Heavy Vehicle National Law and Other Legislation Amendment Bill 2018

Similar documents
By

21 September Committee Secretary Finance and Administration Committee Parliament House George Street Brisbane Qld 4000

Law Society. Queensland. Office of the President. 23 June 2017

Our Ref: Criminal Law Committee /5 8 February 2013

27 February Research Director Legal Affairs and Community Safety Committee Parliament House George Street Brisbane Qld 4000

2004 No (N.I. 15) NORTHERN IRELAND. The Criminal Justice (No. 2) (Northern Ireland) Order 2004

THE ROAD TRANSPORT ACT 2013; NAVIGATING THE NEW REGIME

The Honourable Paul Lucas MP Attorney-General, Minister for Local Government and Special Minister of State PO Box CITY EAST QLD 4002

VOLUNTARY REGISTER OF DRIVING INSTRUCTORS GOVERNING POLICY

Law Society. Queensland. Office of the President

SUPREME COURT OF QUEENSLAND

MARINE (BOATING SAFETY ALCOHOL AND DRUGS) ACT 1991 No. 80

Allegation and Findings of Fact That being registered under the Medical Act 1983 (as amended):

MOTOR VEHICLES INSURANCE ACTS AMENDMENT ACT of 1945, 9 Geo. 6 No. 27

Driving Under the Influence; House Sub. for SB 374

Crimes (Sentencing Procedure) Amendment Bill 2007

Criminal Law: Implications after road death or injury

Chapter 381. Probation Act Certified on: / /20.

SUPREME COURT OF QUEENSLAND

Cybercrime Legislation Amendment Bill 2011

12 April Research Director Legal Affairs and Community Safety Committee Parliament House George Street Brisbane Qld 4000

Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 No 90

Child Protection (Offenders Prohibition Orders) Act 2004 No 46

Crimes Amendment (Road Accidents) (Brendan s Law) Act 2005 No 74

Index. Abbreviations/meanings

Crimes (Sentencing Procedure) Act 1999 No 92

Crimes (Sentencing Legislation) Amendment (Intensive Correction Orders) Act 2010 No 48

holder of a probationary driving licence is convicted under this

Liquor Amendment (3 Strikes) Act 2011 No 58

Second Regular Session Sixty-eighth General Assembly STATE OF COLORADO INTRODUCED HOUSE SPONSORSHIP

Information for people in the community on parole orders.

THE GENERAL ASSEMBLY OF PENNSYLVANIA SENATE BILL

Unfit through drink or drugs (drive/ attempt to drive) (Revised 2017)

Bravehearts Position Statement

TITLE 6A LUMMI NATION CODE OF LAWS CRIMINAL TRAFFIC CODE

Victims Support and Rehabilitation Act 1996

LCDT 015/10. of the Lawyers and Conveyancers Act 2006 AUCKLAND STANDARDS COMMITTEE 1. Applicant. BRETT DEAN RAVELICH, of Auckland, Barrister

Assault Definitive Guideline

Identification Legislation Amendment Act 2011 No 45

The Hon Justice Peter McClelland AM Royal Commission into Institutional Responses to Child Sexual Abuse GPO Box 5283 Sydney NSW 2001 Australia

THE GENERAL ASSEMBLY OF PENNSYLVANIA SENATE BILL AS REPORTED FROM COMMITTEE ON TRANSPORTATION, HOUSE OF REPRESENTATIVES, AS AMENDED, JUNE 28, 2017

Aggravating factors APPENDIX 2. Summary

Re: Criminal Law Amendment Bill 2014

Criminal Law Implications after Road Death or Injury.

Victims Rights and Support Act 2013 No 37

THE GENERAL ASSEMBLY OF PENNSYLVANIA SENATE BILL

Rail Safety (Adoption of National Law) Act 2012 No 82

SUPREME COURT OF QUEENSLAND

Dangerous Dog Offences Consultation CONSULTATION

SUPREME COURT OF QUEENSLAND

HAULAGE PERMITS AND TRAILER REGISTRATION BILL [HL] EXPLANATORY NOTES

Road Transport (Driver Licensing) Act 1998 No 99

SUPREME COURT OF QUEENSLAND

Sentencing Act Examinable excerpts of PART 1 PRELIMINARY. 1 Purposes

Coal Mining Safety and Health Act 1999

AUSTRALIA: STUDY ON HUMAN RIGHTS COMPLIANCE WHILE COUNTERING TERRORISM REPORT SUMMARY

CRIMINAL OFFENCES. Chapter 9

COMMUNITY WELFARE ACT 1987 No. 52

Criminal Justice (Scotland) Act 2016

Final Stage Resource Assessment: Summary offences in the Magistrates Court Sentencing Guidelines (MCSG)

