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Road Safety (Alcohol Interlocks) Bill
As Sent Print
EXPLANATORY MEMORANDUM
Clause 1 sets out the purpose of the Bill.
Clause 2 provides for commencement arrangements. Formal provisions
will come into operation on the day following Royal Assent, and
the remainder to commence on dates fixed by proclamation, with
any unproclaimed provisions to commence on 1 August 2002.
Clause 3 inserts new definitions into section 3(1) of the Road Safety Act
1986.
The new definition of "alcohol interlock" describes devices to
be fitted to motor vehicles to analyse breath samples for the
presence of alcohol and to prevent vehicles being started if they
detect alcohol. An "approved alcohol interlock" is one that the
Roads Corporation ("VicRoads") has approved for use for the
purposes of the new interlock provisions (see clause 7, new
section 50AAE(3)).
An "alcohol interlock condition" refers to a condition that
restricts a driver to driving cars with an approved interlock
installed and maintained by an approved alcohol interlock
supplier (see clause 7, new section 50AAA).
An "approved alcohol interlock supplier" is a person or body
approved by VicRoads to install and maintain interlocks (see
clause 7, new section 50AAE(5)).
Clause 4 amends section 48 of the Road Safety Act 1986 to create an
exception to the general rule that a person who is attempting to
start a vehicle is taken to be "in charge" of that vehicle.
The proposed exception will apply where the vehicle that the
person is attempting to start is fitted with an approved alcohol
interlock installed and maintained by or on behalf of an approved
alcohol interlock supplier.
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541247 BILL LA AS SENT 1/3/2002
Clause 5 amends section 49A(1)(a) of the Road Safety Act 1986, which
provides for the accreditation by the Department of Human
Services of agencies that conduct alcohol assessments for the
purposes of licence restoration orders. The amendment will
extend the provision to enable accreditation of agencies for the
purposes of furnishing assessment reports to courts in relation to
applications for the removal of alcohol interlock conditions.
Clause 6 inserts explanatory notes at the foot of section 50(4A) and (4B),
which deal with the requirement for an assessment report by an
accredited agency as part of an application by a drink-driver to be
re-licensed. These notes draw attention to the fact that, in
circumstances where the Act will specify that a drink-driver can
only be re-licensed subject to an alcohol interlock condition, an
alcohol assessment report will not be required as part of the
application for the licence restoration order: See the amendments
proposed by clause 7, new section 50AAA(3)(a).
The clause also inserts a note at the foot of section 50(5), which
deals with the matters that a court is to take into account when
deciding to grant an application for a licence restoration order to
a person who has been a drink-driver. The note draws the reader's
attention to new section 50AAA, which will enable or require the
imposition of alcohol interlock conditions in certain
circumstances.
Clause 7 inserts ten new sections (to be numbered 50AAA to 50AAJ) into
the Road Safety Act 1986, which will establish the new alcohol
interlocks scheme.
Proposed new section 50AAA empowers a Magistrates' Court to
order that a drink-driver must have an alcohol interlock condition
on his or her licence. The section applies when a court is
considering an application by a drink-driver for a licence
restoration order under section 50(4).
Section 50AAA(2) confers discretion on the court whether to
impose an interlock condition on a first offender drink-driver. If a
Magistrate does impose a condition, the person may appeal that
decision to the County Court: See proposed section 50AAC.
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In the case of a first offence against certain provisions, the
discretion to impose an interlock condition only arises if the
person had a BAC of 015 or higher. The first offences that can
lead to the imposition of an alcohol interlock condition only if the
BAC is 015 or higher are offences under--
· Section 49(1)(b)--drive or be in charge of a motor
vehicle with a BAC of the prescribed concentration or
more;
· Section 49(1)(f)--result of analysis by a breath analysing
instrument of a sample of breath provided within three
hours of driving indicates a BAC of the prescribed
concentration or more; and
· Section 49(1)(g)--result of analysis of a sample of blood
provided within three hours of driving indicates a BAC of
the prescribed concentration or more.
The limitation that the BAC must be 015 or more before an
alcohol interlock condition can be imposed on a first offender
does not apply to offences against section 49(1)(c), (d) or (e).
