Monday, June 20, 2011

Driven to Drink

It is difficult to know what to do with Burt Bassett.

He was charged last week with Driving with the Low Range Prescribed Concentration of Alcohol.

There are a few things that are beyond doubt, assuming that he pleads guilty (as the overwhelming majority of people charged with drink driving do).

Firstly, he has committed a criminal offence, and not an insignificant one.  Whilst the offence does not carry the possibility of gaol, conviction will result in a criminal record and a mandatory loss of drivers licence.

That said, he only just sneaked into the low range (having blown 0.053, the legal maximum being 0.049).
Burt Bassett.  Photo from the Daily Telegraph

I have no idea what his traffic record (or, for that matter, his criminal record) is, but the statistics show that 40% of people charged with low range escape conviction - so all is not lost.

Further, the Constitution Act 1902 does not require that he be removed.  According to section 13A of the Act: 

(1) If a Member of either House of Parliament:
(a) to (d) not relevant
(e) is convicted of an infamous crime, or of an offence punishable by imprisonment for life or for a term of 5 years or more...
his seat as a Member of that House shall thereby become vacant.

As the offence does not carry gaol, the second part of subsection 13A(e) is not activated.

However, it is disturbingly unclear exactly what an "infamous crime" is.  According to this article, apparently written by ICAC,  in the case of Re Trautwein (1940) SR (NSW) 371 infamous crimes were defined as crimes that were "contrary to the faith, credit and trust of mankind".

In that article, it is suggested that the words "infamous crime" be deleted from the NSW constitution. Clearly this has not occurred.

In any event, it would hardly seem likely that a low range drink drive could be regarded as being an offence that brings section 13A into play. Bassett will not have to be removed under the constitution.

Rather the issue becomes what is to be done with him.

The Labor government that we were relieved of earlier this year were infamous for their inability to stay out of trouble,

As expected, this was a major issue in the election, and upon assuming office O'Farrell prudently warned his party-room to ensure that they behaved.

Clearly Mr Bassett is the first to come a cropper in this area.

But should he be sacked?  No one has called for this at this stage, but O'Farrell would be right to come down hard on him for this indiscretion.

The comparison to the previous government is sharpened by the fact that the Coalition hammered Labor MP Cherie Burton when she was charged with "Refuse/Fail Breath Test" in 2010.

Cherie Burton.  Photo from here

After being heckled by Ms Burton last week with "You've got a standard, you uphold it!" O'Farrell responded with "I do not take drink driving lightly, and if my member had done what you did, which is avoid a blood test, he'd be out of this place on his ear."

O'Farrell is playing a dangerous game if he thinks he can start comparing the gravity of offences and criticising Labor for being worse.

Whilst Labor's corruption and ineptitude can be avoided if O'Farrell governs well, at the end of the day some MLA's and MLC's are going to get into some sort of trouble.  Hopefully for O'Farrell's sake the trouble will not be significant.

However, once O'Farrell starts holding offences up to a fixed, set in stone standard, he sets himself up awkwardly should those offences ever be committed a Coalition member.

That is not to say that there is no objective standard - merely that O'Farrell would be wise to avoid stapling his colours to the mast before he has to.

In the interim, it will be interesting to follow the Bassett story and see what eventuates.

Will it be a drama to rival that of Matthew Chesher (wife of Verity Firth and then chief of staff to David Borger who was caught with ecstacy)?

Or will it disappear without a trace, as the tone in the various articles published today suggest it might?

1 comment:

  1. I think you'll find it is Bart, not Burt.

    Also 0.053 is a pretty small judgement gap between being ok and not. It "is" different to being charged with avoiding/refusing a breath test.

    I'm surprised Cherie Burton dared say anything about this actually. You would expect her to be a little bit aware of her own issues before striking out.