STATUTES AMENDMENT (DANGEROUS DRIVING) BILL

Second Reading

Adjourned debate on second reading.

(Continued from 4 July 2013.)

Mr WHETSTONE (Chaffey) (18:24): I rise to conclude my contribution to the Statutes Amendment (Dangerous Driving) Bill. Getting back on track—and it has been some time—I do have some concerns with some pastimes, such as racing, that go on, particularly on the River Murray. That will incorporate waterski racing, when we have boats that are racing up and down the river, but they have to comply with the river corridor. In that river corridor, during competing, in a high river, for instance, that could be deemed as that water level being on private property, because we have a 21-foot corridor from pool level to private property. We have had instances where we have seen high rivers, rivers that are being purged, and all of a sudden those rivers will rise significantly. There are concerns there with how that river corridor is determined.

Also, there is another form of, I guess, a dangerous sport up in the Riverland, and that is known as creek racing. Creek racing is done in a small vessel, in a small aluminium boat, and it participates on the river, but it also participates in creeks. Again, some of that will be on crown land and some of that will be on private property. I guess there are some concerns there. Looking through the bill, there are some provisions there for vessels, but I do not see any provision there for the interpretation of what is crown land, what is private land and how that is determined. Obviously, the river is a moving beast with levels that rise and fall with pool weir manipulation.

I guess I have concerns as to whether this bill leaves things to interpretation when analysing whether you are on private property or crown land through one mechanism or another. Also, there has been some concern with any creek racing if there is marine and harbours on the river and they see someone who is acting in an unlawful way or is a matter of danger to the public. How will they interpret a marine and harbours boat chasing another boat up the river or chasing a boat out of the river into a creek? Again, the interpretation is, are they on private property, are they on crown land, are they in the main channel? I think they will be questions that perhaps we will ask during committee, so I will leave my contribution there.

Mr PEDERICK (Hammond) (18:27): I rise today to make a contribution in regards to the Statutes Amendment (Dangerous Driving) Bill 2013. I note that the Attorney-General introduced this bill in this house on 15 May this year. Basically, the structure of this bill is to amend the Criminal Law Consolidation Act and also the Road Traffic Act, in regards to the Criminal Law Consolidation Act 1935, section 19A—'Causing death or harm by use of vehicle or vessel' and section 19AC—'Dangerous driving to escape police pursuit etc', and in regards to the Road Traffic Act 1961, section 46—'Reckless and dangerous driving'.

In instances where charges are made under these acts, the prosecution is currently required to prove that the accused drove in a manner dangerous to the public. The government have put the position that the courts have interpreted the phrase too narrowly, and as such the 'public' is not read to encompass a wide range of persons. What this bill seeks to do is amend the respective sections to widen the definition to include any person.

It is noted that in the 2008 case of R v Palmer, what happened in this case is the accused was charged with causing death by dangerous driving as in section 19A of the Criminal Law Consolidation Act, and what was alleged here is that the accused performed dangerous manoeuvres on private property, and the vehicle fell onto its side and crushed a passenger's skull. In regard to the direction by the judge to the jury, the judge directed the jury to return not guilty verdicts for the following reasons:

the relationship of friendship between the three passengers and the driver negated the view that the passengers were to be regarded as members of the public;

the activities in question took place on private property and away from any road;

the accused and his three passengers were all knowingly engaged in a form of skylarking;

the four willingly got into the vehicle in question together for the purpose of amusing themselves by a particular and somewhat dangerous form of recreational activity directly connected with the driving of the vehicle in tight circles with the steering wheel on full lock and the accelerator applied;

the activity constituted a danger to all four of them but to nobody else; and also

in circumstances where it is proper to regard the activity as part of a joint escapade on the part of the accused and the passengers—they being the only persons endangered by the activity—then it was not proper to characterise the passengers as 'the public'.

The judge also commented that the conclusion may have been different had 19A read 'driving in a manner dangerous to any other person' rather than 'a manner dangerous to the public', and this is the nub of this bill in regard to these two acts.

