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Legislative Council - Fifty-Third Parliament, Second Session (53-2)
2017-11-29 Daily Xml
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Bills

Statutes Amendment (Drink and Drug Driving) Bill

Final Stages

Debate resumed.

The Hon. P. MALINAUSKAS: There are a couple of elements to this. The first thing is that it is not an apples for apples comparison when asking the question about the test that is applied to police officers. That is a workplace test which is a fundamentally different test to a roadside drug test. The second element is that the roadside drug test has a specific objective of trying to capture people who are using those drugs that we know as a matter of fact are most common in regard to causing accidents, and cocaine is not one of them. So, when a road accident takes place, I am advised that a blood test will take place and the test for all drugs will be done, and rarely is cocaine one of the variables. It is far more likely to be the other drugs and those are the other drugs that we test for at a roadside test.

The Hon. T.A. FRANKS: When there has been post-accident testing, how many times has a test for cocaine been undertaken as a percentage?

The Hon. P. MALINAUSKAS: My advice is that on every occasion there is a fatality, a blood test is done, and we test for all drugs including cocaine, so my advice is every time where there is a fatal crash.

The Hon. T.A. FRANKS: In those tests, what is the percentage of people who have been found to have opioids present in their bloodstream?

The Hon. P. MALINAUSKAS: I am happy to take that on notice.

The Hon. M.C. PARNELL: I thank the minister for his response to my question. He said that it is a fundamentally different test. I would disagree with that. I would have thought that the purpose of capturing people by the roadside to see if their judgement is impaired is no different to testing a police officer in the workplace for whom we also do not want their judgement impaired. I cannot see what the difference is. I think the government has made a judgement call, perhaps based on economics, perhaps based on other factors. A supplementary question to my earlier one: what other substances are police officers to be tested for that drivers will not be tested for on the roadside?

The Hon. P. MALINAUSKAS: I am happy to take that on notice and get the honourable member that information. Having said that, I have absolutely no idea how this bears any relevance to the question that is before us today, which is: how do we improve road safety? What police officers are being tested for I am not sure has any relevance to the question of: how do we improve road safety?

The Hon. M.C. PARNELL: The answer to that is quite simple: it is exactly the same test, impairment. We do not want people driving who are impaired. We do not want police officers serving who are impaired. If the police officers are not to be impaired, why are we testing them for these drugs? If drivers are impaired, why are we not testing them for those drugs? It is exactly the same question. It goes to the heart of the fallacy with this bill, which is that it is not about impairment at all; it is about detection and it is about legality. It has nothing to do with impairment, nothing at all.

We can reprise the entire argument we had about whether there is a .05 test for all of these other drugs; there is not. There is either presence or not. It can be detected days, hours, potentially weeks afterwards, by which time I have not seen there is any medical evidence of any impairment at all.

Let us not kid ourselves that this is about road safety, because if it were it would be about impairment, and if it were about impairment you would have measures of impairment. You would have the ability to say, 'That person shouldn't drive because their judgement is impaired to that degree.' We do not have those tests, and therefore the government has made the assumption that any detection of any level, however small, is to be illegal regardless of whether it has any impact on road safety.

We have to name this for what it is. The point is that the government is proposing to test police officers, presumably so that they are not impaired in doing their work, but they are applying very different standards to drivers. It is inherently inconsistent.

The Hon. P. MALINAUSKAS: There are some statements of fact that the Hon. Mr Parnell just made that are correct: we do not have the capacity to be able to test for the level of impairment when it comes to certain types of drugs, particularly at the roadside. What we do is we test for the presence of those drugs.

The continuation of the Hon. Mr Parnell's argument, or the flow-on implication of his argument, is that if you cannot test for impairment then we should not test for it. Therefore we should, vis-a-vis, have people driving on roads who are under the influence of those drugs. That is a laissez-faire approach. In the absence of a test for the level of impairment, for instance the level of THC within the system, we test for the presence because we cannot test for the level of impairment.

We have to draw a line somewhere. Unless we take the view that we should have people driving around with impunity, taking as much of a drug as they like because we do not have a test for impairment, then what we need to do is test for presence. So, we are testing for presence, and that is what this bill seeks to do. This bill delivers a set of penalties to reflect the fact that there are a lot of people dying on our roads because they have drugs in their system, and we measure drugs in the system by a roadside test because we test for presence.

As I have stated previously when we have debated this bill in this place, if there were a test that could be readily applied that measured impairments for some of the drugs we are talking about that would be a great thing. I am sure that in due course, with human ingenuity, we can come up with such a test, but at the moment it is not available to us and we have to work with what we have. That is what this bill does.

The Hon. T.A. FRANKS: I wish to place on record my concern that we continue to criminalise people who are patients, people who have a prescription, who are legally accessing a legal prescription medication. We say that we cannot have an impairment test; well, the test is that they test positive, and then they have a prescription and they have a defence, and that is tested before the courts. That is the option we should be giving people who should be treated as patients in this state but who are being treated as criminals.

