Bills

Statutes Amendment (Transport Portfolio) Bill

Introduction and First Reading

The Hon. S.C. MULLIGHAN (Lee—Minister for Transport and Infrastructure, Minister for Housing and Urban Development) (15:38): Obtained leave and introduced a bill for an act to amend the Expiation of Offences Act 1996, 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) (15:38): I move:

That this bill be now read a second time.

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

Leave granted.

Road traffic laws and regulations are central to keeping our roads safe by preventing and minimising the needless deaths and injuries which each year afflict the South Australian community.

These legislative changes enhance existing road safety measures and promote the smooth and efficient flow of traffic on our roads.

We live in an age marked by constant change, progress and transformation. New knowledge is being generated and practically applied at an unprecedented rate. The way we do things, the technologies we use, and how we apply them are constantly evolving in response to new realities.

If safety on our roads is to continue to improve and our roads are to work the best they can, then the laws which support their operation must also remain effective and relevant and be responsive to these new realities.

The Statutes Amendment (Transport Portfolio) Bill 2017 has been drafted to achieve these objectives and ensure the Road Traffic Act 1961, the Motor Vehicles Act 1959 and the Expiation of Offences Act 1996 continues to support the effective, reliable and responsive operation of our transport and road safety systems.

This Government has progressed a number of transport initiatives to improve and modernise the laws which underpin our transport and driver licensing systems to make them better, faster and fairer. This work has resulted in the identification of further ways things can be done better, more effectively and with greater efficiency.

The Bill I introduce today is about making the laws which regulate our transport and licensing systems, better, fairer, faster and reflective of what community want and expect of government.

The opportunity to discuss these measures in detail will arise in the course of debate, but today I would like to take this time to outline to Members how the measures in this Bill will change the way we do things and will significantly benefit our community.

The first of these measures deals with section 79B of the Road Traffic Act that sets out the procedure by which expiations for offences detected by safety cameras are processed.

Each year, over one quarter of a million expiation notices are issued by the SA Police for offences detected by safety cameras. In over twenty percent of cases, these expiation notices are transferred from the vehicles owner to another driver. Currently, the procedure for an owner to inform the SA Police that another person was driving the vehicle at the time of the offence requires the provision of a formally hand signed & certified statutory declaration.

This is a huge administrative burden for both vehicle owners and the SA Police as the procedure greatly inconveniences members of the public who, to nominate another person, must fill in a statutory declaration, find a Justice of the Peace, or Commissioner for Taking Affidavits, or a proclaimed police officer or a Notary Public, to witness their document and then mail the written form to the SA Police.

This is a procedure better suited to the nineteenth century than the twenty first, where public services are increasing being delivered online, consistent with the Premier's Digital by Default Declaration.

This Bill provides a better way of doing this—by simplifying the process so owners can nominate, another person as the driver of a vehicle which committed the offence on line or in writing rather than by a written statutory declaration.

If needed, Police will be able to require a person who makes a nomination to verify the information via a statutory declaration.

The Bill also creates the offence of providing a nomination statement that is false or misleading. This offence will carry a maximum penalty of $25,000 or four years imprisonment. Minor consequential amendments to the Expiation of Offices Act will also be made to reflect the introduction of this new nomination process.

Amendments will also enable local government to accept nominations rather than statutory declarations to process expiation notices issued for parking offences.

The second matter the Bill addresses also relates to section 79B; specifically the provision which enables a body corporate (a company) which is the registered owner or operator of a vehicle detected by a safety camera committing an offence to pay the expiation and a fee (currently $300 or $600) in lieu of nominating the driver who consequently will not incur demerit points.

This provision was originally put in place to cover off those circumstances where a company genuinely could not identify and therefore nominate a driver. However in the five years between the 2012-13 and 2016-17 financial years nearly one quarter of a million expiation notices were issued to bodies corporate and in about 50 percent of cases the company did not nominate the person driving the vehicle at the time of the offence.

This equates to an average of 1,800 incidents a month where companies elected to pay the expiation and additional fee for safety camera detected offences, and the driver escaped incurring demerit points.

