STATUTES AMENDMENT (DRIVING OFFENCES) BILL

Second Reading

Adjourned debate on second reading.

(Continued from 24 June 2010.)

Mr GOLDSWORTHY (Kavel) (12:11): I am pleased again to be the lead speaker in relation to these important issues concerning road safety matters here in the good state of South Australia. I am looking through my briefing papers to get the correct references so that I can engage in meaningful debate with the Minister for Road Safety. It was noted in the house yesterday, during debate on the first bill for which the Minister for Road Safety had responsibility, that the minister thought I had launched a withering attack on him. Perhaps he will not be looking at a withering attack today, but certainly there are some issues we will be looking to raise in relation to the Statutes Amendment (Driving Offences) Bill 2010.

The government introduced this bill a couple of weeks ago, on 24 June. A major element of the bill is to introduce a new section 19AD—Street racing, into the Criminal Law Consolidation Act, which would make the offence of street racing a criminal indictable offence. Importantly, the Criminal Law Consolidation Act also lists street racing as an aggravated offence.

As it stands, under the Criminal Law Consolidation Act, there is currently a section 19A—Causing death or harm by dangerous use of vehicle or vessel. If the dangerous and negligent use of a vehicle causes death, the maximum penalty is a gaol sentence; and if someone causes serious harm as a consequence of that activity, the maximum penalty for a first offence is a gaol sentence. It is my understanding and from my reading of the act that, even if a minimal level of harm is caused by dangerous and negligent driving, a gaol sentence is also the maximum penalty applicable. However, the act talks about death and serious harm and then, in 19A(3)(b), under maximum penalty, it provides:

(b) where a motor vehicle or motor vessel is used in the commission of the offence but serious harm was not caused to any person—

(i) for the first offence that is a basic offence—imprisonment for five years—

and it then goes on to list some other parts of the penalties.

So, within the current law there are some pretty heavy penalties for motorists who drive a vehicle in either a dangerous or reckless manner. What the government is looking to achieve is to create a new offence of street racing. As I said, new section 19AD is to be placed in the Criminal Law Consolidation Act where, by its very nature, street racing would have to be classed as dangerous or negligent driving.

A new offence of street racing is to be placed in the act, and it does not matter whether an accident has taken place or a crash has occurred. Just on the fact that a street race is taking place, irrespective of any crash or injury (whether it be serious or not), the maximum penalty for a first offence is a gaol sentence and loss of licence. If a first offence is deemed to be an aggregated offence, or for any subsequent offence, then the gaol sentence is increased to five years.

That all seems quite acceptable on the surface, and we on this side of the house are prepared to support the intent of the bill. However, there are some issues that we want to raise in relation to the legislation. The minister and I had a radio interview on the day that the minister announced the legislation. There was a press release and some television and, that afternoon, we did a radio interview on 891 Drive, from memory.

One could incorporate this offence in the Road Traffic Act, because there is a lot in the current Road Traffic Act—

The Hon. J.J. Snelling interjecting:

Mr GOLDSWORTHY: Isn't that a concession? The minister is saying he is not giving us any answers; that's pretty good.

The Hon. J.J. Snelling interjecting:

Mr GOLDSWORTHY: Yes; talking about that, the Deputy Speaker will pull me up, but we have heard that the current Minister for Road Safety is being groomed for bigger and better things down the track so, even under your admission, minister, that you are only assuming a junior portfolio at the moment—

The Hon. J.J. Snelling: I also might be a deputy assistant under cabinet secretary.

Mr GOLDSWORTHY: You may well be that after the next election, given that you will lose the next election. Let us get back to the very important matter before the house, and that is the matter of trying to save people's lives.

We had an interview and a bit of a debate on the radio that afternoon. There is a significant amount of legislation, obviously, in the Road Traffic Act and these provisions could have been placed in that act. However, the minister said publicly that the government was not looking to do that, because it wants to communicate to the public that this is a very serious issue, a very serious offence and a very serious crime and that the place for it is the Criminal Law Consolidation Act and that, hopefully, it will have an educative effect on the community.

