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Legislative Council - Fifty-Fourth Parliament, Second Session (54-2)
2021-05-06 Daily Xml
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Statutes Amendment (Transport Portfolio) Bill

Second Reading

Adjourned debate on second reading.

(Continued from 16 February 2021.)

The Hon. C. BONAROS (16:16): I rise to speak in support of the second reading of the Statutes Amendment (Transport Portfolio) Bill. From the outset, I express SA-Best's strong support for any initiatives designed to improve road safety. As such, we welcome this bill, as limited as it is. My enthusiasm, however, is somewhat tempered by a niggling concern that a key driver for these initiatives is for this government to further reduce and restrict resourcing to SAPOL and Forensic Science SA.

The bill includes a number of sensible minor tweaks to the Road Traffic Act, which I support. These include extending the blood alcohol presumptive period from two to three hours to reduce the Forensic Science SA back calculation workload by approximately 30 per cent. Apparently this has no detrimental effect, so we support it. Restricting the post-incident consumption defence, which does not exist in any other jurisdiction, is another sensible change, but again it has come about because SAPOL has been unable to contest the defence due to a lack of resources.

Irrespective of the logic of removing this defence, I am nevertheless concerned that SAPOL and Forensic Science SA resourcing have been the catalyst for this amendment. This makes me wonder how many other offences are not prosecuted because of a lack of proper SAPOL and Forensic Science SA resourcing. We have no issue with blood and oral fluid samples being taken by nurses and those de-identified samples being used to screen for a wider range of prescription and illicit drugs. We support more research into this issue, especially in regard to prescription drugs, using these samples, given the privacy assurances provided for in the bill.

As members of this council will know, we have long questioned why we in SA limit our roadside screening tests to a few of the more commonly used substances, whereas New South Wales and other states test for more illicit substances. Similarly, taking into account periods of both licence disqualification and suspension when determining periods required to qualify for a licence category such as P1 or a full licence improves clarity for law enforcement officers and, indeed, the courts.

The bill's new online nomination system for offences detected by camera will undoubtedly be more efficient, but we are concerned it will lead to an increase in false declarations, given a person will not have to swear a statutory declaration, as you do at present, unless SAPOL suspects fraud and seeks a declaration.

I am sure SAPOL will not have the resources to check the bona fides of all online nominations it will receive. This could have the unintended consequence of facilitating more fraud when non-drivers nominate themselves to assist the driver to retain their demerit points. We know there are related associated offences that will be committed if that occurs, but it does raise some questions that I think are warranted. I will be asking the government to closely monitor this and to report back to parliament with data on any increases in fraudulent nominations being made.

The extension of the subsuming period for expiation notices from seven to 14 days and enabling parking fees to be paid by smart phone are minor administrative improvements that SA-Best supports. A most welcome and overdue provision in this bill is the power to prevent the display of offensive materials on a vehicle, and most of us will immediately think of the Wicked Campers slogans as the worst example of why this law has been sorely needed for a very long time.

I commend all honourable members of this chamber and the other chamber who have actively voiced their opposition, disdain and disgust at many of those slogans that we have seen, particularly on the Wicked Campers campervans. We will not give Wicked Campers any credit at all by quoting some of their disgusting slogans.

SA is one of the last jurisdictions to legislate to prevent companies such as them displaying what can only be described as vile and deeply offensive sexist, racist, homophobic and generally demeaning messages on their fleet of hire vehicles. We do not allow numberplates to be offensive, so we should not allow this sort of indecent advertising either. In particular, I congratulate the Hon. Katrine Hildyard for her persistence over many years to see these displays removed from our community. I am sure Collective Shout and the public will be relieved to hear that parliament finally has acted on their calls for action, even if South Australia is, as I said, very late to the party.

A more substantive provision of the bill is one that I had in my private member's bill, the Road Traffic (Drug Screening) Amendment Bill that I introduced on 9 September this year, that is, to make it unlawful for drug test screening to be relied upon as one of the factors SAPOL can take into account to support searching persons and vehicles. At present, the Road Traffic Act currently specifically excludes this. I know the Hon. Mr Lee Odenwalder in the other place and SAPOL have long championed this clause, and I thank them for their persistence to see this long overdue initiative finally pursued by the government and incorporated into these measures.

SAPOL will now be able to allow the results of a positive drug test to be an additional factor in forming a reasonable suspicion as the grounds for conducting a search. It does not give SAPOL an automatic right of search, but it does mean that it can be used as consideration in establishing whether police officers had sufficient grounds to form a reasonable suspicion.

While I have filed a number of substantial amendments that SA-Best believes would significantly improve this bill, I indicate now that I am not going to move those amendments, and I will tell you why. It is on the basis that I have been taking part in ongoing and very lengthy discussions with the minister's office to see those initiatives incorporated into legislation, either via a private member's bill or, as initially proposed, by amendments.

We have agreed, and I have been assured—and I am seeking some guarantee of that assurance on the record, which I am told I will get—that it is intending imminently to introduce a more comprehensive road traffic bill, in which the government is contemplating incorporating provisions consistent with the amendments I have filed to this bill, and those amendments are consistent with the private member's bill that I have introduced into this place.

