Police (Drug Testing) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 27 September 2017.)

Mr KNOLL (Schubert) (21:05): I rise to indicate that I will be the lead speaker and make a contribution to the Police (Drug Testing) Amendment Bill to say that the opposition will be supporting this bill. The Police (Drug Testing) Amendment Bill 2017 proposes the following changes: it changes the definition of 'drug screening test' and provides a new definition of 'oral fluid analysis', allows any drug that is listed in the Controlled Substances Act 1984 to be tested for and allows for police cadets, those applying to be police cadets, and police officers to be required to submit to drug screening tests.

I think this is the manifestation of a very long process that it has taken to look at how we drug test police. We know that our police work in very difficult, high-stress and high-risk environments, and it is extremely important that they have the clearest head possible as the do that. That is why we need to make sure that they, as with so many other professions, are subject to a drug testing regime.

Essentially, what we are seeking to do in practice is, by moving away from a prescribed number of drugs and moving towards all drugs that are listed in the Controlled Substances Act 1984, we are broadening the scope of what drugs can be tested for. We understand from the second reading explanation that, initially, cocaine and heroin will be included, alongside what I am presuming is the current regime of cannabis, MDMA and amphetamines. This is something that we certainly support.

Our police have a special place in our community. They are the ones who carry guns as they go out and about and do their work. They are the ones who go into difficult situations. It is not only important for the police officers, but we must also carry out our duty of care to them to make sure that they are looking after themselves when they are on duty. It is also important for their fellow officers and also the people they come into contact with, who would be put at greater risk if a police officer was taking drugs whilst on duty.

We have been discussing shoot-to-kill laws publicly for the last couple of months, and we have been talking about the very finite and fine judgements that we ask our police to make in very difficult situations. We are asking them to choose between life and death, and to keep as many people alive, and how to best do that in a difficult, dangerous and violent confrontational situation. We need them to be of clear and sound mind, and so a drug-testing regime that helps to ensure that to the greatest extent possible is extremely important.

This is supported by the Police Association of South Australia. The minister and I had the pleasure of sitting down and listening to our respective leaders give a contribution at their conference the other day. PASA wrote to Commissioner Stevens on 13 December last year, saying:

I refer to your letter of 6 December 2016 where you seek consideration and support from PASA to extend the range of controlled drugs which can be tested for through workplace drug testing in circumstances relating to critical incidents and high risk driving. You advised that SAPOL's current testing regime does not test for drugs such as heron or cocaine.

The association agrees that this is an unacceptable situation. We are aware that the Police Act and Regulations provides for workplace testing of police officer and cadets to include testing for a substance that is a controlled drug under the Controlled Substances Act 1984. Therefore, your advice that you seek to test for heroin and cocaine is in keeping with the Police Act and Regulations.

At its most recent meeting on Thursday the 8th of December, the Police Association's committee of management was in unanimous agreement that this should occur and we are supportive of SAPOL's position in that regard.

The wording of that letter suggests that there was a suggestion or a presumption that the current act as it stood last year was sufficient to allow for that, but that potentially, subsequent to that, it has been discovered that we need to have a legislative amendment to give effect to that, and that is something that I will be asking for in committee. At the briefing, we asked for a number of questions and answers, but I think they misunderstood the question, so we will get to that in a minute.

The question we really want answered is: what drugs are the police currently tested for? Is it the three that we use for roadside testing currently? Is that what police are being tested for? Essentially, we are seeking to understand the delay to this, given that the Police Association agreed to this in December last year. Is it the fact that the government did not think they needed a legislative change? We also want to tease out a little bit where this drug testing is actually going to take place. Are we talking still just about after high-risk incidents and driving, as is stated in the PASA letter, or is there some suggestion that we are going to move to a random drug testing regime for police?

There are still a number of questions in relation to this, but drug testing in some form or another is very much part of the vast majority of private sector workplaces, certainly for those in more high-risk industries like manufacturing, for those working with dangerous tools or for those who use our roads in the course of their work. Random drug testing is a commonly used tool because businesses have an obligation: they have a duty of care, as a person conducting a business or undertaking, to provide that duty of care to workers and co-workers.

That is a long-established principle and it is something that was enhanced in the 2012 work health and safety legislation changes. Extending that obligation to what would be considered one of the most high-risk occupations in police is extremely sensible. We look forward to supporting the bill and gently teasing out in committee those few questions that we have.

