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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 2009

2009

THE LEGISLATIVE ASSEMBLY

FOR THE AUSTRALIAN CAPITAL TERRITORY



(As presented)

(Mr Jeremy Hanson)

Road Transport (Alcohol and Drugs) (Random Drug Testing) Amendment Bill 2009









Contents

Page



















2009

THE LEGISLATIVE ASSEMBLY

FOR THE AUSTRALIAN CAPITAL TERRITORY



(As presented)

(Mr Jeremy Hanson)

Road Transport (Alcohol and Drugs) (Random Drug Testing) Amendment Bill 2009







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:



1 Name of Act

This Act is the Road Transport (Alcohol and Drugs) (Random Drug Testing) Amendment Act 2009.

2 Commencement

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).

3 Legislation amended

This Act amends the Road Transport (Alcohol and Drugs) Act 1977.

4 Offences against Act—application of Criminal Code etc

Section 4, note 1

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)

5 Section 5

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 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 is a notifiable instrument.

Note A notifiable instrument must be notified under the Legislation Act.

6 Approval of operators, analysts and laboratories

New 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.

7 Sections 11 and 12

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 the following:

(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;

(b) the conditions that must exist for the use of a particular approved analysis instrument;

(c) the conditions during which a particular approved analysis instrument must not be used;

(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 written statement, signed by the operator, containing the particulars required by regulation.

8 New section 12A

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 or in a public place 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 privacy

Section 13

omit

breath analysis

substitute

breath or oral fluid analysis

10 Section 14 heading

substitute

14 Restrictions on screening tests and breath and oral fluid analyses

11 Section 14 (1)

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—

12 Section 14 (3)

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—

13 Section 14 (3) (a)

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 custody

Section 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 samples

Section 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.

16 Section 15A (2) (a)

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 examinations

Section 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 staff

Section 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

20 Section 18 (3) (c)

substitute

(c) if the person is required to undergo an assessment of drug impairment—the period mentioned in section 12A (6) (c) ends; or

(d) the end of whichever of the periods mentioned in section 14 (1) applies in relation to the person.

21 New section 20

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—10 penalty units; and

(b) for an offence by a repeat offender—25 penalty units, imprisonment for 3 months or both.

(3) In this section:

prescribed concentration—see section 11 (4).

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.

22 New sections 22A and 22B

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 an assessment of drug impairment.

(2) The person commits an offence if—

(a) the person refuses to undergo an assessment of drug impairment; or

(b) the person fails to undergo an assessment of drug impairment in accordance with reasonable directions of a police officer.

Maximum penalty: 30 penalty units.

23 Section 27 heading

substitute

27 Imprisonment—s 22, s 22A, s 22B, s 23 and s 24 offences

24 Section 27 (a)

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 evidence

New section 41 (1) (aa)

insert

(aa) 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

27 Section 41 (1) (c)

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 an assessment of drug impairment; and

(iii) that the person refused or failed to undergo an assessment of drug impairment;

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);

29 New section 42AA

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.

30 New section 42C

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

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 2009.

2 Notification

Notified under the Legislation Act on 2009.

3 Republications of amended laws

For the latest republication of amended laws, see www.legislation.act.gov.au.





































© Australian Capital Territory 2009

 


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