Relevant legislation

Most common traffic offences involve parking (eg, exceeding parking time limits, parking too close to intersections, parking in a Clearway) which are dealt with under the Road Traffic Act 1961 and specifically in Part 12 of the Australian Road Rules. All references in this part are to the Road Traffic Act unless otherwise stated.

Elements of the offence

Parking is when you stop for any reason other than obeying a traffic light, sign or a police officer or to avoid an accident. Under section 174A the owner of a motor vehicle is responsible for any parking offences committed with that vehicle. If the owner was not the driver at the time of the offence, she or he must provide a statutory declaration setting out the name and address of the driver to avoid being prosecuted. Where a vehicle is stolen the owner should provide full details, including the crime report number, to the council and ask that that the matter be withdrawn. If the council refuses to withdraw it, full details, including the attempt to settle the matter, should be given to the court. Both the owner and the driver cannot be prosecuted for the same offence and a conviction of either exonerates the other.

If matter proceeds to court further costs may be involved

Usually an expiation notice in given which allows the owner of the vehicle to pay a 'fine' to avoid prosecution. If the matter proceeds to court and the person pleads, or is found, guilty, a fine will be imposed plus court costs and the council's legal costs, so if the driver admits the offence, it usually advisable to pay the 'fine' promptly. An person wishing to defend the matter must provide evidence that raises doubts about the accuracy of the allegations.

Improper issue of parking notices

Sometimes it may be claimed that parking notices are issued improperly, such as the relevant parking restriction signs were not clearly visible. If so, photographs should be taken that show the difficulty is seeing in the sign. Due to the risk of 'court costs' if the person loses, great care should be taken before deciding to plead not guilty to a parking offence.

Who can issue parking fines?

Fines in relation to parking offences can only be issued by local councils. Private parking companies have no authority in their own right to issue parking fines. However, under the Private Parking Areas Act 1986 they can reach an agreement with a local council for them to issue and collect parking fines on their behalf. In the absence of such an agreement the private company cannot collect fines for parking on their land.

Clamping

Whilst it is an offence under the Private Parking Areas Regulations 2001 (see regulation 14) for an owner of a private parking area to immobilise a vehicle, some companies have been known to engage in this practice. Although a driver whose car has been clamped could seek a court order for the removal of the clamp, the reality of such a situation is that they will more than likely want to retrieve their car as soon as possible. In this situation they will be obliged to pay the necessary fee to have the clamp removed. As proof of ownership will be required for this the private parking company will then be provided with details of their name and address, enabling them to pursue an action in damages or breach of contract against the owner of the vehicle.