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Road Safety (Alcohol and Drugs Enforcement
Measures) Bill
As Sent Print
EXPLANATORY MEMORANDUM
Clause 1 sets out the purposes of the Bill, namely to make miscellaneous
amendments to the Road Safety Act 1986, the Marine Act 1988
and other Acts related to alcohol and drugs enforcement.
Clause 2 deals with commencement arrangements. Part 1 and sections 16,
23, 24 and 25 will come into operation on the day after Royal
Assent. Part 1 deals with preliminary matters. Sections 16, 23,
24 and 25 amend certain unproclaimed provisions that will
(when in force) make amendments to the Road Safety Act 1986
or the Marine Act 1988.
Other provisions of the Bill will come into force on days to be
fixed by proclamation, with any unproclaimed provisions coming
into operation on 1 February 2002.
Clause 3 inserts a definition of "accompanying driver offence" into
section 3(1) of the Road Safety Act 1986. This refers to
offences that, under the proposed amendments, are committed by
certain persons who are accompanying learner drivers as
instructors whilst in breach of blood alcohol and drug
impairment provisions. See the amendments proposed by
clause 4.
The clause also proposes to amend the definition of "drink
driving infringement" to exclude from that definition offences
that are "accompanying driver offences" as defined. The main
effect of this amendment is that "accompanying driver
offences" will be dealt with under the general provisions relating
to traffic infringements, rather than the more stringent provisions
relating to drink driving infringements.
Clause 4 amends section 48 of the Road Safety Act 1986.
541165 BILL LA AS SENT 4/5/2001
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Sub-clause (1) will substitute sub-section (1AA) of section 48.
This sub-section presently provides that commercial driving
instructors are to be taken, for the purposes of the alcohol and
drug provisions of the Act, as being in charge of a motor
vehicle whilst giving instruction to an unlicensed driver.
The substituted provision will extend this arrangement to include
the commercial instructor of a licensed driver if that person's
licence is appropriate to the class of vehicle being driven. This
will apply, for example, to commercial instructors of a person
who already holds a motor cycle licence and is seeking a licence
to drive a motor car.
Sub-clause (2) inserts a new sub-section (1AAA) into section 48.
This new sub-section will provide that, for the purposes of the
alcohol and drug provisions of the Act, an instructor (other than a
commercial instructor) is to be taken to be in charge of the
vehicle when accompanying a learner driver. Accordingly, the
instructor becomes bound by the provisions of the Act relating to
the blood alcohol content and of drivers and of persons in charge
of motor vehicles. The effect of the amendment is that an
instructor who breaches the applicable blood alcohol content
("BAC") or drug impairment provisions will now be committing
an offence. Lesser penalties are fixed for these offences than for
other drug and alcohol offences: See notes to clauses 6 and 8.
Another effect is that the provisions dealing with alcohol and
drug testing will apply to instructors in addition to drivers.
Sub-clause (3) substitutes sub-section (1AB) of section 48.
This provides that a person who is actually driving or in charge
of a vehicle remains subject to the alcohol and drug provisions of
the Act despite the fact that an accompanying driver is present.
Sub-clause (4) amends sub-section (2) of section 48. The effect
of the proposed amendment is that an "accompanying driver
offence" is not to be taken as a conviction for a subsequent
offence for the purposes of the alcohol and drug provisions.
Clause 5 amends section 49 of the Road Safety Act 1986, which deals
with offences involving alcohol and drugs.
Presently, section 49 prohibits blood alcohol concentrations of
more than the prescribed level. In the Supreme Court case of
Blanksby v Barnes [1998] 2V.R. 164, the Court held that, as the
Act expresses prescribed blood alcohol concentration with two
decimal places, readings to the third decimal place should be
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disregarded. Under this interpretation, a person is not in breach
of the provisions even though that person's blood alcohol
concentration ("BAC") is more than the prescribed amount
unless the excess is 0·01 or more.
To redress this situation, the proposed amendments alter the
definitions of offences under section 49 by replacing references
to a BAC of "more than" the prescribed level with references to a
BAC of the prescribed level itself, or higher. This means that the
relevant offence is committed if a BAC is at the prescribed level,
for example, 0·05. This puts Victorian laws relating to drink-
driving back in line with most other States.
