Bills

Statutes Amendment (Drink and Drug Driving) Bill

Committee Stage

In committee.

(Continued from 4 July 2017.)

Clause 1.

The Hon. A.L. McLACHLAN: To assist you, Mr Chair, and the members of the chamber, there are three sets of amendments filed in my name. Today, in committee, I will only be pursuing amendments in set No. 3. The third set is the refined model.

The CHAIR: The Hon. Mr Brokenshire, you have three sets as well. Which ones are you pursuing?

The Hon. R.L. BROKENSHIRE: I advise the council that amendment No. 1 [Broke-3], filed today, is the only amendment that I am moving today. Having had discussions with our Minister for Police, I am withdrawing the rest.

Clause passed.

Clauses 2 to 9 passed.

Clause 10.

The Hon. P. MALINAUSKAS: I move:

Amendment No 1 [Police–1]—

Page 8, lines 10 and 11 [Clause 10(1), inserted subsection (1)]—

Delete 'attend an assessment clinic for the purpose of submitting to an examination' and substitute:

submit to an examination by an approved assessment provider

The government is simply aiming here to accommodate the concern on behalf of some members in the chamber that there may have been too great a restriction on the capacity for a person seeking a drug dependency assessment being able to access one assessment provider, so is also now providing for a registered health practitioner, who has been registered under the Health Practitioner Regulation National Law and has the requisite skills associated with addiction medicine. I believe this amendment will provide greater flexibility, which I believe some members of the chamber were looking for.

The Hon. A.L. McLACHLAN: We will oppose the amendment but not the proposal by the government. We have incorporated the language of the government in my amendment, which I will move, amendment No.1, McLachlan–3, so that the government's intent survives, should this amendment fail. We have a subsequent amendment, which I will address in more detail, where we have an additional provision, not just an examination by an approved assessment provider, but also the registrar can ask for further evidence, in particular that the individual has gone to a prescribed alcohol dependency treatment.

The debate here in relation to alcohol and drugs, because the provisions are mirrored for alcohol and drugs, is that, in addition to the registrar seeking an approved assessment provider, there is also the option for the registrar under our amendments to receive evidence of a prescribed alcohol dependency treatment program.

The philosophy behind this is that we feel that there needs to be in these provisions some incentive to go through a treatment program. We still think the register has the ability to exercise discretion, reject or accept. I am happy to answer questions on the subsequent amendment, because members need to understand that, in the subsequent amendment by the Liberal Party to decide what you want to do with the government's amendment, we are incorporating their language, but if you like our amendment or wish to vote for it you will have to oppose the government's amendment.

The Hon. P. MALINAUSKAS: This may be an opportune time to respond why the government is concerned around the McLachlan proposition. This is a really important point for the chamber to understand. The intention of the McLachlan amendments is undoubtedly good and, as I have stated previously in this place, I share a desire to use someone being caught committing a drug driving offence as an opportunity to shoehorn them into a treatment exercise, but the fundamental objective of this exercise is to protect road users, to improve road safety, to ensure that those people who have their licence are not suffering from an alcohol or drug addiction.

The risk with the McLachlan amendment is that someone who was suffering from an addiction might get access to treatment, but then they fail in that treatment to deliver the desired outcome in terms of concluding their addiction. So just getting treatment does not guarantee that your addiction no longer exists. One could go to a registrar and say, 'Look, I undertook all this great treatment over here,' but they still suffer an addiction. The drug dependency assessment is specifically orientated to ensure that that person no longer suffers from an addiction, and of course that should require the registrar to satisfy themselves that that addiction no longer exists, not just the fact that they undertook treatment.

The chamber should be very clear—and this is a point the government will continue to make publicly, I think, in the event that the McLachlan amendment succeeds—that we would have created a risk here. We would have created a risk if the McLachlan amendment succeeds that someone gets access to treatment, which is to be applauded and congratulated and encouraged, but their treatment does not deliver the desired outcome, and they end up getting a licence while still suffering an addiction and then, of course, an accident could ensue.

We would encourage the chamber to support the government amendment, which aims to address the issue of greater flexibility in terms of getting the assessment done, but vote down the McLachlan amendment to mitigate the likelihood of a tragic accident occurring as a result of someone who is suffering an addiction getting their licence back.

The Hon. S.G. WADE: Is it the government's understanding that addiction medicine suggests that addictions can be cured or that addictions stay with you and need to be managed?

The Hon. P. MALINAUSKAS: I am not going to sit here and try to pretend that I am an addiction specialist or a doctor. All I care about, and all this chamber should care about, is that people who get their licence back after committing a repeat drug-driving offence are not suffering an addiction any longer in the eyes of an expert who can make that assessment. That is what I care about, and that is the question before this chamber.

The Hon. M.C. PARNELL: I think the minister's exasperated tone does not really reflect the decision we have before us because, when we look at the Liberal amendment, the registrar needs to be satisfied of two things—not only that the applicant has undertaken a sufficient amount of appropriate treatment for dependency on alcohol but also that they are no longer dependent on alcohol. In some ways, it is a tougher test under the Liberal amendment.

If we go back to first principles—and I am not going to re-agitate what we did when we debated clause 1 the other day—the issue is that these people have come to the attention of the authorities. The approach the government is taking is what I call a silo approach. They are saying, 'We only care about a narrow range of things. Do they get their licence back? What is the test for getting the licence back?' Whether or not they recover is of no great interest to the government provided they do not get their licence back because that is all we are interested in. It is a narrow silo approach.

The approach that originally the Hon. John Darley brought up—and I think the Liberals have adopted it, and certainly the Greens are sympathetic to it as well—is to say, 'Well, actually, no. We can do more for these people. We can steer people in the right direction.' Sure, we have heard that 'You can lead a horse to water, but you can't make it drink.' People who are unwilling to change and are unwilling to embrace therapies or treatments that might help them, if they do not want to, it might not happen but they are not going to get their licence back either. We are not debating a provision that says, 'Just turn up, do the course, and you will get your licence back.' It does not work like that.

The other point I would make is that it is a fundamental flaw in the whole regime where the protective test that we are looking at is in relation to impairment. Are you impaired in driving? I am not talking about this issue of drug tests versus alcohol tests because we have already established that there is no threshold for drugs. It is simply the case that, if it is detected, there is a presumption that you are impaired and you should not drive. That is just how the law works. There is not a .05 for cannabis or a .05 for ice: if it is detected, then that is it. There is a threshold for alcohol.

The big disconnect in this whole legislation—and we are perpetuating it with these amendments—is that the reference is in relation to dependence, and dependence does not equal impairment. People might say that that is just semantic. If someone is an alcoholic, then probably they are impaired sufficiently to not be suitable for driving. That is probably the case but not necessarily. I use the old Carlton United slogan: 'I allus has wan at eleven.' You might have someone who is dependent because they have to have their one beer a day.

You might say that I am living in some parallel universe and that, if you are an alcoholic, you are not an alcoholic having one beer a day. 'Dependent versus impairment' is a problem with the way these laws are drafted. Nevertheless, to cut to the chase, the Liberal amendments have incorporated the concept that the minister said he is trying to fix, and that is that the person in Mount Gambier does not have to make their way to a monopoly single provider in Adelaide, that there will now be other options for people to go to, and I think that is good.

The Liberals have incorporated that in their amendment but they have not lost sight of the other treatment options as well. When weighing the two things up, I think the Hon. Andrew McLachlan is right. The Greens will be opposing the government's amendment and will be accepting the Liberal Party's amendment, and I think there is a great deal of overlap between them.

The Hon. P. MALINAUSKAS: Maybe if I ask a question of the Hon. Mr McLachlan about his amendment so as to demonstrate the government's concern about the proposition. My reading of the McLachlan amendment is that it means that someone who needs to undertake a drug dependency assessment will now have the capacity to use an exercise in getting treatment as a vehicle or mechanism to get their licence back (as distinct from having a drug dependency assessment), provided they can demonstrate to the registrar that they are no longer dependent on drugs. If that is a correct interpretation of amendment No. 3 [McLachlan-3], that is, that at clause 10, page 8, after line 37 we insert all those provisions—and the Hon. Mr Parnell was talking about 5(b)—

The Hon. M.C. Parnell: 4(b), in fact.

The Hon. P. MALINAUSKAS: Sure, okay, both—then the requirement upon the registrar is that they need to be able to make the assessment about whether or not someone is dependent on drugs. Assuming the registrar is not a clinical expert in terms of addiction, how do we expect the registrar to be able to make a determination about whether or not that person is still suffering an addiction?

