CRIMINAL LAW CONSOLIDATION (CAUSING DEATH BY USE OF MOTOR VEHICLE) AMENDMENT BILL

I am pleased to introduce the Criminal Law Consolidation (Causing Death by Use of Motor Vehicle) Amendment Bill 2021. The bill amends the Criminal Law Consolidation Act 1935 to impose an immediate ban on driving for those who unlawfully kill another as a result of culpably negligent, reckless or dangerous driving.

Offenders who drive in a dangerous or reckless manner pose a significant risk to public safety. Our government is committed to protecting the community and ensuring that those who drive with little regard for the safety of other road users lose the privilege of being able to drive on South Australian roads. The bill addresses a lacuna in the law in relation to persons who have been charged with or are believed to have committed an offence of causing death by dangerous driving but have not yet been convicted of the offence.

The bill inserts a new section 19AE in the Criminal Law Consolidation Act 1935 to impose a mandatory licence suspension or disqualification when a person is charged with causing death by dangerous driving. This will ensure that all offenders who are charged with an offence under section 19A(1) are not permitted to drive until the charge is finalised or the suspension or disqualification is lifted by a court.

Currently, if a person is taken into custody and charged with an offence, including an offence of causing death by dangerous driving, they are eligible to apply for release on bail. The bail authority may impose certain conditions in relation to the grant of bail, including that the person comply with any condition as to their conduct that the authority considers should apply while on bail. This might include a condition that a person refrain from driving a motor vehicle while on bail.

However, for a charge of causing death by dangerous driving, the person is not always immediately arrested and charged. In some cases, investigation into the circumstances of the accident and any criminal responsibility may be more complex. Once a determination is made to charge the person under section 19A(1), the person will receive a summons to attend court to answer the charge. In these cases, the issue of bail may never arise.

The bill ensures that all persons who are charged with causing death by dangerous driving, whether or not they are arrested, will automatically have their driver's licence suspended or, if they do not have a licence, that they are disqualified from holding or obtaining a licence.

The bill also inserts a new section 19AF in the Criminal Law Consolidation Act 1935. Section 19AF empowers a police officer who reasonably believes a person has committed an offence against section 19A(1) to give the person a notice imposing an immediate licence suspension or disqualification. This will involve an exercise of discretion by the police officer. It is expected to be used where the police officer is concerned about the safety of other road users should the person continue to hold a driver's licence following the accident. This provision will ensure that police are empowered to protect road users immediately after an accident causing death takes place and where a charge is not laid immediately.

Under sections 19AE(6) and 19AF(6), a court may order the suspension or disqualification end if satisfied, on the basis of the evidence given on oath on behalf of the person, that:

(a) exceptional circumstances existing in relation to a person or the alleged offence, such that it is in all the circumstances, appropriate that an order be maintained; and

(b) the person does not pose substantial risk to other members of the public if an order is made. This will ensure that in exceptional cases persons can apply to the court to have the suspension or disqualification lifted, while ensuring that community safety remains paramount. The court must also take a suspension or disqualification imposed under sections 19AE or 19AF into account when sentencing an offender for the offence, or another offence arising out of the same conduct, and may backdate the suspension or disqualification accordingly.

There has been a recent campaign by TheAdvertiser and Sunday Mail, in particular, Mr Sean Fewster, in naming a Road to Justice campaign calling for a number of changes to the way in which offences of causing death by dangerous driving are dealt with. I have considered these proposals, and I am not satisfied that there is a need for further changes in this area of the law for the reasons that follow.

Firstly, in South Australia the offence of causing death by dangerous driving is found in section 19A(1) of the Criminal Law Consolidation Act 1935. For a first offence of causing death by dangerous driving, where an offence is a basic offence, the maximum penalty is imprisonment for up to 15 years and a licence disqualification for 10 years or such longer period as the court orders. The maximum penalty for an aggravated offence or any subsequent offence is imprisonment for life and licence disqualification for 10 years again, or such longer period as the court orders.

The Sentencing Act 2017 further provides that for certain serious offences against the person, including an offence of causing death by dangerous driving, there is a mandatory minimum non-parole period of four-fifths of the length of the sentence. This means that a court must not impose a non-parole period shorter than four-fifths of the length of the sentence unless special reasons exist, having regard for the limited set of factors.

The penalties applying in South Australia are already among the most severe in the country. The disqualification period of at least 10 years is longer than any other Australian jurisdiction. In line with community expectations, the significant penalties reflect the gravity of this type of offending, the devastating loss of life and the need to protect road users from further danger.

The government, throughout the Statutes Amendment (Sentencing) Act 2020, which came into operation last year on 2 November, also reduced the discount available where a defendant pleads guilty to an offence. As a result, for an offence of causing death by dangerous driving, the maximum discount available for an early guilty plea within four weeks of the defendant's first court appearance is 25 per cent.

