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TRANSPORT LEGISLATION (DRUG DRIVING) AMENDMENT BILL 2007
SERIAL NO. 132

LEGISLATIVE ASSEMBLY OF THE
NORTHERN TERRITORY

MINISTER FOR INFRASTRUCTURE AND TRANSPORT

EXPLANATORY STATEMENT

GENERAL OUTLINE

The Transport Legislation (Drug Driving) Amendment Bill 2007 amends the Traffic Act, Motor Vehicles Act and associated regulations to create offences for driving under the influence of drugs; and powers to require blood tests in the case of accidents or where the Police Officer has reasonable cause to suspect the person is driving under the influence of drugs. 

The Bill pulls together those items requiring changes to legislation in order to implement the drug driving testing regime.  The road safety initiatives to be implemented as part of this amendment Bill are:
o	Allow for the collection of samples of blood to test for drugs and other substances from persons involved in motor vehicle accidents.
o	Allow Police to use roadside saliva screening tests for the presence of certain drugs in the case driving behaviour not related to the consumption of alcohol or based on a reasonable suspicion of the Police Officer performing the screening that the driver of a motor vehicle is driving under the influence of a drug.
o	Allow Police to use random roadside saliva screening tests for the presence of certain drugs in drivers of heavy vehicles over 4.5 tonnes gross vehicle mass (GVM).
o	Introduces a list of prohibited drugs scheduled to the Traffic Regulations that relate to the new offence of “Driving under the influence of a Drug”.
o	Introduces a defence to a prosecution for three illicit drugs that can be prescribed by a medical practitioner (morphine, methadone and amphetamine prescribed in the treatment of narcolepsy and ADD) in certain circumstances.
o	Amends the Traffic Act to clarify that drivers currently subject to zero alcohol provisions (drivers under 25, truck drivers, commercial passenger vehicle drivers and driving instructors) are included in the broader “two strikes” policy that applies to other blood alcohol concentration (BAC) offences.
o	Part V of the Traffic Act in relation to drink driving provisions has been redrafted to improve understanding and clarify policy.

NOTES ON CLAUSES

PART 1	PRELIMINARY MATTERS
Clause 1.	Short Title

The Bill when passed will be cited as the Transport Legislation (Drug Driving) Amendment Act 2007.

Clause 2.	Commencement

The Bill will commence on a date fixed by the Administrator and notified in the Gazette.

PART 2	AMENDMENT OF TRAFFIC ACT
Clause 3.	Act Amended

This part amends the Traffic Act.

Clause 4.	Amendment to section 3 (interpretation)

This clause updates the reference to section 29AAW to reflect the new structure of Part V of the Act and omits section 3(4) as the definition is now incorporated into Part V.

Clause 5.	Repeal and Substitution of Part V

This clause repeals Part V of the Traffic Act and substitutes it with a new Part V which provides for the inclusion of drug driving offences and random saliva testing of drivers of heavy vehicles over 4.5 tonnes (GVM). It also recreates the blood alcohol concentration offences and makes changes to improve understanding and clarify policy.

PART V
Section 19	Interpretation

This section provides the definitions for terms used specifically in this Part. It introduces the concept of “high range blood alcohol content” meaning a BAC of 0.15% or greater; “medium range blood alcohol content” meaning BAC of 0.08% or greater but less than 0.15%; and “low range blood alcohol content” meaning a BAC of 0.05% or greater but less than 0.08%.

It introduces a definition for an “immediate suspension offence” as meaning an offence that attracts a notice of immediate suspension under section 29AAN.

The term “drive” is included and improves the definition previously applied in section 3(4) of the Act.

The definition of a “drug” as 
o	any substance prescribed by the Regulations under section 28; 
o	any other substance (other than alcohol) that, when consumed, ingested or used by a person deprives the person, temporarily or permanently, of the person’s normal mental or physical faculties
is also included. 

This section also introduces driving under the influence to include driving with alcohol or drugs or a combination of both to an extent to be incapable of controlling the vehicle.

Division 2:  Offence of driving with alcohol in blood
Section 20	Impairment not necessary

This section provides for a person to be charged with a blood alcohol concentration (BAC) offence without the Police having to prove the person’s ability to drive has been impaired.

