Mr Jon Stanhope MLA Chief Minister Minister for Transport ACT Legislative Assembly Dear Mr Stanhope Roadside Drug Driving Testing Thank you for your letter of 22 June 2010 seeking my advice on the human rights implications of the Private Member s Bill Road Transport (Alcohol and Drugs) (Random Drug Testing) Amendment Bill 2009, including amendments to that Bill to be moved by Ms Bresnan MLA and Mr Hanson MLA. Thank you also for your letter of 28 June 2010. I have reservations regarding the human rights compatibility of random roadside drug driving testing generally, and some specific concerns regarding its practical implementation, which I outline below. General Concerns regarding Random Roadside Drug Testing I have attached my submission of 6 May 2010 responding to the Government s Discussion Paper on roadside drug driver testing. While I certainly accept the importance of the objective of improving road safety, as detailed in that submission, a key concern is the absence of clear evidence of the threshold at which drugs other than alcohol impair the ability to drive a motor vehicle and the relationship between that threshold and the detection of drugs through oral fluid and blood testing. I note that social researcher David McDonald also raises this concern in response to the Discussion Paper I attach his submission for your information. He suggests: The Government has made it clear that this legislative initiative has as its objective making the roads safer for all road users. By extension, its objective is to reduce the incidence of traffic crashes, injuries and fatalities. It is not intended to be an extension of legislation that criminalises the use of certain psychoactive substances. On this basis, the approach to legislation is flawed as there is no evidence, from Australia or abroad, that such a legislative initiative will have any impact on the incidence of traffic crashes, injuries and fatalities. There is no evidence that it will improve road safety. A number of human rights are engaged by randomly testing and criminalising driving with a detectable presence of drugs in blood or oral fluid. As you know, section 28 of the ACT Human Rights Act 2004 ( HR Act ) provides that human rights may be subject only to Level 4, 12 Moore St Canberra City Phone: (02) 62052222 TTY: (02) 62051666 Email: human.rights@act.gov.au GPO Box 158 Canberra ACT 2601 Facsimile: (02) 62071034 Web: www.hrc.act.gov.au
reasonable limitations that can be demonstrably justified in a free and democratic society. Section 28(2) states that in deciding whether a limit is reasonable, all relevant factors must be considered, including the relationship between the limitation and its purpose. I am concerned that there may be a potential disconnect between the limitation on rights under the proposed roadside drug driving testing regime, and the regime s purpose. In my view, any drug driving testing regime which relies only on drugs being present in a person s oral fluid or blood may unreasonably limit human rights unless a relationship can be shown between the level of drug capable of being detected by the testing device and impairment of driving ability. I have found no evidence of this submitted in support of the Bill, and I note that the Government Discussion Paper also did not satisfactorily address this issue. Although the Bill does refer to a prescribed concentration of a drug, all references to prescribed concentration would be removed by Ms Bresnan s amendments. As amended by Ms Bresnan the Bill would target only the presence of prescribed illicit drugs rather than any particular concentration. I am also concerned about the period of time after consumption that drugs would still be detected in a person s fluid or blood. I further note that the Government Discussion Paper does not adequately address this, other than asserting that the oral fluid tests target the active components that are present where drugs have been recently ingested. I believe the onus is on those seeking to limit rights in this way to produce evidence of the relationship between the levels of drugs that can be detected and impairment, and it is difficult to assess the reasonableness of limitations on human rights under a proposed scheme without it. I understand that THC in cannabis may stay in the blood for up to 5 days in normal users and up to 2-4 weeks in heavy users. I would welcome evidence to the contrary, but it seems unlikely that cannabis would still be impairing a person s ability to drive weeks after consumption. I note that possession of a small personal supply of cannabis has been decriminalised in the ACT and am concerned that random roadside drug testing would in fact impose serious criminal sanctions on the use of cannabis, regardless of the relationship between cannabis use and driving impairment. I also note that no evidence has been provided on the possibility of the oral fluid (or perhaps blood testing) contemplated in these schemes finding traces of cannabis in a person s body due to passively inhaled cannabis smoke. A preferable system would be one that relies on reasonable suspicion of driving impairment following a negative random breath test, where a driver would be required to undertake an impairment test (as is the case in New Zealand) or trace particle testing prior to fluid testing. Notwithstanding the concerns raised above, if a scheme based on fluid testing in one form or another is to be considered for introduction, I take the opportunity to recommend improvements to the implementation of such a scheme. - 2 -
Specific Issues The issue of impairment thresholds aside, I believe that the following human rights would be engaged by the Bill: right to privacy (s.12); right to liberty (s.18); right to equality (s.8); right not to have medical treatment without consent; (s.10) and right against self-incrimination (s.22). I have assessed the Bill to determine how it deals with human rights issues and offer the following comments. I have factored in the draft amendments proposed by Amanda Bresnan, MLA that you have provided to me. My comments on the Bill are based on the original issues I raised in relation to the Government s Discussion Paper and other issues I have identified in examination of the Bill. In the time available, a full analysis under s.28 of the HR Act has not been possible. I would suggest that the Members introducing this legislation should provide clear rationale for the Bill s limitation on rights in either the Explanatory Statement or Compatibility Statement. Random stopping One of the most important issues is the justification for the power to randomly stop a driver to conduct a drug test (initially oral fluid, then blood), and I note that there appears to be no