Further, where a person is charged with causing death by dangerous driving and the offence was allegedly committed in the course of attempting to escape police pursuit, there will be a presumption against bail. That is, unless the person can show the existence of special circumstances justifying their release on bail, they will be remanded in custody pending the outcome of charges.

In addition to all that, in addition to advocating for harsher penalty laws, the Road to Justice campaign proposes to restrain the DPP from negotiating a plea deal to offenders charged with causing death by dangerous driving to plead guilty to a lesser offence, such as aggravated driving without due care. This proposal is, I suggest, misguided. It does not reflect the fact that plea bargaining includes multiple considerations, not least being whether the more serious charge is supported by the evidence and whether or not it is in the best interests of victims and their families to be subjected to a drawn-out and traumatic court process that may not result in conviction.

The campaign also calls for 'the employment of specialist victim support officers to assist families, particularly children, of people killed in road crashes during the court process'. This may indicate a lack of awareness of the services that are currently available to victims of crime and their families to overcome the effect of trauma and be supported through the criminal justice process.

I note in the campaign referred to that, in fact, a number of the cases that were raised were from some years ago and perhaps at that time they had not been aware of a number of services and/or recent reforms in this area of the law. However, I provide this information to the house. The Attorney-General's Department provides funding to the Road Trauma Support Team—and, frankly, there is one of these all around the country in each state—to provide free counselling and support for people affected by road trauma. This includes funding for accommodation services for individuals and families needing to stay in Adelaide for court or coronial proceedings, meetings with South Australia Police or to attend related medical appointments.

The Witness Assistance Service, in the Office of the Director of Public Prosecutions, also provides liaison and support to victims and witnesses in complex prosecutions throughout the court process. Thirdly, the Commissioner for Victims' Rights also provides support to victims, including by connecting victims and their families to a companion service during the court proceedings, assisting with the preparation of victim impact statements, utilising discretionary funding for legal representation, if needed, and advocating on behalf of victims.

I have recently met with the Commissioner for Victims' Rights, Bronwyn Killmier, and thank her for her continued service. In giving due attention to this matter, she has brought together stakeholders she works with, including family members of victims who have gone through this trauma. I note that two of those were the subject of presentation in The Advertiser campaign, so she has been considering this matter and has consulted with this group quite extensively. She agrees to undertake some further education opportunities to alert the public to what is available. I will, as Attorney-General, continue to work to promote those services the government offers to victims of road trauma. But in anticipation of the Commissioner for Victims' Rights action, I want to assure the house that that is on its way.

The bill addresses a limited gap in the existing statutory framework to ensure that road users are not put at further risk following a fatal accident and before the criminal justice process has been finalised. It does deal with an issue that has been raised, and that is the concern particularly of those family members in relation to fatal car accidents where there is a risk that the alleged driver at fault, or the party at fault, is going to be able to continue to stay on the roads.

That is a concern. It has been raised, it is being considered, and I thank both the Commissioner for Victims' Rights, Bronwyn Killmier, for her diligent work on this, together with the campaigner Mr Fewster, for bringing together those concerns. I hope that he will convey to those he has spoken to some of the misunderstanding that appears to have been conveyed as to how some of the law applies, in particular in respect of the alleged discounting.

Nevertheless, we all want to work towards ensuring that, if there is an identified risk or weakness in relation to our law, we attend to it. Our government is proud, therefore, to present this for consideration. I commend the bill to members and seek leave to have the explanation of clauses inserted in Hansard without my reading it.

Leave granted.

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—Insertion of section 19AE and 19AF

This clauses inserts new sections 19AE and 19AF into the principal Act as follows:

19AE—Automatic disqualification or suspension of driver's licence following certain charges against section 19A(1)

This section provides for the automatic disqualification of a person who does not hold a driver's licence from holding or obtaining a driver's licence, or the suspension of a person's driving licence who does, on the person being charged with an offence against section 19A(1) of the principal Act involving the use of a motor vehicle. The disqualification lasts until the charge is resolved.

A court may disapply the provision in specified circumstances.

The new section also makes procedural provision in respect of the operation of the section.

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

This section allows police officers to give the person a notice of immediate licence disqualification or suspension if the police officer reasonably believes that a person has committed an offence against section 19A(1) of the principal Act involving the use of a motor vehicle. This process is in effect the same as the immediate licence disqualification or suspension scheme in the Road Traffic Act 1961 in relation to drink drivers etc. Again, the disqualification or suspension lasts until the person is charged with the relevant offence (at which point the disqualification or suspension effected by new section 19AE will have effect) or a determination is made that the person will not be so charged.

Debate adjourned on motion of Mr Odenwalder.