Road Safety (Drugs) Bill
Circulation Print
EXPLANATORY MEMORANDUM
551463
BILL LA CIRCULATION 1/3/2006
Purposes
The Bill has three main purposes—
· To remove the 1 July 2006 sunset on the random drug testing program so that the program will continue on an ongoing basis; and
· To include "ecstasy" in the random drug testing program; and
· To facilitate the implementation in Victoria of a new national system for registration charges for heavy vehicles.
Random drug testing program to become permanent
Amendments to the Road Safety Act 1986 passed in 2003 introduced a trial program for the random testing of drivers for "prescribed illicit drugs", namely "cannabis" (delta-9-tetrahydrocannabinol or "THC") and "speed" (methylamphetamine).
The provisions relating to the random testing of drivers for prescribed illicit drugs were inserted into the Road Safety Act 1986 by the Road Safety (Drug Driving) Act 2003 on a trial basis. Section 23 of the Road Safety (Drug Driving) Act 2003 originally provided for the sunsetting of the random testing provisions on 1 July 2005. The sunset date was extended by the Road Safety (Further Amendment) Act 2005, and the random drug testing provisions are currently due to sunset on 1 July 2006.
This Bill will now repeal the provisions of the Road Safety (Drug Driving) Act 2003 which provide for the sunset of the random drug testing provisions.
This means, in effect, that the provisions supporting the random drug-testing program will remain in the Road Safety Act 1986 on an ongoing basis.
Inclusion of "ecstasy" in the random drug testing program
The random testing program tests for drugs that are defined in section 3(1) of the Road Safety Act 1986 as "prescribed illicit drugs". Currently, the prescribed drugs are "cannabis" (delta-9-tetrahydrocannabinol) and "speed" (methylamphetamine).
The Bill proposes to include the drug commonly known as "ecstasy" in the random testing program. To this end, the Bill will add ecstasy to the definition of "prescribed illicit drug" in section 3(1) of the Road Safety Act 1986. The chemical description of ecstasy is 3, 4-Methylenedioxy-N-Methylamphetamine (MDMA).
Under section 49(1)(bb), (h) and (i) of the Act, a person who drives or is in charge of a vehicle while having a prescribed illicit drug in his or her blood or oral fluid (or in a sample of blood or oral fluid collected within 3 hours of driving etc.) is guilty of an offence. An offence is committed if the presence of the prescribed illicit drug is detected, and it does not have to be established that the person was actually impaired by the drug at the time of driving or being in charge of the vehicle. Where actual impairment can be demonstrated, the person may be guilty of one of the more serious drug driving offences. It is also an offence to refuse to supply a sample of oral fluid for testing purposes—section 49(1)(eb).
As with the existing prescribed illicit drugs, ecstasy—
· is capable of causing impairment of a person's ability to drive a vehicle; and
· has no current lawful use.
Heavy vehicle charges
There is a national scheme for fixing heavy vehicle charges in Australia. TheBill makes amendments to enable Victoria to implement proposed changes to the national scheme.
The current mechanism for fixing fees for heavy vehicle registration and permits in Victoria is as follows. Section 95A of the Road Safety Act 1986 provides that Victorian registration and permit fees for heavy vehicles may not exceed the fees fixed in respect of the Australian Capital Territory ("ACT") under the Road Transport Charges (Australian Capital Territory) Act 1993 of the Commonwealth. In accordance with this limitation, regulations 235 and 236 of, and Schedule 4 to, the Road Safety (Vehicles) Regulations 1999 fix registration fees by reference to the relevant fees fixed for the ACT, as set out in the Schedule to the Commonwealth Act.
In 2003, the Australian Transport Council agreed that road transport legislation enacted by the Commonwealth on behalf of the ACT would be repealed and that each jurisdiction would enact its own legislation which is part of a national uniform model or is nationally consistent.
In October 2005, the National Transport Commission published for consultation a report titled "Third Heavy Vehicle Road Pricing Determination Draft Regulatory Impact Statement". The abstract for this Report states—
This report is a draft Regulatory Impact Statement on proposals to update national heavy vehicle charges for the use of Australia's roads. National road use charges for heavy vehicles were last updated between July and December 2000. Since then, there have been significant changes in the pattern and amount of road expenditure, better understanding of the link between roads use and road expenditure, and changes in the use of roads by Australia's heavy vehicles. This report updates the charges, and addresses the various concerns which have arisen since the previous set of charges.
The Report goes on to explain that it "is intended that any changes to the national heavy vehicle charges would be implemented from July 2006". It is intended that, once a national fee structure has been established in accordance with a national regulatory impact statement, each jurisdiction will fix heavy vehicle fees directly through its own legislation in accordance with the general arrangements agreed in 2003.
This Bill facilitates the implementation in Victoria of the proposed national reforms by repealing section 95A of the Road Safety Act 1986—see clause4 of the Bill. The capping of Victorian fees by reference to those set by the Commonwealth Act in respect of the ACT will become redundant once the proposed system is implemented.
Pending completion of the national RIS process and the making of Victorian regulations to fix the new fees, the current fees will continue to apply—see clause 5 of the Bill.
