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2010
THE LEGISLATIVE
ASSEMBLY
FOR THE AUSTRALIAN CAPITAL
TERRITORY
ROAD TRANSPORT (ALCOHOL AND
DRUGS) LEGISLATION AMENDMENT BILL 2010
EXPLANATORY
STATEMENT
Circulated by
authority of
Simon Corbell MLA
Acting Minister for Transport
OVERVIEW
The amendments in the bill are intended to improve ACT
road safety outcomes in relation to drink driving. The principal changes made
by the bill to drink driving aspects of the road transport legislation are as
follows:
• applying a zero alcohol concentration to special drivers
instead of the existing less than 0.02 g of alcohol per 100mL
blood;
• applying the zero alcohol concentration to a wider range of
people, including driving instructors, people who are supervising learner
drivers and , heavy vehicle driver assessors;
• amending the definition
of ‘repeat offender’ in the Road Transport (Alcohol and Drugs)
Act 1977 so that only people who have not previously been found guilty of a
drink driving offence are regarded as first offenders under the Act and to
ensure that the concessional treatment given to first offenders (such as lower
fines, shorter period of licence disqualification and access to restricted
licences) is not available to people who are found guilty again of a drink
driving offence;
• requiring an alcohol awareness course to be
completed by a person before a restricted or probationary licence may be issued
to the person by the road transport authority;
• introducing a
requirement that a police officer suspend a person’s licence as soon as
the person is caught exceeding the prescribed concentration of alcohol applying
to that person by 0.05g or more;
• preventing high-range first
offenders for a disqualifying offence under the Road Transport (Alcohol and
Drugs) Act 1977 from obtaining a restricted licence.
The bill also
makes a range of minor or technical amendments to the Road Transport (Alcohol
and Drugs) Act 1977 to:
• simplify and streamline the processes for
prescribing breath testing equipment, the authorising of police officers to
carry out breath tests, appointing analysts and approving
laboratories;
• comply with the requirements of the national
measurements legislation by making it clear that a concentration of alcohol
expressed as X grams of alcohol per 100mL of blood is equivalent to a
concentration of alcohol expressed as X grams of alcohol per 210L of
breath;
• modernise the processes for collecting, storing and analysing
blood samples;
• update or remove outdated provisions, including
sentencing provisions that are no longer required because of the Crimes
(Sentencing) Act 2005.
The Bill also makes technical amendments
to the Road Transport (Alcohol and Drugs) Act 1977 and other legislation
relating to drug testing of motorists. These amendments build on the amendments
made to the principal Act by the Road Transport (Alcohol and Drugs) (Random
Drug Testing) Act 2010 and:
• allow the police to ask a person to
undergo 1 or more screening tests, to take account of the fact that screening
tests may break or fail to work properly for a range of reasons that are not the
fault of either the police or the person being tested;
• require people
to remain while tests are finalised, to take account of the fact that drug
screening tests, unlike alcohol screening tests, may take up to 10 minutes to
produce a result;
• provide for all oral fluid analysis samples to be
sent to the laboratory for confirmation - prosecutions are commenced on the
basis of laboratory analysis of oral fluid or blood, not on the basis of
screening tests or police analysis results;
• ensure that the drug
driving offences are expressed in terms that are consistent with the Criminal
Code 2002;
• ensure that the offence of failing to provide a sample
of oral fluid includes a defence that the person was medically incapable of
providing the sample;
• ensure that evidentiary certificate provisions
extend to laboratory analysis of oral fluid, opinions by doctors or nurses about
the capacity of a person to undergo oral fluid testing without detriment to
their health, and NSW evidentiary certificates for drug related
tests;
• ensure that provisions dealing with evidence for insurance
purposes extend to evidence relating to drug testing;
• ensure that
provisions dealing with calling witnesses to give evidence relating to
evidentiary certificates include witnesses relating to drug
tests;
• include a power to order that persons whose ability to drive
safely is affected by drugs be directed not to drive for up to 12 hours (with a
power of internal review);
• clarify that alcohol and drug testing
operations can be carried out at the same time.
HUMAN RIGHTS
IMPLICATIONS
The provisions in the Bill authorising a police officer
to request a person to provide sample of breath, oral fluid or blood for alcohol
or drug testing and to take a person into custody for alcohol or drug testing
may engage a number of human rights and the privilege against
self-incrimination. The relevant human rights may include the right to privacy,
the right to refuse consent to medical procedures and the right to liberty and
security of the person. It should be noted that many of the provisions in the
Bill are taken from the existing legislation, and have been replicated either
without change or with only minor drafting modifications to accommodate the
inclusion of the roadside drug testing scheme as a separate set of provisions.
Section 28 of the Human Rights Act 2004 requires a consideration
as to whether the provisions of the Bill impose ‘reasonable limits’
on these rights and the extent to which these reasonable limits may be
considered ‘demonstrably justified’ in a free and democratic
society. As the long title of the Bill indicates, a primary purpose of the Bill
is to deter people from driving while affected by alcohol or drugs. This is
because impaired drivers are a recognised road safety risk. The Bill is aimed
at promoting safer driving behaviours as part of the Safe System framework,
which has the fundamental objectives of:
• making the road transport
system more forgiving of human error and
• minimising the level of
unsafe road user behaviour.
In considering the reasonableness of the
limits on human rights resulting from the Bill’s provisions, it may be
relevant to consider the road safety impacts of drink and drug driving in
Australia. Drink driving is estimated to be a factor in around 25 to 30% of
driver or rider fatalities nationally each year and there is evidence to show
that drug driving alone is a causative factor in an estimated 20% to 25% of
Australian driver fatalities.[1] The
collision risk for drivers affected by alcohol or drugs is higher than for other
drivers.[2] The detection rate for
drug driving offences in Victoria, New South Wales and South Australia, which
were the first three Australian jurisdictions to introduce random drug testing,
is around 2 to 2.4% nationally and is consistently equal to or higher than the
detection rate for drink driving offences (currently sitting at around 1% to
1.5% nationally). National driver surveys conducted for AAMI, which include ACT
drivers, confirm that over 10% of drivers have driven after consuming
recreational drugs.
In considering whether the drink driving amendments
in the Bill represent reasonable limitations on human rights that are justified
in a free and democratic society, it may be relevant to have regard to
legislative developments in other Australian jurisdictions and overseas. Many
of these jurisdictions have also reviewed their approaches to drink driving
sanctions in recent years, particularly in relation to measures aimed at higher
range and repeat offenders. Queensland recently released a discussion paper on
possible reforms to its legislation that includes valuable evidence and
references, including information relating to measures similar to those that
have been included in this Bill. The Queensland paper can be accessed through
the following link: http://www.tmr.qld.gov.au/~/media/f6a8002d-cda6-4c70-9f84-b8a886cc51cc/pdf_drink_driving_discussion_paper.pdf
In considering whether the drug driving amendments in the Bill are
justified in a ‘free and democratic’ society, it may be relevant to
observe that all other Australian States and the Northern Territory have
introduced random drug testing for motorists, with Victoria being the first to
do so. While the details of the legislative schemes vary from state to state,
they all provide for oral fluid screening and analysis. The drug driving
legislation in each state or territory also deals with blood tests for drugs or
medicines that cannot be detected in oral fluid and for persons who cannot
produce sufficient oral fluid for an oral fluid analysis. The ACT is the only
Australian jurisdiction that does not yet have an operational random drug
testing program. While the national road toll has declined gradually over the 5
1/2 year period to June 2010[3],
coinciding with the beginning of random drug testing in Australia, the ACT road
toll has remained generally steady, although the current year been the worst
since 2005. The measures in this Bill are regarded as both necessary and
appropriate to give proper effect to the Legislative Assembly’s intentions
when it passed the Road Transport (Alcohol and Drugs) (Random Drug Testing)
Amendment Act 2010 earlier this year.
STRICT LIABILITY
OFFENCES
Alcohol and drug use are known to be the main causes of road
fatalities in Australia, along with other ‘human factors’ such as
speeding, driver distraction and fatigue. All ACT driver licence holders are
made aware, through the learner driver licence programs, road signage and driver
awareness campaigns run by road safety authorities and the police, that drink
driving and driver impairment generally are offences carrying serious penalties
including licence disqualification, fines and (for serious or repeat offenders),
the possibility of imprisonment.
The Bill remakes several existing
offences and creates several new offences to which strict liability will apply.
The reasons for applying strict liability are explained in the clause notes for
each provision. In the case of re-made offences, these offences have generally
already been interpreted as attracting strict liability and the intention is to
maintain the current situation.
It should be noted that laws to address
driver impairment have long been recognised by the courts as laws where the
ordinary presumptions about mens rea give way to presumptions in favour
of interpretations of strict liability, even where the offence concerned
involves driving under the influence causing serious bodily injury or
death[4]. These laws are intended to
promote road safety and come squarely within the scope of the statement by Dixon
J in Proudman v Dayman. In that case, the court noted that
ordinarily a new criminal offence would be interpreted as requiring a mental
element, then stated:
“But other considerations arise where in
matters of police, of health, of safety, or the like the legislature adopts
penal measures in order to cast on the individual the responsibility of so
conducting his affairs that the general welfare will not be prejudiced. In such
cases there is less ground, either in reason or in actual probability, for
presuming an intention that the general rule [regarding mens rea] should
apply...][5].
A more recent ACT decision, specifically involving section 22 of the Road
Transport (Alcohol and Drugs) Act 1977, took a similar approach: “In
those circumstances, s 22 does not seem to me to require an importation of a
fault element. That being the case, the appellant's submission that there was no
evidence upon which that particular element of the offence could be said to have
been made out cannot be sustained”: Haussman v Shute [2006] ACTSC
54.
In these circumstances, and in light of culpability studies showing
that alcohol and drugs play a role in between 30 to 40% of road deaths each
year, either alone or in combination, it is believed that the application of
strict liability to the offences in the Bill is a justifiable and proportionate
limitation on the human rights in section 21 and 22 of the Human Rights Act
2000, for the purposes of section 28 of that Act.
DEFENCE
PROVISIONS - LEGAL BURDEN OF PROOF
Several of the offences in the
Bill contain specific defences that are in addition to the defences that are
generally available to defendants in criminal proceedings. The clause notes for
the relevant provisions explain the defences and the evidentiary issues that may
arise for those defences.
Section 60 of the Criminal Code 2002
applies to several of these defences, and requires the defendant to establish
the matters constituting the defence on the balance of probabilities. The
matters that a defendant must establish are generally matters that the defendant
is best placed to know. An example is the defence in new section 19B of the
Road Transport (Alcohol and Drugs) Act 1977, which deals with special
drivers who ‘innocently’ consume alcohol in the form of food,
medicine or as part of religious observance. Another example is where a person
is unable to comply with a direction to provide an oral fluid sample because the
person is medically unable to provide sufficient oral fluid - a specific defence
is inserted into the offence in section 22A of the Road Transport (Alcohol
and Drugs) Act 1977 to recognise that some people have medical conditions
that limit saliva production. It is for the defendant to provide the evidence
to support this defence.
NOTES ON CLAUSES
PART
1 PRELIMINARY
Clause 1 Name of Act
This clause
provides that the Bill, when enacted, will be known as the Road Transport
(Alcohol and Drugs) Legislation Amendment Act 2010.
Clause
2 Commencement
This clause explains when provisions in the amending
Act will commence. The Bill provides for the provisions in section 2 (1) to
commence on a date fixed by the Minister by notice. The remainder of the
provisions commence when the Road Transport (Alcohol and Drugs) (Random Drug
Testing) Amendment Act 2010 commences.
It must be noted that at the
date of commencement, but not beforehand, the principal Act will incorporate the
amendments made by the Road Transport (Alcohol and Drugs) (Random Drug
Testing) Amendment Act 2010. That Act has been passed but the amendments
have not yet commenced and have not been officially incorporated into the text
of the Road Transport (Alcohol and Drugs) 1977. Several of the
amendments in the Bill may be difficult to understand unless it is appreciated
that the amendments made by the Bill will commence immediately upon the
commencement of the Road Transport (Alcohol and Drugs) (Random Drug
Testing) Amendment Act 2010 amendments.
The provisions to commence by
notice include the provisions in Parts 3 and 4 relating to alcohol awareness
courses. Establishing these courses in conjunction with health and corrections
agencies will take some time, which is why an implementation period of up to 12
months is contemplated by clause 2 (3) of the Bill. To accommodate a potential
delay in commencement while implementation arrangements are made, the default
commencement period of 6 months under the Legislation Act is displaced in
relation to the provisions listed in clause 2 (1): see clause 2 (4) of the
Bill.
Clause 3 Legislation amended
This clause lists the
enactments that will be amended by the Bill.
PART 2 ROAD TRANSPORT
(ALCOHOL AND DRUGS) ACT 1977
This part of the Bill contains
amendments to the Road Transport (Alcohol and Drugs) Act 1977 as in force
on the date these amendments commence. That Act will be referred to as the
principal Act in this Explanatory Statement. Where relevant, the Bill after it
is enacted will be referred to as the amending Act.
Clause
4 Offences against Act - application of Criminal Code etc
This
clause amends note 1 in section 4 of the principal Act, to update the list of
sections to which the Criminal Code applies. This amendment is consequential on
the remaking of section 19 and the insertion of new offence provisions in this
Bill - the new offences are the offences of ‘failing to stay for drug
screening test’ (new section 22B) and ‘police may direct person not
to drive’ (new section 47B).
