This speech was delivered on 12/08/2014 in the NSW Upper House. You can read the full debate online here.
Mr DAVID SHOEBRIDGE [8.49 p.m.]: On behalf of The Greens I speak to the Road Transport Amendment (Alcohol and Drug Testing) Bill 2014 and indicate that The Greens support the bill. The principal objects of the bill are to amend the Road Transport Act 2013 to do a number of things: first, to enable a police officer to require a person who has been physically unable to submit to a breath analysis to provide a blood sample instead for alcohol analysis; second, to prevent a person who provides a blood sample in those circumstances from being liable to be convicted for refusing or failing to submit to a breath analysis; and third, to enable a police officer to require a person who has submitted to oral fluid testing to remain at the place of testing so that testing may be completed.
The fourth object of the bill is to make certain procedures relating to the taking of urine samples under the Act consistent with those relating to the taking of blood and oral fluid samples; the fifth object is to extend the basis on which a police officer may form a reasonable belief that a person may be under the influence of a drug—as a prerequisite to requiring that person to submit to a sobriety test—to include the person’s behaviour, condition or appearance; and the sixth object is to enable sample takers and analysts to perform their duties under the Act through persons acting at their direction; and then a series of other modest changes to the evidentiary regime and to authorisations for the undertaking of analysis and sampling.
I think this November will be the thirty-second anniversary of random breath testing in New South Wales and in that time many thousands of lives have been saved by the significant reduction in drink-driving on our roads. At the time it was introduced there was great concern about the intrusive nature of random breath testing but it has proven to be an essential element in making our roads safer. Having a licence is a privilege, not a right, and a motor vehicle that is operated by a driver who is under the influence of alcohol or drugs is quite simply a lethal weapon that should never be allowed on the streets. This bill in large part removes a number of technical obstacles that were being confronted in the testing of drivers who were suspected of being under the influence of drugs. One of the key changes involves changes to the bases on which a police officer may form a reasonable belief that a person is under the influence of a drug. It is that reasonable belief that triggers the power for a police officer to require a sobriety test.
On one reading of the existing law, that reasonable belief could extend to circumstances apart from the erratic manner in which the driver was operating the vehicle and on that reading these changes would be otiose. Police have said they have received advice that they cannot take observations of people’s conduct after they have ceased driving. A police officer may have observed that a driver has very dilated pupils or they may have noticed through interaction with the driver that the driver is behaving in a manic or clearly drug-affected manner. Under the current law it is arguable that police cannot take the observation of the dilated pupils or manic manner in which the person is interacting with them into account in forming a reasonable suspicion that the person is under the influence of drugs. They can only take into account the observation of erratic driving. That seems to be an unnecessary impediment to roadside drug testing.
Police also raise the example of attending an accident where they have not witnessed the driving that led to the accident. However, by reason of a driver’s conduct, dilated pupils, manic behaviour and the like, the police may form a reasonable belief that the driver may have been driving under the influence of drugs and arguably the current law does not allow a sobriety test to be pressed in those circumstances. Everyone would agree that if the police have that kind of reasonable evidence before them, the requirement for a sobriety test is in the interests of public safety and safer driving in New South Wales. Clearly continuing oversight is required of how the police exercise these powers and what they rely upon to form that reasonable belief and suspicion. In large part that oversight will be undertaken by the courts when these laws are tested.
Another element that is a supportable and indeed positive reform to the law is to allow for a police officer to require a person who is physically unable to submit to a breath analysis to instead provide a blood sample for analysis. Under the current law police are often caught in a bind in that situation. If somebody says they are unable to provide a breath analysis or to speak into the machine because they allege they have some respiratory condition—they may have a panic attack and some drivers slump into unconsciousness because of their alcohol-induced or drug-induced state—police arguably have difficulties in requiring a blood sample to be taken and the default charge then is the failure to provide a breath sample, which has a penalty akin to a high level driving under the influence [DUI] charge.
There would be a number of rational examples where drivers would have a reasonable excuse not to provide a breath sample and if they can make that defence out in court, no penalty is recorded. However, for those drivers who have a genuinely reasonable excuse such as a respiratory condition or a panic attack and are unable to provide a breath sample, it is a preferable option that their refusal or failure to provide a breath sample can be followed up by a direction to provide a blood sample and that can determine whether they have a prescribed content of alcohol or illicit drugs in their blood system. That is a preferable option than simply charging them with a failure to provide a breath analysis and then requiring them to make out their defence in due course before a court. For those reasons The Greens support the bill and commend it to the House.