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Legislative Council - Fifty-Second Parliament, First Session (52-1)
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MOTOR VEHICLES (THIRD PARTY INSURANCE) AMENDMENT BILL

Committee Stage

In committee.

Clause 1.

The Hon. R.I. LUCAS: I think it would be useful if I try to at least clarify for the members of the committee the Liberal Party's position as it stands today, Thursday, in relation to the complicated series of amendments the committee is going to be asked to consider. I advisedly say 'Thursday' because in one key respect the party's position has changed, and I will outline it to the committee.

For the benefit of the smooth working of the committee, I advise that on behalf of the party I will be withdrawing the set of amendments entitled 'Amendments to be moved by the Hon. R. Lucas MLC [1]' and will be proceeding with the two sets of amendments entitled 'Amendments to be moved by the Hon. R. Lucas MLC [2]' and 'Amendments to be moved by the Hon. R. Lucas MLC [3].' I advised the table staff of that prior to the committee and formally advise the members of the committee at the moment.

In brief outline, the situation is this: the Liberal Party's first set of amendments was tabled on Tuesday; I think the government had a set of amendments that had been tabled in readiness for Tuesday; the government tabled some further amendments yesterday; the Hon. John Darley tabled a brief amendment yesterday; and, just to top it all off, we have now tabled further amendments today. So, it has been a moving feast, and I guess it is really an issue for the Independent and minor party members; I am simply trying to keep up with my shadow minister, the member for Davenport, in relation to this issue, but at least I understand now where our party's position is and will seek to outline our concluded position.

The amendments in the set of amendments [2] all relate to one issue so, thankfully, my suggestion to the committee will be that there be a test on the first amendment, amendment No. 1, clause 4, page 3; if that is successful, the remaining amendments are consequential and should not require any debate. If it is unsuccessful, I will withdraw and not proceed with the remaining amendments on that whole page, which all relate to the one issue, and I will explain them in detail when we get to it. Essentially, they relate to the driver issue in relation to the heavy vehicle fatigue scheme. All those amendments relate to that particular issue.

The amendments to be moved by myself, entitled [3], cover three or four broad issues. The first one, amendment No. 1, was in our original set of amendments, so it has stayed consistent, and it relates to an issue the Motor Trade Association has pursued with us in relation to the examples that it wants removed from the bill that is before us.

If I move quickly to amendment No. 4, that is exactly the same as the amendment No. 8 I had listed in the original set of amendments. It relates simply to the retrospectivity issue. It is our endeavour to absolutely lock up or rule out retrospectivity in any way; that is, the legislation will operate in a prospective fashion and it is just a tightening up of the retrospectivity provision.

From the set of amendments numbered [1], the amendments numbered 2 through to 7, I am advised by parliamentary counsel all relate broadly to the party's position, which it had outlined in the assembly and I outlined when I spoke on Tuesday, in relation to the blood alcohol content issue. In layperson's terms, our position essentially had been that we would support the reduction in the blood alcohol content from 0.15 to 0.1, but only on the condition that we would be able to write what has been called a cause and effect set of clauses into the legislation.

When we get to the detail of this, I will explain the advice the party has received, but the Liberal Party's position in this set of amendments is now different from that. Having received the advice from the Motor Accident Commission, the Law Society, the Australian Lawyers Alliance, government advisers and others, the member for Davenport has advised me that the party's position as we stand here today on Thursday is that we will not proceed with those amendments and that we will, in essence, be supporting the status quo.

In essence, we will support the blood alcohol content staying at 0.15 and we will not support the government's attempt to reduce it to 0.1, and we will not be introducing what has turned ought to be a complicated set of cause and effect amendments, as I have been advised. A number of the amendments in [Lucas-3] cover that particular issue. Finally, there are some amendments to schedule 1, part 1.

The government's latest set of amendments from last night indicates that they will move to delete subclauses (1) and (2) of part 1 of schedule 1, and the Liberal Party will support the removal of those subclauses, but we will be moving to delete the remaining subclause, subclause (3), which has included in it the example. In essence, we will remove part 1 of schedule 1 and the hard working parliamentary counsel, who has now made 6,000 amendments to our amendments and the government's, tells me that there is a consequential amendment to the long title, should that be successful; if it is not, we will not need to move that amendment.

I hope that brings in particular Independent and minor party members of the chamber up to speed with what my party's position will be. I also flag that at this stage we will be seeking a division in certain circumstances, or dividing and opposing certain clauses, in particular, clause 12. I alert the minor parties and Independents to that issue, that it is our intention to seek a view and defeat that provision with or without the amendments that have been flagged. Similarly, we will be moving to oppose clause 7 as well. With that, I indicate that certainly from our viewpoint we are now happy to proceed with endeavouring to make the best of a complicated situation.

Clause passed.

Clauses 2 and 3 passed.

Clause 4.

The Hon. R.I. LUCAS: I move:

Page 3, lines 3 to 8 [clause 4(1)]—Delete subclause (1)

As outlined to me—I need to put that in front of all of the contributions I make to this bill—in summary, the government's position is that as a result of the debate and the argument (again, I congratulate my colleague the member for Davenport) the government has accepted the problems in its original drafting in relation to what we term the 'chain of responsibility provisions' of the bill. I, therefore, do not propose to repeat the arguments in relation to that; we are going to come to that. The government is going to remove that.

Essentially, as it is outlined to me, the government's position is going to be that, having removed the chain of responsibility, the driver of the vehicle in certain circumstances will still be subject to the provisions of the bill. Again, as outlined to me, this means that the driver will be exposed if they commit offences relating to (1) driving whilst fatigued, (2) exceeding the allowable work time for a driver and (3) failing to have the required rest time for a driver.

I am advised that South Australian Road Transport Association, the Law Society committee looking at this issue and the Australian Lawyers Alliance are still strongly opposed to the retention of this particular provision within the legislation. I am also advised that, evidently, we will be the only state that has moved in this particular direction in relation to its equivalent to the Motor Accident Commission arrangements. That is, we are going to lead Australia in terms of including these particular provisions in the legislation.

The view from those stakeholders or groups—and shared by the Liberal Party—is that the considerable penalties that exist for a driver who commits those sorts of offences already should be a sufficient deterrent to prevent those drivers, in essence, from committing those offences. If they do commit the offences, then the penalties are there for those particular offences.

The issue really then rests on whether or not this additional penalty should be imposed on drivers in those circumstances. As outlined to me, the government's view is that, yes, there should be this additional penalty over and above the existing significant penalties. My party's position is that we do not support that and, therefore, we oppose it.

Those reasons—the double penalty reason, the fact that we will be the only state to move down this path, and the fact that all the constituent groups that have been following this issue and lobbying us have strongly lobbied against it—lead us to move this series of amendments. I suggest to the committee that we treat this as a test for all of my 10 amendments in [Lucas-2] and, if this is successful, that the remaining ones be treated as consequential. If it is unsuccessful, my intention will be to withdraw the amendments and not proceed with them.

