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House of Assembly - Fifty-Fourth Parliament, Second Session (54-2)
2021-03-03 Daily Xml
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Criminal Law Consolidation (Causing Death by Use of Motor Vehicle) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 3 February 2021.)

Mr ODENWALDER (Elizabeth) (16:19): I rise to speak on the Criminal Law Consolidation (Causing Death by Use of Motor Vehicle) Amendment Bill. I indicate that I am the lead speaker for the opposition in this place and also indicate for clarity that I will be supporting the provisions of this bill within this place. I cannot speak for the actions of my colleagues in the other place. They are reserving their right to have a look at it, as they like to do, but I am happy to support it, at least at this stage.

Members will know that I am passionate about road safety and about public safety generally. When I graduated from the Police Academy in the last century, my intention was to pursue a career as something glamorous like a detective or something perhaps a bit more cerebral, like a prosecutor. But by the time I finished at the police, I had a very strong respect for the road traffic police, the traffic section. They do an extraordinarily hard job. They work very, very hard, and are much maligned and I just want to put on the record my respect for every single person who works for the traffic section of South Australia Police.

The Hon. L.W.K. Bignell: I thought you would have been in the mountie division.

Mr ODENWALDER: I tried for the dogs, but the former Speaker wanted to get rid of the dogs. I am very proud of the previous government's record on road safety and public safety generally. Some of the reforms and improvements brought in by the previous government include:

the Graduated Licensing Scheme for young drivers;

static and mobile driver testing for alcohol and drugs;

the Mandatory Alcohol Interlock Scheme;

the introduction of a 50-kilometre default speed limit in urban areas. I am a very strong advocate for that, and, as far as I am concerned, the slower vehicles go in our suburban areas the better;

higher penalties for a whole range of driving offences, such as escaping police pursuits and those types of offences;

a network of safety cameras at high-risk intersections;

point-to-point speed cameras in regional areas to enforce average speed limits over long distances;

blackspot programs to improve sites with poor crash histories;

infrastructure safety programs such as shoulder sealing; and

legislation to impound vehicles and crush the vehicles of hoon drivers.

In earlier terms, the Labor government reduced the legal blood alcohol limit from .08 to .05 and implemented a whole range of other safety measures around the alcohol and drug testing regimes. By contrast, until indeed yesterday, this government's contribution to road safety has been largely to axe the Motor Accident Commission and replace it with a very difficult to understand process. As far as I can see, the police obviously do their job in terms of enforcing road traffic—

The Hon. V.A. Chapman: You got rid of the Motor Accident Commission.

Mr ODENWALDER: The government has replaced it with a very confusing system whereby South Australia Police and the Department for Transport share the responsibilities previously undertaken by the independent Motor Accident Commission. SAPOL, of course, continue to do their very good work on road safety. The department do whatever they are funded to do in terms of making our roads safer, but in terms of the overall strategic and promotional aspects of road safety, I think that something has given way. We have seen that reflected in the increases in road trauma recently, despite the decrease in traffic movements brought about by the COVID pandemic.

Another thing they have done is belatedly come to the party on motorcycle licensing, but they still stubbornly refuse to meet with the Motorcycle Reference Group and to reconvene the Motorcycle Reference Group to get a holistic approach to motorcycle road safety. The Motorcycle Riders Association and all of the road safety experts, including CASR, the RAA the Ulysses Club and other groups of riders, are calling for a holistic approach to motorcycle road safety, particularly in the face of some horrendous figures we have seen over the last few years.

A third of the deaths we have seen on our roads this year—not to mention the incidental road trauma—have been motorcyclists. The current government's stubborn refusal to meet and reconvene with the Motorcycle Reference Group is a source of confusion, not just to me but to the motorcycle groups.

As I said, we do cautiously welcome the bill, particularly in this place. I will not be hindering its passage. This bill amends section 19A of the Criminal Law Consolidation Act, dealing with causing death by the use of a vehicle. Again, thanks to the Rann government, the maximum penalties under this legislation are already very high. For the first basic offence, there is a maximum prison term of 15 years with a 10-year licence disqualification, although of course the court can impose any disqualification period it sees fit.

For any subsequent offences or a first aggravated offence, the maximum penalty increases to life in prison, along with an uncapped licence ban. Then section 5AA lays out the circumstances in which offences may be aggravated. These may include committing the offence while street racing, while trying to escape police, or having a high blood alcohol concentration, among other factors.

Despite these very heavy maximum penalties, a potential gap was identified where alleged offenders may continue to drive while on bail, or while police were considering whether to lay charges. In response to this, the bill proposes to amend the act to impose an immediate loss of licence in two circumstances. The first is where a person is charged with causing death by dangerous driving, which is proposed under new section 19AE of the act. The second is where police reasonably believe that a person has caused death by dangerous driving, and this is proposed under a new section 19AF.

Both these new sections further provide that where a person does not have a licence they are disqualified from gaining or holding a licence. These provisions are balanced, of course, by the ability of a court to end the suspension or the disqualification where exceptional circumstances exist, and that the court order would not result in a substantial risk to public safety.

I note just in closing that there are some stakeholders, including lawyers, who have expressed concern about some of the unintended consequences arising from this bill. Concerns have been raised about circumstances where police suspicion may be misplaced and the person then experiences massive disruption and costs in seeking to have the ban or suspension overturned.

Labor, of course, acknowledges these concerns but, as always in my mind and in the mind of the Labor opposition, public safety is absolutely paramount. There will be questions, of course, for the Attorney in this place, but particularly in the other place where we have a longer time to consider, during this amendment process, but I will not be hindering it in this place.

