Statutes Amendment (Serious Vehicle and Vessel Offences) Bill

Second Reading

The Hon. J.K. SZAKACS (Cheltenham—Minister for Police, Emergency Services and Correctional Services) (12:37): I move:

That this bill be now read a second time.

I rise to introduce the Statutes Amendment (Serious Vehicle and Vessel Offences) Bill 2022. This bill fulfils a commitment made by the government in the wake of the tragic death of Sophia Naismith in 2019, which highlighted a clear deficiency in the law of South Australia in relation to driving offences. Sophia Naismith lost her life at the age of 15 when she was hit by a high-powered sports car. She died at the scene of the crash.

The Naismith family were left devastated by the loss of Sophia and have been understandably frustrated and disheartened at the lack of serious penalties available to address the gravity of the crime that took Sophia’s life. The court found that the maximum penalty available when sentencing the driver was only 12 months' imprisonment and a maximum of six months' licence disqualification for aggravated driving without due care.

Sophia’s family—her parents, Pia and Luke, her sisters and the rest of her relatives—have borne a loss that is simply unimaginable. Today, I acknowledge Pia's presence here in the chamber and I acknowledge Luke, who is unable to be here today. I wish to express my admiration for their grace in the face of every parent’s worst nightmare. It is a loss borne by too many families in South Australia and we as a government must do what we can to prevent another family going through the same tragedy.

The need for legislative change has been echoed by voices across our community. The Commissioner for Victims’ Rights has strongly advocated for changes in line with community expectations on behalf of the many families who have endured similar tragedies and whose loss has been exacerbated by the inadequacy of the available penalties. Current laws do not sufficiently cater for the range of circumstances that can lead to the loss of life caused by driving. In August 2022, in response to the clear need for reform the Premier, the Hon. Peter Malinauskas, announced that our government would:

1. Make changes to the Criminal Law Consolidation Act 1935 concerning a new offence or other amendments to address driving-related deaths;

2. Strengthen laws banning drivers accused of killing a person from holding a licence until their case is resolved;

3. Ban the disabling of traction control in high-powered vehicles; and

4. Introduce a new licensing scheme for motorists who want to drive elite, high-powered super sports cars.

The government has heard the pleas of Sophia's family and those of other families devastated in similar circumstances. We have heard those pleas and commend the families for their bravery and advocacy in championing changes to the law to see that justice is done. This bill implements the government's commitment by:

creating a new indictable offence of causing death or serious harm by careless use of a vehicle or vessel in the Criminal Law Consolidation Act 1935 to bridge the gap between maximum penalties for existing driving offences;

empowering police to immediately suspend or disqualify a person from driving if they are charged with or reasonably believed to have committed the new offence or other serious driving offences and closing a loophole in the operation of the scheme; and

creating a new offence in the Road Traffic Act 1961, prohibiting the driver of an ultra high-powered vehicle from disabling automated intervention systems, which implements the government's commitment to ban the disabling of traction control in high-powered vehicles.

The government's commitment to introduce a new licensing scheme for elite, high-powered super sports cars is also being carried through but is being progressed separately from this bill, as it involves changes to regulations. This package of reform was developed with the support of a cross-government working group and, in relation to the licensing scheme, in consultation with industry stakeholders.

I turn now to the details of this bill. This bill inserts a new mid-tier offence of causing death or serious harm by careless use of a vehicle or vessel at section 19ABA of the Criminal Law Consolidation Act 1935. The introduction of this new offence will allow for a more appropriate penalty range for serious driving conduct leading to the death or serious harm of another where the conduct has not met the higher threshold of dangerous driving.

Currently, the offence of dangerous driving causing death or serious harm in section 19A of the Criminal Law Consolidation Act carries a maximum penalty of 15 years' imprisonment for a basic offence or life imprisonment for an aggravated or subsequent offence, in addition to a licence disqualification for at least 10 years.