The Hon. G.E. GAGO: The government will be opposing the amendments that apply to the right of recovery in sections 116 and 124A of the Motor Vehicles Act in relation to claims against the nominal defendant. These amendments remove the right of recovery by the nominal defendant (Motor Accident Commission) against a heavy vehicle driver who has committed a relevant offence against the Heavy Vehicle Driver Fatigue Scheme: the relevant officers are driving whilst fatigued or exceeding the allowable work for a driver or failing to have the required rest time for a driver.

There are a couple of issues that the member addressed, and I will deal with those when the relevant amendments come up, but in terms of the member saying that we are the first state to go down this path, indeed we are and really that is no reason that we would not continue in this way.

An honourable member interjecting:

The Hon. G.E. GAGO: Well, we might just set the pace, mightn't we? This chamber should be considering that particular matter based on the merits of the argument, that is, what is in our best interests (South Australian best interests), or not, rather than looking over our shoulder and to only proceed where others have been before us.

The Hon. M. PARNELL: I want to pose a question to the mover of the amendment, if that does not put him under too much difficulty. As members have said, we are struggling with the complexity of this. I want to explain it as I understand it, in simple terms, and then I will pose a question to the mover.

It seems to me that what we are looking at in this bill, and in this amendment in particular, are a range of behaviours where we are saying to people who do these things, 'You are so culpable that not only will you be subjected to a criminal penalty, but you won't be protected by third party insurance from having to personally pay if someone is hurt.' So, the question then is: what are the range of reprehensible behaviours that we want to put in that list? We are talking now about driver fatigue and we are talking about alcohol, for example.

My question is: is there any substantial difference between someone not getting the protection of insurance because they are drunk and someone not getting the protection of insurance because they are tired and breach the driver fatigue laws? Is what the Liberal amendment is proposing consistent with the way that this act and this bill will deal with, say, people who are drunk?

The Hon. R.I. LUCAS: I cannot help the member in relation to that. If the minister's adviser is in a position to answer that question that would be very useful. The only advice I have relates to what I have indicated, and that is that the particular offences that they would be exposed to are: driving while fatigued, exceeding allowable work time for a driver and failing to have the required rest time, which I think the member has described as, in essence, driving whilst tired offences. In relation to the issue of alcohol, or drugs for that matter, let us hope that the minister and the minister's adviser might be able to throw some legal advice before the committee on that particular issue.

The Hon. G.E. GAGO: I have been advised that indeed we do agree with your concerns that there is a double penalty, not just for drivers of heavy vehicles but also for most of the people who face a recovery because their conduct is such that it can amount to a criminal offence.

The Hon. M. PARNELL: I thank the minister for that answer. What I am trying to work out is: what is the range of offences that are so serious that we are prepared to impose a double penalty? Double penalty means there will be a criminal penalty because you are caught drink-driving or you are caught breaching the driver fatigue and, in some of these, you are also going to run the risk of having to personally pay for the cost of the injuries that you have caused.

Whilst the victim will be covered and get compensation out of the compulsory scheme, the scheme (as I understand the arrangement) will then be able to chase the guilty party. What I am trying to work out is whether a person causing an accident by drink-driving, compared with a person causing an accident by tired driving—are those levels of culpability equivalent so that a double penalty should apply in both circumstances? If I want to take it further, what about someone who is guilty of dangerous driving—driving on the wrong side of the road, for example, or some other form of dangerous driving? Do double penalties apply to those situations as well?

The Hon. R.I. LUCAS: It is good that we are tag-teaming here because it gave me time to seek learned advice from parliamentary counsel and MAC. I am advised that, should my amendment be successful, the capacity of MAC to recover against a drunk driver or a drug driver is unchanged. In relation to the Hon. Mr Parnell's amendment relating someone who is a driver, a truck driver, who is drunk or (although he did not raise this) under the influence of drugs, if my amendment is successful there will be no reduction in the capacity of MAC to recover against that driver. If my amendment is successful, it is only in relation to the heavy driver vehicle fatigue type offences that that is going to be changed. There is a difference in relation to the treatment of the heavy driver vehicle offences if my amendment gets up and a drunk driver or a drug-affected driver—so I am advised.

The Hon. G.E. GAGO: I am advised, in relation to the further clarification of your question, that a double penalty does apply to serious conduct, and examples are drink-driving and dangerous driving.

The Hon. M. PARNELL: I appreciate the answers I am getting. I guess the Hon. Rob Lucas's answer has confirmed what I thought was the case—that the effect of his amendment is to say that, whilst I am sure the member in no way condones tired driving (for want of a better word), the Liberal amendment does not see that as being as serious as drunk-driving and, therefore, it is not prepared to accept that those tired drivers should also face that double penalty of having to personally compensate for injuries; whereas a drunk driver they see is culpable enough to warrant a double penalty.

I see that as a double standard. We are looking at two serious sets of offences with very different consequences. After all that, my inclination on behalf of the Greens is that we do support the inclusion of driver fatigue offences into that list of various behaviours that can ultimately result in additional civil liability as well as criminal liability. That means we will not support the Liberal amendment.

The Hon. G.E. GAGO: Just to clarify it—and sorry that this is a bit laborious—the government does agree with the Hon. Mark Parnell that the Liberal amendment will, in fact, create a double standard.

The Hon. M. Parnell: Double standard or double jeopardy?

The Hon. G.E. GAGO: Not double jeopardy: a double standard, in terms of not addressing issues around fatigue.

The Hon. M. Parnell: The same as it would around drink driving?

The Hon. G.E. GAGO: Yes.

The Hon. A. BRESSINGTON: I indicate that I am not inclined to support that amendment either. I think we have seen ample carnage on the road from heavy vehicle drivers who are suffering from fatigue but believe that they can push for another mile. That has cost lives on the road, and I think this amendment would, as the minister said, create a double standard for what is culpable behaviour, so I am inclined not to support this.

The Hon. J.A. DARLEY: I will support the opposition's amendment.

The Hon. R.L. BROKENSHIRE: Family First will support the Liberal Party's amendment.

The Hon. K.L. VINCENT: I will support the amendment.

The Hon. M. PARNELL: I know that the numbers are now sorted, but I would like to make one other brief observation. As I understood the Hon. Rob Lucas' comments, the original intention was that the people behind the driver—for example, their employers, the ones who are pushing them with unrealistic schedules that result in them driving tired—are no longer to be subject to this double jeopardy. The Greens are disappointed that has been taken out, because we see those people as being as culpable as the actual driver; however, if that is no longer in the bill then it is no longer in the bill.

The Hon. R.I. Lucas: The government is going to take it out.

The Hon. M. PARNELL: I understand that both Liberal and Labor both agreed that should come out; I am just saying that the Greens are disappointed it has been taken out. We think the people behind the drivers are as culpable, and facing potential civil liability for serious injury and death would be a great reminder to them about why they should not push their drivers so hard. It is not just about the criminal penalties; civil liability can be a timely reminder as well.

The committee divided on the amendment:

AYES (11)
Brokenshire, R.L. Darley, J.A. Dawkins, J.S.L.
Hood, D.G.E. Lee, J.S. Lensink, J.M.A.
Lucas, R.I. (teller) Ridgway, D.W. Stephens, T.J.
Vincent, K.L. Wade, S.G.
NOES (9)
Bressington, A. Franks, T.A. Gago, G.E. (teller)
Gazzola, J.M. Holloway, P. Hunter, I.K.
Parnell, M. Wortley, R.P. Zollo, C.

