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Legislative Council - Fifty-Fifth Parliament, First Session (55-1)
2023-05-16 Daily Xml
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Bills

Statutes Amendment (Serious Vehicle and Vessel Offences) Bill

Second Reading

Adjourned debate on second reading.

(Continued from 4 May 2023.)

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (15:31): I would like to thank those members who have contributed to this debate and I thank them for putting a number of issues out so that I have an opportunity to clarify some issues that have been raised already in the debate, but I look forward after that to the committee stage of the debate to clarify any further. What I will try to do is answer as many questions as fully as possible that have been raised, but if I have not answered any to the satisfaction of members I am absolutely certain they will be reagitated in the committee stage.

This bill is the product of many months of work undertaken by the Attorney-General's Department in conjunction with the Director of Public Prosecutions, SAPOL and the transport department. Upon introduction, there was consultation with a number of external stakeholders including the Law Society, the Commissioner for Victims' Rights, Victim Support Service, the Legal Services Commission, various levels of the courts and judiciary, and also the motor vehicle industry.

The mid-tier offence in this bill recognises that the outcome that is the consequence of the offending is relevant to the seriousness of the offence. This is not a unique approach in the criminal law. The law has long accepted that the harm caused should play a role in assessing the seriousness of the offence. It is also consistent with the public's expectation about how the law ought to work and is consistent with how the offence of dangerous driving operates.

While the penalty is raised in circumstances where death or serious harm are a consequence, the courts still hold the discretion to determine an appropriate penalty within that range. In the government's view, the sentencing range in the new mid-tier offence is a more appropriate sentencing range than the 12 months currently provided under the Road Traffic Act.

In terms of the licensing scheme, the proposal to introduce a new licence class for drivers of ultra high-powered vehicles will be implemented via an amendment to the Motor Vehicle Regulations 2010, which have already been made. A South Australian driver will be required to hold a new licence to drive a vehicle that has a power-to-weight ratio greater than 276 kilowatts per tonne.

I am informed that the transport department's website will have a look-up function to check a vehicle's status. Only persons having the new licence class endorsed on their licence will be able to drive such an ultra high-powered vehicle. However, I am informed there will be exemptions for those who must drive such vehicles occasionally in the course of their employment, such as mechanics or motor vehicle dealers. These exemptions are to be found in regulation 45 of the Motor Vehicles Regulations 2010.

With regard to vehicle test driving, for example, for the purchase of an ultra high-powered vehicle, options for this are still being considered; however, I am advised that the transport department has been working very closely with the motor vehicle industry to ensure the requirements established via the new licence class achieve the objective without being overly and unnecessarily onerous or prohibitive on those lawful industry activities.

The transport department is developing an online training package that will identify changes incorporated into the bill in relation to identification of an ultra high-powered vehicle, the licence required to drive an ultra high-powered vehicle in South Australia and the effect of the new penalties, as well as a range of vehicle systems that includes the automated intervention systems, their benefits, risks and limitations.

The training will include a testing phase to ensure the driver understands the risks of driving an ultra high-powered vehicle and the regulatory framework that surrounds these vehicles. Successful completion of this training module will be required before a person can be issued with a U class licence. The content of this training may change over time and is currently being finalised.

The U class licence, I am informed, will operate similarly to the current situation where a person wishes to upgrade from a car licence to another sort of licence. Once a person meets the minimum requirements (i.e. they have held the licence of another class, for example a heavy vehicle licence, for a minimum of three years) they will be required to undertake training before being issued with that new class of licence.

I am informed that the registrar will implement the new licence class and training within the next 12 months and the regulations will provide a transitional period of 12 months for drivers of ultra high-powered vehicles to obtain this new licence class. The intention is that a person who currently owns and/or drives an ultra high-powered vehicle will effectively have until 1 December 2024 to obtain the U class licence classification. After this, any person who does not hold such a licence will be prohibited from driving such ultra high-powered vehicles.