Inquiry into Work Health and Safety (Industrial Manslaughter) Amendment Bill 2015

Commonwealth Redress Scheme for Institutional Child Sexual Abuse Bill 2017 and related bill

Jury Amendment Act 2010 No 55

Child Protection Legislation Amendment (Children s Guardian) Act 2013 No 31

Criminal Law (High Risk Offenders) Act 2015

EXPLANATORY MEMORANDUM. provide for a reduction in the Blood Alcohol Content (BAC) level for drivers;

FINAL RESOURCE ASSESSMENT: FAILING TO SURRENDER TO BAIL

Imposition of Community and Custodial Sentences Definitive Guideline

ASSAULTS ON EMERGENCY WORKERS (OFFENCES) BILL EXPLANATORY NOTES

Interstate Transfer Application Kit

2ND SESSION, 41ST LEGISLATURE, ONTARIO 66 ELIZABETH II, Bill 158

Security Providers Form 1-1

Environmental Offences Definitive Guideline

Queensland DOMESTIC VIOLENCE (FAMILY PROTECTION) AMENDMENT ACT 1992

School non attendance (Revised 2017)

Bail (Drug and Alcohol Testing) Amendment Act 2016

THE IMMIGRATION ACTS. 23 July September Before MR C M G OCKELTON, VICE PRESIDENT UPPER TRIBUNAL JUDGE GRUBB. Between

SUPREME COURT OF QUEENSLAND

Blue card application

Application for an Authority to Drive Taxi-Cab or Private Hire Vehicle (Issued under the Passenger Transport Act 1990)

Drug Offences Definitive Guideline

Application for criminal history screening prescribed notice (yellow card)

Queensland State Election Call to Parties Statement

Animal Welfare Act 2006

ROAD SAFETY ACT 2006: IMPLEMENTATION OF SECTIONS 20 & 21

Criminal Justice Act 2003

Domestic Violence, Crime and Victims Bill [HL]

Dangerous Dog. Offences Definitive Guideline

Penal Code (Amendment) Bill

AN BILLE UM THRÁCHT AR BHÓITHRE 2009 ROAD TRAFFIC BILL Mar a ritheadh ag dhá Theach an Oireachtais As passed by both Houses of the Oireachtas

SUPREME COURT OF QUEENSLAND

NATIONAL COMPETITON DRIVERS LICENCE APPLICATION

Submission LEGISLATIVE ASSEMBLY FOR THE AUSTRALIAN CAPITAL TERRITORY STANDING COMMITTEE ON LEGAL AFFAIRS

Legal Supplement Part A to the Trinidad and Tobago Gazette, Vol. 39, No. 132, 6th July, 2000

MAGISTRATES COURT SENTENCING GUIDELINES. SENTENCING COUNCIL UPDATE 7 March 2012

Law Enforcement Legislation Amendment (Public Safety) Act 2005 No 119

Consultation Guideline

CHIEF JUDGE ORDER SETTING FORTH BOND GUIDELINES

HOME INVASIONS FIRST ISSUED: APRIL 3, 2000 LAST SUBSTANTIVE REVISION: APRIL 3, 2000

Industrial Relations Further Amendment Act 2006 No 97

Transcription:

Queensland QP Law Society Law Society House, 179 Ann Street, Brisbane Qld 4000, Australia GPO Box 1785, Brisbane Qld 4001 ABN 33 423 389 441 P 07 3842 5943 F 07 3221 9329 president@qls.com.au qls.com.au Office of the President 22 March 2018 Our ref: KB+BDS-GenAdv Committee Secretary Transport and Public Works Committee Parliament House George Street Brisbane Qld 4000 By email: tdwc@parliament.gld.qov.au Dear Committee Secretary Heavy Vehicle National Law and Other Legislation Amendment Bill 2018 Thank you for the opportunity to provide comments on the Heavy Vehicle National Law and Other Legislation Amendment Bill 2018 (the Bill). The Society commends the government for permitting public consultation on the proposed Bill. As there has been only a very brief opportunity to review the proposed amendments, an in-depth analysis of the Bill has not been conducted. It is possible that there are issues relating to fundamental legislative principles or unintended drafting consequences which we have not identified. We note that the comments made in this submission are not exhaustive and we reserve the right to make further comment on these proposals. We urge the government to extend the period in which to provide comments and also extend the reporting date of the Committee, so that the Committee has a reasonable opportunity to consider the draft legislation before it. QLS is the peak professional body for the State s legal practitioners. We represent and promote nearly 12,000 legal professionals, increase community understanding of the law, help protect the rights of individuals and advise the community about the many benefits solicitors can provide. The QLS also assists the public by advising government on improvements to laws affecting Queenslanders and working to improve their access to the law. 1. Clause 38 - Cooperating with participating jurisdictions and Commonwealth The committee is urged to ensure these provisions accord with relevant privacy principles. 2. Clause 47 - Insertion of new s 77AAA Clause 47 of the bill seeks to add a new provision after section 77 of the Transport Operations (Road Use Management) Act 1995. This new clause would allow the chief executive to notify a registered operator of traffic offences committed in the registered operator s vehicle. Queensland Law Society is a constituent member of the Law Council of Australia Law Council OF AUSTRALIA