Anyone who tunes into Leon Byner and FIVEaa will know that I am a regular on that show talking about the dire state of our road statistics when it comes to drug use on our roads: driving under the influence of drugs, the number of detections and the frustration that SAPOL have in not being able to disqualify those drivers from driving on the spot as they do with drink-driving. They also have the frustration of knowing that those drivers repeatedly get back behind the wheel of a car and continue to present a very real risk to lives and danger on our roads.

We know that innocent people have been killed as a result of drug driving on our roads, and we know that SAPOL have willingly given us this information because they are, I believe, at their wits' end. I believe from conversations I have had directly with them—many a conversation—that they are frustrated and they need some help from this parliament to strengthen our laws to make our roads safer for all road users, including us.

So I have sought the government's commitment that we will do this in the second tranche of changes, which is expected very soon. They have given me that assurance and I am seeking for that commitment to be made on the record before we proceed with this bill today. I suppose the main reason for doing that is it is better placed in the next round of changes that we are going to consider rather than the ones that we have been considering here.

The amendments that I had were, as I said, focused on addressing South Australia's consistently shocking road toll and alarming stats related to driving whilst disqualified and drug and drink-driving. I will be insisting on seeing these amendments adequately addressed in the government's bill in line with the amendments that I have moved both to this bill but also in the private member's bill.

My commitment to more comprehensive reform to the Road Traffic Act is in response to the increasing carnage on our roads caused by people who continue to behave appallingly, with blatant disregard for themselves and others. The 2019 road toll was the worst we have experienced in a decade. In the first 79 days of this year we had 28 fatalities on our roads—that is one person every three days. This is the deadliest start to the year since 2010. Thirty-seven people have already died on our roads this year, the same as last year, not to mention the 178 serious injuries that have already occurred on our roads this year and the 740 injuries that occurred last year.

These are the less visible victims and casualties who may be still in rehab, may never work again, may have a debilitating temporary or permanent disability. They could be the drivers, the passengers or the pedestrians involved in these terrible road collisions. This is despite airbags, despite ABS braking and other technological improvements to cars, SAPOL traffic blitzes and increased community awareness campaigns. I am sure, Mr Acting President, that you share my complete disbelief when I read SAPOL's reports after the campaigns and blitzes they regularly mount.

I cannot comprehend how a woman who crashed her car with two children inside it on Monday 29 March chose to drive when she was more than seven times over the alcohol limit. That same week, another 32 drivers were detected for either an alcohol or drug-driving offence during a statewide operation targeting drink and drug driving over the weekend. Sixty-one per cent were tested for drugs, out of which 10 tested positive, which is 16.4 per cent of those tested on the recent ANZAC Day long weekend.

SAPOL reported that, of the 363 drug tests conducted, 34 drivers, or just over 9 per cent, returned positive tests. On the same ANZAC Day long weekend, 17,421 alcohol tests were conducted with 66 positive results, a strike rate of 0.38 per cent. It is patently obvious to me that, while we may be getting the drink-driving message, drug driving is out of control. Imagine the public outrage if 9.3 per cent of the total 17,421 alcohol tests were positive.

Because SAPOL conduct far fewer drug tests than alcohol tests, we do not understand the true extent of the problem but the indicators we have are absolutely shocking. The front page of The Advertiser yesterday, or the day before, made for very sobering reading. It revealed new SAPOL figures that show one in six motorists tested by police is driving with drugs in their system. That is a 140 per cent increase over the past decade, when the rate of drug driving was just one in 19. I heard SAPOL's Officer in Charge, Traffic Services Branch, Superintendent Bob Gray, say just last week that this issue is the most concerning he has seen in his entire time in charge.

It is becoming increasingly concerning that, unlike alcohol-related road fatalities, the number of motorists killed in road crashes who test positive to drugs is steadily increasing. Each year since 2014, the number of drivers and riders killed on our roads who tested positive for drugs has overtaken the number of drivers and riders killed with an illegal blood alcohol concentration level. According to SAPOL, about 24 per cent or one in four of those killed in road crashes over the past two years returned positive drug tests.

We need to take whatever steps are necessary to make sure our roads are safer than they are at present, and we now have those commitments from this government. In particular, I want to ensure the penalties for drug and drink-driving are treated equally seriously, with the same loss of licence on the spot and the same fines and penalties for those offences as drink-drivers. It is time road users detected with illicit drugs in their system are treated the same as drink-drivers and lose their licence on the spot for more than the current 24 hours. In most cases, as we know, those same drug drivers are back on our roads just after one day. If they elect to be prosecuted, they can stay on the roads until their matter is resolved.

Many of these offenders know they can game the court system with adjournments to maximise the period they can stay on the road. I think the longest period we have heard of in one instance was 12 months. Someone returned a positive roadside drug test and returned a positive forensic test and the matter was referred to court. There were a number of adjournments and some 12 months later they finally reached the day when they had to face their charges. But throughout that 12-month period they were allowed to drive each and every day, so they managed to game the system for their benefit very well.

