Debate resumed from an earlier hour.

Mr NICK LALICH (Cabramatta) [4.59 p.m.]: The Road Transport (Driver Licensing) Amendment (Demerit Points) Bill 2009 proposes to amend road transport law so that demerit points will not be incurred by a person who is found guilty, but not convicted, of certain speed and traffic light offences. At present the Crimes (Sentencing Procedure) Act 1999 gives courts the option, after finding a person guilty of an offence, to dismiss a matter and not impose the usual penalties, such as a fine or period of disqualification from driving. However, a court does not have the discretion to order that demerit points not apply. This is because the nationally agreed driver licensing scheme, to which New South Wales is a party, provides that the driver licensing authority must record demerit points against a person if that person is convicted, or found guilty, of a relevant offence.

The demerit points scheme is intended to encourage safe driving practices. Under the scheme demerit points are recorded on the driver's record by the Roads and Traffic Authority and if those points cause the person to exceed their threshold, they risk losing their licence. Evidence-based research indicates that the demerit points scheme is a powerful deterrent for the majority of drivers in New South Wales. The bill will reduce this certainty of punishment and may foster a belief among road users that they have the opportunity to appeal the sanction even if detected. The bill implies also that individuals have no right to contest a court's decision. This is simply not the case.

Currently, there are sufficient provisions within road transport law for a court to take into account the circumstances of a sudden or extraordinary emergency when determining a person's guilt in relation to an offence. There are also sufficient provisions for a person to have a court's decision reviewed on appeal or through an application to have the matter annulled and reheard. A recent example that received some media attention, and which may explain why the bill includes red-light traffic offences, concerned a driver who went through a red light to allow an emergency vehicle to pass. The offence was detected on a red-light camera and the driver subsequently received a penalty notice in the mail. He then elected to have the matter heard in court, which was his right. On the day the matter was to be heard in court the person chose to enter a guilty plea. In pleading guilty the court accepted that the offence was not being defended and any statements made by the defendant were to seek a reduced penalty as a consequence of the court handing down a guilty verdict.

It is not clear what, if any, legal advice was given or obtained by the driver in question before a guilty plea was entered. However, it is clear that the person would have been better off pleading not guilty. Any legislative amendment to relax the current application of demerit points would likely result in a large increase of offences contested through the court system. The proposed change would create an incentive for drivers facing the prospect of losing their licence to seek a court order not to have the demerit points apply for an offence, despite lacking justification for doing so. Generally speaking, only drivers who repeatedly commit offences run the risk of licence suspension through the accumulation of demerit points. An expectation of a possible relaxation in the application of demerit points will drive these offenders into the courts in an attempt to avoid a licence suspension.

Demerit points have proven to be a strong incentive to drive in accordance with the road rules. Allowing discretion in the application of demerit points to drivers found guilty of a road safety offence, but dismissed under section 10, may give those drivers the belief that they can avoid licence sanctions. The best approach to enforcement, and to addressing unsafe driver behaviour, is to provide a timely and certain penalty following an offence. Allowing discretion on applying demerit points in these circumstances reduces the certainty of a penalty and affects the overall deterrence. Clearly, this is not the message that should be sent to offenders. I oppose the bill.

Mr WAYNE MERTON (Baulkham Hills) [5.04 p.m.]: No-one wants to go in to bat for or support people who deliberately, intentionally and frequently decide to refuse to obey the Motor Traffic Act or road transport driver licensing legislation and exceed designated speed limits. New South Wales has two entities that control driver licensing—the Roads and Traffic Authority and the New South Wales court system, principally the Local Court and in some cases the District Court for appeals. Whether a driver obtains a licence or retains it depends on a decision made by the Roads and Traffic Authority or by a court.

No reasonable person would dispute that our society has a place for both entities in the licensing of drivers. However, when it comes to deciding which entity should prevail, I am deeply committed to the fundamental philosophy of our democratic system in New South Wales that the courts should have the last say. The Roads and Traffic Authority might say one thing and a court might say another. However, a magistrate or a District Court judge exercising appellate jurisdiction should have the last say.