As the training for a U class licence will not include a practical test and it will be conducted online, there will be no wait time for a person once they have done the training and paid the appropriate fee. It is anticipated the driver could enrol and complete the online training system, I am informed, via their mySAGOV account. The driver could then apply for a U class endorsement on their licence via the mySAGOV account and, subject to all licence requirements being met, the driver's digital training licence will be updated immediately.

I am informed that it is intended that it may be able to be done within a day for the online training system. When the driver's digital licence is updated with the U class, the driver will then be able to drive an ultra high-powered vehicle. A physical copy of the updated driver's licence will be forwarded through the normal licence production process, I am informed, and that usually occurs within 14 days.

The cost of the online training and testing is still to be determined. A provider for this online training package is still to be finalised and the cost of developing, providing and maintaining the training will be considered when recommending an appropriate fee.

In relation to the issues raised regarding the use of certain numberplates, I am advised that section 47A of the Motor Vehicles Act 1959 enables the Registrar of Motor Vehicles to enter into an agreement to sell the rights to classes of numberplates as gazetted in the South Australian Government Gazette.

Prior to approving the issue of numberplates, Service SA examines each combination to ensure it is considered appropriate for issue. Generally, the registrar will issue numberplates, I am informed, displaying words that can be openly used in the community or media. This approach rules out combinations that are obviously objectionable, containing inflammatory, defamatory, sexual or crude references, but may allow combinations that some may consider in poor taste or attention seeking. Notwithstanding, the registrar reserves the right, I am informed, to review any combination that has been issued and can revoke the agreement if deemed appropriate. Usually, this power is exercised where a complaint or several complaints are received regarding a numberplate issued.

Regarding the numberplate specifically in this case, PSYKO, this specific combination had been in use for approximately 14 years, I am informed. During that time, the transport department did not receive complaints about the plate. This plate agreement has since lapsed and is no longer available for reissue, I am informed. I am advised the department will review similar combinations to determine if it is appropriate to withdraw them from circulation.

In relation to forfeiture of vehicles, I am advised that a new mid-tier offence will be a forfeiture offence for the purposes of the clamping and impounding act and regulations, and a serious offence for the purposes of the Criminal Assets Confiscation Act. This will allow for forfeiture orders to be made, subject to the satisfaction of other statutory conditions. I thank all members for their input on this bill up to this stage, and I look forward to the committee stage.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

The Hon. C. BONAROS: I was trying to listen very closely to all of those responses.

The Hon. K.J. Maher: I will not be repeating them.

The Hon. C. BONAROS: Can the Attorney just confirm, and I think this is what he said, that the PSYKO numberplate is no longer in circulation, and just rule out that numberplate will not be reissued? So it has been cancelled?

The Hon. K.J. MAHER: Yes. I can read out what my advice is again. Regarding the numberplate PSYKO, I am advised this specific combination has been in use for approximately 14 years. During that time the department did not receive any complaints, but this agreement has since lapsed and my advice is it is no longer available for reissue.

The Hon. C. BONAROS: In relation to the forfeiture provisions that the Attorney referred to, can we just clarify for the record whether the vehicle involved in this particular case—that is, the one driven by Mr Campbell—has been forfeited or returned to him, or is that still the subject of ongoing matters?

The Hon. K.J. MAHER: My advice is that we are not aware that it has been forfeited but, by the same token, we are not aware that it has been returned. I think from a briefing, and this is just going by memory, there was very, very substantial damage and I believe the car was a write-off but, as I say, we are not aware of forfeiture proceeding, and we are certainly not aware of any return of the vehicle.

The Hon. C. BONAROS: I raise that point to alert the Attorney that, whilst it was a write-off, there were reports about it being sold for spare parts as opposed to forfeiture in this particular instance. That would in some ways, even if it was a write-off, potentially overcome the forfeiture requirements, so I just raise that point.

