Statutes Amendment (Suspension of South Eastern Freeway Offences) Bill

Second Reading

The Hon. F. PANGALLO (18:01): I move:

That this bill be now read a second time.

I rise to speak to the Statutes Amendment (Suspension of South Eastern Freeway Offences) Bill 2019 that I introduced to the Legislative Council yesterday. This bill is to amend the Motor Vehicles Act 1959 and the Road Traffic Act 1961. The South Eastern Freeway carries in excess of 50,000 vehicles every day, and 4,400 of these are estimated to be heavy vehicles.

Sadly, in 2014, we witnessed a number of serious truck crashes on the down track of the South Eastern Freeway that involved large trucks losing control due to a range of factors, including excessive speed, failure or improper use of braking systems, truck defects and driver error. These resulted in the loss of many lives and many more cases of serious injury and trauma.

In response to these serious accidents, and in response to some but not all of the Coroner's report recommendations from his inquest into the death of Mr James Venning in 2015, the government of the day enacted legislation in late 2014 that limited the speed that trucks and vehicles over 4.5 tonnes and buses over 12 seats could do to 60 km/h on that section of down track between the Crafers interchange and the tollgate, to prevent a recurrence of such crashes.

Despite the legislation being passed in 2014, regulations did not come into effect until 2 April 2019, and legislation did not come into effect until 1 May 2019 when the specialised speed cameras able to detect these offences on that section of the South Eastern Freeway were installed and finally become fully operational. The new cameras could now detect trucks and buses under the new laws, not just vehicles with five or more axles. Drivers of those larger vehicles with five or more axles have been subject to this legislation since 2014, and thus are highly aware of these offences. Not so the drivers of the newly-defined trucks and buses, who were unaware of these laws that started to impact on unsuspecting drivers on 1 May this year.

In the first two months of its operation, 380 expiation notices were issued under these new laws; 267 of these were for driving at, or more than, 10 km/h over the 60 km/h speed limit, or failing to brake appropriately. The media reported that police issued more than $3.3 million worth of fines in just 61 days. Of those, 122 fines have been sent to companies which face a $26,000 fine unless they name the driver. Those figures are only to 30 June 2019, as figures for the past three months have not been released yet.

During this period, traffic lawyers and hundreds of constituents have contacted me, and I know they have also contacted many other honourable members of this parliament to express their extreme frustration with these new laws. Most reported that they had had their licence disqualified or were about to lose it. Just as a note, today I checked my inbox and there were another half-dozen complaints.

I wrote to the Minister for Transport, Infrastructure and Local Government, the Hon. Stephan Knoll, on 2 October 2019, asking him to suspend prosecution of all current South Eastern Freeway offences and to impose a 90-day moratorium on issuing new fines while he conducts a review of the legislation, but I have yet to receive a response. Nor has the government taken any steps to address the obvious problems with this legislation.

Constituents explained to me that not one of them understood that the new laws meant that their vehicle met the new definition of truck or bus, or that in many instances these definitions were inconsistent with the vehicle's actual registration and the licence category required to drive them. For example, some drivers have exemptions to drive vehicles over 4.5 gross vehicle mass and buses over 12-seaters on a C class licence, yet these vehicles subject the driver to these new, more restrictive laws.

Similarly, often vehicles of less than 4.5 tonnes GVM are listed with a body type of a truck and have been wrongly captured by this law. As many have commented, the intentions of this law were very good and they still support those, but the unintended consequences make this a very bad law that needs to be fixed.

Take the case of Ilario Lerace, who hired a Toyota HiAce to transport his family visiting from Italy all around Adelaide. The hire company gave him an introduction to the vehicle, and he was told he could drive it on his C class licence. He was not informed that there were specific laws applicable to the bus being a 14-seater, which was detected at 74 km/h on what Ilario believed to be a 90 km/h stretch of the South Eastern Freeway. He is facing not only the loss of his licence for six months, a fine of $1,096 and the loss of six demerit points but also the very real prospect that he will lose his job as a driver valet attendant with Airport Security Parking. This is despite having an unblemished driving record for over 46 years.

Or take the case of Mr Matthew Ford, whom the Hon. John Gardner, member for Morialta, has advocated for by asking the Commissioner of Police, and the Minister for Police, Emergency Services and Correctional Services, the Hon. Corey Wingard, for leniency because the vehicle Mr Ford was driving had unknowingly been recently assigned the status of a truck.

Another constituent, a part-time driver for a council, raised the peculiarities where vehicles like a 4x4 dual cab weighing 3.2 tonnes GVM can tow a 10-metre long, three-tonne caravan, giving it a total weight of six tonnes, and yet can travel at 80 km/h. This law, based on weight and speed, can capture a small 4.58-tonne tray top truck with no load, which he drove for the first time and was caught four days in a row doing 72 km/h when he thought he was in an 80 km/h zone.

Another example relayed to me is that of business owner Brent Broadman, whose wife paid the fine for his incorrectly registered Ford F350, which was captured by this law. Thankfully, due to the efforts of his lawyer, Karen Stanley, Mr Broadman was able to have his fine reversed. That is an uncertain, expensive and high-risk option to pursue, as the penalties for first offences double if you elect to be prosecuted. In addition, if you elect to be prosecuted, the first fine offence increases to a potential $5,000.

To add to the confusion, some buses with only 12 seats are registered as having 14 seats. Car hire companies advertise 14-seater buses as requiring only a C class licence. I have dozens of constituents who have contacted me to advise that they have lost their licence for driving a 12-seater bus which was registered as a 14-seater bus, but they were entitled to drive on a C class licence. SAPOL advise that it is the registration of the vehicle, not the actual configuration of the truck or bus, that captures that driver.

