I was asked by David O’Connell, before he was appointed to the position of Central Coroner, to write an article about some of the changes that I have seen in the law since I began working as a solicitor in Mackay in 1977.
When I started working as a young solicitor, I was required to do regular Court work. This involved appearing in the Magistrates Court for cases involving, among other issues, drink driving, questions of paternity, child support and motor vehicle property damage.
At the time, the drink driving legislation required police to prove that a person was driving while drunk or intoxicated. This was achieved either through the police officer’s observations, by having a medical officer examine the person or by way of breath analysis.
There were numerous technical loopholes in the legislation, many of which were exposed by prominent Brisbane barrister Bob Brewer, which solicitors used to obtain favourable outcomes for drivers. As a result, the drink driving legislation was changed over the years, so that there are now very few opportunities for people to defend drink driving charges.
Most notably, the results of breath analysis are now deemed to be conclusive. This means that arguments such as, “I was taking cough medicine”, or “I was working in the sun all day and hadn’t eaten” or “I’m a Catholic priest and have five witnesses who can say that I only had 1 glass of wine”, are treated with no regard at all by the Court.
The only current defences to drink driving exist where:
a) The police are put to proof as to the identity of the driver;
b) The blood alcohol specimen (blood or breath) was not taken within three hours of the alleged time of the vehicle being driven;
c) The request to supply the specimen was not lawful because the police officer had acted improperly. An example of this is where a person is assaulted by a police officer at some stage during the process.
With the use of breath analysis, a person is deemed drunk if they have a reading of 0.15 or more. A person with a reading of between 0.05 and 0.15 is charged with the lesser offence of driving while under the influence of alcohol.
The effect of a reading of 0.10 or more is that a person’s licence is immediately suspended, pending finalisation of the charge in Court. In the 1980s, the drink driving legislation was changed to allow people with a blood alcohol reading of less than 0.10 to apply for the issue of a restricted licence (Work Licence), provided that:
1. They could establish that they were the holder of a Queensland licence at the time they were charged, and
2. Their traffic history was not such that would deem them to be unfit to hold a restricted licence.
There are no longer paternity cases as such. Questions about paternity are dealt with as part of family law (children’s / parenting) proceedings, and are determined relatively easily through DNA testing. The requirement for a parent to pay for the support and maintenance of a child is determined by the Child Support Agency.
Further, the State law that required a woman to prove that she was deserted or that her leaving the home was as a result of the abuse and conduct of her partner, before she was entitled to family maintenance has also been repealed. These matters are now dealt with under the Federal Family Law Act and through the Child Support Agency.
There have also been significant changes to the law regarding motor vehicle property damage. At a point in time, insurance companies worked out that it was cheaper to introduce “knock for knock” agreements, rather than incur the legal expense in suing each other every time their drivers were in a
collision.
As a result, nowadays the only cases involving motor vehicle property damage arise where one of the parties is not insured. In these cases, it is often the situation that the person does not have insurance because they cannot afford it, and so have difficulty obtaining legal representation.
There are still a small number of motor vehicle property damage claims, however these are usually conducted by insurance companies or individuals acting on their own behalf.
