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House of Assembly - Fifty-First Parliament, Third Session (51-3)
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STATUTES AMENDMENT (TRANSPORT PORTFOLIO—ALCOHOL AND DRUGS) BILL

Second Reading

Second reading.

The Hon. J.W. WEATHERILL (Cheltenham—Minister for Environment and Conservation, Minister for Early Childhood Development, Minister for Aboriginal Affairs and Reconciliation, Minister Assisting the Premier in Cabinet Business and Public Sector Management) (17:11): I move:

That this bill be now read a second time.

I seek leave to have the second reading explanation inserted in Hansard without my reading it.

Leave granted.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

Clauses 1 to 3 are formal.

Part 2—Amendment of Harbors and Navigation Act 1993

4—Amendment of section 4—Interpretation

This clause inserts definitions of terms used in provisions that are inserted or amended by the Bill. It also relocates some definitions from other sections and updates existing definitions in section 4.

5—Amendment of section 13—Production of identity card

This clause amends section 13 by deleting the reference to 'member of the police force' and substituting 'police officer'. The term police officer is defined in the Acts Interpretation Act 1915.

6—Amendment of section 70—Alcohol and other drugs

This clause amends section 70 to make it an offence for a person to have a prescribed drug present in his or her oral fluid or blood while operating a vessel or while a member of a crew of vessel who is, or ought to be, engaged in duties affecting the safe navigation, operation or use of the vessel. The monetary penalties are the same as those for an offence against section 47BA(1) of the Road Traffic Act 1961 (namely, a minimum fine of $500 and a maximum fine of $900 for a first offence, a minimum fine of $700 and a maximum fine of $1,200 for a second offence, and a minimum fine of $1,100 and a maximum fine of $1,800 for a subsequent offence). As in the case of an offence against section 47BA(1), it is a defence if the defendant proves that he or she did not knowingly consume the prescribed drug present in his or her oral fluid or blood (but not if the defendant consumed the prescribed drug believing that he or she was consuming a substance unlawfully but was mistaken as to, unaware of or indifferent to the identity of the prescribed drug). The clause also amends section 70 so that previous drug offences are taken into account in determining whether an offence against that section is a first, second or subsequent offence.

7—Substitution of sections 71 to 72B

71—Authorised person may require alcotest or breath analysis

Section 71 empowers an authorised person to require an operator of a vessel or a member of the crew of a vessel to submit to an alcotest or breath analysis. The section has been redrafted to make it consistent with section 47E of the Road Traffic Act 1961.

72—Authorised person may require drug screening test, oral fluid analysis and blood test

New section 72 empowers an authorised person to require a person who has submitted to an alcotest or a breath analysis under section 71 to submit to a drug screening test. The section empowers an authorised person to require an oral fluid analysis or a blood test if the drug screening test indicates the presence of a prescribed drug in the person's oral fluid. If a person has submitted to an alcotest or breath analysis as a result of a requirement made under section 71 in prescribed circumstances (as defined in section 4), the authorised person may require the person to submit to an oral fluid analysis or a blood test without first requiring a drug screening test.

This section is consistent with section 47EAA of the Road Traffic Act 1961.

72A—Schedule 1A further regulates blood and oral fluid sample processes

New section 72AB provides that Schedule 1A sets out detailed procedures for taking and dealing with blood and oral fluid samples. This section is consistent with section 47F of the Road Traffic Act 1961.

8—Substitution of section 73

73—Evidence

Section 73 has been redrafted to make it consistent with Schedule 2 clause 15 of the Rail Safety Act 2007 and section 47K of the Road Traffic Act 1961. It includes evidentiary provisions required to support the drug testing provisions, and a number of evidentiary provisions are relocated from sections 72 and 74.

9—Insertion of section 73B

73B—Oral fluid analysis or blood test where consumption of prescribed drug occurs after operation of vessel

New section 73B applies in relation to proceedings for an offence against section 71(1) or (3) in which the results of an oral fluid analysis or blood test under the new section 72 are relied on to establish the commission of the offence.

