Page 1688 - Week 05 - Tuesday, 3 May 2011
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driving under the influence of alcohol, and it is not practicable or possible to carry out a full drug screening test at the time.
One further amendment, which was not in the bill as presented but has since been circulated by the minister recently, allows for the analysis of blood samples at an out-of-state testing facility. I understand this is necessary until the ACT is able to establish its own facilities. The amendment will allow roadside drug testing to take place in the interim.
Lastly, I want to foreshadow an amendment that I have proposed to this bill. Mr Hanson has already spoken in relation to that. Proposed section 18C of this bill gives police a new search power in order to search people who are being taken into custody for alcohol or drug testing. This is to allow police to remove weapons or other dangerous items that could harm the person or other people at the police station, hospital or sampling facility. I do not disagree with this new power on principle. Police do need to be able to ensure the safety of themselves and others, and that is obviously paramount.
However, I do believe that we must be very specific when we expand police powers. I take issue with the scope of the power as it is drafted. It should afford a power that matches its purpose, and no more than that. This is especially so when the new power engages human rights under our Human Rights Act, as this new search power does. It is also a search applied to a person who is not under arrest but being taken into custody for further testing. I do acknowledge that the government has responded to scrutiny issues in the response tabled today.
I raised this issue with the government two weeks ago during a briefing on the bill. The scrutiny committee then raised the same issue in its report, saying that there are issues concerning the scope of the power in proposed section 18C because the power proposed in the new section is very wide. The new section gives the police the power to search a person taken into custody and take possession of anything found in the person’s possession. It should not be this broad when the stated reason for the power is only to assess the risk potential of the item in the person’s possessions.
The explanatory statement explicitly states that the purpose of the search is “not to find evidence to establish the person’s involvement in the commission of any offence, but to contain the risk of injury or harm”.
My amendment simply makes the power consistent with its purpose, so that a police officer may search a person taken into custody and may confiscate items that the officer believes, on reasonable grounds, could pose a safety risk during the period of custody. That is the stated purpose of the section and that is how the power should be framed.
I understand that the government will not support this, and now Mr Hanson has indicated that the Liberal Party will not, because they want police to be able to confiscate any illegal or potentially incriminating items they find during the search. If this is the intended scope of the power then this is how it should be framed in the legislation. It is also how it should be described in the explanatory statement. The
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