Clause 5 New part 1A
heading
This clause inserts a new heading before section 4A, to
create a new Part 1A with the title ‘Important
Concepts’.
Clause 6 Meaning of special
driver
Section 4B (1) (f)
This clause replaces existing
section 4B (1) (f) with an amended section 4B (1) (f) to (j). Special drivers
have a lower prescribed concentration of alcohol applied in relation to them.
Currently, that concentration is 0.02g of alcohol per 100mL of blood or 210L of
breath; under the amendments in the Bill, that concentration will, in effect, be
reduced to zero. The amendment revises and expands the meaning of ‘special
driver’ to include the following:
• the driver of a vehicle
required to carry a sign, marking or placard under the Dangerous Goods (Road
Transport) Act 2009;
• a person who is a heavy vehicle learner
driver;
• a driving instructor who is with a driver for the purposes of
driver instructor or assessment;
• a heavy vehicle driver assessor who
is with a driver for the purposes of driver assessment;
• anyone else
(for example, a parent or friend) who is supervising a learner driver.
The inclusion of provisions dealing with driver instructors, including
heavy vehicle assessors, is new. The inclusion within the meaning of
‘special driver’ of people teaching or assessing learner drivers and
people assessing a heavy vehicle driver’s skill, and hence having a lower
alcohol limit apply to them, is to ensure that people teaching or assessing
these drivers model behaviour consistent with the message drinking and driving
do not mix. It also assists them to exercise the skill and concentration
required to teach another person to drive or to assess a person’s driving
skills. Heavy vehicle learners have also been explicitly included in the
definition of ‘special drivers’ to remove any doubt that these
drivers are covered.
The driver of a Commonwealth vehicle is omitted from
the definition of ‘special driver’ because it is a category of
driver for which the Territory has no special responsibility to regulate unlike,
for example, drivers of public passenger vehicles and heavy vehicles.
The opportunity has also been taken to update the terminology used to
refer to public passenger vehicles and heavy vehicles.
Clause
7 Section 4B (3) to (5)
This clause omits section 4B (3) to (5) and
substitutes a new subsection (3), which updates terms used in amended section
4B relating to driver instruction and assessment by reference to the Road
Transport (Driver Licensing) Regulation 2000.
The omission of
former subsections (3) to (5) is consequent on the omission of the reference to
a driver of a Commonwealth vehicle from existing section 4B (1) (f) (i). The
amendment also omits the existing definition of ‘heavy motor
vehicle’ in former section 4B (5). This because the substance of
this definition is subsumed into new paragraphs 4B (1) (f) (ii) and (iii). A
new definition of ‘public passenger vehicle’ is inserted in new
section 4B (3) to reflect current terminology.
Clause 8 Sections 4C
to 6
This clause substitutes new sections 4C to 6 in the principal
Act.
New section 4C defines the concept prescribed
concentration of alcohol. It provides that the prescribed concentration
for a special driver is more than 0g of alcohol in 100mL of blood or 210L of
breath. The concentration of alcohol for any other driver is 0.05g or more of
alcohol in 100mL of blood or 210L of breath. It must be noted that the concept
of exceeding a specified amount is built into the concept of
‘prescribed concentration’ itself, which is relevant when one is
considering the elements of the offence in section 19 (as amended by this Bill).
The effect of the definition is that a special driver will be at the prescribed
concentration, and therefore at risk of committing a drink driving offence, if
he or she has any alcohol in his or her blood or breath.
New section 4D
explains how alcohol concentration may be expressed. The principal
Act currently refers to the measurement of blood alcohol concentration in terms
of grams of alcohol per 100mL of blood. Consequent on changes to the
National Measurement Regulations 1999 (Cwlth), many newer breath
testing machines record and report breath analysis in terms of grams of alcohol
per 210L of breath in addition to grams of alcohol per 100mL of blood. The
results are equivalent however they are expressed. New section 4D allows an
analysis of a concentration in a person’s blood or breath to be expressed
in terms of grams of alcohol per 100mL of blood or grams of alcohol per 210L of
breath. Subsection 4D (2) makes it clear that these are equivalent
measurements.
New section 4E is a provision setting out the meaning of
level of alcohol concentration, and includes a table setting out
the alcohol concentrations that correspond to particular levels. The concept of
levels is relevant to the penalties that may be imposed for an
offence: different maximum penalties apply to offenders according to their
alcohol concentration level (see for example the table in section 26 of the
principal Act). This provision remakes former section 4C of the principal Act,
with the inclusion of a reference to a concentration of alcohol in 210L of
breath. Also, the alcohol concentration range for level 1 offences has been
changed from ‘0.02g or more to but less than 0.05g’ to ‘less
than 0.05g to reflect the new prescribed concentration of alcohol for special
drivers.
New section 4F defines the concept of first
offender and repeat offender. This section replaces
existing section 4D of the principal Act, on which it is based.
Higher
penalties apply to a person who is a repeat offender. Also, a repeat offender
is not eligible to apply for, or be issued with, a restricted licence: see the
Road Transport (General) Act 1999, existing section 67 (3) (a) and
new section 67 which will be inserted by clause 134.
One particular
effect of the new definition of ‘repeat offender’ is to ensure that
a person is only ever to be entitled to one restricted licence for a
disqualifying offence under the Road Transport (Alcohol and Drugs) Act
1977. As the definition of ‘repeat offender’ currently stands,
a person who has been convicted or found guilty of a disqualifying offence and
who is subsequently convicted or found guilty of what is termed a
‘relevant offence’ (see below) after a 5-year period is a first
offender for both offences and is able to apply for a restricted licence in
relation to the disqualifications for both offences. A restricted licence is a
concession to recognise that disqualification may cause undue hardship but it is
to be authorised in exceptional circumstances only: see the Road Transport
(Driver Licensing) Regulation 2000, section 47 (1) and the criteria in
subsection (2).
New section 4F (1) provides that a person who is
convicted or found guilty of a disqualifying offence will be a first offender
for that offence if the person is not a repeat offender for the offence. The
term disqualifying offence is defined in the dictionary to the
principal Act and includes an offence against sections 19, 20, 22, 22A, 23 or 24
or another provision prescribed by regulation. Currently, no other offences
have been prescribed. The penalty for these offences includes disqualification
from being able to apply for or hold a driver licence.
New section 4F (2)
explains the concept of a repeat offender in relation to a disqualifying
offence. Under proposed section 4F (2) (a), a repeat offender for a
disqualifying offence is a person who has already been convicted or found guilty
of a ‘relevant offence’ that was committed before the disqualifying
offence was committed, whether or not the person had been convicted or found
guilty of the relevant offence when the person committed the disqualifying
offence.
New section 4F (2) (b) deals with the situation where a person
is convicted or found guilty of a disqualifying offence and is concurrently
convicted of one or more relevant offences. If one or more of those relevant
offences were committed before the disqualifying offence was committed, the
person will be a repeat offender in relation to the disqualifying
offence.
The inclusion of the words ‘whether or not the person had
been convicted or found guilty of the relevant offence’ in section 4F (2)
(a) and ‘concurrently with being convicted or found guilty’ in
section 4F (2) (b) are intended expressly to exclude a common law principle of
statutory construction for repeat offender provisions. The essence of the
principle is that a law which imposes a higher penalty on repeat offenders
should be interpreted as applying only to offences committed after being
convicted the first time.
The principle is sometimes known as Lord
Coke’s canon of statutory construction and is said to date from the
seventeenth century. The principle has been considered and applied judicially
in Australia, including in the ACT Magistrates Court decision in Warry v
Hill CC 2002/9296-9297.
Lord Coke’s principle of
construction is apparently based on the deterrent effect of a conviction and is
as follows:
‘The theory is that the appropriate lesson will have
been learnt on the first or subsequent occasion upon which the offender is dealt
with by the court, and he or she, having suffered the punishment, will then be
deterred from offending in like manner again. The objective of deterrence, based
upon escalating periods of actual imprisonment, would be open to grave doubt,
if, when before a court for the first time, an offender would be liable to
incarceration for a period in excess of that applicable for a first finding of
guilt, simply because he or she then stood charged with more than one property
offence which happened to be joined on separate informations. The justification
for increasing the term of imprisonment on the second finding of guilt would be
missing as the offender would not have been previously subjected to punishment
aimed at deterrence. There would be no opportunity for the multiple offender,
not previously charged, to become aware of the certainty of the severity of
punishment for the proscribed criminal behaviour.’ (See
Schluter v Trenerry [1997] NTSC 102.)
In the
seventeenth century, when there were no means of mass communication or ready
access to the law by means such as the Legislation Register to inform the
community of its legal rights and obligations, it may well have been the case
that there was little opportunity for people to become aware of the severity of
punishment if a person reoffended. The deterrent effect of repeat offender
provisions may have depended very largely on their impact on the particular
offenders to whom they applied (specific deterrence) rather than their effect on
the community at large (general deterrence). The situation is very different
these days, as community access to information about legislation and sentencing
generally has improved markedly even in the thirteen years since Schluter
was decided. Awareness that drink driving is an offence is an essential part of
the knowledge test for all learner drivers and the penalties for drink driving
offences are well publicised.
New section 4F (3) is a transitional
provision. It applies to a person who is convicted or found guilty of a
disqualifying offence that was committed before section 8 of the amending Act
commences. The person will be a repeat offender only if the person:
• was convicted or found guilty of a relevant offence in the 5 year
period before being convicted or found guilty of the disqualifying offence;
or
• is convicted or found guilty of one or more relevant offences
concurrently with being convicted or found guilty of the disqualifying offence,
and one or more of the relevant offences were committed before the disqualifying
offence.
The effect of section 4F (3) (a) is to preserve the current 5
year time frame for taking previous convictions into account during the
transition from the current scheme to the new scheme. In section 4F (3) (b),
the ‘repeat offender’ principle of statutory construction is
expressly excluded by the inclusion of the words ‘concurrently with being
convicted or found guilty’.
New section 4F (5) defines the term
‘relevant offence’. Under existing section 4D a person is a
repeat offender for a disqualifying offence if the person commits what is termed
a ‘relevant offence’. As that section stands, a relevant offence is
a disqualifying offence, an offence in another Australian jurisdiction that
corresponds to a disqualifying offence, an offence of culpable driving whether
or not it involved alcohol, certain offences against the Road Transport
(Safety and Traffic Management) Act 1999 about reckless, dangerous and
menacing driving and certain offences against the Road Transport (Driver
Licensing) Act 1999 about driving or fraudulently applying for a driver
licence while disqualified or after licence suspension, cancellation or refusal
and contravention of conditions of a restricted licence.
The definition
of ‘relevant offence’ is amended so that it covers a disqualifying
offence, a corresponding disqualifying offence or a culpable driving offence
involving impairment by alcohol or a drug. The omitted offences are not
impairment based offences and are not considered appropriate in the context of
disqualifying offences which do relate to driving while impaired by alcohol or a
drug.
Section 4F may be regarded as limiting the right in section 24 of
the Human Rights Act 2004, in that it allows the Court to have regard to
a previous offence when considering the penalty to be applied in relation to a
subsequent offence. However, given the specific deterrence value of repeat
offender provisions, it is believed that the inclusion of section 4F is
justified and proportionate given the need to discourage repeat drink driving
and is among the least restrictive measures reasonably available to achieve the
purpose.
New section 5 deals with the authorisation of operators. This
section replaces sections 6 (1) and (1A) of the principal Act, which provide for
the chief police officer to authorise a police officer to carry out breath
analyses or oral fluid analyses, respectively, if the police officer has
completed a course of instruction approved by the Minister to the satisfaction
of the chief police officer. Under section 6 (4), an authorisation is a
notifiable instrument.
New section 5 (1) provides that the chief police
officer may authorise a police officer to carry out a breath analysis or an oral
fluid analysis, or both, for the Act. New section 5 (2) makes it clear that
the authorisation may be given only if the chief police officer considers the
police officer is suitably qualified to carry out the relevant type of analysis.
It is considered that the chief police officer is better placed than the
Minister to assess whether the training available to police is appropriate and
relevant for operational requirements, therefore the requirement for the
Minister to approve courses has been omitted.
New section 5A requires
the chief police officer to keep a register of officers who are authorised under
section 5. At present, section 6 (4) the principal Act provides for
authorisations of breath analysis instrument operators to be notified on the
Legislation Register; this system has become unwieldy, with over 80 separate
authorisation instruments currently notified on the Legislation Register, and it
can sometimes be time difficult to find out when a particular police officer was
authorised. Accordingly, the requirement for an authorisation to be a
notifiable instrument is omitted. The new provision will ensure that
information about the police officers who are authorised to carry out breath
analyses is up to date and publicly accessible. The register must be available
for public inspection, free of charge, during normal business hours on any
business day. For the privacy of police officers, the register need only
contain an authorised officer’s service number.
New section 5B
provides that the road transport authority may appoint analysts for the
purposes of the Act, and new section 6 provides for the road transport authority
to approve laboratories for the purposes of the Act. Currently the appointment
of analysts and approval of laboratories is a function exercised by the
Minister. Under the amended provisions, these approvals will be a function of
the road transport authority, which will bring these approval processes into
line with other approvals or authorisations under the road transport legislation
(see for example the Road Transport (General) Act 1999, section 19; the
Road Transport (Driver Licensing) Regulation 2000, section 15A; or the
Road Transport (Vehicle Registration) Regulation 2000, Division
6.3.2.