The Society expresses concerns over the registered owner of a vehicle being notified with details of the driver in circumstances. This is a basic invasion of an individual s privacy and could have employment ramifications causing people to otherwise defend matters. We do not see a justifiable basis to advise others of a, for instance, criminal conviction. In this regard, we note that the proposed notifiable offences may be quite serious and offences which actually require individuals to appear in court. Such a scenario would seem to fly in the face of the idea of a non-recorded conviction and the impact or otherwise it would have on a person. Therefore, in the Society s view, we do not consider that this intrusion on individual privacy is warranted in the circumstances. Furthermore, this provision may be inconsistent with the provisions of the Criminal Law (Rehabilitation of Offenders) Act 1986. 3. Clause 48 - Amendment of s 80 (Breath and saliva tests, and analysis and laboratory tests) Clause 48 of the bill seeks to remove section 80(8J) of the Transport Operations (Road Use Management) Act 1995. Section 80(8J) of the Transport Operations (Road Use Management) Act 1995 currently states (8J) Operator of saliva analysing instrument must not be arresting officer or officer who requires specimen The authorised police officer operating or who is to operate a saliva analysing instrument in any particular case must not be the police officerfa) who has arrested the person concerned for an offence referred to in subsection (8); or (b) who requires the person to provide the specimen of saliva for a saliva test or saliva analysis. The Society does not oppose the proposal to having a single officer conduct drug driving test procedures. Having a single officer conduct drug driving test procedures is acceptable as long as due process, rules and safeguards are strictly enforced. This would include a police officer electronically recording the whole procedures and sealing samples in the presence of the defendant. We also recommend that separate reference samples should be lodged at court. We consider that these safeguards are must be preserved and should not be dispensed with due to mere convenience. 4. Clause 49 - Amendment of s 83 (Careless driving of motor vehicles) Clause 49 of the bill seeks to replace section 83 of the Transport Operations (Road Use Management) Act 1995. The current section 83 of the Transport Operations (Road Use Management) Act 1995 reads as follows 83 Careless driving of motor vehicles Queensland Law Society Office of the President Page 2 of 5

Any person who drives a motor vehicle on a road or elsewhere without due care and attention or without reasonable consideration for other persons using the road or place is guilty of an offence. Maximum penalty 40 penalty units or 6 months imprisonment. The new section 83 set out in clause 49 of the bill introduces a tiered sentencing regime for careless driving, increases maximum penalty units and terms of imprisonment and proposes a mandatory driver licence disqualification scheme. a) Introductory remarks regarding increased penalties for driving offences resulting in death or grievous bodily harm The Society notes the material presented in the Explanatory Notes concerning the injuries sustained on Queensland roads. We sympathise with the individuals and families that have been affected by these tragic accidents. However, the Society s fundamental concern is that the rationale behind the proposed changes is reactionary to a couple of particular cases, which are very sad on their own facts. However, it is clear that there was not thought to be criminal code criminality of the defendant in some of these cases. As such, the Society is concerned that the proposed legislative reforms will not be successful in achieving the objective of reducing the numbers of death and injuries sustained by Queensland road accidents. We acknowledge that some community members, including those of aggrieved families, consider that certain sentences are inadequate. However, we do not consider that the community has been provided with all the relevant information required to make informed decisions about the adequacy of existing legislation to deal with driving offences causing death or bodily harm. The education of the public in relation to these matters lies properly within the bailiwick of the Queensland Sentencing Advisory Council. The Society maintains that the creation of new offences and increases to current maximum penalties should be grounded in cogent evidence based research and data. Laws should respect the principles of proportionality, necessity and legality and be appropriately adapted to achieve their stated legitimate aims. In this regard, it is difficult to see how the proposed changes will have an impact on improving road safety. 5. Clause 50 - Amendment of s 86 (Disqualification of drivers of motor vehicles for certain offences) Clause proposes the introduction of a mandatory driver licence disqualification regime. a) Mandatory sentencing - general remarks The Society has maintained a consistently strong stance against any form of mandatory sentencing. These views are detailed in our mandatory sentencing policy paper, which can be accessed at the following link - http:www.qls.com.auknowledqe centreareas of lawcriminal lawmandatory sentencing policy paper. QLS supports the fundamental principles of Australia s legal system, including principles of procedural fairness, judicial precedent, the rule of law, and the separation of powers. We promote these concepts as central to the protection of a citizen s right to justice and equality Queensland Law Society Office of the President Page 3 of 5

