Statutes Amendment (Vehicle Inspections and South Eastern Freeway Offences) Bill

Introduction and First Reading

The Hon. S.C. MULLIGHAN (Lee—Minister for Transport and Infrastructure, Minister for Housing and Urban Development) (15:52): Obtained leave and introduced a bill for an act to amend the Motor Vehicles Act 1959 and the Road Traffic Act 1961. Read a first time.

Second Reading

The Hon. S.C. MULLIGHAN (Lee—Minister for Transport and Infrastructure, Minister for Housing and Urban Development) (15:52): I move:

That this bill be now read a second time.

The South Eastern Freeway forms part of the Adelaide to Melbourne road corridor and is an important strategic freight route for South Australia. Adelaide is a significant attractor for freight vehicles with key destinations, including the Port of Adelaide, Adelaide Airport and the city's growing domestic import/export industries.

The South Eastern Freeway is classed as a High Productivity Vehicle access route enabled to cater for Adelaide's increase in freight tasks. To meet the growing demand of freight, this strategic freight route is also approved to carry Performance Based Standard Level 2A vehicles, equal to large B-doubles. Analysis of heavy vehicle movements utilising the South Eastern Freeway indicate that only 10 to 15 per cent of heavy vehicles coming from east of Murray Bridge use the existing heavy vehicle route via Murray Bridge and Sedan to the Sturt Highway and then into Adelaide along the Northern Expressway.

Investigations have identified that a further bypass route cannot be justified on economic grounds, primarily due to the limited number of vehicles that would use such a bypass and the longer distances and travel times associated with alternative route options. Of the heavy vehicles continuing on through the seven kilometres of decline between Crafers and the intersection of Cross, Portrush and Glen Osmond roads, data from the Department of Planning, Transport and Infrastructure shows that only 1 per cent of these vehicles travel north beyond the Northern Expressway onto Port Wakefield Road.

Construction of the new South Eastern Freeway section was completed in early 2000. At the time, it was the largest South Australian road project, costing a total of $151 million, and it was wholly funded by the Australian federal government. The road has a steady decline and was designed and fitted with two safety ramps or, as they used to be called, arrester beds. On a weekday, this section of road carries an average of over 50,000 vehicles per day with over 5,000 of these vehicles being trucks or buses. If a roadworthy heavy vehicle descends this road correctly in a sufficiently low gear and at the right speed, then the vehicle's behaviour and of course the road itself is perfectly safe.

Of the almost 800,000 truck and bus vehicle movements descending into Adelaide each year, nearly all do so in the right gear and at the right speed, but when they do not the results are, as we all know, catastrophic. When a crash occurs at the intersection of Cross, Portrush and Glen Osmond roads, we must remember that our whole community is affected, from the families and friends who must deal with the tragedy to emergency service workers, police, medical professionals and the myriad others who must manage the aftermath of such road traffic incidents.

The real tragedy, however, is that these crashes are wholly preventable, but due to the inappropriate behaviours of an exceptionally small minority of drivers and heavy vehicle owners, who either do not maintain their vehicles or fleet to the required standards of roadworthiness or simply ignore speed limits and warnings about the simple way to descend safely, many in the community can be put at risk when unsafe traffic movements travel down the South Eastern Freeway.

The bill I introduce today has been informed by the work of the Deputy State Coroner, Mr Anthony Schapel, and developed by the government in consultation with South Australia Police, the South Australian Road Transport Association, the Transport Workers' Union, and the National Heavy Vehicle Regulator. The bill is designed to target those drivers and owners whose irresponsible attitudes and behaviours put everyone in our community at risk and also to ensure that the heavy vehicle fleet operating on our roads is maintained at the required roadworthy standards.

This bill has been specifically informed by three of the Deputy State Coroner's recommendations from the inquest into the death of Mr James William Venning. Firstly, in response to recommendations 1 and 2, the bill amends the Road Traffic Act 1961 to create two specific offences for drivers of heavy vehicles on the section of the South Eastern Freeway descending into Adelaide, beginning between Crafers and the intersection of Cross, Portrush and Glen Osmond roads.

