.

If we are accused of an offence - any offence whatsoever - we donít have to prove a damn thing. But the trick is to never make any admissions to anybody. So always remember that you have the right to silence and you canít go wrong if you donít give your accusers any ammunition. Donít ever forget that you have the legal right to silence, so always exercise this to the utmost.

The bottom line is that you should take absolutely no notice of this stupid attempt to remove your legal right to the presumption of innocence and donít pay one cent for any infringement until you are actually found guilty of an offence in a court of law.


RIDICULOUS NRMA CLAIM ABOUT SPEED AND RED LIGHT CAMERAS

In the December/January 2014 issue of the NRMA Open Road magazine, there is an article headlined, "Cameras For Safety, Not Money Raising". I was absolutely shocked by such false reporting, because for more than 8 years, I had researched these devices and came to the uinavoidable conclusion, backed up by hard evidence, that those cameras were only there to raise revenue. So I wrote the following email to the NRMA.

I will be most interested to see if the NRMA or anybody else takes up my challenge, however going on previous emails to the NRMA, I get the feeling that the people who wrote that ridiculously wrong article will duck for cover.


NSW MP DUCKS AND WEAVES ABOUT RADAR AND LASER DETECTORS

In September 2014, I wrote to Ray Williams, the Parliamentary Secretary for NSW Roads Minister Duncan Gay, asking why radar and laser detectors were banned. This is what I sent.

I will advise CARR subscribers as to what eventuates with this enquiry.


FREEDOM OF INFORMATION REQUEST FROM SOUTH AUSTRALIA

After South Australian motorist Adrian Goods was charged with vandalism for destroying 21 speed cameras around Adelaide in November 2013, the one thing that was predominant in all the news reports was how much revenue the South Australian governmnt had lost in the two weeks that those cameras were out of action. None of the news reports had anything about any reduction in accidents or lives saved, just comments about the $250,000 in lost revenue, as if that was all that mattered. And we all know that this was all that mattered.

So I sent an email to the South Australian government under the Freedom Of Information Act and asked for the road accident and fatality statistics between 01 November and 31 December 2013 that included a couple of weeks before, during and after the period that those speed cameras were inoperative. The idea would be to show if those cameras had made any difference to the accident and fatality rates when they were broken.

Obviously if it is found that there was a spike in accidents just in the two weeks that the cameras were inoperative, then we could conclude that they had some effect on the accident rate. But if there was virtually no difference across those six weeks, that included the two weeks that the cameras were inoperative, taking into account the increased holiday traffic, then we could conclude that the cameras did nothing except generate revenue. I already have a fair idea as to what the statistics will show, but some hard government figures will prove it.


MOTORIST PROVES THAT COPS WERE USING WRONG SPEED READINGS

A CARR subscriber sent an email that showed how police in Victoria tried to book a motorcycle rider for speeding by trying to assert that the pursuit speed of the police car was the speed that the motorcycle rider was travelling at. He wrote:

Police shall be sued for falsifying infringement notices.

I was booked by an undercover car apparently speeding at 108 kph in a 70 zone. Luckily I challenged the claim made by 2 officers, in using the police video as evidence and which showed a very different picture of the situation - https://www.youtube.com/watch?v=t15qAU597_g.

Unfortunately, the police judge had to admit that at no time the following vehicle did follow at the claimed speed for 3 seconds (TUPMED = Top Up Speed and Maintain Even Distance). It was correct that the top up speed was 108 kph, though this is the speed of the police vehicle heavily accelerating to catch-up. Both officers were aware Ė hence as such this is a malicious act that the police enforces on its citiziens. In other countries, police takes bribes from drug dealers, prostitutes and other criminals. In Australia, the corrupt revenue system is totally formalised and legalised in issuing invalid and doubtful infringement notices.

If you believe you are incorrectly booked, I can only recommend to gather related evidence first, which you are entitled to receive. Only then you shall make a judgement call to go to further pursue.

HOLDING MOBILE PHONES WHILE DRIVING DOES NOT CAUSE ACCIDENTS

All the propaganda that the government has trotted out to justify the laws making holding mobile phones while driving illegal had one purpose, to give police another avenue to raise revenue. For at least a decade, people drove around chatting on their mobile phones without a problem. I bought my first mobile phone back in 1996 and for at least 10 years, I drove around and talked on it without any issues or accidents because of this. Of course when it was made illegal to hold mobile phones, I bought a cradle and a Bluetooth hands-free kit and used that. My current car has integrated Bluetooth and I use that in conjunction of keeping my phone in a Clic-On cradle.

