HANSARD
SITTING CALENDAR
SEARCH
LIVE BROADCAST
Hansard Dynamic Member Index
House of Assembly - Fifty-Second Parliament, First Session (52-1)
2011-02-23 Daily Xml
Contents
Pdf Xml

MOTOR VEHICLES (THIRD PARTY INSURANCE) AMENDMENT BILL

Committee Stage

In committee (resumed on motion.)

Clause 4.

The Hon. I.F. EVANS (Davenport) (16:06): Prior to question time I had dealt with clause 4, subclauses (1), (2), (3) and (4), so I will now deal with, specifically, subclauses (5) and (6) of clause 4. The opposition has had the most vehement opposition to clauses 5 and 6 of No. 4 in this particular bill, and every industry group we have spoken to thinks they are totally unworkable. I want to walk the committee through why the industry groups think they are totally unworkable.

Clause 4(5) adds in the word 'direct' into the Motors Vehicles Act, section 99(3), before the word 'consequence'. The intention, therefore, is to try and bring clarity, the MAC would say—those opposing it would say to further narrow—the level of claim that is possible under that particular provision. That provision says:

...for the purposes of this Part and Schedule 4, death or bodily injury will be regarded as being caused by or arising out of the use of a motor vehicle only if it is a consequence of—

That is the current wording and we are putting the word 'direct' in, so it will read 'arising out of the use of a motor vehicle only if it is a direct consequence of...', and then there are three or four provisions, that is, the driving of a vehicle, or the vehicle running out of control, or a person travelling on a road colliding with a vehicle when the vehicle is stationery, or action taken to avoid such a collision.

So unclear is this provision that the government has had to put some examples in to try and illustrate what it thinks should not be included. That is the first cause of concern—that it is so bad that it has to put some examples in to give some clarity to those who are meant to be reading this. Let me read this to you, minister. Your bill says, in the examples, 'Examples of situations that would not be expected to fall within the ambit of this claim.' So, I make the point 'not to be expected'. It does not say that they are not going to be in. It just says they may not be in. So, immediately there is nothing clear about the examples—they may be in, they may not be in. If the examples themselves are unclear and they are not defined as being definitely in or definitely out, how does it bring any clarity to what can be claimed or not claimed? That is the first issue, that the examples they give are of situations that would 'not be expected to fall within the ambit of subsection (3)'.

It then goes on to give two examples of what would not be expected to fall, but they may be in, but they are not expected to be in. You can understand why the legal fraternity say this will be a lawyers' picnic. They will be arguing about, 'Your Honour, the parliament did not expect this to be in, but, Your Honour, the parliament said it could be in.' I can just see the legal costs racking up as we speak. The bill then goes on to give two examples:

(a) death or bodily injury caused by or arising out of the displacement of goods while a motor vehicle is being loaded or unloaded;

That is the first example. The second example is:

(b) death or bodily injury caused by or arising out of the unintended movement of a motor vehicle while the vehicle is being displayed, serviced, repaired, restored or equipped.

I am going to go through this at some length. I think this is one of the most vague clauses I have ever seen in my 17 years in this place. I think it is one clause that will attract the most legal argument of any clause I have seen in my 17 years in this place. I will walk you through it.

I have already worked through the example that it is not to be expected to fall within, but it could well fall within. So, let's assume that the court decides it does fall within the ambit. Then we get to this clause: 'death or bodily injury caused by or arising out of the displacement'. Displacement. It does not say deliberate displacement, it does not say accidental displacement; it just says displacement. It is clear that it is not accidental displacement, so it is clear that it is any displacement—any displacement of goods. I am assuming that a good is anything that is not human.

If it is livestock, I would suggest that would be interpreted as a good. If it is a box, a parcel delivery guy, that is a good, but I am assuming that if it is mum dropping her child off at school, and an injury occurs, the child is not a good, or a taxi unloading three children, through families and community welfare, that is not a good, or a bus unloading children is not a good. The minister can confirm that the word 'good' does not include humans—people—although the Funeral Directors Association would like it clarified, given that profession, as to how it relates to contents of coffins.

It then goes on to say: 'displacement of goods while a motor vehicle is being loaded or unloaded'. I will give some examples to the minister. That is why I think this clause is so unclear. You are not going to be covered under this scheme if you are unloading a box out of a taxi and you stumble into the path of another vehicle. Are you covered or not covered? You are displacing the goods, and, as a result of overbalancing, you walk in front of another vehicle. It is open to interpretation whether you are covered by this scheme. Clearly, the injury has been caused arising out of the displacement of goods while the motor vehicle is being loaded or unloaded—loaded or unloaded of goods.

A child taking out school bags—is that a good? I think it is. I think anything but people is a good. I suspect what the minister will end up saying is, 'Well, this will all be left to the courts.' That is the issue. This bill is trying to narrow the level of claims and then, by narrowing the level of claims, they are trying to give some clarity as to what is covered. However, the examples they give are so unclear that the legal fraternity are saying it will be a lawyer's picnic.

The examples I have given are taxis unloading goods, the transport industry and the parcel delivery companies that are in and out of their vehicles all the time. At what point is someone displacing goods? At what point am I displacing goods? At what point of displacing the goods does the injury occur? It is not clear. What the government is trying to do is narrow down the claims available against the MAC scheme by saying those sorts of claims will not be available. There are a wide range of people (taxi drivers, mums dropping kids at school or kindy) and issues that make this unclear.

The minister can also clarify this for me: what happens if the goods are a registered insured vehicle and the goods you are unloading that lead to the injury are a registered vehicle? This happens. There was a good example down at Morphett Vale where, tragically, a person was killed because a car fell off a trailer and crushed the person. That can easily happen in the unloading of the vehicle. The vehicle was a trailer; the trailer is registered and is covered by the scheme. So, the vehicle is being unloaded off the vehicle, it is being displaced as a good, and it falls off and kills someone. Under your scheme, they are not covered.

The sad part about this is that the Motor Accident Commission, by the former treasurer's own admission, has been negotiating this for over eight years, and we still have this lack of clarity in relation to these issues. The other issue in relation to this is that this first clause deals with:

(a) death or bodily injury caused by or arising out of the displacement of goods while a motor vehicle is being loaded or unloaded;

Not 'the motor vehicle'; it says 'a motor vehicle'. It does not narrow it down to the injury being caused by or arising out of the displacement of goods of the motor vehicle being unloaded. It is very broad; it is of any motor vehicle. So, if goods are being unloaded and the injury is caused by any motor vehicle then, technically, they may not be covered by this particular provision.

This is not necessarily Iain Evans shadow treasurer mounting all of these arguments, this is the industry group saying, 'We have had a look at this and it is simply unworkable.' The current scheme appears to work relatively well and all MAC are trying to do is narrow down the field so there are less claims. So the minister can tell me why my examples are not part of this particular clause.

I have raised the issue about whether it is only an 'unintended displacement' or whether it is 'any displacement'. I think the fair interpretation is 'any at all'. A good example of this is Australia Post. Australia Post deliver many parcels, so they are displacing thousands of goods every day. At what point are they displacing the good and at what point are they not? How would anyone make that judgement? However, if an injury occurs while they are displacing goods, they are not covered.

