Bills

Statutes Amendment (Drink and Drug Driving) Bill

Second Reading

Adjourned debate on second reading.

(Continued from 20 June 2017.)

The Hon. P. MALINAUSKAS (Minister for Police, Minister for Correctional Services, Minister for Emergency Services, Minister for Road Safety) (15:26): I thank those members who have contributed to the debate on this bill. The initiatives in the bill are aimed at addressing the growing incidence of drug driving in our community. The statistics are concerning and it is incumbent upon us as legislators to send a strong message to those who are willing to risk their own lives and the lives of other innocent road users that drug driving will simply not be tolerated.

The bill introduces a three-month licence disqualification for a first drug-driving offence. The bill also increases the court imposed disqualification period for a first offence from a minimum of three months to six months, which will not be able to be reduced or mitigated in any way. A high court penalty is appropriate to deter those who would take their chances in court if the penalties were the same.

The bill increases the minimum court-imposed licence disqualification period for repeat drug-driving offences from six months to 12 months for a second offence, from one year to two years for a third offence and two years to three years for any subsequent offence. The bill also creates a new offence of high level drink or drug driving when a child under the age of 16 is in the vehicle. This new offence will require the driver to undergo 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.

Finally, the bill increases the penalty for driving unlicensed at the end of the disqualification period. For those who choose not to undergo a required dependency assessment, or drive after being found dependent, they will face an increased penalty of $5,000 or imprisonment for one year and disqualification from holding or obtaining a licence for not less than three years.

The Hon. Mr McLachlan has asked a number of questions on the bill and the government policy around drug driving, which I will seek to address now. The Hon. Mr McLachlan asked about the success of increased drug-driving disqualifications in other states and how this data is collected and measured. First and foremost, the state government is concerned with data collected in South Australia with respect to drug 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 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. In 2016, 30 per cent of drivers or riders killed tested positive for drugs. These statistics are obviously incredibly concerning.

Changing attitudes and behaviours around drug driving requires a multifaceted approach, involving a strong penalty regime, visible enforcement and dedicated education programs. It would be extremely difficult to ascertain which of these many factors has changed driving behaviour. However, we know we must have a dedicated focus on all components to ensure we achieve the change we are after.

Currently in South Australia an expiated drug-driving offence carries no disqualification period. In comparison, most other jurisdictions do carry a disqualification for a first drug-driving offence. Loss of licence is known to be a strong deterrent for road traffic offenders. Further to that, research in South Australia has found that increased penalties and the risk of being caught motivate people to change behaviour. Introducing a three-month disqualification for a first expiated drug-driving offence and increasing the disqualifications for repeat drug-driving offences is expected to be a strong deterrent.

The community rightly expects a strong government response to the incidence of drug driving. The Hon. Mr McLachlan has asked about education campaigns to accompany legislative changes. The Motor Accident Commission manages the state government's road safety campaigns in South Australia, including in drug driving. MAC will run a targeted drug-driving campaign to coincide with the introduction of new laws. For each of its education campaigns the Motor Accident Commission uses a third-party market research agency to evaluate the campaign against its objectives. This process will continue.

The Acting President has also asked about the sharing of information across government departments and the legislative authority, which will permit the sharing of this information. I am advised that information identifying offenders who have been convicted of or expiated an offence of drink-driving or drug driving with a child in the car will be provided to the Department for Child Protection for the purposes of their investigations into child safety. The information about offences will be provided regardless of whether a finding of drug or alcohol dependency is made.

In terms of the legislative authority, the Motor Vehicles Act allows information to be disclosed in accordance with guidelines prescribed by the regulations. The regulations will be amended to allow the Registrar of Motor Vehicles to disclose information to the Department for Child Protection that will identify offenders who have been convicted of or expiated an offence of drink or drug driving with a child in the car for the purposes of their investigations into child safety.

The Hon. Mr McLachlan has asked about training of SAPOL officers on appropriate handling to ensure the integrity of samples is maintained. I am advised that SAPOL officers presently undertake a one-day screening course and two-day oral fluid analysis course on the collection and handling of oral fluid samples. The training includes the requirements as described and outlined in part 3 of schedule 1 of the Road Traffic Act on oral fluid samples. This training will be ongoing.

