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Road Safety Amendment Bill 2014
Introduction Print
EXPLANATORY MEMORANDUM
General
The main purposes of the Bill are to--
· amend the Road Safety Act 1986 to create new offences of combined
drink-driving and drug-driving;
· amend the Accident Compensation Act 1985, the Transport
Accident Act 1986 and the Workplace Injury Rehabilitation and
Compensation Act 2013 to include the new combined drink and drug
driving offences as offences that, if a person is convicted or found
guilty, can affect income compensation payments and lump sum
impairment compensation;
· amend the Road Safety Act 1986 to expand the circumstances in
which a driver--
· will have his or her driver licence or learner permit cancelled,
or be disqualified from obtaining one, for a drink-driving
offence; and
· will be subject to a zero blood or breath alcohol requirement or
an alcohol interlock requirement when driving;
· amend the Road Safety Act 1986 to empower the Roads Corporation
(VicRoads)--
· to impose or remove alcohol interlock conditions on driver
licences or learner permits in certain circumstances; and
· to exempt certain persons from a requirement to have an
alcohol interlock condition imposed on their driver licence or
learner permit; and
· to require certain approved alcohol interlocks to be capable of
recording the identity of users; and
571445 1 BILL LA INTRODUCTION 27/5/2014
· to impose revised inspection, record-keeping and other
conditions on approved alcohol interlock suppliers; and
· to impose cost recovery fees on persons who have had an
approved alcohol interlock installed in a motor vehicle and
provide for its collection;
· amend the Road Safety Act 1986 to empower the Magistrates' Court
to determine whether a particular person is responsible for an attempt
to start a motor vehicle that failed because an approved alcohol
interlock installed in the vehicle detected more than a certain
concentration of alcohol;
· amend the Road Safety Act 1986 to expand the vehicle impoundment
scheme to cover certain first offences involving drink-driving and the
new combined drink and drug driving offences;
· amend the Road Safety Act 1986 to increase from one year to 3 years
the zero blood or breath alcohol requirement for motor cyclists who
already hold a licence to drive a car and expand the circumstances in
which motor cyclists must carry their driver licence;
· amend the Rail Management Act 1996 to provide for the
continuation beyond their expiry date of binding access arrangements
under that Act;
· amend the Transport (Compliance and Miscellaneous) Act 1983,
the Rail Safety (Local Operations) Act 2006, the Road Safety Act
1986, the Road Safety Amendment (Operator Onus) Act 2012 and
the Transport (Compliance and Miscellaneous) Amendment
(On-the-Spot Penalty Fares) Act 2013 for the purpose of making
statute law revision and minor technical amendments.
Clause Notes
PART 1--PRELIMINARY
Clause 1 sets out the main purposes of the Bill, which are set out above.
Clause 2 provides for the commencement of the Bill.
Subclause (1) provides that Part 1 and Division 4 of Part 5
(except section 61(1) and (2)) come into operation on the day
after the day on which the Bill receives the Royal Assent.
Subclause (2) provides that sections 33 and 34 and Division 2 of
Part 4 come into operation on 1 October 2014.
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Subclause (3) provides that Part 2, Division 1 of Part 4 and
Division 2 of Part 5 come into operation on 1 August 2015.
Part 2 deals with the new combined drink and drug driving
offences. Division 1 of Part 4 deals with vehicle impoundment,
immobilisation and forfeiture. This is to allow time for systems
to be put in place to effectively administer these new provisions.
Division 2 of Part 5 contains amendments to other Acts
consequential on the new combined drink and drug driving
offences.
Subclause (4) provides that section 61(1) and (2) come into
operation on the day on which section 3 of the Road Legislation
Amendment Act 2013 comes into operation. Section 3 of the
Road Legislation Amendment Act 2013 repeals sections 25
and 26AA of the Road Safety Act 1986 relating to the
imposition of demerit points. The reason why section 61 needs
to come into operation on the same day as those demerit point
related provisions are repealed is that section 61 substitutes
references to the new Part 4 of the Road Safety Act 1986 which
will replace those repealed provisions.
Subclauses (5) and (6) provide that the remaining provisions of
the Bill will come into operation on a day or days to be
proclaimed and, if not proclaimed earlier, will come into
operation on 1 October 2014.
Clause 3 provides that in the Bill the Road Safety Act 1986 is referred to
as the Principal Act.
PART 2--NEW COMBINED DRINK AND DRUG DRIVING
OFFENCES
Clause 4 inserts reference to the new combined drink and drug driving
offences into section 31E(2)(a) of the Road Safety Act 1986.
This ensures that a person who is convicted or found guilty of
these new offences will be required to obtain a licence eligibility
report. A licence eligibility report is a report about a person's
suitability for a licence eligibility order obtained from a person or
body approved by the Secretary to the Department of Health.
Clause 5 amends section 31H of the Road Safety Act 1986 to allow the
Magistrates' Court to hear evidence, during the hearing of an
application for a licence eligibility order, of the conduct of the
applicant with respect to both alcohol and drugs.
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Clause 6 amends section 48 of the Road Safety Act 1986 so that certain
interpretative provisions contained in that section apply to the
new combination drink and drug driving offences.
These interpretive provisions are--
· section 48(1)(a), which states that if a certain
concentration of alcohol is present in the blood or breath
of a person within 3 hours of the time of an alleged
offence it is to be presumed, unless the contrary is
proved, that no less than that concentration of alcohol
was present at the time the offence was allegedly
committed;
· section 48(1)(ac), which states that if a certain drug is
present in the blood or oral fluid of a person within
3 hours of the time of an alleged offence it is to be
presumed, unless the contrary is proved, that the drug
was present at the time the offence was allegedly
committed;
· section 48(1A), which states that if a certain
concentration of alcohol is found on analysis to be
present in the breath or blood of a person it is to be
presumed that the concentration of alcohol found to be
present was not due solely to the consumption of
alcohol after driving. This presumption can be rebutted
by the person charged proving the contrary by giving
sworn evidence which can be corroborated by another
person;
· section 48(1B), which states that if a drug is found on
analysis to be present in the blood or oral fluid of a
person it is to be presumed that the drug found to be
present was not due solely to the consumption or use of
that drug after driving. This presumption can be
rebutted by the person charged proving the contrary by
giving sworn evidence which can be corroborated by
another person.
Clause 7 amends section 49(1) of the Road Safety Act 1986 to insert the
new offences of combined drink and drug driving.
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Subclause (1) inserts new section 49(1)(bc) into the Road Safety
Act 1986. This establishes the new offence of driving or being in
charge of a motor vehicle while both--
· the prescribed concentration of alcohol or more than the
prescribed concentration of alcohol is present in the
person's blood or breath; and
· the prescribed concentration of drugs or more than the
prescribed concentration of drugs is present in the
person's blood or oral fluid.
Subclauses (2) and (3) insert new section 49(1)(j) into the Road
Safety Act 1986. This establishes the new offence of providing a
blood sample within 3 hours of driving or being in charge of a
motor vehicle which contains the prescribed concentration of
alcohol or more than the prescribed concentration of alcohol and
a prescribed illicit drug in any concentration.
The legal blood or breath alcohol concentration for fully licensed
drivers is 0·05 grams per 100 millilitres of blood. The legal
blood or breath alcohol concentration is zero for unlicensed
drivers (except where the licence has expired), probationary and
learner drivers, drivers subject to an alcohol interlock condition,
drivers of vehicles with a gross vehicle mass or gross
combination mass of more than 15 tonnes, bus drivers, taxi
drivers, driving instructors, novice motorcycle riders and people
whose licence or permit is less than 3 years old following
disqualification for a drink-driving or drug-driving offence
(or any longer period if the driver is subject to an interlock
condition).
The 'drug' component of the combined drink and drug driving
offences are the 3 prescribed illicit drugs listed in section 3(1) of
the Road Safety Act 1986. These 3 prescribed illicit drugs are
methylamphetamine (speed), 3, 4-Methylenedioxy-N-
Methylamphetamine (MDMA or ecstasy) and delta-9-
tetrahydrocannabinol (cannabis). The legal limit for illicit drugs
is zero. This means that any concentration of these illicit drugs
found in a person's test result could result in the person being
charged with an illicit drug offence.