The consultation on this with other industry groups, such as Australia Post, obviously has not occurred. There has been no consultation with the parcel delivery industry about how it is going to impact on them, and these people are live to a claim and they will lose their house. MAC will claim back against them, and if they do not have enough asset base, they lose their house, simple as that.

That is in relation to subclause (5), subclause (6) and particularly subclause (6)(a). Now I can go on to subclause (6)(b) if the minister wants me to. If he wants to respond to subclause (6)(a) I am happy to sit down and let him respond to those. That might be easier, so I will let the minister respond that.

The Hon. J.J. SNELLING: At the heart of this debate is the question of what constitutes use of a motor vehicle, and the circumstances in which MAC might be liable for a claim. The member for Davenport was talking about MAC making claims against people and, therefore, taking their houses off them. That is not covered in this section. This only deals with how MAC might be exposed by a claim by others. We are not talking about MAC making claims against other people. That comes under, I think, the chain of responsibility provisions of the bill. This provision is not about MAC making claims.

The Hon. I.F. Evans: The injured person makes the claim.

The Hon. J.J. SNELLING: The injured person. But you were talking about MAC suing people and taking their homes off them.

The Hon. I.F. Evans: Yes.

The Hon. J.J. SNELLING: That is not what this provision is about. It is purely about the circumstances in which MAC is exposed to a claim. I think we are all agreed here that the purpose of MAC is to provide compensation in circumstances where there is an accident or crash in the use of a motor vehicle. There have been a couple of court cases recently which have extended what constitutes use of a motor vehicle, and that is what this provision is trying to address.

The first example is the case of Ugly Dog Transport, where a worker was working on a car and another worker came in and started the car while the worker was still doing work on it. The car was in gear and lurched forward, and I am not sure whether this resulted in the death or the injury of the worker. In those circumstances, no-one doubts that the worker who was injured is entitled to compensation, but it seems pretty clear to me that it should be WorkCover that should be liable for compensation to the person who was injured, not MAC. The injury did not happen in the sort of circumstances which were envisaged when we decided, as a state, to have compulsory third-party insurance.

Clearly, what was envisaged by parliament in having compulsory third-party insurance is that people in road accidents should be able to have access to compensation in the event of there being an accident in the use of a car. So the question is the definition of what constitutes use of a motor vehicle for the purposes of where MAC is liable.

The second example is the one of Reiter—and we get to the displacement of goods example—where I think a worker was injured because a hay bale fell on his head as the hay bales were being unloaded. Again, in that case the court allowed a claim against the third-party insurer. So, WorkCover made a recovery against MAC as if this was a road accident, which it clearly was not.

The purpose of this provision is to tighten the definition of what constitutes use of a motor vehicle. That does not mean that people who are injured in these circumstances will not be entitled to compensation, it is a matter of where that compensation should come from, and it should come from the appropriate source.

In the event of it being a workplace injury, clearly WorkCover should be liable for compensation, and everything else that goes along with it, rather than MAC. The government believes that claims against MAC should be because of crashes, accidents and essentially injuries resulting from car crashes, and there should be a reasonably tight definition of what constitutes the use of a motor vehicle.

The examples are there to give the court guidance. As he was reading, the member for Davenport inserted the word 'may', and 'may' does not appear in the examples. It says 'Examples of situations that would not be expected to fall within the ambit'. It does not say 'may not be expected', it says 'would not be expected'. So these are examples and the purpose of this is to give some guidance to the court of what the parliament envisages by this clause and the sort of circumstances where there would not be a claim against MAC.

With regard to the specific example I think the member for Davenport gave, regarding if you are unloading goods, stumble and fall in the path of a motor vehicle, the injuries would be sustained because you got hit by the motor vehicle, not because you are unloading goods. It seems pretty clear to me that, in such a circumstance, a claim would not be made impossible by the operation of these examples. It is quite clear that the injuries did not occur because you were unloading goods and one fell on you, which is what we are trying to pick up by way of these examples. The injuries, in the case of the member for Davenport, were caused as a direct consequence of you being hit by the car, not by the unloading of the articles. I think that covers the points made by the member for Davenport but I am quite happy to return to the point if I have not covered the points he has raised.

The Hon. I.F. EVANS: The minister gave two examples: the Ugly Dog and Reiter. The minister gives those examples because they occurred in workplaces, but your law, minister, applies to everyday citizens who are not in workplaces, and your adviser next to you nods in confirmation. So, it is one thing to say that the workplace person might be covered by WorkCover, but the person who is doing this as a private citizen may have no insurance and the person injured, or the person doing it, with the narrowing of the definition, may well be a private citizen without insurance or without enough assets to cover the claim. So, all of the examples you have given were in relation to workplaces, but these apply just as strongly outside of the workplace and it is those people who are also exposed. I go onto example (b) of clause 4(6). This example says:

death or bodily injury caused by or arising out of the unintended movement of a motor vehicle while the vehicle is being displayed, serviced, repaired...or equipped.

Now this, I think, is quite extraordinary as an example. In the existing act, one of the areas where you are allowed to claim is where a bodily injury is caused by or arising out of the use of a motor vehicle only if it is a direct consequence, if you get your way, of 'a vehicle running out of control'. The example you give as to what is not going to be included is: if it is an injury caused by an unintended movement of a vehicle. How is a vehicle running out of control not an unintended movement of a vehicle? Those two statements are in direct conflict. I park my car at the cricket. The car runs down the hill. It is out of control. So, technically a vehicle running out of—

The Hon. J.J. Snelling: It's not being displayed.

The Hon. I.F. EVANS: We will come to that in a second. This is why it is so confusing. The minister says, 'Don't worry, it's not being displayed.' I actually have a for sale sign in the window. You see them everywhere. It is being displayed for sale. It runs out of control. It should be covered under the act proper, but the minister's example is that if it is being displayed then any injury caused by the unintended movement is not covered. That is a quagmire. Those two provisions—the act proper and the example—are in direct conflict. So, I raise that point.

I will go through each word, minister, and tell you why I have a problem with each word. The issue of 'unintended movement', I assume that is any movement that the driver did not want to happen. I am taking a car on a trial drive. I want to buy a car. It is on display for sale at Claridge Holden, and they say, 'You can take it for a trial drive.' So, it is on display for sale. I take it for the trial drive, it gets a flat tyre, it veers to the left. I did not want it to veer to the left: unintended movement of the vehicle. It hits two cyclists and breaks their necks: unintended movement of a vehicle on display. I am not covered. There are thousands of these examples that are absolutely live.

The unintended movement of a vehicle while the vehicle is being displayed. Being displayed for what? Being displayed for sale? Being displayed for lease? Being displayed because it is an old vintage car? Being displayed for its manoeuvrability? You can go out to the old Virginia Speedway or Tailem Bend and you can show off your car, you can display your car, its speed, its manoeuvrability, its handling, you can display all of that and injure someone.

If it is being displayed it is not covered. Displayed for what? So, any unintended movement of the motor vehicle while the vehicle is being displayed. 'Displayed' could mean anything. It could be a real estate sign on the side of the car, so it is a display for business; election signs displayed for politicians; there are a whole range of things. The Bay to Birdwood is a display of vehicles, the Birdwood Mill is a display of vehicles. So, if at the Birdwood Mill a car loses its handbrake, rolls out of control and injures someone, they are not covered because it was being displayed.

