Road Legislation (Projects and Road Safety) Bill
Introduction Print
EXPLANATORY MEMORANDUM
551419
BILL LA INTRODUCTION 23/8/2006
General
Part 1sets out the purposes of the Bill and when the various provisions commence operation.
Part 2amends provisions of the Road Safety Act 1986 concerning drink-driving and drug-driving.
Part 3amends provisions of the Road Safety Act 1986 concerning heavy vehicles.
Part 4introduces a range of measures to improve the safety of probationary and younger drivers.
Part 5reforms the "owner onus" provisions in the Road Safety Act 1986 and other legislation to assist with identifying the actual driver responsible for traffic camera, parking and tolling offences.
Part 6requires VicRoads to block registration transfers when vehicles are subject to impoundment, immobilisation or forfeiture applications, and allows for the placing of notations on the Vehicle Securities Register established under the Chattel Securities Act 1987 to warn potential purchasers that vehicles are subject to such an application.
Part 7makes other miscellaneous amendments to the Road Safety Act 1986.
Part 8makes miscellaneous amendments to the Road Management Act 2004.
Part 9amends the Land Acquisition and Compensation Act 1986 in relation to the way in which compensation is calculated where public acquisition reservations are used as boundaries for unrelated zoning purposes.
Part 10facilitates the construction of a project at the MountHothamVillage. This involves relocation of the Great Alpine Road, the construction of a new road on an elevated structure and provision for the granting of rights in relation to that structure by agreement.
Part 11facilitates the construction and operation of the M1 Redevelopment Project, which involves an upgrade of the M1 corridor from Doveton to Yarraville. In particular, Part 11 clarifies powers to vary agreements under the Melbourne City Link Act 1995 in relation to the part of City Link affected by the Project, inserts a new Schedule 5A into the Road Management Act 2004 to expedite planning processes and land acquisitions for the Project, enables licences and permits to be issued authorising construction and deals with issues related to the interface between Project works and Utility infrastructure.
Clause Notes
PART 1—PRELIMINARY
Clause 1sets out the purposes of the Bill.
Clause 2sets out the commencement dates for each of the provisions.
Parts 1, 2, 3 (except clauses9 and 11), 6, 7 and 8 come into operation the day after Royal Assent. These Parts contain the preliminary provisions, alcohol and other drug amendments, amendments relating to heavy vehicle operations, provisions relating to impoundment, immobilisation and forfeiture of vehicles and miscellaneous amendments to the Road Safety Act 1986 and the Road Management Act 2004.
The remaining provisions of the Act come into operation on a day or days to be proclaimed, subject to sub-clauses (3), (4) and(5), which provide that various provisions will commence onvarious specified dates if they have not been proclaimed by those dates. Those dates are—
- for clauses 16 (compulsory carriage of licence by young drivers) and 19 (drink driving offences committed by young or inexperienced drivers)—1 January 2007;
- for clauses 9 and 11 (Intelligent Access Program for heavy vehicles) and 18 (compulsory carriage of learner permits)—1 July 2007;
- for clauses 17 and 20 (probationary licences)—1 July 2008.
PART 2—ALCOHOL AND OTHER DRUGS AMENDMENTS
The main purposes of Part 2 are to increase—
- the penalties for second and subsequent drink driving offences (including refusal to comply with testing requirements), as recommended by the Sentencing Advisory Council;
- the penaltiesfor drug driving offences;
- the circumstances in which the court may or must impose an alcohol interlock condition when it grants a re-licensing application made by a person whose driver licence or permit was cancelled for a drink driving offence;
- the minimum period before which a person whose driver licence or permit has been made subject to an alcohol interlock condition following a second or subsequent drink driving offence may apply to the court for removal of that condition.
The recommendations of the Sentencing Advisory Council are contained in its Report entitled "Maximum Penalties for Repeat Drink Driving", published in September 2005. The Report recommended a general increase in the maximum terms of imprisonment to which second and subsequent offenders should be liable. It also recommended that the maximum term of imprisonment for repeat offenders should be dependant on the blood or breath alcohol concentration (BAC) of the offender and the number of prior offences that the offender has committed.