These constant attacks on mobile phone use in cars have to be resisted. A study from US Carnegie-Mellon University and the London School of Economics showed that there is no correlation between driving while holding a mobile phone and accident rates. That very comprehensive study is on the Downloads page - Bhargava Pathania Study - Talking on mobile phones while driving does not cause accidents.

So why do our state governments completely ignore such comprehensive research and impose laws that penalise motorists for doing something that is not dangerous at all? It's not hard to figure it out. It's just about raising revenue from fines. Every time I read the news, there seems to be some clown proposing more restrictions on motorists. The speed limit in the Sydney CBD is being reduced to 40 kph, not that anybody can actually drive at that speed because of the traffic, but that's not the point. The issue is that politicians, abetted by compliant motoring organisations, keep coming up with more and more ways to make the life of motorists miserable. This has to stop.

If anybody tells you that driving while holding a mobile phone and talking on it is dangerous, just shove that Bhargava Pathania Study at them and tell them to get an education. We need to fight our government at every step and stop them ripping us off.


FURTHER TO THE RIGHT TO REFUSE TO INCRIMINATE ONESELF

On 07 May 2014, I received a response from Ray Williams, parliamentary secretary to the Minister for Roads, Duncan Gay in regard to the common law right of people to refuse to provide anything that may tend to incriminate them. Yes folks, this is the same Duncan Gay who stated that although time-of-day tolling on the Sydney Harbour Bridge had not stopped congestion (as we all knew from the start), he would keep inflicting this iniquitous tolling for one reason only - because it added millions of dollars to state government coffers. That will give you an idea of the sort of person the Minister for Roads is, when he is capable of ripping off motorists in such a blatant manner. Here is that letter.

Thank you for your email to the Minister for Roads and Ports about breath and blood testing for drivers. The Minister has asked me to respond on his behalf.

Since its introduction over 30 years ago, random breath testing (RBT) has been a successful policy. It has progressively reduced drink driving and saved many lives.

The NSW Police Force has specific statutory powers to require a person to submit to breath and blood testing. Penalties apply where a person refuses to submit to the test or provide the sample. The drink driving provisions in the Road Transport Act 2013 very clearly convey Parliament's intention for police to conduct tests to enforce drink driving laws.

The NSW Government works to improve road safety for all road users. The 'Plan B' campaign reminds drivers the police can carry out breath testing at any time and place.

The government also recently announced tough new laws for repeat drink-driving offenders. Alcohol interlocks are electronic devices connected to a vehicle's ignition to prevent it from starting if the driver has been drinking. These devices will be made mandatory for high-range and repeat drink drive offenders.

If you have any further questions, Mr Liem Ngo, Manager Road Safety Strategy at the Centre for Road Safety, would be pleased to take your call on (02) 8265 7476. I hope this has been of assistance.

Yours sincerely,

Ray Williams MP
Parliamentary Secretary for Transport and Roads
Member for Hawkesbury

You will see that the response from Williams was nothing more than a pile of politically correct nonsense and he completely dodged every single question and issue that I raised. I didn't ask the Minister for Roads about how long random breath testing was in force. I didn't ask him about police statutory powers, but asked him to confirm that common law rights supersede those police powers, as indicated by a number of court precedents. I didn't ask him about Plan B, tough new laws, alcohol interlocks or anything else in that regard.

I merely pointed out various court precedents affirming a person's common law rights superseding statutory laws. I pointed out the statement by the NSW Law Reform Commission that a person has the right to refuse to provide anything that may tend to incriminate him. In light of these precedents and that statement, I asked the Minister for Roads a very simple question: Does a person have the right to refuse to submit to breath and blood alcohol testing on the grounds of self-incrimination? And all I got in return was a speech that did not address anything I asked.

One has to really wonder whether there is a special school for politicians, where they are taught to avoid answering legitimate questions from their constituents. As you can see by the letter from Williams, he ducked and weaved and filled his letter full of completely irrelevant crap instead of answering that one simple question with a yes or no. But I am not going to let him off the hook so easily.

So I immediately wrote back to Williams and demanded that he address my queries instead of handing me a load of bilge. I will also ring Liem Ngo as suggested and demand a firm answer to my question. However, my own conclusion is that going on precedents set in various courts that have not been overturned, coupled with the common law right of people to refuse to provide anything that may tend to incriminate them, such as breath tests or blood alcohol tests, I regard the coercive powers of police to force people to take such tests and penalise them if they refuse to be a gross violation of those common law rights to refuse self-incrimination. Punishing a person for upholding his legal rights is illegal in itself.

A precedent in law will have to be set by somebody. This will hinge on a person who receives a fine for refusing a breath or blood test taking the matter to court and has the penalty dismissed by proving that his common law rights supersede police statutory powers and that he has the legal right to refuse to provide breath or blood samples on the grounds that they may tend to incriminate him. Of course a court cannot deem a person to have been driving while under the influence of alcohol if there is no evidence in the form of breath or blood samples to prove it. Lack of evidence is not admissible evidence.


