Statutes Amendment (Drink and Drug Driving) Bill

Second Reading

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) (18:31): I move:

That this bill be now read a second time.

I seek leave to have the second reading explanation inserted in Hansard without my reading it.

Leave granted.

An average week on our roads sees 107 people detected by police for drug driving – just four fewer than those detected drink driving. Both numbers are unacceptable.

Unlike alcohol-related road fatalities, the number of drivers and riders killed in road crashes who are testing positive to drugs is not decreasing. Over the last five years (2012-2016), an average of 24% of drivers and riders killed on South Australian roads tested positive to cannabis, methylamphetamine or ecstasy or a combination of these drugs. These drugs can impair a driver's coordination, reaction time, vision, and the ability to judge distance, speed and time. Drivers using methylamphetamine are inclined to take greater risks on our roads, putting the safety of all road users at risk.

The Statutes Amendment (Drink and Drug Driving) Bill 2017 amends the Road Traffic Act 1961, Motor Vehicles Act 1959, Harbors and Navigation Act 1993, Rail Safety National Law (South Australia) Act 2012 to strengthen drug driving penalties, require dependency assessments if children are in a motor vehicle at the time of the offence, and streamline the drug testing process and the approval of instruments and personnel.

The initiatives in this Bill are intended to reduce the incidence of drug driving, and improve road safety for all road users.

The Bill introduces a three-month licence disqualification for a first drug driving offence that is expiated. This is likely to be a strong deterrent against drug driving. Penalties for traffic offences typically include fines and demerit points, and these will remain. For more serious offences, however, a licence disqualification is appropriate. It will bring South Australia into line with Victoria, which has a three-month licence suspension for a first expiated drug driving offence. Several other States also have a licence disqualification for a first offence that goes to court, including New South Wales, Queensland, the Australian Capital Territory and Tasmania.

The court-imposed disqualification period will also be increased for a first offence. The minimum licence disqualification for drivers who elect to be prosecuted will be increased from three to six months and will not be able to be reduced or mitigated in any way. A higher court penalty is appropriate to deter those who would take their chances in court if the penalties were the same. Consistent with the approach currently taken with drink driving offences, a court will be able to find in the case of a first drug driving offence that the offence is trifling.

The Bill increases the court-imposed licence disqualification period for repeat drug driving offences. The minimum court-imposed licence disqualification periods for repeat drug driving offences are currently too low. For example, a person can commit a third drug driving offence with a disqualification of only 12 months, and even then it can be reduced further if the court has another penalty in mind. Consequently, the disqualification periods will be doubled in most cases. Again, the Bill also ensures that the disqualification cannot be reduced or mitigated in any way or substituted by any other penalty or sentence. This replicates the sentencing parameters in the drink driving provisions of the Road Traffic Act.

The disqualification penalties for refusal or failure to undertake a drug screening test, oral fluid collection or blood test will also be increased so that they remain a sufficient deterrent for not complying with legitimate directions from the police.

The Bill introduces a new offence of drink or drug driving with a child under 16 years in the vehicle. Driving children around with alcohol or drugs present in the driver's system puts these vulnerable passengers at greater risk of being involved in a crash and is unacceptable. They deserve to arrive at school safely. The new offence will apply where the driver's blood alcohol content is .08 or greater – that is, a category 2 offence and higher – and to all drug driving offences.

A conviction for, or expiation of, this new offence will trigger the requirement for a drug or alcohol dependency assessment, and the offender will not regain their licence until they have been assessed as non-dependent by a clinician. The penalties – that is, the fine, disqualification periods and demerit points – for the new offence of drug or drink driving with a child present in the vehicle will be the same as for the respective drug or drink driving offence.

Information identifying offenders will also be provided to the Department for Child Protection for the purposes of their investigations into a child's safety. This information can also be used for child-related employment screening by the Department for Communities and Social Inclusion.

The Bill also broadens the existing provisions that apply to dependency assessments so that drivers will have the option to obtain a dependency assessment from either a person or body approved as an assessment provider by the Minister for Health (currently the Corporate Health Group); or an addiction medicine specialist or addiction psychiatrist. This will give drivers the option to consult a private addiction specialist, if they wish, to obtain a dependency assessment for the purposes of obtaining a driver's licence.

The Bill increases the penalty for driving unlicensed at the end of the disqualification period if the driver has not completed the required dependency assessment or has been assessed as dependent on alcohol or drugs. Any motorist caught driving unlicensed following a drink or drug driving offence, where they did not undertake the required dependency assessment or drove after being found to be dependent, will face an increased maximum penalty of $5,000 or imprisonment for one year and disqualification from holding or obtaining a licence for not less than three years. This is consistent with the approach taken for motorists caught driving unlicensed following disqualification for a serious drink driving offence and not having entered the Mandatory Alcohol Interlock Scheme.

The Bill removes the second stage drug testing procedure conducted at the scene. South Australia Police (SAPOL) will no longer conduct the second stage of the drug testing procedure at the scene known as the 'oral fluid analysis.' This will free up officers' time at the roadside.

The first drug screening test will be administered to determine, at a preliminary level, the presence of a prescribed drug in a driver, a vessel operator/crew member, or a rail safety worker. If a prescribed drug is detected, SAPOL officers will collect an oral fluid sample for forwarding to Forensic Science SA for laboratory analysis and confirmation of the presence of drugs in the driver's oral fluid before an offence is confirmed, as per existing practice.

Under the current procedure approximately 710 people per year are exonerated at the second stage analysis conducted by SAPOL at the scene. However, analysis has shown that over half of these drivers (around 420 per year) would test positive under laboratory conditions. This is due to the lower level of illicit drug able to be detected in the laboratory compared to the current second stage screening test at the road side.