Some of these questions that we will get to, hopefully sooner rather than later, will cover dealing with situations where a person is subject to an erroneous application of the law, and the ever present question of police training on the use of their discretionary powers. There is a whole book we could read out on what those discretionary powers might mean in terms of the application of this law. For now, of course, Labor is always focused on road safety and focused on public safety in a way that this government has yet to prove itself to be. I commend this bill to the house.

Mr PEDERICK (Hammond) (16:26): I rise to make a contribution to the Criminal Law Consolidation (Causing Death by Use of Motor Vehicle) Amendment Bill. It is a very, very serious subject. I have been aware over the years in my electorate of some terrible outcomes with respect to people who have been killed in a motor vehicle accident. That is a terrible tragedy, an absolute tragedy, and then there is the other side of it: how do we deal with the offender at the time?

What I can say is that it is an absolute tragedy that someone loses their life but there is also another situation going on with the alleged offender as well. Notwithstanding that, we need to make sure that people can live their lives in the safest way possible and put the appropriate legislative framework in place so that we get the right outcomes across the community.

The background to this bill is that there was a strong media campaign in the local papers and the Road to Justice campaign, which called for a mandatory 10-year minimum term for the offence of aggravated causing death by dangerous driving, an end to suspended sentences for death by dangerous driving with penalties to be served either in custody or in home detention, and also an end to the 93 per cent sentencing discount—created by plea-bargaining—for charges of death by dangerous driving down to aggravated driving without due care.

Also called for was a minimum five-year licence disqualification on top of the mandatory 10-year disqualification for each life taken in a crash. There was also a call for alleged killers to be banned from the roads while on bail, and also a call for the employment of specialist victim support officers to assist families, particularly children, of people killed in road crashes during the court process.

The primary death by dangerous driving offence is found in section 19A(1) of the Criminal Law Consolidation Act 1935 (CLCA), which relates to the unlawful killing of another person as a result of culpable, reckless or negligent driving. The maximum penalty for a first offence is imprisonment for 15 years and mandatory licence disqualification for at least 10 years. The maximum penalty for a first offence, which is an aggravated offence, or for a subsequent offence is imprisonment for life and mandatory licence disqualification for at least 10 years.

In some circumstances, a lesser charge may be proceeded with, such as section 45(1) of the Road Traffic Act 1961, which provides that it is an offence to drive without due care or attention or without reasonable consideration for other persons using the road. Causing death is an aggravating factor and carries a maximum penalty of imprisonment for 12 months and mandatory licence disqualification of not less than six months.

In respect of the proposal around mandatory minimum sentencing, it is deemed that it is not appropriate for this offence. Mandatory sentences fail to take into account all the circumstances of the offence and the severity of the offending. There is a difference between inattentive driving and driving recklessly at speed while under the influence of alcohol or drugs. Similarly, we do not support the proposal to remove the ability of the court to impose suspended sentences for death by dangerous driving.

A court may only suspend a sentence of imprisonment pursuant to section 96(1) of the Sentencing Act 2017 if it thinks that good reasons exist for doing so. The question of whether 'good reasons' exist involves a weighing of competing factors such as the objective seriousness of the offending, the personal circumstances of the defendant (including any criminal antecedents), the defendant's prospects for rehabilitation and the need for general and personal deterrence. The primary purpose of sentencing is the protection of the community. In the last five years, only seven of 44 defendants had suspended sentences imposed. In certain circumstances, the court must in any event be persuaded that exceptional circumstances exist for that sentence to be suspended.

The media campaign, the Road to Justice campaign, has called for an end to the 93 per cent sentencing discount that they consider arises when a death by dangerous driving as an offence is plea-bargained down to an offence of aggravated driving without due care. We believe that this statement does not reflect the fact that plea-bargaining includes multiple considerations, not least being whether the more serious charge is supported by the evidence that is presented and whether or not it is in the best interests of victims and their families to be subjected to a drawn-out and traumatic court process that may not result in a conviction. Indeed, the Director of Public Prosecutions wrote to the media regarding this.

Guideline 2 from the Office of the Director of Public Prosecutions' statement of prosecution policies specifies the relevant factors: whether the sentence is likely to be imposed for the negotiated charges would be appropriate for the criminal conduct involved, the desirability of a prompt and certain resolution, the defendant's criminal history, the strength of the prosecution case and the views of investigating police and victims. South Australia already has a significantly longer period of mandatory licence disqualification—10 years—than other jurisdictions. In New South Wales, a licence is disqualified for three years for a first offence; in Victoria and Western Australia, the minimum period is two years; and for Queensland it is for 12 months.

We do not consider it necessary as a government to further invest in specialist victim support officers. The Attorney-General's Department already provides the following supports to persons affected by road trauma, including funding to the Road Trauma Support Team since 2005, funding to Relationships Australia South Australia to provide trauma-informed therapeutic counselling to victims of crime, and the Witness Assistance Scheme in the ODPP provides liaison and support to both victims and witnesses in complex prosecutions throughout the court process.

Also, the Commissioner for Victims' Rights provides ongoing support to victims through the criminal justice process, and persons who are affected by road trauma can access general legal advice via the Legal Services Commission and community legal centres, which are funded by the Attorney-General's Department under the National Legal Assistance Partnership 2020-25.

The media campaign probably did not give a great overview of the knowledge and awareness of the services that are currently available, so the Attorney-General's Department will certainly do more to work with the Commissioner for Victims' Rights to further promote the Road Trauma Support Team and other services that are currently available to victims of road trauma.

