JavaScript disabled. Please enable JavaScript to use My News, My Clippings, My Comments and user settings.

If you have trouble accessing our login form below, you can go to our login page.

If you have trouble accessing our login form below, you can go to our login page.

Detaining drivers a human rights' breach: lawyer

Proposed drink-drive laws that would allow police to detain motorists for 30 minutes invade basic human rights, lawyers say.

Proposed drink-drive laws that would allow police to detain motorists for 30 minutes invade basic human rights, lawyers say. Photo: Chris Lane CJL

Proposed drink-drive laws that would allow police to detain motorists for 30 minutes invade basic human rights, lawyers say.

The ACT government says the revamped roadside alcohol and drug testing regime will improve road safety for all road users in the ACT.

But some lawyers are concerned the new rules could erode civil liberties and could cause unnecessary delays for people on urgent business, such as surgeons on their way to hospitals.

The new laws, due to be debated in the ACT Legislative Assembly next week, will give the police the power to detain a driver for up to 30 minutes if breathalyser or drug testing equipment is not available.

The law applies to all motorists, even if they are not suspected of drinking. The amended road-transport bill will have other changes: restricting defence of honest and reasonable mistake; removing the requirement for police to arrange a medical examination; and it will create an offence of refusing to undertake a screening test for alcohol or drugs.

Police currently have the power to conduct roadside alcohol or drug tests either as part of random breath testing, where a driver is involved in an accident, following a routine traffic stop, or where the vehicle was stopped for another purpose.

But officers have no legislative power to require that a driver remain for a test if a screening device is not immediately available at the scene, or a device is not working. Not all police vehicles are equipped with breathalyser equipment, and only the Belconnen-based Road Safety Operation Team currently carries drug-screening test kits.

ACT Attorney-General Simon Corbell said the change would provide certainty on police powers to temporarily detain a driver to undertake an alcohol or drug screening test.

Mr Corbell said 30 minutes would be the maximum time a person could be detained, but in reality the delay would be shorter.

"The 30 minutes maximum detention period was chosen as an appropriate compromise between the rights of drivers not to be detained for longer than necessary to ensure that the road transport legislation is being complied with, with the time needed to source a replacement screening device," Mr Corbell said.

"Thirty minutes will allow a drug screening device to be sourced from the Traffic Operations Centre in Belconnen … and delivered to any part of metropolitan Canberra where the driver has been directed to remain."

The Attorney-General said similar regimes currently operate in Victoria and Tasmania. "The amendment currently before the Assembly makes no change to the existing grounds upon which the police can require a person to undertake a screening test, i.e. the situation will remain that police do not need reasonable suspicion about the driver being under the influence of alcohol or drugs," Mr Corbell said.

But Paul Edmonds, a defence lawyer from Canberra Criminal Lawyers, said the statutory basis which allowed authorities to randomly stop drivers for a breath test was based on the police being in a position to administer the breath test there and then.

Mr Edmonds, who is a member of the ACT Law Society criminal law committee, said motorists accepted the personal inconvenience of being tested for the greater good of detecting drunk drivers.

But he said the amendment eroded the right to liberty recognised by the Human Rights Act. "This is not simply a matter of personal inconvenience, but rather the power of police to curtail a law abiding individual's right to liberty," Mr Edmonds said.

"It is an unreasonable inroad into the right to liberty to allow the police not only to require a driver who has not committed any offence, and who is not reasonably suspected at that point of having committed any offence, to not only submit to an 'on-the-spot' breath test, but to also make them wait at the roadside for up to 30 minutes just because the police do not have a breath-testing device available or in working order.

"It will be interesting to see what happens if a surgeon on the way to hospital is stopped by police and told to wait for half an hour, or someone running late for a flight."

Mr Edmonds said the laws should have only empowered the police to detain those drivers suspected of driving under the influence for the 30-minute period.

29 comments

  • Sure, give them the power, but I should also have the power to come after them for compensation if they delayed me and found I had done nothing wrong. Police are too quick to use these powers just to show they have them.

    Commenter
    Daniel
    Date and time
    February 17, 2014, 9:08AM
    • Latest brainwave from Mr 1,909 votes.

      If you don't comply, do you get to go to the Human Rights compliant jail?

      What a joke these clowns have become.

      Commenter
      Daniel
      Date and time
      February 17, 2014, 9:17AM
      • I really think some of these lawyers need a reality check. I'm sure police officers would use their discretion if they had stopped a surgeon on the way to hospital. If the surgeon even remotely appeared to be under the influence of something, I think most people would prefer that the police detain the surgeon. I really doubt 30 minutes is going to affect too many drivers. What next, lawyers screeching that delays due to roadworks invade our basic human rights too?

        Commenter
        farnarkler
        Location
        Canberra
        Date and time
        February 17, 2014, 9:36AM
        • Simon Corbell must be under-employed or has run out of ideas on what to do with his time at work to entertain measures to repress Canberran motorists. Time to move on Simon and let someone fresh with new ideas and resolve to do better to take over your seat in parliament. Please go....

          Commenter
          Akari
          Location
          Canberra
          Date and time
          February 17, 2014, 9:40AM
          • I thought 'all police vehicles are RBT units' - that's what the ads tell us. So, there shouldn't be a waiting period.
            However I suspect that behind this there's just the usual bunch of shysters seeking another excuse to be querulous.

            Commenter
            RonalSo
            Location
            Canberra
            Date and time
            February 17, 2014, 9:44AM
            • I know that Detectives don't have all the same equipment in their undercover cars as patrol cars do, however they still have all the same rights to pull you over.

              Commenter
              Daniel
              Date and time
              February 17, 2014, 3:11PM
          • Another invasion of my Privacy, if the police do not have a calibrated testing device when enforcing the Law, Then why do I pay them for Incompetence. As professionals, they should be prepared; I will not waste 30mins. of my time!!

            Commenter
            Straight to home
            Location
            Vic
            Date and time
            February 17, 2014, 10:18AM
            • Why have a poll when the journalist sets ridiculous questions for which most people would find it difficult to select any of the three. It should be simple and clear 'do you accept a police officer stopping and detaining you for 30 minutes' - YES or NO. An important question nobody has mentioned is, when does the 30 minutes start - perhaps this is at the discretion of the police officer ? if so alarm bells are starting to ring as this 30 minutes could happen 20 minutes after you were stopped. Lets not become QLD where the state government is totally controlled by the police force and its union. This proposal is not in the interest of 99.9% of drivers, its in the interest of additional police control over the population.

              Commenter
              Bloo roo
              Date and time
              February 17, 2014, 10:50AM
              • What Labor politicians consistently forget is that the police always push the powers they are granted to the very edge and often beyond. Quite simply, they cannot be trusted to not abuse this power. It's a big mistake. Just imagine the joy a smug, sanctimonious cop will get in holding a driver back from an important appointment all for the sake of a power trip.

                Labor - stop trampling on our human rights!

                Commenter
                yumq
                Location
                cbr
                Date and time
                February 17, 2014, 11:00AM
                • Just imagine what 2 smug, sanctimonious cops could do if they were in different police vehicles.leap frogging their way down the street in front of you.

                  Commenter
                  blindsided breakaway
                  Location
                  backothepack
                  Date and time
                  February 17, 2014, 1:45PM

              More comments

              Comments are now closed
              Featured advertisers

              Special offers

              Credit card, savings and loan rates by Mozo