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House of Assembly - Fifty-Second Parliament, First Session (52-1)
2010-06-24 Daily Xml
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ROAD TRAFFIC (CONSUMPTION OF LIQUOR WHILE DRIVING) AMENDMENT BILL

Introduction and First Reading

The Hon. R.B. SUCH (Fisher) (11:09): Obtained leave and introduced a bill for an act to amend the Road Traffic Act 1961. Read a first time.

Second Reading

The Hon. R.B. SUCH (Fisher) (11:10): I move:

That this bill be now read a second time.

I was hoping that parliamentary counsel—and it is not their fault—might have got the slightly amended bill to me in time, but nevertheless I will introduce the bill as it currently stands and we can amend it, because it is not a very big bill. This bill simply provides that you cannot drive a vehicle on a road while consuming liquor. The terminology was changed from the first draft from 'alcohol' to 'liquor', because, apparently, some cough mixtures have alcohol in them, and so, at the request of SAPOL, it was changed to liquor.

As I say, the bill corrects an anomaly in the system. I am not suggesting that people necessarily get drunk because they are consuming alcohol as they drive along, but it sends a very bad message to the community, and particularly young people (children), because, on the one hand, we are saying, 'No, drink driving when someone has consumed more than a prescribed amount of alcohol', and yet, on the other hand, you can drive down the street swigging on your whisky bottle, your can of beer or whatever. To most people I think that is incongruous and sends a very bad message to the community, because, whilst drink driving is prohibited if you exceed a certain level of alcohol in your blood, it is not illegal to drink while you drive, which, to me, seems bizarre.

SAPOL supports this bill. However, last night, I received a letter from the Minister for Police, which obviously was prepared by SAPOL and which is why parliamentary counsel to their credit have been working flat out this morning to try to draft a slightly modified bill. I only received this last night at about quarter to six and faxed it into parliamentary counsel to ask them to take account of what SAPOL was now saying. The letter from the Minister for Police (Hon. Michael Wright) states:

Dear Bob,

I refer to your email regarding the Road Traffic (Consumption of Liquor While Driving) Amendment Bill 2010 (the Bill).

I note the changes you have made to the Bill following advice received from the South Australia Police (SAPOL) late last year. SAPOL has reviewed the amended bill and advises that the proposed offence of consumption of liquor by a person driving or attempting to put a vehicle in motion will be difficult to detect, and proof will rely on a momentary sighting (in traffic) of a driver in the actual motion of consuming.

SAPOL advises that it would be more practical to combat the identified misbehaviour were the offence to include not only consuming liquor, but also possessing liquor in open or uncapped containers (while not extending to unsealed, but capped/corked, bottles such as wine) while driving. Regulation 5 of the Liquor Licensing Act 1997 (the Act) already provides an offence of consumption and/or possession of liquor in a designated Dry Area (or 'Drive Zone'), which may be a suitable model.

I am advised that operational police may still face a problem enforcing this proposed legislation should the accused wish to contest the matter based upon their belief that the substance was not liquor. To be able to provide proof to the contrary would require an analysis of the substance being consumed. Should the matter be contested, this may necessitate the seizure of an open container and safe keeping for the purpose of analysis. Unlike a breach of the 'Dry Area' legislation there is no legislative aid for police to confiscate the liquor.

SAPOL advises section 123 of the Act permits the confiscation of the liquor and legal advice has been provided that police also have the power to decant opened containers of confiscated liquor. SAPOL recommends that the Bill be amended to contain provisions for police to be able to seize, retain or dispose of the liquor, which would not impinge on the accused's ability to have an analysis of the liquor. Failure to do so may result in an abuse of process argument should the matter proceed to trial without the accused being availed of the opportunity to have the substance analysed and provide evidence of same in their defence.

I am advised that SAPOL maintain their support of the intent of the Bill as it presents a clear message to the driving community that drinking whilst driving or in control of a vehicle is unacceptable even if that consumption does not place the driver in a position of being over the legal limit.

SAPOL recommends that the Bill be amended to address the issues of confiscation and possession of liquor in unsealed containers.

I trust the above information is of assistance.

The letter is signed by Michael Wright MP, Minister for Police, and dated 16 June 2010.

As I indicated earlier, parliamentary counsel has been working flat out this morning to accommodate the wishes of the police, as expressed in this letter, in a new bill, but we can still deal with the matter by amendment to the bill that has been lodged today. Members might recall that this bill almost got through the parliament last session—I think it missed out by about five minutes.

One of the issues that the police have indicated needs to be addressed is this question of opened liquor in the vehicle. In talking to parliamentary counsel this morning, I expressed the view that we do not want passengers to be penalised simply because they may have a container with alcohol in it. It does raise the possibility that the driver could quickly pass a container to the passenger, but that could also happen with people using a mobile phone. There is that risk there, but I do not want to go down the road where our laws become so draconian that people cannot do basic things. In Tasmania and Western Australia, it is an offence to have unopened liquor, as I understand it, in a vehicle, even if you are parked somewhere on the side of a road. I think that is a bit heavy-handed, but apparently that is the law in those two states.

I take heed of what the police are saying. I have great faith in our parliamentary counsel, and there will be amendments to the bill to deal with this issue in a fair and reasonable manner. We do not want to turn people who might be passengers in a car into criminals by virtue of a law which is over the top.

With those words I commend this bill to the house. In due course—obviously not today—the house will have a chance to look at the amendments that parliamentary counsel are drawing up, as will the Minister for Police, the opposition and other members in this chamber, to see whether they are happy with those amendments which tackle the key issue of not drinking while driving but which do not go into the realm of draconian measures. I commend the bill to the house and ask members to support it, as they did previously.

Debate adjourned on motion of Mr Sibbons.

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