Clause 9 New division 2.1
This clause inserts new
division 2.1 into the principal Act before existing section 8 (noting that there
is currently no section 7 in the principal Act).
New division 2.1 is
headed ‘Important Concepts - alcohol and drug
tests’.
New section 7 sets out the meaning of alcohol screening
device. This provision is based on former section 5(1) of the principal Act,
however it provides for alcohol screening devices to be prescribed by regulation
rather than approved by the Minister. Modern alcohol screening devices used by
Australian police forces are extremely reliable and effective devices that
provide an almost instantaneous reading to indicate the presence (and in most
cases, the concentration) of alcohol in a person’s breath. The
regulations included in the schedule to the Bill list the screening devices that
are prescribed for the purposes of the principal Act.
New section 7A
sets out the meaning of breath analysis instrument. This provision is based on
former section 5A of the principal Act.
New section 7B sets out the
meaning of drug screening device. The regulations will prescribe the devices
for use in drug testing motorists in the ACT. In brief, a drug screening device
is a disposable drug testing kit that is activated by a person’s oral
fluid when that fluid is collected in the relevant part of the device, in
accordance with the directions of the police officer supervising the screening
test. A drug screening device tests drivers for the presence of prescribed
drugs.
New section 7C defines the concept of oral fluid analysis
instrument. The regulations will prescribe the instruments for use in drug
testing motorists in the ACT. In brief, an oral fluid analysis instrument is a
portable machine that undertakes an almost immediate analysis of a sample of
oral fluid to ascertain whether prescribed drug is present in the sample.
New section 7D provides that the regulations may make provision for the
testing and maintenance of alcohol screening devices, breath analysis
instruments and oral fluid analysis instruments, including the persons who may
carry out the testing and maintenance. A similar regulation-making provision
exists in relation to the testing, maintenance and sealing of traffic offence
detention devices: see section 24 of the Road Transport (Safety and Traffic
Management) Act 2000.
The Bill then inserts another division
heading, which will create new Division 2.2 after new section 7D. The new
division heading is ‘Alcohol - screening tests’.
Clause
10 Section 8 heading
This clause replaces the heading for section 8.
The new heading specifically refers to alcohol screening tests. The former
heading referred to screening tests. The change reflects the separation of
alcohol testing provisions from drug testing provisions by this amending
Bill.
Clause 11 Section 8
This clause replaces the term
‘a screening test’ with ‘an alcohol screening test’ in
section 8. The change reflects the separation of alcohol testing provisions
from drug testing provisions by this amending Bill.
Clause 12 Section
9 heading
This clause replaces the heading for section 9. The new
heading specifically refers to alcohol screening tests. The former heading
referred to screening tests. The change reflects the separation of alcohol
testing provisions from drug testing provisions by this amending
Bill.
Clause 13 Section 9
This clause replaces the term
‘a screening test’ with ‘an alcohol screening test’ in
section 9. The change reflects the separation of alcohol testing provisions
from drug testing provisions by this amending Bill.
Clause 14 Section
10 heading
This clause replaces the heading for section 10. The new
heading specifically refers to alcohol screening tests. The former heading
referred to screening tests. The change reflects the separation of alcohol
testing provisions from drug testing provisions by this amending
Bill.
Clause 15 Section 10
This clause replaces the term
‘a screening test’ with ‘an alcohol screening test’ in
section 10. The change reflects the separation of alcohol testing provisions
from drug testing provisions by this amending Bill.
Clause 16 Section
11, 12 and 12 AA
This clause inserts new division 2.3 which deals
with confirmatory tests for alcohol.
New section 11 is based on existing
section 11 with modifications to omit references to drug testing and to
accommodate the prescribed alcohol concentration for special drivers. New
section 11 provides that where an alcohol screening test indicates that a person
has the prescribed concentration of alcohol in the person’s breath, or the
person refuses a screening test, the person may be detained for breath analysis.
The power to detain a person for carrying out breath analysis is not new and has
existed since the principal Act was first made as the Motor Traffic (Alcohol
and Drugs) Ordinance 1977. It should be noted that the period of time for
which a person can be detained under the principal Act is very limited -
existing section 14 contains restrictions that serve to limit the total time for
which a person can be kept in custody for testing under the principal Act, to a
maximum of 2 hours - in practice this is usually less. These limits ensure that
the power to detain a person for testing is not used to hold people for purposes
unrelated to alcohol or drug testing.
The principal Act could not
operate effectively without a legal basis for requiring people to remain with
police while tests are carried out - that legal basis is provided by authorising
their detention for testing. To the extent that this short period in police
custody can be seen as interfering or restricting human rights, it is believed
that this interference is a reasonable limitation that can be demonstrably
justified as necessary for ensuring the effective operation of the alcohol and
drug testing scheme established by the Act, which is an integral part of the
Territory’s road safety strategy.
New section 11 (3) has been
included to reflect the new zero alcohol concentration for special drivers, and
provides that if a police officer has reasonable cause to suspect that the
person is a special driver, the prescribed concentration for the person for the
purpose of the screening test is the prescribed concentration for a special
driver. While the Government notes the Committee has commented previously on
the use of ‘reasonable grounds to believe’ as an alternative to
‘reasonable cause to suspect’, the Government has chosen to use the
test of ‘reasonable cause to suspect’ to maintain consistency with
existing provisions of the principal Act, such as sections 8, 9 and 10, which
also use the concept ‘reasonable cause to suspect’. In practice,
the difference in wording is not likely to result in different outcomes for
special drivers, as the police will generally be able to verify the
driver’s licence status from the rego.act database or other databases
reasonably quickly even if the person is not carrying his or her licence at the
time.
New section 11 (4) is based on existing section 11 (3) of the
principal Act, and requires a person to be taken for a breath analysis as soon
as practicable to a police station or other convenient place. The Bill includes
an example to illustrate when a person may be taken as soon as practicable to a
convenient place.
New section 12 is substantially based on existing
section 12 of the principal Act, modified to omit references to drug testing,
which will be located to a division of their own, and to update the drafting
style. It provides for a person who is taken into custody for breath analysis
under section 11 to give a sample of breath for analysis by an authorised
operator using a breath analysis instrument. The regulations may prescribe
certain matters for section 12.
Clause 17 Section 13
heading
This clause substitutes a new heading for section 13, as a
consequence of its location in a division dealing with breath analysis. There
will be an equivalent provision dealing with privacy for oral fluid analysis, in
new division 2.5.
Clause 18 Section 13 (1)
This amendment
is consequential on the amendment to establish a register of authorised
operators under new section 5. It replaces the term ‘approved
operator’ with ‘authorised operator’.
Clause
19 Section 13
This amendment omits the words ‘or oral fluid and
is consequential on the separation of the provisions dealing with alcohol
testing from the provisions dealing with drug testing.
Clause 20 New
division 2.4
This clause inserts new division 2.4 and new division
2.5, consisting of new sections 13A to 13G. Several of these sections are based
on existing sections in the principal Act, while others are new provisions that
are included to facilitate the operation of the new drug testing scheme inserted
by the Road Transport (Alcohol and Drugs) (Random Drug Testing) Amendment Act
2010. Where a section is substantially based on an existing provision, this
is explained in the relevant notes. To the extent that these amendments have
an impact on human rights, it is suggested that these limitations are justified
on the basis that the amendments are necessary for the effective operation of
the random drug testing provisions passed by the Assembly in June 2010, as
evidenced by the fact that similar provisions exist in other jurisdictions that
have implemented effective random drug testing schemes in recent
years.
New section 13A is based on section 8 of the principal Act, but
the provision has been modified to deal only with drug screening tests. It has
also been modified in two other ways to reflect technical aspects of drug
screening tests. Firstly, due to the way the drug screening tests are
physically constructed, they can quite easily break or malfunction after a
person has applied oral fluid to the testing surface. Therefore, the first
modification is to permit the police to request the person to undergo ‘1
or more’ drug screening tests, so that a valid test can be completed. A
similar provision is found is section 18B (1) of the NSW Road Transport
(Safety and Traffic Management) Act 1999.
The second modification is
the inclusion of subsection (2), which requires a person to remain at the place
the test is being carried out until the test is completed. Tests can take
several minutes to complete - the test involves a chemical reaction between
substances in the buffering solution and the oral fluid sample provided by the
person, which takes time to occur. A similar provision exists in the Victorian
legislation: see section 55D (7) of the Road Safety Act 1986
(Vic).
New section 13B is a modified version of section 9 of the
principal Act, which contains modifications similar to those described for new
section 13A. New section 13C is a modified version of section 10 of the
principal Act, which contains modifications similar to those described for new
sections 13A and 13B.
New division 2.5 is headed ‘Prescribed Drugs -
confirmatory tests’. This division deals with oral fluid samples
collected by authorised police officers for on-site and laboratory analysis. It
should be noted that if a person is medically unable to produce sufficient oral
fluid for analysis, a blood sample may be taken under division 2.7.
New
section 13D is based on revised section 11, and provides for a person to be
taken into custody for oral fluid analysis. Similar arguments relating to the
human rights impact of this section also arise here as arise in relation to
replacement section 11 of the principal Act (see pages 11 and 12 of this
Explanatory Statement).
New section 13E is based on section 12 of the
Act, and requires a person to give a sufficient sample of the person’s
oral fluid for analysis. The procedure to be followed departs from section 12
in the current Act in several respects. The most significant change is that,
like section 18D (4) (e) of the NSW Road Transport (Safety and Traffic
Management) Act 1999, it provides for laboratory analysis of all oral fluid
samples collected from persons who fail a drug screening test. This section
sets out a process under which a sample is taken, divided, part is analysed by
an authorised operator on site and part is sealed and sent off to a laboratory
for confirmatory analysis.
Allowing for the laboratory analysis of all
samples will ensure that false positive and false negative results from
screening tests and on-site analyses can be detected, which is important for
evaluating the performance of the equipment used in the drug testing scheme.
This will ensure that prosecutions are based on the results of laboratory
results. The Australian Standard 4670-2006 relating to oral fluid testing for
drugs does not provide for results from on-site oral fluid analysis instruments
to be used in legal proceedings without confirmation by a laboratory accredited
by the National Association of Testing Authorities (NATA).
Second, new
section 13E differs from section 12 of the principal Act in that the
regulation-making power in subsection (3) has been redrafted in simplified
language, similar to the way that new section 12 in clause 16 of the Bill has
been drafted. Thirdly, section 13E (5) includes additional requirements relating
to tamper-evident seals and unique identifying numbers. These requirements are
included to assist in preserving the evidentiary integrity of the sample.
New section 13F is very substantially based on section 13 of the
principal Act and deals with precautions for privacy during oral fluid analysis.
In practice, it is expected that the majority of oral fluid analyses will occur
inside mobile police vehicles, which will afford a reasonable degree of privacy
to the person undergoing oral fluid analysis.
New section 13G deals with
confirmatory analysis of part of the oral fluid sample that has been collected,
sealed, labelled and stored under section 13E. It provides that the chief
police officer is to arrange for the sample to be sent to the laboratory for
analysis. An analyst must arrange for the analysis of the sample to determine
whether a prescribed drug is present in the sample. The provision includes an
obligation to use reasonable care to retain a portion of the sample to
accommodate future requests by the tested person for independent analysis of
that retained portion, at the tested person’s expense. The retained
portion is to be kept for a year or if the Director of Public Prosecutions has
requested that the sample be retained for a longer time (for example because a
prosecution is still pending before the courts), that longer period.
After new section 13G, the Bill then inserts a new division heading
‘Division 2.6 Restrictions on alcohol and drug tests’, before
existing section 14 of the principal Act.
Clause 21 Section 14
heading
This clause replaces the section heading for section 14.
This amendment updates the drafting style for the heading in line with modern
drafting practice.
Clause 22 Section 14 (1)
This clause
is consequential on the restructuring of part 2 of the principal Act. It
redrafts existing section 14(1), which deals with restrictions on screening
tests and breath or oral fluid analyses and other tests under part 2. Redrafted
section 14 (1) includes a generic reference to ‘screening tests’,
which is a concept that will be defined in new section 14 (5) to include alcohol
screening tests and drug screening tests. It also includes references to
analyses under new sections 12 and 13E. Importantly, new section 14 (1) does
not materially change the purpose of section 14 - specifically, they do not
alter the restrictions or time limits on testing. The purpose of this clause is
to ensure those restrictions continue to apply under the amended
legislation.
Clause 23 Section 14 (3)
Like clause 22, this
clause is consequential on the restructuring of part 2 of the principal Act and
also includes references to ‘screening tests’ and analysis under
section 12 or section 13E. The amendments do not materially alter the purpose
or effect of section 14.
Clause 24 Section 14 (5)
This
clause inserts new section 14 (5), which defines the term ‘screening
test’ for section 14. This term is used to refer collectively to alcohol
screening tests and drug screening tests in section 14.
Clause 25 New
division 2.7 heading
This clause inserts a heading for new division
2.7, ‘Analysis of blood - alcohol and drugs’ before
section 15.