Mr Speaker in this day and age given the regulatory environment companies must operate in and, in particular, their obligations under taxation, occupational health and welfare legislation, and the statutory requirements associated with the exercise of directors' duties and good governance, reputable companies can account for the whereabouts of their vehicles and who are driving them. It is very rare that the driver of a vehicle on a particular day cannot be identified and section 79B will continue to provide for such genuine circumstances.

However, it is simply wrong that some companies can, and do, shield unsafe drivers who break the law by speeding, running red lights and in some case both, from the appropriate consequences of their actions. This puts all other road users at risk and it is simply unfair that ordinary member of the community who accept responsibility for their actions and do the right thing are treated differently to corporate vehicles.

The Bill proposes to address these abuses by providing an incentive which reinforces the obligation of bodies corporate to do the right thing. The penalty which applies to bodies corporate will now be set at five times the expiation amount for the offence rather than the current arrangement of the expiation plus a $300 or $600 fee. This amendment will bring South Australia in line with the corporate multipliers in other jurisdictions.

The third matter the Bill addresses is the way expiation notices for first and second offences for driving an unregistered or uninsured or both vehicle are dealt with.

Schedule 1 of the Motor Vehicles Act provides a seven day grace period from when the first and second camera detected registration offences are issued to the vehicle's owner. The gap is to allow natural justice for the recipients; a person may travel the same route daily and could easily amass numerous fines before receiving the first expiation by mail.

The number of photographic detection devices, and timeframes for mail delivery have increased in recent years thereby undermining the provision's effectiveness. The Bill proposes to address this by extending the grace period to 14 day between first and second offences.

The fifth and sixth matters the Bill specifically addresses deal with are the provisions which enable SA Police to impose an immediate loss of licence for high level drink driving and excessive speeding offences which pose a real and present danger to other road users.

The current provisions make it difficult to revoke an immediate loss of licence if it is issued to the wrong person, defective or it is later determined it should not have been issued. Currently, immediate loss of licences can only be withdrawn on application to Court and on application of the person on the notice. This is a cumbersome process and is not consistent with the principles of natural justice, administrative efficiency or good governance.

The Bill proposes to addresses these matters by amending section 47IAA of the Road Traffic Act to enable the Commissioner of Police to authorise the withdrawal of a notice if it has been given in error, defective or should not have been given in the first place. The new provisions will also enable the Commissioner to, in appropriate circumstances, authorise a fresh notice to be given. If a fresh notice is issued any period of licence disqualification already served must be taken into account.

The use of immediate loss of licences has also given rise to some procedural issues for courts, in calculating disqualification periods, during sentencing. The Bill streamlines this process by enabling a Court to backdate the period of licence disqualification it imposes to the commencement of any applicable period of loss of licence previously issued by the Police.

The seventh matter this Bill seeks to remedy is the disruptions, delays and road safety risks which arise on the arterial road network when light vehicles are illegally parked in clearways, bus lanes and bicycle lanes.

Clearways, bus lanes and bike lanes are critical for keeping traffic moving on the State's arterial road network, especially during peak periods, but when they're blocked by illegally parked vehicles they cause bottle necks, delays and may encourage dangerous manoeuvres by motorists, such as, swerving into other lanes to avoid these obstacles.

This initiative, which is part of the State Government's Operation Moving Traffic project, provides an additional mechanism to remove illegally parked light vehicles that cause these obstructions.

Data from the Department of Planning, Transport and Infrastructure, obtained through traffic counts, indicates that the number of vehicles on ours roads has steadily increased over the last ten years at a rate of 1.7% per annum. Therefore, as this increase is cumulative the effects of vehicles contravening a clearway, bike lane or bus lane on congestion will continue to escalate year by year. On a South Australian road that is at full capacity it is calculated that every one minute of obstruction leads to up to four minutes of congestion affecting our motorists.

The value of keeping lanes open, especially during busier times, is more than evident in the benefits already achieved by extending clearway times along Greenhill Road – saving motorists up to one minute in some sections. Whilst a minute doesn't sound like much, it can often feel longer for a motorist waiting at traffic lights or in a queue of cars.

