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Legislative Council - Fifty-First Parliament, Second Session (51-2)
2008-04-30 Daily Xml
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STATUTES AMENDMENT (TRANSPORT PORTFOLIO) BILL

Second Reading

Second reading.

The Hon. P. HOLLOWAY (Minister for Police, Minister for Mineral Resources Development, Minister for Urban Development and Planning) (17:51): I move:

That this bill be now read a second time.

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

Leave granted.

The Statutes Amendment (Transport Portfolio) Bill 2008 includes a number of transport related amendments to the Motor Vehicles Act 1959, Road Traffic Act 1961, Passenger Transport Act 1994 and the Harbors and Navigation Act 1993, most of which are minor in nature and aim to improve the operation and administration of the respective pieces of legislation.

Of most significance, the Bill aims to improve the management of unregistered and/or uninsured vehicles by making the offences of driving or leaving standing on a road an unregistered and/or uninsured vehicle expiable. South Australia is the only State where these offences are not expiable. The Bill also aims to improve compliance by increasing the perceived risk of detection by making both offences detectable by camera.

At present, the maximum penalty for driving an unregistered vehicle is $750 or twice the amount of the prescribed registration fee for 12 months, whichever is higher. Driving uninsured attracts a maximum penalty of up to $2,500 and disqualification from holding or obtaining a driver's licence for up to 12 months. The offence of driving uninsured attracts a higher penalty as it constitutes a derogation of fiscal responsibility for personal injury in the event of an accident.

The average fine imposed by the courts has tended to be low in relation to the maximum penalty–around $240 for driving an unregistered vehicle and around $300 for driving an unregistered and uninsured vehicle. In addition, an average driver's licence disqualification of 2 days (usually of the driver's choice) is imposed for uninsured offences in most circumstances.

The number of people who drive an unregistered and/or uninsured vehicle is increasing. In 2000-01, there were 14,517 unregistered and/or uninsured charges before the courts and in 2005-06, that number had increased to over 19,000. The total number of unregistered and/or uninsured vehicles being used on the road network is likely to be much higher.

As the total fee to 'register' a vehicle includes a registration charge, a premium for the compulsory third party insurance, stamp duty on the issue of the insurance cover, an Emergency Services Levy and an administration fee, each unregistered vehicle driven on a road results in higher premiums for people who register their vehicle, as well as loss of revenue to the Government.

The Department for Transport, Energy and Infrastructure has been working with the Motor Accident Commission, South Australia Police, the Attorney General's Department and the Courts Administration Authority for some time to address the issue in a comprehensive way.

To ensure that those who drive an unregistered and/or uninsured vehicle on our roads are held accountable for their actions, the Bill increases the penalty for driving or leaving standing on a road an unregistered vehicle from $750 to $2,500, with an expiation fee of $250 to be prescribed by the Motor Vehicles Regulations 1996. Similarly, the Bill increases the penalty for driving or leaving standing on a road an uninsured vehicle from $2,500 to $5,000, with an expiation fee of $500 to be prescribed by the regulations. A person whose vehicle is detected on a road without registration and insurance will be liable to the penalty for both offences. The increases in penalties are designed to counteract the perceived financial benefit of not paying the registration and insurance fees, allows the courts to impose penalties that equate to the amount of registration and insurance avoided, and reflects the seriousness of these offences.

Issuing an expiation notice also provides an immediate penalty, and this, together with the sufficiently high expiation fees, will act as a more effective deterrent.

While it might be thought that making unregistered and/or uninsured offences expiable will reduce the time and resources required by the courts, the Courts Administration Authority has advised that unregistered and/or uninsured offences are not usually heard alone but generally form part of a larger group of offences being heard together. The Courts Administration Authority has confirmed that there would be limited savings in court time as a result of making the offences expiable.

To reinforce the serious nature of these offences and to respond to repeat offenders, the Bill ensures that those who have been detected on a number of occasions driving an unregistered and/or uninsured vehicle, as well as those subject to a Cessation of Business order imposed by the Courts Administration Authority as a result of unpaid fines, may continue to be dealt with by the courts, rather than by expiation.

As a licence disqualification is more appropriately associated with offences related to licensing matters, the Bill removes the licence disqualification penalty for the offence of driving an uninsured vehicle. South Australia is the only State to apply a licence disqualification for the offence.

