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Legislative Council - Fifty-Fourth Parliament, Second Session (54-2)
2020-07-22 Daily Xml
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Road Traffic (South Eastern Freeway Offences) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 4 March 2020.)

The Hon. C.M. SCRIVEN (21:59): I rise as the lead speaker for the opposition on this bill and indicate that we will be supporting it. Initially, we did have some questions in regard to the ability for this parliament to change the definition of a bus for this particular stretch of road; however, the Hon. Mr Pangallo has stated that he has advice that this is possible. Certainly, if this bill does pass, if further concerns exist, they can be addressed in the other place.

This is an important matter. We would all be familiar with the tragedy that occurred on the South Eastern Freeway that was a particular catalyst for the changes to which this bill is referring. No-one wants to see any more fatalities on that stretch of road—that obviously goes without question—nor do we want to see unintended consequences of the act. Because it is important, it should be considered seriously by this government. If the bill passes, it will enable all the issues to be addressed in the other place. I therefore commend the bill to the house.

The Hon. D.W. RIDGWAY (Minister for Trade and Investment) (22:00): I rise on behalf of the government to provide a response to the Hon. Frank Pangallo's bill. Prior to these recent amendments, the Road Traffic (South Eastern Freeway Offences) Amendment Bill 2020 sought firstly to remove the South Eastern Freeway offences from applying to all buses as defined in the Road Traffic Act 1961 and the Australian Road Rules and secondly to allow the courts to reduce or mitigate the applicable licence disqualification period for a first offence when sentencing if it considers the offence to be trifling.

In relation to the first matter, the recent amendments to the bill now propose to delete the definition of 'bus' and instead include a new definition of 'large bus', being buses that seat over 25 adults, including the driver, so that the South Eastern Freeway offences would not apply to buses that seat between 12 and 24 adults. Both measures are problematic and undesirable. Firstly, bus definitions: trucks, large buses and buses travelling on the down track of the South Eastern Freeway will be subject to different penalties and sanctions for the same offence. A bus is currently defined nationally within the Australian Road Rules as a motor vehicle built mainly to carry people that seats over 12 adults, including the driver.

Introducing a new definition of a 'large bus' just for the South Eastern Freeway descent would create further confusion for the heavy vehicle industry and the community, particularly concerning the application of down track speed limits. Buses as currently defined in the Australian Road Rules, seating over 12 adults, already have the potential to expose a large number of passengers to death or serious injury in the event of a crash and are most often driven for commercial purposes. A bus with up to 24 seats travelling at a high speed poses an even greater safety risk. Passengers have a right to expect that a vehicle they are travelling in is being driven in accordance with the appropriate safety standards.

On the court mitigation topic, the concept of 'trifling' is vague and unworkable in respect of speeding or low gear offences, which are largely camera detected. The issue of removing offences from applying to buses and inserting a new definition of large buses is again problematic. The existing South Eastern Freeway offences in section 45C of the Road Traffic Act apply to trucks and buses as defined in the Australian Road Rules. A 'truck' means a motor vehicle with a gross vehicle mass (GVM) of over 4.5 tonnes—except a bus, tram or tractor—and a 'bus' means a motor vehicle built mainly to carry people that seats over 12 adults, including the driver, regardless of the gross vehicle mass of the vehicle.

Small buses with one to 12 seats are not subject to the South Eastern Freeway offences in section 45C but are still subject to the speeding offences in the Australian Road Rules regulation 20 that apply to all vehicles. In South Australia, the holder of a C-class licence is not authorised to drive a truck or a bus, as defined under the Australian Road Rules. Drivers of trucks and buses are required to hold a Light Rigid (LR) licence class as a minimum. It is the responsibility of the driver of the vehicle to ensure both that the vehicle is registered and the driver holds the appropriate class of licence to operate the vehicle before driving on South Australian roads.