Section 21	High range blood alcohol content

This section outlines the penalties that can be imposed upon a person who commits a high range BAC offence. The maximum penalty for a first offence being 10 penalty units or imprisonment for 12 months and for a second offence 20 penalty units or imprisonment for 12 months.

It also defines what is considered to be a second or subsequent offence. For a high range BAC offence a second or subsequent offence occurs when a person has previously been found guilty of any of the following: 
o	driving with:
§	a high range blood alcohol content; or
§	a medium range blood alcohol content;
o	driving under the influence of alcohol or a drug;
o	failing to provide a sufficient sample of breath for a breath analysis;
o	failing to give a sample of blood for analysis;
o	driving with alcohol in the blood (if the person is a person mentioned in section 24(1) that is drivers required to have zero BAC [learners, P-platers]).
Low and section 25 offences are not included as they are considered to be less serious than a high range offence.

o	The minimum licence loss applicable when a court finds the person guilty of offences against this section is also better explained than in the previous Part V.

Any offence against this section is regarded as an immediate suspension offence.

Section 22	Medium range blood alcohol content

This section outlines the penalties that can be imposed upon a person who commits a medium range BAC offence.  The maximum penalty for a first offence being 7.5 penalty units or imprisonment for 6 months and for a second offence or subsequent offence 20 penalty units or imprisonment for 12 months.

It also defines what is considered to be a second or subsequent offence. For a medium range BAC offence a second or subsequent offence occurs when a person has previously been found guilty of any of the following:
o	driving with:
§	a high range blood alcohol content; or
§	a medium range blood alcohol content;
o	driving under the influence of alcohol or a drug;
o	failing to provide a sufficient sample of breath for a breath analysis;
o	failing to give a sample of blood for analysis;
o	driving with alcohol in the blood (if the person is a person mentioned in section 24(1)) that is drivers required to have zero BAC [learners, P-platers]).
Low and section 25 offences are not included as they are considered to be less serious than a medium range offence.

The minimum licence loss applicable when a court finds the person guilty of offences against this section is also provided. Periods of disqualification are:
o	1st offence – a minimum period of 6 months
o	for a second or subsequent offence – a minimum period of 12 months.

A second or subsequent offence against this section is an immediate suspension offence.

Section 23	Low range blood alcohol content

This section outlines the penalties that can be imposed upon a person who commits a low range (0.05% to 0.08%) BAC offence. The maximum penalty for a first offence is 5 penalty units or 3 months imprisonment and for a second or subsequent offence 7.5 penalty units or 6 months imprisonment.

It also defines what is considered to be a second or subsequent offence. For a low range BAC offence a second or subsequent offence occurs when a person has previously been found guilty of any of the following:
o	driving with:
§	a high range blood alcohol content; or
§	a medium range blood alcohol content; or
§	a low range blood alcohol content (only if the previous offence was committed after 1 July 2007 and within three years of the offence);
o	driving under the influence of alcohol or a drug;
o	failing to provide a sufficient sample of breath for a breath analysis;
o	failing to give a sample of blood for analysis.
o	driving with alcohol in the blood (if the person is a person mentioned in section 24(1) that is drivers required to have zero BAC [learners, P-platers]).
o	a traffic infringement notice (TIN) for a low range BAC offence which was issued and not withdrawn.

The minimum licence loss applicable when a court finds the person guilty of offences against this section is also provided. Periods of disqualification are:
o	for 2nd offence –  a minimum period of 3 months
o	for a subsequent offence – a minimum period of 6 months

A second or subsequent offence against this section is an immediate suspension offence. 

This section also provides for Regulations to be made that may prescribe the persons to whom, or circumstances in which, this section does not apply (e.g- Firefighters attending a fire are currently exempt).

Section 24	Some drivers to be zero alcohol

This section deals with penalties that can be imposed on some drivers who are required to have a zero BAC. These being:
o	a person under the age of 18 years
o	a holder of a learner licence
o	a holder of a provisional licence
o	a person not licensed to drive a motor vehicle 
o	a visitor to the NT who is not permitted to drive in the Territory under section 32 (1).

