Hansard debates

                        ROAD SAFETY (DRUG DRIVING) BILL
                                 Second reading

  Mr BATCHELOR (Minister for Transport) - I move:
  That this bill be now read a second time.
The main purpose of this bill is to  introduce random  drug testing for drivers,
as the next step in the government's Arrive Alive road safety strategy to reduce
deaths and injuries on Victoria's roads by 20 per cent by 2007.
The drug-driving problem

Drug-driving is now as much a factor in driver fatalities on Victoria's roads as
drink-driving.
Research by the  Victorian  Institute of Forensic  Medicine shows that in  2002,
drugs other than  alcohol were detected in  the blood of 27 per  cent of fatally
injured  drivers,  almost as many  as  the 29 per cent  who  had a blood alcohol
concentration  above  the legal  limit  of .05 grams  per  100 millilitres.  The
corresponding  figures  in  2001  were  even  higher  for  drugs at 29 per cent,
compared to 22 per cent for alcohol.
Over 16 per cent of drivers killed in road crashes in 2001, and over 20 per cent
in  2002, tested positive to delta-9-tetrahydrocannabinol  (often abbreviated to
THC),  which is the active component of cannabis, or to amphetamines  and  other
stimulant drugs. In  2002, the  use of these drugs was associated with almost 50
driver deaths.

Despite an  11 per cent reduction in the overall road toll in 2002 compared with
2001, there were a similar number of drug-related road deaths  in each  of those
years. In a 10-year study of truck driver fatalities in Australia, the Victorian
Institute of Forensic Medicine found that 25.8  per cent of truck drivers killed
on the  roads tested positive  to drugs that could  impair driving. Ninety-seven
per  cent of  these  drug-positive  fatalities  tested  positive  to THC  or  to
stimulants.  The  majority of these tested positive to  either  THC  or  to  the
illicit stimulant, methylamphetamine (also known as methamphetamine).
Measures to reduce drug-related road trauma
This  bill  builds   on   the   government's  previous  initiatives  to  address
drug-driving.  In  2000  legislation  was  introduced   for  the  detection  and
prosecution of persons found driving while impaired by a drug.

That  legislation,  the  Road  Safety  (Amendment)  Act  2000,  arose  from  the
recommendations of the parliamentary Road Safety  Committee in its  1996 inquiry
into the effects of drugs other than alcohol on road safety in Victoria.
The measures  introduced at  that time have proven to be very  effective when  a
driver demonstrates gross impairment as a result  of drug  use. In the first two
years of operation of drug-impaired driving enforcement 375 drivers were charged
with offences under these provisions. Of these  375  drivers,  56  per cent were
detected  by  police observation  of  driving  behaviour and  44  per  cent were
detected following involvement in non-injury collisions.
However, as is  the  case  with alcohol, the  effect  of drugs on  the  risk  of
crashing can be substantial well before gross physical impairment is evident.

This bill seeks to  address the growing incidence of drug-driving fatalities  by
extending  the existing drink-driving and drug-driving provisions  of  the  Road
Safety Act  1986  to allow the introduction of random roadside screening for THC
and methylamphetamine - both significant hazards to road safety.
Recent technological advances have  made it possible to screen for low levels of
certain drugs by testing samples  of  oral fluid using portable equipment at the
roadside.
Random roadside screening has  been demonstrated to be a highly effective  means
of  deterring drivers from illegal behaviour. The introduction of random alcohol
screening  in the late 1970s  has produced a substantial and prolonged reduction
in alcohol-related  casualty crashes. The road safety benefits of  random breath
testing were apparent even with enforcement  levels at the time  of introduction
that were much lower than is now the case.

