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Legislative Council - Fifty-Fifth Parliament, First Session (55-1)
2022-11-30 Daily Xml
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Bills

Statutes Amendment (Serious Vehicle and Vessel Offences) Bill

Second Reading

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (11:09): I move:

That this bill be now read a second time.

Today, I rise to introduce the Statutes Amendment (Serious Vehicle and Vessel Offences) Bill 2022. This bill fulfils a commitment made by the government in the wake of the tragic death of Sophia Naismith in 2019, which highlighted a clear deficiency in the law in relation to driving offences. Sophia Naismith lost her life at the age of 15 when she was hit by a high-powered sports car and died at the scene of the crash.

Understandably, the Naismith family were left devastated by the loss of Sophia and have been frustrated and disheartened at the lack of serious penalties available to address the gravity of the crime which took Sophia's life. The court found that the available maximum penalty, when sentencing the driver, was only 12 months' imprisonment and a minimum six-month licence disqualification for aggravated driving without due care.

Sophia's family—her parents, Pia and Luke, her sisters and the rest of her relatives—have borne a loss that is difficult to comprehend. I have great admiration for their grace in the face of every parents' worst nightmare. It is a loss borne by too many families in South Australia and we, as a government, must do what we can to prevent another family from going through the same.

The need for legislative change has been echoed by voices across our community. The Commissioner for Victims' Rights has strongly advocated for changes in line with community expectations on behalf of many families who have endured similar tragedies and whose loss has been exacerbated by the inadequacies of the available penalties.

Current laws do not sufficiently cater for the range of circumstances that can lead to loss of life caused by driving. In August 2022, in response to the clear need for change, the Premier announced that the government would: one, make changes to the Criminal Law Consolidation Act 1935 concerning a new offence or other amendments to address driving-related deaths; two, strengthen laws banning drivers accused of killing a person from holding a licence until their case is resolved; three, ban the disabling of traction control in high-powered vehicles; and, four, introduce a new licensing scheme for motorists who want to drive elite, high-powered super sports cars.

The government has heard the pleas of Sophia's family and those of other families devastated in similar circumstances. We have heard those pleas and we commend families for their bravery and advocacy in championing changes to the law to see that justice is done.

This bill implements those commitments by creating a new indictable offence of causing death or serious harm by careless use of a vehicle or vessel in the Criminal Law Consolidation Act 1935, to bridge the gap between maximum penalties for existing driving offences; empowering police to immediately suspend or disqualify a person from driving if they are charged with or reasonably believed to have committed the new offence or serious driving offences, and closing a gap in the operation of the scheme; and creating a new offence in the Road Traffic Act 1961, prohibiting the driver of an ultra high-powered vehicle from disabling automated intervention systems, which implements the commitment to ban the disabling of traction control in high-powered vehicles.

The government's commitment to introduce a new licensing scheme for elite high-powered sports cars is also being carried through but is being progressed separately from the bill that is before the chamber, as it involves changes to regulations. This package of reforms was developed with the support of an across-government working group in relation to the licensing scheme, in consultation with other stakeholders.

Turning now to the details of the bill. The bill inserts a new mid-tier offence of causing death or serious harm by careless use of a vehicle or vessel at section 19AB(a) of the Criminal Law Consolidation Act 1935. The introduction of this new offence will allow for a more appropriate penalty range for serious driving conduct linked to the death or serious harm of another, where the conduct has not met the higher threshold of dangerous driving.

Currently, the offence of dangerous driving causing death or serious harm in section 19A of the Criminal Law Consolidation Act carries a maximum penalty of 15 years' imprisonment for a basic offence or life imprisonment for aggravated or subsequent offences, in addition to a licence disqualification of at least 10 years. However, when the threshold for dangerous driving is not met, a driver will generally face a charge of aggravated driving without due care causing death under section 45 of the Road Traffic Act 1961, which has a maximum penalty of 12 months' imprisonment and six months' licence disqualification.

The difference between these two offences is significant and can result in disproportionate sentencing for serious offending. The new mid-tier offence introduced by this bill effectively raises the penalty for driving without due care when a person dies or is seriously injured, from a maximum of 12 months to five years' imprisonment for a basic offence and seven years' imprisonment for an aggravated offence.

Similarly, the minimum licence disqualification period is also raised from six months to one year for a basic offence and three years for an aggravated offence. Separate penalties are also provided for when a person commits the new offence of using a vehicle other than a motor vehicle. This would cover, for example, riding a bicycle, and is consistent with the structure of penalties in other serious driving offences in the Criminal Law Consolidation Act.

