McLennan v The Commissioner of Police
[2017] QDC 217
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- McLennan v The Commissioner of Police[2017] QDC 217
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McLennan v The Commissioner of Police[2017] QDC 217
McLennan v The Commissioner of Police[2017] QDC 217
DISTRICT COURT OF QUEENSLAND
CITATION: | McLennan v The Commissioner of Police [2017] QDC 217 |
PARTIES: | MICHAEL ANDREW MCLENNAN (Appellant) v THE COMMISSIONER OF POLICE (Respondent) |
FILE NO/S: | 942/17 |
DIVISION: | Appellate |
PROCEEDING: | Appeal pursuant to s 222 of the Justices Act 1886 |
ORIGINATING COURT: | Caboolture Magistrates Court |
DELIVERED ON: | 23 August 2017 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 21 July 2017 |
JUDGE: | Richards DCJ |
ORDER: | Appeal dismissed. |
CATCHWORDS: | CONSTITUTIONAL LAW – THE NON-JUDICIAL ORGANS OF GOVERNMENT – THE LEGISLATURE – LEGISLATION AND LEGISLATIVE POWERS – FORMAL VALIDITY OF LEGISLATION – where appellant argued legislation was unjust Constitution Act 1867, s 2 Justice and Other Act Amendment Act 2007 Legislative Standards Act 1992, s 4 Traffic Regulation 1962, reg 172 Transport Operations (Road Use Management) Act 1995, s 79 |
COUNSEL: | The appellant appeared on his own behalf |
SOLICITORS: | The appellant appeared on his own behalf E.J Adams from the Office of the Department of Public Prosecutions for the respondent |
- [1]On 20 February 2017, the appellant was convicted of an offence against s 79(2AA)(a) of the Transport Operations (Road Use Management) Act 1995, namely driving while a relevant drug is present in blood or saliva. He was convicted and fined $500 and disqualified from holding or obtaining a driver’s licence for a period of one month.
- [2]The offence occurred on 21 August 2016, when the appellant was intercepted by police whilst driving his work utility on Frank Street, Caboolture South. The police administered a roadside drug test and there was a positive indication for a relevant drug. A further drug test was then conducted at Caboolture Police Station, which again provided a positive result. A sample of his saliva was then submitted for further forensic testing, and that confirmed a presence of delta-9-tetra-hydrocanibanal, a relevant drug pursuant to Regulation 172 of the Traffic Regulation 1962.
- [3]At the hearing of this appeal, the appellant did not challenge the fact that his saliva sample may well have had a detectable amount of the relevant drug contained within it. That fact was not disputed at trial either. Instead the appellant argued that the law was, in effect, unjust because there was no requirement of impairment in terms of driving and it was an issue that he felt had been unfairly legislated. He indicated as much to the magistrate at T1-34 L 40:
“My argument has never been denial of pot use; that’s not the issue here. I certainly respect and accept the process of analysis. That’s never not been an issue. And even indeed the officer’s motives and reasons for pursuing it. I guess overall my position is more on the wider community sort of value and wisdom, being of including cannabis on a road-side test analysis while ignoring other more heavy and more dangerous drugs and issues which the officers probably no doubt agree. And more importantly, no sort of effort or expense put into determining sort of levels of impairment despite sort of why the use of medical marijuana being rolled out and – and among other issues the fact that by being a prohibited substance, it almost makes the – the – the actual application of the law somewhat lazy in not having to establish any levels of impairment.”
- [4]The learned magistrate, after hearing from the appellant, gave her reasons in convicting him of the offence, including an audio-recorded discussion where he made admissions to “smoking a couple of cones” the day before. In convicting the appellant, the learned magistrate noted at decision page 3, line 35:
“Mr McLennan, the basis on which you have defended the charge here today is essentially on the basis that you do not agree with the laws passed by parliament. That is a function of parliament. If you want to advocate for a change of laws there are options for you to make representations to your local member of parliament, but it is the function of the courts to apply the laws made by parliament.”
- [5]The appellant, in his outline, has claimed that because the legislation does not specify required levels or concentration of the drug and in fact makes it clear that impairment is not a factor, then a legal wrong has been perpetrated. He says the law penalises some drivers who are not impaired to deter other drivers who might be impaired, or might become impaired from driving and that this is a vicarious punishment and punishment without purpose is a moral wrong. Further he states that the legislation was introduced without evidence that it would attain road safety objectives and it has a severe impact on the rights of individuals and their families because the loss of a driver’s licence can mean losing one’s employment. He further maintains that the mandatory nature of the sentencing is also breaching fundamental legislative principles. He submits that he would be severely punished if he is convicted and his licence suspended for the month that was ordered. He maintains that at the end of the day it is unfair for him to be convicted and punished and that the legislation should be referred back to parliament.
