Law around child seats

bluerocket
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Law around child seats

Postby bluerocket » Wed Jan 23, 2019 3:37 pm

Hey guys, hoping you can all clear something up for me.

The rules around car seats for kids seem to be all based around age with no regard to size or weight.
http://classic.austlii.edu.au/au/legis/ ... s266a.html

We have a young lad who's not quite 4yo who's outgrown his current forward facing harnessed seat, he's quite tall for his age. Do we need to keep him in a seat that's too small for him until he turns 4, or can we move him into a booster? The law clearly says no, but the RACV says it's ok to move him into a seat of the proper size https://www.racv.com.au/on-the-road/dri ... y-law.html

I would have thought that he would be safer in a seat designed for someone of his size, rather than a seat that's too small for him. But quite confused. Thanks brains trust.

Gravy
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Re: Law around child seats

Postby Gravy » Wed Jan 23, 2019 4:50 pm

I don't understand how you've interpreted there to be a problem.

This is a direct quote from the link in your post:
Road Safety Road Rules 2017 wrote:(2) A passenger who is 6 months old or older, but is less than 4 years old, must be restrained in a suitable—
...
(b) forward facing approved child restraint that has an inbuilt harness.

(3) A passenger who is 4 years old or older, but is less than 7 years old, must—
(a) be restrained in a suitable forward facing approved child restraint that has an inbuilt harness; or
...


Forget the booster seat, get him a forward facing approved child restraint that has an inbuilt harness that is suitable for his size and you'll be compliant with both ss (2) and (3) regardless of his age.

ants79 wrote:I would have thought that he would be safer in a seat designed for someone of his size, rather than a seat that's too small for him.
Correct. And sub-section 3 is consistent with that statement. RACV's advice on their website does not appear to contradict any of this. Have a look at this page as it seems to describe exactly what you're after (see "Forward facing restraint/booster seat combinations").

Hardy
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Re: Law around child seats

Postby Hardy » Wed Jan 23, 2019 7:05 pm

Don’t forget there is no obligation on the driver to give the name or date of birth or age of their passengers. It is often difficult for the police to prove these age based traffic offences if the driver gets a good lawyer, because the police often don’t have evidence they need when it gets to court.

bluerocket
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Re: Law around child seats

Postby bluerocket » Thu Jan 24, 2019 8:19 am

Hardy wrote:Don’t forget there is no obligation on the driver to give the name or date of birth or age of their passengers. It is often difficult for the police to prove these age based traffic offences if the driver gets a good lawyer, because the police often don’t have evidence they need when it gets to court.


I spoke to one of our local police about it, and he didn't really know the law off the top of his head, just said he might look in the back and if the kids appeared to be properly restrained ie. had some sort of seatbelt on that didn't look ridiculously too big or small for them he's not going to take any action. I imagine there would be an issue if you were involved in a fatal accident and a more intensive investigation took place. If the kid dies in the wrong sized seat, whether it's a result of the wrong seat or not, I expect you'd be in a bit of hot water then, although you'd obviously have bigger issues to live with if you've lost a child...

bluerocket
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Re: Law around child seats

Postby bluerocket » Thu Jan 24, 2019 8:30 am

Gravy wrote:I don't understand how you've interpreted there to be a problem.


The issue is his shoulder is over the line on his current seat, but he's 3 1/2. I can put him in a booster where he's between the lines, but he's not 4 yet, so illegal, although arguably he's be safer as he's within the parameters of the seat. I'll go to Baby Bunting and try some different seats, see what he fits.

Gravy
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Re: Law around child seats

Postby Gravy » Thu Jan 24, 2019 10:35 am

ants79 wrote:I can put him in a booster where he's between the lines, but he's not 4 yet, so illegal
SO DON'T PUT HIM IN A BOOSTER SEAT. Put him in a new and appropriately sized suitable forward facing approved child restraint that has an inbuilt harness compliant with the road rules quoted in my earlier response.

Why are you so hung up on a booster seat, for which he is too young according to road rules, when a suitable forward facing approved child restraint that has an inbuilt harness is both a legal and safe option from ages six months to seven years? Alternatively, get a combination booster/forward facing restraint if you can't let go of the booster seat idea (which was also a link in my earlier response). Then you can change his seat to a booster on his fourth birthday.