Clause 26 Section 15 (1) (b)
This clause
redrafts existing section 15 (1) (b) of the principal Act to clarify the
situations where it is not practicable to carry out a breath or oral fluid
analysis, to remove potential ambiguity in the existing provision arising from
the use of the generic term ‘the analysis instrument’.
It
also inserts new paragraph 15 (1) (c) to allow a blood test to also be carried
out where an uninjured person is unable to provide sufficient oral fluid for
analysis under section 13E. This amendment will bring people who are medically
unable to produce enough oral fluid onto the same footing as people who are
certified as being medically unfit to undergo breath or oral fluid analysis: see
section 14 (3) (b) of the principal Act.
While the amendment will
undoubted have an impact on the human rights of the small number of people who
are unable to produce enough oral fluid and who will be required to undergo the
more invasive procedure of a blood test instead, it is believed that this
impact on human rights is a “ reasonable limitation” within the
meaning of section 28 of the Human Rights Act 2004. In summary, the
measure is believed to be justified it is consistent with existing policy and
practice, it will apply only where other less invasive methods (oral fluid
testing) have been tried unsuccessfully and its purpose is to ensure that people
who have failed or refused a drug screening test can be required to undergo more
substantive testing to confirm the presence (or absence, as the case may be) of
a prescribed drug.
Clause 27 Section 15 (3)
This clause is
a technical drafting amendment to explain references to the terms ‘taking
of a blood sample’ and ‘analysis of a blood
sample’.
Clause 28 Section 15 (7), (8) and (9)
This
clause replaces existing subsections (7) to (9) with new sections (7) and (8).
The new provisions require the sample taker to-
• put the sample of
blood into a single container;
• label it with essential details such
as the sample taker’s name, the tested person’s name, the date and
time the sample was taken;
• seal the container with a tamper-evident
seal marked with a unique identifying number; and
• place the container
into a one-way box.
The police will then arrange for the sample to be
collected from the one-way box by an analyst.
The unique identifying
number mentioned in new section 15 (7) will be recorded on the documentation
relating to the sample that is given to the tested person under section 15A and
in any evidentiary certificates relating to the sample.
Clause
29 Section 15AA (2) to (4)
This clause amends section 15AA, which
deals with taking samples from people in hospital. It replaces existing
sections 15AA (2) to (4) with new sections 15AA (2) and (3), which mirror the
amendments made in relation to new section 15 (7) and (8) by clause
28.
Clause 30 Sections 15A and 15B
This clause
inserts replacement sections 15A and 15B, which deal with analysis of blood
samples.
New section 15A explains what must happen to a sample of blood
collected under sections 15 or 15AA once an analyst has collected the sealed
container from the one-way box. Section 15A (2) provides that the analyst must
arrange for an approved laboratory to analyse the sample to work out the blood
alcohol concentration as soon as practicable. Section 15A (3) applies where a
police officer has reasonable cause to suspect that a driver has a drug other
than a prescribed drug or alcohol in the person’s body, or that the
person’s behaviour is affected by the presence of a drug other than a
prescribed drug or alcohol. In such cases, the police officer may ask the
analyst to work out whether one or more such drugs are present in the sample and
if so, in what quantity, concentration or other measurement they are present.
Section 15A (4) requires the analyst to comply with the request so far as
practicable.
Sections 15A (5) to (8) deal with setting aside part of the
sample for possible future analysis. The analyst is required to take reasonable
care to ensure that part of the sample is preserved in the event of a request by
the tested person to send the sample for independent analysis at the tested
person’s expense. The cost of the further testing, will be at the tested
person’s expense. In general, the tested person will have one year to
make such a request, unless the Director of Public Prosecutions has requested
the laboratory to retain the sample for a longer period. If the tested person
does request that part of the sample be made available, it must be sent to the
nominated laboratory as soon as practicable.
The requirement for an
analyst to take ‘reasonable care’ to ensure that part of the sample
is preserved, rather than, for example, of ensuring that a part of the sample is
kept for later analysis, reflects a variety of situations which might affect
such a requirement. The quantity remaining is dependant on the quantity of
blood taken and whether or how many tests for drugs other than prescribed drugs
or alcohol are carried out.
New section 15B deals with blood analysis
statements. It requires the chief police officer to ensure that a tested person
is given a statement, as soon as practicable after a blood analysis is carried
out under section 15A. The blood analysis statement must contain the following
details:
• when and where the sample was taken;
• the unique
identifying number on the tamper-evident seal;
• the results of the
analysis;
• where the remainder of the sample is being
held;
• that the person will be notified if the Director of Public
Prosecutions requests that the sample be held past the one year period;
• the person’s right to request that part of the sample be sent
for independent analysis at the person’s expense.
Clause
31 Section 16 heading
This clause inserts a new heading to section
16. This amendment is consequential on the amendments to section 16 (1) made by
clause 32, and better reflects the purpose for which body samples may be taken.
Clause 32 Section 16 (1)
This clause amends
section 16, which deals with taking body samples from certain drivers in
situations where a police officer believes that the person may have a drug other
than alcohol in his or her body, or where it is suspected that the
person’s behaviour does not arise from, or does not arise wholly from, the
presence of alcohol. Section 16 currently applies to drivers suspected of
committing a culpable driving offence, drivers suspected of driving under the
influence of intoxicating liquor or a drug and drivers involved in accidents.
The amendment removes the reference to drivers involved in accidents as it is
unnecessarily duplicative. The principal Act specifically deals with taking
samples of breath, oral fluid or blood from drivers or other people involved in
accidents in section 9, section 13B, section 15AA and section
18A.
Clause 33 Section 16 (2)
This clause replaces the
phrase ‘drug other than alcohol’ with the phrase ‘drug (other
than a prescribed drug) or alcohol. This amendment is consequential on the
passage of the Road Transport (Alcohol and Drugs) (Random Drug Testing)
Amendment Act 2010. It has the effect that samples taken under section 16
may be tested for those drugs that affect driving that are not detectable by
oral fluid tests (for example, heroin, morphine or the benzodiazepine family)
and avoids duplication between section 15, section 15AA and section 16.
Clause 34 Section 16 (7) to (9)
The amendments in this
clause replace subsections (7) to (9) with new subsection (7) to (8), which
mirror new section 15 (7) and (8), inserted by clause 28 of the
Bill.
Clause 35 Section 16A
This clause omits existing
section 16A and substitutes new sections 16A, section 16B and section
16C.
New section 16A explains what must happen to a body sample collected
from a person under section 16. New section 16A is substantially in line
with new section 15A. New section 16B deals with body sample
statements.
New section 16C has the effect of allowing the Director of
Public Prosecutions to request the laboratory to keep the preserved part of a
sample collected from a person under the Act, pending finalisation of any legal
proceedings against the tested person. The DPP is required to notify the
person about the request as soon as practicable. This will allow the person to
take the opportunity, if he or she wishes, to have the sample independently
tested before any criminal proceedings are finalised.
New section 16D
explains when the preserved part of a sample may be destroyed. If the preserved
part of the sample has not be sent to a nominated laboratory at the request of
the tested person at the end of one year, and the Director of Public
Prosecutions has not requested under new section 16C that it be kept, then the
preserved part of the sample must be destroyed.
Clause 36 Exemptions
from requirements to take blood samples or carry out
examinations
Section 17 (2) (b)
This clause makes a
consequential amendment to section 17 (2) (b) to update a reference to the
heading to section 16, which is amended by clause 31 of the
Bill.
Clause 37 Protection of police officers and medical
staff
Section 18 (3) (a)
This clause changes a reference
to ‘approved operator’ to ‘authorised operator’. This
amendment is consequential on new section 5, which provides for the chief police
office to establish a register of authorised operators to conduct breath and
oral fluid analysis for part 2 of the principal Act.
Clause 38 Section
18 (3) (a)
This clause makes consequential amendments to section 18
of the principal Act to replace a reference to former section 12 (7), which
required a written statement to be given to the tested person about a breath
analysis or oral fluid analysis, with a reference to new sections 12 (5) and new
sections 13E (6). Those sections replicate that requirement for a breath
analysis and oral fluid analysis, respectively. The amendments do not alter the
substantive effect of section 18 itself.
Clause 39 Section 18B
This clause replaces section 18B, including its heading, to make it
clear that the section deals with all types of samples collected under the Act.
The revised section 18B also includes a reference to body samples, which are
dealt with under sections 16 and 16A of the principal Act. The revised section
also includes new paragraph 18B (c) to ensure that samples collected under the
principal Act may be used in proceedings for an offence of culpable driving.
This use of these samples was inadvertently omitted when section 18B was
inserted into the principal Act. Section 10 of the current Act (remade as new
sections 10 and 13C to be inserted by the Bill) provides that where a police
officer has reasonable cause to suspect a person has committed an offence of
culpable driving, the police office may require the person to undergo a
screening test, thus it is apparent that the legislature intended that the
persons suspected of involvement in culpable driving offences should be
subjected to drug and alcohol testing under the principal Act. This amendment
ensures that samples taken from these suspects can be used for their intended
purpose.
Clause 40 Section 19
This clause remakes section
19 of the Act. This section creates the central offence in the Act of a person
being a driver with the prescribed concentration of alcohol. The section is
remade to update its terminology, particularly to reflect the amendments to the
concept of ‘prescribed concentration’, which has the element of
being over a particular concentration built into the relevant definition in new
section 4E (e.g. ‘more than 0.0g in 100 mL of blood or 210 mL of
breath’ or ‘0.05g or more in 100 mL of blood or 210 mL of
breath’ ).
As the previous offence was enacted before the
Criminal Code 2002, the common law applied to its interpretation. With
its remaking by this Bill, the Criminal Code 2002 will now apply to this
offence. The provision has been recast slightly so that strict liability is
expressly stated to apply to this offence.
Drink driving offences, as
with many road safety provisions, are usually interpreted by the courts in
non-criminal code jurisdictions as being offences to which either absolute or
strict liability applies: see for example the discussion in Welsh v
Donnelly [1983] 2 V.R. 173 at 177, which includes a discussion of the
principle in Proudman v Dayman [1941] HCA 28; and specifically in
relation to drink driving related offences: Skase v Holmes
(unreported, Supreme Court of Victoria, 11 October 1995) and Haussman
v Shute [2006] ACTSC 54, where offences of this nature were held to be
either absolute or strict liability offences. A similar approach has been
taken to the interpretation of driving under the influence laws in the United
States: see for example Leocal v Ashcroft, Attorney-General and
others (03-583) 543 U.S. 1 (2004), where it was held that driving
under the influence was an offence for which there is either no mens rea
or, possibly negligence as a mental element in that particular case.
In
re-enacting section 19, the intention is that the remade provision will continue
to operate in much the same way as the provision that it replaces, subject to
the new concept of ‘prescribed concentration’ mentioned
above.
Clause 41 New section 19B
This clause inserts a new
section 19B into the principal Act to create a defence for special drivers for
‘innocently’ consumed alcohol. A similar provision for novice
drivers exists under section 11A of the NSW Road Transport (Safety and
Traffic Management) Act 1999. The defence in new section 19B applies if a
special driver is charged with an offence against remade section 19 and
driver’s alcohol concentration is not more than 0.02 g in the relevant
amount of breath or blood. It is a defence if the special driver proves that
the concentration of alcohol in the person’s blood or breath was caused
by—
(a) the consumption of an alcoholic beverage that formed part of a
religious observance; or
(b) the consumption or use of a substance that was
not, entirely or partly, consumed or used for its alcohol content.
The
new section includes as an example of a substance for paragraph (b) food or
medicine that includes alcohol. The defendant has the burden of proof because
the defence arises from matters peculiarly in the defendant’s knowledge.
The note explains that under section 59, the defendant bears a legal burden in
relation to this matter. This means that the defendant is required to adduce
evidence to establish this matter on the balance of probabilities, under section
60 of the Criminal Code 2002. The defendant is better placed than the
prosecution to know and obtain evidence about items that he or she had consumed
prior to driving and the purpose for which the substance was consumed.
Clause 42 Driving with prescribed drug in oral fluid or
blood
New sections 20 (1A) and (1B)
This clause inserts
two new subsections into section 20, which is the primary drug driving offence
provision.
New section 20 (1A) explains that strict liability applies to
this offence. This amendments brings the offence in section 20 into line with
the offence in section 19 and ensures it will operate as it was intended to do
so. Although section 20 was inserted in June 2010, it was closely modelled on
section 19 of the current Act - a pre-Criminal Code provision - and
inadvertently failed to provide for the application of strict liability to this
offence.
New section 20 (1B) is an evidentiary provision, similar in
purpose to section 19 (4). It provides that a person is taken to have a
prescribed drug in his or her oral fluid (new paragraph 20 (1B) (a)) or blood
(new paragraph 20 (1B) (b)) if an analysis conducted under section 13 G (for
oral fluid) or section 15A (for blood) confirms the presence of the prescribed
drug. This amendment ensures that the evidence that the Court has available
when hearing a charge under section 20 are the results of an analysis from a
NATA accredited laboratory.
Clause 43 Defence if person did not
intend to drive motor vehicle
Section 21 (b)
This clause
makes a consequential amendment to section 21 (b), to reflect the changed way in
which the offence of section 19 is expressed to accommodate the new concept of
‘prescribed concentration’ in new section 4C, inserted by clause
8.