The word 'displayed' is so vague as to be uninterpretable by the parliament as to what is actually meant by the word 'displayed'. It is fanciful that we are trying to narrow down the claims in relation to this clause by putting in the word 'displayed'. Go onto the website and read about the Bay to Birdwood, it talks about being one of the great exhibitions of vintage and veteran cars. If it is an exhibition, it is a display. Classic Adelaide is a display of veteran cars. It is so open to interpretation that I think it is unworkable as an example in the clause.

Let us take the unintended movement of the semitrailer driver coming down the freeway. There was an unfortunate circumstance recently, the minister might recall, when a semi-driver ran down the freeway and a person was killed. Let us say that accident was happening as part of a service on the truck. The truck driver had dropped it off, it was being serviced and they were taking it out for a test run to check whether the service worked. At that point the brakes failed and it ran down the freeway and crashed into that bus stop and killed someone.

Under the government's provision that is not covered because that was being serviced—there is an argument to say that that truck was being serviced. It was an unintended movement to run into the bus stop, so that person is then not covered. So the unintended movement is bizarre. This whole clause is bizarre. There is absolutely no definition of 'displayed', 'serviced', 'repaired', 'restored' or 'equipped'.

What happens if you are driving along and the wheel falls off? The car is on display for sale, or being serviced or repaired and they take the car for a test drive and the wheel falls off—as wheels do—and it veers and hits someone. You are not covered. You hit a pothole—you simply hit a pothole—and it veers. You are not covered if it is being displayed, serviced repaired or equipped.

I am not clear under this provision, and no-one can explain to me what would happen under this provision, if I am crashed into by a vehicle. If my vehicle is being displayed and I am crashed into by another vehicle being displayed and I hit pedestrians—given that both vehicles are being displayed and given that my vehicle had an unintended movement that hit the pedestrians—am I covered or not? Who would know? If someone taking a car on a trial run gets a flat tyre, jacks it up on a public road, it falls off the jack and hits the pedestrian next door (a child, or someone), are they covered?

These words and this example are so vague it is simply unworkable. This is why the Motor Trade Association is so opposed to this provision, because it goes absolutely directly to their profession and its workability.

Let us go through display. We have covered whether it is for sale; that is a display. If it is being test driven, that would be a display. If they were driving around with trade plates on it, which means it is for sale, that would be covered. For all the P platers and all the private citizens out there with the 'for sale' sign in the window, it is up for display. If you park it on the side of the road, as we do every Saturday and Sunday, selling the vehicle, that is clearly on display. The Bay to Birdwood I have covered. The motorbike owners who have the business sign on the back—the registered trailer with the display sign—that is for display. Their business is in the business of display, so how are they not covered? The 'free Keogh' truck is a big display and is clearly not covered. The 'Howard debt' bus is clearly not covered; that is for display.

The point I make is that no-one can define what the word 'display' means, so you are opening up a can of worms as to what is in and what is out. That is why the lawyers say this is going to be a lawyers' picnic and a very high cost.

Let us leave display for a minute and go to a simpler one. Let us go to the word 'serviced'. Under this provision you are not going to be covered if the injury is caused or arising out of the unintended movement of a vehicle while the vehicle is being serviced. So, when does the service start? If I go into Claridge Holden and drop off my car at 8 o'clock in the morning in their car park, has the service started; or is it only when they put a tool on it? At what point does the liability transfer from me to them?

Mr Pegler interjecting:

The Hon. I.F. EVANS: Absolutely. Who would know. Some person is going to have to try to interpret at what point the car is being serviced. If they are taking it for a test run after the service, is that still part of the service? Does the service finish only at the point I pick up the car? If that is the case, and I go back to the original point, the service must therefore start only when I drop the car off, but I can tell the minister right now that the Motor Trade Association does not know when the service starts and when it finishes, and members of that association are the profession in the industry. They absolutely do not know when it starts and when it finishes.

What about the home service? Ultra Tune comes to your home. If the vehicle runs away there you are not covered, obviously, because you, the landholder, would then become liable, one would assume, for the problem. At what point does the service start? CMI Toyota on West Terrace is three storeys high. The vehicle is in any one of those three storeys. When you drop it off for a service is it covered under this provision as being serviced any time it is in those three storeys? If they ring me and say, 'We've finished the service. The car's in the car park,' and an incident happens then, who is liable, me or them?

The reality is that it is absolutely so confusing as to when the service starts and when the service finishes, and that is why the motor traders are totally opposed to this. With respect to the word 'repaired', you are not going to be covered if the injury is as a result of the movement of the vehicle while the vehicle is being repaired. Well, what is 'repaired'? Is replacing a tyre being repaired?

The people who get killed when the car falls off the jack in their driveway are not covered, though the claim comes back against them ultimately. What happens if it happens on a public road? You are driving to Melbourne, you pull over with a flat tyre in the middle of a public road and you change the tyre. One assumes under this that you are not particularly covered.

The other issue is what happens—as I mentioned earlier—about the test drive. Is that part of the repair or not part of the repair? What about restoring? When is a vehicle restored? To restore a vintage car can take you years. You can be restoring a vintage car for years. At what point are you restoring it becomes a real question as to when the restoration starts and finishes.

The other issue is 'equipped'. You are not going to be covered if injury or death occurs while the car is being equipped. What does that mean? If you put a magnetic election sign on a car, is that equipping it? I think it is. Putting a trailer on the back of the car, is that equipping it? I think it is. Putting a caravan on the back of a car, I think that is fitting it as well. Putting a trailer cover on—all these issues are now far more open to interpretation than the original clause, because, while you have put the word 'direct' in, the examples are so vague as to make the word 'direct' irrelevant.

The minister mentioned earlier about how I said the word 'may', and the minister is quite right, in fairness to the minister. The clause provides 'examples of the situations that would not be expected'. The point I make is that if they would not be expected that leaves it open for the court to say they may be included, because we have not said they are not. We have not just said they are not. We have said it is expected that they will not be, but we have not said they are not; so, it is obviously open for interpretation.

To me and to the Motor Trade Association that particular provision is just so vague as to make those particular clauses worse—worse for the taxpayer and, I suspect, worse for MAC long term because it will have far more legal costs arguing the issue about what is serviced, what is displayed, what is repaired, what is restored and what is equipped. Because of the vagaries of all that, everyone is actually going to be worse off.

The other issue is, how does the provision—in the act proper, clause 3, where it talks about action taken to avoid such a collision—relate to the unintended movement provisions of being displayed etc.? So, if I am selling a vehicle, and I have someone displaying it, they are taking it for a trial drive, and I have to swerve to avoid a collision, and I clean up two pedestrians, am I covered or not covered? Because, yes, it was a deliberate attempt to miss the vehicle, so I should be covered under 'action taken to avoid such a collision', but a lawyer might ask me, 'Did you deliberately steer that way into the pedestrians? Was it your intention to hit the pedestrians?' Oh, no, no-one is going to admit that, so, the obvious answer is, 'No, it was not my intention to hit the pedestrian.' 'So, it was unintended movement to hit the pedestrians, was it?' 'Oh no, Your Honour, I intended to make the movement, I just didn't intend to hit the pedestrians.'