before the law. In our view, mandatory sentencing laws are arbitrary, unfair and unworkable and run contrary to these fundamental tenets. As discussed, our view is that sentencing decisions should rest with highly trained judicial officers. These judicial officers are in the best position to administer justice through judicial reasoning and comprehensive understanding of the offence and the circumstances surrounding its commission. In this regard, we note that mandatory sentencing regimes undermine sentencing guidelines as set out in section 9 of the Penalties and Sentences Act 1992. The Act states that sentences may be imposed on an offender to an extent or in a way that is just in all the circumstances. b) Driver licence disqualification In line with our comments in relation to mandatory sentencing, the Society does not support the introduction of mandatory driver licence disqualifications. While we appreciate that there are mandatory driver licence disqualification provisions in the Criminal Code Act 1899, we do not consider that these need to be extended in to the offence of driving without due care ( careless driving ) in circumstances of aggravation in section 83 of the Transport Operations (Road Use Management Act) 1995. In our view, a lengthy drive licence disqualification can have a significant impact on all aspects of an individual s life, including negative impacts on their employment and family life. The recent Court of Appeal case of R v Gazzara [2017] QCA 168 has considered the impact of disqualification of a driver licence. We recommend that due consideration be given to the Court s reasoning in this matter. This position applies in relation to the criminal offence of dangerous operation of a motor vehicle causing grievous bodily harm or death in part. It is not unheard of for a defendant, in particular circumstances, to receive a wholly suspended jail sentence or immediate parole order for such an offence. This is due to the sentencing judge assessing the criminality, which might include momentary inattention of a defendant who otherwise might have 20-30 years of exemplary driving. A licence disqualification of no less than 12 months can fundamentally affect prospects of rehabilitation as it can lead to unemployment and isolation from family and support mechanisms such as counselling. We submit that it is essential that a discretion be maintained as to driver licence disqualification. Case law has long established that an increase of maximum penalties signals to the Court an intention by Parliament for a matter to be treated more seriously, but, discretion should remain with respect of the range of applicable penalties (as seen in the case law in relation to serious assaults on police). In our view, a more worthwhile initiative is a mandatory provision for driver education to be completed at an approved institution while the individual is disqualified from driving. c) Increases to current maximum penalty units and imprisonment terms In the absence of cogent and persuasive empirical evidence that the proposed increases to the current maximum penalty units and imprisonment terms will have a real impact in improving road safety, we do not support these increases. d) Careless driving with circumstances of aggravation The Society does not support the introduction of a tiered sentencing regime for careless driving with circumstances of aggravation. We consider that it is important to note that there is Queensland Law Society Office of the President Page 4 of 5

a reason for making a distinction between careless and dangerous in driving cases. That is it properly reflects degrees of culpability that happen in real life. It is our firm view that the current law is adequate to encompass the appropriate range of culpability and there are no current gaps in the law. In addition, another factor that might be considered is whether charges are being appropriately characterised by the Queensland Police Service. Furthermore, we note that there are also appropriate appeal mechanisms at the State s disposal to deal with perceived inadequate sentences. 6. Clause 51 - Amendment of section 92 (Duties and liabilities of drivers involved in road incidents) Section 92 of the Transport Operations (Road Use Management) Act 1995 details the duties and liabilities of drivers involved in road incidents. We consider that the current penalty is adequate and the proposed amendment is unnecessary. In the experience of our members, most failure to stop offences are accompanied by the commission of another offence, which would attract significant imprisonment terms. We also note that there may be multiple reasons to explain why an individual may flee the scene of an accident. In our member practitioners experience, individuals may leave a scene of an accident because they may actually be unaware that they have been involved in an accident or that they were in shock following an accident. We are very concerned about the proposed mandatory consequences that will be imposed for an omission offence and respectfully request that this provision be reconsidered. If you have any queries regarding the contents of this letter, please do not hesitate to contact Acting Advocacy Manager, Ms Binny De Saram on b.desaram@qls.com.au or (07) 3842 5889 or Kate Brodnik, Senior Policy Solicitor on (07) 3842 5851 or k.brodnik@qls.com.au. Yours faithfully Ken Taylor President Queensland Law Society Office of the President Page 5 of 5