Subclause (4) inserts new section 49(3AAB) into the Road
Safety Act 1986, which establishes the penalty for these new
offences. The fines and imprisonment penalties for the new
combined drink and drug driving offences are based on the blood
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or breath alcohol concentration levels detected. The fines and
imprisonment penalties for the new offence are as follows--
· maximum 30 penalty units for a first offence;
· maximum 90 penalty units or imprisonment for up to
6 months for a second offence where the blood or breath
alcohol concentration was less than 0·15;
· maximum 180 penalty units or imprisonment for up to
12 months for a second offence where the blood or
breath alcohol concentration was 0·15 or more;
· maximum 180 penalty units or imprisonment for up to
12 months for a third or subsequent offence where the
blood or breath alcohol concentration was less
than 0·15;
· maximum 270 penalty units or imprisonment for up to
18 months for a third or subsequent offence where the
blood or breath alcohol concentration was 0·15 or more.
Imprisonment as a sentencing option for the combined drink and
drug driving offences is to be the same as that which is available
for drink-driving offences. That is, there is no imprisonment
available for a first offence, however, there is up to 12 months
imprisonment available as a sentencing option for a second
offence and up to 18 months imprisonment for a third or
subsequent offence.
Subclauses (5) to (8) insert references to the new drink and drug
driving offence created by subclause (3) into the evidentiary
provisions in sections 49(5), 49(6), 49(6A) and 49(7)(c) of the
Road Safety Act 1986.
Section 49(5) will provide that it is a defence to a charge of
providing a blood sample within 3 hours of driving or being in
charge of a motor vehicle which contains the prescribed
concentration of alcohol or more than the prescribed
concentration of alcohol and a prescribed illicit drug in any
concentration for the person charged to prove that the result of
the analysis was not a correct result.
Section 49(6) will provide that in proceedings for this offence
evidence as to the effect of the consumption of alcohol on the
accused is admissible for the purpose of rebutting the
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presumption created by section 48(1A) (as amended by
clause 6(2) of this Bill), but is otherwise inadmissible.
Section 49(6A) will provide that in proceedings for this offence
evidence as to the effect of the consumption or use of a drug on
the accused is admissible for the purpose of rebutting the
presumption created by section 48(1B) (as amended by
clause 6(3) of this Bill), but is otherwise inadmissible.
Section 49(7)(c) will provide that on convicting or finding a
person guilty of this offence, the court must cause to be entered
in its records the concentration of alcohol found to be present in
the relevant blood sample.
Clause 8 amends section 50 of the Road Safety Act 1986 to insert a new
section 50(1AD). This ensures that the new combined drink and
drug driving offences have licence cancellation and
disqualification consequences. The length of time of the
disqualification period is set out in a new Schedule 1AB to the
Road Safety Act 1986, which is inserted by clause 14 of this
Bill.
Clause 9 amends section 50AA of the Road Safety Act 1986, which
provides when an offence can be counted as a prior conviction
for the purposes of certain provisions in that Act. The effect of
this provision is that in order for a combined drink and drug
driving offence to be counted as a subsequent offence for the
purpose of the driver licence cancellation and disqualification
periods provided for in clause 8 of this Bill any offence
committed more than 10 years prior to the relevant offence is to
be disregarded.
Clause 10 amends section 50A of the Road Safety Act 1986 to insert a new
section 50A(1B). This ensures that the new combined drink and
drug driving offences are offences that are capable of requiring a
person to attend a driver education program. The amendment
requires VicRoads not to issue a driver licence or learner permit
to a person who has lost his or her licence or permit as a result of
being convicted or found guilty of a combined drink and drug
driving offence, unless it is satisfied that the person has
completed an accredited driver education program.
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Clause 11 amends section 51 of the Road Safety Act 1986 to include the
new combined drink and drug driving offences as offences that
are capable of causing the immediate suspension of a driver
licence or permit in certain circumstances.
Clause 12 amends section 55(2) of the Road Safety Act 1986 to give
members of the police force the power to require a person, whom
the member reasonably believes to have committed the new
combined drink and drug driving offence inserted by clause 7(1)
of the Bill, to furnish a sample of breath for analysis by a breath
analysing instrument.
Clause 13 amends Schedule 1B to the Road Safety Act 1986, which sets
out in table form the alcohol interlock requirements for certain
offences contained in the Road Safety Act 1986.
The amendment inserts a new item 14B which contains the
minimum periods for which an alcohol interlock is required to be
installed into a vehicle being driven by a person who has been
re-licensed following a conviction or finding of guilt for the new
combined drink and drug driving offences.
That minimum period is 6 months in the case of a first offence,
12 months in the case of a second offence where the level of
alcohol concentration was less than 0·15 and 4 years in any other
case.
Clause 14 inserts a new Schedule 1AB into the Road Safety Act 1986 that
sets out the minimum licence disqualification periods for a
person who has been convicted or found guilty of the new
combined drink and drug driving offences.
PART 3--ALCOHOL INTERLOCKS
Clause 15 amends section 26 of the Road Safety Act 1986.
Subclause (1) inserts a new subsection (3A) which provides that
where the Magistrates' Court makes a decision on an appeal
under section 26 of the Road Safety Act 1986, it must cause
particulars of the decision to be sent immediately to VicRoads.
8
Subclause (2) inserts a new subsection (5) which provides that
there is no right to appeal to the Magistrates' Court against a
decision of VicRoads to impose an alcohol interlock condition on
a driver licence or learner permit issued under new section 31KA
of the Road Safety Act 1986. It also provides that there is no
right to appeal to the Magistrates' Court against a decision of
VicRoads under new section 50AAAB of the Road Safety Act
1986 to not remove an alcohol interlock condition imposed by it
on a driver licence or learner permit.
The limitations described in new section 26(5) are not intended to
limit other rights of appeal that may exist to superior courts.
Furthermore, internal review of the abovementioned decisions of
VicRoads will be available in accordance with the regulations
under the Road Safety Act 1986. This is foreshadowed in new
section 31KA(8)(c) (see clause 17) and new section
50AAAB(8)(d) (see clause 19).
Clause 16 amends section 31A of the Road Safety Act 1986 to provide that
drink-driving offenders who are eligible for the new
administrative process (established by new section 31KA and as
set out in clause 17) are not required to obtain a licence eligibility
order from the Magistrates' Court prior to making an application
to VicRoads for the grant of a driver licence or learner permit.
Clause 17 inserts new section 31KA into the Road Safety Act 1986.
This section establishes a new administrative process whereby
certain drink-driving offenders can, after a period of
disqualification, apply directly to VicRoads for the grant of a
driver licence or learner permit. Those offenders would
otherwise have been required to first obtain a licence eligibility
order from the Magistrates' Court prior to making the application
to VicRoads.
The offenders who are eligible for the new administrative process
are those that have been convicted or found guilty of a first
offence under section 49(1)(b), (f) or (g) of the Road Safety Act
1986 where the blood or breath alcohol concentration of the
person is less than 0·10. An offender will cease to be eligible to
make an application for the grant of a driver licence or learner
permit under new section 31KA if he or she commits another
offence that requires the person to apply to the Magistrates' Court
for a licence eligibility order before applying to VicRoads for the
driver licence or learner permit.
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Decisions by VicRoads to grant or not grant a driver licence or
learner permit will be based on assessing whether the applicant
satisfies the eligibility criteria specified in new section 31KA(2)
and whether the person is otherwise qualified to be granted a
driver licence or learner permit. The assessment will be based on
the application submitted by the applicant and any matters that
appear in records kept by VicRoads. VicRoads will not be
required to conduct any hearings nor will it be required to
undertake any investigations.