The maximum penalty for these drivers for a first offence is 5 penalty units or 3 months imprisonment and for a second offence 7.5 penalty units or 6 months imprisonment.

It also defines what is considered to be a second or subsequent offence for this section.

The minimum licence loss applicable when a court finds the person guilty of offences against this section is also provided. Periods of disqualification are:
o	for a first offence – a minimum of 3 months
o	for a second or subsequent offence a minimum of 6 months.

A second or subsequent offence against this section is an immediate suspension offence.

Section 25	Driver of certain vehicles to be zero alcohol

This section deals with penalties that can be imposed on drivers of certain vehicles who are required to have a zero BAC. This includes:
o	drivers of heavy vehicles (i.e. GVM over 15 tonnes).
o	drivers of dangerous goods vehicles
o	drivers of commercial passenger vehicles
o	drivers of vehicles with seating capacity of 12 or more or a vehicle with 12 or more passengers.
o	drivers of vehicles with a load space in which passengers are travelling
o	drivers between 18-25 years old and who have not held a licence for a continuous period of 3 years provided they are not a learner licence holder.

The maximum penalty for a first offence is 5 penalty units or 3 months imprisonment. For a second offence the maximum penalty is 7.5 penalty units or 6 months imprisonment.

It also defines what is considered to be a second or subsequent offence for this section. 

The minimum licence loss applicable when a court finds the person guilty of offences against this section is also provided. Periods of disqualification are:
o	for a second offence – a minimum of 3 months
o	for a subsequent offence a minimum of 6 months.

A second or subsequent offence against this section is an immediate suspension offence.

Section 26	Driving Instructor
This section deals with the penalties that can be imposed on a driving instructor who is required to have a zero BAC. 

The maximum penalty for a first offence is 5 penalty units or 3 months imprisonment. For a second offence the maximum penalty is 7.5 penalty units or 6 months imprisonment.

It also defines what is considered to be a second or subsequent offence for this section. 

The minimum licence loss applicable when a court finds the person guilty of offences against this section is also provided. Periods of disqualification are:
o	for a second offence – a minimum of 3 months
o	for a subsequent offence – a minimum of 6 months.

A second or subsequent offence against this section is an immediate suspension offence.

Division 3:  Offence of driving with drug in blood
Section 27	Impairment not necessary

This section provides for a person to be charged with a drug driving offence without the Police having to prove the person’s ability to drive has been impaired. This is consistent with national best practice in relation to drug driving offences. Unlike alcohol there are no prescribed levels of impairment such as BAC.

Section 28	Driving with certain drugs in the blood

This section deals with drivers who are found to have a prohibited drug in their blood. For this offence the maximum penalty for a first offence is 5 penalty units or 3 months imprisonment and for a second offence the maximum penalty is 7.5 penalty units or 6 months imprisonment.

It also defines what is considered to be a second or subsequent offence for this section. A second or subsequent offence occurs when a person has previously been found guilty of any of the following:
o	driving under the influence of alcohol or a drug;
o	driving with a prohibited drug in the blood;
o	a TIN for driving with a prohibited drug in the blood is taken to be a finding of guilt for the offence. This is similar to the hooning provisions in the Traffic Act.

The minimum licence loss applicable when a court finds the person guilty of offences against this section is also provided. Periods of disqualification are:
o	for a second offence – a minimum of 3 months
o	for a subsequent offence a minimum of 6 months.

A second or subsequent offence is an immediate suspension offence.

This section also provides for regulations to be made listing the “prohibited drugs” for the purposes of offences against this part and those for which a defence exists.

Section 29	Defence for certain drugs

This section provides a defence against drug driving charges in certain circumstances. A defence exists if a person’s blood indicates the presence of a prohibited drug for which they can satisfy the court the drug was consumed as part of treatment authorised by a medical practitioner and the drug was taken in accordance with the directions of the medical practitioner.

There are three drugs for which a defence applies – morphine, methadone and amphetamine used in the treatment of narcolepsy and ADD.