The clause also amends section 49 to extend offences in relation
to failing an alcohol breath test, refusing to comply with
requirements in relation to alcohol breath tests or refusing to
furnish samples for alcohol breath tests. These offences will
now also apply in relation to alcohol breath tests conducted
under the new sub-section (2AA) of section 55, which is to be
inserted by clause 10(1).
The purpose of these amendments is to deal with the situation
where a person undergoing drug assessment is required to
provide a breath sample for alcohol testing. If that test reveals
the presence of alcohol or the person refuses to comply, the
amendments will enable matters to proceed in relation to
possible breaches of the alcohol provisions of the Act on the
same footing as if the breath sample had been required under the
existing provisions.
Clause 6 amends section 49 of the Road Safety Act 1986 to fix a penalty
for an "accompanying driver offence", that is, for a breach of
the alcohol or drug provisions committed by a person instructing
a learner driver but who is not a commercial instructor.
The amendments will prescribe a penalty of up to 5 penalty units
($500). The clause also amends section 49(2) and (3) to exempt
a person who is found guilty of an "accompanying driver
offence" from liability to the heavier fines and imprisonment
prescribed by those sub-sections.
Clause 7 amends section 50 of the Road Safety Act 1986, which deals
with the cancellation of driving licences or permits of persons
found guilty of certain alcohol and drug offences and their
disqualification from obtaining further licences or permits.
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The purpose of the amendments is to express BAC, for these
purposes, as being at the stated levels instead of as "more than"
the stated levels. See notes to clause 5 for further explanation of
the reasons for altering the method of expressing BAC.
Clause 8 amends section 50 of the Road Safety Act 1986 so that a person
who is found guilty of an "accompanying driver offence" is
not subject to licence cancellation or disqualification under that
section.
Clause 9 inserts a new sub-section (1E) into section 52 of the Road Safety
Act 1986. The effect of the amendment will be to prescribe a
BAC of zero for motor cyclists during the first year in which they
are licensed to drive motor cycles. At present, a first year motor
cyclist is not restricted to zero BAC if he or she holds a motor car
licence and the zero BAC period has expired in relation to that
licence.
Clause 9 also amends the manner in which the zero concentration
of alcohol is expressed as the prescribed concentration in the case
of persons to whom section 52 applies, such as probationary
drivers and the drivers of heavy vehicles. Currently, the zero
BAC requirement is expressed as "0·00 grams per 100 millilitres
of blood". To avoid an interpretation that this formulation
disregards concentrations beyond the second decimal place, the
proposed amendment will instead refer to "any" concentration of
alcohol. Thus, where another provision of the Act defines an
offence by reference to the BAC of a person being "at" the
prescribed level, a motorist required by section 52 to have zero
BAC will be committing that offence if there is any alcohol at all
in his or her blood.
Clause 10 amends section 55 of the Road Safety Act 1986 to enable breath
analysis tests to be administered to a person who is undergoing
an assessment for drug impairment. Breath analysis under
section 55 differs from a preliminary breath test because the
results of that test is evidence of BAC and because failing such a
breath analysis within three hours of driving is an offence.
Conducting a breath analysis of a person undergoing a drug
assessment will enable alcohol to be ruled out as a contributing
factor to the person's impairment. It may also assist in enabling
assessment of the extent to which factors other than alcohol are
contributing to the impairment. This is relevant in establishing
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the degree of impairment by drugs for the purpose of
proceedings under the drug impairment provisions.
Sub-clause (1) proposes to insert a new sub-section (2AA) into
section 55. This will authorise a police officer to require a
person undergoing a drug assessment to undergo breath analysis.
Sub-clause (2) amends section 55(2A) to enable further breath
analysis tests to be administered to a person undergoing drug
assessment in circumstances, but only where such further tests
could be applied under the existing alcohol provisions.
Sub-clause (3) amends section 55(9A) to enable a police officer
to require a blood sample from a person who had undergone
breath analysis under the preceding provisions where the person
was unable to provide a sufficient breath sample or because the
machine malfunctioned. Such blood samples could only be
required on identical grounds to those under the existing alcohol
provisions.