Majority of 2 for the ayes.

Amendment thus carried.

The Hon. J.A. DARLEY: I move:

Page 3, lines 23 and 24 [clause 4(5)]—Delete subclause (5)

Section 99(3) of the Motor Vehicles Act provides that, for the purposes of part 4 and schedule 4 of that act:

...death or bodily injury will be regarded as being caused by or as arising out of the use of a motor vehicle only if it is a consequence of—

(a) the driving of the vehicle; or

(b) the vehicle running out of control; or

(c) a person travelling on a road colliding with the vehicle when the vehicle is stationary, or action taken to avoid such a collision.

The government bill amends this section by inserting the word 'direct' before 'consequence'. It provides that 'death or bodily injury' be regarded as being caused by or arising out of the use of a motor vehicle only where it is a direct consequence of one of the actions mentioned. Members would no doubt be aware that the Australian Lawyers Alliance has serious concerns over this particular government amendment.

My amendment seeks to address these concerns by deleting the word 'direct'. The government's proposed amendment has the potential of narrowing the ambit of areas of liability and thereby denying individuals the right to claim compensation. There is also some concern that courts could endeavour to give the insertion of the word 'direct' some purpose which will again unnecessarily alter the operation of the relevant section.

The ALA in particular is concerned that the Motor Accident Commission is attempting to divest itself of its responsibility by narrowing the scope of liability. To suggest that the government amendment is necessary on the basis that individuals may receive compensation through the CTP scheme where it is not justified is not only unconvincing but also unacceptable. It is for these reasons that the ALA is vehemently opposed to the government's proposal.

The government has referred to some examples that it says ought to be dealt with either through alternative schemes such as the WorkCover scheme or through public liability schemes. WorkCover examples are, I think, easier to establish than public liability claims, which I am advised are subject to many exclusions. Simply shifting the responsibility from one scheme to another is not desirable. Ultimately it should be left to the courts to determine what constitutes the use of a motor vehicle. I urge all honourable members to support this amendment.

The ACTING CHAIR (Hon. R.P. Wortley): Thank you, Mr Darley. We do actually have an amendment before yours, from the minister, so we will look at that one first. Then there is one from the Hon. Mr Lucas, which is consequential. Then we will get back to yours.

The Hon. G.E. GAGO: I move:

Page 3, lines 9 to 13 [clause 4(2)]—Delete subclause (2)

This amendment relates to section 99(1), the definition section of part 4 of the Motor Vehicles Act, which deals with third party insurance. The amendment deletes the definition of parties in the chain of responsibility contained in section 99(1) of the act. The original bill created a right of recovery against parties in the chain of responsibility, where the driver of a regulated heavy vehicle had committed a relevant offence under a heavy vehicle driver fatigue scheme which resulted in a CTP liability. These rights of recovery as contained in sections 116(7ac) to (7ae) and sections 124A(4) to (6) of the original bill are to be deleted. Therefore, this definition is no longer required in section 99(1).

The Hon. R.I. LUCAS: I indicate, as I flagged earlier in the debate, that the Liberal Party is supporting this amendment.

The Hon. M. PARNELL: For the reasons I gave earlier, we do not support it, but we can see that it clearly has majority support.

Amendment carried.

The Hon. R.I. LUCAS: I move:

Page 3, lines 14 to 20 [clause 4(3)]—Delete subclause (3)

This amendment is consequential.

Amendment carried.

The ACTING CHAIR: Back to the Hon. Mr Darley's amendment No. 1, clause 4, page 5, lines 23 and 24.

The Hon. G.E. GAGO: The amendment deletes the word 'direct' from the definition in subsection 3A of 'caused by or arising out of the use of a motor vehicle'. The amendment is sought on the advice of the Australian Lawyers Alliance (ALA) that the use of the word 'direct' will limit the circumstances in which the MAC will indemnify someone under the policy of insurance.

The use of the word 'direct' is proposed to strengthen the concept of consequence in the definition of 'caused by or arising out of the use of a motor vehicle'. It is MAC's position that the CTP fund should only meet those claims that properly fall within the definition of section 99(3), rather than indemnify for a range of claims that may involve a vehicle but do not fall within the policy. It is considered that there have been a number of cases where the courts in South Australia have adopted a more expansive interpretation of the definition than was intended, and the use of the word 'direct' will assist MAC in ensuring that the CTP fund meets only those claims it was intended to.

The Hon. M. PARNELL: I can understand why courts often interpret legislation in a way to maximise the likelihood of someone getting at least some compensation where they are clearly not at fault themselves and there is no other way to do it. I can understand that, when there is a bucket of money available, judges will interpret the law as liberally as they can. I understand that by adding the word 'direct' it would actually limit the scope of circumstances where a person might be able to claim.

It is difficult to imagine the whole range of circumstances. If a motor vehicle hits a Stobie pole and a part of that motor vehicle flew off and hit a pedestrian walking down the footpath, clearly that is a direct result of the accident. If the bumper bar flew off the car as it hit the Stobie pole and landed on the footpath, and someone 10 minutes later, one hour later, the next morning, walking down the footpath tripped over the bumper bar and injured themselves, is it directly related? You can envisage a range of circumstances where, but for the accident, this person would not have been hurt.

We want to ensure that people have the capacity to obtain compensation. In the absence of a universal accident compensation scheme—we do not have such a scheme in this country—we often have to rely on the compulsory schemes. There is a compulsory scheme if you are hurt at work and a compulsory scheme in relation to the road, but there is not in relation to a whole range of other situations where people can be hurt. In those circumstances, the Greens will support the Hon. John Darley's amendment. We think that removing the word 'direct' will keep the ability for the courts to widely interpret those situations where a person who is injured is deserving of compensation under a motor accident compensation scheme.

The Hon. R.I. LUCAS: The opposition does not often disagree with the Hon. Mr Darley's amendments, but on this occasion we do. The opposition puts the viewpoint that ultimately the costs of the compulsory third-party insurance scheme are visited upon all of us. The Hon. Mr Parnell, with his legal background, has given us an indication as to how courts interpret anything that is a loophole or a slight flexibility in the drafting and will interpret, as he says, in the most liberal way to ensure that people get access to the bucket of funds. The corollary of that legal behaviour by judges, courts and systems is that the rest of us inevitably have to continue to pay higher and higher costs to meet those provisions.

It is a perfectly acceptable view to say, 'Well, so be it: in the interests of providing that compensation, wherever it comes from, the bulk of rest of us should pay for it and be happy about paying for it.' However, cost of living issues will be important issues I believe at the moment and over the coming years, as inevitably—with water, electricity, carbon taxes, flood levies and a variety of other things—people will increasingly find that they are being financially squeezed by governments, government actions and parliaments. This is just another way.