The Hon. A.L. McLACHLAN: The minister has articulated the effect of the combination of the amendments correctly. We are leaving it to the registrar; you are correct. Your arguments regarding risk, I think, are not well founded. I think this has equal risk in the government amendments unamended by the Liberals because you still have the registrar. Under the government amendments, the registrar gets this report and just relies upon the report. In effect, it is no different. The treatment program will have to produce some sort of report to the registrar, if the registrar is happy. We have left the power with the registrar. He still must make an assessment, so it is a question of what satisfies the registrar.

The registrar might say, 'That treatment program that you went to is rubbish.' The registrar has an option of putting on the web page, 'I will only accept evidence from these five treatments that produce me a report at the end of it,' which is effectively the same as an assessment report. They might be easier to get into, but it ties treatment—it gives an option for treatment. It may well be that the registrar, in the first instance, decides he wants a drug dependency assessment and treatment report. So, the registrar can take almost a holistic approach and say, 'I want both.' We are providing the option. We are not increasing the risk. In fact, we are making it potentially possible for the registrar to make it harder for someone to regain their licence.

The Hon. P. MALINAUSKAS: I do not want to labour the point. I just, respectfully, completely disagree with the Hon. Mr McLachlan. I come back to the core objective here: the core objective is to make sure that we do not give a licence back to a repeat drug offender who is still suffering a dependency, that is, an addiction to drugs. That is our objective here. I assert, and the government asserts, that there is no better person to be able to make an assessment about whether or not someone is still suffering an addiction than someone who specialises in addiction, which is a different exercise to treatment. They are two completely different things.

By inserting a degree of subjectivity into this, which gives the registrar the capacity to do it, it means they may take a report from a treatment provider saying that their own treatment is successful. I think there is an inherent conflict with a treatment provider providing a treatment and saying, 'Yes, our treatment is successful,' as distinct from having a separate, more robust, more independent assessment about whether or not someone is still dependent. We think that test should be applied by someone who specialises in the area. Again, the amendment is full of good intent but we know that sometimes the path to hell is laid with good intent.

We do not want to do anything that precludes or prevents someone from getting access to treatment; we just want to make sure that when a repeat offender who has a history wants to get their licence back that they satisfy a test that demonstrates that they are no longer dependent. That assessment is not made by someone who has a conflict because they provided the treatment, but that assessment is made by someone who specialises in determining dependency or not.

The Hon. M.C. PARNELL: I think, with all due respect, the minister has missed the point. If we look at the Liberal amendment No. 3, it talks about the applicant having to satisfy the registrar that they are not dependent on alcohol. How do they satisfy the registrar? On the basis of the report of an approved assessment provider or such other evidence as the registrar may require. You are hanging on to that second part of it and saying that the registrar will not require an approved assessment provider, the registrar will take it on him or herself to accept some other lower standard of evidence.

I do not believe that necessarily follows. There is a clear path for the registrar. If I was a risk-averse registrar I would be looking at this legislation and saying, 'I need to go to an approved assessment provider,' in which case we are talking about a double whammy. They are going to do their treatment, there is going to be a report from that and the registrar is going to make them go to an approved assessment provider.

We are talking about people who are not complete free agents, operating in a vacuum and who will just make stuff up. There will become standards and protocols and things, just as the minister explained the other day. How long before you can do your test again? Three months—you clarified that, and thank you for the clarification. Where does that come from? Well, that comes from clinical advice. There is nothing in the act that says that you have to wait six months or three months before you can do the test again. It is just stuff that happens because we are in a professional environment and the professionals are doing their job properly.

I do not think that the sort of doom and gloom, worst-case scenario the minister has pointed out is at all likely. If I was the registrar I would be saying, 'I'm safe as houses if I go with an approved assessment provider and if I am going to go with someone else I am going to be damn sure that there is absolute quality in their assessment of this person's dependence on alcohol or drugs and, therefore, their suitability to drive a car.'

The Hon. P. MALINAUSKAS: This will be the last time I make a contribution on this. Again, I do not want to labour the point, although that is exactly what I am doing. I appreciate the Hon. Mr Parnell's position. For me, the government's amendment and position on this has little risk or mitigates the risk by necessitating, without question and without exception, that for someone to get their licence back they have to have passed the drug dependency assessment.

The Hon. Mr Parnell may well be right, that there is not an extraordinary risk associated with the McLachlan amendment passing. I am just saying that there is a greater risk than what is the case if we stick with the government's position, which is that the only way you get your licence back is if you pass the drug dependency assessment conducted by a clinician specialising in that area.

The Hon. A.L. McLACHLAN: I know I cannot persuade the minister but I am going to attempt to put the minister's mind at ease with goodwill. I do not think that the weighing up of the different risks is an appropriate paradigm to look at this. I think the risks are the same. We have repeat offenders with the drug dependency test, so they are not foolproof. What you are trying to debate with us is the quality of these tests and the quality of the programs. We do not know. This is simply—and I hesitate to say this because I am going to use an argument the Attorney-General uses in the other place—a framework piece of legislation and therefore does not bind the day-to-day operation, other than in a framework.

Therefore, it will still be in the hands of the registrar to make the decision. They carry risk now. The risk is with the individual that you appoint as registrar, as government. I suspect what will happen with this, over time, is that in the initial stages they will just go for the drug dependency test —the safe option—and, over time, as other market providers come in with types of treatment programs and assessments (perhaps combined) they will go with those. We are not buying them. If I can put the minister's mind at ease, I do not think we are increasing the risk. I do not think we are even measuring the different levels of risk. I do not even think we change it. I think the risk still exists.

In some correspondence you gave me or your staff prepared in short order to my question—and I should thank them whilst I am here, since I asked an enormous amount of questions—it said that about 608 drivers were repeat offenders in 2016. They may have gone through these drug dependency tests and offended again. Your system has risk. I do not think the system we are putting up has any more risk. It is just an option.

The Hon. R.L. BROKENSHIRE: Minister, just as a clarification, it was said in the chamber by one of our honourable colleagues that, under your amendments, if someone is a resident of Mount Gambier they may not be able to access any treatment in Mount Gambier. In other words, it was implied that they may have to travel a vast distance—e.g. even up to Adelaide.

Are you going to have a pool of people available with this expertise or are you going to instruct that, like some of the WorkCover situations, there are only two or three? My point is that I want it on the record that I would have thought there would be suitably qualified people in the Mount Gambier area to look after that person when it comes to the testing and assessments. I just want a bit of clarification.

The Hon. P. MALINAUSKAS: I am advised that it is a small field of people who have the capacity to conduct this incredibly stringent and robust test. I think what the government is seeking to do in the amendment that we are considering immediately is to expand the pool of people beyond what has been the case up until this point, which has just been the Corporate Health Group as the approved provider.

By opening it up, as is proposed under this amendment, to people approved as health practitioners under national regulation law who specialise in the area, we will expand the pool. I cannot comment definitively right now as to whether or not one of those people resides in the South-East, but they may very well. Nevertheless, with respect to this amendment, it does expand the scope, as distinct from diminishing it, which would increase the likelihood of someone being available in the South-East.

The Hon. A.L. McLACHLAN: To further assist the Hon. Robert Brokenshire, that wording—and the opposition supports the government's intent—is incorporated into the Liberal amendments. It is not a choice, on that issue, between the two amendments. We have used that wording in ours.

The committee divided on the amendment:

Ayes 10

Noes 11

Majority 1

Amendment thus negatived.

The Hon. A.L. McLACHLAN: I move:

Amendment No 1 [McLachlan–3]—

Page 8, line 12 [Clause 10(1), inserted subsection (1)]—After 'alcohol' insert:

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

Unless the honourable members have any questions, I think we have had the debate in relation to that.

The Hon. P. MALINAUSKAS: I am loath to go through the whole thing again. However, I want to understand something a bit further, particularly on the back of the remarks by the Hon. Mr Parnell, who refers to amendment No. 3 from the Hon. Mr McLachlan. It is worth pointing out that that section operates, as I understand it, separately to the amendment we are discussing now. In the case of both amendment Nos 1 and 2, they are, in the first instance, the requirements that will need to be met in order to be able to pass a dependency assessment.

