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Legislative Council - Fifty-First Parliament, Third Session (51-3)
2008-11-12 Daily Xml
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STATUTES AMENDMENT (TRANSPORT PORTFOLIO—ALCOHOL AND DRUGS) BILL

Introduction and First Reading

The Hon. CARMEL ZOLLO (Minister for Correctional Services, Minister for Road Safety, Minister for Gambling, Minister Assisting the Minister for Multicultural Affairs) (00:50): Obtained leave and introduced a bill for an act to amend the Harbors and Navigation Act 1993, the Motor Vehicles Act 1959, the Rail Safety Act 2007 and the Road Traffic Act 1961. Read a first time.

Second Reading

The Hon. CARMEL ZOLLO (Minister for Correctional Services, Minister for Road Safety, Minister for Gambling, Minister Assisting the Minister for Multicultural Affairs) (00:52): I move:

That this bill be now read a second time.

This bill is further evidence of the government's commitment to improve road safety and provides additional tools to keep off our roads people who drink or take drugs and drive. The bill combines two initiatives: introducing a mandatory alcohol interlock scheme and implementing the government's response to the review of the first year of operation of the Road Traffic (Drug Driving) Amendment Act 2005. The bill is necessary because, despite the raft of measures introduced over previous years to deter drink and drug driving behaviour, people continue to drink or take drugs (or both) and drive. Crash data shows that:

the percentage of drivers and riders killed with a blood alcohol concentration (BAC) above the legal limit has increased from a low of 22 per cent in 1998 to an average of 33 per cent in the last five years, 2003 to 2007;

on average, over the period 2003 to 2007 64 per cent of all driver and rider fatalities above the limit had a BAC greater than 0.15;

on average, over the five-year period 2003 to 2007, 40 per cent of drivers and/or riders deemed responsible for an alcohol-related fatal crash had previously been detected committing a drink driving offence on at least one prior occasion;

on average, between 2003 and 2007, 24 per cent of drivers or riders killed in South Australia tested positive for THC (the active ingredient in cannabis), methylamphetamine ('speed') or MDMA ('ecstasy'), or a combination of these.

In relation to drug driving reforms, on 1 July 2006 the Road Traffic (Drug Driving) Amendment Act 2005 (the amendment act) came into operation. It gave effect to the South Australian government's commitment to take strong measures against individuals who choose to use illegal drugs and then drive. The amendment act empowers South Australia Police (SAPOL) to conduct roadside saliva testing for the prescribed drugs of THC, methylamphetamine and MDMA.

The amendment act required the legislation to be reviewed after the first year of operation and a report to be laid before both houses of parliament. The review report indicated that the operation of the act had been effective. The report suggested a number of improvements to the drug driving provisions, some of which involve amendments to the drink driving provisions. The government has already implemented several important initiatives not requiring amendments to the principal legislation. These include the increases in expiation fees and demerit points for drink and drug driving offences that came into operation on 1 July 2008, and the testing of all drivers' and riders' blood samples for prescribed drugs, which also commenced as of 1 July 2008.

While most of the amendments are minor changes to improve the efficiency of the provisions, those of particular note are:

introducing a three-month licence disqualification for the first conviction by a court of driving with a prescribed drug present in the driver's oral fluid or blood, with a similar change for a category 1 BAC offence. The Road Traffic Act 1961 provides that a first offence must be dealt with in the first instance by the issue of an expiation notice. This means that a driver gets one chance to avoid disqualification. If detected again within a prescribed number of years, the offence will be prosecuted and, if successful, the driver disqualified for three months. As a result, the disqualification periods for second, third and subsequent category 1 offences have been increased to six, nine and 12 months to provide for appropriately escalating penalties;

counting prior alcohol-related driving offences in the determination of whether a drug driving offence is a 'subsequent' offence and vice versa;

lowering the age of all people attending or admitted to a hospital as a result of a vessel or motor vehicle accident from whom a blood sample must be taken under section 74 of the Harbors and Navigation Act 1993 or section 47I of the Road Traffic Act 1961, from over 14 to over 10 years of age;

requiring a drug dependency assessment in cases where a person has a second drug offence within a five year period and, if dependent, have the licence cancelled until further assessment indicates the person is no longer dependent;

enabling SAPOL to test vessel operators for prescribed drugs. At the same time, the alcohol testing provisions of the Harbors and Navigation Act 1993 are brought closely into line with the provisions of the Road Traffic Act 1961 to aid consistency in administration and legal interpretation;

providing for the transport of oral fluid and blood samples by an approved agent of SAPOL;

introducing immediate loss of licence for a period of six months as a penalty for the offence of refusing or failing to submit to a drug test;

enabling a police officer, under section 47EAA2(b) of the Road Traffic Act 1961, to require a person to submit to a blood test in the event that the oral fluid (saliva) analysis commences but is unable to be completed;

including in section 47K of the Road Traffic Act 1961 evidentiary provisions to support drug screening tests in addition to oral fluid analysis.