The requirements include placing the sample oral fluid in approximately equal proportions into separate containers marked with an identification number distinguishing the sample from other samples of oral fluid and sealing the containers; ensuring each container contains a sufficient quantity of oral fluid to enable an analysis to be made of the presence of a prescribed drug; and to take such measures as are reasonably practicable in the circumstances to ensure that the sample is not adulterated and does not deteriorate so as to prevent a proper analysis of the presence of a prescribed drug in the oral fluid. I will seek advice from Forensic Science SA on their procedures and will provide this information to the honourable member.

The Hon. Mr McLachlan has asked about drug testing being limited to the three drugs prescribed, being THC, methylamphetamine and MDMA. There are a number of reasons why these are the three drugs tested for, including the availability of appropriate roadside screening technology, the drugs most prevalent in drivers killed or injured in casualty crashes and associated road safety benefit.

Analysis undertaken by the University of Adelaide Centre for Automotive Safety Research is that the three prescribed drugs currently tested for in South Australia is appropriate. This analysis is based on: the group of psychotic drugs that if used by drivers could possibly increase the risk of crashing; the effects of drugs on driving-related skills; the most relevant finding of epidemiological studies of the risk of crashing; the prevalence of different drugs in various Australian populations; and the prevalence of illegal drugs detected through random drug testing operations.

It is important to note that drivers impaired by drugs, either prescription or illicit, can be prosecuted for the existing offence of driving under the influence of an intoxicating liquid or drug. Current research suggests that other drugs such as cocaine or heroine are not prevalent in injured drivers' blood, unlike methylamphetamine for example, therefore the road safety benefit would not be sufficient to pursue the inclusion of these drugs in testing.

The Hon. Mr McLachlan has asked questions relating to SAPOL's roadside testing regime which I will now seek to address. A drug screening test conducted at the roadside costs $27 (ex GST). The revised program, as indicated in the bill, will incur a cost for an oral fluid collection of a person who is positive to a drug screening test. The cost is presently unknown. It is anticipated that Forensic Science SA will see an increase in samples for laboratory confirmation, which is predicted to be in the order of approximately $95,000 per annum.

The initial roadside test will continue to only detect the presence of the three drugs prescribed in the legislation. The roadside drug screening test indicates a positive or negative result for the presence of one or more of the prescribed drugs. It does not determine a level of a drug if one is present. Results received by SAPOL from Forensic Science SA on the analysis of the drug do not advise of a level of a drug present. It is reported that a prescribed drug is either detected or not detected.

The equipment that is used by SAPOL has cut-off levels for particular drugs or limits as to how low a concentration of a drug will go for the equipment to work. Cut-off levels are provided to ensure accuracy and the detection of a prescribed drug and to prevent cross-reactivity to other drugs. At this point in time, it is not possible to establish meaningful BAC-equivalent concentrations. A zero tolerance approach is therefore appropriate for the drugs currently tested.

CASR's research has reviewed international research on whether it is possible to establish concentration levels for different drugs that are the equivalent to those used for drink-driving. CASR advises that while research has been undertaken in other countries in an attempt to establish a reliable relationship between the concentration of the drug and the level of impairment, this has not been possible.

With respect to the Hon. Mr McLachlan's reference to critics of Australian drug-driving policy, the government's view on this is clear: the use of illicit substances is illegal. We know that these drugs have a range of effects on a person's physical and mental state that are incompatible with safe driving practices. Drugs affect a person's judgement and may result in dangerous driving behaviour if the drug driver feels impatient, aggressive or has a heightened sense of their own abilities.

In relation to the Hon. Mr McLachlan's question on whether there have been any cases in which a drug test has been found to be inaccurate or incorrect, all samples that result from a positive drug test are sent to Forensics SA for confirming analysis.

SAPOL would only commence a prosecution after the laboratory confirms that a drug is present. SAPOL's prosecution is based on the laboratory outcome, not on the initial screening test done by police. In relation to how different people may metabolise drugs, it is true that people with different metabolic rates, ages and general health status will tend to break drugs down within their systems at different rates. If two people consume the same amount of a drug, they will most likely have different concentrations of the drug in their system over time. If a drug is present, regardless of concentration, the result will be positive and an offence will be committed.

