Australian Law

Apply key concepts Assignment semester 1 - 2014

1. Under the Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act

Of motor vehicles used by persons who are alleged to have committed certain Offences such as drunk driving, reckless and dangerous driving. The police can Take a vehicle away for 28 days if the person has been arrested or reported in Relation to those offences (not yet found guilty by a court). Given your Understanding of the rule of law and the separation of powers, do you think there Are potential concerns about the police being able to impose such a penalty Where a person has not yet been proven guilty of any offence? (You should refer to pp13-16 Learner Guide)

1. Criminal law (clamping, impounding and fortifying of vehicles) Act 2007 South Australia mentions that police can seize a vehicle from a person for 28 days if that person has been reported or arrested in relation to an offence even if the victim has not been found guilty of any crime. I believe that police should have the authority to seize a person’s vehicle if they have had reports of crimes committed such as drink driving and dangerous driving because if the person is allowed to continue to drive, it creates a road hazard for other road users. I also believe that it doesn’t affect or break the separation of powers because the police are protecting the public by removing he hazard off the road by seizing/impounding the vehicle.

2. (A) Define the term ‘statute’ (the terms ‘legislation’ or ‘Acts’ have the same Meaning). Name two statutes that are relevant to policing. Explain why most Legislation that is relevant to policing is South Australian (state) legislation rather Than Commonwealth (national) legislation. (You should refer to pp26-31 Learner Guide. You will also find the Law Handbook online helpful: https://www.lawhandbook.sa.gov.au/ch27s02s02.php https://www.lawhandbook.sa.gov.au/ch27s03.php

2. A) The team stature came from parliament it is a written law but can also be known as legislation or Act of parliament as well as it can be a state or commonwealth (national) law.

1. 19 AC. Dangerous driving to escape police pursuit
2. 19 A. causing death or harm by use of vehicle or vessel

In my opinion, most legislation that is relevant to policing is because it was made/ brought of the state parliament because it is designed for South Australian roads/ rules. (B) An important legal concept that is relevant to policing is “duty of care”. This concept has developed through common law. What is ‘common law’? (You should refer to pp45-47 Learner Guide. You will also find the Law Handbook online helpful: https://www.lawhandbook.sa.gov.au/ch27s02s01.php). B) Common Law also known as case law and judge – made law is where a similar case has been through the court allowing the judge to look over the judges recording and relate them onto his case at hand. 3. (a) In September 2012, John Gardner introduced the Liquor Licensing (Supply to Minors) Amendment Bill 2012 as a private member’s bill. The proposed law (bill) creates a new offence of supplying alcohol to minors at a private residence without parental consent. What are the steps in the legislative process that need to happen for this bill to become law in South Australia? Do you think the bill is likely to become law? (You should refer to pp34-37 Learner Guide. You should also refer to the South Australian Parliament website: https://www.parliament.sa.gov.au/AboutParliament/HowParliamentWorks/TheParli amentaryProcess/Pages/HowaBillbecomesanActofParliament.aspx https://www.parliament.sa.gov.au/AboutParliament/GlossaryOfTerms/Pages/Gloss aryofTerms.aspx ) 3. A) the steps for the liquor licencing (supply to minors) Amendment bill 2012 as a private bill would need to follow the steps of parliament which are as followed ‘initiation’ which is where the bill is introduced into parliament but the minister responsible provides copies of the bill is circulated. ‘First Reading’ in this session the name of the bill is read out and there is no debate on the bill and they set a date for the next session. ‘Second Reading’ the general principles of the bill are read by the minster who introduced it and there can be a general debate on the bill. ‘Committing stage’ the house formed into a comity to examine the bill as well as to debate the bill can be done by the speaker of the house vacating/removing the chair and chairman of the comity. ‘Third Reading’ at the this stage there is little or no debate on the topic of the bill as well as this stage concludes with the readings. It will now be transmitted to the other house of Parliament and follow the same steps as it followed in the house that it originated from and once it has gone through that house it will return the first house where the amendments will be accepted but if it cannot be agree upon the bill with lapse. ‘Royal Asset’ the royal asset is where once is has followed through all the steps of parliament and has been accepted by both house who agree upon the amendments it will need the Queens’s representative( governor- general) to sign off on the bill at a federal level so that it can become law. (b) Recent changes to the Summary Offences Act 1953 include Part 3A that introduces a range of offences in relation to possession and distribution of weapons: https://www.legislation.sa.gov.au/LZ/C/A/SUMMARY OFFENCES ACT 1953.aspx Dangerous articles and prohibited weapons are defined by regulations (a form of delegated legislation: https://www.legislation.sa.gov.au/LZ/C/R/SUMMARY OFFENCES (WEAPONS) REGU LATIONS%202012.aspx What is delegated legislation? What are the advantages of this type of legislation? (You should refer to p38 Learner Guide. You may also find the Law Handbook online helpful: https://www.lawhandbook.sa.gov.au/ch27s12s01.php). B) a delegated legislation is where parliament has the power and can delegate its law making powers over to another department if they need to expertise of that department like the Dangerous articles and habited weapons act. This can e passed over to the police force or defence force for the expertise which parliament may not have. I believe that this is a very good idea and has many advantages because it allows other groups /departments to deal legislation which is in their field of expertise and enhances South Australian safety. 4. You are the magistrate needing to decide the following hypothetical case: Ms Brown is being prosecuted for driving under the influence of alcohol in breach of the hypothetical section 40 of the hypothetical Road Control Act 1960 SA. Ms Brown agrees that she consumed a significant amount of alcohol and indeed her blood alcohol level was .18. However Ms Brown is pleading not guilty. The facts are that Ms Brown’s car had broken down and was being towed by her friend in a ute using a tow rope. Police observed Ms Brown steering her towed car which was swerving across the marked lanes on South Road, Mile End. When police stopped Ms Brown (and her friend) they observed that Ms Brown smelled of alcohol and that her speech was slurred. Ms Brown’s defence is that she was not “driving” as she was being towed. Section 4 of the Act defines “driving” as being in control of the vehicle. (a) What is your decision? What rules of statutory interpretation do you consider and what rule or rules do you use to come to your decision? (Answer this part on the basis that there is no precedent to help you and refer to the literal rule and the purpose rule – pp43-44 Learner Guide).

