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House of Assembly - Fifty-Second Parliament, Second Session (52-2)
2013-09-11 Daily Xml
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STATUTES AMENDMENT (DANGEROUS DRIVING) BILL

Committee Stage

In committee.

(Continued from 10 September 2013.)

Clause 4.

The CHAIR: We are up to clause 4, and I think when we left it the Deputy Leader of the Opposition had asked a question of the minister.

The Hon. J.R. RAU: The answer is yes, because it is a vessel, and a vessel has the same meaning as in the Harbors and Navigation Act.

Mr WHETSTONE: Minister, there are a couple of issues, particularly with vessels on the river or on a tributary to the river. What is left to independent discretion is: where is the determination with respect to crown land or the river which is on crown land. We have fluctuating rivers and, at some point in time, there will be vessels which will potentially compete through the creeks on the river. They have to endure crossing into private property because, when we have a high river, the water level then encroaches.

For the sake also of competition water skiing or competition boat racing on the river, we have corridors which are proclaimed for the event, and that allows people to compete but it also allows the general public to be able to utilise that corridor while the competition is on. The issue I have is someone coming out driving dangerously within that corridor, impeding on a competition which is on the river or which, in another instance, would be potentially on the road. What is your interpretation in relation to addressing corridors or addressing high river into private property?

The Hon. J.R. RAU: I am advised that, under the Harbors and Navigation Act, all waterways, whether they be a creek, river or whatever, are treated as the same. It may be that, for the purposes of a particular event, a corridor as the honourable member has described is designated by the operators of the event, but that has no impact at all on the operation of this particular piece of legislation.

I am advised that, as far as the Harbors and Navigation Act is concerned, water generally is regulated. Whether or not, for the purposes of a particular event, there are markers or buoys or dedicated lanes or something, it does not impact on the regulation. I am also advised that there are already penalties under this piece of legislation; it is just that the 19A penalty is a higher penalty.

I stand to be corrected but, in answer to your specific question, if there is a designated corridor on the river and people are engaging in a particular event in that corridor and then somebody comes into the corridor and causes trouble from outside or whatever, they are still on the water, they are still operating a vessel and, if what they have done constitutes reckless and culpably negligent behaviour, they potentially have a problem.

Mr WHETSTONE: Minister, the difference between what happens on a waterway and what happens on a road is that the waterway potentially moves, so we have a rising river level. Once you go off the main channel into a creek and, if people are competing in that creek, they are potentially moving onto private property or back onto crown property. When we are talking about the road, the road does not move. That is the interpretation that is still a little confusing to me, but it is also very concerning to the people who are organising these events and competing in them.

The Hon. J.R. RAU: Again, my understanding is that the waterway, wherever it might be, albeit a section of the waterway which is otherwise confined within a private land holding, is still already governed by the Navigation Act. All we are doing in this proposal is to make it clear that that section 19A offence would also apply there. The critical element is not the ownership of the land on either side of the river, however wide or narrow that might be according to the time of the year or whatever. It is the fact that it is occurring on the surface of the water; that is my understanding.

Section 19A has always applied to waters wherever they might be. This amendment does not touch whether or not section 19A applies to waters; it already does. This amendment simply deals with the question that I was trying to explain yesterday as to whether or not the person who ultimately is injured or killed is a friend or an unknown person to the driver of the vehicle basically. That is all it does; it does not change any of the other arrangements.

Ms CHAPMAN: Recreational activity whether that is a race on a road—although I will come to street racing in a moment—but more particularly on a waterway, has dangers to the extent that we have a motorised piece of equipment, usually at some speed and there can be levels of competence of those who are in charge. The way I am reading the amendment to this area is not as you say to introduce marine vessels as some kind of new pieces of equipment that are going to be included but we are going to expand the victims. Rather than the member of the public who might be a spectator or whatever, we really are talking about passengers.

The Hon. J.R. Rau: Correct.

Ms CHAPMAN: People who get in the car or get into the boat when somebody wants to recklessly conduct themselves in the manner that is caught by this provision and then cause the death of or injury to that passenger. The cases that have been referred to in this debate highlight where there have been unsuccessful attempts to go down the line of prosecuting somebody in that circumstance. This is the 'mates' clause, as I see it. Sometimes they may go into that piece of equipment voluntarily, act in a manner which is careless at least or even go to the extent of being a joint venturer in the exercise, as unwise as that might be.

It is an area which our side of the house has received with some caution. Obviously we are concerned that people who act in a manner to hurt others should have some accountability, but I think in the application of this legislation there is going to be an enormous amount of work to identify and be able to support a case that will relate to sufficient evidence to be able to prosecute somebody successfully when the likely witness to be able to deal with this is going to be dead or severely injured.

My question is in relation to the speed on roads, and street racing is already provided for in the act, and it is to ask what the situation is with speed racing on riverways or lakes, or the ocean for that matter, that currently applies. I do not know whether this is even a practice or whether there is behaviour out there that is already attracting penalty. Can the attorney identify whether there have been any cases of successful prosecutions under this clause under the current legislation and also whether there are any examples of circumstances where a prosecution has not been able to proceed which this amendment will now remedy?

The Hon. J.R. RAU: First of all, I think in the remarks the honourable member made—you were able to really capture the point very clearly in your initial remarks about what this is doing: it is simply saying that where a random person (now) who is killed or injured in one of these events could result in a prosecution against the driver, but if it is their best mate, by reason of their association, they could not. We are just stopping the best mate from being somebody who can be a victim with no punishment; that is all we are doing. So, it is not disturbing any other things, or any other aspect of the thing.