I have a few questions for the minister during the course of the debate. First, does the minister really think that, if we have two young lads in cars, pulling up at the traffic lights, on a spur of the moment thing, one driver looks over at the other—

The Hon. J.J. Snelling: A bit of revving.

Mr GOLDSWORTHY: —a bit of revving, a bit of encouragement and so on—they will think, 'Hell's bells, we'd better not do this, because this is in the Criminal Law Consolidation Act.'

The Hon. J.J. Snelling: Or, 'We could go to gaol.' That might have some effect.

Mr GOLDSWORTHY: Sure, but there is no reason that you cannot put that provision in the Road Traffic Act.

The Hon. J.J. Snelling: No, you can't do that. It is an indictable offence; it has to be put in the Criminal Law Consolidation Act, but anyway.

Mr GOLDSWORTHY: Well, we will hear it. Okay, we will hear it. I am sure in the Road Traffic Act there is—

The Hon. J.J. Snelling interjecting:

Mr GOLDSWORTHY: Okay, that's good. That clarifies that issue. Perhaps the word will get around to these car clubs that run these activities and so on that, if you do this, you could go to gaol. I am still not convinced that for two lads at the stop lights it will necessarily have an educative effect, but we are happy to support the government's intention and see how it works. We are not going to stand in the way of the intention of the government in relation to this issue. I am not convinced on that point, but we will see.

As I said, we are looking at creating a new offence, that is street racing, and, as the minister pointed out, it is an indictable offence. Being an indictable offence, what court would hear that? I do not know whether indictable offences are heard in the Magistrates Court or the District Court. I think they are heard in the Supreme Court. When the minister closes the debate, we will listen to what he has to say about that. I am not a lawyer, as you know, so I do not—

The Hon. J.J. Snelling: You're a banker.

Mr GOLDSWORTHY: I was a banker in a previous career.

The Hon. J.J. Snelling: High finance.

Mr GOLDSWORTHY: I don't know.

The Hon. J.J. Snelling interjecting:

Mr GOLDSWORTHY: I think you are exaggerating that somewhat.

Members interjecting:

Mr GOLDSWORTHY: Don't put that tag on me. If I had my way, we would not have had the global financial crisis, because much of that resulted from poor banking practices, throwing prudent and conservative banking practices and principles out the window. That is one of the reasons the GFC happened. I was regarded as a pretty prudent and conservative banker, which perhaps I am as a member of parliament.

An honourable member interjecting:

Mr GOLDSWORTHY: Nevertheless. The bill also looks at providing a defence to a charge for emergency workers. The second significant part of the bill is to provide a defence to police officers and other emergency workers should they be charged with section 19A, causing death or harm by using a vehicle (which obviously is in the Criminal Law Consolidation Act), and section 45, careless driving, or section 46, reckless and dangerous driving, under the Road Traffic Act. For example, the new provisions will provide some protection for a police officer who is charged with dangerous driving during a high-speed chase when in pursuit of a criminal in the course of their duty.

There are some exclusions in the bill, including an amendment to the South Australian Motorsport Act 1984 to exclude those specific motorsport events from this legislation. There is some detail that we need to traverse in relation to who may be found guilty of participating in a street race. New section 19AD(2) provides:

For the purposes of this section, a person participates in a street race, or in preparations for a proposed street race, if the person—

(a) is present in a motor vehicle whilst it is driven in the street race; or

(b) promotes, or assists in the promotion, of the street race or proposed street race in any way; or

(c) engages in any other conduct that assists, or is intended to assist, in the street race or proposed street race taking place.

I understand that the Hon. Ann Bressington in the other place has said that she may move some amendments to this particular part of the bill. I refer to proposed new subsection 2(a), which provides: if a person 'is present in a motor vehicle whilst it is driven in a street race'. That means everyone—this is a question the minister can answer when he wraps up the second reading—it means the driver and all the passengers. That is how it was explained at the briefing that the Attorney-General's departmental staff, the minister's staff and some of his departmental people attended. So, that means anyone in the car that is engaged in a street race.

