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20 Jun 2017

Statutes Amendment (Drink and Drug Driving) Bill

Adjourned debate on second reading.

(Continued from 1 June 2017.)

The Hon. A.L. McLACHLAN ( 16:29 :33 ): I rise to speak to the Statutes Amendment (Drink and Drug Driving) Bill 2017. I speak on behalf of my Liberal colleagues. The Liberal Party is supporting the second reading of the bill. I alert the government that I have a number of questions and I ask that they be addressed in the second reading summing up. The government has stated, when introducing this bill, that its aim is to reduce the incidence of drug driving and in turn improve safety for all road users. It seeks to achieve this by introducing the following initiatives: harsher penalties for drug-driving offences; a new offence of drink and drug driving with a child under the age of 16 present in the vehicle; a requirement for those convicted of this new offence of drug driving with a child to undergo a drug or alcohol dependency assessment; streamlining the drug testing process; and enabling all sworn SAPOL officers to conduct drug screening tests across the state.

It is my intention to briefly address each of these aspects of the bill. The bill introduces harsher penalties for drug-driving offences in the hope that this will act as a deterrent for those who consider the conduct of taking drugs and driving. The bill introduces a three-month licence disqualification for the first offence of drug driving. When introducing the bill, the minister indicated that Victoria has already enacted an equivalent law. The bill also increases the length of court‑imposed licence disqualifications for repeat drug-driving offences, which will double in most cases. The minister also indicated that New South Wales, Queensland and the Australian Capital Territory, as well as Tasmania, already have disqualifications for a first offence that goes to court.

I ask the minster to advise whether these measures have proven to be successful in reducing the incidence of drug driving in those jurisdictions. I further ask how the impact of these laws is being measured in each jurisdiction and what data is being collected. I also ask whether the legislative changes made in the other jurisdictions were accompanied by a public education campaign aimed at increasing the general public’s awareness of the changes to the laws and seeking to shift community attitudes. If there have been campaigns, how has the effectiveness been measured and over what time frame?

The bill introduces a new offence of drink and drug driving a motor vehicle with a child under the age of 16 in the vehicle. The new offence carries with it significant penalties. The new offence will apply where the driver’s blood alcohol content is 0.08 or higher, which is referred to in the Road Traffic Act as a category 2 offence or higher; however, I note that it will apply to all drug-driving offences. My understanding is that in respect of the drug-driving offence, it is purely a detection based offence. This means that, unlike the threshold of 0.08 alcohol reading, the amount of drug present in the offender’s system will not be taken into account.

Whilst the penalties will be the same as respective drink or drug-driving offences without a child present, there will be an added requirement for offenders to undergo a drug or alcohol dependency assessment. An offender will not be able to regain their licence until they have been assessed as non-dependent by a clinician. Information identifying offenders will also be provided to the Department for Child Protection for the purposes of their investigations into child safety. It can also be used by the Department for Communities and Social Inclusion for child-related employment screening. I ask the minister whether the information able to be shared for those stated purposes is whenever an offence is committed, or whether it is only when a finding of drug or alcohol dependency is made.

I ask the minister to advise of the legislative authority which will permit the sharing of this information. The bill also increases the penalty for driving unlicensed at the end of a disqualification period if the driver has not completed the required dependency assessment or has been assessed as dependent on alcohol or drugs. The penalty has been increased to a $5,000 fine or imprisonment for one year and disqualification from holding or obtaining a licence for not less than three years. The government states that this approach is consistent with the approach taken for motorists caught driving unlicensed following disqualification for a serious drink-driving offence and not having entered into a mandatory alcohol intervention scheme.

This bill seeks to streamline the roadside drug testing procedures. It does this by removing the second stage of drug screening tests that are currently undertaken by officers at the roadside. Officers will now conduct the first screening test to detect the presence of a drug. The government has advised that, once passed, the bill will enable all SAPOL sworn officers to conduct roadside screening tests.

If a drug is detected, the officer will then collect an oral fluid sample, which will be forwarded to Forensic Science SA for confirmation before an offence can be confirmed. The Liberal opposition is supportive of these measures that seek to enhance operational effectiveness.

I ask the minister to set out the training to be provided to all SAPOL officers on appropriate handling to ensure the integrity of samples is never jeopardised, and advise the procedures that are in place to ensure that there is no corruption of samples that are sent to Forensic Science SA.

The Road Traffic Miscellaneous Regulations currently only prescribe certain drugs. They include (I will use the acronyms) THC, methamphetamines and MDMA. If it is the only prescribed drugs that are detected by the test, is this because the test is only capable of identifying these drugs, or is it because of a deliberate policy decision by the government to calibrate the test? I also ask: what are the costs for administering each test and is it anticipated that there will be any increased spend consequent to the passage of this bill as a result of anticipated demand? I further ask whether the initial screening test will detect the presence of any drug or just those prescribed by regulation? Why have additional drugs not been prescribed, such as cocaine or other certain opiates?