This example is madness: to me it is absolute madness. This bill has been, by the former treasurer's own admission, consulted for eight years and, after eight years, there is not one industry group that supports that provision. Now, that tells you something. It says it may not work; it may actually be worth—I accept the fact that the Motor Accident Commission has lost two cases—it is not broke yet.

So, I think, in fairness to the minister, I have made my point in relation to clauses 5 and 6, and will certainly be opposing clauses 5 and 6 because we think those particular provisions actually make the situation worse for everyone, and that we see no benefit long term for those provisions in the bill.

The Hon. J.J. SNELLING: The member for Davenport flippantly says that MAC 'ain't broke yet' arising from these two decisions. Well, that may be the case, but the fact is that MAC and the payout that MAC makes are funded by South Australian road users. South Australian road users pay their compulsory third party insurance so that they know that in the event of there being an accident, and someone being injured or killed, they have recourse to funds, to make sure that it is not the case that a person is killed or injured in the course of a car accident and there is no-one they can claim against, or no-one with sufficient funds to make a claim against that is worthwhile.

These payments are made by ordinary South Australian road users and those road users who pay in their hard earned money as part of their compulsory third party have a right to expect that the payouts are going to be made, and are going to be made in circumstances that were originally envisaged when the compulsory third-party scheme was adopted here in South Australia, and they have a right to know that, in other circumstances, where an accident occurs—in circumstances which were not in the use of a motor vehicle—that they are not going to be caught up having to pay out their hard earned money to MAC so that MAC can cover other claims—claims where there has been an injury or an accident which has not arisen from the use of a motor vehicle. It makes good policy sense for us to have a good tight definition of what constitutes the use of a motor vehicle.

I do not think that anyone in South Australia expects that their compulsory third-party insurance—which they have to pay—is going to be used to pay out injuries in other circumstances and in circumstances where, really, the claim should be made against another insurer and a different insurer should be picking up that payment.

In the case of an accident happening on private property, normally that would be picked up by the person who is insured—their public liability insurance. Where it happens in a workplace, it would be picked up by WorkCover, but they should not be picked up by MAC. MAC's role is to make payouts where there is an accident and an injury is sustained, or death is sustained, in the course of the use of a motor vehicle. We need to have a good, tight definition.

The member for Davenport I think is a little bit confused about the role that examples play in legislation. Examples are covered under the Acts (Miscellaneous) Interpretation Act. I will cite it. Clause 19A provides:

If an example forms part of an Act, the example—

(a) is not exhaustive; and

(b) may extend, but does not limit, the meaning of the Act or the provision to which it relates.

These examples in no way override the provisions of the act which are already there. It is quite clear that, arising out of the use of the motor vehicle only if it is a direct—'direct' we are inserting—consequence of (a) the driving of a vehicle. So, put aside the examples. If you are driving a vehicle and you are involved in an accident you are covered; (b) the vehicle is running out of control. If the vehicle is running down the hill out of control and someone is injured, part (b) applies. Any court is going to see that. Or, '(c) a person travelling on a road colliding with a vehicle when the vehicle is stationary, or action is taken to avoid such a collision'. Again, it is quite clear about the sort of circumstances where MAC would become involved in covering the person.

The role of the examples in no way overrides those original provisions. They are simply there to provide guidance to the court of the sort of circumstances in which this parliament does not expect MAC to become liable. They are there for the court's guidance, they no way override the existing provisions of the act, and they do not tie the court's hands into the sorts of circumstances the court will decide where MAC is liable and where it is not.

They are there for the court's guidance in the same way that the court might refer to the second reading speeches made by the minister about what the intentions are of the act. It is a slightly stronger way of doing it, rather than just inserting it in the second reading speech by having it in the act; but, it does not have, as member for Davenport seems to think, the effect of overriding those provisions which exist in the act, which spell out quite clearly the sorts of circumstances where MAC has a liability because it has to cover.

The member for the Davenport talked about what would happen in the circumstances where car fell off a jack and someone was injured. That has never been covered under the third party insurance scheme under this act. If you are injured because you have a car jacked up, it falls off the jack and falls on you, you have never been able to access the compulsory third party insurance scheme to make a recovery.

The Hon. I.F. Evans: What about a car out of control?

The Hon. J.J. SNELLING: Car out of control? There is a provision there: the vehicle running out of control. It is quite clear that if the vehicle is running out of control in the sort of circumstances the member for Davenport talked about, they would be covered by subsection (3)(b) of the existing act. The examples in no way override those provisions. They are entirely there for the guidance of the court, so the court has some idea about what the parliament's intentions are and the sort of circumstances where the parliament would not envisage MAC having a responsibility to cover the insured person.

The Hon. I.F. EVANS: I will ask some questions of the minister so that the parliament can be clear about what the minister's intention is in relation to the examples he gives. The minister makes great play about this provision—subsection (3)—that provides that if it is a direct consequence of driving a vehicle or the vehicle running out of control, then you are covered. If my vehicle is being displayed as per the example in the bill you are proposing, minister, and it runs out of control, can you guarantee to the house that that is not an unintended movement?

The Hon. J.J. SNELLING: Yes, I can guarantee that, because, if the court finds that the vehicle has run out of control, it is picked up by that provision in paragraph (b).

The Hon. I.F. EVANS: That is fine. I think the example then is fallacious. I think it is a disgraceful example, if that is the case, because the example is quite clear: death or bodily injury caused by or arising out of an unintended movement.

The Hon. J.J. Snelling interjecting:

The Hon. I.F. EVANS: Just for the record, the minister interjects 'not all unintended movement'.

The Hon. J.J. Snelling interjecting:

The Hon. I.F. EVANS: Okay. Can the minister confirm for me then that, if my vehicle is on display and being driven, gets a flat tyre and veers to the left and hits a pedestrian, that is going to be considered an unintended movement?

The Hon. J.J. SNELLING: No, because you are driving. If you are driving the car you are covered and in no way does this example override that provision. It is quite clear: if you are driving the vehicle you are covered. With regard to 'unintended movement' and 'out of control', not all unintended movement is the car running out of control. If I go back to the Ugly Dog Transport example, in that example the car lurched forward as a result of being started while the vehicle was in gear. So, that was an unintended movement of the vehicle but the vehicle was not running out of control. So not all unintended movement involves the car running out of control.

The Hon. I.F. EVANS: Just on the jack example, minister, I assume that if another vehicle hits the vehicle on the jack then the person injured is covered.

The Hon. J.J. SNELLING: If you are hit by another car?

The Hon. I.F. EVANS: If the car being jacked up is hit by a second car, yes.

The Hon. J.J. SNELLING: Yes. As long as the car is being driven and the injury or the death is sustained as a result of a car being driven then, yes, you would be covered. What would not be covered is if you had the car jacked up, you are underneath it and the jack slipped or you did not put it up properly or whatever, and the car came down on top of you. As long as a car is being driven and that results in the injury then, yes, you are covered.

Clause passed.

Clause 5.