The section provides that a court may find a defendant not guilty of the offence charged if he or she satisfies the court that he or she consumed the prescribed drug during the period between the person's conduct that gave rise to the requirement to submit to the oral fluid analysis or blood test and the performance of the analysis or test, and the prescribed drug was not consumed after an authorised person first exercised powers under section 72 preliminary to the performance of the analysis or test.

This section is consistent with section 73A which applies in relation to proceedings for an offence in which the results of a breath analysis are relied on to establish the commission of the offence. It is also consistent with Schedule 2 clause 8 of the Rail Safety Act 2007 and section 47GB of the Road Traffic Act 1961.

10—Amendment of section 74—Compulsory blood tests of injured persons including water skiers

This clause amends section 74 to lower the age from 14 to 10 for the compulsory blood testing of persons injured in vessel accidents who attend at or are admitted to a hospital or are dead on arrival at a hospital. It removes a number of evidentiary provisions relocated to section 73 and provisions relating to procedures for blood testing relocated to Schedule 1A, and provides for previous prescribed alcohol or drug offences to be taken in account in determining whether an offence against section 74 is a first or subsequent offence.

11—Insertion of Schedule 1A

This clause inserts a new Schedule containing procedural provisions setting out how samples of blood and oral fluid taken under Part 10 Division 4 of the Act must be dealt with.

Schedule 1A—Blood and oral fluid sample processes

Part 1—Preliminary

1—Interpretation

This clause defines terms used in the Schedule.

Part 2—Processes relating to blood samples under section 71, 72 or 74

2—Blood sample processes generally

This clause set out what must be done in relation to a sample of blood by the medical practitioner who takes the sample and the analyst who analyses the sample. The clause is consistent with Schedule 2 clause 10 of the Rail Safety Act 2007 and Schedule 1 clause 2 of the Road Traffic Act 1961.

3—Blood tests by registered nurses

This clause enables blood samples to be taken by registered nurses outside Metropolitan Adelaide. This provision has been relocated from section 72B and is consistent with Schedule 2 clause 16 of the Rail Safety Act 2007 and Schedule 1 clause 3 of the Road Traffic Act 1961.

4—Police officer to be present when blood sample taken

This clause requires a police officer to be present when a blood sample is taken. This provision has been relocated from section 72 and is consistent with Schedule 1 clause 4 of the Road Traffic Act 1961.

5—Costs of blood tests under certain sections

This clause provides for the taking of a sample of blood under certain sections to be at the expense of the Crown. This clause is consistent with Schedule 2 clause 14 of the Rail Safety Act 2007 and Schedule 1 clause 5 of the Road Traffic Act 1961.

6—Provisions relating to medical practitioners etc

This clause includes provisions relocated from section 74 and is consistent with Schedule 2 clause 17 of the Rail Safety Act 2007 and Schedule 1 clause 6 of the Road Traffic Act 1961.

The provisions protect medical practitioners and registered nurses from liability for acts in good faith in compliance or purported compliance with the Act, and specify the circumstances in which a medical practitioner must not, or is not required, to take a blood sample.

The clause also makes it an offence for a medical practitioner to fail, without reasonable excuse, to comply with a provision of, or to perform any duty arising under, section 74 and prohibit the commencement of proceedings for such an offence without the authorisation of the Attorney-General.

Part 3—Processes relating to oral fluid samples under section 72

7—Oral fluid sample processes

This clause sets out what must be done in relation to a sample of oral fluid by the police officer who takes the sample and the analyst who analyses the sample. The requirements are consistent with those of Schedule 2 clause 11 of the Rail Safety Act 2007 and Schedule 1 clause 7 of the Road Traffic Act 1961.

Part 4—Other provisions relating to blood or oral fluid samples under Part 10 Division 4

8—Blood or oral fluid sample or results of analysis etc not to be used for other purposes

This clause limits the purposes for which a sample of blood or oral fluid taken under Part 10 Division 4 (and any other forensic material taken incidentally during a drug screening test, oral fluid analysis or blood test) may be used.

The clause limits the evidentiary use of the results of a drug screening test, oral fluid analysis or blood test under Part 10 Division 4 of the Act, an admission or statement made by a person relating to such a test or analysis, or any evidence taken in proceedings relating to such a test or analysis (or transcript of such evidence).

