Bills

Road Traffic (Evidentiary Provisions) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 4 December 2018.)

The Hon. K.J. MAHER (Leader of the Opposition) (11:02): The opposition was advised late last week of the urgent need for this bill. I know that in second reading speeches and statements that have been made, ministers of the government in the other place have outlined the reasons for the amendments to this act. The opposition, as they did in the House of Assembly, agree with the reasoning of the police and that there is an urgent need to take the measures that are needing to be taken.

The amendment will allow for the presentation of the certificate that was used to test the Lidar devices in court, overcoming the need to have expert witnesses. We also support SAPOL's position that they do not consider that the actual devices are unreliable; rather the evidentiary requirement has proven more complex than anticipated. There is currently a technical loophole in the law and we need to fix that immediately to ensure that SAPOL, the judiciary and the public are reassured.

We support the minister's statements that there is no reason at all to believe that the devices are in any way inaccurate, and the opposition is happy to facilitate the passing of this bill so that the police can get on with the job of keeping our roads safe.

The Hon. F. PANGALLO (11:03): I rise to speak to support the Road Traffic (Evidentiary Provisions) Amendment Bill 2018, albeit with qualification. The Hon. Vickie Chapman on Tuesday commended her government and SAPOL for their timely response in dealing with the serious legal issues arising from this legislation.

These issues were first identified by the courts at least two years ago. Rather than congratulating themselves and blaming the previous government, it would be more accurate to say that the previous government and this government have both sat on their hands regarding this problem.

It is only now that the revenue from speed cameras has dried up because the handheld Lidar speed cameras had to be urgently withdrawn from use that we have had to be presented with these rushed amendments. The bill, rushed through to us as new amendments, looks more like an attempt to get the devices back in operation and restart the revenue stream than a legitimate attempt to fix the problems raised by the Supreme Court. It certainly differs from the one given to me last Friday and appears to have been watered down following serious concerns I raised earlier this week that it was totally stacked against litigants wanting to defend a prosecution and effectively was closing the door on challenges.

We do not want speeding drivers to think they can game the system and the courts, and get away with speeding. However, the police must take much of the blame for ignoring recommendations in various judgements that clearly spelled out what they needed to do. In July this year, Justice Peek noted in Police v Hanton comments he made in Police v Henderson 2017:

…[if] the police are going to continue to run the same system and just accept the odd setback in terms of a not guilty trial because the cost of that is less than fixing the system, then I might find it to be my duty to write a definitive judgement on the matter.

Hanton highlighted that it was more economical for SAPOL to react to those few brave persons and their equally courageous lawyers who dared to challenge the prosecution, knowing well in advance that the prosecution would fail, than to deal with the legislative defects.

SAPOL has long been aware that the evidentiary certificate upon which the prosecution sought to rely, did not establish that the Traffic Speed Analyser (TSA) unit was shown by the statutory test to be accurate to a particular indicated extent. In each case, the defendant was able to establish proof to the contrary of the fact certified in the s175(3) (ba) certificate. That is, in all these cases the defendant was able to prove that the test conducted by SAPOL was not a test capable of measuring whether the TSA was accurate to the extent indicated in the certificate.

Justice Peek again:

…the statutory test must not be impinged upon by SAPOL’s internal procedures. The adoption by SAPOL of internal procedures such as the five step test plus calibration check procedure must not be considered, in any way, to be a substitute for the required statutory test in RTA s175(3)(ba). The statutory test must be transparent; the question of whether it does in fact show the TSA to be accurate to the extent indicated in the document must be able to be adjudicated upon by a court.

The problem for us all is that this bill does not address the defects so eloquently articulated in Justice Peek's definitive judgement. Do not just take my word for it; SAPOL officers themselves acknowledged in the briefing they gave myself and the Hon. Mark Parnell this week that these amendments will not address all the defects of the legislation. It deals with inconsistencies in the certificates related to dates, but it does not deal with the issues raised by Justice Peek.

Where is the advice of Crown law or the state's top criminal barristers on the Criminal Law Committee of the Law Society of South Australia? Has this advice been sought and incorporated into the bill before us? If it has, I have certainly not seen it. Going by all the filibustering in the other place this week, I would like to know how many of my parliamentary colleagues in the other place did seek guidance from the legal fraternity before firing off?

The Law Society has expressed serious reservations of what is proposed. In a letter to me this week, Law Society president Tim Mellor said the bill did not address problems raised by the Supreme Court, and the society would have preferred time to consult with its members to make further submissions. He said the testing procedure should be transparent and capable of demonstrating the requisite degree of accuracy.