Clause 44 Section 21 (as amended)
This clause provides
for section 21 to be relocated as section 19A after it is amended, so that it
comes after section 19 (the offence provision to which it relates) in the
principal Act.
Clause 45 Section 22A
This
clause makes two amendments to the offence provision in section 22A, which deals
with refusing or failing to provide an oral fluid sample. The first amendment
is new section 22A (3) which explains that this is a strict liability offence.
It should be noted that the equivalent offence under section 22 of the principal
Act of failing to provide a breath sample, which is a pre-Criminal Code
provision, has been held to be an absolute or strict liability offence:
Haussman v Shute [2006] ACTSC 54. The second amendment is to
include in new section 22A (4) a specific defence that the person is medically
unable to provide oral fluid sample. Section 18D (3) of NSW Road Transport
(Safety and Traffic Management) Act 1999 is a similar defence provision.
Clause 46 New section 22B
This clause inserts new section
22B, which makes it an offence to fail to stay for a drug screening test when
directed by a police officer. This offence is linked to the requirement in new
sections 13A (2), 13B (2) and 13C (2) to remain in the place where the screening
test is being carried out. This offence is a strict liability offence, like
other similar offences in recent ACT legislation with a road safety focus that
involve failing to follow a direction given by a police officer or authorised
person. For examples of other recent strict liability offences that involve a
failure to follow a direction, see for example sections 42, 46 and 48 of the
Dangerous Goods (Road Transport Act 2009 and section 128 of the Road
Transport (Mass, Dimensions and Loading) Act 2009.
Clause 47 Fines
and imprisonment - section 19 offences
Section 26
This is
a consequential amendment, related to the amendments in clause 8 to new section
4D, to insert the words ‘or breath’ in section 26.
Clause
48 Table 26, column 2 heading
This is a consequential amendment,
related to the amendments in clause 8 to new section 4E, to insert the words
‘column 2 alcohol concentration level’ in the table in section
26.
Clause 49 Sections 29 and 30
This clause omits these
sections of the principal Act. Section 29 provides that the court may, instead
of ordering a convicted person to pay fine or sentencing the person to
imprisonment, make a rehabilitation program order. This option is available to
the court under the Crimes (Sentencing) Act 2005. Section 30 gives the
court a power to reduce the amount of a financial penalty to be paid by a
convicted person if the person complies with a good behaviour order. However,
the section’s operation is contingent on section 29 as it stood before it
was amended by the Sentencing Legislation Amendment Act 2006. The
section no longer deals with financial penalties and the remission of financial
penalties is a function of the Executive under the Crimes (Sentence
Administration) Act 2005. As such, these provisions are no longer
required.
Clause 50 Automatic driver licence disqualification -first
offenders, s 19
Section 32
This is a consequential
amendment, related to the amendments in clause 8 to new section 4D, to insert
the words ‘or breath’ in section 32.
Clause 51 Table 32,
column 2 heading
This is a consequential amendment, related to the
amendments in clause 8 to new section 4E, to insert the words ‘column 2
alcohol concentration level’ in the table in section 32.
Clause
52 Automatic driver licence disqualification - repeat offenders, s
19
Section 33
This is a consequential amendment, related
to the amendments in clause 8 to new section 4D, to insert the words ‘or
breath’ in section 33.
Clause 53 Table 33, column 2
heading
This is a consequential amendment, related to the amendments
in clause 8 to new section 4E, to insert the words ‘column 2 alcohol
concentration level’ in the table in section 33.
Clause 54 New
section 35
This clause inserts new section 35 into the principal Act.
This section provides that the period for which the person is disqualified from
holding or obtaining a driver licence under the Act, including any minimum
disqualification period, must be reduced by the period that the person’s
driver licence was suspended under new section 61A of the Road Transport
(General) Act 1999. That section (which is inserted by clause 131 of this
Bill) provides for the immediate suspension of a person’s driver licence
for certain drink driving offences. The purpose of new section 35 is to ensure
that person is not, in effect, punished twice by being excluded from driving for
a double period of time for a drink driving offence.
It should be noted
that the disqualification period is not reduced if, on hearing the charge for
the immediate suspension offence, a court is satisfied that the person did not
in fact comply with the immediate suspension notice (for example, if the court
is presented with evidence that the person nevertheless continued to drive while
the notice was in force).
Clause 55 Additional powers of
court
This clause omits section 38. That section provides that the
powers of a court in relation to penalties are in addition to any other powers
of the court. The section is unnecessary because section 9 (1) of the Crimes
(Sentencing) Act 2005 now provides that the penalty a court may impose for
an offence is the penalty provided under that Act or any other territory
law.
Clause 56 Section 41 heading
This clause inserts a new
heading to establish division 7.1 in part 7 of the principal Act before existing
section 41, and amends the heading to section 41 itself.
Division 7.1 will
deal with evidence about alcohol-related tests. There will also be a division
to deal with evidence about drug-related tests, and a division to deal with
other provisions about evidence.
Clause 57 Section 41 (1) (a)
(i)
This amendment is consequential on the amendment to establish a
register of authorised operators under new section 5. It replaces the term
‘approved operator’ with ‘authorised
operator’.
Clause 58 Section 41 (1) (a) (ii)
This
amendment is consequential on the definition of ‘breath analysis
instrument’ in new section 7A, inserted by clause 9.
Clause
59 Section 41 (1) (a) (iv) and (ix)
This amendment is consequential
on the definition of ‘breath analysis instrument’ in new section 7A,
inserted by clause 9.
Clause 60 Section 41 (1) (aa)
This
clause omits paragraphs that are no longer required in section 41, as the
provisions for evidentiary certificates relating to drug-related tests will be
relocated to new division 7.2 of the principal Act.
Clause
61 Section 41 (1) (b) (i)
This amendment is consequential on the
amendment to establish a register of authorised operators under new section 5.
It replaces the term ‘approved operator’ with ‘authorised
operator’.
Clause 62 Section 41 (1) (b) (ii)
This
amendment is consequential on the definition of ‘breath analysis
instrument’ in new section 7A, inserted by clause 9.
Clause
63 Section 41 (1) (b) (iv)
This amendment is consequential on the
definition of ‘breath analysis instrument’ in new section 7A,
inserted by clause 9.
Clause 64 Section 41 (1) (b)
(vi)
This is a technical drafting amendment to omit what appears to
be a superfluous word.
Clause 65 Section 41 (ba)
This
clause omits paragraphs that are no longer required in section 41, as the
provisions for evidentiary certificates relating to drug-related tests will be
relocated to new division 7.2 of the principal Act.
Clause 66 Section
41 (1) (c) and (d)
This clause makes consequential amendments to the
evidentiary certificate provisions in section 41 (1) (c) that deal with written
statements that are printouts from a breath analysis instrument, to update
references to these instruments.
New section 41 (1) (d) provides for
evidentiary certificates by a doctor or nurse who takes a blood sample or body
sample from a person under the Act. The amendments ensure that the evidentiary
certificates cover the revised processes under amended part 2 of the principal
Act for taking blood, placing it into a container, labelling the container as
required, sealing the container with a tamper-evident seal marked with a unique
identifying number and placing the container in a one-way box.
Clause
67 Section 41 (1) (e)
This clause makes consequential amendments to
section 41 (1) (e), to remove references to drug-related tests, as they will be
dealt with in new division 7.2.
Clause 68 Section 41 (1)
(f)
This clause omits this provision, as its content has essentially
been subsumed into new section 41 (1) (d).
Clause 69 Section 41 (1)
(h)
This clause makes consequential amendments to the evidentiary
certificate provisions in section 41 (1) (h), which provides for evidentiary
certificates by analysts. The amendments ensure that the evidentiary
certificates detail certain matters. These matters include that the person
signing the certificate was an analyst, that the person analysed the sample at
an approved laboratory, that the sample was labelled and sealed as required with
a tamper-evident seal marked with a unique identifying number, that the seal did
not appear to have been interfered with, the analysis that was undertaken, the
results that were obtained and that the analysis was accurate.
Clause 70 New division 7.2
This clause inserts new
division 7.2 before section 41A. The provisions in this division largely mirror
the provisions in division 7.1, with necessary modifications to accommodate the
procedural differences between alcohol and drug testing under part 2 of the
principal Act.
New section 41AA deals with evidentiary certificates for
drug related tests. This provision is based on paragraph 41 (1) (aa) and (ba)
of the principal Act, as amended by this Bill. It provides for evidentiary
certificates by an authorised police officer in relation to a sample given under
new section 13E of the principal Act, and also in relation to proposed samples
in circumstances where a person was required to give the sample under that
section but did not do so.
New section 41AA (3) provides that a written
statement that is a print-out from an oral fluid analysis instrument is evidence
of that matters that it states.
New section 41AA (4) makes provision for
certificates by doctors and nurses about their opinion as to whether it is
detrimental for a person to comply with a requirement to undergo a screening
test or a breath or oral fluid analysis; this provision is relevant for the
purposes of the restrictions on screening and analyses in section 14 (3) of the
principal Act, and are also relevant in relation to a defence to a charge under
sections 22 or 22A of the principal Act, which deal with refusing to provide a
breath sample or oral fluid sample, respectively.
New section 41AB
provides for evidentiary certificates relating to analysis of oral fluid samples
by analysts. The Road Transport (Alcohol and Drugs) (Random Drug Testing)
Amendment Act 2010 inadvertently omitted a provision for evidentiary
certificates by analysts although it did provide for laboratory analysis of oral
fluid samples. This provision details the matters that may be included in an
evidentiary certificate by an analyst for the analysis of an oral fluid sample.
These matters include that the person signing the certificate was an analyst,
that the person analysed the sample at an approved laboratory, that the sample
was labelled and sealed as required with a tamper-evident seal marked with a
unique identifying number, that the seal did not appear to have been interfered
with, the analysis that was undertaken, the results that were obtained and that
the analysis was accurate.
New section 41AC provides for evidentiary
certificates by a doctor or nurse where a blood sample is not taken from a
person in hospital or in police custody, either because the proposed sample
taker was of the opinion that taking the sample would be detrimental to the
health of the person to be tested, or because he or she believed a sample had
already been taken. Although not expressly stated in section 41AC as a reason
for not taking a sample, if the accident referred to in section 41AC (d) (ii)
happened more than 6 hours before the police officer’s request, then there
is no obligation on the sample taker to collect a sample of the person’s
blood for testing.
New section 41AD provides for evidentiary
certificates in relation to blood samples or body samples that are analysed for
drugs. The matters to be included in a certificate are that the person signing
the certificate was an analyst, that the person analysed the sample at an
approved laboratory, that the sample was labelled and sealed as required with a
tamper-evident seal marked with a unique identifying number, that the seal did
not appear to have been interfered with, the analysis that was undertaken, the
results that were obtained and that the analysis was accurate.
New
section 41AE makes provision for recognising NSW evidentiary certificates for
drug-related tests. Section 41 (1) (g) of the principal Act makes provision for
NSW evidentiary certificates in relation to alcohol-related tests. These
provisions are useful as they enable the ACT and NSW police forces to conduct
road safety operations with a regional focus.
Clause 71 Section
41A
This clause replaces existing section 41A, and inserts before new
section 41A a new division heading for division 7.3 ‘Other provisions
about evidence’.
Like its predecessor, on which it is based,
new section 41A deals with evidence for insurance purposes - or rather, it
explains when evidence about an alcohol or drug test conducted under part 2 is
not admissible in a proceeding in relation to an insurance contract. A similar
provision, dealing with the exclusion of evidence of alcohol and drugs tests in
insurance proceedings, is found in section 37 of the NSW Road Transport
(Safety and Traffic Management) Act 1999. The Road Transport (Alcohol
and Drugs) (Random Drug Testing) Amendment Act 2010 inadvertently omitted to
include provisions addressing oral fluid tests for prescribed drugs in the
provisions for evidence in insurance proceedings. The opportunity has been
taken to update the drafting of this provision and to remove obsolete references
to repealed provisions of the Crimes Act 1900.
Clause 72 Effect of
non-compliance - analysis of breath or blood
This clause is a
technical amendment to section 42 to create a tagged-term definition for
‘a testing provision’ .
Clause 73 Section
42 (2)
This clause consequentially redrafts section 42 (2) to reflect
the revised concept of ‘prescribed concentration’ in new section 4E
and to simplify the drafting of the provision. It does not alter the intention
or policy behind the existing provision. Section 42 explains that where there
has been a technical failure to comply with a requirement of the legislation
relating to a test, a charge cannot proceed unless the court is satisfied that
if there had been compliance with the requirements, the results would have been
the prescribed concentration for the person. It allows the court to overlook
minor procedural irregularities in the testing process, but only where the court
is satisfied that the results would have shown that the person had the
prescribed concentration.
Clause 74 Section 42 Effect of
non-compliance - analysis of oral fluid
Section 42AA
This
clause is a technical amendment to section 42AA to create a tagged-term
definition for ‘a testing provision’ .
Clause 75 Section 42AA (2)
This clause consequentially
redrafts section 42AA (2) to simplify the drafting of the provision to align
with new section 42 (2), as amended by clause 73. It does not alter the
intention or policy behind the existing provision.
Clause 76 Effect
of non-compliance - analysis of body sample
Section 42A
(1)
This clause is a technical amendment to section 42A to create a
tagged-term definition for ‘a testing provision’
.
