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Legislative Council - Fifty-Second Parliament, First Session (52-1)
2010-07-21 Daily Xml
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STATUTES AMENDMENT (DRIVING OFFENCES) BILL

Introduction and First Reading

Received from the House of Assembly and read a first time.

Second Reading

The Hon. P. HOLLOWAY (Minister for Mineral Resources Development, Minister for Urban Development and Planning, Minister for Industrial Relations, Minister Assisting the Premier in Public Sector Management) (22:50): I move:

That this bill be now read a second time.

I seek leave to have the second reading explanation inserted in Hansard without my reading it.

Leave granted.

This Government is committed to protecting South Australians from the actions of street racers, who demonstrate a reckless indifference to the lives of others and who by their actions, put the lives of innocent drivers and pedestrians at risk.

The Bill introduces street racing as an serious criminal offence, through reforms to the Criminal Law Consolidation Act 1935, with consequential amendments to the Road Traffic Act 1961 and the South Australian Motor Sport Act 1984.

These measures build upon the Government's other initiatives to combat hoon driving behaviour set out in the Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) (Miscellaneous) Amendment Act 2009.

We are determined to pursue the tough initiatives contained in this Bill to reflect the community's intolerance of such irresponsible and dangerous behaviour.

I seek leave to have the remainder of the speech inserted into Hansard without my reading it.

Amendments to the Criminal Law Consolidation Act 1935

The criminal conduct of street racing will be inserted into Part 3, Division 6 of the Criminal Law Consolidation Act 1935. Consequential amendments will be made to section 44B of the Road Traffic Act 1961, where the conduct of street racing is currently prescribed as an offence.

The definition of street racing will capture participants in street race, which will include those present in a motor vehicle whilst it is driven in a street race, or those that assist in the promotion of the street race or those who engage in any other conduct that assists in the street race taking place. It shall be a defence to the charge of participating in a street race by being present in the vehicle, if the person proves they were not the driver and did not consent to the motor vehicle being driven in the race.

As to the features that will aggravate the offence of street racing, these will be as follows:

the offender knew that, at the time of the offence, he or she was driving the motor vehicle in circumstances of heightened risk;

the offender committed the offence knowing that there were one or more passengers in or on the vehicle;

the offender was, at the time of the offence, driving a motor vehicle that had a major defect about which the offender knew, or ought reasonably to have known.

Circumstances of heightened risk is defined to capture a broad range of circumstances and weather conditions that increase the danger of engaging in the indictable offence charged. 'Major defect' is defined to capture vehicles whose use constitutes a serious risk to the safety of any person. This definition was deliberately drafted in a broad sense to capture the risks posed by the major defect not only to the occupants of the vehicle but also to pedestrians in close proximity and indeed other road users. It is intended to capture those individuals who either modify their vehicles for the purposes of engaging in hoon driving behaviour and at the other end of the spectrum, those who do not take steps to maintain the vehicle that they own or drive, but, despite this, choose still to engage in risky behaviour on our roads.

As to penalties for street racing, for a first offence that is a basic offence, imprisonment for three years will apply in addition to licence disqualification for one year or longer if the court thinks fit. For a first offence that is an aggravated offence, or for any subsequent offence, the penalty will be imprisonment for five years and licence disqualification for three years or longer. It is intended that the offence of street racing will constitute a prescribed offence for the purposes of clamping, impounding and forfeiture of vehicles under the Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007.

The Bill also amends section 5AA of the Act to provide that driving a motor vehicle in a street race will constitute an aggravating factor for a section 19A offence (causing death or harm by dangerous use of a motor vehicle or vessel). The applicable penalty for aggravated section 19A offences is life imprisonment (where death or serious harm is caused) or 7 years imprisonment (for other harm).

It should be noted that, in the most serious cases where death has resulted, it may be appropriate to charge the accused with manslaughter; it is not the Government's intention to remove that charging option for such cases. Rather, these changes seek to ensure that, where charges are laid under section 19A and street racing is proved, the higher maximum penalties applicable to aggravated offences will apply.

The Bill also amends section 19A(5) to clarify that for the purposes of determining whether an offence is a first or subsequent offence, the focus is on the similar conduct of dangerous driving, rather than the degree of harm that resulted from previous dangerous driving (which is entirely fortuitous). The Bill does by amending section 19A(5) to provide that identified offences involving similar conduct will be taken into account for the purpose of determining if an offence against section 19A is a first or subsequent offence.

A technical amendment to section 19B of the Criminal Law Consolidation Act 1935 that addresses alternative verdicts is also necessary as a result of the introduction of street racing as a serious vehicle offence.

The Bill also affords an opportunity to clarify any ambiguity that may exist when police officers and indeed other emergency workers are engaged in driving in emergency circumstances that may subjectively be considered dangerous or poses a greater risk to other road users than ordinarily would be the case. It is therefore proposed to clarify the criminal liability of police officers when engaged in police pursuits and other types of emergency driving, by providing a defence if charged with section 19A of the Criminal Law Consolidation Act 1935 (the offence of cause death or harm by dangerous driving). A related amendment will also be required for sections 45 and 46 of the Road Traffic Act 1961 (the offences of careless driving and reckless and dangerous driving).

