Keeping cyclists safe – do minimum passing distance laws go far enough?

I never used to pay much attention to bicycle laws until I started commuting to work on my bike. In South Australia, cars must leave at least one metre of space when passing a bicycle (if the car is traveling at 60km/hr or less). It quickly became clear to me that this does not always happen. Some states in Australia do not even have minimum passing distance laws. About 17% of Australians ride a bike each week, with about 5.1% using their bike for commuting and 14.1% using their bike for recreation or exercise. The overlap in figures is caused by Australians who use cycling for both commuting and leisure/exercise. The average Australian household has 1.5 functioning bicycles. This is a significant amount of the population that our road laws should be keeping safe.

As road laws fall within the jurisdiction of states and territories, laws are not uniform, though the model Australian Road Rules attempt to unify road rules as much as possible. There are currently two different categories of overtaking laws in Australia, the “safe overtaking distance” (SOD) and the “minimum passing distance” (MPD). The SOD is a general law applying to all vehicles overtaking other vehicles and provides there needs to be a safe overtaking distance with the other vehicle such as to avoid collision and avoid obstructing the path of that vehicle. The SOD also applies to the overtaking of bicycles where there is no more specific law such as the MPD in that jurisdiction. Generally cars overtaking bicycles in jurisdictions with the SOD underestimate the SOD and pass dangerously close to the bicycle rider. I know this from personal experience. Campaigners and lobbyists (such as the Amy Gillett Foundation with the “A Metre Matters” campaign) have pushed for safer passing laws for a number of years and their hard work is starting to pay off as a number of jurisdictions have adopted or are trialing the MPD. The MPD gives an exact minimum distance that must be given when passing a bicycle. Giving an exact figure gives drivers more specific guidance than the vague “safe overtaking distance”.

Some jurisdictions have adopted the following MPD laws:

1.       Where the speed limit is 60km/h or less, vehicles must provide at least 1m of space when passing a bicycle.

2.       Where the speed limit is more than 60km/h, vehicles must provide at least 1.5m of space when passing a bicycle.

3.       The distance is measured from the rightmost part of the bicycle/rider (which could be a panier, arm or bicycle trailer) and the leftmost part of the car passing (which could be a rear vision mirror or trailer).

4.       Where two bicycle riders are riding two abreast (which they are legally able to do as long as they are riding in one lane within 1.5m of each other – see r.151 of the Australian Road Rules), the safe passing distance is measured from the right most part of the rider on the right.

5.       Cars/vehicles are exempt from certain other road rules to ensure they comply with the MPD when passing a bicycle. For example, in South Australia, cars can drive over center lines including center double lines, straddle or cross a lane line, or drive on a painted island to safely overtake a bicycle using the MPD. However drivers should remember they can only overtake or pass a bicycle if the MPD can be given and if it is otherwise safe to do so.

The MPD across Australia

Jurisdiction	MPD?	Source of law	Section	Maximum Penalty
South Australia	Yes, permanent MPD since October 2015	Road Traffic (Road Rules--Ancillary and Miscellaneous Provisions) Regulations 2014	11A and 11B	$2,500
Queensland	Yes, permanent MPD since April 2016 following 12 month trial	Transport Operations (Road Use Management—Road Rules) Regulation 2009	144A and 139A	40 penalty units ($4,876 as 1 penalty unit is currently $121.90)
New South Wales	Trial of MPD 03/2016 – 03/2018	Road Rules 2014	144-1 and 144-2	20 penalty units (1 penalty unit is $110)
Victoria	No, though attempts have been made in 2016 to introduce legislation into the upper house	-	-	-
Australian Capital territory	Trial of MPD 11/2015 – 11/2017	Road Transport (Safety and Traffic Management) Regulation 2000	38A, 38B	20 penalty units (1 penalty unit is $150)
Tasmania	No. But 1m is recommended and laws allowing exceptions to road laws when overtaking have been enacted.	Road Rules 2009	139A	-
Northern Territory	No	-	-	-

While the maximum penalties appear relatively small, it should be kept in mind that this is only for the offence of failing to keep the minimum safe distance. There are other road traffic offences that have much larger penalties in the case of reckless driving, or causing harm or death to a person.