Clause 77 Section 42A (2)
This is a drafting amendment
that replaces a longer phrase with the tagged-term ‘the testing
provision’ to improve the drafting of the provision.
Clause
78 Effect of non-compliance - refusal to give sample of
breath
Section 42B (1)
This clause is a technical
amendment to section 42B to create a tagged-term definition for ‘a
testing provision’.
Clause 79 Section 42B
(2)
As with the amendment in clause 73, this clause consequentially
redrafts section 42B (2) to reflect the revised concept of ‘prescribed
concentration’ in new section 4E and to simplify the drafting of the
provision. It does not alter the intention or policy behind the existing
provision.
Clause 80 Effect of non-compliance - refusal to give
sample of oral fluid
Section 42C (1)
This clause is a
technical amendment to section 42C to create a tagged-term definition for
‘a testing provision’.
Clause 81 Section
42C (2)
As with the amendment in clause 73, this clause
consequentially redrafts
section 42C (2) to simplify the drafting of
the provision. It does not alter the intention or policy behind the existing
provision.
Clause 82 Section 43 heading
This clause
amends the heading to section 43 to say ‘Oral evidence about part 7
certificate.’ This amendment is consequential on the inclusion of new
provisions dealing with evidentiary certificates in part 7 of the principal
Act.
Clause 83 Section 43 (2)
This clause replaces section
43 (2). New section 43 (2) (a) deals with witnesses in relation to certificates
about alcohol tests, while new section 43 (2) (b) deals with witnesses in
relation to drug-related tests. A longer period of time is provided for calling
witnesses in relation to drug-related tests than for alcohol-related tests
because there is a much smaller pool of qualified witnesses in Australia who are
able to give evidence in relation to these certificates and it can be difficult
to schedule their time.
Clause 84 Section 43 (3)
This
clause makes a consequential amendment to replace a reference to section 41 with
a reference to new divisions 7.1 and 7.2.
Clause 85 Rehabilitation
programs
This clause omits part 8, which will be replaced with a new
scheme for alcohol education programs under the Road Transport (Driver
Licensing) Regulation 2000: see parts 3 and 4 of this
Bill.
Clause 86 Power of arrest
Section
45
This clause makes a consequential amendment to section 45 to
replace the term ‘approved screening device’ with ‘screening
device’.
Clause 87 New section 45 (2)
This clause is
a consequential amendment to explain to that for section 45 (1),
‘screening device’ includes an alcohol screening device or a drug
screening device.
Clause 88 Penalty for escaping from
custody
This clause repeals section 46, which creates an
offence of escaping from the custody of a police officer if the person has been
taken into custody under certain provisions of the Act. Instead, section 160 of
the Crimes Act 1900 has an offence of escape from lawful arrest and other
forms of custody that has a higher and more relevant penalty.
Clause
89 Section 47A
This clause makes a technical amendment to insert the
word ‘drug’ before ‘screening’, to make it clear that
the limitation in this section only applies in relation to drug screening tests.
This amendment is consistent with the intention of this section, which was
introduced during the Assembly debate on the Road Transport (Alcohol and
Drugs) (Random Drug Testing) Amendment Act 2010.
Clause 90 New
sections 47B and 47C
This clause inserts new section 47B and section
47C into the principal Act.
New section 47B provides that if police
officer has reasonable cause to suspect that a person’s ability to drive
safely may be affected by a prescribed drug (for example, because the person has
failed a drug screening test or because of the person’s driving or
behaviour), the police officer may give the person a written direction not to
drive for a period of up to 12 hours. A breach of a written direction is a
strict liability offence.
The purpose of the provision is to give
drug-affected drivers sufficient time to recover from the effects of prescribed
drugs before they drive again. It has been developed as an alternative to
arrest, licence suspension or vehicle confiscation powers. The power provides
for a short-term direction not to drive while the person is impaired by a drug,
in a way that does not affect the person’s freedom, property rights or
driver licence status. This power is not considered necessary in relation to
drink driving offences in light of the new provisions for immediate licence
suspension notices for higher range offences. Lower range offenders often cease
to be within the prescribed concentration fairly soon after the 2 hour period.
By contrast, some drugs continue to impair driving skills for several hours
after peak plasma concentration has been
reached[6]
, or may even have a greater impairing effect as they are being withdrawn
rather than when they are at peak concentration.
The chief police
officer can review the direction at the request of the person, and may revoke
the direction if the chief police office is satisfied that the person is no
longer impaired. In practice, it is expected that the chief police office would
delegate this review power to relevant senior staff in traffic operations, so
that the internal review function operates as a quick, cheap and accessible
means of reviewing decisions. It is a way in which the provision seeks to
respect human rights while promoting road safety. Given the short
maximum duration of a direction (12 hours) external review is not
considered practicable.
Section 47B uses the formula ‘believes on
reasonable grounds’ test instead of ‘reasonable cause to suspect
test’, as other provisions in the Act already use the formula
‘reasonable cause to suspect’ as a basis for requiring persons to
undergo a drug screening test or an alcohol screening test. This has been done
on the basis that it may cause unnecessary complications if the power to direct
a person not to drive was based on a different test from the power to require
people to undergo screening tests et cetera.
Failing to comply with a
direction is a strict liability offence, with a maximum penalty of 10 penalty
units. As mentioned in the clause notes for the offence in new section 22B of
the principal Act, offences that involve a failure to follow a direction by a
police officer are often strict liability offences under ACT legislation,
especially where the failure involves a public safety risk (in this case, the
risk is to the safety of the driver and other road users resulting from
suspected drug impairment). In this case, it is believed the imposition of
strict liability is a proportionate limitation on the rights in section 21 and
22 of the Human Rights Act 2004, especially in light of the availability
of the internal review mechanism and the relatively low penalty.
New
section 47C makes it clear that random breath testing operations and random drug
testing operations can be carried out simultaneously. Police in other
jurisdictions often run joint operations targeting drink and drug driving.
Sometimes these operations are run in conjunction with heavy vehicle
inspections, driver licensing or roadworthiness checks.
Clause 91 New
part 21
This clause inserts new part 21 (Transitional) into the
principal Act. Part 21 contains transitional provisions that will expire after
a fixed period.
New section 105 explains the concept of
‘commencement day’ for part 21, which is when section 8 of the
amending Bill commences.
New sections 106 to 108 preserve existing
authorisations of breath analysis instrument operators, appointments of analysts
and approvals of laboratories for a transitional period of 6 months to ensure
that there is no hiatus in these matters and that there is sufficient time for
implementation arrangements to be put in place.
New section 109 (1)
enables the making of a regulation to deal with any transitional matter that
arises as a result of the enactment of the Bill. However, the scope of the
regulation must be confined to the same sphere of operation as the amended Act,
be strictly ancillary to the operation of the Act and not widen the Act’s
purpose.
New section 109 (2) enables the making of a regulation that
modifies the Act. A regulation under this section may only modify part 21 of
the Act, and only if the Executive is of the opinion that the part does not
adequately or appropriately deal with a transitional issue. A provision of this
kind is an important mechanism for achieving the proper objectives, managing the
effective operation, and eliminating transitional flaws in the application of
the Act in unforeseen circumstances by allowing for flexible and responsive (but
limited) modification by regulation.
New section 109 (3) gives a
regulation under section 109 (2) full effect according to its terms. A
provision of part 21 of the principal Act modified by regulation will operate in
the same way (in relation to another provision of the Act or any other territory
law) as if it were amended by an Act, and in accordance with established
principles of statutory interpretation. The section is not expressed, and does
not intend, to authorise the making of a regulation limiting future
enactments of the Legislative Assembly. Also, any modification by regulation of
part 21 of the Act has no ongoing effect after the expiry of part 21.
New
section 110 (1) provides that the part expires 2 years after the day it
commences.
New section 110 (2) provides that part 21 is a law to which
the Legislation Act, section 88 (Repeal does not end effect of transitional laws
etc) applies. This declaration ensures that the transitional effect of the part
continues despite its expiry.
Dictionary: clauses 92 to 109 amend
the dictionary as a consequence of the amendments to the principal Act made by
this Bill. The amendments are straightforward and are summarised
below:
Clause 92 Dictionary, new definitions of alcohol screening
device and alcohol screening test
This clause inserts
definitions of these terms into the dictionary.
Clause
93 Dictionary, new definition of analyst
This clause inserts a
definition of this new term into the dictionary.
Clause 94 Dictionary,
definitions of approved alcohol screening device, approved analysis
instrument, approved analyst, approved breath analysis
instrument, and approved drug screening device
This clause
omits these definitions from the dictionary as these terms are no longer used in
the principal Act.
Clause 95 Dictionary, definition of
approved laboratory
This clause substitutes a revised
definition of this term.
Clause 96 Dictionary, definitions of
approved operator and approved oral fluid
instrument
This clause omits these definitions from the
dictionary as these terms are no longer used in the principal
Act.
Clause 97 Dictionary, definition of authorised
operator
This clause inserts a definition of this new term into
the dictionary.
Clause 98 Dictionary, definition of breath
analysis
This clause substitutes a revised definition of this
term.
Clause 99 Dictionary, new definition of breath analysis
instrument
This clause inserts a definition of this new term into
the dictionary.
Clause 100 Dictionary, definition of
disqualifying offence
This clause makes a consequential
amendment to this definition to reflect the new short title of the offence in
section 19.
Clause 101 Dictionary, new definitions of drug
screening device and drug screening test
This clause
inserts definitions of these terms into the dictionary.
Clause
102 Dictionary, definition of first offender
This clause
substitutes a revised definition of this term.
Clause 103 Dictionary,
definition of level
This clause substitutes a revised
definition of this term.
Clause 104 Dictionary, definition of oral
fluid analysis
This clause makes a technical amendment to the
definition of this term.
Clause 105 Dictionary, new definition of
oral fluid analysis
This clause substitutes a revised
definition of this term.
Clause 106 Dictionary, definition of
prescribed concentration
This clause substitutes a revised
definition of this term.
Clause 107 Dictionary, definition of
prescribed drug
This clause substitutes a revised definition
of this term.
Clause 108 Dictionary, definition of repeat
offender
This clause amends the definition of this
term.
Clause 109 Dictionary, definition of screening
test
This clause omits the definition of this
term.
Clause 110 Legislative instruments repealed
This
clause formally repeals all legislative instruments made under section 6 of the
principal Act, which deals with approval of operators, analysts and
laboratories. The effect of those instruments is preserved during the
transitional period under new part 21, inserted by clause 91 of the
Bill.
Part 3 Road Transport (Driver Licensing) Act
1999
Clause 111 Driver licensing system
This clause
amends section 28 of the Road Transport (Driver Licensing) Act 1999 which
provides the regulation-making power for the driver licensing system. New
section 28 (2) (s) is inserted to provide for regulations to require a person
convicted or found guilty of a disqualifying offence to complete a course,
approved by the road transport authority, about the effects of alcohol,
including its effects on driving and health.
Part 4 Road
Transport (Driver Licensing) Regulation 2000
Clause 112 Driver
licence condition code
Table 10, item 8
This clause
inserts a new item in the table for special drivers to reflect the zero alcohol
concentration for special drivers. Where applicable, this code will appear as a
code on driver licences for special drivers.
Clause 113 Section 20
(6), note
This is a consequential amendment to omit a note that is no
longer required.
Clause 114 Section 21 (1), new definition of
driving supervisor
This amendment, which is
related to the amendments to impose a zero alcohol concentration for special
drivers under the Road Transport (Alcohol and Drugs) Act 1977, updates
the definition of driving supervisor in the regulation.
Clause
115 Section 21 (4)
This amendment is consequential on the amendment
in clause 114 and inserts a reference to the term ‘driving
supervisor’ in section 21 (4).
Clause 116 Section 21
(5)
Like clause 115, this clause the amendment in this clause is
consequential on the amendment in clause 114 and inserts a reference to the term
‘driving supervisor’ in section 21 (5).
Clause 117 Section
21 (6), note
This clause omits a note that is no longer
required.
Clause 118 Section 36A (3), note 3
This clause
omits a note that is no longer required.
Clause 119 Section 37A (3),
note 3
This clause omits a note that is no longer
required.
Clause 120 Eligibility to apply to Magistrates Court for
order authorising issue of restricted licence
Section 45 (2),
notes 1 and 2
This clause updates the notes to section 45 (2) of the
regulation about people who are not eligible to apply for, or be issued with, a
restricted licence. This amendment is consequent on the amendments to the
Road Transport (General) Act 1999 made by clauses 133 and 134 of the
Bill.
Clause 121 Section 49 (3), note
This clause omits a
note that is no longer required.
Clause 122 Section 49, new
note
This clause inserts a new note relating to the requirement to
undertake an alcohol awareness course. This amendment is consequential on the
amendments made by clause 126 of the Bill.
Clause 123 When
probationary licence must be issued
Section 52 (3), new
note
This clause inserts a new note relating to the requirement to
undertake an alcohol awareness course. As with clause 122, this amendment is
consequential on the amendments made by clause 126 of the Bill.
Clause
124
This clause omits a note that is no longer
required.