This bill inserts new section 19AE in the Criminal Law Consolidation Act to impose an immediate licence suspension or disqualification when a person is charged with causing death by dangerous driving. This will ensure that all offenders who are charged with this offence are prevented from driving, not only those who are arrested. Under section 19AE(4), a court may lift the suspension or disqualification if satisfied, on the basis of evidence given on oath on behalf of the person, that the suspension or disqualification would result in severe and unusual hardship to the person, or a dependant of that person, and the person does not pose a substantial risk to other members of the public.

The bill also inserts new section 19AF in the CLC Act. Section 19AF provides that a police officer who reasonably believes a person has committed an offence against section 19A(1) may give the person a notice immediately suspending their licence or disqualifying them from holding or obtaining a driver's licence. This provision will ensure that police are empowered to protect road users immediately after an accident causing death takes place and where a charge is not issued immediately. This may be appropriate where further evidence is required in respect of the circumstances and cause of the accident before a charge is issued.

In cases where a person is arrested and immediately charged with an offence of causing death by dangerous driving, bail authorities already have the power to ensure that a person not drive a motor vehicle as part of the conditions of a bail agreement. There is a presumption against granting bail in relation to a person charged with an offence under section 19A(1) if that offence was committed in the course of attempting to escape police pursuit. This means that, unless the applicant can show the existence of special circumstances justifying their release on bail, they will be remanded in custody pending the outcome of those charges.

This shows that we as a government are taking serious action against people who are found to have caused death by dangerous driving. As someone who does around 60,000 kilometres a year, I witness lots of different driving habits and lots of different roads. In saying that, I am a firm fan of our campaign to bring the initial eight highways, but hopefully a lot more than eight, across South Australia back to the standards of 110 km/h.

Just digressing slightly from the direct impact of this bill, it has been hard to convince communities when there are roads like the Browns Well Highway and the Ngarkat Highway. Basically, Pinnaroo is in the middle. It goes through to Loxton one way and down to Bordertown in the member for MacKillop's area in the other. Yes, those narrow roads used to be able to be travelled on up to 110 km/h. What has changed? Obviously, the guidelines around what roads can be rated at 110 km/h.

I am very proud to be part of a government that is investing about $72 million into those eight roads. I would like to put on the record that, in the case of the Browns Well and Ngarkat highways, the two roads between Loxton and Bordertown with Pinnaroo in the middle, they are taking about $42 million of that because there is a linear length of 200 kilometres of shoulder sealing being done. Thankfully, they found that nasty little piece about 20 kilometres towards Loxton, out Pinnaroo, so we found $5 million extra to invest. I am very pleased that we as a government have found that extra $5 million. I am told that it is coming together very well.

At a public meeting on a whole range of events before the last election that Pinnaroo, which was very well attended by locals, I managed to talk to some people about how it ever got constructed over this crab-hole country, this amount of road several kilometres long outside of Pinnaroo. They said it just was not built right when it was put there in the sixties, I think, under contract. So thankfully an age-old problem will be fixed.

I have mentioned in this house before that some ambulance officers from Pinnaroo said, 'Right, we are going to take you for a ride out in the ambulance and see how you go as the local member on a rush through towards Loxton in an ambulance.' What they told me afterwards was that usually if they have someone who needs an emergency hip operation or something, and they are in the ambulance, they back off to about 60 km/h. But, no, they strapped me in tight, put me in the ambulance, a pseudo patient, and they did not back off from 100 km/h. Yes, the suspension was tested, but that was the whole plan to show me what was going on. I was well aware of that because I had driven over it multiple times, but it is pleasing to see those roads being taken up to speed.

As life goes on, we are going to have better outcomes in the future. I will forever campaign, as long as I am in here, to duplicate the Dukes Highway all the way to the border. Work has not been done on the Dukes Highway for the last 40 years, since Swanport Bridge was opened in 1979. Even back then, I was surprised, when I drove up to it as a young bloke at 17, that it was a single-lane bridge each way. That is all part of the road work safety that is going on.

We must have this work going in light of road trains and B-doubles, B-triples, B-quads and AB-doubles all accessing a lot of these roads in the freight task. People say we have all these large trucks on the road, and they are still not matching some of the combinations, I do not think. They have been carrying a 100-tonne weights on top of their truck weights in Western Australia for many years now. That all has to be managed.

As far as road safety is concerned, those big trucks—road trains, B-triples, B-quads and AB-doubles, which are a semitrailer and a B-double on the back—cannot go down the freeway and come out at Glen Osmond, which is a good thing for the freight task. It is efficient for truck operators to take those extra kilometres, head out around Murray Bridge and out towards Halfway House Road, and go around on the Sturt Highway back into Adelaide through the top.

We need to do what we can to keep people safe on our roads in general. Obviously we have strict drink-driving laws, and I have seen the direct effect of someone I know well who did cause death by dangerous driving. It was a real tragedy. Someone innocent was killed through no fault of their own, just by being where they were they were taken out. It is a terrible thing for the family of the person who was killed—a terrible thing.

We must keep educating people that if it is not safe to drive then do not drive. I stress that to my boys. When they are driving somewhere I usually let them take my ute, and I say, 'Throw your swag in the back, and where you have your first beer is where you sleep.' That is the rule of dad, especially on P-plates, which are for three years now, I think. It has worked so far, and my son tells me he does not drive—there is only one driving; the other one is on learners, so he does not drive—when he has had a beer.