Also, the judge applied the reasoning of the New South Wales Court of Appeal in R v S which had a similar factual scenario. After the Court of Appeal handed down the decision in R vs S, the New South Wales parliament amended its legislation in similar terms to the current bill.

In R v Breuker, the charge was laid when an individual died after either falling or jumping off the back of the accused's vehicle whilst it was moving, landing awkwardly and fracturing their skull. The event occurred on a fenced-off netball court where people were setting up for a ticketed event, but it is noted that members of the public had not started to arrive at that event at that time.

In this case the judge considered the case of R v Palmer and applied the reasoning of the New South Wales Court of Appeal in R v S. They noted Chief Justice Gleeson's comments in R v S that there can be forms of relationship between the accused and the deceased which negate the conclusion that the passenger is to be regarded as a member of the public. In that case, the accused, the passenger and victim were considered to be engaged in skylarking, engaging in a risky activity and a joint escapade and, as such, it was improper to characterise the passengers as 'the public'.

In R v Breuker the judge highlighted that other relationships, on the facts of the case, could negate the deceased from being considered a member of the public. The judge considered that the fact that the deceased got onto the back of the car meant he was no longer a member of the public, stating:

I see no reason in principle why the accused should be in a worse position if the deceased voluntarily and without his agreement puts himself in an inherently dangerous position than if they jointly agreed to that course of action. It is not the presence or otherwise of an agreement between the accused and the deceased which characterises the deceased as a member of the public. It is the characterisation of the relationship that determines the issue.

The trial judge again highlighted that the conclusion may have been different had section 19A been differently worded. In regard to motor sport, section 25 of the South Australian Motor Sport Act 1984 provides for the non-application of certain laws to areas declared by the responsible minister to be areas for a motorsport event under the motorsport act.

Section 25(1a) provides that respective sections of the Criminal Law Consolidation Act and the Road Traffic Act, which are to be amended by the bill, do not apply in relation to 'a vehicle or its driver while the vehicle is being driven in a motor sport event within the declared area and during the declared period for the event'.

The Clipsal 500 (and its predecessor, the Sensational Adelaide 500) is a motorsport event which attracts a declaration under the motorsport act. Since 1999, no other motorsport events, except the 1999 Le Mans, have had the privilege of being conducted within a declared area and as such the provisions of the Road Traffic Act and the Criminal Law Consolidation Act have applied.

It is to be noted that apart from what other car clubs own land in this state, the Sporting Car Club of South Australia owns and operates the Collingrove Hillclimb in the Barossa Valley and holds races at the Mallala Motor Sport Park, and these are both private venues. What the bill does not do is bring the relevant law onto private property. The three identified offences can already be applied to dangerous driving on private property. The case seeks to avoid the relationship of the parties to affect the application of the charge. The case indicates that it is the relationship between the accused and their actions and the deceased, which is usually why the courts have interpreted the provision narrowly.

With regard to the bill, the effect of it would be to widen the scope of the offence so that it would be likely to apply where an accident occurs on a private motorway, such as the Collingrove Hillclimb, even where the deceased consents to the activity. Whilst any accident is tragic, drivers and others who engage in motor sports actively consent to do so and I believe that one should not be held criminally liable for an adverse outcome where a risk is willingly taken on.

With regard to the bill and actions on private property, what it looks like the bill will do is reduce the individual's personal freedoms. What could happen here is there could be criminal liability imposed where it is not justified. I believe the member for Bragg will probably echo these statements in her contribution, but we in the opposition are certainly committed to road safety and hold that those who flout the law and drive with disregard for the safety of others need to be held to account.

With regard to section 5 of the Road Traffic Act, that act applies only to public roads. The bill proposes to widen the class of persons from the public to any person, and it appears that this would widen the offence to capture instances where people decide to engage in dangerous activity on our roads, overcoming the relationship characterisation as previously identified by the courts.