The first offence, based on Australian Road Rule 108, is failing to descend the downward track in low gear, and the second is exceeding the set speed limit by 10 km/h or more. These offences will be punishable by an expiation fee of $992, six demerit points and escalating periods of licence disqualification or suspension: six months for a first offence, 12 months for a second, and three years in addition for a third or subsequent offence.

The bill will empower South Australia Police to issue an immediate loss of licence with an expiation notice roadside. For safety-camera detected offences, the Motor Vehicles Act 1959 will be amended to enable the Registrar of Motor Vehicles to apply for a period of licence disqualification or suspension on expiation. For the purposes of determining the appropriate period of disqualification or suspension following an expiation, all previous South Eastern Freeway offences, regardless of whether it was a low-gear or speed offence, will be taken into account. Heavy vehicle owners who fail to nominate an offending driver will also be subject to these penalties.

Should a driver or owner be convicted by a court of either of these offences, then they face for a first offence a maximum fine of $5,000, six demerit points and licence disqualification for not less than 12 months. For a second or subsequent offence, there is no fine. Instead, in addition to six demerit points, licence—

Members interjecting:

The Hon. S.C. MULLIGHAN: Could I call your attention to the misbehaviour of the house?

The DEPUTY SPEAKER: Order on my left! There is too much noise. I cannot hear the minister.

Mr Whetstone interjecting:

The DEPUTY SPEAKER: Who did that?

The Hon. S.C. MULLIGHAN: That was the member for Chaffey.

Mr Whetstone: That was me.

The Hon. S.C. MULLIGHAN: Perhaps, for his benefit, I will start again.

Ms Chapman interjecting:

The DEPUTY SPEAKER: Well, no-one has heard what he said in the first place.

The Hon. S.C. MULLIGHAN: I think it was tedium about the member for Chaffey. For a second and subsequent offence, there is no fine. Instead, in addition to six demerit points, licence disqualification—

Members interjecting:

The DEPUTY SPEAKER: Leader and deputy leader!

The Hon. S.C. MULLIGHAN: I believe both were on a full complement of warnings from question time, Deputy Speaker. In fact, they may have to depart.

Members interjecting:

The DEPUTY SPEAKER: Order!

Members interjecting:

The DEPUTY SPEAKER: Order! I said order! Do not make me stand up. Sit down. My leg hurts and I am not going to stand up, but if this continues we will not be going any further this afternoon. He is entitled to be heard in silence, just as I will afford that right to you when it is your turn to speak.

Mr Marshall: A personal explanation?

The DEPUTY SPEAKER: Yes.

Mr MARSHALL: The minister has asserted that I received a certain number of warnings in question time—

The DEPUTY SPEAKER: I have ignored him, so do please sit down.

Mr MARSHALL: —but that is certainly not the case.

The DEPUTY SPEAKER: Do please sit down. I have ignored him. Minister, let's get a move on please.

The Hon. S.C. MULLIGHAN: Thank you, Deputy Speaker, for your protection. For a second or subsequent offence, there is no fine. Instead, in addition to six demerit points, licence disqualification for no less than three years, in addition to a maximum penalty of two years' imprisonment. For the purpose of determining the appropriate penalty a court will be able to count previous convictions for a South Eastern Freeway offence, regardless of whether it was a low-gear or a speed offence.

The penalty that a court may impose on a body corporate on conviction is a fine no less than $25,000, escalating up to $50,000. The fines for bodies corporate who choose not to nominate drivers have also been substantially increased to a sum comprising the expiation fee and $25,000 for a speeding offence on the South Eastern Freeway descent. This increase in fine, from a current $300 expiation fee for other speeding offences to $25,000, will increase the responsibility for a body corporate to identify the driver of a speeding vehicle.

Second, in response to the 14^th recommendation made by the Deputy Coroner, that all heavy vehicles be the subject of a periodic and frequent safety inspection regime, the bill amends the Motor Vehicles Act and the Road Traffic Act to introduce a mandatory inspection scheme for high-risk heavy vehicles. The bill also provides for a more robust compliance framework for inspections by raising penalty levels for a breach of the code of practice, from $5,000 to $10,000, and providing for additional offences.