Passing versus overtaking

In the South Australian regulations, the MPD must be given when “passing” a bicycle. “Passing” is a different and broader concept than overtaking. “Passing” is not defined in the regulations, but the meaning can be discerned from the wording of reg 11A that a driver will “pass” a bicycle when passing to the right of the rider travelling in the same direction as the driver. This covers a broad range of situations including overtaking a bicycle, passing a bicycle riding in a bike lane, and passing a bicycle travelling in the same direction in an adjacent lane. Essentially, any time a vehicle travelling in the same direction goes past a bicycle, the MPD must be applied.

Although the concept of “passing” is preferable to “overtaking” there are still some issues with the definition in the South Australian laws and in other jurisdictions. Passing does not include situations where a vehicle is travelling in the opposite direction to the bicycle. This is a significant weakness in the legislation as head on collisions are possible where appropriate distance is not maintained, especially on narrow roads and unmarked roads. Other jurisdictions such as Queensland have also chosen to use the concept of “passing” in the MPD regulations.

Summary

Some jurisdictions have recently taken positive steps to increase the safety of bicycle riders by introducing MPD laws or trials of MPD laws. This is a great first step and other jurisdictions will hopefully follow. The use of the concept “passing” instead of “overtaking” in regulations is also a positive step but arguably does not go far enough, as the concept does not include passing in opposite directions. It is also positive that the MPD increases to 1.5m when speed of the overtaking vehicle increases, however there appears to be minimal knowledge of this law among the general public. 

Murphy v Electoral Commissioner [2016] HCA 36 – electoral law, s7 and s28 of the Constitution and the proportionality test

Why this case is important

Murphy v Electoral Commissioner [2016] HCA 36 (Murphy) is an important case for the following reasons:

1.       The High Court clarifies the proportionality test to use in an electoral context when determining whether laws are contrary to s.7 and s.28 of the Constitution; and

2.       The High Court discusses whether the structured approach to proportionality used by the High Court in McCloy v New South Wales [2015] HCA 34 should be extended to Constitutional contexts outside of the implied freedom of political communication.

Murphy also represents the end of the line for challenging current electoral laws in the Commonwealth Electoral Act 1918 (Electoral Act) as the plaintiffs challenged the long existing seven day enrolment and suspension period laws.

Background

The Electoral Act details Australia’s electoral system including how a person can enrol, transfer enrolment, amend an enrolment detail or remove a name from enrolment. A suspension period exists in which time a person’s name must not be added, transferred or removed from the Electoral Roll. The suspension period runs from 8pm on the day the Electoral Rolls close to the close of the poll for the election (suspension period laws).  

When a writ for a federal election is issued, persons who are not enrolled have seven days to lodge their application for enrolment, otherwise they will not be on the Roll for the election and will be unable to vote. Similarly, after the writ is issued, persons who wish to transfer enrolment must do so within seven days if they wish to vote in the division in which they live (seven day enrolment laws). The seven day grace period was introduced into the Electoral Act in 1983 and has existed since then, bar for a short period where the grace period was dramatically shortened (see discussion of Rowe below).

The plaintiffs in Murphy challenged the validity of the suspension period laws and the seven day enrolment laws on the basis they are contrary to sections 7 and 24 of the Constitution. The provisions challenged were sections 94A(4), 95(4), 96(4), 102(4), 103A(5), 103B(5), and 118(5). The plaintiffs argued that the effect of the suspension period laws and the seven day enrolment laws is that persons are disqualified from the popular choice (voting) mandated by the concept of representative government provided for in s.7 and s.24 of the Constitution, and that there is no substantial reason for this disqualification.

Previous High Court challenges to Electoral Act provisions

Roach v Electoral Commissioner (2007) 233 CLR 162

In 2004 the Electoral Act was amended so that prisoners sentenced to imprisonment for three years or more were no longer eligible to vote at federal elections. In 2006 the Electoral Act was amended again, the effect being that all sentenced prisoners were disqualified from voting at federal elections.

