Australian Magistrate Resigns to Protest "Grossly Unfair" Drug Driving Laws

Magistrate David Heilpern argues that the "vast majority" of people brought before the courts on drug driving charges had taken it days, or even weeks, prior to its detection.

The NSW magistrate, David Heilpern, has chosen to retire from the job at the age of 58, in what many are seeing as an act of protest against Australia's "grossly unfair" drug driving laws.

Although he could continue to serve until well into his 70s, Heilpern made the decision to step back from the role after being troubled by the lack of a definitive link between positive drug test results and dangerous driving.

When they introduced random breath testing, the road toll decreased massively. When they introduced seatbelt laws, there was a reduction in the road toll. I have seen nothing to show that there is any reduction in the road toll as a result of the thousands and thousands of people who are appearing before courts for historic use of cannabis. NSW Magistrate, David Heilpern

In NSW, drivers who are caught driving with drugs in their system will automatically lose their license for three months on a first offence, before receiving six-month disqualifications for every subsequent incident.

"An enormous number, the vast majority of people who are brought before the courts on this charge, are not affected [by the drug]. It's a historical or relatively benign impact on their driving ability, days, or even weeks after their use," Heilpern said.

"People would lose their licence, therefore they would lose their job. Therefore, they could well lose their house. Their relationships were affected. People became very much more isolated."

"Every week, I would have people in tears in court saying, 'Please don't take my licence from me. I need it, I'm a single mum, I've got kids' or 'I live out of town and I work in town. These consequences are really serious."

However, statements the NSW Transport Department—which recorded 74 fatal crashes in 2019 which were caused by illicit substance use—paint a different picture.

The Deputy Secretary for Transport NSW, Tara McCarthy, argues that combining driving with any form of illegal drug taking is a recipe for disaster because operating a vehicle safely requires focused concentration and sharp reflexes.

 "Any member of the community who has used illegal drugs is advised to be conservative when making the decision to resume driving," McCarthy said.

"[Mobile drug testing] is designed to deter drivers who have recently used illicit drugs from taking the risk of driving."

But, according to Heilpern the current laws just aren't working, and much of the advice provided to drivers is spurious to the point of being, "nothing more than a cruel underestimation that gives people specious information, lulls them into a false sense of security, and leads to greater levels of detection, criminalisation and loss of licence."

"We take an oath to uphold the laws and usages of the State of New South Wales without fear or favour, affection or ill … and I took that oath seriously. My job was not to make up the law but to apply the law," he said.

"I just thought the laws were so grossly unfair that I didn't feel that I could continue to apply them. You've got to live with yourself in these jobs and if the application of a law is so grossly unfair then you've got to ask yourself: well, can I keep doing the job?"

"There are other reasons … while I'm still young enough, I wanted to do something else. But that really started playing on my mind — in good conscience, could I continue to be taking people's licences off them in those circumstances?"

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Hugo Gray
Hugo Gray

Hugo Gray is a Melbourne-based journalist with a body of work that covers a diverse range of topics, including immigration law, sex technology, and now the rapidly expanding cannabis industry.

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