I have questions at specific clauses, and I am happy to wait until we get to those clauses if that makes it easier, but in general the one point that I want the Attorney to clarify, which I referred to in my second reading, was that notwithstanding the subsequent amendments to this bill the subsequent correspondence that we received from the Law Society on 12 May has still indicated a number of concerns that have been raised in relation to the bill. Were they taken into account, and is it simply a matter of a difference of opinion with the government? We have picked up some and we have not picked up others. Why is that the case?

The Hon. K.J. MAHER: I thank the honourable member. Certainly, as I am advised, the issues that have more recently been agitated by the Law Society are issues that we did consider, we did take into account, and remain of a different view from the members of the Law Society who have put together that submission.

The Hon. C. BONAROS: Does that also include the argument that the Law Society raised about the complex nature of this legislation and the approach of referring that to committee for inquiry?

The Hon. K.J. MAHER: I thank the honourable member. Yes, it does, is the short answer. It is complex. The interaction between the Road Traffic Act and the Criminal Law Consolidation Act and the different levels of offences, are complex areas. I know this having spent dozens and dozens of hours of my time going through and trying to understand the complexities. That is why there was extensive consultation with many levels of the judiciary, with the DPP, and with the transport department. This is technical, it is specific, it is dealing with issues of mechanics to do with ultra high-powered vehicles, and the interaction with various bits of legislation.

Whilst I appreciate the Law Society's view that even more time should be taken, there have been many months—there would have been hundreds upon hundreds of hours of some of the best policy and legal minds that the government and parts of the judiciary have at their disposal considering this, and certainly I am satisfied that, as much as is possible, different views have been taken into account, but certainly not everyone is going to agree with every part of everything.

The Hon. C. BONAROS: Just picking up on one of the points that was not addressed by the amendments, I think it is paragraph 14 of the Law Society's submission, which talks about the use of regulations to define an ultra high-powered vehicle and the concerns that obviously where there are criminal sanctions being included in regulation rather than at primary legislation—which appears to be becoming a habit of successive governments and one that does not serve legislation well, but notwithstanding that, have we taken on board those comments in terms of the concerns that have been raised about including criminal sanctions in regulation rather than in primary legislation?

The Hon. K.J. MAHER: I thank the honourable member for her question. Yes, it is certainly something we have actively taken into account. I think the definition of ultra high-powered vehicle was originally in the legislation. It was after further consultation that there was an amendment to put that into regulation. By the very nature of the fact that we have moved an amendment to do that means that this is something we certainly have turned our minds to, particularly given this is an area that is subject to development and change.

Vehicle technology is rapidly evolving and that was a very strong reason why, although it was originally in the legislation, we were convinced, after further consultation, that it was a reasonable proposition that it be put into regulation to be more adaptable to an area of technology, in terms of vehicle development that is rapidly changing.

The Hon. C. BONAROS: But the Attorney acknowledges that this is something that might be supported by the stakeholders who are impacted by it, but certainly not supported by the Society, which says that because there are criminal sanctions that apply to those regulations now, it would have been better dealt with in the primary legislation, as is usually the case when a criminal penalty applies to an offence.

The Hon. K.J. MAHER: I thank the honourable member for her question. Certainly, it was considered, and we have a different view to the Law Society in this area. It is not at all unknown that definitions in criminal law—from memory, I think there will be some, in terms of controlled substances, where regulations are used to define it, so there can be that agility to move more quickly than might otherwise be the case of changing legislation.

The definition of what is an ultra high-powered vehicle, after hearing submissions on the matter, we respectfully disagree with the Law Society, and this is an area that we think is more appropriately defined and able to change in regulation rather than the legislation itself.

The Hon. N.J. CENTOFANTI: Can the minister give an undertaking that any subsequent changes to that definition in the regulations will be widely consulted?