There is a definition in the bill of a street race, which we do not have to go over; I think it is relatively clear. Anyone in a car that gets pulled up, the police can say, 'Righto, you're all done. You're all being charged. Come down to the station.' Potentially, they all will be arrested, charged and put through the courts.

I know that the Hon. Ann Bressington in the other place has some concerns with that provision. We on this side of the house are interested in listening to the debate when it goes to the other place in terms of the arguments in favour of the Hon. Ann Bressington's amendments. We are prepared to have a good hard look at that and make a determination in the other place about whether or not we support those amendments.

During the consultation phase when preparing to debate this legislation, I have gone to a range of stakeholders who have an association with road safety. There is quite a number and I will list them. We have not received a response from a great number of them, but we have the whole winter break between when we finish with the bill here and it goes to the upper house, because, obviously, they will not be debating it tomorrow as it is the last sitting day before the winter break.

We have been to the RAA, CASR, MTA, Australian Driver Training Association, Motor Accident Commission, Australasian College of Road Safety, Adelaide Hills Community Road Safety Group, Motorcycle Riders Association (MRA), Law Society, the Australian Lawyers Alliance, and a number of others. We received a handful of replies. Between the houses I will be interested to receive communication and correspondence from those organisations we have consulted with and garner their view in relation to the issue, particularly concerning the defence to a charge for emergency workers and the outlining in the bill of anybody who is in the vehicle.

The Hon. J.J. Snelling interjecting:

Mr GOLDSWORTHY: I am just reading from the bill. It says 'a person who participates in a street race if the person is present in the vehicle', so it is anybody in the vehicle. I will be interested to receive feedback on that from those organisations.

The Hon. J.J. Snelling: What is your issue with the emergency workers?

Mr GOLDSWORTHY: We are just keen on getting more information from the key stakeholders. We do not necessarily have any entrenched opposition to it, obviously, because I said at the beginning of my comments that it is our intention to support the intent of the bill. We did have some concerns that maybe the wording was a little too broad and that the wording could be tightened up a bit in relation to that. We will consider that between the houses as well.

In relation to the passengers being in the vehicle (and I am sure the minister would be aware of this), that issue is actually already covered, I think, in the Criminal Law Consolidation Act. Part 7B, under the heading Accessories, section 267—Aiding and abetting, provides:

A person who aids, abets, counsels or procures the commission of an offence is liable to be prosecuted and punished as a principal offender.

So if somebody is a passenger in the vehicle and is aiding and abetting the street race, then they are captured under the existing law. I will be interested to hear the minister's comments in relation to that question because it is already covered in the act in which the minister wants to place this new provision. Basically, that is the outline of the bill.

There are a couple of other points I want to raise in the context of the debate. The minister said, in the radio interview that afternoon, that the government had not undertaken any consultation. The minister can correct that, but it was my clear memory that when the interviewer—the radio journalist—asked the minister who he had spoken to in relation to the bill, what consultation he had done and what they thought about it, I got the strong impression that the minister and the government department had not necessarily gone out to those key stakeholder bodies to consult, in particular those I listed—the MTA, the Motor Accident Commission, RAA, the Centre for Automotive Safety Research (CASR), and the driver trainers association. I include all those bodies that have a firsthand relationship with road safety issues. If that is incorrect, I would be interested to hear the explanation and the answer from the minister.

I admit, absolutely shocking circumstances took place when those two cars were, from memory, drag racing up Magill Road. There was a collision and one driver was extremely seriously injured—I think that he had to have his legs amputated—and the other driver was killed. Then, in the western suburbs more recently, two cars were racing each other. They did not collide with each other but with another vehicle, and there was a fatality as a consequence of that.

I do not have any particular issue in terms of ramping up the law and increasing the penalties in relation to street racing, but I do have some issues about how the government is portraying this as a new initiative. I did make the comment, in some earlier statements, that I thought that it was a form of window-dressing. I was going from some pretty scant detail at that time. I had a copy of the minister's press release, and only about three lines in that press release gave any idea of what the government was trying to achieve.

