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House of Assembly - Fifty-Second Parliament, Second Session (52-2)
2013-07-04 Daily Xml
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STATUTES AMENDMENT (DANGEROUS DRIVING) BILL

Second Reading

Adjourned debate on second reading.

(Continued from 5 June 2013.)

Ms CHAPMAN (Bragg—Deputy Leader of the Opposition) (17:18): I rise to speak on the Statutes Amendment (Dangerous Driving) Bill 2013. The Attorney-General introduced the bill on 15 May this year. Brief as it is, it does two things: one is to amend the Criminal Law Consolidation Act 1935, in particular section 19A—Causing death or harm by use of vehicle or vessel, and section 19AC—Dangerous driving to escape police pursuit etc.; secondly, it amends the Road Traffic Act, in particular section 46 regarding reckless and dangerous driving. In each of these instances, the prosecution is currently required to prove that the accused drove in a manner dangerous to 'the public'.

The government argues that the courts have interpreted the phrase too narrowly and, as such, 'the public' is not read to encompass a wide range of persons. The remedy that is proposed in this bill is to amend the respective sections I have referred to, to extend the definition and, in fact, to widen it to include 'any person'.

The opposition has considered the bill and will not be opposing it. There are a couple of aspects that are still under consideration, so I just record that it is possible that we may wish to provide some contribution to an amendment in another place. There has been some movement on this and so, although there will be a little time between now and the other place considering this matter, we will of course endeavour to identify any amendment as soon as possible.

The Attorney cites the 2008 case of R v Palmer (2008) SADC 122, to outline the basis of this bill. Essentially, in that case the accused was charged with causing death by dangerous driving. The accused performed dangerous manoeuvres on private property. The vehicle fell onto its side and crushed a passenger's skull. The judge directed the jury to return not guilty verdicts for the following reasons.

Firstly, the relationship, which was one of friendship, between the three passengers and the driver negated the view that passengers were to be regarded as members of the public. Secondly, the activities in question took place on private property and away from any road. Thirdly, the accused and his three passengers were all knowingly engaged in a form of skylarking. Fourthly, the four willingly got into the vehicle in question together for the purpose of amusing themselves with 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. Fifthly, the activity constituted a danger to all four of them but to nobody else. Sixthly, in circumstances where it is proper to regard the activity as a 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 commented that his conclusion may have been different had section 19A read driving in 'a manner dangerous to any other person' rather than 'a manner dangerous to the public'. The judge applied the reasoning of the New South Wales Court of Appeal case in R v S, which had a similar tragic outcome to the behaviour of those in a motor vehicle. The New South Wales parliament has taken into account their decisions, and they have already moved to amend their legislation in terms similar to the bill before us.

In the case of R v Breuker (2011) SADC 64, 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, tragically, fracturing their skull. The event occurred on a fenced-off netball court that people were setting up for a ticketed event. Members of the public had not yet started to arrive. The judge considered the case of R v Palmer, which, of course, related to the exercise when the four boys were skylarking in their vehicle, 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 relationships 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 the victim are considered to be engaged in skylarking, engaging in a risky activity, a joint escape and, as such, it was improper to characterise the passengers as the public. There are other legal principles that were applied, which I will not detail for the purpose of this debate.

One of the aspects that has drawn the attention and concern of some of the members of the opposition is how this might affect the motorsport industry and contributors. Section 25 of the South Australian Motorsport 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 motorsport event within the declared area and during the declared period for the event'.

Clipsal 500 and its predecessor, 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 RTA and CCCA have applied. The Sporting Club of South Australia owns and operates the Collingrove Hillclimb in the Barossa Valley and holds races at the Mallala Motorsport Park. They are both private venues.

Members would probably be aware that this is a bill which does not bring this law on to 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. In other words, irrespective of what the relationship is between the parties, who might be either driver, contributor or conspirator or someone who is jointly responsible and victim (or victims)—all of that relationship between those parties will effectively be irrelevant with this amendment. The bill, however, in widening the scope of the offence, is likely to result in its being applied to an accident that occurs on a private motorway, such as Collingrove Hillclimb, even if the deceased consents to the activities.

There are some aspects here in relation to the criminal liability that might follow for those who engaged in motorsport activity, even if the other participants, spectators and the like all consent in the participation of the event. Accordingly, the bill significantly reduces the individual's personal freedoms, and there are obviously concerns about how we deal with other motorsport activity.

