Bills

Statutes Amendment (Drink and Drug Driving) Bill

Introduction and First Reading

The Hon. P. MALINAUSKAS (Minister for Police, Minister for Correctional Services, Minister for Emergency Services, Minister for Road Safety) (15:25): Obtained leave and introduced a bill for an act to amend the Harbors and Navigation Act 1993, the Motor Vehicles Act 1959, the Rail Safety National Law (South Australia) Act 2012 and the Road Traffic Act 1961. Read a first time.

Second Reading

The Hon. P. MALINAUSKAS (Minister for Police, Minister for Correctional Services, Minister for Emergency Services, Minister for Road Safety) (15:26): I move:

That this bill be now read a second time.

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. And the damage that impaired drivers do to themselves and others simply cannot be accepted by our community.

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 an average of 24 per cent of drivers and riders killed on South Australian roads tested positive to cannabis, methylamphetamine or ecstasy or a combination of these drugs. These drugs can 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.

The Statutes Amendment (Drink and Drug Driving) Bill 2017 amends the Road Traffic Act 1961, Motor Vehicles Act 1959, Harbors and Navigation Act 1993 and 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 the 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 chances in court if the penalties were the same. 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 period will be doubled in most cases. Again, the bill will also ensure 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 they remain sufficient in deterring people for not complying with legitimate directions from the police.

The bill introduces a new offence of drink and drug driving with a child under 16 in the vehicle. Driving children around with alcohol or drugs present in a driver's system puts these vulnerable passengers at greater risk of being involved in a crash, and that, of course, is completely unacceptable. They deserve to arrive at school safely. The new offence will apply where the driver's blood alcohol content is 0.08 or higher (that is a category 2 offence or 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 increases the penalty for driving unlicensed at the end of a disqualification period if the driver has not completed the required dependency assessment or has been assessed as dependent on alcohol or drugs.

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 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, vessel or crew member, or 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 a 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) will test positive under laboratory conditions. This is due to the lower level of illicit drug able to be detected in a laboratory compared to the current second-stage screening test at the roadside.

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 analysis. 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, which aids transparency for legal practitioners and the public.

Some prosecutions have failed due to the details of the drug and alcohol testing apparatus being challenged. 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.

At the heart of the bill is the object of keeping all South Australian road users safe. No road user should be subjected to their safety being compromised or put at risk by the actions of someone undertaking drug driving. We have seen too many road deaths that are a result of people driving while under the influence of drugs or alcohol.

As a community, we have substantially changed attitudes towards drink-driving. People's behaviours have improved regarding drink-driving. Our challenge is to now repeat that effort for drug driving. During Road Safety Week, it is appropriate that this parliament consider moves to toughen our stance regarding drug driving.

We should have a zero tolerance approach to those people caught drug driving, which is why the automatic licence disqualification for a first-time drug offence is absolutely necessary, along with other measures within the bill, particularly the measures that are aimed at protecting our children. No child being dropped off at school should be subject to being in a car with a parent or anybody else who is under the influence of drugs or alcohol. The bill seeks to send a very clear message to the community: this behaviour will not be tolerated. We commend the bill to the house. I seek leave to have the explanation of clauses inserted in Hansard without my reading it.

Leave granted.

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 amends section 79B to require the Registrar to give a person who applies for a licence following a period of disqualification for an offence against section 47(1a) (involving alcohol), 47B(1a), 47E(3a) or 47I(7) of the Road Traffic Act 1961 a direction to attend an assessment clinic for the purpose of determining whether or not the person is dependent on alcohol. It also requires the Registrar to give a person who applies for a licence following a period of disqualification for an offence against section 47(1a) (involving drugs), 47BA(1a), 47EAA(9a) or 47I(7) of the Road Traffic Act 1961 a direction to attend an assessment clinic for the purpose of determining whether or not the person is dependent on drugs.

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—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.

21—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.

22—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.

23—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.

24—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.

25—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.

26—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.

27—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.

28—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.

29—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).

30—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).

31—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.

32—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.

33—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.

Debate adjourned on motion of Hon. T.J. Stephens.