I am happy to stand corrected, but I do not follow the argument of the Hon. Mr Parnell that the registrar needs to be satisfied that the dependency no longer exists. I will say that again: amendment No. 3 does not operate in the circumstances in which Nos 1 and 2 do. In the first instance, if a person loses their licence and, under the government's position without this amendment, has to complete a drug dependency assessment, and if these amendments are successful, they would only need to be able to demonstrate to the registrar that a dependency treatment program has been completed, as distinct from having to demonstrate the fact that they are no longer dependent, as is required under the next amendment that the Hon. Mr Parnell was referring to.

The Hon. M.C. PARNELL: It is not my amendment, but I might take the opportunity to get some advice.

The Hon. A.L. McLACHLAN: In response to the minister, this clause is designed, as I said, to put the power on the registrar. The registrar may determine whatever evidence the registrar may require. If you have a registrar who is risk adverse, as we discussed, they may go for a lesser treatment program. Again, it is all designed to put the burden on the registrar, and I accept that. It is our argument that the registrar will take the obligation seriously.

The Hon. P. MALINAUSKAS: Sure, but there is nothing in the McLachlan amendment No. 1 or No. 2 that requires the registrar to be satisfied that the dependency no longer exists, only that the dependency treatment program has been completed. They are two very different things.

The Hon. M.C. PARNELL: I can see it is a complex area, but I am still satisfied, using the language of the Hon. Mr McLachlan, that we have a framework, and, where the ultimate decision-maker is the registrar, the ultimate test is that the person is not dependent on alcohol. Whether you reach that conclusion through the successful completion of a prescribed alcohol dependency treatment program or some other mechanism, I think we are still in the same boat.

I accept what the honourable member said before. If we have 608 people who have had three or more drink-driving offences, presumably a fair chunk of them have gone through the current system, which is that you have to get an assessment, so they have either fooled the assessors or they have relapsed afterwards. That is clearly another option; they may have been on the wagon and then a year or two later they fall off again.

The risk that the minister was concerned about exists under all these scenarios. I think this is still robust enough. If there is some major inconsistency—legal inconsistency—that needs to be sorted, I am happy for the government and parliamentary counsel and others to look at it again, but I am satisfied that in a framework environment these amendments still stand up.

The Hon. P. MALINAUSKAS: Again, I think this creates a vaguety that does not currently exist in the legislation as currently composed. Inserting the Hon. Mr McLachlan's amendments, as well-intentioned as they are, provides scope for someone to determine or to exercise discretion about what constitutes a successfully completed alcohol dependency treatment program. Successfully completed might mean going through the program, but it might not mean adequately dealing with the addiction or dependency.

Again, the critical objective here is a road safety one, to make sure that people do not get their licences back if they are still suffering from a dependency. Going through a treatment program, as is outlined here, does not necessarily equate that you are no longer suffering a dependency. The way this is written, it explicitly provides the ability for the registrar to give someone their licence back on the basis that they have successfully completed a drug treatment program, whatever that means, without necessarily assuring themselves that they no longer suffer a dependency. I think that creates a risk.

The Hon. Mr Parnell and Mr McLachlan rightly point out that people in some instances get their licence back and still get done again for drug driving as repeat offenders. That is undoubtedly true. I do not have any statistics at hand in terms of exactly how many people are in that category, who have passed a drug dependency assessment and then reoffend, but the numbers are so large it is hard to conceive that there would not be people who do that. However, it is equally true that a lot of people who are repeat offenders or a lot of people who get behind the wheel of a car with drugs in their system die. And we are trying to reduce that number as best as we possibly can.

I fail to understand why the parliament would be increasing the scope of the capacity for people to get their licence back on the basis of one measure which is not as strong as ensuring that they have at least demonstrated that they no longer suffer a dependency.

The Hon. R.L. BROKENSHIRE: Just to start to get the ball rolling, the Australian Conservatives advise that they will not be supporting the opposition amendment and will be supporting the government.

The Hon. J.A. DARLEY: I will not be supporting the opposition's amendment.

The Hon. M.C. PARNELL: Just to make it really clear, I am on the record already saying I am supporting the opposition amendments.

The Hon. K.L. VINCENT: Just for clarity, the Dignity Party does support the opposition amendments.

Amendment carried.

The ACTING CHAIR (Hon. J.S.L. Dawkins): In relation to amendment No. 2 [Police–1], I understand the minister may not be proceeding with that, it being consequential?

The Hon. A.L. McLACHLAN: Perhaps I could assist? The opposition amendments are predicated on the movement of the government amendment No. 4, which contains definition provisions. So, we are opposing amendments Nos 1 to 3 [Police–1] but we are not opposing amendment No. 4 [Police–1], which has the definitions on which we intend to rely.

The ACTING CHAIR (Hon. J.S.L. Dawkins): My advice, minister, is that you probably will not proceed with amendments Nos 2 and 3 but that you would then proceed to amendment No. 4. They are all Police–1, and you have done No. 1. We are suggesting that you not proceed with Nos 2 and 3 of that set but that you move No. 4 of that set after Mr McLachlan.

The Hon. A.L. McLACHLAN: I move:

Amendment No 2 [McLachlan–3]—

Page 8, line 37 [Clause 10(1), inserted subsection (2)]—After 'drugs' insert:

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

This is identical to the previous amendment but refers to drugs.

Amendment carried.

The Hon. A.L. McLACHLAN: I move:

Amendment No 3 [McLachlan–3]—

Page 8, after line 37—Insert:

(1a) Section 79B(3)—delete 'The superintendent of an assessment clinic' and substitute:

An approved assessment provider

(1b) Section 79B(4) and (5)—delete subsections (4) and (5) and substitute:

(4) Subject to subsection (6), 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.

(5) 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.

(1c) Section 79B(6) and (7)—delete 'the superintendent of an assessment clinic' wherever occurring and substitute in each case 'an approved assessment provider'

This is the provision we have already debated.

Amendment carried.

The Hon. P. MALINAUSKAS: I move:

Amendment No 4 [Police–1]—

Page 8, lines 40 to 43 [Clause 10(2), inserted subsection (8)(a)]—Delete paragraph (a) and substitute:

(a) a reference to an approved assessment provider is a reference to—

(i) a person who—

(A) is registered under the Health Practitioner Regulation National Law to practice medicine as a specialist in addiction medicine; and

(B) is a Fellow of the Australasian Chapter of Addiction Medicine of the Royal Australasian College of Physicians; or

(ii) a person who—

(A) is registered under the Health Practitioner Regulation National Law to practice medicine as a specialist in psychiatry; and

(B) is a Fellow of the Royal Australian and New Zealand College of Psychiatrists; and

(C) holds a Certificate in Addiction Psychiatry; or

(iii) a person or body approved as an assessment provider for the purposes of this section by the Minister to whom the administration of the Health Care Act 2008 is committed.

Amendment carried.

The Hon. A.L. McLACHLAN: I move:

Amendment No 4 [McLachlan–3]—

Page 9, after line 16—Insert:

(9) For the purposes of this section, 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.

This is consequential, but amendment No. 5 is not.

The Hon. M.C. PARNELL: I accept it is consequential; we have had the debate. To try to give some comfort to some of the concerns the minister raised before, the test of whether someone has undertaken a sufficient amount of appropriate treatment is to be determined in accordance with the regulations, so the government holds the whip hand in being able to determine the level of rigour that is required.

I would expect that the government would not just say, 'A two-week course, one hour every Wednesday. Provided you turn up, that will be enough.' It will not be that: it will be something far more rigorous. The government does retain the ability to make sure that people who have unsatisfactorily completed these courses will not be getting their licence back.

Amendment carried; clause as amended passed.

Clauses 11 to 19 passed.

New clause 19A.

The Hon. K.L. VINCENT: I move:

Amendment No 1 [Vincent–1]—

Page 12, after line 34—Insert:

19A—Insertion of section 47AB

After section 47A insert:

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

(1) 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.

(2) In this section—

approved medical cannabis product has the meaning assigned to it by the regulations;

THC means delta-9-tetrahydrocannabinol.

This is a very simple amendment. It addresses the issue of medical cannabis, which is of course now a substance that we all know can be legally prescribed for medical use by certified medical practitioners. Yet there is still no exemption from licence disqualification if a person tests positive at a roadside drug test for THC, which is of course contained in cannabis, even if a legally qualified medical practitioner has certified that they are fit to drive while using that medical cannabis product.

Given that this is a legal substance now used for medical purposes, if a medical practitioner can prove that the person is safe to drive while using it, I think there is no reason not to allow that to occur. Principally, the amendment reads:

(1) 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.