Division 4:  Offence of driving under influence of alcohol or drug
Section 29AAA	Driving under influence

This section recreates the offence of driving under the influence (DUI) of drugs or alcohol to the extent that the driver is incapable of having proper control of the vehicle. It provides maximum penalties of 10 penalty units or 12 months imprisonment for a first offence and 20 penalty units or 12 months imprisonment for a second or subsequent offence.

It also defines what is considered to be a second or subsequent offence for this section. A second or subsequent offence occurs when a person has previously been found guilty of any of the following:
o	driving with:
§	a high range blood alcohol content; or
§	a medium range blood alcohol content;
o	driving under the influence of alcohol or a drug;
o	failing to provide a sufficient sample of breath for a breath analysis;
o	failing to give a sample of blood for analysis
o	driving with alcohol in the blood (if the person is a person mentioned in section 24(1) learner or P-plater or unlicensed).

The minimum licence loss applicable when a court finds the person guilty of offences against this section is also provided. Periods of disqualification are:
o	for a first offence – a minimum period of 6 months
o	for a second or subsequent offence – a minimum period of 12 months.

This section also allows a court to find a person was under the influence of alcohol or a drug to extent where they were incapable of having proper control of a vehicle:
o	without evidence of the BAC or prohibited drug in the persons blood; or 
o	even though the evidence showed the person’s BAC was less than 0.05%.

Under this section a person can be found to be DUI of alcohol or a drug when a combination of both has affected their ability to have proper control of the vehicle. 

An offence against this section is an immediate suspension offence.

Division 5:  Taking samples
Section 29AAB	When police can pull driver over at random

In this section provision is made for Police to randomly test drivers to determine BAC and to also randomly saliva test heavy vehicle drivers (vehicles with a GVM of 4.5 tonnes or greater) to determine whether there is a prohibited drug in their blood. 

This section also creates an offence for a person who fails to comply with a request made under this section and specifies a maximum penalty of 200 penalty units or 12 months imprisonment. 

Section 29AAC	Breath test and breath analysis

This section provides Police with the power to require a person to submit to a breath test or breath analysis or both to determine if the person’s blood contains alcohol in certain circumstances. These being:
o	at a random breath testing station
o	when the officer has reasonable cause to suspect the person 
§	has committed a DUI or BAC offence
§	was a driver of a motor vehicle involved in a crash
§	was involved in a crash and alcohol was in his/her blood at the time of the crash
and only when not more than 4 hours has expired since the driver was pulled over or since the crash occurred.

In this section it also stipulates that a person must comply with such a request from a Police Officer and refusal to submit or failing to provide a sufficient sample when a officer reasonably believes the person’s BAC is at a level that may constitute a BAC offence, the person may be arrested without warrant and detained for the purposes of carrying out a breath analysis.

A person is not required to submit to a breath test or breath analysis if the officer is satisfied it may be detrimental to the person’s health or the person has a physical disability that prevents them from providing a sample, or sufficient sample, of breath for completion of a test or analysis.

Section 29AAD	Further breath analyses

This section allows Police to require a person to submit to one more breath analysis despite having already provided an initial sample for analysis and also for the person to request a further analysis on another sample. A person requesting a further sample and analysis must do so without undue delay after receiving the results of the initial test.

Section 29AAE	Offence of failing to submit to breath analysis

Refusing or failing to submit or refusing or failing to provide a sufficient sample attracts a maximum penalty of 10 penalty units or 12 months imprisonment for a first offence and a maximum penalty of 20 penalty units or 12 months imprisonment. A person is taken to have failed to submit if their actions/inactions in anyway prevent the police officer from requiring the person to submit to a breath test (e.g. running away).

It also defines what is considered to be a second or subsequent offence for this section. A second or subsequent offence occurs when a person has previously been found guilty of any of the following:
o	driving with:
§	a high range blood alcohol content; or
§	a medium range blood alcohol content;
o	driving under the influence of alcohol or a drug;
o	failing to provide a sufficient sample of breath for a breath analysis;
o	failing to give a sample of blood for analysis;
o	an offence against section 24 (e.g learner or P-plater

The minimum licence loss applicable when a court finds the person guilty of offences against this section is also provided. 