In addition, the Bill will enable all road traffic cameras such as speed, red light and Safe T Cam cameras (currently used to detect heavy vehicle driving hours offences) to be used to detect and enforce unregistered and/or uninsured offences. This is expected to improve detection of unregistered and/or uninsured vehicles. Safe T Cam, which has 11 fixed sites across South Australia, uses Automated Number Plate Recognition technology and is able to detect unregistered and/or uninsured vehicles without another offence being committed, while other cameras are activated only by red light or speeding offences.

With the introduction of camera detection it has been necessary to include a provision to cater for multiple offences detected via camera in a short period of time. This is particularly so due to the continuing nature of the offending, the ability for Safe T Cam to detect unregistered and/or uninsured vehicles without another offence being committed, and the delay between committing the offence and receiving an expiation notice in the post. To ensure owners of vehicles do not inadvertently commit multiple offences detected by camera and incur a number of expiation fees before they receive the first expiation notice and the matter comes to their attention, the Bill proposes that where a person is given an expiation notice for an unregistered and/or uninsured offence detected by camera, that offence will subsume all other unregistered/uninsured offences detected by camera within 7 days of the date of the offence that triggered the first expiation notice. This means that if more than 1 expiation notice is issued for an unregistered and/or uninsured offence detected by camera in a 7 day period, payment of the first will satisfy any others issued within that period. The 7 day period was based on advice from South Australia Police as to the time required to issue an expiation notice, which will reduce to 3 4 days with the roll out of digital cameras.

This 7 day period will only apply to camera detected offences. If a person is detected road side and issued an expiation notice, they will immediately be made aware of the need to register their vehicle and there is no need to make provision for the delay in receiving an expiation notice through the post.

A provision to this effect has been included in the Bill to ensure that where the owner of a vehicle is detected driving an unregistered and/or uninsured vehicle by police road side within 7 days of a camera detected offence, the 7 day period associated with a camera detected offence will no longer apply and all subsequent unregistered and/or uninsured offences detected by camera will not be subsumed. In addition, the Bill incorporates a provision to cater for the reverse example, that is, where the owner of the vehicle is detected road side for an unregistered and/or uninsured offence before a camera offence has been detected. For consistency, the 7 day period will not be applied in these circumstances. This will ensure that owners who are caught driving their unregistered and/or uninsured vehicle by police will not have the benefit of the 7 day period during which time any subsequent camera detected offences would be subsumed.

As camera detection of road traffic offences relies on the identification of a vehicle via the vehicle's number plate, it is expected that with the increase of offences able to be detected via camera, there may be an increase in the removal of number plates or the use of false or defective number plates in order to avoid detection. The system also relies heavily on the register of motor vehicles being accurate and up to date and while the purchaser of a vehicle is currently required under the legislation to apply to the Registrar within 14 days of purchase to transfer the registration of a vehicle, they may not fulfil this obligation to avoid stamp duty or other fees or even to avoid being pursued for camera detected offences.

To complement making unregistered and/or uninsured offences expiable and detectable by camera, the Bill proposes to increase the penalties for number plate offences to the same level as the uninsured offence, that is, a maximum penalty of $5,000 and expiation fee of $500. This will ensure there is appropriate disincentive to remove number plates or use false or defective number plates to avoid detection for driving without registration and insurance. It is also intended that an expiation fee of $200 will be introduced for failing to return number plates, although an exemption will be provided in the Motor Vehicles Regulations 1996 to licensed motor vehicle dealers from having to return number plates belonging to an unregistered and/or uninsured vehicle if the vehicle is being kept for resale purposes.

The Bill also introduces a new requirement for the person selling a vehicle, as well as the purchaser, to notify the Registrar of Motor Vehicles of the disposal of a registered vehicle and of the details of the purchaser. The Registrar will then be able to match the notification from both the purchaser and the seller to ensure that the register of motor vehicles accurately reflects the change in ownership of a vehicle. This provision is intended to assist enforcement agencies with an improved trail of vehicle ownership for all camera detected offences. It should be noted that over 40,000 notices of disposal are already received by the Registrar from vehicle sellers each year under the current voluntary system.

The maximum penalty for a seller failing to notify the Registrar of the disposal of a vehicle is proposed to be $1,250 with an expiation fee of $160. This penalty will not be enforced for the first 12 months to enable the vehicle selling community to get accustomed to the new requirements.

To ensure consistency, the Bill also increases the maximum penalty applying to the purchaser of a vehicle who fails to notify the Registrar. As well, it increases the penalty associated with failing to notify the Registrar of a change of address from $250 to $1,250. This increase in the maximum penalty able to be imposed by the courts aims to prevent the system from being manipulated and ensures that the register of motor vehicles will be accurate and up to date.

