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House of Assembly - Fifty-Fourth Parliament, Second Session (54-2)
2021-06-08 Daily Xml
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Criminal Law Consolidation (Driving at Extreme Speed) Amendment Bill

Committee Stage

In committee (resumed on motion).

Clause 1.

Mr ODENWALDER: Hopefully, this committee stage will be brief. My question on clause 1 is a standard one: Attorney, who was consulted outside SAPOL in preparing the bill and what was their advice?

The Hon. V.A. CHAPMAN: While I am waiting for the officer, Michelle, to take her seat as adviser, I indicate that I think it is important to remember here that this bill was developed as a result of information presented to the people of South Australia by the Commissioner of Police as something that was a matter that he considered in the public interest, demanded prompt attention and needed to be done if we were going to be serious in addressing hoon driving and high-speed driving, which, of course, are problematic for the police, particularly when someone is evading custody.

From there, we took that on notice. I got some brief further information from the police commissioner initially, and from there our officers took over the general development and identification of issues and then how that would be accommodated into a bill. I will specifically seek now whether other people were consulted, other than the Office of the DPP. I am advised that the transport department was another.

Mr ODENWALDER: Thank you, Attorney. I have one more question on clause 1: did the police commissioner then ask for anything extra or different that is not included in this bill and, if so, what was it?

The Hon. V.A. CHAPMAN: I am advised that there was nothing else that he sought that is not in this bill. We went back and forth to deal with matters such as those I have referred to in response. How does this apply if somebody in the country is passing an emergency vehicle with the lights flashing, how is the emergency of the driver to be taken into account in the act, those sorts of questions were raised and the advice was through the excellent advice here from Michelle and others who were managing the development of the bill from parliamentary counsel and Legislative Services.

Clause passed.

Clauses 2 and 3 passed.

Clause 4.

Mr ODENWALDER: Clause 4 deals with the aggravated offences, the amendment of section 5AA. I do not think you addressed this in your second reading contribution, but I should ask the question anyway. It seems to me that you have created a set of offences, some of which already exist in another form within the CLCA. For instance, by aggravating this offence with a death, for example, you have replicated the offence of death by dangerous driving but reduced the penalty. I do not understand—how would a police officer know which of those offences to charge and could a lesser charge be applied? Do you understand? I am happy to rephrase it.

The Hon. V.A. CHAPMAN: I think I understand what you are saying, but I think it is important to appreciate—and I think probably the member understands this more than most people in this house having been a police officer himself, but I am not sure about the experience that has had in relation to prosecution—that there can be a set of facts, and there may be a number of different criminal or summary offences that might apply to that set of facts. It is for the prosecution and some of those others in the police division who initially make the assessment as to what charges will be laid. Presumably, that is on the basis of being able to satisfy, on the evidence it has together, what they might be able to charge.

A victim might be killed in a set of circumstances, and whether that is murder, manslaughter, death by dangerous driving or an aggravated offence—for example, here in this matter—might depend on a whole lot of different factors. To give an example, it may be that if the person who was driving the vehicle was committing a felony in some other way and they killed somebody, that may be sufficient to support a murder charge. Those are the sorts of things that have to be assessed for the purposes of what is sufficient evidence to be able to bring about the likelihood of a successful prosecution.

Mr ODENWALDER: I just want to clarify this. What would the evidentiary difference be, then, between an aggravated driving and extreme speed charge where someone has died as a result of the extreme speed (the aggravation), and a death by dangerous driving charge where someone has been driving very fast and has hit someone and they die—without any intent to murder? What would be the evidentiary difference between those two things? Why would you have an aggravated offence? Why would you have, essentially, a death by dangerous driving offence in this bill when there is already one with a very heavy penalty? Perhaps I am just asking you to repeat yourself.