Currently Rule 305 of the Australian Road Rules provides that a provision of the Australian Road Rules does not apply to the driver of a police vehicle in specified circumstances. However the exception afforded by Rule 305 of the Australian Road Rules does not canvass offences under the Road Traffic Act 1961. Section 110AAAA of the Road Traffic Act 1961 provides an exemption for drivers of an emergency vehicles from offences against sections 44B, 45A, 82, 83 and 110. However drivers of emergency vehicles still remain able to be charged with sections 45 and 46 of the Road Traffic Act 1961 and sections 19A of the Criminal Law Consolidation Act 1935.

This amendment does not exempt police officers or other emergency workers prescribed by regulation from being charged with an offence against section 19A of the Criminal Law Consolidation Act 1935 and sections 45 and 46 of the Road Traffic Act 1961. It will instead provide a defence to a charge against these provisions, provided very particular circumstances are met. Those circumstances will be that at the time of the offence, the emergency worker was:

carrying out duties as an emergency worker;

acting in accordance with the directions of his or her employing authority; and

acting reasonably in the circumstances as he or she believed them to be.

Emergency worker will be defined as a police officer, or a person who is an emergency worker as defined by the regulations for the purposes this section.

Amendments to the South Australian Motor Sport Act 1984.

The introduction of street racing as an indictable offence under the Criminal Law Consolidation Act 1935, covers a range of activities that, aside from being a driver of a vehicle involved in a race, speed trial or other, captures those individuals who promote or assist in the promotion of such an event. Accordingly there are many legitimate events that involve speed trials or races between vehicles that need to be protected from being captured by this new offence. Accordingly, section 25 of the Motor Sport Act 1984 requires amendment to ensure those participating in legitimate motor sport events are not eligible for prosecutions for offences under the Road Traffic Act 1961, the Motor Vehicles Act 1959 and Part 3 Division 6 of the Criminal Law Consolidation Act 1935.

Summary

The Government is concerned at the reckless and irresponsible behaviour of some drivers on our roads. In recent, tragic cases, this behaviour has led to the death of innocent people. This Bill is designed to strengthen current laws and measures to deter and punish hoon-driving behaviour. I commend the Bill to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Criminal Law Consolidation Act 1935

4—Amendment of section 5AA—Aggravated offences

Section 5AA of the principal Act sets out what constitutes an aggravated offence for the purposes of that Act. Offences committed in the circumstances of aggravation listed in the section attract higher maximum penalties.

This clause inserts new subsection (1c) into section 5AA. The new subsection sets out the aggravating factors applicable to the commission of offences under proposed section 19AD. The aggravating factors apply only to an offender who is a driver of a vehicle and include driving the vehicle in circumstances of heightened risk (which is defined in the section), driving with passengers in or on the vehicle or driving a vehicle with a major defect (with also a defined term) if the driver knew or should have known of the defect.

The clause also amends section 5AA(1a), to make driving a motor vehicle in a street race an aggravating factor for an offence against section 19A.

5—Amendment of section 19A—Causing death or harm by use of vehicle or vessel

This clause amends section 19A of the principal Act (a section providing offences for those who cause death or harm by certain driving behaviour) to increase the range of offences that will count as "first offences" for the purposes of the section. Under the proposed amendments, all previous offences against section 19A (regardless of the degree of harm caused) and all offences involving the similar relevant conduct (ie. dangerous driving or dangerous vessel operation) will be counted.

The clause also inserts a defence for emergency workers (being defined as police or other workers prescribed by regulation). The defence is made out if the worker was acting in accordance with directions of his or her employer and was acting reasonably in the circumstances.

6—Insertion of section 19AD

This clause inserts new section 19AD into the principal Act.

The new section establishes an offence of participating in a street race, or in preparations for a proposed street race. Participating in a street race is defined to mean being present in a motor vehicle being driven in a race, promoting or assisting in the promotion of a race or proposed race or otherwise assisting or intending to assist a race or proposed race. There is a defence for a person charged with participating by being present in a vehicle if the person establishes that he or she was not the driver and did not consent to the vehicle being driven in the race.

The new section also defines what constitutes a street race and sets out procedural matters in respect of the new offence.

7—Amendment of section 19B—Alternative verdicts

This clause amends section 19B of the principal Act to reflect the amendments made to the Act by this measure.

Part 3—Amendment of Road Traffic Act 1961

8—Amendment of section 44B—Misuse of motor vehicle

This clause amends section 44B of the principal Act (removing conduct amounting to street racing from that section) and is consequential upon the creation of the new offence of street racing by clause 6 of this measure.

9—Amendment of section 45—Careless driving

This clause amends section 45 to insert a defence for emergency workers in keeping with the defence proposed to be inserted in section 19A of the Criminal Law Consolidation Act 1935 by clause 5 of this measure.

10—Amendment of section 46—Reckless and dangerous driving

This clause amends section 46 to insert a defence for emergency workers in keeping with the defence proposed to be inserted in section 19A of the Criminal Law Consolidation Act 1935 by clause 5 of this measure.

Part 4—Amendment of South Australian Motor Sport Act 1984

11—Amendment of section 25—Non-application of certain laws

This clause amends section 25 of the principal Act to make it clear that (in addition to current exclusions) Part 3 Division 6 of the Criminal Law Consolidation Act 1935 as amended by this measure does not apply in respect of a vehicle or its driver while the vehicle is being driven in a motor sport event contemplated by the principal Act.


Debate adjourned on motion of Hon. D.W. Ridgway.


At 22:51 the council adjourned until Thursday 22 July 2010 at 11:00.


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