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Legislative Council - Fifty-Second Parliament, First Session (52-1)
2010-11-23 Daily Xml
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ROAD TRAFFIC (USE OF TEST AND ANALYSIS RESULTS) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 28 October 2010.)

The Hon. D.G.E. HOOD (16:22): I rise to present Family First's position on this very important bill, a fairly non-contentious bill, I would suspect. It will not surprise members to hear that we are supporting the bill wholeheartedly. I am not aware of any amendments, so I think the passage of the bill will be somewhat of a formality from this point. It makes plain that drink drivers must face the full consequences of the law and face the consequences relating to their compulsory third party insurance as well if they drive and are involved in an accident. It may not be surprising, therefore, that Family First will strongly support this legislative measure.

Members interjecting:

The PRESIDENT: Order! The Hon. Mr Hood has the call. You may want to take the conversations outside.

The Hon. D.G.E. HOOD: There are a couple of issues that I will raise in the concluding phase of my speech that should be addressed in this particular measure. I do not have amendments to do that because I do not want to hold up passage of the bill, but they are worthy of consideration for some future time. Some may not be aware that there are two primary scenarios in which blood will be tested to determine a person's alcohol consumption when somebody is picked up.

There is, of course, the scenario that begins with an alco-test device, which we regularly encounter at random breath test stations. In fact, I have been stopped by a number of them lately and members will be pleased to know that it was 0.0 every time, so I am squeaky clean. Alco-test devices are routinely used by police patrols, which have the ability to pull up drivers in certain circumstances.

In the event of a positive reading, the drivers will then be taken to a local police station or so-called booze bus for a more comprehensive and accurate breath analysis count on a more sophisticated device. If a driver believes that the results are inaccurate, then they have the option to request an approved blood test kit pursuant to section 47K of the act. Indeed, if the driver claims to have a medical condition that precludes them from blowing into an alco-test device, under section 47E(4a) they can immediately skip to the blood test stage.

They must then go straight to a hospital to have a blood test taken and analysed, and that is the first scenario; there is nothing wrong with that. The second set of circumstances in which blood alcohol tests are administered is following more serious car accidents. Hopefully, most members are not so familiar with that regime but, on attendance at a hospital, section 47I of the act comes into effect requiring medical practitioners to take blood tests, providing that such tests are not medically dangerous to the individual concerned.

Then, obviously, if an analysis shows that the injured person was above the prescribed limited of alcohol, there are legal consequences and that is a fine, depending on the reading, the number of prior convictions and a period of licence disqualification in all cases, except where the reading lies between .05 and .08 and it happens to be a first offence, in which case there is no disqualification.

The current act is very clear that this blood analysis testing can be used to establish guilt for the purpose of charges of driving with a prescribed concentration of alcohol. Family First takes no issue with any of that, as I expect no member of this chamber would. However, a difficulty for the government with the current legislation relates to the use of the results for any other purposes. Section 8 in schedule 1 states:

The results of a drug screening test, oral fluid analysis or blood test under Part 3 Division 5, an admission or statement made by a person relating to such a drug screening test, oral fluid analysis or blood test, or any evidence taken in proceedings relating to such a drug screening test, oral fluid analysis or blood test (or transcript of such evidence)—

(a) will not be admissible in evidence against the person in any proceedings, other than proceedings for an offence against this act or the Motor Vehicles Act 1959 or a driving-related offence; and

(b) may not be relied on as grounds for the exercise of any search power or the obtaining of any search warrant.

Why that section exists, which seems to do nothing more than give drink and drug drivers legal immunities in many matters, is completely beyond me. Indeed, it seems that this particular requirement in the act is actually making it more difficult for the police to convict people by limiting the way that the evidence can be used and only to that particular circumstance. For example, if somebody is pulled over by one of these services and they are, for instance, detected to be drug driving—not drunk driving but drug driving—I can see no impediment to giving the police an automatic right to search that vehicle.

Clearly, people who are involved in drug driving are putting themselves and others at risk. It is an irresponsible act and it may well be, as is often the case, that they could have drugs in their vehicle. I think if they give a positive reading then the police should have the right to search that vehicle on the spot. Yet, these two parts that I have just read, under Part 3 Division 5 (a) and (b) in particular seem to give the people concerned a literal 'get out of gaol free' card in this case, and I see no grounds for it whatsoever. Why have a defence for them already in the act? It just does not make sense. That is not what this act was intended to do—certainly not to make life easy for them.

A similar concern is found in section 47C. That section states very clearly that a person who has been convicted of drink driving provisions should not, for the purposes of any insurance contract, be deemed to be under the influence of alcohol. In particular, subsection (3) states that any terms or conditions in contracts that preclude insurance for people convicted of drink driving shall be void. I wonder if I could ask the minister on notice the purpose of section 47C(3) in particular and why this bill does not remove that section once and for all. Indeed, I was tempted to do that with an amendment but I suspect it may be in there for a very good reason. If it is not, then I think you can count on a private member's bill to take it out.

I ask that question of the minister: can it be explained why that section has been left in the bill? Indeed, I am also looking at similar wording in schedule 1, and I further ask whether the retention of section 47C(3) will mean that cases similar to the ones sought to be dealt with by this bill will actually continue to occur. Let us hope that is not the case. In any event, schedule 1 clearly limits the scope to use the blood analysis certificate in reference to compulsory third party insurance matters. I note that the issue of admissibility of the certificate has already been raised in a District Court trial with the ruling, last October, that the certificate cannot be relied upon in this matter. We are making it too easy for them, Mr President.

Further, during the minister's speech there was a reference to the fact that this bill will amend the law in relation to section 47I certificates—that is blood analysis carried out after admission to hospital. However, my reading of section 8 of schedule 1 is that the section relates to all types of blood tests; that is, it includes blood tests requested after or in place of an alcotest or breath analysis testing. Again, I ask the minister to clarify whether, in all cases, the blood test can be used to determine the third party insurance matters. This is a very important issue. We are talking about significant injuries sustained by people, financial compensation and, indeed, the medical treatment that they get.

I think it is important that we address this, and it is also important not to make the job for the police any harder than it has to be. As I indicated at the outset, Family First supports this bill with the qualifications that I have just outlined. These are important matters and I think they need to be addressed in order for us to see this bill go into law. The overall thrust of the bill, members will agree, is a good thing indeed.

Debate adjourned on motion of Hon. J.M. Gazzola.

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