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This is a Bill, not an Act. For current law, see the Acts databases.
ROAD TRANSPORT (ALCOHOL AND DRUGS) (RANDOM DRUG TESTING) AMENDMENT BILL 2008
2008
THE LEGISLATIVE ASSEMBLY
FOR THE AUSTRALIAN CAPITAL
TERRITORY
(As presented)
(Mr Steve Pratt)
Road
Transport (Alcohol and Drugs) (Random Drug Testing) Amendment Bill
2008
Contents
Page
2008
THE LEGISLATIVE ASSEMBLY
FOR THE AUSTRALIAN CAPITAL
TERRITORY
(As presented)
(Mr Steve Pratt)
Road Transport
(Alcohol and Drugs) (Random Drug Testing) Amendment Bill
2008
A Bill for
An Act to amend the
Road Transport (Alcohol and
Drugs) Act 1977
The Legislative Assembly for the Australian Capital Territory enacts as
follows:
This Act is the Road Transport (Alcohol and Drugs) (Random Drug Testing)
Amendment Act 2008.
This Act commences on a day fixed by the Minister by written
notice.
Note 1 The naming and commencement provisions automatically commence
on the notification day (see Legislation Act, s 75 (1)).
Note 2 A single day or time may be fixed, or different days or times
may be fixed, for the commencement of different provisions (see Legislation Act,
s 77 (1)).
Note 3 If a provision has not commenced within 6 months beginning on
the notification day, it automatically commences on the first day after that
period (see Legislation Act, s 79).
This Act amends the Road Transport (Alcohol and Drugs) Act
1977.
4 Offences
against Act—application of Criminal Code
etcSection 4, note 1, new dot
points
insert
• s 20 (Driving while impaired by drug or blood drug
concentration exceeded)
• s 22A (Refusing to provide oral fluid sample)
• s 22B (Refusing to undergo drug assessment)
substitute
5 Approval of screening devices
(1) The Minister may approve a device for this subsection (an
approved alcohol screening device) if the Minister considers that
the device—
(a) is designed and made to indicate, when a sample of the breath of a
person is exhaled into the device, whether alcohol is present in the
person’s blood and, if so, to give an indication of the concentration of
alcohol in the person’s blood; and
(b) is suitable for use in screening tests under part 2.
(2) The Minister may approve a device for this subsection (an
approved drug screening device) if the Minister considers that the
instrument—
(a) is designed and made to indicate, when a sample of oral fluid of a
person is collected in the device by the person chewing or sucking on it (or a
particular part of it), whether a drug is present in the person’s oral
fluid and, if so, to give an indication of the concentration of the drug in the
person’s oral fluid; and
(b) is suitable for use in screening tests under part 2.
(3) An approval under this section is a notifiable instrument.
Note A notifiable instrument must be notified under the Legislation
Act.
5A Approval of analysis
instruments
(1) The Minister may approve an instrument for this subsection (an
approved breath analysis instrument) if the Minister considers
that the instrument—
(a) is designed and made to ascertain the concentration of alcohol present
in a sample of a person’s breath and can record the concentration in grams
per 100mL of blood; and
(b) is suitable for use in analysis under part 2.
(2) The Minister may approve an instrument for this subsection (an
approved oral fluid analysis instrument) if the Minister considers
that the instrument—
(a) is designed and made to ascertain the presence of a drug in a sample
of the person’s oral fluid and can record the concentration whether by a
particular figure, level or percentage; and
(b) is suitable for use in analysis under part 2.
(3) An approval under this section is a notifiable instrument.
Note A notifiable instrument must be notified under the Legislation
Act.
6 Approval
of operators, analysts and laboratoriesNew
section 6 (1A)
insert
(1A) The chief police officer may authorise a police officer to carry out
oral fluid analyses if the officer has—
(a) undergone a course approved by the Minister as a course for the
instruction of police officers in the carrying out of oral fluid analyses;
and
(b) completed the course to the satisfaction of the chief police
officer.
