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House of Assembly - Fifty-First Parliament, Second Session (51-2)
2007-11-14 Daily Xml
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MOTOR VEHICLES (MISCELLANEOUS) AMENDMENT BILL

Second Reading

Second reading.

The Hon. J.D. LOMAX-SMITH (Adelaide—Minister for Education and Children's Services, Minister for Tourism, Minister for the City of Adelaide) (15:55): I move:

That this bill be now read a second time.

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

Leave granted.

The Government is committed to improving road safety and ensuring that recidivist drivers are held accountable for their actions. As part of this commitment, the Government has introduced this Bill, the Motor Vehicles (Miscellaneous) Amendment Bill 2007, to improve the operation and administration of the Motor Vehicles Act 1959 and most importantly, to close a number of loopholes which allow drivers to avoid a licence sanction or condition placed on their licence.

In July 2005 the Hon Minister for Transport established a Driver Penalty Enforcement Taskforce, a cross-government committee comprising of representatives from South Australia Police, the Courts Administration Authority, the Attorney General’s Department, the Department for Transport, Energy and Infrastructure and the Motor Accident Commission, to review and identify loopholes in the current driver licensing system. In many cases these loopholes only exist due to a technicality in the legislation which makes it possible for drivers to avoid certain consequences or circumvent a rule without actually breaking the law, or may be due to an omission or ambiguity in the law itself. Whether closing a loophole to prevent drivers from manipulating the law, or correcting an administrative anomaly, in all circumstances, the amendments are limited to ensuring that the legislation operates as it was originally intended.

The most significant loophole identified by the Taskforce was one which allowed disqualified drivers to claim that they had never received a licence disqualification notice, thereby avoiding a charge of driving while disqualified. Each year approximately 20,000 of the State's 1,050,000 driver’s licence holders face a disqualification for the accumulation of 12 or more demerit points within a 3 year period or for breaching their good behaviour condition, or other licence or permit conditions. The Registrar of Motor Vehicles has previously advised that there are probably 1,500 to 2,000 repeat offenders who are continuing to drive although they have been disqualified. In order to be liable to a licence disqualification, a person must have committed a number of traffic offences or breached a condition of their licence or permit. From a road safety perspective, these are individuals who often place the well being of other motorists at risk.

To ensure disqualified drivers are held accountable for their actions, the Bill proposes a variation to the current procedure, placing more stringent requirements on recipients of a notice of disqualification.

Under the proposed provisions, a recipient of a notice of disqualification issued by the Registrar of Motor Vehicles will be required to attend a Customer Service Centre or nominated agent, for example Australia Post, to acknowledge receipt of the notice. If the licence holder does not respond, a process server will be engaged to serve the notice personally on the licence holder. The costs of introducing these new requirements will be borne by the licence holder and prescribed by the regulations. In particular, a $24 administration fee will be introduced, payable at the time of acknowledgment, to cover the cost of administrative requirements such as verifying the identity of a licence holder, witnessing their signature, and processing and storing source documents for evidentiary purposes. This documentation is essential in enabling SAPOL to prosecute any licence holder subsequently detected of driving while disqualified. Where a process server is engaged, the licence holder will be required to pay a $60 process server fee, in lieu of the $24 administration fee. In cases where the process server cannot find the licence holder, the Bill provides the Registrar with the power to refuse to transact any business under the Motor Vehicles Act with him or her until receipt of the notice of disqualification is acknowledged.

The use of registered mail, which is a cheaper and more convenient means of service, cannot guarantee personal receipt of the notice or provide the proof required by a court. Experience has shown that too many disqualified drivers simply will not accept or collect a registered letter if they suspect it contains a notice of disqualification.

This loophole is considered to offer the single greatest opportunity for recidivist traffic offenders to avoid a licensing penalty. The introduction of personal service for notices of disqualification issued by the Registrar of Motor Vehicles is expected to increase compliance with permit and licence disqualifications and improve enforcement of the Demerit Points and Graduated Licensing Schemes. Following successful prosecutions, recidivist traffic offenders may be less likely to drive until they are legally able to do so, or even better, may modify their driving behaviour to avoid demerit points that accumulate and result in licence disqualification, leading to an improved road safety outcome. While these new procedures cannot guarantee all drivers, whether disqualified or not, will abide by the road rules, it will ensure that those caught flouting the law by driving under disqualification cannot avoid the penalty for driving disqualified.

The remaining driver licensing amendments addressed within the Bill are minor in nature - they address situations that occur less frequently, do not involve as many drivers, and are generally the result of drafting inconsistencies due to successive amendments over the life of the legislation.

