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House of Assembly - Fifty-Second Parliament, First Session (52-1)
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STATUTES AMENDMENT (DRIVING OFFENCES) BILL

Second Reading

Second reading debate resumed.

The Hon. J.J. SNELLING (Playford—Minister for Employment, Training and Further Education, Minister for Science and Information Economy, Minister for Road Safety, Minister for Veterans' Affairs) (17:07): Listening to members of the opposition, particularly in the latter stages of the debate, one would think that the opposition basically has a position of kids will be kids and they will do stupid things, and we are powerless to do anything about it. Certain members of the opposition seem to have a fundamental lack of appreciation of the seriousness of engaging in street racing. Street racing is not just a bit of loutish, stupid behaviour. It is engaging in high speed, highly dangerous behaviour which presents a threat not only to those who are directly participating in the street race but to the innocent, as we have tragically seen on several occasions in recent years.

To try to characterise this sort of behaviour as semi-legitimate, or just kids being stupid and kids will be stupid, and really changing the law is not going to achieve anything at all, just shows a fundamental lack of appreciation by members opposite of the seriousness of this sort of behaviour and the seriousness with which it is viewed in the community. I would be very happy to see how the general public responds to the attempts to simply wave their hands and brush off any responsibility when it comes to our legislating to try to minimise this sort of behaviour.

I do not know historically what the prevalence of street racing is these days as opposed to years gone by, but I can assure members opposite that if they bother to travel north of Gepps Cross, south of O'Halloran Hill or west of South Road, then they will find that, in the suburbs of Adelaide, there is a tremendous community disquiet about dangerous road behaviour, particularly dangerous road behaviour which puts innocent lives at risk.

People want to know that they can go and drive on the road without being put at risk and having the lives of their loved ones put at risk by this sort of idiot behaviour. If I, as road safety minister, took the approach of the member for Bragg, who essentially thinks that kids will be kids and there is nothing that we can really do, I would be quite rightly hounded out of office.

I know the member for Morialta has a different opinion from the member for Bragg and I congratulate him. It was good to see him show a bit of courage after the member for Bragg's performance and to get up and repudiate what the previous speaker on his side had said. I congratulate the member for Morialta for at least showing some guts and a bit of courage and to actually understand the seriousness of this sort of behaviour.

The member for Bragg and other members have also tried to characterise me as saying that this legislation will be a cure-all. I have specifically said publicly that this will not be a cure-all. Of course it will not be a cure-all. Street racing will continue, people will continue to behave stupidly. What this legislation does is make sure that the penalties for this sort of stupid behaviour reflect what I think the public expects the penalties should be for people who engage in reckless behaviour that is indifferent to public safety.

Of course I am not going to present it as a cure-all, and of course there are other measures we can take. Education and so on are all part of the measures we can take to try and stop people from engaging in this sort of behaviour. At no stage have I ever said that, once this legislation goes through, this sort of behaviour will never happen again. Of course that is not the case.

I would say that even if this legislation saves one life, even if it stops just one person, makes one person think twice before they engage in a street race, then it will be worth it. If it stops one person from being killed, one innocent bystander, one innocent road user from getting ploughed into by one of these idiots conducting a street race, then it will be worth it. At no stage in my public utterances on this matter have I ever said or pretended that this represents some sort of a cure-all, that this is going to stop people from engaging in this behaviour.

The member for Bragg raised concerns about clause 9 of the bill, the provisions for emergency services workers, and in particular paragraph (c): 'acting reasonably in the circumstances as he or she believed them to be'. I was going to leave it to the committee stage, but she is not here so I will do my best to answer her concerns.

When you look at that subsection (4a), it is important to note that the third provision, '(c) acting reasonably in the circumstances as he or she believed them to be', is the third test. There are two others. Firstly, under paragraph (a) an emergency services worker has to be 'carrying out duties as an emergency worker'. That is an objective fact: you either are or you aren't carrying out duties as an emergency worker. Secondly, under paragraph (b), they must be 'acting in accordance with the directions of his or her employing authority'. Again, that is an objective fact. It is only if you meet those two tests that the third test applies, which the member for Bragg seems to have particular concerns with, that the person is 'acting reasonably in the circumstances as he or she believed them to be'.

