(Bills - Second Reading Debate, May 1 2018, Legislative Assembly, NSW Parliament)

The Road Transport Legislation Amendment (Road Safety) Bill adds cocaine to the list of drugs for which it is an offence to drive with a detectable amount in one’s system. The bill also increases offences for driving under the influence of drugs, gives police greater powers to stop someone driving their vehicle if they are suspected of driving under the influence, and provides for the adoption of enforcement measures for the offence of using a mobile phone while driving. I will limit my brief contribution to the addition of cocaine to what is known as the “presence offence”. 

The “presence offence” is committed when someone is caught driving with any concentration of a prescribed drug detected in their saliva, blood or urine. It is different to the offence of driving under the influence of drugs in that the prescribed drug does not need to be active. Enforcement occurs through mobile drug testing operations. Currently cannabis, speed, ice and MDMA are tested and the bill will extend that to cocaine.

About 100,000 mobile drug tests are conducted each year and the government wants to increase the number to 200,000 by 2020. The number of operations has already increased under this government and that has resulted in a massive increase in convictions.

Driving under the influence of drugs poses serious community safety risks and the government should take action against the practice.

But the “presence offence” does not distinguish between the active and inactive presence of a drug. People who are not under the influence of a prescribed drug are getting criminal convictions for traceable amounts in their system, which have no relevance to their ability to drive.

A criminal record is a serious thing and can lead to major setbacks in life, including in employment. Fines of up to $1,100 apply, and offenders also have to pay for costs associated with going to court and getting legal representation. Some offenders, particularly those who are young or experience disadvantage will struggle to pay and may even end up in debt. A person’s licence will be disqualified, which could impact on their earning abilities or carer responsibilities. Court resources including legal aid are further burdened.

With the doubling of mobile drug tests planned, and the addition of a new prescribed drug, the proportion of people in the community affected will significantly increase.

If a person’s driving is not affected by traces of an illicit drug that was taken some time ago, is it really appropriate to impose considerable life changing penalties and devote significant resources to convict them?

We can’t even provide the public with a reliable estimate of when after taking a drug they should not drive to avoid inadvertently committing the offence. Traces of drugs in each person’s system will depend on many factors such as how often they use the drug and how much they weigh.

Fundamentally, what we are doing is randomly testing people for their past drug use and convicting them. I know that some of the more conservative members of this house won’t have a problem with that, but it is not right and there is no community benefit from turning drug users into criminals. I think if many members knew the truth about some of their colleagues, family members and friends, they would be surprised to find out how many people in the community use or have used illicit drugs.

The 2013 National Drug Strategy Household survey identified that over 40 per cent of the Australian population over 14 had tried an illicit drug in their lifetime, with:

• 15 per cent having tried it in the last year;
• over eight per cent in the last month; and
• over five per cent in the last week.

In the minister’s second reading speech, she stated that the drugs currently tested for in mobile drug tests are “commonly used in the community”. Should we really treat over 40 per cent of the population as criminals?

Drug use is a health concern, not a criminal one. To protect the community from harm, we need to focus on active drugs in drivers’ system. Rather than apply a blanket conviction to anyone found with traceable elements of illicit drugs in their system, we should use mobile drug tests as a tool that leads to further tests to determine whether the person was actually driving under the influence of an active drug. Indeed, if drug use was not a criminal offence, it would be easier to find out from a driver when they had taken a drug and what that drug was.

Taking a tough stance on drug use may get media attention, but it doesn’t protect the community. This bill is another step in our failing war on drugs which has neither stopped community drug use nor helped people with drug problems. The biggest success of the war on drugs has been to support a growth in organised crime.

I’d like to see this parliament start having more mature and nuanced discussions about drug use that evidence based with the focus on harm minimisation.

To read the speeches of other Members on the subject, click HERE