In particular, the Bill:

ensures that, irrespective of when demerit points for an offence are incurred, the penalty for driving offences, applies to the time when the offence was committed, and not when it was expiated or settled in court. This principle is similar to that which applies across other provisions of the Act in relation to demerit points and ensures that the legislation operates as it was always intended. This amendment will prevent drivers, who have delayed payment of an expiation notice or court proceedings for an offence, from avoiding a licence disqualification (where a driver has breached a good behaviour condition), or from avoiding an extension of provisional licence conditions (where a provisional licence holder has incurred 1, 2 or 3 demerit points in respect of offences committed prior to their 19th birthday), even if the offender has already progressed to an unconditional (full) licence.

ensures that, in all circumstances, a licence disqualification will only commence upon the conclusion of any other disqualification period already in force. This will prevent learner’s permit, provisional and probationary licence holders from serving a disqualification for a breach of licence conditions at the same time as another disqualification, which effectively means that they avoid the second penalty by serving it concurrently with other penalties. This provision already exists under the Demerit Points Scheme but has never applied to a disqualification for breaching a condition of a learner’s permit or provisional or probationary licence;

provides the Registrar of Motor Vehicles with the necessary discretion to suspend or cancel a South Australian driver’s licence when the licence holder has had their driver’s licence disqualified by an interstate authority as the result of an administrative order. At present, the legislation only allows the Registrar to cancel a South Australian licence. This amendment will ensure that the Registrar can give effect to the equivalent of the interstate penalty without the South Australian licence holder being unfairly disadvantaged; and that the impact of an administrative order is the same for a South Australian licence holder as it would be for a licence holder from the other jurisdiction;

allows foreign licence holders, who have received their permanent residence visa prior to arriving in Australia, to drive on their valid foreign licence for up to 3 months after their arrival, before having to apply for a South Australian driver’s licence. While this amendment reflects what was always intended under the National Driver Licensing Scheme, the current provision provides foreign licence holders to drive on their valid foreign licence for up to 3 months from the time of issue of the permanent residence visa. Following advice that the issue of a permanent residence visa may occur well in advance of a person’s arrival in this country, this amendment will relieve the burden upon foreign licence holders who were previously required to apply for a South Australian driver’s licence upon their immediate arrival in this State and will only have a positive impact upon business and the broader economy.

A transitional provision has also been incorporated into the Bill to ensure these amendments are not retrospective and will only apply to licence holders who commit an offence on or after the commencement of the legislation.

At present, the deterrent effect of licence disqualifications under the Demerit Points and Graduated Licensing Schemes is reduced, as persistent traffic offenders are able to manipulate the law so as not to be held accountable for their actions. These anomalies have already been highlighted in the media and are now well known in the community. Failure to take corrective action is likely to increase the numbers of offending drivers and potentially places the safety of other road users at risk through their driving behaviour.

Closing these driver licensing loopholes and correcting various administrative anomalies within the legislation will improve the effective operation and administration of the legislation, improve compliance with, and enforcement under, the Demerit Points and Graduated Licensing Schemes and will ultimately improve road safety for all road users.

I commend the Bill to the House.

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 5—Interpretation

This clause amends section 5 by replacing the definitions of foreign licence and licence, and inserting a definition of learner's permit. These changes are consequential on other amendments made by the Bill.

5—Amendment of section 81A—Provisional licences

This clause makes a number of minor semantic changes to section 81A to achieve consistency of expression with other provisions of the Act. It also amends the section to ensure that if a person who holds a P2 licence incurs any demerit points in respect of offences committed or allegedly committed while under the age of 19 years and the person would be under the age of 20 years when the prescribed period ends, the P2 licence conditions will be effective until the person turns 20.

6—Amendment of section 81B—Consequences of holder of learner's permit, provisional licence or probationary licence contravening conditions etc

This clause makes a number of minor amendments to section 81B that are consequential on proposed section 139BD.

7—Insertion of section 81BA

This clause inserts a new section to enable P2 licence conditions to be re imposed if a person, while holding an unconditional licence, incurs 1 or more demerit points in respect of offences committed or allegedly committed while the person was under the age of 19 years and held a provisional licence.

81BA—Consequences of holder of unconditional licence incurring demerit points in respect of offences committed while holder of provisional licence

Subsection (1) provides that if a P2 licence is renewed as an unconditional licence and the holder subsequently incurs 1 or more demerit points in respect of offences committed or allegedly committed while under the age of 19 years and held a provisional licence, the Registrar must give the person notice requiring the person to surrender the licence and informing the person that if they comply with the notice, they will be entitled to a refund of a proportion of the licence fee and to be issued a P2 licence (provided they are not disqualified or otherwise legally prevented from holding or obtaining a licence). The notice must also inform the person that if they do not comply with the notice, the Registrar may suspend their licence until it is surrendered.

Subsection (2) provides that the notice may be given by post.

Subsection (3) provides that, subject to the Act, if a person to whom notice is given surrenders the person's licence, the Registrar must, on application by the person and payment of the prescribed fee, issue a P2 licence to the person.

Subsection (4) provides that the conditions applying to a P2 licence issued to a person under this section following the surrender of an unconditional licence are effective for a period equal to the period for which such conditions would have continued to be effective under section 81A if any demerit points incurred in respect of offences committed or allegedly committed while the person was under the age of 19 years had been incurred by the person while the person held a provisional licence.

Subsection (5) provides that if a person fails to comply with a notice given to the person, the Registrar may suspend the person's licence until the licence is surrendered.

