TRAFFIC AND OTHER LEGISLATION AMENDMENT BILL 2011

SERIAL NO. 166

LEGISLATIVE ASSEMBLY OF THE 
NORTHERN TERRITORY

MINISTER FOR TRANSPORT

EXPLANATORY STATEMENT

GENERAL OUTLINE

This Bill amends the Traffic Act.

The purpose of the amendments proposed in the Bill is to:
·	bring the Northern Territory legislation into line with national legislation by adopting the new national Breath Alcohol Content 		(BrAC) measurement regime for drink driving offences under the Traffic Act; 
·	provide transitional arrangements to allow NT Police to continue to use current Blood Alcohol Content (BAC) measurement 		methods side by side with the new BrAC while their breath analysis equipment is converted to the new measurement regime, 		and
·	make consequential amendments to related legislation. 
The Bill also proposes other minor amendments designed to clarify various original provisions of the Act and regulations. These include minor clarification of the wording of definitions, references to approved forms for notices, and wording of provisions about exemptions and conditions for subsequent breath tests. 
It also proposes some minor amendments of the kind ordinarily dealt with in statute law revision legislation.

NOTES ON CLAUSES

PART 1	Preliminary matters

Clause 1	Short Title

The Bill when passed will be cited as the Traffic and Other Legislation Amendment Act 2011.

Clause 2	Commencement

The Bill will come into force as an Act on a date fixed by the Administrator by Gazette notice.

PART 2	Amendment of Traffic Act

Clause 3	Act amended

Part 3 of the Bill amends the Traffic Act.

Clause 4	Section 3 amended

This clause amends the definition of:
(a)	authorised analyst to recognise that organisations that fall outside the definition of a “person” in the Interpretation Act might be authorised to conduct analysis under the Act;
(b)	breath analysis to reflect that the result of breath analysis is the determination of the presence and concentration of alcohol in a person’s breath; and
(c)	breath test:
·	to reflect the fact that a breath test is an indicative test of whether a person’s breath contains alcohol in a concentration that may 	constitute an offence against the Act; and
·	by the removal of the reference to the detection of the presence of drugs in the blood.
.
Clause 5	Part V heading amended

Part V of the Act contains provisions establishing offences for drink driving. This clause amends the title of Part V to include reference to alcohol in the breath as well as in the blood. 

Clause 6	Section 19 amended

This cause amends the definitions for high, medium and low alcohol content to include reference to the alcohol content of the person’s breath. For example, high range blood alcohol content now reads high range breath or blood alcohol content and is defined to mean:
(a)	a breath alcohol content (BrAC) of 0.15 grams or more of alcohol per 210 litres of exhaled breath; or
(b)	a blood alcohol content (BAC) of 0.15 grams or more of alcohol per 100 millilitres of blood.”

The medium and low range breath or blood alcohol content definitions are the same save for the amount of alcohol (the figure being 0.05 grams for a low range offence and 0.08 grams for a medium range offence).

The definition of AIL (alcohol ignition lock) has also been updated to include reference to the breath alcohol content measured in a sample of a person’s breath.

Clause 7	Part V, Division 2 heading amended

This clause amends the heading of the Division to include reference to alcohol in breath.

Clause 8	Section 21 amended

The heading and the provisions of section 21 relating to high range blood alcohol content offences are amended by the inclusion of reference to a person’s breath alcohol content (in addition to their “blood alcohol content”).

Clause 9	Section 22 amended

The heading and the provisions of section 22 relating to medium range blood alcohol content offences are amended by the inclusion of reference to a person’s breath alcohol content (in addition to their “blood alcohol content”).

Clause 10	Section 23 amended

The heading and the provisions of section 23 relating to low range blood alcohol content offences are amended by the inclusion of reference to a person’s breath alcohol content (in addition to their “blood alcohol content”).

Clause 11	Section 24 amended

This clause amends section 24, which imposes a zero alcohol limit for certain classes of drive, (for example novice drivers), by the inclusion of references to a person’s breath containing alcohol, and to breath alcohol content (in addition to a person’s blood containing alcohol, and “blood alcohol content”).

