Review of the Road Transport (Alcohol and Drugs) Act
Transport Regulation and Planning
Department of Territory and Municipal Services
GPO Box 159
Canberra ACT 2602
Dear Sir or Madam,
Submission to the Review of the Road Transport (Alcohol and Drugs) Act 1977
Thankyou for inviting the Human Rights Commission (‘the Commission’) to respond to the
Discussion Paper: Review of the Road Transport (Alcohol and Drugs) Act 1977 (‘the
Discussion Paper’).
1.
Importance of the HRA
The Discussion Paper highlights the tensions between measures designed to curb drug
affected driving, and the need for any proposed amendments to comply with the Human
Rights Act 2004. Although, when tabling the Road Transport (Alcohol and Drugs)
(Random Drug Testing) Amendment Bill in April 2008 (and its predecessor in 2005) Mr
Steve Pratt described it as flexing ‘existing law…to allow for a more random approach to
drug testing of drivers,’ which is not ‘blindsided by …human rights’, the Commission is of
the view that the human rights implications of any changes to the Road Transport (Alcohol
and Drugs) Act 1977 and proposals contained in the Discussion Paper must be at the
forefront of debate.
Further, while the Commission acknowledges that all other Australian jurisdictions apart
from Tasmania, have legislated to authorise police to conduct random roadside drug
testing, the Commission does not accept that comparable changes should be made to ACT
legislation as a matter of course for two reasons: firstly, there must be a demonstrated,
specific need in the ACT to justify the changes, and secondly, the ACT is the first
jurisdiction to look at the issue of random roadside drug testing using an express human
rights framework. (In Victoria, the relevant legislation was in effect in 2004 before the
Charter of Rights and Responsibilities Act 2006, which came into force on 1 January
2007/8.) While the Commission is not in a position to explicitly comment on the statistical,
technical and scientific background that underpins the arguments for and against the need
for and benefits of, random roadside drug testing and associated issues, the Commission is
able to identify the key human rights issues that are raised by the Discussion Paper – and,
more generally, the proposed amending legislation currently before the Legislative
Assembly. I do note, however that public health experts such as David McDonald have
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Website: www.hrc.act.gov.au
TTY: (02) 6205 1666
Email: human.rights@act.gov.au
questioned whether data exists to support claims that existing drug testing scheme have
actually saved lives of road users and pedestrians.
2.
A human rights-centred approach
A human rights analysis of proposed laws principally involves to two questions: What are
the relevant rights engaged by core elements of the proposed legislation? And, are any
restrictions on those rights proportionate under section 28 of the HR Act? Also the
application of section 30 of the HR Act is important when interpreting current and
proposed legislation: ‘So far as it is possible to do so consistently with its purpose, a
Territory law must be interpreted in a way that is compatible with human rights’. In answer
to the first question, the Commission considers that authorising police to conduct random
drug testing of motorists involves the provision of saliva or blood, without the request
being based upon a reasonable suspicion, actively engages the following rights:
1. The right not to be arbitrarily detained or arrested, s. 18 of the HR Act;
2. The right not to be subjected to medical treatment without first freely consenting – s.
10 (2) of the HR Act;
3. The right against arbitrary interference with an individual’s privacy, s. 12 of the HR
Act;
4. The right to a fair trial, s. 21 of the HR Act; and
5. The rights of children to be treated in a way that is appropriate for their age, which
includes ss. 11(2) and 20(2) of the HRA Act.
Under s. 31 of the HR Act ‘international law, and the judgments of foreign and international
courts and tribunals, relevant to a human right may be considered in interpreting the human
right’. The relevant jurisdictions to consider are the United Kingdom and New Zealand,
which have human rights laws and Canada and the USA to a lesser extent as they have
constitutional Charters or Bills of Rights. As such, in light of the above rights that the
Commission believes are engaged by the Discussion Paper and amending legislation, the
Commission makes the following observations.
2.1
Arbitrary detention/arrest
Under s.18(1) of the HR Act everyone has the right to liberty and security of the person – in
particular no-one may be arbitrarily arrested or detained. This right is one of the most
important and has resulted in other countries having drug driver testing laws dependent on
there being a reasonable suspicion of impairment, rather than random testing.
As stated above there is a difference between the persuasiveness of cases and laws from
these jurisdictions, with the United Kingdom’s Human Rights Act 1998 being most similar
to the ACT Human Rights Act 2004. In New Zealand a Bill is currently being considered
that enables impairment testing after random alcohol testing, if there is reasonable suspicion
that a person has consumed drugs. If the driver fails the impairment test, they are subjected
to a blood test at approved locations. This procedure has been performed on a voluntary
basis since 2004. The Explanatory Memorandum accompanying the Bill has not proposed
saliva testing, as there are not sufficient road safety concerns to justify search and seizure
powers that would violate human rights. Offences are similar to drunk driving for having
illegal drugs or prescription drugs taken in excess (or without a valid prescription).
