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Legislative Council - Fifty-Fourth Parliament, Second Session (54-2)
2021-11-18 Daily Xml
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Road Traffic (Drug Driving and Careless or Dangerous Driving) Amendment Bill

Second Reading

The Hon. S.G. WADE (Minister for Health and Wellbeing) (17:03): I move:

That this bill be now read a second time.

I seek leave to insert the second reading explanation and explanation of clauses in Hansard without my reading them.

Leave granted.

The Marshall Liberal government is committed to ensuring that South Australian roads are as safe as possible and that drivers who put other road users at risk are excluded from driving as soon as they are caught. This Bill allows police to step in at the roadside where drivers have engaged in clear-cut behaviour that puts the safety of road users at risk. For the first time anywhere in Australia, the Bill will allow for police to issue a notice of immediate loss of licence for a first offence of drug driving.

The Bill complements the recent amendments to the Criminal Law Consolidation Act 1935 which allows police to issue a notice of immediate loss of licence for the offences of extreme speed and causing death or harm through use of a motor vehicle.

Speed kills. Reckless and dangerous driving kills. Drug driving kills. Offenders should have, and will have, their authority to drive removed at the earliest possible opportunity. This Bill will see justice that is swift, certain and fair. Most importantly, these changes seek to protect the law-abiding community.

Driving is a privilege, not a right. If irresponsible and selfish drivers are putting other road users at risk, our community would expect action to be taken immediately. So the Bill will allow police to issue a notice of immediate loss of licence for the offences of reckless and dangerous driving, and drug driving. It removes the need for police to first issue an expiation notice for the offence of excessive speed before issuing a notice of immediate loss of licence.

The Bill extends the scope of aggravating circumstances that will now be applicable to the offences of both careless driving and excessive speed. They will align with those in the Criminal Law Consolidation Act 1935 including driving a stolen vehicle, driving on a restricted licence or without proper authorisation to begin with or having passengers in the vehicle.

Too many lives have been needlessly lost through this type of behaviour, and I want to take this opportunity to thank the family and friends of Nicholas Holbrook for allowing police to recently bring the story of his tragic death to bear on the public conscience.

The Bill also raises the financial penalty for excessive speed and allows for imprisonment for an aggravated or subsequent offence. It will also provide for the possibility of a longer imprisonment term for a subsequent offence of reckless and dangerous driving.

Importantly, the Bill will enable the Commissioner of Police to withdraw a notice of immediate loss of licence and reissue a fresh notice. This power will allow irregularities to be cured without losing sight of the original offending. Until now, a person to whom a notice of immediate loss of licence is given has had to apply to a court to lift or modify a roadside suspension or disqualification. In the past, this has occurred, for example, when an offender has given a false name and/or address, requiring an innocent party to seek the assistance of the court to clear their name. Under this Bill, such issues will be able to be cured administratively by police.

For those who persist in driving when prohibited from doing so, the Bill also increases the relevant penalties. Driving suspended or disqualified, when not a fines enforcement matter, will be increased to 12 months' imprisonment for a first offence, with a second or subsequent offence attracting up to three years' imprisonment.

As part of the refining process of the Bill, the Government made the following minor amendments in the other place:

An obsolete reference to sub-section 45(6) of the Road Traffic Act was deleted from section 45B(10)(b).

Courts can order that a person found guilty of refusing a blood test must pay reasonable pre-trial costs incurred by the prosecution, such as conveying the person to a hospital before they refuse.

An amendment to ensure that drug drivers whose licences are suspended are treated the same as those who are disqualified; that is, to ensure that they return to driving with a probationary licence and having passed a dependency assessment, if required.

The Road Traffic (Drug Driving and Careless or Dangerous Driving) Amendment Bill 2021 is another significant step as part of a suite of measures already implemented by the Marshall Liberal government since 2018 to increase road safety for the community. The Bill significantly strengthens the legislative response both to the initial stage for breaches of our road rules and also to the penalty regimes that follow.

I look forward to all members joining me in sending a message to selfish drivers that their reprehensible behaviour will not be tolerated.

I commend the Bill to the house and I seek leave to have the explanation of clauses inserted in Hansard without my reading it.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Road Traffic Act 1961

4—Amendment of section 45—Careless driving

This clause amends section 45 of the principal Act to expand the list of aggravating circumstances that apply.