We need to keep up that education process because the best thing in terms of working against death by dangerous driving is for it not to happen at all. The more we can do then the more we are literally saving lives and saving the grief of someone who has caused death by dangerous driving—which is also another issue to be dealt with here, and rightly so. It needs to be dealt with in a hard manner and a just manner by the courts. I commend the bill.

Mr McBRIDE (MacKillop) (16:46): Today I rise to make a brief contribution in support of the Criminal Law Consolidation (Causing Death by Use of Motor Vehicle) Amendment Bill. Road safety is a vitally important issue for all road users in our state, and we have a system of education and awareness-building to support the best efforts of our road users to be the best and most responsible users they can be. Unfortunately, we also have road users who make the choice, on occasion, to drive in a dangerous and reckless manner, and this can have devastating consequences for other road users, their families and loved ones.

All deaths on our roads are tragic, but deaths on our roads due to dangerous and reckless driving are unspeakably hard to deal with, and we need to ensure that appropriate safeguards are in place to ensure that drivers involved in these incidents are not allowed to continue to drive. This bill introduces measures to impose an immediate ban on driving for those who unlawfully kill another as a result of dangerous driving.

The changes brought by this bill address a current but limited shortcoming of our statutory framework. They address the concerns of families impacted by fatalities who have raised concerns about the potential for a dangerous driver who has caused a fatality to be able to continue to stay on the road. These changes will ensure that those who are charged with dangerous driving, regardless of whether they are arrested or not, will automatically have their licence suspended or be disqualified.

Some of the strong changes we have put in include a mandatory 10-year minimum term for the offence of aggravated causing death by dangerous driving. Another one is the end of suspended sentences for death by dangerous driving, with penalties to be served either in custody or home detention, and an end to the 93 per cent sentencing discount created by plea-bargaining charges of death by dangerous changing to aggravated driving without due care.

Another one is a minimum five-year licence disqualification on top of the mandatory 10-year disqualification for each life taken in a crash. Alleged killers are to be banned from the roads while on bail, and another one is the employment of specialist victim support officers to assist families, particularly with children, of people killed in road crashes during court processes.

It is important to describe what has gone on over the last 10 or 20 years with our road laws, where we have gone since I first started driving, and the things that have taken place. First of all, through the nineties I was an apprentice down at Port Adelaide and driving across Adelaide. The first cause of it was what we call ram raids. We saw stolen vehicles being used to drive into shopfronts. They would take out the possessions, steal them and run off in another vehicle if the first vehicle was incapable of driving any further. There would be another vehicle ready to go.

The instant solution to that at the time was to put bollards in front of these shops to protect them from being ram raided. That was a new frontier of development and ingenuity to save people's possessions, businesses and the like. The other one that comes into play, which we have seen recently in probably the last five or 10 years, is when vehicles are used in almost terrorist-like activity. In malls and walking places, we now see large cement bollards being put in place because of vehicles that could be stolen or not even owned by the occupants being used to mow down innocent victims.

The reason I bring this up is that, as tragic and serious as these offences are, there is not much difference between someone who deliberately goes out, steals a vehicle and acts in a terrorist way, which we have perhaps seen overseas more than in Australia, and a person who is driving absolutely recklessly. One example I give was in Melbourne. A vehicle was stolen in the city streets in the centre of Melbourne. He was hoon driving, trying to take out victims, driving down footpaths and these sorts of things.

Once a driver gets to this sort of situation and uses a vehicle in that manner, there really is a question of how you control and maintain law and order and achieve what I think is the ultimate goal of government: to protect the innocent and those who are hardworking, obliging and trying to do their absolute best to fulfil and meet society's requirements and needs. I remember that some victims of these sorts of accidents were nurses and perhaps even doctors. They were hit and mowed down. I think it was in London. We see vehicles, stolen trucks and those sorts of things in such incidents.

It causes horrific turmoil in society. You can be going about your daily business, going to work, even just getting some exercise near the roads, and someone in a vehicle is driving in a reckless and dangerous way and perhaps in a deliberate way, as in some of these nasty terrorist-type incidents. Ultimately, there is no difference.

If you are in charge of a vehicle and you are totally intoxicated, or perhaps you have even lost your licence previously for other due reckless issues, one then has to question why you should be allowed to go out, take the reins of a vehicle again and then be caught driving in a manner that puts other people's lives at risk.

It is totally unacceptable, and I think society is looking for strong leadership and strong consequences. I think this is where this bill is heading, trying to save the innocent from people who perhaps have an irresponsible outlook on life. I refer to what my counterpart from Hammond just said. Back in the eighties, seventies and earlier, one of the goals of leaving school—perhaps you had not even done year 12 but had gone out to get a trade—was to own your first car. It was almost like a rite of licence to life. A lot of times, these cars were described as being to attract the opposite sex. They were appealing.

Mr Pederick: What did you drive?

Mr McBRIDE: I did not get the choice of V8 cars with multiple exhaust systems to impress anyone, I can assure you, but there were a lot of males who obviously opted for those sorts of antics. We do not see it today as much as we used to because I think society is trying to teach that there is more to life than just getting your car, mobility and success in life. It all comes back to a culture of respect that roads and cars are a form of transport, and the form of transport is to take people from A to B in a safe and meaningful manner.

In today's terms it is quite obvious that, with the demands of financial pressures, people's goals and aspirations have changed. Prior to COVID, an 18 year old or 19 year old coming out of year 12 had ambitions of travelling overseas for a year off, what they call a gap year. They may not even own a car these days, I would imagine, and probably do not even care for it when they leave school. The first thing is to get a plane ticket and be a backpacker around Europe. I think these goals and changes in life around what a vehicle actually is have done a full circle to really respecting the use of transport and the need for transport.