To ensure these changes fit within the scheme of existing driving offences, the bill amends section 45 of the Road Traffic Act so that the aggravating factors of causing death and serious harm are removed and the aggravating factor of causing harm is inserted. This will ensure there are appropriate penalties for the spectrum of consequences of harm caused by this sort of driving. The aggravating factors for the new offence cover circumstances which capture what is considered the most serious driving without due care behaviour. Aggravating factors include when the offender has committed the offence:

knowing that they were disqualified from holding or obtaining a driver's licence;

with a prescribed blood alcohol level of .08 grams or more;

driving under the influence of alcohol or drugs in contravention of section 47 or 47BA of the Road Traffic Act;

driving or using a motor vehicle knowing it had a material defect and that material defect contributed to the commission of the offence; and

driving in contravention of section 44C of the Road Traffic Act.

Material defects are those which affect the safe operation of the vehicle. They could manifest in a number of ways; for example, by neglected tyre and vehicle maintenance. The aggravating factor of driving in contravention of section 44C of the Road Traffic Act refers to a new offence introduced by the bill at clause 12, which prohibits driving of an ultra high-powered vehicle where an automated intervention system has been disabled. The ultra high-powered vehicle is defined to mean a motor vehicle with a gross vehicle mass of 4.5 tonnes or less and a power ratio of 276 kilowatts per tonne or greater. The offence, therefore, does not cover things such as buses or motorbikes, but captures more powerful vehicles such as Bugattis, Ferraris and Lamborghinis.

The inclusion of these offences as an aggravating factor for the new mid-tier offence will capture, amongst other conduct, the driver of an ultra high-powered vehicle driving in sports mode who causes death or serious harm. Putting an ultra high-powered vehicle in sports mode or other similar mode makes the car more responsive to sensitive input and makes the engine more powerful and aggressive. It causes the vehicle to become more agile but reduces stability on surfaces, meaning that vehicle's tyres are more likely to lose traction and the vehicle is therefore more likely to lose control. It is not, we think, under any circumstances, a mode of driving that should be used in built-up areas for these types of cars. As we have seen, the consequences are too devastating.

A standalone offence of driving an ultra high-powered vehicle with a disabled automotive intervention system will now carry a penalty of up to $5,000. The disabling of automated intervention systems typically occurs when a driver changes the vehicle's mode to a more agile mode, such as sports mode or other racing-type mode. Automated intervention systems are systems which can intervene in the driving task and include embedded safety systems such as anti-lock braking, electronic stability control, traction control and automated emergency braking, and this is distinguished from simple and non-intervening warning systems, such as reverse warnings or lane drift warnings.

The bill also appropriately provides for a defence where the person did not disable the system and did not know or could have been expected to know it was disabled. It is also a defence if it was impractical to drive with the automated intervention system enabled, as there are some circumstances where such systems, we are informed, should legitimately be turned off, like when a car is bogged or being driven on loose surfaces.

Turning to other amendments in the bill, clause 8 of the bill amends section 19B of the Criminal Law Consolidation Act 1935 to provide for an appropriate alternative verdict provision for the new mid-tier offence so that:

the new offence is available as an alternative verdict for certain more serious offences causing death, serious harm or harm; and

less serious driving offences will be available for alternative verdicts where the new mid-tier offence is charged and cannot be established.

Clauses 3, 9 and 14 of the bill include amendments that are consequential to the creation of the new mid-tier offence. These changes are to ensure consistency of penalties across all relative offences, namely extreme speed in the Criminal Law Consolidation Act, excessive speed in the Road Traffic Act, and careless operation of a vessel in the Harbors and Navigation Act.

In summary, the bill removes the aggravating factor of causing death or serious harm from these offences and inserts a new causing harm as an aggravating factor. For those offences, conduct causing death or serious harm will be captured by this new mid-tier offence, which carries an appropriately higher maximum penalty. As such, these changes remove unnecessary duplication and inconsistencies for driving offences.

To implement the government's commitment to strengthen laws banning drivers accused of causing death, clauses 6 and 7 of the bill amend the immediate licence disqualification or suspension provisions in the Criminal Law Consolidation Act to extend to the circumstances in which police can issue an on-the-spot fine, licence suspension or disqualification so that it covers:

firstly, the new mid-tier offence of causing death or harm by use of a vehicle of a vessel;

secondly, leaving the accident scene after causing death, serious harm or harm by careless use of a vehicle or vessel in contravention of section 19AB of the Criminal Law Consolidation Act; and

thirdly, dangerous driving causing serious harm or harm in section 19A of the Criminal Law Consolidation Act.

