Div 7Photographic detection devices

Division 7—Photographic detection devices 79A—Approval of apparatus as photographic detection devices The Governor may, by regulation, approve apparatus of a specified kind as photographic detection devices. 79B—Provisions applying where certain offences are detected by photographic detection devices average speed camera location has the same meaning as in section 175A; owner, in relation to a vehicle, has the meaning assigned to the term by section 5, and includes the operator of the vehicle; prescribed offence means— (a) an offence against section 45A or 45C(1); or (b) an offence against this Act prescribed by regulation; or (c) an offence against the Motor Vehicles Act 1959 prescribed by regulation; or (d) an offence against the Heavy Vehicle National Law (South Australia) Act 2013 prescribed by regulation; red light offence means a prescribed offence relating to traffic lights, traffic arrows or twin red lights defined by the regulations as a red light offence; speeding offence means a prescribed offence defined by the regulations as a speeding offence; traffic arrows, traffic lights and twin red lights have the same respective meanings as in the Australian Road Rules. (2) If a vehicle appears from evidence obtained through the operation of a photographic detection device to have been involved in the commission of a prescribed offence, the owner of the vehicle is guilty of an offence against this section unless it is proved— (a) that although the vehicle appears to have been involved in the commission of a prescribed offence, no such offence was in fact committed; or (b) that a nomination made in a manner and form approved by the Minister and stating the name and address of some person other than the owner who was driving the vehicle at the time has been given— (i) by the owner; or (ii) if the owner is a body corporate—by an officer of the body corporate acting with the authority of the body corporate, to the Commissioner of Police— (iii) in the case of an expiation notice—within 28 days after an expiation notice in respect of the offence is given to the owner; or (iv) in the case of an expiation reminder notice—within 14 days after an expiation reminder notice in respect of the offence is given to the owner; or (v) if an expiation notice is not given—within 28 days after a summons in respect of the offence is given to the owner, (or within such longer period as the Commissioner may allow if satisfied that exceptional circumstances exist in the particular case); or (c) that— (i) if the owner is a body corporate—the vehicle was not being driven at the time by any officer or employee of the body corporate acting in the ordinary course of the officer's or employee's duties as such; and (ii) the owner does not know and could not by the exercise of reasonable diligence have ascertained the identity of the person who was driving the vehicle at the time; and (iii) the owner, or, if the owner is a body corporate, an officer of the body corporate acting with the authority of the body corporate, has furnished to the Commissioner of Police a statutory declaration stating the reasons why the identity of the driver is not known to the owner and the inquiries (if any) made by the owner to identify the driver. (aa) if the vehicle appears to have been involved in an offence against section 45C(1)— (i) where the owner is a body corporate—not less than $10 000 and not more than $20 000; (ii) where the owner is a natural person—$5 000; (a) in any other case— (i) where the owner is a body corporate—$10 000; (ii) where the owner is a natural person—$5 000. (2a) The expiation fee for an alleged offence against this section is as follows: (aa) if the vehicle appears to have been involved in an offence against section 45C(1) and the owner is a body corporate—an amount equal to the sum of the amount of the expiation fee fixed by the regulations for an alleged offence against section 45C(1) where the owner is a natural person and a body corporate additional fee of $5 000; (a) subject to paragraph (aa), if the vehicle appears to have been involved in a red light offence and a speeding offence arising out of the same incident— (i) where the owner is a body corporate—an amount equal to the sum of the amount of the expiation fees for such alleged offences where the owner is a natural person and a body corporate additional fee prescribed by regulation; (ii) where the owner is a natural person—an amount equal to the sum of the amount of the expiation fees fixed by the regulations for such alleged offences; (b) in any other case— (i) where the owner is a body corporate—an amount equal to the sum of the amount of the expiation fee for the alleged offence in which the vehicle appears to have been involved where the owner is a natural person and a body corporate additional fee prescribed by regulation; (ii) where the owner is a natural person—the amount of the expiation fee fixed by the regulations for the alleged offence in which the vehicle appears to have been involved. (2ab) A body corporate additional fee prescribed by regulation for the purposes of subsection (2a) must not exceed $5 000, but may be prescribed even if the addition of the fee results in an expiation fee for an alleged offence against this section of an amount exceeding the maximum expiation fee that would otherwise be permitted to be prescribed by regulation under this Act. (2b) If a court convicts a natural person of an offence against this section constituted of being the owner of a vehicle that appears from evidence obtained through the operation of a photographic detection device to have been involved in the commission of an offence against section 45A, the following provisions apply: (a) the court must order that the person be disqualified from holding or obtaining a driver's licence for such period, being not less than 6 months, as the court thinks fit; (b) the disqualification prescribed by paragraph (a) cannot be reduced or mitigated in any way or be substituted by any other penalty or sentence; (c) if the person is the holder of a driver's licence—the disqualification operates to cancel the licence as from the commencement of the period of disqualification. (2c) If a court convicts a natural person of an offence against