Many people have come to my electorate office and, indeed, to my parliamentary colleagues' electorate offices, seeking advice after receiving a traffic infringement notice. They want to know the best way to preserve their licence. These people are not necessarily hedging because they are facing an automatic licence loss because they have incurred 12 demerit points; many of them have incurred no demerit points but are anxious to preserve their rights as far as holding a driver's licence. Therefore, it is simply wrong to say that this legislation gives some comfort or protection only to someone who will lose their licence. However, if passed by this Parliament, this bill will allow those who otherwise would have lost their licence because they had incurred 12 demerit points to retain their licence. I shall comment further about those issues shortly.

A constituent might confront a local member and ask, "What should I do?" and then provide an explanation of the offence, which might be a speeding matter. This legislation specifically deals with people who have committed an offence by exceeding the designated speed limit by less than 10 kilometres an hour.

Mr Brad Hazzard: They are only minor offences.

Mr WAYNE MERTON: They are minor offences. The people have not exceeded the prescribed concentration of alcohol [PCA], they are not people who speed or drive in a manner that constitutes a danger to the public, and they are not people who are driving at 80 kilometres an hour outside a school. They are people who could be driving along a lonely country road and who come into a country town at 2.00 a.m. when there is no other traffic on the road, and suddenly find that they are travelling at eight kilometres an hour over the speed limit. There is negligible, if any, danger posed to any member of the public. People in similar circumstances have visited my electorate office and said, "Can I have this matter heard in court?" The infringement notice invites people to have the matter determined by a court.

I am pleased to note the presence in the chamber of the member for Macquarie Fields, Dr McDonald. I do not intend to cite him as an example of a person with driving offences; rather, I refer to him in his capacity as a distinguished medical practitioner who would understand the circumstances in which a driver with a pregnant wife or a sick child must take their wife or child to a hospital urgently. The type of circumstances to which I refer include respiratory attacks that are not able to be resolved by using the usual medication or a sudden heart attack necessitating hospital treatment. A driver who is on his way to a hospital may be confronted by a highway patrol officer because his speed, for example, is 56 kilometres an hour in a 50 kilometres an hour zone. In other words, the driver is exceeding the speed limit by no more than six kilometres an hour, and is driving his sick child or his pregnant wife or his neighbour who has had a heart attack to the hospital urgently.

There are many similar situations that constitute extenuating circumstances. People are entitled to have extenuating circumstances taken into account when the penalty is being decided. Clearly the law invites extenuating circumstances to be considered because infringement notices invite drivers to have the matter determined by a court. That is part of the judicial system—and long may it stand. Any Government that attempts to usurp the right of people to have such matters determined by a court is not legislating in accordance with what we believe to be Western democratic principles. People have the right to have the matter determined by a court. As part of their testimony, a driver may admit that they exceeded the speed limit by approximately seven kilometres an hour. That fact is not in dispute, and the driver does not wish to tell any lies. The circumstances are fully disclosed.

The magistrate is able to take into account the driver's driving record and the circumstances of the particular event, and ultimately may decide that it is appropriate not to impose a penalty. In other words, the magistrate finds the offence proved, which would not be difficult because the driver admitted that they exceeded the speed limit, but decides, pursuant to the provisions of section 10 of the Road Transport (Safety And Traffic Management) Act 1999 which for many years were in section 556A of the Crimes Act, not to record a conviction and impose any penalty. In other words, as far as the magistrate is concerned, the driver is entitled to leave the courtroom, tell people that the matter was dismissed with no conviction recorded, and go about their business. That frequently happens.

People experiencing those circumstances have visited my electorate office and have said, in an absolutely jubilant mood, "Mr Merton, I've been to court. The magistrate dismissed it. What a wonderful result!" What am I supposed to say to them? Should I tell them the truth—that although they have not had a monetary penalty imposed on them, they will still lose licence points? Members of Parliament are placed in a difficult situation by this legislation. Obviously we have to be honest and tell people about the imposition of demerit points because they will soon be notified that they have lost licence points, despite the magistrate having dismissed the offence and recorded no conviction, albeit having found the offence to be proved.