A defence against prosecution is provided in this section, that is, if the court is satisfied that it would be detrimental to the person’s health on medical grounds or the person has other reasonable grounds for refusing. Consuming alcohol immediately after leaving vehicle (e.g. after an accident to settle nerves) is not considered to be reasonable grounds.

Section 29AAF Requirment for Saliva test

This section provides Police with the powers to conduct saliva testing to determine whether the driver’s blood may contain a prohibited drug in certain circumstances. These being
o	randomly testing drivers of a heavy vehicles (4.5 tonnes and over)
o	when the officer reasonably suspects a person is drug driving or DUI or was the driver of a  motor vehicle involved in a crash
and only when not more than 4 hours has expired since the driver was pulled over or since the crash occurred.

In this section it also stipulates that a person must comply with such a request from a Police Officer and refusal to submit or failing to provide a sufficient sample or when a officer reasonably believes the person’s blood may contain a prohibited drug, the person may be arrested without warrant and detained for the purposes of carrying out a blood test.

A person is not required to submit to a saliva test if the officer is satisfied it may be detrimental to the person’s health or the person has a physical disability that prevents them from providing a sample, or sufficient sample, of salvia for completion of a saliva test.

Section 29AAG	Requirement to give blood sample

This section provides Police with the power to require a person to submit to a blood test to determine if the person’s blood contains a BAC at a level that constitutes a BAC or DUI offence or a drug in certain circumstances. These being:
o	the officer believes that due to a medicial condition or physical disability the person is unable to submit to a breath test or analysis and he reasonably believes the person to have a BAC at level that may constitute an offence against this Act
o	the officer has reasonable cause to suspect that the person’s blood contains a drug (whether or not as a result of a saliva test).

A Police Officer operating under this section of the Act must make suitable arrangements for the person to be taken to a hospital or health centre for the blood test to be undertaken. When taking a person to a health centre the officer must ensure there is a medical practitioner, registered nurse or a qualified person at the centre who is available and willing to take the sample.

Section 29AAH		Offence of failing to provide blood sample

Refusing or failing to submit or refusing or failing to provide a sufficient sample, or take directions from the person taking the blood sample attracts a maximum penalty of 10 penalty units or 12 months imprisonment for a first offence and a maximum penalty of 20 penalty units or 12 months imprisonment. 

An offence against this section is an immediate suspension offence.

A defence against prosecution is provided in this section, that is, if the court is satisfied that it would be detrimental to the person’s health on medical grounds or the person has other reasonable grounds for refusing. Consuming alcohol or a substance immediately after leaving vehicle (e.g. after an accident to settle nerves) is not considered to be reasonable grounds.
	
Section 29AAJ	Refusal or failure to give sample of blood in certain circumstances

This section deals with a person who was found guilty of an offence of failing or refusing to provide a sample of blood under section 29AAH (1) and the court is satisfied that the person was required to give a blood sample because the person entered a hospital for examination or treatment of injuries and these injuries did not result from a crash in which the person was driving a motor vehicle.

This covers where a person has been charged with a BAC offence but subsequently found not be have been driving the vehicle.

In such circumstances the court must not impose a term of imprisonment, cancel the person’s licence; or impose a fine greater than 1 penalty unit. A person’s licence is not cancelled by force of a finding of guilt and the offence is not taken into account for determining a second or subsequent offence.

Section 29AAK	Taking a sample of blood

This section prescribes the circumstances and conditions under which a sample blood may be taken from a person who presents at a hospital or health centre in compliance with section 29AAG or from a person who has apparently attained the age of 15 and has presented for examination or treatment of injuries which may have been received in a crash. 

In these circumstances if the person attends a hospital the blood sample is to be taken by a medical practitioner, registered nurse or a hospital staff member under the direct supervision of a medical practitioner or registered nurse. If the person attends a health centre the blood sample is to be taken by a medical practitioner, registered nurse or a qualified person. 

Where a person attends a hospital in the circumstances outlined above it is incumbent on the Minister responsible to ensure provisions are in place that allow a sample of blood to be taken as soon as practicable and the person in charge of the hospital to act accordingly. 