The Bill dispenses with the requirement to authorise SAPOL officers to conduct drug screening tests. There are currently 687 SAPOL officers authorised to conduct drug screening tests, and 362 authorised to conduct oral fluid analyses. Dispensing with the requirement to authorise them will reduce red-tape and allow for all sworn officers (up to 5,000 members) to be trained and available to conduct drug tests across the State.

The Bill requires all drug and alcohol testing apparatus to be approved by way of regulation. Seven types of alcohol and drug testing apparatus are currently used by SAPOL. They are published in the Government Gazette, but they are sometimes challenged in legal proceedings. Under these amendments they would be listed in regulations instead.

Listing them in the regulations will aid transparency and avoid difficulties encountered during prosecutions regarding apparatus make, model or description. It is anticipated that the regulations listing the apparatus will need to be amended every three to five years to account for changes in instrumentation.

Where a person has submitted to a drug screening test and the officer reasonably believes, on the basis of the results of that test, that the person has committed a drug driving offence, the Bill provides a power for police to search the vehicle for the purpose of ascertaining whether any controlled drug, controlled precursor or controlled plant is present in or on the vehicle.

Currently, drivers who commit repeat drug and drink driving offences must undergo a drug or alcohol dependency assessment and be found non-dependent in order to obtain a driver's licence. However, amendments carried in the other place will require the Registrar of Motor Vehicles to consider the successful completion of a prescribed treatment program as a substitute for a formal dependency assessment. The Government does not support this amendment. Clinicians advise that undertaking a prescribed treatment program is not a substitute for undertaking a dependency assessment. A person can be dependent on alcohol or drugs even though they have attended a prescribed treatment program. To determine the effectiveness of the treatment, a dependency assessment is required.

Another amendment carried in the other place will require a driver who is found to be dependent on alcohol or drugs to undertake a sufficient amount of appropriate treatment for dependency and to be found to be no longer dependent on alcohol or drugs, in order to obtain a driver's licence. Clinicians advise that some people may require many years of treatment, and others may not require any formal treatment to become non-dependent. It is not possible to define a single course of treatment that would be beneficial for every person who is dependent on alcohol or drugs. The existing requirement to be non-dependent already acts as an incentive for a person to take action to undergo any treatment they may require to become non-dependent and re-gain a driver's licence. The Government does not support this amendment.

An amendment was carried in the other place that will allow a defence against the drug driving laws for users of approved medical cannabis products. The proposed defence is based on the defendant being in possession of a certificate given by a legally qualified medical practitioner certifying that, in the medical practitioner's opinion, the defendant is medically fit to drive a vehicle while using an approved medical cannabis product. The Government does not support this amendment. Roadside drug tests are conducted to improve road safety. Oral fluid drug tests detect recent THC use, when impairment is most likely, and this is the case regardless of whether the THC was used for medicinal or recreational purposes. It is not reasonable to place a burden on medical practitioners to certify that a person will be fit to drive in these circumstances. This amendment will not improve road safety.

I commend the Bill to the House.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Harbors and Navigation Act 1993

4—Amendment of section 4—Interpretation

This clause amends section 4 by redefining the term oral fluid analysis to mean the analysis of a person's oral fluid to determine whether a prescribed drug is present in the oral fluid. This change is necessary because oral fluid analyses are to be conducted by, or under the supervision, of an analyst in a laboratory, rather than by an authorised person by means of apparatus approved by the Governor.

5—Amendment of section 72—Authorised person may require drug screening test, oral fluid analysis and blood test

This clause amends section 72 so that any police officer can conduct a drug screening test (instead of only those specially authorised by the Commissioner of Police).

6—Amendment of section 73—Evidence

This clause amends section 73 to make a number of consequential amendments to the evidentiary provisions. These changes are necessary because authorised persons will cease to conduct oral fluid analyses and will instead only take samples of oral fluid for analysis at a laboratory.

7—Amendment of Schedule 1A—Blood and oral fluid sample processes

This clause amends Schedule 1A to make a number of consequential amendments. These changes are necessary because authorised persons will cease to conduct oral fluid analyses and will instead only take samples of oral fluid for analysis at a laboratory.

Part 3—Amendment of Motor Vehicles Act 1959

8—Amendment of section 5—Interpretation

This clause amends section 5 by amending the definitions of category 2 offence and category 3 offence. These changes are consequential on the creation of new offences against section 47B of the Road Traffic Act 1961 by Part 5 of this measure. The clause also inserts a definition of the term prescribed drink driving offence which is used in sections 74 and 79B of the Act.

9—Amendment of section 74—Duty to hold licence or learner's permit

This clause amends section 74 to create two new offences.

New subsection (2ab) provides that a person is guilty of an offence if—

(a) the person drives a motor vehicle on a road; and

(b) the person has been disqualified from holding or obtaining a licence or learner's permit in this State, or in another State or Territory of the Commonwealth, as a consequence of a drink driving offence or an alleged drink driving offence (whether committed, or allegedly committed, in this State or in another State or Territory of the Commonwealth); and

(c) —

(i) the drink driving offence or alleged drink driving offence was an offence against section 47(1a), 47B(1a), 47E(3a) or 47I(7) of the Road Traffic Act 1961; or

(ii) if the offence was a prescribed drink driving offence—the person has—(A)been convicted of at least 1 other prescribed drink driving offence; or(B)been convicted of or expiated at least 2 other drink driving offences, committed or allegedly committed within the period of 5 years before the date of commission or alleged commission of the offence; or

(iii) in any other case—the person has been convicted of or expiated at least 2 other drink driving offences committed or allegedly committed within the period of 5 years before the date of commission or alleged commission of the offence; and

(d) the person has not, since the end of the period of the disqualification referred to in paragraph (b), been authorised, under this Act or the law of another State or Territory of the Commonwealth, to drive a motor vehicle.

