HANSARD
SITTING CALENDAR
SEARCH
LIVE BROADCAST
Hansard Dynamic Subject Index
Legislative Council - Fifty-Second Parliament, First Session (52-1)
2011-10-19 Daily Xml
Contents
Pdf Xml

ROAD TRAFFIC (OWNER OFFENCES) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 10 November 2010.)

The Hon. CARMEL ZOLLO (22:38): I rise to respond on behalf of the government. The proposed bill before us will allow the owner of a motor vehicle detected committing certain offences by a photographic detection device who can prove that he or she was not driving the vehicle and that the vehicle was being used for business purposes to be subject to the body corporate expiation notice provisions under section 79B of the Road Traffic Act 1961. This can be done by either providing a statutory declaration to the Commissioner of Police or in proceedings before a court.

I remind the council that the offences prescribed for the purposes of section 79B of the Road Traffic Act relate to exceeding the speed limit, disobeying red traffic lights and entering a level crossing when a train is approaching. All are serious offences and every effort should be made to identify the actual offender. The Partnership Act 1891 allows individuals to form a limited partnership for business purposes, and this arrangement does not come within the parameters of a body corporate. Section 79B of the Road Traffic Act does not apply to partnerships.

All members of a partnership are liable for the alleged offence unless they can prove that they cannot, with due diligence, identify the driver at the time of an alleged offence. The same situation applies to an individual vehicle owner. There is no clear accountability within a body corporate, as the corporation itself is the legal entity. The accountability within a partnership resides in each partner of the enterprise, as it does with any other person who owns a vehicle.

The stated intention of the bill is to provide the same process to a partnership as applies to a body corporate. It is intended that a partnership be placed on the same footing as a body corporate. This is clearly in conflict with the purposes of the Partnership Act 1981, which operates to identify and distinguish the rights and obligations of those operating as a partnership from those engaged in business in another form of relationship. The bill directs that the Commissioner of Police must withdraw an owner expiation notice and a police officer must give a new body corporate expiation notice to a person who proves the designated elements.

I note that under the proposed legislation there is no discretion to discontinue proceedings or to initiate a prosecution without issuing an expiation notice. The effect of the body corporate expiation notice is that the driver and any owner who is a natural person do not accumulate demerit points for the offence and avoid being issued with an immediate loss of licence notice for an applicable offence. This proposed amendment will enable two individuals to submit the statutory declaration claiming to be partners in a limited partnership, that the offending vehicle is being used for business purposes and then seek to have the body corporate penalty provisions apply. This is the most obvious flaw in this proposal.

The government believes that it would be very difficult for police to disprove the legitimacy of a business partnership without a detailed investigation of a great many records. An investigation of this nature would place an unreasonable burden on the administration of the photographic detection expiation notice process and unnecessarily divert valuable police resources.

In order for the owner to declare that the vehicle was being used for business purposes at the time of the offence, the owner would have to be present in the vehicle or produce evidence from the driver or another person who was in or observing the vehicle. Without direct personal knowledge or other evidence, the owner can only say that the intention was for the vehicle to be used for business purposes, not that it was actually used for business purposes.

In these circumstances the owner would be required to adopt business practices that create proper and appropriate records of the use of each vehicle. Of course, this process would enable the identity of a driver to be readily ascertained, which would then negate the need for the proposed amendments.

The government is of the view that the bill will also allow for possible exploitation of the justice system. For example, where an owner who was not the driver at the time of the offence elects to be prosecuted, the driver could give evidence at their trial that the vehicle was being used for business purposes. This would absolve the owner from the owner onus provisions of section 79B of the Road Traffic Act, although the body corporate penalty would still apply to the subsequent penalty.

The owner would avoid demerit points, as is intended by the legislation. As I mentioned earlier, the bill does not allow any discretion to commence a prosecution without issuing an expiation notice; therefore, the driver may then escape prosecution as a limitation of time under the Expiation of Offences Act 1996 is likely to have expired by the time a new trial could be arranged. In these circumstances, it is possible that a driver could be guilty of dangerously exceeding the speed limit but cannot be prosecuted.