When we see in the news at times a car stolen by teenagers, sometimes even under the age of 16, recklessly driving throughout the local streets of Adelaide streets and then, for all the wrong reasons, causing an accident and causing the death of an innocent—perhaps another passing vehicle or even just people walking on the street—it really puts a shiver up the spine of the public in general.

Again, the public looks to our police force, our law enforcers, and the government to have strong laws in place to do all we can to deter the young and perhaps reckless. Perhaps they are irresponsible or perhaps naive. Perhaps they are disenfranchised in some way or perhaps they have had a tough life. This is not an answer or a means to an end.

These sorts of strong deterrents of gaol term and detention are probably the only means to stop and try to harness these wayward people who think that the vehicle is some sort of thrill toy, or death toy for those on an ambition to cause maximum havoc. Perhaps some people even use them as a release valve for all their tension and difficulties in life. I hope these sorts of laws we are putting in place actually have the outcome that is intended.

I fear and I hope it does not turn out that we catch innocent people who are perhaps in a hurry to get somewhere, do not abide by the speed limit and get done for the wrong reasons. This is really to do with those who are well and truly outside the law. I hope there is some discretion or it is quite obvious to police and law enforcers that there is a clear divide, a black and white line, between someone who is actually driving in this really reckless manner to cause death by dangerous driving and what I would call busy people not showing as much due care to the speed limit as they sometimes should and in a hurry to get from A to B, as some of us have been caught out sometimes doing.

Another issue is education, as the member for Hammond alluded to. Our L-plate and P-plate provisional licence system is there to educate our young drivers coming through the system of the privilege and responsibility it is to have a licence and the due care required when you have that licence to do everything to protect yourself as well as others on the road.

He alluded to the consumption of alcohol and the great difficulty that he and I know, because we do not have public transport out in the country, of how important it is that our young and those who are on their Ps and Ls, where zero alcohol is the limit, know that other options have to be found once alcohol has been consumed. That individual driving home is no longer an option and other options are found.

This is one of the things that we try to educate. I know through the football clubs and sporting clubs that most nights, when we have the best player announcements after all that has gone on during the day's events, there is often a reminder to everyone in those football and netball clubs to look out for one another, to back each other up, and to make sure that if you see someone who is drinking that they are offered a ride home and that there is an alternative to them getting in their own car, driving illegally and perhaps causing themselves or anyone else injury or death.

Another thing I think is really important around this whole scenario of licences, protecting life and the strengthening of these laws we are looking at here today is defensive driving. It is one of the things I think there is still an opportunity for out there in society today. Our cars are so modern, with features like Bluetooth. Air conditioning was a privilege in cars back in the eighties when I first bought my car. Everything on the steering wheel is remote controlled. I still think that we can be distracted too easily in our vehicles.

Defensive driving is ensuring that when you are going to do anything in your car—that can be anything from grabbing a drink to setting the air conditioning to a warmer or cooler temperature —you do it in the right place and that you do not cause any accident to anyone else. There is nothing worse than being distracted picking up a drink or changing the air conditioner or music when you have a 40-tonne B-double coming towards you. It is really not highlighted that there is no point sitting on the middle dividing line of any road as a car is coming towards you because if you both do it you are both going to collide. However, as obvious as this sounds, it is not highlighted in the system.

I was taught in the country on dirt roads, which have a maximum speed limit of 100 km/h (I think all dirt roads do), that you always go over to the left-hand side of the road just in case someone else who is coming on the other side over a blind hill is in the middle of the road. You are always in this defensive driving mode and trying to outsmart the other driver, who may not be thinking no-one is coming around that blind corner or blind bend.

I think those sorts of options and those sorts of lessons need to be highlighted on a yearly basis as a reminder to all road users that we are looking out for each other and that we want to be responsible. We all want to be able to get from A to B safely without causing any injury or death to ourselves so that the next day comes as easy as that day.

It is interesting that hoon driving might be caught up by these tougher, stronger laws, and we have car crushing now. Hoon driving is probably a hangover of the sixties, seventies and eighties, when the car and the keys were some sort of licence to life. It is a prefabricated thought process of making it when you had a V8 car.

These days, racing car tracks and airstrips are sometimes used as a playground for cars in an authorised manner and are monitored and matched with law enforcers. Those sorts of options were not around back in the eighties and nineties that I remember. They are today, and I hope that is where people—

The Hon. A. Koutsantonis: You're too young to remember the eighties and nineties.

Mr McBRIDE: As you might be. I think that the changed culture towards cars has been a good change. Another thing that I think is sad about our road laws today is that our cars have never been as safe as they are today. In the seventies, our speed limit was 70 miles an hour before we went to metric, and 70 miles an hour is faster than 110 km/h. These cars were the Holden Kingswoods of the day.

If we look at modern technology today, we have air bags, automatic braking systems and warning systems in cars, yet we are going slower than ever and all our roads are slower. I wonder why we have not given the opportunity to the public to show us that they are capable of doing a speed limit of 130 km/h as an option and why those options are not considered as a privilege because the public can drive to those speeds without causing accidents and the roads are safe enough to endure those speeds.

Those are the sorts of options I think we should be looking at because I can tell you that they are happening in other places around the world. In fact, they used to happen in the Northern Territory, where there were roads without a speed limit at all. In fact, I think when they brought the speed limit in on one of these roads the crash rate or the incidents went up because people were going to sleep at the wheel.