So, I guess there are three facets to the amendment: first, you have to have a disability or medical condition that could be proven to be alleviated by the use of medical cannabis; secondly, you have to have a legally certified medical practitioner prove that you are safe to drive while using that product; and, thirdly, you have to be carrying the certificate proving that you are safe to drive using that legally certified product in your possession at the time.

Given that this parliament and the federal parliament has passed moves to allow the use of medical cannabis, I see no reason not to allow people to drive so they can get on with their lives and get the best out of this very important medical treatment.

The Hon. P. MALINAUSKAS: Again I thank the Hon. Ms Vincent for her efforts here. The Hon. Mr Parnell rightly pointed out earlier in debate that one of the challenges with testing for drugs is that we do not have a test like we do with alcohol regarding testing for impairment. We test for presence, and impairment is inferred from there. I neglected to mention earlier that one of the reasons for that is that my advice is that there is not a test anywhere to be able to test for impairment when it comes to cannabis or THC.

We do know that excessive levels of THC do cause impairment—that is a medically accepted fact. This is a difficult area because, while ideally our police would have devices that test for impairment, that test no longer exists. So we are left with the rather blunt instrument that we have currently. It is an unfortunate reality, but a reality that we have to operate within and deal with.

In that context, and acknowledging that, I have a question for the Hon. Ms Vincent, and that is this: let us say somebody is prescribed to use medical cannabis, and they are prescribed to use it in a particular way so as to prevent impairment, and on the basis of that advice the doctor issues a certificate as is being proposed here. But, then, the patient starts using the medical cannabis in a way that is not consistent with the doctor's instructions, and consequently in a way that is in excess of the doctor's instructions. That then consequently results in impairment. Hence, they get behind the wheel of a car and put everyone's lives at risk—

The ACTING CHAIR (Hon. J.S.L. Dawkins): Order! Minister, I think during question time the President asked you to not turn your back to the chair, and I would appreciate it too. I appreciate the fact that you are addressing the member, but it is good protocol to not turn your back on the chair.

The Hon. P. MALINAUSKAS: No problems. So, let's say they have the medical certificate, they have the drugs, but they do not follow the instructions of the medical officer. They consume the drugs in a way that is in excess of the prescribed amount, which consequently results in impairment. They then get behind the wheel of the car and put people's lives at risk. They then consequently get pulled over by a police officer, test positive for THC and present a certificate saying, 'It's all okay here, I'm allowed to do this,' despite the fact that they are suffering impairment and have been consuming the drugs in a way not consistent with their prescribed amount. How does the Hon. Ms Vincent see that circumstance operating under this provision?

The Hon. K.L. VINCENT: That is an important question, and if I might, I will just take a minute to get some advice.

The Hon. M.C. PARNELL: The honourable member will get advice, but I have thought about exactly that same issue. The question was put in the way you have put it: what if the person takes double the quantity that is prescribed? What if the person is prescribed a small amount and they then go and take another amount? The way it was put to me is that they are prescribed medicinal cannabis and then they go and smoke a joint.

It is a real-life question, but we have got to get this in perspective. If the person was impaired and the police officer formed the view that they were clearly impaired, then the approach that would be taken is exactly the same approach that you would take for heroin, cocaine, what they call hillbilly heroin—is it Endone?—the whole range of things that we know impair people's driving. They are not included in this legislation because, according to the advice we have, they are not as regularly found in the bloodstreams of people who have suffered accidents.

My understanding would be that, whilst the person might present and say, 'Here's my certificate from the doctor,' if the officer thought they were impaired, then the tests for old DUI or driving under the influence or whatever phrase we use, such as walking a straight line or various other measures that police officers, I presume, routinely take to get people off the road who they believe are incapable of safely driving, then those provisions would kick in. I would have thought that was fairly straightforward.

Just because someone is unfortunate enough to have a medical condition or a disability that requires them to use medicinal cannabis, I do not think that that somehow has a consolation prize that you can get as stoned as you want and drive and get away with it. I do not think that is what this means. It means that the narrow pathway of prosecution that is reflected by these roadside tests and a positive indicator might not work for this tiny cohort of people, but if they are unfit to drive, then they will be assessed in the way other people who are unfit to drive are assessed.

I keep making the point that there are a whole lot of drugs that impair people's driving that you do not test for. You do not test for cocaine, even though many of the machines that are used also test for cocaine. Many of them do; I have googled them all. A policy choice has been made not to test for cocaine. I do not think this is the 'Get out of gaol free' card that the minister suggests it might be.

The Hon. P. MALINAUSKAS: The government opposes this amendment because the object of this bill is to improve road safety. There is a startling statistic that I think members should have in the front of their mind when they contemplate this amendment: in the last five years, 66 drivers and riders who were killed on South Australian roads tested positive to drugs. That is a big number. It represents a very substantial proportion of all lives lost on the roads over the last five years. Of those 66, 48 tested positive to having cannabis or THC in their system, either on its own or in combination with other drugs. So, 48 lives have been lost in the last five years alone and that arguably is directly attributable to the presence of THC in those drivers' systems. We measure the THC because that is the chemical that causes impairment. It is simple.

I am advised that there are forms of medical cannabis that do not contain THC and therefore do not have the same psychoactive effects that otherwise exist in cannabis that does have THC. Many of us are supportive of medical cannabis being applied and being used where there is a genuine health reason for someone being prescribed it accordingly. I would have thought that in many of those instances, those drugs that have been prescribed would be cannabis-orientated products that do not have THC within them. They will not be caught by this legislation.

What we are aiming to do here is make sure we are improving road safely. There is a direct link between THC reducing road safety, and therefore those people should be held to account, just like anybody else. It seems crazy that one person gets pulled over with THC in their system and they get reprimanded as a result. Why? Because it diminishes the road safety of everybody on our roads, but somebody else will be treated differently. Yes, albeit, it may be as a result of a medical condition, but the object here is to protect everyone on the road. Undoubtedly, in the government's view, this compromises that, notwithstanding the good intent.

The Hon. A.L. McLACHLAN: The opposition will be supporting this amendment, although I will make clear to the government that there will be an opportunity between the chambers to further discuss the clause and if the government is minded for any refinement to address its concerns, the opposition would be mindful to listen. I think the Hon. Mr Parnell articulated much of what I was going to say, but this is a defence, so it is not taking away from the unlawfulness but is giving an opportunity for someone who has a medical condition and has had it prescribed to have a defence before the court.

Prima facie, the risk the minister has identified—and it is a real risk—is still being mitigated by the primary provisions of the bill as it amends the act, but this is an ability for someone to establish their defence. The defendant must prove. It is not for the prosecution to prove. They will put the test results up and, prima facie, their case will be made. There is a reverse burden on the defendant, which is considerable in circumstances such as this. I know that may not ease the minister, but it is not as drastic as the minister has articulated.

I would just like to pick up on a point from the Hon. Mark Parnell. The government has made a risk assessment that it wants the top three drugs that are being seen in the community, and rightly so—I have not criticised it during the course of this debate. It has a series of test machines that, I think largely, test for those three, and it is probably difficult to have a fourth drug. In reality, we might have a fourth drug that is brewing (ice goes out of fashion) and we are still carrying that risk as a community. I just think the minister's looking glass on this issue—whilst I appreciate it, and I do not denigrate in any way—is not realistic in the modern world.

We have to, effectively, as a community, take risk. We have made an assessment that the person driving to the private school in the BMW high on coke will not get caught if they are driving unnoticed by the police. We have taken that risk as a parliament, and as a police force and a community. We have just picked the top three drugs and that is inappropriate but it is a risk assessment. When we leave today we will carry that risk.

I think these amendments, from an opposition's perspective, are appropriate and we will support them, but we are interested in a dialogue with the government between the chambers should other issues come to hand or if there are any submissions that the government make. At this point in time, we think it is appropriate to have a defence.

The Hon. T.A. FRANKS: I wish to respond to some of the minister's comments on THC. My first question is: will the drug testing regime be able to test also for levels of CBD, which is a different cannabinoid to THC? There are other cannabinoids. What I would say to the minister is, in some ways he is correct: CBD is often seen as a medical cannabis option; however, there are combinations and compounds in a whole range of different varieties and, indeed, CBD is often used with THC for different conditions and, indeed, counters the effects. So, the simple first question is: does the test also address the levels of CBD?

The Hon. P. MALINAUSKAS: My advice is no, it is for THC.

The Hon. K.J. Maher: That makes sense.