The Report found that alcohol remains a leading factor in fatal road crashes in Australia. Research shows that the likelihood of a crash increases significantly with BAC level and that the crash risk associated with a BAC of 015 is 25 times higher than that associated with a zero BAC.
The Report revealed that almost half of drink drivers with a high BAC (015or more) are repeat offenders. Victorian research shows that in 2001 repeat drink driving offenders were responsible for 22 fatalities and 560serious injuries, and that such crashes cost the Victorian community approximately $81 million each year.
Accordingly, Part 2 establishes different penalty levels for first, second and subsequent offences, with the penalties being dependant on the BAC of the offender.
Part 2 further adopts the maximum terms of imprisonment recommended by the Sentencing Advisory Council for offenders committing second offences and subsequent offences, with the aim of reducing the number of drivers whose driving is affected by alcohol or other drugs, and in recognition of the gravity with which the community views these offences.
While the Sentencing Advisory Council Report did not deal with drug driving offences, the penalties for drug driving offences are closely linked with the penalties for drink driving offences. Penalties for drug driving offences are increased by this Part substantially in line with the penalties for drink driving offences, on the basis that many of the Council's findings apply equally to drug driving.
Clause 3amends section 48(2) of the Road Safety Act 1986. Section48(2) sets out the circumstances in which an offence is treated as a subsequent offence for the purposes of Part 5 of that Act. The amendment provides for an offence to be treated as a second or a subsequent offence, depending on the circumstances. This is important because, under other amendments in this Part which increase penalties for repeat drink driving and repeat drug driving, two levels of penalty for subsequent drink driving and drug driving offences are created. These depend on whether an offence is a "second offence'' or another "subsequent offence" (that is, a third or later offence).
Under the existing section 48(2), an offence of the kind referred to in that section is a "subsequent offence" if the person has previously been found to have committed any one of those offences. A subsequent offence carries a higher maximum penalty than a first offence. Further, the fact that an offence is asubsequent offence is relevant in determining the minimum licence loss period that will result from that offence.
Under the amendments to section 49(2) and (3) (see notes on clause 4 below), the maximum penalties for third and later offences will be higher than the maximum penalties applicable to second offences. It is therefore necessary for section 48(2) to be amended to set out which subsequent offences are also to be regarded as second offences.
A "new offence" against one of the provisions referred to in section 48(2) will be categorised as a second offence for sentencing purposes if the person has, only once before, been convicted or found guilty of an "old offence" against any one of those provisions.
The new sub-sections substituted by clause 4 for section 49(2) and (3) use this categorisation as the basis for setting maximum penalties for second offences that are different from the maximum penalties set for "other" subsequent offences, that is, for third or later offences.
Second offences remain "subsequent offences" for all other relevant purposes. A second offence will, for example, result in licence loss for the period applicable to subsequent offences generally.
Other amendments made to section 48(2) are intended to ensure that the new penalty levels will apply irrespective of whether the person has been either convicted or found guilty of the relevant offence.
Clause 4amends section 49 of the Road Safety Act 1986 to set out the categories of offence for drink driving and drug driving offences, and to prescribe the penalties for each. It also amends section 50 of that Act, which contains provisions regarding licence cancellation and disqualification for drink driving and drug driving offences.
The amendments increase penalties for certain drink-driving offences in line with the recommendations of the Sentencing Advisory Council "Report on Maximum Penalties for Repeat Drink Driving" (September 2005). The current penalty scales for those offences also apply to certain drug-driving and "refuse test" offences, and it is proposed to make corresponding increases in the penalties for those offences.
Sub-clause (1) introduces new maximum penalties in respect of—
- second offences; and
- other subsequent offences (i.e.a third or later offences)—
against paragraph (a) of section 49(1). Section 49(1)(a) creates the offence of being a driver who is under the influence of intoxicating liquor or of any drug to such an extent as to be incapable of having proper control of the vehicle.
The following table shows the maximum penalties that currently apply under section 49(2) with respect to offences against section 49(1)(a), together with the maximum penalties under the amendments proposed by clause 4(1)—
No of offences* /Maximum fine / Maximum term of imprisonment
First offence
(no change) / 25 penalty units / 3 months
Subsequent offences:
At present: / — / 12 months
Proposed:
- Second offence
- Other subsequent offences, i.e.third or later
* Note that a previous offence against any one of the provisions referred to in section 48(2) counts as a prior offence for these purposes.