So, the concern that the member for Bragg has, or her misunderstanding of it, is misplaced because it is the third test, the third, I guess, hurdle that an emergency worker would have to clear in order to escape the provisions of the careless driving under the bill. I hope that clears it up for the member for Bragg but, if it does not, she is more than welcome to come down. I think the member for Kavel has indicated a desire to go into committee, and I am happy to answer questions about that clause in further detail.

The opposition, I think, is trying to characterise the bill as merely cosmetic. I can assure them that that is not the case. The bill has two purposes: firstly, it broadens the nature of the offence of engaging in a street race. It makes an offence of participating in a street race, so it catches not only the driver but also the people in the car and anyone who is engaged in the organisation of the street race.

The reason we have broadened it is that it is very difficult for the police—particularly when they turn up at a crash scene and people tear off—to be able to secure a conviction. It is similar to the changes we made with regard to harming children, where you have two caregivers, both of whom refuse to cooperate with police in the event that a child is assaulted in some way. We are broadening the offence to make it possible for the police to secure a conviction, whereas at the moment they have some difficulty. The advice from police is they wanted the nature of the offence broadened, so that it would take in all those other parties who are engaged in street racing other than just the driver.

So firstly, we are broadening the nature. Secondly, we are increasing the penalties. It is true, as I think the member for Kavel seemed to be saying, that you can toughen penalties and leave it in the Road Traffic Act. You could make it an indictable offence in the Road Traffic Act, but the general principle has been to move indictable offences into the Criminal Law Consolidation Act. That means that, if you are convicted of an indictable offence, you will have a criminal record and you can be sent to gaol or have a gaol sentence of a certain length.

As I was saying, you could do that by leaving it in the Road Traffic Act, but the reason we have a Criminal Law Consolidation Act is that it is the consolidation of the criminal law. Part of the way of drafting these things is that, because we are moving it from being a mere road traffic act into an indictable criminal act, it is being moved into the Criminal Law Consolidation Act. The current provisions for an offence of engaging in a street race provides for, I think, a $2,500 fine. This is a substantial increase upon what, at the moment, is merely a fine for engaging in this sort of behaviour.

The member for Kavel also raised a question about what consultation the government has engaged in. Well, I do not know if the member for Kavel was the shadow for road safety before the election but, if he was, I would have thought he would have read the Labor Party's road safety policy. In the road safety policy he would have found an election promise to do exactly what we are doing. We have consulted with the 1 million-odd South Australians who voted at the last state election, and they have re-elected us to government. This policy has a clear mandate from the people of South Australia. We do not need to engage in any further consultation, because we have a mandate to carry out this legislation.

Of course, we have consulted with the South Australia Police and the Department of Transport, Energy and Infrastructure. We are about to get feedback from the Department of Public Prosecutions. In terms of a broader public consultation, I do not think it is necessary, because it was part of our election policy. We took it to the election and we were elected.

The member for Kavel also asked why the street racing offence needs to include passengers given that the Criminal Law Consolidation Act already provides that a person can be guilty of a principal offence by aiding and abetting the commission of that offence, and I think the member for Morialta raised that.

The reason is simple. If the new street racing offence were to be confined to drivers and if the only way a passenger could be found liable would be proof beyond reasonable doubt that he or she aided and abetted the driver (for example by egging him on in some way or making it easier or more possible for the driver to engage in the street race), then one does not need that much imagination to appreciate the difficulty of securing a conviction under that sort of test.

If that were the law, many passengers would get off scot-free because police would have no evidence of how they conducted themselves in the vehicle, let alone evidence of sufficient strength to support an aiding and abetting charge. Making the offence one of participation, under which everyone in the car involved in a street race is liable for the offence, means that passengers are liable for the principal offence without the prosecution having to prove anything about their conduct, let alone having to prove conduct that constitutes aiding and abetting.

Without a defence for passengers who tried to stop the involvement in the street race or, at the very least, did not consent to it, it would be a rather harsh law, and that is why the bill makes it a defence for a person charged with a street racing offence to show that he or she was not the driver and did not consent to the vehicle being driven in the street race.