The amendment to the Road Traffic Act enables an authorised officer to give directions over the phone to a vehicle operator at a private inspection facility where an authorised officer may not be present if the vehicle presents a critical risk. To ensure the costs in the regions are consistent with the metropolitan area, a cap is proposed on inspection fees conducted by private inspection stations that will be set in regulation.

This bill represents the latest initiative of the government to respond to the findings of the Deputy Coroner. A pilot heavy vehicle inspection scheme commenced on 1 January this year, and it requires heavy vehicles three years of age and older, with a gross vehicle mass or aggregated trailer mass of 4.5 tonnes or more, to be inspected upon a change of ownership. As of May 2017, approximately 600 vehicles were inspected with an average of a 50 per cent failure rate—a frightening statistic that this bill aims to remedy.

Since 2014, the government has taken a number of steps to improve safety on the downward track of the South Eastern Freeway. First, an education campaign has been undertaken on using low gear on the descent rather than the primary brake. This campaign has included posting brochures regarding Australian Road Rule 108 to all South Australian heavy vehicle licence holders, truck owners, freight companies and industry representatives. Information on Australian Road Rule 108 also appears on the website at mylicence.sa.gov.au.

Since late August 2015, the Heavy Vehicle Driver's Handbook has been available online to download for free. Ring-bound copies were also made available at Service SA centres. The first 5,000 copies were free, with some being made available to heavy vehicle training providers, as part of their heavy vehicle licence training package.

Second, the government has taken active steps to promote the use of the two South Eastern Freeway descent safety ramps, or arrester beds, as they were previously known. In conjunction with the release of the handbook online, a 10-minute safety information and training video was developed in collaboration with industry, educators and Ambulance SA to demonstrate how to safely descend the South Eastern Freeway in accordance with Australian Road Rule 108. The video, which can be viewed on YouTube and accessed on the Department of Planning, Transport and Infrastructure website, raises awareness of the locations and the benefits of using safety ramps.

Registered training organisations have updated their training material to include more material on Australian Road Rule 108, Hills driving and the use of safety ramps. To promote their use, the government changed the name of the term 'arrester bed' to 'safety ramp' and now covers the cost for the recovery of a heavy vehicle from a safety ramp, should it be used. Thirdly, signage along the South Eastern Freeway and Dukes Highway has been upgraded and improved.

Promotional signs targeting interstate drivers, who may not have used the South Eastern Freeway previously, were installed at three of the heavy vehicle rest areas on and approaching the South Eastern Freeway at Mount Barker, Tailem Bend and Tintinara. The warning, Penalties Apply, is included on the sign artwork. Advance warning signs advising of the steep descent have been installed seven and 10 kilometres prior to the descent. Flashing amber lights above the last descent warning sign have also been activated.

Fourthly, an improved incident response for industry protocol has been implemented by the government, whereby a number of transport operators are now being sent email alerts of incidents on the freeway that affect heavy vehicle access to the freeway or the use of the safety ramps located on the downward track. This enables these freight operators to provide this information to members of their organisations who may intend to use or do use this part of the road network. In addition to these initiatives to enhance the effectiveness of these new penalties and boost their deterrent effect, work will commence on upgrading the existing safety camera system on the South Eastern Freeway descent adjacent to the Mount Osmond Road interchange.

I have no doubt that some in the community and industry will have concerns about the harsh nature of penalties of this bill. However, this government is unapologetic about the road safety measures included in this package of measures. From the tragic experiences in the past, such as the events in 2014, we all know what can happen when one driver in a heavy vehicle speeds down the freeway, uses the wrong gear or loses control of their truck because of mechanical failure resulting from inadequate maintenance. I commend this bill to members.

I seek leave to have the explanation of clauses inserted in Hansard without my reading it.

Leave granted.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Motor Vehicles Act 1959

4—Amendment of section 20—Application for registration

This clause amends section 20 so that the Minister can require an application for registration to include additional information.

