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Legislative Council - Fifty-Fourth Parliament, Second Session (54-2)
2020-09-09 Daily Xml
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Road Traffic (Drug Screening) Amendment Bill

Introduction and First Reading

The Hon. C. BONAROS (16:46): Obtained leave and introduced a bill for an act to amend the Road Traffic Act 1961. Read a first time.

Second Reading

The Hon. C. BONAROS (16:47): I move:

That this bill be now read a second time.

I rise to introduce this private member's bill that amends the Road Traffic Act 1961. At the outset, I would like to acknowledge the assistance of the member for Elizabeth, Mr Lee Odenwalder, who had a similar bill in the House of Assembly and has worked with me and SAPOL to develop this very important piece of legislation.

I note from the Law Society of South Australia submission that there may be a government transport bill under development which could very well contain similar provisions. I would invite the government to have discussions with SA-Best if that is the case, specifically in relation to the provisions of this bill and any likely amendments that may follow.

The bill itself amends the Road Traffic Act 1961 and has two very simple but real, related objectives. Firstly, it attempts to improve road safety for all road users in South Australia by reducing the incidence of drug driving. Giving frontline police officers the power to impose immediate licence disqualification or suspension for drug driving is designed to act as a strong deterrent, while also getting drug-affected drivers off our roads.

Secondly, the section as amended (primarily due to the repeal of schedule 1 clause 8(2)(b)), no longer prevents the results of a drug test from being used as grounds to search or obtain a warrant. Under this amendment, evidence obtained from a legally conducted drug test and then a search relying on that test as the grounds required to conduct a search is not prevented from being admitted in court.

This bill does not increase or change the penalties for any of the existing offences under the Road Traffic Act, the Motor Vehicles Act, other driving offences, or offences under the Controlled Substances Act.

South Australia recorded its worst road fatality rate for almost a decade last year, when 114 people died. This year’s road toll is virtually repeating where we were at this time last year with 36 deaths. As you all know, and as I have noted many times in this place, South Australia is the ice capital of Australia.

It should come as no surprise to us that illicit drugs are now more common than alcohol among South Australian drivers and riders involved in motor vehicle crashes. What is very concerning is that, unlike alcohol-related fatalities, the number of motorists killed in road crashes who have tested positive to drugs is not decreasing. Each year since 2014 the number of drivers or riders killed who tested positive to drugs has overtaken the number of drivers or riders killed with an illegal blood alcohol concentration level.

The frequency of drug-driving related fatalities is rising in South Australia. About 24 per cent, or about one in four, of those killed in road crashes over the past two years returned positive drug tests according to Cindy Healey, Inspector of Traffic Support Branch, SAPOL. That is a totally unacceptable statistic—one in four deaths on South Australian roads were driving under the influence of drugs.

Drug driver detection rates are also rising, with positive results being returned in 16,859 of the 150,073 drug tests conducted from 1 January 2017 to 31 December 2019. This means that about 11 per cent of tests for drug drivers were positive. That, to me, is a breathtaking statistic because, as Inspector Healey noted, these drivers are not just a hazard to themselves, their passengers and other road users but also pedestrians who may be elderly or young and not seen by someone who is not, as she said, 'on their game'.

These increases are occurring despite legislative changes passed in late 2017 that increased the penalties for drug driving, especially for those drug driving with children in cars. Those changes were needed but they are clearly not working. Data provided by SAPOL shows that of the total 6,064 positive roadside-conducted tests sent to Forensic Science SA for more accurate analysis in 2019, only 163 went on to be found negative. That is less than 2 per cent of those tests were false positives.

These statistics show that the claims made by the Law Society of South Australia, with respect, to the previous minister for transport that there is a high rate of false positives recorded by the roadside-conducted drug and alcohol tests are patently wrong. If and when a false positive is evident by Forensic Science SA then obviously the matter does not proceed any further.

I acknowledge that this is a minor disruption to a tiny 2.7 per cent of those testing positive at the roadside who later test negative at Forensic Science SA. Personally, I can easily live with 6,064 drug-affected drivers automatically being kept off our roads once their roadside test proves positive, and 163 having their licences reinstated if the Forensic Science SA oral test shows that their results were in fact negative.

The period between the roadside-conducted saliva test and the forensic oral test or blood test results is usually about two to 10 days. It is possible this period will lessen over time, once COVID testing results—which are currently being expedited—are reduced. Remember, too, that the 6,064 drivers who tested positive to drug driving in 2019 were only those tested specifically for drug driving and that not every car pulled over into a random breath test station or for a driving infringement was tested for drugs.

SAPOL has told me, at briefings I have had with them, that the cost of the tests and resourcing of SAPOL and Forensic Science SA have meant that drug testing is more targeted and not conducted on every driver tested in a roadside breath testing station. There is clearly a cost impediment there in relation to this issue.