Based on a model similar to that used in New South Wales, the Bill will provide for the removal of light vehicles that are in breach of a clearway, bus lane or bike lane on a prescribed road. It is proposed that this work will be carried out by an independent towing operators contracted by the Department of Planning, Transport and Infrastructure.

Vehicles will be removed to a convenient place such as a nearby street, within a one kilometre radius of where each vehicle was illegally parked, that is considered safe, unlikely to cause further obstruction and not in contravention of other traffic or parking laws. The vehicle will be secured by the towing contractor, with a charge for the tow to be imposed. Where no convenient place is available or the vehicle cannot be secured, it will be towed and stored at a depot.

Tow away signs that will be placed at clearways, bus lanes or bike lanes on prescribed roads will provide drivers with the contact information to obtain details of where a vehicle has been towed to. A letter will also be sent to the registered owner of the vehicle advising of the location to which the vehicle has been towed and the amount owing for the tow.

Under this scheme the registered owner of an unattended light vehicle parked in contravention of a clearway, bike lane or bus lane will be charged for the cost of the tow. This cost is estimated to be approximately $180. This will be recoverable as a debt against the registered owner.

This initiative, which is supported by the Local Government Association, South Australia Police, the Royal Automobile Association and the Adelaide City Council, will benefit our community by improving travel times, keeping traffic moving and making our roads safer.

The eighth initiative which will be progressed by this Bill are changes to the Motor Vehicles Act 1959 directed at improving road safety by ensuring all licence holders gain the requisite driving experience at each licensing level. Currently, when a learner's permit, provisional , or unrestricted driver's licence is suspended, but not cancelled through disqualification, the time spent on suspension continues to count towards the minimum periods a person is required to hold that licence or permit.

The amendment put forward in the Bill will enable the Registrar of Motor Vehicles to stop the clock so that any period the licence is suspended cannot count towards satisfying the minimum time periods the person must hold a licence.

This measure will contribute to better road safety outcomes by ensuring all applicants for driver's licences put in the required hours and gain the practical driving experience they must have before they can progress to the next licensing level for a light vehicle or gain a higher licence classification such as those required to safely and competently operate heavy vehicles, buses, semi-trailers, prime movers or road trains.

Finally, the Bill inserts a new section into the Road Traffic Act that will enable councils to fix their own expiation fees for certain offences prescribed by regulations. It is intended that certain parking offences, such as the Australian Road Rules offences of overstaying time in a parking space and failing to pay the meter fee or obey instructions, will be among those offences prescribed by regulations. It is also intended that the regulations will specify that any fee set by a council must be lower than the fee set by State Government.

This new section has been developed in response to a request from Adelaide City Council to reduce the amount of parking expiation fees. Under this measure, councils will be able to choose whether to fix lower fees or to keep those set by the State Government.

This Bill has been developed from proposals put forward by the Department for Planning Transport and infrastructure, South Australia Police, the Royal Automobile Association and the Adelaide City Council.

Mr Speaker, this Bill will deliver fairer outcomes for all South Australian by better aligning road traffic, motor vehicle and licensing legislation and regulations with the principles of natural justice, contributing to the reduction of traffic congestion, and cutting cut red tape.

I commend this Bill to members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Expiation of Offences Act 1996

4—Amendment of section 11—Expiation reminder notices

5—Amendment of section 11A—Expiation enforcement warning notices

6—Amendment of section 16—Withdrawal of expiation notices

The amendments made by these clauses to the Expiation of Offences Act are consequential on the amendments to section 79B(2) of the Road Traffic Act made by this measure—see clause 20.

Part 3—Amendment of Motor Vehicles Act 1959

7—Amendment of section 5—Interpretation

This clause amends section 5 to provide that for the purposes of the Act (other than section 81A), in determining the period for which a person has held a licence, learner's permit, foreign licence, interstate licence or interstate learner's permit, any period during which the person's licence or permit has been suspended under the Act or another law of this State is not to be taken into account (unless the suspension came into operation before the commencement of this provision).