5—Amendment of section 24—Duty to grant registration

This clause amends section 24 so that the Registrar is required to refuse to register a motor vehicle if—

(a) the vehicle is a vehicle of a class prescribed for the purposes of section 139(1)(c); and

(b) the vehicle has been examined under section 139; and

(c) the Registrar reasonably believes that because the vehicle does not comply with an Act or law that regulates the design, construction or maintenance of such a vehicle, the vehicle would, if driven on a road, put the safety of persons using the road at risk.

6—Amendment of section 58—Transfer of registration

This clause amends section 58 so that the Registrar is required to refuse to transfer the registration of a motor vehicle if—

(a) the vehicle is a vehicle of a class prescribed for the purposes of section 139(1)(c); and

(b) the vehicle has been examined under section 139; and

(c) the Registrar reasonably believes that because the vehicle does not comply with an Act or law that regulates the design, construction or maintenance of such a vehicle, the vehicle would, if driven on a road, put the safety of persons using the road at risk.

7—Insertion of section 81BC

This clause inserts new section 81BC to require the Registrar of Motor Vehicles to give notices of licence disqualification or suspension to persons who expiate offences relating to section 45C of the Road Traffic Act 1961.

81BC—Disqualification for certain offences relating to section 45C of the Road Traffic Act 1961

If a person is given an expiation notice for an offence against proposed new section 45C of the Road Traffic Act 1961 (exceeding a speed limit by 10 kph or more, or failing to engage a low gear, on a prescribed part of the South Eastern Freeway in a truck or bus) or section 79B of that Act, as amended by this measure (being the owner of a truck or bus that appears from camera evidence to have been involved in exceeding a speed limit by 10 kph or more on such a prescribed part of the Freeway), and the person pays the relevant expiation fee for the offence, then this section requires the Registrar of Motor Vehicles to give the person a notice of licence disqualification or suspension for the offence.

The period of disqualification or suspension is 6 months for a first offence,12 months for a second offence and 3 years for a subsequent offence (unless the disqualification or suspension is withdrawn or otherwise ended earlier). In determining whether an offence against section 45C is a first, second or subsequent offence, any previous conviction or expiation for an offence against section 45C (regardless of whether the previous offences were speeding or low gear offences or a mixture of the two) committed within the period of 5 years preceding the alleged new offence must be taken into account. In the case of an offence (against section 79B of the Road Traffic Act 1961) of being the owner of a vehicle involved in the speeding offence, any previous conviction or expiation for the same owner offence committed within the period of 5 years immediately preceding the current alleged offence must be taken into account. In each case the period of licence disqualification or suspension must be reduced by any period of disqualification or suspension imposed for the offence by the police by notice under proposed new section 45D of the Road Traffic Act 1961. (Under new section 45D the police are empowered to issue a notice of licence disqualification or suspension for a period of 6 months for these offences).

The provisions relating to the withdrawal of a notice of licence disqualification or suspension, and the effect of the withdrawal of an expiation notice on the continued application of such a notice of licence disqualification or suspension, that apply in the case of a notice issued by the police under section 45D of the Road Traffic Act 1961 also apply to a notice of licence disqualification or suspension issued by the Registrar under this section.

8—Amendment of section 93—Notice to be given to Registrar

This clause amends section 93 of the Act and is consequential on the addition of proposed new section 45E to the Road Traffic Act 1961. If the Magistrates Court makes an order under that proposed new section removing a licence disqualification or suspension imposed under proposed new section 45D of the Road Traffic Act 1961 or proposed new section 81BC of the Motor Vehicles Act 1959, this amendment requires the Court to notify the Registrar of Motor Vehicles of the order.

9—Substitution of section 139

This clause substitutes section 139.

139—Inspection of motor vehicles

Subsection (1) empowers the Registrar or an authorised vehicle inspector to examine a motor vehicle for any of the following purposes:

(a) verifying any information disclosed in—

(i) an application made to the Registrar in respect of the vehicle or any evidence provided by an applicant in response to a requirement of the Registrar under this Act; or

(ii) a notice of the making of an alteration or addition to the vehicle given to the Registrar by a person under section 44 or any evidence provided by a person in response to a requirement of the Registrar under that section;

(b) ascertaining any facts on which the amount of any fee or payment to the Registrar in respect of the vehicle depends;

(c) ascertaining whether—

(i) the vehicle complies with an Act or law that regulates the design, construction or maintenance of such a vehicle; or

(ii) the vehicle would, if driven on a road, put the safety of persons using the road at risk;

(d) ascertaining whether the vehicle or part of the vehicle is or may be stolen.

