Ms JODI McKAY (Strathfield) (10:11): I lead for the Opposition on the Road Transport Legislation Amendment (Penalties and Other Sanctions) Bill 2018. We acknowledge that the purpose of this bill is to tackle drink and drug-driving, apart from the rather odd inclusion of security measures for the Sydney Harbour Bridge in this bill. In formulating our response to this bill, Labor members have consulted with the NSW Bar Association, the Law Society of NSW and legal practitioners. We have also received advice from road safety experts. As I work through the provisions of the bill, I will inform the House of the comments made by these legal experts. Labor will not oppose the bill; however, we do have concerns about aspects of the bill and will be moving amendments in the other place.
We are very concerned that in removing low-range drink-driving from the courts, we are sending a message to the community that drink-driving is in fact no longer a serious crime. I will deal with the areas of the bill supported by Labor, before coming back to our issues of concern and where Labor will be moving amendments in the Legislative Council. The bill introduces new penalties to protect the security of the Sydney Harbour Bridge by creating an offence relating to actions that cause damage, disruption or obstruct vehicles and pedestrians using the bridge. There is a maximum penalty of $22,000 and/or two years imprisonment. As the Minister said, the provision can be extended by regulation to other major bridges or road tunnels, if warranted.
Labor does not oppose measures to increase security on the Sydney Harbour Bridge. It is not only iconic to Sydney but a major arterial route into and out of our city. We know that incidents on the bridge can cause terrible disruption to traffic, which has flow-on impacts across the network. This measure is in direct response to incidents on the bridge when people have climbed the structure and police have been forced to stop traffic until the matter is resolved. We understand the motivation but a monetary penalty is not always a deterrent. As we saw earlier this year, the bridge was closed for approximately five hours when a man climbed the bridge. That gentleman had significant mental health issues and, I suspect, a hefty fine would not have stopped him. In saying that, we do not oppose this measure.
The bill also amends the definition of "drug" in the Act. The term "drug" currently encompasses a broad range of illegal and pharmaceutical drugs and alcohol. Currently drugs can only be added to the definition in the Road Transport Act 2013 by new legislation or regulation which, as the Minister outlined, is difficult in a constantly changing drug market. The bill amends the definition of drug to include, in addition to the current substances, any other substance that when taken by an ordinary person, may deprive that person, or may impair, his or her normal mental or physical faculties. There is obviously some concern in the community that this may impact on legitimate prescription medicine. I am also concerned there has been no consultation with the medical, pharmacy or pharmaceutical sectors in the drafting of this legislation. I would appreciate the Minister's further advice on what, if any, contact has been had with the medical, pharmacy and pharmaceutical sectors and how the Government plans on providing information on the changes contained within this bill to all those involved.
We expect drivers to exercise skill and care when on our roads. As legislators, it is our job to make sure the rules and requirements for being on our roads are clear and easily understood. The current legislation allows members of the public and medical practitioners to find out exactly what substances are and are not classified as drugs for the purpose of the Act. The NSW Bar Association has raised concerns about this section of the bill and states:
This is a very broad definition which would cover not only illicit or "recreational" drugs, but many common medications including anti-depressants, anti-anxiety drugs and also painkillers such as paracetamol, ibuprofen and medications containing codeine. Many medications have the potential to cause effects of impairment upon ordinary people, including as a side-effect. A person might arguably be "under the influence" of a medication even if their ability to drive was not significantly impaired. The proposed extended definition does not provide any exception for either:
1. Over-the-counter medication taken in accordance with pharmacist's advice or the recommendations on the official packaging; or
2. Prescription medication taken in accordance with a prescription and medical advice.
In relation to this amendment the NSW Bar Association states:
If the intention is to criminalise driving whilst taking legitimate pharmaceuticals, there does not appear to be any justifiable policy basis for such a widely drafted offence with no defences. Either way, the proposed amendment makes it very difficult for the general public to know exactly what is, and is not, a drug for the purposes of the Act and when it is, and is not, illegal to drive if taking certain medications.
Concerns have also been raised by the Law Society of NSW that describes the new definition of drug within this new legislation, to include:
… any other substance that, when taken by an ordinary person, may deprive the person of, or impair, his or her normal mental or physical faculties (whether temporarily or permanently)" as 'highly problematic'.
The Law Society of NSW warns that the definition is "broad, vague and imprecise" and "does not require any evidentiary connection between the drug test and any negative impact on the ability to drive." I believe it is important to place on the record the concerns of legal practitioners as to the practical application of this section of the bill. In saying that, there is certainly an expectation in the community that Government should be doing more in regard to driving under the influence of a drug. I acknowledge the Minister's claim of a rapidly changing drug market and the difficulties of the individual listing of drugs. Whether this new definition assists or hinders remains to be seen.
The bill expands the mandatory interlock program by including all middle-range prescribed concentration of alcohol [PCA] offences as a mandatory interlock offence. Currently, second and subsequent middle-range drink-driving offenders are subject to mandatory interlock orders. First offenders will now be included.
The bill also amends the Act to include an up-front disqualification period of a minimum of three months and up to a maximum of six months for a middle-range PCA first offence combined with a minimum interlock participation period of 12 months. That means that all drink-driving offences with the exception of first offence and low, special and novice range offences require an interlock device. Labor does not oppose that section of the bill but agrees with the Law Society of New South Wales that interlock periods tend to disproportionately impact disadvantaged sections of the community and people who drive for a living. The Law Society believes there should be an expansion of the circumstances under which the court could make an exemption order. Advice I have received from the Law Society states:
... the situations where a court can make an interlock exemption order should be expanded for mid-range PCA offences. For example, an exemption order should be available if an interlock is not required in the interests of justice, or the court does not consider it appropriate or necessary when considering the traffic record, subjective circumstances of the offender, implications on any persons other than the offender (i.e. family, employer etc) or any other matter it deems necessary.