This clause is consistent with Schedule 1 clause 8 of the Road Traffic Act 1961.

9—Destruction of blood or oral fluid sample taken under Part 10 Division 4

This clause requires a sample of blood or oral fluid taken under Part 10 Division 4 (and any other forensic material taken incidentally during a drug screening test, oral fluid analysis or blood test) to be destroyed after a specified period.

This clause is consistent with Schedule 1 clause 9 of the Road Traffic Act 1961.

Part 3—Amendment of Motor Vehicles Act 1959

12—Amendment of section 5—Interpretation

This clause inserts a number of new definitions and relocates to section 5 existing definitions in other provisions of the Act.

13—Amendment of section 72A—Qualified supervising drivers

This clause removes definitions relocated to section 5.

14—Amendment of section 74—Duty to hold licence or learner's permit

This clause amends section 74 to make it an offence for a person to drive a motor vehicle on a road if the person has been disqualified from holding or obtaining a licence because of a conviction for drink driving offence and the person has not, since the end of the period of disqualification, been authorised to drive a motor vehicle. A maximum penalty of $5,000 or imprisonment for 1 year is prescribed.

15—Amendment of section 75A—Learner's permit

This clause amends section 75A to remove definitions relocated to section 5.

16—Insertion of section 79B

79B—Alcohol and drug dependency assessments and issue of licences

New section 79B provides that if an applicant for a licence has, during the period of 5 years immediately preceding the date of application, expiated or been convicted of 3 or more category 1 offences, 2 category 1 offences and 1 category offence, or 2 or more serious drink driving offences, the Registrar must, before determining the application, direct the applicant to attend an assessment clinic to submit to an examination to determine whether the applicant is dependent on alcohol.

The section also provides that if an applicant for a licence has, during the period of 5 years immediately preceding the date of application, expiated or been convicted of 2 or more drug driving offences, the Registrar must, before determining the application, direct the applicant to attend an assessment clinic to submit to an examination to determine whether the applicant is dependent on drugs.

If the Registrar is satisfied, on the basis of a report of a superintendent of an assessment clinic that the applicant is dependent on alcohol, the Registrar must refuse to issue a licence to the applicant until the applicant satisfies the Registrar that the applicant is no longer dependent on alcohol (unless the applicant is willing to accept a licence subject to the mandatory alcohol interlock scheme conditions, in which case the Registrar can issue such a licence to the applicant). If such a licence is issued, the mandatory alcohol interlock scheme conditions are effective until the holder of the licence satisfies the Registrar that the holder is no longer dependent on alcohol.

If the Registrar is satisfied, on the basis of a report of a superintendent of an assessment clinic that the applicant is dependent on drugs, the Registrar must refuse to issue a licence to the applicant until the applicant satisfies the Registrar that the applicant is no longer dependent on drugs.

17—Amendment of section 80—Ability or fitness to be granted or hold licence or permit

This clause amends section 80 to increase the maximum penalty for an offence of contravening a condition or restriction of a temporary driving permit from $250 to $1,250.

18—Amendment of section 81—Restricted licences and permits

This clause amends section 81 to ensure that there is a penalty for contravening a condition endorsed on a learner's permit under this section and to increase the maximum penalty for an offence of contravening a condition from $250 to $1,250.

19—Amendment of section 81A—Provisional licences

This clause removes definitions relocated to section 5.

20—Amendment of section 81AB—Probationary licences

This clause amends section 81AB to ensure that if a probationary licence is issued subject to alcohol interlock scheme conditions, the probationary conditions are effective for the same period as the alcohol interlock scheme conditions or 12 months (whichever is the longer). It also amends the section to ensure that if a probationary licence is issued after a person is disqualified for a serious drink driving offence the probationary conditions are effective for a period equal to the disqualification period or 3 years, whichever is the lesser. The clause also removes definitions relocated to section 5.