The Hon. V.A. CHAPMAN: I do not know if I can specifically give you the different piece of evidence in which that would occur. There is no question that death by dangerous driving, for example, carries with it a very significant criminal penalty—in fact, much more than this offence. I suppose we are talking about the threshold here. Some have described it to me, when they are talking to me about it, as really like a strict liability offence. It is not quite that, but let me put it like this: all you have to do is prove that somebody is in the car and that they are driving it within the 80 km/h more than the regulated speed in the country—when I say in the country, when it is over 80 km/h, for example.

So tick, tick: yes. The member for Elizabeth is the driver. He is driving his vehicle and he has been recorded at that speed, but we need to be satisfied on the other fact of aggravation to be able to put it into that next category of sentence. The aggravation here really relates to if you add one of these factors you get a sentence at a higher rate. That is really the application there.

To assist the member, I can also add that under section 19A of the Criminal Law Consolidation Act, causing death or harm by use of a vehicle or vessel—death by dangerous driving as we know it—requires that a person drives the vehicle or operates a vessel in a culpably negligent manner, recklessly or at a speed or in a manner dangerous to the other person. Then there are the other obligations.

Clause passed.

Clause 5 passed.

Clause 6.

Mr ODENWALDER: Attorney, can you go through what the basis of the logic was for choosing arbitrarily the 55 km/h and 80 km/h thresholds?

The Hon. V.A. CHAPMAN: That came directly as a result of consultation with SAPOL.

Mr ODENWALDER: Can you give any indication why they chose those two?

The Hon. V.A. CHAPMAN: What I do recall was that there was clearly a differential between someone who is on the open road and someone who may be in a built-up area. In other words, the risk of harm to others would seem to be more likely in a built-up area, and therefore the speed differential needed to be lower. From there, I think, officers' level took over for what would be reasonable in those circumstances and was signed off by SAPOL.

Mr ODENWALDER: I guess that at the higher end—the 110 km/h range—there was no concern that in order to meet the threshold for driving at extreme speed you have to reach 190 km/h. Presumably that is the intention. Was there no discussion about, 'That's too high. Perhaps we should lower the threshold at that high point,' or is that the opposite of what you are saying?

The Hon. V.A. CHAPMAN: I think if anything there were those in general consultation who were suggesting that, perhaps, it even should be more, that is, a higher threshold—that it should be 90 km/h or 100 km/h. In other words, you should be going 200 km/h minimum to be able to be caught in this situation, because clearly we are introducing legislation—if this passes—of imprisonment for speeding, but very high speeding.

This is a new level of punishment, together with mandatory loss of licence—not optional here, but mandatory—and for some this would be seen as quite a severe penalty, and therefore it should be really, really fast. From all accounts in consultation on this, we are really talking 190 km/h or above. Frankly, as I said, it makes a terrible mess if somebody causes some injury as a result of this and often to themselves, which is equally sad.

Clause passed.

Clause 7.

Mr ODENWALDER: I note that this bill includes the ability for the commissioner to administratively withdraw the immediate loss of licence, but previous bills, including a recent one, do not have this provision. What is the reasoning behind that?

The Hon. V.A. CHAPMAN: I am somewhat guessing here. Here we are prescribing a mandatory loss of licence. In a lot of other circumstances it is still a discretion of the police to implement loss of licence. For example, when we are dealing with death by dangerous driving—and that was seen as a bit of a weakness in that legislation—we added in a provision that allowed for the police officer attending to immediately execute a loss of licence, but it was not mandatory. So here, if they got the date wrong or something else, then we needed to have the capacity to withdraw it, which again was in consultation with the police and which has been accommodated.

Clause passed.

Remaining clauses (8 and 9) and title passed.

Bill reported without amendment.

Third Reading

The Hon. V.A. CHAPMAN (Bragg—Deputy Premier, Attorney-General, Minister for Planning and Local Government) (16:24): In addition to thanking Michelle for her assistance, and other members contributing to the debate, I move:

That this bill be now read a third time.

Bill read a third time and passed.

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