If the Hon. Frank Pangallo's bill and recent amendments are passed, trucks, large buses (as redefined) and buses (as defined in the Australian Road Rules) travelling on the down track of the South Eastern Freeway will be subject to different penalties and sanctions for the same offence. I will repeat that: if the Hon. Frank Pangallo's bill and recent amendments are passed, trucks, large buses (as redefined) and buses (as defined in the Australian Road Rules) travelling on the down track of the South Eastern Freeway will be subject to different penalties and different sanctions for the same offence.

Trucks and large buses seating over 25 adults will continue to be subject to higher penalties and sanctions, whereas all other buses seating 12 to 24 adults will be subject to regular speeding offences under the Australian Road Rules and the associated monetary penalties and demerit points applying to a driver of a light vehicle.

There would be no automatic licence disqualification imposed by the registrar or six demerit points applicable to buses over 12 seats and under 24 seats, as per the current offences. Additionally, these buses would be subject to the low-gear offence in Australian Road Rule 108, which attracts only three demerit points and an expiation fee of $382.

As existing buses over 12 and under 24 seats would no longer be captured, and the low-gear signage on the South Eastern Freeway would refer to trucks and large buses, there is a risk this confusion may inadvertently result in drivers thinking they would be allowed to travel at the 90 km/h speed limit on the down track of the South Eastern Freeway that is applicable for light vehicles. However, the 60 km/h speed limit would still apply to all trucks and buses as per the definition in the Australian Road Rules.

In October 2019, the Hon. Frank Pangallo introduced this private member's bill proposing to amend the sanctions and penalties applying to South Eastern Freeway offences by introducing a new category of vehicle called a restricted truck and restricted bus, defined as being a vehicle with a gross vehicle mass of over eight tonnes. The government opposed the new category of restricted vehicles, as it would potentially create further confusion for the heavy vehicle industry, as existing rules applying to trucks and buses, including those that apply nationally, would continue to apply as per the existing definitions in the Australian Road Rules, which are based on the number of seats and not the gross vehicle mass of a vehicle.

All the existing offences under the Road Traffic Act and the Australian Road Rules apply to the existing definition of a bus, and the Australian Road Rules are national. Introducing different penalties now for large buses as distinct from buses seating 12 to 24 adults is not desirable and is likely to create more confusion for the industry and the community.

Further, buses that seat over 12 adults, including the driver, as currently defined have the potential to expose a greater number of passengers to death or serious injury in the event of a crash. Most often, buses of more than 12 seats are driven for commercial purposes rather than for personal use, and passengers have a right to expect the vehicle they are travelling in to be driven in accordance with the appropriate safety standards—that is, not exceeding the speed limit—and not be at risk of losing its brakes as it descends the long, steep South Eastern Freeway.

Sections 45C(1) and 45C(2) of the Road Traffic Act, being the South Eastern Freeway speeding offence and the South Eastern Freeway low gear offence respectively, were inserted into the act to implement two coronial recommendations, with variations. Whilst the focus of the coronial inquiry that resulted in the South Eastern Freeway penalties and sanctions was on incidents involving trucks over 4.5 tonnes, the recommendations called for a significant increase in the penalties for road rule 108 (which includes buses) and for heavy vehicles exceeding the 60 km/h speed limit.

As both road rule 108 and the speed restrictions in force on the South Eastern Freeway descent already apply to trucks and buses, in determining how to implement these recommendations the increased penalties were applied to both types of vehicles. Appropriate penalties were developed based on the coronial recommendations, which included the terms of imprisonment, and how these offences may be practicably enforced and communicated to the community.

Regarding the suggestion that many small businesses, tourist operators and not for profits who operate the smaller buses of less than 25 seats have been severely impacted by the South Eastern Freeway laws, the government has already addressed this concern by amending the six-month licence disqualification sanction applicable to a first offence to apply only to second and subsequent offences.

Given that this has been in operation since 6 December 2019, small businesses and tourist operators should no longer be caught out unexpectedly by the severity of the South Eastern Freeway penalties, as they would be well aware of their responsibilities to drive below 60 km/h and use low gear on the South Eastern Freeway down track.