New subsection (2ac) provides that a person is guilty of an offence if—

(a) the person drives a motor vehicle on a road; and

(b) the person has been disqualified from holding or obtaining a licence or learner's permit in this State, or in another State or Territory of the Commonwealth, as a consequence of a drug driving offence or an alleged drug driving offence (whether committed, or allegedly committed, in this State or in another State or Territory of the Commonwealth); and

(c) —

(i) the drug driving offence or alleged drug driving offence was an offence against section 47(1a), 47BA(1a), 47EAA(9a) or 47I(7) of the Road Traffic Act 1961; or

(ii) the person has been convicted of or expiated at least 1 other drug driving offence committed or allegedly committed within the period of 5 years before the date of commission or alleged commission of the offence; and

(d) the person has not, since the end of the period of the disqualification referred to in paragraph (b), been authorised, under this Act or the law of another State or Territory of the Commonwealth, to drive a motor vehicle.

In each case the maximum penalty fixed for the offence is $5,000 or imprisonment for 1 year.

10—Amendment of section 79B—Alcohol and drug dependency assessments and issue of licences

This clause makes a number of amendments to section 79B.

Substituted subsection (1) that requires the Registrar to give a person who applies for a licence following a period of disqualification for certain drink driving offences a direction to attend an assessment clinic for the purpose of determining whether or not the person is dependent on alcohol unless the applicant satisfies the Registrar, on the basis of the report of an approved assessment provider or such other evidence as the Registrar may require, that the applicant has successfully completed a prescribed alcohol dependency treatment program not more than 60 days before the date of application for the licence.

Substituted subsection (2) requires the Registrar to give a person who applies for a licence following a period of disqualification for certain drug driving offences a direction to attend an assessment clinic for the purpose of determining whether or not the person is dependent on drugs unless the applicant satisfies the Registrar, on the basis of the report of an approved assessment provider or such other evidence as the Registrar may require, that the applicant has successfully completed a prescribed drug dependency treatment program not more than 60 days before the date of application for the licence.

Substituted subsection (4) provides that if the Registrar is satisfied, on the basis of the report of an approved assessment provider, that the applicant is dependent on alcohol, the Registrar must refuse to issue a licence to the applicant until the applicant satisfies the Registrar, on the basis of the report of an approved assessment provider or such other evidence as the Registrar may require, that—

(a) that the applicant has undertaken a sufficient amount of appropriate treatment for dependency on alcohol; and

(b) the applicant is no longer dependent on alcohol.

Substituted subsection (5) provides that if the Registrar is satisfied, on the basis of the report of an approved assessment provider, that the applicant is dependent on drugs, the Registrar must refuse to issue a licence to the applicant until the applicant satisfies the Registrar, on the basis of the report of an approved assessment provider or such other evidence as the Registrar may require, that—

(a) the applicant has undertaken a sufficient amount of appropriate treatment for dependency on drugs; and

(b) the applicant is no longer dependent on drugs.

Substituted subsection (8) provides for references to drink driving offence, drug driving offence and prescribed drink driving offence in the section to include corresponding offences against laws of other States and Territories. It also provides that a reference to an approved assessment provider is a reference to—

a person registered as a specialist in addiction medicine who is a Fellow of the Australasian Chapter of Addiction Medicine of the Royal Australasian College of Physicians; or

a person registered as a psychiatrist who is a Fellow of the Royal Australian and New Zealand College of Psychiatrists and holds a Certificate in Addiction Psychiatry; or

a person or body approved as an assessment provider by the Minister to whom the administration of the Health Care Act 2008 is committed.

New subsection (9) provides that for the purposes of section 79B, whether a person is to be regarded as having undertaken a sufficient amount of appropriate treatment is to be determined in accordance with the regulations.

11—Amendment of section 81D—Disqualification for certain drug driving offences

This clause amends section 81D so that it applies to all offences against section 47BA of the Road Traffic Act 1961. It also increases the mandatory periods of disqualification to which a person is liable for offences against that section as follows: 3 months for a first offence, 12 months for a second offence, 2 years for a third offence, and 3 years for a subsequent offence.

Part 4—Amendment of Rail Safety National Law (South Australia) Act 2012

12—Amendment of section 9—Interpretation

This clause amends section 9 by inserting a definition of drug and redefining the term oral fluid analysis to mean the analysis of a person's oral fluid to determine whether a drug is present in the oral fluid. This change is necessary because oral fluid analyses are to be conducted by, or under the supervision, of an analyst in a laboratory, rather than by an authorised person by means of apparatus approved by the Governor.

13—Substitution of section 11

11—Approval of apparatus and kits for breath analysis etc

Substituted section 11 empowers the Governor to make regulations to approve apparatus as breath analysing instruments, to approve apparatus for the purposes of conducting alcotests and drug screening tests, and to approve blood test kits. It also provides for such apparatus and kits approved under the Road Traffic Act 1961 to be taken to be approved under this section.

14—Amendment of section 13—Conduct of drug screening tests, oral fluid analyses and blood tests

This clause amends section 13 so that any police officer can conduct a drug screening test (instead of only those specially authorised by the Commissioner of Police).

15—Amendment of section 18—Processes relating to oral fluid samples

This clause amends section 18 to make a number of consequential amendments. These changes are necessary because authorised persons will cease to conduct oral fluid analyses and will instead only take samples of oral fluid for analysis at a laboratory.

16—Amendment of section 20—Evidence

This clause amends section 20 to make a number of consequential amendments to the evidentiary provisions. These changes are necessary because authorised persons will cease to conduct oral fluid analyses and will instead only take samples of oral fluid for analysis at a laboratory.

Part 5—Amendment of Road Traffic Act 1961

17—Amendment of section 5—Interpretation

This clause amends section 5 by redefining the term drink driving offence to mean—

(a) an offence against section 47(1) or (1a) involving the driving of a motor vehicle, or attempting to put a motor vehicle in motion, while so much under the influence of intoxicating liquor as to be incapable of exercising effective control of the vehicle; or

(b) an offence against section 47B(1), 47B(1a), 47E(3), 47E(3a), 47I(7) or 47I(14).