We do not test for opioids in people's system. In this state we actually let people drive who are on quite significant amounts of prescription drugs. Often they are far more impaired than those accessing medicinal cannabis through the legal system, with a prescription, yet we make no judgement call on that. We support the opioid industry and we punish the medicinal cannabis industry in this state by doing so. We draw a line that somehow says that all cannabis is wrong, even if someone is legally accessing it as a patient for their medical condition and with a doctor's prescription. We give them no other option.

That is quite unjust and completely short-sighted. All we are asking for is that if those people are found to have that in their system, they be given a legal recourse to show (1) that they are not impaired and (2) that they have accessed this and are doing so usually at a safer driving rate than if they were taking opioids to control their medical conditions.

The Hon. K.L. VINCENT: I have a more specific question regarding impairment. As we all know, the legal limit under which a person can operate a motor vehicle is .05. However, people may be influenced differently by the same level of alcohol; for example if they have not eaten or if they are using that alcohol on top of another drug they may be significantly more impaired, even though their reading is below that level. My question is: what would happen if someone had a blood alcohol reading of .049 or below but was still obviously impaired? Their speech was slurred and perhaps they were swerving the vehicle. Is there some sort of test that would say, 'Okay, your reading's come back under the legal limit but you were obviously still impaired to drive'? What would happen in that circumstance?

The Hon. P. MALINAUSKAS: My advice is that you can theoretically be charged for driving under the influence if you have a blood alcohol level under .049 but are still displaying signs of impairment.

The Hon. K.L. VINCENT: Why then can we not do the same with other drugs, if there is some nuance to be able to judge people's impairment, even though their levels may not be high?

The Hon. P. MALINAUSKAS: That is right. If you are pulled over and you have all those signs of impairment, you still need to be able to test for the presence of drugs. Once you have tested for the presence of drugs, if it is present, then you are committing an offence.

The Hon. K.L. VINCENT: But the minister's entire argument has been about the fact that, in his view, there is no ability to test for impairment with regard to drugs other than alcohol, yet here he is saying that there are ways to test people with certain levels of impairment. Whether or not that impairment is caused by THC, cocaine or alcohol, impairment will still equal impairment when it comes to testing, will it not?

The Hon. P. MALINAUSKAS: The two are not inconsistent because you can display signs of impairment that will reflect the fact that you are impaired, but there are other instances where you may not be displaying completely obvious physical signs of impairment that are entirely obvious to the police officer but still may in fact actually be impaired. In other words, it is possible to be impaired without necessarily stumbling over yourself and therefore necessarily displaying signs of impairment to the police officer. That is why we have tests in place for blood alcohol and also for illicit substances.

The Hon. K.L. VINCENT: Can the minister give some examples of what that non-obvious impairment might look like?

The Hon. P. MALINAUSKAS: Sorry?

The Hon. K.L. VINCENT: The minister is saying that there are levels of impairment that are not immediately obvious as they might be with alcohol, like slurring your words or stumbling over yourself. What are those other indicators of impairment?

The Hon. P. MALINAUSKAS: I think they are all pretty self-evident, Mr Chairman.

The Hon. K.L. Vincent: You just said they weren't.

The Hon. P. MALINAUSKAS: I am saying there are some things that are self-evident and there are some that are not. The sort of things that are often self-evident that police are looking for are slurring of words, stumbling over or the incapacity to be able to walk in a structured manner that an able person might be able to. They are signs of impairment that can physically meet the eye. But one might theoretically be able to conduct those things, and it is possible that someone is not slurring their words, not stumbling over themselves but still be impaired. That is possible. That is why we have tests.

The Hon. M.C. PARNELL: The minister said earlier in response to the question from Hon. Kelly Vincent that a person could pass the roadside test and yet still be done for driving under the influence. That was effectively what the minister said.

The Hon. P. Malinauskas: That's my advice.

The Hon. M.C. PARNELL: If the minister could get further advice: how many times has that happened, where a person has passed the roadside test and still been done for driving under the influence?

The Hon. P. MALINAUSKAS: My advice is that it is very rare, but I am happy to take that on notice.

The Hon. M.C. PARNELL: It might be as rare as zero, but I will take the minister's answer, if he does not have it before him. I would be very surprised if someone actually survives the roadside—

The Hon. P. Malinauskas: Me too.

The Hon. M.C. PARNELL: Anyway, I will invite the minister just to correct what he said on the record a little bit earlier. He said people die on the road because they had drugs in their system. He has also said that there is no way of testing whether there was any impairment. Is the minister serious that that is an absolute concept? Similarly, people die on the roads who had bread in their stomachs. No-one is suggesting that bread causes road accidents. Is the minister saying that all of those people who died on the roads who had drugs in their system, that the drugs were the cause of them dying or the cause of them having the accident in all cases?

The Hon. P. MALINAUSKAS: Mr Chairman, I think there is a lot of empirical evidence that shows that drugs cause impairment. We know that there are people who are dying on our roads and they have drugs in their system. Yes, there is a correlation between the two. That is our understanding. That is the evidence that has been presented to me and that is well accepted. The counterfactual to Mr Parnell's position, of course, is that drugs have no impairment.

