TRAFFIC AND OTHER LEGISLATION AMENDMENT BILL 2015
SERIAL NO. 138
LEGISLATIVE ASSEMBLY OF THE NORTHERN TERRITORY

MINISTER FOR TRANSPORT

EXPLANATORY STATEMENT

GENERAL OUTLINE
This Bill amends the Traffic Act to expand the power of Police to randomly drug test all vehicle drivers on Northern Territory roads. Drug testing has previously been limited to drivers of heavy vehicles over 4.5 tonne, drivers suspected of being under the influence of prohibited drugs or drivers involved in motor vehicle accidents.
It also amends the current legislative procedure for roadside drug testing in Part V of the Act by introducing a second stage saliva test as an optional alternative to taking a second stage blood sample. The Bill provides relevant powers to the Commissioner to prescribe a saliva testing device and authorise operators to use the device for the purposes of drug testing. It establishes an evidentiary standard for saliva testing and provides for an individual to seek a portion of his or her saliva sample from the laboratory for independent testing. A new offence of failing to submit to a saliva test is also created.
Minor amendments to the Motor Vehicles Act have also been included to clarify the Registrar’s discretionary power to require a person found guilty of driving under the influence of a drug to complete a drug driver education course or treatment approved by the Registrar before regaining their licence.
NOTES ON CLAUSES
Part 1	Preliminary matters
Clause 1 		Short Title
This is a formal clause which provides the citation of the Bill. The Bill when passed will be cited as the Traffic and Other Legislation Amendment Act 2015.
Clause 2 		Commencement
This clause provides that the Act will commence on the day fixed by the Administrator by Gazette notice.
Part 2 	Amendment of Motor Vehicles Act
Clause 3 		Act amended
This clause provides that Part 2 amends the Motor Vehicles Act.
Clause 4 		Section 5 amended		
This clause inserts a note in subsection 5(1) which directs the reader to the Interpretation Act for definitions and other provisions that may be relevant when interpreting the Motor Vehicles Act.
Clause 5		Section 102AA amended
Clause 5(1) removes the word “alcohol” from the definition of approved course and replaces it with the words “alcohol or using a prohibited drug”. This expanded definition operates in conjunction with section 102AA(5) to require people who are disqualified from driving as a consequence of being found guilty of driving under the influence of a drug to undertake an approved course at the discretion of the Registrar, before applying to regain their driver’s licence.
Clause 5(2) expands the definition of approved treatment to include intervention courses which promote responsible driver behaviour and raise awareness of the risks associated with driving while affected by drugs. The expanded definition clarifies the section 102AA(5) discretionary power for the Registrar to require drivers found guilty of driving under the influence of a drug to undergo an approved treatment before applying to regain their licence.
Clause 5(3) amends section 102AA(7)(a) to include any offence involving the use of a prohibited drug as a consideration for the court when determining an application by a driver for approval to apply to the Registrar for a commercial passenger vehicle or heavy vehicle licence before the expiration period of the driver’s licence, where the licence has been cancelled for relevant drink and drug driving offences(listed in the table in section 102AA). 
The Commissioner or Registrar may report to the court on any offence which includes an element involving the use of a drug, and was committed in the period after the cancellation of the licence. The Court must consider any such offence when determining whether to grant approval to the driver to make an application for a licence.
Clause 6 		Part XI inserted
Clause 6 inserts a new Part XI and section 141, which provide that the amendment to section 102AA(7)(a) requiring a court to consider further offences involving the consumption of drugs before allowing an offender to apply for a licence, will only apply in relation to offences that were committed after the commencement of this amendment Act. 
Part 3 	Amendment of Traffic Act
Clause 7		Act amended
This clause provides that Part 3 amends the Traffic Act.
Clause 8		Section 3 amended
This clause inserts new definitions in the Interpretation section of the Traffic Act for the terms prohibited drug and saliva test. The definitions refer to the meaning provided for these terms under section 19(1) of the Act. 
The clause also inserts a note in subsection 3(1) which directs the reader to the Interpretation Act for definitions and other provisions that may be relevant when interpreting the Traffic Act.
Clause 9		Section 19 amended
Clause 9 amends section 19(1) to include new definitions for the terms prohibited drug and saliva test.
The current definition for prohibited drug in section 28(6) has been removed by clause 12(4) of this Amendment Act. This clause notes that the definition is now located in new section 19A.
A new definition for saliva test (a test of a sample of a person’s saliva to ascertain whether a prohibited drug may be present in the person’s body) has also been inserted in section 19(1) to support the operation of provisions for drug related testing and offences under Part V the Traffic Act. 
Clause 10		Section 19A inserted
This clause inserts a new section for the definition of prohibited drug. The section adopts the existing definition which has been removed from section 28(6).
Clause 11		Part V, Division 3 heading amended
This clause amends the Division 3 heading to read ‘Offence of driving with drug in body’. The reference to ‘blood’ has been replaced with ‘body’ to reflect the new references to ‘body’ in the offences in s 28 and s 29AAA (see clauses 12 and 14). It also reflects new procedures which use saliva as well as blood samples for the purpose of analysis for detection of the presence of prohibited drugs in a person’s body.