Ms CHAPMAN (Bragg—Deputy Leader of the Opposition) (21:12): I rise to speak on the Police (Drug Testing) Amendment Bill 2017 and, as indicated by our shadow minister for police, we will be supporting this legislation, but we do require some further answers. I acknowledge that the representatives from the investigation unit with SAPOL, Mr Tim Curtis and Mr Graham Goodwin, provided a briefing to us in respect to the current operational models for the testing of police officers in the workplace. I think it is fair to say that, with the advance of the testing regimes, it is obviously important that we update the legislation.

I was surprised to learn that there are quite a number of investigators in the unit in SAPOL who have the responsibility to deal with the investigation and referral for disciplinary and/or prosecution of criminal behaviour of police officers and, generally, misconduct. However, drug testing is a matter that I think has been late coming.

Not only do members of SAPOL undertake high-risk duties for and on behalf of those of us who are protected by their responsibilities, but additionally they have access to firearms and have responsibility from time to time to be in situations where there is risky driving (speed chases and the like), and also where the nature of their investigative and surveillance work can result in death or injury to others if they are not in a position to be clear of any impediment that affects their capacity to make calm and careful decisions.

I have always been a little surprised at the limits in respect to drug testing—that is, the nature of the drugs that are able to be tested—have been so restrictive. Frankly, I had always assumed that heroin and cannabis were already drugs that could be tested. I have learned only recently that in fact the restriction on drugs to be tested has been the subject of the enterprise bargaining agreement between the police union—that is, the Police Association referred to by my colleague—and the government. A softening of that requirement, in respect of the police union's log of claims as such late last year, has resulted in an agreement being reached to amend the agreement and allow for these two drugs to be tested.

Why am I concerned? I am concerned for two reasons. One is that they have not been included in the past when clearly they are drugs which are not only illegal but have an adverse effect on the consumer for the purpose of their capacity to undertake their duties and, secondly, that the government have taken since late last year until late September to introduce this bill and actually bring it about. I think it is a shameful and irresponsible delay on behalf of the government. Possibly they needed to activate the change of ministry but, frankly, that is no excuse because they have introduced all sorts of other legislation relating to police powers, many of which I debated in this house, yet this has been an act of tardiness at the very least on behalf of the government, which I think is unacceptable.

The provision is to be that the drugs now available to be tested have first to be identified in the Controlled Substances Act. I think that is a reasonable precursor to the obligation to submit to the test, but it can be added to via prescription. I see that as a reasonable position to take but, as I said, the delay in this situation has been unacceptable, and we need some explanation from the government as to why there has been such a delay.

Other personnel in the workplace, where there is any risk—quite reasonably, the proprietors, employers or corporate company directors in a mining situation—negotiate with their workforce and obviously bring in their representative, if they are represented by a union, to canvass issues of occupational health and safety, including the safety of others in the workplace. In industries such as that, this has been expansive in the number of drugs that can be tested. It has been mandatory. It has been the basis upon which there is to be random testing. It has been the basis upon which to automatically and immediately exclude someone who breaches, or is found to be positive with illicit drugs, remove them from the site of the mine and dismiss them.

That is how serious some sectors of the private industry view it, where their workforce is either using equipment which is potentially dangerous if operated by someone under the influence of drugs or alcohol and, of course, potentially dangerous to other co-workers. It is an unacceptable risk, and I find it extraordinary that representatives for the police and/or the government have failed to recognise the very serious risk not just to the public but to other members of the police force with whom they may be on operational duty. Nevertheless, it is here and obviously we welcome it finally coming to pass.

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) (21:20): I appreciate the comments from the two members opposite who spoke during this debate. As we said in the second reading explanation, this is not a complex bill, this is a relatively straightforward bill. We think it is sensible and we think it deserves support, and we appreciate the support from the opposition and we are happy to go through any questions that they may have. As was mentioned, we have facilitated a briefing to them from South Australia Police.

I should note that in summing up the bill we in the government have tremendous respect for our police. We are very lucky in South Australia to have a very well-respected and highly professional police force, and it is something that helps keep our community safe and the respect of the police is a very important factor in terms of our sense of community that we have as a state. The fact that our police are professional in how they do their duties and are very willing, in the circumstances as described by the act and policy, to subject themselves to these sorts of tests is commendable and the addition of these new provisions will only help to further enhance the respect and the trust that the South Australian community has in our police force. I commend the bill to the house.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

Mr KNOLL: Having now reread this bill a couple of times, I cannot see where we are introducing the words 'Controlled Substances Act 1984' anywhere. Essentially, do you have the powers already to be able to test for cocaine and heroin?