The majority judges in Roach (Gleeson CJ, and Gummow, Kirby and Crennan JJ) held, relying on the words “chosen by the people” that the concept of representative government in s.7 and s.24 of the Constitution includes a universal franchise, generally held by all adults. Prior to Roach, it was thought that the words “chosen by the people” referred merely to direct and popular choice. The High Court majority created the following two step approach:

1.       Does the provision effect a disqualification from the entitlement to vote? (More generally: Does the provision inhibit or burden the system of representative government envisaged by s.7 and s.24 of the Constitution that the parliament be “directly chosen by the people”?)

2.       Is there a substantial reason for exclusion in that the means adopted is proportionate to the legitimate ends sought to be achieved?

The majority judges held that the 2006 laws preventing all prisoners from voting were invalid, as sentences imposed for shorter periods were often arbitrary and caused by issues such as homelessness. The laws were not proportionate to a legitimate ends, as the criterion for exclusion was unrelated to the seriousness of the offence.

In contrast, the 2004 laws that disqualified prisoners serving a sentence of three years or more were held to be valid, as removing the right to vote for serious misconduct was a “substantial reason” for exclusion from the franchise, and the criterion for exclusion from the franchise was clearly relatable to the seriousness of offending.

Rowe v Electoral Commissioner (2010) 243 CLR 1

In 2006 parliament amended the Electoral Act so that a claim for enrolment had to be made by 8pm on the day of the issue of the writs to be considered for that election, essentially removing the seven day grace period, and only giving potential voters a matter of hours in which to lodge their application for enrolment after the writ for the election was issued. The Act was also amended so that transfer claims had to be made by 8pm on the day of the closing of the Rolls which was fixed as the third working day after the issue of the writs. The amendments were introduced to create a smoother and more efficient electoral system.

The introduction of the 2006 laws diminished the opportunity for enrolment that existed prior to its enactment, satisfying the first limb of the test in Roach. The High Court then considered whether there was a “substantial reason” for the laws. The majority judges came to the same conclusion using a slightly different approach to the second limb of the test in Roach. French CJ concluded there was not a “substantial reason” as the detriment was disproportionate to the benefits produced from a smoother and more efficient electoral system. Gummow and Bell JJ came to the same conclusion but explicitly used the proportionality approach of the majority in Roach. Crennan J, the final judge forming the majority, interpreted a “substantial reason” as being a law “necessary”, “necessary” not being limited to a law that is essential and unavoidable but also a law which was “reasonably appropriate and adapted to serve a legitimate end”. As the laws were not proportionate to the reasons for the amendments, the High Court majority held the laws invalid.

The outcome in Murphy

The outcome was unanimous (French CJ and Bell J, Kiefel J, Gageler J, Keane J, Nettle J, and Gordon J) in that all judges held the provisions imposing the cut off for enrolment and transfer of enrolment are not repugnant to s7 and s24 of the Constitution. However, the judges differed significantly on how they arrived at this conclusion.

The “substantial reason” test

The second component in the Roach test for validity, is that there be a “substantial reason” for exclusion from the universal franchise. The requirement for a “substantial reason” can be traced back to Brennan CJ’s judgment in McGinty v Western Australia (1996) 186 CLR 140. In Murphy, the High Court confirmed that the proportionality test requires and analysis of whether the law is “reasonably appropriate and adapted”. In the context of s.7 and s.28, the law must be reasonably appropriate and adapted “to serve an end which is consistent or compatible with the maintenance of the constitutionally prescribed system of representative government”. The “reasonably appropriate and adapted” test for proportionality has been used as the test for validity in a number of constitutional and administrative law contexts including to determine the validity of purposive powers, incidental powers, and powers whose exercise limits the enjoyment of a constitutional guarantee, such as the implied freedom of political communication.