Subsection (2) provides that a motor vehicle may not be examined for the purposes of subsection (1)(c) unless—

(a) the vehicle is of a class prescribed for the purposes of that subsection; or

(b) an application to register, or transfer the registration of, the vehicle has been made; or

(c) notice of the making of an alteration or addition to the vehicle is given, or is required to be given, to the Registrar by a person under section 44; or

(d) prescribed circumstances exist.

Subsection (3) empowers the Registrar to determine that motor vehicles of a class prescribed for the purposes of subsection (1)(c) must be examined periodically at intervals prescribed by the regulations.

Subsection (4) provides that for the purposes of subsection (1)—

(a) the Registrar or an authorised vehicle inspector may take from any part of a motor vehicle a sample of any liquid fuel used or appearing to be used for propelling that vehicle;

(b) the Registrar, a police officer or an authorised officer may—

(i) enter and remain in any premises at any reasonable time and search those premises for motor vehicles; or

(ii) require a person to produce a motor vehicle at a specified authorised inspection station or other specified place at a specified day and time for the purpose of examination.

Subsection (5) provides that the Registrar, a police officer or an authorised officer may only exercise the powers conferred by subsection (4)(b)(i) in respect of residential premises on the authority of a warrant issued by a magistrate.

Subsection (6) provides that a warrant may not be issued unless the magistrate is satisfied that the warrant is reasonably required in the circumstances.

Subsection (7) provides that an application for the issue of a warrant may be made personally or by telephone and must be made in accordance with any procedures prescribed by the regulations.

Subsection (8) makes it an offence for a person of whom a requirement is made by the Registrar, a police officer or an authorised officer under subsection (4)(b)(ii) to refuse or fail to comply with the requirement. The maximum penalty is $10,000.

Subsection (9) makes it an offence for a person to—

(a) without reasonable excuse, hinder or obstruct an authorised vehicle inspector in the exercise of powers under this section; or

(b) falsely represent, by words or conduct, that the person is an authorised vehicle inspector; or

(c) falsely represent, by words or conduct, that premises are an authorised inspection station.

The maximum penalty is $10,000.

Subsection (10) provides that the Registrar may—

(a) authorise a person, or persons of a specified class, to examine motor vehicles for the purposes of this section;

(b) authorise the use of specified premises as an inspection station for the examination of motor vehicles for the purposes of this section;

(c) make an authorisation subject to such terms and conditions as the Registrar thinks fit;

(d) vary or revoke an authorisation at any time.

Subsection (11) empowers the Minister to establish a code of practice to be observed by persons authorised to examine motor vehicles in accordance with this section and subsection (12) makes it an offence for a person to contravene such a code of practice. The maximum penalty is $10,000.

Subsection (13) provides that a person authorised by the Registrar to examine motor vehicles for the purposes of this section may, with the approval of the Minister, charge fees for the examination of a motor vehicle that exceed the fees prescribed under the Motor Vehicles Act or the Road Traffic Act for that purpose.

Subsection (14) empowers the Minister to grant or revoke an approval for the purposes of subsection (13) as the Minister thinks fit, or make any approval subject to such conditions as the Minister thinks fit.

Subsection (15) defines authorised inspection station and authorised vehicle inspector for the purposes of the section.

10—Amendment of section 139BD—Service and commencement of notices of disqualification

This clause amends section 139BD of the Act to make it clear that a notice of licence disqualification or suspension by the Registrar of Motor Vehicles under proposed new section 81BC must be given to a person in accordance with section 139BD, which means that the notice must be sent by post to, and acknowledged by, the person or else served on the person. The disqualification or suspension commences 28 days after the day specified in the notice or after service of the notice (or at the end of any period of disqualification or suspension that is already in force at that time).