When a person who has apparently attained the age of 15 and has presented at a hospital for examination or treatment of injuries which may have been received in a crash, a sample of blood may be taken from the person even though they are unconscious or incapable of giving consent.

A member of staff of a hospital or health centre is not required to take a blood sample if they have reasonable grounds for believing that
o	the BAC level is already known; or
o	taking the sample would be detrimental to the person’s health; or
o	the injuries were not sustained in a motor vehicle accident or the accident happened more than 12 hours prior to entering the hospital or health centre; or
o	a period of more than 4 hours has elapsed since the person entered the hospital or health centre.

A blood sample taken under this section remains the property of the Police Commissioner however the person taking the sample may make approximately half the sample available to the person from whom it was taken.

No actions or proceedings for assault can be taken against the person who takes a blood sample for this Act. Nor does this section obligate a person in a health centre to take a blood sample. This provision is made in recognition that health centres operate in small communities where it may compromise staff if they were obliged to take blood samples.

Section 29AAL	Right to communicate with medical practitioner

This section creates the right for a person taken into custody following a breath analysis or after giving a blood sample to be permitted to communicate with a medical practitioner to request any of the following
o	an examination of the person
o	take a sample of the person’s blood
o	arrange a sample of the person’s blood to be taken by another medical practitioner, registered nurse or a qualified person.

Upon receiving such a request the Police Officer must make relevant arrangements that are reasonable in the circumstances to meet the request.

Division 6:  Immediate licence suspension
Section 29AAM	Licence suspension for up to 24 hours

This section provides the conditions under which a person’s licence may be suspended for 24 hours. 

That is when a person is arrested for either refusing or failing to submit to saliva test or following a saliva test; or failing to provide a sufficient sample of breath for a breath analysis and the police reasonably believe the person’s blood may contain a prohibited drug or alcohol or a substance, before the person is released the Police may serve the person with a notice under this section.

This notice must be in the approved form and has the effect of suspending the person’s licence immediately the Police give the person the notice and inform them that they are disqualified from driving for a period specified in the notice, which does not exceed 24 hours.

Such a suspension cannot be challenged or reviewed by any court and the Police Officer must notify the Registrar of the details of the notice and the person on whom it was served without delay.

The Regulations direct the Police not to issue an immediate suspension notice in relation to a person testing positive for morphine but not displaying signs of impairment. This is to cover the fact that a saliva test may record a positive result if a person has taken codeine.

Section 29AAN	Notice of immediate licence suspension and disqualification form driving

This section outlines the conditions to be included in the notice when a person is charged with an immediate suspension offence. 

When a police officer serves a notice on the person the notice must be in the approved form and
o	has the effect of suspending the person’s licence immediately the notice is given to the person; and
o	informs the person they are disqualified from driving and obtaining another licence until the charge is determined by a court; and
o	requires the person to surrender their licence to the police; and
o	includes a statement of the person’s right to appeal to the Local Court against the suspension and disqualification.

The Police Officer issuing the notice must notify the Registrar of the details of the notice and the person on whom it was served without delay. This will allow recording the suspension on the motor vehicle registry data base.

Section 29AAP	Offences

This section creates the penalties for a person who does not comply with conditions attached to the immediate suspension notice issued under section 29AAN. Penalties exist for
o	failing or refusing to surrender any licence documentation, without good reason; or 
o	applying for a licence in the NT or elsewhere while disqualified; 
both attracting a maximum penalty of 20 penalty units or 12 months imprisonment.

Section 29AAQ	Appeal against suspension and disqualification

This section specifies the conditions under which a person can appeal against a notice issued under section 29AAN. 

A person must give 14 days written notice of the appeal to the Registrar and Local Court and set out the exceptional circumstances the person is using as the basis of the appeal.

In determining the outcome the Local Court must hear any evidence:
o	tendered by the appellant; and
o	tendered by or on behalf of the Registrar; and 
o	required by the courts from a medical practitioner.

The court may then either uphold the notice or if satisfied that the exceptional circumstances justify – set aside the notice. Once the court has made its decision it is final and cannot be appealed against or reviewed.