If VicRoads does grant a driver licence or learner permit under
new section 31KA, it must be subject to an alcohol interlock
condition. That condition must remain on the driver licence or
learner permit for a minimum period of 6 months. After
6 months have passed, and provided the person has satisfied the
necessary requirements as set out in new section 50AAAB, the
driver licence or learner permit holder will be permitted to apply
to VicRoads to have the alcohol interlock condition removed.
See clause 19 for further details.
Clause 18 expands the circumstances where a person who has committed an
offence under section 49(1)(b), (f) or (g) of the Road Safety Act
1986 will be subject to a driver licence or learner permit
cancellation and a disqualification from obtaining a driver licence
or learner permit. The key changes are set out below.
Firstly, all repeat offenders will incur mandatory cancellation and
disqualification sanctions. Under the current law, certain repeat
offenders with a blood or breath alcohol concentration below
0·07 can avoid these sanctions if they are found guilty but no
conviction is recorded.
For a first offence with a blood or breath alcohol concentration
below 0·05, a person who does not hold a full driver licence will
be subject to mandatory cancellation and disqualification
sanctions. Under the current law, these sanctions are only
imposed at the discretion of the court.
For a first offence with a blood or breath alcohol concentration
above 0·05 but below 0·07, an offender will be subject to
mandatory cancellation and disqualification sanctions unless the
following criteria are satisfied (in which case cancellation and
disqualification sanctions will be imposed at the discretion of the
court)--
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· offender holds a full driver licence; and
· offender was not under the age of 26 years; and
· offender was not subject to a zero blood or breath
alcohol concentration licence condition at the time of
the offence (see section 52 of the Road Safety Act 1986
as amended by clause 31), or was subject to a zero
blood or breath alcohol concentration licence condition
but only because the person was--
· driving or in charge of a "large vehicle" (that is, a
bus or a motor vehicle with a gross vehicle mass
or gross combination mass over 15 tonnes);
· driving or in charge of a taxi; or
· providing commercial driving instruction
services in accordance with the Act; or
· an inexperienced motor cycle rider (during the
first 3 years from the issue of a driver licence
which authorises the holder to drive a motor
cycle); and
· no conviction was recorded by the court.
The above treatment of first offences with a blood or breath
alcohol concentration in the range of 0·05 or above but below
0·07 means that--
· persons over 26 years of age who do not hold a full
driver licence will be subject to mandatory cancellation
and disqualification sanctions (noting that under the
current law, offenders in that class can avoid these
sanctions if a conviction is not recorded); and
· persons over 26 years of age who hold a full driver
licence and who are subject to a zero blood or breath
alcohol concentration licence condition for a previous
non-road safety offence under section 89A of the
Sentencing Act 1991 will be subject to mandatory
cancellation and disqualification sanctions for a
subsequent offence under section 49(1)(b), (g) or (g) of
the Road Safety Act 1986 (noting that under the current
law, offenders in that class can avoid these sanctions if a
conviction is not recorded).
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· Any person who is subject to a cancellation and
disqualification sanction for an offence under section
49(1)(b), (f) or (g) of the Road Safety Act 1986 will
also be required to be subject to an alcohol interlock
condition when the person applies to be issued with a
new driver licence or learner permit at the end of the
disqualification period.
For the proposed changes to the cancellation and disqualification
sanctions that are to apply in the event that a traffic infringement
notice is issued in respect of a drink-driving infringement, see
clause 32 which amends section 89C of the Road Safety Act
1986.
Clause 19 inserts new sections 50AAAB, 50AAAC and 50AAAD into the
Road Safety Act 1986.
New section 50AAAB establishes a new administrative process
for the removal of alcohol interlock conditions from driver
licences or learner permits where those conditions were imposed
by VicRoads under new section 31KA (see clause 17).
If a drink-driving offender is eligible for the new administrative
interlock removal process, this will mean that the offender will
not be required to obtain an alcohol interlock condition removal
order from the court prior to the removal of the condition.
A decision of VicRoads to remove or not remove an alcohol
interlock condition will be based on assessing whether the
applicant satisfies the eligibility criteria referred to in new section
50AAAB. The assessment will be based on the application
submitted by the applicant and any matters that appear in records
kept by VicRoads. VicRoads will not be required to conduct any
hearings nor will it be required to undertake any investigations.
New section 50AAAC provides a limited right to apply to the
Magistrates' Court for a direction as to whether a failed attempt
to start a vehicle due to detected alcohol should be attributed to
the offender or another person. This will allow offenders who
fail to comply with the prescribed alcohol interlock usage data
requirements on the basis of such a failed attempt to present
evidence to the court demonstrating that the failed attempt was
caused by another person. If a direction is given in the offender's
favour, VicRoads will be required to abide by the direction when
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determining whether the person has complied with the prescribed
alcohol interlock usage data requirements.
The alcohol interlock device used by the offender must be
capable of recording the identity of the vehicle operator,
otherwise the person will not be permitted to seek a direction
from the Magistrates' Court under new section 50AAAC.
New section 50AAAD provides a new process for a person who
is subject to an alcohol interlock condition to seek an exemption
from that condition on medical grounds. It is noted that in some
cases it is possible for a device to be adapted or modified to assist
a person suffering from a medical condition to use the device
successfully. So it is expected that an exemption would only be
granted if any possible modifications or adaptations to the
interlock device would not assist the user.
If a person is unable to successfully use an alcohol interlock
device due to a medical condition, it might be the case that the
person is actually medically unfit to drive a motor vehicle.
The provision therefore clarifies that VicRoads may require the
applicant to undergo a test under section 27 of the Road Safety
Act 1986 to determine whether he or she is fit to drive.
Clause 20 amends section 50AAB of the Road Safety Act 1986 which
specifies the process for applying to the court for an alcohol
interlock condition removal order.
New section 50AAB(1) provides that a person who is eligible to
have an alcohol interlock condition removed from his or her
driver licence by VicRoads under new section 50AAAB of the
Road Safety Act 1986 is not required to obtain an alcohol
interlock condition removal order.
New section 50AAB(5)(ab) provides that a person applying to
the court for an alcohol interlock condition removal order must
demonstrate that he or she has complied with the prescribed
alcohol interlock usage data requirements (which are further
described in clause 35).
New section 50AAB(6)(b)(ia) provides that the court, when
determining whether to make an alcohol interlock condition
removal order, must consider whether the applicant was
responsible for any attempt in the whole period since the
condition was imposed to start a motor vehicle that failed
because an alcohol interlock prevented the motor vehicle from
13
being started as a result of it detecting alcohol and, if so, the
number of such attempts. This consideration is separate from the
requirement under new section 50AAB(5)(ab) to comply with the
prescribed alcohol interlock usage data requirements.
Clause 21 amends section 50AACA(1) of the Road Safety Act 1986 to
provide that where an alcohol interlock condition removal order
is made, it will have effect with respect to all alcohol interlock
conditions imposed on the relevant offender, including those
imposed by VicRoads under new section 31KA (see clause 17).
Clause 22 amends section 50AAD of the Road Safety Act 1986 to provide
that if a person breaches an alcohol interlock condition by driving
a motor vehicle with a type of alcohol interlock that has ceased to
be approved before it was installed (because of a variation of the
approval under section 50AAH), that person has the benefit of a
reasonable belief defence. That is, the person may avoid the
charge if he or she proves that he or she reasonably believed the
alcohol interlock was an approved alcohol interlock at the time of
the alleged breach of the alcohol interlock condition.
A new section 50AAD(3A) is also inserted to clarify that where
the approval of an alcohol interlock has been limited to a
specified type of motor vehicle (see Clause clauses 23 and 26), if
the device is installed in a motor vehicle of a different type, then
the device cannot be said to be an approved alcohol interlock.
Usage of the alcohol interlock in those circumstances would
therefore result in a driver breaching his or her alcohol interlock
condition and this would constitute an offence under section
50AAD(1) of the Road Safety Act 1986.
Clause 23 amends section 50AAE of the Road Safety Act 1986.
Subclause (1) inserts a new subsection (2A) to clarify that
VicRoads is not required to consider an application for alcohol
interlock or alcohol interlock supplier approval if the application
is incomplete or otherwise defective.