If we continue to add into the scheme increased flexibilities and increased access—and, to be fair, I do not believe that some of the examples that have been raised by the Law Society, the Australian Lawyers Alliance and others were ever originally intended to be covered by a driver motor vehicle accident insurance scheme. In essence, that was the original intention. The drafting may have opened up the possibilities over the years, but that was certainly the intention of the scheme in terms of who would be insured from car accidents or motor vehicle accidents. Some of the examples are narrowly related, if I can use a non-legal term, to driving a motor vehicle because in essence the motor vehicle is stationary. If in these cases there is access to the funds available under this particular scheme, then, as I said, it just increases the costs for the rest of us. For those reasons, and I am sure others as well, the Liberal Party is not prepared to support the amendment.

The Hon. R.L. BROKENSHIRE: I advise the committee that, as the Hon. Rob Lucas said, on many occasions we enjoy supporting an amendment of the Hon. John Darley, but on this occasion I was going to say something very similar to the Hon. Rob Lucas on costs of living and consequences having further impact on MAC. You only have to have a look right now at a basic motor vehicle, not a luxury Mercedes or anything but a basic motor vehicle, and how expensive it is. A Toyota Aurion you get on the road for 600 and something dollars.

I know what the Australian Lawyers Alliance is about but, on the other side of it, there are other unintended consequences that would occur, and I thought this was primarily focused on vehicle accidents that were on public roads like the Hon. Mark Parnell's example of hitting a stobie pole. My understanding here is that it opens up an opportunity for someone who drives into an industrial site where they may even enter at their own risk, someone is unloading a vehicle off of a truck, they hit that, something happens and then they have an opportunity to claim through MAC, whereas they really should be claiming through public liability or some other civil claim. So, we will be supporting the government.

Amendment negatived.

The Hon. R.I. LUCAS: I move:

Page 3, lines 25 to 33 [clause 4(6)]—Delete subclause (6)

In doing so, it is partially related to the discussion of the one that we have just dealt with. We have had a long debate about this issue. Mainly, the member for Davenport has had a long debate about this issue with the respective interested stakeholders and parties and also with our own party room, in particular the views of the Motor Trade Association.

The view on balance from the party was that we were prepared to accept the argument that ultimately let's leave whatever it is that we finally draft here to the judgement of the courts. It was felt—and it was the member for Davenport's view and that of the Motor Trade Association—that the more you seek to indicate examples of what might or might not be included, that may or may not in the end be accurate.

The lawyer in the chamber can perhaps argue the legal significance of examples in bills. Non-lawyers like us are told that the examples are not meant to count for much, they are only meant to be examples, but then others say to us that they give some indication to the courts of the way the parliament was thinking at the time when it passed the particular bill.

So, as I have said, we, on balance, have accepted the view of the Motor Trade Association, and others, who have put to us the view that the safest and most sensible course would be to simply remove the examples from the legislation.

The Hon. R.L. BROKENSHIRE: We will be supporting the Hon. Rob Lucas's amendment.

The Hon. M. PARNELL: This is a difficult one. I do not propose to provide a comprehensive legal answer to the Hon. Rob Lucas's question because it involves an explanation of the ejusdem generis rule about when you list things in legislation how that colours the general definition.

It seems that the situations that are described in these examples, you would hope in most situations, would result in an injured person being able to recover compensation through a scheme other than the motor accident scheme. As to the example that is given about someone who is injured because of a displacement of goods, generally those people at risk of being hurt from boxes falling off the back of trucks are probably workers and they are probably covered by a scheme of workers compensation insurance.

Similarly, for those people who are in motor vehicle display premises or workshops, chances are that if a vehicle slides off the ramp, unintentionally, and injures someone, in most cases they are likely to be a worker and covered by workers compensation. In the showroom example, it could be an intending purchaser: the handbrake goes off, the car rolls and crushes them against a wall. The question then is: where would they look to for compensation?

Chances are that most businesses, but not all, would have public liability insurance. I do not know what proportion of businesses do or do not. My assumption would be that in rental premises it would nearly always be a condition of a commercial lease that you have some sort of public liability insurance. If you own your own premises chances are that you have a fire policy or some other policy, and often they are packaged with public liability as well.

So, I would imagine that in these circumstances there is the possibility for people to be covered by some other scheme. The question then is: if they are going to be compensated anyway and we do not need to compensate them under the motor accident scheme, that is the justification for putting the examples in here.

On balance, and we have found this a difficult one, the Greens do not see the inclusion of these examples as causing any great potential for injustice in terms of injured persons. We think that most of them will still be able to be compensated one way or another, so therefore we are prepared to see them remain in the legislation and that means that we are opposing the Liberal motion to remove them.

The Hon. J.A. DARLEY: I will be supporting the opposition's amendment.

The Hon. G.E. GAGO: The government will be supporting this amendment.

Amendment carried; clause as amended passed.

Clause 5.

The Hon. R.I. LUCAS: I move:

Page 4, lines 3 and 4 [clause 5(1)]—

Delete subclause (1)

As outlined in the general discussion we had on clause 1 in the committee, this is the first in a number of amendments that relate to the blood alcohol content issue, and it will be sensible to treat this one, as I understand it, as a test for two or three others of my amendments which are consequential to this. This is, as outlined in the discussion on clause 1, where we indicate clearly the Liberal Party's position, based on exhaustive and recent consultation with the Motor Accident Commission, the Law Society Committee, the ALA and one or two other interested parties. The member for Davenport has outlined to me that the Liberal Party's position this afternoon is a different one to the one put by the party in the House of Assembly and outlined by me on Tuesday. So, for those 32 avid readers of the Hansard, if they see some inconsistency in the amendments I am moving this afternoon with what I said 48 hours ago and what the member for Davenport said some couple of weeks ago, those 32 readers of Hansard are entirely accurate: this is a new position.

The minister, based on her advice, may well be in a better position than me to give some definitive legal advice. I am not sure, but I will leave that to her. In broad terms, as outlined by the member for Davenport and myself, the Liberal Party position originally had been that we were going to support the reduction from 0.15 to 0.1 so long as we could introduce what was described to me as a cause and effect amendment. The example that had been given to us to use was of a person who had a blood alcohol content above the limit but who was, nevertheless, sitting quietly in a parked car and not endeavouring to drive. That is, as one of my colleagues described to me, the drunk sleeping behind the wheel but not driving anywhere else.

If that particular person was to be crashed into by somebody else then the provisions of the legislation were going to apply, we argued, to that particular circumstance. The argument that the Liberal Party had accepted was that we believed it was unfair and there should be a cause and effect. If you were, in essence, drunk and then you drove then you were partially or wholly responsible for an accident then you should be in some way held responsible and further penalised. However, if you were just sitting there drunk behind the wheel and having a sleep, then it did not seem fair.

As a result of discussions over the last 24 hours, the member for Davenport has outlined to me that the advice from the Motor Accident Commission is that, in essence, what we had put was not accurate. It is far too complicated for me to be able to repeat, so I will leave that to the minister and her adviser, but the bottom line was that, in practice, the Motor Accident Commission was advising that, in the sort of circumstances that we were talking about of a person sitting in a car, they were in a position to be protected; I guess that is the layperson's term.