Clause 12		Section 27A inserted and Section 27B inserted
Clause 12 inserts a new section 27A which establishes an evidentiary standard for saliva testing. The section provides that a drug which is detected through analysis of a saliva sample by an authorised analyst is evidence that the drug is in the person’s body from whom the sample was taken.
The clause also inserts a new section 27B which provides the Commissioner of Police with the power to approve a device, by Gazette notice, for the purposes of obtaining a saliva sample. The function of the approved device is to obtain a sample to be sent for analysis by an authorised analyst in a laboratory for the purpose of giving evidence in court for an offence under Part V of the Traffic Act. 
This section also allows the Commissioner to authorise persons, by Gazette notice, to use an approved device, and provides a power to make Regulations to prescribe procedures for the proper use of the approved device.
Clause 13		Section 28 amended
This clause provides that evidence obtained from analysis of a saliva sample can be used in proceedings for a section 28(1) offence of driving with prohibited drugs in the blood. All references to “blood” in sections 28(1) and (2) are replaced with the word “body” for these purposes.
Clause 13(1) amends the section 28 heading to include a reference to drugs in the “body”.
Clause 13(2) changes an element of the offence for driving with certain drugs in the blood by providing that the offence is committed where a prohibited drug is found in the person’s body, not blood. This allows the results of a saliva sample analysis to be used as evidence for the offence, alongside the existing capacity to use blood samples as evidence in s 29AAG(2).
Clause 13(3) amends the reference to the section 28(1) offence in section 28(2)(b) to read as “driving with a prohibited drug in the body”. 
Clause 13(4) removes the definition of prohibited drug from section 28(6). This definition has been moved to section 19 by clause 8 of the Amendment Act.
Clause 14		Section 29 amended
This clause includes a reference to analysis of saliva samples in the defence for certain drugs which are not strictly prohibited under s 19(1). The amendment allows a person to use a saliva sample, alongside the existing provision for blood samples, as a defence to s 28(1) where the analysis of that sample shows the presence of a drug not strictly prohibited under the Act (prescription drugs), and the person was under the treatment of a medical practitioner and had taken the drug in accordance with medical directions as part of that treatment.
Clause 15		Section 29AAA amended
This clause amends section 29AAA(2) to include the new offence of failing to submit to a saliva test (see Clause 17) as a previous offence, for the purposes of determining whether an offence against s 29AAA(1) is a second or subsequent offence.
Clause 15(2) amends section 29AAA(6)(a) by expanding the provision to apply to saliva as well as blood samples. The amended provision enables the court to find that a person was under the influence of a drug where there is no saliva analysis to provide evidence of a prohibited drug in the person’s body.  
Clause 16		Section 29AAB amended
Clause 16 removes the restriction that police officers may only conduct drug testing on a driver of a vehicle with a GVM of 4.5  or greater. The new sub-section permits random drug testing on drivers of all vehicles. The section is also reworded to include a reference to drugs in a driver’s “body” instead of blood, to accommodate for saliva testing and analysis.
Clause 17		Section 29AAF amended
Clause 17(1) permits a police officer to require a person to submit to one or more saliva tests to determine if the person has a prohibited drug in their body. 
The reference to a person’s “blood” is also replaced with the word “body”, consistent without other amendments to Part V of the Traffic Act.
Clause 17(2) amends section 29AAF(4)(a) to provide that police may arrest and detain a person where the person fails to provide a sufficient sample of saliva for the completion of a saliva test and any subsequent laboratory analysis. 
Individuals with a physical disability or health condition that prevents them from providing a sufficient saliva sample will continue to be exempted from saliva testing, in accordance with section 29AAF(5).
Clause 17(3) replaces the reference to “blood” in section 29AAF(4)(b) with the word “body”, consistent with other amendments to Part V of the Traffic Act.
Clause 17(4) provides Police with the necessary power to arrest and detain a person for the purposes of obtaining a saliva sample, where the person fails to provide a sufficient sample for a saliva test or the officer reasonably believes that the person’s body contains a prohibited drug. Immediate licence suspension applies after a person is arrested under this sub-section, as is the case where a person is arrested for the purposes of obtaining a blood sample.
Clause 18		Section 29AAFA inserted
This clause creates a new offence of failing to submit to a saliva test. Under the new section 29AAFA, persons who are required to submit to a saliva test and fail to provide a sufficient saliva sample for a test or subsequent analysis, will be guilty of an offence.
Refusing or failing to submit or refusing or failing to provide a sufficient saliva sample attracts a maximum penalty of 5 penalty units or 3 months imprisonment for a first offence and a maximum penalty of 7.5 penalty units or 6 months imprisonment for a second offence. 
A person is taken to have failed to submit if their actions or inactions in any way prevent the police officer from requiring the person to submit to a saliva 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 commits an offence against this section and has previously been found guilty of one or more of the following:
·	Driving under the influence of alcohol or a drug;
·	Driving with a prohibited drug in the body; or
·	Failing to submit to a saliva test.