Division 7:  Licence suspension and disqualification on finding of guilt
Section 29AAR	Further disqualification for certain drivers

This section establishes the circumstances under which heavy vehicle (15t GVM or more) and commercial passenger vehicle drivers’ licences are cancelled and they are disqualified from obtaining a licence to drive such vehicles for a minimum period of 5 years. These circumstances are when a court finds a person guilty of any of the following:
o	driving under the influence of alcohol or drug;
o	driving with a high range blood alcohol content;
o	driving with a medium range blood alcohol content;
o	refusing or failing to provide a sufficient sample of breath for a breath analysis;
o	refusing or failing to provide a sample of blood; 
while they were driving a commercial passenger vehicle or a heavy vehicle of 15t GVM or more.

Section 29AAS	When a court finds person guilty

In this section the mechanisms for canceling, suspending or disqualifying a person from holding a licence are established. It also requires the Court to specifically determine whether the offence is the person’s first, second or subsequent offence.

The cancellation or suspension occurs automatically effective from the date of the finding of guilt. The court, if it sees fit, may choose to impose a longer period of suspension or disqualification than the minimum specified in this Part V.

The period of suspension or disqualification is reduced by any period of immediate suspension imposed under section 29AAN in relation to the same offence.

Division 8:  Court and evidentiary matters
Section 29AAT	Use of indicated blood alcohol content in courts proceedings

This section outlines what is to be accepted as a person’s BAC reading for any court proceedings and in what circumstances. The analysis is taken to be the BAC at the time of the offence regardless; even if there is evidence that the person consumed alcohol after the incident that resulted in the offence (e.g. to settle nerves after an accident).

The result of the blood or breath analysis is taken to be the person’s BAC level at the relevant time of the relevant offence when:
o	the results indicated from a breath analysis 
o	if more than one breath analysis is taken the lower BAC level indicated is taken to be the BAC
o	if a blood sample is taken the BAC is a result of the analysis of the sample taken and is taken to be the BAC level at the time of the offence
o	if the person’s BAC is being tested because they attended a hospital or health centre with injuries that may have resulted from a crash the results or the breath analysis or test of the blood sample are taken to be the BAC at the time of the offence.

Section 29AAU	Evidence by certificate

This section describes the conditions on which certificates may be accepted as prima facie evidence, of matters stated in the certificate and the facts on which they are based, in court proceedings.

The certificate must be in the prescribed form (as per the regulations or as approved by the Registrar) and purporting to be signed by:
o	a person authorised by the Commissioner under the Act to use a prescribed breath analysis instrument; or
o	a member of the staff of a hospital or health centre; or
o	an authorised analyst or person employed by an organisation authorised as an analyst
is prima facie evidence of the matters stated in the certificate and the facts on which they are based.

The Regulations may prescribe forms of certificates to be used. In the event that the regulations do not prescribe a form the Registrar may approve a form for use in that situation.

Section 29AATV	If witness to be called

This section stipulates the process for calling a witness, for court proceedings, whose evidence may be received by way of certificate under 29AAU (e.g. Police Officer, hospital staff member or health centre, authorised analyst).  The party is required to provide at least 14 days notice in writing and call the person in accordance with the relevant court procedures to give the person’s evidence.

Section 29AAW	Breath analysis instrument

This section makes provision for Regulations to be made prescribing a breath analysis instrument and its use and stipulates that a court must not accept any evidence the device does not give a true and correct BAC reading when the device is in good working order and used correctly.

Section 29AAY	Reference to court and proceedings

This section defines the appropriate references for court proceedings to include preliminary examinations and includes a Justice (Justice of the Peace) conducting these preliminary examinations in accordance with Part V of the Justice Act.

Section 29AAX 	Limitation on the use of certain evidence

This section makes it clear that a positive drug analysis cannot be used in evidence in proceedings under the Misuse of Drugs Act. This restricts drug testing results detected as a result of offences relating to impaired driving or having consumed a drug under the Traffic Act. 