THE RIGHT TO REFUSE TO INCRIMINATE ONESELF

On 17 March 2014, I wrote to NSW Minister for Roads Duncan Gay to get clarification on an issue that arose in some legal material. The right for people to refuse to incriminate themselves is well-known and accepted as an important pillar of common law. This not only includes admissions and testimony, but the production of material that may incriminate a person. So I started to wonder about compulsory breath and blood alcohol testing. Here is that email:

As webmaster of Campaign Against Road Ripoffs (CARR), I am often confronted by questions from motorist that I try to research and answer. I have been asked a question in regard to roadside and police station breath tests and blood alcohol tests.

The current regime of breath and blood alcohol testing raises the issue of self-incrimination. According to various publications, this is what I have found:

From an on-line encyclopaedia:

Australia has no constitutional protection for the right to silence, but it is broadly recognized by State and Federal Crimes Acts and Codes and is regarded by the courts as an important common law right. In general, criminal suspects in Australia have the right to refuse to answer questions posed to them by police before trial and to refuse to give evidence at trial.

From the website of the Australian Government Law Reform Commission:

15.89 The common law privilege against self-incrimination entitles a person to refuse to answer any question, or produce any document, if the answer or the production would tend to incriminate that person.[123] Although broadly referred to as the privilege against self-incrimination, the concept encompasses three distinct privileges: a privilege against self-incrimination in criminal matters; a privilege against self-exposure to a civil or administrative penalty (including any monetary penalty which might be imposed by a court or an administrative authority, but excluding private civil proceedings for damages); and a privilege against self-exposure to the forfeiture of an existing right (which is less commonly invoked).

There are many more references to an Australian citizenís right to not incriminate himself or produce any document that may tend to incriminate him, but I think you get the idea. Which brings me to this:

There are statutory laws in NSW that compel motorists to submit to breath and blood alcohol testing if required and there are penalties if they refuse to do so. The issue is whether submitting to such testing is a violation of a personís right to refuse to incriminate himself. For instance, a person refusing to submit to a breath test to prevent him incriminating himself with his breath would be exactly the same as a person refusing to provide testimony or any other material that would incriminate him in any other crime. And of course driving under the influence of alcohol is certainly a crime.

Furthermore, according to a number of legal precedents, a citizenís common law rights supersede statutory laws. For example:

"There is no common law power vested in police giving them the unfettered right to stop or detain a person and seek identification details. Nor, is s.59 of the (Road Safety) Act a statutory source of such power.
Magistrate Duncan Reynolds - Melbourne - July 2013


It is an ancient principle of the Common Law that a person not under arrest has no obligation to stop for police, or answer their questions. And there is no statute that removes that right. The conferring of such a power on a police officer would be a substantial detraction from the fundamental freedoms which have been guaranteed to the citizen by the Common Law for centuries.
Judge Stephen Kaye Ė Melbourne Supreme Court ruling - 25 November 2011


These two court rulings state unequivocally that there is no statute that removes a common law right. Please note that the Victorian Director of Public Prosecutions appealed against the ruling by Magistrate Duncan Reynolds and the appeal failed. Therefore the precedent is established.

I would imagine that if the Australian Governmentís Law Reform Commission states that a personís right to refuse to produce any document if the production would tend to incriminate him could easily be construed to mean a breath or blood sample or indeed anything at all.

So the question needs to be answered - does a person have the right to refuse to submit to breath and blood alcohol testing on the grounds of self-incrimination?

I hope that you can clear this up for me with a definitive ruling that falls within the legal principles of the right of a person to refuse to incriminate himself without penalty.

Ziggy Zapata
Webmaster, Campaign Against Road Ripoffs
info@carr.org.au
www.carr.org.au

So logically, if a person has the right to refuse to incriminate himself or provide any material that would incriminate him, that would have to apply to breath and blood samples and even DNA. For instance, police cannot compel a person to hand over a document that may contain information that could prove that the person broke the law. So that would also apply to a breath or blood sample that would prove that a motorist broke the law by driving with a certain level of blood alcohol. From the above legal quotes and court precedents, I consider that this is exactly the case.

Although I am vehemently opposed to any motorist driving with any blood alcohol whatsoever, I am also concerned about the legal rights of people being upheld. Therefore, if the police cannot force a person to produce incriminating material, it is obvious that the current laws to compel motorists to submit to breath and blood tests are unenforceable. I will now await a response from the NSW Attorney-General to see what he has to say. In the meantime, I advise all motorists to always assert their legal rights under any circumstances.


