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Legislative Council - Fifty-Second Parliament, First Session (52-1)
2010-09-28 Daily Xml
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STATUTES AMENDMENT (DRIVING OFFENCES) BILL

Second Reading

Adjourned debate on second reading (resumed on motion).

The Hon. D.W. RIDGWAY (Leader of the Opposition) (16:41): I rise to speak to this bill, and I thank the council for allowing this matter to be adjourned on motion so that I could deal with another matter. The opposition always supports initiatives that will make our roads safer. Apart from handling the road safety portfolio in this council, I also have particular interest in this bill as the shadow minister for police. The proposal has implications on the ability of officers to secure convictions and also protection from these laws when having to undertake urgent duty driving.

A major element of the bill is the introduction of street racing into the Criminal Law Consolidation Act. Some very serious penalties are already present under the same act under section 19A. Causing death or harm by dangerous driving carries a gaol sentence even where serious harm is not caused. The maximum penalty is five years' imprisonment.

Following on from that section, we will now have section 19AD—Street racing. Regardless of whether a death, injury or crash ensues, the maximum penalty for the first offence is a three-year gaol sentence and a one-year loss of licence—although I am a bit surprised that you might have a three-year gaol sentence and a one-year loss of licence but not be able to access a vehicle while you are in prison!

If the first offence is deemed to be aggravated, then the maximum penalty is a five-year gaol sentence and a three-year loss of licence. These situations constituting an aggravated offence are sensible, involving circumstances of heightened risk (such as low visibility, poor traction or at night), if the person is carrying passengers or the vehicle has a major defect. Subsequent offences would involve a previous conviction under the Road Traffic Act of excessive speed, reckless and dangerous driving, driving under the influence of alcohol or drugs or drink driving.

My colleague the shadow minister for road safety, the member for Kavel (Mr Mark Goldsworthy) sought a number of clarifications during the second reading stage of the bill. We understand that this bill is part of a fulfilment of an election promise and is attempting to deal with a seriously dangerous culture growing in our younger community.

Street racing events are not usually confined to an individual participant. Despite maybe not being an organised event, a street race would usually involve at least one other person egging another on. I appreciate that the government is attempting to approach this legislation in a way that deters and, where needed, penalises all involved in the offence of participation. This is important because people must realise that their encouragement of the driver has a huge impact on their decision to participate most of the time.

Mr Mark Goldsworthy questioned why these provisions were not included in the Road Traffic Act and I agree that replacing these provisions probably will not have an educative effect on the potential street racing participant. Following the minister's explanation that it is a general principle to include indictable offences in the Criminal Law Act, I have been led to believe that this is being done partly in the name of administrative tidiness. I gather the main implication of placing it in the Criminal Law Consolidation Act is the view and approach that would be taken throughout sentencing. For that fact, I can see merit in doing it like this. The street racing offence is homing in on all participants, and there is much-needed recognition that the driver is not the only guilty party but also passengers and possibly people promoting and organising these events.

This brings me to an area that has raised a number of questions throughout the briefing, and it affects a police officer's ability to secure on-the-spot convictions at the scene of street racing. I know that the Hon. Ann Bressington is moving amendments to this clause. I am aware that the government may be supporting these amendments. We are consulting with various stakeholders, and we will clarify our final position on those amendments when, I assume, we will do the committee stage of this bill on Thursday.

Under the bill, the police will be able to secure a conviction when they turn up to the scene of a street racing event. This is obviously relevant to the effectiveness and efficiency of the police and, as one can imagine, the ease with which an offender could cover themselves by quickly vacating the vehicle, for example. I appreciate that it would be relatively difficult for the police to gain evidence in many situations that someone had been aiding and abetting a street race. A defence is provided that a person was not the driver and did not consent to the race. The minister mentioned that the standard of proof under this provision is on the balance of probabilities rather than proof beyond reasonable doubt.

In my consideration of the clause, I assume that in the majority of situations the driver will be made obvious by the registration and ownership of the vehicle. The consent of a passenger may be harder to ascertain, but I feel that the character, background and criminal history of a potential offender will be effective in satisfying the judge of the probability of their participation. As the shadow minister for police, one of my main priorities is seeing that matters are dealt with expeditiously at the scene. The Hon. Ann Bressington's amendments do put the onus on the police to determine who the driver/offender was and to charge them, rather than the person having to prove that they were not the driver nor gave consent. Essentially, it replaces the onus of proof. I appreciate the argument behind this that an innocent passenger could wind up being charged and have to prove their innocence.

I have also received correspondence from the Law Society, which I am sure others have received, endorsing the Hon. Ann Bressington's amendments and expressing what would have to be alternatively amended to keep the original process proposed by the government: matters such as defining 'consent' as being given by a passenger who was charged. They think that establishing consent or the lack thereof will be a problem for both the prosecution and the defendant in a situation where they are using the defence mechanism of new section 19AD(4). This concern is justified. I can see both arguments at the moment, and we are still consulting to establish our final position on this matter.

Another important facet of the bill is the provision of a defence to a charge for emergency workers under the Criminal Law Consolidation Act provision, along with sections 45 and 46 of the Road Traffic Act, for careless, reckless and dangerous driving. After consultation with the Police Association, the opposition fully supports the provision, and I will read the justification for that support in the words of the association:

It is the association's view that the proposed amendments do provide a measure of protection to a police officer acting in the execution of his/her duty and appropriately require proof that the officer was.

It is their view that new paragraph (c) provides an important protection to a particular police officer, because it permits the court to examine the officer's actions by reference to the subjective belief of that officer as to the circumstances existing at the relevant time. In addition, an important and necessary feature of this defence is the concept of 'acting reasonably'. This provides for an objective assessment by the court of the reasonableness of the actions of the police officer concerned.

The association clarified that, contrary to the view expressed in the adjourned debate on the second reading on 21 July 2010, the defence is not contingent upon the defendant's own subjective assessment about whether the conduct was reasonable in the circumstances.

The words 'acting reasonably in the circumstances as he or she believed them to be' provides for both a subjective and objective test, consistent with the common law defence of honest and reasonable mistake of fact. So the officer must prove that he/she believed in the existence of a set of facts or circumstances (subjective test) and then the court must consider whether the defendant acted reasonably (objective test) in the circumstances as the court has found the defendant believed them to be.

The association considers that the proposed amendments afford police in this state a measure of necessary protection for them to do their job.

The opposition has also filed an amendment to tidy up some wording of the clause. We thought that emergency workers acting in accordance with directions could be a little broad. There were a number of conversations between the minister's office, the minister's staff, myself and the shadow minister, and we are still negotiating on that particular amendment. So, while it might be on file, I am not sure whether we will be finally moving it. We are confident that we should be able to adequately protect emergency workers carrying out their duties. We will be having further discussions before we resume the debate, I assume, on Tuesday.

I note minister Snelling's comments throughout the second reading speech with regard to consultation. The shadow minister questioned whether the government had consulted adequately, and the minister responded that the road safety policy was taken to the election and that the government consulted with one million-odd South Australian voters. This response is typical of this government's arrogance with respect to consultation. Yes, in general, the policy was accepted by the South Australian people, but the government can hardly say it consulted on the detail of it with one million people. If Mr Snelling is looking at an enhanced career, the Labor Party needs to smarten up his act if that is how he thinks he would like to consult.

In a legislative sense, there are numerous options for implementing a policy, and winning an election does not relieve the government of its responsibility for consulting with experts and the public on how to implement those policies. Notwithstanding the government's arrogant approach to consultation, I indicate that the opposition will be happy to support the second reading of this bill.

Debate adjourned on motion of Hon. I.K. Hunter.

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