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Legislative Council - Fifty-Fourth Parliament, Second Session (54-2)
2021-11-30 Daily Xml
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Road Traffic (Drug Driving and Careless or Dangerous Driving) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 18 November 2021.)

The Hon. E.S. BOURKE (17:12): I rise to be the lead speaker on this bill. Let me say from the outset that Labor is the party of road safety. This is a road safety bill as opposed to a simple law and order measure. Its primary aim is to increase safety on the roads for all users. It builds on the drug-driving measures developed and implemented by the previous Labor government and is aimed squarely at efficiently removing drivers who are affected by drugs.

Whenever the government introduces measures like this with the full support of SAPOL, it knows that the Labor Party will likely support it, because Labor is the party of road safety. Over 16 years, we made road safety a priority, both through tough legislative measures and through the promotional and advisory work of the Motor Accident Commission. Labor in government made no apology for its zero tolerance approach to road safety. Among other measures, Labor introduced static and mobile driving testing for alcohol and drugs, which is the measure this bill is, in large, building upon. Further, we tackled hoon driving through higher penalties, facilitating targeted policing, and of course legislation to impound vehicles and crush vehicles of reoffending hoon drivers.

In June of this year, the government introduced the Criminal Law Consolidation (Driving at Extreme Speed) Amendment Bill 2021, which again was supported by the opposition. It introduced new laws to deal with dangerous road users who drive at extreme speeds. Extreme speed is defined now as a situation when a vehicle travels over the speed limit by 55 km/h or more when the speed limit is 60 km/h or less, or 80 km/h or more when the speed limit is more than 60 km/h.

This legislative change was a specific request from the Commissioner of Police who, like many involved in this policy space, is constantly grappling with how to deal with those few individuals who put not only the safety of themselves but the general public in harm's way through hoon driving. That bill built on Labor's reforms and in some ways this bill follows from that and, again, the Labor Party will not oppose any of these measures.

This current bill does the following things. It allows the police to issue a notice of immediate loss of licence for the offence of reckless and dangerous driving and drug driving and it extends the scope of aggravated circumstances that will now be applicable to the offences of both careless driving and excessive speed, so they align better with both the other measures in the Criminal Law Consolidation Act.

This bill also increases financial penalties and increases the financial penalty for excessive speed and allows for the first time, I believe, imprisonment for aggravated and subsequent offences. On top of this, it allows the police to recoup pre-trial costs for a defendant who is found guilty of driving under the influence, driving with a prescribed concentration of alcohol and driving with the presence of a prescribed drug. The cost includes additional drug testing if the defendant contests the offence. It will also provide for the possibility of a longer imprisonment term for a subsequent offence of reckless and dangerous driving.

An important feature of this bill is that it enables the Commissioner of Police to redraw a notice of immediate loss of licence and reissue a fresh notice. Until now, a person to whom a notice had been issued had to apply to the court. Obviously, this is a lengthy process. It deals with a situation where an error is made, perhaps because the driver of the vehicle could not be readily identified. The Commissioner of Police now has the opportunity to redraw that notice without recourse to a lengthy court process.

The bill also increases the penalty for driving suspended or disqualified to 12 months' imprisonment for the first offence, with a second or subsequent offence attracting up to three years' imprisonment. It is perhaps the first aspect of this bill, the issuing of immediate loss of licence to someone who tests positive to roadside drug tests, that in many ways mirrors the way the drink-driving regime works.

When a drink driver is detected on the roadside, their licence is temporarily suspended pending the conclusive blood test. The difference with drug driving is that, currently, the conclusive test can take up to a month to be performed by Forensic SA, so a driver who is detected at the roadside with drugs, as opposed to alcohol, in their system can essentially drive away freely until the conclusive test can be performed. On the face of it, this is a sensible measure, as it prevents drug drivers from continuing to drive immediately.

In the other place, the shadow minister raised the topic of medical cannabis, as I am sure others will over the course of this debate. SAPOL advice is very clear and was expanded upon in the committee stage in the other place. SAPOL's advice is that, in relation to cannabis, they can only test for the presence of THC, not levels of presence or level of impairment.

Further, the advice of the Therapeutic Goods Administration is that the person who has THC in their system, whether the THC is from recreational cannabis or from medical cannabis, simply could not drive or even operate machinery. This legislation, like the legislation it builds on, is necessarily inflexible. Further, the current testing can make no distinction between medical and recreational cannabis.

I make no further comment other than to say that Labor supports this aspect of the bill in the absence of any effective alterations. Road safety must remain paramount. I am sure amendments will be brought by others to this place. I will listen carefully to these amendments, but Labor's priority remains the same. The dangers of drug use on our roads are real and getting worse. We need to do everything we can to ensure that our roads are safe for everyone. In that context, Labor supports this bill.

