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Legislative Assembly for the ACT: 1997 Week 6 Hansard (17 June) . . Page.. 1701 ..

MR WHITECROSS (continuing):

I should mention one stand-out thing which I do agree with - and there are other things which I will consider more in the context of the round table that has been proposed - and that is the abolition of the provision for the issuing of a traffic infringement notice for someone whose blood alcohol reading is between .05 and .08. I think it is appropriate to replace that with the kind of court provision that is proposed. Apart from that, it seems to me that as a general rule we need to consider these things a lot more carefully. I would like to commend to other members in this place a process of discussion to see whether we can come up with something which is more appropriate to the needs of the ACT, or to challenge the Government to produce the evidence that these kinds of provisions are effective and just.

MR MOORE (6.16): From the time I first read these pieces of legislation I had some major concerns. I have been briefed by Mr Kaine's officers on this issue. I must say that they were very good in their briefing, but some of my concerns remain. I worked very closely with Mr Whitecross and his staff and also with Ms Horodny's staff. It seems to me that in these two pieces of legislation there are several very offensive elements which are utterly unacceptable. The problems go to matters of high principle about our justice system. They go to the very basis of the way our society operates in a democracy. They go to the very basis of the separation of powers.

Those problems include the denial of access to the courts. To me, it is simply unacceptable to deny somebody access to the courts. Clause 8 of the Motor Traffic (Amendment) Bill (No. 2) inserts five new sections which deal with obtaining a special probationary licence. These sections I consider deeply unsound, and I am looking forward to the opportunity to discuss them in a round table session, which I must thank Mr Kaine for. I think that is a very sensible way for us to deal with this piece of legislation. Perhaps we should have organised it before the legislation came to the Assembly, but often our final work is not prepared until we are much closer to an Assembly sitting and the heat is on all of us to make sure we have things ready.

Mr Kaine: It never happens to the Government. I do not know why it happens to you.

MR MOORE: I know it never happens to the Government. Proposed subsection 11A(2) lists the categories of persons who are not entitled to apply to the court for a special probationary licence. In particular, paragraph 11A(2)(n) creates a regulation power to add additional classifications of persons who will be barred from applying for a special probationary licence.

Not only does the legislation exclude a whole series of people from going to the court and putting their case, but if we pass this legislation we will also allow a Minister to make a regulation to exclude other people. Of course, I recognise that such regulations are disallowable instruments, but they do not attract the same level of scrutiny as a piece of legislation. Of course, we are already concerned about the legislative provisions. In addition, the complex terms of proposed section 11B interfere greatly with the court's discretion to weigh up an applicant's suitability for a special probationary licence. I really think this legislation reflects a lack of understanding of the way I believe a court should operate.

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