In cases where the purchaser of a vehicle fails to lodge with the Registrar an application to transfer the registration of the vehicle within 14 days, the Bill provides the Registrar with the power to refuse to transact any business with him or her under the Motor Vehicles Act until the application has been lodged.

The Bill provides a comprehensive approach to the improved management of unregistered and/or uninsured vehicles and aims to reduce the number of people who fail to register their vehicle because they think they won't get caught and if they do, it won't cost as much as the registration would have.

The remaining amendments addressed within the Bill are of an administrative nature and will improve the operation and administration of various pieces of transport related legislation.

In particular, the Bill amends:

the Motor Vehicles Act 1959 to allow the current Ministerial guidelines for the release of information to be prescribed by the Motor Vehicles Regulations 1996. This will provide greater transparency to the process and raise the status of the guidelines from a policy document, subject to administrative review, to a statutory instrument.

the Motor Vehicles Act 1959 to improve the operation and administration of the Act by:

removing all expiation fees set in the Act to enable them to be included in Schedule 9 of the Road Traffic (Miscellaneous) Regulations 1999 with all other expiation fees applying under the Act; and

addressing some minor drafting anomalies associated with the introduction of the Statutes Amendment (Compliance and Enforcement) Act 2006.

the Passenger Transport Act 1994 by introducing several expiation fees for offences against the Act and a regulation making power to fix expiation fees not exceeding $500 for offences against the regulations. For example, as part of the Government's strategy for improving safety in taxis, the Bill introduces an expiation fee of $210 for the offence of contravening a condition of driver accreditation, which can be used if a taxi driver fails to display an identification card. In addition, the Bill introduces an expiation fee of $315 for drivers who do not hold appropriate accreditation and an expiation fee of $210 for persons who contravene a code of practice to be observed by approved vehicle inspectors. Introducing expiation fees for particular offences will provide an alternative to prosecution and practically act as a more effective deterrent due to the immediacy of the sanction.

the Harbors and Navigation Act 1993 to enable the type of Emergency Position Indicating Radio Beacon (commonly referred to an EPIRB) required to be carried on a vessel operating off the coast of South Australia to be specified by regulation. At present, the legislation only specifies that an EPIRB must be carried on a vessel, but does not specify the type or that it needs to be functional. The Bill ensures that the Harbors and Navigation Regulations 1994 will be able to specify the carriage of a 406 Megahertz EPIRB as a consequence of the monitoring of the 121.5 Megahertz EPIRB being discontinued in February 2009. If the amendment is not made, there is a risk that vessel operators may carry a type of EPIRB that is not monitored, posing a significant safety risk to vessel operators and their passengers.

The opportunity has also been taken to correct various drafting anomalies within the Motor Vehicles Act and the Road Traffic Act as well as update references to a government department.

To sum up the major initiative in this Bill, at present, the penalties imposed for an unregistered and/or uninsured offence are not acting as a sufficient deterrent. It appears that, to a small group of motorists, it is worth the risk of getting caught and paying a fine rather than paying to register and insure their vehicle. If the system to manage unregistered and/or uninsured vehicles is not improved, the incidence of the offences will continue to increase and will ultimately impact on the Highways Fund, the Compulsory Third Party Insurance Fund, the Emergency Services Fund and the Hospital Fund, as well as lead to higher charges for those law abiding motorists who register and insure their vehicle.

I commend the Bill to the House.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

Clauses 1 to 3 are formal.

Part 2—Amendment of Harbors and Navigation Act 1993

4—Amendment of section 65A—Requirement to have emergency position indicating radio beacon

This clause amends section 65A which requires vessels of certain classes operating in the jurisdiction to carry an emergency position indicating radio beacon. Currently section 65A provides that the beacon must be in good working order. The amendment requires the beacon to comply with the requirements specified by the regulations.

Part 3—Amendment of Motor Vehicles Act 1959

5—Amendment of section 9—Duty to register

This clause amends section 9 to increase the maximum penalty for offences against the section to $2,500. Section 9 makes it an offence to drive an unregistered motor vehicle on a road or cause an unregistered motor vehicle to stand on a road. If an unregistered motor vehicle is found standing on a road, the owner of the vehicle is guilty of an offence. The maximum penalty is currently $750 or twice the registration fee that would be payable for registration of the vehicle for 12 months, whichever is the greater amount.