The Hon. T.A. FRANKS: The Hon. Kyam Maher says that makes sense. The bit that does not make sense is that you have assumed that THC would not be used with CBD as a medical product. Many medical products for medical cannabis do have levels of THC and I simply wanted to clarify that for the record. In fact, the psychoactive effects of THC, which is what the concern is here, are countered by the combination of that with CBD. That is why I would be very keen to know is it possible to test for levels of CBD?

The Hon. P. MALINAUSKAS: My advice is no, and the government again reiterates the point that we focus on THC and the test focuses on THC because that is the component that causes impairment. Regarding the Hon. Mr McLachlan's remarks, let me be clear that the government has never purported throughout this exercise that somehow this is going to mitigate all risk—not at all. What we are trying to do here is the same thing we do with road safety policy everywhere, and that is to try to reduce risk where we can. What has become increasingly clear, not just in South Australia and not just in Australia but globally, is that drug driving represents a growing portion of deaths on our roads. The single biggest contributor to deaths on our roads in terms of drugs is as a result of THC.

The Hon. Mr McLachlan uses the cocaine example in a particular stereotype, and I am sure that is a relevant example, but what we are trying to do here—and we have never suggested that somehow by reducing one risk over here we are somehow pretending that this one does not exist over there, not at all; we are trying to control the things that we can. We know that THC is a significant contributor (and I mentioned the statistics earlier) which is why we are focusing on that.

I think it is a rather erroneous argument to somehow suggest that we should vote down or we should vote in favour of the Vincent amendment albeit that it is creating additional risk because there is risk everywhere else. The whole exercise in road safety policy is to try to reduce risk where you can, which is exactly why those people who are serious about trying to reduce the numbers like 48 people dying in five years as a result of this, should be persuaded not to support the Vincent amendment.

The Hon. R.L. BROKENSHIRE: This is probably a base question but I do not think it has been asked and it probably should be clarified by the minister. When the buccal swabs first came in they were very restricted in what they could pick up when it came to the types of illicit drugs that may be in the system. I understand that there has been some small broadening of that but does the buccal swab actually identify methamphetamines and so on? Is it really broad now, and therefore identifies that there is some form of illicit drug in a person's system, and then you go to the next test from there, or is a buccal swab that is available still quite restricted in what it picks up?

The Hon. P. MALINAUSKAS: My understanding is that the swab tests for THC, methamphetamine and MDMA; they are the three drugs that it tests for.

The Hon. J.A. DARLEY: For the record and having regard to the Hon. Mark Parnell's comments, I will be supporting the Hon. Kelly Vincent's amendment.

The Hon. R.L. BROKENSHIRE: Just for the record the Australian Conservatives will not be supporting the Hon. Kelly Vincent's amendment.

The Hon. K.L. VINCENT: While the debate has been going on and while I have been trying to clarify advice, I think other speakers have largely covered the points very well so I do not intend to go into them again; however, there are a couple of additional points I want to add. In particular, yes, the Hon. Ms Franks is right that sometimes a certain level of THC may be necessary in medical cannabis for medical purposes and can be counteracted by CBD. I am not an expert in these things.

I am certainly not talking about people who are so affected by CBD levels that they should not be driving, I am asking for people who are medically proven to medically require THC for medical treatment by a treating medical professional (and I am saying the word 'medical' too many times) to be allowed to drive, if they are declared fit to do so by a doctor. There are also a number of occasions, I would argue, where we already rely on the judgement of medical practitioners, including whether a person should be able to drive because of a physical disability that may impact their coordination or movements. I do not quite accept that argument that just because there is no official test it does not stand to reason.

Also—and I am not trying to be mischievous with this question, but I would like to know this level of detail—of the 48 driver deaths on our roads that the minister mentioned, in the past four, or was it five, years—

The Hon. P. MALINAUSKAS: Five.

The Hon. K.L. VINCENT: —five years; thank you—with THC in their system, how many, if any, also had alcohol in their system?

The Hon. P. MALINAUSKAS: The statistic I have at hand is that 48 tested positive to cannabis either on its own or in combination with other drugs or alcohol.

The Hon. K.L. VINCENT: Sorry, just to clarify, I did not quite hear. Of the 48, it does not break down the level as to whether there was something else in the system or not.

The Hon. P. MALINAUSKAS: Correct.

The ACTING CHAIR (Hon. J.S.L. Dawkins): The Hon. Ms Vincent, I cannot see your light. Is it covered up?

The Hon. K.L. VINCENT: No, sir.

The ACTING CHAIR (Hon. J.S.L. Dawkins): I can see the light on the microphone, but there is supposed to be another light. There it is.

The Hon. K.L. VINCENT: I do not put it on the whole time when I am speaking, because that would be very irritating.

The ACTING CHAIR (Hon. J.S.L. Dawkins): It is helpful to the chair when you press it when you want to speak, and I have not seen that for a while, so thank you very much.

The Hon. K.L. VINCENT: I appreciate that, sir. We will have to work on a better system. But as I have said, most of the other points I wanted to make have been made by other speakers so I do not intend to reiterate them. But I also want to make the point that I have already had a constituent who did get disqualified under previous laws before we amended the laws to allow for medical cannabis. The person actually had a letter from their treating medical practitioner stating that they were safe to drive under the influence of their medical cannabis.

So, it is not as though doctors are not already prepared to do some of this on some level. Given that we have legalised the use of medical cannabis and where it can be proven to be safe in the opinion of a treating medical practitioner, I think it is incumbent on us to do so. Again, I am not asking for any person ever under the influence of THC to be able to drive with no consequences, I am simply asking for those who can prove to the best of their ability that it is required for medical purposes and they are safe to do so, be allowed to do so.

The committee divided on the new clause:

Ayes 12

Noes 9

Majority 3

Clause 20.

The Hon. J.A. DARLEY: I move:

Amendment No 1 [Darley–2]—

Page 13, after line 17—Insert:

(3) Section 47B—after subsection (3) insert:

(3a) Subject to this section, if a court convicts a person of a second or subsequent offence against this section (other than a category 1 offence), the court must make an order requiring the person to undertake an intervention program designed to address alcohol abuse.

(3b) The court must not make an order under subsection (3a) unless it is satisfied that—

(a) the person is eligible for the services to be included in the program in accordance with applicable eligibility criteria (if any); and

(b) the services are available for the person at a suitable time and place.

(3c) The court may make appropriate orders for assessment of a person to determine—

(a) a form of intervention program that is appropriate for the person; and

(b) the person's eligibility for the services included in the program.

(3d) A certificate apparently signed by—

(a) an intervention program manager as to—

(i) whether the services to be included in an intervention program are available for a particular person and, if so, when and where they will be available; or

(ii) whether a particular person is eligible for the services to be included in the program; or

(b) a case manager as to whether a particular person has complied with conditions regulating the person's participation in an intervention program,

is admissible as evidence of the matter so certified.

(3e) In this section, intervention program and intervention program manager have the same respective meanings as in the Sentencing Act 2017.

The amendment will see those who are found to have committed a second or subsequent category 2 drink-driving offence be required to undertake an intervention program. The requirement only stands if there is availability in such a program. As indicated in my second reading speech, it is all very well to increase the penalties for drug driving and require people to not be dependent upon drugs or alcohol before their licence disqualification period is lifted; however, I believe assistance should be given to people so that they can meet the drug-free criteria required by the assessment.

In the paper recently, Chief Magistrate Judge Mary-Louise Hribal threw her support behind intervention programs and said:

For some offenders and some crimes, intervention programs provide a way to address the underlying chronic behaviours of defendants.

Increasing penalties sends a strong message from the parliament that it is unacceptable to drive when you have consumed drugs or are over the blood alcohol limit. However, we should also be helping people to learn about the effects of their decisions and should be rehabilitating them. If you do not address the problem, the likelihood of reoffending is much higher and may be setting people up to fail.

This particular amendment addresses those who have committed a second or subsequent category 2 drink-driving offence. It is very similar to my amendment in [Darley–1], which addresses drug drivers. Both amendments will see those who have committed a second or subsequent drug or high-level drink-driving offence attend an intervention program to assist them to become drug or alcohol dependency free so they can receive their licence back. I commend the amendment to the chamber.

The Hon. P. MALINAUSKAS: The government opposes the amendments proposed by the Hon. Mr Darley. In recent years, the SA government has been presented with private members' bills in the parliament advocating for compulsory alcohol and drug treatment. Advice from health professionals, principally DASSA, is that there is little evidence to support the effectiveness of mandatory treatment in rehabilitating or achieving long-term behavioural change amongst those dependent on alcohol or other drugs.

