Page 1366 - Week 05 - Tuesday, 13 May 2014
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The new provision does not remove an offender’s right to the independent test, nor the police obligation to assist, but now only requires the police to help the offender get a test. This could be as simple as providing the offender with a mobile phone so they can contact their doctor. This provision will make police operations more efficient without reducing the right of the offender to seek independent advice.
The third impact of this bill is to remove the obligation or implication that the costs of any independent test will be borne by the taxpayer. A section of the bill will explicitly state that if an offender takes up their right for an independent test, the costs will be borne by them. This seems reasonable and protects taxpayers from unnecessary costs.
The fourth element introduces the new offence of either not remaining for a screening test or refusing a screening test. This is an important new approach, since currently if a driver refuses to take a roadside test they must be taken into custody for a full analysis to be done. Only when a driver refuses to take a full analysis can the police charge the driver. That is an unnecessary two-step process.
The element of this bill that has generated the most controversy is in regard to the amount of time that police can hold a driver whilst waiting for a test. The current situation is that a driver can be held as directed by police. It does not explicitly require that they remain for a test. This interpretation of existing laws has been tested in the ACT courts. In 2012 in a case in the ACT Magistrates Court, Hackett v Gaut, Magistrate Campbell found that a driver had a duty to stop when directed by police and this must also include a duty to remain for such a reasonable time to carry out the test.
The new provisions now define a maximum time for the reasonable allowed tests to be conducted. A balance needs to be struck between the ability of police to conduct tests in a practical roadside condition and the delays imposed on drivers. To determine the most appropriate time police can delay a driver for, consideration must be given to the current view that some minimum time is allowed for the test with a position that police can hold drivers for a maximum time as directed.
On the surface, and in discussions and briefings from the government, the identification of a maximum of 30 minutes is intended to strike a balance when considering all of the practical issues and broader public interest, including safe roads. The bill as originally drafted has the police under no obligation to make a judgement about whether the driver may or may not be under the influence of a substance or has committed an offence. If the necessary equipment to conduct the alcohol or drug test was not available, police could continue to detain the driver for up to 30 minutes.
This seems to be an extension of police power that could allow unnecessary inconvenience for drivers who have committed no offence and in some circumstances it could allow for police discretion to be overreached. The government has proposed an amendment to the bill which requires that once police have randomly detained a driver for a test, they can only further detain the driver for up to 30 minutes if the police have reasonable cause to suspect that the driver may have committed an offence.
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