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House of Assembly - Fifty-Fifth Parliament, First Session (55-1)
2024-09-11 Daily Xml
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Bills

Motor Vehicles (Motor Driving Instructors and Authorised Examiners) Amendment Bill

Committee Stage

Debate resumed.

Clause 13.

Mr TELFER: Thank you for your guidance there. Obviously, there is some substantive clauses and a lot of detail in the subclause. As a part of looking at clause 13, and it is in the context also of the information which has been provided in the previous clauses, this in particular is amending a section. In the context of the powers that are given to the registrar in the previous, there is a lot of vagueness or ambiguity within the legislation as to leaving open the opportunity for the registrar to decide a lot of the detail. Can you give some guidance as to the reasons why more specifics were not put into the legislation? I am guessing when the registrar specifies, is that going to be within regulation or is it going to be guidelines? There is a lot of power and process that the registrar has been equipped to do, rather than putting it in the legislation. Can you give me some guidance as to why, minister?

The Hon. A. KOUTSANTONIS: I do not want to be difficult. You have not given me a specific clause to talk about, so I will give you some general overview that you might want to focus in on afterwards. My view is, with legislation we are becoming too prescriptive. Clause, subsection (b), you will walk on this line forevermore. What we want to do is give as much flexibility to our experts to allow them to walk within guardrails of what it is we are attempting to do.

I am up for you asking me specific questions about specific clauses about what this actually means in terms of specificity. What do you mean by giving the registrar discretion on this issue? I can give you an answer. My general principle is that I think that when we have statutory officers like the Registrar of Motor Vehicles, the Inspector of Mines, the Commissioner of Highways or whatever it might be, the greater level of flexibility we have in legislation for them actually assists the public in good outcomes.

When you are too prescriptive, and I will give you an example of that, which is a bit off topic, Mr Chair, if you will allow me—the alienable rights legislation amendments that the previous government moved in compulsory acquisitions. It leaves no discretion for the Commissioner of Highways when we are compulsorily acquiring a property where there is no alienable right. What does that mean? Mum and dad own a property. They lease it to their kids to run a business. There is no lease in place, therefore there is no alienable right, therefore that business is not compensated. And this is from the party of small business. It is the complete opposite of what you would have intended from those amendments, but that is the outcome of being so prescriptive.

Now my view is, given ministerial oversight, the less prescriptive we are the greater flexibility we have to intervene as legislators and parliamentarians to give better outcomes to our citizens, so we are not bound to the letter of a piece of legislation. Now that is my general overarching principle. I accept the criticism that this does give some bureaucrats a bit too much power, but it also means it gives us more power to intervene.

As a minister, I like the power to intervene. What I do not like is when I am bound by legislation and I cannot give people commonsense outcomes, like the alienable rights issue, where clearly mum and dad have bought the property, the kids are running the business, and there is no lease because it is mum and dad. There is no alienable right, so we cannot compensate the business, and it is an appalling outcome. Flexibility in legislation is very important.

If you had a specific example, and I am looking at the shadow minister sitting in the gallery, which I should not be mentioning, if there was a specific example between the houses where you think that there is a level of bureaucratic flexibility that is too broad that you would like me to tighten, I will have a look at it, but I would also tell my friends on the other side of parliament this type of legislative freedom is actually quite good for good outcomes for our citizens because it gives us more scope to be flexible.

The CHAIR: No further questions?

Mr TELFER: I have probably already stretched it a fair bit.

The CHAIR: I was trying to work out where in clause 13 you were getting that question from.

Mr TELFER: I was just trying to instigate a broad theory in all encapsulating clauses, sir.

Clause passed.

Clauses 14 and 15 passed.

Clause 16.

Mr TELFER: This aspect of the Motor Vehicles Act amendment bill, speaking about enforcement stuff in particular—the appointment of the authorised officers—I am trying to get an insight into what that process is going to look like. You talked about the potential to utilise or harvest existing MDIs to get into the process of becoming authorised officers, authorised assessors. What is that process going to look like in practice? Is there a training program which is going to be an obligation? Is there the recognition of an existing skill set?