However, when the threshold for dangerous driving is not met, a driver will generally face the charge of aggravated driving without due care causing death in section 45 of the Road Traffic Act 1961, which has a maximum imprisonment penalty of only 12 months and licence disqualification of at least six months. The difference between these two offences is significant and can result in disproportionate sentences for serious offending.

The new mid-tier offence introduced by the bill effectively raises the penalty for driving without due care, where a person dies or is seriously harmed, from 12 months' imprisonment to five years' imprisonment for a basic offence and seven years' imprisonment for an aggravated offence. Similarly, the maximum licence disqualification period is also raised from six months to one year for a basic offence and three years for an aggravated offence. Separate penalties are also provided for when a person commits the new offence using a vehicle other than a motor vehicle. This would cover, for example, riding a bicycle and is consistent with the structure of penalties in other serious driving offences in the Criminal Law Consolidation Act.

To ensure these changes fit within the scheme of existing driving offences, the bill amends section 45 of the Road Traffic Act so that aggravating factors of causing death or serious harm are removed, and the aggravating factor of 'causing harm' is inserted. This ensures there are appropriate penalties for the spectrum of consequences where harm is caused by driving. The aggravating factors for new offences cover circumstances which capture what is considered the most serious 'driving without due care' behaviour. Aggravating factors include where the offender committed the offence:

knowing they were disqualified from holding or obtaining a driver’s licence;

with a prescribed blood alcohol level of .08 grams or more;

driving under the influence of alcohol or drugs;

driving or using a motor vehicle knowing it had a material defect and that material defect contributed to the commission of the offence; and

driving in contravention of section 44C of the Road Traffic Act 1961.

Material defects are those which affect the safe operation of the vehicle. They could manifest in a number of ways—for example, by neglected tyre and vehicle maintenance. The aggravating factor of driving in contravention of section 44C of the Road Traffic Act refers to a new offence, introduced by this bill at clause 13, which prohibits the driving of an ultra high-powered vehicle where an automated intervention system has been disabled.

'Ultra high-powered vehicle' is to be defined by regulation to mean a motor vehicle with a gross vehicle mass of 4.5 tonnes or less and a power-to-weight ratio of 276 kilowatts per tonne or greater. In light of developments in motor vehicle technology, particularly in relation to electric vehicles, the definition may be subject to change in the future. The offence does not cover buses, motorbikes and motor trikes but captures the most powerful vehicles, such as Bugattis, Ferraris and Lamborghinis.

The inclusion of this offence as an aggravating factor for the new mid-tier offence will capture, amongst other conduct, a driver of an ultra high-powered vehicle driving in sports mode who causes death or serious harm. Putting an ultra high-powered vehicle in sports mode or other similar mode makes the car more responsive and sensitive to input and makes the engine more powerful and more aggressive. It is not, under any circumstances, a mode that should be used in a built-up area, and we have seen the tragic consequences of those decisions.

As a standalone offence, driving an ultra high-powered vehicle with a disabled automated intervention system carries a maximum penalty of $5,000. The disabling of automated intervention systems typically occurs when a driver changes the vehicle's mode to a more agile mode, such as a sports mode or other racing-type mode. This is distinguished from simpler, non-intervening warning systems, such as reversing warnings or lane drift warnings.

The bill also appropriately provides for a defence where the person did not disable the system and did not know and could not be expected to know it was disabled. It is also a defence if it was impracticable to drive with the automated intervention system enabled, as there are some circumstances where such systems should legitimately be turned off, like when a vehicle is bogged or being driven on loose surfaces.

Turning now to other amendments in the bill, clause 9 amends section 19B of the Criminal Law Consolidation Act 1935 to provide for appropriate alternative verdict provisions for the new mid-tier offence. Clauses 4, 10 and 15 of the bill include amendments consequential to the creation of the mid-tier offence. These changes are to ensure consistency of penalties across other relevant offences, namely, 'extreme speed' in the Criminal Law Consolidation Act 1935, 'excessive speed' in the Road Traffic Act and 'careless operation of a vessel' in the Harbors and Navigation Act 1993.