The Hon. J.J. SNELLING: I move:

Page 4—

Line 26 [clause 5(3), inserted paragraph (c)]—After 'uninsured vehicle' insert:

is guilty of

Line 27 [clause 5(3), inserted paragraph (c)(i)]—Delete 'committed'

Line 29 [clause 5(3), inserted paragraph (c)(ii)]—Delete 'committed'

Lines 34 to 40 [clause 5(5), inserted subsection (7ab)]—Delete subsection (7ab) and substitute:

(7ab) For the purposes of this section, a person will be taken to have committed—

(a) an offence against section 43 of the Road Traffic Act 1961; or

(b) a relevant offence against a heavy vehicle driver fatigue scheme,

if, and only if, the person has been found guilty of the offence.

The purpose of clause 5 is to create an ability for MAC to make a claim in a number of circumstances: first, where the person who caused the accident did so by reason of having a certain blood alcohol level; secondly, where the accident occurred as a breach of the heavy vehicle driver fatigue regulations; or, thirdly, the injuries happening in the event of a hit-and-run. This original clause (unamended) is to enable MAC, having paid out the injured parties, to then seek to recover funds from the person who contributed to the accident for being in breach of one of those three things.

The original bill (unamended) allows MAC to make a recovery in these circumstances where they can prove that, on the balance of probability, an offence, or a breach of one of these provisions, was commissioned. There has been consultation and, as a result of that consultation, the decision has been made to change that so it would only be if the party has been found guilty of an offence under these provisions. So, in the example of a hit-and-run, MAC would only be able to seek recovery in the event that the person who caused the accident was found guilty in a court of law of that offence, or likewise, if they are found guilty of having a blood alcohol level of over 0.1 gram. So, the purpose of the amendment is to change it from being a lighter burden of proof to a heavier burden of proof where MAC can make a claim against the person who caused the accident.

The Hon. I.F. EVANS: Madam Chair, we are only debating those four amendments at this stage, yes?

The ACTING CHAIR (Ms Thompson): And any other part of clause 5, other than subclause 6.

The Hon. I.F. EVANS: Okay. Well we will take a bit longer then. The minister has just moved four amendments. The minister is quite right, that after eight years of consultation the government caved in in the last two weeks to finally accept the industry's position that the original bill has introduced was way too broad in relation to the claim back by MAC. These particular amendments go some way to improve the government's own bill, and the opposition supports these four amendments.

These four amendments, essentially, ensure that the claim back by MAC is only after someone has been found guilty of committing an offence, rather than being just charged with the offence, and also that they, having been found guilty of offences under section 43 of the Road Traffic Act—in broad terms, the hit-run offence or the Heavy Vehicle Fatigue Scheme—if they have been found guilty under certain offences there, then they can be subject to a claim back, if you like, from MAC, but only to the extent that they were liable. And that is actually in the next amendment, that the Treasurer and I both have slightly different amendments for, so I will not go into that point now, because you have instructed us not to, Madam Acting Chair.

Clause 5 essentially deals with the claims against nominal defendants where the vehicle is uninsured. In fairness to the minister, I will put this right up front now. The opposition actually had some sympathy for some of the government's suggestions in part, right up until the point where MAC cannot tell us any premium impact or any financial impact of any of these changes. The opposition has been in government and we have had people in charge of MAC and we know that the general practice is that MAC can usually say, 'Look, this change will have this effect.' That is not before the house. We have no information before the house on the premium impact.

Normally the government would come and say, 'Look, we desperately need to do this because this will affect premiums by X.' The house is denied that information. The government may be able to provide that information between this house and the other house, but if they have not been able to provide it to anyone in eight years, why would they not provided to the house now? So we asked MAC a few questions. I have to say that, in political terms, hit-run drivers and people who break the fatigue scheme laws are cheap, easy targets in the media, but they are all people. We need to scrutinise what we are doing to these people in this bill, so we asked MAC some questions. In fairness to the minister, the department got back to us quite promptly, and we thank them for that.

We asked these simple questions: how many people have been found guilty of the current hit-run offence each year for the last five years? This relates to section 43 of the Road Traffic Act under 5(3). The answer is, and I quote:

MAC does not have this information as it does not prosecute any offences under the Road Traffic Act. However, SAPOL were able to assist with the number of charges it has laid—

that is different to people who have been found guilty of course—

for hit-run offences causing injury or death. The final determination of such charges is not retained by SAPOL.

So SAPOL keep no record as to how many people get proven guilty of hit-run offences. How the Minister for Road Safety ever makes a judgment on these issues is another question.

MAC is advised by SAPOL that such statistics would need to be requested direct from the courts.

Well, apparently in eight years MAC has not requested this information from the courts. So in costing these proposals, MAC could not find enough energy to get that information from the courts and that is unfortunate. However, the following information has been provided: In 2006, there were four offences recorded on the apprehension report for failing to stop and render assistance after a crash. I will come back to this in a minute, but in 2006 there were four offences, in 2007 there were 10 offences, in 2008 there were nine offences, in 2009 there were five offences and in 2010 there were seven offences. They are offences recorded on the apprehension report. An apprehension report is nothing more than the police report to the DPP, or the prosecution section, as to whether they think they might proceed with the prosecution.

Some of those will be traded away: 'If you plead guilty to this we won't proceed with that', and they drop off the list. Others, of course, will go to court and be found not guilty, and others will not be proceeded with because there is simply not the evidence, or the case will not stack up. The parliament does not know, in making the changes proposed under clause 5, whether we are dealing with an epidemic of hit-run drivers being proven guilty, whether we are dealing with one, or whether we are dealing with none.

We are all aware of one high profile case of hit-run in recent years. I think we should put that in a box because I think even the government would admit that was not the typical case that we are talking about here. We are talking about other issues. When the opposition asked, 'What is the financial impact?', we could not be told. When we asked, 'How many hit-run drivers?', we could not be told.

We then asked, 'What was the cost to MAC of the hit-run drivers?' Answer, 'That information is not available.' Apparently MAC does not keep a record of how much hit-run drivers cost, but it is such a terrible cost that we have to change the law. So, how they have made that judgement, I am not sure. It goes on:

The statistical data captured in relation to CTP claims does not, at this time, distinguish between injuries sustained in a motor vehicle accident where the driver has committed a hit and run offence as compared to any other circumstances. However, the majority of hit and run offenders are not identified and therefore cannot be charged by the police for commission of this offence.

So, they are not even under this scheme, in that sense. It continues:

MAC can advise that unidentified hit and run drivers have resulted in 1,010 notified accidents, resulting in 1,147 CTP claims, with a total cost to MAC (via the nominal defendant scheme) estimated at over $65 million...

Does it strike you as unusual, minister, that the Motor Accident Commission keeps statistics of unidentified hit-run drivers, and it can tell us the cost of the unidentified hit-run drivers, who are never caught, of course, because they are unidentified, but it cannot tell us the cost to the scheme of hit-run drivers who have been found guilty. To me, that is bizarre. It has a figure for the unidentified drivers but when we ask, 'Okay, the drivers you have identified who have been charged and found guilty', it has no records of that. No-one keeps the records. I find that unusual. MAC can explain how that works.

MAC states that the unidentified hit-run drivers are just over 1,000, it comes to a cost of $65 million, an average cost of $64,000, but parliament should understand that they are never covered by this legislation because they are never charged because they are unidentified. So, the information is useful but useless. It is interesting but not relevant to this particular bill in that sense.

