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House of Assembly - Fifty-First Parliament, Third Session (51-3)
2009-03-04 Daily Xml
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STATUTES AMENDMENT (TRANSPORT PORTFOLIO—ALCOHOL AND DRUGS) BILL

Second Reading

Adjourned debate on second reading.

(Continued from 19 February 2009. Page 1710.)

Mrs REDMOND (Heysen) (12:17): May I say what a pleasure it is to be the first person on the opposition side of the parliament to be leading a debate against our new minister, the member for West Torrens. I put on the record my congratulations on his final elevation to the ministry. It has been a long time coming, and I would have to say that, as a minister, he will be a big improvement on the member for Mount Gambier, who has just disgraced himself in this chamber once again.

The bill before us is one concerning road safety and that is an issue with which I have had some involvement through my professional career in the law, where I spent a lot of my time dealing with people who, sadly, had had major injuries as a result of road accidents. I used to do a lot of cases where they had had brain injuries and lacked the capacity even to instruct me in what had happened in the accident that had so disabled them.

In addition to that, I was, for about 10 years, a member of the Road Safety Advisory Council for this state, and I served on that council as a representative of local government. I was appointed to it when I was first elected in the Stirling council (more than a quarter of a century ago now, I hate to say), and I thoroughly enjoyed my involvement in that committee.

Indeed, it was one of the highlights of my month when I was a young mum with three young children to be able to get dressed and go along to meetings of the Road Safety Advisory Council. In those days it was chaired by Vin Kean, who was then the chair of SGIC, and throughout the time I was there we had people like Donald Beard, the surgeon—I think Don has now retired—and Jack McLean, head of the then Road Accident Research Unit at the university. It was a great learning experience and one that certainly made me aware of road safety issues. Therefore, it is a pleasure to be involved in the debate on this bill, which, of course, came to us from the Legislative Council where, I think, the former minister for road safety had conduct of it.

The bill does two main things, and I will speak about each of them separately in due course. Basically, it introduces a mandatory interlock scheme (I will discuss that in a minute), and it also implements the government's response to a review after the first year of operation of the Road Traffic (Drug Driving) Amendment Bill 2005. That bill was introduced and passed by the parliament in 2005 but did not come into operation until, I think, 1 July 2006.

That meant that the first year of its operation went from 1 July 2006 to 30 June 2007 and, after one year of operation, the act provided for a review to be conducted. A gentleman by the name of Bill Cossey was engaged by the government to conduct the review after one year. That review basically endorsed the regime but recommended some improvements that could be made.

I note in passing that the member for Schubert, of course, was the one who had been pushing a private member's bill to introduce roadside drug testing for some years prior to the government actually introducing the drug testing regime. There is no doubt that we all owe him a debt of gratitude for raising the possibility because I think it has made a difference to our road safety regime.

In terms of the rationale behind taking further road safety measures, I have to say that, largely, there are three fundamental areas to address in the area of road safety. In no order of priority, the first is driver behaviour, the second is the area of safety of the vehicle, and the third is what is called the 'roadside furniture' and the issue of making the roads themselves safer.

By way of example, in terms of driver behaviour, for many years it was not compulsory to wear seatbelts. We introduced them as a compulsion, and it has gradually changed driver behaviour so that most, I am sure, are now like me in that when I get into the car I do not feel comfortable if I do not have my seatbelt on. Indeed, even when I get into a bus, I do not feel comfortable unless I have a seatbelt to put on, because it has become part of our behaviour.

In terms of car safety improvements, of course, the most obvious recent example is that of airbags, which are now common in most, if not all, new cars on the market. In terms of roadsides, the most obvious examples are the proximity of trees and the quality of road shoulders in terms of when cars may leave the paved surface of the road.

This bill is directed at driver behaviour. It is some years, of course, since we first introduced legislation about drink driving. I remember as a young teenager being driven by older teenagers (not of my own family) who had been drinking and so on. It was a normal part of our social behaviour; although, anecdotally, people were aware that drink driving could be problematic in terms of response times and so on.