Mr Paul Gibson: Only if they plead guilty. If they plead that they are not guilty, it is different.

Mr WAYNE MERTON: No. I invite the member for Blacktown, with no criticism intended, to listen while I deal with the very valid point he mentions. If the driver pleads guilty, the magistrate can apply section 10, but the driver will still lose licence points. The magistrate records no conviction, having found the offence proved, but the driver will walk away without penalty. However, the driver will still cop an administrative decision based on statute that will result in the loss of licence points. The Labor Government introduced the Road Transport (Safety and Traffic Management) Act 1999. The member for Blacktown is very realistic in dealing with such matters. He is a man of the world and he knows, as indeed all members of Parliament know, that driving a motor vehicle is onerous and can cause problems.

If a driver says in court that they are not guilty and gives evidence to that effect, after which the police prosecutor asks questions and the magistrate finds the offence to be proved, notwithstanding that the defendant pleaded not guilty, the outcome is exactly the same as the previous scenario if the magistrate states that he has taken into account extenuating circumstances of the type I mentioned earlier. The magistrate can find that the offence has been proved, but can take into account the circumstances and decide not to impose a penalty and not to record a conviction. The outcome is exactly the same in both cases.

The point I make is that this legislation is not reasonable in a modern Western democracy in circumstances in which a magistrate has received evidence from a defendant and a police prosecutor has been informed of all the circumstances, has been informed of the driver's antecedents and driving record and, taking all those matters into account, has ordered that no penalty be imposed. I have practised law for many years, and I believe that magistrates do not apply section 10 lightly. [Extension of time agreed to.]

I believe that was the magistrate's intention. The situation is unfair because the Roads and Traffic Authority has taken this power from magistrates. This legislation deals with only two categories of offences. It deals with speeding offences under part 3 of the road rules, that is, exceeding the speed limit by less than 10 kilometres an hour, and it deals with traffic light offences within the meaning of section 57 of the Road Transport Safety Act. In other words, it deals with fairly minor or low level speeding offences and traffic light offences. It does not deal with serious traffic offences. It does not deal with people who exceed the speed limit by 12 or 15 kilometres an hour. So the legislation is limited in its application to what could be regarded as relatively minor offences.

For that reason, and as a fundamental principle of democracy, the courts should be entitled to have the final say. It should not be the bureaucracy or the statutory agency but the courts. It is fundamentally wrong that the power has been removed from the courts, as has happened in this situation. In many cases people have no alternative but to go to court, and the court should have the final say. It is a fundamental right of Australians living in a democratic society to take a matter to court and for the court decision to prevail. The legislation merely implements those rights. It spells out clearly that the court decision should prevail, not the statutory situation. The Government changed the legislation. The Roads and Traffic Authority has no discretion. The Roads and Traffic Authority is not at fault; it is simply implementing the law introduced by the Government. The law was clearly wrong.

Mr PAUL GIBSON (Blacktown) [5.21 p.m.]: I will speak briefly to the Road Transport (Driver Licensing) Amendment (Demerit Points) Bill. More people have died in road accidents than in all the wars in which we have participated. For many years I was the chair of the Staysafe committee, which is one of the most outstanding committees of this Parliament. We introduced many harsh laws. We saw 1,200, 1,300, 1,400, 1,500 people dying on our roads each year. We introduced what some people described as draconian laws, but they worked.

We introduced the demerit points system. It took me nine years to get the 50 kilometres an hour speed limit through the Parliament. All the measures we introduced helped to reduce the road toll. Indeed, last year's road toll was the lowest road toll since the 1930s. People look at the harsh laws and say, "I think they are a little too hard now." About a year ago I warned that if we tinkered with the law we would see a blowout in the number of people killed on our roads. Unfortunately, roughly 100 more people have been killed on the roads so far this year than were killed last year on our roads.