Certainly, with regard to the Sporting Car Club of South Australia, they have raised concerns that the bill will have serious and unintended ramifications on motor sport in South Australia. As I said in my comments earlier, they are concerned that this could place criminal liability on people who are involved in motor sports events, even those which are held on private property.

I want to make some other comments about other recreational venues in my electorate, or very closely neighbouring my electorate. We have four-wheel drive clubs that come down to the electorate. We have motor bike clubs and we have quad bike clubs that run events. The four-wheel drivers come out to a private property at Peake. The Peake sandhills are quite famous amongst the four-wheel drivers in this state and probably further away. There are also private properties at Geranium that clubs can use for learning their skills in managing four-wheel drive vehicles.

For many people, and this covers a lot of people who reside in urban areas and do not have the opportunity, if they own a four-wheel drive, to use it to its full extent very often, this gives them the opportunity to use those vehicles. There is a property, Bushy Seidel's property near Coonalpyn, it is actually near the Ngarkat national park, where many four-wheel drive clubs and motor bike groups, whether they be two-wheel motor bike groups or quad bike groups, come out for time trials. I must say that, when I get the opportunity, which is not as often as I would like, I take my two young boys out there with our motor bikes and have a bit of fun for a couple of days, combined with some camping.

I acknowledge that I am aware of staffers from Parliament House and previous staffers from Parliament House who have enjoyed activities on the Seidel property near Coonalpyn. I would hate to think that this law will impose any extra criminal liability on people who engage in these events and their recreation. Will it be the simple fact that on this property, which is somewhere close to 30 kilometres off a main road, off the Dukes Highway, the next thing we will see is the police patrolling this private property to see whether they can lay charges as a result of the amendments to these two acts? I would hate to think that would be the case.

It also concerns me how much ingress the police could have on private property. Certainly, we are well aware that we do need to act safely and we do not want to see people getting hurt, whether it is on private property or on our roads. I think there is a fine line of civil liberties in this case and it would be a real shame if passing this legislation impacted on activities that are currently enjoyed in my electorate and, certainly, at other events—sandhill racing events, or buggy racing at Parilla. It would be a shame to see these events curtailed because people are worried about the potential legal outcomes of sports or recreational pursuits that they enjoy.

Also, as I indicated earlier, I am very concerned about any implications it could have for farms. For instance, kids drive motor vehicles on farms from an early age. It is quite a kick, and I did it when I was about 10 years old. When I get the odd opportunity to do a couple of minor jobs on the farm, I send out my two boys with the car and trailer so they can take out some tools because I am taking out a tractor to install a trough, or something. This is in relation to 10-year-old children driving vehicles, and I am certainly concerned about what could happen here if there was a terrible tragedy. I would hate to see it but farm accidents do happen, sadly. Apart from families having to put up with a terrible tragedy if something did happen where a couple of, usually, young siblings had an accident, they may have to put up with the extra duress of one of those siblings being charged with a death by dangerous driving charge.

There is a lot I would like to hear from the Attorney in relation to these questions and, certainly, I echo the points made by the member for Chaffey with regard to river traffic, with my electorate covering most of the bottom end of the river. What would be the position there if this bill becomes law? I urge the Attorney to appease my concerns and, if it is put into place as a law, I hope it can be done in a proper way so that we do not impinge heavily on people's civil liberties and their rights to operate their farms and to have their recreational pursuits.

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Planning, Minister for Industrial Relations, Minister for Business Services and Consumers) (18:43): I thank all of the people who have made a contribution to this debate. I particularly understand that those members who have spoken from the perspective of their rural constituencies are doing so out of a genuine regard for their constituents and are trying to make sure that legitimate and reasonable pursuits are able to continue. I get that, and I can assure the member for Hammond and the member for Chaffey that it is not my intention or the government's intention to prevent people having fun or recreational activity on private property, or anything of that nature.