Eventually, we introduced legislation to make it an offence to drink and then drive. In this state, at least, the offence constituted driving with a prescribed concentration of more than .08 grams per 100 millilitres in the blood—what we currently know as .08. We then lowered that threshold to .05 (and that occurred while I was on the Road Safety Advisory Council). That came about not because of any evidence suggesting that that was where the problems were occurring—indeed, the evidence was quite to the contrary—but because, as members may recall, when Bob Hawke was prime minister of this country he introduced a 10 point road safety plan to address the number of deaths and injuries on our roads and, basically—as the federal government so commonly does to the states—he said that, unless the states introduced his 10 point plan as part of their legislative regimes, the federal government would no longer fund our road programs.

So the state government changed the regime; it introduced one which, in essence, did change the threshold to .05, but it also said that it recognised that the area from .05 to .08 was not really where the problem was, and made that an expiable offence. The most common offence was still from .08 to .15, and the really serious offence was for over .15. That was the system with which we ended up. Of course, within our courts we then had a scheme which set out (and which still sets out) each of those categories: category 1 being under .08; category 2 being .08 to .15; and category 3 being above .15. We also added a provision for a first or subsequent offence—and I think that when I was in practice it was a subsequent offence within three years. So there was a type of sliding scale for the penalty, increasing with the seriousness of the offence.

When the minister in the other place introduced the bill she indicated that, sadly, there had been something of an increase in the propensity of drivers to continue to drive with alcohol in their blood. In fact, she indicated that in 1998 the percentage had reached a low point of 22 per cent of drivers killed that year having a blood alcohol reading which would have been an offence under the legislation, but in the five years leading up to the introduction of the bill it had risen to 33 per cent. I believe that when the shadow minister in the other place, the Hon. Steven Wade, spoke to the bill he asked the minister to provide some actual figures because, whilst those percentages do seem concerning and indicate that there has, basically, been a 50 per cent increase over the last five years in the average number of people killed who were drink driving, it could be misleading.

Let me explain. If you look at figures—and I am just making up these figures—it could have been that in 1998 we had 100 deaths on our roads and 22 per cent of those (or 22 people), our low point, had alcohol in their blood at the time of their accident. If, over the next five years, we lowered the number of deaths on the road to 20 (and, as I said, I am just making up these figures), then 33 per cent of 20—or, say, seven people—is actually much lower in terms of absolute numbers than 22 per cent of 100 people. I say this by way of illustrating the problem not of dealing with actual numbers of people killed who had a blood alcohol problem but in using the percentages.

So while I accept that percentages can sound quite concerning, and I will always support any move to make our roads safer and remove drink drivers from the roads, I think there is an element in the figures quoted by the minister that could suggest that the problem is worse than it is because there may have been far fewer people killed on our roads. In fact, my recollection is that last year, we trended significantly down in the number of total deaths on our road; sadly, this year, we seem to be going up quite a bit.

I come back to the point. After the 2006-07 first year of operation of the drug driving laws—and I wish they had been introduced sooner; we supported the member for Schubert's bill—Bill Cossey conducted a review which found, substantially, that the provisions were working; however, one particular amendment was recommended. A number of amendments were recommended, of which the most significant was the recommendation that a first drug driving offence—that is, driving with a prescribed concentration of a prescribed drug in the blood—be treated like a first offence category 1 blood alcohol offence, involving a three month licence disqualification. That is the fundamental amendment to that aspect of the legislation.

The other part of the legislation is the introduction of the compulsory alcohol interlock scheme. I am sorry that my other duties kept me from seeing a demonstration, which was offered to those of us who were interested before or just after the bill was introduced in the other place. I have a vague notion of how they work; I have never actually operated one, but suffice to say that my understanding is that a lock system is put onto your car, it is installed professionally (not able to be removed by you if you are subject to the regime), and it will prevent you from starting the ignition of your car unless you are able to blow into a device which will indicate that you do not have a blood alcohol reading. I have a question about whether it has to be a zero reading; I assume it does, but I will inquire about that in due course.

The Liberal Party, at the end of its last term in government, around about the end of 2001, introduced a voluntary scheme for alcohol interlock devices, and that still exists. I note that the bill contains some transitional provisions to replace the voluntary scheme with a compulsory scheme. Indeed, this new scheme is being made compulsory on the recommendation of the Road Safety Advisory Council.