Drink driving offence is redefined to mean—

(a) an offence against section 47(1) or (1a) involving the driving of a motor vehicle, or attempting to put a motor vehicle in motion, while so much under the influence of a drug as to be incapable of exercising effective control of the vehicle; or

(b) an offence against section 47BA(1), 47BA(1a), 47EAA(9), 47EAA(9a), 47I(7) or 47I(14).

18—Amendment of section 47—Driving under the influence

Section 47(1) makes it an offence for a person to drive a vehicle, or attempt to put a vehicle in motion, while so much under the influence of intoxicating liquor or a drug as to be incapable of exercising effective control of the vehicle.

This clause amends section 47 to create a new offence (in subsection (1a)) of engaging in conduct involving a motor vehicle that constitutes an offence against subsection (1) while a child under the age of 16 years is present in or on that motor vehicle. A person who commits the new offence against subsection (1a) will be liable to the same penalties as for an offence against subsection (1) and will be subject to the same mandatory periods of licence disqualification if convicted by a court. If a person is charged with an offence against subsection (1a) but the court is not satisfied that an offence against that subsection has been established beyond reasonable doubt, the person may be convicted, on that charge, of an offence against subsection (1) if the court is satisfied that an offence against subsection (1) has been so established.

19—Amendment of section 47A—Interpretation

This clause amends section 47A by altering the definitions of approved blood test kit, category 2 offence, category 3 offence and oral fluid analysis. The amendments are consequential on other amendments made by this measure.

20—Insertion of section 47AB

This clause inserts a new section.

47AB—Drug driving offences—defence for users of approved medical cannabis products

Proposed section 47AB provides that in proceedings for a drug driving offence involving THC, it is a defence if the defendant proves that, at the time of the alleged offence—

(a) the defendant had a medical condition or a disability requiring the defendant to use an approved medical cannabis product; and

(b) the defendant was in possession of a certificate given by a legally qualified medical practitioner certifying that, in the medical practitioner's opinion, the defendant is medically fit to drive a vehicle while using an approved medical cannabis product.

Approved medical cannabis product will have the meaning assigned to it by the regulations.

21—Amendment of section 47B—Driving while having prescribed concentration of alcohol in blood

Section 47B(1) makes it an offence for a person to drive a vehicle, or attempt to put a vehicle in motion, while there is present in his or her blood the prescribed concentration of alcohol as defined in section 47A.

This clause amends section 47B to create a new offence (subsection (1a)) of engaging in conduct involving a motor vehicle that constitutes an offence against subsection (1) while a child under the age of 16 years is present in or on that motor vehicle. However, the new offence does not apply to conduct that constitutes a category 1 offence against subsection (1). A person who commits the new offence against subsection (1a) will be liable to the same penalties as for an offence against subsection (1) and will be subject to the same mandatory periods of licence disqualification if convicted by a court. If a person is charged with an offence against subsection (1a) but the court is not satisfied that an offence against that subsection has been established beyond reasonable doubt, the person may be convicted, on that charge, of an offence against subsection (1) if the court is satisfied that an offence against subsection (1) has been so established.

22—Amendment of section 47BA—Driving with prescribed drug in oral fluid or blood

Section 47BA(1) of the Road Traffic Act makes it an offence for a person to drive a vehicle, or attempt to put a vehicle in motion, while a prescribed drug is present in his or her oral fluid or blood.

This clause amends section 47BA to create a new offence (subsection (1a)) of engaging in conduct involving a motor vehicle that constitutes an offence against subsection (1) while a child under the age of 16 years is present in or on that motor vehicle. A person who commits the new offence against subsection (1a) will be liable to the same penalties as for an offence against subsection (1) and will be subject to the same mandatory periods of licence disqualification if convicted by a court. If a person is charged with an offence against subsection (1a) but the court is not satisfied that an offence against that subsection has been established beyond reasonable doubt, the person may be convicted, on that charge, of an offence against subsection (1) if the court is satisfied that an offence against subsection (1) has been so established.

The clause also amends section 47BA to increase the mandatory licence disqualification periods for offences against subsection (1) or new subsection (1a) to not less than 6 months for a first offence, not less than 12 months for a second offence, not less than 2 years for a third offence and not less than 3 years for a subsequent offence.

The clause also inserts a provision that allows a court to reduce a disqualification for a first offence to a period of not less than 1 month if the court is satisfied, by evidence given on oath, that the offence is trifling.

23—Amendment of section 47C—Relation of conviction under section 47B or 47BA to contracts of insurance etc

This section amends section 47C to alter cross-references to include the new offences against section 47B and 47BA inserted by this measure.

24—Amendment of section 47D—Payment by convicted person of costs incidental to apprehension etc

This section amends section 47D to alter cross-references to include the new offences against section 47B, 47BA, 47E and 47EAA inserted by this measure.

25—Amendment of section 47E—Police may require alcotest or breath analysis

Section 47E(3) of the Road Traffic Act provides that a person required under the section to submit to an alcotest or breath analysis must not refuse or fail to comply with all reasonable directions of a police officer in relation to the requirement and, in particular, must not refuse or fail to exhale into the apparatus by which the alcotest or breath analysis is conducted in accordance with the directions of a police officer.

This clause amends section 47E to create a new offence. New subsection (3a) provides that a person commits an offence if—

(a) the person has engaged in conduct of a kind described in subsection (1)(a), (b) or (c) involving a motor vehicle; and

(b) such conduct occurred while a child under the age of 16 years was present in or on that vehicle; and

(c) the person refuses or fails to comply with a direction of a police officer (given in relation to such conduct) in contravention of subsection (3).

A person who commits the new offence against subsection (3a) will be liable to the same penalties as for an offence against subsection (3) and will be subject to the same mandatory periods of licence disqualification if convicted by a court. If a person is charged with an offence against subsection (3a) but the court is not satisfied that an offence against that subsection has been established beyond reasonable doubt, the person may be convicted, on that charge, of an offence against subsection (3) if the court is satisfied that an offence against subsection (3) has been so established.