In relation to the mandatory alcohol interlock scheme, in October 2001, South Australia became the first Australian state to introduce a voluntary alcohol interlock scheme for serious drink-drive offenders. Alcohol interlocks are fitted to vehicles to prevent them being started if the driver provides a breath sample with a reading that exceeds a designated breath alcohol concentration. This is usually a zero concentration of alcohol.

The Road Safety Advisory Council recommended that the interlock scheme be made mandatory for serious and repeat drink driving offenders.

Given the unacceptably high percentage of drink drivers involved in fatalities, the government believes that further strong measures are needed to deter people from drinking and driving. This bill does just that. It provides that, in future, drivers convicted of a serious drink driving offence will have to serve the full period of court-imposed licence disqualification and then have an alcohol interlock device installed for the same length of time as the disqualification period, up to a maximum of 3 years, before being eligible to apply for a driver’s licence without alcohol interlock scheme conditions.

A serious drink driving offence is defined in the bill as—

a second or subsequent BAC offence at or above 0.08 (category 2 BAC) within five years;

driving with BAC at or above 0.15 (category 3 BAC);

driving under the influence of intoxicating liquor (DUI-alcohol); or

refusing or failing to provide a sample of breath or blood for the purposes of alcohol testing.

At the end of the court-imposed disqualification period, the person will be able to apply for a licence subject to alcohol interlock conditions provided there is no other barrier to the issue of the licence (such as another impending disqualification period). However, any licence issued will include conditions that the person must only drive a nominated vehicle and that that vehicle must be fitted with an alcohol interlock. It will be a serious offence for a person to drive a vehicle that is not fitted with an alcohol interlock device in breach of their licence conditions.

To ensure that the licence holder has demonstrated an ability to separate drinking from driving, the last three months on a licence subject to alcohol interlock scheme conditions will have to be completed without certain interlock violations, as distinct from breaches of alcohol interlock scheme conditions. Interlock violations will be of a kind specified by notice in the Gazette and will be, for example, a second blood alcohol reading of 0.05 or more. A breach of alcohol interlock scheme conditions will attract a fine of up to $2,500. These conditions are similar to those currently applicable to the voluntary alcohol interlock scheme, including—

a condition that the holder of the licence must only drive a nominated vehicle that is fitted with an alcohol interlock installed by an approved provider;

a condition that the holder of the licence must operate the device in accordance with instructions published by the minister in the Gazette;

a condition that the holder of the licence must not interfere or tamper with the alcohol interlock, or allow another person to do so;

a condition that the holder of the licence must present the vehicle to an approved provider for the purpose of having the functioning of alcohol interlock examined;

a condition that the holder of the licence must only drive the nominated vehicle if the alcohol interlock is properly functioning.

It will be a condition of regaining an unconditional (full) driver's licence that the driver has an interlock device fitted for the required time. It is expected that some drivers will never seek restoration of their licence and never drive again; some may attempt to avoid this system by driving illegally.

It is proposed that the penalty for driving unlicensed and not having served the required period on the mandatory alcohol interlock scheme (MIS) will be the same as that which applies to where a person who has never held a licence commits a second offence of driving without a licence—that is, a maximum penalty of $5,000 or imprisonment for one year and disqualification from holding or obtaining a licence for not less than three years.

The MIS is an administrative rather than a judicial scheme. Together with the proposal to discontinue the current court-based approach to repeat drink drivers under section 47J of the Road Traffic Act 1961 described below, the MIS is expected to free court time for other serious matters that require a court's attention.

Similarly, as far as possible, the day-to-day management of the MIS will be undertaken by interlock providers. This will build on the current approach with the VIS. The providers will install, maintain and monitor the devices, regularly report on the use to the Department for Transport, Energy and Infrastructure, and administer the concession scheme.

The fundamental principles underlying the costs associated with the mandatory alcohol interlock scheme include—

that the proposal is intended to be cost neutral for the government over the longer term;

that participants in the scheme will meet all costs; and

that a flexible payment system will mean that the more affluent participants will subsidise the costs for those on low incomes.

Provider costs for low income participants will be reduced by 35 per cent.

In relation to the discontinuation of current voluntary alcohol interlock scheme, there are a number of people who will be affected by these changes because they are already on the voluntary interlock scheme or committed offences before the mandatory interlock scheme commences but are not dealt with by the courts until after the commencement date. These people will be entitled to be dealt with under the law as it stood at the time of their offending. The bill inserts transitional provisions in the Motor Vehicles Act 1959 to maintain the rights of these people.