Subclause (2) inserts a new subsection (3)(b)(iiia) to provide that
before VicRoads can approve a type of alcohol interlock, it must
be satisfied that the device is suitable to be approved, having
regard to its capacity to record the identity of a person starting or
attempting to start the motor vehicle, whether that identity
information is obtained by the use of a camera or other means.
The requirement for the device to collect identity information is
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not mandated where the device is to be installed in a motor cycle
or motor trike. That is because there could be practical
difficulties in mandating driver identification technology in
motor cycles and motor trikes, at least in the short term, because
of practical issues such as water proofing requirements. It is
envisaged that, in the long term, technological advances will
permit all alcohol interlock devices to include driver
identification technology.
Subclause (3) inserts new subsections (3A) and (3B) which
provide that an approval of a type of alcohol interlock may be
limited to a specified type of motor vehicle.
Clause 24 amends section 50AAF of the Road Safety Act 1986 in order to
specify revised inspection, record-keeping and other conditions
that may or must (as the case requires) be imposed on approved
alcohol interlock suppliers by VicRoads.
Clause 25 amends section 50AAG of the Road Safety Act 1986 to provide
that the guidelines that VicRoads may make under that section
may include guidelines in relation to the records that are to be
kept by alcohol interlock suppliers relating to the collection of
cost recovery fees and their payment to VicRoads. Cost recovery
fees are further dealt with in clause 29.
Clause 26 amends section 50AAH of the Road Safety Act 1986 to provide
that VicRoads can cancel the approval of a type of alcohol
interlock if it cannot be modified so as to render it capable of
recording, in a way that is satisfactory to VicRoads, the identity
of a person starting or attempting to start the motor vehicle,
whether by the use of a camera or other means.
Clause 26 also provides that VicRoads can vary the approval of a
type of alcohol interlock by providing that, on and from a
specified date, the approval of that device only has effect if the
alcohol interlock is modified, in a manner specified by VicRoads,
so as to render it capable of recording, in a way that is
satisfactory to VicRoads, the identity of a person starting or
attempting to start the motor vehicle, whether by the use of a
camera or other means. The requirement to modify the interlock
device may apply to all vehicles or certain classes of vehicles.
So for example, it could be determined by VicRoads that an
approved alcohol interlock can be used without modification in
certain motor vehicles (for example in motor cycles and motor
15
trikes) but must, when used in other types of vehicles, be
modified so as to render it capable of recording, in a way that is
satisfactory to VicRoads, the identity of a person starting or
attempting to start the motor vehicle, whether by the use of a
camera or other means.
Alternatively, VicRoads may vary the approval of a type of
alcohol interlock by providing that the device can continue to be
installed in specified classes of motor vehicles (for example only
in motor cycles and motor trikes). In this instance, the device
would not have to be modified so as to render it capable of
recording the identity of a person starting or attempting to start
the motor vehicle.
The reason VicRoads is to be given the above powers to vary the
approval of an alcohol interlock is primarily to permit VicRoads
to require driver identification technology to be mandated.
However, the Bill provides flexibility to deal with situations
where, at least in the short term, there may be practical
difficulties in mandating driver identification technology.
For example, the installation of such technology in motor cycles
and motor trikes may raise practical issues such as water proofing
problems. It is envisaged that, in the long term, technological
advances will permit all alcohol interlock devices to include
driver identification technology.
The recording of the identity of the person starting or attempting
to start the motor vehicle will be an important tool in determining
whether a particular offender has successfully separated drink
and driving behaviour. The identity information recorded by an
approved alcohol interlock will be important in determining
whether an alcohol interlock condition should be removed from
the driver licence or learner permit of a person and whether an
offender has complied with the prescribed alcohol interlock
usage data requirements. In relation to compliance with the
prescribed alcohol interlock usage data requirements see new
section 50AAB(5)(ab) (as inserted by clause 20), new section
50AAAB(3)(a) (as inserted by clause 19) and new item 57AA of
Schedule 2 (as inserted by clause 35). Also see new section
50AAAC (as inserted by clause 19) which provides a new
process whereby disputes relating to identity information
recorded by alcohol interlocks can be resolved by the
Magistrates' Court.
16
Clause 27 amends section 50AAI of the Road Safety Act 1986 to provide
that the approval of an alcohol interlock supplier can be cancelled
or suspended if a supplier fails to collect, or pay to VicRoads, a
cost recovery fee.
Clause 28 amends section 50AAJ of the Road Safety Act 1986 to provide
that a decision to vary the approval of a type of alcohol interlock
under section 50AAH (as amended by clause 26) is a decision
that is subject to review by the Victorian Civil and
Administrative Tribunal.
Clause 28 also clarifies that a decision of VicRoads under section
50AAE to refuse to consider an application that is incomplete or
otherwise does not comply with section 50AAE(2), is not a
reviewable decision for the purposes of section 50AAJ of the
Road Safety Act 1986.
Clause 29 inserts new section 50AAKA into the Road Safety Act 1986.
It provides that VicRoads must impose cost recovery fees on any
person who has had an approved alcohol interlock installed in a
motor vehicle because his or her driver licence or learner permit
is subject to an alcohol interlock condition. The purpose of the
cost recovery fees is to recoup the overall costs incurred by
VicRoads in managing and operating the alcohol interlock
scheme.
The cost recovery fees are payable irrespective of when the
alcohol interlock condition was imposed on the driver licence or
learner permit of the person, including whether it was imposed or
directed to be imposed before, on or after the commencement of
clause 29 of the Bill. Therefore the provision can be said to have
retrospective effect. The reason that this provision applies
retrospectively is because it is more equitable to recover the costs
of administering the alcohol interlock scheme from all scheme
participants rather than only new entrants.
The cost recovery fees paid to VicRoads under new section
50AAKA are to be paid into its general fund.
Clause 30 amends the Table in section 50AA of the Road Safety Act 1986
to provide that when determining whether a person who applies
to VicRoads for the grant of a driver licence or learner permit
under new section 31KA (see clause 17) is a first offender, any
offence that was committed more than 10 years prior to the
making of the application will be disregarded.
17
Clause 31 amends section 52(1B) of the Road Safety Act 1986 to provide
that all persons who are disqualified from obtaining a driver
licence or learner permit under section 50 or 89C of that Act or
section 89 of the Sentencing Act 1991 (or by force of
section 3AD of the Road Safety Act 1986 are taken to be so
disqualified) will be subject to a zero alcohol concentration
requirement for 3 years (or any longer period during which the
person is subject to an alcohol interlock condition). That is to be
the case whether the person is required to obtain a licence
eligibility report or is able to make an application under
section 31KA without having obtained a licence eligibility report.
Clause 32 amends section 89C of the Road Safety Act 1986 to provide that
a person who commits a drink-driving infringement who does not
hold a full driver licence will have his or her licence or permit
cancelled and, whether or not the person holds such a licence or
permit, he or she will be disqualified from obtaining a licence or
permit for 3 months if the blood or breath alcohol concentration
recorded was less than 0·05 and no notice of objection was given.
Clause 32 also provides that a person who holds a driver licence
or learner permit from another jurisdiction that is not equivalent
to a full driver licence will be disqualified from driving in
Victoria for the same period as if he or she held a Victorian
licence or permit that was not a full driver licence (see section
89C(3A) as amended by clause 32(2)).
It should be noted that section 3AD of the Road Safety Act 1986
provides that a person disqualified from driving a motor vehicle
in Victoria under section 89C(3A) of the Act is taken to be
disqualified from obtaining a Victorian driver licence or learner
permit for the period for which he or she is so disqualified from
driving.
Clause 33 amends Schedule 1A to the Road Safety Act 1986 to provide
that an assessment report is not required in the case of a first
serious motor vehicle offence as defined in section 87P of the
Sentencing Act 1991. That is because new item 16A of
Schedule 1B (see clause 34(d)) provides that a driver licence or
learner permit granted to such an offender must now be subject to
a mandatory alcohol interlock condition and an assessment report
will be required under section 50AAB(5) at the alcohol interlock
condition removal stage.