this section constituted of being the owner of a vehicle that appears from evidence obtained through the operation of a photographic detection device to have been involved in the commission of an offence against section 45C(1), the following provisions apply: (i) in the case of a first offence—for such period, being not less than 6 months, as the court thinks fit; or (ii) in the case of a second offence—for such period, being not less than 12 months, as the court thinks fit; or (iii) in the case of a subsequent offence—for such period, being not less than 3 years, as the court thinks fit; (b) the disqualification prescribed by paragraph (a) cannot be reduced or mitigated in any way or be substituted by any other penalty or sentence; (c) if the person is the holder of a driver's licence—the disqualification operates to suspend the licence as from the commencement of the period of disqualification; (d) in determining whether an offence is a first, second or subsequent offence for the purposes of this subsection, any previous offence against this section constituted of being the owner of a vehicle that appears from evidence obtained through the operation of a photographic detection device to have been involved in the commission of an offence against section 45C(1) for which the person has been convicted or that the person has expiated will be taken into account, but only if the previous offence was committed or alleged to have been committed within the period of 5 years immediately preceding the date on which the offence under consideration was allegedly committed. (3) If there are two or more owners of the same vehicle— (a) a prosecution for an offence against subsection (2) may be brought against one of the owners or against some or all of the owners jointly as co-defendants; and (b) if the case for the prosecution is proved and a defence is not established under subsection (2)(a), the defendant or each of the defendants who does not establish a defence under subsection (2)(b) or (c) is liable to be found guilty of an offence against subsection (2). (4) A prosecution must not be commenced against an owner (other than a body corporate) for an expiable offence against this section unless the owner has first been given an expiation notice under the Expiation of Offences Act 1996 in respect of the offence and allowed the opportunity to expiate the offence in accordance with that Act. (4a1) Subsection (4) does not apply in the case of an expiable offence against this section if the prescribed offence that the vehicle has appeared to have been involved in is an offence against section 45A. (4a) If, in the case of an offence against this section constituted of being the owner of a vehicle that appears from evidence obtained through the operation of a photographic detection device to have been involved in the commission of an offence against section 45C(1), there is a registered operator of the vehicle, an expiation notice for the offence may only be given to, and a prosecution for the offence may only be brought against, the registered operator. (5) If an offence against this section is alleged, an expiation notice, an expiation reminder notice or summons in respect of that offence must be accompanied by a notice in the prescribed form containing— (a) a statement that a copy of the photographic evidence on which the allegation is based— (i) will, on written application to the Commissioner of Police by the person to whom the expiation notice, reminder notice or summons is issued, be sent by post to the address nominated in that application or (in the absence of such a nomination) to the last known address of the applicant; and (ii) may be viewed on application to the Commissioner of Police; and (b) a statement that the Commissioner of Police will, in relation to the question of withdrawal of the expiation notice, reminder notice or information, give due consideration to any exculpatory evidence that is verified by statutory declaration and furnished to the Commissioner within a period specified in the notice; and (c) such other information or instructions as is prescribed. (6) If a prescribed offence is alleged and the allegation is based on photographic evidence obtained through the operation of a photographic detection device, an expiation notice, an expiation reminder notice or a summons in respect of the offence must be accompanied by a notice in the prescribed form containing— (a) a statement that a copy of the photographic evidence on which the allegation is based— (i) will, on written application to the Commissioner of Police by the person to whom the expiation notice, reminder notice or summons is issued, be sent by post to the address nominated in that application or (in the absence of such a nomination) to the last known address of the applicant; and (ii) may be viewed on application to the Commissioner of Police; and (b) such other information or instructions as is prescribed. (6a) If— (a) an expiation notice for a prescribed offence is given to a person named as the alleged driver in a nomination under this section; or (b) proceedings for a prescribed offence are commenced against a person named as the alleged driver in a nomination under this section, the notice or summons, as the case may be, must be accompanied by a notice setting out particulars of the nomination that named the person as the alleged driver. (6b) The particulars of the nomination provided to the person named as the alleged driver must not include the address of the person who made the nomination. (7) If a person is found guilty of, or expiates, a prescribed offence, neither that person nor any other person is liable to be found guilty of, or to expiate, an offence against this section in relation to the same incident. (8) If a person is found guilty of, or expiates, an offence against this section, neither that person nor any other person is liable to be found guilty of, or to expiate, a prescribed offence in relation to the same incident. (9) In proceedings for an offence against this section, a document produced by the prosecution and purporting to be signed by the Commissioner of Police, or any other police officer of or above the rank of inspector, and purporting to certify that the defendant had, before the prosecution was