Voluntary approaches to treatment are far more effective in addressing substance abuse. The National Drug Research Institute and the International Centre for Science in Drug Policy have concluded that there is little evidence to support the effectiveness of mandatory treatment in rehabilitating or achieving long-term behavioural change amongst those dependent on alcohol or other drugs. In particular, a recent review undertaken by DASSA, by Dr Steve Allsop, concludes that there is no robust evidence to support compulsory or mandated treatment approaches.

Research demonstrates that simple attendance at treatment programs is not sufficient to achieve behavioural change, as individuals must be active participants and be engaged in the treatment process to achieve positive outcomes. Those apprehended are more likely to succeed in overcoming drug problems when offered a degree of choice through the provision of a range of treatment options.

Very quickly, as I stated in my remarks, I think, at clause 1, I personally was very attracted philosophically to the idea of mandating treatment, as I have stated previously. I went hunting for any evidence that could demonstrate to me that mandating treatment as a result of a repeat offender being caught drug driving would be a good thing. I found myself genuinely conflicted on this, because, as I said, I was philosophically committed to doing exactly what I think the Hon. Mr Darley is trying to achieve here, but I think it is incumbent upon all of us that when we make decisions about how we vote it is informed by evidence.

I went looking for the evidence and I could not find it. I looked pretty hard. I had some pretty robust exchanges with various experts in the department and the like, and let me tell you, if I could have found any evidence that backed up what the Hon. Mr Darley is trying to achieve as being potentially effective, it would be in this bill. I sincerely appreciate the Hon. Mr Darley's efforts here, and again, philosophically and ideologically they sit very well with me, but I could not bring myself to put it in the bill because there was no evidence to substantiate it. For those reasons, the government is opposing the amendment, notwithstanding genuinely appreciating the effort the Hon. Mr Darley is trying to make.

The Hon. R.L. BROKENSHIRE: Over a long period of time, I have heard the experts. I do not for one minute profess that I am an expert in clinical and psychological health and addiction at all, but this has been a consistent thing thrown at us as members of parliament and the community generally for a very long period of time. I just want to say that if someone has a drug or alcohol problem generally, yes, I can understand that unless they can come around to the point where they say, 'Gee, I've got a problem here and I need to go and get some assistance,' they may not be a willing participant, but there is a difference here.

There are actually a couple of differences. The first difference is that we are bringing something in brand-new to try to circumvent what is a clear growth in illicit drug use and then driving, which is not only showing up with big numbers when SAPOL drug tests these people, but, as the police minister has shown in press releases and discussions, a very high rate of those people involved in fatalities and serious crashes have illicit drugs.

My point is that these people have broken the law, and it might just be a wake-up call to them if there is some pressure applied to them to have to do a mandatory rehabilitation course. From their personal point of view, it might just be, hopefully, that those people can engage in rehabilitation and get off illicit drugs, which would be wonderful for them and also would be wonderful for the community, because the community would be much safer.

So, I would say the Australian Conservatives will support Hon. John Darley's amendment. We can come back in here in five years' time and let those experts do some analysis of what has gone on in that five-year period, and if it is proven that we were wrong in supporting the Hon. John Darley's amendment, you can always pull it out of the legislation at that time. But just maybe we might have some actuarial work done over that period and we might actually discover that this is a positive thing. I would like to give anything a go that can get people off illicit drugs and make our roads safer. So, we will be supporting the amendment.

The Hon. M.C. PARNELL: The first thing I would like to say is that I think we all owe the Hon. John Darley a debt of gratitude, because it was his amendments that originally got the idea that others have then picked up and run with, that if we are looking at drug and alcohol issues in relation to driving, it is actually a trigger for having a look at other questions such as: what help do we give people? We can talk narrowly about: you can and you cannot get your licence, but what help are we giving people? What options are we giving them? So, I think it was amendments like this that got the whole topic on the agenda. Certainly, the Liberal Party picked up on some aspects of it, and it has morphed over the last several weeks.

I generally accept what the minister has said in relation to the evidence, that voluntary approaches are shown to have greater success than mandatory approaches. Forcing people does not work, as a rule. That is not to say, as the Hon. Rob Brokenshire said, that it will never work. You might get the occasional one where for the person being forced, it worked for them, but if it is an evidence-based system we are talking about, most of the evidence is that it mostly does not work. The person has to want to get help.

There are some circuit-breakers. For example, we know that the emergency departments of our hospitals take people on their presentation, 'It's drugs. It's alcohol,' or whatever. You get people who, in some cases where there is mental health involved, can be detained and the process of detention is enough time for someone to dry out, and that might be enough time for someone to convince them that a program might help them. There are circuit-breakers like that.

I think in this instance that the main driver—no pun intended—or the main lever is that the state has something that the person wants. What they have is: you get your licence back. If you do not want to ever get your licence back, do not do any courses, do not do any assessments, just go on the way you are going. It is a pretty powerful driver. People want their licence back, and if they want it back badly enough, then they are going to engage with professional help and hopefully the circuit can be broken.

The main problem, I think, with the amendment as drafted is that there is no discretion involved. The court must make an order requiring the person to undertake an intervention program. It is that mandatory nature of it. Whilst I accept that it may, in some cases, work, the evidence I have seen is that in most cases it will not work. I think we are better off looking at other levers and other drivers to get people before the programs that are going to give them genuine help. So, whilst we are very grateful to the Hon. John Darley, who got us thinking about this, we will not be supporting this amendment.

The Hon. J.A. DARLEY: I understand that the Queensland Crime and Corruption Commission in 2008 did a paper which showed that mandatory rehabilitation was as effective as voluntary.

The Hon. A.L. McLACHLAN: I will set out the Liberal Party position. The Liberal Party will not be supporting the Hon. Mr Darley's amendments. We gave them serious consideration, and we thank him for engendering a serious debate. We prefer the model that has been accepted by the chamber, which is to place it upon the individual to decide whether they want treatment and, in doing so, create great opportunities for a favourable consideration by the registrar. We hope that the desire for their licence to be returned will encourage them to see the errors of their ways and try to cure their dependency.

Amendment negatived; clause passed.

Clause 21.

The Hon. D.G.E. HOOD: I move:

Amendment No 1 [Hood–1]—

Page 14, lines 4 to 8 [clause 21(3), inserted subsection (4)(a)]—

Delete subparagraphs (iii) and (iv) and substitute:

(iii) in the case of a third or subsequent offence—for such period, being not less than 5 years, as the court thinks fit;

This is a straightforward amendment, I would think. It simply deals with penalties for those detected so-called drug driving, and I will just take members through what it does. If you look at the penalties as prescribed by the bill, clause 21(3)(4)(a)(i) states that for a first offence—that is, the first time someone is caught drug driving—the court will impose a loss of licence penalty of not less than six months. That does not sound unreasonable to me, so my amendment does not seek to amend that at all.

Subparagraph (ii) then states that, in the case of a second offence—that is, if they are caught again doing exactly the same thing—then their disqualification period will be not less than 12 months. Again, I do not think that is unreasonable. The Australian Conservatives do not think it is unreasonable, so we have not sought to amend that either. We then come to the part that my amendment does touch.

The function of the amendment is to essentially remove subparagraphs (iii) and (iv) from the bill. Subparagraph (iii) states that, in the case of a third offence, the licence disqualification will be not less than two years, and subparagraph (iv) states that, in the case of a subsequent offence—that is, in addition to a third offence, so four or more offences—the licence loss should be not less than three years. What my amendment does is remove subparagraphs (iii) and (iv) and replace them with a new subparagraph (iii), which provides:

in the case of a third or subsequent offence—for such period, being not less than 5 years…

What my amendment simply does is this. Rather than after a third offence someone having a licence disqualification for two years and then having the opportunity to have a fourth offence to get a licence disqualification of three years, mine says, no, three strikes and you are out, and you will have a licence disqualification of not less than five years.

Let's think about that for a moment. This is an individual who has been prepared to put the lives of other road users, including their own and anyone else's in their vehicle, at very substantial risk. Not only have they done it once, they have done it twice and they have done it three times. Not only have they done it three times, they have actually been caught doing it three times. Who knows how many times they have done it. They might have done it 300 times, but they have been caught three times.

I have no sympathy for that person. If they are prepared to drive under the influence of one of these substances three or more times, they should have their licence removed for five years. I will be frank with the chamber. No doubt there will be strong voices of disagreement with my view here and that is fine, but I contemplated making it 10 years.