5—Amendment of section 45A—Excessive speed

This clause amends section 45A of the principal Act to make provision for aggravated offences and sets out the aggravating circumstances that apply.

6—Amendment of section 45B—Power of police to impose licence disqualification or suspension

This clause amends section 45B of the principal Act to provide that the notice of licence disqualification or suspension may be issued if the police officer reasonably believes that the person has committed an offence against section 45A of the principal Act.

This clause deletes subsection (6).

The clause also makes provision for the withdrawal of a notice in certain, specified circumstances.

7—Amendment of section 45D—Power of police to impose licence disqualification or suspension for section 45C etc offences

This clause amends section 45D of the principal Act to alter the commencement of the relevant period for the purposes of the provision.

8—Amendment of section 46—Reckless and dangerous driving

This clause substitutes the penalty provision to provide for first and subsequent offences.

9—Amendment of section 47D—Payment of costs incidental to apprehension etc

This clause amends section 47D of the principal Act to expand the list of costs that the court may order.

10—Amendment of section 47IAA—Power of police to impose immediate licence disqualification or suspension

This clause amends section 47IAA of the principal Act to include offences against sections 46 and 47BA(1) or (1a) in the list of offences to which section 47IAA applies.

The clause substitutes subsection (2) to make special provision for the issuing of a notice of immediate licence disqualification or suspension in the case of an offence against section 47BA(1) or (1a).

The clause amends subsection (12) to make special provision (in relation to the commencement of the relevant period) for a notice of immediate licence disqualification or suspension in respect of an offence against section 47BA(1) or (1a). It also amends subsection (12) to make special provision (in relation to the end of the relevant period) for a notice that relates to an offence against section 47BA(1) or (1a).

The clause also makes provision for the withdrawal of a notice in certain, specified circumstances.

11—Amendment of section 47IAB—Application to Court to have disqualification or suspension lifted

This clause amends section 47IAB of the principal Act to facilitate the making of an application to the Magistrates Court to have a disqualification or suspension lifted in relation to a notice of disqualification or suspension issued under section 45B(1)(b).

12—Amendment of section 79B—Provisions applying where certain offences are detected by photographic detection devices

This clause inserts subsection (4a1), which disapplies subsection (4) in the case of an expiable offence against section 79B if the prescribed offence that the vehicle appears to have been involved in is an offence against section 45A of the principal Act.

Schedule 1—Related amendments

Part 1—Amendment of Motor Vehicles Act 1959

1—Amendment of section 74—Duty to hold licence or learner's permit

This clause amends section 4 of the principal Act to insert a reference to section 91(5a).

2—Amendment of section 79B—Alcohol and drug dependency assessments and issue of licences

This clause makes an amendment that is consequential on the amendments to section 81D that provide for the cancellation as well as the disqualification of a licence or permit.

3—Amendment of section 81AB—Probationary licences

This clause makes an amendment that is consequential on the amendments to section 81D that provide for the cancellation as well as the disqualification of a licence or permit.

4—Amendment of section 81D—Disqualification for certain drug driving offences

This clause amends section 81D of the principal Act to provide for the cancellation or disqualification of a licence or permit on expiation of an offence to which the section applies.

5—Amendment of section 91—Effect of suspension and disqualification

This clause amends section 91 of the principal Act to provide that a person must not drive a motor vehicle on a road while the person's licence or learner's permit is suspended or while the person is disqualified from holding or obtaining a licence or learner's permits. The provision sets different penalties depending on whether the person's licence or learner's permit is suspended under section 38 of the Fines Enforcement and Debt Recovery Act 2017.

6—Amendment of section 139BD—Service and commencement of notices of disqualification

This clause makes an amendment consequent on the proposed amendments to section 81D(2).

The Hon. C. BONAROS (17:04): I rise to indicate SA-Best's strong support for the Road Traffic (Drug Driving and Careless or Dangerous Driving) Amendment Bill. As members may recall, I introduced my own private member's bill, the Road Traffic (Drug Screening) Amendment Bill, in September 2020, but I am extremely pleased to see the more comprehensive bill before us today that has come up from the House of Assembly.