It should be noted that a person who was coerced or forced to be a passenger in the vehicle already has the defence of duress; hence, innocent passengers can avoid conviction while passengers who cannot show that they did not consent may be found guilty of it. Note that the standard of proof that is required under this provision is on the balance of probabilities and not proof beyond reasonable doubt.

So, if you are a passenger in the vehicle and you have been charged under these provisions, and you want to use as a defence that you did not engage willingly in it, then the burden of proof is on the balance of probabilities rather than beyond reasonable doubt. The government believes that an offence of participation, constructed like this to ensure that innocent passengers cannot be found guilty, is the best way to deliver the message that drag racing is not on and that everyone involved, not just the driver, should be held responsible for it.

I think for anyone who has been out at night and seen people engaging in this behaviour, it is not too difficult to observe that, generally, the passengers are as much participants and responsible for this sort of behaviour as the person who is actually behind the wheel. We want to send a clear message to people engaging in this sort of behaviour that, even if you are not behind the wheel, if you are egging the driver on, then you are as much responsible as the person who is behind the wheel. Likewise, if you are someone who, through text messages or in some other way, is engaging in the organisation of a street race, then you are just as responsible as the person behind the wheel. I make absolutely no apologies for that whatsoever.

If people take this message on board, we may save some lives including the lives of the people in the racing vehicle, not just those unfortunate people who innocently find themselves in the path of a street race. I commend the bill to the house.

Bill read a second time.

Committee Stage

In committee.

Clauses 1 to 5 passed.

Clause 6.

Mr GOLDSWORTHY: I will not hold up the house unnecessarily with questions in committee stage, but there are a couple of things about which I want further clarification. The minister has gone some way in his concluding remarks in his second reading speech in relation to these issues. I note the minister's comments about the lack of consultation that the government has undertaken in relation to this bill. Just because it was in your road safety policy that you took to the election, you said—

The Hon. J.J. Snelling interjecting:

Mr GOLDSWORTHY: Well, it's the insertion of the actual street racing provisions. This is the new law, Jack.

The Hon. J.J. Snelling interjecting:

Mr GOLDSWORTHY: It's part of it all. You say you have a mandate to introduce this law, because it was in your road safety policy, and a million people voted for it. Actually, the majority of those million people did not vote for it. We can hark back to previous arrangements. I am somewhat astonished that, okay, you went to the police association, to the DPP and DTEI—they are all internal government agencies—but you did not go outside the government to the Centre for Automotive Safety Research (CASR), which I know has a very strong relationship with DTEI. You did not go to the RAA, you did not go to the MTA, the MRA or the Driver Training Association, all those organisations that I listed that this side of the house has approached. I just question the validity of your consultation process.

The Hon. J.J. SNELLING: What a joke that the member for Kavel would seek to abuse the committee stage of the parliament, where you are meant to go through legislation clause by clause asking actual questions about what is in the clause. The member for Kavel wants to try to use it as an opportunity to raise generic questions about the consultation of the bill. That is not the purpose of the committee stage. The purpose of the committee stage is to go through the bill and ask me questions.

Just because you do not have the wit to ask basic questions about clauses in the bill, about what they actually do, questions about trying to get what they do, you are trying to completely abuse the committee stage of the bill and ask extraneous questions about what consultation the government has engaged in. Well, the government consulted with one million South Australians. We won the election. We have a mandate to do this. If you want to oppose it, then have the guts to oppose it on the third reading. I invite you to do so.

Mr GOLDSWORTHY: After that absolutely unnecessary, extraordinary rant, we have every right to ask any question on any aspect of the bill. Consultation in relation to the bill is an important part of the process, so I do not take one iota of notice of the minister's incredible rant. I have a further question in relation to clause 6, inserting new section 19AD—Street racing, in particular new subsection (2), which provides:

For the purposes of this section, a person who 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;

That obviously includes passengers, as we understand it. Can the minister take the house through the legal process that would ensue as a consequence of the police apprehending people who have been engaged in a street race—the driver and passengers? Can the minister also explain what the balance of probabilities is?

The Hon. J.J. SNELLING: The police see someone engaging in a street race. The police pull over the car and make arrests and, presumably, they will arrest everyone in the car. Those people will be charged. Those people will go to court. The court will determine whether or not they are guilty. If they are found guilty, then the court will apply a sentence which they will then serve.

