Page 5716 - Week 13 - Thursday, 18 November 2010
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We have worked hard with government staff. I note there are some in the chamber today. I welcome them and appreciate the hard work that they have done on this legislation in the past weeks. We have also worked hard with the Greens to fix up some necessary amendments.
Indeed, I have met with the police and received briefings from the government on changes to the random roadside drug testing legislation and I have been convinced that all of these amendments are either technologically driven or technical in nature. In fact, the police officer who provided me with the briefing described them as such.
The first such amendment that requires a person to undertake one or more tests is an important acknowledgement that the Drugwipe test that will be used by the police can break. As with all technology, that is a possibility and it may be a malfunction. This is a necessary but minor amendment to ensure that police can adequately test all people regardless of the technology utilised.
This is similar to the amendment required to ensure that people do not leave the location of the test until the test results are derived. Once again, the technology means that for drug testing we must accommodate the five to 10 minutes that may be needed for the drug test analysis sample to be provided. The scrutiny of bills committee raised the notion that this requirement to stay in location could constitute an intrusion into a person’s rights but we agree with the justifications outlined by the government that this is a justified intrusion.
I have already touched on the changes the government has made to the evidentiary provisions, ensuring that prosecution will be derived from the laboratory analysis, to ensure that the most accurate means of testing will lead to prosecution. We support this amendment also.
Strict liability is an important but once again minor amendment to the bill. Alcohol driving legislation has always been treated as strict liability; otherwise it would be difficult to bring a case to prosecution. As stated in the explanatory statement to this bill, the ACT courts have always treated this as a strict liability offence, just like all other Australian jurisdictions for their equivalent offences. An explicit statement in the legislation for random roadside drug tests ensures that it is blatantly obvious to everyone that the equivalent applies here.
The scrutiny of bills committee has raised the idea that, due to the possibility of imprisonment that arises from the legislation, the strict liability must be carefully considered. They raise the notion that a due diligence defence could be an option considered. We do not agree that this would be a necessary or a useful amendment to be made. It would send a conflicting message to the people of the ACT if we made it explicit that in our legislation they may be able to argue that they did not intend to drive under the influence of drugs or alcohol.
As the government’s response to the scrutiny of bills committee states, it is also difficult to perceive the possibility that a due diligence defence could rightly be used when a high-range offence, the only one that can lead to imprisonment, has occurred.
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