The second thing—and it is quite important; I think I mentioned this briefly yesterday—is there is a second limb to the requirement: not only does the behaviour have to be culpably negligent, but it has to have caused the injury. To some extent, that might deal with the joint enterprise matter that the member for Bragg referred to.

It is important for people to remember that this is a criminal provision, not a civil provision. This is different to saying, 'Look, if you get in the car with a drunk driver and you are injured, your claim is going to be barred because of your own contributory negligence,' or whatever the case might be. That is me as a victim seeking to recover from the pooled insurance scheme in certain circumstances where I have actually contributed, according to the law, to my own injury. We are not talking about civil recovery here; we are talking about a criminal behaviour, which is an order of magnitude above that. We are talking about something which is so reprehensible that the community expects us to punish people with a criminal penalty, not a civil debt.

As to the particular question about how many prosecutions there have been and so forth, I have to say that I do not have that information. I have checked and we just do not have it available. But I am advised that sections 69 and 69A of the Harbors and Navigation Act are probably the more likely provisions that would be applied.

For the benefit of members, section 69 is entitled 'Careless operation of a vessel'. 'Careless' is clearly less than what we are talking about here—this is gross carelessness, if you want to call it that. Under section 69 of the Harbors and Navigation Act there is already an offence of operating a vessel without due care; that has 12 months' imprisonment for an aggravated offence or $5,000 for any other offence. It is a lower order of magnitude, but it is a lower bar to be convicted of the offence.

The other one is section 69A—Dangerous operation of a vessel, which says, 'A person who operates a vessel at a dangerous speed or in a dangerous manner is guilty of an offence,' and there is an imprisonment there for a maximum of two years. There are other provisions relating to alcohol, drugs and so forth. So, there are already those provisions sitting in the legislation. My feeling about this would be that it would only be in the most extreme, unusual and rare circumstance that the prosecuting authorities would not have regard to those offences, and would be looking at the sort of offence we are talking about here.

Clause passed.

Clause 5.

Ms CHAPMAN: My first question relates to the 'Dangerous driving to escape police pursuit' amendment, which did not receive any attention in your contribution in the debates, Attorney, but I have assumed, for the purpose of completeness, that this is being applied to that serious offence as well, for consistency, but it does raise some questions.

Firstly, is there any reason why motor vessels are not included in this circumstance? It only relates to motor vehicles. I do not know how often police are in motor boats and how many times people are trying to escape them, but I could imagine on a busy River Murray or a seaside place that that would be a very difficult circumstance. I just wonder why that is not there at all.

The Hon. J.R. RAU: It is a good question, and I think the answer is basically that police chases routinely happen on the road, and I am not aware, and the member for Chaffey might or might not be aware, of high-speed police chases in boats. I do not know of them. I do remember in Live and Let Die there was an episode where blokes were jumping over barrages and things in high-powered boats. I do not think we can call that in aid, but I do not know of that being a problem. I can tell members that there is a big problem with police chases, as you would be aware from reading the papers, when this happens.

What has happened is some of these characters are almost invariably in cahoots (an interesting thing) because they are in a criminal enterprise together, so it might well be that if there is a crash and one of them is killed, the driver is able to say, 'Well, he was my mate,' so he is not a member of the public. The case is that police often are finding it really difficult to prove, and I will just give a very brief example.

They know these people, usually, because they have a bit of a record; they hear that there have been a couple of hold-ups at service stations, grog shops or whatever the case might be; they go out looking for these blokes; they give chase to them; and then these characters drive at extremely dangerous speeds, often on the wrong side of the road into oncoming traffic. The police break off the pursuit in order to protect the safety of other members of the public. When they ultimately recover the car, they cannot prove these blokes were in the car and, if they can prove they were in the car, they cannot prove that they were in the car and committed the other offences.

So, the effect of this will be that, if you have a bunch of crooks out there committing offences and speeding around the place and then one of them crashes the vehicle or for some other reason kills one of their passengers, if nothing else, the police will be able to pinch them under this, even if they cannot identify them and put them in the place of the burglary, for example, or have not actually caught them in the act of a police chase.

Ms CHAPMAN: That answer just gives me more concern. As you would be aware, Attorney, there is already provision for endangering the life of another under the legislation under section 29. In fact, there is extra provision under this section to ensure that there is not a circumstance where you can be charged with both, for obvious reasons—we understand that.

Police chases and the consequential death and injury to people in this state are not very good statistics, I suggest, and there has been a lot of controversy about the continuing of a pursuit in a circumstance which could really just promote the offender to do even more unsafe activity and put people's lives at risk. Clearly, it is a fairly controversial issue, I suggest, because there are circumstances where it is justified to continue the pursuit and there are other circumstances where, tragically, that promotes an environment where it is even more likely that someone will be hurt.

I do not say that as a negative reflection on the police. I simply make the point that when people get into that situation and cause the vehicle to leave an area and a pursuit to ensue, they are no doubt doing it deliberately, recklessly and all those other things, but to introduce a penalty just because the police cannot catch them for something else I think is inappropriate. In any event, no doubt we will all continue to have a different view on this question of escaping police pursuit and the consequences that go with it. My next question is: had the police asked for this amendment, and if so, did it pre-date the amendment that relates to section 19A?

The Hon. J.R. RAU: A consequential amendment so that there is no misalignment between basically comparable provisions.

Progress reported; committee to sit again.


[Sitting suspended from 13:00 to 14:00]


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