Mr GOLDSWORTHY: The second part of my question is in relation to the balance of probabilities. Can you further expand on that, minister?

The Hon. J.J. SNELLING: The balance of probabilities is a lesser burden of proof than that which is beyond reasonable doubt.

Mr GOLDSWORTHY: The minister made comments concerning the government's need to place this offence in the Criminal Law Consolidation Act instead of the Road Traffic Act. The minister has admitted that there can be offences within the Road Traffic Act that incur the maximum penalty of imprisonment. I raised the issue during the second reading that I think we are splitting hairs a bit. We are talking about an offence under the Road Traffic Act instead of a crime. The minister has said publicly that the government hopes this will have an educative effect on people who may be thinking about engaging in a street race.

It is my understanding that you can create an offence under the Road Traffic Act that does have the maximum penalty of imprisonment, and it does not have to be under the Criminal Law Consolidation Act. I am going to highlight a couple of offences that are already in the Road Traffic Act that incur the maximum penalty of imprisonment. As I said earlier, this does appear to be a form of window dressing because do you think that two drivers who are lining up at a traffic light, or whatever, and whether it is in the Road Traffic Act or the Criminal Law Consolidation Act where a maximum penalty of imprisonment is in place, will think, 'Hell's bells, we better not do this because it's actually in the Criminal Law Consolidation Act and not in the Road Traffic Act,' where you can actually apply a maximum penalty of imprisonment under the Road Traffic Act?

The Hon. J.J. SNELLING: No, I do not think that two people lined up at the traffic lights will be thinking about whether the provisions are in the Criminal Law Consolidation Act or in the Road Traffic Act. What may affect their behaviour is the fact that at the moment their engaging in a street race does not entail a criminal record and a possible prison sentence, but under the proposed changes they would. The means by which we are doing that is by moving it from the Road Traffic Act to the Criminal Law Consolidation Act.

As the member for Kavel says, it is true that we could increase the penalty and we could make it an indictable offence and leave it in the Road Traffic Act, but that would still require legislative change. We would still have to come to parliament and we would still be having this debate. So, it is true; however, as a general principle, the government prefers to have indictable offences, on the whole, contained within the Criminal Law Consolidation Act.

There are other existing offences, particularly death by dangerous driving, which is a neat fit with the street racing offences, which is in the Criminal Law Consolidation Act. So, it is nice to have them tied together, but I do not think it is of tremendous import whether the legislation or the penalty is contained in the Road Traffic Act or the Criminal Law Consolidation Act. That is an issue for the drafters.

The important thing for the government, and the important change that we are trying to bring about, is the increase in penalty and the change of the nature of the offence to being a criminal offence, which will carry a possible gaol term and a criminal record, which I think will have an educative effect and will make people at least think twice before they engage in this sort of behaviour. I am directed that you do get a criminal record under the Road Traffic Act if you are convicted of the current offence but you are not subject to a gaol term.

The CHAIR: Member for Kavel, I remind you that there is a protocol, if you like, that you can only have three questions on any one clause, and you have had a few, but I am just letting you know.

Mr GOLDSWORTHY: I will defer to the member for Bragg.

Ms CHAPMAN: The minister responded to a question asked by the member for Kavel as to the process that would take place in the event of a suspected street driving offence having occurred. My understanding of the minister's answer is that his expectation, having made that observation and assessment of the likely breach of the act, is that there would be an apprehension, there would be an arrest, prosecutions may follow and, indeed, the matter would be left to the courts, as I understand the question.

I want to be clear about this. Given the extent of who this is going to apply to—that is, potentially everyone in the car—it is your understanding, and I would hope this to be the case, that before there is an arrest of all or any one of these persons in the car you would have an expectation that the police would have made an assessment about whether there was any basis upon which anyone who was in the car was, at the very least, aiding and abetting the primary and principal offence, and that there would be some assessment and interview—if available. That is, one or other of the persons in the car was fit to be interviewed, and whether they are under some duress or whether they are under the influence of alcohol or drugs or the like, I accept, may interfere with that.