2
The Canadian Supreme Court in the case R v Hufsky held that the power to stop, detain and
test drivers is arbitrary if there are no criteria, express or implied, that govern its exercise by
police1. In the case Dedman v R the Canadian Supreme Court found that unless the power to
randomly stop and detain persons in their cars for the purposes of breath analysis was
derived directly from legislation, the request for breath analysis was unlawful:
It was the function of the legislature, not the courts, to authorise arbitrary
police action that would be otherwise be unlawful as a violation of rights
traditionally protective of common law. Since the police officer randomly
stopped the accused and arbitrarily detained him, the demand was not lawful
and the accused could not be convicted of failing without reasonable excuse
to comply with a demand for a breath sample….2
The US Supreme Court has stated this even more strongly:
By holding that no level of suspicion is necessary before the police may stop a
car for the purpose of preventing drunken driving, the Court potentially
subjects the general public to arbitrary or harassing conduct by the police.3
The significance of these authorities is that they demonstrate the importance of legislation
that proposes to introduce drug testing for ACT drivers isolating a clear legislative basis
upon which the individual is compelled to stop, provide samples and be detained.
Specifically, they demonstrate that random drug-testing that is not predicated on the
relevant police officer having a ‘reasonable suspicion’ on which to ground the request for a
sample to test may unlawfully restrict the right not to be arbitrarily detained or arrested.
Accordingly, the Commission suggests that any proposal to include drug testing for ACT
drivers must take into account the issues relating to arbitrary detention and arrest that have
been encountered by other jurisdictions on this issue in accordance with s. 31 of the HR
Act.
2.2
Medical treatment without consent
Under s.10(2) of the HR Act, no-one may be subjected to medical treatment without his or
her free consent. Obviously taking blood without consent could breach this right, and
possibly taking saliva tests although this is more similar to breath testing for alcohol and
less intrusive.
This issue may have specific relevance to persons of particular cultural and/or religious
backgrounds who, by virtue of their background or beliefs, are unable or unwilling to
provide blood samples for testing. Unless specific exemption or provision is made to
address these particular members of the ACT community, drug driver testing legislation
could have the unfortunate and unintended effect of aggravating the drug testing process and
damaging the relationship between the police and sectors of the community: for example, an
individual, in asserting their cultural or religious beliefs may leave themselves open to
further offences such as failing to provide a sample, hindering or obstructing police. The
Commission notes that this (potential) problem could be addressed by the inclusion of a
specific and defined exception to the requirement to provide the sample when requested by
1
[1988] 1 S.C.R. 621
[1985] 2 S.C.R. 2
3
Michigan Dept of State Police v Sitz (1990) 100 S.Ct. 2481 at 2489 per Brennan and Marshall JJ
2
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the officer. An example of one possible exception is: ‘unless the individual has a reasonable
excuse including…’ followed by a non-exhaustive list of examples of ‘reasonable excuses’
relating to specific religious or cultural beliefs.
Further, the issue of consent would need specific legislative clarification to ensure that the
basis for the ‘medical treatment’ is clearly and effectively communicated by the requesting
officer to ensure that the consent is informed. Consent that is not informed may not amount
to consent at all, and therefore the ‘medical treatment’ conducted by the police could
amount to a breach of this particular right. The Commission suggests that including a
statutory requirement that the consent of the individual be informed and that the relevant
officer explain the request in appropriate detail, may go some way to ensuring that such
legislation does not breach this particular right.
2.3
Privacy
Section 12 of the HR Act protects the right to privacy, which includes not only respecting
bodily integrity, but also having personal and health information kept private and
confidential. Under privacy laws (the Commonwealth Privacy Act 1988 applies in the ACT)
there are strict obligations under the Information Privacy Principles surrounding the purpose
and collection of data, as well as limits on its storage, security, use and disclosure. Under
the United Kingdom Human Rights Act 1998 public authorities, including police, must
ensure that any personal information they collect is necessary, secure and accurate. 4 From 1
January 2008 amendments to strengthen the ACT HR Act similar to the level in the United
Kingdom come into force. Importantly they directly require public authorities to comply
with their obligations under the HR Act.