As I said, I used to be a member of that council, and it is one of the quirks of life that it was the Hon. Diana Laidlaw (the then Liberal minister for transport) who came in as a new minister and swept all of us out of office and did not reappoint all of us. I guess she did not know that I was Liberal in my leanings in those days, so I lost my position on the Road Safety Advisory Council as a result of the Liberal government and the Hon. Di Laidlaw. I do not hold her to account in any way for that; she was not to know what my political leanings were, but it was the Liberal government that removed me from that council.

The Road Safety Advisory Council has recommended that the scheme of alcohol interlock devices be made compulsory for serious and repeat drink drive offences. Interestingly, when the government introduced the proposal originally, it said two things about how it was going to operate. One was that they were going to make the carrying of your licence compulsory. I was first licensed in New South Wales, where it was compulsory to carry your licence, but in this state that proposal created quite a stir publicly because it would lead to the proposition that a simply forgetful person could be committing an offence. There is no evidence really to say that there is a major problem with people not carrying their licence or not producing it within 24 hours, and so on.

The government actually abandoned that idea, but the other thing it said about the introduction of the proposal was that it was going to have a variable payment scheme. The way it was first made public indicated that it would mean that wealthier participants would be required to pay a higher fee than lower income participants, and they would have a correspondingly discounted fee, so that the wealthier people would be subsidising the less wealthy people.

At the time that was first mooted, the opposition expressed its concern about that proposal. I think it would be administratively difficult because of the amount of paperwork involved in deciding what someone's means and assets were, in any event. I will come later to the way that is now being managed. Effectively, there is basically a concession scheme if you can show that you are a low enough income earner. I would have thought that it was obvious that trying to assess someone's income for the purposes of deciding whether they should pay a higher fee or some other fee, and whether it should be a graduated fee, would create an unnecessary administrative nightmare.

I effectively believe that all people should be equal before the law. I accept the argument that, if people are to be equal before the law, surely a $20 fee will not affect the person who has $1 million as much as the person who has only $100, obviously; but I also remember a saying in the law: 'to possess everything but own nothing'. I am sure that there would be plenty of people who have all sorts of family trusts and things who are quite wealthy but to do not necessarily show as having very much income at all. So, I think it would be fraught with difficulty, and I am not too unhappy with the way the government has now approached the issue.

In any event, neither of those two elements—the element of compulsion to carry a licence and the element of whether there should be a differential and possibly even a sliding scale fee to use the alcohol interlock scheme—seem to be driven by actual road safety considerations: they are merely administrative and technical things. I think the government has basically come to a reasonably comfortable landing by abandoning its idea of making the carrying of a licence compulsory and simply allowing for a discount or a concession for someone who can establish that they really would be in difficult financial circumstances. As I have said, we may further discuss that later on.

The bill actually covers four areas of legislation, most notably, of course, the Motor Vehicles Act and the Road Traffic Act. For obvious reasons, both of those—the vehicles and the driver behaviour—are encompassed within this concept of alcohol interlock devices. It also covers the Rail Safety Act and the Harbours and Navigation Act. My comments will be restricted really to the Motor Vehicles Act but, suffice to say, the intention is that one cannot be in control of a vessel with any blood alcohol, as I recall; therefore, there have to be amendments to the appropriate legislation to have the same effect.

The fact that all those other pieces of legislation are affected tends to make this a fairly lengthy bill. I want to look quickly at some of the details of the bill. First, I want to look at clause 14, which is the specific amendment that requires that a person disqualified from driving by reason of a serious drink driving offence, who has served their term of disqualification and has not yet had their licence reinstated, now faces a fine of $5,000 or a maximum of one year imprisonment. I do have a question of the minister. We might get to the committee stage on the issue, so I hope the advisers are taking note. When I read clause 14, I was a bit puzzled about why the reference was only to drink driving and not to drug driving but, in any event, we can come back to that in due course.

Clause 16 sets out the regime for determining whether a person should attend an assessment clinic regarding their alcohol dependency. Basically, it sets out a regime whereby, if during the previous five years they have had three or more category 1 offences (that is, the .05 to .08 offences), or two of those and one category 2 offence, or two or more serious drink driving offences (and serious drink driving offences are defined specifically in the act) and they come before the registrar seeking a licence and they come within that regime (that is, three or more category 1 offences or two category 1 and a category 2, or two or more category 2 offences, or serious drink driving offences, as defined), the registrar must refer that person for assessment of their drink and alcohol dependency before a licence can be issued.