Mr Thomas George: It has not been tinkered with.

Mr PAUL GIBSON The demerit points system has been tinkered with. People think that if they are caught doing only 10 or 15 kilometres over the speed limit they will lose only one demerit point instead of three demerit points. As for the point made by the member for Baulkham Hills, we introduced the draconian law because too many people were being dealt with under section 10. People living in more affluent areas in the State were more prone to be dealt with under section 10 than were working class people. Section 10 applications were dealt with totally unfairly. At the time, the legislation provided for people to be dealt with under section 10 if they pleaded guilty with an explanation or if the court found them not guilty.

Under the current legislation, people who plead guilty with an explanation lose demerit points. People who plead not guilty and are proved to be not guilty do not lose demerit points. However, people are under the misconception that, regardless of how they plead in court and whether they win or lose the case, demerit points are automatically deducted. In fact, demerit points are deducted only if a person pleads not guilty and is found to be guilty or pleads guilty with an explanation. That is the reason that section 10 decisions were regarded harshly. That was our counter to people getting off with a section 10.

Mr THOMAS GEORGE (Lismore) [5.24 p.m.]: The Road Transport (Driver Licensing) Amendment (Demerit Points) Bill 2009 was put forward by the Leader of The Nationals and shadow Minister for Roads. I compliment him on this bill. I recognise the presence in the Chamber of the former chairman of the Staysafe committee, and I acknowledge all the hard work done by that committee. However, there is an anomaly in the system. People living in country areas who lose their licence suffer more than do people in the cities, where public transport is available. The lack of public transport in country areas is a major issue. People in country areas do not have access to public transport, unless they are in a position to use the school transport system, which starts at about seven o'clock in the morning and ends at about three o'clock in the afternoon.

The loss of demerit points has been brought to my attention on a number of occasions. The Coalition believes that there is an anomaly in the system. If a fine is waived we believe, and it is logical, that the loss of demerit points should be waived as well. In saying that, we do not support people driving fast and breaking the law. In no way is the bill seen to be a soft stance on perceived driving offences and reckless driving offences. We strongly believe that the demerit points system has an anomaly. I refer to a letter I received that sets out the position of people living in country areas better than I could explain it. The letter, from a typical mum who has been in trouble with the law, states:

I have found myself in a little predicament and I need some help.

Situation: I have lost my drivers licence for a period of 6 months. WHY: I deliberately and foolishly took the law upon myself when I drove through the ST HELENA speed camera Nth Bound at the flow of traffic. This naturally wound up most of my points then earlier this year a police officer accused me of speeding along Corndale Rd at 110km/ph. I do not intentionally speed and disputed it but ended up paying the fine. This put me on a good behaviour bond for 12 months. Then police officer approached me under the square in the car park—

that is the shopping square in Lismore—

and said another police officer saw me use my mobile phone near LBH while driving.

I did pick up my mobile phone and could not lie, I do this to unlock it and I pressed one button to activate voice recognition. I showed the police officer that I had a cradle and a speaker phone and proved that I was not texting. Common sense tells me it is safer to do this than to look at my phone and press several buttons to unlock and make a call from the cradle. It was hard not to feel very intimidated and I actually got the impression that the police officer was really enjoying booking me with a big smile on her face. I didn't think it was very funny!

Problem: Losing my licence is going to have a severe impact on my family and because I entered a 12 month contract I am unable to appeal this in court. Is any other punishment I could have that is not going to affect my family so severely?

Issue 1: My daughter has a cyst in her brain. She requires constant therapy and medical appointments. She sees an OT, Speech, Physiotherapist, Ophthalmologist, Neuro Ophthalmologist, pediatrician, neurologist, early intervention, school transition and requires medication for seizures.

Issue 2: I have a rare alloimmune disorder and will be requiring Blood transfusions weekly in about 10 weeks and regular appointments to LBH and the Matar in Brisbane over the next 7 months as I am pregnant however being in the early weeks this could change.

Pursuant to standing orders business interrupted and set down as an order of the day for a future day.