8—Amendment of section 81A—Provisional licences

This clause amends section 81A to provide that for the purposes of that section—

(a) in determining the period for which a person has held a P1 licence or P2 licence or whether a person has completed a P1 qualifying period or a P2 qualifying period, any period during which the person's licence has been suspended under the Act or another law of this State is not to be taken into account (unless the suspension came into operation before the commencement of this provision); and

(b) in determining the period for which a person has held a non-provisional licence or non-provisional interstate licence, any period during which the person's licence has been suspended under the Act or another law of this State is not to be taken into account (unless the suspension came into operation before the commencement of this provision).

9—Amendment of section 81AB—Probationary licences

This clause amends section 81AB to provide that for the purposes of that section, in determining the period for which conditions imposed under section 81AB have been effective on a licence, any period during which the licence has been suspended under the Act or another law of this State is not to be taken into account (unless the suspension came into operation before the commencement of this provision).

10—Amendment of section 81E—Circumstances in which licence will be subject to mandatory alcohol interlock scheme conditions

This clause amends section 81E to provide that for the purposes of that section, in determining whether the mandatory alcohol interlock conditions of a person's licence have been effective for the prescribed period, any period during which the person's licence has been suspended under the Act or another law of this State is not to be taken into account (unless the suspension came into operation before the commencement of this provision).

11—Amendment of section 81G—Cessation of licence subject to mandatory alcohol interlock scheme conditions

This clause amends section 81E to provide that for the purposes of the section, a person ceases to hold a licence if the licence is suspended under the Act or another law of this State, and in determining a period for which mandatory alcohol interlock scheme conditions have applied in relation to a person, any period during which the person's licence has been suspended under the Motor Vehicles Act or another law of this State is not to be taken into account (unless the suspension came into operation before the commencement of this provision).

12—Amendment of section 83—Consequences of certain orders or administrative actions outside State

This clause amends section 83 so that if the Registrar becomes aware that a person's licence or other authority to drive in another State or Territory has been suspended, the Registrar must refuse to issue a licence or learner's permit during the period of suspension. It also amends the section to provide that if the Registrar becomes aware that a person's licence or other authority to drive in another country has been suspended, the Registrar may refuse to issue a licence or learner's permit during the period of suspension.

13—Amendment of Schedule 1—Evidence obtained by photographic detection device

Schedule 1 clause 2 of the Motor Vehicles Act currently provides that if—

(a) the registration of a motor vehicle has expired; and

(b) a person is given an expiation notice for an offence against section 9 or 102 of the Act (a registration offence) detected by means of a photographic detection device; and

(c) since the vehicle was last registered, that person has not been charged with, or been given an expiation notice for, a registration offence arising out of a different incident involving that vehicle,

the first offence subsumes all other camera detected registration offences involving that vehicle and committed by that person within 7 days of the date of the commission of the first offence.

This clause amends Schedule 1 clause 2 so that the period during which offences are subsumed is increased from 7 days to 14 days.

Part 4—Amendment of Road Traffic Act 1961

14—Amendment of section 40J—Direction to move vehicle if danger, obstruction or unlawfully standing on road

This clause amends section 40J to empower an authorised officer to direct the driver or operator of a light vehicle that is standing unlawfully on a portion of a prescribed road that is a prescribed place to move the vehicle or do anything else reasonably required to ensure that the vehicle is not unlawfully standing on a road.

15—Amendment of section 40L—Manner of giving directions under Subdivision

This clause amends section 40L to allow directions to be given to a driver orally, by telephone or electronic mail, by means of a sign or signal (electronic or otherwise), or in any other manner.

16—Substitution of heading to Part 2 Division 5 Subdivision 3

This clause substitutes a heading.

Subdivision 3—Power to move or remove vehicles if danger, obstruction or unlawfully standing at certain places

17—Insertion of section 40NA

This clause inserts new section 40NA.

40NA—Removal of unattended vehicles unlawfully standing at certain places

Subsection (1) empowers an authorised officer who believes on reasonable grounds that a light vehicle is unattended and unlawfully standing on a portion of a prescribed road that is a prescribed place to authorise a person to remove the vehicle by moving or towing it away.