That is, the provisions of the legislation would not come down on them in terms of an onerous additional penalty in those circumstances. The courts and the practices of the Motor Accident Commission were such that the person sitting behind the wheel would not be penalised and had not been penalised in the way that we had outlined that they were likely to be.

For that reason, and a range of others—the difficulty of trying to draft a complicated amendment to cover this cause and effect provision—the view of the member for Davenport and the Liberal Party is that essentially it became too complicated and complex to resolve the sorts of issues being raised. So the Liberal Party's position has changed, and it will support the status quo, that is, the blood alcohol content of 0.15 as opposed to 0.1. In itself, that is a challenging issue for us as members, as well as for others, because the view would be that the lower it is the better it would be in terms of road safety issues. However, I guess the issue we are talking about here is the size and extent of the penalty.

Clearly, there are existing significant penalties for someone caught with a blood alcohol content of 0.1 or 0.15. Let us look at the example of a young person who makes his or her first mistake behind the wheel. They are just above 0.1, and they are involved in an accident which is expensive but which, in the end, might not cause death. One can imagine any number of circumstances where a young person of 19 or 20 for the first time makes a mistake and drinks a little too much. They are at a stage where they are not blind drunk but are at 0.1—certainly not as blind drunk as they would be if they were at 0.15, my colleagues advise me. Nevertheless, they make that mistake and they are involved in an accident.

Essentially, the issue really is: how big a penalty do we impose on that young person that may or may not impact on them for the rest of their life? Clearly, their actions might impact on others, and I accept that issue as well, but there are also significant penalties in relation to being caught with a blood alcohol content of above 0.1 or 0.15. In part because of that, our view is that to impose that significant and potentially crippling additional financial penalty on a young person who has made his or her first mistake behind the wheel is too big a penalty to impose on that person in those circumstances.

That does not in any way condone the behaviour of the young person behind the wheel, but the existing penalties are already significant and indicate that the parliament disapproves of the young person hopping behind the wheel with a blood alcohol content above that level. However, the issue is whether we think we should add to that penalty in a significant way. On balance, the Liberal Party's position is that we believe we should stick with the status quo. If we are going to impose a significant additional penalty, the appropriate cut-off point for that is the one we have had, that is, 0.15. As I said, I rely on the advice of some of my colleagues who are more versed in these issues and who tell me that if you are 0.15 you are certainly much closer to being blind drunk than you are at 0.1.

The Hon. T.J. Stephens interjecting:

The Hon. R.I. LUCAS: Impaired, one of my colleagues says; some might say blind drunk. Wherever you are on the continuum, clearly 0.15 is the existing level. It is significantly higher than the 0.1 level, so we are looking at a significant change if the government's proposal is introduced and would be opening up a lot of young people who might make their first mistake to potentially crippling financial circumstances. It is a judgement call for members as to whether or not they believe that is appropriate. In our view, we will support the status quo, which is at 0.15.

The Hon. G.E. GAGO: On behalf of the government, I rise to oppose this amendment. The amendment deletes the reduction in BAC level for the recovery of the nominal defendant from 0.15 to 0.1 per cent. Pursuant to section 116 of the act, the nominal defendant has some rights to recover against an uninsured driver, including where their blood alcohol content level is greater than 0.15 per cent. So, that is the status quo. This bill is seeking to drop that down to 0.1 per cent, a lower level.

The original bill amended this provision to reduce the blood alcohol content, or the back BAC level, for such recoveries to 0.1 per cent. We think that 0.1 per cent is a fair, reasonable and responsible level to be setting it at. A level of 0.1 per cent is two times the legal limit, and I understand that a person is four times more likely to be involved in an accident when they are 0.1 or more per cent, so I think the Hon. Robert Lucas's comments are outrageous.

It is obvious, too, that the Liberal Party are at complete odds with this. They are all over the shop. They have no idea where they really want to set this level. We have a media release from the shadow opposition treasurer, Iain Evans, dated 13 June 2010, and it is headed 'Drunk drivers will have to pay'. In that media release, he slams the proposal to drop the limit, claiming that dropping it to 0.1 per cent did not go far enough; he wanted it lower than that.

So, we now have the opposition spokesperson at odds with the comments of the Hon. Robert Lucas. They clearly do not have a policy position. They are all over the shop. They do not know what level to set it at. As I said, we believe that 0.1 per cent is a fair, reasonable and responsible level to set it at, and that is where that BAC level should be retained.

The Hon. M. PARNELL: I actually do not share in the minister's criticism of the opposition for flip-flopping, if that is the word, provided they have had a thorough debate. So, I have no criticism of the change of position. What I am interested in is getting the best outcome out of this legislation. I just want to reflect on the example that the Hon. Rob Lucas made, which is of a young person who, under his scenario, is just under three times the legal limit and they cause a serious accident.

They therefore may be personally responsible for the injuries and the death they have caused and how that might destroy their life. Well, yes, but it is only money. The person who is injured or maimed or been killed—money is not going to properly compensate them. The other young person: they might go bankrupt; they will get on with their life, and they will be fine. The person injured, not so. So, I do not share in supporting that example.

What we are looking at, I guess, is similar to other clauses in this bill. What level of behaviour is so serious that we want both civil and criminal consequences to apply? The government says that, if you are twice the legal limit, you will be personally liable for the damages. The opposition says that you have to be three times the legal limit in order to be personally responsible for the losses. The Greens' position on this bill is that we think the reduction in the threshold to 0.1 makes sense. It is yet another disincentive to people to drink and drive. Not only will you be subject to serious criminal penalties, but at the end of the day you may well be held personally accountable for the mayhem, the maiming, the injuries and the deaths that you cause. That is not a bad thing.

I know that some people will say that this is all about preserving the pool of money in the Motor Accident Commission and making sure that other people are made to share some of the cost. I am not worried so much about the revenue side of it or about preserving the fund. I think that people should be responsible for their behaviour and that when you get behind the wheel of a motor vehicle and you cause death or injury, and you do it in a way that you have shown disregard for our traffic laws—in this case, in relation to blood alcohol level—you may potentially be up for all the consequences of your action. It is one of the things we teach our children from a very young age: consequences.

This is in some ways the ultimate consequence. If some young people get drunk and injure and maim people and then find themselves in the bankruptcy courts at the age of 23, bad luck. At the end of the day, I think people need to be responsible, so I do not support keeping the blood alcohol level at three times the legal limit, and the Greens will be supporting the government on this.

The Hon. R.I. LUCAS: I do not think the minister needs to go back to June. I indicated in my contributions that the Liberal Party has changed its position in the last 48 hours, so I do not really think she needs to go back to June 2010 to find a conflicting statement. I indicated to the committee that the Liberal Party's position on this had changed in the last 48 hours. The only other point, with the greatest respect to the minister, is in relation to her endeavours to indicate that there is a difference of view between myself and the member for Davenport. If she had listened, she would have indicated the member for Davenport has handled the carriage of this bill and advised the Liberal Party's position.

I have not seen the June 2010, but she may well have a view that the member for Davenport has changed his position from June 2010 to this week. That may or may not be so, but it is certainly not the case that there is a difference of view between the member for Davenport and myself. I am here but as a humble servant for my party, putting the party's position, which has been negotiated by the member for Davenport. The minister might like to impose, inflict, insert an element of partisan politics, but I am not going to take the bite.