The department may have advised the registered owners of vehicles of these new laws, but there are many drivers of these vehicles who do not own them, and they do not receive any notification. The department's notification has fallen well short of ensuring that there was sufficient media coverage, a comprehensive education campaign or adequate signage installed. Personally, I had never heard of this law before constituents started contacting me, but the more I heard from constituents and the more I looked into what was going on, the more I understood the confusion and disruption this was causing.

Transport minister, the Hon. Stephan Knoll, expects drivers to know the GVM of a truck or a bus that you and I can drive on a C class licence. I understand the member for Mount Gambier, Troy Bell, and the member for Enfield, Andrea Michaels, have also been inundated with constituent complaints about these laws.

This bill aims to address all these unintended consequences and replace them with provisions that are intended to address the issues that have by now become well known to the government as needing remedial action. On assent, this bill amends section 81BC of the Motor Vehicles Act 1959 in regard to disqualification for certain offences relating to section 45C of the Road Traffic Act 1961. This amendment removes the disqualification of licence penalty for a first offence under these provisions. Instead, it inserts new penalties for the second, third or subsequent offences.

The unintended consequence of this legislation has been that it has imposed a mandatory loss of licence of six months for first offences. This has meant that trucks over 4.5 tonnes and buses over 12 seats, which were not the problem that the legislation sought to address, have been inadvertently captured by this legislation.

This has meant that volunteers driving small buses on a C class general licence have suffered an instant loss of licence and substantial fine for exceeding the speed limit of 60 km/h by more than 10 km/h, or not being in the designated lane on a small section of the down track of the South Eastern Freeway. I am aware that some councils no longer have volunteer bus drivers because the drivers have either lost their licence or are no longer willing to risk losing their licence.

The other dangerous unintended consequence of this is that small private and commercial tourist buses such as winery tour 14-seaters have been forced to occupy the truck lane at very slow speed, often sandwiched between two enormous trucks of over eight tonnes for a very slow, stressful trip being tailgated down this specific section of the freeway. It is the opinion of expert drivers and trainers that it is only a matter of time before these small buses are mown down by the trucks they are forced to share one lane with.

The imposition of a mandatory loss of licence for six months, or 12 months if you elect to be prosecuted rather than expiate the fine, is too heavy-handed and is capturing drivers other than those the legislation was originally intended to address. A lack of consistent information and communication to anyone other than the owners of vehicles, combined with inadequate education, training and signage, has meant that this legislation has unfairly impacted those it was not intended to target.

On assent, this bill also amends section 45C of the Road Traffic Act 1961 in relation to speed and gear restrictions for trucks and buses on prescribed roads by revoking the speed and gear restrictions that currently apply. Six months after assent, this bill amends section 45C of the Road Traffic Act 1961 in regard to speed and gear restrictions for certain trucks and buses on prescribed roads to alter these to more realistic specifications. A restricted bus is a bus with a GVM over eight tonnes, and a restricted truck is a truck with a GVM over eight tonnes.

This provision addresses the hundreds of ridiculous scenarios that have occurred where the drivers of large utes, small trucks of just over 4.5 tonnes and buses with only 14 seats have lost their licences for going 70 km/h on the 60 km/h section of the freeway from Crafers Interchange to the tollgate. There have been some instances where these offences have been waived by SAPOL because of incorrect registration of a truck or bus, but what about the poor law-abiding citizens who expiate the fines then make the shock discovery that they have also lost their licences?

In determining if a section 45C or section 79B offence is a first or second offence in relation to whether a disqualification is to apply, convictions and expiations within the preceding five years will be taken into account, so my bill in fact strengthens the deterrent effect and disincentives for committing a second, third or subsequent offence. An added benefit is that if a driver is given an expiation notice, they are made aware that their vehicle meets the definition of a truck or a bus. This eliminates any argument that they did not know that the law applied to their vehicle.

There is still an incentive to expiate an offence as the potential penalties applicable by a court if you choose to be prosecuted for a second, third or subsequent offence are higher than the expiated loss of licence periods but lower than the double penalty the court must currently apply to a first offence and subsequent offences under the existing laws. The expiation fines and the demerit point penalties also remain unchanged, with the court only considering convicted offences in determining if it is a second or subsequent offence in relation to the fine and demerit penalty to apply. This provides a deterrent and disincentive to reoffend as well as fairness in how the court treats the fine and demerit penalties.

Six months after assent, the bill also amends section 45D in relation to the powers of police to impose licence disqualifications or suspensions of section 45C offences to be consistent with the above provisions. It also amends section 79B in relation to the provisions applying where certain offences are detected by photographic devices to be clear that only second and subsequent offences detected by photographic detection devices will result in a licence disqualification penalty and that previous convictions and expiations will be taken into account in regard to licence disqualification.

The bill has to vary the Road Traffic (Road Rules—Ancillary and Miscellaneous Provisions) Regulations 2014 to revoke regulation 9C. This regulation currently provides that the low gear offences that normally apply to trucks and buses—that is, rule 108 of the Australian Road Rules—does not apply on the South Eastern Freeway. The result is that only the section 45C(2) offence will not apply for six months and thereafter will not apply to trucks and buses that are under eight tonnes. Under the commencement clause it will be removed as soon as the section 45C(2) offence is suspended.

My bill is to address the shortcomings of the current law while still improving safety, as the original bill intended. The legislation has good intentions, yet like many good intentions this went astray. It is up to us to identify these problems and rectify them. I thank the Office of Parliamentary Counsel for their outstanding work on this private members' bill, especially since I do not have the resources of an entire department and the ministerial office that minister Knoll has.

I commend the bill to the chamber, and I flag the need for urgency to fix this confusion quickly. I give notice to honourable members that I would like to bring this bill to a vote on 13 November.

Debate adjourned on motion of Hon. J.S.L. Dawkins.