Clause Notes
Clause 1 sets out the purposes of the Bill, namely to amend the Road Safety Act 1986 and related legislation—
· to remove the sunset on the random drug testing program;
· to add "ecstasy" to the drugs for which a driver or person in charge of a motor vehicle may be tested at random; and
· to repeal section 95A, which relates to fees for registration and permits for heavy vehicles.
Clause 2 sets out commencement arrangements for the various provisions of the Bill.
Sub-clause (1) provides that the Act (other than sections 3, 4 and5) comes into operation the day after the Bill receives Royal Assent. Clause 1 is the purposes clause and clause 2 deals with commencement arrangements. Clause 6 will repeal the 1 July 2006 sunset that currently applies to the random drug testing program.
Sub-clause (2) provides that clauses 4 and 5, concerning registration and permit fees for heavy vehicles, come into operation on 1 July 2006.
Sub-clauses (3) and (4) provide that section 3 comes into operation on a day to be proclaimed, or if it has not come into operation by 1 September 2006, on that day.
Clause 3 amends the definition of "prescribed illicit drug" in section 3(1) of the Road Safety Act 1986 to include the drug commonly referred to as "ecstasy". The full chemical description of the drug is included in the definition, namely, "3, 4-Methylenedioxy-N-Methylamphetamine (MDMA)".
This amendment is to come into operation no later than 1September 2006.
The effect of the amendment is that "ecstasy" will be included in the random drug testing program for drivers. Provisions of the Road Safety Act 1986 that currently apply to "prescribed illicit drugs" will be extended to "ecstasy" in addition to "cannabis" (THC) and methylamphetamine (sometimes called "speed").
In particular, existing provisions of the Road Safety Act 1986 which would have their operation extended by the inclusion of "ecstasy" in the definition of "prescribed illicit drug" include—
Section 49(1)(bb)—offence of driving or being in charge of a motor vehicle while the prescribed concentration of drugs or more than the prescribed concentration of drugs is present in the person's blood or oral fluid.
Section 49(1)(eb)—offence for a driver or person in charge of a motor vehicle to refuse to provide a sample of oral fluid collected when required to do so in accordance with section 55D or 55E.
Section 49(1)(h)—offence for a prescribed illicit drug to be detected in a sample of oral fluid collected within 3 hours of driving or being in charge of a motor vehicle.
Section 49(1)(i)—offence for a prescribed illicit drug to be detected in a sample of blood collected within 3 hours of driving or being in charge of a motor vehicle.
Section 49(3AAA)—maximum penalties for the offences mentioned above.
Section 50(1DA)—licence disqualification for a "refuse oral fluid test" offence against section 49(1)(eb).
Section 55E—Police powers to require drivers and persons in charge of vehicles to provide samples of oral fluid for testing for prescribed illicit drugs in certain circumstances and related purposes.
Section 57B—use of test results for prescribed illicit drugs in legal proceedings, such as coronial inquests and trials for culpable driving or manslaughter.
Section 62—power of Police to prevent a person from driving when that person's oral fluid has tested positive to a prescribed illicit drug.
The amendment does indirectly extend the scope of the provisions of the Road Safety (General) Regulations 1999 which prescribe devices and testing procedures for the purposes of the random drug testing program: see in particular regulations 207C to 207H of those Regulations.
The amendment also indirectly extends the effect of regulation301 of the Road Safety (Drivers) Regulations 1999, which prescribes 3 demerit points for offences against section 49(1)(bb), (h) or (i).
Clause 4 repeals section 95A of the Road Safety Act 1986, with effect from 1 July 2006.
Section 95A presently sets a cap on Victorian fees for heavy vehicle registration and permits based on the fees that apply in the Australian Capital Territory under the Road Transport Charges (Australian Capital Territory) Act 1993 of the Commonwealth. It is proposed that, in future, the regulations under the Act will fix fees that are to be determined nationally in accordance with a national regulatory impact statement developed and published by the National Transport Commission. See the general notes above for further explanation of this issue.
Clause 5 is a transitional provision that provides that the repeal of section95A of the Road Safety Act 1986 on 1 July 2006 will notaffect the fees presently payable, pending the making of regulations to prescribe new fees. It is intended that these new fees will be consistent with a national scheme to be determined through a regulatory impact statement process conducted by the National Transport Commission.
Clause 6 repeals section 23 of the Road Safety (Drug Driving) Act 2003 and certain other provisions of that Act relating to the sunsetting of the random drug test provisions of the Road Safety Act 1986, with effect from the day following Royal Assent.
Section 23 and related provisions will repeal the random drug testing provisions of the Road Safety Act 1986 on 1 July 2006. The repeal of section 23 itself will mean that the random drug testing provisions will not be repealed, but will remain in the Road Safety Act 1986 on an ongoing basis.
There are provisions in both the Road Safety (General) Regulations 1999 (relating to prescribed devices and testing procedures) and the Road Safety (Drivers) Regulations 1999 (relating to demerit points for random drug test offences) that are also due to sunset on 1 July 2006. Consequential amendments to those Regulations will be required in due course.
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