This is because, in the nature of those offences, the record of the
conviction or finding of guilt would not include a finding as to
the person's BAC at the time of the offence.
If the court decides to impose an alcohol interlock condition on a
first offender, it must be for at least six months: See proposed
section 50AAB(2).
In determining whether a person is a first or repeat offender, a
conviction or finding of guilt is to be disregarded if it was
recorded 10 years or more before the person applied under
section 50(4) for the restoration of his or her licence: See notes
on clause 8.
For repeat offenders, section 50AAA(3) will require that alcohol
interlock conditions be imposed in all cases. Minimum periods
are prescribed by section 50AAB(3).
If a Magistrate imposes an alcohol interlock condition on any
offender that is longer than the relevant minimum period, the
person may appeal against that decision to the County Court:
See section 50AAC.
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Where an alcohol interlock condition must be imposed, the court
does not need to consider an alcohol assessment report before
granting a licence restoration order: See also the amendments
proposed by clause 6. The reason is that the main purpose of
alcohol assessment reports is to assist courts in determining
whether a particular drink-driver can be trusted to exercise
sufficient self-control not to drink and drive. Obtaining this
assessment is not as critical where an interlock must be fitted in
any case, because the interlock is designed to prevent the vehicle
being started if the driver has been drinking. Instead, a similar
assessment will be required as part of any application to a court
for the interlock condition to be removed: See notes in relation to
licence restoration orders in relation to proposed new
section 50AAB below.
Proposed new section 50AAB deals with how an alcohol
interlock condition can be removed (a condition remains until
removed by a court).
Sub-section (1) requires a court that has granted an order
restoring a person's licence subject to an alcohol interlock
condition to specify how long that condition it is to remain in
force before the person is eligible to apply to another court for its
removal. Minimum periods are specified by sub-clauses (2)
and (3).
Sub-section (2) sets the minimum period for alcohol interlock
conditions imposed on certain first offenders. Note that, in
relation to certain offences, an alcohol interlock condition may
only be imposed on a first offender where the person's BAC was
over 015: See notes on new section 50AAA(2).
If the court does impose an alcohol interlock condition on a first
offender, the court must then fix a period (at least 6 months)
during which the person will not be eligible to apply for removal
of the alcohol interlock condition. Note that imposition of alcohol
interlock conditions in these cases will be at the courts'
discretion: See section 50AAA(2).
Sub-section (3) sets minimum periods for alcohol interlock
conditions (during which a person is not eligible to apply for
removal of the alcohol interlock condition) in respect of second
and subsequent offenders. In these cases, the period fixed by the
court must be--
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· In the case of a second offender whose second offence
was under section 49(1)(b), (f) or (g) and who had a BAC
of below 015--at least 6 months.
Note that this only applies in relation to the offences
mentioned, because in the nature of these offences, the
record of the conviction of finding of guilt would show
the person's BAC: See notes on new section 50AAA(2)
for further explanation.
· In the case of a second offender whose second offence
was under section 49(1)(c), (d) or (e)--at least 3 years.
Note that this applies in respect of second offences for
which the person's BAC would not be shown in the record
of conviction or finding of guilt.
· In the case of a second offender whose second offence
was under section 49(1)(b), (f) or (g) and who had a BAC
of 015 or more--at least 3 years.
Note that this applies in respect of offences for which the
person's BAC would be shown in the record of conviction
or finding of guilt.
· In the case of a third or subsequent offender--at least
3 years.
In determining whether a person is a first, second or subsequent
offender, a conviction or finding of guilt is to be disregarded if it
was recorded 10 years or more before the person applied for the
restoration of his or her licence: See notes on clause 8.
Sub-section (4) provides that VicRoads may not remove an
alcohol interlock condition except on the order of a court.
Sub-section (5) requires a person applying to a court for the
removal of an alcohol interlock condition to obtain an alcohol
assessment report.
This assessment report must be obtained from an accredited
agency within 28 days before the application. The report must
include the last licence restoration report required as part of the
application for the licence restoration order under section 50.
