Legislative Council: Tuesday, May 02, 2023



Statutes Amendment (Serious Vehicle and Vessel Offences) Bill

Second Reading

Adjourned debate on second reading.

(Continued from 30 November 2022.)

The Hon. N.J. CENTOFANTI (Leader of the Opposition) (15:35): The Liberal opposition welcomes this bill as taking active, sensible measures to better protect victims and families impacted by serious car accidents, when those incidences involve an ultra high-powered vehicle. This bill, overall, aims to strengthen punitive thresholds for dangerous driving by amending the Criminal Law Consolidation Act 1935 and also amending the Motor Vehicles Act 1959 to enable the introduction of legislation that seeks to tighten licensing around high-powered cars.

We note that currently regulations make it difficult to track the number of ultra high-powered vehicle drivers, but that a shift to a special licence in 2024 will target this. A special licensing requirement for those driving ultra high-powered vehicles was initially met with scepticism by some cohorts of car enthusiasts.

Some had questions such as: is the Department for Infrastructure and Transport the best mechanism to test and award a licence of competence to a driver of an ultra high-powered vehicle? Others noted that the majority of performance brands like Ferrari, Lamborghini, Porsche, BMW M offer specialised driver training to assist customers in better understanding their new car and its capabilities and asked the question whether these should be registered courses.

The Tesla Model S Plaid is expected to do 0 to 100 km/h in 2.1 seconds, quicker than any other vehicle on the market. Should that be classified as an ultra high-powered vehicle requiring special licensing even though it weighs more than a traditional supercar? All are valid questions and concerns on licensing.

This bill has been brought to the chamber after a tragic accident involving an out-of-control V10 Lamborghini Huracan in 2019. That car knocked into 15-year-old pedestrian Sophia Naismith and she died as a result of her injuries. We understand there were over 260 registered vehicles under the classification of ultra high-powered vehicles registered in South Australia in mid-2022. Those vehicles have a power-to-weight ratio of 276 kW per tonne or higher. This number is expected to increase and it is evident that extremely powerful cars are entering the market annually as EV technology evolves.

I would not be surprised if these laws are adopted interstate, as we see more and more ultra high-powered vehicles, whatever that definition, driving on our nation's roads. In April 2023, the Law Society of South Australia provided a series of suggested amendments to the Statutes Amendment (Serious Vehicle and Vessel Offences) Bill 2022. As a consequence, a number of amendments have been made to this bill by the Attorney.

These include a minor amendment to section 19AB of the Criminal Law Consolidation Act 1935 concerning leaving the scene of an accident: after 'attention' to insert 'or without reasonable consideration for any person', rendering it consistent with the new mid-tier offence as defined in the bill. This is complemented by two further amendments to remove unnecessary references to section 19AB in the immediate loss of licence provisions.

The amendments also aim to make the definition of 'ultra high-powered vehicle' prescribed by regulations; however, keeping it consistent with the definition in the Motor Vehicles Regulations 2010 and clause 12 of the bill before the amendment.

Clause 13 of the bill will also amend section 45 of the RTA to remove the aggravated factor of careless driving causing serious harm or death and insert a new aggravating factor of careless driving causing harm, resulting in the alternate measure of mandatory licence disqualification for at least six months. Therefore, where a person is convicted of careless driving, where the only aggravating circumstance is causing harm in the absence of any other aggravating circumstances, the mandatory minimum licence disqualification will not automatically apply.

Finally, an amendment has 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. The amendment will allow the police in certain instances to issue a notice pursuant to the defect notice provisions under section 145 of the RTA as an alternative to charging the driver under section 44C.

The Liberal Party of South Australia absolutely agrees that law reforms are required, especially regarding the aggravating factor of careless driving causing harm and also the deliberate disablement of automated safety intervention systems in ultra high-powered vehicles. We also indicate our in principle support for the amendments but also indicate that we may have some questions during the committee stage.

The Hon. T.T. NGO (15:41): I rise to speak in support of the Statutes Amendment (Serious Vehicle and Vessel Offences) Bill 2022. The bill delivers on a commitment made by the Premier to introduce legislation by the end of the year in the wake of the tragic death of Sophia Naismith. On behalf of the government, I again extend our deepest and heartfelt condolences to the Naismith family. Sophia was killed tragically when a driver of a Lamborghini sports car lost control of his vehicle and struck Sophia, and her friend, Jordyn Callea, who was seriously injured.

The driver of the vehicle, Mr Alexander Campbell, went to trial and was found not guilty of the offences of dangerous driving causing death and dangerous driving causing serious harm. Mr Campbell pleaded guilty to the lesser offence of aggravated driving without due care causing death. He received a suspended imprisonment sentence, an 18-month good behaviour bond and a community service order.

