Denying A Man His Job While Considering His Driving
Sometimes the law tries to accomplish two totally opposed ends at the one time. That leads to uncertainty. Ironically, the very law designed to uphold justice, ends up committing an injustice.
Let me give an example of what happened in Parliament a couple of weeks ago.
The Government brought in a Bill designed to give police the power to suspend a person’s drivers licence to certain major offences involving death or grievous bodily harm, to enable a police officer to suspend a person’s drivers licence if the person is caught exceeding the applicable speed limit by more than 45 kilometres per hour, and to make provision with respect to statutory declarations for ascertaining the driver of a vehicle involved in a parking offence or camera-recorded offences.
That all sounds reasonable. We can all recall terrible accidents where a speeding driver has been involved in as accident and two or three people in the other car were killed. The police book the original driver and he will have his day in court. But then that driver, gets into his car and drives off, often in a very emotional state and probably less fit to drive than before the accident. Other people further down the road are put at risk.
So the Road Transport (General) Amendment (Licence Suspension) Bill, the objects of which are to expand the range of driving-related offences in relation to which a police officer is able to suspend the licence of the offending driver on the spot. A purpose of the bill is to enable the immediate suspension of a drivers licence when police believe a driver should be charged with serious driving offences causing death or grievous bodily harm.
We can all remember some of the tragic deaths that have occurred on our roads, including a recent triple fatality when the person to be charged with a driving offence got back into his car and was preparing to drive away until the police confiscated his keys.
At present, drivers charged with serious driving offences causing death or grievous bodily harm are generally able to retain their drivers licence until a court determines the matter. This period could extend for several months. In like fashion, drivers caught speeding by more than 45 kilometres an hour over the speed limit do not have licence sanctions applied until after a court has decided the matter. That could take many months.
One principle that guides us is that a person should have the presumption of innocence until proved guilty. If their licence is taken off them on the spot, they will not be able to drive at all until the case is heard months later, when the driver may be judged as not guilty.
Meanwhile, his licence has been suspended, and if the licence is necessary for his job, he will have lost his employment even though he was innocent.
So in Parliament, I said:
“While the Christian Democratic Party wants to see dangerous and drunk drivers off our roads-particularly those who have been involved in prior accidents-we are concerned that some people will suffer a penalty who may later be proved innocent in court. We recognise that those who exceed the speed limit by more than 45 kilometres an hour are doing the community a disservice-in fact, speeding is a causative factor in 44 per cent of all fatal road accidents. That statistic alone is enough to warrant the suspension of the licences of speeding drivers. However, the Road Transport (General) Amendment (Licence Suspension) Bill 2004 should be amended to grant a full right of appeal to drivers whose licences may be suspended.I would like to suggest a way in which this problem could be overcome that I feel sure the Government should consider. The Criminal Law Committee of the Law Society of New South Wales notes: “The effect of the Bill will be to inappropriately punish drivers who are innocent of the charges by suspending their driver’s licences until the court determines the matter or the charge is withdrawn. This may take some time, given that the majority of the offences to be incorporated into section 34 are strictly indictable offences, which are dealt with in the Supreme Court or District Court.
As we all know, it usually takes some time for cases to come before the Supreme Court or the District Court. This creates an anomaly where we want to get certain persons off the road if they are guilty, but if we get them off the road and they are innocent, that may impinge upon their capacity to earn an income and support their family.
If a driver’s licence is suspended by the Roads and Traffic Authority pursuant to section 33 of the Road Transport (Drivers Licensing) Act, the driver has a right of appeal to the Local Court and the suspension is stayed, pending determination of the appeal. The appeal is determined on, among other things, the objective circumstances of the driver. But under section 34 of the Road Transport (General) Act in its current and proposed form, the suspension notice is issued immediately, or within 48 hours of the person being charged with the alleged offence.
The driver may seek a review in the Administrative Decisions Tribunal but that takes an abnormal amount of time. The suspension remains in force, obviously, until the determination of the review. This right of review cannot be equated with the right of appeal to a Local Court.
The review can succeed only if the driver can satisfy the tribunal that there are exceptional circumstances, and it is extremely hard to provide evidence of that. As a result, applicants asking the Administrative Decisions Tribunal to review a drivers licence suspension have, in fact, little prospect of success.
The Christian Democratic Party believes that it takes longer for a matter to go to trial in the District Court or Supreme Court than it does in a Local Court and the imposition of a lengthy licence suspension on people who may well be acquitted and found innocent is inappropriate and should not be contemplated in the absence of proper appeal rights. We suggest that instead of the current proposal people should be able to appeal to the Local Court. Otherwise, we support this bill.”
I realise that some people think that where there is smoke there is fire, and we all would be better off getting drivers involved in serious accidents off the road altogether. But in so doing, we may act unjustly, we may presume guilt when the person is innocent, and we may punish them by making them unable to hold their job when the court later rules that no punishment is applicable.
We want to protect society, but we should not do it by the promotion of laws that fail to protect the rights of the innocent.
It’s a tough call, but then again, all the easy laws are already in our statute books, and every amendment these days is usually a complex tangle of competing objectives, some of which can be contrary to others.
That is why Parliamentarians, must do their homework and vote intelligently. Protecting the rights of many while denying the rights of some, is not the way to go.
THIS IS GORDON MOYES.
