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Legislative Council - Fifty-Second Parliament, First Session (52-1)
2011-04-07 Daily Xml
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STATUTES AMENDMENT (TRANSPORT PORTFOLIO—PENALTIES) BILL

Second Reading

Adjourned debate on second reading.

(Continued from 23 March 2011.)

The Hon. D.W. RIDGWAY (Leader of the Opposition) (16:17): I rise on behalf of the opposition to speak to the Statutes Amendment (Transport Portfolio—Penalties) Bill. This bill increases the maximum penalties under three acts: the Road Traffic Act 1961, the Motor Vehicles Act 1959 and the Harbors and Navigation Act 1993. It also amends the maximum level at which expiation fees for a number of offences can be set.

As members would be aware, our current penalty system operates with both expiation notice fees and court-imposed fines. The expiation fees are generally set out in regulations and usually increased annually. They represent a portion of the maximum fine set out in the act. Because a number of fines in these acts have not been amended for some time, there is a diminishing difference between the fines and expiation fees. The penalty set out in the Motor Vehicles Act were determined in the period between 1998 and 2001, and some of the penalties in the Road Traffic Act have not been increased since the early 1990s and, in some cases, the 1980s. However, the act has had some more recent increases between 2005 and 2009, which were in line with the previously set amounts.

Ideally, it was almost always financially beneficial to pay the fee rather than go to court; however, the diminishing difference between the fine and expiation fees encourages people to have their minor matters dealt with by the court, as there is a possibility that the court may impose a fine that is less than the expiation fee, or they may even be found not guilty.

At this point, I think it is appropriate to add that, outside the Expiation Notice Branch, the court process is the only mechanism for appeal against alleged traffic infringements. However, the associated costs mean that most people will concede to paying a fine despite perhaps having a solid argument against an expiation. Many constituent circumstances have made it very clear to me that, in order to remove any conflict of interest, appeals currently referred to the expiation notice unit should instead be referred for appeal to an existing agency independent of SAPOL.

It was for that reason that the opposition, at the last election, committed to a policy of removing the appeals process from the Expiation Notice Branch within SAPOL and placing it with an existing agency independent of police. The South Australian community is increasingly aggrieved by what appears to be blatant revenue raising with the deployment of speed detection devices and the nature of some of the police blitzes like Operation Rural Focus. I think that blitz exemplified the extent to which SAPOL will go in order to reach targets and budgets. The triviality of a number of the offences was absurd and, in a number of cases, I assert that had the offence been appealed in court, it may not have stood up. However, the reality for most people is that they simply do not have the time or the financial capacity to take matters to court.

South Australia currently has the highest expiations in the country and, in the recent state budget, the standard expiations have again been increased. Evidence surrounding the budget indeed suggests that the state Labor Party views expiations as a revenue-raising opportunity rather than as a matter of road safety. It was interesting to note that the Sustainable Budget Commission—whose brief was to look at financial sustainability and try to help this reckless government to restore its budget to some sort of sensibility—recommended raising the expiation notices. Clearly, their brief was not about road safety; it was about revenue-based issues.

Notwithstanding these concerns, the aim of the bill is to restore the deterrent effect of the penalties and to discourage people from appearing before courts for minor matters. Alleged offenders will retain the right to elect to be prosecuted for an offence and will have their penalty determined by the court. The bill proposes to increase the penalty for some offences by a significant amount. The average increase in penalty is in the range of $400 to $500, but there are some instances where the fines have increased by $1,000 to $2,500. Many of the penalties have been increased from an amount such as $250 to $750 or from $750 to $1,250.

The explanation given for the decision to choose these particular figures is that the amounts are standard amounts that parliamentary counsel uses. This stems back to the Acts Interpretation Act 1915 where divisional penalties were originally outlined. There are also two new fines proposed in the bill. They both relate to the Road Traffic Act and set out the penalty for noncompliance with a police direction to stop the vehicle and submit to a breath analysis and drug screening test or blood test. Currently there is no penalty set out in the act for this offence, so the default fine of $2,500 applies. The new penalty is proposed at $2,900, which is in line with offences of drink or drug-driving. Effectively, this new fine is increasing the current penalty by some $400.

Advice has been received that the court-imposed penalties are not factored into the budget in the way that expiation fees are and which are directed into consolidated revenue. The bill also proposes to increase the maximum expiation fee penalties that can be set under the regulations. In the regulation of acts there are two types of expiation fees that can be set—for offences against the regulations and offences against the act. Currently the expiation fees for offences against the regulations of the Road Traffic Act can be set at a maximum of $2,500, and for the Motor Vehicles Act to a maximum of $1,250. The bill proposes to increase the maximum expiation fee penalty to $5,000 for both. For expiation fees for offences against the act, the maximum fine is currently $750, whereas the bill proposes to increase that amount to some $1,250.

Both the RAA and the Motor Trade Association are reasonably comfortable with the bill. I indicate that the opposition will be supporting the bill, but I am looking forward to the committee stage of the bill where I would like to raise a number of questions in relation to the actual expiation fees and the level of them. With those few comments, I indicate we will be happy to support the second reading of this bill.