There is already, obviously, accreditation when it comes to the training of MDIs currently, and those MDIs, indeed, in the current system do assessing. What additional process is there going to be for us as we go through the appointment of the authorised officers?

The Hon. A. KOUTSANTONIS: The authorised officers are not the same as the assessors. These are the people who do the investigating, so it is a very different cohort of people. These are people who will have the powers to check phone records, once a complaint has been made to have powers of enforcement to go through and check what has occurred. So this is not a training issue or an assessment issue. This is an enforcement issue.

Mr TELFER: So for me to get an insight into looking at what that process is going to be, the authorised officers, the ones who are doing the investigation, there is a fair old range of powers that have been given to them: entering vehicles, places, examining, etc. Does it stretch to mean that spouses, children of assessors can be questioned? They are fairly broad powers they have within this clause. I am trying to get an insight into where the line is, because with this power we have to make sure that it is not undue power in context of what the bill is trying to achieve.

The Hon. A. KOUTSANTONIS: Authorised officers will have powers that are pretty standard practice across a broad range of industries, such as the Passenger Transport Act (the same sort of authorised powers under that act); the Road Traffic Act; the Harbors and Navigation Act; the Fair Trading Act; and the Environment Protection Act. We have these powers in other pieces of legislation for authorised officers to conduct themselves. We have based it on that.

I do point out to the shadow minister that we are talking about pretty vulnerable people here, who have been in vehicles and who have been subject to some pretty horrific types of crimes that have been reported independently by the Independent Commission Against Corruption. We have looked at a standard set of powers that authorised officers have, and we have taken those well-established powers that are in other pieces of legislation that are longstanding and transferred them here.

This is not a new invention. If you are operating under the Passenger Transport Act, authorised officers have these powers now. If you are operating under the Harbors and Navigation Act, authorised officers have these powers now. If you are operating under the EPA Act, authorised officers have these powers now. They are well established.

We are not creating a new cohort of powers where we can kick in doors and do all sorts of crazy things that you might be concerned about. These are powers that are well established in other pieces of legislation that we are transferring and using as a template for this act.

Mr TELFER: I get that broader aspect. What we are dealing with often will be small businesspeople—

The Hon. A. Koutsantonis: Fishermen.

Mr TELFER: No, I am just saying within this act here. So individuals running a small business, often out of their own home as their business premises. Page 24 of the bill provides:

(2) An authorised officer may not exercise the power of entry under this section in respect of premises unless the premises are business premises being used at the time in the course of business.

The scenario may well be that someone's home office is their place of business. Further down it provides:

(4) In the exercise of powers under this Act, an authorised officer may be assisted by such persons as the authorised officer considers necessary in the circumstances.

Does this give rise to an occasion or an opportunity where there could be a business run out of someone's home, an authorised officer could go to someone's home, enter under these powers and a spouse, a child or a member of that person's family may be considered necessary by an authorised officer to assist within that process? I am not trying to conflate. This is the nuance of this industry in particular.

The Hon. A. KOUTSANTONIS: I point out that these powers under the Passenger Transport Act apply to taxidrivers and rideshare. They are small businesses too. They operate out of people's homes. These authorised officers have similar powers under that act.

Some of the powers we are talking about are things like verify a driver's licence; have a licence examined by a document expert to determine if the driver's licence is counterfeit or not; require a person to confirm their identity; produce your driver's licence, which I think is pretty reasonable; gather evidence that a person is being paid for providing a service; people providing driver training without holding a licence; the lesson test was conducted without the required camera being switched on; gather evidence of text messages and photos on mobile phones; to show the breach of an offence, for example, inappropriate messages to children; evidence that a lesson or a test took place; evidence of knowledge of a VORT route when not entitled to know the VORT route; inspect, verify and/or seize diaries to determine particulars of an offence, e.g. motor driver instructors' diaries to confirm date, times and places of training.

Evidence can be lost or altered if not seized at the time of offences detected. In terms of vehicles, we can get into someone's vehicle and make sure that all the required equipment is functional: the camera works, the tracking device works, the paperwork has been completed, the vehicle is roadworthy. When the public is entrusting their children to people who are going to be basically accredited to do this work, they would expect the state to have the powers to make sure that the people they are entrusting their children with are able to be verified that their children are safe.

