ROAD TRAFFIC (USE OF TEST AND ANALYSIS RESULTS) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 15 September 2010.)

The Hon. I.F. EVANS (Davenport) (12:11): I rise as the lead, and I believe only, speaker for the opposition on the Road Traffic (Use of Test and Analysis Results) Amendment Bill 2010. The reason we are here is that this is a bit of an embarrassment for the government. The government made an error in legislation in 2005.

The Hon. K.O. Foley: Did I?

The Hon. I.F. EVANS: You did, Treasurer. You might even have put out a press release about it eventually. The government made an error in 2005 in legislation, and, five years later, we are back here correcting the error of the government's own making.

This particular bill deals with the South Australian Motor Accident Commission (commonly known as MAC) and it deals, of course, with the state's compulsory third-party scheme. Prior to 2005, MAC had the ability to use and admit into evidence the readings of oral, fluid and blood samples taken compulsorily and the consequential certificate of analysis which is the report, if you like, of those readings. It could submit them in the evidence for the purposes of seeking reductions under the Civil Liability Act 1936 for intoxicated drivers or in recovery actions under section 116 or section 124A of the Motor Vehicles Act.

This was amended in 2005 by the government in an attempt to close possible loopholes of the samples being used in other forums outside of the Road Traffic Act and the Civil Liability Act. Regrettably, this change mistakenly resulted in the certificate of analysis, also known as the blood alcohol certificate (or BAC in the industry) not being able to be used in pursuing recoveries against drunk drivers under the Civil Liability Act 1936.

So, as a result of the change to the legislation in 2005, when the Motor Accident Commission went to seek recovery against a drunk driver, from 2005, it could not actually use the blood alcohol certificate as evidence of the person's drunken state and then try to recover the moneys as such.

The police could still tender the blood alcohol certificate as evidence under the Road Traffic Act but, for the purpose of recoveries, the Motor Accident Commission could not use the blood alcohol certificate by way of evidence. Obviously, that restricted the capacity of the Motor Accident Commission to recover moneys; therefore, that ultimately leads to less money in the fund, which ultimately leads to a reduced solvency level and which leads to a different premium outcome. They are not huge dollars, but it all has an impact.

The Road Traffic Act specifically prohibits the use of blood taken and the BAC for any other purpose other than an offence under the Road Traffic Act or the Motor Vehicles Act, or a driving-related offence. Prior to 2005, it could be used for purposes relating to the Civil Liability Act, which is the act that gives the MAC its capacity to seek recovery. Without this evidence, proving intoxication and degrees of intoxication is very difficult—if not impossible—in some cases. This has the potential to escalate significantly the annual cost of compensation to the CTP fund, thus placing pressure on premiums.

The amendments to schedule 1, part 4, clause 8 are being extended, again, for the purpose of bringing in proceedings under the Civil Liability Act. This bill seeks to reinstate the use of the blood alcohol certificates for the purpose of seeking reductions under the Civil Liability Act for intoxicated drivers or recovery actions under sections 116 or 124 of the Motor Vehicles Act.

It is important that people who have their blood taken have their interests protected. The blood alcohol certificate can be used only under this specific amendment of the Civil Liability Act. It cannot be used for other purposes outside of the specific clauses of the Road Traffic Act or now, as a result of this bill (if passed in the other place), the Civil Liability Act. I did contact the Law Society and the Australian Lawyers Alliance—

The Hon. M.J. Atkinson: I wouldn't worry about them.

The Hon. I.F. EVANS: The former attorney-general says that you would not worry about them.

The Hon. M.J. Atkinson: The latter.

The Hon. I.F. EVANS: The latter? I do remember the member for Croydon having a running battle with a president of the Law Society at some time. But, if the former attorney's advice is not to worry about them, I am sure that the Australian Lawyers Alliance will be pleased to read that in Hansard.

I did write to both those groups seeking their advice. The Law Society of South Australia has written to the opposition saying that it has no issues with the bill. I did seek some further information from the Treasurer and his officers. I should thank the officers for an excellent briefing, and the information is as follows. I asked whether they could provide the amount of money recovered or sought to be recovered by the Motor Accident Commission over the last three years and what had actually been recovered.

The advice is that, with respect to the reservation of rights activity (they are files that are referred for recovery action), for the financial year 2008 the number of files referred was 79 and the value of files referred in dollar value was about $19.3 million rounded off, being an average of about $244,000. In 2009, the number of files referred was 92 and the value of files was about $29.3 million, the average being about $318,000. For 2010, the number of files referred was 79 and the value of files referred was only about $7.9 million rounded off, being an average of about $99,800 rounded off.

I should clarify that, as the claim payments occur and recovery amounts crystallise, the value of the files referred for recovery in 2010 will further increase. When you look at the statistics for 2010, recovery of $7.9 million looks low, but that will increase as further claim payments occur. In relation to the actual amounts paid, as distinct from claimed, I am advised that in 2008 the total recovered for reservation of rights was $428,000 (rounded down); in 2009, $674,000 (rounded down); and, in 2010, $596,000 (rounded down).

The note explains that many of the recoveries were received via instalment payments and therefore comparing receipts against actual referrals will give a false performance outcome. I guess the point they are making is, for instance, in 2009, of $29.3 million in claims we have actually only received $674,000 and it is clear there is a time payment, or an instalment payment, process occurring there.

The opposition has no objection to the bill. We do not oppose it. We totally accept the government's argument that it made a mistake in 2005 and needs to come here and correct it. I cannot quite work out why it took five years to pick up this mistake. It may well have been a result of a court case.

The Hon. M.J. Atkinson: We do not appear to be as insightful as you are.

The Hon. I.F. EVANS: I accept the member for Croydon's advice that they are not as insightful as the opposition. I am glad to have that—

The Hon. M.J. Atkinson: No, as you.

The Hon. I.F. EVANS: Not as insightful as the member for Davenport? I am happy to have that on the record. The opposition supports this bill and has no questions.

The Hon. K.O. FOLEY (Port Adelaide—Deputy Premier, Treasurer, Minister for Federal/State Relations, Minister for Defence Industries) (12:21): I thank the opposition for its support, but I equally rebuff the suggestion that this is a mistake. This is a matter of unintended consequences from the original drafting. The member for Davenport and I, in our many years of debating in this chamber, have always agreed on one thing: we are lousy on the law—which is a bit of a problem because we are making them. But, on legal interpretations, the member for Davenport and myself are perhaps not the sharpest tool in the kit, together.

I am advised that, with all the best intentions when this law was drafted, it would have done what the amendment we are now placing before this house seeks to clarify. We have had senior counsel look at this. The matter arose in 2008, and MAC drafted the bill in 2009 to deal with it. Unfortunately, with elections and other matters before the parliament, it has taken a little longer to get to the house than we would otherwise have preferred. But, as we know—and the former attorney-general would attest to this—sometimes when we have the best crown law advice it is not quite perfect.

The Hon. M.J. Atkinson: It is very good. It is the best advice.

The Hon. K.O. FOLEY: It is very good, and it is the best advice we have available, and of course there is no shortage of lawyers out there earning a handsome fee challenging laws all the time. Every now and again, unintended consequences occur and the government has to deal with them in this place. That is the context of this piece of legislation. I thank the opposition for its wholehearted support.

Bill read a second time and taken through its remaining stages.

[Sitting suspended from 12:24 to 14:00]