It may be on first assessment, without there being an arrest, it is necessary with the consent of one of the parties that they be transferred to a hospital for drug testing and/or medical treatment. I want your assurance, minister, because we are moving into the realms of everyone in the car being under suspicion. I want to be sure that in those early steps there will be some expectation that, except in extreme circumstances, assessments would be made on those issues.

The Hon. J.J. SNELLING: We would expect that normal police processes would apply, but what would change is that the burden of proof would not lie on the police to obtain a conviction under the aiding and abetting provisions of the Criminal Law Consolidation Act. They could arrest everyone in the car and the burden of proof would be upon those in the car to prove that the street race or their participation in the street race was against their will.

The burden of proof that they have would be a reduced burden of proof. It would be on the balance of probabilities rather than beyond reasonable doubt. If you are a passenger in a car and you are arrested under this provision—so a passenger in a car engaged in a street race and arrested under this provision—then the burden of proof is with you—the person arrested—to prove on the balance of probabilities that the car was engaged in a street race without your consent.

Ms CHAPMAN: My question—and perhaps it was not clear enough—was not what the burden of proof is once charges are laid; and it will ultimately be a determination of the court as to who proves what. I am asking about your expectation of the behaviour of the police officer or police officers attending at the scene and taking into custody all the people in the car. It is your expectation that there would be some assessment at that stage, apart from whether they need drug testing or medical treatment, before they arrest anyone to ascertain from the people involved what they were doing in the car at the very least.

For example, rather than arresting them all and taking them to a police station, some attempt would be made to ascertain whether there is an opportunity for any of the defendants to say, 'Officer, I just want to explain that I was asleep in the back of the car and I had nothing to do with this.' They may not be believed, but I would like some assurance that at least it is your expectation that the people who are detained are competent to speak and, if they have something to say, they are given an opportunity to do so in order to explain the situation.

The terms of this offence are very much broader, as I think the minister and other speakers have highlighted, and very serious penalties apply to aiding and abetting, even to the extent of preparing a road surface that might help. I am not sure yet and I suppose we will not know whether texting a mate saying, 'Let's meet on Main North Road' is aiding and abetting. We are yet to see all those things. The example the minister gave is where an arrest is made at the scene after a police officer has detected that there is a reasonable suspicion of an offence having occurred.

The Hon. J.J. SNELLING: I am sorry if I misunderstood the member for Bragg's question. The short answer is: yes, I would have that expectation, but I would qualify that by saying that, essentially, it is a matter for the police how they conduct their investigations and what questions they ask. What procedures they enter into would be a matter for the police, but, yes, it would be my expectation for them to do that.

Clause passed.

Clauses 7 and 8 passed.

Clause 9.

Ms CHAPMAN: I raised this matter in my contribution, but, even though I listened, I am afraid I did not understand the minister's response to the question about the provisions of paragraph (c) which is one of the three requisite features, I suppose, of being able to establish that there is an automatic defence to the driving offence that is under consideration and why that should now be a subjective test rather than an objective test. I do understand that these are not alternatives; that is, they have to be carrying out their duties, it has to be in accordance with their guidelines, directions, etc., and reasonable in the circumstances. Could the minister clarify his understanding of that; that is, its being subjective and why that is the case?

The Hon. J.J. SNELLING: The defence requires you to clear those three hurdles. The first two are objective. I mean, either you are or you are not carrying out your duties as an emergency worker—objective fact. Secondly, you are acting in accordance with the directions of your employing authority—again objective fact. For it to be an offence you have to have been doing the first objective fact, the second objective fact, and then, as well as those two objective facts, you also have to satisfy that third subjective fact. For example, an emergency worker who was objectively complying with the first two provisions but was not acting reasonably in the circumstances—was acting unreasonably, was being reckless. They may have been carrying out their duties, they may have been acting in accordance with the directions of their employing authority, but were behaving in a reckless and unreasonable manner, then they would be liable to the provisions of the legislation. Does that answer it?