Note that a health professional that takes a blood sample in
accordance with section 55(9A) has immunity from suit under
section 55(9E). This immunity from suit will also apply to a
health professional who takes a blood sample for the purposes of
a drug assessment under section 55(9A) as amended by
clause 10(3). See also the notes to clause 15: It is intended that
the amended section 55 will alter or vary section 85 of the
Constitution Act 1975 in relation to the Supreme Court's
jurisdiction.
Clause 11 proposes to insert a new sub-section (1A) into section 55B.
This will prevent a blood sample being required for the purposes
of drug testing from a person who has already provided a blood
sample for alcohol testing under section 55(9A) in relation to the
same circumstances. The taking of a blood sample is invasive.
There is no need to take a second sample under section 55B
in such situations because the sample already taken under
section 55 may be tested for drugs as well. Section 57(2) of the
Act already provides that the results of such a test are admissible
as evidence in proceedings for alcohol and drug offences, among
others.
Clauses 12 and 13 amend sections 57 and 57A of the Road Safety Act 1986
respectively so as to enable certified results of tests of blood
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samples to be used as evidence even if the sample is taken more
than three hours after driving.
Such certificates are most often used in relation to prosecutions
under section 49(1)(g) of the Act for the offence of having had a
blood sample taken within three hours of driving which, on
analysis, is found to contain a BAC of the prescribed amount or
more. However, the results of analysis of a blood sample taken
more than three hours after a person has driven can be relevant in
relation to other proceedings under the alcohol provisions of the
Act. For example, combined with other evidence, the results of
analysis of such a sample may be relevant in proceedings under
section 49(1)(b) for driving whilst at or above the prescribed
BAC. At present, the only way in which evidence of the test
result can be given if the sample was taken more than three hours
after driving is by calling the analyst who conducted the test to
Court to give evidence. This is the case even if the results of the
test are not in dispute.
The Bill addresses this anomaly by removing the three-hour time
limit, enabling certificates to be used as evidence even if the
sample was taken more than three hours after driving.
Clauses 12 and 13 also amend sections 57 and 57A so that a
defendant may seek leave of the Court to have the certifying
person called as a witness on the grounds that there is a
reasonable possibility that the sample was taken more than three
hours after driving. This ensures that defendants will not be
disadvantaged where the time at which the sample is taken is an
issue in the proceedings.
Clause 14 amends section 89C of the Road Safety Act 1986, which deals
with the cancellation of drivers' licences or permits in certain
cases. The amendments express references to BAC in terms of
being at, in addition to being above, the specified concentration.
See notes to clause 5 for explanation of the reasons for this
amendment.
Clause 15 inserts a new sub-section (3) into section 94A of the Road
Safety Act 1986. The new section 94A (3) fulfils the
requirements of section 85(5)(a) of the Constitution Act 1975
by expressly stating that it is intended to alter or vary section 85
of that Act in relation to the jurisdiction of the Supreme Court.
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The proposed alteration or variation of the Supreme Court's
jurisdiction relates to the immunity from suit that section 55(9E)
of the Road Safety Act 1986 confers on health professionals
who take blood samples for the purposes of alcohol and drug
tests under section 55(9A).
This immunity from suit already exists in relation to the taking of
blood samples under the existing alcohol provisions. The
amendments to section 55(9A) proposed by clause 10(3) will
authorise the taking of a blood sample from a person who was
initially assessed for drugs. Consequently, the scope of the
immunity conferred by section 55(9E) will be indirectly extended
to cover these new cases.
To ensure that the immunity conferred is effective, it is necessary
to alter or vary section 85 of the Constitution Act 1975 in
relation to the Supreme Court's jurisdiction. This is consistent
with previous legislation relating to the section 55(9E) immunity.
Clause 16 amends section 16(1) of the Road Safety (Further
Amendment) Act 1991, which is not yet in force. When that
section comes into force, it will insert a new section 89C(1A)
into the Road Safety Act 1986. This will provide for automatic
suspension for one month of the licence of a person to whom
a traffic infringement notice is issued for certain drink-
driving offences whilst driving or in charge of a large vehicle.
The purpose of the amendments is to express BAC, for this
purpose, as being at the stated level of 0·05 instead of as "more
than" that level. See clause 5 for further explanation of the
reasons for this amendment.