SA-Best is a strong advocate for road safety and utilising the latest technology and methods to reduce death and injury on our roads, including upgrading our roads and infrastructure and ensuring adequate resourcing of SAPOL to do all we can to improve road safety. However, the Road Traffic Act has long provided for a certificate to be used as an averment of the prosecution's usual burden to prove the case against the accused beyond reasonable doubt; that is, if SAPOL decide to rely on the section 175(3)(ba) certificate they then subject the defendant to the significant disadvantage of a reversal of the onus of proof.

To provide an adequate check and balance to such an averment of the common law to ensure that South Australian citizens' legal rights are properly protected there must be strict adherence to the requirements and limits of the section 175(3)(ba) certificate. At best, this bill closes one loophole but does not begin to address the concerns raised by the Supreme Court of South Australia. We expect much better than the legislation on the run that we have been presented with today.

I must say that I was concerned to hear the police commissioner on radio today indicate that SAPOL is now thinking about revisiting the withdrawn prosecutions and that police could also rely on an officer's estimation of speed. Hazarding a guess? That, in itself, is fraught with apprehension. Given confidence in SAPOL took a hit with these knee-jerk reactions and the promise of more court challenges to come, is it not better to get the amendments right? I would think the police minister would want to look at a review of the act next year to shore up the holes still there.

The Hon. S.G. WADE (Minister for Health and Wellbeing) (11:11): I thank the Leader of the Opposition for his contribution and his indication of support. I also thank Mr Pangallo for his at least conditional support for the proposed bill. I think most of the issues he has raised are best addressed in committee and I suggest that it would be useful for the council to support the second reading and for us to undertake the committee stage forthwith.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

The Hon. K.J. MAHER: In terms of certification and testing in South Australia, how do they compare with what is similarly required in other states, particularly New South Wales, in terms of its onerousness? Is it less or more, particularly in terms of what is done in New South Wales on a daily basis?

The Hon. S.G. WADE: I thank the Leader of the Opposition for his question. I cannot give a jurisdiction by jurisdiction overview, but perhaps I can give some observations. This legislation proposes that we reference the Australian standard. Queensland is a jurisdiction that does that. The leader specifically asked about New South Wales, and I am advised that New South Wales refers to statutory rules. In terms of why the government is referencing Australian standards, this is clearly an area where technology develops. My understanding is that the original provisions were inserted into the act in 1964, at which stage I am advised we tested devices by having a car speed past an instrument. Obviously, technology has dramatically developed since then.

One of the reasons why we are in this situation now is that both the processes of the police and the operation of the legislation need to allow for significant development in technology. Whilst it is often not the preference of parliament to reference external documents like Australian standards, in the context of a highly specialised area such as this, the Australian standard at least gives us the opportunity to allow for the rapid development of technology in this area. We do not want to be found in another situation like this when the next model of the device comes out.

The Hon. F. PANGALLO: Will the police rely solely on the Australian standard?

The Hon. S.G. WADE: I am advised that, under this proposed amendment to the legislation, if there is no Australian standard then they will be expected to comply with the manufacturer's specifications but, if there is an Australian standard, it is the Australian standard that they will be required to comply with.

The Hon. F. PANGALLO: The manufacturer's specifications are not an Australian standard.

The Hon. S.G. WADE: Indeed, I take the honourable member's point. That is why they are being used as a fallback. Of course, just as legislation needs to take time to accommodate developments of technology, so do the Australian standards. So what this is trying to do is to make sure, in that period of hiatus between the issuing of a new device, that we can rely on the manufacturer's specifications until a relevant Australian standard is put in place.

The Hon. F. PANGALLO: Are there plans, should this legislation pass, for police to revisit those withdrawn prosecutions?

The Hon. S.G. WADE: The council is well aware that the police commissioner and SAPOL carry independent prosecutorial authority, and whether or not prosecutions of the past are revisited are a matter for the commissioner.

The Hon. F. PANGALLO: Can I ask what the commissioner meant in his comments on radio this morning that another fallback could be making an estimation—that an officer could make an estimation of speed, I gather? How is that done?

The Hon. S.G. WADE: I am advised that there are many ways that an offence can be proven: a reading from a radar gun is only one. I would not dare speak with the authority of the commissioner—it is for him to speak—but I suspect that is what he was referring to.

