What Happens if a Passenger Doesn’t Wear a Seatbelt in NSW?

By Sahar Adatia and Jimmy Singh.

When it comes to driving responsibly, it’s no secret that Australians sometimes make dangerous decisions on the road.

From selfish behaviour such as drink-driving offences and speeding, to the downright recklessness of sending text messages from behind the wheel or eating takeaway food, such dangerous driving conduct places the safety of drivers and other road users at risk.

And then there’s just plain stupidity. Like knowingly driving a vehicle in which passengers are unrestrained, leaving them at risk of flying through the windscreen and quite possibly dying in the case of a traffic crash.

Case in point: On 3 January 2019, as the new year kicked off and children everywhere continued to indulge in school holiday fun, one Northern Territory woman thought it was safe to allegedly drive with 10 unrestrained children in her car, all under the age of 16.

Northern Territory police noticed the woman driving on Sadadeen Rd in Sadadeen, east of Alice Springs, at which point they also observed the children “jumping around the cabin of the vehicle”.

They stopped the woman on Bagot Street and were shocked to soon discover 10 children, all under the age of 16 and all unrestrained, including an infant under the age of one who was sitting on the front passenger’s lap.

The woman was fined $5,040 and thumped with a hefty 30 demerit points.

Northern Territory Police Dumbfounded by Driver’s Stupidity

Speaking of the dangerous driver’s senselessness, Senior Constable Ivan Petrovic expressed his astonishment of the incident.

“How someone can knowingly drive a vehicle in which their passengers are unrestrained is beyond me,” he said.

“Seatbelts are designed to save your life and prevent serious injuries in the case of a traffic crash.”

Senior Constable Petrovic slammed the woman’s behaviour, emphasising that having a number of unrestrained children in the vehicle is “irresponsible and reckless” on the adult’s behalf.

“Had they been involved in any kind of crash, the infant sitting in the front could have been seriously injured if not killed.”

Unrestrained Children “Seen Every Day” in Northern Territory

According to Senior Constable Petrovic, this is not the first case of irresponsible driving with unrestrained children. In fact, it is something Northern Territory police observe every day.

In September 2018, an 18-year-old female driver was allegedly stopped by police in Alice Springs after being caught with 17 passengers in her car.

After pulling over the car, police counted a total of 18 people inside the vehicle, including five adults, 12 children and a five-month-old infant.

Police said they “saw a sea of faces looking out the windows” and were flabbergasted by the danger the packed car represented.

“It is shocking that people continue to take risks with the lives of their loved ones,” Sergeant Conan Robertson said of the situation.

While it represented an extreme case, he acknowledged that unfortunately unrestrained children is still something seen every day.

The woman was charged with a number of traffic offences.

Crash Test Results: What Can Happen If You Don’t Wear A Seatbelt Whilst Driving

According to Transport for NSW, while it has been compulsory to wear seatbelts in NSW since 1971, each year on average, approximately 30 drivers and passengers are killed and 220 injured as a result of not wearing available seatbelts.

Many of these deaths and injures could have been prevented if seatbelt safety was followed.

According to crash test results, a person who is not restrained by a seatbelt will continue to travel forward at the speed the vehicle was travelling until something stops them. This could be the steering wheel, the dashboard or windscreen. In some crashes, there is even the possibility for the person to gush through one of the windows and partially or fully be ejected from the vehicle. From here, they might hit fixed objects, get run over, or be crushed by their own vehicle.

As for unrestrained passengers, the risks are equally as dangerous. In a crash, an unrestrained rear-seat occupant continues to travel forward until their progress is hindered, usually by one of the front seats. In a serious crash, the force with which the seat is struck is usually sufficient to cause the seat mountings or seat structure to fail.

Even after striking the seat in front, the momentum of the passenger will likely force their upper body over the top of the seat. Other than resulting in serious head injuries, their head can also strike a dangerous blow to the front seat occupant. Front seat occupants have been killed or severely injured in this way.

The Law on Driving without a Seatbelt and Unrestrained Children

The driver of a motor vehicle, either moving or stationary but not parked, is required to wear a properly fastened and adjusted seatbelt except if the driver is reversing or otherwise exempt under rule 267 which we will outline further below. (Rule 264 of the Road Rules 2014).

