Police (Drug Testing) Amendment Bill

Introduction and First Reading

The Hon. C.J. PICTON (Kaurna—Minister for Police, Minister for Correctional Services, Minister for Emergency Services, Minister for Road Safety, Minister Assisting the Minister for Health, Minister Assisting the Minister for Mental Health and Substance Abuse) (16:03): Obtained leave and introduced a bill for an act to amend the Police Act 1998. Read a first time.

Second Reading

The Hon. C.J. PICTON (Kaurna—Minister for Police, Minister for Correctional Services, Minister for Emergency Services, Minister for Road Safety, Minister Assisting the Minister for Health, Minister Assisting the Minister for Mental Health and Substance Abuse) (16:04): I move:

That this bill be now read a second time.

South Australians have demonstrated their high levels of trust and confidence in the South Australia Police. As indicated in the 2015-16 SAPOL Annual Report, the community has returned ratings of 88.6 per cent for community confidence, 84 per cent for community satisfaction and 91.2 per cent for professionalism.

With illicit drug taking present in society, the risks associated with police officers taking illicit drugs would serve to undermine community confidence. It is important that police officers involved in significant incidents, such as when a person is killed or suffers serious injury, are closely scrutinised. The public must have confidence that police officers involved in such incidents are not affected by alcohol or drugs. Current drug testing provisions within the Police Act 1998 and the Police Regulations 2014 only allow for limited testing of illicit drugs and do not encompass a number of commonly available drugs used in the community.

Interstate inquiries into the personal use and supply of prohibited drugs by police officers highlighted the following risks:

the nature of police duties calls for calm and careful decisions, a clear head and a balanced exercise of discretion, and the need to use motor vehicles and weapons. These requirements are incompatible with the impaired judgment and coordination which can result from drug use;

public respect for the police force and the maintenance of good order and discipline are impossible in an environment that tolerates the presence of police at clubs, hotels and the like where they are seen to be affected by alcohol or drugs;

the necessary association of any police officer who uses drugs, even for recreational purposes, with a supplier creates opportunities for compromise, blackmail and corruption, particularly if the habit becomes expensive to feed;

a user of prohibited drugs is unlikely to approach the enforcement of drug laws with any degree of conviction; and

participation in any form of criminal offence by an officer is in fundamental conflict with the sworn duty of the officer to uphold the law.

The community would rightfully be concerned by members of SAPOL being impaired by drugs in their decision-making or engaging in conduct which would compromise their integrity. The harm associated with illicit drug taking in the community is of significant importance and SAPOL has a leadership role in addressing this problem.

There is no evidence to suggest a significant issue exists within SAPOL—that is a very important point to make. In September 2014, amendments to the Police Act 1998 and regulations created the first legislative framework for drug and alcohol testing of police officers. SAPOL have subsequently developed the internal policy framework and from early 2016 have applied drug and alcohol testing to members involved in significant incidents. These are circumstances such as being involved in a critical incident whilst on duty, high-risk driving whilst on duty and applying for classified positions.

Classified positions are those which require that the applicants (i.e. already serving police officers) undergo a medical or psychological assessment as part of the application process. These positions, such as in the Special Tasks and Rescue (STAR) branch and undercover operatives have elevated demands in respect to resilience, fitness, psychological and physiological demands. A critical incident is where a person is killed or suffers serious bodily injury while detained by a police officer; or as a result of the discharge of a firearm or an electronic control device; or in circumstances involving a police aircraft, motor vehicle, vessel or other mode of transport; or as a result of alleged police action.

So far, no positive results have arisen from testing undertaken in these circumstances. Police can also be tested when it is believed the member has used a drug or alcohol. One member returned a positive drug test in these circumstances and that matter is before the Police Disciplinary Tribunal. Part 6, division 2 of the Police Act 1998 provides for drug and alcohol testing of police officers, cadets and applicants for SA Police in certain circumstances. Within the act, 'drug' is defined as a substance that is a controlled drug under the Controlled Substances Act 1984. The Police Regulations 2014 limit analysis to the prescribed drugs of cannabis, methylamphetamine and MDMA (ecstasy) only.