21—Amendment of section 81B—Consequences of holder of learner's permit, provisional licence or probationary licence contravening conditions etc

This clause amends section 81B to remove a definition and a provision relating to the period of disqualification that applies to a person who is given a notice of disqualification under subsection (2). The amendments are consequential on the repeal of Part 3 Division 5A of the Road Traffic Act 1961.

22—Amendment of section 81C—Disqualification for certain drink driving offences

This clause amends section 81C to require that offences against section 47BA(1) of the Road Traffic Act 1961 be taken into account in determining what is a first, second, third or subsequent offence for the purposes of section 81C.

23—Amendment of section 81D—Disqualification for certain drug driving offences

This clause amends section 81D to require that offences against section 47B of the Road Traffic Act 1961 be taken into account in determining what is a first, second, third or subsequent offence for the purposes of section 81D.

24—Insertion of sections 81E to 81H

Sections 81E to 81H establish a mandatory alcohol interlock scheme.

81E—Circumstances in which licence will be subject to mandatory alcohol interlock scheme conditions

Section 81E requires a licence issued to a person to be subject to the mandatory alcohol scheme conditions if the applicant has been disqualified on conviction for a serious drink driving offence committed on or after the commencement of the section and the person has not held a licence since the end of the period of disqualification. A serious drink driving offence is defined as any drink driving offence other than a category 1 offence or a first category 2 offence. The section specifies the period for which the mandatory alcohol interlock conditions are to be effective. It also provides that a licence will not be subject to such conditions if the applicant satisfies the Registrar that prescribed circumstances exist in the particular case.

81F—Mandatory alcohol interlock scheme conditions

Section 81F specifies the mandatory alcohol interlock scheme conditions. It also requires a person to nominate a motor vehicle for the person.

81G—Cessation of licence subject to mandatory alcohol interlock scheme conditions

Section 81G provides that if a person ceases to hold a licence subject to the mandatory alcohol interlock scheme conditions before the person qualifies for the issue of a licence not subject to such conditions, a licence subsequently issued to the person will be subject to the provisions until the person qualifies for a licence not subject to the mandatory alcohol interlock scheme conditions.

81H—Contravention of mandatory alcohol interlock scheme conditions

Section 81H makes it an offence for the holder of a licence subject to the mandatory alcohol interlock scheme conditions to contravene any of the conditions and specifies a maximum penalty of $2,500. It also makes it an offence for a person to assist the holder of such a licence to operate a motor vehicle, or interfere with an alcohol interlock, in contravention of the conditions. The maximum penalty for this offence is also $2,500. The section also contains a number of evidentiary provisions to assist in the prosecution of such offences.

25—Amendment of section 93—Notice to be given to Registrar

This clause amends section 93 to require the proper officer of a court that makes an order under section 47J(9) of the Road Traffic Act 1961 revoking a disqualification to notify the Registrar in writing of the date of the order, its nature and effect and short particulars of the grounds on which the order was made.

26—Insertion of Schedule 6

This clause inserts a new Schedule to continue in operation the current voluntary alcohol interlock scheme established by Part 3 Division 5A of the Road Traffic Act 1961.

Schedule 6—Transitional voluntary alcohol interlock scheme

1—Interpretation

This clause defines terms used in the Schedule.

2—Voluntary alcohol interlock scheme conditions to continue to apply to certain licences issued before commencement of Schedule

This clause provides that if a licence in force under the Act on the commencement of this Schedule is subject to the voluntary alcohol interlock scheme conditions, those conditions continue to be effective after that commencement for the balance of the required period unexpired on the commencement of this Schedule.

3—Voluntary alcohol interlock scheme conditions to apply to certain licences issued on or after commencement of Schedule

This clause provides that a person is entitled to the issue of a licence subject to the voluntary alcohol interlock scheme conditions for the required period if—

(a) —

(i) before the commencement of the Schedule, the person expiates a relevant drink driving offence to which section 81C applies and is given a notice of disqualification under that section stating that, despite the disqualification imposed for that offence, the person will, on application made to the Registrar at any time after the half-way point in the period of disqualification, be entitled to be issued with a licence subject to the alcohol interlock scheme conditions; or