The committee divided on the amendment:

AYES (9)
Darley, J.A. Dawkins, J.S.L. Lee, J.S.
Lensink, J.M.A. Lucas, R.I. (teller) Ridgway, D.W.
Stephens, T.J. Vincent, K.L. Wade, S.G.
NOES (11)
Bressington, A. Brokenshire, R.L. Franks, T.A.
Gago, G.E. (teller) Gazzola, J.M. Holloway, P.
Hood, D.G.E. Hunter, I.K. Parnell, M.
Wortley, R.P. Zollo, C.

Majority of 2 for the noes.

Amendment thus negatived.

The Hon. R.I. LUCAS: I move:

Page 4—

Lines 16 to 18 [clause 5(2), inserted subsection (7aa)(c)(ii)]—Delete subparagraph (ii)

Lines 29 and 30 [clause 5(3), inserted paragraph (c)(ii)]-Delete subparagraph (ii)

Lines 38 and 39 [clause 5(5), inserted subsection (7ab)(b)]-Delete paragraph (b)

These three amendments are consequential.

Amendments carried.

The Hon. G.E. GAGO: I move:

Page 5, lines 1 to 31 [clause 5(5), inserted subsections (7ac) to (7ae)]—Delete inserted subsections (7ac) to (7ae) (inclusive)

This amendment relates to section 116 of the Motor Vehicles Act, which deals with claims against nominal defendant where a vehicle is uninsured. The original bill proposed the inclusion of an additional right of recovery by the MAC against all parties in the chain of responsibility where a relevant offence had been committed by the driver of a regulated heavy vehicle pursuant to the heavy vehicle driver fatigue scheme by inserting sections 16(7ac) to (7ae). Following extensive consultation and debate in committee in the lower house it is now proposed that this amendment be deleted from the bill. Therefore sections 16(7ac) to (7ae) (inclusive) are to be deleted.

The Hon. R.I. LUCAS: The Liberal Party supports the amendment.

Amendment carried.

The Hon. R.I. LUCAS: I move:

Page 5, lines 36 and 37 [clause 5(6), inserted paragraph (d)]—Delete paragraph (d)

Amendment carried; clause as amended passed.

Clause 6 passed.

Clause 7.

The Hon. G.E. GAGO: I move:

Page 6, after line 20—

After subclause (1) insert;

(1a) Section 124(3)—after paragraph (b) insert:

or

(c) if the defendant has not given notice of a particular detail as required by subsection (1)—that the defendant, having made reasonable inquiries, complied with the requirements of subsection (1) to the best of the defendant's knowledge, information and belief.

This amendment relates to section 124 of the act, which requires the cooperation of a person where a motor vehicle accident has resulted in a death or bodily injury. The original bill inserts section 124(1)(c) which requires a person to inform MAC who the driver of the vehicle was. Consultation with industry groups, particularly the Law Society and the ALA, raised issues with there being no defence to section 124(1) if the owner did not know who the driver was. As a result, further amendments are proposed to insert a defence in section 124(3) where the defendant has made reasonable inquiries and complied with the obligation to provide written notice to the insurer to the best of their knowledge, information and belief.

The Hon. R.I. LUCAS: The member for Davenport has advised me that the party's position is that we will support the government's amendment in that the Liberal Party accepts that that is some marginal improvement on the clause as it is drafted. The advice from the stakeholders consulted by the member for Davenport indicates very strong opposition nevertheless to even the amended clause 7. So we will support the amendment, but I indicate that the Liberal Party will be voting against clause 7.

Amendment carried.

The committee divided on the clause as amended:

AYES (11)
Brokenshire, R.L. Franks, T.A. Gago, G.E. (teller)
Gazzola, J.M. Holloway, P. Hood, D.G.E.
Hunter, I.K. Parnell, M. Vincent, K.L.
Wortley, R.P. Zollo, C.
NOES (9)
Bressington, A. Darley, J.A. Dawkins, J.S.L.
Lee, J.S. Lensink, J.M.A. Lucas, R.I. (teller)
Ridgway, D.W. Stephens, T.J. Wade, S.G.

Majority of 2 for the ayes.

Clause as amended thus passed.

Clause 8 passed.

Clause 9.

The Hon. R.I. LUCAS: I move:

Page 7, lines 36 and 37 [clause 9(2), inserted paragraph (c)(ii)]—Delete subparagraph (ii)

The amendment is consequential and it was successful earlier.

Amendment carried.

The Hon. R.I. LUCAS: I move:

Page 8—

Lines 8 and 9 [clause 9(5), inserted paragraph (aa)(ii)]—Delete subparagraph (ii)

Lines 17 and 18 [clause 9(7), inserted subsection (2b)(b)]—Delete paragraph (b)

The amendments are consequential.

Amendments carried.

The Hon. G.E. GAGO: I move:

Page 8, lines 21 to 40 and page 9, lines 1 to 13 [clause 9(8), inserted subsections (4) to (6)]—

Delete inserted subsections (4) to (6) (inclusive)

I am advised that the amendment is consequential.

Amendment carried; clause as amended passed.

Clauses 10 and 11 passed.

Clause 12.

The Hon. G.E. GAGO: I move:

Page 10, lines 33 to 35 [clause 12, inserted section 127AB(3)]—Delete subsection (3)

This amendment relates to section 127AB of the original bill. The original bill inserted section 127AB, which requires a claimant to provide sufficient information, including specified documents to the insurer, to allow the early assessment of liability and then an offer of settlement to be made. Penalties are imposed if the claimant fails to comply with a reasonable request by the insurer. The ALA and the Law Society have strenuously objected to the requirements imposed by this provision. The opposition has indicated that it wants this provision removed in its entirety or it will not support the bill.

The Hon. R.I. LUCAS: Could I clarify? I thought the government was not proceeding with amendment Nos 5 and 6 and it had replaced them with the new amendment minister (2). Am I ill-advised?

The CHAIR: I have them here in front of me, but I do not know whether they are proceeding with them or not.

The Hon. R.I. LUCAS: You have called on amendment No. 5 from the original amendments. The minister has moved it and spoken to it. It is not for me to advise the government but my understanding is that last night the government had changed its position and was not proceeding with amendment Nos 5 and 6 and had replaced them with this big long amendment in Minister for Regional Development (2), as opposed to Minister for Industrial Relations (1). That is not what you have moved; you have moved amendment No. 5 in the original—

The CHAIR: Do you want to withdraw No. 5?

The Hon. G.E. GAGO: Thank you for that. The honourable member is quite right. What I had meant to do was withdraw amendment Nos 5 and 6. That then is to be replaced with the amendment that I have just moved.

The CHAIR: Does the minister seek leave to withdraw amendment No. 5?

The Hon. G.E. GAGO: I seek leave to withdraw amendment No. 5 standing in my name.

Leave granted; amendment withdrawn.

The CHAIR: I think you need to formally move the amendment.