A vehicle must be removed to a place (not being more than 1 kilometre away from the place where the vehicle was found unattended) that, in the opinion of the authorised officer, is the nearest convenient place at which the vehicle may lawfully stand without—

causing harm, or creating a risk of harm, to public safety, the environment or road infrastructure; or

causing or being likely to cause an obstruction to traffic or any event lawfully authorised to be held at that place; or

obstructing or hindering, or being likely to obstruct or hinder, vehicles from entering or leaving land adjacent to the place.

If, in the opinion of the officer, there is no convenient place within 1 kilometre from the place where the vehicle was found unattended at which the vehicle may lawfully stand or the vehicle cannot be secured against theft of the vehicle or its contents, the officer may authorise a person to remove the vehicle by moving or towing it to a place that is used as a repository for vehicles that are removed.

Subsection (2) empowers an authorised officer to authorise a person removing a vehicle to enter the vehicle for the purpose of removing it, or in the case of a combination, to separate any or all of the vehicles forming part of the combination for the purpose of removing any or all of the vehicles.

Subsection (3) provides that a person engaged to move or tow away the vehicle may take such action as is necessary or reasonable to facilitate the moving or towing of the vehicle in a manner that does the least damage to the vehicle.

Subsection (4) provides that a person engaged to move or tow away a vehicle must not remove the vehicle unless there is in force a current policy of public liability insurance indemnifying the owner of the vehicle being removed in an amount not less than the prescribed amount in relation to any damage to the vehicle or other property belonging to the owner of the vehicle caused by, or arising out of, the driving or towing of the vehicle in connection with its removal. A maximum penalty of $10,000 is fixed for a contravention.

Subsection (5) requires a person engaged to move or tow away a vehicle to—

take all reasonable steps to secure the vehicle against theft of the vehicle or its contents; and

take all reasonable steps to ensure that the vehicle is not damaged by moving or towing it; and

take photographs showing the condition of the vehicle at the place to which it had been moved or towed.

Subsection (6) requires the owner of a vehicle that is removed by towing to pay the Minister a tow-away charge of an amount determined by the Minister.

Subsection (7) requires a tow-away charge to be paid within the period and in such manner as is determined by the Minister.

Subsection (8) provides that a person engaged to tow away a vehicle must ensure that a written notice specifying the tow-away charge payable by the owner of the vehicle and the period within which it must be paid is attached to the vehicle after it has been removed.

Subsection (9) empowers the Minister to waive or reduce a tow-away charge if satisfied that it is appropriate to do so in a particular case.

Subsection (10) enables the Minister to recover a tow-away charge as a debt.

Subsection (11) defines authorised officer and prescribed road.

18—Amendment of section 40P—Notice of removal and disposal of vehicle if unclaimed

This clause amends section 40P to require a person who removes a vehicle under section 40N or proposed section 40NA to give the owner of the vehicle notice in the prescribed manner forthwith of the removal of the vehicle, the place to which it was removed, the amount of any tow-away charge payable and the period within which it must be paid.

19—Amendment of section 47IAA—Power of police to impose immediate licence disqualification or suspension

This clause amends section 47IAA so that if—

(a) a period of licence disqualification or suspension has applied to a person as a result of having been given a notice of immediate licence disqualification or suspension under the section; and

(b) a court convicts the person of the offence to which the notice relates or another offence arising out of the same course of conduct; and

(c) a mandatory minimum period of disqualification would (apart from subsection (9)) be required to be imposed for the offence,

then—

(d) the court must order that the person be disqualified from holding or obtaining a driver's licence for a period determined by the court (and if the person is the holder of a driver's licence, the disqualification operates to cancel the licence from the commencement of that period); and

(e) despite any other provision of this or any other Act, the court must, in determining the period, take into account the period of licence disqualification or suspension that has applied to the person as a result of the notice and may for that purpose—