Currently, police can only issue an on-the-spot licence suspension or disqualification for the offence of extreme speed or dangerous driving where the offence resulted in death. Broadening the circumstances as proposed will ensure greater safety to the community. The changes also close a current loophole which may technically allow a person to lawfully drive between the period in which one notice ends and a new one is issued. As I mentioned earlier, the government's commitment to introduce a new licensing scheme for elite, high-powered sports cars is also being carried through but is being progressed separately from the bill as it involves changes to regulations.

Clause 10 of the bill amends the Motor Vehicles Act 1959 to support the introduction of this licence class through regulations. The amendment will ensure that a new class of licence for ultra high-powered vehicles, when ready, can be implemented effectively. Following the introduction of this bill today, there will be further consultation. Stakeholders will have an opportunity to provide comment on the bill, and it will be progressed early in the new year.

I would like to acknowledge the tireless work of Sophia's family and their thoughtful and considered advocacy in her memory. These reforms are a fitting tribute to Sophia's legacy. With these reforms, drivers will think twice before driving unacceptably on our roads and needlessly endangering other road users. In my view, this will be one of the most significant effects of this reform.

The families that will never have to go through the pain of losing a loved one on our roads will never know that they are the beneficiaries of these reforms. Every life that these reforms saves will justify this bill 100 times over. I commend the bill to the chamber and seek leave to insert the explanation of clauses in Hansard without my reading it.

Leave granted.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

These clauses are formal.

Part 2—Amendment of Criminal Law Consolidation Act 1935

3—Amendment of section 5AA—Aggravated offences

This clause inserts aggravating circumstances for the proposed new offence of causing death or serious harm by careless use of a vehicle or vessel and makes related amendments.

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

This clause amends the heading of section 19A to distinguish that offence from the proposed new offence.

5—Insertion of section 19ABA

This clause inserts a new offence as follows:

19ABA—Causing death or serious harm by careless use of vehicle or vessel

A person who drives a vehicle or operates a vessel without due care or attention or without reasonable consideration for any person and thereby causes the death of, or serious harm to, another is guilty of an offence under this provision. The penalty for a basic offence involving a motor vehicle or motor vessel is imprisonment for 5 years and, if the offence involved a motor vehicle, disqualification from holding or obtaining a driver's licence for at least 1 year. The penalty for an aggravated offence involving a motor vehicle or motor vessel is imprisonment for 7 years and, if the offence involved the use of a motor vehicle, disqualification from holding or obtaining a driver's licence for at least 3 years. The penalty for an offence not involving a motor vehicle or motor vessel is 3 years imprisonment if the offence causes death and 2 years imprisonment of the offence causes serious harm. A defence to an offence against the section is provided for emergency workers (mirroring the defence in the current section 19A).

6—Amendment of section 19AE—Commissioner of Police to impose immediate licence disqualification or suspension following certain charges against section 19A(1)

This clause amends section 19AE to extend the application of the section to all offences against sections 19A, 19AB and 19ABA where a motor vehicle was used in the offence and the offence resulted in the death of, or serious harm to, a person.

7—Amendment of section 19AF—Power of police to impose immediate licence disqualification or suspension where offence against section 19A(1) or 19ADA(1)

This clause amends section 19AF to extend the application of the section to section 19A(3) and the offences in section 19AB and section 19ABA.

8—Amendment of section 19B—Alternative verdicts

This clause amends the alternative verdicts provision to extend the application of the section to the offences in section 19ABA.

Part 3—Amendment of Harbors and Navigation Act 1993

9—Amendment of section 69—Careless operation of a vessel

This clause amends section 69 to replace the reference to causing death or serious harm in the provision setting out circumstances of aggravation to a reference to causing 'harm'.

Part 4—Amendment of Motor Vehicles Act 1959

10—Amendment of section 145—Regulations and fee notices

This clause clarifies that regulations made under section 145(1)(gc) or (gd) may require a person who holds a particular class of licence to obtain a different class of licence in order to drive a class of motor vehicle that they had previously been authorised to drive.

Part 5—Amendment of Road Traffic Act 1961

11—Amendment of heading to Part 3 Division 4

This clause makes a minor consequential change to a heading.

12—Insertion of section 44C

This clause inserts a new section as follows:

44C—Driving ultra high powered vehicle with disabled automated intervention system

It is an offence for a person to drive an ultra high powered vehicle on a road if an automated intervention system of the vehicle is disabled. The penalty for the offence is a fine of $5000. Certain defences are specified.

13—Amendment of section 45—Careless driving

This clause amends section 45 to replace the reference to causing death or serious harm in the provision setting out circumstances of aggravation to a reference to causing 'harm'.

14—Amendment of section 45A—Excessive speed

This clause amends section 45A to replace the reference to causing death or serious harm in the provision setting out circumstances of aggravation to a reference to causing 'harm'.

Debate adjourned on motion of Hon. L.A. Curran.

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