POLICE POWERS CLARIFIED

Some time ago, I was made aware of some very interesting court rulings:

This principle was further stated in a court case in Victoria:

A very important thing to note that a person can only be placed under arrest if he has committed a crime or is reasonably suspected of doing so. For there to be a crime, there has to be a victim or injured party or a violation of contract. So if a person has not committed a crime, injured anybody or violated a contract, he should be free to go about his business without any form of harassment by police.

These rulings mean that if a person is signalled to stop by police, such as being pulled over and he is not actually under arrest at that moment, he has no legal obligation to stop at all. If a policeman forces a person to stop, that person is not required to give any details, such as stating his name or providing any identification material. If a person is stopped by a policeman, the first thing he should do is to ask if he is under arrest and if not, he can merely move on.

Although Supreme Court rulings do set precedents in all Australian jurisdictions, I wanted to have this clarified in writing, so I contacted the NSW Attorney-General and asked about police powers in regard to stopping citizens, detaining them and demanding anything from them.

The response from the Attorney-General did not specifically address the issues that I raised, but the response was enlightening in relation to vehicles. It seems Division 2 of the Law Enforcement (Powers and Responsibilities) Act 2002 NSW provides that a police officer who suspects ON REASONABLE GROUNDS that a vehicle is being, or was, or may have been used in or in connection with an indictable offence may require the identification of the driver and passengers to be disclosed. Division 4 of the Act provides that a police officer may request the removal of face coverings for identification purposes.

The power of police to stop, search and enter a vehicle and to erect roadblocks is provided in Division 5 of the Act. Obviously, the Act allegedly gives police the power to stop, search and enter a vehicle, however the ruling from Supreme Court Judge Kaye would tend to negate these powers. Logic dictates that if common law and that Supreme Court ruling means that a person does not have to stop for police if he is not actually under arrest, then police have to firstly arrest that person before he is able to be detained.

In his ruling in July 2013, Magistrate Duncan Reynolds stated, "Nor, is s.59 of the (Road Safety) Act a statutory source of such power." In other words, Magistrate Reynolds said that statutory laws do not trump or negate common law rights. This seems to be the case in those other court rulings and the fact that the appeal by the Director of Public Prosecutions against the judgement of Melbourne Supreme Court Judge Stephen Kaye on 25 November 2011 failed.

I fully support police who are performing their law enforcement role. However, I am very much against police performing their tax collecting role, as they do when they pretend to be enforcing speeding offences by hiding in bushes and snapping photos and then sending fines a month after the offence. Enforcement means trying to prevent an offence from happening or acting to stop it at the time it is happening, not taking happy snaps and allowing perpetrators to keep going. This is akin to police dealing with a bank robbery by taking photos of the robbers as they run out of the bank with their loot and then trying to find them one month later. This is not enforcement - it is nonsense.

So despite the Attorney-General's explanation, it seems that police must have reasonable grounds to even ask for a driver's identification. If speeding is not an indictable offence, then identification does not have to be disclosed. Removal of face coverings for identification purposes is fair enough - this stemmed from the infamous Carnita Matthews burqa incident and I support the police in every way in regard to removing burqas to identify drivers.

But I want motorists to know and uphold their legal rights and to understand that police do not have unfettered powers to stop and detain people without very good cause. Again, I remind all citizens that they should never talk to police, because anything they say can and may be used AGAINST them - never FOR them.


UNFAIR TOLL CHARGES MUST BE CHALLENGED

In April 2013, the NSW Roads and Maritime Services (RMB, formerly RTA) sent emails to all E-Toll tag holders, informing them that if their tags are not read by the tolling points on toll roads, whether it be from a malfunction of the tags or tolling point equipment, they will have to pay a fee, called a No Tag Fee.

This fee is simply preposterous, because the RMB will charge E-toll holders for the malfunction of its own equipment that is completely out of the control of the users. It is akin to motorists sending repair bills to the RMB if their cars break down on toll roads. Of course the RMB would not accept this nonsense, therefore motorists using E-toll tags should refuse to accept any charges because the RMB cannot maintain and operate its own equipment properly.

Every motorist who receives such a notice should reply immediately, stating that they will NOT accept being charged for the failure of equipment that they do not own or have no control over. Here is the text of such an email. Motorists should copy and paste it into an email and send it to the RMB and the NSW Minister for Roads, Duncan Gay.

Please understand that even if you are not in NSW, you will be hit with such charges if you drive in this state. Not only that, your own state might also be imposing such ridiculously unfair charges on your local toll roads, if you are crazy enough to drive on these money-grabbing mobile parking lots.


