The proposal to impose mandatory penalties on repeat drink-drivers and restrict their access to special licences was renewed this week by Independent MLA Paul Osborne. An earlier version of the proposal was defeated in the Assembly in 1997.
Any proposal to replace judicial discretion with mandatory sentences must be treated with utmost caution. Though many in Canberra can be justifiably dismayed on occasions at judicial inconsistency and leniency with sentences, a system where a judge or magistrate can look at all the facts and circumstances of a case and tailor a sentence accordingly will deliver has a better chance of delivering justice than formula sentencing or mandatory sentencing.
Mandatory sentences do not take into account personal factors like contrition, financial factors, job etc.
However, traffic has been an exception to this principle. It seems that faced with an horrific road toll in the late 1960s and early 1970s governments became determined to do something about it. Those measures often involved breaches of previous standards of civil rights and legal procedure. Compulsory seat-belts, stopping people for random breath tests, red0light and speed cameras, on-the-spot fixed fines. These steps have had the practical effect of reversing the onus of proof and permitting (a mild form of) arrest without suspicion. These steps have by and large been accepted by the Australian community. Acceptance has come because the steps have been effective. The road toll has fallen substantially over the past thirty years, particularly in the early 1990s. Acceptance has also come because people see the enforcement of tough road rules as making the road safer for themselves.
It has, however, delivered a dual system of justice. Basically law-abiding people can suddenly find themselves hit with a large fine for speeding on a freeway (a real penalty) whereas other defendants in assault cases can get away with a bond.
The question for legislators now is to what extent will further tougher measures impact on the road toll. There is an argument that we are approaching the time when the return in the form of reduced road tolls is levelling out.
However, Mr Osborne has noted a marked correlation between repeat offenders and accidents. He has called for a mandatory minimum licence suspension of one year for repeat offenders with a reading of more than 0.15. That seems a reasonable measure in the face of the correlation between repeat offenders and accidents. Moreover, the reading at which the minimum suspension comes in is sufficiently high for the offender to know they are well over the limit.
The new proposals could join the existing suite of measures on road safety, including the new speed cameras, but legislators must temper their enthusiasm for ever more restrictive measures with a realisation that road-toll outcomes may not always justify the erosion of standards of justice.
The question of special licences is a question much more suited to being decided by a judge than having some sort of automatic refusal for second offenders. Refusal of a special licence might mean the end of employment for some people, involving punishment of innocent family members and having the family thrown on the welfare heap as a community burned. In other cases the refusal might be more a question of convenience than livelihood. There is no harm on tightening up the system, but we should be wary of making the system too infexible.
In any event it might be prudent to postpone the new proposals until a study can be made of the effects of speed cameras, which go into force very shortly.