The Hon. C.J. PICTON: No. I am advised that the restriction in the regulations associated with this restricts it to the three drugs that have been talked about and not to cocaine or other drugs we are looking to extend this to.

Mr KNOLL: So essentially you will need to change the regulations to be able to test for cocaine and heroin?

The Hon. C.J. PICTON: This does change what was addressed in the regulations. We also needed to bring in the bill for some of the equipment changes that are detailed in there as well. We have done that through bringing it to the house, rather than just a regulation change that might have been the case had it been just that change that needed to occur.

Mr KNOLL: Just to clarify for the record, cocaine and heroin are currently being included; before that it was MDA, THC and methamphetamine?

The Hon. C.J. PICTON: That is correct.

Mr KNOLL: Am I correct in assuming that it is only where police officers undertake to drive on roads and after high-risk incidents that this drug testing will occur, or is there any sort of random testing regime?

The Hon. C.J. PICTON: As I understand, the current policy in terms of the times and situations in which testing might occur is not changing. The member has outlined a number of those situations under which the current policy would apply. I also understand testing occurs if there is deemed to be suspicion that substances have been used or in terms of our cadets as well, all of which are detailed in the current policy and none of which is proposed to be changed through this bill.

Mr KNOLL: Is there any random component or, indeed, pre-employment or cadet component to the drug-testing regime?

The Hon. C.J. PICTON: As I mentioned, our cadets are subject to testing, but in terms of sworn officers, it is in the situations in which the member has outlined in terms of where they undertake particular tasks or if there is particular risk raised about a particular person. There is not a regime of random testing.

Ms CHAPMAN: Can I clarify this question of the policy arrangements as to how and when this is to occur? Is that currently still in the enterprise bargaining agreement or is there some policy document that outlines the guidelines upon which drug testing of police officers takes place?

The Hon. C.J. PICTON: I understand, deputy leader, that it was originally in the enterprise bargaining agreement and then subsequently has formed part of the police's general orders. If there was to be a change, then obviously that would be something that would be subject to some negotiation with the Police Association. There is no proposal for that to change and the place in which it sits is in terms of the general orders.

Ms CHAPMAN: When did it transfer from the EB to the general orders?

The Hon. C.J. PICTON: I am advised that it moved into the general orders after the previous legislation from 2014.

Ms CHAPMAN: Why did it move from the EB to the general orders in 2014?

The Hon. C.J. PICTON: I am advised that the EB allowed and was an agreement for the introduction of the legislation. The legislation was introduced, was passed and then the EB component had served its purpose, and then it moved into the general orders of the police. If there are further questions about the sequencing of all of that, I am happy to take that on notice and get further information if required.

Ms CHAPMAN: I am just trying to ascertain what legislation passed in 2014.

The Hon. C.J. PICTON: The legislation from 2014 was for the testing of police officers for the three drugs that we have previously discussed. That legislation established the ability for the testing to occur. Subsequent to that legislation passing, it then formed part of the general orders in terms of the situations and circumstances in which that testing would occur.

Ms CHAPMAN: So where you have made reference in the second reading that part 6, division 2 of the Police Act 1998 provides for drug and alcohol testing of police officers, that was in 2014?

The Hon. C.J. PICTON: The deputy leader is spot on.

Ms CHAPMAN: Do I take it that the orders that are now the prevailing regime upon which testing is done are not public?

The Hon. C.J. PICTON: I am advised that the general orders are public.

Ms CHAPMAN: Do they set out the guidelines and the circumstances in which drug testing is to occur?

The Hon. C.J. PICTON: That is what I am advised. I am happy to get further information on that if required.

Ms CHAPMAN: In the current circumstances and as a matter of course, if there is an incident where there is some concern raised about the conduct of a police officer, or if somebody gets killed in a siege or a car chase or something of the like, it is automatic that the police officers at the scene, if I could be as general as that, are tested, and there is some assessment made to ensure that they are all drug free and presumably alcohol free during that operation; is that the case?

The Hon. C.J. PICTON: I am advised that that is correct again. The deputy leader is once again on the money.

Ms CHAPMAN: In circumstances other than that, namely, where there is some suspicion that someone maybe taking drugs, as I understand from what you said earlier that is the other circumstance which might result in a test being sought and obtained from the relevant officer?