Roadside drug testing is more resource intensive and time-consuming than roadside breath testing for alcohol. Alcohol tests provide an immediate result indicating BAC levels. SAPOL administers about 500,000 roadside alcohol tests but only 47,000 roadside drug tests each year, making the high level of drug driving positive tests all the more remarkable.

Sadly, increased drug use by drivers is a trend across Australia and the world, while the rate of drink-driving has fallen. The message about drink-driving and the excellent MAC campaigns of years gone by appear to have had an influence on our drink-driving behaviours, but the messages about drug driving clearly have not. It is not ringing through. If we as a community are truly genuine in our intent to reduce road fatalities and serious injury, I believe all drivers should be tested for both alcohol and drugs to act as strong prevention and a deterrent.

I would also like to see mandatory drug counselling and treatment for those caught drug driving because many are likely to be habitual users or addicts who are likely to continue their drug driving behaviour without proactive intervention. That said, the bill does not go as far as simultaneously testing for alcohol and drugs or mandating drug counselling or treatment, but if the current drug driving trend continues I can see why the need for this would arise in the future.

Unlike blood alcohol concentration testing, drug screening tests cannot determine levels of impairment or safe limits, and that is one of the issues that we have had a battle with in this space. While SA-Best rejects the ideological argument that there may be safe limits to certain drugs, I will qualify these comments shortly in relation to the use of cannabis. In contrast to alcohol, for most drugs there is no reliable relationship between the concentration of the drug and the level of impairment or crash risk.

Analysis of drug-related traffic injuries undertaken by Dr Matthew Baldock, the Deputy Director of the Centre for Automotive Safety Research at the University of Adelaide, and published in the journal Traffic Injury Prevention this year, suggested that the increasing incidence of drug driving, particularly for methamphetamine, evident in roadside drug testing and crash statistics appeared to reflect general drug trends observed in the wider community.

Dr Baldock discovered that blood tests from drivers and motorcyclists who were admitted to hospital in South Australia with injuries, including those who died in hospital, proved conclusively that drug driving has dramatically increased. By contrast, alcohol-related serious injuries nearly halved in the period of Dr Baldock's analysis but the rate at which methamphetamine was detected doubled during the same period. Dr Baldock, like SAPOL, noted that illicit drugs are now being detected at a much greater rate than alcohol in drivers and motorcyclists who are killed or injured on Australian roads.

He found that drug drivers are likely to be male and aged 30 to 39 years. Younger drivers are more likely to test positive to cannabis, while older drivers are more likely to test positive to methamphetamine. He concluded that most drug drivers do not think they will get caught. Although it is a somewhat imprecise science to try to determine the length of time drugs stay in our system and can be detected by police drug-driving tests, we do know the tests identify drivers who have drugs in their system at the time of driving.

What is indisputable and also known is that drug driving with methamphetamine (speed, ice or crystal meth) or MDMA (ecstasy) present in saliva or blood has been shown to increase the risk of road crashes and therefore road deaths and injuries. Many drivers, especially those affected by drug use, remain unaware or unconcerned about the effects that these types of drugs have on their ability to drive, including impaired coordination, muscle weakness, impaired reaction time, poor vision, an inability to judge distance and speed and distortions of time, place and space.

There is the same level of evidence in relation to THC, or cannabis, but as I said I will qualify my comments in relation to that because there are some concerns around that in this debate. Many drivers, especially those affected by drug use, remain unaware of or unconcerned about the effects that these types of drugs have on their driving ability, as I said, in relation to a range of issues, including vision and ability to judge distance, speed and so forth.

Indeed, drug use can alter a driver's perception of their impaired capacity to drive and can provide a sense of overconfidence and increase the likelihood of them engaging in high-risk driving practices such as speeding, overtaking when unsafe or driving dangerously to avoid police. How else could you even attempt to explain a parent's decision to drive their children to school while affected by drugs, as a recent SAPOL drug testing blitz on 17 August 2020 found?

SAPOL reported that, during this blitz, six South Australian parents were caught driving on drugs while taking their children to and from school. More than 1,000 tests were conducted on one particular day as SAPOL targeted drink and drug driving in the vicinity of schools. Of the 136 drug screening tests conducted, six parents allegedly returned a positive result for methamphetamine or cannabis, three of whom had their children in the car at the time of detection.

From April 2018, South Australia has had a new offence applicable to drug or drink driving with a child under the age of 16 present in the vehicle, which carries with it heavy penalties and an obligation for the driver to show that they do not have a drug dependency before being reissued a driver's licence. The intended deterrent of these new laws, while well-intentioned, is clearly not getting through to some people with tragic consequences.

People who are not risk-taking teenagers but parents of children—older people who you might think would know better—are ignoring the warnings and the danger that they present to themselves and to the public. These shocking statistics and the real-life stories of those killed by drug drivers represent a dramatic and unacceptable increase and prevalence of a drug driving problem that this bill seeks to address.