Since the trial outcome, Sophia's family has advocated for law reform so that such a tragedy can be prevented from happening to another family. I echo the words of Attorney-General Hon. Kyam Maher MLC and simply say again that nobody should have to endure a loss like Sophia's family has. Risks increase when we get behind the wheel of an ultra high-powered vehicle. I thank the family for their courage in speaking out for a more effective system.

The government has now introduced legislation so that people are aware of the risks of driving high-powered cars and will hopefully be encouraged to use appropriate safety measures. The Malinauskas Labor government's election commitment was to ensure that those who endanger lives of other road users are held appropriately to account so that our roads are safer. The reforms championed by Sophia's family include:

1. A new mid-tier indictable offence of 'causing death or serious harm by careless use of a vehicle or vessel' to bridge the gap between maximum penalties for existing offences.

2. Allowing police to immediately suspend or disqualify the licence of a person charged with the new offence or other serious driving offences causing death or harm.

3. Establishing a new licence class for people driving ultra high-powered vehicles.

4. Establishing an offence where people driving ultra high-powered vehicles can be penalised for disabling automatic safety systems such as electronic traction control, anti-lock braking and automated emergency braking.

Making the definition of 'ultra high-powered vehicle' to now be prescribed by regulation will allow any necessary and appropriate changes to the definition to be made effective more immediately. This includes simultaneous changes being made to the definition in the Motor Vehicle Regulations 2010.

In relation to point 2, it is pertinent to mention that feedback received from the Law Society of South Australia suggested that when the threshold for causing harm is low, such as minor injuries, scratching or bruising, mandatory licence disqualification may be unduly harsh in such circumstances.

In response to that feedback, a government amendment describes when a person is convicted of careless driving where the only aggravating circumstance is causing harm with no other aggravating circumstances, the mandatory minimum licence disqualification will not be automatically applied. The court would retain its ability to impose a licence disqualification period, where appropriate, and the same maximum imprisonment penalty of 12 months would remain available.

The next indictable mid-tier driving offence increases the available penalties when there is driving causing death or serious harm which does not meet the higher threshold of dangerous driving. Penalties for driving without due care are raised when 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. The new mid-tier offence also raises the minimum licence disqualification period from six months to a year for a basic offence and three years for an aggravated offence.

An offence will be aggravated where the driver committed the mid-tier offence in one of the following circumstances:

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

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

driving under the influence of alcohol or drugs;

driving knowing the vehicle had a defect and that defect contributed to the commission of the offence, which could include a neglected tyre or vehicle maintenance; and

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

The statutes amendments to this bill underpin the seriousness of driving high-powered cars without care or consideration of the increased risks driving such a vehicle imposes. I am sure we all hope that Sophia's legacy will live on through these reforms. I commend this bill to the house.

The Hon. R.A. SIMMS (15:49): I rise to speak on the Statutes Amendment (Serious Vehicle and Vessel Offences) Bill. The bill comes to us today as the government's response to the tragic death of Sophia Naismith, who lost her life at the age of just 15 when she was hit by a high-powered sports car and died at the scene of the crash. Sophia and her friend were walking along the footpath in Glengowrie when they were hit by a Lamborghini, which mounted the kerb and crashed into a restaurant.

On behalf of the Greens, I want to take this opportunity to express our sincere condolences to Sophia's family for what is a horrendous death of a young person. Certainly, it would be a horrendous thing to lose a child in these circumstances. Any death on our roads is a tragedy, and we must do what we can to ensure the safety of all road users, particularly pedestrians such as Sophia Naismith.

The driver who caused her death was sentenced to seven months in prison, but it was reduced to four months and 27 days due to his entering a guilty plea at an early time. At the time, Sophia's father, Mr Luke Naismith, said, and I quote from his media comments at the time:

This case has tragically highlighted a broken system that is stacked in the favour of the accused and not the victims and the families left behind to pick up the pieces.

By creating a new mid-tier offence, this bill allows for a more appropriate penalty range for driving conduct linked to the death or serious harm of another person where the conduct has not met the higher threshold of dangerous driving.

The Greens welcome the government's efforts to promote pedestrian safety and protections for pedestrians. However, we do have some concerns with the bill in its current form. These concerns are based on feedback that we have received from the Law Society. The Law Society has raised two key concerns with the bill before us today. Their first concern relates to the definition of harm. I understand this will be dealt with through amendments that will be tabled by the Attorney-General. We welcome the amendments the Attorney-General will be moving that transfer the definition of 'ultra high-powered vehicles' to regulations to make sure there are no unintended vehicles captured by the bill.

There are some other elements of the bill that the Greens have concerns with, and we would welcome the opportunity to consult further around the proposed amendments before we move to the committee stage of the bill to make sure that we are making the right reforms and not causing potentially unintended consequences.

To be very clear, we certainly support the intention behind the bill. We support the efforts of the government to improve pedestrian safety. We do want to ensure that some of the concerns of the Law Society and others are addressed and so we welcome additional time to work through those matters.

Debate adjourned on motion of Hon. L.A. Henderson.