4. A) I would think the same as the police officers did when they first came across Ms Brown being towed by her friend. The reason that I think that she is guilty of drink driving is because she was sitting in the driver’s seat, starting her car and she was being ‘towed’ but under section 4 of the Act, driving is defined by being in control of a vehicle which she clearly was doing.

During legal argument in the same case, the prosecutor in the case draws your attention as magistrate to a previous similar (hypothetical) case, Police v Smith. Police v Smith was decided ultimately on appeal by the High Court of Australia. In that earlier case, the High Court said that ‘driving’ means to be in control of the vehicle. The High Court decided that, even though he was being towed, the defendant (Mr Smith) could operate the brakes, indicator, warning device, steering and lights of the car and so he had something to do with the movement and propulsion of the car. Judge Biggins considered that such a degree of control meant that the defendant was indeed driving, both in the ordinary sense of the word and as the word was used in the Road Control Act. Judge Biggins who wrote the leading majority judgement of the High Court decision also commented that if the car had been towed by a fixed bar used by a professional tow truck, then the decision would have been different. Do you as the magistrate have to follow this decision of Police v Smith? Explain your answer. (You should refer to pp45-54 Learner Guide. You may also find the Law Handbook online helpful: https://www.lawhandbook.sa.gov.au/ch27s02s01.php) B) the case police Vs Smith is very similar to the current case involving Ms Brown because they were both being towed and both have control of their vehicle to a degree because Ms Brown and Mr Smith both had control of their vehicles in the sense that they could are operating the breaks, indicators, warning devices, steering and the lights so they could slow down or turn but as the prosecutor point out, this was a case for the high courts of South Australia. They also stated that Mr Smith was driving both in the ordinary sense at the word and as the word is used in the road control act. All of this evidence suggests that Ms Brown is guilty of driving over the limit (drink driving) because she has enough control over the car to be classed as driving but if she was to call a professional tow truck, the outcome could be completely different. 5. Discuss “reasonable cause to suspect”. How does it affect the actions of police? You should refer to pp147-149 Learner Guide. You will also find The Law Handbook online helpful: https://www.lsc.sa.gov.au/dsh/ch05s01.php 5. A) ‘Reasonable cause to suspect’ means under section 75 of the summary offences act 1953 states that; ‘a member of the police force, with-out any warrant other than this act, at any hour of the day or night may apprehend any person when the member find committing, or has reasonable cause to suspect of having committed, or being about to commit, an offence.’ I believe that this would affect the actions of police in many ways because they would be able to arrest a person whom they think (suspect) is about to commit unlawful crime if police suspect someone has or is about to commit a crime they have the power to ask for name or address but if police think that it is faults they can ask for evidence to clarify the statement. 6. Explain the powers of police to search people, places and vehicles. (You need to refer to the Summary Offences Act 1953, pp150-152 of the Learner. You will also find The Law Handbook online helpful: https://www.lawhandbook.sa.gov.au/ch03s01s02.php https://www.lawhandbook.sa.gov.au/ch03s01s04s02.php). 