The Hon. G.E. GAGO: I move:

Page 10, lines 18 to 40 and page 11 lines 1 to 7 [clause 12, inserted section 127AB]—

Delete inserted section 127AB and substitute:

127AB—Certain requirements in respect of claims

(1) A person claiming damages or other compensation in respect of death or bodily injury caused by or arising out of the use of a motor vehicle must cooperate fully in respect of his or her claim with the insurer for the purpose of giving the insurer sufficient information—

(a) to be satisfied as to the validity of the claim and, in particular, to assess whether the claim or any part of the claim may be fraudulent; and

(b) to be able to make an early and informed assessment of liability; and

(c) to be able to make an informed offer of settlement (if appropriate).

(2) In particular, the claimant must comply with any reasonable request by the insurer to furnish information or to produce specified documents or records.

(3) The reasonableness of a request may be assessed having regard to criteria including the following:

(a) the amount of time the claimant needs to comply with the request;

(b) whether the information sought is relevant to a determination of liability or quantum of loss, having regard to the nature of the claim;

(c) the amount of information which has already been supplied to or is available to an insurer to enable liability and quantum of loss to be assessed and an offer of settlement made;

(d) how onerous it will be for the claimant to comply with the request;

(e) whether the information sought is sufficiently specified;

(f) the time of the request and whether the claimant will be delayed in commencing proceedings by complying with the request.

(4) If a claimant fails, without reasonable excuse, to comply with this section—

(a) the claimant is not entitled, until he or she complies with this section, to commence proceedings or to continue proceedings that have been commenced in respect of the injury or death; and

(b) the claimant is not entitled to damages, compensation, interest or costs for any period during which the failure continues.

(5) Nothing in this section requires a person to produce a document or record that would disclose information, or otherwise provide information, that is the subject of legal professional privilege.

(6) This section does not apply to a claimant in respect of a claim made in connection with a cause of action that arose before the commencement of this section.

The Hon. R.I. LUCAS: Sorely tempted as I am, I will not engage in partisan politics during the committee stages about the minister's performance in handling the bill in the committee; I will leave that for later on. The minister, in outlining the Liberal Party's position earlier, has not unfairly reflected the Liberal Party's position; that is, the Law Society committee, which has looked at this particular provision, and the Australian Lawyers Alliance in particular, are trenchantly opposed to the provisions of the bill and, I am advised by the member for Davenport, remain so even with this lengthy new and late amendment from the government last evening.

During the second reading, I took the opportunity to read at length the Law Society committee's explanation of the reasons it saw problems with the government bill and its drafting. To give the committee credit, it also outlined an alternative course modelled on the Queensland experience (the Personal Injuries Proceedings Act 2002, in particular) and other advice in terms of what might be seen to be a more plausible and reasonable alternative to that being suggested by the government in its bill. I do not propose to repeat the advice of the Law Society committee during the committee stage, but I draw the attention of those 32 avid readers of Hansard to the reasons why ultimately we will be voting against this clause.

The Liberal Party's position is that this is a marginal improvement on the original drafting, but the position remains from the Law Society and others that this clause (clause 12 in its totality) even amended if left in there will potentially cause confusion and that it is overly cumbersome, so they have argued, and that is the position the Liberal Party has accepted. I would have thought even more so when one looks at the complex and complicated nature of the amendment that has been moved by the government this afternoon to this provision. We will support the amendment, but I advise the committee that we will be opposing clause 12 in the bill.

The Hon. M. PARNELL: I would just like to make an observation in relation to the position that the Hon. Rob Lucas just put. It seems to me that the minister's revised new section 271AB is effectively the entirety of amendment No. 12, so I would have thought that if the Hon. Rob Lucas supports the amendment he effectively supports the new clause. I am just not quite sure, procedurally, how that works, but he can work that out.

We have had this amendment from the government for a only very short time. Can the honourable member clarify that he has had communication from the Law Society and the Australian Lawyers Alliance that they continue to be unhappy with even this revised draft? I do not have any of that correspondence to hand.

The Hon. R.I. LUCAS: The Hon. Mr Parnell is correct; the Liberal Party's position is that it will oppose clause 12 and the government's amendment. That will clarify the understandable confusion for the Hon. Mr Parnell, and I apologise for the earlier misstatement of our position on this amendment. Yes; we oppose the clause in its totality and we also oppose this particular amendment. The Liberal Party was going to support the original amendments of the minister, which she has now withdrawn.

In relation to the member's question, I have not had contact, but the member for Davenport, who has been handling the negotiations, has advised me that he has had contact with representatives of the ALA and the Law Society committee or subcommittee that has been handling this. By that, and given the lateness of the hour, it would have been the nominated representative of the Law Society subcommittee who has been handling it (whose name has been mentioned to me, but it escapes me at the moment) and the nominated representative from the ALA who has been handling all the negotiations. Yes; they remain opposed to clause 12, even if amended.

The Hon. R.L. BROKENSHIRE: I have a question for the minister. At this point Family First is inclined to support the government—and we do it regularly—but can the minister put on the public record what the intent of MAC and SAPOL would be with respect to disclosure from their side of the equation?

The Hon. G.E. GAGO: Can I seek clarification? You want SAPOL's view on—

The Hon. R.L. BROKENSHIRE: With respect to the evidence around reports and things like that at an accident, do MAC and SAPOL have a policy position on how difficult it is to get the defending lawyer or the client information regarding reporting and processes around MAC and SAPOL, without them having to go through the courts or the lawyers to subpoena them? What is the situation there?

The Hon. G.E. GAGO: I have been advised that MAC and SAPOL have an agreement that MAC is not able to release police reports provided by SAPOL to the claimant or the solicitors until court proceedings are issued, and this in order to protect the integrity of the police investigation and also things like witness safety. I am informed that the claimant always has the right to access SAPOL reports through FOI.

The Hon. M. PARNELL: The Greens' position in relation to this amendment and to clause 12 of the bill is that we will be opposing them both. One of the reasons for that—and I expressed earlier than we have not had the firsthand communication from key stakeholders—is that, if we oppose these now and it turns out that the Hon. Rob Lucas' information was incorrect, it can come back between the houses; we can fix it up.

Along with other members, I have the earlier correspondence. Certainly, the Australian Lawyers Alliance was vehemently opposed to this clause, and the Law Society had serious concerns about the justice elements of the disclosure requirements. So, whilst I appreciate that the government has made some attempt to make the clause fairer and to fix it up, if there is still serious opposition out there the Greens will be opposing it at this stage and, if it turns out that we were misinformed, we can revisit it later on.

The Hon. A. BRESSINGTON: I will also be opposing the amendment and the clause as well.

The ACTING CHAIR (Hon. R.P. WORTLEY): We will not be voting right this minute. The Hon. Mr Lucas is on the phone with colleagues.

The Hon. R.L. BROKENSHIRE: While we are waiting for the Hon. Robert Lucas, because the chamber is happy to hold proceedings for such a learned and experienced MP, can I ask the minister: why would it not be possible to mask a report from a witness so that there were no fear of what the minister just mentioned regarding someone going around and intimidating or threatening? It would at least give the claimant's lawyer some opportunity of being able to start assessing where possible litigation, etc. may be.

