This typically occurs following a camera detected offence such as speeding, red-light camera and/or mobile phone offences. The penalty notice from Transport NSW is issued to what we call the ‘responsible person’. That is the person who the car is registered too or the registered operator.
If the registered operator was not driving the motor vehicle, they must nominate the person who was in charge or responsible for the motor vehicle at the time of the offence. This is typically required to be completed within 21 days of the penalty notice issue date.
The penalty notice of infringement is then reissued to the nominated driver, who has the same rights as any other driver: they can accept the infringement, fight the infringement notice or nominate a further driver.
False Nominations
False Nominations are not a new concept; however, the perceived “ease” of having someone take your points as an illegal industry has seen substantial growth in recent years. Likewise, Transport NSW, NSW Police, and authorities are taking an active role in investigating these schemes more than ever before.
A false nomination occurs when a person provides a relevant nomination document that:
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- Names the wrong person as the driver, knowingly or recklessly; or
- Provides false nomination details (for example, a false name, date of birth, licence number, or an international driver who was not in Australia).
Selling or buying “demerit points”
Involve arrangements where another person accepts a fine and points for payment typically involves a false nomination and can also implicate false statutory declarations.
What this really is in simple terms and why this is a serious offence is because you are committing a further and likely more serious criminal offence of providing a False Declaration which is punishable for up to 5 years.
You also need to consider that if taken to court, you are going to be able to ‘swear’ an oath, because if you are found to have committed perjury, that is a more serious offence of potential 10 years imprisonment.
These offences seem simple, but there is a snowball effect. Often, the more you stand your ground, the deeper and worse it can get. This is something that needs to be understood, especially with young people. A famous example of this was a former Federal Court Judge Marcus Einfield who was sentenced to goal following a false nomination and then committing perjury. Mr Einfield was sentenced to three years in goal
Key offences and maximum penalties
- False nomination (Road Transport Act s 188(2))
- Individuals: Up to 100 penalty units (currently expressed in practice as up to $11,000).
- Corporations: Up to 200 penalty units (up to $22,000).
- Fail to nominate (Road Transport Act s 188(1))
- Individuals: Up to 50 penalty units (commonly prosecuted with fines; if contested in court, up to $5,500 is often cited in practice).
- Corporations: Up to 200 penalty units (up to $22,000), and repeated failures may be referred to court. Transport for NSW may suspend vehicle registration for non-compliance.
- False statutory declaration (Oaths Act s 25)
- Making a false statutory declaration carries up to 5 years’ imprisonment. In the Local Court, the jurisdictional maximum is typically 2 years’ imprisonment and/or a fine, but indictment to the District Court is possible.
Note: Infringement-penalty levels (the amounts on the notice) are lower than the court-maximum fines and differ for individuals and corporations. As at recent guidance, indicative infringement penalties include approximately:
- False nomination or fail-to-nominate: around $723 for individuals; $1,528 for a first corporate offence, rising to $4,097 for subsequent failures (matters can be escalated to court for higher penalties).
Defences and mitigating factors
- Reasonable diligence defence (s 188(1)): A person (or company) may avoid liability for “fail to nominate” if they did not know, and could not with reasonable diligence ascertain, the nomination details. For corporations, there are added compliance steps: nominate an officer to investigate, have that officer complete a statutory declaration about efforts, and provide it to Revenue NSW or the court.
- Error without dishonesty: Revenue NSW may consider leniency where a person nominated someone in error and promptly corrects the record with supporting evidence. This does not excuse deliberate falsehoods.
- Early correction and cooperation: Promptly correcting an incorrect nomination, providing evidence (e.g., vehicle logs, travel records), and cooperating with Revenue NSW can influence administrative review outcomes and sentencing in court.
These matters are a serious offence which can get worse the longer it goes on. Contact us and obtain legal advice from our Traffic Experts Alicia (0407 171 626) and Michelle (0407 534 594) at Catron Simmons Lawyers.