I will be interested to learn from the minister what consultation has taken place. As I said, we are waiting for some feedback from those key stakeholders in relation to our consultation process. We will assess that feedback from the key stakeholders between the houses and give due consideration to the debate which, obviously, I understand, will come forward from the Hon. Ann Bressington, and also in relation to the defence for emergency workers, which, obviously, includes the police.

I have spoken to a fairly senior police officer in relation to the procedures and protocols when a police pursuit is undertaken. It is my understanding that the officers in the patrol car must radio back to a senior officer, a sergeant, I think. The member for Little Para would probably have an understanding of this, having been a police officer in a previous career, that there is constant radio contact from the patrol car back to senior officers when a police pursuit is being carried out. So, there is some 'control', if you like, some management from more senior officers in relation to how that pursuit is undertaken.

We do have an understanding on this side of the house of how that takes place. As I said, we contacted a senior police officer, and that police officer was able to explain the practices, protocols and procedures when a police pursuit is undertaken. I do not know whether we necessarily need to delay the house any further. I think that, in relation to my contribution, and as I said at the outset, we support the intent of the bill but flag those couple of issues that will be considered between the houses and when the bill gets to the other place.

Mrs VLAHOS (Taylor) (12:39): I rise to support the bill. One of the most common complaints that I receive in my office—having an electorate with the outer suburbs and agricultural and horticultural lands—is the ability for people to commit drag racing offences around there. I certainly commend the government for its attempt to make sure that the seriousness of these offences is recognised with this bill.

It is particularly prevalent in the suburbs of Two Wells, Virginia and Lewiston. I often have information about the issues brought to my office which I then have to relay to the local police stations. It is not only disruptive to the local farmers, who may be coming along these roads in early twilight hours or late in the evening with animals or farm implements that are particularly dangerous on the edge of the roads if someone spins out and hits them. It is also disruptive to people who have animal husbandry and housing in rural living areas, that their children wake up frightened when they hear these drag racing offences occurring in their neighbourhood.

One of the things that I would like to raise about the matter is that it does actually ensure that drivers taking part in legitimate motorsports events—which are very popular in the northern suburbs of Adelaide and which are done within a declared area—are exempt from this bill during the declared period when the motorsport activities take place. They will be safeguarded from any penalties, and I think that is a very good and worthy thing, considering the popularity of the motorplex issue in my electorate.

I also think that the emergency services and police workers need to be protected from prosecution. This bill recognises that and allows them to carry out their duties as emergency workers and people of that nature in attendance to make sure that they employ their authority reasonably in the circumstances they need to do that. So, I commend the bill and seek the rest of the house's support, to ensure that the people in the northern suburbs are adequately protected from people who are intending to flout the law, as they currently do.

Mr PENGILLY (Finniss) (12:41): The opposition will, obviously, be supporting the bill. The question I raise is that here we are, once again, waving a big stick and threatening all sorts of penalties, but we are not actually getting to the root cause of this sort of stuff. Earlier this year in my electorate, we had an appalling accident at Mount Compass in which three young men were killed. They were not drag racing, but they were, I think, going at a reasonably rapid rate of knots when the accident occurred.

I have a constituent, Mr Bill Jerram, who lives at Mount Compass. Mr Jerram lost his daughter I think 15 years ago now—do not hold me to that; it was around about that time. He has been passionate about road safety ever since—very, very passionate—and he has come up with some mechanisms to introduce into schools to educate children. Now, you cannot take testosterone out of boys. It just does not work; you cannot do it. You are looking at someone here who had his fair share of drag racing in the past, in his younger days, and they are going to be doing it in another 50 years. You are not going to stop that.

By increasing penalties and threatening gaol and whatnot, you may deter some, but you are not going to deter all of them. You are not going to deter the ones that have had a belly full of grog, or are on drugs or whatever. You are not going to deter them when they are out in the middle of nowhere and have got nothing else to do apart from have a race up the road. The point that I am trying to make is that Mr Jerram (and I have forwarded information; I am not sure whether it is to the former or current minister) is dead keen to start educating children in their early years and in their teen years at school in how to drive, using computer programs. I think there is an enormous amount of merit in it.