CLARIFICATION OF LAW REQUIRED

I received a very interesting document that seems to indicate that motorists do not have to stop for police or answer their questions until they have been arrested. In 2011, the following ruling was made in the Victorian Supreme Court.

In light of this ruling from one of the highest courts in the land, I wrote to the NSW Attorney General, asking for answers to the following questions:

I am firmly behind the principles of law and order, apart from the penchant of governments to use motorists as their cash cows by fleecing them with speed cameras that have never stopped an accident or fatality, or police who are being used by governments as their taxation collectors by engaging in the entrapment of motorists and not enforcement.

I understand that NSW has given the power to police to pull motorists over and demand certain things when they have not been placed under arrest, however it seems that the Constitution of Australia, the highest law in the nation, overrides these powers under the principle of Common Law, as this statement outlines:

Logically speaking, if Common Law as enshrined in the Australian Constitution is superior to NSW law, then those powers granted to NSW police to stop and demand anything from motorists unless they are arrested are null and void. This would apply to the police in all other states of Australia.


CHEAP GPS

Because of the amazing uptake of smartphones by Australians, many people are using Google Maps and Apple maps for their GPS requirements. The problem with these applications is that they both require data downloads to provide mapping data and if a data connection cannot be made, those GPS applications stop working. In other words, if you are travelling in areas where you cannot access a cellphone signal, Google Maps and Apple Maps are useless and don't work.

The obvious solution for smartphone owners is to acquire a standalone GPS application that has the entire Australia map on board. This requires no downloading of mapping data and as long as you can acquire the GPS satellites, you will be able to navigate using your smartphone. Now there are a couple of ways to get excellent GPS software onto iPhone and Android smartphones.

After some research, I have determined that the two most effective smartphone GPS applications are MetroView and TomTom. Essentially, both applications are available for iPhone and Android platforms and work much the same, however there are some significant differences that will certainly affect one's choice, as follows:

I consider that the MetroView application is superior to the TomTom application for a number of reasons, mainly cost. MetroView is a fifth of the price of the TomTom application and there is no need to purchase separate POI software to add speed and red light locations. For around $20, there is no excuse for motorists to not have a GPS with speed and red light camera warnings and completely avoid being booked by these highway robbers.


CONSUMER LAWS

Car dealers are notorious for trying to avoid their responsibilities under consumer protection legislation. Many car dealers will try and convince purchasers of lemons that motor vehicles are not covered by the same laws as other products. If they tell you this, they are lying. Under consumer protection laws, vehicles are no different than toasters and television sets.

So to assist motorists to deal with shonky car dealers who have sold them lemons, the current rules regarding consumer affairs and the rights of consumers to demand refunds and replacements are available on the CARR website on the Downloads page. However, here are the quick links:

Consumer Laws - Guarantees

Consumer Laws - Refunds And Replacements

In your own interest, please make yourself familiar with your legal rights as a consumer. Cars are very expensive items and nobody should ever have to tolerate or accept an obvious lemon.


NEW MOBILE PHONE RULES

The driver of a vehicle must not use a mobile phone while the vehicle is moving, or is stationary but not parked, unless:

(a) the phone is being used to make or receive a phone call (other than a text message, video message, email or similar communication) or to perform an audio playing function and the body of the phone:

(i) is secured in a mounting affixed to the vehicle while being so used, or

(ii) is not secured in a mounting affixed to the vehicle and is not being held by the driver, and the use of the phone does not require the driver, at any time while using it, to press anything on the body of the phone or to otherwise manipulate any part of the body of the phone, or

(b) the phone is functioning as a visual display unit that is being used as a driverís aid and the phone is secured in a mounting affixed to the vehicle, or

(c) the vehicle is an emergency vehicle or a police vehicle, or

(d) the driver is exempt from this rule under another law of this jurisdiction.

If for instance the phone is not being used as a GPS or any other visual display unit and does not need to be touched, it does not have to be mounted in a holder if calls can be made or received by other means such as Bluetooth.

I always advise drivers to use hands-free devices anyway, not because it is dangerous, but simply to avoid being booked. Using a mobile phone held to the ear while driving is not dangerous at all and is being done all over the world without problems. But governments have latched onto yet another way to rip off motorists by fining them for this so-called offence. A person driving and holding a mobile phone to his ear can be seen by police from a long distance and is the easiest thing to be booked for, yet it is the easiest penalty to avoid.

Any driver who has a Bluetooth equipped phone and does not have a Bluetooth car kit should buy one immediately and use it. These devices are not expensive. In fact Aldi occasionally sells a Bluetooth car device for $30 and that is around one-tenth of the penalty for getting caught holding a mobile phone to your ear while driving.

For those who do not have mobile phones with Bluetooth, maybe they should think about updating their phones and getting Bluetooth car kits.