substitute
11 Detention for breath or oral fluid
analysis
(1) This section applies if—
(a) a person undergoes a screening test under a requirement made by a
police officer under section 8, section 9 or section 10 and an approved alcohol
screening device indicates to the police officer—
(i) that the concentration of alcohol in the person’s blood is at
least the prescribed concentration; or
(ii) for a person the police officer has reasonable grounds to believe is
a special driver—that the concentration of alcohol in the person’s
blood is at least 0.02g of alcohol per 100mL of blood; or
(b) a person undergoes a screening test under a requirement made by a
police officer under section 8, section 9 or section 10 and an approved drug
screening device indicates to the police officer that—
(i) a drug for which there is a prescribed concentration is present in the
person’s oral fluid and the concentration of the drug is at least the
prescribed concentration; or
(ii) a drug for which there is no prescribed concentration is present in
the person’s oral fluid; or
(c) a person who has been required by a police officer under section 8,
section 9 or section 10 to undergo a screening test refuses to undergo the
screening test; or
(d) a person who has been required by a police officer under section 8,
section 9 or section 10 to undergo a screening test fails to undergo the
screening test in accordance with the direction of the police officer.
(2) The police officer may take the person into custody.
(3) If the person is taken into custody, a police officer must take the
person, as soon as practicable, to a police station or another convenient place
to carry out a breath analysis, an oral fluid analysis or both for the person.
(4) In this section:
prescribed concentration, of a drug means—
(a) for a prescribed illicit drug—any concentration of the drug
present in the blood or oral fluid of a person; and
(b) for any other drug—the concentration prescribed by regulation.
prescribed illicit drug means—
(a) methylamphetamine; or
(b) delta-9-tetrahydrocannabinol; or
(c) any other drug prescribed by regulation.
12 Breath or oral fluid analysis
(1) A person who has been taken into custody under section 11 must give,
in accordance with the reasonable directions of a police officer, either or both
of the following (as directed by the police officer):
(a) a sample of the person’s breath;
(b) a sample of the person’s oral fluid.
(2) An analysis of breath must be carried out by an approved operator
using an approved breath analysis instrument.
(3) An analysis of oral fluid must be carried out by an approved operator
using an approved oral fluid analysis instrument.
(4) A regulation may make provision about—
(a) the procedures to be followed by an approved operator immediately
before, during, and immediately after, carrying out a breath analysis or oral
fluid analysis; and
(b) the conditions that must exist for the use of a particular approved
analysis instrument; and
(c) the conditions during which a particular approved analysis instrument
must not be used; and
(d) the results that must be obtained from procedures to be followed
immediately after carrying out a breath or oral fluid analysis and without which
the analysis must be disregarded for this Act.
(5) If, because of a regulation made for subsection (4) (d), an analysis
must be disregarded in relation to a person, a police officer may require the
person to give, in accordance with the reasonable directions of the officer,
another sample of the person’s breath or oral fluid for analysis using
another approved analysis instrument.
(6) As soon as practicable after the analysis has been carried out, the
approved operator who carried out the analysis must give the person a statement,
signed by the operator, containing the particulars required by
regulation.
insert
12A Assessment of drug
impairment
(1) This section applies to a person if any 1 or more of the following
paragraphs applies to the person:
(a) the person is the driver of a motor vehicle on a public street or in a
public place;
(b) a police officer has reasonable cause to suspect that the person was
the driver of a motor vehicle on a public street or in a public place;
(c) a motor vehicle is involved in an accident on a public street
and—
(i) a police officer has reasonable cause to suspect that the person was
the driver of the motor vehicle at the time of the accident; or
(ii) a police officer has reasonable cause to suspect that the person was
in the vehicle at the time of the accident, but the police officer does not know
or has doubt about who was the driver of the vehicle at the time of the
accident;
(d) a police officer has reasonable cause to suspect that the person has
committed an offence of culpable driving;
(e) the person has been required to undergo a screening test under section
8, section 9 or section 10;
(f) the person has been required to give a breath or oral fluid sample
under section 12.
(2) If a police officer has reasonable cause to suspect that the
person’s behaviour or appearance indicates that the person may be impaired
for a reason other than alcohol alone, the police officer may require the person
to undergo an assessment of drug impairment.
(3) For the purpose of requiring someone to undergo an assessment of drug
impairment, a police officer may take the person into custody.
(4) If the person is taken into custody, a police officer must take the
person, as soon as practicable, to a police station or another convenient place
to carry out the assessment.
(5) The person must undergo an assessment of drug impairment in accordance
with the reasonable directions of a police officer.
(6) An assessment of drug impairment must be carried out—
(a) by a police officer authorised by the chief police officer to carry
out assessments of drug impairment; and
(b) in accordance with the procedure prescribed by regulation;
and
(c) unless a particular time is prescribed by regulation, within the
reasonable time needed to carry out the assessment.
