Exceeding Speed Limit in School Zone
Recently we have noticed a trend where Victoria Traffic Police will setup speed detection sites in a school zone, during school holiday periods, when the local school is closed, pinging motorists for not observing the speed limit applicable to the school zone.
It is not unusual for police catch people 30 – 40 km above the speed limit, leading to mandatory licence losses spanning from 3-6 months. Our view is that this type of behaviour from Victoria police is very unfair in circumstances where the offending officers know that the local school is closed for the holidays.
The technicality exists for police to engage in this behaviour due to the operation of the legislation.
The Road Safety Road Rules 2017, rule 23, labelled speed limit in a school zone indicates there is no rule 23, but on further analysis rule 317A of the same act provides some guidance.
In this section of the act there is some clarity provided about what is considered a school day. The rule indicates that traffic control devices only apply on “declared school days” unless specified on the traffic control device itself. But often the sign will provide two speeds, a lower speed, usually 40km and a higher speed of 60 – 80 km. The sign will usually indicate that the 40km applies on “school days” between certain hours.
Rule 317A defines declares school days as follows
“declared school day” means any day determined by the Minister administering the Education and Training Reform Act 2006 under regulation 13 of the Education and Training Reform Regulations 2017 to be a day on which a Government school is to be open for attendance by students, and that is not one of the following—
(a) a Saturday or a Sunday; or
(b) a day appointed under the Public Holidays Act 1993 as a public holiday in the place in which the traffic control device is located.
There is a note at the bottom of this rule that states that “declared school days” may include days that some school are closed but others are open, thereby the reduced the speed limit will apply even if the school is closed on a day that is declared by the minister to be a declared school day.
The school term seems to be determined on the basis of when government schools are open and this then applies to all schools, including schools that are closed.
What does it mean if my local school is closed but police catch me speeding over 40km during a declared school day?
You will be guilty of the offence unless you can demonstrate an honest and reasonable belief as to your understanding of the status of the school, although this defence has not been settled in relation to this particular set of facts.
As an example the private school or non-government school in your local area may closed on 9 December 2020 of term 4, but because the minister has declared government schools to be open until 18 December 2020 then it is permissible for police to setup a speed trap in a school zone when the school is closed.
We are waiting for the right case, but a local resident that might have a child in a school that they know is closed could be caught in the above situation, in circumstances where they had a mistaken belief about which speed limit applied.
There is case law that exists that says speeding offences carry the legal threshold known as absolute liability. This means that an honest and reasonable mistake of fact does not exist as a defence in relation to standard speeding offences. The relevant authority is Kearon v Grant [1991] VR 321. We would like to distinguish the application of this case in relation to the above set of facts or potentially run an argument in relation to the signage being insufficiently clear.
If you have been caught by police in a school zone in circumstances where the school was closed and you were well aware of that fact, please give our office a call.