6. A) the powers of police to be able to search people, places or vehicle at any time if they have reasonable cause to suspect that the person places or vehicle have stolen goods, unlawful objects or evidence. Police must have the suspicion based on grounds that would raise in their mind of a reasonable person before they can act and police must follow section 68 of the summary offence as well as under section 67. The commissioner of police has the authority to issue general search warrants to detectives and officers in charge of police stations in the country and managers can be issued with general search warrants. If they have a general search warrant it allows them to break/entre into building/ cars if they have a reasonable suspicion if a crime is about to be or has been committed. 7. List as many reasons as you can as to why a person may not be granted bail. (You need to refer to the Bail Act, p150 Learner Guide & you will also find The Law Handbook online helpful: https://www.lawhandbook.sa.gov.au/ch03s02s01s01.php). 7. A) A person may not be granted bail under the ‘Bail Act 1985 pact 5 (enforcement and termination of Bail). If the arrested person has been arrested for a serious crime or is involved in organised crime. The arrested person can also have their bail terminated if they don’t comply with bail agreement and be placed in jail up to 2 year or to pay $10,000 fine as a maximum penalty. 8. When a young person under the age of 18 years is detected committing a minor offence, the Young Offenders Act provides police with several options for dealing with the young person. Describe and discuss those options. (You should refer to pp158 – 163 Learner Guide and you will also find The Law Handbook online helpful: https://www.lawhandbook.sa.gov.au/ch06s02s03.php) 8. A) In 1993 legislation were enacted in South Australia to deal with young offenders these legislation are called ‘the youth court act 1993 (SA)’, ‘the young offenders act 1993 (SA)’ and ‘The education act amendment (truancy) Act 1993 (SA)’. The aim of these acts are to get young people (youth) which are people aged between 10-18 years of age to accept responsibility for their behaviour., these legislations have been set out 3 tiered sustes for juvenile justice for youths. The following 1 and 2 tiers of the pre-court diversion aply to youth if they are a first offender or a low level offender and can be delt with by a police caution, formal or informal caution. Formal cautions are where a senior or a special youth police officer will conduct a meeting down at the police station with their legal guardian and the police officers will explain to the youth the circumstance of the caution and the meeting will be kept on an officer record even after the youth turns 18 years of age it won’t be counted in adult proceeding. The concern that can be issued to the offending youth can range from 75 hours of community service which is ten days, compensation to the custom of the offence or apologise to the victim which is mainly in writing and to take another appropriate action such as performing unpaid work for the victim. An informal caution is where an investigating police officer can give an on the spot caution/ warning without any punishment which can be of the record but they will still have to include it in their patrol log for future youth court matters if it arises. Investigating police officers will also caution the youth’s parents but no future action has to be taken against the youth or their parents. The youth that is found guilty of an offence can also receive add penalties that can be imposed like ‘Detention in secure care for up to three years’. Be subject to home detention for a period of up to six months, provided the accommodation is available and appropriate, and monitoring device is compatible, a period of community service work of up to 500 hour, to be completed within a period not exceeding 18 months, pay a fine of up to $2500 for an offence, lince disqualification if the youth does not hold a current drivers linces then the disqualification would prevent the youth from obtaining one’. Youth offenders that commit a serious offence like murder or attempted murder can be elected by the Police or Director of Police to be dealt with as an adult when the youth stands trial if they are found guilty of murder in the Supreme Court will have a sentence of impressment for life. Reference list

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