There are some options there that I think are worth considering. We should be participating in responsible driving, and we want good driving outcomes. We also need to reward our population when they do the right thing but obviously catch those who do not do the right thing. I will sum up by saying that I think tougher laws in these areas will be a good thing. I hope that they are not abused. I hope that society recognises this is done for the protection of society. I commend the provisions of the bill to the house.

The Hon. V.A. TARZIA (Hartley—Minister for Police, Emergency Services and Correctional Services) (17:03): I also rise to speak to the bill. As we have been told, the primary death by dangerous driving offence is found in section 19A of the Criminal Law Consolidation Act 1935 (CLCA), which relates to the unlawful killing of another person as a result of culpable, reckless or negligent driving.

The maximum penalty for a first offence is imprisonment for 15 years and mandatory licence disqualification for at least 10 years. The maximum penalty for a first offence which is an aggravated offence, or for a subsequent offence, is imprisonment for life and mandatory licence disqualification for at least 10 years.

In some instances, a lesser charge may be proceeded with, such as section 45(1) of the Road Traffic Act 1961, which provides that it is an offence to drive without due care or attention or without reasonable consideration for other persons using the road. Causing death is an aggravating factor and carries a maximum penalty of imprisonment for 12 months and mandatory licence disqualification of not less than six months.

These will be the toughest or equal toughest of these sorts of penalties in the country. However, after what has been a thorough examination of the law, we have identified a gap that needs to be fixed to continue to improve safety on our roads.

This bill imposes an immediate licence suspension or disqualification when a person is charged with causing death by dangerous driving. This will ensure that all offenders who are charged with this offence are prevented from driving, not only those who are arrested or those who are bailed and may continue to keep driving until they are found guilty. In other circumstances at the extreme end, police may issue an instant on-the-spot licence disqualification. Our government is confident that these changes are certainly the right response to make our roads safer.

We have zero tolerance for hoon drivers when they do the wrong thing. They put themselves and other road users at risk with what is reckless, dangerous, stupid and selfish behaviour. Irresponsible behaviour certainly has no place on our roads, and I urge all road users to think about their choices behind the wheel. I also encourage anyone who witnesses dangerous driving or riding to report it to South Australia Police.

We have delivered on our 2018 election promise to establish what is a very good Traffic Watch app, which provides another means for people to report hoon driving, boosting the capability of SAPOL to respond. SAPOL also undertake a range of operations and activities to stamp out dangerous behaviour. Recently, Operation Rubber was an enormous success in targeting hoon trail bike riders in Adelaide's northern suburbs.

I know the member for King has been a huge advocate for cracking down on this type of behaviour in her community, so I am pleased to share how successful Operation Rubber was. The operation ran from 13 November to 19 December last year and saw 10 people arrested, eight people reported, three vehicles impounded, 40 vehicles issued with defect notices and 27 expiation notices issued. It is very clear that police will certainly not tolerate reckless, dangerous and selfish behaviour on our roads.

As a government, we are ensuring that SAPOL has the tools and the resources it needs to keep our community safe. I will also reiterate that since coming into government we have invested more than $170 million in additional funding for SAPOL, as well as the first ever direct funding for Crime Stoppers from a South Australian government. Do not forget, the public are able to report these alleged crimes if they see them. They can call Crime Stoppers and also report those situations. There is no doubt this government is certainly doing what it can to stamp out hoon and dangerous driving and to make sure we keep South Australians safe on the road.

This bill certainly strengthens our laws so that dangerous road users are prevented from causing further harm. I believe it will also further enhance the preventative effect of our strong laws. Anybody who thinks they can do as they please on our roads needs to be aware of the very serious consequences of their actions. They will be prevented from driving on our roads and they will be brought before the courts, and I am confident that if they do the wrong thing they will face some of the toughest penalties in Australia. I commend the Attorney-General for bringing this bill forward and I commend the bill to the house.

Dr HARVEY (Newland) (17:08): I rise today to make a contribution to the Criminal Law Consolidation (Causing Death by Use of Motor Vehicle) Amendment Bill 2021 debate. Driving should be an experience that is pleasant at best and innocuous at worst. Being transported from one place to another in the comfort and safety of a car is something that to many is a right.

It is with great sadness that, in certain circumstances, when a driver goes behind the wheel and drives, be it due to recklessness, inebriation due to the consumption of drugs or alcohol, or perhaps inattentiveness, a person dies. It is, of course, a serious offence. It brings with it unexplainable sorrow and grief, with victim's families and friends asking themselves about why it was their loved one was taken so abruptly, so devastatingly.

I understand the sentiments of the Road to Justice campaign. It is a campaign that seeks to bring justice into a situation where a victim was unjustly taken away by the actions of a selfish or negligent individual. Also, I think what really drives some of the strongest emotions from the broader community in these tragedies is that it really could happen to anyone and in an instant, at any time, the lives of those people are changed forever.

Any death on the road due to dangerous driving is a death too many. I fear, though, that while campaigns, such as Road to Justice, are well intentioned they do not actually offer solutions that accurately reflect the current law, and that is why I rise to speak in favour of this bill.

Currently, section 19A(1) of the Criminal Law Consolidation Act 1935 outlines the offence of primary death by dangerous driving. The unlawful killing under this section must have been as a result of culpable, reckless or negligent driving. The maximum penalty for a first offence is imprisonment for 15 years and a mandatory licence disqualification for at least 10 years. The penalty for an aggravated offence or a subsequent offence is a maximum of imprisonment for life and mandatory licence disqualification for at least 10 years.

