Page 848 - Week 03 - Thursday, 25 March 1993
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Of course, the problem is exacerbated by our present law, which has alternative charges. You are charged under section 19 following a breath test or under section 20 following a blood test. Charging under both, I imagine, would not be the common practice. These new provisions, therefore, are far more sensible. They substitute, for two separate offences, a single offence as follows:
A person who -
(a) has been the driver of a motor vehicle on a public street or in a public place; and
(b) has, within the relevant period, a concentration of alcohol in his or her blood equal to or more than the prescribed concentration;
is guilty of an offence.
It is very simple. You only have to have been the driver of a vehicle and to have in your bloodstream a certain concentration of alcohol. Subclause (2) goes on to say that this would be established by a breath test, a blood test or some other analysis. It may be established in one of those ways. This means that you need to satisfy only one test, in effect: Was the person in the car when he had in excess of the prescribed concentration of alcohol? That is the test rather than: Was it a breath test or was it a blood test? Madam Speaker, these provisions are sensible. They do not derogate from the power of a defendant to appeal on the basis of inaccuracy of instruments, but a defendant cannot rely on a difference between one test and another test to say, "Neither is accurate and therefore I should be let off the offence".
Madam Speaker, as penalties for drink-driving in this community increase, as they have done in recent years, and the community clamps down on drink-driving as a general category of crime, the attempts to escape this offence will become more imaginative. People will take greater steps to try to get out of the offence. Therefore, at some point in the future we may need to reconsider some provisions in the Act because an imaginative lawyer has worked out a way of getting around the provisions as they stand. I think this amendment, for the time being at least, is a fairly resilient one and will prevent some of the loopholes which have existed from being exploited. I support the Bill.
MR CONNOLLY (Attorney-General, Minister for Housing and Community Services and Minister for Urban Services) (4.44), in reply: I thank Mr Humphries for his support. The Bill does indeed attempt to close a loophole. My recollection is that the laws were cast in their present form by various States in the 1970s. In an attempt to avoid other loopholes, they locked an offence into failing the test. Now we are going back the other way. No doubt the wit of some clever lawyer will find another loophole and in five years' time we will be doing something again, but for the moment this Bill tightens up a clear loophole in the law and I am pleased that the Bill is being generally supported.
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