In summary, the bill removes the aggravating factor of 'causing death or serious harm' from these offences and inserts 'causing harm' as a new aggravating factor. For those offences, conduct causing death or serious harm will be captured by the new mid-tier offence, which carries the appropriate higher maximum penalties.

To implement the government’s commitment to strengthen laws banning drivers accused of killing a person, clauses 7 and 8 of the bill amend the immediate licence disqualification or suspension provisions in the CLC Act to extend the circumstances in which police can issue on-the-spot licence suspensions or disqualifications. Currently, police can only issue an on-the-spot licence suspension or disqualification for the offence of extreme speed or for dangerous driving where the offence has resulted in death. Broadening circumstances, as proposed, will ensure greater safety to our community. The changes also close a current loophole which may technically allow a person to lawfully drive between the period in which one notice ends and a new notice is issued.

As I mentioned earlier, the government's commitment to introduce a new licensing scheme for elite, high-powered super sports cars is also being carried through but is being progressed separately from this bill so as to involve changes to regulation.

Clause 11 of the bill amends the Motor Vehicles Act to support the introduction of a licence class through regulations. This amendment will ensure that a new class of licence for ultra high-powered vehicles, when ready, can be implemented effectively.

With these reforms, drivers will think twice when driving on South Australian roads, and they will think twice before needlessly endangering other road users. Families will never have to go through the pain of losing a loved one on our roads. They will never know that they are the beneficiary of these reforms. Every life that these reforms save will justify this bill 100 times over. I commend the bill to the chamber, and I commend the advocacy of Sophia's family. I seek leave to insert the explanation of clauses into Hansard without my reading it.

Leave granted.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

These clauses are formal.

Part 2—Amendment of Criminal Law Consolidation Act 1935

3—Amendment of section 5AA—Aggravated offences

This clause inserts aggravating circumstances for the proposed new offence of causing death or serious harm by careless use of a vehicle or vessel and makes related amendments.

4—Amendment of section 19A—Causing death or harm by use of vehicle or vessel

This clause amends the heading of section 19A to distinguish that offence from the proposed new offence.

5—Amendment of section 19AB—Leaving accident scene etc after causing death or harm by careless use of vehicle or vessel

This clause changes some of the wording in section 19AB to better reflect the other 'without due care' offences (new 19ABA and section 45 of the Road Traffic Act 1961).

6—Insertion of section 19ABA

This clause inserts a new offence as follows:

19ABA—Causing death or serious harm by careless use of vehicle or vessel

A person who drives a vehicle or operates a vessel without due care or attention or without reasonable consideration for any person and thereby causes the death of, or serious harm to, another is guilty of an offence under this provision. The penalty for a basic offence involving a motor vehicle or motor vessel is imprisonment for 5 years and, if the offence involved a motor vehicle, disqualification from holding or obtaining a driver's licence for at least 1 year. The penalty for an aggravated offence involving a motor vehicle or motor vessel is imprisonment for 7 years and, if the offence involved the use of a motor vehicle, disqualification from holding or obtaining a driver's licence for at least 3 years. The penalty for an offence not involving a motor vehicle or motor vessel is 3 years imprisonment if the offence causes death and 2 years imprisonment of the offence causes serious harm. A defence to an offence against the section is provided for emergency workers (mirroring the defence in the current section 19A).

7—Amendment of section 19AE—Commissioner of Police to impose immediate licence disqualification or suspension following certain charges against section 19A(1)

This clause amends section 19AE to extend the application of the section to all offences against sections 19A, 19AB and 19ABA where a motor vehicle was used in the offence and the offence resulted in the death of, or serious harm to, a person.

8—Amendment of section 19AF—Power of police to impose immediate licence disqualification or suspension where offence against section 19A(1) or 19ADA(1)

This clause amends section 19AF to extend the application of the section to the offences in section 19A(3) and section 19AB.