I must note that in some circumstances a lesser charge can be proceeded with, such as section 45(1) of the Road Traffic Act, which provides that it is an offence to drive without due care or attention without reasonable consideration for other persons using the road. Causing death is an aggravating factor and carries a maximum penalty of imprisonment for 12 months and mandatory licence disqualification for not less than six months. With that said, I would like to speak to some of my objections to a number of proposals in the campaign.

Firstly, if the law were to be changed to allow for mandatory sentences it would fail to take into account all circumstances of the offence and the severity of the offending. In other words, it does not allow for the assessment of an offence that could have been due to inattentive driving—for example, screaming kids in the back of the car—as opposed to an offence due to driving recklessly while having consumed alcohol or drugs shortly before.

Mandatory sentencing has its role in some offences that are straightforward that do not require a certain type of assessing, but in circumstances of a death due to dangerous driving it is my opinion that it is far to nuanced to simply apply a sentence without regard to anything else.

Another proposal that has been put forward is the abolition of the 93 per cent sentencing discount, which is purported to occur when a plea is bargained down to an offence of aggravated driving without due care. I fear that this does not reflect the complexities of the current plea-bargaining system, in particular about whether there is enough evidence for a more serious charge, or perhaps the consideration of the interests of victims and families to be subjected to drawn out legal procedures that would invariably traumatise and therefore be harmful to their wellbeing.

The bill before the house in my opinion tackles the scourge of death by dangerous driving but also is realistic about the circumstances that are attached to such offences, things that I have already noted. The immediate suspension or disqualification when a person is charged with this offence, as outlined in section 19AE, ensues that, even though the accused will have their day in court and may be found guilty or acquitted, more people cannot be harmed or injured as a result of the accused's driving.

The further authority given to police officers who have a reasonable belief that a person has committed an offence against section 19A(1) may give the person a notice immediately suspending their licence or disqualifying them from holding or obtaining a driver's licence.

To members who may be wary of giving further authority to the police, or imposing an order to disqualify someone from driving without an actual conviction next to their name, I would remind the house that there are already provisions for authorities to order a person not drive a vehicle as part of bail conditions imposed. This would therefore be a variance of that already existing practice, reflecting it to better suit the offence in question.

It is important that we get this right. Deaths by dangerous driving are horrid occurrences, and if this bill can prevent any more deaths we would know that we have done our jobs in this place. We cannot fail victims, victims' families, victims' friends, and indeed victims themselves, who rely upon us to ensure that the law can protect them. I do believe that this bill can help in bringing justice. It is a step in the right direction, and I commend the Attorney-General for her work in this area. I commend this bill to the house.

The Hon. V.A. CHAPMAN (Bragg—Deputy Premier, Attorney-General, Minister for Planning and Local Government) (17:14): I welcome the contributions of members who have spoken on this bill and the indication of the opposition of their support thereof, although it is qualified with the possibility of amendments in another place.

The Hon. A. Koutsantonis interjecting:

The Hon. V.A. CHAPMAN: Sorry?

The Hon. A. Koutsantonis: Or here.

The Hon. V.A. CHAPMAN: He has already said not here. If you were listening, member for West Torrens, he has already indicated that will not be the case. I am happy to accept the member's indication. In any event, I would seek that the bill be read a second time.

Bill read a second time.

Committee Stage

In committee.

Clause 1 passed.

Clause 2.

Mr ODENWALDER: I will put the member for West Torrens' mind to rest. I will not be moving any amendments during this committee stage, and we will get through this as quickly as possible. I do have a couple of questions on clause 2. Firstly, is there a rough estimate of the commencement date in the Attorney's mind?

The Hon. V.A. CHAPMAN: I do not have an estimated date at this stage. I indicate that court rules will need to be made. For the member's information, the Chief Magistrate put an extensive submission in relation to the matters of the draft bill. All of her suggested amendments have been incorporated, but there is quite a significant role in relation to the court's handling of these matters.

In the circumstance where court rules need to be made, I cannot impose any time frame on the courts to do that, but obviously we would have the usual regulation. I am expecting that there would need to be some regulations changed in respect of the Department for Transport submission. Rules and regulations will need to be drafted to go with this, and/or amendments to our current regulations. I would hope that this could be done as soon as possible.

When an area of weakness in any legislation is identified and it relates not necessarily to the sentencing but in relation, for example, to the capacity to be able to clamp and/or issue on-the-spot licence suspensions, we would like these things to be operational as soon as possible. I cannot anticipate that there will be any great complexity with these amendments, in that some very novel regulatory framework will be needed, but there is a process to be undertaken.

Mr ODENWALDER: The Attorney answered my second question, helpfully, so I will move on.

Clause passed.

Clause 3 passed.

Clause 4.

Mr ODENWALDER: Clauses 4 and 5 are very similar, and some of the questions that arise here may also relate to clause 5, so if you have anything to add that is different about clause 5 I would appreciate it. I know that the Attorney's office and the department have provided some written answers to some of the questions after the briefing last week, but it might be of value to put some of these things on the public record. You would have already traversed these already. When the bill refers to appealing to a court to overturn the immediate loss of licence, which court exactly will accept the application, what are the expected costs and who will bear those costs?

The Hon. V.A. CHAPMAN: While I am getting the particulars of that so it can be placed on the record, I indicate that there is no clause 5 for the benefit of the member so if you do not have the same bill as we have—

The CHAIR: You are quite right, Attorney: there is no clause 5, but clause 4 is very long.