26—Amendment of section 47EAA—Police may require drug screening test, oral fluid analysis and blood test

Section 47EAA(9) of the Road Traffic Act provides that a person required to submit to a drug screening test, oral fluid analysis or blood test must not refuse or fail to comply with all reasonable directions of a police officer in relation to the requirement and, in particular, must not refuse or fail to allow a sample of oral fluid or blood to be taken in accordance with the directions of a police officer.

This clause amends section 47EAA so that any police officer can conduct a drug screening test (instead of only those specially authorised by the Commissioner of Police). It also creates a new offence.

New subsection (9a) provides that a person commits an offence if—

(a) the person has engaged in conduct of a kind described in section 47E(1)(a), (b) or (c) involving a motor vehicle; and

(b) such conduct occurred while a child under the age of 16 years was present in or on that vehicle; and

(c) the person refuses or fails to comply with a direction of a police officer (given in relation to such conduct) in contravention of subsection (9).

A person who commits the new offence against subsection (9a) will be liable to the same penalties as for an offence against subsection (9) and will be subject to the same mandatory periods of licence disqualification if convicted by a court. If a person is charged with an offence against subsection (9a) but the court is not satisfied that an offence against that subsection has been established beyond reasonable doubt, the person may be convicted, on that charge, of an offence against subsection (9) if the court is satisfied that an offence against subsection (9) has been so established.

This clause also amends section 47EAA to increase the mandatory licence disqualification which apply if a person is convicted of an offence against the section to not less than 12 months for a first offence and not less than 3 years for a subsequent offence.

27—Amendment of section 47GA—Breath analysis where drinking occurs after driving

This clause amends section 47GA to alter cross-references to include the new offences against section 47(1a) and 47B(1a) created by this measure.

28—Amendment of section 47GB—Oral fluid analysis or blood test where consumption of prescribed drug occurs after driving

This clause amends section 47GA to alter cross-references to include the new offences against section 47(1a) and 47B(1a) created by this measure.

29—Substitution of section 47H

47H—Approval of apparatus and kits for breath analysis etc

Substituted section 47H empowers the Governor to make regulations approving apparatus as breath analysing instruments, approving apparatus for the purposes of conducting alcotests and drug screening kits, and approving blood test kits.

30—Amendment of section 47I—Compulsory blood tests

Section 47I(14) provides that a person is guilty of an offence if the person, on being requested to submit to the taking of a sample of blood under this section, refuses or fails to comply with that request and—

(a) fails to assign any reason based on genuine medical grounds for that refusal or failure; or

(b) assigns a reason for that refusal or failure that is false or misleading; or

(c) makes any other false or misleading statement in response to the request.

This clause amends section 47I to create a new offence.

New subsection (7) provides that if—

(a) a motor vehicle is involved in an accident; and

(b) a child under the age of 16 years was present in or on the vehicle at the time of the accident; and

(c) the person who was driving the vehicle at the time of the accident refuses or fails to comply with a request that the person submit to the taking of a sample of blood under this section; and

(d) the person—

(i) fails to assign any reason based on genuine medical grounds for that refusal or failure; or

(ii) assigns a reason for that refusal or failure that is false or misleading; or

(iii) makes any other false or misleading statement in response to the request,

the person is guilty of an offence. The maximum penalty is a fine of not less than $1,100 or more than $1,600 for a first offence, or not less than $1,900 and not more than $2,900 for a subsequent offence.

If a person is charged with an offence against subsection (7) but the court is not satisfied that an offence against that subsection has been established beyond reasonable doubt, the person may be convicted, on that charge, of an offence against subsection (14) if the court is satisfied that an offence against subsection (14) has been so established.

If a person is charged with an offence against subsection (7) but the court is not satisfied that an offence against that subsection has been established beyond reasonable doubt, the person may be convicted, on that charge, of an offence against subsection (14) if the court is satisfied that an offence against subsection (14) has been so established.

If a court convicts a person of an offence against subsection (7), the driver is liable to the same mandatory licence disqualification as for an offence against subsection (14).

31—Amendment of section 47IAA—Power of police to impose immediate licence disqualification or suspension

This clause amends section 47IAA to empower the police to give notices of immediate licence disqualification or suspension to persons who commit offences against section 47(3a), 47EAA(9a) and 47I(7).

32—Amendment of section 47K—Evidence

This clause amends section 47K. The amendments to the evidentiary provisions are consequential on other amendments made to the Act by this measure.

33—Amendment of section 175—Evidence

This clause amends section 175 to insert a new subsection that provides that in proceedings for an offence against section 47(1a), 47B(1a), 47BA(1a), 47E(3a), 47EAA(9a) or 47I(7), an allegation in the complaint that a child under the age of 16 years was, on a specified date and at a specified time, present in or on a specified motor vehicle will be accepted as proof of that matter in the absence of proof to the contrary.

34—Amendment of Schedule 1—Oral fluid and blood sample processes

This clause amends Schedule 1 to simplify cross-references and to make minor consequential amendments.

Ms COOK (Fisher) (18:32): I rise to speak in support of the bill. Drug driving has now surpassed drink-driving in a range of road safety statistics. In 2016, 5,351 drivers were detected by SA Police for drug driving. This compares with 5,237 drivers detected for drink-driving. There has been a steady increase in the proportion of drivers who test positive for drugs from roadside tests. In 2008, 2 per cent of those drivers tested by SAPOL returned a positive drug test. This rose to 11 per cent of drivers tested in 2016.

Drugs have also now surpassed alcohol in terms of involvement in road fatalities. Since 2014, the total number of drivers or riders killed testing positive to drugs has overtaken the number of drivers or riders killed with an illegal blood alcohol content in their system. It is very worrying. In 2016, 30 per cent of drivers or riders killed tested positive for drugs. These statistics are incredibly concerning.