High Court judges differ on how to apply the “substantial reason” test

In Murphy, French CJ and Bell J discussed the proportionality criteria set out by the High Court in the case of McCloy v New South Wales [2015] HCA 34, an implied freedom of political communication case. In McCloy French CJ, Kiefel, Bell and Keane JJ adopted the European approach to proportionality in developing a three step approach:

1.       Suitability – whether the law had a rational connection to the purpose of the provision;

2.       Necessity – whether there was an obvious alternative, reasonably practical means of achieving the same purpose with a less restrictive effect on the freedom; and

3.       Adequacy in its balance – whether the extent of the restriction imposed by the impugned law was outweighed by the importance of the purpose it served.

The High Court in McCloy did not discuss the application of the three step approach to proportionality outside the context of the implied freedom of political communication. In Murphy French CJ and Bell J stated that the McCloy three step “structured” proportionality criteria should be used:

1.       To determine the proportionality of laws burdening or infringing a constitutional guarantee, immunity or freedom; and

2.       In the case of laws burdening the representative government envisaged by s.7 and s.24 of the Constitution, the three step test may be relevant depending on the character of the law.

French CJ and Bell J were of the view the “suitability” component of the three step approach should be used to determine proportionality in all situations where determining whether a law, delegated legislative instrument or administrative act is a valid exercise of the relevant grant of power. No other judges supported the use of the McCloy test in the context of s.7 and s.24 of the Constitution.

Gordon J and Gageler J openly opposed the use of the “structured” proportionality approach in the context of s.7 and s.24 of the Constitution. Gordon J questioned whether the structured approach is appropriate at all in the Australian context, given that the judiciary cannot exercise legislative or executive power in Australia’s separation of powers. Gordon J took particular issue with the “necessity” stage of the structured approach, as this stage invites courts to inquire into alternative means of achieving the same purpose, an inquiry which has a legislative flavour to it. Even if it was accepted the structured approach was appropriate in the Australian context, Gordon J reasoned that there is a significant difference between using the structured approach for the implied freedom of political communication in McCloy and the context in Murphy, as parliament is required to enact laws to provide for an electoral system. This positive role of parliament and the broad scope of legislative power in relation to elections “distinctly marks out the present constitutional context from any inquiry about the implied freedom of political communication”.

Gageler J rejected the application of the “structured” proportionality criteria in McCloy, reiterating his reservations about importing such a structured, prescriptive and open ended approach into Australian Constitutional law, referring readers to his dissenting reasons in McCloy. Gageler J was obviously disappointed with the High Court’s continued use of the structured proportionality criteria, writing “what is at best an ill-fitted analytical tool has become the master, and has taken on a life of its own”.

Keane J did not find it necessary to apply the proportionality test, finding no burden on the Constitutional mandate in s.7 and s.24 of the Constitution.

Kiefel J only briefly discussed the utility of the test in McCloy, stating that the alternative to the three step test in determining proportionality is to ask whether the law is “reasonably appropriate and adapted” to their legitimate end. It is not entirely clear from Kiefel J’s analysis which approach Her Honour preferred, however Kiefel J found that the laws were proportionate, as the effect of the suspension period is balanced by the certainty and efficiency achieved by having a suspension period.

Post Murphy how do I apply the proportionality test in the context of s.7 and s.28 of the Constitution?

Is this the case of “one test to rule them all”? Will the “structured” approach to proportionality in McCloy be used for all proportionality tests in the Constitutional context? The answer for now is no. While French CJ and Bell J are obvious supporters of extending the scope of the structured approach to proportionality used in McCloy to other Constitutional contexts, no other High Court judge in Murphy supported this approach. 

As Gordon J put it:

“It should not be assumed that, because a particular test for proportionality has been adopted in one particular constitutional context, it can be uncritically transferred into another context, constitutional or otherwise, even within the same jurisdiction”.

The structured proportionality test in McCloy can safely be applied only in determining whether a law impugns the implied freedom of political communication (see blog post on McCloy for further details). In other Constitutional contexts, the structured proportionality test is not to be used to determine proportionality. In the case of s.7 and s.28 of the Constitution, when applying the second part of the test in Roach, the proportionality test, ask whether the laws are reasonably appropriate and adapted to achieve the identified end.   

Compulsory retirement ages for judges – is it time for a reformulated “proved incapacity” test?

