Page 1715 - Week 05 - Wednesday, 5 May 2010
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roadside drug testing legislation to have the road safety effects intended, the legislation does need to be very carefully crafted and does need to be crafted or drafted in the right way. To that extent, it is important that it be understood not just by legislators, the courts, politicians and perhaps the police, but by the general public at whom it is aimed. We have genuine concerns that this bill can be improved upon in those regards.
We think there are some serious flaws that make this particular approach impractical for the courts to uphold, particularly when random roadside drug-driving charges get to the court. We believe that aspects of the way in which this particular model for roadside testing has been crafted will make it very difficult for the police to undertake random roadside tests. That is the advice which my department provides to me, and it is advice that I choose to accept. Mr Hanson has another view. Indeed, Mr Hanson can rightly claim that his model is based very much on the Victorian model. I am advised that there are differences and exceptions which are important in relation to the similarity between the two.
As I say, I would welcome an opportunity at the detail stage to be able to put forward some proposals for change to some of those issues. Some of the issues which we will go to in amendments that we would propose to move go to what I am advised is the impracticality of the nature by which the tests will be undertaken as a consequence of the approach Mr Hanson proposes. For instance, I am advised that there are issues in relation to clause 5 of the bill and the definition of “approved drug screening device” as a device that can “give an indication of the concentration of the drug in the person’s oral fluid”. The technical advice that I have received from the department is that there are serious issues and concerns with that particular approach to determining whether or not a person has taken drugs. I am advised, for instance, that, firstly, the equipment currently available for accurately determining the concentration of a particular drug in a person’s oral fluid is not appropriate for use in high volume roadside drug screening programs. The roadside screening and analysis devices currently in use in Victoria and in other jurisdictions, including Tasmania, are designed primarily to detect the presence of certain illegal drugs. They do not provide an evidentially certain indication of the concentration of those drugs in a person’s oral fluid.
You might say that you will not get to that because you will, by other devices, insist that there be no concentration. So in fact, whilst it is determined or explained or defined as a process that actually determines the presence—that the approved drug screening device is designed to determine the concentration of the drug in the person’s oral fluid—it will never, ever get to that because there will be a nil concentration determined. But that is incredibly clumsy. In an evidentiary sense, if these matters are challenged in court, I am advised that, after a charge, these matters will create very significant evidentiary issues for a prosecutor.
The experience from random breath testing programs in other places, I am told, shows that a high volume of random roadside tests must be carried out each year in order to produce a change in driver behaviour. Essentially, unless there is visible enforcement of the legislation, people who would drug drive would not be deterred. And, because police have no access to a screening device that can measure the concentration of a
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