The screening devices used are able to detect THC for several hours after use. The exact time will vary depending on the amount and potency of the cannabis used and the individual's metabolism. Inactive THC residue in the body of a driver from use in previous days or weeks will not be detected. Methylamphetamine and MDMA may be detected for approximately 24 hours after use. Again, the exact time will vary depending on the size of the dose and other drugs taken at the same time, as well as the differences in the individual's metabolism.

Should a driver return a positive drug test on the roadside, SAPOL officers will issue a direction in writing to that person not to drive. The current time frames vary depending on the drug. A person who is positive to THC will receive a direction for five hours and a person who is positive to methylamphetamine or MDMA will receive a direction for 24 hours.

The Hon. Mr McLachlan has asked about whether the bill reflects recent advancements being made with respect to medical marijuana. A person who uses cannabis for medicinal purposes would need to ensure that the THC is no longer present in their system prior to driving. The screening devices used are able to detect THC for several hours after use. The exact time will vary depending on the amount and potency of the cannabis used and the individual's metabolism. Inactive THC residue in the body of a driver from use in previous days or weeks will not be detected.

In relation to prescription medications such as Valium, drivers impaired by drugs, prescription or illicit, can be prosecuted under section 47 of the act for the existing offence of driving under the influence of an intoxicating liquor or drug, commonly referred to as 'driving under the influence'. Benzodiazepines, in particular, can increase crash risk when used at recreational levels. At this time, roadside screening technology can measure presence but not concentration. When technology is sufficiently developed, it would be appropriate to consider including these drugs in roadside drug testing protocol at above therapeutic recreational levels.

The Hon. Mr McLachlan has asked for further statistics on the presence of drugs in those drivers and riders killed on South Australian roads. In the last five years, of the drivers and riders killed, 24 per cent tested positive for cannabis, methylamphetamine, MDMA or a combination of these drugs.

In a media release dated 11 May, I provided a figure of 22 per cent of drivers and riders killed having tested positive for drugs, which was based on the five-year average from 2011 to 2015. At that time, the 2016 result for road crash fatalities was not finalised. However, taking that into account, the five-year average is now 24 per cent. I seek leave to insert a table into Hansard showing the breakdown of drivers and riders killed and the percentage of those testing positive to THC, methylamphetamine and MDMA over the years 2012 to 2016.

Leave granted.

Table 1: Drivers and riders killed and the percent of those testing positive to THC, Methylamphetamine or MDMA, South Australia, 2012-16

The Hon. P. MALINAUSKAS: Of the 24 per cent, 9 per cent tested positive for cannabis, methylamphetamine or MDMA, or a combination of these drugs, and also tested positive to alcohol at a level of .05 or more. The remaining 15 per cent tested positive for cannabis, methylamphetamine or MDMA, or a combination, and had a zero level of alcohol or a level below 0.5. On average, eight driver or motorcycle rider fatalities per year had THC only in their system. A further four per year had methylamphetamine or MDMA in their system, and two per year had a combination of THC and methylamphetamine and/or MDMA.

Over the last decade, the trend of drivers and motorcyclists killed found with methylamphetamine or MDMA in their system has increased in number compared to those with THC. The number of drivers or riders killed who tested positive to THC has decreased on average by 3 per cent per year over the 10-year period from 2007 to 2016. In contrast, the number of drivers or riders killed who tested positive to methylamphetamine or MDMA has, on average, increased by 6 per cent per year over the same period.

Despite an overall decline in the road toll over the last decade, the number of drivers and riders killed on our roads who test positive to drugs has only marginally decreased. As a result, driver and rider fatalities with illicit drugs in their system have become a proportionately more significant part of the road toll. Since 2006, the number of drivers and riders killed who have tested positive to an illegal BAC has decreased by an average of 8.9 per cent for the year. The number testing positive to drugs has reduced by only 1.1 per cent. Each year, since 2014, the 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 relation to the Hon. Mr McLachlan's question on drug testing being more targeted than alcohol testing, a roadside drug test costs approximately 100 times more than the cost of a drink-driving test. Police officers have the discretion, when stopping a vehicle, to determine which test they will submit the driver to. Testing may be undertaken through static or mobile roadside testing, as well as in prescribed circumstances when someone has committed a driving offence or been involved in a crash.