The minister said that you could FOI from SAPOL. My understanding is that SAPOL will use the refusal excuse that they are in the middle of a proceeding and therefore it is not in their interest to disclose any of that information. However, if it was at least masked, that would then mean that the lawyer defending would not have to issue subpoenas and incur all those sorts of costs. They would not know the name of the witness who had given the statement, but it would at least help them to start to prepare their case, and there would still be a situation where you are getting the material you need for MAC and the other side of the debate.

The Hon. G.E. GAGO: I want to put this issue to rest. I have been advised that MAC is not able to tamper with or make any changes or alterations to the documents it receives from SAPOL.

The Hon. R.I. LUCAS: I thank the committee. I have taken urgent advice from the member for Davenport in relation to the party's position, and I have also taken the opportunity to consult informally with the minor parties and Independents. It would appear that it is going to be largely academic in relation to the government's amendment and that there is majority support in the chamber, on my quick discussion, that clause 12 will be opposed. I guess we could end up having two divisions. For whatever it is worth, that is my understanding of the position. So, on that basis, I repeat our position that, on the understanding that we are going to vote against it and that clause 12 ultimately will be defeated, we will oppose the government amendment and oppose clause 12 as well.

Amendment negatived.

The Hon. R.I. LUCAS: I understand the government is supporting this, so I will not speak at length. I move:

Page 11, after line 7 [clause 12, inserted section 127AB]—After subsection (5) insert:

(6) This section does not apply to a claimant in respect of a claim made in connection with a cause of action that arose before the commencement of this section.

This amendment specifically deals with the issue of retrospectivity. It was going to be a debating point, obviously, if clause 12 was going to stay in the bill but, as I said, on my understanding clause 12 is going to go out. Nevertheless, for form I will move it. It locks up the issue of retrospectivity. The minister has just quietly indicated the government was going to support it, so I will move the amendment. We will put it in there, but the whole clause is potentially going to be removed anyway.

Amendment carried.

The committee divided on the clause as amended:

AYES (6)
Gago, G.E. (teller) Gazzola, J.M. Holloway, P.
Hunter, I.K. Wortley, R.P. Zollo, C.
NOES (14)
Bressington, A. Brokenshire, R.L. Darley, J.A.
Dawkins, J.S.L. Franks, T.A. Hood, D.G.E.
Lee, J.S. Lensink, J.M.A. Lucas, R.I. (teller)
Parnell, M. Ridgway, D.W. Stephens, T.J.
Vincent, K.L. Wade, S.G.

Majority of 8 for the noes.

Clause as amended thus negatived.

Clause 13.

The Hon. R.I. LUCAS: My amendment No. 5 [Lucas-3] is consequential and I withdraw it. However, I move:

Page 11, lines 18 and 19 [clause 13(3), inserted paragraph (h)]—Delete paragraph (h)

This amendment is consequential.

The Hon. G.E. GAGO: I am happy with that.

Amendment carried; clause as amended passed.

Schedule 1.

The Hon. G.E. GAGO: I move:

Page 11, lines 23 to 29 [Schedule 1, clause 1(1) and (2)]—Delete subclauses (1) and (2)

This amendment relates to section 52 of the Civil Liability Act in relation to the assessment of damages for non-economic loss. The opposition have indicated they want all amendments to section 52 of the Civil Liability Act deleted. The amendment deletes the proposed changes to section 52 and leaves only the insertion of an example which explains how the 0 to 60 scale should be applied (schedule 1 clause 1(3)). MAC considers the example should be retained, as it will provide assistance to the application of the 0 to 60 scale and should not have an adverse effect on any award of damages or non-economic loss.

The Hon. R.I. LUCAS: The Liberal Party will support the government's amendment to deletes subclauses (1) and (2) of part 1 of schedule 1 but, in doing so, we indicate that we will be strongly supporting our own amendment which follows, which is to delete subclause (3). We have received very strong views from the Law Society and the Australian Lawyers Alliance in relation to this particular issue, and the very strong representations we have received are that certainly the whole lot should go.

Certainly, if the argument from the government is to delete subclause (1) and (2), a significant part of the argument has been now agreed with the government. It really is now just the remaining example, which is in subclause (3), which touches on part of the argument we had earlier. The Hon. Mr Parnell can use that Latin phrase again if he wants to for the benefit of Hansard. We will be supporting the deletion in this amendment from the government but then we will move our amendment to delete subclause (3) as well.

Amendment carried.

The Hon. R.I. LUCAS: I move:

Page 11, lines 30 to 35 [Schedule 1, clause 1(3)]—Delete subclause (3)

I have given the explanation. Again, we have received a strong lobby on this that the package of amendments in subclauses (1), (2) and (3) should be deleted. The government has agreed with the deletion of subclauses (1) and (2) and, therefore, in our view, has significantly conceded on the whole argument in relation to this provision. It now makes much more sense to concede all of the argument and delete subclause (3) as well.

The Hon. G.E. GAGO: I rise to oppose this amendment. This amendment relates to section 52 of the Civil Liability Act. The amendment deletes the example that we have just inserted after section 52, and MAC does not support this amendment.

The Hon. M. PARNELL: The Greens are supporting the government on this amendment, so we will not be supporting the Hon. Rob Lucas's amendment.

The Hon. J.A. DARLEY: I will be supporting the opposition's amendment.

The Hon. R.L. BROKENSHIRE: I will be supporting the opposition on this occasion.

The Hon. A. BRESSINGTON: I am supporting the opposition on this one.

The Hon. K.L. VINCENT: If it ain't broke, don't fix it. I am supporting the government and, therefore, opposing the amendment.

Amendment carried; schedule as amended passed.

Long title.

The Hon. R.I. LUCAS: I move:

Delete '; and to make related amendments to the Civil Liability Act 1936'

The amendment is consequential.

Amendment carried; long title as amended passed.

Bill reported with amendments.

Third Reading

The Hon. G.E. GAGO (Minister for Regional Development, Minister for Public Sector Management, Minister for the Status of Women, Minister for Consumer Affairs, Minister for Government Enterprises, Minister for Gambling) (17:41): I move:

That this bill be now read a third time.

The Hon. R.I. LUCAS (17:41): I will speak briefly at the third reading. The opposition indicated that there were a number of significant amendments that unless they were successful it intended to vote against the third reading. We are pleased to see the progress of the bill out of the committee, in that some of the significant amendments moved by the party have been supported and on that basis we are prepared to support the third reading of the bill.

The Hon. M. PARNELL (17:42): It has just occurred to me, and I do not know whether this is proper or not but I am going to do it, and that is to declare a possible interest in this legislation. It has only just occurred to me that my wife was involved in a motor vehicle accident about a year ago where she was knocked off her bicycle by a vehicle, and she would have a current pending claim for compensation which is unresolved.

I would like to inform the council that it had not occurred to me until just now that we had that interest, and that none of those circumstances have in any way influenced any of the decisions or votes that I have made on behalf of the Greens, but I thought I would put it on the record now just in case someone in the future wants to suggest that there may have been some improper motive. So, I would like Hansard to record that possible interest.

Bill read a third time and passed.

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