- [6]The Justice and Other Act Amendment Act 2007, the Act which implemented s 79(2AA), was assented to on 28 February 2007. Section 2 of the Constitution Act 1867 states parliament has the power “to make laws for the peace, welfare and good government of the colony in all cases whatsoever.” Therefore, parliament has the power to make the legislation and it has been enacted in accordance with this power.
- [7]The appellant refers to s 4 of the Legislative Standards Act 1992 as support for his argument that the parliament has acted illegally in enacting this legislation. The Legislative Standards Act 1992 was introduced to establish the Parliamentary Counsel’s Office. Section 4 deals with the meaning of fundamental legislative principles and outlines a number of principles that underscore parliamentary democracy based on the Rule of Law. Subsection 2 and 3 of that section states:
“(2) The principles include requiring that legislation has sufficient regard to—
- (a)rights and liberties of individuals; and
- (b)the institution of Parliament.
(3) Whether legislation has sufficient regard to rights and liberties of individuals depends on whether, for example, the legislation—
- (a)makes rights and liberties, or obligations, dependent on administrative power only if the power is sufficiently defined and subject to appropriate review; and
- (b)is consistent with principles of natural justice; and
- (c)allows the delegation of administrative power only in appropriate cases and to appropriate persons; and
- (d)does not reverse the onus of proof in criminal proceedings without adequate justification; and
- (e)confers power to enter premises, and search for or seize documents or other property, only with a warrant issued by a judge or other judicial officer; and
- (f)provides appropriate protection against self-incrimination; and
- (g)does not adversely affect rights and liberties, or impose obligations, retrospectively; and
- (h)does not confer immunity from proceeding or prosecution without adequate justification; and
- (i)provides for the compulsory acquisition of property only with fair compensation; and
- (j)has sufficient regard to Aboriginal tradition and Island custom; and
- (k)is unambiguous and drafted in a sufficiently clear and precise way.”
- [8]The appellant argued that this legislation offends s 4 of the Act and therefore the legislation is rendered invalid. With respect to the appellant, he misunderstands the portions of the legislation upon which he relies. In ensuring whether the legislation has sufficient regard to the principles of natural justice, the legislation is required to allow a fair hearing to people charged under the legislation and of course the appellant had a right to trial. The fact that it should not adversely affect the rights and liberties of individuals or impose obligations respectively also means that it cannot operate to punish someone for something that occurs before the legislation was passed.
- [9]The act of passing the legislation means the balancing of the rights and liberties of individuals against the parliaments’ obligation to act in protection of the public. Parliament determined at the time of enacting this bill that it was expected to enhance road safety for the benefit of the entire community and this was balanced against the rights and liberties of individuals who might be affected by having an adverse reading under the testing provisions. Having regard to an individual’s rights and liberties does not preclude parliament acting to the detriment of those rights where it is considered to be necessary for the greater good.
- [10]The explanatory notes show that Parliament did have regard to the principles requiring that the legislation have sufficient regard to the rights and liberties of individuals by ensuring that the legislation includes the right to challenge a charge under the Act. The appellant challenges the validity of the claims made in the explanatory notes about the introduction of this offence assisting in increased road safety. He has not however produced any evidence to support his contention relying instead on assertions made from the bar table. These statements cannot and do not carry any weight in an assessment of the evidence before the Court.
- [11]The legislation was assented to by Parliament and the Court is obliged to apply the law as enacted by Parliament. Furthermore it is clear that the parliament does have the power to enact laws that allow for mandatory sentencing, even though that act may cause some hardship to the person charged. Nonetheless, mandatory sentencing is present in many of the Acts of this state (including our Criminal Code) and in all other jurisdictions in this country.
- [12]In my view the magistrate was correct in indicating that it is not the Court’s role to proactively call on parliament to amend or withdraw legislation which the Court may or may not think operates unfairly. Rather, if the appellant is unhappy with the legislation, he should be lobbying members of Parliament for the withdrawal of that legislation or the amendment of the legislation so that impairment has to be proved. However in light of the current state of the law, there is no merit in this appeal and the appeal is dismissed.