We then asked the question, 'How many people have been found guilty of offences covered by the bill under section 43 of the Road Traffic Act?', and in relation to the Heavy Vehicle Drivers Scheme, we asked, 'How many people have been found guilty of the offences covered by the bill for the last five years?' Answer, and this will be a surprise to the house, Madam Chair:

MAC does not have this information as it does not prosecute any offences under the Heavy Vehicle Driver Fatigue Scheme. The scheme itself has only been in operation since 2008.

SAPOL have again provided information as to the number of offences that have been recorded on apprehension reports under [those particular regulations].

We are told that in 2008 there were 28 offences recorded on apprehension reports, in 2009 there were 177 offences and in 2010 there were 175 offences. Importantly, it goes on to state:

The information provided by SAPOL does not identify the nature of the offences for which charges were laid but such offences do not include any breaches for which an expiation notice or caution only were given.

The reason the offence is important is that, under this particular provision, there are three offences that are dragged into the new bill—exceeding the driver's time, not having the rest periods, etc. There are three of them and they are called the relevant offences under the definition.

Let us consider the impact on the poor ordinary South Australians who are paying their premium into this scheme. When we asked for the premium impact or the financial information or the number of cases, we did not get one piece of information that we could make a judgment on. So I am saying to the minister—and we only got this two days ago and the party room had already taken a decision on certain elements of the bill—that we had some sympathy for some provisions in this bill and it would be wrong for the minister to run out and say that the opposition is somehow opposed to everything in this bill.

However, we are not prepared, as yet, to sign off on particular elements of the bill until we can get better information, because: are we jumping at shadows? After eight years of consultation, I think MAC could have done a little bit better preparation in its argument as to the financial impact of this bill; and all the opposition has done is ask the relevant questions.

To come back to clause 5—and this is all to do with clause 5—the issue comes down to lack of information. We support the Treasurer's amendments because they narrow down the information well, and that is a direct response to the consultation. In relation to clause 5, the opposition does not support it at this stage. We are happy to consider it between the houses, having listened to the minister's argument, and, if the minister wants to forward us more information that has not been available for eight years, then we are happy to relook at that particular issue.

We still have the amendment to deal with in relation to clause 5 by the Treasurer and I have a slightly different amendment in relation to that. This provision now, in the amended form as we are about to vote on it, very much narrows down the provision that MAC can claim back. This deals with two particular provisions. Section 43 of the Road Traffic Act is what is loosely defined as the hit-run driver—

The Hon. J.J. Snelling: Can I respond to what you said a minute ago?

The Hon. I.F. EVANS: Yes, sure, but I want to attack hit-run drivers and the fatigue scheme yet.

The Hon. J.J. SNELLING: Firstly, ma'am, I need to quickly correct something that I said, and that was regarding the blood alcohol level and the ability of MAC to recover. MAC has always been able to recover in the event of a person having over a .15 blood alcohol level. The effect of this clause is merely to reduce it from .15 to .1. That would not necessarily have to be proved in a court. Someone would not have to necessarily be guilty of an offence in a court to enable MAC to recover, but that has always been the case. There is nothing new. The effect of this clause is merely to reduce it from .15 to .1.

The member for Davenport is hung up about how much money MAC is likely to be able to recover under these provisions.

The Hon. I.F. Evans: And the premiums.

The Hon. J.J. SNELLING: And, indeed, what might be the flow-on premium effects. I will be honest with him. It is unlikely that, under this provision, MAC is going to be able to recover very much. I suspect it will be very little and this provision will have almost no effect on premiums. The reason we are doing it is not in order to save money for MAC or reduce premiums. The reason we are inserting this provision is a question of justice. It is unjust that someone who causes an accident and is found guilty of an offence causing injury or death should essentially be able to get off financially scot-free from the consequences of their actions. That person should have to incur or be liable to some financial penalty. It is an injustice that every South Australian road user should have to carry the financial burden of injuries arising from accidents that have occurred because of one of these offences.

There should be some financial penalty to the person who has been found guilty in a court of having committed an offence that has caused the accident. MAC should have some ability to recover. Chances are that it will never recover much, because chances are the people it is going to be seeking to recover against will not have much in terms of assets from which it can sue. Part of the problem in terms of trying to identify how much they are likely to recover will depend on the individual circumstances of the people who are found guilty of the offence, and that could have an infinite number of variations.

Essentially, it is a question of justice. Why should ordinary South Australian road users have to carry the entire financial burden as a result of injuries caused in an accident where one of these offences has been committed? MAC should have some ability, or at least there should be the potential for MAC to make a recovery against people who commit these offences, and that is why this clause is there. It really does not have much to do with any expectation that there will be a dramatic lowering—or, indeed, any lowering—of premiums. It is essentially being done for reasons of justice.

The Hon. I.F. EVANS: Earlier in the debate the minister was telling me that he had to bring in these provisions to make sure that the costs are kept under control and the poor old South Australian road user does not pay any more. In that debate the minister tells me that we are not bringing it in to try to reduce the costs.

The Hon. J.J. Snelling interjecting:

The Hon. I.F. EVANS: So, the other provisions are about costs and these are not?

The Hon. J.J. Snelling: Indeed.

The Hon. I.F. EVANS: The minister interjects 'Indeed'. We will have that on the record. I was just about to look at section 43 of the Road Traffic Act, which is the hit-run offence and the heavy vehicles scheme. Let us talk particularly about the hit-run offence. It certainly came as a surprise to me that people now have only 90 minutes to report an accident. When I asked my family, when I go to the RSL, when I ask even the parliament and even when I spoke to some of the officers of the parliament who assisted in preparation, they were very surprised that the old 24-hour rule had at some point been changed by the parliament.

I must have missed that debate. A hit-run driver, just for the information of the parliament, is someone who is a driver of a vehicle involved in an accident in which a person is killed or injured. Immediately after the accident you have to stop the vehicle and give all possible assistance and then report it within 90 minutes to a police station. There are a couple of out clauses—if you have reasonable excuse, or whatever. Of course, that is always open to interpretation. A lot of people are going to breach the 90-minute rule.

The Hon. J.J. Snelling: If someone is killed or injured?

The Hon. I.F. EVANS: Yes.

The Hon. J.J. Snelling: You are not talking about running over a dog or a little bingle.

The Hon. I.F. EVANS: No, that is right.

The Hon. J.J. Snelling interjecting:

The Hon. I.F. EVANS: No, that is right.

The Hon. J.J. Snelling: Do you really reckon people will leave it for an hour and a half before they call the cops?

The Hon. I.F. EVANS: If someone is killed, I expect that they will ring straightaway. If someone is injured—it does not say 'seriously injured', minister. I could have an accident, my daughter could break her arm, and I could decide just to take her to hospital. Why would I call the police for a broken arm? It is my own daughter. I will just take her to the hospital.

The Hon. J.J. Snelling: You're involved in an accident in which your daughter's arm has been broken. You're not going to call the police?

The Hon. I.F. EVANS: I may call straightaway. I may want to—

The Hon. J.J. Snelling: You are going to leave it for an hour and a half?