It should also be noted that section 5 of the Road Traffic Act applies only to public roads. The bill proposes to widen the class of persons from 'the public' to 'any person'. It appears that this would widen the offence to capture instances where people decide to engage in dangerous activity on our roads, overcoming relationship characterisation.

The initial concern—certainly when I looked at this bill at first blush; I was sitting in the chamber when it was tabled—was to immediately consider whether this would have an unfair and inappropriate application to persons who were operating farm vehicles, in particular where family members (on a farm, for example) drive a vehicle on their property that does not need to be registered.

In particular I refer to whether it might attach a criminal liability to persons—often young persons, sadly—who might be driving quite legally on a property in an unregistered motor vehicle or piece of farming equipment; whether this would potentially attract some criminal liability, or at least the investigation of that in the event of some terrible accident.

One of the tragedies that is recorded in our own reports in this parliament each year is I think in the annual report of the Premier's department where it lists under SafeWork SA a summary of persons who die in work situations. Tragically, a very concerning number of people die on farm properties. A summary of the event is given. Sometimes they are a farmer or some other person who is operating a tractor. We all know that tractors can be very dangerous vehicles. We have special roll bars on them and all sorts of things—

Members interjecting:

Ms CHAPMAN: I am getting to those. I can think of a young man in my own class at school whose wife, just after she had delivered twin baby girls, when they were just weeks old, got on a tractor to attend to some duty on the farm and the tractor flipped over and crushed her to death instantly. This young man not only lost his wife but he was left the responsibility of raising baby twin girls. These are tragic consequences. I look at these things every year in the annual report and ask myself: how can we try to remedy this? How can we add some other blanket of protection for those who are exposed to the risk of death or serious injury in these circumstances.

Just recently my own brother, who is very adept on farm equipment—he rides vehicles, cars, tractors and the like—was on a quad bike. These bikes are notoriously dangerous in any circumstances where they are on an incline. The property he owns and operates on the north coast of Kangaroo Island is pretty steep. He was down in a creek and the bike flipped over and his arm was severely injured. He is still recovering from it. Luckily for him, he is alive.

Unluckily for our neighbour, 18 months ago she got out of her utility vehicle on a dam bank, it rolled back and she was pinned under the vehicle for two days. She was found alive but tragically died before she got to hospital. These are real and pressing cases of farm accidents, and they are all accidents to the extent that there is no culpable expectation of blame for other persons. These accidents often happen when someone is on their own, where relief is not immediately accessible and communication is not possible to ring for some help, and we see a tragic loss of life.

I will say that, before I came into this house, I am aware that at least on two occasions some attempts were made to give some legislative protection by imposing a criminal sanction for a level of negligence when people were injured in a farm situation. It seems that each time that is brought to a parliament or a committee of review it looks good at the time but the implication of this is dire.

The reason is this: if we go down the track of imposing a criminal sanction or exposing the risk of a criminal sanction, we will have to consider what impact that will have on people undertaking what is, on the face of it, a relatively dangerous occupation, namely, working with heavy equipment and stock in those circumstances—and, indeed, the impact on the people who enter the properties.

I could walk into a factory and I have to follow all the safety guidelines and stay on the blue painted dots as I walk around the factory and, if I do not, I am exposed to the risk that I might be hit by a piece of equipment or a loaded box might fall on me, for example, and cause me injury or death. You have to follow the rules. Similarly, people occupied in primary activity understand the risks and understand that the equipment with which they are working, including motor vehicles, can be lethal weapons.

For children on properties, people who are invited onto properties (visitors) and even trespassers, we have legislative protection to ensure that we act with some duty of care towards these persons and that they are entitled to some redress if they are injured or suffer loss as a result of negligent behaviour. To some degree, as I say, there is a strict liability with that.

For example, all of us have a strict liability for the dogs that we own if they bite somebody when they come onto our property because there is a strict liability obligation more than just: did you take into account that your dog should have been put on a chain or kept on a lead, and the like? We have these standards. At first blush, we were concerned about aspects of that legislation.

I make the point that, whilst there are some aspects that we would like to have tidied up in respect of motor sport activity and we would welcome the government's indication as to how they feel motor sport activity might be protected to the extent that there might be some rules, that is, people have to be seen to have acquiesced if they attend these activities or get into a car with a motor racing person, I cannot make any useful contribution on that in this debate. I do not know much about motor racing, nor do I wish to, to be honest. Nevertheless, it seems to be a practice that is widely supported and participated in.