As such, the Commission considers there to be two significant impacts from these
provisions of the HR Act: firstly, that any legislation relating to the taking of samples must
take steps to ensure that this personal and health information is kept private, and, secondly,
that from 1 January 2009, public authorities, including police, will be subject to direct rights
of action in the event that those steps have not been taken, or the right to privacy has in
some other way been breached.
There is also an issue that in providing saliva or blood samples an individual may reveal
personal information about their health, such as their HIV/AIDS status. Such information
would then be kept on the police records and documents. The Commission believes that
there needs to be some automatic protection against this information becoming public
knowledge through being tendered in court in criminal proceedings.
2.3
Fair trial
Section 21(1) of the HR Act provides that every individual ‘has the right to have criminal
charges, and rights and obligations recognised by law, decided by a competent, independent
and impartial court or tribunal after a fair and public hearing’. It is accepted that a drug
driving offence, similarly to drink driving charges, are criminal offences and as such fall
within the right to a fair trial as encapsulated in s. 21. The Commission considers there to be
two key areas in which the right to a fair trial may be restricted or breached through the
operation or effect of legislation that permits drug driver testing:
4
Normal Baker MP v Secretary of State for the Home Department [2001] UKHRR 1275; Gunn-Russo v
Nugent Care Society and Secretary of State for Health [2002] 1 FLR 1.
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Firstly, if samples of blood or saliva are retained by the police or other authority
beyond the point at which a result is obtained or the charge is preferred - then there
is the potential for this information to be used in the investigation of other criminal
proceedings i.e. using the tested sample by matching it to DNA samples taken in the
course of another investigation; and,
Secondly, it is possible that the results of (or request for) a drug test (the request of
which was not based on a reasonable suspicion) could trigger police to conduct a
search of the driver, passengers, and/or vehicle and cause subsequent charges. This
punitive action detracts from a harm minimisation approach to drug treatment and
rehabilitation. It would also move the effect of any drug testing legislation from
being a tool to protect the community on the roads to being a general tool for police
investigation.
To avoid both of the above situations potentially impacting on an individuals right to a fair
trial, the law could, as in the United Kingdom, NZ and Victoria, preclude the further use of
the sample (except possibly for de-identified research), and require its automatic
destruction.
2.4
Children in the criminal process
One area that needs to be properly discussed with respect to this proposed legislation is its
impact on vulnerable groups within the community, particularly children. Section 20(2) of
the HR Act states that an accused child must be treated in a way that is appropriate for a
person of the child’s age who has not been convicted and s. 11(2) provides that every child
has the right to the protection needed by the child because of being a child.
Young people can drive and they consume drugs, whether either behaviour is legal or not.
The minimum age for obtaining a learner’s car licence in the ACT is 15 years, 9 months,
and for obtaining a provisional licence is 17 years (where an accompanying adult driver is
not required). Therefore, young people under the age of 18 years will fall within the
operation of any legislation authorising random roadside drug testing. On the other hand it
is clear that drug use is a very relevant issue for young people. The 2004 Victorian Youth
Alcohol and Drug Survey found that 21% of the respondents (16-24 yrs) admitted to driving
a motor vehicle while under the influence of an illicit drug.
Existing ACT laws in some cases are based on the principle that children cannot consent,
particularly in respect of interfering with bodily integrity. The Crimes (Forensic
Procedures) Act 2000 defines the sample of breath/saliva and blood as non-intimate and
intimate procedures respectively. Children under the age of 18 years cannot consent to
either of these procedures being taken and only a Court can make an order, after hearing an
application from the prosecution, permitting the procedures. If the proposed random drug
testing legislation makes no special provision for treating young drivers, with the same
caution and focus on protection that other legislation has considered, then the rights of
young people under the HR Act may well be breached.
3.
Proportionality test - reasonable limits
As demonstrated above, there is the potential for legislation authorising random roadside
drug testing to limit, restrict or conflict with a number of different human rights, to varying
degrees. This may or may not be lawful, subject to the application of s. 28 of the HR Act
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which provides that ‘human rights may be subject only to reasonable limits set by territory
laws that can be demonstrably justified in a free and democratic society’. This
‘proportionality’ test assesses whether the objective is sufficiently important; the limitation
on the right is rationally connected to the objective; the limitation minimally impairs the
right or freedom in question; and, is not out of proportion to the objective.
Accordingly, any proposed legislation that permits, among other things, a breach of human
rights by allowing random road-side drug testing, pursuant to s. 28 may require one
individual’s rights to be weighed against another individual’s rights so as to assess the
reasonableness of the limits placed on the relevant human rights. In this scenario, the
relevant individuals are the community members at risk of being involved in an accident
that included a driver under the influence of drugs, and the individual that may or may not
be a drug driver, who is the subject of any requests, random or otherwise, to submit to a
drug test.