6—Amendment of section 38A—Reduced fees for certain concession card holders

7—Amendment of section 38AB—Registration fees for trailers owned by certain concession card holders

Clauses 6 and 7 update references to a government department.

8—Amendment of section 43A—Temporary configuration certificate for heavy vehicle

This clause amends section 43A to increase the maximum penalty for an offence against the section to $2,500. Section 43A makes it an offence for a person to cause or permit another to drive a registered heavy vehicle on a road in an unregistered configuration unless there is in force a temporary configuration certificate for that configuration. The maximum penalty is currently $750.

9—Amendment of section 47—Duty to carry number plates

This clause amends section 47 to increase the maximum penalty for offences against the section to $5,000. Section 47 makes it an offence to drive a motor vehicle, or cause a motor vehicle to stand, on a road if the vehicle does not bear number plates. If such an offence is committed, the owner of the vehicle is also guilty of an offence. The maximum penalty is currently $250.

10—Amendment of section 47A—Classes of number plates and agreements for allotment of numbers

This clause amends section 47A to increase the maximum penalty for an offence against the section to $5,000. Section 47A makes it an offence for a person to drive a motor vehicle on a road bearing number plates of a class in respect of which a declaration under the section has been made unless the registered owner has acquired the right to attach the number plates to the vehicle. The maximum penalty is currently $250.

11—Amendment of section 47B—Issue of number plates

This clause amends section 47B to increase the maximum penalty for an offence against the section to $5,000. Section 47B makes it an offence for a person to sell or supply number plates without the approval of the Minister. The maximum penalty is currently $250.

12—Amendment of section 47C—Return or recovery of number plates

This clause amends section 47C to increase the maximum penalty for an offence against the section to $5,000. Section 47C makes it an offence for a person to fail to comply with a direction of the Registrar to return number plates. The maximum penalty is currently $250.

13—Amendment of section 47D—Offences in connection with number plates

This clause amends section 47D to increase the maximum penalty for offences against the section to $5,000. Section 47D makes it an offence to drive a motor vehicle on a road, or cause a motor vehicle to stand on the road, if the vehicle has attached to it a number plate relating to another vehicle, a number plate that has been defaced, mutilated or added to or a colourable imitation of a number plate. If a motor vehicle is driven or caused to stand on a road in contravention of the section, the registered owner and registered operator are also guilty of an offence. It is also an offence to have possession, without reasonable excuse, of a number plate or article resembling a number plate that is liable to be mistaken for a number plate. The maximum penalty for offences against the section is currently $250.

14—Amendment of section 55C—Action following disqualification or suspension outside State

This clause amends section 55C to correct a drafting error.

15—Substitution of section 56

This clause substitutes section 56.

56—Duty of transferor on transfer of vehicle

This section provides that within 7 days after a transfer in the ownership of a motor vehicle, the transferor must either apply for cancellation of the vehicle's registration or give the transferee the current registration certificate, a signed application to transfer the vehicle's registration and a notice of the transfer of ownership. In addition, within 14 days after the transfer, the transferor must lodge the notice of the transfer of ownership with the Registrar. A maximum penalty of $1,250 is prescribed for non compliance.

16—Amendment of section 57—Duty of transferee on transfer of vehicle

This clause amends section 57 to increase the maximum penalty for an offence against the section to $1,250. Section 57 provides that within 14 days after a transfer of ownership of a motor vehicle, the transferee must lodge with the Registrar a completed application to transfer the vehicle's registration, accompanied by the current certificate of registration, the prescribed transfer fee and any stamp duty payable on the application. The maximum penalty is currently $250. The clause also amends the section so that if an application to transfer registration is not lodged within 14 days of the transfer, the Registrar may refuse to enter into any transaction with the transferee until such an application is lodged.

17—Substitution of section 57A

This clause substitutes section 57A.

57A—Power of Registrar to record change of ownership of motor vehicle

This section provides that if an application to transfer the registration of a motor vehicle has not been made, but a notice of the transfer has been lodged under section 56, or the Registrar is satisfied on other evidence that the ownership of the vehicle has been transferred to a particular person, the Registrar can record on the register the new owner without registering the vehicle in the name of that person.

18—Amendment of section 102—Duty to insure against third party risks

This clause amends section 102 to increase the maximum penalty for offences against the section to $5,000. Section 102 makes it an offence to drive an uninsured motor vehicle on a road or cause an uninsured motor vehicle to stand on a road. If an uninsured motor vehicle is found standing on a road, the owner of the vehicle is guilty of an offence. The maximum penalty is currently $2,500 and disqualification from holding and obtaining a driver's licence for a period of not more than 12 months, unless the vehicle is a trailer with a gross vehicle mass not exceeding 4.5 tonnes, in which case the current maximum penalty is a fine of $250.