The Hon. D.G.E. HOOD (16:24): This bill is a very straightforward one. It contains some 39 operative clauses, each of which amends a particular penalty provision in the Motor Vehicles Act, the Road Traffic Act or the Harbors and Navigation Act. In effect, this bill seeks to increase penalties in those acts to keep pace with inflation and community expectations. Of particular note, financial penalties are increased for offences such as drink-driving (or, in more precise terms, driving with a prescribed concentration of alcohol), failing to produce a licence, certain speeding offences, driver fatigue penalties and so forth. As one example, the amendment to section 47B increases the penalty for a simple category 1 drink-driving offence to $1,100, up from $700.

The government makes the point that the present drink-drive penalties were set in 1991 and have not been adjusted since that time. In a sense, that is absolutely correct for what are now the so-called categories 2 and 3 prescribed concentration of alcohol offences. The category 1 drink-driving offence, the penalty for driving with a blood alcohol reading of between .05 and .08, is relatively recent, of course.

As for the general principle that the penalties within the act need to be increased, given the time elapsed since 1991 Family First supports the government's position. What we are not predisposed to supporting, however, is the notion that the best way to deal with penalties is via a piecemeal and arbitrary approach, such as the one found in the bill before us today.

From a Family First perspective, and I have mentioned this a number of other times in other bills we have debated in this place, it is somewhat disappointing that we are forced to deal with penalty provisions in this way. The penalty I have just described has not, for example, been amended to keep pace with inflation and community expectations in 20 years; hence, that is essentially what we are doing in this bill.

From our perspective, a far better approach would be to use penalty units for each of these offences and, indeed, for the penalties imposed in every act, so that we can update penalties globally and consistently in accordance with annual inflation. Several of our acts use penalty units, or divisional penalties as they may be called, whilst others continue to specify dollar amounts that are not updated for many years.

Other states, such as Victoria and New South Wales, are more wholeheartedly committed to penalty units, and our submission is that South Australia should move down that path. In our opinion, doing so would be a more comprehensive approach that would allow us a clearer comparison of penalties across different acts. It would not require acts to be amended from time to time, as this one is being now, in order merely to increase amounts by the rate of inflation or something near to that.

Some time ago, for example, I pointed out that the Controlled Substances Act imposes a $300 fine for growing a cannabis plant, whereas the commonwealth fine for growing one tobacco plant is up to $55,000. A significant principle of criminal justice is that the deterrents must be seen as fair and proportionate. Marked disparities, when it comes to sentencing outcomes, adversely affect community perceptions of our justice system.

The use of penalty units is certainly one tool that can be used to better ensure parity and fairness in sentencing. It allows a better comparison of penalties across different acts of parliament, while making it simpler to update penalties globally for CPI or other unforeseen economic events or, indeed, even expected economic events, such as a rise in inflation over time.

From our perspective, it is unacceptable that various penalty clauses have not been updated for something like 20 years, even for offences as regularly charged as drink-driving matters. The situation for rarely prosecuted offences is much worse. I will give you a few examples that I think are almost amusing, but I think they make the point.

The penalty for damaging what must be very expensive work done under the Metropolitan Drainage Act is set by regulation and, to quote from the act, must not exceed 'twenty dollars'—truly a harsh penalty, indeed. Perhaps back in 1976, when the penalty was enacted, $20 was indeed a sufficient penalty; in the year 2011, of course, it is not very much at all.

Under the Drugs Act 1908, suppliers selling drugs that are not of the correct nature or quality are again kept in check with the penalty of 'not less than twenty dollars'. This penalty was last amended in 1985. Perhaps most would regard that as insufficient, given the damage that incorrectly marketed drugs can cause. I am sure most would regard that as insufficient.

Under the General Tramways Act 1884, engineering firms are given power to break up a street to build a tram line, but they are required to reinstate the road as far as possible after building the tram line, which seems very reasonable. I am glad to say that if they are even considering not to live up to that expectation—that is, to repair the road after they have done the work required—the multimillion dollar construction company is kept in check with 'a penalty not exceeding forty dollars, and to a further penalty not exceeding ten dollars for each day during which any such failure continues'. Perhaps the equivalent sum was a significant penalty back in 1884, but certainly now, in the days of multimillion dollar construction companies, figures of $40 or $10 per day provide no disincentive whatsoever.

So, while generally supporting the notion that the particular penalties before us need updating, Family First would have preferred a more consistent and substantial bill that updated a wider range of penalties right across the acts as they stand, whether it be an automatic rise according to CPI that just went up every year or whether penalty units are used so that different offences can be given different penalties and therefore appropriate values that can be changed by regulation from time to time. Having said all that, Family First is certainly willing to support the second reading of this bill, and we would anticipate supporting the bill as a whole, subject to the discussion at the committee stage.

Debate adjourned on motion of Hon. R.P. Wortley.

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