(ii) before the commencement of the Schedule, the person is convicted of a relevant drink driving offence and disqualified by order of a court and the court also makes an order against the person under section 51 of the Road Traffic Act 1961 to the effect that, despite the disqualification imposed for that offence, the person will, on application made to the Registrar at any time after the half-way point in the period of disqualification, be entitled to be issued with a licence that is subject to the alcohol interlock scheme conditions; or

(iii) before the commencement of the Schedule, the person commits or allegedly commits a relevant drink driving offence and in consequence of the commission or alleged commission of that offence, the person is, after the commencement of this Schedule, disqualified for a period of at least 6 months; and

(b) after the half-way point in the period of disqualification and within the period of 5 years after the commencement of this Schedule, the person applies for a licence subject to the alcohol interlock scheme conditions; and

(c) the person meets the requirements of this Act for the issue of the licence; and

(d) no disqualification (other than the disqualification for the offence referred to in paragraph (a)) is in force at the date of the application or will commence at a later date.

4—Period for which licence is required to be subject to voluntary alcohol interlock scheme conditions

This clause provides that the required period for which a licence is subject to the voluntary alcohol interlock scheme conditions is a number of days equal to twice the number of days remaining in the period of the person's disqualification for the relevant drink driving offence immediately before the issuing of the licence.

5—Voluntary alcohol interlock scheme conditions

This clause specifies the voluntary alcohol interlock scheme conditions. It also requires a person to nominate a motor vehicle for the person.

6—Cessation of licence subject to voluntary alcohol interlock scheme conditions

This clause provides that if a person—

(a) voluntarily surrenders a licence subject to the voluntary alcohol interlock scheme conditions; or

(b) ceases to hold such a licence for another reason (other than cancellation of the licence in consequence of the person being convicted of a serious drink driving offence),

before the conditions have applied in relation to the person for the required period, the person is, from the day on which the person surrenders or ceases to hold the licence, disqualified from holding or obtaining a licence or learner's permit for a period equal to the number of days remaining in the period of the person's disqualification for the relevant drink driving offence immediately before the issuing of the licence.

7—Contravention of voluntary alcohol interlock scheme conditions

This clause makes it an offence for the holder of a licence subject to the voluntary alcohol interlock scheme conditions to contravene any of the conditions and fixes a maximum penalty of $1,250.

It also makes it an offence for a person to assist the holder of a licence subject to the voluntary alcohol interlock scheme conditions to operate a motor vehicle, or interfere with an alcohol interlock, in contravention of any of the conditions and fixes a maximum penalty of $1,250. A court convicting a person of such an offence may order that the person be disqualified from holding or obtaining a licence or learner's permit for a period not exceeding 6 months.

The clause contains a number of evidentiary provisions necessary to assist in the prosecution of offences against the clause.

8—Financial assistance for us of alcohol interlocks

This clause provides for the financial assistance scheme established under section 53AA of the Road Traffic Act 1961 to continue in operation after the repeal of that section to enable persons entitled to the issue of a licence subject to the voluntary alcohol interlock scheme to obtain means tested loans or other assistance.

9—Fees

This clause requires the holder of a licence subject to the voluntary alcohol interlock scheme conditions to pay the fees prescribed by regulation.

Part 4—Amendment of Rail Safety Act 2007

27—Amendment of Schedule 2—Provisions relating to alcohol and other drug testing

This clause amends Schedule 2 to enable blood and oral fluid samples to be transported by couriers approved by the Minister. It also makes an amendment to ensure that an authorised person is not required to facilitate an oral fluid analysis if a person who refuses or fails to have a blood test on the ground of a medical or physical condition has already refused or failed to submit to an oral fluid analysis on such grounds or has been unable to produce sufficient oral fluid for an oral fluid analysis to be performed.

Part 5—Amendment of Road Traffic Act 1961

28—Amendment of section 5—Interpretation

This clause amends section 5 to define the terms drink driving offence and drug driving offence.

29—Amendment of section 47—Driving under influence

This clause amends section 47 to require that offences against section 47BA(1) be taken into account in determining what is a first or subsequent offence for the purposes of section 47.