It could well be—and out of small ideas come great solutions, sometimes—that this legislation will stop some. It could well be that an education process through schools will stop some of these appalling accidents and people getting killed and maimed. It could well be, but we have to look at a broadbrush approach. I have got two road safety groups in my electorate—the Fleurieu Road Safety Group and the KI Road Safety Group—which, with the involvement of the police, go to the schools and talk to young people. You cannot legislate against stupidity and madness—we all know that. You cannot do that.

I am sure the government and the minister have brought this legislation in with the right intent, but we have to get to the core of what the problem is, and this is just not enough on its own. I am more than happy to bring Mr Jerram along for a meeting with the minister to sit down and talk about his ideas. He has tried to promote it through the education department and seemingly has got nowhere; they do not want to know about it. Here is this great monolithic education department that consumes copious amounts of the state budget and they just did not want to know about it. They have no money for anything unless it comes to doing something they want to do.

I say to the minister that, yes, we will support the legislation but we have to go further than that and we have to do far more than just wave a big stick, threaten people with increasing fines or threaten them with gaol terms because, while we are here, we have a responsibility to do what we can to try to stop it. We are not going to stop it but this may help.

Mr KENYON (Newland) (12:46): I noted the discussion of the member for Kavel and his questioning of the movement to the criminal code, and in the interchange between him and the minister it was established that he needed to do this so that people could be sent to gaol for committing these offences of street racing. A number of speakers from the opposition on this bill today—and on a bill yesterday we were discussing in the house—were talking about how it is not going to be a deterrent. It came up again today, of course.

There is certainly an intent of some deterrent. Part of the deterrent that comes from putting things in the criminal code is the punishment—actually sending someone to gaol or providing massive fines or whatever it might be. The person committing the offence is educated but you would hope that an education would extend a little more broadly to their friends, family and associates and so on who may also see that one of the consequences of this sort of behaviour is that you can go to gaol. Not only that, there has to be an element of punishment in these things.

It is a right and proper function of the justice system that people are punished for crimes that they commit and there is an element of deterrence, an element of education, and there is an element of punishment. That is no bad thing. Simply saying that this is not going to be a deterrent to people street racing—well, that is true. Certainly not everybody is going to stop street racing simply because you can go to gaol for street racing, but I would be surprised if there was a crime in the entire criminal code that had not been breached at some point in our history. The whole point is that we do not introduce these laws just to deter people and then expect that every law on our books will prevent wrong behaviour happening. It does not work like that, so there has to be an element of punishment to it, and that is part of this bill.

It is something I support because it is a very serious offence with very serious consequences, as a number of speakers have already outlined. It is often committed by people who have set themselves up to be in that position, who have modified their vehicles so that they go faster, accelerate more quickly and so that they handle and stop better. There is an enormous amount of money that goes into modifying vehicles, and it is not surprising that these people who have spent all this time and money modifying their vehicles might want to try it out at some point. Another element of the bill that I am quite pleased to see is the aggravated circumstances that are introduced as part of this bill, allowing the court to consider the offence more serious if certain criteria are met such as a knowledge of the risks or an increase in the risk by that behaviour.

Most people can reasonably be expected to know that the faster you go the more dangerous it is. Also, with regard to the weather, knowing the circumstances you are driving in, most people would accept. In fact, some drivers would know because they would like to take advantage of the situation that when the roads are wet they are more slippery, there is less grip and you are more likely to either lose control of the vehicle or lose grip. There may be some semblance of control as you move sideways around a corner, but there is certainly not as much grip as when it is dry. The very knowledge that there are less safe driving conditions aggravates the offence, and I think that is reasonable.