An offence for which an infringement notice is issued and not withdrawn is taken to be a previous offence when determining whether an offence is a second or subsequent offence.

The minimum licence loss applicable when a court finds the person guilty of offences against this section is also provided. For a second offence against this section, a minimum 3 month disqualification period applies and subsequent offences will attract a minimum 6 month disqualification period.

A second or subsequent offence under this provision is an immediate licence suspension offence.

Clause 19		Section 29AAG amended

The clause amends section 29AAG to replace references to “blood” with the word “body”, consistent with other amendments to Part V of the Traffic Act.

Clause 20		Section 29AAH amended
This clause includes the new offence of failing to submit to a saliva test as a previous offence, for the purposes of determining whether an offence against s 29AAH(1) is a second or subsequent offence.
The new offence has also been added to the lists of previous offences in subsections 29AAF(4) and (5) which attract a minimum licence disqualification period of five years where a person commits a subsequent offence against section 29AAH(1).
Clause 21		Section 29AAK amended
This clause amends the procedure for obtaining a blood sample to require a person taking the blood sample to divide it into more than two portions. The amendment has been made to allow blood samples to be divided into three portions; one portion to be used for alcohol testing, a second portion to be used for drug testing, and the final portion to be made available to the person from whom it was taken.
Clause 22		Section 29AAL amended
This clause provides a person who is in custody after undergoing a saliva analysis with the right to communicate with a medical practitioner to request any of the following:
·	an examination of the person;
·	a sample of the person’s blood; or
·	to arrange a sample of the person’s blood to be taken by another medical practitioner, registered nurse or  a qualified person.
The provision accommodates the circumstances where, after undergoing saliva testing, a person requests that a police officer arrange for the person to obtain a sample of their blood for drug testing.
Upon receiving such a request, the police officer must make relevant arrangements that are reasonable in the circumstances to meet the request.
Clause 23		Section 29AALA inserted
This clause inserts a new provision which enables a person from whom a saliva sample was taken to request a portion of that sample from an authorised analyst for the purposes of independent testing. 
Where a request is made, the sample must be sent at the expense of the person submitting the request to a medical practitioner or other laboratory nominated by the person. The request must be made within 6 months of the person being served with an infringement notice or court summons for a drug driving offence.
Clause 24		Section 29AAM amended
This clause amends section 29AAM to enable police officers to impose a 24 hour suspension on the driver’s licence of a person who has been detained under section 29AAF(4) for the purpose of obtaining a sample of their saliva for analysis. The section has also been restructured for ease of interpretation.
Clause 25		Section 29AAT amended
This clause replaces references to “blood” with the word “body”, consistent with other amendments to Part V, which means that a positive drug analysis from saliva testing cannot be used in evidence in proceedings under the Misuse of Drugs Act.
Clause 26		Section 29AAU amended
This clause provides that a certificate, signed by a person authorised by the Commissioner of Police under section 27B to use an approved device for obtaining a sample of saliva, will be considered evidence of the matters stated in the certificate in any court proceedings.
Clause 27		Section 29AAX amended
This clause replaces references to “blood” with the word “body”, consistent with other amendments to Part V, which means that a positive drug analysis from saliva testing cannot be used in evidence in proceedings under the Misuse of Drugs Act.
Clause 28		Section 53 amended
This clause expands the Administrator’s current regulation-making powers to provide the Commissioner of Police with the capacity to authorise persons to carry out saliva analysis under regulation 60 of the Traffic Regulations.
Part 4 	Amendment of Traffic Regulations
Clause 29		Regulations amended
This clause provides that Part 4 amends the Traffic Regulations.
Clause 30		Part 4 heading amended
This clause amends the heading for Part 4 to read “Driving with Alcohol in breath or blood or drug in body”, consistent with other amendments to Part V of the Traffic Act.
Clause 31		Regulation 55A amended
Sub-clause (1) removes the reference to section 28 in the heading for regulation 55A to reflect the re-location of the definition of prohibited drug to section 19A of the Traffic Act.
The remaining clauses remove references to the section 28(6) definition of prohibited drug in sub-regulations (1) and (2) and insert references to the new location of the definition in section 19A in the Traffic Act.
Clause 32		Regulation 55B amended
This clause amends the note in regulation 55B to clarify that, in circumstances where a person has consumed codeine and a preliminary saliva test gives a false positive indication of the presence of morphine, a saliva analysis may be conducted. 
Clause 33		Schedule 1 amended
This clause amends item 26 in Schedule 1 of the Traffic Regulations to reflect the new reference to “body” in an offence under section 28(1) of the Traffic Act (see Clause 11).
Clause 34		Schedule 1A amended
This clause amends Schedule 1A of the Traffic Regulations to remove specific references to the section 28(6) definition of prohibited drug and insert references to the new location of the definition in the Traffic Act.
Part 5	Expiry of Act
Clause 35		Expiry of Act
The clause provides that this Act expires on the day after it commences.