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Legislative Assembly for the ACT: 1997 Week 6 Hansard (17 June) . . Page.. 1700 ..

MR WHITECROSS (continuing):

That is why we leave to the courts the discretion to decide what the penalty will be. It is the court that is able to consider all the details of the circumstances of the individual case and decide on an appropriate penalty. It seems to me that we need to think very carefully before we go down the path of imposing mandatory sentences or mandatory minimum sentences in relation to particular offences.

The Motor Traffic (Amendment) Bill (No. 2) contains some other provisions which I am concerned about, apart from the issues of mandatory minimums that I have discussed. One is that if an offence is committed while a person is on a special probationary licence they are denied access to the courts subsequently to seek another special probationary licence. There is a long list of people who are not able to apply to the court for a special probationary licence. I do not know whether in inserting this provision the Government are seeking to reflect on the way the judiciary have exercised their discretion in this area, but it seems to me that magistrates are perfectly capable of taking into account that somebody has committed a further offence while on a special probationary licence and are perfectly capable of deciding whether to issue them with a further special probationary licence. I do not really believe it is appropriate for the parliament to preclude a magistrate from choosing to issue a special probationary licence in those circumstances.

It needs to be remembered that the reasons why magistrates issue special probationary licences are keyed to things like the maintenance of employment by the individual. What we are effectively doing when we say that a magistrate cannot give an offender a special probationary licence is punishing their whole family if that person subsequently loses their job. I cannot see how that is a just thing. That is something which a magistrate ought to be able to take into account and weigh in the balance. It is not something that we can deal with at a hypothetical level in this place. It is something that has to be considered in the context of the individual cases before a magistrate, and that is why our criminal justice system works the way it does.

Another provision in the Motor Traffic (Amendment) Bill (No. 2) which concerns me is the requirement that drivers must carry their licences at all times and cannot have a period to produce them. The Minister's explanation for this is that it will reduce the workload of the police. While I am sure the police have a lot of important things to do, that on its own does not seem to me to justify introducing a new offence with a penalty of a $145 on-the-spot fine for failing to carry your licence. I am sure that most people carry their licences with them routinely; but it seems to me that in this modern age, when a police officer can confirm that I have a valid drivers licence by radioing back to the station, it is pretty bizarre to suggest that I have to carry a licence with me at all times, or that I should automatically be subject to a $145 penalty if I fail to do so. I have not heard any real evidence that the existing provisions do not work.

I notice, too, that in respect of this provision and no doubt in respect of many of the other provisions of this Bill the Government will seek to argue that this brings us into line with New South Wales. Of course, uniformity is in many ways a good thing; but in considering uniformity we also have to take account of what is fair for the citizens of the ACT, the citizens we are elected to represent and are accountable to. I simply do not believe that a case has been made out, in respect of either of these Bills, for the degree of increase in the onerousness of the laws in relation to these things.

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