Who can forget the tragic case of Stacey Brooke Panozzo, 35, who had her three children in her car when she slammed into a tree at Kuitpo, south of Adelaide, in November 2017. Her seven-year-old son, Jackson Levi Rayner, was killed instantly, while his two-year-old sister suffered facial fractures, a fractured femur and lung and liver injuries. Panozzo was also injured and another son, Jackson's twin brother, was in a state of shock when emergency services arrived at the scene.

Blood and hair samples taken after the crash revealed the driver had several drugs in her system, including methylamphetamine, amphetamine, diazepam, nordazepam, ketamine, fentanyl, lamotrigine, oxycodone and cannabis. She was bailed after being charged over the fatal accident that claimed the life of her son but was taken into custody after failing several drug tests, driving while under the influence of ice and driving disqualified following the accident. It beggars belief that, after causing the accident that killed her son, this person continued to drug drive while disqualified.

Then there is the case of Kylie Anne Hie, a 38-year-old South Australian mum who killed her four-year-old daughter when she crashed her van into the back of a truck on the South Eastern Freeway while driving high on ice and then was dealing the deadly drug while she waited to be sentenced for that crash.

It is time for South Australia to have a zero tolerance approach to drug driving because no-one wants to share the road with someone whose judgement is impaired to any degree and whose drug driving puts you and your family and loved ones at any greater risk than we already face on the roads. If a person chooses to use drugs that is their decision, but they must know they cannot drive. It is as simple as that and if they do risk driving then they risk being removed immediately from our roads.

The bill is designed to get these drugged drivers off the road immediately through an immediate disqualification or suspension—it is that simple. At present, there are two offences under the Road Traffic Act that relate to drug driving. These are driving with a prescribed drug in oral fluid or blood, and that is in section 47BA, and driving under the influence of alcohol or drugs, commonly known as a DUI, in section 47 of the act.

It is an offence for a person to drive or attempt to put a motor vehicle in motion whilst a prescribed drug is present in his or her oral fluid or blood. The following are a prescribed drug for the purposes of this offence: THC cannabis; methylamphetamine, including meth, ice and speed; and MDMA, which is ecstasy. Drug saliva tests can only detect the presence of these three drugs.

I say this genuinely and sincerely: I do acknowledge that there is a wider debate to be had in relation to cannabis which can show up on a test days after it has been used and certainly days after any levels of impairment may be present. It has been included in this bill in line with other legislation. But again, I acknowledge that there are some valid reasons why we need to have further debate and consideration of this, given the likely reading that may be detected days after somebody has smoked cannabis.

Where a roadside test is positive, police have the power to conduct either a further saliva test or a blood test which is sent to Forensic Science SA. Presently, before any criminal charges can be laid, the presence of drugs must be confirmed by laboratory testing, and this is one of the reasons why I think these laws have not been brought in to this jurisdiction until now. There is a delay between the roadside drug test and the subsequent laboratory test and charges being laid, during which time the driver is often able to continue to drive. If the drug driver elects to be prosecuted, then they often retain their licence for this period also.

As all traffic defence lawyers would confess, adjournments are easily obtained, never more so than during COVID-19 restrictions. So the period between detection and an eventual court conviction could be as long as nine to 12 months, during which time that person has retained their licence and continues to drive on our roads and may very well be continuing to take illicit drugs and continuing to put the lives of innocent people at risk.

The bill seeks to give the police the power to disqualify or suspend a person's driver's licence at the very first opportunity, following a positive roadside saliva test for drugs. As I have already noted, this bill does not increase the penalties of fines applicable to any roadside traffic offences other than the immediate disqualification or suspension. Certainly, in the discussions that I have had with SAPOL, the causal link that they would like to see is for consequences to be closer to the actual offending taking place. So that is the link that we are trying to shorten via this bill.

The second limb to the legislation, related to the first, is to ensure that where SAPOL conducts a roadside drug screening test, oral fluid analysis or blood test, they are not prevented from using the drug test as grounds to search or obtain a warrant for search. Under this amendment, evidence obtained from a legally conducted search could be admitted in court, subject to complying with other legal requirements of searches being adhered to and at the court's discretion in relation to an offence against this act, the Motor Vehicles Act, a driving related offence and an offence against the Controlled Substances Act.

This amendment has been sought by SAPOL and previous governments for some years. In developing this bill, I have consulted with SAPOL, the Police Association of South Australia and a range of traffic lawyers. I have also relied upon the Law Society of South Australia's submission to the government's draft transport portfolio bill, dated 15 June 2020.

I know the Law Society does not support either the immediate suspension or disqualification, or the extended search power provisions, but I do not accept the reasoning provided. As I said, the objectives of this bill are simple and, I believe, well overdue. The increasing incidence of drug driving, and the deaths, injuries and carnage this causes to South Australians, simply cannot be allowed to continue unaddressed. We need to be courageous and brave in legislating deterrents and penalties that will keep our roads safer for all South Australians. With those words, I commend the bill to the chamber and ask honourable members to give it its due consideration.

Debate adjourned on motion of Hon. I.K. Hunter.

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