All Australian jurisdictions have compulsory retirement ages for judges. In this blog post I discuss the reasons for and against compulsory retirement and why compulsory retirement may continue to be the best option until a more satisfactory test can be formulated. 

1. The introduction of compulsory retirement ages

New South Wales was the first state to introduce a mandatory retirement age in 1918, with all states having some form of compulsory retirement age by 1944. The Commonwealth was far behind the states in introducing compulsory retirement ages, mainly due to the fact a referendum was required to create any changes to the tenure of judges.

 

Australian High Court and Federal Court judges have been subject to compulsory retirement ages since 1977 when a successful referendum was held and the Constitutional Alternation (Retirement of Judges) Act 1977 was passed to insert the compulsory retirement provisions into the Constitution. Prior to this, federal court judges could only be removed from office for proved incapacity or misconduct.

 

 2. What are the compulsory retirement ages

Commonwealth

High Court judges are appointed for a term “expiring upon his attaining the age of seventy years” (s.72 Commonwealth Constitution). Judges appointed to a court created by Commonwealth parliament are appointed for a term expiring when the judge reaches the age fixed by parliament. The age fixed by parliament cannot be more than 70 years (s.72 Commonwealth Constitution).

 

State

Supreme court judges in state jurisdictions are also required to retire at the age of 70 (except in NSW where the compulsory age of retirement is 72). State constitutions are flexible, so the mandatory retirement age is often found in statute as opposed to the relevant state constitution.

 

Table showing retirement ages across a selection of jurisdictions  

Court	Compulsory retirement age for  judges	Source	Compulsory retirement first introduced
High Court	70 years	s.72 Commonwealth Constitution	1977
Federal Court	70 years	s.72 Commonwealth Constitution	1977
Supreme Court of South Australia	70 years	s.13A Supreme Court Act 1935 (SA). See also s.74 of the Constitution Act 1934 (SA)	1944
Supreme Court of Victoria	70 years	s.77 Constitution Act 1975 (Vic)	1937
Supreme Court of New South Wales	72 years	s.44 Judicial Officers Act 1986 (NSW)	1918
Supreme Court of Queensland	70 years	s.23 Supreme Court of Queensland Act 1991 (Qld)	1921
Supreme Court of Western Australia	70 years	s.3 Judges Retirement Act 1937 (WA)	1937

 

3. Rationale for compulsory retirement

Several reasons were put forward in the 1977 referendum for introducing a compulsory retirement age for High Court and Federal Court judges, with the key reasons being:

1. A need to open up positions for new judicial appointments in order to maintain vigorous and dynamic courts;
2. Community support for compulsory retiring ages for judges; and
3. A need to avoid removing a judge for “proven incapacity” where a judge is unfit for office due to declining physical or mental health.

Of these three reasons, the third is the focus of this blog post. In my view, the first point has an equally valid counterargument being the need for stability in the judiciary and the maintenance of the perception of judicial independence. As judges are appointed on advice of the government of the day, having a high turnover of judges is not ideal for perceptions of judicial independence. There is also the loss of legal excellence in the judiciary that comes with a compulsory retirement age that is set when many judges are just reaching their prime. It is the norm, not the exception for judges retiring due to the compulsory retirement age to continue working in the law full time after finishing working in the judiciary.

4. Example: High Court retirements

If we look at High Court retirements, the first judge to retire on meeting the compulsory 70 years retirement age was Justice McHugh in 2005, with all other previous High Court judges retiring for different reasons prior to reaching 70 years of age.

 

After retiring from the High Court, Justice McHugh continued to work in the law was appointed to the Court of Final Appeal in Hong Kong as a Non-Permanent Justice. In 2015 he headed the Special Commission of Inquiry into the Greyhound Racing Industry in NSW which led to the decision to ban greyhound racing in NSW from 1 July 2017. Justice McHugh is currently 80 years old and still working. That is 10 years in which Justice McHugh could have remained on the High Court if there was no mandatory retirement age.