The Commission acknowledges that the objective of addressing the risks to community
safety associated with drug driving is important and significant. The Commission also
accepts that existing road transport legislation is carefully drafted by requiring that a
reasonable suspicion of impairment exist before a sample is requested and therefore avoids
a direct conflict with human rights. Requiring a blood test for drugs in these circumstances
is therefore a reasonable limit on these rights that can be demonstrably justified in our free
and democratic society.
It is interesting to compare the case of random alcohol testing which is firmly established
in Australia and Canada, but not the US. Unlike drugs, there is a very strong empirical
basis for linking very specific levels of alcohol consumption with impairment in driving
skills, and proven reduction in vehicle accidents and increased road safety. The Canadian
Supreme Court in the case R v Husky stated that:
[Public] consensus that a particular law enforcement technique serves a
laudable purpose has never been the touchstone of constitutional analysis. …
The [Charter] rests on the principle that a true balance between the individual
and the society depends on the recognition of the right to be let alone - the
most comprehensive of rights and the right most valued by civilised men.
The Court found that a random stop of a vehicle for the purposes of a sobriety check and
breath analysis was a reasonable limitation on the right not to be arbitrarily detained,
considering the risk posed to the community by drink driving. The court specifically noted
that this conclusion was based on considerations including ‘the degree of intrusion’
associated with a random stop as being proportionate to the purpose served by the action.5
The degree of intrusion, physically, personally and temporally, associated with a random
roadside drug test is significantly greater than alcohol testing. It is also relevant that there
are other factors that impair driving, such as lack of sleep.
The Commission considers that unless the decision to request and compel an individual to
submit to a drug test is underpinned by a legislative requirement that the decision be
founded on a ‘reasonable suspicion of impairment’, then the drug testing regime proposed
5
R v Hufsky [1988] 1 S.C.R. 621
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for ACT drivers may not be considered a reasonable limitation on those rights outlined
above. Drug testing, at a minimum to make it the least restrictive means reasonable
available should be attached to the current scheme for drink driving rather than creating a
new scheme. I note in practice that a similar protocol operates for detecting defective
and/or unregistered vehicle when subjecting drivers to random breath testing at the
roadside, which in the case of positive results if later confirmed by blood testing.
4.
Discussion Paper – Specific Questions and Issues
In addition to the general comments outlined above, the Commission makes the following
observations with respect to some of the questions contained in the Discussion Paper. The
Commission does not have resources to comment upon or respond to every question raised
in the Discussion Paper.
Question 1(a) Which drugs should be included in the testing program?
The Commission does not support the inclusion of legal drugs in the proposed drug-testing
program. A particular concern is that, noting the equivocal and limited references in the
Discussion Paper to studies relating to the potential effects of prescription medication on
drivers, there does not appear to be adequate statistical evidence to conclusively assert that
prescription drugs have a uniform effect on all drivers at certain levels such that the
restriction on those driver’s human rights (particular their rights to privacy and not to be
arbitrarily detained or arrested) is reasonable. There may also be a disproportionate impact
on older drivers.
The Commission notes that there is already an existing offence in the ACT that
criminalises driving under the influence of any substance.
Questions 2 and 7 – requirement to undergo a drug test if alcohol present in initial test
The Commission has concerns that a requirement for an individual to undergo a drug test if
any alcohol is present in their initial screening test may be an unnecessary and
unreasonable restriction on a number of rights - particularly the right to privacy and the
right not to be arbitrarily detained or arrested. The Commission suggests that requiring a
reasonable suspicion of impairment is the safest basis for determining whether or not an
individual should be subjected to drug testing.
There would need to be a much stronger evidentiary basis for such a proposal showing that
illegal drug taking is closely linked to alcohol consumption (of any level, i.e. not just the
ones over the legal limits for driving).
Question 3 – drug testing of samples taken following a motor vehicle accident
As the Commission supports a ‘reasonable suspicion’ basis for drug testing, it suggests that
automatic testing of samples taken following a motor vehicle accident where the driver’s
behaviour appears to be impaired would be a reasonable limitation on an individual’s
human rights.
Question 4 – other strategies
The Commission is supportive of a broad range of strategies being adopted to address the
incident of drug driving in the ACT that focus on rehabilitation and education regardless of
whether the existing road transport legislation is amended to include drug testing of ACT
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drivers. Young people in particular have acted responsibly to past campaigns emphasising
the need for a designated driver in a group of friends travelling from social functions.