18
Clause 34 amends Schedule 1B to the Road Safety Act 1986 to provide
that if a person is disqualified under section 50 or 89C of the Act
for an offence under section 49(1)(b), (f) or (g) which was a first
offence with a recorded blood or breath alcohol concentration
under 0·15, that person must be subject to a mandatory alcohol
interlock condition for at least 6 months when the person is next
granted a driver licence or learner permit.
Clause 34 also provides that if a person is disqualified under
section 89 of the Sentencing Act 1991 for a first serious motor
vehicle offence (as defined in section 87P of the Sentencing Act
1991), that person must be subject to a mandatory alcohol
interlock condition for at least 6 months when the person is next
granted a driver licence or learner permit.
Clause 35 amends Schedule 2 to the Road Safety Act 1986 to provide
power for the Governor in Council to make regulations in
relation to the prescribed alcohol interlock usage data
requirements.
Clause 36 makes a number of minor amendments to sections 3, 19, 50AAJ,
50AA and 59(3) of the Road Safety Act 1986.
Subclause (1) inserts definitions of cost recovery fee, motor trike
and prescribed alcohol interlock usage data requirements into
section 3(1) of the Road Safety Act 1986.
Subclause (2) makes a minor amendment to section 19(7A) and
(8) of the Road Safety Act 1986 to ensure consistent use of
language within the penalty provisions.
Subclause (3) amends 50AAJ(2)(c) of the Road Safety Act 1986
to correct incorrect cross references to other provisions.
Subclause (4) amends the Table in section 50AA of the Road
Safety Act 1986 to clarify that when determining whether a
person referred to in section 50A(1A) is a first offender (and
therefore required to complete an accredited driver education
program), any offence that was committed more than 10 years
prior to the making of the application for the grant of a driver
licence or learner permit is to be disregarded.
Subclause (5) amends section 59(3) of the Road Safety Act 1986
to clarify that a reference to "driver licence" in that provision was
meant to be followed by a reference to "learner permit".
19
Clause 37 makes a number of consequential amendments to the Road
Safety Act 1986.
Subclause (1) amends the definition of approved alcohol
interlock in section 3(1) of the Road Safety Act 1986 to clarify
that if the approval of an alcohol interlock device is varied under
new section 50AAH(1A) of the Act (see clause 26), it is the
approval as varied that constitutes an approved alcohol interlock.
Subclause (2) amends paragraph (b) of the definition of drink-
driving infringement in section 3(1) of the Road Safety Act
1986 to revise the cross references in that paragraph so that
they refer to the relevant subsections of section 50 of the Act
(as amended by clauses 8 and 18).
Subclause (3) amends the definition of drug-driving
infringement in section 3(1) of the Road Safety Act 1986 to
revise the cross references in that definition so that they refer to
the relevant subsections of section 50 of the Act (as amended by
clauses 8 and 18).
Subclause (4) substitutes a new section 18(3)(b) of the Road
Safety Act 1986 to provide that the higher penalties that apply
under section 18(3) of the Act to offenders that drive unlicensed
are to apply whether the offender requires a licence eligibility
order or is exempt from this requirement because the person is
eligible to apply directly to VicRoads for the grant of a driver
licence or learner permit under new section 31KA (see
clause 17).
Subclause (5) inserts a new section 19(7AA) in the Road Safety
Act 1986 to provide that a person who holds a driver licence or
learner permit granted by VicRoads under new section 31KA
must have the licence or permit in his or her possession while
driving or in charge of a motor vehicle at any time while an
alcohol interlock condition applies to the licence or permit.
The maximum penalty applying to this new offence is 5 penalty
units.
Subclause (6) substitutes a new section 31I(2) in the Road Safety
Act 1986 to clarify that a licence eligibility order has effect with
respect to all relevant disqualifications, which includes a
disqualification following the ending of which an application
could have been made to VicRoads under section 31KA had the
person not been otherwise required to obtain a licence eligibility
order. New section 31KA(2)(e) specifies that a person that is
20
"otherwise required" to obtain a licence eligibility order is not
permitted to make an application under section 31KA for the
grant of a driver licence or learner permit.
Subclause (7) amends section 31L of the Road Safety Act 1986
to clarify that new section 31KA does not apply to an
accompanying driver offence. This is a drink-driving or drug-
driving offence which is committed by a person (other than a
commercial driving instructor) who is taken to be in charge of a
motor vehicle because he or she is sitting beside a person who
does not hold a driver licence, for the purpose of allowing that
person to lawfully drive.
Subclause (8) amends the Table in section 50AA of the Road
Safety Act 1986 to revise the cross references in that section to
the relevant subsections of section 50 of the Act (as amended by
clause 18).
Subclause (9) amends section 59(3) of the Road Safety Act 1986
to provide that a person who is granted a driver licence or learner
permit under new section 31KA will be required to carry his or
her licence or permit when driving or in charge of a motor
vehicle and the limited "reasonable excuse" defence in
section 59(3) will not be available to that person.
PART 4--MISCELLANEOUS AMENDMENTS TO THE
PRINCIPAL ACT
Division 1--Vehicle Impoundment, Immobilisation and Forfeiture
Clause 38 amends the definitions of tier 1 relevant offence and tier 2
relevant offence in section 84C(1) of the Road Safety Act 1986.
Subclause (1) removes paragraph (c) of the definition of tier 1
relevant offence. That paragraph related to second or subsequent
offences against section 49(1)(b), (f) or (g) of the Act in
circumstances where the concentration of alcohol present in the
blood or breath of the person was 0·10 or more.
This amendment is necessary because clause 38(3) of the Bill
amends the definition of tier 2 relevant offence to include all of
the offences covered by paragraph (c). Section 38(3) also
includes first offences against section 49(1)(b), (f) or (g) of the
Act (in circumstances where the concentration of alcohol present
21
in the blood or breath of the person was 0·10 or more) in the
definition of tier 2 relevant offence.
The effect of these amendments are as follows--
· Whereas a first offence against section 49(1)(b), (f) or
(g) (with a blood or breath concentration of 0·10 or
more) did not previously result in any impoundment or
immobilisation sanction, such an offence will now be
subject to possible immediate roadside impoundment by
Victoria Police for a period of up to 30 days.
· Whereas a first offence against section 49(1)(b), (f) or
(g) (with a blood or breath concentration of 0·10 or
more) did not previously count as an impoundment
offence and was not counted as a prior impoundment
offence under the vehicle impoundment scheme
(because paragraph (c) as referred to above is limited to
second or subsequent offences), such an offence will
now be regarded as a prior impoundment offence for the
purposes of sections 84S and 84T of the Act.
Any subsequent impoundment offence within the 6 year
look-back period (as specified in those sections) will
therefore be dealt with more harshly because the
offender will be treated as a repeat offender.
· A second or subsequent offence against section
49(1)(b), (f) or (g) (with a blood or breath concentration
of 0·10 or more) will be subject to the same
impoundment, immobilisation and forfeiture sanctions
that previously applied because under the vehicle
impoundment, immobilisation and forfeiture scheme, as
established under Part 6A of the Road Safety Act 1986,
a second or subsequent tier 2 relevant offence is subject
to the same impoundment, immobilisation and forfeiture
sanctions as a first or subsequent tier 1 relevant offence
respectively. A second tier 2 relevant offence will be
subject to possible immediate roadside impoundment by
Victoria Police for a period of up to 30 days as well as
possible further impoundment or immobilisation by the
court for up to 3 months in total. A third or subsequent
tier 2 relevant offence will be subject to possible
immediate roadside impoundment by Victoria Police for
a period of up to 30 days as well as possible forfeiture
of the vehicle or further impoundment or
22
immobilisation by the court for up to 3 months in total
(in lieu of forfeiture).
Subclause (2) inserts new paragraphs (da), (db) and (dc) into the
definition of tier 1 relevant offence.
