Criminal Law Consolidation (Causing Death by Use of Motor Vehicle) Amendment Bill 2021 (SA)

Monday 15 February 2021 @ 9.00 a.m. | Crime | Legal Research

On 3 February 2021 South Australian Attorney-General Vickie Chapman introduced the Criminal Law Consolidation (Causing Death by Use of Motor Vehicle) Amendment Bill 2021 (the Bill) into the SA Parliament. The Bill amends the Criminal Law Consolidation Act 1935 (SA) (CLC Act) to impose "an immediate ban on driving for those who unlawfully kill another as a result of culpably negligent, reckless or dangerous driving".

According to the Attorney-General, the Bill addresses a gap in the laws of South Australia 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.

Proposed Changes

The Bill would insert a new section 19AE in the CLC 1935 which imposes a mandatory licence suspension or disqualification when a person is charged with causing death by dangerous driving. The purpose of the change is to ensure that all offenders who are charged with an offence under section 19A(1) (dealing with causing death or harm by use of vehicle or vessel) are not permitted to drive until the charge is finalised or the suspension or disqualification is lifted by a court.

The current position is that where a person is taken into custody and charged with an offence, which includes an offence of causing death by dangerous driving, they are eligible to apply to be released on bail. A bail authority may impose certain conditions in relation to the grant of bail which might include that the person comply with any condition as to their conduct that the authority considers should apply while they are on bail. Such conditions could include a condition that a person is to refrain from driving a motor vehicle while they are on bail.

In the case of a charge of causing death by dangerous driving, the person is not always immediately arrested and charged. Some cases involve 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 CLC Act section 19A(1), the person will receive a summons to attend court to answer the charge - in such cases, the question of bail never arises. The Bill, according to the AG's second reading speech, 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.

A New Provision Added

The Bill also proposes to insert a new section 19AF into the CLC Act which empowers police officers who "reasonably believe" a person has committed an offence against section 19A(1) of the CLC Act to issue the person with a notice that imposes an immediate licence suspension or disqualification. 

This new power, according to the Attorney-General's second reading speech, involves an exercise of discretion by the police officers, which is expected to be used in situations where the police officers are concerned about the safety of other road users should an offender continue to hold a driver's licence following an accident. In this way the new power provided by provision ensures that police are empowered to protect road users immediately after an accident causing death takes place and where a charge is not laid immediately.

Suspension or Disqualification

Sections 19AE(6) and 19AF(6) of the CLC Act would allow a court to order that a suspension or disqualification end if they are satisfied, on the basis of the evidence given on oath on behalf of the charged person, that:

  •  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
  •  the person does not pose substantial risk to other members of the public if an order is made. 

Thus in exceptional circumstances it is proposed that a person can apply to the court to have a suspension or disqualification lifted, while still ensuring that community safety remains the most important consideration. Further, a court must also take a suspension or disqualification imposed under sections 19AE or 19AF CLC Act 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.

Media Calls for Change: Attorney-General's Response

In her second reading speech the Attorney-General referred to recent campaigns by The Advertiser and Sunday Mail, naming a "Road to Justice campaign" calling for a number of changes to the way in which the offences of causing death by dangerous driving are dealt with, the Attorney-General stated:

"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. . . . 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."

Further, the Attorney-General stated:

"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."

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Criminal Law Consolidation (Causing Death by use of Motor Vehicle) Amendment Bill 2021 (116 of 2021) [SA], second reading speech, and explanation of clauses available from TimeBase's LawOne service

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