I would appreciate a response from the Minister in regard to those exemption orders and whether that was considered in the drafting of the section. Under the bill vehicle sanctions will apply to drink- and drug-driving offences. Police currently have the power to confiscate number plates and impound vehicles for high-range speeding, racing, burnouts, police pursuits and repeated unauthorised driving. Vehicle sanctions usually apply for three months. Those sanctions may now apply to repeat, middle- and high-range PCA offences and repeat refusal offences relating to drink-driving if the person was convicted of another drink-driving offence in the five years before the new offence. Labor does not oppose that approach.
I now turn to the part of the bill that is of most concern to Labor and legal practitioners. I point out that there has been overwhelming opposition to it. Labor will be moving amendments relating to the removal of low‑range PCA offences from the courts. We share the concerns of the Law Society, which has said:
We are of the view that the reforms will decrease deterrence, increase offence and recidivism rates, and have a significant impact on people's livelihoods—particularly those living in regional and remote areas. We are also concerned that despite being designed to reduce the pressure on the Local Court, they may in fact have the opposite effect.
The bill introduces changes to how penalties for low-range, novice-range and special-range alcohol offences and drug presence offences can be applied for first-time offenders. Currently when a driver is breath-tested and the result indicates a low, novice or special range prescribed concentration of alcohol the driver is arrested for the purpose of breath analysis. If the person fails that breath analysis police issue a court attendance. If a test returns a positive reading for drug presence a saliva sample is sent for further testing at a laboratory. If the result is confirmed the driver is then issued with a court attendance notice.
The Minister asserted that over the three-year period to June 2017 some 56 per cent of low-range drink‑driving offences resulted in a non-conviction order in court, which is typically a section 10, and that the court process is lengthy and resource intensive. In response to that we would argue that the court process is also a deterrent and it reinforces the community's view that drink-driving is a crime. It is no longer a crime. Those who go to court face the ignominy and shame of appearing before a magistrate. They must seek character references and benefit from driver re-education. It is very difficult to hide a court appearance from your family, your friends and even your work colleagues. It is much easier to cover up a penalty notice and not face the embarrassment of having to explain yourself and your decision to drink and drive. Taking into account the Minister's statistic regarding to section 10 orders, I add a statistic that the Law Society of New South Wales has provided: low-range PCA accounts for only 1.9 per cent of all local court matters. The Minister indicates that it will free up time in the local court—from memory, it will remove up to 13,000 low-range PCA and drug offences for the court—but it is only 1.9 per cent of all local court matters.
The Law Society asserts that a greater burden may be placed on the court system with increase in urgent applications for appeals against licence suspension, resulting in two hearings rather than one. As outlined, the bill establishes penalty notices for novice, special and low-range PCA offences and for offences related to driving with the presence of illicit drugs for first-time offenders. The penalty notice will be set at a fine of $561. When one considers that some 13,000 people are caught with a low-range PCA or driving under the influence of a drug, that approach will bring a steady stream of guaranteed revenue for the Government. Perhaps the Minister could explain whether the revenue will be hypothecated to the Road Safety Fund, as is the case with other penalty notices. I would expect an answer from the Minister on it.
I note that the NSW Police Force will also retain the discretion to issue a court attendance notice. An offender issued with a penalty notice can also elect to have the matter dealt with by a court. The bill doubles the current maximum court fines for low-range drink and drug presence first offences. If a person is convicted within five years of the date of committing a drink- or drug-driving offence dealt with by a penalty notice, the further offence will be considered a second offence. The bill and the Minister's second reading speech are very vague on how driver education programs will be applied. The Labor Party believes driver education and retraining should be critical components of the Government's road safety strategy, but it has not been the case at all. Indeed, the Minister mentioned the components in her speech. Unfortunately, it is not reflected in the bill or in the limited information that the Minister provided to the House.
The bill provides that Roads and Maritime Services may require drink- and drug-driving offenders to complete an education course as prescribed by regulation. However, there is no information on how the education courses will be implemented and who will be targeted. According to the Minister, Transport for NSW is developing an "education strategy". I would like to know more from the Minister on this aspect of the bill. For instance, when will the education strategy be completed? Who will be involved in determining it? Will it be determined within the Centre for Road Safety? I certainly hope not, given its record. There are many questions around this part of the bill. I am disappointed that such a bill has been brought to the House without that critical aspect being finalised.
The Labor Party has campaigned for a greater emphasis on education and retraining. Road safety should not simply be about fining people, which is obviously happening within this bill. Whether it is true or not, that is the perception in the community. The Government and the Centre for Road Safety have not moved quickly enough on enhancing the road safety education and retraining component in the State. I place on record, and I will reinforce it in the future, that the general feedback I receive from stakeholders and experts in road safety is that the Centre for Road Safety has become overly bureaucratic and has been unable to adapt to the change required to improve safety on our roads. I know that the issue has been raised with the Minister, who has done nothing to improve what is occurring with the Centre for Road Safety. It is simply disgraceful, given the road death toll in the State. I urge the Minister to show leadership regarding the Centre for Road Safety and the way it operates.
Labor has been advocating for increased driver education for well over two years. We believe the approach to road safety should not just be about whacking offending drivers with fines. We must also seek to change behaviour and attitudes as a way of preventing motorists from re-offending.
In closing, I reaffirm Labor's commitment to stop deaths and injuries on our roads. We are committed to working with the Government on this issue, and I sincerely thank the Minister for the opportunity to be briefed on this bill. I look forward to hearing the Minister's response to the issues I raised. As I said, Labor will not oppose the bill but will seek to have drink‑driving remain a crime in New South Wales.