I note there exists a wide body of research, which debates the complex issue of drug-driving laws based on detection-only testing. In a Californian review, conducted in 2015, Associate Professor Andrea Roth described the difference between drink-driving laws and drug-driving laws as such:

We base our drink driving laws on this demonstrably correct data and accordingly allow for some alcohol in the bloodstream for full drivers licence holders, so as long as it is below blood alcohol content of .05 per cent. But not so with other drugs such as cannabis. Here we take the prohibitionist stance and apply it to driving without bothering to undertake the rigorous analysis that accompanied and underpinned drink driving law development.

In Australia, Dr Alex Wodak, chair of the Australian Drug Law Reform Foundation and formerly head of Drug and Alcohol Services at Sydney’s St Vincent Hospital, has noted that:

One of the problems with zero tolerance drug driving laws is that they punish some drivers who are not impaired as a way of deterring other drivers who might be impaired or might become impaired from driving. This is what we call vicarious punishment; it offends basic notions of fairness.

Of similar note is Mr Greg Barns, the Australian barrister and spokesperson for the Australian Lawyers Alliance, who has publicly criticised Australian drug-driving laws for having no evidential basis and not being based on data or scientific knowledge and has highlighted that similar laws in the US are now under pressure with the development of medical cannabis. He pointed to a landmark decision last year in the Arizona Supreme Court, when it was identified that a flaw in the zero tolerance drug-driving laws is that a driver cannot be considered to be under the influence based solely on concentrations of marijuana or metabolites that are insufficient to cause impairment.

This is a very complex public policy area, as we are dealing with a bill that proposes detection-based testing without the need to prove impairment. Following a briefing provided by the minister’s staff to the Liberal opposition, certain statistics were provided by the minister in a letter to the member for Bragg in the other place dated 26 May 2017. The letter contains some data on the number of drug and alcohol screening tests compared with detections for 2016. What those statistics failed to reveal was, first, the level of drugs detected in each offender and, secondly, the corresponding level of impairment.

I ask the minister: what is the nature of the drug screening test, both the roadside test and the subsequent oral analysis; for example, does the roadside test merely provide a positive or negative result? Does the oral analysis provide a reading of the amount or a percentage of the prescribed drug present in the offender’s system? If yes, why hasn’t the bill been drafted into categories of offences based on the level of prescribed drug present to reflect the varying levels of impediment relative to the level of consumption; for example, similar to the various categories for drink-driving offences?

Is there a certain level of a prescribed drug required to be present before it would show up in a roadside test or an oral fluid analysis? Do the levels measured by both the roadside test and oral analysis vary depending on physical traits of the person tested? For example, could two people ingest the same amount of a drug and return different test results? Have there been any cases in South Australia or other jurisdictions where the drug test, as it is carried out in South Australia, has been proven to be inaccurate or incorrect?

I am aware of a New South Wales case that came before the courts last year in which the magistrate dismissed a charge against a driver who had been accused of driving with an illicit drug present in his body. The magistrate did so on the grounds that the defendant, after an early discussion with the police officer, held an honest and reasonable belief that he still would not have a detectable level of cannabis nine days after the most recent use.

I ask the minister, in particular on this issue, how long does each of the drugs prescribed by the regulations and within the ambit of this bill stay within a person’s system once consumed? Currently, if an offender is caught drug driving for a first offence is there a standardised time frame that SAPOL officers recommend offenders wait until they should drive again?

The issue of potential unfairness coupled with doubt over the effectiveness of these laws on actually improving road safety was very aptly critiqued in an article co-authored by Dr Alex Wodak, whom I mentioned earlier, and David McDonald, who is a visiting fellow at the National Centre for Epidemiology and Population Health at the Australian National University. The article highlighted, and I quote:

The most important question is whether or not a particular drug, independent of other factors, increases the risk of a road crash, death or serious injury. And, if so, how much of that drug has to be present to cause how much increased risk?

The drugs to be included for testing need to be on the basis of their relative risk, relatively common use and significant contribution to road crashes, but not because of their legal or therapeutic status. This is because some of the legal drugs used therapeutically, such as benzodiazepines like Valium, impair drivers even more than some illegal drugs do.

The amount of the drug in the system also needs to be taken into account. Someone who took an ecstasy tablet a few days ago may still have detectable levels in their system, but will have significantly different levels of impairment to someone who took one an hour ago.