(7) The carrying out of an assessment of drug impairment must be
videorecorded unless the prosecution satisfies the court that it was not
practicable in the circumstances to make a video recording.
(8) If a person who undergoes an assessment of drug impairment is
subsequently charged with an offence against section 20, a copy of the video
recording (if any) must be served with the summons or, if a summons is not
issued, not later than 7 days after the day the person is charged with the
offence.
9 Precautions
for privacySection 13
omit
breath analysis
substitute
breath or oral fluid analysis
substitute
14 Restrictions on screening tests and breath and
oral fluid analyses
omit everything before paragraph (a), substitute
(1) A police officer must not require a person to undergo a screening test
under section 8, section 9 or section 10, to provide a sample of the
person’s breath or oral fluid for analysis under section 12, or to undergo
an assessment of drug impairment under section 12A, and a police officer must
not begin or continue the analysis under section 12 or the assessment under
section 12A—
omit everything before paragraph (a), substitute
(3) A police officer must not require a person to undergo a screening test
under section 8, section 9 or section 10, to provide a sample of the
person’s breath or oral fluid for analysis under section 12, or to undergo
an assessment of drug impairment under section 12A—
substitute
(a) if it appears to the police officer that it may, because of injury
suffered by the person or otherwise, be dangerous or not practicable for the
person to undergo the screening test, to provide the sample or to undergo the
assessment; or
14 Taking
blood samples from people in custodySection
15 (1) (a) and (b)
substitute
(a) a police officer does not, because of section 14 (3) (a) or (b)
require a person to undergo a screening test, to provide a sample of breath or
oral fluid for analysis or to undergo an assessment of drug impairment;
or
(b) because the analysis instrument available is not in working order or
an approved analysis instrument is not available, it is not practicable to carry
out the breath or oral fluid analysis; or
(c) because it is not practicable to carry out the assessment of drug
impairment;
15 Analysis
of blood samplesSection 15A
(1)
substitute
(1) If only 1 sealed container of a particular person’s blood that
has been taken under section 15 or section 15AA has been put in a one-way box
for collection by an approved analyst, the analyst must analyse the blood to
ascertain—
(a) the concentration of alcohol in the blood; and
(b) if asked by a police officer to do so—the concentration of drugs
in the blood.
substitute
(a) analyse the blood in 1 of the containers to ascertain—
(i) the concentration of alcohol in the blood; and
(ii) if asked by a police officer to do so—the concentration of
drugs in the blood; and
17 Section
15A (3) and (4)
omit
18 Medical
examinationsSection 16 (1) (a)
(i)
substitute
(i) has been required to undergo a screening test, to provide a sample of
his or her breath or oral fluid for analysis or to undergo an assessment of drug
impairment; and
19 Protection
of police officers and medical staffSection
18 (3) (a)
substitute
(a) if the sample of the person’s breath or oral fluid has been
analysed—the time when the approved operator gives the person the written
statement mentioned in section 12 (6); or
substitute
(c) if the person is required to undergo an assessment of drug
impairment—the period mentioned in section 12A (6) (c) ends; and
(d) the end of whichever of the periods mentioned in section 14 (1)
applies in relation to the person.
insert
20 Driving while impaired by drug or blood drug
concentration exceeded
(1) A person commits an offence if the person—
(a) drives a motor vehicle on a public street or in a public place;
and
(b) is impaired by a drug.
Maximum penalty:
(a) for an offence by a first offender—10 penalty units;
and
(b) for an offence by a repeat offender—25 penalty units,
imprisonment for 3 months or both.
(2) A person commits an offence if the person—
(a) has been the driver of a motor vehicle on a public street or in a
public place; and
(b) has, within the relevant period, a concentration of drugs in the
person’s blood equal to or more than the prescribed
concentration.
Maximum penalty:
(a) for an offence by a first offender—5 penalty units;
and
(b) for an offence by a repeat offender—25 penalty units,
imprisonment for 3 months or both.
(3) In this section:
relevant period means the period beginning when the person
stopped being the driver of the vehicle and ending at the latest time
when—
(a) a breath or oral fluid analysis of the person may be carried out under
this Act; or
(b) if section 15 (Taking blood samples from people in custody) or section
15AA (Taking blood samples from people in hospital) applies—a sample of
the person’s blood may be taken under that section.
insert
22A Refusing to provide oral fluid
sample
(1) This section applies to a person who—
(a) has been the driver of a motor vehicle on a public street or in a
public place; and
(b) has, in accordance with this Act, been required to provide a sample of
oral fluid for analysis.