In addition, the report must include assessments--
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· from the approved alcohol interlock supplier/s who
supplied the applicant's interlock/s on the extent to which
he or she complied with requirements, and
· of the person's use of alcohol.
A report has to cover all of the period during which an interlock
was actually installed in a vehicle the person drives, covering a
period of not less than 6 months. This ensures that there will be
evidence before the court about the person's pattern of behaviour
in relation to both drinking and driving during the period leading
up to the application for the removal of the alcohol interlock
condition.
Sub-section (6) deals with the matters that should be taken into
account by a court when considering whether to allow the drink-
driver to drive without an alcohol interlock. The goals are harm
and risk minimisation, rather than to punish. To that end, the
courts are asked to make their decisions having regard to the
physical and mental condition of the drink-driver and a realistic
assessment of the risk of allowing him or her to drive without an
interlock.
The matters for a court to consider will be (without limiting the
generality of the court's discretion)--
· any relevant evidence provided by Police,
· any evidence the court requires from a medical
practitioner,
· the drink-driver's use of alcohol since the alcohol
interlock condition was imposed,
· the person's physical and mental condition,
· the effect that removing the safeguard provided by the
interlock condition may have on the safety of the drink-
driver and the public generally (such as the risk of the
drink-driver causing accidents and injuries), and
· the assessment report for the removal of the alcohol
interlock condition, which include the assessment by the
interlock supplier.
The continuing cost to the drink-driver of the interlock (if the
alcohol interlock condition is not removed) is not listed as one of
the factors to be taken into account by a court. In this regard, note
that new sections 50AAE(5)(g) and (6), 50AAF(2)(a) and
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50AAG(1)(b), taken together, require suppliers to comply with
guidelines in relation to the terms and conditions on which
interlocks are made available to particular classes of customers.
This will also be a factor in deciding whether to approve a
supplier: See section 50AAE(5)(f) and (g) and (6). It is intended
to make guidelines requiring the supply of interlocks on
concessional terms to persons of limited means.
Proposed new section 50AAC provides a right of appeal to the
County Court against a decision by a Magistrate to impose an
alcohol interlock condition on a first offender drink-driver in
circumstances where an alcohol interlock condition is not
required by the Act: See notes on section 50AAA(2).
It also provides a right of appeal against a decision to impose an
alcohol interlock condition on any offender for longer than the
minimum period (by specifying a period during which a person is
not eligible to apply for removal of the alcohol interlock
condition).
Proposed new section 50AAD makes it an offence for a person to
breach an alcohol interlock condition. This includes driving a
vehicle without an interlock at all, or a vehicle that was started by
circumventing the interlock.
Sub-section (2) will make such an offence punishable by a fine of
up to $3000 or imprisonment for up to 4 months.
Note that, under new section 50AAH(4)(b), it will not be a
breach of an alcohol interlock condition to continue to use an
interlock in a vehicle that was an approved interlock at the time it
was installed in that vehicle merely because it had become a
superseded model. But interlocks may not continue to be used if
the approval of them had been cancelled under section
50AAH(1)(a) because they were found to be defective.
Sub-section (3) will make it a defence to a charge of breaching an
alcohol interlock condition that the person reasonably believed
that an interlock fitted to the vehicle was an approved interlock
that was installed and maintained in accordance with the Act.
This defence could cover a situation where a person can show
that he or she honestly believed, on reasonable grounds, that the
person who supplied the interlock was, at the time of the alleged
offence, an approved alcohol interlock supplier. For example, the
defendant may be able to prove that he or she did not know of the
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cancellation of the supplier's approval. The defence could also
cover the situation where the defendant borrowed or hired a car
fitted with an alcohol interlock that the defendant can show he or
she honestly and reasonably believed was a properly approved,
installed and maintained interlock.
Proposed new section 50AAD(4) will empower a court to order
that the vehicle used in the offence be immobilised for up to
12 months to prevent its use. If immobilisation of the vehicle
would substantially affect a person other than the drink-driver,
the court must issue a summons to that person and hear relevant
evidence before deciding whether to make an immobilisation
order in respect of the vehicle.