The Hon. M.C. Parnell: I didn't say that.

The Hon. P. MALINAUSKAS: I am not too sure what your point is. It is true that people are dying on our roads who have drugs in their system. The government is of the view, the science is of the view, that there is a correlation between the two.

The Hon. M.C. PARNELL: Does the minister, on that same line of argument, also accept that there would be some people whose medical condition means that the drugs actually make them safer on the roads? They might actually die on the roads in spite of the therapeutic beneficial effects of some drugs in their system? Does the minister accept that that is also a possible scenario?

The Hon. P. MALINAUSKAS: Mr Chairman, I understand that the Greens and the Hon. Kelly Vincent have good intent here. They are providing advocacy from a point of view regarding medicinal cannabis. I understand that is where the question is going. This is a government that is, I think, being rather open minded and progressive when it comes to the question of the consumption of medicinal cannabis for the purposes of treating particular conditions. The Hon. Kyam Maher has done a lot of work in this area and we will continue to pursue that.

This raises difficult questions, because it is a new area and also there is a lot of work to be done in terms of research in terms of how this all operates. But the evidence or the principle that is guiding the government in pursuit of this legislation is that there is a whole range of different drugs where the clear clinical advice given to patients who use those drugs—prescription drugs, legal drugs, as has been referred to earlier—is saying: when you consume these drugs, do not operate heavy machinery; do not drive a vehicle.

The reason why that clinical advice is given is that those drugs presumably have the capacity to impair a consumer in a way that would compromise their capacity to drive a car safely. Medicinal cannabis is in the same category, from the research and evidence that has been brought before the government. Just as is the case with cannabis, there is a reason why this legislation or the act that we are dealing with bans drug driving for people under the influence of cannabis. I think that is a principle we all accept—maybe not, but I think that is a principle we accept. For those people who are consuming cannabis legally under guidance of their medical doctor, that makes it legal, but it does not necessarily make it safe to drive a car. That is the contention, and that is the area that we have to deal with in this legislation. The government welcomes the support of the opposition in arriving at that position.

The Hon. D.G.E. HOOD: I think the fact that we have had this debate this morning indicates that it is probably not unreasonable to say that every member of this chamber is not entirely happy with this bill for, I suspect, varying reasons. However, I would like to place on the record our position, and that is that the Australian Conservatives are pleased that we have a bill that will pass at all because it is a bill that we supported in its original form. It has obviously been agreed between the major parties and between the houses that there would be substantial change to the bill.

We prefer the bill in its original form but, that said, as I say, we are happy that one will pass at all. We are particularly, I guess displeased might be the word, that the search powers that were to be attributed to police in the original format of the bill have been removed and we would be advocates for that to remain. That said, an agreement has been reached and we are pleased that there is something that will pass at least. We support the proposition and we support the motion.

The Hon. P. MALINAUSKAS: I want to acknowledge the work that has been undertaken here to arrive at a position that is agreed by a majority of members. Politics is often the art of compromise and clearly a compromise has been reached here and I applaud those who have been a party to it. For those who are disappointed by the outcome, that is clearly regrettable but, as the Hon. Mr Hood accurately articulated, I do not think this compromise represents the 100 per cent result for anybody here. Nevertheless, we think that the bill has arrived at a good conclusion.

I also want to put on the record the government's disappointment, consistent with Mr Hood's remarks, that the search powers for police are not in here. I have to say that I think it is incredibly surprising that there is a majority of the parliament—namely because the conservative opposition has opposed police having the capacity to search a vehicle after a positive roadside drug test has been delivered. That seems like an absolutely extraordinary position to me. I think it would be an extraordinary position to the majority of the public that where someone is pulled over legally and delivers a positive roadside drug test that demonstrates that they have drugs in their system, that we would not be okay with police searching that vehicle. I think that is an extraordinary position and one that I am sure will be spoken about and raised regularly during the lead-up to the election.

I think all members in this place have reflected about the challenge we have as a community in respect to crystal methamphetamine or ice. We want to catch people who distribute ice. We know that a lot of ice dealers are also ice consumers. So, if someone delivers a positive roadside drug test because, say, they are under the influence of ice, and they also happen to be a drug carrier or transporting a significant quantity of ice, I would have thought that we would have wanted the police to be able to check the boot out. The fact that the opposition is opposed to that I find utterly remarkable. Having said that, in our pragmatic desire to be able to get an improved piece of legislation through, we welcome the compromise that has been reached and we look forward to the bill's passage.

Motion carried.

Amendment No. 2:

The Hon. P. MALINAUSKAS: I move:

That the alternative amendments made by the House of Assembly to amendment No. 2 be agreed to.

Motion carried.

Amendments Nos 3 to 6:

The Hon. P. MALINAUSKAS: I move:

That the disagreement to amendments Nos 3 to 6 be not insisted on.

Motion carried.

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