(2) The person commits an offence if—
(a) the person refuses to provide a sample of oral fluid for analysis;
or
(b) the person fails to provide a sample of oral fluid in accordance with
reasonable directions of a police officer.
Maximum penalty: 30 penalty units.
22B Refusing to undergo drug
assessment
(1) This section applies to a person who—
(a) has been the driver of a motor vehicle on a public street or in a
public place; and
(b) has, in accordance with this Act, been required to undergo a drug
assessment.
(2) The person commits an offence if—
(a) the person refuses to undergo a drug assessment; or
(b) the person fails to undergo a drug assessment in accordance with
reasonable directions of a police officer.
Maximum penalty: 30 penalty units.
substitute
27 Imprisonment—s 22, s 22A, s 22B, s 23 and s
24 offences
substitute
(a) a person is convicted of an offence against any of the following
provisions:
• section 22 (Refusing to provide breath sample);
• section 22A (Refusing to provide oral fluid sample);
• section 22B (Refusing to undergo drug assessment);
• section 23 (Refusing blood test etc);
• section 24 (Driving under the influence of intoxicating liquor or a
drug); and
25 Certificate
of evidenceNew section 41 (1)
(ab)
insert
(ab) a certificate purporting to be signed by a police officer and
stating—
(i) that the police officer was on a date stated in the certificate an
approved operator; and
(ii) that, at a place and at a time and on a date stated in the
certificate, a person named in the certificate was required by a stated police
officer to provide a sample of the person’s oral fluid for analysis by an
approved oral fluid analysis instrument; and
(iii) the instrument used in the analysis, by reference to its model
number, patent number and serial number; and
(iv) that the approved oral fluid analysis instrument was in proper
working order; and
(v) the procedures followed and precautions taken immediately before the
breath analysis, during the breath analysis and immediately after the completion
of the breath analysis; and
(vi) that the person named in the certificate provided a sample of the
person’s oral fluid for analysis in accordance with the directions of the
police officer who made the requirement; and
(vii) the steps that were taken to ensure that it was not readily apparent
to members of the public that the oral fluid analysis was being carried out;
and
(viii) that, in following the procedures for which a regulation makes
provision that stated results are to be obtained, the results stated in the
certificate were obtained; and
(ix) that the result recorded or shown by the instruments as the result of
the analysis was a particular figure, level or percentage or was not less than
and not more than a particular figure, level or percentage; and
(x) that, as soon as practicable after the oral fluid analysis was carried
out, the police officer signed and gave to the person mentioned in subparagraph
(ii) the statement required by section 12 (6);
is evidence of the matters stated in the certificate; and
26 New
section 41 (1) (ba)
insert
(ba) a certificate purporting to be signed by a police officer and
stating—
(i) that the police officer was on a date stated in the certificate an
approved operator; and
(ii) that, at a place and at a time and on a date stated in the
certificate, a person named in the certificate was required by a stated police
officer to provide a sample of the person’s oral fluid for analysis by an
approved oral fluid analysis instrument; and
(iii) the instrument available to be used in the analysis, by reference to
its model number, patent number and serial number; and
(iv) that the approved oral fluid analysis instrument was in proper
working order; and
(v) the procedures followed immediately before the person was required to
provide a sample of the person’s oral fluid for analysis and the results
obtained in following those procedures; and
(vi) that the person refused or failed to provide a sample of his or her
breath for analysis;
is evidence of the matters stated in the certificate; and
substitute
(c) a written statement mentioned in section 12 (6) that is a print-out
from an approved breath analysis instrument or approved oral fluid analysis
instrument is evidence of the matters stated in the statement; and
(ca) a certificate purporting to be signed by a police officer and
stating—
(i) that the police officer was on a date stated in the certificate
authorised by the chief police officer to carry out assessments of drug
impairment; and
(ii) that, at a place and time and on a date stated in the certificate, a
person named in the certificate was required by a stated police officer to
undergo an assessment of drug impairment; and
(iii) the procedures followed in carrying out the assessment of drug
impairment;
is evidence of the matters stated in the certificate; and
(cb) a certificate purporting to be signed by a police officer and
stating—
(i) that the police officer was on a date stated in the certificate
authorised by the chief police officer to carry out assessments of drug
impairment; and
(ii) that, at a place and time and on a date stated in the certificate, a
person named in the certificate was required by a stated police officer to
undergo a drug assessment; and
(iii) that the person refused or failed to undergo a drug
assessment;
is evidence of the matters stated in the certificate; and
28 Section
41 (1) (e) (iii)
omit
or to provide a sample of the person’s breath for breath analysis
under section 12 (Breath analysis);
substitute
, to provide a sample of the person’s breath or oral fluid for
analysis under section 12 (Breath or oral fluid analysis) or to undergo an
assessment of drug impairment under section 12A (Assessment of drug
impairment);
after section 42, insert
42AA Effect of noncompliance—analysis of oral
fluid
(1) This section applies if the court hearing a charge for an offence
against this Act arising out of the carrying out of an oral fluid analysis is
not satisfied that there has been compliance with every provision of this Act
relating to the carrying out of the analysis.