The Hon. I.F. EVANS: I am just saying that I may want to get her attended to by the hospital first because that might be my priority—and some people on your side, Madam Acting Chair, are nodding their head, but I will not name them. I am saying that I think a lot of people are going to get caught by the 90-minute rule. These people are going to be called hit-run drivers. It sounds very nasty when you go on radio saying the opposition spoke in favour of hit-run drivers. I am not speaking in favour of hit-run drivers, but I am speaking in favour of people in pretty ordinary circumstances who are going to get caught by this provision. I can understand if you deliberately seek to hide, but I think there are going to be lots of people getting caught.

I follow legislation reasonably carefully, but I did not know, no-one in my family knew that it was 90 minutes, and they have all got licences. I have four kids, and all of them in the last five years have got licences and none of them knew. All of them are exposed to being hit-run drivers in the event that the injury is not serious. It does not say serious injury; it just says injury.

I was in Melbourne in the back of a taxi that got cleaned up from behind. My leg went under the front seat of the taxi and it ripped all the skin off the shin. At the end of the day, I did not report it because I wanted to watch a footy match, but that guy was not a hit-run driver. If he had reported it at 4 o'clock that afternoon instead of in the 90 minutes, I do not think he is a hit-run driver in the true sense of the expression 'hit-run driver'. I just bring to the attention of the house this particular provision. My advice is to speak to your family members about the 90-minute rule; speak to them so they are aware of it, because there is a danger.

The minister says it is all about justice, and I accept that. I understand that, but what he does not say to the house is that, under section 43 of the Road Traffic Act, the person charged and found guilty of a hit-run offence can get five years' gaol. I am telling you, if I am a hit-run driver and I do four years' gaol, is that enough justice for the taxpayer? Apparently not.

What we are going to do under this provision is then come back and claim against me, and it could be a huge claim, for all we know. I could have broken the lad's neck at 18 and had some quadriplegic claim of loss of income and all those things; it could be a huge claim. So, having spent four years in gaol, I then lose my house. That is because the taxpayer wants even more justice than three or four years gaol.

The minister forgets to advise the house that it is not just the claim back of the hit-run driver. The claim back only occurs once you have been found guilty. The claim back now only occurs once you have been found guilty, and once you have been found guilty you get up to five years in gaol. That's fine; that's the government's bill. The reason the opposition supports the amendments is that it narrows it right down, thank goodness, to a far narrower claim back than MAC was originally proposing. There is a 90-minute provision; there is a five-year sentence.

The other issue, of course, is that it is possible under section 43 to be found guilty of an offence that is trifling, but the claim back still exists. Even though the hit-run driver has been found guilty of a trifling offence, which is under section 43(2), where a court convicts a person of an offence against subsection (1), which is the hit-and-run offence, you can say that in the case of the first offence the court is satisfied the offence is trifling. Even though the offence is trifling as far as the court is concerned, you are still able to be a hit-run driver under the provision, and then you will be open to a claim back.

If it is a trifling offence in relation to the court for the first offence, do they really want to seek, then, a claim back against the driver, given that it was a trifling offence? Unfortunately, even under the amendment, he or she is still found guilty of a trifling offence, and you can still have a claim back. I wonder whether that is really necessary.

The other issue is dealt with by my amendment, so I will not deal with it yet. With those few comments, I will just say to the minister that we are not going to support any of the bill in this house, but that should not be interpreted or used as the opposition not necessarily supporting some of the principles. We want to try and get some more information out of MAC in relation to the financial issues and then we can make a judgment between the houses. We actually have some sympathy for some of the amended provisions but we are not moving there yet today, and we may not move there if we cannot get some satisfaction in relation to some of the costs. So, on those few comments, we can vote on those amendments at least.

The Hon. J.J. SNELLING: I can assure the member for Davenport that it is not my intention to emerge from the chamber this evening and hop on the radio and start criticising the opposition for its position on this bill. I acknowledge it is a very complicated piece of legislation and the opposition is quite entitled to subject it to rigorous scrutiny. It is not my intention to, in any way, be critical of the opposition for that. I am quite happy for them to reserve their right with regard to the legislation and how it is dealt with in another place.

I want to pick up on the member for Davenport's remarks about having 90 minutes to call the police in the event of an injury or someone being killed. In the event of a hit-run and someone not making a report in the event of someone being injured in a minor way—a skinned shin, for example—and the accident that caused that injury not being reported, I find it very hard to imagine the circumstances where the police would bother to prosecute, and a court would bother to convict someone for failing to report in such circumstances. But, in any case, in the event of it being such a minor injury, I cannot imagine that there would be a claim made against MAC for compensation for such a minor injury.

So, there would be no original claim from which MAC would seek to recover. But the sort of circumstances in which someone is injured in a reasonably serious way—and I think you could say any injury in which there would be a claim for third party insurance would be considered to be serious—should be reported to police within 90 minutes. If I was driving a car and one of my children had an arm broken as a result of an accident, I think the first thing I would do is call the ambulance, and the second thing I would do is call the police.

I would be very quick on the phone, and I think most other people in this place would be pretty quick on the phone to report that accident to the police. I cannot really imagine the circumstances where such an injury would occur and a reasonable person would not report such a matter to the police within 90 minutes. I think I will have to differ with the member for Davenport on that matter. I think that 90 minutes is a reasonable amount of time to expect someone to report something to the police in the event of an injury, particularly the sort of injury which would bring about a claim for third party insurance.

So, I think that was all I needed to respond to for the member for Davenport. I think I have explained what our amendments seek to do.

Amendments carried.

The Hon. J.J. SNELLING: I move:

Page 5, after line 37—After subclause (6) insert:

(7) Section 116—after subsection (7d) insert:

(7e) A court before which an action is brought for recovery from a person of a sum paid by the nominal defendant to satisfy a claim made or judgment obtained must, if the court is to determine the amount that it is just and reasonable in the circumstances for the nominal defendant to recover from the person, take into account—

(a) the extent to which the person contributed to or is otherwise responsible for the liability to which the claim or judgment relates; and

(b) any other matter that the court considers relevant.

The purpose of this amendment—which I think the member for Davenport's amendment is seeking to do in a slightly different way—is to more tightly define what constitutes just and reasonable. The concept of just and reasonable is in the original bill, and one of the issues that emerged in the consultation is what constitutes just and reasonable. The purpose of this amendment is to give it a reasonably tight definition.

The Hon. I.F. EVANS: I move:

Page 5, after line 37—After subclause (6) insert:

(7) Section 116—after subsection (7d) insert:

(7e) A court before which an action is brought for recovery from a person of the sum paid by the nominal defendant to satisfy a claim made or judgment obtained must, if the court is to determine the amount that it is just and reasonable in the circumstances for the nominal defendant to recover from the person, take into account only the extent to which the person contributed to the liability to which the claim or judgment relates.

I seek to explain the amendment. The difference between the minister's amendment and my amendment is very simple. The minister is quite right: his amendment and my amendment both go to the same principle, and that is that a court would look at simply what is just and reasonable in the circumstances for the nominal defendant (MAC or Allianz) to recover from the person, taking into account the extent to which the person contributed to the liability. The minister goes on a little bit further and says that they can recover:

(a) the extent to which the person contributed to or is otherwise responsible for the liability to which the claim or judgment relates; and

(b) any other matter...

The opposition's amendment restricts it to just that they can:

...take into account only the extent to which the person contributed to the liability to which the claim or judgment relates.