I just want to make a couple of points, and it might help, particularly, the member for Hammond, because I am impressed by the fact that the member for Hammond clearly had taken some time to understand the nature of the issue. I want to make something fairly clear to everybody. Let us leave aside this issue of the public or not the public. Let us leave that to one side for the moment—and bear in mind that is the only thing we are adjusting here. What does somebody have to do before they are captured by the existing legislation? I am looking at section 19A, for example, and there are elements to this.

The first element is that they have to be driving a vehicle or operating a vessel—step one. Secondly, they have to be doing it in a particular manner, not any manner, but a very particular manner, and that particular manner is either culpably negligent—and culpably negligent implies a lot more than just not perfect, a lot more than not perfect; it means basically with so little regard for any appreciable risk that it is culpable—or recklessly, or at a speed, or in a manner dangerous.

We will leave that to one side for a minute. All of those things together—the driver has got to be culpably negligent, reckless or at a speed in a manner dangerous—and by reason of that negligence or recklessness or other conduct it causes the death of another person. So, you not only have to be the driver. The prosecution not only has to prove that your behaviour is culpably negligent, reckless, or at a speed or a manner dangerous, but they also have to prove a causal relationship between that behaviour and the death, if you get my point.

The mere fact that death happened at the same time or in the accident does not in and of itself mean that you have made out the second bit. Am I making that too confusing? I will just read it again. You drive or operate a vehicle or a vessel in a culpably negligent manner, recklessly or at a speed or in a manner dangerous, and by that culpable negligence, by that recklessness, by that other conduct, you cause the death of another person.

For example, the way I read that is that you are hooning around with a couple of mates in a ute and one of your mates in the back of the ute decides they are going to be a complete idiot and jump off the ute, and you do not even know anything about it. It might well be that the prosecutor could not prove that, by reason of what you were doing, which was driving, albeit negligently, you caused the death of that person, because their behaviour might have caused their death, if you see what I mean. It might be a completely different thing if you are doing doughnuts and you fling them out of the car. That is the first point.

The second point is that by changing it from 'the public' what we are trying to do, as the member for Hammond quite well explained in his contribution, is overcome a legal decision that says that somebody that is sitting next to you as your passenger is not a member of the public, basically, which is really bizarre. Why should it be that if you picked up a hitchhiker and you drove in a crazy way and they get killed you get pinged, but if you have got your best mate next to you and you drive in a crazy way and they get killed you cannot get pinged? That just does not make sense, because arguably the hitchhiker is a member of the public and your best mate is not.

As to the question about what happens if it is on private property, I understand where that is going. I understand that, but can I ask a member the Hammond and the others this question. Farms are notorious for having dangerous machinery. It might be a harvesting machine, or it might be something that you wrap up the bales of hay in, or any number of things, or it might be the forklift that is used to lift things up with to put it in the back of the truck, and all of that occurs on private property.

I do not think any person in this room would say that because the machine is being operated on private property you should not be required to fence the machine or you should not be required to have a kill button on the machine, or you should not be required to do any number of things which add to the safety of that machine simply because it is on private property.

All I am trying to achieve with this is to say that, just as with farm machinery, the mere fact it is on private property does not mean you do not need to have the safety equipment on that machine to protect people who might be using that machine properly. What we are saying is likewise, if you are driving a vehicle on private property and you are stepping so far out of the acceptable behaviour for the use of that vehicle and you kill somebody, even if it is your best mate, why should you get off? Why should you not be charged?

If you think about it, if you are going to say that, for some reason, doing that on private property should mean you do not get pinched, how do you accept all of these rules about machinery that make people who have unguarded machinery, etc., culpable, even if it is on private property? Do you see what I mean? There is an inconsistency between that.