30—Amendment of section 47A—Interpretation

This clause amends section 47A by altering the definition of prescribed circumstances so that a requirement to submit to an alcotest, breath analysis or drug screening test under section 47E or 47EAA, or a direction to stop a vehicle for the purpose of making such a requirement, is made or given in prescribed circumstances (ie, not in the exercise of random testing powers) if it is made or given up to 8 hours after a person has—

(a) committed an offence of a prescribed class; or

(b) behaved in a manner that indicates that his or her ability to drive a motor vehicle is impaired; or

(c) been involved as a driver in an accident.

Currently such a requirement or direction is made or given in prescribed circumstances if it is made or given up to 2 hours or, in relation to a drug screening test, 3 hours, after a person has done any of those things.

31—Amendment of section 47B—Driving while having prescribed concentration of alcohol in blood

This clause amends section 47B to require a court that convicts a person of a first offence against the section that is a category 1 offence to order that the person be disqualified from holding or obtaining a licence or learner's permit for at least 3 months. Section 47B(1) makes it an offence for a person to drive a motor vehicle, or attempt to put a motor vehicle in motion, while the person has present in his or her blood the prescribed concentration of alcohol.

The clause also amends the section to require that offences against section 47BA(1) be taken into account in determining what is a first, second, third or subsequent offence for the purposes of section 47B.

32—Amendment of section 47BA—Driving with prescribed drug in oral fluid or blood

This clause amends section 47BA to require a court that convicts a person of a first offence against the section to order that the person be disqualified from holding or obtaining a licence or learner's permit for at least 3 months.

The clause also amends the section to require that offences against section 47B(1) be taken into account in determining what is a first, second, third or subsequent offence for the purposes of section 47BA.

33—Amendment of section 47E—Police may require alcotest or breath analysis

This clause amends section 47E to require that offences against section 47BA(1) be taken into account in determining what is a first or subsequent offence for the purposes of section 47E.

34—Amendment of section 47EAA—Police may require drug screening test, oral fluid analysis and blood test

This clause amends section 47EAA by inserting a provision that empowers a police officer to require a person to submit to a blood test if the person is unable to produce sufficient oral fluid for a sample of oral fluid to be taken. It also makes an amendment to ensure that a police officer is not required to facilitate an oral fluid analysis if a person who refuses or fails to have a blood test on the ground of a medical or physical condition has already refused or failed to submit to an oral fluid analysis on such grounds or has been unable to produce sufficient oral fluid for an oral fluid analysis to be performed.

35—Amendment of section 47I—Compulsory blood tests

This clause amends section 47I to lower the age from 14 to 10 for the compulsory blood testing of persons injured in motor vehicle accidents who attend at or are admitted to a hospital or are dead on arrival at a hospital. It also amends the section so that all previous drink driving or drug driving offences are taken into account in determining what is a first or subsequent offence for the purposes of the section.

36—Amendment of section 47IAA—Power of police to impose immediate licence disqualification or suspension

This clause amends section 47IAA to enable a police officer to issue a notice of immediate licence disqualification or suspension to a person who the police officer believes has committed an offence against section 47EAA(9).

37—Amendment of section 47J—Recurrent offenders

This clause amends section 47J so that it applies only to persons convicted of prescribed offences committed before the prescribed day. It also updates the language of the section.

38—Amendment of section 47K—Evidence

This clause amends section 47J to include an evidentiary provision which enables proof of matters relating to oral fluid analyses and drug screening tests to be given by certificate.

39—Repeal of Part 3 Division 5A

This clause repeals sections 48 to 53AA of the Act which established the alcohol interlock scheme.

40—Amendment of Schedule 1—Oral fluid and blood sample processes

This clause amends Schedule 1 to allow oral fluid and blood samples to be transported by couriers approved by the Commissioner of Police. It also makes a minor technical amendment to clause 9 to ensure that forensic material taken during a drug screening test, oral fluid analysis or blood is required to be destroyed if proceedings for an offence against the Motor Vehicles Act 1959 or a driving-related offence under some other law (such as the Criminal Law Consolidation Act 1935) are not commenced within the period allowed.

Debate adjourned on motion of Mr Williams.

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