The revised penalties passed by parliament in the 2019 amendment bill better reflect community expectations, particularly around first offences, while maintaining strong penalties for repeat offenders who have chosen to disregard the law by putting themselves and other road users at greater risk. No further amendments are therefore considered necessary.

I now turn to the court's ability to reduce or mitigate the applicable licence disqualification. In relation to the proposed amendment to allow the court to impose a lesser licence disqualification when sentencing for a first South Eastern Freeway offence, it is not clear what a court would consider to be 'trifling' in relation to a speeding or low gear offence or what evidence or circumstances would be necessary for the court to reach this determination. In the absence of robust policy reasoning to support this proposal, the concept of 'trifling' appears to be vague and unworkable.

Other trifling offences contained in the Road Traffic Act relate to different types of offences which all have various elements that need to be satisfied by some form of judgement, discretion or decision-making from SAPOL to enforce. None of the existing offences are camera-detected like the majority of the South Eastern Freeway speeding offences in section 45C.

Unlike with the existing 'trifling' offences, there is nothing drafted in the proposed amendments to assist the court in determining what could be considered 'trifling' in these circumstances. The inclusion of such a provision also risks a greater number of people nominating to be prosecuted so they can plead their case in court. This is likely to have an impact on finite court resources.

In relation to retrospectivity, if the amendments relating to retrospectivity are passed, the transitional provision will apply to allow a court to reduce or mitigate the minimum licence disqualification for a first South Eastern Freeway offence to not less than one month if it is considered it to be 'trifling'. This is because the transitional provision provides that the sections apply for the purposes of any proceedings determined after the commencement of the act, regardless of whether the offence to which the proceedings relate occurred before or after that commencement.

It is important to note that no other retrospective provisions are contained in the bill that will, if passed, reduce or remove sanctions and penalties, including licence disqualifications, for drivers of trucks and buses for any South Eastern Freeway offences committed to date. This will mean that a six-month licence disqualification will continue to apply for a first South Eastern Freeway offence that was committed prior to 6 December 2019 upon expiation. SAPOL has been consulted and supports the government's intention to oppose this bill, so I urge members to strongly oppose this bill and remove all the ambiguity this has created.

The Hon. F. PANGALLO (22:12): While my private member's bill was passed in 2019 with the most immediate issues related to the severe loss of licence penalty for a first offence under these laws, this bill, and my amendment [Pangallo-1] 1 currently before you, seeks to ensure that small buses under 25 seats are excluded from these offences.

Buses were never meant to be included in these offences but, unfortunately, since May 2019, small buses have become the unwitting victims of the unintended consequences of the government's South Eastern Freeway legislation. The government has shown no inclination to address this problem which has had enormous impacts on small businesses and individuals alike. It has also failed to recognise the very real risk presented by forcing these buses to share the same lane with large, articulated, usually heavily laden vehicles.

Ideally, no buses would share the lane with large B-doubles and similar heavy articulated vehicles. But my amendment has limited this to buses below 25 seats to ensure larger buses have to comply with the reduced speed limit on that section of the freeway. The other issue my bill addresses is that it restores judicial discretion regarding matters where the driver or owner elects to be prosecuted. In the interests of justice, my bill gives back this important discretion to magistrates.

I note that the minister Stephan Knoll in February said he believes there is a discretion to a certain degree by the courts. To date, there is no discretion. We have also sought advice from the police commissioner as to any discretion that SAPOL may have. It saddens me to say this but, along with the many drivers caught by unintended consequences, I have been extremely disappointed at the lack of accurate and prompt information and long delays to our questions by both the transport minister and the police commissioner.

They have been ducking and weaving on this since we first raised the chaos and unfairness of the legislation in regard to this stretch of the South Eastern Freeway before, and after we amended it late last year. Freedom of information documents we have recently received from SAPOL, dated 7July, reveal that they have made significant changes last September to the front of traffic expiation notices, which now state, 'Demerit or licence disqualification may apply,' whereas for those who got notices when it came into effect in May last year, it simply stated, 'Demerit points may apply', that is all. Email correspondence reveals the change only came about because of media scrutiny.