The Hon. K.J. MAHER: I thank the honourable member for her question. This is something that has seen significant consultation already. For changes in definitions it would be the usual practice for consultation to occur. It is an area in which a lot of people have an interest, including the industry, and because it is by regulation it is not as though it will escape scrutiny. There is a Legislative Review Committee, and any member of either chamber can move a motion to disallow something put forward by regulation. It was our consideration, although we had initially put it in the legislation, that on consideration we thought that, given the rapidly changing nature of this area, it is better done by regulation.

The Hon. C. BONAROS: By way of follow-up, can the Attorney rule out any early commencement provisions in relation to those regulations for as long as those provisions are still in place, given that we are moving to change the rules around early commencement provisions? Can the Attorney at least rule out the use of early commencement provisions when it comes to regulations as significant as this?

The Hon. K.J. MAHER: I thank the honourable member for her question and I know that she notes the early commencement provisions are used somewhere in the high 90 per cent of regulations put forward now. It is not just this government—that is what successive governments have done. The early commencement provisions are becoming more and more unique to South Australia, so it would be foolish of me to completely rule out the possibility of that occurring here and note that there is discussion on looking at reform in this area of how regulations are made.

The Hon. N.J. CENTOFANTI: I thank the minister for his responses to several questions and queries raised during the second reading speeches. I want to get clarification in relation to the process to obtain that U class licence. Can the minister clarify that there will not be any practical component within that process?

The Hon. K.J. MAHER: I thank the honourable member for her question. That is my advice from the transport department, which will be putting this together: that there is not the intention for a practical testing component, but it will be online training, perhaps via a person's mySAGOV account. I am informed that the modules are being put together that could see completion from a dedicated study effort in a day or under a day.

The Hon. N.J. CENTOFANTI: As a supplementary on that: for those U class licences does the minister envisage that there will be any extra tests required for some of our elderly drivers, as there is currently with regular licences?

The Hon. K.J. MAHER: My advice is that the proposals we are considering in this bill will not seek to alter what is required under your regular class licence in terms of testing at certain ages or anything else. This is specifically for U class and does not impose further obligations on top of what already exists, which I think was the question.

The Hon. C. BONAROS: I am not sure if the Attorney answered, but I think it was a fast turnaround. What is the anticipated wait times for those licences?

The Hon. K.J. MAHER: I thank the honourable member for her question. My page is still open from my second reading explanation on that exact area. I am informed that it is anticipated the driver could enrol and complete the training, for example, via their mySAGOV account. My information is the driver could then apply for the U class endorsement on their licence via the mySAGOV account.

Subject to all licensing requirements being met, the driver's digital driver's licence could be updated immediately. When the digital driver's licence is updated with U class, the driver is then able to drive the ultra high-powered vehicle. I am informed that the physical copy of the updated driver's licence will be forwarded through the normal licensing production process, usually within 14 days.

The Hon. C. BONAROS: I note that the definition does not include motorbikes, but given that response I am just wondering: is it anticipated that the same rapidness, in terms of getting that licence, would apply to a high-powered motorbike?

The Hon. K.J. MAHER: I thank the honourable member for her question. The changes we are making here, I am advised, do not include motorbikes, they have their own regime.

The Hon. C. BONAROS: I appreciate this might come up at clause 12, but given that we have been talking about ultra high-powered vehicles with a disabled automated intervention system, I am just wondering if the Attorney can clarify again what sort of notice will be given to the owner of a vehicle that has been captured within the regulations and what consultation has been undertaken with the automotive industry about that definition of 'automated intervention system'?

The Hon. K.J. MAHER: I am informed and advised that it is the intention that the registrar will write to all those who they believe are captured who own vehicles in this class. I am further advised as well that there is intended to be a look-up function so that someone can put in their registration details and seek advice on whether that vehicle falls into the ultra high-powered vehicle class.

The Hon. C. BONAROS: I do not have too many more questions. I think it might just be easier if I ask them now. Is it anticipated that there is going to be an exemption provided for test driving with a licensed representative present in the car? I know, certainly, car dealers have expressed concern that they will not be able to take potential clients for a test drive, although I think in practice it is anticipated that they will all just go and get their licence so that they can. Will there be an exemption provided for test driving with a licensed representative present in the car for those purposes?