Part 3—Amendment of Road Traffic Act 1961

11—Amendment of section 40G—Application of Subdivision

This clause amends section 40G so that the powers of authorised officers under Part 2, Division 5, Subdivision 2 (sections 40H to 40M) apply in relation to vehicles in or on any premises that are authorised inspection stations under the Motor Vehicles Act. These powers include the giving of directions to stop or move vehicles to enable the exercise of other powers, directions to move vehicles if there is danger or obstruction, directions to leave vehicles and powers to move unattended vehicles to enable the exercise of other powers.

12—Insertion of sections 45C, 45D and 45E

This clause inserts new sections 45C, 45D and 45E into the Act.

45C—Speed and gear restrictions for trucks and buses on prescribed roads

Proposed new section 45C(1) makes it an offence to drive a truck or bus on a portion of the South Eastern Freeway (or adjacent land) prescribed by regulation at a speed exceeding a speed limit applicable to the driver by 10 kph or more. It does not apply in relation to speed limits applicable to passing school buses or passing through emergency service speed zones. Proposed new section 45C(2) makes it an offence when driving a truck or bus on such a portion of the South Eastern Freeway to fail to engage a gear that is low enough to enable the vehicle to be driven safely without the use of a primary brake.

In each case the penalty is a fine of $5,000 for a first offence and imprisonment for 2 years for a subsequent offence. In addition, on convicting a person of either offence a court must order that the person is disqualified from holding or obtaining a driver's licence for a period of not less than 12 months for a first offence and not less than 3 years for a subsequent offence. If the person holds a driver's licence, the licence is suspended for the period of the disqualification.

In determining whether an offence is a first or subsequent offence for these purposes, any previous offence against the section (whether against section 45C(1) or 45C(2)) for which the person has been convicted must be taken into account, but only if the previous offence was committed within the period of 5 years immediately preceding the date on which the offence under consideration was committed.

45D—Power of police to impose licence disqualification or suspension for section 45C etc offences

This proposed new section empowers police officers to give a notice of licence disqualification or suspension to a person for an offence against proposed new section 45C(1) or (2) or an offence against section 79B constituted of being the owner of a vehicle that appears from photographic detection device evidence to have been involved in the commission of an offence against section 45C(1). A police officer can give a person such a notice (specifying the offence to which the notice relates) if the person is given an expiation notice for the offence, or if a police officer reasonably believes that the person has committed the offence. On being given a notice under this section, a person who does not hold a driver's licence is disqualified from holding or obtaining such a licence for the disqualification period and the licence of a person who does hold such a licence is suspended for that period. Particulars relating to the disqualification or suspension are forwarded to the Registrar of Motor Vehicles and subsequently to the person who was given the notice.

The disqualification or suspension commences, in the case of an offence against section 45C, when the person is given the notice of licence disqualification or suspension or (at the discretion of the police officer) 48 hours later. In the case of an offence against section 79B (the owner offence) relating to section 45C(1), the disqualification or suspension commences 28 days after the notice is given to the person. If another period of disqualification or suspension is running at the normal time for commencement then the disqualification or suspension commences when that other period ends.

The period of disqualification or suspension is for 6 months unless: the notice is withdrawn; the proceedings for the offence to which the notice relates are determined by a court or discontinued; the person is notified by the Commissioner of Police that the person is not to be charged with, or given an expiation notice for, any relevant offence; or the Magistrates Court cancels the notice on application under proposed new section 45E.

If a notice of licence disqualification or suspension is given to a person under this section, but no expiation notice is given for the offence, or an expiation notice is given but subsequently withdrawn or the person elects to be prosecuted instead of expiating, then the Commissioner of Police is required to make a determination within a reasonable time as to whether to charge the person with an offence or issue an expiation notice, and if the Commissioner decides not to do either then the Commissioner must send the person written notice to that effect (and must also forward notice of the determination to the Registrar of Motor Vehicles). The effect of the notice of such a determination is to bring the notice of licence disqualification or suspension to an end. Failure to comply with the requirement to make a determination and notify the person does not affect the operation of the notice of licence disqualification or suspension.