8—Amendment of section 81C—Disqualification for certain drink driving offences

9—Amendment of section 81D—Disqualification for certain drug driving offences

The amendments made by clauses 8 and 9 are consequential on proposed section 139BD.

10—Substitution of section 83

This clause repeals section 83 and substitutes a new section.

83—Consequences of certain orders or administrative actions outside State

This section requires the Registrar to take action in relation to a licence or learner's permit to give effect to an order or administrative action that affects a person's licence or other authority to drive a motor vehicle in another State or Territory as if the order or administrative action had been made or taken in this State in relation to the licence or permit. In the case of a foreign order or administrative action, the Registrar has a discretion whether to take action in relation to a licence or learner's permit.

The section also provides that if a person is disqualified from holding or obtaining a licence or other authority to drive a motor vehicle in another State or Territory, the Registrar is required to refuse to issue a licence or learner's permit during the period of disqualification. If a person is disqualified in another country, the Registrar has a discretion to refuse to issue a licence or learner's permit to the person.

11—Amendment of section 97A—Visiting motorists

This clause amends section 97A to allow an Australian permanent resident or citizen to drive in this State pursuant to a foreign licence if the person has not resided in this State for a continuous period of more than 3 months.

12—Amendment of section 98BD—Notices to be sent by Registrar

The amendments made by this clause are consequential on proposed section 139BD.

13—Amendment of section 98BE—Disqualification and discounting of demerit points

This clause amends section 98BE so that if a person incurs 2 or more demerit points in relation to offences committed or allegedly committed while the holder of a licence subject to a condition to be of good behaviour for 12 months, the person is disqualified from holding or obtaining a licence for a period twice that which would have applied if the person's licence had not been subject to such a condition. At present this disqualification is imposed if the demerit points are incurred while the licence is subject to the condition, regardless of when the offences were committed or allegedly committed. The clause also amends the section so that the Registrar can allow an election to accept a licence condition to be of good behaviour to be made up to 28 days after the day specified in the notice of disqualification.

14—Amendment of section 136—Duty to notify change of name, address etc

This clause amends section 136 by including an additional provision requiring the holder of a driver's licence, learner's permit or trade plates, or a registered owner or the registered operator of a motor vehicle, to notify the Registrar of a change of postal address within 14 days of the change. A maximum penalty of $250 is fixed for non compliance.

15—Insertion of section 139BD

This clause inserts a new section dealing with the service of notices of licence disqualification and their commencement.

139BD—Service and commencement of notices of disqualification

Subsection (1) requires notices of disqualifications to be served in accordance with this section.

Subsection (2) requires a notice of disqualification to be sent by post in the first instance.

Subsection (3) provides that the Registrar must, in the notice sent by post, require the person to attend, within the period specified in the notice, at a specified place of a kind prescribed by the regulations to personally acknowledge receipt of the notice, and to pay the prescribed administration fee. The notice must inform the person that if he or she fails to do these things, another notice will be served personally, the person will be required to pay the prescribed service fee and, in the event of personal service not being effected, the Registrar may refuse to transact any business with the person until they pay the service fee and personally acknowledge receipt of the notice.

Subsection (4) provides that if a person fails to comply with a notice of disqualification, the Registrar must issue another notice and cause it to be served on the person personally.

Subsection (5) provides that if an attempt to serve a notice of disqualification personally is unsuccessful, the Registrar may refuse to enter into any transaction with the person until they pay the prescribed service fee and personally acknowledge receipt of the notice.

Subsection (6) provides that for the purposes of the Act a notice of disqualification is taken to have been given to a person when the person personally acknowledges receipt of the notice or the notice is personally served.

Subsection (7) provides that a notice of disqualification must specify when it will take effect in accordance with this section.

Subsection (8) provides that a notice of disqualification receipt of which is personally acknowledged takes effect 28 days after the day specified in the notice. If a notice is served on a person personally it takes effect 28 days after the day of service.

Subsection (9) provides that if, at the time that a notice of disqualification is due to take effect, a person is already disqualified from holding or obtaining a licence or permit, the notice of disqualification will instead take effect on the termination of that prior disqualification.

Subsection (10) empowers the Registrar to reissue a notice of disqualification.

Subsection (11) defines notice of disqualification to mean a notice under section 81B(2), 81B(11a), 81C(2), 81D(2), 98BD(2) or 98BE(2a).

16—Amendment of section 139C—Service of other notices and documents

Clause 16 amends section 139C which enable notices and other documents to be sent to a person at his or her last known "place of residence, employment or business". The term "postal address" is substituted so that documents can also be sent to a post office box address.

17—Amendment of section 141—Evidence by certificate etc

Clause 17 amends section 141 which enables proof of compliance or non compliance with section 136 to be tendered in legal proceedings or arbitrations by means of a certificate signed by the Registrar. This amendment is consequential on the changes to section 136 made by this Bill.

Part 3—Transitional provision

18—Transitional provision

This clause ensures that an amendment to the Motor Vehicles Act made by a provision of Part 2 of this Bill does not apply in relation to offences committed or allegedly committed before the commencement of that provision.

Debate adjourned on motion of Mr Venning.

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