Information on registration papers was also changed in the wake of the uproar, warning of heavy penalties to trucks and buses. This flies in the face of minister Knoll's claims that everyone was properly notified. Many drivers of buses do not even own these vehicles. I note that it was mentioned also by the Hon. David Ridgway in relation to the Coroner's findings and recommendations. The minister also wrongfully implied the laws were the result of the Coroner's recommendations into a fatal crash on the South Eastern Freeway. The Coroner had to correct the minister that it did not refer to vehicles under 4.5 tonne GVM. I will table that letter from the Coroner.

I have also placed questions on notice to the police commissioner, and I hope we get a response in a timely manner, unlike the three to six months it took him and SAPOL to respond to desperate and distressed drivers who faced losing their licences and livelihoods and were seeking the commissioner to exercise a discretion to waive penalties. One Dallas Coull of Taste the Barossa, says he will be forced to close his business next month. The commissioner told us he was awaiting legal opinion on whether he even had the discretion. Six months is a long time to get such a simple answer: yes or no.

It now turns out that he sort of does, but he, through his expiation branch, has flatly refused to exercise that discretion. One of those distressed drivers who contacted my office in February, Kimberley Pagon, said she had to wait until last week to be told her penalty would not be waived, and the licence disqualification stood. If she copped it on the chin when she got the notice, the licence disqualification would have been served by now. Kimberley begged for leniency because of extenuating personal circumstances and a business impacted by COVID-19.

I can accept that the police commissioner has the final verdict on exercising discretion. It is a tough call, and SAPOL perhaps do not want to start precedents that could be exploited by others. However, it should not take half a year to make that decision when there is so much at stake for a lot of drivers and businesses.

I would like to thank Adrienne Gillam from my office and lawyer Karen Stanley from Stanley Law for their valuable input. I am pleased to hear I have the support from the honourable members of the opposition and the crossbenchers, the Greens. With that, I conclude my summing-up and commend the bill to the council.

Bill read a second time.

Committee Stage

In committee.

Clauses 1 and 2 passed.

Clause 3.

The Hon. F. PANGALLO: I move:

Amendment No 1 [Pangallo–1]—

Page 2, line 13 [clause 3(1)]—Delete subclause (1) and substitute:

(1) Section 45C(1)—delete 'or bus' and substitute 'or large bus'

This amendment deals with taking out buses under 25 seats by referring to other buses as a 'large bus'.

The Hon. D.W. RIDGWAY: I indicate that the government will not be supporting the amendment. As I said in my second reading contribution, it looks like we will have different offences for different vehicles on the same stretch of road and it is quite confusing, so we certainly will not be supporting this amendment.

The Hon. C.M. SCRIVEN: We will be supporting the amendment.

Amendment carried.

The Hon. F. PANGALLO: I move:

Amendment No 2 [Pangallo–1]—

Page 2, line 14 [clause 3(2)]—Delete subclause (2) and substitute:

(2) Section 45C(2)—delete 'or bus' (twice occurring) and substitute in each case:

or large bus

Amendment carried.

The Hon. F. PANGALLO: I move:

Amendment No 1 [Pangallo–2]—

Page 2, after line 19—After subclause (3) insert:

(3a) Section 45C—after subsection (5) insert:

(5a) If, on a prescribed road—

(a) a speed limit; or

(b) a direction that a vehicle be driven in a specified marked lane or other part of the road,

is, pursuant to a traffic control device, applicable to a person driving a truck or bus (not being a traffic control device that is also applicable to persons driving other vehicles), that speed limit or direction is not applicable to the driver of a bus that is not a large bus.

This amendment deals with signage that would be necessary to deal with all buses if you did exclude them all, or for under 25-seaters that you intend to exclude as the signage would still apply, so it needs to be specifically stated that it does not apply to under 25-seaters.

