Road Traffic Bill 2011: Report Stage

Before we commence, I remind Members that a Senator may speak only once on Report Stage, except the proposer of the amendment, who may reply to the discussion on the amendment. On Report Stage, each amendment must be seconded. Amendment No. 1, in the names of Senators Quinn and Donohoe, arises from Committee proceedings. Amendments Nos. 1 and 2 are related and may be discussed together, by agreement. Is that agreed? Agreed.

I move amendment No. 1:

In page 3, line 15, after "liquor," to insert "or".

Someone other than the Minister for Transport was present when Senator Donohoe pointed out how every Road Traffic Act was challenged. It seems to be challenged whenever someone can find a tiny loophole in it. As drafted, section 2 sounds grammatically correct. It reads:

This section applies to a person in charge of a mechanically propelled vehicle in a public place who, in the opinion of a member of the Garda Síochána--

(a) has consumed intoxicating liquor,

(b) is committing or has committed an offence under the Road Traffic Acts 1961 to 2011,

(c) is or has been, with the vehicle, involved in a collision, or

It is essential to include the word "or" after paragraph (b), although I am unsure about whether it should be inserted after paragraph (a). If it must be included once, it should be included after paragraph (b). I will listen to the argument about whether it is needed after paragraph (a). I am convinced the provision included in this section will be challenged. I do not want someone to claim he or she did not commit all four acts and, therefore, is not guilty. It is essential that the word “or” is included after paragraphs (a) and (b) to make the provision foolproof, tight, robust and enforceable, which the Minister is anxious should be the case.

I second the amendment. I welcome the Minister back to the House and thank Senator Quinn for his proposal regarding the point we raised on Committee Stage. The House had time to examine the Road Traffic Bill 2009 during the adjournment, in particular, the definition applied to the number of events in which a garda should become involved and the format of section 8. At one stage it read:

is of opinion that a person in charge of a vehicle in a public place--

(i) has consumed intoxicating liquor,

(ii) is or has been, with the vehicle, involved in a collision, or

(iii) is committing or has committed an offence under the Road Traffic Acts 1961 to 2009,

the member may require,

or

In the definition of "incident" used in previous road traffic legislation the word "or" was not included after "intoxicating liquor". In subsequent sections, however, it was used. We asked a question during the Minister's absence. If the word "or" is required in paragraph (c) of this amending Bill, why is it not required also in paragraph (b)? As Senator Quinn stated, we are conscious that the Bill will be challenged. I do not see how accepting the amendment would hurt it, rather it could strengthen it.

I thank the Senators for their contributions and I apologise for having to leave to attend a Government meeting.

On the proposed amendments, while I accept the Senators' intent, they are misinterpreting the wording on the absence of the word "or". While I fully accept their bona fides in trying to ensure the legislation is as watertight as possible, the section is worded to do exactly that.

Senator Donohoe referred to the 2009 Bill which became the 2010 Act. He may recall, given all of the permutations and combinations used, that I stated I regarded the construction of the section as inelegant. I offer due apologies to my civil servants and the officials in the Attorney General's office. It was for this reason that we did not need to await the reduction in alcohol levels when we tried to ensure testing would take place. We took the opportunity to re-examine the section. When the Attorney General's office had a second opportunity to consider it, it insisted that our format was correct. That format is reflected across a range of legislation. The Attorney General's office insisted that, were we to make the changes suggested by the Senators, it could have a significant impact on the layout of other choices in other legislation. I warned against the making of such changes.

The subsection should be read in conjunction with subsection (2) which makes a distinction. It reads:

A member of the Garda Síochána shall, unless he or she is of opinion that the person should be arrested, and subject to subsections (6) and (7), require a person to whom paragraph (a) or (d) of subsection (1) applies, and may require a person to whom paragraph (b) or (c) of that subsection applies——

The garda's first option is to arrest a person.

This clearly indicates that the word "or" is not necessary. There are four circumstances in which a garda can take action. The concern of the Senators has been met in the section. I have received very strong advice that this is the proper and safest way to do it. It will prevent the creation of loopholes in the legislation. For that reason, I commend the section, as it stands, to the House.

I have great difficulty with what the Minister has said. He is correct in one respect, as I do not think there is a need for the word "or" after the word "liquor" in subsection (1)(a) which includes the words “has consumed intoxicating liquor”. However, I do think there is a need for the word “or” after subsection (1)(b) which includes the words “is committing or has committed an offence”. If I were a lawyer, I would make the defence that my client had not done the other three things listed. The client may have consumed liquor but only did one of the other things listed in paragraphs (b), (c) and (d). I do not understand how it can be regarded that the subsection is strengthened by the removal of the word “or”. While I accept the Minister’s point about removing it after paragraph (a), there is a definite need to include it after paragraph (b). The subsection reads as follows:

(b) is committing or has committed an offence under the Road Traffic Acts 1961 to2011,

(c) is or has been, with the vehicle, involved in a collision, or

(d) is or has been, with the vehicle...

I do not see how the Bill is strengthened in not having the word "or"; the opposite is the case. The Bill will be challenged the first time someone is charged and a clever lawyer will find a loophole. I do not understand how the Bill would be weakened by inserting the word "or" after paragraph (b). I know the Minister wants to ensure the legislation will not fail to do what is intended, but it is essential that the word “or” is used after paragraph (b), whatever about after subsection (a).

Debate adjourned.