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House of Assembly - Fifty-First Parliament, Third Session (51-3)
2009-03-26 Daily Xml
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EXPIATION OF OFFENCES (INDEPENDENT REVIEW) AMENDMENT BILL

Introduction and First Reading

The Hon. G.M. GUNN (Stuart) (10:51): Obtained leave and introduced a bill for an act to amend the Expiation of Offences Act 1996. Read a first time.

Second Reading

The Hon. G.M. GUNN (Stuart) (10:51): I move:

That this bill be now read a second time.

This is an important bill, because the Expiation of Offences Act 1996 has become a revenue measure, not a road safety measure. It is clear that expiation notices are being handed out at an excessively high rate. We all believe that motorists and others should accept the responsibility to be cautious and aware of their actions and the effect they will have on other people. It is absolutely clear that there is a failure to understand the effects of what this parliament has done in relation to the provision of this legislation. When a person receives an expiation notice, then the average person has limited options of defending themselves. I want to give members an absolute example.

The Hon. R.B. Such: I can give you an example.

The Hon. G.M. GUNN: You will enjoy this one. A constituent of mine who is some 75 years of age was given an expiation notice for using a mobile phone while driving a motor car. My constituent was driving across the railway bridge on the outskirts of Port Augusta. My constituent had never owned a mobile phone; he had no knowledge of how to use a mobile phone.

The Hon. R.B. Such: He's a lucky man.

The Hon. G.M. GUNN: He was a lucky man and a law-abiding, good citizen. He had in his motor car his son-in-law and his granddaughter. He was stopped when he pulled into the car wash and handed this notice. The policeman would not see reason when he tried to explain that he did not have a mobile phone. In due course, he received a notice through the post, and the deputy mayor brought him along to see me. We had a discussion and I was not at all impressed by what I was told. I took up the matter, but, of course, I did not get anywhere. I then wrote to the Minister for Police and, of course, I received the usual Sir Humphrey letter saying that it was an operational matter. I said, 'Right, we will test this.'

We managed to convince this aged gentleman that he should go to court. However, in my view, quite disgraceful delaying tactics were used. He went to court; we went with him; and it was deferred. Then the policeman went on holidays.

An honourable member interjecting:

The Hon. G.M. GUNN: Just listen to this. I think he attended on three or four occasions before he actually got into court. He engaged a solicitor. He had to put $2,000 in the solicitor's trust account before the solicitor could defend him. How many pensioners in South Australia have $2,000 to put up in the court? I am pleased to say that, when he got into court, the lawyer did a very good job. The officer in question did not perform too well, and the magistrate took rather a dim view of it and dismissed the case, and ordered over $2,000 expenses to my constituent. That was a good outcome. However, I tell members the stress and strain that put on that aged person was tremendous. It would not worry most of us in here; we can defend ourselves.

That is why there is an urgent need to have an independent review. The lawyer told the prosecution they could not win, but they arrogantly went ahead. In court the officer just kept saying, 'I know what I saw.' When the officer was asked how long did he view it—there had been two cars travelling at 60 km/h—he could not answer the question, which did not do his cause much good. That is why, if a person thinks they have been unfairly or unwisely dealt with, they should be able to say, 'Look, I want to have someone independently review the evidence without having to go through this business in the courts.' If you do that, you lose your right to go to court, but at least is a fairer and more reasonable way to treat these issues.

Parliament has forgotten that, in giving police officers this discretion to write out on-the-spot fines, we have reversed the onus of proof. It is not right. I point out to this house that, in many cases, ordinary people do not understand what their rights are and they become confused and worried and plead guilty. I have another case which is currently pending in the courts where there is clearly a problem. Some people plead guilty because they want to go interstate, they have other things to do, or because the whole system has caught them in a nasty vice grip and they have just paid up. That should not be necessary and that should not be the system.

I put it to this house that this bill creates fairness and puts people on equal footing. If you get caught for speeding, as I understand a number of people in this place may have done—I don't know who they are; it wasn't me—

Mr Pengilly: It wasn't me.

Mr Venning: It was me.

The Hon. G.M. GUNN: You are not the only one; I understand there are many more—or for other breaches of the law and you are guilty, then so be it, but where there is a reasonable case that there is considerable doubt, there ought to be a system in place for some sensible adjudication. If you complain about these things, they are adjudicated by the police. I would say it is Sir Humphrey dealing with Sir Humphrey—Caesar to Caesar. In a democracy we pride ourselves on respecting people's rights. I have brought this bill to this parliament because, from time to time, I have dealt with many of these cases—and people probably get sick of my raising them, but if you do not raise them here, where else should you raise them?

My job is to stick up for people in my electorate, and I will do it right up until the last day, and if that means I come into conflict with certain elements of the bureaucracy, so be it. I will not lose one ounce of sleep over it. I have had other cases where people have been treated in the most horrendous way. We do not all have the ability to have lawyers on hand, and many people do not have the ability to put up $2,000 or $3,000, although most of us here can. We have put in place this system of expiation notices, but what we have not done is put in place adequate funds to give people the ability to obtain legal aid to defend themselves.

That is what is wrong with this whole system, because when you get competent lawyers in court, they can expose the futility of some of these things where they are dealing with magistrates who are fair-minded people. I sat in on this case, and I say that it would be educational and to the benefit of this place if more members of parliament sat in the Magistrates Court and saw at first hand for themselves. You see some people who have done some horrendous things. You also see people who do not have the ability to defend themselves. We have a system where I do not think they can take a friend along to speak for them. On a couple of occasions I would have liked to get up and speak for them because the prosecution was so weak you could run rings around it.

So, my bill is the next best thing to having a fully funded public advocacy system so that people can defend themselves. I commend the bill to the house.

Debate adjourned on motion of Mrs Geraghty.

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