Street Racing Law - Law Articles

By Peter C Proctor LL.B.
Proctor & Associates

The offence which we commonly refer to now as Street Racing, was originally introduced to the State Parliament by way of private members Bill, courtesy Peter Debnam, State Member for Vaucluse.

In introducing the Traffic Amendment (Street Racing) Bill on 14 November 1996, Mr Debnam expressed its purpose as follows –

"The purpose of this bill is straightforward. It will deter drivers from engaging in practices such as street racing, burnouts and doughnuts. These practices, commonly referred to simply as street racing, are dangerous for drivers, passengers and onlookers and intimidate local communities".

The member for Vaucluse further commented upon the displeasure of the community at the way hoons show "apparent contempt for society and authorities, a willingness to incite trouble in the streets and ... are under considerable stress - as are the driver's skills - as a young driver pushes the engine and gearbox to perform outside their design limits."

He continued....

"The practice of street racing and the use of motor vehicles generally to intimidate the community have become infamous over the past 25 years and are discussed in length in a paper that I suggest honourable members read, Victorian Police Bulletin No. 5/95, which details the Victorian experience. In New South Wales we have a frustrating history similar to that of Victoria - convoys of carloads of young men seeking trouble, coordinated by mobile phones and driven by testosterone and a total lack of respect for the community and authorities."

The Private Member's Bill was taken up by the Government and re-introduced into the Parliament two weeks later on 27 November, 1996 under a revised name Traffic Amendment (Street and Illegal Drag Racing) Bill. It was read a second time and various members spoke in support of the Bill, the flavour of the topic being controlling "hoons" who terrorise the public in the way they drive cars – organized groups, street racing and doing burnouts.

One of the important features of this proposed legislation was to empower Police and the Courts to confiscate the subject motor vehicles and send a clear message to potential offenders.

The Bill was ultimately passed and inserted into the now repealed Traffic Act 1909. (ss. 4BA – 4BC). On 18th June, 1997, the sunset provisions were overridden in the Legislative Council. It is now entrenched legislation – here to stay.

The same provisions form part of ss.40 & 41 of the Road Transport (Safety and Traffic Management) Act 1999 and are as follows:

40 Races, attempts on speed records and other speed trials

(1) A person must not organise, promote or take part in:
(a) any race between vehicles on a road or road related area, or
(b) any attempt to break any vehicle speed record on a road or road related area, or
(c) any trial of the speed of a vehicle on a road or road related area, or
(d) any competitive trial designed to test the skill of any vehicle driver or the reliability or mechanical condition of any vehicle on a road or road related area,
unless the written approval of the Commissioner of Police to the holding or making of the race, attempt or trial has been obtained.
Maximum penalty: 20 penalty units.

(2) The Commissioner of Police may:
(a) grant or refuse approval to the holding or making of a race, attempt or trial referred to in subsection (1), and
(b) impose any condition (whether of general or limited application) on the approval that the Commissioner considers necessary in the interests of public safety and convenience.

(3) A person taking part in (or the organiser or promoter) of any race, attempt or trial referred to in subsection (1) must comply with any condition imposed on an approval granted under subsection (2) in respect of the race, attempt or trial.
Maximum penalty: 20 penalty units.

(4) If a person is convicted by a court of an offence under this section in relation to a motor vehicle or trailer:
(a) except as provided by paragraph (b)-the person is disqualified from holding a driver licence by the conviction and without any specific order of a court for 12 months, or
(b) if the court at the time of the conviction thinks fit to order a shorter or a longer period of disqualification-the person is disqualified from holding a driver licence for the period specified in the order.

(5) Any disqualification under this section is in addition to any penalty imposed for the offence.

(6) This section does not apply to any test of the slow running of a vehicle.

41 Conduct associated with road and drag racing and other activities

(1) A person must not, on a road or road related area, operate a motor vehicle in such a manner as to cause the vehicle to undergo sustained loss of traction by one or more of the driving wheels (or, in the case of a motor cycle, the driving wheel) of the vehicle.
Maximum penalty: 5 penalty units.

(2) A person must not operate a motor vehicle contrary to subsection (1) knowing that any petrol, oil, diesel fuel or other inflammable liquid has been placed on the surface of the road or road related area beneath one or more tyres of the vehicle.
Maximum penalty: 7 penalty units.

(3) In any proceedings for an offence under subsection (1) or (2), it is a defence if the person charged satisfies the court that the vehicle, although operated as referred to in subsection (1), was not so operated deliberately.

(4) A person must not, on a road or road related area, engage in conduct prescribed by regulations made for the purposes of this section, being conduct associated with the operation of a motor vehicle for speed competitions or other activities specified or described in the regulations.
Maximum penalty: 5 penalty units.

(5) Nothing in this section applies to the operation of a motor vehicle for the purposes of a race, attempt or trial undertaken in accordance with an approval given under section 40 by the Commissioner of Police.

The common charge that we hear about now in the media is the term "Street Racing". Generally it is two cars hightailing it along some roadway at considerable speed, however, it is also common for drivers to be charged where high speed is absent, but in the opinion of the Police they are considered to be "racing".