Intelligence can also direct when and where testing occurs. For example, alcohol detections can be late in the evening or during the night, whereas drug detections can occur anywhere at any time due to the detection window of drugs being up 24 hours. Testing of drugs is undertaken across all locations, taking into consideration high-visibility policing and educating the public on road safety and prevention as well as detection. Traffic operations will direct testing, for example, on long weekends where there are high traffic volumes on roads and the risk of serious injury and fatal crashes is greater. Another example is around areas where there are vulnerable road users, such as school locations and entertainment precincts.

Most drug-driver testing is currently undertaken by specialist traffic police in the country and metro areas. Driver drug testing operates in the same way as random breath testing and will continue the same way into the future. In situations where the police officer is trained in the use of such equipment, they will be equipped with drug-testing devices.

The Hon. Mr McLachlan has asked for specific statistics on detections and convictions. In the five-year period from 1 January 2012 to 31 December 2016, there has been a total of 248,326 drivers screened for a prescribed drug. Of those, 21,516 drivers were found to be positive for a drug after laboratory analysis. Table 1, which I seek leave to insert into Hansard, provides a synopsis of the drugs or combinations detected.

Leave granted.

Synopsis of the drugs, or drug combinations detected.

The Hon. P. MALINAUSKAS: The figures are the confirmed positive results received from Forensic Science SA for roadside testing. The results do not include drivers who have submitted to a blood test pursuant to section 47I of the Road Traffic Act as a result of being injured in a crash and taken to hospital. In addition, 336 drivers during the same period were detected driving under the influence of a drug. The detections are spread across the state.

I note the Hon. Mr McLachlan has asked for figures on the geographical areas in which drivers have been caught drug driving. I am seeking these figures and will provide them to the member once they are received. We will also seek advice from the courts on conviction data and update the member. The Hon. Mr McLachlan has asked about gazetted drug dependency assessment clinics. I advised that the Corporate Health Group is currently the only clinic approved to provide dependency assessments. The Corporate Health Group (CHG) has a team of medical practitioners, qualified psychologists and nurses who conduct drug and alcohol dependency assessments so that the registrar can determine whether people are fit to drive.

Training was provided to CHG by Drug and Alcohol Services SA specialists, with ongoing training to CHG clinicians by their addiction medicine specialists. The assessments investigate both the physical and psychological symptoms of drug and alcohol dependency. Blood samples and a urine drug analysis are undertaken for a drug dependency assessment. The mental health symptoms of dependence are assessed using the criteria in the Diagnostic and Statistical Manual of Mental Disorders IV. This is a widely accepted guideline for the diagnosis of mental health disorders and is produced by the American Psychiatric Association and used widely in Australia for diagnostic criteria for mental health disorders.

The Department of Planning, Transport and Infrastructure intends to go out to market for assessment services within the next year. It is not possible to determine at this stage whether any more assessment clinics will be approved to provide the services. It will depend on whether there are suitable providers available who are willing to tender for the work. Previous market assessments have found that there were no other clinics able to provide this service in SA. There are few private addiction specialists in South Australia, with most working for the government.

CHG has indicated that it can handle in a timely manner the expected increase in demand for drug and alcohol dependency assessments. The average waiting time for drug and alcohol dependency assessments is between four and six weeks. CHG has advised that they ensure that the waiting time remains within these limits.

Moving on to the questions raised by the Hon. Ms Kelly Vincent, I thank the honourable member for her questions in relation to the ability of current tests to ascertain which drug is causing a positive test result. Currently, both roadside drug testing and forensic results for road crash fatalities can distinguish between the three types of prescribed drugs, being cannabis, methamphetamine and MDMA, in a person's system and are recorded by drug type accordingly.

Of the 66 drivers or riders killed during the period of 2012 to 2016 who tested positive to drugs, 30 per cent tested positive to THC only, 21 per cent tested positive to methamphetamine only and the remaining 49 per cent had a combination of these drugs and also, potentially, a blood alcohol content or MDMA. Drug results for serious injuries may be less reliable because of the volume of injuries and the availability of results to SA police. New reporting procedures implemented by SAPOL in late 2016 will improve the reliability of drug results for road crash injuries into the future.

In summing up, the initiatives in this bill will act as a significant deterrent to those considering engaging in the reckless behaviour of drug driving. As a community, we must not accept this behaviour. While we have had considerable success in changing community attitudes towards drink-driving, our task is now to replicate this with drug driving. I commend the bill to members.

Bill read a second time.