It seems that all the people who rush off to the Clipsal races and attend these activities love it, and I fully respect that. It is not those who go to the Clipsal race who are in the gun here, it is the people operating at the amateur level. The sporting car clubs are very well patronised and they would like to have their concerns allayed. We, on this side of the house, consider that is a reasonable expectation.

Mr WHETSTONE (Chaffey) (17:41): I rise, too, to speak on the dangerous driving bill and express some concerns about what is being proposed with or without amendment. Since the government has put forward this dangerous driving bill, I have been absolutely inundated with calls from a wide range of people in my electorate of Chaffey who are concerned with what this bill will do to impact on their lives and businesses. I think that it is more about the onus that it is going to put on people operating their businesses as they do currently.

For motor sport enthusiasts, as the member for Bragg has just highlighted, some motor sport events will be exempt. There is concern in Chaffey, which I think is proudly passionate about motor sport, particularly for anything with a motor in it or anything to do with wheels, but it is a bit more diverse than just the wheels. I am a little unclear as to whether this dangerous driving bill will impact on river users because people have ownership of some of the water line in some cases. People have freehold. Will it impact on when we have our local world famous dinghy derby? Will those competitors be impacted on? I will touch on that a little bit later.

In the electorate of Chaffey, which is 16,500 square kilometres and incorporates a lot of farming country, river country and river flat, there are approximately 40,000 people there. Of that, there are about 3,000 food producing businesses. In those food producing businesses, the bill as I understand it will have an impact on those private farms. We also have quite a few motor sport parks and motor sport complexes that are part of the electorate and they, too, have gained recognition right around the nation. Again, will the introduction of this bill demonstrate a lack of understanding about the way in which free enterprise and farming communities live and work?

In one fell swoop Premier Weatherill has shown just how he seems to be out of touch with what regional and rural communities are about, and that entails owning a farm, owning wide open space land. I guess previously we had a right to use that land for the way we operate our farming, the way we operate our lifestyles, but the Liberal Party is always happy to consider measures that we could take to enhance road safety, but this particular piece of legislation as I see it goes far beyond what is reasonable and I will not be going down without raising my concerns.

The current dangerous driving legislation refers to driving occurring in a manner that is dangerous to the public which usually requires the act of dangerous driving to occur on a public road. So, if a person drives dangerously on a private property, that does not expose any risk to a member of the public unless they are acting in a dangerous manner. It also means that victims of dangerous driving on a private property may not legally be considered a member of the public, and this could also operate to exclude liability on the grounds of dangerous driving in the case of an accident on a private property.

The bill widens the scope of dangerous driving offences by allowing it to include any person rather than just the public, and I understand that police already have the power to investigate and act on incidents involving death or injury on private property, but this new legislation goes beyond the scope of what is fair and reasonable.

I guess through consultation with my community, I have identified a number of significant problems with the legislation: obviously farmers trying to run their businesses; the motorsport industry; families teaching and using vehicles to operate their business; and enforcement and implementation. I will start with farmers trying to run a business. Most here would understand that it has been part of farming history that farmers use vehicles for all types of reasons.

They also use vehicles for pleasure, for recreation, and for running their businesses in any which way they choose. They have already been burdened with the rising costs of running their businesses and the way they get around some of that cost burden is to use their vehicles with family members to engage in mustering or bringing in livestock, checking troughs or irrigation, or the mandatory running from one point to the next. It really is going to make life much harder for them.

Farmers in my electorate have raised a number of concerns with me; for example, what the bill means for registration of vehicles used solely for farming purposes. Many farmers have vehicles which will never leave the private property and which are only used for activities like carrying hay, mustering, as I have said, and transporting feed to animals. What will the provisions regarding the defecting of vehicles mean for those vehicles used only on private property?

A vehicle might be purpose-built to go out and feed livestock, or to go out and check water, or to spray weedicide, or to run wires to upgrade fencing, and sometimes those vehicles do not have a door, and sometimes they do not have indicators or lights. What does it mean for those sorts of vehicles? There is a wide range of issues that the farming population is looking at with caution and concern, and this bill is going to impact on their running the businesses that they have run for many years.

I have already mentioned that motorsport is something very dear to my heart, and very dear to many of my constituents in Chaffey. Obviously this bill is going to have an adverse impact on those engaged in motorsport, but the current legislation regulating the motorsport industry under the South Australian Motor Sport Act, allows for the non-application of certain laws to areas declared by the minister for a motorsport event.