I will also ask about clause 20 of the legislation, which I found particularly confusing to read, I would have to say. I will come back to this after the lunch break when I have found the material that I want to refer to in relation to this matter. So, in the meantime, I will move on to the next point.

Clause 22 inserts a new subsection (7), which appears to allow the minister, by regulation, to decide the length of time to be taken into account for prior offences (and I think the same thing applies in clause 23), and I am a little worried about that. As I understand this regime, there will be a much more significant penalty if someone has committed a drink driving offence and it comes within the regime which requires you to go into the alcohol interlock scheme; whereas previously you had, under the existing regime, an automatic licence disqualification, which became more severe, depending on the severity of your offence. So, there is automatic licence disqualification. However, for category 1, basically it was not a licence disqualification because it was less than .08, then you had an automatic licence disqualification, and so on, in increasing seriousness and an even longer licence disqualification if it was a second or subsequent offence within the prescribed time.

I do have some concerns that the provision in the bill seems to allow the minister to determine what that time might be that is talking about a prescribed length of time within which the minister might take into account prior offences, whereas I thought that had been sorted out. The thrust of this scheme is that, effectively, once you have served that period of disqualification, as provided under existing legislation, if you are found to be within the category that requires the alcohol interlock scheme, you must, compulsorily, have an alcohol interlock device fitted to your car at your own expense. Once that has been fitted you will have to comply with it—even though you have finished your period of disqualification—for a period which effectively doubles the period of disqualification.

I think the wording in the act is that it is for the period of disqualification or three years, whichever is the lesser. For instance, if you were disqualified for five years, at the end of your five years, if you were found to come within the regime that requires the alcohol interlock device (because five years is more than three years), obviously, you would face another three years with the alcohol interlock scheme.

The way I read the legislation is that there is a provision which provides that, if you choose to, and if your licence is one of those that has a condition on it for having an alcohol interlock scheme, you can hand up your licence and not proceed; however, when you come back again, even if it is five years later, you still have to go back and finish whatever time is unexpired of your alcohol interlock situation.

That is as I read the legislation, and I will be interested to confirm that that is the case but, as I said, that is the way it seems to me, particularly the operation of what will be section 81G. For the alcohol interlock scheme to come into place, you have the serious drink driving offence, as defined in section 81E, you finish your period of disqualification, which we have always had for years, you then apply for your new licence and you are told that, because you have this serious drink driving offence and you have done your disqualification, in getting a new licence you must have one that is subject to a condition, that is, you have to have this alcohol interlock on your car.

Proposed new section 81G provides that you cannot avoid it by simply saying, 'Well, I will just extend the period for which I am not driving.' You cannot do that. The only way you can do it is actually to have the alcohol interlock device attached to your car for that period and choose not to drive. So, I am a bit puzzled as to this idea that you might hand up your licence, because new section 81G talks about just that. It provides:

Cessation of licence subject to mandatory alcohol interlock scheme conditions.

If a person voluntarily surrenders a licence subject to the mandatory alcohol interlock scheme conditions or ceases to hold such a licence for any other reason [before they do their time]...a licence subsequently issued to the person will be subject to the conditions until [they reach the aggregate].

Let us assume that you have someone who has been disqualified for three years, they come within the definition that requires them to have their new licence issued to an alcohol interlock scheme, so they have to subject themselves to that for three years, and they then decide that they find that all too burdensome and do not want to do it.

Theoretically, new section 81G contemplates that they might surrender that licence. So, rather than having a licence with the alcohol interlock condition on it, they surrender that licence—that is what the section provides—and they sit out another three years without driving, or they get someone else to drive for them or whatever they do.

They sit out their three years and do not use that licence; they have surrendered it. Let us suppose that they had three months where they tried to operate under the licence: they found they did not like it, surrendered it, and three years later they come back to apply for a new licence. The effect of section 81G will be that they then still have to apply for their new licence and they will still be subject to a further two years and nine months with the alcohol interlock condition on their licence.