We have achieved considerable success in reducing the incidence of drink-driving. There is a stigma that now attaches to those willing to risk their life and the lives of others by drink-driving. Our challenge is now to replicate this success in terms of drug driving. Those who are willing to put their lives and the lives of innocent road users at risk by driving with drugs in their system are incredibly selfish and they must be stopped.

Drugs impair a driver's coordination, reaction time, vision and the ability to judge distance, speed and time. Drivers are also inclined to take greater risks on our roads, putting the safety of all road users at risk. This bill seeks to introduce a three-month licence disqualification for a first drug-driving offence, as well as an increased licence disqualification for repeat drug-driving offences.

The bill also creates a new offence of high level drink or drug driving with a child under the age of 16 in the vehicle. We have seen alarming statistics recently when SAPOL has tested drivers in school zones of people dropping their children off to school with drugs in their system. Young children do not have the ability to refuse to get into a car with drug-affected adults. They are reliant upon these adults, whom they trust, to keep them safe and give them guidance in life.

By forcing those who are willing to drive under the influence of drugs with a child in their car to undergo a drug dependency test before they are able to get their licence back, the government seeks to achieve two important objectives: first, to keep people who are willing to engage in this most selfish act off the road and, secondly, to act as a circuit-breaker and encourage those people to get the medical help they need to break any addiction they may have.

This bill seeks to impose heavy loss of licence periods, which the government believes reflects the dangerous and selfish nature of drug driving; however, the bill does not seek to increase or impose any further financial penalties. The financial penalties that currently apply to drug-driving offences will remain. It is not the government's intention to further marginalise individuals who may already be struggling. This bill is about safety, the safety of all road users, and keeping those willing to engage in dangerous driving behaviours off our roads.

The Hon. Kelly Vincent MLC, with the support of the opposition and the Greens, has moved a successful amendment in the other place to provide a defence to the offence of drug driving if that driver is using medicinal cannabis. I am concerned about this amendment and the government as a whole also does not support this proposal and is seeking to remove the amendment in this place.

There is no evidence before the government that suggests this proposal would improve road safety. To the contrary, it could leave the law wide open to exploitation. The person may be prescribed medicinal cannabis by a medical practitioner, but that practitioner is not able to control how the person uses the cannabis, how much they use, or if the person uses non-prescribed cannabis products at the same time. That medical practitioner cannot certify that someone is fit to drive at any given time based on this.

Of course, all this does not take into consideration differing levels in the use of medicinal cannabis and its different products. Sativex and Epidiolex, for example, are two very different varieties of medicinal cannabis designed to combat very different symptoms and contain different levels of THC. Sativex, for example, contains THC to CBD at a 1:1 ratio, while Epidiolex contains approximately 98 per cent CBD to 2 per cent THC—very different. Current drug testing cannot differentiate between either of these medications or the presence of THC in the body via the use of these or recreational drugs, so without improved science and testing in this area it is impossible to determine what is a safe level of drug driving and even harder still for a judge or for police to assess where this has come from.

Whilst the government acknowledges the raft of drug-driving research being done to better determine the crash risk associated with THC (the active component in cannabis) and driving, we know that THC can affect driving even when there are no outward signs of impairment. We also know that THC is prevalent in road fatality statistics: over the last five years, from 2012 to 2016, 48 drivers and riders killed tested positive to THC either on its own or in combination with other drugs or alcohol. Of these 48 fatalities, 20 tested positive to THC alone (no other drugs or alcohol were present), and 16 of them were deemed to be responsible for the crash.

These statistics alone should indicate that the use of THC and driving is a problem, and we cannot afford to relax our laws at the moment in any way. While I am prepared to keep an open mind moving forward, however, and would be happy to explore an amendment of this kind in the future once the legal use of medicinal cannabis has been in place for some time, it needs to be in place for long enough to observe the effects on its user groups. I feel it is a risk I am not prepared to take at this point.

I am 100 per cent in support of the use and legalisation of the use of medicinal cannabis and I have spoken in support of this in this place. I am just sceptical about our ability to determine whether it is the use of medicinal cannabis or recreational cannabis that is giving us THC levels in the blood. It also worries me about being able to determine the levels. I am very happy that doors are opening up for these people, who are often in very hopeless situations, with medical conditions that will benefit from the use of medicinal cannabis.

I do not think it is beneficial to cause complication to that or to this piece of legislation and potentially see misuse through sanctioned exemptions. For those reasons, I cannot support the amended proposal. I am going to urge the government to invest in prevention and restorative programs, which I always advocate, targeting drug use and abuse. There are so many families hurting in our community as a consequence. Prevention is always better than cure, so education programs in our community and in our schools are a key to cultural change, but we cannot abandon those who have fallen into a cycle of abuse.

I am pleased that the recommendations of the recent state government Ice Taskforce are being followed up as a matter of urgency starting with the Stop the Hurt campaign, which is seeing a $3.6 million investment to boost the number of outpatient counselling appointments by 50 per cent and an increase in the number of rehabilitation beds in regional areas. It also includes an additional $1 million for covert police operations and half a million dollars for the further training of police dogs, which, I will put on record, I do not believe should be used in schools in the way the Liberal Party has pledged as an election policy. The campaign also puts $600,000 towards further education and drug prevention strategies throughout our community.

With those remarks, I wish to commend the previous minister for road safety in the other place, the Hon. Peter Malinauskas, who responded to community calls for this. He has done this in a really progressive and determined way. I also place on record my congratulations to the new police minister, Chris Picton, the member for Kaurna in this place. I also thank the members of the public and advocacy groups for ensuring that this challenging area of social policy is being addressed. I commend the bill to the house.