Paragraph (da) provides that the new combined drink and drug
driving offences under section 49(1)(bc) or (j) of the Act, in
circumstances where the driver's blood or breath alcohol
concentration was less than 0·10 and it was the driver's second or
subsequent offence under section 49(1)(bc) or (j), will be tier 1
relevant offences.
Paragraph (db) provides that the new combined drink and drug
driving offences under section 49(1)(bc) or (j) of the Act, in
circumstances where the driver's blood or breath alcohol
concentration was less than 0·10, will be tier 1 relevant offences
if the offender has previously committed a drug-driving offence
under section 49(1)(bb), (h) or (i) of the Act. Paragraph (db)
applies whether the prior drug-driving offence was committed
before, on or after the commencement of Division 1 of Part 4 of
the Bill.
Paragraph (dc) provides that if a person commits a drug-driving
offence under section 49(1)(bb), (h) or (i) of the Act, this will be
a tier 1 relevant offence if the offender has previously committed
a combined drink and drug driving offence under section
49(1)(bc) or (j) of the Act and the driver's blood or breath alcohol
concentration was less than 0·10 in respect to that prior offence.
Together, paragraphs (da), (db) and (dc) ensure that offenders
with blood or breath alcohol concentration below 0·10 are subject
to impoundment and immobilisation sanctions if the relevant
offender has committed 2 or more relevant combined drink and
drug driving offences or drink or drug driving offences.
Subclause (3) includes in the definition of tier 2 relevant offence
the offences of--
· drink-driving under section 49(1)(b), (f) or (g) of the
Act where the driver's blood or breath alcohol
concentration is 0·10 or more; and
· the combined drink and drug driving offences under
section 49(1)(bc) or (j) of the Act where the driver's
blood or breath alcohol concentration was 0·10 or more.
23
A tier 2 relevant offence can result in immediate roadside
impoundment by Victoria Police for a period of up to 30 days for
a first offence. A second tier 2 relevant offence can result in
immediate roadside impoundment by Victoria Police for a period
of up to 30 days as well as possible further impoundment or
immobilisation by the court for up to 3 months in total. A third
or subsequent tier 2 relevant offence will be subject to possible
immediate roadside impoundment by Victoria Police for a period
of up to 30 days as well as possible forfeiture of the vehicle or
further impoundment or immobilisation by the court for up to
3 months in total (in lieu of forfeiture).
Clause 39 amends section 84E(1) of the Road Safety Act 1986 to insert the
new combined drink and drug driving offences into the meaning
of commencement day. This will assist in determining whether
the new combined drink and drug driving offences which are
tier 1 relevant offences by virtue of the fact that they involve a
blood or breath alcohol reading of less than 0·10 can be
considered to be a second or subsequent offence. Under
section 84E(2) of the Road Safety Act 1986 a tier 1 relevant
offence can only be treated as a second or subsequent offence if it
was committed on or after the commencement day. Clause 39
provides that the new combined drink and drug driving offences
which are tier 1 relevant offences by virtue of the fact that they
involve a blood or breath alcohol reading of less than 0·10 will
only be treated as second or subsequent offences if they were
committed on or after the date that clause 39 comes into
operation.
Clause 40 amends section 84H(2)(a)(ia) of the Road Safety Act 1986 to
include the new combined drink and drug driving offences as
offences which require a notice to be served as part of the process
for the surrender of a motor vehicle. The effect of this
amendment is to ensure that where a police officer believes on
reasonable grounds that a motor vehicle has been used in the
commission of these offences, he or she may serve a notice on
the registered operator of the motor vehicle requiring the
surrender of the motor vehicle at any time after the charge-sheet
is filed but not later than 3 months after the commission of the
relevant offence.
24
Clause 41 amends section 84J(g) of the Road Safety Act 1986 to allow a
person authorised by a member of the police to release an
impounded vehicle without first having to be directed to do so by
a member of the police force.
Clause 42 inserts 3 new subsections into section 84O of the Road Safety
Act 1986, which concerns appeal rights where a vehicle has been
impounded or immobilised by the Victoria Police.
New section 82(2A) requires an applicant for release of an
impounded or immobilised vehicle on the grounds of exceptional
hardship to give 7 days written notice of the application and of
the venue of the Magistrates' Court at which the appeal is to be
heard to the Chief Commissioner of Police.
New section 84O(2B) states that the notice must also state the
grounds for the claim of exceptional hardship.
New section 84O(2C) states that the Magistrates' Court must not
release a vehicle which has been impounded or immobilised by
the Victoria Police on the grounds of exceptional hardship unless
it is satisfied that the applicant has complied with these
requirements.
These amendments will ensure that Victoria Police is better
placed to test the strength of exceptional hardship applications,
should circumstances require.
Clause 43 amends section 84ZQAB of the Road Safety Act 1986 to
provide for how a vehicle may be voluntarily abandoned by its
owner. For a vehicle to be voluntarily abandoned the sole owner
of the vehicle must serve a notice of abandonment on the Chief
Commissioner of Police and 7 days must elapse following the
service of the notice. The notice must be in the form approved
by the Chief Commissioner and include information that
identifies the motor vehicle, including, if applicable, the vehicle's
registration number.
Clauses 43 also makes consequential amendments to sections
84ZQAC(1) and 84ZQAD(1) of the Road Safety Act 1986.
These amendments ensure that sections 84ZQAC(1) and
84ZQAD(1) continue to only deal with a notice of intention to
deem a vehicle to be abandoned given by the Chief
Commissioner of Police, and not to the new process by which an
impounded or immobilised vehicle may be deemed to have been
abandoned by its owner.
25
Division 2--Motor cycle licence
Clause 44 amends section 19 of the Road Safety Act 1986 which is
concerned with driver licences, to insert a new subsection
19(7B). The new subsection requires the carriage of a driver
licence by motor cycle riders during the 3 year period from the
issue of the licence which authorises the person to ride a motor
cycle. The 3 year period is to be extended by a period of time
equal in length to any period of suspension served by the person.
The maximum penalty applying to this new offence is 5 penalty
units.
Clause 45 amends section 52 of the Road Safety Act 1986 to extend the
period of time from 1 year to 3 years that some motor cycle riders
on a restricted licence must maintain a zero blood or breath
alcohol concentration while riding their motor cycles.
Clause 46 amends section 59(3) of the Road Safety Act 1986 to require a
person who is riding or in charge of a motor cycle, during the
period of 3 years from the issue of the driver licence which
authorises him or her to ride a motor cycle, to produce his or her
driver licence for inspection by a police officer or other
authorised officer following a lawful request. The amendment to
section 59(3) means that the motor cycle rider described in this
clause will have to immediately produce his or her licence and
will not be allowed to instead give an excuse, provide a signature
and produce the driver licence within 7 days at a police station.
Division 3--Recovery of costs
Clause 47 amends section 63A(4) of the Road Safety Act 1986 which is
concerned with the removal of vehicles obstructing right-of-
ways, passages or private drives, or which have been unlawfully
parked or left standing so as to cause a danger or traffic
congestion. The amendment will allow the Chief Commissioner
to recover costs incurred in moving the obstructing vehicle from
not only the owner of the vehicle but also the registered operator
of the vehicle. This is because VicRoads maintains a database of
registered operators of vehicles rather than owners of vehicles.
There will be circumstances where the owner of an obstructing
vehicle cannot be identified but a registered operator of the
vehicle can be found.
26
PART 5--MISCELLANEOUS
Division 1--Extension of access arrangements under the Rail
Management Act 1996
Clause 48 makes changes to the rail access scheme contained in the Rail
Management Act 1996.
Subclause (1) amends section 38X(1)(f) of the Rail
Management Act 1986. Section 38X sets out the information
required to be contained in an access arrangement. This includes
the expiry date of the access arrangement, which must be a date
not less than 3 years and not more than 5 years after the date on
which the access arrangement is approved. The amendment
removes the restriction by omitting those words.