Part of the explanation for this bill is the problems the present process is causing for people who operate in a partnership. The structure of a business is a matter for those involved and would be designed to meet their individual requirements. Where the selected structure creates a detriment, the government believes it is a matter for the individuals to determine whether or not the selected structure is appropriate or put in place measures to overcome the problem.

I note in reading the Hon. David Ridgway's remarks that this bill has come about because of an approach by Mr and Mrs Militsis, the owners of Vili's Cakes. They are two respected businesspeople in our state, so I appreciate the sincerity with which the Hon. David Ridgway is proposing this legislation. Nonetheless, for all the reasons that I have just outlined, the government believes that this proposed legislation is cumbersome, will add unnecessary red tape and create additional administration costs. For those reasons, the government opposes the bill.

The Hon. M. PARNELL (22:46): As this matter is coming to a vote tonight, I will take a moment to put the Greens position on the record. The first thing to say is that what the Hon. David Ridgway has done is he has found an example of the differential treatment between businesspeople that can only be described as unfair. It is unfair that a person whose business structure is a company is treated differently to a person whose business structure is a partnership.

I do not accept what the Hon. Carmel Zollo said, and these were not her words, but effectively they were, 'Bad luck. Choose a better structure, if you want to get the advantage of the ability to avoid the personal liability on the owners of the business.' Having said all that, I am not convinced that the fairly simple provisions in this bill actually achieve all of the objectives that the member wants. My approach to these things is to look for unintended consequences and to look for loopholes.

It is probably fair to say that, provided people are prepared to dishonestly swear false statutory declarations, there is the scope to share the love as it were, share the demerit points around among people, simply by saying, 'Yes. I don't have too many points lost on my licence. I'll take the rap for this one. Let's just say it was work.' I am sure that happens. It happens within families. It would seem to me that the bill does not require any more than for a person to simply say that they were not driving, that it was used for business purposes.

One simple amendment that might make it a little more palatable but certainly would not resolve all of the difficulties is limit it to commercially registered vehicles. It is not at present. It is with privately registered vehicles and someone would have to say, 'I took the boss's Commodore, Rolls-Royce, whatever, and I was on a work trip.' It would make more sense. If the problem was delivery vans which are all commercially registered, then there is much less opportunity for rorting if the ability to get the corporate expiation rate was limited to those commercially registered vehicles.

Whilst I appreciate what the Hon. David Ridgway is trying to do in this bill, I am not convinced that adding an extra schema of potential rorts on top of the existing scheme of potential rorts actually makes for better legislation overall. I have every sympathy for the situation that people find themselves in; however, as the Hon. Carmel Zollo said, with proper and reasonable recordkeeping in relation to vehicles and who is using them and for what purpose, then—

The Hon. A. Bressington: Logbooks.

The Hon. M. PARNELL: Logbooks, as the Hon. Ann Bressington said—it is really not that hard to work out who was at fault. I urge the government to take seriously the problem that the Hon. David Ridgway has identified and to come back with something that treats people involved in partnerships as well as those involved in companies, equitably. With that brief contribution I accept what the Hon. David Ridgway is trying to do, but we are not able to support the bill today.

The Hon. D.W. RIDGWAY (Leader of the Opposition) (22:50): I am disappointed that—

An honourable member: Mortified!

The Hon. D.W. RIDGWAY: Mortified, yes—devastated that it appears that there is not sufficient support for the principle of treating family businesses that are run as partnerships the same way as a body corporate is treated in respect to speeding fines. I will make some comments about some of the statements that have been made—in particular, one that was common to both the Hon. Carmel Zollo and the Hon. Mark Parnell in respect to logbooks.

I have based this particular bill on the Milisits family trading as Vili's Cakes. They do keep logbooks but in the heat and the rush of the Adelaide show and the Sydney Easter show—at the Sydney Easter show there are 10 delivery vans a day—every now and again somebody forgets to fill out a logbook so there is this unknown error. Most of the time they are able to determine who was driving the vehicle but every now and again, in the rush of the day to deliver quality pies to the customers, there have been examples where they simply have not had the logbooks filled out.

