MOTOR VEHICLES (THIRD PARTY INSURANCE) AMENDMENT BILL

Committee Stage

In committee.

(Continued from 9 November 2010.)

Clause 1.

The Hon. I.F. EVANS: On clause 1, is it still the minister's intention to proceed with the debate, given that the Motor Trade Association has written to members of parliament asking for the debate not to proceed? I understand there were discussions with the minister and the Motor Trade Association in the last couple of days to the effect that they do not want the bill to proceed because they still have so many major concerns with the bill.

Rather than go through the whole committee stage, is the government's intention still to proceed with the debate? If so, why? With any changes the Motor Trade Association might seek, this house and the Independents will be denied the opportunity to actually contribute to those issues if we just flick it to the upper house. So, at clause 1, is it the government's intention still to proceed with the debate? The letter I have from the Motor Trade Association states:

Given our concerns (and I understand from a number of other organisations) in relation to this Bill, we respectfully ask that you seek to have this Bill deferred from completion of debate until our issues are addressed.

This legislation, in our view is poorly drafted and will have negative impacts on not only our members but indeed any business which either consigns or receives goods in this State...

John Chapman

The Hon. J.J. SNELLING: It is our intention to proceed with the bill. I met with Mr Chapman and the MTA's legal adviser on Monday, and the MTA put to me their concerns with the bill. There has been ongoing consultation with the MTA since November of last year. I do not think we can reach agreement with them; they have implacable opposition. We have attempted to address some of their concerns, but I do not think we are going to reach agreement. I undertook to meet with the MTA, which I have done and, having heard their case, I do not think that we are going to be able to come to an agreement with them.

Clause passed.

Clause 2.

The Hon. I.F. EVANS: Clause 2 deals with the commencement, and the commencement in the bill is to be by proclamation. What date or time period does the government see this bill commencing in? Is it going to go immediately through the upper house and then be proclaimed, or is it going to be six or nine months? At what point do you see this bill actually commencing as an act?

The Hon. J.J. SNELLING: I do not see any reason why there would be any delay in the proclamation of the bill coming into effect, once it has made passage through both houses.

Clause passed.

Clause 3 passed.

Clause 4.

The Hon. I.F. EVANS: Clause 4 deals with amendments to the Motor Vehicles Act, and it deals with amendment of section 99 in particular. There are eight different parts to clause 4 and, if I am restricted to three questions for the whole clause, that is not even one question per part.

The Hon. J.J. Snelling interjecting:

The CHAIR: Yes, I see your point of view—the minister has demonstrated his generosity—and I think we can go subclause by subclause.

The Hon. J.J. SNELLING: Within reason.

The CHAIR: Within reason, clearly.

The Hon. I.F. EVANS: To help the minister out, let me deal with the issues in clause 4, Nos 1 to 4 first and then I will deal with Nos 5 to 8 as a separate issue, and that will narrow it down just to key issues, I guess. Clause 4, subclauses (1) to (4), deals with the interpretation clause of section 99 of the existing Motor Vehicles Act.

Subclause (1) deals with inserting into the Motor Vehicles Act a definition of the 'heavy vehicle driver fatigue scheme', and it brings into the definition the scheme of management as defined by the regulations in the Road Traffic Act, which is a South Australian act; then any heavy vehicle driver fatigue scheme 'established under the law of another state or a territory'; and then or 'brought within the ambit of this definition by the regulations'. So, on the commencement, I assume the minister's department has already had the regulations written, otherwise there will be a delay in the commencement. However, I take the minister on his word that they are going to implement it virtually immediately; so one assumes that the regulations are nearly written.

What guarantee, minister, is there about another state regulating differently from our state under a heavy vehicle driver fatigue scheme? In subclause (1), minister, you say that it can be a heavy vehicle driver fatigue scheme as established by the South Australian act or by another state or territory. Another state or territory will also have regulations under its act, which will bind under this act. So, when there is a conflict between those two, which one takes precedent and how are you going to guarantee there are no conflicts, otherwise the drivers are at risk of having two definitions apply to the same issue?

The Hon. J.J. SNELLING: The Motor Accident Commission is liable in cases where an accident occurs interstate if the vehicle is registered in South Australia. So, for example, if a vehicle registered in South Australia has a crash in Victoria, MAC is liable for a payout for the accident. So, in establishing the cause of responsibility, you have to have established that a law in that jurisdiction where the accident has occurred has contributed to the accident. You basically need this provision because MAC is liable for crashes that occur interstate if that vehicle is registered in South Australia.