The Act has no definition of the word "races". So what does the prosecution have to prove when dealing with a charge of street racing.

Section 40 (1)(a) briefly states that a person must not take part in a race between vehicles on a road or road related area. So what does it mean to "take part in a race between vehicles".

In DPP v Belani [2005] NSWSC 1013, Johnson J. addressed the meaning of the words "any race between vehicles" in s 40(1)(a), and concluded:

[52] In my view, the words "take part in ... any race between vehicles" in s 40(1) Safety and Traffic Management Act ought be given their ordinary meaning. I accept the submissions of the Director in this respect. The words are not confined expressly to persons taking part in organised or planned races. Nor does such a restricted construction arise by implication from the terms of s 40 viewed in its statutory context. In my opinion, s 40(1) can apply to an impromptu or unplanned race between vehicles of the type alleged to have occurred in this case.

[53] Even if it be the case (and I do not think it is) that the word "race" in s 40(1)(a) is open to two competing constructions, namely a narrow construction (a planned race only) or a broad construction (any race between vehicles), then a construction which confined the section to a planned race only would not promote the purpose or object underlying the section: s 33 Interpretation Act 1987. The learned Magistrate's construction injects a significant level of uncertainly into the provision. What degree of planning is required before the race is a planned or organised race? The international motor racing event is a clear example. But what of less organised events? Where is the line to be drawn? In my opinion, this aspect points strongly in favour of the words "any race between vehicles" in s 40(1) being accorded their ordinary meaning.

It is to be noted however, that the learned judge didn't enlighten us as to what the meaning of "street racing" is. We just give it its "ordinary meaning".

It is clear from reading the various speeches in Parliament that the over-riding concern expressed by the various members of Parliament was the element of "danger", "intimidation" and what is commonly called "hoon" behaviour. The Supreme Court however, in Belani's case appear to have "read down" the legislation and given it a broader meaning such that kids racing billy carts on a street might fit within the section given that the definition of vehicle means "any description of vehicle on wheels.."

It is the opinion of the writer of this article, that two cars, side by side, accelerating and perhaps exceeding the speed limit, without more, is hardly sufficient to establish street racing. Of course if there is an agreement between the drivers to see who can get to a winning post first, then clearly they are racing. However, it is rarely that such confession will be obtained by police and will ultimately left for a court to decide on an objective view, whether the drivers were in fact "racing".

It is submitted that in the normal course of events, there must be clear evidence that the subject vehicles are racing. Speed alone might not be sufficient. However, if there is a combined element of danger in the course of such driving, then a clear inference might be drawn that such vehicles are racing.

It may appear somewhat anomalous that a person can be charged with dangerous driving following a course of conduct including high speed, overtaking on a rise, proceeding through a red light etc, and not have his car confiscated, whereas when two vehicles, side by side, take off a bit quick from a set of lights and perhaps exceed the speed limit, (although not excessively), the drivers can be charged with "street racing", have their cars confiscated, and perhaps lose their livelihood.

It must also be observed however, that the penalties for first time "racing" don't include a gaol sentence or mandatory disqualification, unlike dangerous driving.

People who are subject to charges of "street racing" generally have their vehicles confiscated for a period of three months and have to pay in excess of $1,000.00 storage fees to have the vehicle released. The confiscation of the vehicle for a period of three months can have serious consequences for persons in respect of their employment, not to mention other difficulties which might be experienced for their family – and for what? Perhaps a short spurt for 3 or 4 seconds alongside another vehicle after setting off from a set of lights.

The aim of this harsh legislation of course is to curb "hoon" behaviour on our streets and perhaps in the long run, will produce positive results.

Penalties: $2,200 fine and a disqualification period. Police can confiscate the subject motor vehicle for a period of 3 months. It is not mandatory for them to do so. However, when the matter goes to court and the person is convicted, then the court can order that the vehicle be impounded for a period of three months in the case of a first offence. In the case of a second or subsequent offence, the court can order that the vehicle be forfeited to the Crown. (ss.218 & 219 Road Transport (General) Act 2005)

Note: In December 2007 the NSW Government advised that a new set of laws may see car hoons facing potential jail time for aggravated street racing, burnouts and other dangerous driving offences. They also mooted the suggestion that cars involved in such offences might be used for crash testing.

A Bill called "Road Transport Legislation Amendment (Car Hoons) Bill 2008" has been introduced into Parliament in this current 2008 session with another set of complex and convoluted laws. The advisors and draftsmen obviously haven't heard of "dangerous driving" which covers everything anyway including any need for gaoling, or immediate suspension of licences. One of the amazing things about this Bill, and the previous legislation is that it doesn't define the term "racing".

We will wait and see what the brilliant minds in Macquarie Street pass as legislation in the near future.

Any opinions expressed by the writer in this article are not provided as legal advice but simply an opinion in respect of the law as it stands as at this date. It is provided as assistance only and should not be interpreted as being legal advice for any particular case. Readers should contact their own lawyer and obtain individual legal advice in respect of their particular case.

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