Mr GARDNER (Morialta) (18:41): I indicate that I am not the lead speaker for the opposition on this important bill, but I am pleased to join the debate at a time when I have the opportunity to debate against the points made by the member for Fisher, the parliamentary secretary, who has just provided what I would characterise as a 'both ways' contribution: she wants to have it both ways. She is in favour of medicinal cannabis and, in fact, she said she is in favour of the use of medicinal cannabis being allowed on the roads, but not now.

We also know that she is in favour of pill testing being provided to people who go to rave festivals. The technology is sufficient for the member for Fisher to argue that pill testing at rave festivals is safe so that you can take dangerous illicit drugs. You can put them through a test that will indicate to the person what is in them, what it is providing them, to the point where it is safe, where that is a better outcome than providing them with an unambiguous response, 'No, you can't take these illicit drugs. They are bad for you, they will kill you, they will change the way you behave in a way that is dangerous.'

Mr Odenwalder interjecting:

The DEPUTY SPEAKER: Order!

Mr GARDNER: That technology is apparently well advanced enough, but not the idea of medicinal cannabis that the member says she is in favour of, with inactive THC components, or at least THC that is not going to impede in this way. The member for Schubert will talk more about that. You cannot have it both ways. You cannot be as soft on drugs as you can get on the one hand and then claim that you are a champion of law and order and road safety on the other. It is not a straightforward philosophical position: it is an attempt to please everybody but, of course, you attempt to please everybody and you walk away from the principles you hold dear. I do not think for a second that the member for Fisher really, truly, in her heart, believes it.

She said that in the future she wants this legislation to pass in its current form. This amendment is one that she philosophically agrees with and, in the future, when she says that apparently the testing regime is going to improve, she would support it. It does not work that way. The member for Fisher identified that the Liberal Party's election commitment in relation to drug sniffing dogs in schools is something that she does not support and that police dogs, the beagles the police use in an environment to sniff out drugs, should not be going into schools. This is the parliamentary secretary for the same government that said that our policy was not necessary because this already happens in schools.

Ms Cook interjecting:

The DEPUTY SPEAKER: Order!

Mr GARDNER: Peter Malinauskas said that this already happens in schools, yet the member for Fisher argues that she does not want the dogs in schools.

Ms Cook interjecting:

The DEPUTY SPEAKER: Order!

Mr GARDNER: You cannot have it both ways. You cannot just try to appeal to whatever audience you are trying to speak to at the time: it does not work that way. You take a policy. You take a bill. You apply your principles to it and you consider it in accordance with your philosophy. If your philosophy says that community feedback is a relevant and valuable consideration, then you can look at it through that lens too, but you cannot tell one audience that you want pill testing at raves and you want to be able to tell kids that it is safe to take those drugs that have gone through that pill testing and tell others that there are not sufficient protections for us to be able to consider the amendment that was put by the Hon. Kelly Vincent.

You cannot say on the one hand that you do not want to have dogs going into schools to try to find drugs, but on the other hand be part of a government and defend the words of the former minister for police when he says, 'The Liberals' policy is unnecessary because we are already doing this. We already have dogs going into schools.' Seriously, it is beagles checking out school lockers occasionally to make sure that there is a positive drugs message being able to be presented to kids at schools.

Those schools that have gone through this—not so many recently, but certainly in previous years when schools have done this—had very positive outcomes. It has been a very positive opportunity for kids to be able to engage with police in a positive way. As one principal said to me, 'You know what? We found some drugs too.' That is good. We were able to get drugs out of those kids' locker rooms.

The member for Schubert and I went to a school recently where a principal told us that kids' parents gave them drugs to take to school to sell to their friends. This is a problem that needs to be addressed. It needs to be addressed seriously. It cannot be addressed by the 'have it both ways' approach of the parliamentary secretary. You cannot please everybody. Sometimes you have to make a call: is this the right decision or is this the wrong decision?

I think the bill we have before us has had some of those considerations put to it and I think that the government is trying to have it both ways. They are trying to say that they are in favour of medicinal cannabis, but they still want to try to appeal to a political approach that frankly is not in the best interests of the people of South Australia and it is one that they do not even believe in themselves.

Mr KNOLL (Schubert) (18:46): I rise to make a contribution on the Statutes Amendment (Drink and Drug Driving) Bill and indicate that I will be the lead speaker on this bill. From the outset, I would like to set a bit of a structure to the discussion that I would like to have. First, we need to identify the problem that exists and why it is that we are moving to make these decisions that we are making, then move on to the elements of the bill, then move on to some potential alternate approaches and then bring a bit more information into play in relation to some of the evidence around drug driving especially and how drugs affect our system.

I think this is a very emotive debate. I know this is extremely personal for many people. This is extremely personal for me, having witnessed the deleterious effects that drugs and alcohol abuse can have on our community and our loved ones, and so I am as committed as anybody to ensuring that this system works.

A debate has been raging, particularly in the last couple of months, around who is toughest on crime. It is a glib line that does not properly help us to achieve the aims that we set out to achieve. If our aim is merely to be tough on crime, to feel good and to go out there and one-up the next person so that we can all be tough and puff out our chests, what we are going to see is a worse set of outcomes than if we actually sit down and look rationally at the evidence and try, to the extent that we can, to take the emotion out of this debate and actually look at how we are going to improve outcomes.

It is much more important in my mind that, instead of being tough on crime, we actually get smart on crime and that, instead of being tough on drugs, we are actually smart on drugs. I was extremely proud to release a policy with the shadow minister for education. Maybe the enforcement components of the policy got a lot of mention, but it is a balance of enforcement, education and prevention and we need all of those three things to come together if we are going to change hearts and minds and change the behaviour of people in our community, especially on our roads, where their behaviour affects not only themselves but it potentially can affect other people.