Clause 6.	Repeal of section 39 (Cancellation of licence)
This clause repeals section 39 of the Act dealing with the cancellation of licences as this has now been incorporated into the new Part V of the Act.

Clause 7.	Repeal of section 49 and 50
This clause repeals sections 49 and 50 as they have been incorporated into Part V of the Act.

Clause 8.	Repeal of Schedule 1 (Minimum disqualification periods)
This clause repeals Schedule 1 as the periods of disqualification have now been included within the relevant sections of Part V of the Act.

PART 3	AMENDMENT OF TRAFFIC REGULATIONS
Clause 9.	Subordinate legislation amended
This Part amends the Traffic Regulations.

Clause 10.	Amendment of Part 4 heading
This clause amends the heading of Part 4 of the Traffic Regulations to include “drugs”. The heading now reads Driving with alcohol or drug in blood.

Clause 11.	Repeal and Substitution of Regulation 55 

This clause amends Traffic Regulation 55 by repealing and substituting a new Regulation 55 with updated the references to the correct sections in Part V of the Traffic Act. 

Clause 12.	New regulations 55A and 55B
This clause inserts new regulations:
o	55A prescribes the drugs prohibited for driving under section 28 (6) (a) and 28 (6) (b); and creates Schedule 1A (prohibited drugs) and 1B (prohibited drugs for which a defence is available).

Part A in the schedule lists prohibited drugs that it will be an offence to have any amount in your system and then drive a motor vehicle.  Part B lists three drugs (morphine, methadone and amphetamine used in the treatment of narcolepsy and ADD) that, can be prescribed in certain circumstances.  A defence is available for these drugs providing a person can satisfy the court the drugs were taken while in the care of a medical practitioner.  In addition, the regulations provide direction for Police not to issue an immediate suspension notice, where a saliva test is positive for morphine and the person denies having taken morphine and is obviously not impaired.

o	55B prevents a police officer from issuing an immediate 24 hour suspension notice when a person has returned a positive saliva test for morphine only, denies having consumed morphine and their ability to properly control a motor vehicle was not apparently impaired. This addresses the issue that the saliva test may give a false positive to morphine if a person has recently ingested codeine. A blood test will confirm whether the substance was codeine or morphine, but in the absence of impairment, the person must initially be presumed to have consumed codeine only.

Clause 13.	Amendment of regulation 56 (Prescribed breath analysis instrument – section 29)
This clause amends regulation 56 by omitting reference to section 29 and substituting it with section 29AAW to reflect the new structure of Part V of the Act.

Clause 14.	Amendment of regulation 58 (Conduct of breath analysis)
This clause amends regulation 58 (4) by omitting reference to section 19 and substituting it with Part V to reflect the new structure of the Act.

Clause 15.	Amendment of regulation 60 (Authorised analysts)
This clause amends regulation 60 by omitting “person” and substituting it with “person or organisation” to allow for drug testing analysis to be conducted by approved persons within laboratories.

Clause 16.	Amendment of regulation 61 (Forms)
This clause amends regulation 61 by omitting reference to section 27 and substituting it with section 29AAU to reflect the new structure of Part V of the Act.

Clause 17.	Amendment of Schedule 1
This clause amends Schedule 1 by updating the references to the Traffic Act in relation to infringement penalties for certain zero and low level BAC 1st offences and a 1st drug offence to reflect the structure of the new Act. 

Clause 18.	New Schedule 1A
This clause inserts new Schedule 1A which prescribes the drugs for the purposes of section 28 of the Act, that is, prohibited drugs in two parts – Part A Prohibited drugs and Part B drugs for which a defence is available.

Clause 19.	Amendment of Schedule 2
This clause amends forms 3 and 4 of Schedule 2 to update the references to sections of the Act to reflect the new structure of Part V of the Act.

PART 4	AMENDMENT OF MOTOR VEHICLES ACT
Clause 20.	Act amended
This Part amends the Motor Vehicles Act.

Clause 21.	Amendment of section 102AA (Applications made by certain offenders)
This clause amends this section by omitting the current table and substituting it with a new table which updates the references to the sections of Traffic Act to reflect the new structure of Part V of the Traffic Act.