I would like to thank the Minister for Police, Emergency Services and Correctional Services, Hon. Vincent Tarzia, and his office for working with us in a spirit of collaboration and cooperation to achieve the objectives of this bill. If I do not mention Oli, I might fall in the unfavourable books, so I will mention Oli, because he has been great on this bill, as he was on the previous proposal that we worked on.

The process we have undertaken throughout the year has facilitated more extensive consultation with stakeholders, including SAPOL, the Law Society of South Australia and drug and alcohol services. As I have said many times, I make no apologies for our commitment to ensuring South Australian roads are as safe as possible and drivers who do not adhere to our safety standards are prevented from driving as soon as they are detected. Protecting law-abiding citizens on our roads should be one of our highest priorities, and therefore we should be doing everything we can to make that happen.

I have read the response from the Law Society, and I followed up its specific concerns with the ministers. I do note that that came from their criminal division also, which obviously has its own views on these issues. I am confident that this bill gives SAPOL the new significant powers that they warmly welcome, but it is also proportionate and fair.

I will not go into too much detail about our appalling road toll statistics or the incidence of drivers testing positive to drugs being on a seemingly unstoppable upward trajectory, but I was alarmed to learn from SAPOL recently that one in seven of all drivers detected—and remember they do not test all our RBT drivers for drugs—are testing positive for drugs.

I will not share the tragic stories of the preventable deaths on our roads or the fatalities involving innocent law-abiding drivers impacted by very selfish and irresponsible actions of others, but I would like to pay my respects to their families. I am sorry for their loss and injuries caused to their family members by these reckless individuals. We not only have a viral pandemic to deal with in SA, we also have a prevalence of drug use on our roads that is unprecedented, and we have to do something. The overwhelming majority of South Australians—I would say most South Australians—do not want to share the roads with people who have consumed drugs prior to taking the wheel of a motor vehicle.

For the first time anywhere in Australia, this bill gives frontline police officers the power to impose an immediate licence disqualification or suspension for a first offence of drug driving where it is reasonably suspected a person has committed the offence. I am especially pleased to see this provision, as SA-Best has strongly advocated for immediately removing these offenders from our roads. We have done so off the back of some very convincing data and FOI results that we have received from SAPOL, which clearly demonstrate—and I have said this before in this place, but I am one of those people who needed convincing—if you provide a positive test on the roadside, then overwhelmingly, over 95 per cent of the time, you will also provide the same result from the forensic analysis that is subsequently undertaken.

Forensic SA analyses are exceptionally low in terms of false positives for roadside tests. Offenders still have to have an oral fluid analysis in the laboratory to rely upon, but, as we know and SAPOL and Louise have told us, people charged with drug driving are often able to remain on our roads long after a positive roadside test has been returned. I think the worst example we heard from the police was someone who was able to continue having their matter adjourned for some 12 months before finally having the courts deal with their matter. They effectively are playing the court system to keep driving for months.

SAPOL will now be able to get drug-affected drivers off our roads at the time of offending and not just for 24 hours. That is the position that we have had up until now. It has been an extremely contentious position in terms of the way we have dealt with it in this place previously, but the evidence is in, and there is clearly a case to be made for the fact that drug driving should be treated in exactly the same way as drink driving. If the driver's oral test in the lab returns a negative finding, then we have erred on the side of caution in a minuscule number of cases.

I can tell you that the public support we have had for this, because of the menace that these drivers create on our roads and the risks that they present, has been overwhelming. I can also tell you that I have now had many discussions with SAPOL, and this is an issue that they support. In fact, it is one that they brought to my attention at a meeting I had with them last year prior to the introduction of that bill because basically what they are saying is, 'We need a closer causal link between the actual driving and the subsequent disqualification.'

There are always going to be idiots who despite our best endeavours get behind the wheel of a car, even if we do impose those disqualifications, and will continue to cause a menace on our roads. There will be idiots who are so off their faces on drugs that they will not even appreciate the risks they are presenting to the rest of the community.

I do not dismiss that element of this. In fact, I will go one step further and say that it is my firm view also that, whilst we deal with the penalties and the severity of the penalties that ought to be dished out to these people, we have an absolute responsibility to also be addressing the services that we are providing in terms of drug rehabilitation, and they are woefully inadequate in this jurisdiction, and something that again I have been urging the government to address.