I will also say to the shadow minister that this is a volunteer sport. No-one is forcing anyone to be a driver trainer. If you want to be a driver trainer these are going to be the rules, because you are training young children, sometimes vulnerable children, sometimes desperate children or desperate families who need a licence, need an income or need a livelihood. Protections need to be in place.

As I said, the powers that I am talking about are available in other pieces of legislation. These are not new or invented. These are legislative frameworks that we have gotten from authorised officers in other pieces of legislation that have the same impacts on small businesses.

Mr TELFER: Thank you minister, I think this is good clarification that is necessary. The aspect on page 27 about the self-incrimination I am interested in. Once again, we are talking scenarios where—

The Hon. A. KOUTSANTONIS: Self-incrimination.

Mr TELFER: Self-incrimination on page 27; a scenario where you could have an authorised officer coming into a home and questioning the family potentially, going through the sort of documents that you talked about, and it talks about the capacity here—commentary around the self-incrimination. In a scenario when it is a police officer, for instance, and now in the previous clause we removed police officers as being involved in the process, there is a process around making sure people are aware of their rights when it comes to entering of a property and the risks around self-incrimination and the fact that, in answering questions, they have the right to have legal representation and the like. None of that is specified here. With this aspect, in particular, with the authorised officers, is there a risk that people are going to find themselves in situations where they legally put themselves at risk because there is not the same obligation on an authorised officer as there might be on a police officer, for instance?

The Hon. A. KOUTSANTONIS: I do not know who you are trying to protect. I am trying to protect the children being trained. That is point one. If you are more interested in protecting the driver trainers that is a different scenario altogether. However, I accept the point that there are common law rights that cannot be extinguished and the legislation has that.

So, I will just read this out to you so I get this right: the utility of mandatory cameras will be limited if the footage cannot be assessed or used as evidence in administrative or criminal proceedings. For this reason the bill specifically includes a provision, clause 134T, that disapplies the privilege against self-incrimination, limited to the provision of camera footage, which will enable the audiovisual footage to be used in criminal proceedings and for disciplinary offences. In this bill the self-incrimination privilege has been partially abrogated so that the Registrar of Motor Vehicles can access and use the footage produced by the camera as evidence for disciplinary or criminal proceedings.

If we applied the rights that you are talking about we could not use that footage to apply disciplinary proceedings and so I put to you: what is the use of a camera? Imagine this scenario: we have the footage of someone asking for a bribe, sexually assaulting a child, and not being able to use it to discipline them or take away their accreditation so they cannot do it again.

Mr TELFER: Who has the footage?

The Hon. A. KOUTSANTONIS: The Crown would own the footage.

Mr TELFER: This is the bit that I am having trouble with. So the Crown will own the footage. That scenario would not be self-incrimination, you are not requiring the owner of the footage, the owner of the evidence to give that to the authorised officer, it is the Crown that already owns that, rather than trying to obligate the person to give that to you.

The Hon. A. KOUTSANTONIS: You make a good point, probably. If we have to ask for that footage, what we do not want is for them to have the ability of a line of defence of self-incrimination, that, 'Because I provided you with the footage, I was required to, you cannot use that against me.' So it is important that we have the ability to be able to use that footage, if we require you to deliver it to us, to be able to use that against you.

Again, I go back to the principle: who are we trying to protect here? We are all public officers here. We have all decided, as public officers, that we can be coerced to give evidence, even if it is self-incriminating. It can be used to discipline us, not necessarily in a criminal court, but it can be used in disciplinary measures through the ICAC legislation. So we have decided that already. Why would you not apply that to driver trainers?

Clause passed.

Remaining clauses (17 to 21), schedule and title passed.

Bill reported without amendment.

Third Reading

The Hon. A. KOUTSANTONIS (West Torrens—Minister for Infrastructure and Transport, Minister for Energy and Mining) (20:46): I move:

That this bill be read a third time.

Bill read a third time and passed.

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