However, to provide a certain end date for the voluntary interlock scheme, it is proposed that any person who has a right to enter the voluntary interlock scheme but has not done so by the fifth anniversary of the commencement of the mandatory interlock scheme will forfeit the right to participate in the voluntary interlock scheme and will have to serve out their disqualification in full.

If a person on the voluntary interlock scheme voluntarily surrenders their licence or ceases to hold a licence for another reason, for example through disqualification, they will not be able to return to the voluntary interlock scheme and will have to serve out the remainder of their disqualification, with no reduction for any time spent on the voluntary interlock scheme, before they can regain their licence.

In relation to section 47J of the Road Traffic Act (repeat offenders), the mandatory alcohol interlock scheme will render the existing repeat offender provisions of the Road Traffic Act 1961 redundant. Currently, a repeat offender who is convicted must have an alcohol and drugs dependency assessment before being sentenced but can continue to drive until the matter is again considered by the court. If the offender is found to be alcohol or drug dependent, they are disqualified from holding or obtaining a licence until a further assessment indicates this has changed.

Delays in assessments mean the disqualification that should result from the drink-driving offence is delayed for many months. The delay in dealing with the matter, both in terms of assessment and being dealt with by the court, reduces the perception of seriousness for offenders. It is also contrary to worldwide research which suggests that, to be effective, punishment should closely follow offending. In addition, the process involves repeated court appearances. The magistracy has indicated a preference for an administrative scheme.

The bill amends section 47J of the Road Traffic Act to prevent further entry into the system. It is not appropriate to repeal the section at this time as those who will be subject to a 47J order at the commencement of the amendments will need to be accommodated. Existing eligible drivers and those already subject to court orders under this section will continue to be dealt with according to the scheme, but new offenders will be dealt with under the mandatory interlock scheme. Legal advice suggests that this is the neatest transitional arrangement available, until such time as there are no further 47J orders and the section may be repealed.

In relation to compulsory drug and alcohol dependency assessments, currently, under section 80 of the Motor Vehicles Act 1959, the Registrar of Motor Vehicles has the power to require drivers to have medical tests to assess their fitness to drive. Repeat drink drive offenders outside the Adelaide metropolitan area and drivers who are referred by a medical practitioner are dealt with in this way.

The Registrar's current practice, reinforced by national guidelines, is to not issue a licence to a person who is assessed as dependent on alcohol or drugs, and to only issue a licence subject to alcohol interlock scheme conditions to a person who is alcohol dependent. The driver must present evidence that they are no longer dependent before they can be issued with a licence. This practice will continue.

In part to replace the section 47J requirement for alcohol dependency assessments for repeat drink drivers, and in part to ensure that drivers who appear from their offence history to be dependent on alcohol or drugs are assessed, the bill provides that the Registrar must require a dependency assessment if, within five years of applying for a licence, a person commits or expiates:

a second serious drink driving offence; or

three category 1 BAC or two category 1 offences and one category 2 offence; or

two or more drug driving offences.

These patterns of behaviour demonstrate a potentially serious alcohol or drug problem that must be addressed before that person can be issued with a driver's licence. This provision removes the Registrar's discretion regarding assessments and formalises his current practice regarding issuing licences where dependency is shown in relation to these offences. The Registrar's powers to require drivers to have medical tests to assess their fitness to drive under section 80 will continue and may be applied in other circumstances involving alcohol or drugs.

At the same time, the maximum penalties under section 80 for contravention of a condition of a temporary driving permit and section 81 for contravention of a condition of a restricted licence or learner's permit, which are currently $250, are increased to $1,250 to match the maximum penalty for contravention of a condition of a learner's permit or provisional or probationary licence. An omission in section 81 has been identified. The section applies to both learners' permits and licences, but the penalty provision only applies to licences, meaning that there is no penalty for breach of a condition of a restricted learner's permit. The bill corrects this omission.

This bill will improve the operation of the existing drug driving provisions of the legislation, and introduce a scheme to ensure that serious drink drivers cannot drink and drive. I am sure we would all agree that these measures will improve road safety in South Australia. As announced in a media release yesterday, the government will not be introducing mandatory carriage of licence, as feedback received overwhelmingly indicated to us that there was concern that people could be penalised for being forgetful.

I commend the bill to the council. I seek leave to have the explanation of clauses incorporated 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 Hon. J.S.L. Dawkins.


At 01:10 the council adjourned until Thursday 13 November 2008 at 11:00.


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