Question 8 - blood samples not being given to the driver
The Commission considers it to be integral to the right to a fair trial (s. 21) that the accused
is given a copy of all evidence that the prosecution will seek to use against them. By not
providing the accused with their sample, the police would effectively be restricting the
accused’s right to have that sample tested themselves and/or to run a particular defence if
they sought to tender the sample. This would be unfair in a defended proceeding as it would
effectively prevent any challenges to the prosecution case relating to the blood sample
results.
The Commission notes that while there are no specific examples given in the Discussion
Paper of criminal proceedings in which the failure to account for an evidential trail with
respect to the accused’s sample has been raised, if such an issue were raised in a criminal
proceeding, there are already sufficient safeguards in the laws of evidence. The issue as to
the admissibility of any piece of evidence is a matter that falls within the discretion of the
relevant judicial officer pursuant to the laws of evidence. If the prosecution were concerned
about the reliability or accuracy of a piece of evidence sought to be tendered by a defendant,
then they are able to make an application to that judicial officer seeking an order that that
evidence be excluded. For example s. 135 of the Evidence Act 1995 (Cth) allows the court
to refuse to admit evidence if its probative value is substantially outweighed by the danger
that the evidence might be unfairly prejudicial to a party; misleading or confusing; or, cause
or result in undue waste of time. The Commission considers any unnecessary restriction on
the discretion of judicial officers to be inappropriate.
Question 10
In the event that drug testing of drivers in the ACT commences, the Commission suggests
that unless clear restrictions on the use of the samples is set out in the relevant amending
legislation, there is a reasonable risk that an individual’s right to a fair trial may be
unlawfully restricted. A provision that specifically restricts the use of those samples and
their results on to prosecution in relation to the offence charged under the Road Transport
(Alcohol and Drugs) Act 1977 would be a suitable safeguard.
Question 11- confiscating vehicle keys
The Commission is concerned about the potential for harm to other persons including
children and family members of the individual if legislation mandates the confiscation of
vehicle keys in certain situations. By preventing a car being driven at all, such a provision
could prevent passengers from returning home or continuing on their journey to work with
another driver. In any event, the Commission is of the view that police already have
sufficient statutory and common law powers to take action to prevent a crime from being
committed and ensure public safety.
Question 12 – immediate licence suspension by police
The Commission opposes provisions that extend police powers beyond the investigation
and prevention of offending behaviour into the realm of quasi-judicial decision-making by
enabling police to automatically suspend a person’s licence. The key problem with this
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proposal is that it effectively removes the presumption of innocence, and breaches an
individual’s right to a fair trial.
The Commission notes that there are already existing measures open to police to prevent
reoffending: they can arrest the individual and then place them on bail with conditions that
include not to drive a motor vehicle, or arrest the individual and bring them before a Court
for the issue of bail to be determined. The significance of the latter option is that the Court
not only has powers to impose conditions of bail that include not allowing the individual to
drive a motor vehicle, but the Court can also direct an individual to accept the supervision
of ACT Corrective Services so they can gain education, rehabilitation and support in
relation to their drug or alcohol issues.
Unless there is some evidence that these existing powers do not have the combined effect
of deterring an individual from further offending or protecting the community by a
combination of strict conditions and treatment, this proposal would have difficulty being
construed as an ‘reasonable limitation’ on an accused’s rights under s. 21 of the HR Act.
Questions 23 and 24 – impounding of vehicles
The Commission opposes the increase of police powers to include the ability to
immediately impound vehicles in drug driving matters. The specific concerns held by the
Commission mirror those raised with respect to Question 12 above – namely the impact
such a decision would have on an individual’s right to a fair trial, and right to be presumed
innocent until proven guilty.
The Commission’s concern with respect to the right of any officer (including a judicial
officer) to impound a vehicle is the potential for this to negatively and unintentionally
impact on the offender’s family and other persons who could drive the vehicle for the
family’s benefit. The Commission recognises that a car is often one of the most valuable
assets owned by an individual, is relied upon as a means of transport to and from work and
may be subject to credit or loan agreements. The negative financial impact on that
individual and their family may be far reaching and disproportionately debilitating. The
Commission also recognises that access to a vehicle, as a means of transport is generally
particularly important for vulnerable persons such as children, people with a disability and
the elderly.
The Commission understands that the Courts and police still have powers to make orders,
on conviction or by way of bail conditions, that restrict the individual’s ability to drive and
to not endanger the public. The Commission considers this to be an appropriate way to
tailor restrictions or punishment for the particular individual, without impinging on the
economic and social needs of that person’s family.
Yours sincerely,
Dr Helen Watchris
Human Rights and Discrimination Commissioner
25 July 2008
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