PARKING OFFICERS CAUGHT FABRICATING INFRINGEMENTS

A news report has revealed that some council parking officers have devised a cunning way of fabricating photographs so that cars that are legally parked in fact appear to be illegally parked, thus generating more bookings for those parking officers. It all has to do with an optical principle and anybody who is into photography will understand how this scam is being perpetrated.

To keep it simple, what happens is that the longer the focal length of a lens, the less the depth perspective. In the case mentioned in the news item, the motorist's car was parked 25 metres from a school crossing. However, the council ranger used a telephoto lens to take a photograph of the front of the car and the foreground, making it appear as if the car was literally parked next to the school crossing.

There are a couple of ways to beat this scam. The best way is to use a car black box recorder that will automatically take a GPS located time and date-stamped video clip whenever the car is used. The clip can be produced as hard evidence to show that a motorist's car was indeed parked legally and that the council ranger's photo was deliberately taken with a telephoto lens in order to make the motorist's car appear to be parked illegally. Such evidence will also destroy the council ranger's testimony in court.

For motorists who do not yet possess car black box recorders, they should merely take time and date-stamped photographs of their parked cars with the cameras in their mobile phones. Virtually all mobile phones have built-in cameras and such photographs can be used to fight wrongful bookings.

Motorists always need to be in a position to have hard evidence, because police, governments and councils rely on the fact that most motorists who are booked have no way of showing that bookings were wrongful. The beauty of a car black box recorder is that it operates automatically all the time, gathering such evidence and storing it on a memory card. But even a photograph taken with a mobile phone is better than nothing.


RECORDING IN PUBLIC IS LEGAL

I believe that there is nothing better than hard evidence to prove wrongful bookings. Hearsay by a driver means almost nothing in a court of law, especially when the word of police tends to be believed over the word of a motorist, notwithstanding the fact that cops have an appallingly bad record of criminality, with one in every 40 police in NSW having a criminal record. Even more stupid is the fact that speed cameras and hand-held speed guns that are known to be defective and have gross inaccuracies are considered to be unimpeachable scientific instruments unless hard evidence is provided to show that they are not.

Nothing beats hard evidence in the form of video and audio recordings and the data from a car black box recorder that proves beyond doubt that a motorist that was doing 60 kph in a 60 kph zone but was booked by a defective speed camera or a cop at 80 kph was wrongly booked. With such hard evidence, motorists can easily go to court and not only have the bookings dismissed, but would most probably have grounds to sue the government for damages if they wished to go down that path.

So I made an enquiry to the NSW Government as to the legality of making such video and audio recordings to ascertain whether they could be used as evidence and whether police actually had the power to order motorists to stop recording them when being booked. Here is the response:

Dear Mr Zapata,

Thank you for your enquiry.

The Office of the Australian Information Commissioner (the Office) regulates the Privacy Act 1988 (Cth) (the Act) which sets out the manner in which Australian, ACT and Norfolk Island government agencies, and many private sector organisations, are to handle personal information.

The Act contains 10 National Privacy Principles (NPPs) which regulate the collection, security, use and disclosure, and access to personal information held by private organisations covered by the Act. However, the Act does not regulate the actions of individuals acting in their own capacity.

Section 7B(1) states the Act does not cover the collection, use and disclosure of personal information by an individual unless it is done in the course of running a business.

In this instance, if the motorist is recording the conversation in personal capacity, the actions would not come under the jurisdiction of the Act. It also depends if the content of the video footage meets the definition of personal information under the Act.

Personal information is defined in section 6 of the Act as:

Information or an opinion (including information or an opinion forming part of a database), whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion.

A person would need to be clearly identifiable in the footage or their name clearly visible to meet the definition of personal information under the Act.

Please be advised the Act is technology neutral and there are no specific sections relating to recording of conversations. There are State specific laws regarding surveillance devices (e.g. Surveillance Devices Act 2007 NSW) which may address issues such as recording in public spaces. You may wish to speak to the Department of Attorney-General and Justice NSW about the legislation.

As for the legality and the usage of the footage in a court case, the OAIC is unable to provide legal advice. We can only give general advice on the Privacy Act and how it may apply. You should seek independent legal advice on those issues.

I hope this information has been useful. If you require further assistance, please contact the Officeís Enquiries Line on 1300 363 992.

Yours sincerely

Trish
Enquiries Officer
Office of the Australian Information Commissioner

So without delving deeply into the nitty-gritty of using the recorded material as evidence in a court case, I personally can't see any problem in doing so. Unless evidence is obtained illegally, it is admissible in court and has to be taken into account by a magistrate or judge and jury.