It is interesting—the Hon. Mark Parnell summed it up—that it was quite an arrogant approach from the government to say, 'Well, if your structure doesn't fit the current rules, such as a body corporate, we'll change your structure.' As Mr Milisits said to me when I discussed this with him, he left eastern Europe as a young boy to get away from the sort of regime that said you couldn't do things as you chose to and you had to do it the way the government told you to do it. He was really quite disappointed that there is no flexibility.

I am also disappointed that while the government in its final closing remarks says it understands what I am trying to achieve, there has been no goodwill from the government to say, 'Let's sit down and try and work out some other solution.' Again, from the Hon. Mark Parnell, I think everybody agrees this is an honourable goal: to try to make an even playing field for people who trade as a family partnership to be treated in the same way as a body corporate in the eyes of the law when it comes to speeding infringement notices.

I am disappointed that there has not been the will to say, 'Actually, this is a great idea. Let's see if we can come up with a better solution.' It is interesting that the Hon. Mark Parnell says that the vehicles are commercially registered. My understanding is that these vehicles are registered in the name of Vili and Rosemary Milisits trading as Vili's Cakes, so they are registered in their names as a partnership trading as Vili's Cakes. They are vehicles registered in their partnership name. There are nearly 50 of them across the nation, in three states. That is the way they have chosen to do their business. They are commercial vehicles: they are delivery vans and all the other vehicles that they need to run their business.

The Hon. Mark Parnell also said this is an opportunity for rorts, where people can fill out false statutory declarations. That is an offence and it should not be encouraged, but we know—and he also said that it happens now—where people share the love. What you are saying is that you are quite happy for one group of people to share the love, but we are not going to let the other group. If we are going to accept that it happens with one group why would we exclude another group?

I do not believe that people such as Mr and Mrs Milisits would be so foolish as to sign a false statutory declaration. However, it seems a bit churlish to say, 'This is open to rorts. We know there may be potential opportunity for rorts in the current system but we are not going to support this because it could add another layer of rorts.' It is unfortunate that the Hon. Mark Parnell proposed that. I am very disappointed that this parliament does not see fit to support these people. It is interesting that tomorrow we will be back here debating the Small Business Commissioner Bill to, as the government says, make South Australia a better place to do business and support small business.

We want to have one of our iconic small businesses—which has come from very humble beginnings of immigrants who have escaped Eastern Europe and actually done well and made good, employing dozens of South Australians—trade 24 hours a day, as Vili's Cafe is always open as you turn off South Road. This government is going to say, on the one hand, we have a bill for a small business commissioner where we are supporting small business, and yet they are thumbing their nose at this iconic South Australian small business and, I suspect, a number of other businesses, including farming businesses which are partnerships.

The Hon. Robert Brokenshire is talking about bringing farming under the umbrella of the Small Business Commissioner Bill tomorrow. There would be hundreds of farming partnerships and country partnerships where husband and wife trade just the same as Mr and Mrs Militsis do and have a number of vehicles. The problem with Mr Militsis is that he has vehicles operating in a number of states, so I guess there is slightly more exposure to the chance of people and employees driving his vehicles and committing an offence.

With those few words, I urge members to reconsider their position and support this important bit of legislation to send a message to people, such as Mr and Mrs Militsis and other partnerships in South Australia, that we are serious about supporting small business and fostering good relationships in this state.

The council divided on the second reading:

AYES (10)
Brokenshire, R.L. Darley, J.A. Dawkins, J.S.L.
Lee, J.S. Lensink, J.M.A. Lucas, R.I.
Ridgway, D.W. (teller) Stephens, T.J. Vincent, K.L.
Wade, S.G.
NOES (8)
Bressington, A. Franks, T.A. Gago, G.E. (teller)
Hunter, I.K. Kandelaars, G.A. Parnell, M.
Wortley, R.P. Zollo, C.
PAIRS (2)
Hood, D.G.E. Gazzola, J.M.

Majority of 2 for the ayes.

Second reading thus carried.

PARLIAMENTARY BUSINESS
MEMBERS
GET INVOLVED
ABOUT PARLIAMENT
VISIT
LEGISLATIVE COUNCIL
HOUSE OF ASSEMBLY
CONTACT