Legal

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Daniel Weekley Senior Associate Tindall Gask Bentley Lawyers

LEGAL

Driving laws too complicated?

When driving causes death, community outrage follows. Deaths by driving are often senseless and random. They are always sudden and tragic – for drivers, victims, families, and first responders.

A District Court judge recently had cause to reflect when sentencing a driving offender whose case garnered intense scrutiny.

“You have been condemned by many for pleading not guilty to the primary offences… Even though the court found you not guilty (of the primary offences), people have decided for themselves that you are guilty of those charges. I do not know how many of them would have read the court’s reasons for the verdicts.

“You have been vilified for your driving that night by members of the public, many of whom expressed their views ignorant of the narrow way the prosecution case was presented against you, the evidence, or the law relating to the primary offences. All of that public attention has affected you in the many ways detailed in the sentencing material I have considered. ”

Driving laws: balancing utility and safety

What does recent commentary about driving offences reflect?

The complexity of our modern transport systems and infrastructure has led to the development of a broad set of laws which are complex and prescriptive.

All but the most informed of us have a poor understanding of the rationale behind the complexity of driving laws and the delicate policy considerations that go into their enforcement. The great breadth of laws which govern driving and licensing – some 350 sections of the Australian Road Rules alone – tells us that driving a car is not as simple as sitting behind the wheel. The situations one finds oneself in while driving cannot be definitively quantified and catalogued.

For the most part, when we drive, we are simply trying to get from A to B as efficiently as possible. Many of us travel long distances to work every day. We are completely reliant on transport infrastructure to do so.

For better or worse, that infrastructure has developed in fits and spurts to favour travel by individual motor vehicles. It’s scarcely possible to live without them.

Looked at objectively, cars are onetonne metal missiles which can be instruments of death and destruction, even when driven legally.

So, the inherent danger of cars must be balanced against their necessity. The law has developed to tolerate some risk.

Sometimes the balance is easy enough. We submit to a prescriptive licensing scheme because we acknowledge there should be a minimum level of competence and accountability for all drivers. There are minimum vehicle standards that prescribe things like safety features.

Even these simple balances allow a large variance in practical reality. Both good drivers and very poor drivers are able to obtain licences. There are sports cars with state-of-the-art safety systems that drive alongside 30-year-old rust buckets – regulations can deem both roadworthy.

Some policies and laws are more controversial but are implemented nonetheless. Skulls always come off second best when they bounce on bitumen. We therefore require that cyclists and motorcyclists wear helmets, although there is a vocal minority who think this should be an individual choice, as it is in many European countries.

We restrict the use of mobile phones because of their capacity to distract. Their widespread use behind the wheel suggests that most people think that danger doesn’t apply to them.

The great breadth of laws which govern driving and licensing – some 350 sections of the Australian Road Rules alone – tells us that driving a car is not as simple as sitting behind the wheel. The situations one finds oneself in while driving cannot be definitively quantified and catalogued.

When driving becomes criminal

This principle becomes acute when criminalizing driving.

In SA, there is a two-tier system that criminalizes the most egregious departures from the minimum standard of driving expected on the road. The less serious offending is careless driving. The more serious is dangerous driving.

This two-tier system is a beacon for controversy. These offences do not criminalize the outcome of the driving but rather the manner of the driving. Accordingly, there is a plethora of ways in which one can drive carelessly or dangerously, and therefore a plethora of considerations which must be weighed up when punishing such offending.

The weight, speed, and inflexibility of cars means that collisions can have catastrophic consequences, even when nobody involved is trying to do the wrong thing. There are times when somebody will be killed on the road and nobody will be criminally liable.