I advise all motorists to always record any instance when you are pulled over and booked and don't take any crap from a policeman who tries to order you to stop recording. You have legal rights and you should exercise them in gathering any evidence that could assist you if you decide to challenge the booking in a court of law. Of course you should all have car black box recorders that will prove by video, audio and GPS data that a booking was wrongful. Most importantly, don't say anything that may incriminate you - in fact the best thing is to say nothing at all, apart from giving your name and address.


ABUSE OF LEGAL PROCESS WITH TRAFFIC FINES

There was a very important court case in Victoria involving a challenge to a speeding ticket that was won by the defendant. Without going into the details, essentially the defendant proved to the court that many aspects of the prosecution's evidence and the accuracy of the speed camera could be successfully challenged. But what really was important were the comments of the judge, setting a valuable precedent for challenging every traffic fine in Australia.

Victorian County Court Judge Duncan Allen noted during the hearing that speeding matters are treated as criminal matters and referenced the case of Liberato v The Queen (1985). As stated in the Liberato judgement, "it would be wrong to indicate that guilt or innocence turned upon a mere choice between two inconsistent versions".

Judge Allen stated in this particular case that as this was a criminal trial, the burden or obligation of proof of the guilt of the accused is placed squarely on the Crown. That burden rests upon the Crown in respect of every element or essential fact that makes up the offence with which the accused has been charged. That burden never shifts to the accused. There is no obligation whatsoever on the accused to prove any fact or issue that is in dispute before the court. It is of course not for the accused to prove their innocence, but for the Crown to establish their guilt.

This completely overturns any legitimacy of the laws that state that speed cameras are virtually infallible and that the accused have to prove that they are defective. The bottom line is that it is entirely up to the prosecution to show in every single case that the camera in question is indeed accurate ON THE DAY AND AT THE EXACT TIME THAT THE BOOKING WAS MADE, not just calibrated in a laboratory some time before, often weeks or months ago. As soon as a camera is removed from that laboratory, anything could happen to it to alter its accuracy and reliability, such as being bumped or dropped or installed badly.

Of course if the camera in question happens to be an operator-controlled mobile speed camera, then the credentials of the operator on the day have to be examined and the prosecution has to prove that the operator knew what he was doing when he set up the mobile camera, to ensure that it was positioned correctly and tested for absolute accuracy and a number of other factors. In the matter before Judge Allen, the prosecution could not prove any of this, thus the case was dismissed.

But the most important aspect of this case, which impinges on every single traffic offence booking in Australia is this. Judge Allen observed that a critical part of the criminal justice system is the presumption of innocence. What it means is that a person charged with a criminal offence is presumed to be innocent unless and until the Crown persuades a court that the person is guilty beyond reasonable doubt.

This literally means that every infringement notice sent to motorists is invalid and illegal, simply because it violates the presumption of innocence of motorists by imposing a fine and requires motorists to go to court to prove their innocence. In fact, every traffic violation has to be dealt with by summons and the motorist must be afforded the presumption of innocence from the beginning, not be deemed guilty of an offence and fined automatically.

Can you imagine the prosecution in every single case trying to prove that speed cameras were indeed accurate scientific instruments, when the government's own evidence shows that a large percentage of them are defective on any given day? If this was to happen, that would mean that most speed camera bookings would be thrown out of court and so many precedents set, that the entire speed camera regime would have to be scrapped.

In light of Judge Duncan Allen's ruling and comments in the Victorian County Court, every motorist who is booked by a speed camera should do the following:

Every motorist has legal rights and should exercise them, not just be a victim to government manipulation of the law. It is time to fight back using legal principles and precedents, such as the rulings and precedents set by Judge Duncan Allen. We need to fight every single booking by making it untenable for the government to rip us off.

So if you get any sort of speeding or red light camera ticket or even get booked by a cop, fight it all the way if you think that it is wrongful. Of course if you really did exceed the speed limit by a decent margin, you should cop the fine, but you should still challenge the accuracy of every booking made by fixed and mobile speed cameras and demand a trial by jury.


POWERS OF LOCAL GOVERNMENT

There has been much argument regarding the legal right of local councils to levy fines for parking and other traffic matters. A number of people have contacted me and stated that because local councils are a third tier of government that is not recognised by the Australian Constitution and that a referendum to recognise local councils in the Constitution was defeated in 1988, local councils do not have the power to levy fines.

Dr David Mitchell, who apparently is an expert on Constitutional matters, has indicated that that local government is in fact a means used by State Governments for exercising aspects of their own administrative governmental functions. Local government itself is created and maintained by State Government legislation, the geographic extent of local government districts is determined by the State Governments, the powers of councils are determined by and conferred by State Governments, the authority to make regulations is delegated and supervised by the State Governments, establishment of new councils and amalgamation of existing councils are matters for the State Governments.