The Hon. R.A. SIMMS (17:19): I rise on behalf of the Greens to place on the public record some of the concerns we have with the legislation that is before us. While I note that this bill has the support of this chamber—I note the support of the Labor Party and, I understand, the crossbenchers—I think it would be remiss of me not to outline some of the concerns that have been raised with the Greens about the implications of this bill. In particular, I want to acknowledge the feedback that we have received from SANDAS (South Australian Network of Drug and Alcohol Services).

One of the key issues that has been flagged with us is that, if a person is detected with cannabis in their system that has been prescribed by a doctor for a medical condition, they could still lose their licence if they test positive for THC, which is the psychoactive ingredient in cannabis. It is important to note that tests for THC detect presence in the system, not impairment. The test can detect prior use over many days, while impairment is likely to persist for about five to eight hours only.

Other countries have looked into this matter and they have provided some provision for people to drive with a level of THC within their blood system. It is clear that Australia is out of step with other countries that have prescription-only medicinal cannabis, including the UK, New Zealand, Ireland and Germany. They all have policies that allow patients to drive when not impaired.

An article published in the Australian Journal of General Practice, which was published in June of this year, highlighted some of the different approaches that are being used around the world. For example, the Netherlands, Belgium and France all have legal limits for THC in oral fluid, but typically only request samples when there is clear evidence of impaired driving. In Canada, where cannabis was fully legalised in 2018, oral fluid tests, like those used in South Australia, can be used to confirm a suspected case of drug-impaired driving but only when the officer can first demonstrate impaired driving.

I understand that the Victorian government is currently considering legislation that would allow patients using medicinal cannabis to legally drive with THC in their systems as long as they are not impaired. This would bring cannabis and our driving laws into line with current laws for other drugs that are known to impair driving, and I refer here to opioids and benzodiazepines. It is important to note that this proposed reform in Victoria would not extend to the large number of patients self-medicating with illicit cannabis products but rather acknowledge what the research is telling us; that is, people who have been prescribed a legal medicine should be allowed to drive.

While I accept that this bill will pass and there are the numbers in favour of the bill in the chamber, the Greens consider it important for us to put on record some of these concerns and to note that medicinal cannabis is the only prescription medication that excludes you from driving. The Greens are not for one moment suggesting that we should allow people who are impaired to drive. That is certainly not our intention in putting those concerns on the public record, but I think the experience from other jurisdictions around the world proves that there are other models with proven success that could have been adopted in South Australia as well.

The Hon. S.G. WADE (Minister for Health and Wellbeing) (17:23): I thank the honourable members who have made a contribution on the second reading debate: the Hon. Connie Bonaros, the Hon. Emily Bourke and the Hon. Robert Simms. I look forward to further discussion on the bill in the committee stage.

Bill read a second time.

Committee Stage

In committee.

The Hon. S.G. WADE: Just to make a response to the Hon. Robert Simms' comments in relation to driving whilst using medicinal cannabis, the Therapeutic Goods Administration in its publication 'Guidelines for the use of medicinal cannabis in Australia: patient information' states the following:

Patients should not drive or operate machinery while being treated with medicinal cannabis. In addition measurable concentrations of THC (tetrahydrocannabinol — the main psychoactive substance in cannabis) can be detected in urine many days after the last dose. It may take up to five days for 80 to 90 per cent of the dose to be excreted. Drug-driving is a criminal offence, and patients should discuss the implications for safe and legal driving with their doctor.

The government continues to act consistently with clinical advice.

Clause 1.

The Hon. C. BONAROS: Just on from that contribution by the minister and to address some of the points made by the Hon. Robert Simms—and I am hoping that the minister will confirm this on the record—the intent of this bill is to cover illicit drugs. At the moment, cannabis in whatever form is an illicit drug.

The advice that we have and the discussions that we have had with the minister responsible and SAPOL is that there is obviously another proposal, which I have indicated my support for, and that is one that relates to medicinal cannabis. If that separate proposal were to be successful in line with what happens in other jurisdictions, there is nothing in this bill that would actually prevent these two models coexisting.

That is, if there was a separate proposal that had the support of this parliament in relation to medicinal cannabis—not illicit cannabis, but medicinal cannabis—if that were to garner the support of the majority of this parliament, then that law could coexist with this bill, which deals specifically with the use of illicit drugs and driving.

The Hon. S.G. WADE: I would simply indicate that I have huge confidence in the Office of Parliamentary Counsel, and I am sure that if it was the will of this parliament to have coexisting legislation, that would be possible. In fact, if you like, as a result of a recent legislative process in this parliament, we can see how the advance care directives have accommodated the voluntary assisted dying—in that sense, the Consent to Medical Treatment and Palliative Care Act and the Criminal Law Consolidation Act. It is not uncommon for new reforms to be accommodated with amendments to that legislation.

