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House of Assembly - Fifty-Fourth Parliament, First Session (54-1)
2018-12-04 Daily Xml
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Bills

Road Traffic (Evidentiary Provisions) Amendment Bill

Introduction and First Reading

The Hon. C.L. WINGARD (Gibson—Minister for Police, Emergency Services and Correctional Services, Minister for Recreation, Sport and Racing) (11:01): Obtained leave and introduced a bill for an act to amend the Road Traffic Act 1961. Read a first time.

Standing Orders Suspension

The Hon. C.L. WINGARD (Gibson—Minister for Police, Emergency Services and Correctional Services, Minister for Recreation, Sport and Racing) (11:02): I move:

That standing orders be so far suspended as to enable the bill to pass through all remaining stages without delay.

The SPEAKER: I have counted the house and there being absolute majority of the whole number of members of the house, I accept the motion. The motion is seconded.

Motion carried.

Second Reading

The Hon. C.L. WINGARD (Gibson—Minister for Police, Emergency Services and Correctional Services, Minister for Recreation, Sport and Racing) (11:02): I move:

That this bill be now read a second time.

On Thursday 19 July 2018, the South Australian Supreme Court published three significant judgements about the use of handheld Lidars, or laser speed guns, to detect vehicle speeds. These cases all relied on the argument used in a 2016 Supreme Court decision that resulted in speeding charges against the defendant being dismissed. The issue in each case was the reliance by prosecution on a certificate to prove the accuracy of the speed guns used to detect the speed of the vehicles in question.

In each case, the prosecution relied on a certificate that stated the speed gun was tested and found to be accurate within a limit of error not exceeding plus 3 km/h or minus 3 km/h. Justice Peek in his 2018 findings found that the prosecution was not entitled to prove the accuracy of the speed guns through the tendering of the certificate. The Supreme Court did not say that the speed guns were inaccurate, only that the prosecution could not prove that the devices were accurate by relying on the certificate.

It would be costly for the prosecution to prove the technology behind the speed devices in every case as this method would require experts to give evidence at every trial. To avoid this, the law allows a reliance on certificates, signed by a senior police officer, that certify the accuracy of the speed gun that has been used.

Speed guns are required to be calibrated every 12 months in accordance with the Australian standards. When a speed gun is calibrated, a report is issued which states that the gun is accurate to within a specific margin of error. In addition, police are required to perform a number of daily tests, as prescribed by the manufacturer.

These tests are recorded as pass/fail. The law requires that these tests are performed on the day that the device is used. The results of these tests are then used when producing the certificate. Justice Peek held that in the three cases the prosecution could not rely on the certificate because the evidence of the daily testing by police did not show that the devices were accurate to within plus 2 km/h or minus 3 km/h; instead, they just recorded a pass/fail.

The finding in all three cases was that the defendant did not need to prove that the device was inaccurate but only that the daily testing done by police did not prove that the device was accurate to what was stated in the certificate; thereby, the certificate could not be used to prove that the device was accurate to that extent and the speed of the vehicles recorded by the devices could not be proven. So in terms of the amendments for the Road Traffic (Evidentiary Provisions) Amendment Bill 2018, the bill is designed to address adverse court outcomes relating to the Lidar traffic speed analysers used by SAPOL. There is only one amendment to be made—inserting section 175(3)(baa).

The proposed new section 175(3)(baa) provides that, with respect to the accuracy of speeds recorded by any traffic speed analyser that is not a camera, the Commissioner of Police or an officer above the rank of inspector will be able to sign a certificate specifying a date on which any traffic speed analyser was tested in accordance with either the appropriate Australian standards or, in the absence of an Australian standard, the manufacturer's specifications.

This new provision reflects similar provisions in Queensland and Victoria and provides that this test is valid for one year following the testing. These amendments will bring South Australia in line with interstate jurisdictions.

Road safety is the key issue here. SAPOL have withdrawn Lidar speed detection devices and will not resume them until the appropriate legislative changes have been made. Lidar is more effective in built-up areas or where structures are built close to the road. The withdrawal of Lidar removes a valuable tool to prevent motorists from speeding. Speeding is a significant cause of death and injury on our roads.

I implore all the house to support this amendment to ensure SAPOL are equipped with the resources they need to do their jobs and make our roads safe. Again, I stress that SAPOL does not consider the devices unreliable; rather, the evidentiary requirement has proven more complex than anticipated. While the Lidar devices will not be used to enforce speeding offences until the legal situation is resolved, other options are available to ensure SAPOL continues its road safety focus.

Motorists would be unwise to think this decision creates any gap in our attention to road safety or shortfall in enforcement. Any person who has been issued with an expiation notice from a police officer who they believe was using a Lidar device and has not paid that notice as yet can apply for a review and this will be considered on a case-by-case basis as per the normal process of review.

I commend this bill to the house.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Amendment provisions

These clauses are formal. The measure comes into operation on the day on which it is assented to by the Governor.

Part 2—Amendment of Road Traffic Act 1961

3—Amendment of section 175—Evidence

Clause 3 of the measure makes several amendments to section 175 of the Act. Clauses 3(1) and (2) of the measure limit the current evidentiary provision in section 175(3) of the Act to traffic speed analysers that are also photographic detection devices. These subclauses are consequential on the amendment to section 175(3) proposed by clause 3(3) of the measure.

Clause 3(3) of the measure inserts new paragraph (baa) into section 175(3) of the Act.

New paragraph (baa) is an evidentiary provision that relates to traffic speed analysers that are not photographic detection devices. It provides that if the prosecution produces a certificate by the Commissioner of Police (or a police officer of or above the rank of inspector) certifying that such an analyser was tested on a specified day in accordance with an appropriate Australian Standard (or if there was no Australian Standard in force on the day of testing, the manufacturer's specifications) and was found to be accurate to the extent indicated, then the certificate is proof, in the absence of proof to the contrary, of the accuracy of the analyser to that extent not just on the day of testing but also during the period of 1 year following that day (and is proof of that accuracy whether or not the analyser is used during that year in relation to vehicles of different speeds from those involved when the test was carried out or is used in different circumstances from those that applied when the test was carried out).

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