The Hon. I.F. EVANS: The second part of clause 4 deals with inserting a definition of what the government is defining as 'parties in the chain of responsibility'. This is specifically in relation to the heavy vehicle driver fatigue scheme where, later on in the bill, they seek to make parties in the chain of responsibility in relation to the heavy vehicle driver fatigue scheme responsible, and possibly liable, for claim back by MAC for injuries they may have contributed to.

Now, the committee knows I am not a lawyer, which is probably a blessing, but the Law Society's advice to the opposition is that the definition is so complex that it is essentially not to be supported. I read, for the sake of the committee, its submission on this particular point:

The Sub-Committee—

which is the sub-committee of the Law Society—

consider that the use of wording 'party' is so broad and 'chain of responsibility' so complex that it will likely involve lengthy investigation, legal disputation, costs and uncertainly with reference to apportionment of liability and recovery of excess.

Those contemplated to be captured will have serious insurance issues if they are pursued.

The specialist committee of the Law Society has looked at this issue and said that it is all too complex and all too broad. The committee does not even know who is going to be a party in the chain of responsibility; that is going to be as specified by regulation.

Why is this important? Under this bill, parties in the chain of responsibility for the heavy vehicle driver fatigue scheme will become liable under later clauses if they are deemed to have aided, abetted and essentially contributed to the relative offences consisting of driving while fatigued, driving essentially exceeding the allowable work drive time or not having the required rest. Somehow, if the parties in the chain of responsibility have contributed to that, they are going to be liable for possible claim back by MAC for all their costs, or at least the costs attributable to that person's contribution to the injury as judged by a court.

Now, the Law Society simply makes the point that the word 'party' is way too broad and the chain of responsibility so ill-defined that the clause is essentially unworkable. The South Australian Road Transport Association, the specialists in the freight industry, do not support this clause either. Their preference is to leave the act as it is. I cannot find one body, outside of MAC, that supports this particular definition going in. I make the point that those people opposed that particular provision, which leads onto all the other provisions.

Clause 4(3) deals with the relevant offences. The relevant offences are going to be the offences that the drivers can be charged with under the heavy vehicle driver fatigue laws, where a claim back can be made by MAC against the driver or the parties in the chain of responsibility. I think in my second reading contribution I outlined where I thought the government might be going in relation to what a party might be. The three relevant offences are: consisting of driving while fatigued; exceeding the allowable work time for a driver; or failing to have required rest time for a driver.

The way the bill was originally crafted, if those three offences occurred, there was an automatic claim back, even if the commission of that offence did not lead to all of the injury. The government, I think by its own amendment, is now going to try to restrict the claim back to the expenses having been spent relating directly to the offence, which is a narrowing down of the provision and is certainly a better drafting than the original. They are just a few comments, if you like, in relation to those issues.

For those who are not sure who the government is talking about in the parties in the chain of responsibility, if you look at my second reading contribution you will see that they are not only the driver but the owner, the person who ordered the goods and the warehouse manager. All of these people are now going to be potentially liable for a claim back against MAC. Let us be clear what we are talking about here: we are talking about an injury occurring and MAC coming to you, as the warehouse manager, and proving that somehow you contributed to it. Then there is going to be the question mark about whether your business insurance will cover that claim back. It could be $100,000, half a million dollars, or $5, but, whatever the figure is, whether your business insurance will cover it.

If you are an employee, what are the circumstances there? Who knows what the employer would do and whether you are actually going to have to find the money privately, which means your house is at risk as a direct result of this particular provision. That is why the Law Society has such trouble with it. It is so broad and so ill-defined and it covers such a huge area that is open to interpretation. It is unusual for the Law Society but its argument is that, essentially, this is going to be a lawyers' picnic in relation to any claims.

I want to go to another point which is far more complex, but I will leave that until after question time, so we might break.

The Hon. J.J. SNELLING: I would like to respond with regard to the initial matter raised by the member for Davenport. Parties in the chain of responsibility is not a new concept. It is a concept that already exists in the Road Traffic (Heavy Vehicle Driver Fatigue) Regulations which, I am told, have been in operation since 2008. So, for two years this concept of there being parties in the chain of responsibility has existed in these regulations.

The Hon. I.F. Evans interjecting:

The Hon. J.J. SNELLING: No, they are the same regulations. When we are talking about regulations in here—and I will be corrected—we are talking about the regulations pertaining to the heavy vehicle driver fatigue scheme which are already in operation. This is not something new. This is something that already exists and has existed since 2008. So, the parties in the chain of responsibility definition is referring back to the definition which already occurs in these regulations.

Progress reported; committee to sit again.

[Sitting suspended from 13:00 to 14:00]