These issues go hand in hand. You have people offending, we know that. We know people are killing innocent people on the roads, and we know that people are getting behind the wheel of a vehicle off their faces and they continue to take part in the same behaviour, but that is also very closely linked to the lack of appropriate resources and services available for rehabilitation services in this jurisdiction. So I think that is an important point that needs to be made.

In terms of those same idiots who keep doing the same thing, wilfully, I am pleased to see that the bill also expands the circumstances which make an offence of excessive speed and careless driving an aggravated offence, including where a vehicle is being stolen or being pursued, there is more than one passenger in the car, and where the driver is on their Ps, Ls or, indeed, where they are unlicensed.

Aggravated offences, of course, attract a heavier penalty, and we think that is entirely appropriate for the deterrent effect these provisions are intended to have. Repeat offenders will be further penalised with the new fines and terms of imprisonment. There are a number of administrative provisions that ensure police can withdraw an instant loss of licence if a driver has given false details, which SA-Best agrees are necessary to protect innocent victims.

I think during my last discussion with SAPOL on this issue at the government briefing, we discussed the role that the courts have to play in this, and I think it is fair to say that the courts are looking to this parliament for some guidance, because if we are complaining that people are not receiving hefty enough penalties that clearly means that the penalties that we are dishing out are not hefty enough.

I am very hopeful that this bill sends a clear message not only to those individuals who take part in this sort of reckless and dangerous behaviour but also to our judiciary and our courts who then administer those penalties. We have implemented a new penalty regime in this bill for very good reason, and I am certainly hopeful that the culture, if you like, or the practice of dishing out those penalties will adapt as a result of these increased penalties.

Last week, I think we covered a story of someone who drove a motor bike going about 200 ks. They were on methamphetamine. That particular instance is very similar to one that happened a few months ago and there may have been a police pursuit in this one as well but I cannot recall correctly. I was a bit miffed by the fact that that individual, who was clearly breaching their responsibilities on the road but was also under the influence of drugs, was able to get police bail as a result, after their offending.

It is also my firm view that in addition to the courts changing the way that they impose these penalties, it will also change or adapt the way that we view the issuing of bail to those individuals as well. If there is one sure-fire way of getting that individual off the road it is not to grant them bail when the police arrest them and lay charges against them. Those things sometimes act as circuit-breakers and if we want to keep people on our roads safe then I think we should be using every tool in the kit to do that, so I am hoping that there will be a flow-on effect throughout SAPOL and the way that they deal with these individuals when they apprehend them, finally, after causing that sort of behaviour on our roads.

With those words, I am again grateful to the Minister for Police, Emergency Services and Correctional Services for spending the time that he has with us and appreciating the issues that we have outlined, and to his office for their hard work in getting us to this point. For the record, and this is really for the benefit of all members, I will lastly indicate, as I did to the police when I met with them, that nothing in this bill should come as an indication that it cannot coexist with a separate proposal that is on this Notice Paper and was brought to this place by the Hon. Tammy Franks in relation to driving and medicinal cannabis use.

That bill proposes to treat medicinal cannabis as you would any other prescription medication for the purposes of driving. In my view, that is a very sensible bill. We know that medicinal cannabis is a heavily prescribed medication that comes in different forms, and provided that you have the appropriate medical clearances to drive with medicinal cannabis, there is absolutely nothing that prevents these two schemes from coexisting.

In one instance you are talking about someone who is on the road under the influence of illicit substances and in the other instance you are talking about someone who is driving with a legal prescribed drug in their system. It would not be treated any differently from any other legal prescribed drug. In fact, if the medicinal cannabis in question were to have an effect on your driving abilities then I think it is fair to say you simply would not get the exemption from the treating medical doctors to drive while under the influence of that drug.

I have certainly had those discussions with SAPOL. I will not speak for SAPOL but my take on those discussions is that if that scheme were to be brought into place it would be treated in precisely the same way that we treat all medical prescribed drugs, and that absolutely those two schemes are able to coexist. With those words, I indicate our overwhelming support for this piece of legislation.

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

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