If drivers using THC and methylamphetamine are deterred by the fear of detection
as expected, this could  save  many  lives  and serious injuries each year. This
would in turn save the community millions of dollars  per annum,  not to mention
the appalling grief and suffering of victims, families and friends.
Existing drug-driving provisions, which require proof of actual impairment, will
continue  to  apply,  both to deal with impairment from drugs  which  cannot  be
detected effectively at the roadside with existing  technology, and to deal with
noticeable impairment arising from the use of those drugs for which screening is
feasible.
As a community,  we need to face up  to  the fact that drug-driving is  as big a
problem  as  drink-driving. We need to deter drug-driving and  we  need  to  get
drug-drivers off the road.

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That is what this bill aims to do.
New offences
New  drug-driving  offences   will  be  created  which  correspond  to  existing
drink-driving offences, namely -
  driving  or  being in charge of a motor vehicle while prescribed illicit drugs
  are present in the person's oral fluid or blood;
  providing  a sample of oral fluid or blood within 3  hours of driving or being
  in charge of a motor  vehicle  which  tests positive to the prescribed illicit
  drugs; and
  refusing to provide a sample of oral fluid when lawfully required to do so.

These offences carry fines of up to $600 for a first offence and up to $1200 for
a second  offence.  Offenders  may also  have  their driver  licence  or  permit
cancelled for up to three months in the case of a first offence or six months in
the case of a subsequent offence.
The   two  drugs   defined   as  'prescribed   illicit   drugs'   are  THC   and
methylamphetamine.
These two illicit drugs have been selected for random roadside testing because -
  there is clear evidence that drivers using these drugs  are  at increased risk
  of causing crashes;
  they are the impairing substances with  the highest incidence,  after alcohol,
  in the blood of fatally injured drivers;

  neither THC nor methylamphetamine  are  found  in  any Australian prescription
  medicines; and
  they  can be  reliably detected in oral fluid samples of  drivers at  the time
  that they will adversely affect a driver's ability to drive safely.
There will be no legally permitted amount for these prescribed illicit drugs for
the  purposes of the Road  Safety Act. Even very low  levels of these drugs have
been shown to have an adverse effect on the abilities necessary to drive safely.
Testing and analysis procedures
The bill contains provisions  to allow roadside drug  screening to be undertaken
using oral fluid screening technology.

It  will enable  a member  of the  Victoria Police, or an authorised  officer of
Vicroads or of the Department of Infrastructure,  to require oral fluid  samples
from  drivers  of  motor  vehicles  for  the  purposes  of  preliminary testing.
Procedures will closely follow the established random breath-testing  model,  as
do the proposed legislative requirements. The preliminary screening test will be
conducted by  requiring a person to suck or chew an absorbent  pad or other oral
fluid  receptacle. The oral fluid sample will then be tested using a  prescribed
oral fluid screening device, which will provide a result within a few minutes.
If the  test  indicates the presence of THC or methylamphetamine, the driver may
be required to provide a further sample of oral fluid. This sample will also  be
tested on an oral fluid screening device.  The device  used for this second test
and the procedure for its use will be prescribed by regulations.

If this second test also indicates the presence of one or both of the prescribed
illicit  drugs, this  second sample will be divided, with one part given  to the
driver and the other part sent to a forensic laboratory for  evidential analysis
by a  properly qualified analyst.  The  result of this  laboratory analysis will
form the basis of any charge.
As is currently the  case under the drink-driving provisions, a driver will have
a right to require  a  blood sample to be  taken for analysis. In addition,  the
police member or authorised officer who required the oral fluid sample will have
the power to require a blood sample  if the driver is unable to provide an  oral
fluid sample for the second test on medical grounds or because of  some physical
disability  or  condition, or if the testing device is incapable of testing  the
sample. Blood samples  can be taken only by registered medical  practitioners or
approved health professionals.