So it is extremely important that we get this right, but I get frustrated when I see hyperbole out there being spoken. I get frustrated when I see the truth of what we are trying to achieve being misrepresented in the most simplistic and base of ways. There was one such interview yesterday where, while essentially trying to have a discussion on medical cannabis, it turned into, 'Do you want to let people smoke dope and drive?' That could not be farther from the truth of what we are seeking to achieve. It is why I want to use this speech tonight and tomorrow to put the facts on the table so that we can have a rational debate and get to the heart of what is right and wrong, rather than what looks good and what does not.

Why is it that we need to have reform in this area? Since the 1960s and 1970s, we have been working to reduce the level of road fatalities and serious injury on our roads, and we want to do that for the people themselves so that they can hang around to live long and fulfilling lives. We want to do it for their families because we want to make sure that they have their loved ones around and do not have to go through the heartache and pain of what happens when one of these incidents occurs.

Also, we want to do it so that our police officers do not have to continue to go to these crash scenes, so that our CFS volunteers, MFS personnel and SES volunteers do not have to go to these scenes and see the carnage and the awful images that I am sure would stay with officers and volunteers alike for life. When car accidents happen, they leave an indelible mark on the broader community. Some of them hit home more than others, and you only need to drive down roads and see the bunches of flowers and memorials on the side of the road to see the lasting impact that this has.

But we have had some success, especially in relation to drink and drug driving, where the statistics show us that 24 per cent of drivers and riders killed on SA roads tested positive to prescribed drugs. By that I mean THC (marijuana, cannabis), THC being the psychoactive ingredient; methamphetamine, whether that be speed, ice or crystal meth; or MDMA or more commonly known as ecstasy. If I look at the statistics provided in relation to alcohol-related fatalities and the number of drivers and riders killed testing positive to drugs, it shows that we are doing better.

In 2006, 30 people tested positive to alcohol who died on our roads. In 2016, that number was down to 10, and I think that speaks to the good work, the bipartisan work, that this parliament has done in making sure we have a regime in place that helps to reduce that behaviour. That goes to the Motor Accident Commission campaigns, that goes to the enforcement of the police and that goes to winning over the hearts and minds of the community, that this is not an appropriate thing to do.

Again, it is that holistic approach of education, enforcement and prevention which needs to all come together so that we can do it. But over the same period, the number testing positive to drugs who then subsequently die on our roads has remained relatively steady, in fact almost perfectly steady with 17 people in 2006 and 14 in 2016. We can see that there is more work that needs to be done. The good thing is that it is not increasing: it is decreasing. You would have to consider that this comes against a backdrop of an increasing population and an increasing amount of population on our roads, especially if we then add in the extra movements of trucks and the fact that we have more freight moving around on our roads.

We see that there is an overall reduction in relation to the amount of traffic we see on our roads. There is a problem when we look at the things we need to deal with. Certainly the government, the Motor Accident Commission, the Community Road Safety Fund and all these initiatives come together to say that we need to work towards getting to zero. We agree and commit to that, knowing that we may not always get there, but we cannot give up on trying to do so.

Some other more general statistics, whether that be studies around testing wastewater and sewage from various points around wastewater treatment plants in South Australia or federal studies looking into drugs that we are able to collect, take away and get off the streets, show that we have a problem in South Australia. Marijuana is certainly a problem, but the big problem we have in South Australia is ice. We had the second highest amount of ice seized and taken off our streets in recent years.

We have a problem dealing with this drug, and this drug is relatively new. It comes with a different set of consequences and a different set of challenges vis-a-vis some of the more traditional drugs that we would have seen before with heroin and cocaine, the use of which is small but steady and certainly still part of the community, but ice is the one that we need to get through to most. It is an issue for South Australia more so than for some other jurisdictions. Again, that is why we support moves to make changes in this area.

We agree with the government that there is a problem, we agree with the government that we need to do something in this area and we agree with the government on the vast majority of the bill that is brought before us. In fact, the bill that has come from the Legislative Council down to our house is a bill that I would love to see go into law in its entirety. As it stands now, it is a bill that both the Liberal Party and I would be happy to support and sail straight through. Unfortunately, given the series of amendments that have been moved, I do not think that is where we are headed. However, I think it is a major piece of work that will improve how we are able to tackle drink and drug driving on our roads.

This may be a bit of a theme: the bill contains within it increased enforcement measures and increased prevention measures. I think we need to get that balance right so that it is not just about being tough, it is also about being smart. The major change to the bill is to create a three-month licence disqualification for a first-time drug presence, and that offence is expiated.

The bill seeks to increase the minimum penalty of six months where somebody seeks to have their first drug-driving offence prosecuted. Essentially, it creates an element of risk for somebody who elects to go to court in relation to a drug-driving offence so that the person thinks twice, 'Is it better for me to just take the three months as it stands? Or, if I go to court and elect to be prosecuted, I know that I am look at a doubling of my licence disqualification.'

The bill increases the penalties for second and subsequent offences. For the second offence, the minimum disqualification period is one year, it is a two-year minimum for a third offence and for subsequent offences it is a minimum of three years. The Liberal Party supports those measures. The Liberal Party is in lock step with the government, especially in relation to second and subsequent offences. Some of the information I will talk about later shows that we need to get tougher, especially on repeat offenders, because the current system is not working in relation to those people.

We need to do more to send a clearer message to them. Where the message is still not getting through, we need to do what we can to take these people off the road. As I will explain later, once they are off the road, I think we need to do more to ensure they get the help that they need to turn their lives around so they can get off drugs or deal with their alcohol addiction and become fully functioning members of society.

The bill also creates a new offence of drink and drug driving with a child under 16 years. We have seen this in a number of areas, particularly around smoking in vehicles with children present. Again, this is something the Liberal Party supports. In essence, this is trying to get at the fact that when you have a child in your car and you are the parent or the guardian you have an increased responsibility to those children, and the offence should match that responsibility. I seek leave to continue my remarks.

Leave granted; debate adjourned.

At 18:59 the house adjourned until Thursday 27 September 2017 at 10:30.