Mr ODENWALDER: Clause 4 is essentially in two parts that are very similar, I should say. I am sorry.

The Hon. V.A. CHAPMAN: The bill does not specify in which court the application must be made, as the process would differ depending on the circumstances. It is expected that prior to committal for trial or sentence, a person would generally apply in the Magistrates Court, and after the matter is committed for trial or sentence in the District Court the person would generally apply to the District Court. This detail would usually be left for the court rules.

There are existing court rules with respect to where a person should apply for bail, and similar rules will be expected to provide guidance as to where they should apply to lift suspension or disqualification. For example, a person needs permission to apply for bail in the Magistrates Court if the application relates to charges laid in other courts or where the defendant has been committed for trial or sentence in a higher court.

Similarly, permission is required to apply for bail in the District Court where the information is laid in the Supreme Court, or where it is laid in the Magistrates Court and the defendant has not been committed for trial or sentence in the District Court. The member might recall that not that long ago we changed the law to enable other courts to hear bail applications to save the need to always have to return to the original court. So it depends on where those applications are made as to where there might be some review.

The Courts Administration Authority has confirmed the matter would be heard in the criminal jurisdiction. I think that would be well known to the member. Will there be an application fee? The Courts Administration Authority has confirmed the application will not attract a fee and there will be no charge for similar applications to lift a suspension or disqualification, for example, under section 47IAB of the Road Traffic Act 1961.

Finally, can a hearing under 19AE(6) or section 19AF(6) create an application for party to party costs? I think that was your question. I am advised that costs are not awarded in criminal matters in the higher courts. The Criminal Procedure Act 1921 empowers the Magistrates Court to award such costs in criminal matters as it thinks fit, subject to some exceptions. Section 189B provides that costs will not be awarded against a party to proceedings for a major indictable offence unless the court is satisfied the court has unreasonably obstructed the proceedings. I hope that covers the matter.

Mr ODENWALDER: Thank you, Attorney. It has more than covered it. My second question on this clause is: are police able to revoke an immediate loss of licence that is applied in some sort of error of whatever sort—some kind of administrative mistake or error? Can police revoke the immediate loss of licence without a bailing authority or without a court, and by what process can they do that?

The Hon. V.A. CHAPMAN: In short, no. I think there has been some recent case law on that, or there has been some interpretation on that in any event. However, once the commissioner has determined that the matter is not to proceed, it automatically lifts. Let's say there was some error in the application of this licence suspension—

Mr Odenwalder interjecting:

The Hon. V.A. CHAPMAN: Yes, the wrong name, the wrong car, the wrong something, in a sense of the circumstances. The simple way of remedying that would be not to proceed with the charge, so then it would automatically lapse. There would not need to be some cumbersome process to go through: it would all be automatic.

Mr ODENWALDER: To clarify, if I could have a supplementary because it is a long clause.

The CHAIR: Yes, so this is clarification.

Mr ODENWALDER: There is no ability for a police officer on a roadside, for instance, at that immediate loss point, to realise the mistake and reverse that decision? It has to go through the charging process and then the police decide not to proceed with that charge; is that what you are saying?

The Hon. V.A. CHAPMAN: Of course, you can decide not to charge on the roadside, if you are using that example—that is, it has become clear that in fact there has been an error.

Mr Odenwalder: The hand-held does not work.

The Hon. V.A. CHAPMAN: Correct.

Mr ODENWALDER: My next question is: what additional training or policy changes will be required where police may impose significant restrictions on a person based on suspicion and nothing more? How will this minimise the chance of two almost identical cases being handled differently?

The Hon. V.A. CHAPMAN: I am advised that the police are well versed in this field. They may have training as part of their normal training. This is not a new concept. It is applicable in other laws. It is not a new concept that they need to learn to deal with if there is a reasonable suspicion. It is not anticipated that there needs to be further training, bearing in mind that we are talking about those who are working in the road traffic division and they should be familiar with it.

I am sure if there is any deficiency we will seek advice on it, but to date we have not received any indication. I received a submission from the police commissioner in relation to this legislation supporting the same. There is nothing in the submission that raises any concern about that.

The CHAIR: Final question on clause 4.

Mr ODENWALDER: Thank you, sir, for your indulgence. Can you just outline, Attorney, where, either in this act or other acts, police have similar discretionary powers with regard to automatic disqualification or suspension? Just to clarify, it is regarding the immediate loss or suspension of licence without regard to a bailing authority or a court.

The Hon. V.A. CHAPMAN: Are there any circumstances in which a licence can be disqualified before conviction? Yes, under section 47IAA police are empowered to impose an immediate licence disqualification or suspension for certain drink-driving offences. The court can lift the suspension if there is a reasonable prospect the person will be acquitted or prosecution authorities are have not laid a charge within a reasonable time frame. That addresses the matter we previously discussed.

Under section 45B, police may also impose licence disqualification or suspension if giving the person an expiation notice for excessive speed. A disqualification suspension is cancelled if a person elects to be prosecuted.

Clause passed.

Title passed.

Bill reported without amendment.

Third Reading

The Hon. V.A. CHAPMAN (Bragg—Deputy Premier, Attorney-General, Minister for Planning and Local Government) (17:30): I move:

That this bill be now read a third time.

Again, I acknowledge all speakers and thank those who have contributed to the development of this bill.

Bill read a third time and passed.


At 17:31 the house adjourned until Thursday 4 March 2021 at 11:00.

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