I have never heard anyone here and I certainly do not expect anyone here today to ever say to me that they do not think machinery on private property should be safe, should have kill buttons, and should have fencing and all these other things that it has to have for safety reasons. All we are saying here is just as a machine should be safe on private property and people should operate the machine safely on private property and not do crazy things with the machine, a car or a boat is just another machine and the operator of that machine should not behave in a manner that is culpably negligent, reckless or at speed or in a manner that is really, really dangerous to another person—that is all we are saying. That is a relatively high bar and, I make the point again, that behaviour must be the cause of the death.

I say again that I understand why a number of members have been concerned about this matter. I understand why the member for Chaffey has been concerned about it and I understand why the member for Hammond has been concerned about it, but I can assure all members that all we are trying to do is counteract the effect of that judgement and, in effect, fix up the anomaly when it happens to be a couple of your mates in the car and you behave like a lunatic driving the car.

The thing about this is what if you are absolutely full of grog, you get a couple of mates in the car, you go driving around the place and you kill one or two of them? Who would say that that person should not be prosecuted for causing death by dangerous driving? Who would say that, even if it was on a farm property that was nowhere near a public road?

More particularly, why should it be that if you get completely full and drive around on a farm and kill one of your mates, they are not a member of the public, but if some bloke you have never met before is walking down the street and you say, 'I will give you a lift to town', and you drive like a lunatic with him in the car and he gets killed, you get pinched? That does not make sense to me.

So, that is all we are trying to do. As I said, I think the bar is reasonably high. I can assure the members, particularly those who have spoken on this debate, that this is not intended to muck around with people who are doing responsible work on farms or people in Chaffey who are having responsible recreation with water sports. It is not aiming at those people: it is aiming at people who are culpably negligent.

It is aiming at the sort of clown who gets in a boat and drives up and down at high speed where there are people swimming and he could kill people—those sort of idiots—or the bloke who gets in charge of a boat when he is full of gas and crashes into something. They are the people we are after with this. We are not interested in the person who is just unlucky and something goes wrong. Accidents do happen, but that is a long way short of culpable negligence. Hopefully, that addresses some of the concerns that have been raised.

Bill read a second time.

Committee Stage

In committee.

Clauses 1 to 3 passed.

Clause 4.

Ms CHAPMAN: Clause 4 has been spoken to at length in the second reading and now, comprehensively, and almost persuading me to go the other way in rebuttal by the minister but, nevertheless, it just scrapes in and I am still with him in support of the matter which took up almost the whole of both of those contributions. I will just say for the record that if the minister were to assume that he would compare the obligation to extend criminal liability for offences to that which applies to occupational health and safety obligations then he will start to lose me big time.

It is simply not comparable and it should not have been raised as an example because we do not accept it. We do accept that there could be circumstances where a member of the public, like a passenger in a motor vehicle on private property, may be exposed to the reckless indifference of the driver who in those circumstances ought to be able to face prosecution. That is what we accept, so do not gild the lily for us because then you start to lose us.

The Hon. J.R. RAU: I am suitably chastened.

Ms CHAPMAN: With the provision that we are amending for death by dangerous driving of a motor vehicle or a vessel, I turn to the principal act, because it is 19A that we are amending here. Obviously, there are three sets of categories which do not change—and I paraphrase this—whether it is death, serious harm or just harm. That provision relates to death or harm with the use of a vehicle or a vessel. I notice the definition clauses provide for a motor vehicle and a motor vessel, and there has been some contribution to the debate already in respect of river sports, which I will come to shortly.

The CHAIR: Sorry to interrupt, but I remind members of the time, and the minister should move that progress be reported.

Ms CHAPMAN: Do you want me to ask the question so that it will at least be on the record?

The CHAIR: Yes.

Ms CHAPMAN: If the minister would consider: is this then to apply in the same way as if there were a passenger in a speedboat on the River Murray, not engaged in a formal sport, and is this to cover the same skylarking or hoon driving that would apply on water as it would on land? If you would like to come back to me with an answer that would be good.

The Hon. J.R. RAU: I will get back to the honourable member.

Progress reported; committee to sit again.

At 18:59 the house adjourned until Wednesday 11 September 2013 at 11:00.