Page 2729 - Week 13 - Tuesday, 21 November 1989
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certificate evidence concerning blood tests which are obtained under the principal Act. That evidence may not be used in proceedings concerning an insurance contract for the purpose of proving that a person was under the influence of alcohol or a drug to such an extent that he or she was incapable of exercising effective control over a car. That would be the effect of this proposed new section.
Mr Speaker, the principal Act is intended to promote road safety by prohibiting people from driving with a blood alcohol concentration at or above the fixed limit. To achieve this end, the principal Act creates specific offences and penalties, sets up a mechanism for determining a driver's blood alcohol content, and provides for facts relevant to an offence to be proved initially by means of certificates. Compulsorily taking a blood sample from a person is an extraordinary measure. In the absence of special provisions in the principal Act, it would be a trespass against the person.
The community regards the objectives of the principal Act as being of such great social importance that it warrants the use of the state's coercive powers to override an individual's rights. But as a matter of policy the effect of those powers should not go beyond the strict limits of the principal Act. The procedures set up under the principal Act were not intended to incidentally help insurance companies to enforce liability exclusion clauses in their contracts.
Mr Speaker, I think it is very important to point out that nothing in proposed new section 41A prevents insurance companies from putting exclusion clauses in contracts or from relying on them in the event of some further action as a result. Proposed new subsection 41A(5) expressly saves that right for the insurance companies. So, although Mr Stefaniak said that the insurance companies cannot cover themselves, it is simply not the case.
But insurance companies should not have the benefit of evidence compulsorily obtained through the state's coercive powers for the legislatively defined and limited purposes of the state. Private litigants should rely on their own resources, as they would have to do if the principal Act did not exist. If the use of certificate evidence under the principal Act were not limited in the way proposed, convicted persons would, in effect, suffer consequences in addition to those specified in the Act, as a result of the machinery of the Act.
Proposed section 41A is consistent with legislative provisions in New South Wales, in the Traffic Act of 1909, subsections 4(e)(xiii) and 4(g)(xii); in Victoria, in the Road Safety Act of 1986, subsections 56(vi), 57(ix) and 57(x); in Tasmania, in the Road Safety (Alcohol and Drugs) Act of 1970, section 30; in South Australia, in the Road Traffic Act of 1961, section 47(c); in Western Australia,
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