Subclause (2) repeals sections 38ZO(2) and 38ZP(2) of the Rail
Management Act 1986. Section 38ZO enables an access
provider to apply to the Essential Services Commission for a
variation of a binding access arrangement. The section sets out
what must be contained in an access arrangement and the process
for approval. Subsection (2) specifically prohibits a variation
dealing with the date of expiry of an access arrangement.
Repealing subsection (2) has the effect of enabling access
providers to request a variation to the dates of expiry of binding
access arrangements.
Section 38ZP enables the Essential Services Commission to vary
a binding access arrangement on its own initiative. Subsection
(2) specifically prohibits a variation to the date of expiry.
Repealing subsection (2) enables the Essential Services
Commission to vary the date of expiry of a binding access
arrangement.
The effect of the amendment is to remove the current restriction
on varying the expiry date of access arrangements so that current
access arrangements may continue.
27
Division 2--Amendments to other Acts consequential on new
combined drink and drug driving offences
Subdivision 1--Accident Compensation Act 1985
Clause 49 amends section 82(4) of the Accident Compensation Act 1985
to refer to the new section 82BA of that Act being inserted by
clause 50. Section 82(4) states that if it is proved that an injury to
a worker is attributable to the worker's serious and wilful
misconduct (including, but not limited to, being under the
influence of intoxicating liquor or a drug), there is no entitlement
to compensation in respect of that injury. Section 82(4) is subject
however to the operation of other sections of the Accident
Compensation Act 1985 which limit certain types of
compensation payments depending on whether and to what
extent a worker may have consumed intoxicating liquor or a drug
where this in turn contributed to the accident in which the worker
was injured.
Clause 49 thereby adds the new offences of combined drink and
drug driving and how a conviction or finding of guilt for this
offence may limit or altogether stop compensation payments, to
the list of alcohol and drug offences to which the operation of
section 82(4) of the Accident Compensation Act 1985 is
subject.
Clause 50 amends the Accident Compensation Act 1985 to insert a new
section 82BA. Section 82BA sets out the circumstances in which
weekly payments are reduced because of the combined drink and
drug driving offences.
The degree of reduction of payment for these new offences will
be that the person will lose one third of his or her entitlement to
weekly payments (simply due to the drug component of the
offence) and may lose up to two thirds based on the blood or
breath alcohol concentration reading relevant to the alcohol
aspect of the combined offences. A blood or breath alcohol
concentration recording of 0·12 or more and less than 0·24 will
result in a reduction of weekly compensation payments by two
thirds. Compensation in the form of weekly payments will be
reduced for a period of 130 weeks.
Section 82BA will not apply if the injury results in death or is a
severe injury or if the worker satisfies the Victorian WorkCover
Authority or self-insurer that the concentration of alcohol or
28
drugs in the blood, breath or oral fluid of the worker did not in
any way contribute to the worker's injury.
Clause 51 amends section 82C of the Accident Compensation Act 1985 to
include the new combined drink and drug driving offences as
offences capable, depending on the worker's blood or breath
alcohol concentration reading, of resulting in there being no
entitlement to compensation for the worker. If the worker's
blood or breath alcohol concentration reading is 0·24 or more,
then the worker is not entitled to compensation under the
Accident Compensation Act 1985 in respect of the worker's
injury.
Section 82C will not apply if the injury results in death or is a
severe injury or if the worker satisfies the Victorian WorkCover
Authority or self-insurer that the concentration of alcohol or
drugs in the blood, breath or oral fluid of the worker did not in
any way contribute to the worker's injury.
Clause 52 amends section 82D of the Accident Compensation Act 1985.
Section 82D sets out what is to happen if a conviction or finding
of guilt, which resulted in a worker's weekly compensation
payments being reduced or not paid at all, is overturned.
The amendment to section 82D includes the new offences of
combined drink and drug driving as offences, which if
overturned, will result in the Victorian WorkCover Authority or
self-insurer paying the worker weekly compensation payments in
accordance with the Accident Compensation Act 1985.
Clause 53 amends sections 239AAA, 239AAB and 239AAC of the
Accident Compensation Act 1985 to include the new offences
of combined drink and drug driving as offences about which--
· (in section 239AAA) the Chief Commissioner of Police
may furnish information to the Victorian WorkCover
Authority;
· (in section 239AAB) the Court, at the written request of
the Victorian WorkCover Authority, must provide a
certificate which sets out the particulars of the
conviction as well as the type of drug identified and the
blood or breath alcohol concentration finding to the
Victorian WorkCover Authority; and
29
· (in section 239AAC) VicRoads, at the written request of
the Victorian WorkCover Authority, may disclose
information to the Victorian WorkCover Authority.
Subdivision 2--Transport Accident Act 1986
Clause 54 amends section 40 of the Transport Accident Act 1986 to
include the new combined drink and drug driving offences as
offences which can result in certain types of compensation
payments either being reduced or not being payable at all.
The degree of reduction of payment for these new offences will
be that the person will lose one third of his or her entitlement to
certain types of compensation (simply due to the drug component
of the offence) and may lose up to two thirds or their whole
entitlement to certain types of compensation, based on the blood
or breath alcohol concentration reading of the alcohol aspect of
the combined offences. The levels of reduction of the entitlement
to certain types of compensation are the same as for drink-driving
offences. A blood or breath alcohol concentration recording of
0·12 or more and less than 0·24 results in a reduction of certain
types of compensation payments by two thirds; and a blood or
breath alcohol concentration recording of 0·24 or more means the
person loses his or her entitlement to certain types of
compensation completely.
Subdivision 3--Workplace Injury Rehabilitation and
Compensation Act 2013
Clause 55 amends section 40(5) of the Workplace Injury Rehabilitation
and Compensation Act 2013. Section 40(5) states that if it is
proved that an injury to a worker is attributable to the worker's
serious and wilful misconduct (including, but not limited to,
being under the influence of intoxicating liquor or a drug), there
is no entitlement to compensation in respect of that injury.
Section 40(5) is subject however to the operation of other
sections of the Workplace Injury Rehabilitation and
Compensation Act 2013 which limit certain types of
compensation payments depending on whether and to what
extent a worker may have consumed intoxicating liquor or a drug
and this in turn contributed to the accident in which the worker
was injured.
30
Clause 55 adds the new offences of combined drink and drug
driving, and how a conviction or finding of guilt for these
offences may limit or altogether stop compensation payments, to
the list of alcohol and drug offences to which the operation of
section 40(5) of the Workplace Injury Rehabilitation and
Compensation Act 2013 is subject.
Clause 56 amends the Workplace Injury Rehabilitation and
Compensation Act 2013 to insert a new section 43A.
Section 43A sets out the circumstances in which weekly
payments are reduced because of the combined drink and drug
driving offences.
The degree of reduction of payment for these new offences will
be that the person will lose one third of his or her entitlement to
weekly payments (simply due to the drug component of the
offence) and may lose up to two thirds based on the blood or
breath alcohol concentration reading of the alcohol aspect of the
combined offences. A blood or breath alcohol concentration
recording of 0·12 or more and less than 0·24 will result in a
reduction of weekly compensation payments by two thirds.
Compensation in the form of weekly payments will be reduced
for a period of 130 weeks.
Section 43A will not apply if the injury results in death or is a
severe injury or if the worker satisfies the Victorian WorkCover
Authority or self-insurer that the concentration of alcohol or
drugs in the blood, breath or oral fluid of the worker did not in
any way contribute to the worker's injury.
Clause 57 amends section 44 of the Workplace Injury Rehabilitation and
Compensation Act 2013 to include the new combined drink and
drug driving offences as offences capable, depending on the
worker's blood or breath alcohol concentration reading, of
resulting in there being no entitlement to compensation for the
worker. If the worker's blood or breath alcohol concentration
reading is 0·24 or more, then the worker is not entitled to
compensation under the Workplace Injury Rehabilitation and
Compensation Act 2013 in respect of the worker's injury.
31
Section 44 will not apply if the injury results in death or is a
severe injury or if the worker satisfies the Victorian WorkCover
Authority or self-insurer that the concentration of alcohol or
drugs in the blood, breath or oral fluid of the worker did not in
any way contribute to the worker's injury.