9—Amendment of section 19B—Alternative verdicts

This clause amends the alternative verdicts provision to extend the application of the section to the offences in section 19ABA.

Part 3—Amendment of Harbors and Navigation Act 1993

10—Amendment of section 69—Careless operation of a vessel

This clause amends section 69 to replace the reference to causing death or serious harm in the provision setting out circumstances of aggravation to a reference to causing 'harm'.

Part 4—Amendment of Motor Vehicles Act 1959

11—Amendment of section 145—Regulations and fee notices

This clause clarifies that regulations made under section 145(1)(gc) or (gd) may require a person who holds a particular class of licence to obtain a different class of licence in order to drive a class of motor vehicle that they had previously been authorised to drive.

Part 5—Amendment of Road Traffic Act 1961

12—Amendment of heading to Part 3 Division 4

This clause makes a minor consequential change to a heading.

13—Insertion of section 44C

This clause inserts a new section as follows:

44C—Driving ultra high powered vehicle with disabled automated intervention system

It is an offence for a person to drive an ultra high powered vehicle on a road if an automated intervention system of the vehicle is disabled. The penalty for the offence is a fine of $5,000. Certain defences are specified.

14—Amendment of section 45—Careless driving

This clause amends section 45 to replace the reference to causing death or serious harm in the provision setting out circumstances of aggravation to a reference to causing 'harm'. This clause also provides for an exception to the mandatory imposition of a licence disqualification in aggravating circumstances if the circumstances were such that the offence caused harm to a person that was not serious harm.

15—Amendment of section 45A—Excessive speed

This clause amends section 45A to replace the reference to causing death or serious harm in the provision setting out circumstances of aggravation to a reference to causing 'harm'.

16—Amendment of section 116—Meaning of breach of light vehicle standards or maintenance requirement

This clause provides that it will be a breach of light vehicle standards or maintenance requirements if a light vehicle that is an ultra high powered vehicle is driven on a road and a mechanical fault or system error has resulted in an automated intervention system of the vehicle being disabled.

The Hon. D.J. SPEIRS (Black—Leader of the Opposition) (12:50): I rise to make some brief remarks on the Statutes Amendment (Serious Vehicle and Vessel Offences) Bill which the minister has just made a contribution towards. I want to begin by saying that I do not stand here today as the Leader of the Opposition. I do not even stand here as the local member of parliament representing Pia, Luke, Saskia and Ursula, but I stand here as someone who knows the family and has done for many years, and I stand here as someone whose heart breaks for what they have endured over the past few years since that awful night in 2019.

It is an honour to lead this party and be able to stand here today with the highest degree of bipartisan support provided from the Liberal Party to the government in seeking the efficient and as rapid as possible passage of these laws. I thank the minister and I thank the government for working alongside the community, in particular Pia and Luke and their family and friends, as they have undergone a process of working out what laws needed to be improved, what penalties needed to be strengthened to provide an appropriate level of discouragement and disincentive to do what occurred back in 2019 which resulted in such devastating consequences.

The suite of laws before us today have been worked on very carefully by the government, by people who understand how these laws should be formulated, but more importantly they have the passion and the emotion of her family affected in the most horrendous way injected into them. I think the passage of these laws will create a situation where perhaps Sophia's passing is not in vain. I think that term 'not in vain', when we talk about people who have left us, is used quite loosely sometimes, because there is so much pain, there is so much heartache, there is a legacy of so many unanswered questions, so many unfulfilled dreams. To say 'Well, we hope it's not in vain because we have passed these laws' might be cold comfort, but I do mean that.

I hope, Pia and Luke, that you and your family feel that you have been part of something here that can make it that bit more difficult for this to happen in the future so that other people do not endure the pain you have endured. I do not want to go into the details—the minister has done that very effectively in terms of outlining the range of law reforms on the table today—apart from to say very clearly, very wholeheartedly, that the opposition stands with the government, standing with you, as we seek to improve South Australia's laws in regard to this area and as we seek to honour Sophia's memory.