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

This clause amends section 136 to increase the maximum penalty for offences against the section to $1,250. Section 136 requires certain classes of persons to notify the Registrar of a change of name or address. Currently the maximum penalty for offences against the section is $250.

20—Amendment of section 139D—Confidentiality

This clause amends section 139D to require guidelines for the disclosure of confidential information obtained in the administration of the Act to be prescribed by the regulations rather than be approved by the Minister.

21—Amendment of section 142A—Evidence of ownership of motor vehicle

This clause amends section 142A to update a cross reference.

Part 4—Amendment of Passenger Transport Act 1994

22—Amendment of section 28—Accreditation of drivers

This clause amends section 28 to introduce an expiation fee of $315 for an offence of driving a public passenger vehicle for the purposes of a passenger transport service without holding an appropriate accreditation.

23—Amendment of section 31—Conditions

This clause amends section 31 to introduce an expiation fee of $210 for an offence of contravening or failing to comply with a condition of an accreditation as a driver of a public passenger vehicle.

24—Amendment of section 54—Inspections

This clause amends section 54 to introduce an expiation fee of $210 for an offence of contravening a code of practice to be observed by approved vehicle inspectors.

25—Amendment of Schedule 1—Regulations

This clause amends Schedule 1 to enable expiation fees not exceeding $500 to be prescribed for offences against the regulations.

Part 5—Amendment of Road Traffic Act 1961

26—Amendment of section 5—Interpretation

This clause amends section 5 by altering the definitions of registered operator, registered owner, road related area and unladen mass.

27—Amendment of section 45A—Excessive speed

This clause amends section 45A to remove the expiation provision. This will enable the expiation fee to be fixed by the regulations.

28—Amendment of section 79B—Provisions applying where certain offences are detected by photographic detection devices

This clause amends section 79B to enable registration offences and offences against prescribed provisions of the Motor Vehicles Act 1959 to be detected by photographic detection devices. Registration offence is defined to mean an offence against section 9(1) of the Motor Vehicles Act constituted of driving an unregistered vehicle, or an offence against section 102(1) of that Act constituted of driving an uninsured vehicle. The term owner registration offence is defined to mean an offence against section 79B constituted of being the owner of a vehicle that appears from evidence obtained through the operation of a photographic detection device to have been involved in a registration offence.

The clause inserts new subsections (2c) and (2d).

Subsection (2c) provides that if—

(a) the registration of a motor vehicle has expired; and

(b) the owner of the vehicle is given an expiation notice for an owner registration offence involving the vehicle (the first owner registration offence); and

(c) the vehicle was last registered in the name of that owner; and

(d) since the vehicle was last registered, that owner has not been charged with, or been given an expiation notice for, a registration offence involving that vehicle,

the first owner registration offence subsumes all other owner registration offences involving that vehicle and committed by that owner within 7 days of the date of the commission of the first owner registration offence.

Subsection (2d) provides that if within 7 days of the date of the commission of the first owner registration offence, the owner is charged with, or given an expiation notice for, a registration offence involving the same vehicle, any owner registration offences involving that vehicle and committed by that owner after the commission of the registration offence are not subsumed by the first owner registration offence.

The clause also amends section 79B so that the requirement to allow a person an opportunity to expiate an offence against section 79B does not apply if the offence is an owner registration offence and the person has previously expiated or been found guilty of an owner registration offence or there is an order under section 70F of the Criminal Law (Sentencing) Act 1988 that restricts the owner from transacting any business with the Registrar of Motor Vehicles.

29—Amendment of section 110AAB—Driving hours

This clause amends section 110AAB to remove an obsolete reference to inspectors and replace it with a reference to authorised officers.

30—Amendment of section 110C—Offences

This clause amends section 110C to remove the expiation provisions. This will enable the expiation fees to be fixed by the regulations.

31—Amendment of section 163L—Definition

This clause amends section 163L by substituting a new definition of approved officer that includes police officers nominated as approved officers by the Commissioner of Police.

32—Amendment of section 175—Evidence

This clause amends section 175 to correct obsolete references.

33—Amendment of section 176—Regulations

This clause amends section 176 to remove an obsolete provision.

Debate adjourned on motion of Hon. D.W. Ridgway.

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