The Hon. K.J. MAHER: I am advised that there is work being done on providing exemptions for those who must drive such vehicles occasionally in the course of their employment, such as mechanics or motor vehicle dealers. The exemptions will be found at regulation 45 of the Motor Vehicle Regulations. With regard specifically to the member's question, I will read out from my second reading explanation:

With regard to vehicle test driving, for example, for the purchase of an ultra high-powered vehicle, options for this are still being considered; however, I am advised that the transport department has been working very closely with the motor vehicle industry to ensure the requirements established by the new licence class achieve the objective without being unnecessarily onerous or prohibitive.

I think that goes to the exact sort of example the honourable member was alluding to.

The Hon. C. BONAROS: In terms of the aggravated offence at clause 3 of the bill, does this include someone who has never held a licence in the first place? We talk about someone who is disqualified or having lost their licence is disqualified from driving. Does it actually extend to, or is there another provision that extends to someone who has never actually held a licence in the first place?

The Hon. K.J. MAHER: My advice is yes, it does extend to that.

The Hon. C. BONAROS: In relation to clause 5 specifically, are these offences usually prosecuted by SAPOL or the DPP? Who will make the decision to prosecute? Also, how much weight is it anticipated will be given to the views of the families impacted by those decisions?

The Hon. K.J. MAHER: I thank the honourable member for her question. The advice I have to hand, and I am happy to double-check it, is that clause 5 introduces indictable offences, so in the usual course it would be the DPP rather than the police who would handle that prosecution. In relation to the second part of the member's question, it is possible some of the clause 5 matters could be heard in the Magistrates Court, but in relation to the role of the family and the victims, it will be dealt with in the same way, is my information.

The Hon. C. BONAROS: Can I briefly canvass the issue of mandatory imprisonment. I think it is really important to clarify mandatory imprisonment.

The Hon. K.J. MAHER: Is it part of the bill?

The Hon. C. BONAROS: It is a general question which might make sense to the Attorney in a moment. It appears that there has been lots of discussion around this bill about mandatory imprisonment, so I am asking the Attorney if he could clarify that the discretion to suspend a sentence applies to an aggravated offence as does the discretion of the court to order a sentence be served on home detention. I think that is a really critical point that needs to be clarified in the context of this debate.

The Hon. K.J. MAHER: My advice is that the discretion to suspend is not interfered with and still remains.

The Hon. C. BONAROS: Finally, we all support the sentiment behind the bill in terms of that terrible outcome for that family. At the same time, it has given rise to a number of complexities in law in trying to deal with that particular issue. If those issues that the Society in particular and other legal experts have alluded to become apparent in subsequent cases—God forbid they do, but if they do—is this something that the Attorney is open to revisiting in terms of the impacts these new laws will have?

The Hon. K.J. MAHER: I thank the member for her question. We are always open to revisiting not just existing legislation but legislation we have made or changed in this place. When things have arisen that we did not anticipate, such as the level of purity of controlled substances—that was not something that was considered or envisaged as the law operating but on the words that were used in the statute had given rise to a meaning in court, and we as a chamber quickly revisited that. It is of course something that we are open to doing should there be something that arises that we did not foresee in our deliberations here today or take into account.

There is one more point I want to add. I want to clarify an answer to the honourable member earlier in terms of aggravating factors for the new offence. My advice is: if you are disqualified or suspended that would constitute an aggravating factor, but if you have never been licensed that would not constitute an aggravating factor.

The Hon. C. BONAROS: Is that an omission on the government's part? That is the reason I asked the question, so I was a bit surprised by the answer. Does it matter if somebody had a licence or not if this offence has actually occurred and should it be an aggravated offence? That was the crux of the original question.