commenced, been given an expiation notice under the Expiation of Offences Act 1996 in respect of the offence and allowed the opportunity to expiate the offence in accordance with that Act will be accepted as proof, in the absence of proof to the contrary, of the facts so certified. (10) In proceedings for an offence against this section or proceedings for a prescribed offence— (a) a photograph or series of photographs produced by the prosecution will be admitted in evidence if— (i) the photograph or series of photographs was produced from exposures taken, or electronic records made, by a photographic detection device; and (ii) the requirements of this Act and the regulations as to the operation and testing of photographic detection devices were complied with in connection with that use of the device, and a denotation as to date, time and location that appears as part of such a photograph or series of photographs will be accepted as proof, in the absence of proof to the contrary, of the date, time and location at which the exposures were taken or the electronic records were made by the photographic detection device; and (b) a document produced by the prosecution and purporting to be signed by the Commissioner of Police, or any other police officer of or above the rank of inspector, and purporting to certify— (i) that a specified device used at a specified location during a specified period was a photographic detection device; and (ii) that the requirements of this Act and the regulations as to the operation and testing of photographic detection devices were complied with in connection with the use of that device during that period, will be accepted as proof, in the absence of proof to the contrary, of the facts so certified; and (c) if it is also certified in a document of a kind referred to in paragraph (b) that the device was designed and set to operate according to a specified system during that period, it will be presumed, in the absence of proof to the contrary, that the device was designed and set to operate according to that system during that period and did, in fact, so operate. (11) Where evidence referred to in subsection (2) is evidence of the average speed of the vehicle between 2 average speed camera locations calculated in accordance with section 175A— (a) the time of commission of the offence will be taken to be the period during which the vehicle travelled between the 2 locations; and (b) subsection (2)(b) applies as if the reference to "the name and address of some person other than the owner who was driving the vehicle at the time" were a reference to— (i) the name and address of each person other than the owner who drove the vehicle during the time of commission of the offence; or (ii) the name and address of each such driver whose name and address is known to the owner and, in relation to every other driver of the vehicle during the time of commission of the offence, the reasons why the identity of the driver is not known to the owner and the inquiries (if any) made by the owner to identify the driver; and (c) if the owner is not a body corporate, a nomination given to the Commissioner of Police under subsection (2)(b) must also state whether or not the owner was also a driver of the vehicle during the time of commission of the offence; and (d) subsection (2)(c) applies as if— (i) the reference in subparagraph (ii) to "the person who was driving the vehicle at the time" were a reference to any person who was driving the vehicle at the time; and (ii) the reference in subparagraph (iii) to "the reasons why the identity of the driver is not known to the owner and the inquiries (if any) made by the owner to identify the driver" were a reference to the reasons why the owner does not know the identity of any driver and the inquiries (if any) made by the owner to identify a driver; and (e) subsection (7) only applies to the person who is found guilty of, or expiates, the prescribed offence and subsection (8) only applies to the person who is found guilty of, or expiates, the offence against this section. (12) The Commissioner of Police may require a person who makes a nomination under this section to verify the information contained in the nomination by statutory declaration. (13) If the Commissioner of Police believes that a nomination under this section has been made in error, the Commissioner may permit the nomination to be withdrawn and a new nomination to be made. (14) A person must not, in making a nomination for the purposes of this section, make a statement that is false or misleading in a material particular. Maximum penalty: $25 000 or imprisonment for 4 years. 79BA—Installation etc of photographic detection devices (1) The Commissioner of Highways may, with the approval of the Minister, install, maintain, alter or remove or cause to be installed, maintained, altered or removed, a photographic detection device on, above or near a road. (2) In proceedings for an offence against this or any other Act, a photographic detection device proved to have been on, above or near a road will be conclusively presumed to have been lawfully installed there under this Act. 79C—Interference with photographic detection devices A person who, without proper authority or reasonable excuse, interferes with a photographic detection device or its proper functioning is guilty of an offence. Maximum penalty: $5 000 or imprisonment for 1 year. 79D—Report on Community Road Safety Fund (1) The administrative unit that is, under the Minister, responsible for the administration of this Act must, on or before 30 September in each year, present a report to the Minister on the operation of the Community Road Safety Fund during the previous financial year. (2) The report must include details of the following: (a) each source of any money paid into the Fund and the amount paid into the Fund from each source; (b) the manner in which any money expended from the Fund was applied; (c) any matter required by this Act or another law to be included in the report. (3) A report under this section may be incorporated into the annual report of the relevant administrative unit. (4) The Minister must cause a copy of the report to be laid before both Houses of Parliament within 12 sitting days after the report is received by the Minister.