The Hon. C.J. PICTON: It is almost embarrassing for me to say that the deputy leader again is on the right path with her question.

Ms CHAPMAN: How many people in the last year—police officers or cadets or whoever this is to apply to—have been tested on the basis of reasonable suspicion as distinct from the former circumstance?

The Hon. C.J. PICTON: We will have to take the exact figure on notice. I am happy to get back to the deputy leader on that.

Ms CHAPMAN: Are there any occasions where there has been the testing of a police officer in the last year and, if not, when did it last occur where there had been a random assessment of a police officer or officers to test whether they had drugs in their system?

The Hon. C.J. PICTON: I am advised that there has not in the circumstances which the deputy leader described, but we will double-check, and I am happy to get back to the deputy leader.

Ms CHAPMAN: Is it a part of the protocol or the order or the previous EB agreement that there is not to be random testing unless there is reasonable suspicion?

The Hon. C.J. PICTON: We are getting into the situation where I cannot quite comment in terms of what was envisaged back when the EB agreement was designed. Obviously, there was an agreement back then in terms of the way in which drug testing would be introduced. It was introduced, it was passed by this parliament, and it forms part of the general orders.

Those general orders, as I understand it, are generally agreed upon. We are not proposing to change those general orders through this process in terms of the circumstances in which drugs would be tested from the introduction of this bill, and so I have to answer that it generally is agreed by all. In terms of whether the specifics of that came about from the original enterprise bargaining agreement or not is something we would have to check.

Ms CHAPMAN: Sorry, perhaps I was not clear. I was not asking you to necessarily identify where its origin was. I just want to know that, in whatever the current regime is, which I presume to be the orders that have been described, there is no provision for random testing of police officers; is that right?

The Hon. C.J. PICTON: Correct.

Ms CHAPMAN: In the future, is there any intention on behalf of the government to allow for random testing of police officers?

The Hon. C.J. PICTON: There is no proposal to change the general orders from the circumstances in which they are currently applying. This bill is merely drafted on the technology involved and the particular drugs that would be tested for. The circumstances are not subject to any proposal from the government.

Ms CHAPMAN: I appreciate that, minister, but in your second reading you make the point that SAPOL has advised of the need for legislation to allow testing for a broader range of drugs. That is fine; they can inform you of that on the basis, I assume, that they have consented to this being a necessary approach and that this is what is to apply. They have apparently informed you, as you told the parliament, that they need legislation to do that. Are you aware of the Police Association's view on random testing?

The Hon. C.J. PICTON: That is not something that I have discussed with them, and I cannot speak on their behalf.

Ms CHAPMAN: If we are to have random testing in the police force, is it something that your government would only do if they had the agreement of the Police Association?

The Hon. C.J. PICTON: I think we are getting into hypotheticals in terms of being quite outside the proposal of this legislation. It is not something that the government is proposing. In terms of what steps the government would undertake in a hypothetical situation in which they were going to change things, I really do not want to go down the path of commenting on such hypotheticals.

Ms CHAPMAN: We have not seen the orders, minister. I think I understand what the current regime is and that it has come with the blessing, approval or acceptance—whichever category you want to put it in—of the Police Association, but has the government presented any proposal to have random testing?

The Hon. C.J. PICTON: I am advised that the commissioner has not put anything forward on that front and, to the best of my knowledge, no-one in the government has either.

Ms CHAPMAN: In the discussions you have had with the Police Association, have they at any time indicated that they would not agree to random testing?

The Hon. C.J. PICTON: I refer to my previous answer when I said that this is not something that has been the subject of discussions between me and the Police Association. I can only refer back to the bill that we are actually dealing with. I can say that I have discussed this bill with the Police Association, and they are supportive of it.

Ms CHAPMAN: Is there anything else that the Police Association has proposed in respect of police testing that you have not initiated by either this legislation or the proposed regulation?

The Hon. C.J. PICTON: Not to my knowledge.

Clause passed.

Clauses 2 and 3 passed.

Clause 4.

Mr KNOLL: Is what we are doing here essentially bringing this piece of legislation up to date with what we will do in the drink and drug driving bill?

The Hon. C.J. PICTON: Yes.

Clause passed.

Remaining clauses (5 and 6) and title passed.

Bill reported without amendment.

Third 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) (21:38): I move:

That this bill be now read a third time.

Bill read a third time and passed.