So, the opposition is trying to narrow it further than the government. We take out the words 'or is otherwise responsible for' and we take out the words 'and any other matter the court considers relevant'. We narrow it down simply to having been found guilty of a hit-run offence or having been found guilty of a heavy vehicle driver fatigue offence—the three related offences in the interpretation—then they can take into account one aspect only, and that is, 'the extent to which the person contributed to the liability to which the claim or judgement relates'.

We accept the principle that they should be able to recover in line with their contribution to the liability, but we do not see what 'or is otherwise responsible for' actually adds. If the court can already award or look at recovery to the extent to which the person contributed to the liability, then we do not see how putting in the words 'or is otherwise responsible for' does anything other than broaden the scope of the claim back, as do the words 'any other matter that the court considers relevant', which broadens it another step again.

So, we are trying to narrow it down to exactly what the industry groups suggest; that is, it should take into account only the extent to which the person contributed to the liability to which the claim or judgement relates. At that point, the court can then make a judgement. So, we go for a narrower reform of the same principle.

The Hon. J.J. SNELLING: I will just quickly respond. The government's amendment essentially leaves the court's discretion intact. The court has that discretion in the existing act, even putting aside this bill. The effect of the member for Davenport's amendment would be to completely remove the court's discretion on this matter. The government thinks that the court should have some discretion in deciding what constitutes 'just and reasonable'. It should not be entirely confined, as the member for Davenport would seek us have it.

The Hon. I.F. Evans' amendment negatived; the Hon. J.J. Snelling's amendment carried.

The ACTING CHAIR (Ms Thompson): Do you have anything else to say on clause 5?

The Hon. I.F. EVANS: Yes, I do. I have concentrated mainly on section 43, which is the hit-run driving offence. The other aspect to all this, of course, is the heavy vehicle driver fatigue scheme. The various industry groups that we consulted do not support the issue of the heavy vehicle scheme. Again, I just make the point that the chain of responsibility in the heavy vehicle scheme is so broad in its coverage that people are going to get unwittingly caught up in it.

The point I also wish to make is that subclause (5)(7ac) of the bill talks about a party in the chain of responsibility, which is the very issue the industry groups say is so broad as to be a catch-all, or catching more than intended, anyway. It states:

a party in the chain of responsibility in relation to the regulated heavy vehicle aided, abetted, counselled, procured or induced, or was knowingly concerned in, or a party to, the commission of the offence.

They are the three offences under the definition. The point I make to the government is that—and I assume it is deliberate—this provision, (7ac)(c), talks about 'aided, abetted, counselled, procured or induced', but then it says, 'or was knowingly concerned in'. The only way the court can interpret that is, if you inadvertently aided, abetted, counselled, procured or induced, that is different, because you had to be knowingly concerned in, with the word 'knowingly' before 'concerned in'.

So the parliament must mean something different. 'Knowingly concerned in', as distinct from 'concerned in', the parliament must mean something different for 'concerned in' because we have put the word 'knowingly' there, but we haven't put the word in 'knowingly aided', 'knowingly abetted', 'knowingly counselled', 'knowingly procured' or 'knowingly induced'. We have only put it in 'knowingly concerned'.

I think it is fair for the court to read down that the parliament interpreted that if you were 'knowingly concerned in', then you are caught, but on aided, abetted, counselled, procured or induced, you do not have to be 'knowingly'. That is even a broader catch, because if the parliament intended it to be 'knowingly aided'—so if you knowingly went out and helped a driver of a heavy vehicle to commit those three offences—then you are caught, but because we are not putting the word 'knowingly' in front of 'aided', 'abetted', 'counselled', 'procured' or 'induced' and are only doing it in front of the words 'concerned in', I think the court will interpret that as meaning something different.

I just want the minister to confirm that that was intended, and that the minister does not want to consider putting the word 'knowingly' in front of all of those descriptions to protect the inadvertent catching of people, rather than the deliberate acting of people.

The Hon. J.J. SNELLING: You cannot unknowingly aid, abet, counsel, procure or induce. 'Knowingly' is not required under any of those provisions because it is impossible to unknowingly aid, abet, counsel or induce. The 'knowingly' is implied in the commission of the act. If you aide or abet someone, you have to do it knowingly. You cannot accidentally aide or abet.

Members interjecting:

The ACTING CHAIR: Order! Come on, this has been a long debate.

The Hon. J.J. SNELLING: However, you can unknowingly be concerned in or a party to the commission of the offence. It is possible to be 'unknowingly concerned in'. That is something that can happen without it being your intent. So that is why 'knowingly' is being inserted in front of 'concerned in', because that is something which can happen. You can be concerned in the commission of or a party to the commission of an offence unknowingly. That is possible and that is why 'knowingly' is put there.

Clause as amended passed.

Clause 6.

The Hon. I.F. EVANS: I move:

Page 6, line 2 [clause 6(2)]—Delete 'and 127AB' and substitute:

, 127AB and 127AC

As the minister quite rightly points out, amendment 2 and amendment 4, which I cannot move yet, are linked, so I will explain both of them, and if we knock out amendment 2 then we knock out amendment 4. The principle here is very simple. The industry groups that we consulted tell us that it would assist and speed up the process greatly if when MAC receives the police reports about the accident that they be forwarded on to the person who has had the accident, or the driver's representative.

That does not happen very quickly now, if at all, and it causes great grief. We see no issue with it and so the two amendments, together, in essence, simply state that the insurer, as soon as reasonably practicable following receipt of the initial accident report, needs to forward that through to the driver, or their representative. What we are trying to do is to get the police report to the person who has had the accident, or their representative, as quickly as we can.

If we lose this here then we may move it in a slightly amended form and put a number of days on, like 14 days or 21 days, or whatever, but at this stage the amendment essentially states that the police report should go to the driver who has had the accident as soon as possible and we see no problem with that. That is the intent of the amendment.

The Hon. J.J. SNELLING: The government opposes the amendment. At the moment there is an agreement between South Australia Police and MAC about what happens to a report when it is passed on to MAC. The report that is given to MAC is given in its entirety. It potentially includes the names of witnesses and so on. It would be inappropriate for MAC to be obliged to then pass that report on in its entirety to another party, given the potential there for the intimidation of witnesses and so on. There is a written agreement between MAC and South Australia Police over who gets to see that report and what is done with that report.

In the circumstances in which the member for Davenport is saying that another insurer should have access to the report, they are able to get that report but they have to do it through a freedom of information request directly to the police and then—

The Hon. I.F. Evans interjecting:

The Hon. J.J. SNELLING: Well, you have been having some luck with them lately. The police then have control over what is in the report and the contents of the report that is passed on to the insurer. So, that is the reason for us opposing this amendment. We think that if a police report is to be passed on to a claimant then South Australia Police should have the ultimate control over what gets passed on so that it can ensure that things which do not concern the claimant—witnesses, personal details and so on—can be removed from the report.

Amendment negatived; clause passed.

Progress reported; committee to sit again.


At 17:56 the house adjourned until Thursday 24 February 2011 at 10:30.


PARLIAMENTARY BUSINESS
MEMBERS
GET INVOLVED
ABOUT PARLIAMENT
VISIT
LEGISLATIVE COUNCIL
HOUSE OF ASSEMBLY
CONTACT