A failure to comply with this rule by the driver carries a penalty of up to $2,200 if the matter is court-elected.

Passengers Who are at Least 16-Years of Age

Unless exempt from wearing a seatbelt under rule 267, a passenger who is at least 16-years-of-age in a motor vehicle, which is either moving or stationary but not parked, must wear a properly fastened and adjusted seatbelt, occupy a position that’s fitted with an approved seatbelt and must not occupy the same seating position as any other passenger under rule 265(1) of the Road Rules 2014.

Failure for a passenger of the vehicle to comply with this rule will leave him/her to face a penalty of up to a $2,200 fine if the matter is court elected.

However, if the driver of the motor vehicle fails to ensure that each of its passengers (who are at least 16-years old) comply with this rule, the driver can also face a penalty of up to $2,200 fine if the matter end up going to court (Rule 265(3) Road Rules). This does not apply to a taxi or bus.

Children Aged Under 6 Months Old

A child passenger who is aged within this category is required to be restrained in a suitable and properly fastened and adjusted rearward facing approved child restraint.

A driver of a motor vehicle with this kind of passenger who fails to ensure this is complied with will face a penalty of up to $2,200 if the case goes to court. (Rule 266(2) Road Rules).

Children Aged Between 6 Months, But Less Than 4-Years Old

A child passenger who is aged within this category is required to be restrained in a suitable and property fastened and adjusted rearward facing approved child restraint or forward-facing approved child restraint that has an inbuilt harness.

A driver of a motor vehicle with this kind of passenger who fails to ensure this is complied with will face a penalty of up to $2,200 in the event the case goes to court. (Rule 266(2A) Road Rules).

Children Aged Between 4, but Less Than 7-Years Old

Child passengers in a motor vehicle who are aged within this category are required to be:

• Restrained in a suitable and properly fastened and adjusted forward facing approved child restraint that has an inbuilt harness; or
• Placed on a properly positioned approved booster seat, restrained by either a suitable lap and sash type approved seatbelt that is properly adjusted and fastened, or by a suitable approved child safety harness that’s properly fastened and adjusted; or
• In a case the child is seated in a seating position in a part of the vehicle that’s designed primarily for carriage of goods, is restrained by a suitable lap and sash style seatbelt that’s properly adjusted and fastened, or has the hip restrained by a suitable lap type seatbelt that’s properly adjusted and fastened, and has the upper body restrained by an approved child safety harness that is properly adjusted and fastened.

A driver with this kind of passenger who fails to ensure this is complied with in his/her motor vehicle will face a penalty of up to $2,200 fine in the event the matter goes to court. (Rule 266(2B) Road Rules).

Children Aged Between 7, But Less Than 16-Years Old

Child passengers who are aged within this category are required to be properly positioned on an approved booster seat, restrained by a seatbelt that is properly adjusted and fastened, or occupy a seating position fitted with a suitable approved seatbelt worn in a way that is properly adjusted and fastened.

A Driver with this kind of passenger who fails to ensure this is complied with will face a penalty of up to $2,200 fine if the matter goes to court. (Rule 266(4) Road Rules).

The rule that a driver of a motor vehicle ensure that a child aged up to 7 years ensure the above rules are complied with concerning seat belts does not apply where:

• The driver has a medical certificate outlining that the child should not be restrained in the way required by law due to medical grounds or disability. This exception applies if the child is properly restrained in a restraint designed for and is suitable for use by the child and if the driver is complying with the conditions expressed in the medical certificate.

Seatbelt Requirements for Passengers in a Taxi

Children Aged Between 6 Months, But Less Than 12 Months Old

Child passengers who are aged within this category are required to be restrained in a suitable and properly fastened and adjusted rearward facing approved child restraint or forward-facing approved child restraint that has an inbuilt harness.

A taxi driver who fails to ensure that this is complied with in his/her taxi vehicle will face a penalty of up to $2,200 if the matters goes to court. (Rule 266(5-1)(a) Road Rules).