The presence of other drugs commonly found within the community, such as heroin and cocaine, cannot be tested for within the current legislative provisions. SAPOL has advised of a need for legislation to allow testing for a broader range of drugs. For futureproofing, it is proposed that any drug listed as a controlled substance pursuant to the Controlled Substances Act 1984 should be able to be tested for. In reality, the expansion at this time is to cocaine and heroin. I seek leave to insert the remainder of my second reading remarks into Hansard without my reading them.

Leave granted.

To achieve this consistency, amendments are required to the Police Regulations 2014. This would allow Police Officers and Police Cadets to be tested for drugs such as heroin and cocaine, already frequently found in the community. The authority will also allow for future testing of new drugs as they evolve, on the basis that the substance is first listed as a controlled drug under the Controlled Substances Act 1984. The Commissioner of Police would approve testing for drugs for any future drug as a policy decision rather than requiring legislative amendment on each occasion. Such a testing regime is supported by the Police Association of South Australia. Changes are not proposed to the range of circumstances in which a Police Officer or Police Cadet can be tested.

The current drug testing process SAPOL uses under the Police Act 1998 has similarities to that used for drug driver testing of the public underpinned in the Road Traffic Act 1961. The drafting approval given by Cabinet on 5 December 2016 was to amend the Road Traffic Act 1961, the Rail Safety National Law (South Australia) Act 2012 and the Harbors and Navigation Act 1993 to replace the oral fluid analysis (OFA) procedure with an oral fluid collection (OFC) procedure. This Bill makes those amendments to the Police specific Police Act 1998 and Police Regulations 2014.

SAPOL will source and purchase oral fluid screening (OFC) equipment that can detect the presence heroin and cocaine as well as the drugs covered by the Road Traffic Act 1961 that are already tested for. The devices in use are approved by His Excellency the Governor pursuant to the Road Traffic Act 1961. For consistency and transparency, SAPOL proposes that any new device(s) for conducting OFC procedures would also be prescribed by regulation to be made by His Excellency the Governor, but pursuant to the Police Act 1998 as this range of testing only applies to Police Officers and Cadets. The current drug testing procedure for Police Officers and Cadets uses the same oral fluid analysis apparatus used in the current 2nd stage of drug testing authorised by the Road Traffic Act. This apparatus will not be available in the future as the consumables have been discontinued from manufacture.

This circumstance has led to some of amendments contained in the Statutes Amendment (Drink and Drug Driving) Bill 2017 currently within Parliament. There is benefit in the Police Act 1998 adopting the same procedure as it provides an immediate positive/negative result, minimises anxiety for members and supports immediate action being taken to ensure public safety and a safe workplace. When a positive indication to a test occurs, a series of administrative, investigational and likely disciplinary actions follow. This includes analysis by Forensic Science SA to confirm the results. SAPOL's Ethical and Professional Standards Branch co-ordinate this process with oversight of the Police Ombudsman and will continue to do so.

Section 41D (2) (e) of the Police Act 1998 allows for apparatus used for drug and alcohol testing to be approved by His Excellency the Governor through regulation. The Police Act 1998 describes the apparatus to be used for oral fluid drug testing within the definition of 'oral fluid analysis'. This is apparatus of a kind approved under the Road Traffic Act 1963. Removing the term and the definition of 'oral fluid analysis' will allow apparatus to be approved by His Excellency the Governor pursuant to the Police Act 1998. The apparatus is utilised only for Police Officers and Cadets and approval in this manner provides transparency in the process.

I commend the Bill.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Police Act 1998

4—Amendment of section 41A—Interpretation

This clause amends section 41A to insert a definition of drug screening test and substitute a new definition of oral fluid analysis.

5—Amendment of section 41B—Drug and alcohol testing of members and cadets

This clause amends section 41B to so that police officers and police cadets can be required to submit to drug screening tests.

6—Amendment of section 41C—Drug and alcohol testing of applicants to SA Police

This clause amends section 41C so that persons applying to be police cadets and persons applying for other appointments to SA Police can be required to submit to drug screening tests.

Debate adjourned on motion of Mr Treloar.