Only  police members and authorised officers who have been appropriately trained
will be able to take a sample of oral fluid for the second confirmatory test and
evidential analysis.
The bill also provides for the giving of evidence of authorisation  to collect a
sample  of  oral  fluid  for  the  purposes  of  the  Road  Safety Act,  and for
certificate evidence to be presented as  to  the  taking  and  analysing of oral
fluid samples.
The bill also clarifies  the grounds on which a  member of the police  force may
form the  opinion  that  a  person is physically or mentally incapable of having
proper control  of a motor vehicle so that, under section 62  of the Road Safety
Act, the officer may forbid the person  from driving,  or may  take the driver's
car keys. The bill  clarifies  that an officer may  form such an opinion if  the
person's breath or oral fluid has been tested and the 

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breath analysis indicates more than the prescribed concentration of  alcohol, or
the second oral fluid  test  indicates  that  the person's oral fluid contains a
prescribed illicit drug.
Section 85 statement
I wish to make a statement for the purposes of section 85(5) of the Constitution
Act 1975.
Section 94B of the Road  Safety  Act 1986, to be inserted by clause  21  of this
bill, will state that it  is the intention of section  55E(17) to alter or  vary
section 85 of the Constitution Act 1975.

The effect of section 55E(17) will be to confer immunity  on certain persons for
carrying  out  certain procedures under  the  Road Safety Act  1986, and thereby
prevent the bringing  of proceedings against those persons in the  Supreme Court
in respect of those procedures.
Section 55E of the Road Safety  Act 1986, as inserted by clause 13 of this bill,
is  part of the  new  procedures for detecting  drivers with prescribed  illicit
drugs in  their  oral  fluid.  It  includes  provision  for  registered  medical
practitioners and approved health professionals to take blood samples in certain
circumstances.

The  reason  for the  variation  of  the Supreme  Court's  jurisdiction  is that
immunity is necessary  to enable persons who  properly carry out procedures  for
the detection  of  drugs  in  the body of a  driver  to  do  so  without fear of
litigation by persons who are the subject of the tests to  be authorised by this
legislation.
Community safeguards
These  amendments  will only  enable  random  testing of  drivers  for  THC  and
methylamphetamine.  Drivers cannot be made  subject to random  testing for other
drugs without further amendments to the Road Safety Act.
The results of any analysis of oral fluid or blood collected as a result of this
bill will not be able to be used to establish any offence that is not related to
road safety.

Furthermore, the bill contains provisions to ensure that samples taken under the
Road Safety Act cannot be used for DNA testing.
Oral  fluid testing is less intrusive than blood  testing,  but  a  little  more
intrusive  than breath  testing,  because it  takes  a  few minutes  longer  and
requires a person to place an absorbent pad  or other  oral fluid  receptacle in
his or her mouth. However, the  bill requires that nobody be detained any longer
than is necessary to take the samples and conduct the tests.
To  ensure  that  a  thorough  and  complete  review  of  its  effectiveness  is
undertaken, the provisions in this bill allowing for roadside drug screening and
creating the new drug-driving offences will sunset on 1 July 2005.
Prior  to  that  date,  an  evaluation of the operation of the proposed roadside
drug-screening process will be conducted.

This  review  will consider  the  operation and  effectiveness  of the  process,
penalties, privacy issues,  and other relevant  matters, and will  identify  and
recommend  any legislative or  operational changes that  will  maximise the road
safety outcomes of the process.
Victoria  is  the  first  state  to  introduce  this  type  of  legislation  for
drug-driving. We want to ensure that, in gaining the road safety benefits of the
legislation, the rights of all Victorians are safeguarded.
By  sunsetting the roadside drug-screening provisions of this  legislation,  the
government is ensuring  that roadside drug screening  can only continue after it
has  been scrutinised by this Parliament in the light of practical experience of
the system.

This  legislation  will serve  to  deter  drivers from  a  clearly dangerous and
high-risk behaviour.
The  inconvenience of  random  drug testing of  drivers  must, like  the  random
alcohol-testing regime,  be compared to  the tragedies of death  and injury that
occur far too often on our roads.  The  government  believes  these measures are
justified  in  the interests of  further reducing these  fatalities  and serious
injuries on our roads.
After all, what is at stake is people's lives.
I commend the bill to the house.
Debate adjourned on motion of Mr PERTON (Doncaster).


  Mr BATCHELOR (Minister for Transport) - I move:
  That the debate be adjourned for two weeks.