Clause 12	Section 25 amended

This clause amends section 25 (which also imposes a zero alcohol limit for certain classes of driver, for example drivers of heavy vehicles) by the inclusion of references to the driver’s breath containing alcohol, and to breath alcohol content (in addition to a person’s blood containing alcohol, and “blood alcohol content”).

Clause 13	Section 26 amended

This clause amends the professional driving instructor drink driving offence, by the inclusion of references to the instructor’s breath containing alcohol, and to their breath alcohol content (in addition to the instructor’s blood containing alcohol, and “blood alcohol content”).

Clause 14	Section 29AAA amended

This clause amends the offence of driving under the influence of alcohol or a drug by the inclusion of reference to:
(a)	a person’s breath alcohol content (in addition to “blood alcohol content”);
(b)	the concentration of alcohol in the breath (in addition to the person’s blood containing alcohol); and 
(c)	a BrAC of less than 0.05 grams of alcohol per 210 litres of breath and a BAC of less 0.05 grams of alcohol per l00 millilitres of 		blood ) in substitution for a concentration of alcohol in a person’s blood of less than 0.05%.

Clause 15	Section 29AAB amended

This clause updates the random breath testing provisions by the inclusion of reference to alcohol in the driver’s breath.

Clause 16	Section 29AAC amended

This clause amends the breath testing provisions by the inclusion of references to alcohol in a person’s breath.

Clause 17	Section 29AAD amended

This clause amends the existing provision giving the police power to require someone to undergo a further breath analysis so that the request can be made regardless of whether the person provided a sufficient sample of their breath on the previous analysis. This will allow for a second analysis to be conducted where the equipment fails to operate properly on the first attempt, or where the driver fails to provide a sufficient sample for reasons other than a deliberate attempt to thwart the analysis (for example they blow too hard, or cough before providing enough breath).

Clause 18	Section 29AAE amended

This clause amends the wording of the section creating the offence of failing to submit to a breath analysis to include references to alcohol in the driver’s breath and to their breath alcohol content.

Clause 19	Section 29AAG amended

This clause amends the provisions relating to the requirement to give a blood sample so that they include reference to breath alcohol content.

Clause 20	Section 29AAH amended

This clause amends the offence of failing to provide a blood sample by the inclusion of reference to breath alcohol content.

Clause 21	Section 29AAM amended

Section 29AAM of the Act provides for the immediate suspension of a person’s licence for a 24 hour period by the police by service of a notice “in an approved form” where a person has refused a saliva test or has been taken to a hospital or health centre following their refusal to undertake a breath test or breath analysis. 

This clause amends the section to specify that the form of the notice must be approved by the Commissioner of Police.

Clause 22	Section 29AAN amended

Where a person has been charged with an immediate suspension offence, section 29AAN of the Act gives a police officer the power to immediately suspend the person’s licence until the charge against them is determined by a Court. As with section 29AAM, this requires the service of a notice “in an approved form”.

This clause amends section 29AAN to specify that the form must be approved by the Commissioner of Police.

Clause 23	Section 29AAR amended

This clause amends the provisions relating to further disqualification for certain drivers for drink driving offences by the inclusion of reference to breath alcohol content.

Clause 24	Section 29AAT amended

This clause amends references in the heading and provisions for the use in court proceedings of indicated blood alcohol content by the inclusion of reference to:
(a)	“BrAC or BAC” (both acronyms now defined in section 19(1)) in substitution for “blood alcohol content” in the heading;
(b)	“BrAC” in substitution for “blood alcohol content” in subsection (3);
(c)	“BrACs” in substitution for “blood alcohol contents” in subsection (3); 
(d)	“BAC” in substitution for “blood alcohol content” in subsection (4)(a) and 
(e)	“BAC indicated by the analysis” in substitution for “indicated blood alcohol content mentioned in subsections (2) or (4) is taken to 	be the blood alcohol content” in subsection (5)(a)

Clause 25	Section 29AAU amended

This clause removes reference to “a person employed by an organisation authorised as an analyst” and now provides for certificate evidence to be provided by an authorised analyst or a person employed by an authorised analyst (note the amendment of the definition of authorised analyst in section 3 to include “organisations”).