The Hon. K.J. MAHER: I understand the honourable member's question. Certainly, when you balance these things you consider what you have infringed and the impact that will have. It is certainly a consideration if someone has been disqualified or suspended. They have done something previously wrong; they have contravened something. They have shown—as a general rule to be disqualified or suspended—some form of driving behaviour that has been unacceptable, whereas someone who has not been licensed before, although clearly they should not be behind a wheel, there has not been that active doing of something wrong in terms of their driving record. I do take the honourable member's view into account, but these are the things one weighs up when balancing what should be aggravating factors or not.

The Hon. C. BONAROS: I appreciate the response. It is just a little bit difficult to accept in the context of this debate, because that person has not even bothered to go and get a licence. They have just grabbed a car and driven it, so they already have taken part in an offence by driving without a licence. So it could very well be an aggravating factor—

The Hon. K.J. Maher: The other ones have done something else before.

The Hon. C. BONAROS: Yes, they have taken a licence, they have done something stupid, they have lost it and therefore it is an aggravated offence. Well, you have done something equally stupid by driving one of these vehicles without a licence in the first place.

The Hon. K.J. MAHER: I understand the point the honourable member is making. I guess when you have been disqualified or suspended or unlicensed, when you are driving under any of those three conditions you are breaking the law and doing something wrong. Where you have been disqualified or suspended, you have also done something wrong before that to lose your licence.

However, I think this obviously is something that can be taken into account in the range of sentencing that is imposed, so it is not as if someone who has been driving unlicensed—and that stupidity of getting behind a wheel when you do not have a licence, although it is not an aggravating factor, is certainly something that can and should be taken into account when handing down a sentence in relation to these offences. It is certainly something that the court can consider.

The Hon. C. BONAROS: My final two questions are these. That individual, if they were disqualified, under the new provisions they could be charged with an aggravated offence. So someone who steals one of these cars and does not have a licence—maybe not steal because that is a different offence, but for someone who drives one of these, what is the equivalent offence that they will be charged with, given that they will not be subject to the aggravated offence? If you want me to pause there, I can so that we can get a response.

The Hon. K.J. MAHER: Yes; my advice is the penalty for the basic offence is five years and the aggravated is seven. In the range of within that five years for the basic offence, if you did not have a licence, certainly that is something that could be submitted to the court. Someone who commits the offence without being licensed, as opposed to someone who commits the offence even though they hold a licence, that is something within that range of up to five years' imprisonment.

So a very significant possibility of substantial time of imprisonment can be taken into account. It is not as if someone who is unlicensed, as opposed to someone who has a licence, can be treated exactly the same. It is something that can be taken into account, but the aggravated offence is seven years. Of course, between zero to five years and zero to seven years there will be overlap depending on all the other circumstances.

The Hon. C. BONAROS: I think we have made the point that there does appear to be a bit of an inconsistency there, notwithstanding what the Attorney has said in terms of the way that we deal with those two classes of drivers. Overwhelmingly, and I referenced this in my second reading contribution and I think it is an important point to make, notwithstanding the very good sentiment behind this bill, do we accept that in terms of outcomes we might end up with situations where the outcome that applied to Mr Campbell could very well apply to somebody else who is subsequently charged even under these new provisions? So despite the intentions of this legislation, we might still end up with cases that have precisely the same outcome in terms of penalties as what we have seen in the case that gave rise to this legislation.

The Hon. K.J. MAHER: I thank the honourable member. My advice is that it is difficult to see how that is possible given how this has been framed. As to the actual details of every single permutation and combination of offending, it is impossible to go through every possible detail, but on an identical factual situation it is hard to see how these new laws would not apply.

Clause passed.

Clauses 2 to 4 passed.

New clause 4A.

