Abstract
This article provides a case study of the process of criminalising a form of dangerous driving in Victoria. It examines the process whereby an ostensibly draconian Bill was transformed into one far less damaging to fundamental criminal law principles and illustrates how populism may be tempered by proper parliamentary procedures, cooperation between parties and a desire to balance political and legal imperatives. It also examines the place of constructive offences in the criminal law and the role that the consequences of an offence plays in the structure of the substantive criminal law and in sentencing, particularly in the context of driving offences.
Highlights
A Tragic TaleIn March 2017, Jalal Yassine-Naja, a 13-year-old boy, was hit and killed by an unlicensed driver while skateboarding in an outer suburb of Melbourne, Victoria in Australia
She was charged with unlicensed driving under the Road Safety Act 1986 (Vic) and sentenced to 80 hours of community service, provoking community outrage at the leniency of the sentence (Parliament of Victoria 2018: 1)
In March 2018 the Crimes (Unlicensed Drivers) Bill 2018 was introduced into Parliament by an independent member of Victoria’s Upper House, the Legislative Council, intended to be named ‘Jalal’s Law’
Summary
In March 2017, Jalal Yassine-Naja, a 13-year-old boy, was hit and killed by an unlicensed driver while skateboarding in an outer suburb of Melbourne, Victoria in Australia. The offences would not require proof that the driver drove culpably, dangerously, negligently or carelessly It provided that the defendant had a defence if he or she could satisfy the court, among other matters, that they were ‘observing the standard of care in relation to the driving of the motor vehicle which a reasonable person would have observed in all the circumstances of the case’ (Parliament of Victoria 2018: 33). Despite his warning, scrutinising the processes of law-making is important and can reveal ‘the social, cultural and political forces driving change (including the role of the media and interest groups)’ (McNamara et al 2019: 3) Based on their analysis of 143 criminalisation statutes passed in New South Wales, Victoria and Queensland between 2012 and 2017, McNamara et al (2019) developed a typology for describing the paths to criminalisation that contains six categories: judge-made, single-stage executive driven, internal government agency initiative, mandated statutory review, governmentappointed inquiry/review and independent review by standing commission/committee. Other considerations include the speed with which the reform proposal is developed and implemented, the number of stages involved in the process, the degree of openness and transparency, and the extent of consultation with individuals and organisations outside executive government
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