It also includes an additional provision that makes it unnecessary to prove the signature of the person who signed the certificate, or that that person who signed the certificate has the power under which they purported to act in signing the certificate.

Clause 26	Section 29AAW amended

This clause amends the provisions relating to breath analysis instruments by including reference to breath alcohol content.

Clause 27	Section 48 amended

This clause corrects cross references to reflect the current sections of the Act.

Clause 28	Section 53 amended

This clause amends the section relating to regulation making powers to make it explicit that the Registrar may exempt a person or “classes of persons” and also “persons in respect to a specified class of motor vehicle”.  

The word “and” has been added to the end of paragraphs (i) to (v) in subsection (2)(i) to reflect the current drafting style.

Clause 29	Part IX inserted 

This clause inserts a new Part IX into the Act to address transitional matters for this amendment Bill. It includes the following additional sections:

Section 57	Definitions

This section 57 provides definitions for Part IX. These are:

amendment Act which is defined to mean the Traffic and Other Legislation Amendment Act 2011;

“commencement day” which is defined as the day on which section 57 commences; and

“pre-commencement Act” which is defined as the Act as in force immediately prior to the commencement day.

Section 58	Purpose of Part

The purpose of Part IX to provide for the transition from the use of breath analysis instruments which give a result expressed as a concentration of alcohol in a person’s blood, to the same or similar instruments which express the result as the concentration of alcohol in a person’s breath in accordance with the Commonwealth’s National Measurement Regulations 2009.

Section 59	Results of analysis

This section provides for breath analysis results to be expressed in terms of breath alcohol content (BrAC) and blood tests results in terms of blood alcohol content (BAC) from the day the Act is commenced, while still allowing the current blood alcohol content measurement regime for breath analysis instruments to be used during the transition period.

Section 60	Person charged before commencement day

This section allows for people charged with offences under Part V of the Act prior to the commencement day to be processed under the provisions of the pre-commencement Act (the Act as in force prior to the commencement date).

Section 61	Transitional regulations

This section creates a regulation making power to address any other transitional issues which may arise. Transitional regulations may have retrospective effect back to but not prior to the commencement day and must not disadvantage a person by decreasing their rights or imposing any liability on them. Any regulation made under this proposed section must declare that it was made under this particular power. The section also includes a sunset clause ensuring that the transitional regulation making power has effect for only one year.

Section 62  	Transitional Regulations under other Act

This section creates a regulation making power for any other Acts where the changes effected by the Bill raise transitional issues for provisions of those Acts or any Regulations made under those Acts, and those transitional issues are not specifically addressed in this Bill. Like proposed section 61, any transitional regulation made under the power created by this section:
(a)	may have retrospective effect back to but not prior to the commencement day
(b)	must not disadvantage a person by decreasing their rights or imposing any liability on them; and
(c)	must declare that it was made under this particular power.

This section, and any regulations made because of it, will only have effect for 1 year from the commencement date.	

PART 3	Amendment of Traffic Regulations

Clause 30	Regulations amended

The clause notes that Part 3 of the Bill amends the Traffic Regulations.

Clause 31	Part 4 Heading amended 

This clause amends the heading of this part to include reference to breath alcohol content.

Clause 32	Regulation 58 amended

This clause proposes the removal of subregulation 58(4) as it is no longer required. This is because a table of breath alcohol and blood alcohol measurements now appears in the Act (see clause 40).

Clause 33	Regulation 60 amended

This clause amends regulation 60 to include a new sub regulation to define the meaning of an organisation that might be authorised to be an analyst to include government agencies and administrative units within agencies, whether in the Territory or another jurisdiction.

Clause 34	Regulation 61 amended

This clause omits subregulation 61(2). The requirement that an immediate suspension notice be in a form approved by the Commissioner of Police is now addressed in sections 29AAM and 29AAN (see clauses 21 and 22).