The Hon. E.S. BOURKE: Can the minister advise whether SAPOL had further recommendations or suggested amendments to the act and, if so, why those further amendments were not included in this bill?

The Hon. S.G. WADE: I am advised that there were no other proposals.

The Hon. E.S. BOURKE: Given the intention of this bill is to improve road safety and reduce the road toll, can the government advise if, during the consultation for this bill, the government received advice regarding the reinstatement of the Motor Accident Commission (MAC), given that since its abolishment the road toll has only continued to rise, with the exception of last year with COVID measures in place?

The Hon. S.G. WADE: I am advised that the re-establishment of the Motor Accident Commission was not raised in the context of this bill.

Clause passed.

Clause 2.

The Hon. E.S. BOURKE: I will ask these two questions together, if that is okay with the minister. Can the minister advise what the expected date of the proclamation will be for this bill and why this date was chosen? That couples with the following question: will there be a public awareness campaign regarding any of the amendments to the act in the lead-up to the date?

The Hon. S.G. WADE: I am advised that in relation to clause 2 the date on which the bill will come into operation has not been identified at this stage. There is work that needs to be done, particularly on the development of regulations and forms. I am advised that a credible estimate for the time frame would be at least six months. It is certainly the intention of the government to provide public information in relation to the bill.

Clause passed.

Clauses 3 and 4 passed.

Clause 5.

The Hon. E.S. BOURKE: This question is in reference to clause 5(4) and the insertion of subsection (4a). Were any circumstances considered for inclusion in the list of aggravated offences that were not included in this bill?

The Hon. S.G. WADE: I am advised that all the measures were suggested by SAPOL, and they were suggested by SAPOL to align with the extreme speed bill.

The Hon. E.S. BOURKE: Did the government consider having children present as an aggravation factor under the provisions?

The Hon. S.G. WADE: Consistent with my previous answer, I am advised the answer is no.

The Hon. C. BONAROS: Are there other existing provisions that apply that create aggravated offences when there are children present?

The Hon. S.G. WADE: I presume we are talking about driving legislation. In relation to road traffic legislation, I am advised that there are not other cases where an aggravated offence is established because of the presence of a child, but it may well trigger the need for the person who is charged to undertake a dependency assessment.

Clause passed.

Clauses 6 to 12 passed.

Schedule 1.

The Hon. E.S. BOURKE: Under clause 4, can the minister explain the difference between the operation of the alcohol testing regime and the drug testing regime?

The Hon. S.G. WADE: I wonder if I could ask the Hon. Emily Bourke if she would mind repeating that question.

The Hon. E.S. BOURKE: Can the minister explain the difference between the operation of the alcohol testing regime and the drug testing regime?

The Hon. S.G. WADE: I am advised that both regimes test for presence. If there is an impairment, there is legislation which deals with that. In relation to alcohol, there is an evidentiary roadside test that is available. In relation to drugs, there is no such evidentiary roadside test but there is a positive screening tool.

The Hon. E.S. BOURKE: Is there a difference in the turnaround times between the two testing regimes?

The Hon. S.G. WADE: Alcohol is immediate and drugs is 28 days.

The Hon. C. BONAROS: Following on from the questions the Hon. Emily Bourke has just asked, the statistics that we have received show that generally the negative results that come back from a laboratory are very low in number. We have stats here from around 2.7 per cent. The highest stat is 4.5 per cent, so after the 28-day period we are talking about less than 5 per cent of tests that actually come back with anything other than a negative result. Can the minister confirm that for the record, please?

Members interjecting:

The CHAIR: Order!

The Hon. S.G. WADE: I am advised that over the last three financial years 3.72 per cent of the drug tests received back were not sufficient for the authorities to initiate charges. That is not to say that there were 3.72 per cent that were not positive; it may be that they had been positive below the laboratory threshold to support a prosecution. Also, there may have been issues with the sample quality. For those of us, like myself, who are less scientific, I am also informed that one in seven people we test tests positive for drugs and one in 111 who we test tests positive for alcohol above the legally acceptable limit.

The Hon. C. BONAROS: Just to confirm then, if I use one of the figures, we had figures from 2019, stating that there were 6,064 roadside tests and, of those, 163, or 2.7 per cent, returned a negative result, but even that may not be a negative result because the threshold may not have been reached. So that 2.7 per cent, in actual fact, may be a lot lower than what the stats from SAPOL reflect.

The Hon. S.G. WADE: On behalf of the government, I certainly agree with the Hon. Connie Bonaros's comments.

Schedule passed.

Title passed.

Bill reported without amendment.

Third Reading

The Hon. S.G. WADE (Minister for Health and Wellbeing) (17:42): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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