The amendments that I have proposed mean that these drivers would have automatically lost their licence until the matter had been dealt with by the courts or they expiated the fine. Therein lies the incentive in terms of dealing with this matter very quickly: if you are going to face the penalty, suck it up, face it quickly and stop presenting a danger on our roads.

When we have six drivers detected for drug driving while taking children to and from schools, like we did in just one SAPOL blitz in February this year, we have to conclude that these people have no regard for themselves, for their own children and, most certainly, could not care less about other motorists or pedestrians. This is despite penalties for drug driving with children in cars increasing in 2017. These penalties are clearly not working as a deterrent. As Dr Baldock, the Director of the Centre for Automotive Safety Research, concludes, most drug drivers do not think they will get caught.

It is truly shocking to me that drink-driving has decreased while drug driving has increased exponentially. When we consider that roadside testing stations administer drug tests in only a small proportion of roadside tests because of the prohibitive costs, it becomes even more alarming that drug driving has absolutely eclipsed drink-driving. I shudder to think at what the positive roadside test numbers would be if every driver stopped at an RBT were tested for drink and drugs, something I believe we must introduce if we are genuinely serious about reducing our road toll.

I understand that, unlike for alcohol, a drug test can only show a detectable level or not; it is not calibrated like prescribed blood concentration of alcohol in our system. I also very clearly understand that only 2.7 per cent of motorists detected roadside with drugs in their system go on to return a negative test to a detectable level. So 163 of the 6,064 positive roadside samples went on to test negative, known as false positives, in the Forensic Science SA lab in 2019. Based on this SAPOL data, I reject the Law Society of South Australia's claim that there is a high rate of false positives.

I get it that in theory 163 people could have been disadvantaged by not having their licence for up to 10 to 14 days while forensics conducted secondary tests on those samples obtained on the roadside, but the greater good of protecting the other 97 per cent of us on the roads is, to me, more important and should take precedence over the 3 per cent who may be inadvertently deprived of their licence until those results come through.

I am pretty sure the public would agree that this is a small price to pay. The obvious answer to dealing with any opposition to this initiative is to speed up the tests from 10 to 14 days down to, say, three to five days. That can be done. There is nothing stopping us from doing that other than political will and a bit of resourcing. It is purely a resourcing issue. If that is what it takes to keep the other 5,901 drivers with detectable levels of drugs in their system off the road then, again, that is a very small price to pay for keeping the majority of us safe.

If you commit both drink and driving offences, I also want to ensure the penalties for these offences are served cumulatively and not concurrently. You should not receive any discount on the respective penalties for committing two offences concurrently. I believe you should serve each penalty as they were each intended to be penalised, that is, cumulatively.

The New South Wales parliament recently passed legislation creating a new combined alcohol and drug-driving offence. I know this is something that I have put to the government and we are working through it. Given many offenders are driving with detectable levels of drugs in their system and prescribed concentrations of alcohol over the legal limits, I think we all have a duty to ensure that both offences are penalised as they were intended to be.

I read and hear about too many cases—in fact, we all do—where the minor offence penalty is treated as a subset of a main offence and one penalty either is suspended or ordered to be served concurrently. That is what this amendment seeks to address. We need to make it very clear to the courts that this is what parliament intends in section 47B offences.

I am calling on the government to do a bit here. I am calling on the government to increase the penalty for driving while disqualified from holding a licence or learner's permit from the current six months for a first offence to 12 months. For a subsequent offence, the penalty would be increased from two to three years. These increased penalties would not apply when the licence or learner's permit has been suspended under section 38 of the Fines Enforcement and Debt Recovery Act 2017.

I was staggered to learn from SAPOL that one motorist was reported or arrested 43 times over a 12-month period for driving while disqualified. In 12 other separate instances, drivers were busted driving while their licences were disqualified 22 or more times over a five-year period from 2015-16. So we will be looking to have these issues addressed by ensuring SAPOL has the power to get these drivers off our roads immediately and we will be looking to the government to ensure that it extends its end of the deal and drafts these provisions accordingly.

We all always do what we can to combat the number of families that are forced to endure the grief and loss of losing a loved one or having a loved one seriously injured in a car accident. No initiative will ever be able to completely negate human error to reduce the road toll to zero. But where we do have legislative power to introduce amendments that will have a positive and measurable impact on making our roads safer, then I think it is incumbent on us to do just that.

It is very clear that the community has had enough of what can only be described as irresponsible, careless and reckless behaviour. The current penalties clearly do not work as a deterrent or to protect us. Sadly, we are living in a drug pandemic that is having a huge impact on road safety. The bill and incorporating these amendments into a subsequent government bill are immediately capable of having a real and measurable positive impact on our shocking road toll.

All that said, I do want to acknowledge that the Hon. Tammy Franks also has a bill that deals with driving with medicinal cannabis. They are also conversations I have had both with the minister but more importantly, in my view, with SAPOL. I do believe there is a road forward and that a compromise can be reached between illicit drug use and driving and medicinal cannabis use and driving. We as a parliament must act to protect our citizens in whatever way can.

With those words, I indicate our support for the second reading of this bill and look forward to the government's commitment as outlined in my contribution.

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

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