The Hon. V.A. TARZIA (Hartley) (12:54): I also rise to support the bill. My thoughts and prayers do go out to the Naismith family. Can I also say that we will do everything possible to make sure that we can continue to pass laws like these here to make sure that these types of incidents are never able to happen again. In government, we certainly worked hard in the past. We continue to work with the government if they present a good idea on things like laws to stop excessive speed, extreme speed, strengthening impounding laws and strengthening laws around drug driving as well, to make sure that we punish people who do horrible things on our roads.

As we speak, even this year we see that SA has had the worst road toll in over two decades. At the rate we are going, we are set to surpass last year's total road toll around the middle of the year. We all have a duty to do more because we know that road safety is everybody's responsibility—government, opposition, every single person on the road. This bill specifically addresses and aims to rectify a number of the shortfalls in some of these measures, but we do need to punish those who do the wrong thing.

We have seen a deeply tragic incident from 2019 that we have spoken about today. This bill aims to strengthen the punitive thresholds available for dangerous driving by amending the Criminal Law Consolidation Act and also amending the Motor Vehicles Act to enable the eventual introduction of new laws that seek to tighten licensing around high-powered vehicles.

Subsequent to this bill's second reading, I believe that there have also been some amendments, with some input from bodies like the Law Society. I thank the government for taking those on as well. I will talk about a couple of the bill's clauses, particularly clause 13, which amends section 45 of the Road Traffic Act to remove the aggregating factor of 'careless driving causing serious harm or death' and insert a new aggregating factor of 'careless driving causing harm', resulting in an alternative measure of mandatory licence disqualification.

An amendment has also been made to address concerns raised that the new offence prohibiting the driving of an ultra high-powered vehicle where automated systems have been disabled may inappropriately capture situations where these systems have been disabled through mechanical fault or system error, as opposed to deliberately. Obviously, we are going after people who deliberately do the wrong thing.

Road safety is paramount in bills like this. We know that driving is a privilege, but safety is a right. We have a duty to protect not only those in these vehicles but also those on the other side of the road: passengers, cyclists, people who use our footpaths and our roads. Our laws need to uphold and enforce this safety on our roads. Updating and also modifying these laws where appropriate is extremely important; it is something we certainly take very, very seriously.

It is my view, and also the view of the opposition, that what we have seen here certainly justifies a very substantial and clear need for reforming our laws. That is why we are here supporting the government and will continue to do so in a bipartisan manner for any sensible reform in this area. With those few words, I commend the bill to the house.

Ms CLANCY (Elder) (12:58): I rise today in support of the Statutes Amendment (Serious Vehicle and Vessel Offences) Bill 2022. This bill delivers another commitment our government made to the family of Sophia Naismith and the broader South Australian community in the wake of Sophia's tragic death. In 2019, Sophia and her friend Jordyn were walking along the footpath on Morphett Road, Glengowrie, near a popular local Chinese restaurant that I am sure a number of locals have gone to—I have—when they were hit by a high-powered sports car. Sophia was killed at the scene.

The news of this event shook all of us and left a family and community heartbroken. I think the greatest nightmare of any parent is the police turning up at your front door and giving you this news. Most of us can never comprehend the loss and pain that Sophia's family, her parents—sorry for my sniffling, Pia and Luke—her sisters and the rest of her relatives have felt since that night. While I wish we could build a time machine and stop this tragedy from ever happening, our government must do everything we can to make sure our children come home safe at the end of every day and night.

As if the pain and grief were not enough, Sophia's family were left feeling sickened and appalled at the suspended jail sentence handed to the driver who took their daughter's life. The driver of the vehicle proceeded to trial, where he was found not guilty of the offences of dangerous driving causing death. I seek leave to continue my remarks.

Leave granted; debate adjourned.

Sitting suspended from 13:00 to 14:00.