Children Aged Between 4-Years-Old, But Less than 7-Years-Old

Child passengers who are aged within this category are not required to be (Rule 266(5-1)(b) Road Rules):

• Restrained in a suitable and properly fastened and adjusted forward facing approved child restrain that has an inbuilt harness; or
• Placed in a properly positioned approved booster seat to be restrained by either a suitable lap and sash type approved seatbelt that is properly adjusted and fastened, or by a suitable approved child safety harness that is properly adjusted and fastened; or
• Restrained by a suitable lap and sash style seatbelt that’s properly adjusted and fastened, or have the hip restrained by a suitable lap type seatbelt that’s properly adjusted and fastened, with the upper body restrained by an approved child safety harness that is properly adjusted and fastened – In the case where the child is seated in a seating position in a part of the vehicle that’s designed primarily for carriage goods,

Children Aged Between 12-Months, But Less Than 16-Years Old

A child passenger aged within this category is required to be:

• Placed on a properly positioned approved booster seat, restrained by a seatbelt that’s properly adjusted and fastened; or
• Occupying a seating position fitted with a suitable approved seatbelt, wearing it in a way that is properly adjusted and fastened.

A taxi driver who fails to ensure that this rule is complied with in his/her taxi will face a penalty of up to $2,200 fine if the matter goes to court. (Rule 266(5-1)(c) Road Rules).

The above maximum penalties of $2,200 for each offence only apply if a person alleged to have committed the offence decides to court-elect the penalty notice/infringement issued by the police, resulting in a Magistrate then being required to hear the case in court where you are then either found guilty or plead guilty.

Unless you receive a section 10 dismissal in court upon making a court-election for any of these offences, you will also be hit with 3 demerit points for each offence along with a fine that can go up to $2,200 at the Magistrate’s discretion.

In the event you do not court elect the infringement/penalty notice for any of these offences, you will be required to pay an on-the-spot fine of $337 and hit with 3 demerit points for each offence upon payment of this fine. In that event, you will not be liable to face a maximum penalty of up to $2,200.

Exceptions to the Requirement to wear seatbelts in NSW

A seat belt is not required to be worn in any one or more of the following circumstances under rule 267 Road Rules 2014:

• Where the authority has authorised, in writing, that a person isn’t required to comply with the seatbelt laws for the purposes of sporting or similar events to be filmed, or to facilitate a special event (Rule 268-1 Road Rules).
• Where the seating position occupied is not fitted with a seatbelt in circumstances:
  1. There’s not a requirement for the seating position to be fitted with a seatbelt; and
  2. All passengers who are exempt from wearing a seatbelt are not occupying a seating position that’s fitted with a seatbelt if the result would be that a passenger who is not exempt from wearing a seatbelt would be required to occupy a seating position that is not fitted with a seatbelt.
• Where a bus or truck has a sleeper compartment, a two-up driver is exempt from wearing a seatbelt while occupying the sleeper compartment for rest purposes.
• Where a passenger is in a bus being used for a public passenger service.
• Where a passenger is providing or receiving urgent and necessary medical treatment.
• Where a passenger is in an emergency or police vehicle in circumstances:
  1. Where the vehicle has two or more rows of seat, the passenger is not in the front row or there’s not a seating position available for him/her in another row of seats; or
  2. Where the passenger occupies a seating position in the cage area of a police vehicle. (or other secured area designed for the carriage of passengers).
• If the person in the vehicle carrying a medical certificate where a medical practitioner expresses that he/she believes the person in the vehicle shouldn’t wear a seatbelt due to medical condition(s).
• If the person is conducting a door-to-door delivery or collection of goods, collection of waste/garbage, where he/she is required to get in or out of the vehicle, or required to turn the vehicle on or off at frequent intervals where the vehicle is travelling no more than 25km/h. (This does not apply to a passenger who is under the age of 7).

Your Legal Responsibility When Driving with Children

Ultimately, it is the driver’s legal responsibility to ensure that all children travelling in the vehicle are properly restrained or have a suitable and approved child restraint which is properly fastened and adjusted.

Otherwise, each child should occupy a seating position fitted with a functioning seatbelt which should be worn properly, adjusted and fastened, even if for short trips.

Failure to comply with these requirements is a serious offence.

The same goes for driving with unrestrained pets in the car. If you want to learn more about the law and penalties for driving with unrestrained pets, you can read about this in our blog covering the harsh penalties you could be facing while driving with your pets.

For urgent advice or guidance around NSW traffic laws, our office is available 24/7 for a free first consultation and fixed fees for traffic cases. We have experienced traffic lawyers across numerous of our offices in NSW.

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