I ask the minister, has the bill been drafted to reflect the recent advancements being made in respect of medical marijuana? Does the bill or the current law regulate in any way the driving of someone who is on a strong prescription medication such as Valium? I also have some other questions for the minister based on the data that the government has provided in support of the bill.

In the minister’s second reading speech he stated that over the last five years 24 per cent of drivers and riders killed on South Australian roads tested positive to cannabis, methylamphetamine or ecstasy or a combination of these drugs. I ask the minister to provide the figures upon which this calculation was made. I also ask for the data for each year.

I noted in the media release of the minister dated 11 May the figure provided was 22 per cent. I ask the minister to confirm what is the correct statistic. I also ask, out of the 22 or 24 who tested positive to drugs how many tested positive to a combination of drugs and alcohol? For those offenders who tested positive to alcohol, can the minister indicate whether the amount was over the prescribed 0.05 limit? Have the numbers of those killed with drugs in their system increased over the last five years? If so, by how much? What are the numbers for each type of drug that is prescribed? Is there any trend showing an increasing usage of a particular drug? If so, by how much?

In the letter dated 26 May 2017 to the member for Bragg in the other place, which I referred to previously, the minister stated and I quote:

W hile drug testing of drivers is much more targeted than alcohol testing, these statistics demonstrate that the level of drug driving is at an extremely concerning level .

Can the minister explain how drug testing is more targeted than alcohol testing? Does SAPOL target certain geographical areas, certain events, certain times of the day? I also ask, if this bill is passed whether SAPOL patrol cars will be equipped with roadside testing devices? Will it operate in the same way as random breath tests do?

I ask the minister to advise the number of drug screening tests over the past five years, the percentage detected and the type of drug. I also ask, for the same period the number of people charged with driving under the influence of a drug and the resulting conviction rate. I ask the minister to provide data on the locations or geographical areas where the drivers with drugs in their systems have been detected.

The Liberal Party is supportive of initiatives that seek to improve the safety of our roads for all road users. The Liberal Party wants legislation initiatives to be effective. Often, legislative changes are only the first step when changing attitudes and behaviours in our community and must be accompanied by other initiatives. The Liberal Party is also supportive of measures which seek to increase the safety of our children, particularly when they are passengers in vehicles. The Liberal Party has filed amendments, and the effect of the amendments are as follows.

Amendment No.1, which has been filed in my name, will provide a discretion to the Registrar of Motor Vehicles to reissue a driver’s licence if the applicant satisfies the Registrar that they are no longer dependent on alcohol or drugs or that they have undertaken a sufficient amount of appropriate treatment for alcohol or drug dependency. This amendment provides an important mechanism by which the offenders are encouraged to seek treatment for drug or alcohol dependency. It will also incentivise such offenders to persist with any such treatment, as they have an opportunity to regain their licence if they do so. This amendment is motivated by the policy objective of encouraging people to seek assistance for their own addiction.

If we fail to rehabilitate drug users by breaking the cycle, we will continue to see drug drivers on our roads. The government bill fails to deal with the primary problem; that is, reducing drug dependency within our communities. Drug driving is merely a symptom of the problem. I note that the government’s own Ice Taskforce, of which the Minister for Road Safety is chair, stated in its recent summary report that the treatment services are highly effective with people who have problems related to methamphetamine use. Our amendment will encourage these people to seek treatment and thus help them to overcome the primary problem that is causing the drug taking.

Amendment No. 2, filed in my name, is consequential. The amendment provides scope for regulations to define what is the sufficient amount of appropriate treatment. Amendment No. 3 seeks to align a first offence of drug driving with that of a first offence of a category 2 drink-driving, if it is established by evidence given on oath that the offence is trifling. If it is so established, then it will provide discretion to the court to order a period of disqualification that is less than the prescribed minimum period, but not less than one month. This will ensure that an appropriate punishment is enacted, but in circumstances where the offence is trifling and it is a first offence, offenders receive a proportional sentence. The government’s bill as drafted provides no mechanisms whatsoever for extenuating circumstances to be taken into account for a first offence.

Before I complete my second reading, I have a number of further questions regarding drug assessments:

  • The Corporate Health Group was gazetted as an approved drug assessment clinic in 2014. Have any other drug assessment clinics been gazetted since 2014?
  • Is it government’s intention to gazette more approved assessment clinics, given that with the passage of this bill there is likely to be an increase in demand?
  • If Corporate Health Group is the only provider, has the government sought assurances that the Corporate Health Group can handle in a timely manner the expected increase in demand for drug assessments?
  • What is the average wait time for a drug assessment with the Corporate Health Group at this time?
  • What is the median wait time and the longest wait time?
  • How many people are currently waiting for an assessment pursuant to the Motor Vehicles Act at this time?

I ask the chamber to look favourably upon the Liberal Party’s amendments.

See full session on Hansard

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