 

All retiring High Court judges since Justice McHugh have retired upon or slightly before reaching the compulsory retirement age of 70:

1. Justice Callinan retired from the High Court in 2007 upon reaching the mandatory retirement age and has conducted a number of government inquiries and reviews since including the Commission of Inquiry into the outbreak of equine influenza in Australia in 2008, the review of the Crime and Misconduct Commission in Queensland in 2013, and the review of the effectiveness of NSW’s liquor lock out laws in 2016. Justice Callinan is working hard almost 10 years after he met the High Court’s compulsory retirement age. 
2. Justice Kirby retired from the High Court in February 2009, shortly before he reached the mandatory retirement age and has since continued to work lecturing as an adjunct professor at the University of Tasmania, advising on reform of the Commonwealth of Nations in his role on the Eminent Pearsons Group and supporting various causes including animal rights.
3. Justice Gummow retired from the High Court in 2012 upon reaching the age of 70, and in 2013 recommenced lecturing in equity at the University of Sydney as well as various subjects at the Australian National University. In 2013 Justice Gummow was appointed to the Court of Final Appeal in Hong Kong as a Non-Permanent Justice. Note the trend here of Hong Kong taking advantage of Australia’s senior legal talent made available by the compulsory retirement age.
4. Justice Heydon retired from the High Court in 2013 upon reaching the age of 70 and has worked hard post retirement, heading the Royal Commission into Trade Union Corruption in 2015.
5. Justice Hayne and Justice Crennan retired from the High Court in 2015 upon reaching the age of 70, and have been less active than their colleagues in the legal profession post retirement.

These are just a number of examples from the High Court, but the trend is reflected in other courts. Judges are retiring at the compulsory retirement age, not beforehand, and continue to work in the law or related areas after their retirement.

5. The difficulty of formulating a workable alternative

Judges are judicial office holders, and cannot be removed from their office in the way a normal employee can have their employment terminated by an employer. A judge’s tenure can end in four ways:

1. Resignation;
2. Removal for proved misconduct;
3. Removal for proved incapacity; and
4. Judge meets the compulsory retirement age.

 

Section 72(ii) of the Commonwealth Constitution states that Justices of the High Court and of the other courts created by parliament “shall not be removed except by the Governor-General in Council, on an address from both Houses of the Parliament in the same session, praying for such removal on the ground of proved misbehavior or incapacity”. State jurisdictions have similar legislative provisions.

 

One of the main reasons compulsory retirement was introduced was to avoid the need to remove a judge for “proved incapacity” when a judge fails to recognize it is time to retire. The process of proving incapacity at common law is arduous and no judge wants to end their career in a battle of psychiatric assessments. If a judge was found to have proved incapacity, the finding could also cast doubt on recent decisions, which could in turn effect confidence in the judiciary. Introducing the blanket retirement age of 70 avoids this problem, but it is also a significant waste of legal resources when judges are forced to retire when at their legal peak.

 

Assuming for now we could like to keep these capable judges in the judiciary, the next question is whether you will keep the compulsory retirement age. Most commentators appear to assume the continuation of some kind of compulsory retirement age with the most popular solution to simply raise the retirement age of judges. A commonly suggested age is 75. However, as the High Court retirees of the past decade show, a lawyer may be fit to work as a High Court judge past the age of 75. My view is that instead of assuming incapacity at a certain age, it may be possible to create a tweaked “proven incapacity” test and process for determining incapacity that does not drag a judge through public disgrace and enables a judge to keep their integrity intact. Looking at the four ways in which a judge can be removed from office, this would involve removing the fourth category and altering the third category to provide more certainty on what would constitute “proved incapacity”.

 

1. Change is unlikely to occur soon

Removing the compulsory age of retirement and inserting a more detailed “proved incapacity” test in the Commonwealth Constitution will require a referendum. Significant community support is required before a referendum will even be considered. If change is to occur it will be at the state level first. However, given the population of judges is small in any given state, there is unlikely to be the public or political desire to make changes to the compulsory retirement age or remove the retirement age and insert a new proved incapacity test. Until the public or parliament become interested in the issue, we will continue to see judges retiring at age 70 while still having so much to contribute to the judiciary, the legal profession and the rule of law.