The Hon. D.W. RIDGWAY: I indicate that the government will not be supporting the amendment. It looks like we would have to have a billboard on the South Eastern Freeway with so much information that it would distract drivers. We are certainly not supporting this amendment.

The Hon. C.M. SCRIVEN: We will be supporting the amendment.

Amendment carried.

The Hon. F. PANGALLO: I move:

Amendment No 3 [Pangallo–1]—

Page 2, line 20 [clause 3(4)]—Delete subclause (4)

Amendment No 4 [Pangallo–1]—

Page 2, after line 20—After subclause (4) insert:

(4a) Section 45C(7)—after the definition of bus insert:

large bus means a bus that seats over 25 adults (including the driver);

Amendments carried.

The Hon. F. PANGALLO: I move:

Amendment No 2 [Pangallo–2]—

Page 3, before line 1—Before subclause (5) insert:

(4a) Section 45C(7)—after the definition of length insert:

marked lane means a marked lane for the purposes of the Australian Road Rules;

It is needed whether you delete all buses or just buses under 25 seats because it deals with the signage that would otherwise still apply to all buses, even the ones that you want to exclude.

The Hon. D.W. RIDGWAY: I indicate that the government will not be supporting the amendment. As you can see from the amendment, it is really creating even more confusion on the South Eastern Freeway.

The Hon. C.M. SCRIVEN: The opposition will be supporting it.

Amendment carried.

The CHAIR: Amendments Nos 5 and 6, the Hon. Mr Pangallo, are consequential. You can move them together.

The Hon. F. PANGALLO: I move:

Amendment No 5 [Pangallo–1]—

Page 3, line 1 [clause 3(5)]—Delete subclause (5) and substitute:

(5) Section 45C(7), definition of primary brake—delete 'or bus' and substitute:

or large bus

Amendment No 6 [Pangallo–1]—

Page 3, line 2 [clause 3(6)]—Delete subclause (6) and substitute:

(6) Section 45C(7), definition of relevant speed limit—delete 'or bus' and substitute:

or large bus

Amendments carried; clause as amended passed.

Clause 4 passed.

Clause 5.

The Hon. F. PANGALLO: I move:

Amendment No 7 [Pangallo–1]—

Page 3, lines 13 to 15 [clause 5]—Delete clause 5 and substitute:

5—Variation of regulation 9C—Low gear offence (rule 108) not applicable to drivers of trucks or large buses on prescribed road

(1) Regulation 9C—delete 'or bus' and substitute 'or large bus'

(2) Regulation 9C—after its present contents (now to be designated as subregulation (1)) insert:

(2) In this regulation—

large bus has the same meaning as in section 45C of the Act.

This clarifies that you are only dealing with large buses being not subject to the low gear offence, which is already the law, and it clarifies the definition of a large bus, that is, that it is over 25 seats. To clarify, we did seek extensive opinion about whether it changes the definition of buses or not and the opinion was that these amendments are actually quite applicable and will not do that.

The Hon. D.W. RIDGWAY: The government will be opposing it, as I said in my second reading contribution. We have consulted with SAPOL and they do not support this bill or the amendments.

The Hon. C.M. SCRIVEN: We will be supporting the amendment.

Amendment carried.

Remaining clause (6) and title passed.

Bill reported with amendment.

Third Reading

The Hon. F. PANGALLO (22:29): I move:

That this bill be now read a third time.

The council divided on the third reading:

Ayes 12

Noes 9

Majority 3

AYES
Bonaros, C. Bourke, E.S. Franks, T.A.
Hanson, J.E. Hunter, I.K. Maher, K.J.
Ngo, T.T. Pangallo, F. (teller) Parnell, M.C.
Pnevmatikos, I. Scriven, C.M. Wortley, R.P.
NOES
Centofanti, N.J. Darley, J.A. Dawkins, J.S.L.
Hood, D.G.E. Lee, J.S. Lensink, J.M.A.
Lucas, R.I. Ridgway, D.W. (teller) Wade, S.G.

Third reading thus carried; bill passed.

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