Ms CHAPMAN: My question is: why? I agree paragraphs (a) and (b) are objective tests and they are part of the process, but paragraph (3) 'acting reasonably in the circumstances as he or she believed', as you confirm, is subjective. My question is: why on earth is there a subjective test on that? Why is that not a determination by the judicial officer (as they frequently do) to make an objective assessment? In relation to the reasonable man test and the reasonable behaviour aspect, it is usually a function of the judge or magistrate to make that assessment. Here is a way of saying, 'Well, I have done all these things. Here is the manual; it is within my duties'—which are pretty general—and then we have something which says, 'And I think I did the right thing.' How on earth does that relate to a defence? I just see it as peculiar and unusual and I want some explanation as to why this is not a determination with an objective test.

The Hon. J.J. SNELLING: Because there might be circumstances where an emergency worker is acting under a legitimate order, can see that the legitimate order is unreasonable and yet continues to engage in the behaviour. I guess it applies an additional test upon the emergency worker so they cannot just completely offload their own personal responsibility onto 'I was following orders'.

That was to prevent 'I was following orders' being an absolute defence, that there is some measure of personal responsibility on the emergency worker themselves. They cannot just say 'I was following orders, therefore I cannot be picked up under these provisions.'

Ms CHAPMAN: Yes, that may be so, minister, but I have not seen that before. If a police officer is instructed to head down Main North Road at 150 kilometres an hour and, whatever it takes, detain a vehicle that is out of control, purportedly on the assessment of a superior officer who says this is necessary to intervene now before a certain intersection where there may be severe risk or danger, so what if the junior officer thinks that that may or may not be reasonable?

It is still an objective assessment, surely, by the judicial officer about whether that is reasonable in the circumstances. Whether it is a reasonable decision for the superior officer or the junior officer who thinks, 'God, the sergeant must be off his head, why should I have to do that?' It seems to me that these are objective tests which need to be considered. There may be many times when all these things could apply and he or she as a police officer may think that it is not reasonable that he or she should be asked to do that but they still carry out their duty. Surely, if an objective test is still appropriate, then that police officer is entitled to the protection of that defence in those circumstances.

The Hon. J.J. SNELLING: I think, if I understand the member for Bragg, she is saying that paragraph (c) is superfluous, because any judge would take into account whether or not the officer was acting reasonably, in any case. I think that is what the member for Bragg is saying.

Ms CHAPMAN: Yes; let's just clarify it. In those circumstances, it is completely superfluous, because adherence to the protocol and guidelines and acting in the ordinary course of their duties are all objective tests. To add in the view of the police officer is irrelevant in those circumstances. It is being added in as the third requisite link to have access to the defence. There could be many circumstances where the forming of a view by the police officer as to whether or not their conduct is reasonable is actually irrelevant. They may not even have time to do that but, by putting it in there, you actually preclude the capacity for them to have the benefit of this clause.

So you could actually be denying the access. Assuming that the paragraph is appropriate in the first place and that the defence should stand, perhaps, in view of the time I could ask the minister to agree to consider, between the houses, how this issue could better be dealt with, either by the deletion of paragraph (c) altogether or, if there is going to be a reasonable test, in the application of (a) and (b), that it should be an objective, not a subjective, assessment. I will not have any further questions if there is an indication that at least that will be explored.

The Hon. J.J. SNELLING: If there is something I have missed, we are more than happy to have a look at it between the houses. I am not sure whether the member for Bragg's concern is whether that whole paragraph (c) 'acting reasonably in the circumstances' should be there at all, or whether her concern is with the second part of the sentence 'as he or she believed them to be'.

Ms Chapman: It's the latter.

The Hon. J.J. SNELLING: Yes. The purpose of this paragraph is to still give the emergency worker some personal responsibility for their behaviour. That is the reason for that paragraph (c). It is not an absolute defence to say that you are carrying out your duties and that you were acting under directions. Those two in themselves do not constitute an absolute defence. There is still a burden upon the emergency worker to be acting reasonably in the circumstances. As to the provision about it being as they believe them to be, we are happy to have a look at it between the houses to see whether or not that is appropriate.

Ms CHAPMAN: I just have a final question on this clause, and I do not have any questions on any other clauses. Apart from the Police Association, has anyone else or any other organisation asked for this measure?

The Hon. J.J. SNELLING: It is a request of the Police Association.

Clause passed.

Remaining clauses (10 and 11) and title passed.

Bill reported without amendment.

Third Reading

Bill read a third time and passed.


At 18:00 the house adjourned until Thursday 22 July at 10:30.

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