Proposed new section 50AAE deals with the approval of alcohol
interlocks and suppliers of interlocks by VicRoads for the
purposes of the new provisions.
Sub-section (3) allows VicRoads to approve an interlock if it is
satisfied that it is appropriate to do so, having regard to the
matters set out in the sub-section, such as the effectiveness of the
device and whether it is sufficiently tamper resistant.
In considering an application, sub-section (4) requires VicRoads
to apply any relevant guidelines made under section 50AAG.
Sub-section (5) authorises VicRoads to approve appropriate
persons or bodies to supply interlocks. The provision goes on to
set out the matters that are to be taken into consideration when
deciding whether to approve a supplier. These considerations
include technical standards, qualifications and experience.
They also include the terms and conditions on which the supplier
will provide interlocks.
Sub-section (6) provides that VicRoads must not approve a
supplier unless satisfied that the supplier will provide
concessions to the classes of persons specified by the regulations
or, if no classes of persons are specified, health care card holders.
In considering whether to approve a supplier, sub-section (7)
requires VicRoads to apply any relevant guidelines made under
section 50AAG. These guidelines can deal with concessions to
be provided for the purposes of sub-section (6).
Sub-section (8) will require VicRoads to give written notice of
reasons for refusal to approve an interlock or a supplier.
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Sub-section (9) provides that approval is to be for the period
fixed by VicRoads at the time approval is given.
Proposed new section 50AAF enables VicRoads to give approval
subject to conditions, such as a condition requiring a supplier to
comply and to ensure compliance with guidelines issued under
section 50AAG. It is intended, for example, that conditions will
be imposed in relation to the types of concessions that must be
made available to persons of limited means, in accordance with
the guidelines.
Proposed new section 50AAG enables VicRoads to issue
guidelines in relation to the interlocks and interlock suppliers.
These could include, for example, guidelines in relation to the
types of concessions which suppliers are to make available
interlocks to persons of limited means. Guidelines must be
published in the Government Gazette and tabled in each House of
the Parliament.
Proposed new section 50AAH deals with the cancellation of
approval of an alcohol interlock. VicRoads may cancel the
approval of an interlock if it is satisfied that it is defective to such
an extent that it cannot be considered suitable, or if more suitable
interlocks are available.
Under sub-section (2), if VicRoads cancels the approval of an
interlock because it is defective, it must publish notice of the
cancellation in the Government Gazette and in a newspaper
circulating throughout Victoria. The notice must specify the date
on which cancellation will take effect. VicRoads must also send
written notice to all suppliers.
VicRoads may also (but will not be required to) send notices to
all persons who are subject to an alcohol interlock condition.
In this case, VicRoads must specify the date, being not less than
one month from the date of the notice, after which the interlock
may not be used. Although sending notices to individuals will not
be mandatory, it is expected this would happen in practice.
The reason it will not be mandatory to send notices to all drivers
subject to an alcohol interlock condition is to avoid a situation
where the cancellation of the interlock's approval may be made
ineffective because some drivers did not receive their notices for
some reason.
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After approval of an interlock has been cancelled because it is
defective, it will be a breach of an alcohol interlock condition to
drive in a vehicle fitted with one of those interlocks. If a notice is
sent to a driver that specifies a day after which the interlock may
not be used and that day is different from the day notified in the
Government Gazette or a newspaper, then the interlock may be
used until the last of those days.
Under sub-section (4), if VicRoads cancels approval of an
interlock because it is a superseded model, it must notify all
approved alcohol interlock suppliers. Notice does not need to be
sent to persons who are subject to an alcohol interlock condition
because cancellation of approval of a superseded model does not
apply in respect of an interlock already installed in a vehicle.
The note at the foot of the section draws attention to the fact that
it will be a defence to a charge of breaching an alcohol interlock
condition to prove that the driver had a reasonable belief that the
interlock was approved.
Proposed new section 50AAI deals with the cancellation of
approval of an alcohol interlock supplier. VicRoads may cancel
the approval of an interlock supplier if it is satisfied that the
supplier has failed to comply with conditions of approval or is no
longer supplying, installing or maintaining interlocks.