If a notice of licence disqualification or suspension is given to a person by the police under this section for an offence and the person is subsequently convicted of the offence (or another offence arising out of the same course of conduct) and the court is required to impose a period of disqualification or suspension as part of the penalty for the offence, then the court is required to take into account any period of licence disqualification or suspension that has applied to the person under this section in determining the length of disqualification or suspension to be imposed by the court.

The Commissioner of Police can authorise the withdrawal of a notice of licence disqualification or suspension issued under this section if the notice has been given to the wrong person, or is defective or for other proper cause, and may, if satisfied that there are proper grounds to do so, authorise the giving of a fresh notice (provided that if the new notice is given to the same person, the period for which the new notice applies must be reduced by any period for which the withdrawn notice applied).

No compensation is payable by the Crown or a police officer in respect of the exercise of powers under this section, but a police officer is not protected if the police officer exercised powers other than in good faith.

45E—Application to Court to have disqualification or suspension under section 45D lifted

Under this proposed new section, if a person is given a notice of licence disqualification or suspension by the police under proposed new section 45D (or is sent particulars of such a notice by the Registrar of Motor Vehicles) but is not given an expiation notice for an offence to which section 45D applies, or is given such an expiation notice but the notice is withdrawn or the person elects to be prosecuted instead of expiating the offence, the person can apply to the Magistrates Court for an order removing the licence disqualification or suspension imposed by the notice.

The Commissioner of Police is a party to the application and can appear through a police officer or legal counsel to make submissions, but can't cross-examine the applicant.

The Magistrates Court may make an order that the person is not disqualified, or the person's licence is not suspended, by the notice issued under section 45D by the police if the Court is satisfied, on the basis of oral evidence given on oath by the applicant, that there is a reasonable prospect that the applicant would, in proceedings for the offence to which the notice relates, be acquitted of the offence and the evidence before the Court does not suggest that the applicant may be guilty of another offence to which section 45D applies. The Magistrates Court may also make such an order if the Court is satisfied that the prosecution authorities have had a reasonable time in which to determine whether or not to charge the person with an offence and have not done so.

13—Amendment of section 79B—Provisions applying where certain offences are detected by photographic detection devices

This clause amends section 79B of the Act to make it an offence to be the owner of a vehicle that appears from evidence obtained through the operation of a photographic detection device to have been involved in the commission of an offence against proposed new section 45C(1) (the offence of driving a truck or bus on a prescribed portion of the South Eastern Freeway at a speed exceeding by 10 kph or more a speed limit applicable to the driver).

The maximum penalty for the offence is, if the owner of the vehicle is a natural person, a fine of $5,000. If the owner of the vehicle is a body corporate, the maximum penalty is a fine of not less than $25,000 and not more than $50,000.

The expiation fee for the offence is, if the owner of the vehicle is a natural person, the expiation fee fixed by the regulations for a section 45C(1) offence. If the owner of the vehicle is a body corporate, the expiation fee is the expiation fee for an alleged offence against section 45C(1) plus $25,000.

If a court convicts a natural person of the offence, the court must order that the person be disqualified from holding or obtaining a driver's licence for a period of not less than 12 months in the case of a first offence or not less than 3 years in the case of a second or subsequent offence. If the person holds a driver's licence, the licence is suspended for the period of the disqualification. In determining whether an offence is a first or subsequent offence, any previous offence against section 79B constituted of being the owner of a vehicle that appears from camera evidence to have been involved in the commission of an offence against section 45C(1) for which the person has been convicted or that the person has expiated that was committed within the period of 5 years immediately preceding the commission of the new offence will be taken into account.

If there is a registered operator of the vehicle, an expiation notice for this offence can only be given to, or a prosecution for this offence can only be brought against, the registered operator.

14—Amendment of section 110AAAA—Certain provisions not to apply to drivers of emergency vehicles

This clause amends section 110AAAA of the Act to indicate that proposed new section 45C does not apply to police officers or other emergency workers if they are taking reasonable care (and their vehicle is, except in some circumstances, displaying flashing lights or sounding an alarm) and it is reasonable that the section not apply to them.

Debate adjourned on motion of Ms Chapman.