Lofty Ideals, Policy Potholes & Local Licences
“Tough on crime”, “the War on Drugs”, and now….. “Towards Zero”: the latest rhetoric to metamorphosis into policy. So commendable is this policy principle, we invite you with us, to look behind the rhetoric, examine the details, and the impact these will have on day-to-day lives of drivers, and asks: will the new, tougher laws achieve the government’s stated goal?
Will low-range drink driving fines and suspensions leads to less people offending?
Are the new drug driving laws part of the “War on Drugs” instead of “Toward Zero”?
The government and NSW Police argue enhanced Police powers will create more efficient Courts, and safer roads through the deterrence of newer and tougher penalties. For example, a spokeswoman for the NSW Roads Minister Andrew Constance, stated these changes would create a tougher stance on drink-driving on NSW roads. The rhetorical stance is that the issue is simple: “We are taking a zero-tolerance approach to drink and drug driving”; and “Drivers who have an illegal level of alcohol in their blood or have used illegal drugs have no place on the road”.
Critics have argued these specific legal changes will not actually achieve the Government’s stated objectives, and will simply create a more punitive regime, which rather than alleviating court workloads and incarceration levels, will instead serve to increase them. Other criticisms are that these changes have an inequitable impact and be of greater detriment to people living in regional rather than metropolitan NSW.
The power now handed to NSW Police allowing discretion to impose an instant license suspension is also not without criticisms. For Legal Aid NSW, a penalty regime allowing imposition of mandatory periods of disqualification
“lacks the ability to tailor a penalty to the specific facts and circumstances of the offence and the offender, resulting in disproportionate and oppressive effects of licence sanctions on vulnerable and marginalised people, including Aboriginal people, young people, prisoners and people living in areas with limited access to public transport, as well as their families and communities.”
The Law Society of NSW also does not support the new laws, and made submissions, setting out concerns about these changes when the Bill was first introduced last year, which were also put before the NSW Parliament inquiry into the bill, conducted by the Standing Committee on Law and Justice. The current President of the Law Society of NSW, Elizabeth Espinosa, stated that the Law Society is “particularly concerned” that effectiveness of the long standing campaign that ‘drink driving is a crime’ will be diminished once low-range PCA driving offence consequences becomes an on the spot a penalty notice, rather than a court hearing.
The Law Society is of the view that the current system is a better deterrent, because all first-time low-range PCA offenders must attend court. As Ms Espinosa stated, the “experience, and shame, of having to appear before a Magistrate, undertake a traffic offender program, and be warned of the consequences of further offending”, is an experience that arguably plays a significantly greater role as a deterrent against future offending –than a penalty notice, fine and suspension issued on the spot. In the view of the Law Society, the reforms will have the opposite effect than those intended, and will actually decrease the deterrence factor, and result in an increase in re-offending and rates of recidivism.
Ms Espinosa noted that at present, of all NSW Local Court matters, low-range PCA offences account for only 1.9 per cent. The Law Society is concerned that
“despite being designed to reduce the pressure on the Local Court, these new laws may in fact have the opposite effect as it is likely that there will be a significant increase in urgent applications for appeals against the licence suspension, resulting in two hearings rather than one.”
Of particular significance for the Northern Rivers, are the concerns of the law Society that the new laws will have more detrimental impact on those people who live in regional and remote areas of NSW. Due to the lack of public transport options, and ‘where courts sit on a part-time basis’, this means there is potential for the new drink and drug-driving regime to have a “a significant impact on people’s livelihoods”, as the Northern Rivers has more regular road side drug testing than anywhere else in NSW, and more police blitzes.
If you are wondering why it feels like Northern NSW, Byron, Ballina, Tweed and Lismore are being targeted for drug-driver police testing, then check out this map!
Lismore lawyer Steve Bolt has noted the drug testing laws are unfair, as the majority charged for this offence are not under the influence at the time of a roadside test conducted by the Police, and their driving is not impaired in any way. Instead these are people who tested positive for cannabis residue “from the day before, the night before — the effect has well and truly worn off”.  Michael Cope, President of the Queensland Council for Civil Liberties has described the phenomenon of “scope creep”, which occurs when new legislation is justified on the basis or a particular policy or to target a specific type of offender, and while discussing other new legislated expansion of police powers, the effect is the same, “to allow practical use against different offenders or innocent civilians”. This “scope creep” is what Mr Bolt effectively describes when he states his strong suspicion is that the point of these laws has nothing to do with road safety, but was instead specifically intended to “harass people who use cannabis”, in what he describes as part of a “a cultural war…to discourage people using cannabis”. Mr. Bolt has also noted the harsh impact the new instant licence suspension regime will have in our region:
The loss of licence for three months is a real impost on most people … in the country you need a car to do anything, pretty much, and that’s the real consequence.
These laws will cause greater detriment in regional NSW, where there is an insufficient or non-existent public transport system as a regular and reliable alternative. There is a documented link between access to transport and disadvantage in Australia,  alongside the documented public transport disparity between metropolitan and regional Australia –shown for example by Australian Bureau of Statistics figures for 2008, which revealed that 19.1% of Australians living in capital cities travel to work or study via public transport, compared to a regional figure of 1.7%.
Alongside the issue of inequality of detrimental impact, is the issue of Government rhetorical stances to effect policy and legislative change, that arguably serves as the executive means to obfuscate and hinder transparency regarding policy intent, with the rhetorical justifications merely serving as avenues to use “scope creep” to the implement entirely different policy agendas.
Local Court Lawyers presents this series of articles, to help inform and assist in regard to the rights of the residents in all the local communities, which together comprise our wonderful Rainbow Region. President of Australian Lawyers for Human Rights Kerry Weste, notes that lawyers are uniquely placed to defend the rule of law and champion to human rights and the rule of law, and this series of Local Court Lawyers’ articles aims to do just this: to keep our community informed about the specific effect of legislative changes; but to also place them in context with legislative trends “that reduce the oversight of courts, impinge on judicial discretion and threaten the separation of powers”.  These are trends exemplified by the legislative changes these articles discuss. The detrimental inequality between metropolitan and regional NSW caused by licence losses, the prosecution of people who pose no evidence based risk to Road Safety, the vesting of previously judicial functions upon the NSW Police, or the executive government imposing its will upon judicial independence and power of discretion – through mandatory sentencing legislation and handing judicial prerogatives to the police – all raise larger issues, of equality before the law, human rights and constitutional integrity. Limiting judicial scope of oversight and discretion while handing judicial functions to the NSW Police are parts of a larger process: steps that undermine the separation of powers, which is the very heart of our Westminster democratic system.
 Andrew Brown, “ACT drivers could lose licences under new NSW drink-driving laws”, The Canberra Times, 7 May 2019  Legal Aid NSW, Submission to the Legislative Assembly Committee On Law And Safety, Inquiry Into Driver Licence Disqualification Reform, 2013  Bruce MacKenzie, ‘NSW to crack down on drunk, drugged drivers, with automatic licence suspensions announced’, ABC North Coast, 6 May 2019,  Zeb Holmes, ‘Queensland’s Facial Recognition Regime a Complete Failure’, Sydney Criminal Lawyers, 20 May 2019  MacKenzie, above, n 1.  MacKenzie, above, n 1.  Kate Rosier & Myfanwy McDonald, “The relationship between transport and disadvantage in Australia” Communities and Families Clearinghouse Australia, August 2011.  Ibid, p 5.  Paul Gregoire, “We Must Speak Out”: Lawyers Are Obliged to Speak Out About Human Rights”, Sydney Criminal Lawyers, 29 May 2019