PART 4	Amendment of other legislation

This Part of the Bill amends other legislation dealing with breath analysis and blood alcohol contents to ensure consistency of terminology and to ensure that alcohol limits fixed by reference to blood alcohol content can also be fixed by the equivalent breath alcohol content.

Division 1	Motor Accidents (Compensation) Act

Clause 35	Act amended

This clause notes that Division 1 amends the Motor Accidents (Compensation) Act.

Clause 36	Section 9 amended

This clause	amends subsection 9(2)(a) of the Motor Accidents (Compensation) Act by including reference to a breath alcohol content of 0.08 grams of alcohol per 210 litres of breath.

Clause 37	Section 20A amended

This clause amends subsection 20A(2) of the Motor Accidents (Compensation) Act by including reference to a breath alcohol content of 0.08 grams of alcohol per 210 litres of breath.

Clause 38	Section 38 amended

This clause amends subsection 38(32)(d)(iii) of the Motor Accidents (Compensation) Act by including reference to a breath alcohol content of 0.08 grams of alcohol per 210 litres of breath.

Division 2	Personal Injuries (Liabilities and Damages) Act

Clause 39	Act amended

This clause notes that Division 2 amendment the Personal Injuries (Liabilities and Damages) Act.

Clause 40	Section 16 amended

This clause amends section 16 of the Personal Injuries (Liabilities and Damages) Act by including reference to a breath alcohol content of 0.08 grams of alcohol per 210 litres of breath.

Division 3	Workers Rehabilitation and Compensation Act

Clause 41	Act amended

This clause notes that Division 3 amends the Workers Rehabilitation Compensation Act.

Clause 42	Section 60 amended

This clause amends subsection 60(2) of the Workers Rehabilitation Compensation Act by including reference to a breath alcohol content of 0.08 grams of alcohol per 210 litres of breath.

Division 4	Amendment of Motor Vehicle Regulations

Clause 43	Regulations amended

This clause notes that Division 4 amends the Motor Vehicles Regulations.

Clause 44	Regulation 7A amended

This clause amends the regulation relating to AIL licence requirements by including reference to breath alcohol content and by fixing the breath alcohol limit for an alcohol interlock device at 0.02 grams of alcohol per 210 litres of breath. 

Division 5	Amendment of Rail Safety Regulations

Clause 45	Regulations amended

This clause notes that Division 5 amends the Rail Safety Regulations.

Clause 46	Regulation 8 amended

This clause amends regulation 8 of the Rail Safety Regulations which prescribes the maximum concentration of alcohol allowed for a rail safety worker while carrying out rail safety work by the inclusion of a breath alcohol content of 0.02 grams of alcohol per 210 litres of breath. 

It also adds a table giving 3 examples of equivalent breath analysis results expressed as breath alcohol contents, blood alcohol contents and percentages.

Clause 47 	Regulation 71 amended

This clause amends subregulation 71(1)(c)(v) by removing reference to blood alcohol measurements and substituting the breath alcohol measurement of grams of alcohol per 210 litres of breath.

Division 6	Amendment of other laws

Clause 48	other laws amended

This clause of the Bill provides for a schedule of consequential amendments to the laws listed in the schedule. The amendments proposed are intended to ensure:
(a)	consistency with the expression of breath analysis results by reference to breath alcohol content, and 
(b)	that alcohol limits currently fixed by reference to a prescribed blood alcohol content, include the equivalent measure of breath 		alcohol content where a person’s alcohol content is ascertained through breath analysis.

Legislation amended includes:
·	Alcohol Reform (Prevention of Alcohol-related Crime and Substance Misuse) Act 2011 – subsection 73(1);
·	Liquor Act - section 124B;
·	Motor Vehicles Act - items 1-5 in the first column of the table to section 102AA;
·	Police Administration Act – subsections 130A(1)(a) and (4) ;
·	Prisons (Correctional Services) Act - subsection 94B(4); and
·	Rail Safety Regulations – subregulation 32(2), regulation 55 (the definitions of breath analysis and breath test), and 			subregulations 57(1), (2)(a) and (b)(i); 58(1)(b); 62(1), 63(3) and 70(2) and (3).