On that basis it seems that no-one will hand up their licence because it would surely be more sensible to simply keep the alcohol interlock on your car if you are not going to drive it anyway, and then sit out your three years. That means, presumably, that they have to keep paying, perhaps on a monthly basis—and maybe we can discuss these matters in committee. However, it seems to create quite a big burden, and I am puzzled about the circumstances in which the minister thinks that someone who has a compulsory alcohol interlock device condition on their licence for, let us say, three years, would ever surrender that licence, rather than simply leaving the alcohol interlock system there and sitting out the three years, otherwise it does not matter when they come back to the registrar as they will still have time to serve on their licence. That struck me as a somewhat unusual provision and I will be interested to hear the explanation for how it comes about.

Clause 24 sets out the circumstances in which the licence will be subject to mandatory alcohol interlock schemes and basically lays out the fact that we have these category 1, 2 and 3 offences, where: category 1 is driving with less than or up to .08 grams in 100 millilitres of blood; category 2 is .08 to .15 grams in 100 millilitres of blood; and, category 3 is greater than .15 grams in 100 millilitres of blood.

The first thing to note is that a serious drink driving offence means any drink driving offence, except a category 1 (that is, the very lowest, .05 to .08), or a first offence category 2 (that is, .08 to .15), which occurs within five years. That constitutes a serious drink driving offence. If you have within a period of five years anything except either just a category 1, which has always been an expiable offence, or a first offence within five years, it will be deemed under the legislation to be a serious drink driving offence.

The provision then goes on to say that, if a person who applies for a licence has been disqualified due to a serious drink driving offence, the licence, if issued, must be subject to the mandatory alcohol interlock scheme, and it may operate, in essence, for up to three years. You have that serious drink driving offence; someone applies for their licence (and it says 'if issued' because there are circumstances that I have already referred to where someone has a serious enough record in drink driving that they may be referred for assessment and, depending on the outcome of the assessment, may not be able to get a licence at all) and, if the licence is issued, they must have the alcohol interlock scheme for at least three years, as I read the legislation.

Make no mistake, that will be quite a significant thing when the community figures out that that is what it means. I am not trying to fight against it, as I believe it is a good thing. I spoke to someone at the weekend who, without knowing I had any interest in the subject, said that she thought the law should be a zero alcohol reading for all driving.

As a teetotaller I would be very happy if that were the case, but, socially, it is unlikely to be accepted at this stage in our community. I think that, like smoking, it will get to the point where now fewer people smoke; and I am sure that, in due course, the new minister will come to the conclusion that smoking is just as antisocial as some alcohol-related behaviour.

In effect, it will mean that you are disqualified for three years and that, for the next three years, you cannot get into your car to drive unless you can blow in the little thing and prove that you are not under the weather. I do want to clarify—because I did not see the actual operation of it—whether you are allowed to have any alcohol in your system or whether it is an absolute zero tolerance for the next three years. I think that will be quite an imposition on those who lose their licences and apply to get them back when they have serious drink driving offences.

Indeed, it would not surprise me at all, given that within five years quite a number of people might have an offence of over .08 but below .15. I would think that a fair few people will be subject to disqualification as well as the alcohol interlock device. As I understand it, at least two companies will be authorised to fit these alcohol interlock devices so that there is competition. It would not surprise me if we end up with more, but those two companies, I suspect, will find their business thriving over the next little while.

Interestingly, a provision in subclause (4) allows the registrar to be satisfied that prescribed circumstances exist and to issue a licence without mandatory alcohol interlock conditions. I am curious as to whether the minister will be able to tell me what 'prescribed circumstances' might be. I imagine that what is in the thinking of the minister and the department may be that someone who lives way out in the country, or for some extraordinary circumstance has to have a licence without going through the process of the alcohol interlock device, may come within some sort of exception.

I was interested to note that it is being put into the legislation by way of the minister being able to prescribe it; in other words, there will be a regulation in which the minister says, 'These are the circumstances in which I will authorise the registrar to issue someone with a licence who is otherwise liable to the alcohol interlock scheme,' and that licence can be issued without the alcohol interlock being fitted and without that condition being on the licence.

I struggle to come up with a situation where I would be comfortable with anyone who should otherwise be subject to the alcohol interlock scheme being able to avoid it by making an application that comes within the provisions prescribed by the minister and assessed by the registrar. I am curious as to the intention in terms of the prescribed circumstances within that legislation. I seek leave to conclude my remarks later.

Leave granted; debate adjourned.


[Sitting suspended from 13:00 to 14:00]


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