(i) if the relevant period of licence disqualification or suspension under the notice has not ended, order that the period imposed be taken to have commenced on the day on which the relevant period commenced (provided that the period imposed is not less than the mandatory minimum period of disqualification); or

(ii) if the relevant period of licence disqualification or suspension under the notice has ended, impose a period that is less than the mandatory period of disqualification (provided that the period imposed is not less than the difference between the mandatory minimum of disqualification and the period that has applied as a result of the notice),

and if the person is the holder of a driver's licence, the licence will be taken to have been cancelled—

(iii) where subparagraph (i) applies—from the day on which the order of the court is made; or

(iv) where subparagraph (ii) applies—from the commencement of the period of disqualification ordered by the court.

New subsection (19) allows the Commissioner of Police to authorise the withdrawal of a notice of immediate licence disqualification or suspension if satisfied that it should not have been given because it was given to a particular person in error, or the notice is defective, or there is other proper cause for which it should not have been given.

New subsection (20) provides for the withdrawal of a notice of immediate licence disqualification or suspension to be given in a manner and form determined by the Commissioner of Police.

New subsection (21) provides that a notice of withdrawal must specify the reasons for the withdrawal.

New subsection (22) empowers the Commissioner of Police to authorise the giving of a fresh notice of immediate licence disqualification or suspension if satisfied that there are proper grounds for doing so.

New subsection (23) requires the Commissioner of Police to notify the Registrar of Motor Vehicles of the withdrawal of a notice of immediate licence disqualification or suspension or the issue of a fresh notice.

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

This clause amends section 79B to increase penalties, expiation fees and to alter the process for nominating another person as the driver of a vehicle involved in the commission of an offence detected by means of photographic detection devices.

The maximum penalty for an offence against subsection (2) (being 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 a prescribed offence) is increased to $10,000 for a body corporate and to $5,000 for a natural person. The expiation fee for an offence where the owner is a body corporate is increased so that it is the amount obtained by multiplying by 5 an amount equal to the expiation fee, or sum of expiation fees, for the alleged offence or offences where the person is a natural person.

The nomination process is altered so that instead of furnishing the Commissioner of Police with a statutory declaration stating the name and address of some person other than the owner who was driving the vehicle at the time of the alleged offence, the owner must give the Commissioner of Police a nomination stating the name and address of some other person who was driving the vehicle. The nomination is to be made in a manner and form approved by the Minister and be given to the Commissioner within 28 days after the owner is given an expiation notice or summons (as the case may be), or within such longer period as the Commissioner may allow if satisfied that exceptional circumstances exist in the particular case. The Commissioner may require information in a nomination to be verified by statutory declaration.

New subsection (13) empowers the Commissioner to permit a nomination to be withdrawn and a new one to be made if the Commissioner believes the original nomination was made in error.

New subsection (14) provides that a person must not, in making a nomination for the purposes of section 79B, make a statement that is false or misleading in a material particular. The maximum penalty is a $25,000 fine or imprisonment for 4 years.

21—Amendment of section 174A—Liability of vehicle owners and expiation of certain offences

The amendments made to section 174A by this clause are consequential on the amendments to section 79B(2) of the Act made by this measure—see clause 20.

22—Insertion of section 174CA

This clause inserts new section 174CA.

174CA—Council may fix expiation fees for offences against prescribed provisions

Subsection (1) empowers a council to fix expiation fees for alleged offences against provisions of the Act or regulations prescribed by regulation that are committed within the area of the council. The council can vary or revoke the fees that it fixes.

Subsection (2) provides that a council must fix, vary or revoke such expiation fees in a manner and form prescribed by regulation and in accordance with the regulations.

Subsection (3) provides that an expiation fee fixed by a council under this section in relation to a provision of the Act or regulations applies to alleged offences against that provision committed within the area to which the fee applies despite any expiation fee that might be fixed for an alleged offence against the provision under another provision of the Act.

Subsection (4) provides that this section applies despite any other provision of the Act.

Subsection (5) empowers the Governor to make regulations dealing with matters relating to the fixing, varying or revoking of expiation fees under this section.

Debate adjourned on motion of Mr Knoll.