Note A reference to an Act includes a reference to the statutory
instruments made or in force under the Act, including regulations (see
Legislation Act, s 104).
(2) Unless the court is satisfied that the failure to comply with the
provisions of this Act mentioned in subsection (1) would not have affected the
result obtained in the analysis, the court must dismiss the charge.
insert
42C Effect of noncompliance—refusal to give
sample of oral fluid
(1) This section applies if the court hearing a charge for an offence
against section 22A is not satisfied that there has been compliance with every
provision of this Act relating to that part of the carrying out of an oral fluid
analysis that is required to be carried out before the sample of oral fluid is
supplied.
Note A reference to an Act includes a reference to the statutory
instruments made or in force under the Act, including regulations (see
Legislation Act, s 104).
(2) Unless the court is satisfied that the failure to comply with the
provisions of this Act mentioned in subsection (1) was such that, had the
failure not happened and the oral fluid analysis taken place, the result
obtained in the analysis would have indicated the presence of a drug, the court
must dismiss the charge.
31 Dictionary,
new definitions of approved alcohol screening device and approved
analysis instrument
insert
approved alcohol screening device means a device that is
approved by the Minister under section 5 (1).
approved analysis instrument means an approved breath
analysis instrument or an approved oral fluid analysis instrument.
32 Dictionary,
definitions of approved analyst and approved breath analysis
instrument
substitute
approved analyst means a person who is appointed by the
Minister under section 6 (2).
approved breath analysis instrument means an instrument that
is approved by the Minister under section 5A (1).
33 Dictionary,
new definition of approved drug screening device
insert
approved drug screening device means a device that is
approved by the Minister under section 5 (2).
34 Dictionary,
definition of approved operator
substitute
approved operator means—
(a) for a breath analysis—a police officer who is authorised under
section 6 (1); and
(b) for an oral fluid analysis—a police officer who is authorised
under section 6 (1A).
35 Dictionary,
new definition of approved oral fluid analysis
instrument
insert
approved oral fluid analysis instrument means a device that
is approved by the Minister under section 5A (2).
36 Dictionary,
definition of approved screening device
omit
37 Dictionary,
new definition of assessment of drug impairment
insert
assessment of drug impairment, of a person, means an
assessment of drug impairment carried out on the person under section
12A.
38 Dictionary,
definition of disqualifying offence
substitute
disqualifying offence means an offence
against—
(a) section 19 (Prescribed blood alcohol concentration exceeded);
or
(b) section 20 (Driving while impaired by drug or blood drug
concentration exceeded); or
(c) section 22 (Refusing to provide breath sample); or
(d) section 22A (Refusing to provide oral fluid sample); or
(e) section 22B (Refusing to undergo drug assessment); or
(f) section 23 (Refusing blood test etc); or
(g) section 24 (Driving under the influence of intoxicating liquor or a
drug); or
(h) another provision of this Act prescribed by regulation.
39 Dictionary,
new definition of oral fluid analysis
insert
oral fluid analysis, in relation to a person, means an
analysis of a sample of the person’s oral fluid carried out for this Act
using an approved oral fluid analysis instrument.
40 Dictionary,
definition of screening test
substitute
screening test, for a person, means either or both of the
following (as directed by a police officer):
(a) a test of a sample of the person’s breath using an approved
alcohol screening device;
(b) a test of a sample of the person’s oral fluid using an approved
drug screening device.
Endnotes
1 Presentation speech
Presentation speech made in the Legislative Assembly on 2008.
2 Notification
Notified under the Legislation Act on 2008.
3 Republications of amended laws
For the latest republication of amended laws, see
www.legislation.act.gov.au.
© Australian Capital Territory
2008
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