Page 1371 - Week 05 - Tuesday, 13 May 2014
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The next change made by this bill is to confirm the power for police officers to direct drivers to remain at the scene where they were originally pulled over by police for the purpose of conducting an alcohol or drug screening test. The amendment codifies the common law power of police to temporarily detain a driver to undertake an alcohol or drug screening test by directing them to remain at the place where the alcohol or drug screening test is being carried out for the time reasonably necessary for the test to be completed. As was noted by Magistrate Campbell in a 2012 Magistrates Court decision:
The duty of a driver to stop when directed to by a police officer must include a duty or obligation to remain stationary, for such reasonable time as may be necessary to enable the traffic officer to carry out the breath test … Implicit in the provision is that there has to be some power to detain or require the driver to remain at the roadside to enable the purpose of the section to be achieved … Some delay must be taken to be an anticipated and acceptable imposition on the liberty of drivers bearing in mind the statutory object of this legislation. The scheme would otherwise be rendered unworkable.
The government’s intention in moving this amendment has been to do no more than codify this common law power and provide certainty for drivers and police as to the outer limits of that power by setting a maximum period for which a person can be required to remain for a random screening test. The amendments in the bill make no change to the existing longstanding position under our law that the power to require a driver to undergo random testing does not require the police to have any suspicion as to whether the driver has alcohol or drugs in their body. The power provides the foundation for random alcohol and drug screening—its deterrent effect and its capacity to detect drink and drug drivers.
As members would be aware, concerns have been raised that in circumstances where police require a person to remain in a place for up to 30 minutes because they do not have a screening device immediately available, this should only be where they have some basis to suspect the driver is affected by alcohol or drugs. As a matter of practice, police have confirmed that they would only require a person to remain for a random screening test in these circumstances.
Given this, I can foreshadow that the government will be moving amendments to this bill that will apply where an alcohol or drug screening device is not immediately available and a police officer has reasonable cause to suspect that the driver has alcohol or drugs in their body. In that case the police officer will be able to direct the person to remain at the place where the screening test is to be carried out for the time—not exceeding 30 minutes—reasonably necessary for a screening device to be made available and for the test to be undertaken.
A screening device may not be immediately available if a device malfunctions or if a driver is stopped by an officer who does not ordinarily carry a screening device on them or in their vehicle. Drug screening devices are not routinely carried by general duties officers, with only certain officers trained and authorised to use these devices.
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