Gravy
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Re: Law around child seats

Postby Gravy » Fri Feb 01, 2019 11:15 am

Hardy wrote:Don’t forget there is no obligation on the driver to give the name or date of birth or age of their passengers. It is often difficult for the police to prove these age based traffic offences if the driver gets a good lawyer, because the police often don’t have evidence they need when it gets to court.

This may seems like an obscure question (or, more likely, you know where it is I'm going with this), but; is a Jones v Dunkel inference open to a magistrate in a criminal proceeding, or is it limited to civil matters?

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Re: Law around child seats

Postby Hardy » Mon Feb 04, 2019 4:56 pm

A Jones v Dunkel inference is when a magistrate infers that a witness who you could have called but failed to call would not have said anything to assist your case. It is an inference available in both civil and criminal hearings.

Gravy
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Re: Law around child seats

Postby Gravy » Tue Feb 05, 2019 11:39 am

Understood.

So if the police allege that the child appeared to be less than four years old, and (for discussion's sake) the magistrate is prepared to accept this as reasonable in the absence of any other evidence, would not calling the driver (or parent) as a witness to lead evidence/testimony as to the child's age leave them open to a Jones v Dunkel inference?

My first thought was that this would offend the beyond reasonable doubt burden of proof. Jones v Dunkel seems (to the untrained eye) to be consistent only with assisting the balance of probabilities. Having written that, it also seems to be a logical conclusion that, given there is a complete defence to the charge in providing evidence of the child's age (which is also pretty easy), not doing so would in most cases mean only one thing --> Jones v Dunkel.

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Re: Law around child seats

Postby Hardy » Tue Feb 05, 2019 5:35 pm

There are two main ways to prove a person's age.
1. A witness to the birth.
2. A birth certificate.

It is also possible to prove someone's age by getting an expert to give an opinion after analysing teeth, bones, etc to arrive at their biological age. This has been done when prosecuting people smugglers for example. https://www.abc.net.au/news/2017-02-20/ ... on/8286364

It is not possible to prove a person's age by saying you think they are of a certain age. Although this may be evidence of what you think, it is not evidence of the person's age.

Jones v. Dunkel Directions, Azzopardi Directions, Weissensteiner Directions etc have all been prohibited by the Jury Directions Act 2015 This applies to Magistrates too. They now give directions under s.41 of the Act. http://classic.austlii.edu.au/au/legis/ ... 7/s41.html

See also http://www.judicialcollege.vic.edu.au/e ... /19665.htm

Gravy
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Re: Law around child seats

Postby Gravy » Tue Feb 05, 2019 6:05 pm

Surely testimony under oath would be sufficient to rebut the informant's opinion? I mean, the punishment for perjury is far harsher than the punishment for an incorrectly restrained child. We're only talking about Road Rules here, not an offence that carries a custodial sentence - doesn't the Briginshaw principle also apply?

I do understand what you mean about proof, I just didn't think it would come to that.

So the informant's testimony is not evidence of the age of the child, but does a parent failing to produce a birth certificate or a mother (who is also the defendant) failing to be called as a witness enliven Jones v Dunkel? Given that doing either is a complete defence and easy to do.

Or is it such that this shifts the burden of proof, in which case a Jones v Dunkel inference is not available?

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Re: Law around child seats

Postby Hardy » Tue Feb 05, 2019 9:58 pm

Most defence lawyers will spend their time preventing the opinion being admitted into evidence rather than worrying about what evidence they could call to rebutt it.

nofines
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Re: Law around child seats

Postby nofines » Mon Feb 18, 2019 6:46 pm

Gravy wrote:... but does a parent failing to produce a birth certificate or a mother (who is also the defendant) failing to be called as a witness enliven Jones v Dunkel? Given that doing either is a complete defence and easy to do.


No.

Onus is on police to make their case who are quite capable of calling other parties, such as a parent, as witnesses should they so wish. Jones v Dunkel cannot assist reversing the onus of proof.


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