The process for giving notice of cancellation of approval of an
interlock supplier to persons who are subject to an alcohol
interlock condition is similar to the process for notifying
cancellation of approval of a defective interlock, described in the
notes on proposed new section 50AAH.
Proposed new section 50AAJ provides a right of review of a
decision by VicRoads to refuse to give, or to cancel, approval of
an interlock or of an alcohol interlock supplier.
Clause 8 amends section 50AA of the Road Safety Act 1986, which deals
with when prior offences are to be treated as prior convictions for
the purposes of certain drink-driving provisions of the Act.
The amendment applies when a court has decided to restore a
drink-driver's licence under section 50(4) and then has to
determine whether and for how long to impose an alcohol
interlock condition. This is affected, in part, by whether the
person is a first, second or subsequent offender. In determining
how many convictions and findings of guilt have been recorded
against the person, the court will disregard those recorded more
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than 10 years before the date on which the person applied to have
his or her licence restored: See notes on clause 7 in relation to
new section 50AAA(2) and (3) and section 50AAB(3).
Clause 9 amends section 19 of the Road Safety Act 1986 to require a
person subject to an alcohol interlock condition to carry his or her
driver's licence at all times when driving. This will enable Police
to check whether the person is complying with the condition, that
is, whether the vehicle the person is driving is fitted with an
alcohol interlock.
Clause 9 also amends section 52 of the Road Safety Act 1986 to fix a zero
BAC limit in respect of drivers who must comply with an alcohol
interlock condition.
Clause 10 inserts a new section 103B into the Road Safety Act 1986,
which will provide that the new interlock provisions apply only
in respect of offences committed after those provisions come into
force. This ensures that a person who is convicted or found guilty
of drink-driving after the new interlock laws take effect will not
be adversely affected by the change in law if the actual offence
had occurred before the laws took effect.
Clause 11 inserts a new section 87P into the Sentencing Act 1991.
This contains definitions in relation to alcohol interlocks that
correspond to the definitions to be inserted into the Road Safety
Act 1986 by clause 3. Clause 11 also provides that convictions
and findings of guilt recorded 10 years or more previously are to
be disregarded for the purpose of determining whether the
alcohol interlock provisions (to be inserted into the Sentencing
Act 1991 by clause 13) apply to a person.
Clause 12 inserts notes at the foot of section 89(3A), (3B) and (3E) of the
Sentencing Act 1991. These notes draw attention to certain
alcohol interlock provisions to be inserted by this Bill. The notes
correspond to those being inserted into section 50 of the Road
Safety Act 1986 by clause 6 and are explained in the notes on
that clause.
Clause 13 inserts new sections 89A to 89D into the Sentencing Act 1991.
Proposed new section 89A corresponds generally to new
section 50AAA of the Road Safety Act 1986, which is to be
inserted by clause 7. It deals with the imposition of alcohol
interlock conditions on persons convicted of offences involving
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the use of a motor vehicle where alcohol was a factor in the
offence.
Proposed new section 89B corresponds generally to new
section 50AAB of the Road Safety Act 1986, which is to be
inserted by clause 7. It deals with the process for removing an
alcohol interlock condition imposed under new section 89A.
Proposed new section 89C corresponds generally to new
section 50AAC of the Road Safety Act 1986, which is to be
inserted by clause 7. It enables appeals to be made against an
order that imposes an alcohol interlock condition on a person.
Proposed new section 89D corresponds generally to new
section 50AAD of the Road Safety Act 1986, which is to be
inserted by clause 7. It makes it an offence to breach an alcohol
interlock condition imposed under new section 89A. It also
enables a court to order the immobilisation of the vehicle used in
the offence, subject to being required to summons a person who
would be substantially affected by the order: See section
50AAD(4).
Clause 14 inserts a new section 126B into the Sentencing Act 1991, which
will provide that the new interlock provisions of that Act apply
only in respect of offences committed after those provisions
come into force. This corresponds generally to new section 103B
of the Road Safety Act 1986, which is to be inserted by
clause 10.
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