If you owed money to a plumber and ignored his bill, would you expect your state government to try and enforce the debt and also hit you with huge penalties? Of course not. Why? Because when you owe money to a person such as a tradesman, or to a company such as a store and you don't pay the debt, this is in the civil jurisdiction. There is no such thing as debtor's jail, as it was a century or two ago, where if you defaulted on a debt, you would be arrested and thrown into prison. So all debts in Australia that are between private entities such as people, business or companies are strictly matters for civil litigation and no government has any business being involved.
But it seems that toll road operators have managed to co-opt the services of state government to not only act as their debt collectors for toll payment defaults, but those governments have passed laws to enable them to impose penalties for toll defaulters and they are horrendous. This raises many questions as to the legality of the government's legitimacy in this.
The Australian Constitution is the highest law in Australia and any federal or state law that contravenes the Constitution is illegal. It is a fact that only arms of government can impose fines. A fine is a penalty issued for an offence, which is a criminal act against the laws of the nation or the state. But what is failure to pay a toll to a private company? This is certainly not a criminal act in any sense of the definition. In fact it is a civil debt that can be recovered in a civil court by way of Statement of Liquidated Claim against the debtor by the creditor.
So if state governments do not see fit to act as debt collectors for tradesmen and business whose customers don't pay their accounts, why on earth do those governments impose fines that are penalties for criminal offences. when not paying tolls to private toll road companies are certainly not criminal offences in the slightest? This not only seems anomalous but it appears that those state governments may be violating the highest law in the land, the Australian Constitution by this activity.
From the Fines Victoria website:
What does this tell us? Very simply, CCV is an arm of the Victorian government. Therefore it can process infringements for CRIMINAL matters, not civil debt matters.It is interesting to note that the website states that CCV sends fines on behalf of various issuing agencies. However, under the federal Imperial Acts Application Act, no fine or penalty can be imposed before conviction in a PROPER court, not that stupid Victorian Infringements Court that operates completely outside the auspices of the Australian Constitution, which happens to be the highest law in the land.
So if there can be no penalty or forfeiture imposed prior to conviction, those fines are essentially not worth the paper on which they are printed. That also applies to any other punitive measure, such as the addition of demerit points. People cannot be punished in any way until AFTER they have been taken before a criminal court of competent jurisdiction that is presided over by a magistrate with valid bonding certificate and Writ of Commission, are given the right to face their accusers and cross-examine them and present their evidence and any relevant material to the court and then are convicted of an offence. It's called due process of law and every state and legal jurisdiction are required to comply with this process.
All state governments have agencies that issue penalty notices and collect fines that are paid. These fines are imposed as punitive measures for traffic offences that are all criminal matters. But is it legal for a state government agency to accept and act upon the claims of private companies or corporations such as toll road operators, when a court of competent jurisdiction is not involved in imposing those penalties after cases have been properly heard, according to due process of law?
Then there is the matter of privacy. A toll road company is a private company and is bound by the Privacy Act, therefore should not be divulging any personal information about its customers to anybody else - and that includes the infringement bureaus of state governments. When motorists are using toll roads, they are essentially making commercial transactions with private toll road companies and therefore are entitled to their details, including their car registration numbers, remaining confidential.
A private company divulging customer data to a third party without those customers granting permission would be a breach of the Privacy Act, so why do toll road operators divulge the details of their customers to state government infringement bureaus? In any event, any debt allegedly owed by a motorist to a toll road operator can be recovered by way of Statement of Liquidated Claim in the civil courts, if the plaintiff can prove that the debt was incurred. There is no valid reason why an agency of a state government should ever be involved in a civil debt matter.
Self-proclaimed toll-buster Bob Jarvis has not paid a fee in three years despite making about 12 trips annually over the Gateway Bridge. The 68-year-old, who wants to use coins, has sent refusals to every fine and demand notice from Queensland Motorways since July 2011, to the point where they have stopped bothering.
"They don't even send me them (bills and warnings) any more," said Jarvis, a former Noosa councillor. "The last notice I received was June last year (2013) and I've driven over the Gateway many times since then." Whether he is driving his wife Joy's Toyota Starlet or Peugeot 306 or his new Nissan Pathfinder, he has been getting away without even a letter.
While most motorists accepted the switch to electronic payment in 2009, Jarvis is adamant that he has a right to pay by "gold and silver coins" and would rather go to jail. He also refuses to hand over credit card details or pay at other designated locations that would divert his trip.