Clause 125
This clause omits a note that is no
longer required
Clause 126 New division 3.13
This clause
inserts new Division 3.13 (which consists of new sections 73A to 73I) into the
regulation. The effect of the provisions is that a person who is convicted or
found guilty of a disqualifying offence under the Road Transport (Alcohol and
Drugs) Act 1977 must complete a course approved by the road transport
authority before the person can be issued a restricted licence or a probationary
licence. The following are disqualifying offences under the Alcohol and Drugs
Act:
• having the prescribed blood alcohol concentration (section
19);
• refusing/failing to provide a breath sample (section
22);
• refusing/fail to provide a blood sample (section 23) ;
• driving under the influence of intoxicating liquor or a drug
(section 24)
• any other provisions that may be prescribed by the
regulations.
New sections 73C to 73F explain what happens if a person to
whom the new division applies does not undertake or complete an alcohol
awareness course. The provisions give effect to the policy objective that all
people who are found to have committed a drink driving offence must complete
such a course to obtain or retain a driver licence.
New section 73A makes
it clear that the requirement to attend an alcohol awareness course applies only
to people who commit a disqualifying offence on or after the day new section 28
(2) (s) of the Road Transport (Driver Licensing) Act 1999 commences.
That section provides the authority for making regulations to require drink
drivers to attend an approved course.
New section 73B defines terms for
the new division.
New section 73C (1) applies to a person who is found
guilty (but not convicted) of a disqualifying offence and who is not
disqualified from holding or obtaining a driver licence, and who has not
completed an alcohol awareness course in the 12-month period prior to the date
of the finding of guilt.
New section 73C (2) provides that the person
must complete an alcohol awareness course within 6 months after being found
guilty of the disqualifying offence.
New section 73C (3) provides that
if the person fails to complete the course and provide the road transport
authority with written evidence that the course has been completed, within the 6
month period, the authority must suspend the person’s driver licence.
New section 73C (4) provides that the road transport authority must end
the suspension if the person subsequently provides written evidence that they
have completed an alcohol awareness course.
New section 73D deals with
the situation where a person is convicted, or found guilty, of a disqualifying
offence, who is disqualified from holding or obtaining a driver licence, is not
eligible for a restricted licence and has not completed an alcohol awareness
course in the 12-month period prior to the date of the conviction or finding of
guilt. At the end of a period of disqualification, a person is able to be
issued a probationary driver licence (see section 52 of the regulation). New
section 73D (2) and (3) require the person to complete an alcohol awareness
course before the end of the period of disqualification and before the person is
issued with a probationary licence. However, new section 73D (4) provides
that the road transport authority must issue a probationary licence if the
person subsequently provides written evidence that they have completed an
alcohol awareness course after the end of the disqualification
period.
Section 73E deals with the situation where a person is convicted
or found guilty of a disqualifying offence, is disqualified from holding or
obtaining a driver licence, the Magistrates Court makes an order authorising the
issue of a restricted licence to the person and the person has not completed an
alcohol awareness course in the 12-month period prior to the date of the
conviction or finding of guilt. The section provides that the road transport
authority cannot issue a restricted licence to the person until the person has
completed and provided written evidence of the completion of an alcohol
awareness course.
Section 73F deals with the situation of a person to
whom section 73E applies but who is not issued a restricted licence and who does
not do an alcohol awareness course. The person may be issued with a
probationary licence only if the person completes an alcohol awareness
course.
In practice, when people are committing a drink driving offence
are caught by police they will be provided with information about the
requirement that all people convicted, or found guilty, of drink driving must
complete an alcohol awareness course. They will be encouraged to consider
completing an appropriate course before their court case is heard as this will
enable them to apply for a restricted or probationary licence in a timely way.
Ultimately, it will be up to the offender when they complete the course, but
they will not, unless exempted, be eligible to apply for a driver licence until
the course is completed.
New sections 73G and 73H enable the road
transport authority to exempt a person from the requirement to complete an
alcohol awareness course on application by the person. The road transport
authority can only grant such an exemption where it is satisfied that there are
exceptional circumstances to justify the exemption.
New section 73I
provides for the road transport authority to approve an alcohol awareness course
about the effects of alcohol, including its effects on driving and health. It
is anticipated that more than one type of course may be approved, in order to
cater for the needs of different types of drink driving offenders. For example,
it may be appropriate to have a different course content and structure for first
offenders and repeat offenders and for low range and high range offenders.
Corrections and health expertise will be utilised in determining course content
and provision.
Clause 128 New section 87 (1) (p)
This
clause amends section 87 (1) of the regulation, which deals with the
circumstances in which the road transport authority can cancel, suspend or vary
a driver licence. It includes as a new ground for taking this action that a
person has failed to complete an alcohol awareness course as required under new
section 73C.
Clause 128 Dictionary, new definitions
This
clause consequentially amends the dictionary to the regulation to insert new
definitions of ‘alcohol awareness course’ and
‘alcohol-related disqualifying
offence’.
PART 5 ROAD TRANSPORT (GENERAL)
ACT
Clause 129 New section 5A
This clause inserts new
section 5A, which is a standard provision that explains the application of the
Criminal Code, which applies to offences made (or remade) after the commencement
of the Criminal Code. The notes to this standard provision include references
to penalty units under the Legislation Act. Until the amendments made by this
Bill, all the offences in the Road Transport (General) Act 1999 pre-dated
the Criminal Code.
Clause 130 Sections 58 and 58A
This
clause substitutes new sections 58 and 58A for existing sections 58 and 58A of
the Act. These sections are related in part to the amendments for special
drivers and are about the production of driver licences and other information
relevant to identifying a driver or the person who is instructing or supervising
a learner driver.
Replacement section 58 has an updated section heading
to make it clear that it applies to drivers of vehicles and riders of animals
and to add a new requirement that a driver or rider can be required by a police
officer or authorised person to state the driver’s or rider’s date
of birth. The date of birth is important to assist in correctly identifying a
driver or rider, especially where police or road transport authority records
indicate there is more than one person with the same name and the recorded
addresses do not match the address stated by the person. As the Criminal Code
applies to replacement section 58, it is necessary to specify whether there are
specific fault elements that apply to the physical elements of the provision.
Section 58 (3) provides that an offence against section 58 is a strict liability
offence.
The application of strict liability to this offence is
consistent with the interpretation of the existing offence, especially as the
existing offence provided for a defence, which included a ‘reasonable
excuse’ component, with a legal onus of proof on the defendant consistent
with the approach for proving the defence outlined in He Kaw Teh v The
Queen [1985] HCA 43. That defence is replicated in the replacement
section.
The application of strict liability to replacement section 58
is consistent with the recently enacted offences in section 209 and 228 of the
Dangerous Goods (Road Transport) Act 2009 relating to a dangerous goods
driver licence, and sections 323 and 324 of the Road Transport (Mass,
Dimension and Loading) Act 2009 in relation to the power to request
information, including name and address, from persons involved with heavy
vehicles.
Replacement section 58A extends the coverage of the existing
provision to people instructing, supervising or assessing learners and to people
assessing the skills of heavy vehicle drivers and adds a new requirement that a
person to whom the section applies may be required to state the person’s
date of birth, for the reasons explained in relation to replacement section 58.
Like section 58, replacement section 58A is a strict liability offence with a
defence provision based on the original provision that includes a
‘reasonable excuse’ component. New section 58A (6) includes new
definitions of terms relating to driver assessors, instructors and
supervisors.
Clause 131 Division 4.2 heading
This clause
amends the Road Transport (General) Act 1999 to update the heading to
division 4.2 and to insert new sections 61A to 61F. The purpose of the new
provisions is to allow a police officer to issue an immediate licence suspension
notice to a person for drink driving offences in certain
circumstances.
New section 61A inserts definitions used in division 4.2.
Key concepts defined in this section include:
• automatic
disqualification provision - this concept is important for understanding
who is not eligible to apply for a restricted licence while subject to a period
of automatic driver licence disqualification).
• immediate
suspension notice and suspension notice - this is a notice
given to a driver by a police officer in relation to an immediate suspension
offence.
• immediate suspension offence and
suspension offence - in essence, this is an offence under section
19 of the Road Transport (Alcohol and Drug) Act 1977 where the person is
over the applicable limit by 0.05g of alcohol or more, or any of the offences in
sections 22 to 24 of the Act, or an offence prescribed for the definition of
disqualifying offence in the Road Transport (Alcohol and Drug)
Act 1977 or an offence against section 31 (3) of the Road Transport
(Driver Licensing) Act 1999 (which is about automatic disqualification for
repeat offenders for driving while not holding (and never having held) an
Australian driver licence) or section 32 (3) of that Act (which is about
automatic disqualification for an offence of driving or fraudulently applying
for a driver licence while disqualified, or after licence suspension,
cancellation or refusal).
New section 61B provides for the immediate
suspension of a driver’s licence where a police officer believes on
reasonable grounds that a person has committed an immediate suspension offence.
Subsection 61B (1) requires a police officer who believes on reasonable grounds
that a person has committed an immediate suspension offence to give the person
an immediate suspension notice for the offence.
The notice must contain
the details set out in subsection 61B (2), including among other matters
information about the effect of the suspension notice on the person’s
driver licence, the person’s right to drive a vehicle in the ACT, and
right of the person to apply to the Magistrates Court for a stay of the
suspension notice.
Subsection 61B (3) provides that a suspension notice
has effect when it is served on the person. In most cases, a person will be
given a suspension notice shortly after the person has undergone a breath
analysis to confirm that a person has exceeded the alcohol concentration for the
person by 0.05g or more.
Subsection 61B (4) sets out the consequences of
being served with a suspension notice. These consequences are that a
person’s driver licence is suspended; the person must surrender the
licence to a police officer at the time, or if that is not possible, do so as
soon as practicable; the person must not drive in the ACT; and the person cannot
apply for or be granted a restricted licence during the suspension
period.
Section 61B (5) explains that a suspension notice ceases to have
effect when any of the following things happen:
• the notice is stayed
by order of the Magistrate’s court;
• the proceeding for the
relevant suspension offence is withdrawn or discontinued;
• the
offence is dealt with by a court;
• 90 days have passed since the
suspension notice was issued, and the suspension notice has not otherwise ceased
to have effect under subsection (5). The effect is to limit an immediate
suspension notice to no more than 3 months’ duration.
It should be
noted that the power to issue a suspension notice is not discretionary: the
language in section 61B (1) directs a police office to issue the notice once the
officer has formed a reasonable belief as to the existence of certain
facts.
The power to issue a suspension notice is an administrative
sanction, in that it does not depend upon on judicial determination of guilt.
That determination is reserved for the hearing of the substantive charge, and
the determination of the sentence to be applied if the accused if found guilty.
Similar administrative powers of immediate licence suspension for intermediate
to high-range drink driving offenders are found in road safety legislation in
Victoria, New South Wales and South
Australia[7], while Queensland is
reviewing its immediate licence suspension provisions with a view to applying
them to offenders with a blood alcohol concentration of 0.1g or
more.[8] There are many other
provisions in the road transport legislation that also provide for a suspension
or cancellation of a driver licence or other right, permit, authority or
entitlement other than by order of a court, as an administrative sanction for
non-compliance with a condition of the road transport legislation. Examples of
these provisions include:
• demerit point suspensions under section 18
of the Road Transport (Driver Licensing) Act 1999;
• driver
licence or vehicle registration suspension for non-payment of infringement
notice penalties under section 44 of the Road Transport (General) Act
1999;
• suspension of a driver licence on medical grounds under
section 87 (1) (d) or (e) of the Road Transport (Driver Licensing) Regulation
2000.
Immediate licence suspension addresses a road safety risk by
removing a driver from the road immediately (rather than having the person
continue to drive until the matter is dealt with by the court) and delivers an
immediate consequence of drink-driving to the offender. It will also reduce any
incentive for the offender to delay having the matter dealt with by the court
and would, in fact, provide an incentive to have the matter dealt with at least
within the minimum disqualification period for the particular offence. It
should be noted that the any period of suspension under an immediate licence
suspension is ‘discounted’ from the term of disqualification imposed
after conviction - the effect is to bring forward the disqualification period
that must be served under section 26 of the Road Transport (Alcohol and
Drugs) Act 1977 if the person is convicted so that it is served in
advance.
The importance of an immediate sanction was highlighted in the
discussion paper on the Road Transport (Alcohol and Drugs) Act 1977
released in mid-2008 and which stated as follows:
‘The effectiveness
of immediate licence suspension is also supported by a recent study of drivers
in 46 US states, which has shown that immediate suspension of licence has a
strong deterrent effect on repeat offenders. In particular, drivers with BAC
[blood alcohol concentration] levels just above the prescribed limit who had had
their licences suspended were 5% less likely than those who had not to be
involved in a fatal accident. Conversely, drivers who did not have their
licence suspended were much more likely to be convicted of a further drink
driving offence.
The study concluded that:
“the effectiveness
of a deterrence policy appears to be more strongly affected by... the speed by
which punishment is applied after the offending
behaviour.”’[9].
New
section 61C provides that it is an offence to fail to surrender the
person’s driver licence when required to do so.
New section 61D
provides that the police must return surrendered driver licences to the road
transport authority as soon as practicable. This is a standard provision which
enables the road transport authority to keep the driver licence register up to
date.
New section 61E deals with applications to the Magistrates Court
for an order to stay the operation of a suspension notice. The stay order
mechanism has been included rather than mechanism for internal review by a
senior police officer because, given the statistically greater road safety risk
posed by higher range and repeat drink drivers, it is considered more
appropriate that a decision to return a driver licence to a person with a
previous poor road safety record is taken by a judicial officer following a
transparent judicial process than by a police officer following an internal
administrative review.