A further cause of aggravation is passengers in the car. That is another good thing, because most of us at some point would remember, while growing up, that with four or five boys in a car there can be a lot of pressure on the driver to go faster or to do more stupid things. So, that is another reason why I think it is important that passengers are included in these provisions because often they contribute to the situation. Sometimes they do not, and there is a defence included in the bill in the event that you have requested a driver to slow down or not undertake street racing, but where the passengers have encouraged a driver to involve himself in this behaviour it is right and proper that passengers are included in the penalties.

Finally, the other part of the aggravated offence is the defective vehicle, including modifications to it. I suspect that most people who have modifications made to their vehicle do so with the intent of making them go faster or to increase performance or handling, knowing that they will then drive faster as a result of the modifications. Lower profile tyres, chips or chipping vehicles and bigger exhausts all contribute to the culture of speed, and it is fitting that that is included as part of the circumstances surrounding aggravated offences.

I am pleased to see an exemption for emergency service workers. It is important that any lingering worry or doubt that may have been hanging around the police force in particular but also fire and ambulance vehicles is removed. They should not have to worry about criminal sanctions simply because they are doing their job. I am very pleased to see that included. I am also pleased to see that there is a protection for genuine motor racing, where an attempt is made to improve safety, where innocent people are much more unlikely to be affected as a result of the behaviour and where all participants go in well trained and fully cognisant of the risks.

While I do not expect that this will stamp out street racing, I would be surprised if it did not reduce it. More importantly, I am pleased to see that it is being treated with the seriousness it deserves and that there will be an element of punishment for those people who undertake this behaviour and put not only themselves but also non-participants and innocent people—people who are completely unaware of what is going on—in danger of injury or of losing their lives. I am pleased to support the bill and I commend it to the house.

Mr PEDERICK (Hammond) (12:54): In rising, I note the comments made by the member for Kavel and the member for Finniss in that we do support the Statutes Amendment (Driving Offences) Bill 2010, although we will certainly be looking at some factors of it, possibly between the houses and in the other place, to make sure that we get the best result we can with this bill before it is made into an act.

This bill was introduced on 24 June 2010. The large inclusion in this bill is the new section 19AD—Street Racing, into the Criminal Law Consolidation Act, making the offence of street racing a criminal indictable offence. Importantly, it also lists street racing as an aggravated offence under the Criminal Law Consolidation Act.

Under the current law, section 19A of the Criminal Law Consolidation Act—Causing Death or Harm by Dangerous Use of a Motor Vehicle or Vessel, the maximum penalties are: for a first offence causing death, 15 years' gaol and 10 years' loss of licence and, for an aggravated offence or subsequent offence, life imprisonment and 10 years' loss of licence; for a first offence causing serious harm, 15 years' gaol and 10 years' loss of licence and, for an aggravated offence or subsequent office, life imprisonment or 10 years' loss of licence; for a first offence causing harm, five years' gaol and one year's loss of licence and, for an aggravated offence or subsequent offence, seven years' gaol with three years' loss of licence imposed with that offence.

The new section 19AD—Street Racing, provides:

(1) A person who participates in a street race, or in preparations for a proposed street race, is guilty of an offence.

The maximum penalties provided are: (a) for a first offence, three years' gaol with one year's loss of licence; and (b) for a first offence that is deemed to be an aggravated offence or for any subsequent offence, five years' gaol and three years' loss of licence.

There is also a note under section 5AA(1c)(a)—Aggravated Offences, that they were driving in the circumstances of a heightened risk, which is defined as: (1) between sunset and sunrise (obviously in the dark); (2) at a time of poor traction (raining is an example); or (3) at a time of poor visibility, which obviously includes fog, and we have had some heavy fogs recently in Adelaide and close to Adelaide.

There is also subsection (1c)(b), knowing that there were one or more passengers in the vehicle, and (1c)(c), knowing that the vehicle had a major defect, which is defined as: 'a motor vehicle has a major defect if use of the motor vehicle constitutes a serious risk to the safety of any person.' There are also subsequent offences that could apply. With that, I seek leave to continue my remarks.

Leave granted: debate adjourned.

[Sitting suspended from 12:59 to 14:00]