His first fine in July 2011 was incurred as he approached the Gateway from the Sunshine Coast with a fistful of money, only to discover it was not a payment option. Since then, he has badgered Queensland Motorways, Queensland Transport and the State Penalties Enforcement Registry (SPER) with handwritten letters outlining his "constitutional right" to pay with actual money at the location of the charge.
"I was willing to pay toll fees in gold and silver coin as per the Australian Constitution, chapter V, the states, section 115 – 'A State shall not coin money, nor make anything but gold and silver coin a legal tender in payment of debts'," he quoted. "But the Queensland Motorways no longer have the facilities on the actual toll road for me to pay the toll in gold or silver coin."
In September 2012, Queensland Motorways dropped its court case against Jarvis for his outstanding fines, even though a hearing date was listed. However, he continued to receive new fines to which he responded with more letters repeating his position. The notices stopped in June 2013, even though Jarvis has made numerous trips to this day from his home in Noosa to the Gold Coast.
A Queensland Motorways spokesman would not comment on Mr Jarvis’s situation. The spokesman said that drivers had three days after a trip to fix an unpaid toll before extra fees were added. The first "unpaid toll notice" incurs a $7.71 fee before it rises to an extra $22.05 with a Notice of Demand. After 30 days, the problem is referred to SPER. "Once a Notice of Demand is referred to the State Penalty Enforcement Registry, Queensland Motorways has no further input in toll recovery process."
So why did Queensland Motorways not pursue Jarvis in court for the unpaid tolls? The answer is that Queensland Motorways would have lost badly and also alerted motorists that they could all drive on those toll roads if they were prepared to offer the tolls at the tolling points in the only legal tender that is acceptable for the payment of debts - gold and silver coins. As long as the Australian Constitution stipulates this, no toll road company can insist that motorists submit to electronic tolling.
What is a disgrace is that toll road debts that are civil debts are criminalised by state governments when they are referred to infringement bureaus. Toll roads are run by private companies and if those companies want to recover debts, they should be made to go through the normal process of lodging Statments of Liquidated Claim in the civil court jurisdiction. A plumber or electrician cannot refer debts to an infringement bureau and have those debts criminalised by fines and other penalties and neither should private toll road companies be able to do this. Every motorist who receives a fine from an infringement bureau for not paying a toll should immediately fight it on these grounds.
In December 2015, CARR received an email from a subscriber who was fed up with being ripped off by "penalty" charges imposed on his toll road account by the toll tag company Roam Express. It seems that either the toll tag provided by Roam Express or the tolling point equipment on the toll road did not register the toll and thus the subscriber was pemalised for the failure of equipment over which he had no control whatsoever.
So the subscriber decided to do what we should all do, when confronted with such ridiculous demands and fees - he send the following response back to Roam Express. His personal details have been deleted for privacy, but it is a magnificent response and really sticks it to the toll tag company and forces them to actually justify their demands and to prove everything that they say.
This letter is brilliant because it pushes the issue right back to the toll tag and toll road company to justify their ridiculous unjustifiable and illegal penalty system. Why illegal? It is simply because fees imposed on people because of something over which they have no control must be regarded as a penalty or a fine and only the federal or state government has the legal right to impose a fine. Even then, the government has to prove its case that the defendant actually did something wrong.
The really nice touch is that the CARR subscriber told Roam Express that he would not engage in constant correspondence over this issue and that he would charge Roam a fee for responding to their demands and obviously if Roam Express refused to pay such a fee, they would not get any answers, but just find themselves in court trying to defend themselves against demanding money with menaces and imposing charges that had never been agreed to by the CARR subscriber.
This is exactly how everybody who receives this sort of demand from toll tag or toll road companies should respond. Just stick it straight back to them and let them know that people are not going to put up with their crap. But of course the best thing to do is to follow the CARR mantra and avoid using toll roads completely. That way, there's never a problem with toll tags or tolling equipment because they will never be used.
Anybody who receives a penalty notice for failing to pay a toll on a private toll road from a state government agency such as SDRO in NSW, CCV in Victoria and SPER in Queensland, should immediately write (always do everything in writing) back to the penalty issuer and demand to know why the government is acting as a debt collector for a private company. They should remind the issuer that fines can only be imposed for criminal offences and failing to pay a debt to a private company is certainly not a criminal act and is something that is strictly within civil jurisdiction.