In other words, local government bodies such as local councils have been delegated the right to perform all sorts of functions by virtue of legislation enacted by the states, so they do have the power to levy parking fines, among other things. Local councils do not have to be recognised in the Constitution, because essentially they are arms of state governments that are recognised.

However, there is a question as to the actual legality of the various Local Government Acts, as it seems that most of them, if not all, were passed without Royal Assent that is required to make such legislation enforceable. So anybody who is booked by a local council should examine whether that council actually has the legal power to levy fines in the first place by ascertaining whether their state's Local Government Act was actually given Royal Assent and if not, it is obviously invalid, along with any fine that councils in that state had issued.


SMARTPHONE GPS USE IN TASMANIA

After discovering that using GPS on smartphones was prohibited in Tasmania, I made representations to David O'Byrne, the Tasmanian Minister for Infrastructure and a few other portfolios. I pointed out that it was very illogical to prohibit motorists from using smartphone GPS on the grounds of alleged safety, because motorists could use standalone GPS receivers with Bluetooth linked to their phones and do exactly the same as GPS-enabled smartphones and make phone calls via their phones in their pockets. This negated the alleged safety concern.

I received a reply from O'Byrne, who stated that Tasmania follows a national process for approving Road Rules and this process has been followed in respect of the current version of Rule 300 that Tasmania adopted in November 2009. He claimed that despite what other jurisdictions may or may not have implemented, Rule 300 has been formally endorsed by Transport Ministers nationally.

The Tasmanian position that denies motorists with GPS-equipped smartphones to use the GPS function when driving, when they can quite legally use standalone GPS receivers with Bluetooth that literally converts these devices to GPS-equipped smartphones is insane and illogical. For instance, most of the TomTom GPS receivers not only can receive phone calls, but can initiate them from the GPS screen.

However, O'Byrne obviously refused to countenance changing his position. This puts Tasmanian drivers at a disadvantage when compared to their counterparts in other states, because if they want to use GPS, they have to purchase standalone GPS receivers, even if they have GPS-equipped smartphones. This is most unfair, especially when O'Byrne's position is so illogical and irrational.

I can only suggest that if a motorist in Tasmania is booked for navigating using a GPS-enabled smartphone, that he fights the infringement in court and proves to a magistrate that using a smartphone for this purpose is no different than using a standalone GPS receiver coupled via Bluetooth to his phone, thus rendering the device into a GPS-equipped smartphone. Hopefully a savvy magistrate will see the complete illogical position of the Tasmanian government and throw the infringement out and set a precedent that can be used by other motorists who are similarly booked.


ACCUSATIONS OF RED LIGHT CAMERA SCAM

I received an email from a person who claimed that in Victoria, there was an insidious practice of amber light shortening at various combined red light and speed camera emplacements, most notoriously the camera units at the corner of Springvale and Wellington Roads, Rowville and those at the corner of Stud and Wellington Roads, Mulgrave.

The informant stated that normally, induction loop-controlled intersection cameras have a light cycle which gives around a minute or so of green, followed by the internationally-recognised four seconds of amber and then red. Amber light shortening involves the light change cycle being alternated such that the light sequence sometimes gives only a few seconds of green, followed by two seconds of amber cycling immediately through to red, trapping motorists who have just taken off at normal speed to travel through the intersection, believing that there will be time for them to enter and exit the intersection safely.

This sneaky alteration to the light cycle at these intersections happens intermittently so that, to a casual observer, the light cycle appears normal until, after a varied lapse of time, the short cycle is switched on, tricking drivers travelling through the intersection at the time and rendering their ability to pull up almost impossible without causing a tail-end collision.

There are some very valid examples of this disgusting practice from the USA and Italy, as the following websites show:

Article from the US National Motorists Association

Article from Autoblog

Article at Loosewire

The article at Loosewire is particularly disturbing, because it reports than in Italy, Stefano Arrighetti, an engineering graduate from Genoa who created the "T-Redspeed" system, was under house arrest and 108 other people were under investigation after it was alleged that his intelligent lights were programmed to turn from amber to red in half the regulation time. The technology, which was adopted all over Italy, employs three cameras designed to assess the three-dimensional placement of vehicles passing a red light and store their number plates on a connected computer system.

Reducing the amber phase seems to be a widespread source of extra revenue. The National Motorists Association of America found six cities that have shortened the amber phase beyond the legal amount, apparently as a way to increase revenue. Of course this is blatant fraud of a monumental nature.

The informant stated to me that he will attempt to make videos of some of these intersections in Victoria where he suspects that amber lights have been programmed to operate at less than the 4-second interval. I look forward to receiving further information about this matter.