Current dangerous driving laws do not apply in relation to a vehicle or its driver while the vehicle is being driven in a motorsport event within the declared area and during the declared period of an event. We must always remember the issue of consent which, I think, is particularly important when we are dealing with motorsports. Participants are always aware of the risk involved when competing in motor sports, and this allows them to make a conscious and informed choice to do those activities.

The bill would extend to apply to those people who have actively given consent to taking part in motor sport. Imposing criminal liability on someone where the deceased has provided informed consent will have severe consequences for individuals, communities and the motorsport industry at large. There are businesses, including in my electorate of Chaffey, that rely on the motorsport industry as a form of income.

For any 4X4 enthusiasts in the chamber, the Loveday 4X4 Adventure Park is a prime example. Obviously the operator of the park is extremely concerned that this legislation would, quite frankly, destroy his livelihood. The park has all sorts of facets around motorsport—4X4 adventuring, theme tracks. It has a track that I have driven over, with 120 mounts after one another, and it really is quite an experience. Around 20,000 people visit the park every year. The owner likes to consider it a safe 4X4 park.

Other examples in the electorate include the speedways at both Renmark and Waikerie. The Riverland Junior Motocross Club has been ingrained into my family life for many years both though myself and my son, who competes on a regular basis. What sort of impact will it have there?

We have enduros and sporting car clubs that have raised their own concerns about the bill and the potential drastic ramifications that this could have on the industry. A lot of families have set up their own tracks—their own motorbike tracks, their own car tracks, and their own enduro tracks. What sort of impact is it going to have on them? Is it going to take away their right to enjoy some pastimes and pleasure time on their own property?

There are indirect consequences of this bill for those interested in and engaged in activities. They have to accept the danger that comes with where these tracks are located. The benefit of having designated motorsport areas like the Loveday Adventure Park is that participants can enjoy motorsport in a safe and secure area. Imposing criminal liability where consent is given in a regulated environment like a motorsport park will push people to go to more dangerous, unregulated areas, where the risks of motorsport are even higher.

If you restrict any motorsport pastime—as I do, I lived on my orchard for many years—and close parks and lock up areas, people will explore further, they will cut fences, and go further afield to explore other places where they can ride their motorbikes or vehicles. Remember, too, that motorsport events are also an important tourist attraction in regional areas. The Waikerie Enduro has been a national event. Where does the bill leave that event? People come from all over the nation to race their off-road trucks and buggies. It has been a signature event in the electorate of Chaffey for many, many years.

In terms of young people learning to drive, many people living and working in regional areas teach their children, their friends, how to drive, but they teach them how to drive in orchards, on farms, normally on tracks, and it gives them the opportunity to learn how to handle a vehicle. In a lot of those instances, it gives them the opportunity to handle a vehicle that they would not necessarily be able to handle on a road. This bill really is taking away, or putting at risk, the opportunities that young people in regions have.

In terms of enforcement and the issues with implementation, the bill also has a number of practical problems. How on earth is the government expected to be able to police and enforce this? Does the government honestly expect police to be out there roaming the regions, entering every private property they drive past to check whether there is any dangerous driving going on? Is the government going to be prepared to put extra police resources out there?

How is it going to police watchdogging for people who are out potentially driving dangerously on their properties? What sort of resources are going to have to be put in place to deal with it? Again, to me, it sounds like it is going to be a massive imposition on SAPOL and the regional police forces. What kind of burden are we looking at, and how much more is this going to cost the taxpayer?

Will this detract from the police operation in other areas? How will the government be prioritising the development of police, and will police be taken out of areas where there is real crime going on and where law enforcement is needed, so that they can potentially chase a farmer or an operator out there spotlighting or teaching their kids to drive or a group that are out there testing their vehicle or motorbike on a track that has been purposely built?

There are many unanswered questions, and that will impose significant burdens on the implementation phase of this legislation. In conclusion, to me, I see this as a bandaid response that disproportionately affects farmers and particularly those living and working in the regions. The government has clearly failed to conduct any reasonable or in-depth consultation with rural and regional communities; otherwise they would have realised how absurd this legislation really is.

Obviously, the Liberal Party welcomes any attempt to improve and enhance safety on our roads. We are always willing to listen to the government as to how it can improve safety standards, but a bill that goes too far in targeting people going about their private business on their private property is something that we will not stand for.

Of course, the Liberal Party holds the utmost respect for individuals' freedom, and this bill is an attempt to remove the freedom from those living and working in rural and regional areas. I will look at this bill further, because I feel that this is a serious burden on particularly people in regional and rural areas. I seek leave to continue my remarks.

Leave granted; debate adjourned.

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