Excessive Speeding in Victoria

Under the Road Safety Act 1986 and the Road Safety (Drivers) Regulations 2009, you may be charged with the offence of excessive speed if the police find that you:

  • drove over the speed limit by more than 25km/h; or
  • went faster than 130km/h.

Harsh penalties apply for such an offence. There are automatic and mandatory licence suspension sentences for drivers who excessively speed. As per Schedule 5 of the Road Safety Act 1986, the table below provides the minimum licence suspension periods for a range of amounts over the speed limit.

Column 1

Speed of vehicle

Column 2

Minimum period

1. Exceed speed limit by 25 kilometres per hour or more, but less than 35 kilometres per hour. 1 month
2. Exceed speed limit by 35 kilometres per hour or more, but less than 45 kilometres per hour. 6 months
3. Exceed speed limit by 45 kilometres per hour or more. 12 months
4. Any speed of 130 kilometres per hour or more that is not covered by item 1, 2 or 3. 1 month

Normally, the magistrate may allow you to keep your licence. However, for excessive speed offences the magistrate is obliged to suspend the licence for the equivalent minimum period.

Whether you are found guilty or not depends on the facts and circumstances of your case. The police must prove that you were driving and drove over the speed limit.

Possible defences if you are charged with this offence include:

  • that you had to speed because of an emergency;
  • that you lost conscious while driving such as you had a seizure or a heart attack;
  • that the speed detector was faulty (you would need an expert to explain this in court);
  • that you have strong evidence to prove that you were not speeding.

It is not a defence:

  • To argue that you were running late to work or a function;
  • To say that your speedometer was not working;
  • Not knowing the speed limit.

If you find yourself charged with excessive speeding, please do not hesitate to contact our office for assistance.

By Guner Hussein, Solicitor at RSG Lawyers.

Footnotes available upon request.

 

Can I refuse a Breath Test?

In Victoria, a police member has the power to require you to undergo a Preliminary Breath Test (PBT) if they believe that you:

  • were or you are driving or in charge of a motor vehicle;
  • had driven a motor vehicle in the last 3 hours;
  • are sitting in the driver’s seat of a motor vehicle with the ignition turned on;
  • instructing or sitting next to a learner licence holder who is or was driving a motor vehicle.

Generally, you must comply with a police officer’s direction to conduct a Breath Test. Failure to do so is an offence and you could face a conviction with a penalty of a substantial fine and a disqualification of your licence for 2 years and possibly prison if you have prior drink driving offences or failures to comply.

There are some defences to refusing to undergo a Breath Test in Victoria. The main defence being the refusal for medical reasons, which requires substantial expert medical evidence. Further, if the police do not have lawful grounds for requiring you to undergo a PBT, then you may have a defence for refusing to comply.

It is always a good idea to comply with the directions of a police officer if they require you to undergo a Breath Test, as the consequences of refusing are quite severe. However, if you believe you have substantial grounds for your refusal you should seek legal advice immediately.

By Oguzhan Sheriff, Partner at RSG Lawyers.

Footnotes available upon request.

Consenting to a Medical Procedure – Part 1

In NSW and Victoria it is unlawful for a medical practitioner to treat an adult without their express consent. Unless it is a case of emergency, common law supports the right of an adult to give their doctor consent if that adult is of sound mind a has the capacity to understand the nature and effect of their decision. This is essentially because of the notion that everyone has a right to determine what happens to their body.

Legal requirements for obtaining consent

Before a doctor treats you, they must establish that you have given your informed consent to the treatment. This can be established verbally, by writing, or through implied consent. The four legal requirements that must be met to give valid consent are:

  • The patient must have the mental capacity to consent to the procedure;
  • Consent must be given voluntarily;
  • The consent given must be related to the procedure in question; and
  • The patient must be given proper information about the procedure before giving consent.

As part of their duty of care, a doctor must explain to their patients the nature of the medical problem; their method of treatment; any foreseeable risks that may occur; and the cost of the procedure if applicable.

When a patient cannot consent to treatment

In Victoria, the laws concerning medical treatment have been supplemented by legislation allowing people to make arrangements for medical treatment decisions when they are unable to make their own decisions. Since 1986 the Guardianship and Administration Act has permitted a tribunal to appoint a guardian to make medical treatment decisions for a person with impaired decision-making capacity. A child under the age of 14, a person affected by a brain injury of mental disability, dementia suffers, or a person affected by drugs are not considered to have the capacity to give valid consent.

You should be aware of your rights and the laws of consent when undergoing a medical procedure. Next week, we will elaborate on the four abovementioned points that lead to valid consent.

By Kirollos Greiss, Solicitor at RSG Lawyers.

Footnotes available upon request.

Risk: Self-Sponsored Business Nomination

As of December 2015, Department Policy states that a nomination applications may be refused if it is found that a position was created solely to secure only a migration outcome.

Where the Director is also the visa applicant, or the visa applicant is a relative or person associate of an officer of the sponsoring business, it is likely a refusal will be imminent.

Consistently, the Department may request current and historical ASIC Extracts which will show the Directors and Shareholders of the Company.

The Department will also closely scrutinise applications where:

– the business has been operating for a short period.
– the business has a low business turnover.
– the business has no Australian employees.

Considering the above is only Department Policy, there have been some decisions in the Administrative Appeals Tribunal which have set aside such refusals by the Department in such cases.

Thus, there is no umbrella approach to self-sponsored applications (as yet) and those considering self-sponsored applications must oblige to obtain legal advice from a well-informed migration practitioner before proceeding with such an application

By Farhan Rehman, Partner at RSG Lawyers.

Footnotes available upon request.