express provision authorising this in the Bill. Random drug testing imposes a clear limit on the right to privacy, and although now used in other Australian jurisdictions it is rarely used overseas. The absence of a clear justification for this limitation on the right to privacy could lead to a declaration of incompatibility if this issue was to come before the Supreme Court. In my view the limitation on human rights would be more proportionate if this testing was conducted only as an adjunct to random alcohol breath testing which (whilst also limiting rights) is an established and well-accepted regime in Australia. I note that the Bill under consideration does not specifically deal with this issue. I also note that the Bill does not address the question of parental or guardian involvement before a blood test or other invasive procedure is sought from a young person. Codeine consumption may falsely test positive for heroin in fluid testing The Bill appears to deal with the false positive issue by excluding heroin from fluid testing, targeting only THC in cannabis and methamphetamine. However, it is of some concern that the Bill allows for the expansion of the range of substances tested for in fluid testing through regulation, rather than requiring legislative amendment (and thus further human rights scrutiny). - 3 -
Requirement to provide a blood sample Under s.10(2) of the HR Act, no-one may be subjected to medical treatment without his or her free consent. I note that the Bill, as amended, requires a blood sample where: (i) (ii) a person is unable to provide a sample because of an accident; or the analysis instrument is not working or it is not practicable to carry out the oral fluid analysis. I note the limitation on s.10(2) is reduced in the Bill, which does not seek to give police the power to forcibly take blood, but rather creates an offence for refusing to give such a sample. Nonetheless is may be preferable to contemplate Regulations that would put in place clear guidance about how blood will be taken. The Bill also requires a blood test, and creates a corresponding offence for refusing to give one, when the oral fluid testing equipment is simply not working. Although a similar provision currently exists regarding breath testing equipment, this would arguably be an unreasonable limitation on rights if a less restrictive limitation on rights was reasonably possible. Exemptions those who have cultural or religious objections to giving blood samples I noted in my submission to the Discussion Paper that consideration should be made to address members of the ACT community who have cultural or religious objections to giving blood samples, such as Jehovah s Witnesses. I note that the Bill does not create a new provision, however the exemption would be dealt with by existing s.23(4) of the Road Transport (Alcohol and Drugs) Act 1977: It is a defence to a prosecution for an offence against subsection (1), (2) or (3) if the person charged establishes that the failure, refusal or behaviour (as the case requires) was based on religious or other conscientious grounds or on medical grounds. Prevention of use of saliva or blood samples as the basis for charges other than road traffic offences I suggested in my submission to the Discussion Paper that samples collected under this scheme should not be able to be used as the basis for charges other than road traffic offences. I note the original Bill did not include such a restriction and this raised human rights issues. However, Ms Bresnan s proposed amendments do address this issue. Proposed sections 18B and 47A would prevent information being used other than for offences under the Act, research and expressly state that such information cannot be used as reasonable suspicion under Crimes Act. Protection of sensitive information revealed by samples It is possible that the fluid and blood samples taken under the proposed testing regime might also reveal sensitive personal information about a person s health, such as their - 4 -
HIV/AIDS, Hepatitis or other status. I consider that there needs to be some strong protection against this information being used in any other way or becoming public knowledge for example, through being tendered in open court in criminal proceedings. This does not appear to be specifically dealt with in the Bill. This issue might also be dealt with through other legislation, such as Health Records (Privacy and Access) Act but it would be preferable if this was spelt out in the notes to the Act and the Explanatory Statement. Sample to be available for testing by the driver The right to a fair trial protected under s.21 of the HR Act requires that the defendant be given the opportunity to conduct independent testing of a fluid or blood sample. The Bill appears to rely on s.15a of the current Road Traffic (Alcohol and Drugs) Act 1977 but I note this protection only refers to blood samples, not oral fluid samples. This may be an unreasonable limitation on the right to a fair trial if the oral fluid sample is relied on by the prosecution in proceedings. It may be preferable to deal explicitly with this issue by ensuring that a portion of both blood and oral fluid samples are kept available for independent testing by the defendant. Addition of Particle Testing Devices There is an additional issue in the amendments to the Bill concerning particle testing. The proposed amendments include the addition of a screening device that can screen drug particles taken from the steering wheel of a vehicle. On its face this would seem reasonable, particularly if the intention of such a device was to be part of some early, less invasive screening process prior to oral fluid or blood testing. However, the use of the results of such tests are not restricted in the same way as oral fluid or blood samples under proposed sections 18B and 47A. This would suggest this material could be used for a range of reasons by the police, including reasonable suspicion to search a vehicle for illegal drugs. Without the Explanatory Statement, it is difficult to determine what the purpose of this addition is. However, the random stopping of a car to test the contents of the car for particles of illicit drugs would be akin to a police search and would engage a number of human rights including right to liberty and security of the person (s.18), freedom of movement (s.13), and right to privacy (s.12). It would be preferable either for this reference to be removed, or for this particle testing to be prevented from being used for other purposes, as is the case for oral fluid and blood testing. Thank you for the opportunity to provide this advice. Yours sincerely Dr Helen Watchirs Human Rights and Discrimination Commissioner 29 June 2010-5 -