New research on debates about roadside drug testing and human rights

Roadside drug testing is a scheme that tests drivers for traces of prohibited drugs in the body using saliva samples, first introduced in the Australian Capital Territory (or ACT) through a private member’s Bill that was fiercely debated in the parliament. The ACT scheme was the first roadside drug testing scheme in Australia to be subjected to human rights scrutiny, in which parliamentarians weighed road safety arguments against other human rights considerations in determining whether the proposed scheme was compatible with human rights.

Our new paper, which emerges from our larger project on the intersections between human rights, alcohol and other drug policy, explores how this debate unfolded. We find that it was marked by frequent appeals to family members who were present in the public gallery and legal actors such as the Chief Police Officer, the Human Rights Commissioner, and socio-legal experts outside the chamber.

With our research, we wanted to understand how human rights and safety concerns figured in the debate over roadside drug testing in the ACT parliament, and how different actors and audiences were invoked. We analysed texts of the parliamentary debate using Karen Crawley and Kieran Tranter’s conception of legal insiders and outside audiences in legal proceedings. Our focus was on how different stakeholders figured in the debate on the human rights impacts of roadside drug testing, and with what effects. We argue that the content of human rights is shaped in these debates – not by technical rights considerations – but by affect, spectatorship, imagined and actual scrutiny of others, emotions, and bodies.

We conclude that the invocation of outside audiences (including the family members of victims of road trauma) reflects what Crawley and Tranter term ‘a need to bring the human back’ in to law. However, we caution that these debates only bring some humans in, and that deliberations on human rights prioritise only some lives, or some subjects, overlooking others.

Our findings have bearings on future scholarship regarding the potential value of human rights for drug law reform, and we conclude with some recommendations.

First, in the development of the ACT Drug Driving Strategy, the Government should conduct a review of the RDT scheme in the ACT that considers the human rights impacts thereof, especially given recent calls for review. Second, private members’ Bills such as this should be accompanied by a statement of compatibility that sets out the justification for any limitations of human rights, in line with the recommendations of the Human Rights Commissioner. Third, other jurisdictions should consider whether machinery of government changes should be brought about to enable their Human Rights Commissioner or equivalent the ability to consider legislation for human rights compatibility pre-enactment.

To conclude, numerous forces and factors can shape who is understood to have rights, whose rights are thought to matter and how, and which public policy responses we end up with as a result.