Clause 17 inserts a new definition of "accompanying operator offence" into
section 3(1) of the Marine Act 1988. This refers to offences that,
under the proposed amendments to that Act, may be committed
by licensed operators who are in breach of alcohol provisions
whilst accompanying the person actually in charge of a vessel.
See the amendments proposed by clause 18.
Clause 18 inserts a new sub-section (1AAA) into section 27 of the Marine
Act 1988. A licensed operator will be bound by the alcohol
provisions of the Marine Act whilst accompanying a person in
charge of a vessel because that second person is required (by the
regulations or by the conditions of his or her licence) to be
accompanied by a licensed operator. The new sub-section
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achieves this by treating the accompanying operator as also being
in charge of the vessel for the purposes of the alcohol provisions.
Lesser penalties are fixed for such "accompanying operator
offences" than for other alcohol offences: See notes to clause 20.
Clause 19 amends section 28 of the Marine Act 1988 to alter the
definitions of certain offences under that section by replacing
references to a prescribed concentration of alcohol of "more
than" the prescribed concentration with references to
concentrations of the prescribed level itself, or higher.
This means that the relevant offence is committed if a
concentration of alcohol is at the prescribed concentration of, for
example, 0·05. See the notes to clause 5 for further explanation
of the reasons for this amendment.
Clause 20 amends section 28 of the Marine Act 1988 to fix a penalty for an
"accompanying operator offence". This covers a breach of the
alcohol provisions by a licensed operator who accompanies a
person in charge of a vessel for the purpose of enabling that
second person to comply with requirements of the regulations or
the conditions of his or her licence. The amendments prescribe a
fine of up to 5 penalty units ($500). The clause also amends
section 28(2) and (3) to exempt a person who is found guilty of
an "accompanying driver offence" from liability to the heavier
fines and imprisonment prescribed by those sub-sections.
Clause 21 inserts a new paragraph (ab) into section 29(1) of the Marine
Act 1988. This authorises Police officers to administer a
preliminary breath test to any person found in a vessel under way
if the person in charge is required to be accompanied by a
licensed operator. In a situation where a person who is required
to be accompanied by a licensed operator is operating a vessel, it
may be that that operator is lawfully operating the vessel because
one of the persons in the vessel holds an operator's licence. If so,
the accompanying person may, under other amendments being
made by this Bill, have committed an "accompanying operator
offence". For this reason, the proposed new section 29(1)(ab)
will enable Police to require other persons in the vessel to
undergo a preliminary breath test in the same way as the actual
person in charge.
Clause 22 amends section 32 of the Marine Act 1988 so as to enable
certified results of tests of blood samples to be used as evidence
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even if the sample is taken more than three hours after operating
a vessel. This amendment is similar in intent and effect to those
proposed to the Road Safety Act 1986 by clauses 12 and 13 of
the Bill.
Clause 23 amends section 3 of the Marine (Amendment) Act 2000, which
when in force will amend section 3 (1) of the Marine Act 1988.
A new definition of "prescribed concentration of alcohol" is to be
inserted in place of a definition that was to have been inserted by
the Marine (Amendment) Act 2000. The new definition will
fix concentrations of alcohol for the purposes of the Act as--
· in the case of persons under 21, any concentration of
alcohol at all, and
· in the case of other persons, 0·05.
See the notes to clause 5 for further explanation of the reasons
for these amendments.
Clause 24 amends section 9 of the Marine (Amendment) Act 2000, which
when in force will insert a new section 28A into the Marine Act
1988. The proposed amendment adds a new sub-section (4) to
section 28A, which will come into force at the same time as the
rest of that section.
The effect of the new section 28A(4) will be that a person who is
found guilty of an "accompanying operator offence" is not
subject to the licence cancellation or disqualification which
would otherwise apply under that section.
Clause 25 amends section 13 of the Marine (Amendment) Act 2000,
which when in force will insert section 61BA into the Marine
Act 1988. Clause 25 amends the new section 61BA(1)(a), so
that that section will come into force as part of the Marine Act
1988 in its amended form.
Section 61BA deals with the suspension of operator licences
when an infringement notice is issued for certain drink-operator
offences. The proposed amendment deals with the manner in
which blood alcohol concentration is expressed for the purposes
of the section. See the notes to clause 5 for explanation for the
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reasons for altering the manner in which blood alcohol
concentration is expressed.
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