The Hon. K.J. MAHER: I move:

Amendment No 1 [AG–1]—

Page 3, after line 32—Insert:

4A—Amendment of section 19AB—Leaving accident scene etc after causing death or harm by careless use of vehicle or vessel

(1) Section 19AB(1)(a)—after 'attention' insert:

or without reasonable consideration for any person

(2) Section 19AB(2)(a)—after 'attention' insert:

or without reasonable consideration for any person

This is a technical amendment to address a wording inconsistency between the mid-tier offence in section 19AB of the Criminal Law Consolidation Act. The amendment was raised with the Chief Justice during consultation on the bill.

New clause inserted.

Clauses 5 and 6 passed.

Clause 7.

The Hon. K.J. MAHER: I move:

Amendment No 2 [AG–1]—

Page 6, lines 34 and 35 [clause 7(5), inserted subparagraph (ii)]—Delete ', section 19AB or section 19ABA' and substitute 'or section 19AB'

Amendment No 3 [AG–1]—

Page 6, lines 39 and 40 [clause 7(5), inserted subsubparagraph (ii)(B)]—Delete ', section 19ABA'

These amendments are technical amendments relating to this clause and amend section 19A of the Criminal Law Consolidation Act to extend the immediate loss of licence provisions to other serious driving offences in the Criminal Law Consolidation Act where death or harm is caused.

Amendments carried; clause as amended passed.

Clauses 8 to 11 passed.

Clause 12.

The Hon. K.J. MAHER: I move:

Amendment No 4 [AG–1]—

Page 9, lines 1 to 12 [clause 12, inserted section 44C(3), definitions of motor trike and ultra high powered vehicle]—

Delete the definitions of motor trike and ultra high powered vehicle and substitute:

ultra high powered vehicle means a motor vehicle of a kind prescribed by the regulations;

It is a technical amendment which deals with the definition of 'ultra high-powered vehicle' in clause 12 of the bill. As has been traversed in discussion already, this provides the definition instead be prescribed by regulation, rather than in the body of the legislation. We were persuaded to do that in light of consultation and continuing developments in motor vehicle technology that will almost certainly at some time in the future require changes and this allows the changes to be made in a more agile way as there are developments in the vehicle market.

Amendment carried.

The Hon. K.J. MAHER: I move:

Amendment No 5 [AG–1]—

Page 9, lines 21 to 24 [clause 12, inserted section 44C(4)]—Delete subsection (4)

This is consequential to amendment No. 4 as the definition of 'ultra high-powered vehicle' is removed from the bill, instead to be inserted in regulations.

Amendment carried; clause as amended passed.

Clause 13.

The Hon. K.J. MAHER: I move:

Amendment No 6 [AG–1]—

Page 9, after line 25—Insert:

(a1) Section 45(2)(b)—before 'the court must' insert:

subject to subsection (2a),

(b1) Section 45—after subsection (2) insert:

(2a) Subsection (2)(b) does not apply if—

(a) the aggravating circumstances were that the offence caused harm to a person; and

(b) the harm so caused fell short of serious harm.

This amendment addresses feedback that was provided by the Law Society in the consultation on this bill. The clause of the bill currently amends section 45 of the Road Traffic Act to remove the aggravating factor of careless driving causing serious harm or death and inserting a new aggravating factor of causing harm. The effect of this provision is that, where the driver is convicted of careless driving causing harm, the court must disqualify their licence for six months.

The Law Society submitted that causing harm in some circumstances can be a very low threshold and highlighted the fact that there may be circumstances where that mandatory minimum six months' disqualification would be unduly harsh. As outlined in the debate, there were some areas where we just did not agree with the Law Society, but this is certainly one where the Law Society made a compelling argument and we are moving that amendment.

The Hon. C. BONAROS: I have a question in relation to that one, which also relates to the issue of whether somebody has a licence or not and the application of those provisions, similar to—

The Hon. K.J. MAHER: Is this unlicensed versus disqualified?

The Hon. C. BONAROS: Yes.

The Hon. K.J. MAHER: I thank the honourable member for her question. This is not an area that has an aggravating factor, so the issues we traverse in relation to unlicensed or suspended or disqualified, I am advised, do not apply in relation to this clause and amendment.

