Page 2727 - Week 13 - Tuesday, 21 November 1989
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find when we looked at this about a month ago, to check that there had not been any amendments to section 41 to preclude any of the certificates from being used in relation to insurance policies, but there have been no such amendments. This is the first of that kind.
Currently, section 41 states, "In any proceedings in a court", and then it goes on in relation to a whole series of certificates. We are concerned that if these certificates cannot be used by a court in relation to insurance proceedings there will be a number of persons who, going back to my Northern Territory example, might have a blood alcohol reading of 0.3 when there is no-one there to witness it, and fall within the prosecution guidelines of the Act, who can be prosecuted and who can be convicted, but when it comes to claiming insurance on their cars they will be able to do so.
Someone might be involved in an accident and hurt another person but, because there is no actual evidence that that person was drunk other than the certificates - and it might be difficult to make observations if the person is unconscious - that person can then be entitled to have the full cost of having his or her car repaired paid by the insurance company. That is not the case with other persons who are picked up under this legislation and who do not fit the same category as persons who are unconscious and who have blood taken from them.
I believe the clause also goes somewhat further than the situation in New South Wales, which basically at this stage precludes one certificate, and that is a certificate giving the breath analysis reading, from being used in evidence. That is, I think, in section 4(g)(xii) and (xiii).
In New South Wales it is only the result of the analysis that cannot be admissible in evidence. Under the following section in New South Wales legislation the provisions of that particular section have effect notwithstanding anything in any contract of insurance or any term or covenant. The proposed ACT amendments go further. As well as precluding any term in an insurance contract or covenant from having effect, they attempt to preclude such covenants being put into ACT insurance contracts and covenants. I think sections 2 and 3 indicate that this amendment goes much further than New South Wales legislation.
I am also told that there is no guarantee that the New South Wales law will not be altered at some time in the not so distant future. That is another reason, I think, not to change the status quo in the ACT regarding insurance contracts and their use and the use of these certificates at this time in relation to this legislation. Perhaps it would be much better if this clause were deleted now. Perhaps it behoves the Government to contact not only the insurance industry but also its State counterparts to come up with something approaching uniform legislation in relation to this issue. By not deleting clause 9 we would
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