What on earth justifies anybody getting in a vehicle with one of these illicit substances in their system when they have done it at least three times? They have probably done it 300 times, but they have been caught three times. Why should they not get at least a five-year disqualification? I would argue 10 years, but my amendment does not go that far. My amendment stops it at five years in the hope that I would be able to get that through because whilst I generally—

Members interjecting:

The Hon. D.G.E. HOOD: That's right, yes. I am getting soft in my old age. I do not think anyone has ever called me soft on law and order.

The Hon. R.I. Lucas: Well, I just did.

The Hon. D.G.E. HOOD: It is the first time you have been wrong in a while, the Hon. Mr Lucas. So, that is the bottom line here. I think there is a case for even more than five years. I do not criticise the government because I think they are trying to ratchet up the penalties but, in my mind, they have not gone far enough here, so I move the amendment standing in my name.

The Hon. M.C. PARNELL: I have a question at this stage, and I will maybe make a contribution when I have heard what others have said. I have a question of either the mover, if he knows the answer, or the minister, if the mover does not know. My understanding was that the threshold beyond which you have to start again—when I say start again, I mean get your learner's permit again, do the 75 or 100 hours or whatever that is but, in other words, go back to the very start—was triggered at five years. Everybody is nodding, so I am assuming the answer is yes.

Without risk of stating the obvious, part of the additional penalty the member seeks to impose is that it is not just a question of being off the road for five years. Effectively, you are back at square one—learner's permit for a certain period of time, pay the money, do the test, and be on P-plates for a while with the various restrictions that relate to that. No doubt the alcohol restrictions would be weighing on the member's mind. Am I correct in that assessment?

The Hon. D.G.E. HOOD: Yes, that is my understanding. I thank the honourable member for his contribution. I have done that quite deliberately. Again, the simple fact is that these people are flouting the law. Three times they have been caught with an illicit substance in their system, controlling a vehicle and putting everyone's families, at risk. I have no sympathy for it. If you are prepared to do that three times, then why not go back to your learner's permit, why not go back through the P-plate system and show the community that are actually worthy of having a driver's licence?

The Hon. A.L. McLACHLAN: The Liberal Party's position is that it will not support these amendments. It accepts the bill in relation to penalties as drafted by the government. Our reasoning in part is based on the fact that we have tried to insert into the bill some rehabilitative methods and incentives to seek treatment. We think that, in those circumstances and within that context, the penalties as stated are appropriate.

The Hon. M.C. PARNELL: The mover posed the question, 'Why shouldn't they have to go back and do that again?' I absolutely accept that, if the motivation is to punish them, then it is a form of punishment. The point I make is that the purpose of getting your learner's permit, probationary licence and all that sort of stuff is to do with the skill of driving a car. There is no suggestion, necessarily, that the people who have been caught three or more times are not skilful in driving a car. They might be incredibly skilled, but we do not want them driving when they are drunk or affected by drugs.

Making them then go back to first base and, effectively, imposing conditions on them or assuming that they do not know how to drive a car is the wrong way to go. I accept that the member said that he was tempted to move for 10 years or whatever. In some ways, that would be more palatable than having to go back and pretend that people do not know how to drive and have to go through the basic mechanical skills of again learning how to park and so forth.

There is an argument that it would not hurt any of us who have had our licences for many years to do a refresher every so often. But, the position the Greens have landed on is that the government has increased the penalties, and we are not proposing to support any measure that increases them further, so we will not support this amendment.

The Hon. D.G.E. HOOD: It seems that this will not carry, unless the government has some wonderful news for me, which I doubt. With respect to the requirement to go back to do a learner's permit and the P-plate system, if someone has not driven a car in five years, it is probably not a bad idea that they have a refresher in exactly what are the road rules and have some practice through the P-plate system of learning how to drive a car again.

I do not know about the experience of other members, but if I have been overseas for two or three weeks and come back home, even in that very short time, your first time in a car is an unusual experience. If you extrapolate that out to a five-year period, it is a very long period of time not having driven a car, which is a very dangerous thing to do. It is probably the most dangerous thing any of us do on a daily basis.

I would not see any problem with individuals who have clearly flouted the law, by the way, on a number of occasions and been caught doing so, learning again how to operate and function in what is potentially a very dangerous situation. I would not have any problem at all learning how to do it again and learning how to do it properly.

The Hon. P. MALINAUSKAS: The government did actively contemplate supporting this amendment. One of the key things this bill seeks to do, as the Hon. Mr Hood knows—and his advocacy has been instrumental to the development of this bill—is to increase penalties to send a clear and strong signal, and the bill potentially will achieve that. However, regrettably, the government cannot and will not support the Hon. Mr Hood's amendment because, in the government's view, it would cause unintended consequences, not least of which is that the bill as it is currently written strikes a consistency with drug-driving offences.

We have seen the level of drink-driving offences come down and drug-driving offences go up. A range of things have contributed to the drink-driving stats coming down but, increasingly, the penalty regime over the years is one of the things that is doing that, so we are trying to replicate that with drug driving. If you do believe there is a correlation with the drink-driving stats coming down, it makes sense to have consistency between drug-driving penalties and drink-driving penalties. That is what this bill achieves.

The other variable that makes supporting the amendment difficult is that there would be inconsistency between the penalty for failing to submit to a drug test and the penalty for the drug-driving offence. If a repeat offender who had been done twice before was pulled over for drug driving, you would have a situation where they could choose to not undergo the drug-driving test because the penalty associated with that is three years versus five years for failing the test. You simply then create a perverse incentive for someone not to comply with the drug test. For those reasons, we are opposing the amendment as distinct from not being attracted to the merit of a harsher penalty for someone who clearly deserves to be punished.

Amendment negatived.

The Hon. A.L. McLACHLAN: I move:

Amendment No 5 [McLachlan–3]—

Page 14, line 11 [Clause 21, inserted subsection (4)(b)]—After 'sentence' insert:

unless, in the case of a first offence, the court is satisfied, by evidence given on oath, that the offence is trifling, in which case it may order a period of disqualification that is less than the prescribed minimum period but not less than 1 month

This is to replicate a provision that exists in respect of drink-driving. When examining the act and the amending bill, members would have noticed that many of the provisions are mirrored between alcohol and then drugs. In the case of a first offence, if the court is satisfied with evidence on oath that an offence is trifling, they can consider ordering a period of disqualification that is less than the prescribed minimum period, but not less than a month. Given that all the provisions are mirrored, it is the view of the Liberal Party that it is appropriate to also apply that to drug driving.

The Hon. P. MALINAUSKAS: The government supports the amendment.

Amendment carried; clause as amended passed.

Clauses 22 to 31 passed.

New clause 31A.

The Hon. R.L. BROKENSHIRE: I move:

Amendment No 1 [Broke–3]—

Page 18, after line 37—Insert:

31A—Insertion of section 47L

After section 47K insert:

47L—Power to search vehicle for drugs etc

Despite any other provision of this Act or any other Act or law, if—

(a) a person has submitted to a drug screening test conducted by a police officer under this Act; and

(b) the officer reasonably believes, on the basis of the results of that test, that the person has committed a drug driving offence,

the officer, or another police officer or officers may—

(c) search the vehicle involved in the commission of the offence for the purpose of ascertaining whether any controlled drug, controlled precursor or controlled plant (within the meaning of the Controlled Substances Act 1984) is present in or on the vehicle; and

(d) if reasonably necessary for the purpose of searching the vehicle, break into or open any part of the vehicle, or anything in or on the vehicle.

Whilst we support and commend the government and the parliament for these initiatives, I believe there is a weakness that we could immediately strengthen regarding the powers of SAPOL officers to search a vehicle. This amendment inserts a new clause in relation to police power to search a vehicle for drugs. The intent of this amendment is to provide police officers with a clear discretion to search a vehicle for drugs where officers reasonably believe that a person—namely, the driver—has failed a drug test.

Under current legislation, police may conduct a search where there is a reasonable cause to suspect. This amendment, however, makes it clear—and not only for the police officers and supporting them but as the minister goes out and sells these initiatives to help keep our roads safer—that where there is reason to believe a person has committed a drug-driving offence (that is, a failure of a roadside drug test at that point) police officers will be well within their right to search the vehicle for drugs.

It is reasonable to assume that, where a person is under the influence of drugs whilst driving, there is quite a possibility that the person may also be in possession of prohibited substances. I believe this sends a very strong message that we will not tolerate drug driving nor the use and possession of drugs. Based on advice, amendment of schedule 1 of the Road Traffic Act is necessary as it contradicts powers SAPOL already has, which is why there is an amendment No. 2 that I am speaking to as well.