Amendment carried.

The Hon. K.J. MAHER: I move:

Amendment No 7 [AG–1]—

Page 9, after line 30 [clause 13(2)]—Insert:

serious harm has the same meaning as in section 21 of the Criminal Law Consolidation Act 1935.

This inserts a new definition for 'serious harm' for the purposes of careless driving in section 45 of the Road Traffic Act and is consequential on the previous amendment.

Amendment carried; clause as amended passed.

Clause 14.

The Hon. C. BONAROS: It might not be specifically on clause 14, but I am a bit stuck on this point that we have just talked about and I want to clarify: for the purposes of these offences, if you do not have a licence in these situations and you commit these offences, will you automatically be prevented from getting a licence?

The Hon. K.J. MAHER: The issue we traversed before was the distinction between the aggravating factor. Just so we can understand the question to get advice, is the question if you do not hold any sort of licence or is the question about holding an ultra high-powered vehicle licence?

The Hon. C. BONAROS: Yes.

The Hon. K.J. MAHER: It is about an ultra—

The Hon. C. BONAROS: Well, any licence.

The Hon. K.J. MAHER: If you do not hold any sort of licence, is it the new mid-tier offence or is it changes to the old offence that the member is traversing?

The Hon. C. BONAROS: Generally the aggravated offence.

The Hon. K.J. MAHER: The aggravated version of the new mid-tier offence?

The Hon. C. BONAROS: Yes.

The Hon. K.J. MAHER: I think this might be what the honourable member is asking, but in relation to the disqualification or suspension of a licence, if that is part of something that is imposed and you do not currently have a licence—if you do have a licence you lose it, but if you do not have one you cannot get one is the effect of disqualification or suspension, which I think was the question that was asked?

The Hon. C. BONAROS: Yes; and you will not be able to get a high-powered one?

The Hon. K.J. MAHER: Yes; you will not be able to get—if you do not have a licence at all and you are suspended or disqualified, then my advice is you cannot get any sort of licence. It is as if you had a licence and it was suspended or disqualified. The fact that you do not have one means, for whatever that disqualification or suspension is, you are prevented from getting any sort of licence is my advice, which I think was the question.

The Hon. C. BONAROS: It was, and that is 100 per cent what I was trying to get to. I am glad we have answered that because, if anything, I think it just further cements the point that I was making earlier. The only question I have for the Attorney is: just between the houses, will we give further consideration? Is this going between the houses?

The Hon. K.J. MAHER: Yes.

The Hon. C. BONAROS: Will we give further consideration to that issue of licensed versus unlicensed for the purposes of the aggravated offences in the context of what we have just discussed?

The Hon. K.J. MAHER: I thank the honourable member and, as the honourable member knows, I am extraordinarily accommodating and always take into account views, so it is something we are happy to take further consideration of between the houses.

Clause passed.

New clause 15.

The Hon. K.J. MAHER: I move:

Amendment No 8 [AG–1]—

Page 9, after line 36—Insert:

15—Amendment of section 116—Meaning of breach of light vehicle standards or maintenance requirement

(1) Section 116(1)(b)—after subparagraph (iii) insert:

(iiia) is an ultra high powered vehicle and a mechanical fault or system error has resulted in an automated intervention system of the vehicle being disabled; or

(2) Section 116—after subsection (3) insert:

(4) In subsection (1)(b) ultra high powered vehicle, automated intervention system and disabled all have the same meanings as in section 44C.

This amendment addresses feedback that was provided by the motor vehicle industry relating to the new offence prohibiting drivers of an ultra high-powered vehicle and the concern that was raised when an automated intervention system such as some sort of automatic control is disabled. During consultation, concern was raised that this offence could potentially unfairly capture situations when an automated intervention system has been disabled through a mechanical fault or a systems error and through no fault of the driver. This amendment recognises that concern that was raised.

New clause inserted.

Title passed.

Bill reported without amendment.

Third Reading

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (16:25): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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