Legal professionals question new 'one size fits all' drink and drug driving laws

Law Society of NSW president Elizabeth Espinosa said the new laws, introduced by Bega MP and Transport and Roads Minister Andrew Constance on May 20, go too far.

Under the new laws, drink drivers who are first-time, low-range offenders will lose their licence immediately for three months and be fined over $500, as will offenders who drive with the presence of illicit drugs for the first time.

Before the changes, offenders would have to attend court to determine the severity of their penalty, with low-range drink-drivers able to hold on to their licence until their court date.

Ms Espinosa said a court appearance has "genuine deterrent factor for first-time low-range" offenders.

"We are of the view that the reforms will decrease deterrence, increase offence and recidivism rates, and have a significant impact on people's livelihoods - particularly those living in regional and remote areas that lack public transport options and where courts sit on a part-time basis," Ms Espinosa said.

"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 may well have a significantly greater deterrent effect on future offending than a penalty notice, fine and suspension.

"Currently low-range PCA offences account for only 1.9 per cent of all Local Court matters, however, 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."

Bega solicitor Tony Cullinan said the law changes simply "make a conviction an administrative process", which can have both positive and negative consequences.

"As a person in the community I expect that people are disqualified, but it's the fine edge of things," he said.

"There needs to be a process of maintaining the right to have it judicially determined. Certainly on a low-range drink driving charge.

"This is why we have a court system separate from the government. So to put it in the hands of police who have no ability to apply discretion is of concern."

He said the "one size fits all" approach lacks fairness, and the scrapping of a court appearance, and with it the option of a magistrate not applying a suspension period, will impact regional drivers most heavily.

Mr Cullinan said issues such as a lack of public transport in the region have seen Local Court convictions, especially for first time drug driving offences, be overturned through a successful severity appeal at a District Court level.

"My concern is with the lower end. The law is there for a reason and people should be suspended, but at the lower end of the range there ought to be a way for a magistrate to look at a decision with discretion," he said.

"The implications are for more reaching in a rural area like the Bega Valley, and areas like it where it will affect people's livelihoods and even getting to town to do your shopping.

"It has ramification because often it is the only driver in the family. The new law doesn't look at the entirety of a person or a family situation."

He said given that many drug driving offenders are not under the influence at the time of their arrest, the option should remain for a guilty verdict without a conviction or disqualification period.

"In relation to the drug driving, there are many people who are not under the influence and being off the road in a rural area like this is devastating to families," he said.

Mr Constance has blamed the nation's road toll for the need for the law changes, and penned an opinion piece for a metropolitan newspaper earlier this month backing the move.

"This reform makes it clear if you break the law, you will pay the price. We are taking a zero-tolerance approach to drink and drug driving," he said when the new laws were announced.

Assistant Police Commissioner Michael Corboy said he backs the new "swift and certain penalties".

"Alcohol is one of the major factors in crashes that kill or injure people on NSW roads. The 0.05 blood alcohol limit has been in place for almost 38 years. There are no more excuses," he said.

A report released by the NSW Bureau of Crime Statistics and Research found tougher penalties for drink-driving offences led to a "small reduction in reoffending in NSW country and regional areas but no reduction in Sydney".

Director of the bureau Dr Don Weatherburn at the time said the findings could be due to magistrates finding a "person guilty of an offence without proceeding to a conviction" under section 10 of the NSW Crimes Act, and "that tougher penalties do not exert much deterrent effect unless the perceived risk of apprehension for offending is reasonably high".

Another study in 2009 found offenders who were given short licence disqualification periods were more likely to be re-convicted for a further drink driving, driving licence, motor vehicle registration or motor vehicle roadworthiness offence than people who did not receive any licence disqualification at all.

Under the new laws anyone choosing to fight the low-range charge in court will risk facing a maximum penalty of $2200, which is double the previous maximum penalty a magistrate could impose.

NSW Greens MP David Shoebridge described the new laws as helping create "one rule for the rich and one rule for everyone else".

"We know from past experience the only people who appeal in these cases are people with a higher income," he said.

"People with money and access to lawyers will appeal and everybody else will suck it up.

"There will be a reduction in the overall court load because instead of everyone, rich or poor, seeking justice only the wealthy will be turning up."

He said he is also concerned people facing court for a first offence will not receive the education provided by driver safety programs, which have been routinely completed by offenders before a court appearance.

"An obvious impact of the changes will be less people sitting drivers' awareness programs as there will be less magistrates sending offenders there," Mr Shoebridge said.

"This will take us backwards in terms of road safety.

"People will pay their fine, lose their licence for three months, and not improve their driving."