Police do a good job in detecting drugs being carted around the place. We heard stories not that long ago of quite a big haul in a car heading from Adelaide to, I understand, Melbourne, caught on the South Eastern Freeway. Unfortunately, there are also a number of people who consume illicit drugs who are also involved in different levels, be it low-level or even higher levels of drug trafficking, and who are carriers for drug traffickers. If we are serious about trying to look after our community then I believe we should be sending every message and giving every opportunity to SAPOL to clearly and quickly go in and have a look to see just what else is around.

I put this legislation in partly because in my own home town of Mount Compass I was very pleased to see an operation with SAPOL where they combined both drug and alcohol testing. They did bring the dogs down and they did run the dogs over the boats and trailers that were going down along the coast on that particular holiday period. I am sure they probably had, unfortunately, some success. This is just giving them another tool to work on what we rely upon them to do, that is, to try to keep South Australia as free as possible of illicit drugs.

The Hon. A.L. McLACHLAN: The Liberal Party will not be supporting this amendment. We think the power is unnecessary. We are mindful of the other powers that the police currently have. In these circumstances the test that is given is only indicative; it is not final. It is not necessarily so, that the individual may have drugs or other things in their car. I note that it was not asked for by the police in the first casting of this bill and therefore we are not minded to consider the amendment.

The Hon. P. MALINAUSKAS: I have to say that I am somewhat surprised that the opposition has decided not to support this amendment. The government will be supporting the amendment. Members would be aware that the government recently undertook the exercise of the Ice Taskforce. One thing that came out of the Ice Taskforce, when we were looking at that supply side of the equation that I have talked about here previously, was that SAPOL is looking for additional resources and tools to be able to address it, but also, in some instances, additional powers. This was something that SAPOL specifically identified and suggested is worthy of addressing.

It was the government's intention, as a result of the Ice Taskforce, and it is still the government's intention, to bring forward an omnibus bill arising out of the Ice Taskforce to make a series of legislative changes, and this is going to be one of them. Notwithstanding that, the Hon. Mr Brokenshire has, through his amendments, suggested that we expedite that effort and it seems reasonable, of course, that if the government is committed to doing this that we may as well grab the opportunity to do it now and hence is supportive of the amendment. It also acknowledges the work that we have done with the Hon. Mr Brokenshire to amend the amendment to bring it into a format that better reflects the desires of SAPOL, so we thank him for doing that.

In terms of the substance of the issue, let's just think this through: a police officer pulls over a car and the driver of the car submits a positive roadside test to having drugs in their system. Now let's assume that they do not have a doctor's certificate saying that it is okay to be high. Then, the police officer wants the ability to search the car on the back of delivering a positive result: this will provide them with the capacity to do that. I think that is a pretty reasonable proposition. I think it is pretty reasonable that if someone delivers a positive roadside test to having an illicit substance in their system that then makes it eminently reasonable for SAPOL to search the car.

If someone driving that car has no drugs in the boot or no drugs in the car then they have nothing to worry about, but if they do then that is an opportunity where we should give the police every chance of catching that person for doing the wrong thing. We are trying to reduce the supply of illicit substances into the community. I do not know why, as a parliament, we would not give the police the capacity to do that. This presents an opportunity to do that. If they deliver a positive roadside drug test then I think it is eminently reasonable for the police to have the capacity to search that motor vehicle. Indeed, the police are—contrary to what the Hon. Mr McLachlan said—after this particular power.

The Hon. K.L. VINCENT: Point of order, Mr President: I object really strongly to the Hon. Mr Malinauskas' comments that a person has a certificate saying that a doctor allows them to be high. I have gone to extensive lengths about the fact that I want a doctor to clarify that the person is not high. I absolutely do not want people to be operating vehicles when they are high, and I find that a very offensive comment not only to me and the intent under which I moved this amendment but also to people who actually rely on medical cannabis, not to get high but to have decent, pain-free lives. I would ask the minister to withdraw that disgraceful comment.

The CHAIR: Unfortunately, the minister turned away and I did not see what he said because I normally lip read him because sometimes I cannot work him out.

The Hon. K.L. Vincent: He heard it.

The CHAIR: Minister, if it was offensive I think you should withdraw it.

The Hon. P. MALINAUSKAS: I am happy to withdraw the comment and rephrase it by saying that the person delivers a positive roadside drug test but has a certificate saying that it is okay for them to have THC in their system. That, in the assessment of some people, is consistent with being impaired, but I appreciate—

The Hon. K.L. Vincent: No.

The Hon. P. MALINAUSKAS: —that 'impairment' is probably a better word to be used than 'high'.

The Hon. M.C. PARNELL: On this amendment, I note that the Hon. Rob Brokenshire has modified it considerably since the first one. The first one I think almost obliged the officers to undertake inspections, not just of the car but of the person's home as well. The position we have taken is that the police have powers in relation to their reasonable suspicion in relation to offences having been committed and there are a number of approaches that they can take, whether through warrants or otherwise. I do not think this additional power is necessary. The government has said, 'Well, we were going to do this anyway.' Let the government bring it back next time and we will look at it again but we are not going to be supporting it in this bill at this time.

The Hon. A.L. McLACHLAN: Has the mover socialised these amendments with the legal community, in particular the Law Society?

The Hon. R.L. BROKENSHIRE: No, I have not gone to the Law Society. There are a fair few liberationists in the Law Society and I do not need to go and consult with them on every occasion. I have had constituents in my office who lost a brother because there was an illicit drug driver driving, off his face, with a trailer with an unsecured vehicle on it, heavily involved in the drug structure of this state, and that car went off the trailer and killed the brother. I have had constituents in my face on this stuff who are broken as a result of what happened.

When I had the privilege that the honourable minister has now, I dealt with some pretty tough situations like a lot of other colleagues. Whilst we commend and support the government for what they were looking to do with this amendment when they came out with their legislation and other initiatives around the Ice Taskforce, we have a window of opportunity here right now to bring this in. If this actually happens to help find illicit drugs and take them off the streets and save other people from being caught up in addiction, then let us be proactive, positive and responsible. I am actually putting up this amendment based on all of that and the concerns constituents tell me about regularly about the ever-increasing growth in drug availability in this state. I do not have to actually go to the Law Society to consult with them on this.

The Hon. A.L. McLACHLAN: I thank the mover for that response. It is the view of the Liberal Party that there are other adequate powers currently under the law for them to search the vehicle in certain circumstances. I would ask the same question of the minister. Has the minister socialised these amendments or this intent as a result of the Ice Taskforce with the Law Society or the Bar Association?

The Hon. P. MALINAUSKAS: I make a couple of points. The government has not done it yet because this is not the government's amendment. In respect of our subsequent effort regarding the omnibus bill, the Ice Taskforce has given all members of the community the opportunity to make a submission to that exercise. I cannot recall whether or not the Law Society made a submission; they may have, but I am not sure. In many respects, the government has already engaged with stakeholders on views about legislation in this particular area. It may or may not be the case that, in due course depending what happens with this, a second effort is made to do this. That could precipitate an opportunity to engage the Law Society.

I just want to go back to a point around other powers that the police have to be able to do this. We contend that the act, as it is written—the Road Traffic Act, not the other powers that police have through other means—specifically prohibits a police officer from taking a positive drug test and using that as a reason to then search that person's car. The Brokenshire amendment unpicks that element of the Road Traffic Act. It is wrong to suggest that, as it stands, police already have the ability to do this. We disagree with that and that is why the government is supporting this amendment. We want to reduce the supply of drugs in the community.

The Hon. J.A. DARLEY: For the record, I will be supporting Hon. Robert Brokenshire's amendment.

The Hon. A.L. McLACHLAN: In response to the honourable minister, we remain unconvinced. It may transpire in the socialisation and dialogue post the Ice Taskforce recommendations that we may review our position, but at this point in time, we are going to oppose the amendments.

Ayes 9

Noes 10

Majority 1

Clause 32 passed.

Clause 33.

The Hon. R.L. BROKENSHIRE: My amendment is consequential.

Clause passed.

Title passed.

Bill reported with amendment.

Third Reading

The Hon. P. MALINAUSKAS (Minister for Police, Minister for Correctional Services, Minister for Emergency Services, Minister for Road Safety) (17:34): I move:

That this bill be now read a third time.

Bill read a third time and passed.