The Hon. T.J. STEPHENS: Minister, in briefings that I certainly attended—and I would just like to be clear—we were told that there was going to be absolutely no retrospectivity with regard to this legislation that we are rushing through today. Can you please confirm that with me?

The Hon. S.G. WADE: I thank the honourable member for his question. I am advised that the certificates would not be able to be used for past cases, but certificates would be able to be used for cases heard after the legislation is assented to. It has been suggested to me that that would be in the very near future.

The Hon. F. PANGALLO: To make that clear, there is no retrospectivity?

The Hon. S.G. WADE: It is a matter of how you define it, but no past cases would be able to be reopened as a result. Let me seek advice on the best way of expressing that. As I said, it depends on how broadly you want to read that phrase. My advice is that it would not be retrospective in the sense that a certificate cannot be used in relation to previous cases, but if somebody was caught speeding last week and their certificate is going to be in court next week it will be able to be used, if this legislation is passed and once it is assented to.

The Hon. F. PANGALLO: For the sake of clarity, can the minister tell us how these devices are going to be tested, firstly, on the annual basis, and whether they are going to be tested on a daily basis?

The Hon. S.G. WADE: For the sake of clarity, I want to preface my remarks by saying that if this legislation is passed, the laboratory test—the annual test—will be the one that has legal authority. SAPOL will continue to do the five-step test, but that is not the one that has legal authority. I might need to check that. I think it might be better to say that the certificate relates to the annual test and not to the daily test.

If I may sketch both of those for you, the annual test is in the South Australian police force laboratory, but that laboratory is accredited by NATA. The annual test involves a series of scientific tests, which are laid down in the Australian standard. In terms of the operational checks, they are also in the Australian standard, and I will enumerate them for the benefit of the council.

Firstly, there is a physical check. The device should be inspected and not used until any physical damage, which may affect its operation, has been assessed. All seals should be intact, and the certificate needs to be current. Secondly, there is an internal circuit test. The operator shall monitor the device as it performs its circuit test and interpret the result in accordance with the manufacturer's instructions.

Thirdly, there is a display test. The operator shall conduct a display test and ensure that all segments and features of the display are working before using the device. Fourthly, there is sight alignment. The operator shall perform a sight alignment check to verify the vertical and horizontal alignment of the sight with the laser. Finally, there is a range check. A range measurement, taken to a suitable target over a known distance clear of obstructions, shall be within the required accuracy, as stated in AS469.1.

I am advised that it is standard SAPOL practice for those operational checks to take place at least twice a day and, if there is more than one operator, there may be even more tests within one day.

The Hon. F. PANGALLO: Considering the Law Society is saying that this amendment does not address the problems raised by Justice Peek, can I draw a hypothetical: if I was to challenge a speeding fine in court, what would be the requirement from police to produce evidence that this device was tested? What would the police be able to present to show that this device was appropriately tested?

The Hon. S.G. WADE: I am advised that Justice Peek's judgements related to the five-step test. This bill would mean that the certificate would relate to the annual test. To prove accuracy of a device, SAPOL will be able to rely on the certificate, and that certificate would be valid for up to a year. The certificate will relate for a period up to a year but, of course, it can be used beyond a year.

The Hon. F. PANGALLO: So, essentially, there is that statutory test for one year, and you may or may not be able to access information about how the daily testing was done—twice a day. How do we know that that equipment has not been damaged, has not been dropped in that interim period after that statutory certificate was issued?

The Hon. S.G. WADE: I might go back to a previous answer I gave which made the point that the five-step test is taken at the beginning of the day and at the end of the day. It is the current practice of SAPOL that if the second five-step test on the day shows a flaw, then all of the recordings for that day are put aside. So there is no prospect of getting to a situation where somebody is in court having to ask themselves, 'How many times did it pass the five-step process in the previous year?' Obviously, if the test failure is at the beginning of the day, the device would also be put aside and would not relate to any readings that are taken forward for prosecution. So SAPOL's practice will not change, and that can provide, if you like, a double assurance of the accuracy of the device.

The Hon. F. PANGALLO: Could the commissioner or his representative decide that it is not cost effective to adopt all of the manufacturer's recommendations and skip some of the calibration steps?

The Hon. S.G. WADE: No, it would not then be covered by the legislation. It has to meet either the manufacturer's specifications or the Australian standard.

Clause passed.

Remaining clauses (2 and 3) and title passed.

Bill reported without amendment.

Third Reading

The Hon. S.G. WADE (Minister for Health and Wellbeing) (11:42): I move:

That this bill be now read a third time.

Bill read a third time and passed.