Clause 58 amends section 45 of the Workplace Injury Rehabilitation and
Compensation Act 2013. Section 45 sets out what is to happen
if a conviction or finding of guilt, which resulted in a worker's
weekly compensation payments being reduced or not paid at all,
is overturned. The amendment to section 45 includes the new
offences of combined drink and drug driving as offences, which
if overturned, will result in the Victorian WorkCover Authority
or self-insurer paying the worker weekly compensation payments
in accordance with the Workplace Injury Rehabilitation and
Compensation Act 2013.
Clause 59 amends sections 555(1)(a), 556(1)(a)(ii) and 557(2)(d) of the
Workplace Injury Rehabilitation and Compensation Act
2013 to include the new offences of combined drink and drug
driving as offences about which--
· (in section 555(1)(a)) the Chief Commissioner of Police
may furnish information to the Victorian WorkCover
Authority;
· (in section 556(1)(a)(ii)) the Court, at the written
request of the Victorian WorkCover Authority, must
provide a certificate which sets out the particulars of the
conviction as well as the type of drug identified and the
blood or breath alcohol concentration finding to the
Victorian WorkCover Authority; and
· (in section 557(2)(d)) VicRoads, at the written request
of the Victorian WorkCover Authority, may disclose
information to the Victorian WorkCover Authority.
Division 3--Transitional provisions
Clause 60 inserts new section 103ZI into the Road Safety Act 1986 which
deals with a range of transitional matters.
Subclause (2) provides that new section 26(3A), as inserted by
clause 15(1), applies only with respect to decisions made by the
Magistrates' Court on or after the commencement of that clause.
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Subclause (3) provides that new section 31KA, as inserted by
clause 17, applies only with respect to an offence under section
49(1)(b), (f) or (g) of the Road Safety Act 1986 that is alleged to
have been committed on or after the commencement of that
clause.
Subclause (4) provides that the amendments of section 50 of the
Road Safety Act 1986 made by clause 18(1) apply only with
respect to an offence under section 49(1)(b), (f) or (g) of the
Road Safety Act 1986 that is alleged to have been committed on
or after the commencement of that clause.
Subclause (5) provides that new sections 50AAAB and
50AAAC, as inserted by clause 19, apply only with respect to an
alcohol interlock condition imposed for an offence that is alleged
to have been committed on or after the commencement of that
clause.
Subclause (6) provides that new section 50AAAD, as inserted by
clause 19, applies with respect to requirements and conditions of
a kind referred to in new section 50AAAD(2), whether imposed
before, on or after the commencement of that clause. Therefore,
the provision can be said to have retrospective effect. However,
the provision operates for the benefit of persons that are unable to
use alcohol interlock devices due to medical conditions and it is
for that reason that it is appropriate for the provision to apply to
alcohol interlock conditions imposed before, on or after the
commencement of clause 19.
Subclause (7) provides that an amendment of section 50AAB
made by a provision of clause 20 applies only with respect to an
application made under section 50AAB(4) of the Road Safety
Act 1986 in relation to an alcohol interlock condition imposed
for an offence that is alleged to have been committed on or after
the commencement of that clause.
Subclause (8) provides that an amendment of section 50AAD,
50AAE, 50AAF, 50AAG, 50AAH, 50AAI or 50AAJ of the
Road Safety Act 1986 made by clauses 22 to 28 of the Bill,
applies with respect to approvals under section 50AAE, whether
given before, on or after the commencement of the amending
clause. Therefore, the provisions can be said to have
retrospective effect. However, the provisions are required to
apply to all approvals in order to be effective. For example, the
revisions to the powers of VicRoads to impose conditions on
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approved alcohol interlock suppliers (see section 50AAF as
amended by clause 24) would operate in an anti-competitive
fashion if they only applied to new suppliers but not to existing
suppliers.
Subclause (9) provides that the amendment of section 52(1B) by
clause 31 applies only with respect to a disqualification from
obtaining a driver licence or learner permit imposed on or after
the commencement of that clause in respect of an offence that is
alleged to have been committed on or after that commencement.
Subclause (10) provides that sections 89C(1A) and (2) of the
Road Safety Act 1986, as inserted by clause 32(1), apply only
with respect to a drink-driving infringement alleged to have been
committed on or after the commencement of that clause.
Subclause (11) provides that sections 52(1E), (1F)(b) and (1G) of
the Road Safety Act 1986, as amended by clause 45, apply only
with respect to a driver licence which authorises the holder to
drive a motor cycle granted on or after the commencement of that
clause.
Subclause (12) provides that for the purposes of section 103ZI, if
an offence is alleged to have been committed between 2 dates,
one before and one after the commencement of a section of the
Road Safety Amendment Act 2014, the offence is alleged to
have been committed before that commencement.
Subclause (13) provides that a provision of the Road Safety Act
1986, as amended by a provision of the Road Safety
Amendment Act 2014, that is expressed as applying to a second
or subsequent offence (within the meaning of section 48(2),
50AAA(9) or 50AA as the case requires) will have effect in
respect of an offence provided that--
· the latest relevant offence was committed or was alleged
to have been committed on or after the commencement
of the relevant provision of the Road Safety
Amendment Act 2014; and
· the earlier relevant offence or offences were committed
before, on or after the commencement of the relevant
provision of the Road Safety Amendment Act 2014.
Subclause (14) provides that the operation of subclause (13) is
not affected by subclause (4) or any other provision of this
clause. So for example, if a disqualification sanction imposed
34
under section 50 of the Road Safety Act 1986 that applies to a
second or subsequent offence is harsher than would have
otherwise previously applied (see clause 18), then the harsher
sanction will apply to an offender as provided for by subclause
(13) whether the relevant prior offences were committed before
on or after the commencement date of clause 18.
Division 4--Statute law revision
Clause 61 contains statute law revisions to sections 132F(5)(e)(ix),
169(1B)(c)(ix), 212AA(5) and 2(1) of the Transport
(Compliance and Miscellaneous) Act 1983.
Where "section 25" is mentioned in sections 132F(5)(e)(ix)
and 169(1B)(c)(ix), "Part 4" is substituted. This is necessary
because sections 3 and 4 of the Road Legislation Amendment
Act 2013 have repealed section 25 of the Road Safety Act 1986
(which dealt with the imposition of demerit points for driving
offences) and replaced it with Part 4 of the Road Safety Act
1986. Note that clause 2(4) of this Bill states that clause 61(1)
and (2) come into operation on the day on which section 3 of the
Road Legislation Amendment Act 2013 comes into operation.
Subclause (3) corrects a typographical error in section 212AA(5)
of the Transport (Compliance and Miscellaneous) Act 1983.
Subclause (4) updates a cross-reference in the definition of
mandatory marine safety decision in section 2(1) of the
Transport (Compliance and Miscellaneous) Act 1983 as a
result of the enactment of the Transport (Safety Schemes
Compliance and Enforcement) Act 2014.
Clause 62 corrects a typographical error in section 84H(2)(a)(ia)(A) of the
Road Safety Act 1986 and contains a statute law revision to
section 103ZH of that Act, changing the reference to "103ZH" to
"103ZHA". There are currently two section 103ZHs in that Act.
Clause 63 makes a statute law revision amendment to section 86J of the
Rail Safety (Local Operations) Act 2006 by substituting a
reference to section 57A of the Road Safety Act 1986 with a
reference to section 57B of that Act. Section 57A of the Road
Safety Act 1986 deals with the evidentiary provisions relating to
urine tests, which are not provided in the drug and alcohol
control scheme under the Rail Safety (Local Operations) Act
2006. Instead, section 57B deals with evidentiary provisions
35
relating to oral fluid testing, which is provided for under the Rail
Safety (Local Operations) Act 2006.
Division 5--Repeal of amending Act
Clause 64 provides for the automatic repeal of the Bill on 1 August 2016.
The repeal of the Bill does not affect the continuing operation of
the amendments made by it (see section 15(1) of the
Interpretation of Legislation Act 1984).
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