Section 61E is a ‘machinery’
provision that details the processes for making and filing applications, the
notification of parties, the role of the registrar and the filing of documents
by the police and the applicant.
New section 61F deals with deciding
applications for stay orders. Subsection 61F (1) provides that the Court may
hear and decide an application for a stay order, and can either confirm the
suspension notice, stay the operation of the suspension notice or make any other
order it considers appropriate. Subsection 61F (2) places limits on the
Court’s power to stay a suspension order. It provides that the Court must
not stay a suspension order unless it is satisfied that there are exceptional
circumstances exist to justify the stay order. Subsection 61F (3) sets out the
matters the Court must take into account when deciding if exceptional
circumstances exist. These matters include the risk to other road users, the
applicant’s need for a licence and any other matter the court considers
relevant.
Section 61F (4) makes it clear that a person cannot use a
stay-order hearing to determine his or her guilt or innocence for the immediate
suspension offence, or the imposition or level of a penalty for the offence. The
purpose of this limitation is to ensure that stay order hearings are not used to
undermine or bypass normal criminal justice processes.
Clause 132
Section 64
This clause remakes existing section 64 consequent on the
list of provisions in existing section 64 (2) being moved to the new definition
of ‘automatic disqualifying provision’ in new
section 61A.
Clause 133 Effect of
disqualification
Section 66 (6) and (7)
This clause
amends section 66 of the Act, which deals with the effects of a person being
disqualified from holding or obtaining a driver licence. Under existing
section 66 (6) the person is not eligible to apply for, or be issued with,
another driver licence, other than a restricted licence, during the period of
disqualification. Existing, section 66 (7) provides that a person is not
eligible to apply for, or be issued with, a restricted licence if section 67
applies to the person or if the person is disqualified from holding or obtaining
an Australian driver licence in another jurisdiction. Existing section 67 sets
out the limitations on the issue of a restricted licence for an automatic
disqualification provision mentioned in existing section 64 (2). However, that
section does not apply to a disqualification under section 32 of the Road
Transport (Alcohol and Drugs) Act 1977 (which relates to first
offenders under who exceed the prescribed alcohol concentration). As a result
of this exception in relation to section 32 of the Road Transport (Alcohol
and Drugs) Act 1977, a first offender for an offence against section
19 of that Act may obtain a restricted licence.
Section 66 (6) and (7)
and section 67 are restructured by the amendments in clause 133. New section 66
(6) and new section 66A are substituted for existing section 66 (6)
and (7). The new provisions are brought more closely into line with current
drafting practice. The note at the end of existing section 67 about other
provisions of the road transport legislation that limit the issue of restricted
licences is remade as note 2 to new section 66 (6).
The first
element of existing section 66 (7) is that a person is not eligible to apply
for, or be issued with, a restricted licence if existing section 67 applies.
This element is built into the beginning of new section 66 (6): ‘Subject
to any other provision of this division’. This change is made as a result
of the amendment in clause 4 to separate section 67 into a series of
provisions.
The second element of existing section 66 (7) is that a
person who is disqualified from holding or obtaining an Australian driver
licence in another jurisdiction is not eligible to apply for, or be issued with,
a restricted licence. This element is remade as new section
66A.
Clause 134 Section 67
This clause substitutes
new sections 67 to 67C for existing section 67.
New section 67 provides
that a repeat offender under an automatic disqualification provision (see new
section 61A inserted by clause 131) is not eligible to apply for, or be issued
with, a restricted licence. This reflects existing section 67 (3)
(b).
Existing section 67 does not apply to first offenders under the
Road Transport (Alcohol and Drugs) Act 1977who exceed the prescribed
alcohol concentration under that Act. This is because of the exclusion of
section 32 of the Road Transport (Alcohol and Drugs) Act 1977 from
the definition of ‘special disqualification provision’ in existing
section 67 (1). Under existing section 67 (3) (a) any other first offender
under an automatic disqualification provision is not eligible to apply for, or
be issued with, a restricted licence for the minimum disqualification period
applying for the offence.
New section 67A deals with first offenders
under an automatic disqualification provision.
As noted above, a first
offender who exceeds the prescribed concentration of alcohol applicable to the
person under the Road Transport (Alcohol and Drugs) Act 1977 may be
issued with a restricted licence because section 32 of the Road Transport
(Alcohol and Drugs) Act 1977 is excluded from the meaning of
‘special disqualification provision’ in existing section 67 (1) of
the Road Transport (General) Act 1999.
New sections 67A (2) and
(3) apply to such a person, but only where the person has exceeded the
prescribed concentration for that person by 0.05g or more. An example would be
a special driver with an alcohol concentration of 0.05g or more, or any other
driver with an alcohol concentration of 1.0g or more.
New section 67A
(4) and (5) provide that a first offender is not eligible to apply for, or be
issued with, a restricted licence until the end of the minimum period of
disqualification applying to the person under the automatic disqualification
provision, other than section 32 of the A&D Act, in relation to the offence
(whether or not the period is expressed to be such a minimum period). This
reflects existing section 67 (3) (b).
New section 67B provides
that a person who is disqualified from holding or obtaining a driver licence
until a court orders otherwise is not eligible to apply for, or be issued with,
a restricted licence. This reflects existing section 67 (4).
New section
67C provides that a person who is the holder of a restricted licence and who is
disqualified from holding or obtaining a driver licence because of being
convicted of found guilty of a offence against the law of any jurisdiction is
not eligible for a restricted licence for the remainder of the period for which
the person was originally disqualified. This reflects existing section 67
(5).
Clause 135 Dictionary, new definitions
This clause
inserts new definitions of the following terms into the
dictionary:
• automatic disqualification
provision;
• immediate suspension
notice;
• immediate suspension
offence;
• special driver;
• suspension
notice;
• suspension offence.
PART 6 ROAD
TRANSPORT (GENERAL) REGULATION 2000
Clause 136 Schedule 1, part
1.1
This clause omits this part of the item, which is no longer
requires as it refers to section 44 of the Road Transport (Alcohol and Drugs)
Act 1977. That section is omitted by clause 85 of the
Bill.
Clause 137 Schedule 1, part 1.4
This clause
consequentially amends the schedule to the regulation to provide for review by
the ACT Civil and Administrative Tribunal of a refusal by the road
transport authority under new section 73G (1) (b) of the Road Transport
(Driver Licensing) Regulation 2000 to give an exemption from the
requirement to complete an alcohol awareness course.
PART 7 ROAD
TRANSPORT (OFFENCES) REGULATION 2005
Clause 138 Schedule
1, part 1, new item 6A
This clause updates the table of offences in
Schedule 1. This particular part of the table sets out the ‘driving with
a prescribed drug in oral fluid or blood’ offences.
Clause
139 Schedule 1, part 1, new items 8A and 8B etc
This clause
updates the table of offences in Schedule 1. This particular part of the table
deals with the offences of refusing to provide a sample of oral fluid, failing
to provide a sample of oral fluid in accordance with the reasonable directions
of a police officer and failing to stay at the place a testing is being carried
out.
Clause 140 Schedule 1, part 1, items 10 to 12
This
clause updates the table of offences in Schedule 1. This particular part of the
table deals with the offences in section 23 of the Road Transport (Alcohol
and Drugs) Act 1977.
Clause 141 Schedule 1, part 1,3 item
15
This clause updates the table of offences in Schedule 1. This part
of the table deals with the offence in new section 47B of the Road Transport
(Alcohol and Drugs) Act 1977.
Clause 142 Schedule 1, part
1.6, items 11 and 12
This clause updates the table of offences
in Schedule 1. This part of the table deals with the offences involving driver
supervisors and is consequential on terminology changes involving driver
supervisors.
Clause 143 Schedule 1, part 1.7, items 6 to
8
This clause updates the table of offences in Schedule 1. This part
of the table deals with offences in sections 58 and 58A of the Road Transport
(General) Act 1999 that are remade by this Bill.
Clause
144 Schedule 1, part 1.7, new item 12A
This clause consequentially
amends the table to include the offence in new section 61B of the Road
Transport (General) Act 1999.
Clause 145 Schedule 1, part 1.7,
item 13
This clause consequentially amends the table to reflect the
amendments to section 66 that were made by clause 133 of the
Bill.
Schedule 1 Consequential Amendments
Part
1.1 Crimes Act 1900
Item 1.1 amends section 220 to update the
reference to section 19 of the Road Transport (Alcohol and Drugs) Act
1977 and to insert a reference to section 20, which is the new drug driving
offence. Section 220 of the Crimes Act 1900 deals with the power to
enter premises to arrest a person for a relevant offence, and the amendment
ensures that the definition of relevant offence is up to date.
Item
1.2 updates section 252F (3) (b) of the Crimes Act 1900. That
provision explains when a young person is not in the company of a police
officer in connection with the investigation of an offence, and ensures that
drug screening and oral fluid analysis are treated the same way that breath
analysis is treated under that provision.
Part 1.2 Road Transport
(Alcohol and Drugs) Regulation 2000
Item 1.3 amends the
section 4 of the regulation to substitute a new provision prescribing alcohol
screening devices. Devices that are prescribed include the Alcolizer LE and the
lion alcometer - noting that the latter item is intentionally prescribed, in
lower case, as that is the trade name for the product concerned. The
regulation prescribes as a breath analysis instrument the Dräger Alcotest
7110 MKV.
The regulation is also amended to update the provisions dealing
with breath analysis statements under section 12 (5) of the Road Transport
(Alcohol and Drug) Act 1977 and to make provision for oral fluid analysis
statements under section 13E (6) of that Act.
Item 1.4 amends the
heading to the schedule of the regulation, which deals with the content of
breath analysis statements.
Item 1.5 makes a consequential
amendment to replace a reference to ‘approved operator’ with
‘authorised operator’.
Part 1.3 Spent Convictions Act
2000
Item 1.6 amends section 14 (4) (c) in this Act to replace
the description of the offences in Part 3 of the Road Transport (Alcohol and
Drugs) Act 1977 to reflect the revised offence of having a prescribed
concentration of alcohol and the inclusion of offences relating to drug
driving.
Part 1.4 Workers Compensation Act 1951
Item
1.7 replaces section 82 (4) (a) with a revised paragraph that includes
references to a worker being under the influence of a ‘prescribed
drug’, as that term is used in the Road Transport (Alcohol and Drugs)
Act 1977.
Item 1.8 amends section 82 (5) to explain that
‘prescribed drug’ is defined in the dictionary to the Road
Transport (Alcohol and Drugs) Act
1977.
-----------------------------------------------------------------------------------------------------------------
[1] Paper presented to Australasian
Road Safety Research, Policing and Education Conference, August 2010, Canberra:
Peter Thompson and Mark Fairney: Driver drug testing - a South Australian
perspective.
[2] Paper presented
to Australasian Road Safety Research, Policing and Education Conference, August
2010, Canberra: Edward Odgen, C Morris, T Frederiksen, M Boorman, R King, CKK
Stough: The relationship between accident culpability and presence of drugs in
blood samples from people injured in motor vehicle
collisions.
[3] Road Deaths
Australia June 2010 ISSN 1449-1168, Department of Infrastructure, Transport,
Regional Development and Local Government. Random drug testing commenced on 1
December 2004 in Victoria, with the first roadside operations carried out on 13
December 2004. By 2009, all other Australian States except the ACT had some
form of random drug testing, although the Northern Territory’s program is
currently aimed primarily at heavy vehicle drivers.
[4] Leocal v Ashcroft,
Attorney-General and others (03-583) 543 U.S. 1 (2004), page 5,
citing State v Hubbard
etc.
[5] [1941] HCA 28, per Dixon
J.
[6] ‘Duration of Effects: Effects from smoking cannabis products are felt within minutes and reach their peak in 10-30 minutes. Typical marijuana smokers experience a high that lasts approximately 2 hours. Most behavioural and physiological effects return to baseline levels within 3-5 hours after drug use, although some investigators have demonstrated residual effects in specific behaviours up to 24 hours, such as complex divided attention tasks. Psychomotor impairment can persist after the perceived high has dissipated. In long term users, even after periods of abstinence, selective attention (ability to filter out irrelevant information) has been shown to be adversely affected with increasing duration of use, and speed of information processing has been shown to be impaired with increasing frequency of use. Dronabinol has an onset of 30-60 minutes, peak effects occur at 2-4 hours, and it can stimulate the appetite for up to 24 hours.’ Extract from Drugs and Human Performance Fact Sheet, National Highway Traffic Safety Administration, United States Government http://www.nhtsa.gov/people/injury/research/job185drugs/cannabis.htm
[7] Section 51 of the Road
Safety Act 1986 (Vic); section 205 of the Road Transport (General) Act
2005 (NSW) and section 47IAA of the Road Traffic Act 1961
(SA).
[8] Drink Driving in
Queensland: a discussion paper, Department of Transport and Main Roads,
Queensland, 2010, pages 45-46.
[9]
Wagenaar, A, and Maldonaldo-Molina, M, ‘Effects of Drivers’ License
Suspension Policies on Alcohol-related Crash Involvement: Long-Term Follow up in
46 States’, (2007), Alcohol: Clinical and Experimental Research,
Vol 31, No. 8, pp 1399 – 1406.