Sub-clause (2) substitutes new sub-sections (2A) and (3) for section 49(3) of the Act. New section 49(2A) introduces new maximum penalties in respect of offences against the following paragraphs of section 49(1) of the Road Safety Act 1986, where the offence is a second offence or is another subsequent offence (i.e.a third or later offence)—
- 49(1)(b): Drive or be in charge of motor vehicle while the prescribed concentration of alcohol or more is in blood or breath.
- 49(1)(f): Fail alcohol breath test within 3 hours of driving.
- 49(1)(g): Fail alcohol blood test in respect of sample taken within 3 hours of driving.
The penalties differ accordingly to whether the person had a BAC of below 015 or 015 and above.
The following table shows the maximum penalties that currently apply under section 49(3) with respect to offences against section 49(1)(b), (f) and (g), together with the maximum penalties under the amendments proposed by clause 4(2)—
No of offences* /Maximum fine / Maximum term of imprisonment
First offence
(no change) / 12 penalty units / —
Subsequent offences:
At present: / 25 penalty units / 3 months
Proposed:
- Second offence involving BAC of less than 015
- Second offence involving BAC of 015 or more
- Other subsequent offences, i.e.third or later, involving BAC of less than 015
- Other subsequent offences, i.e.third or later, involving BAC of 015 or more
* Note that a previous offence against any one of the provisions referred to in section 48(2) counts as a prior offence for these purposes.
New sub-section (3) introduces new penalties for each of a second offence and a subsequent offence for offences under paragraphs (ba), (c), (ca), (d), (e) or (ea) of section 49(1) relating to driving while impaired by a drug and refusing to undergo tests or to comply with directions given in relation to them.
The new penalties for all second and subsequent offences are substantially higher than the existing penalties for a subsequent offence.
The following table shows the maximum penalties that currently apply under section 49(3) with respect to offences against section 49(1)(ba), (c), (ca), (d), (e) or (ea), together with the maximum penalties under the amendments proposed by clause 4(2)—
No of offences* /Maximum fine / Maximum term of imprisonment
First offence
(no change) / 12 penalty units / —
Subsequent offences:
At present: / 25 penalty units / 3 months
Proposed:
- Second offence
- Other subsequent offences, i.e.third or later
* Note that a previous offence against any one of the provisions referred to in section 48(2) counts as a prior offence for these purposes.
Sub-clause (3) introduces new penalties for a first offence and each of a second offence and a subsequent offence in respect of offences against the following paragraphs of section 49(1)—
- 49(1)(bb): Drive or be in charge of motor vehicle while the prescribed concentration of drugs or more is in blood or oral fluid.
- 49(1)(eb): Refuse to provide a sample of oral fluid.
- 49(1)(h): Fail drugs oral fluid test in respect of sample taken within 3 hours of driving.
- 49(1)(i): Fail drugsblood test in respect of sample taken within 3 hours of driving.
The new penalties for these offences are substantially higher than the existing penalties. However, the new penalties are less than the penalties for other offences under section 49(1) and do not provide for the imposition of a prison term. The proposed penalties for these drug driving offences are—
No of offences* /Maximum fine / Maximum term of imprisonment
First offence
At present: / 6 penalty units / —
Proposed: / 12 penalty units / —
Subsequent offences:
At present: / 12 penalty units / —
Proposed:
- Second offence
- Other subsequent offences, i.e.third or later
* Note that a previous offence against any one of the provisions referred to in section 48(2) counts as a prior offence for these purposes.
Sub-clause (4)(a) increases the period for which a court must cancel a driver licence or permit, and the minimum period the offender must be disqualified from obtaining a licence or permit, when a person is convicted or found guilty of an offence against paragraph (eb) of section 49(1) (refusing to provide a sample of oral fluid). In the case of a first offence the period is increased from 3 months to 6 months and in the case of a subsequent offence the period is increased from 6 months to 12 months.
Sub-clause (4)(b) increases the period for which a court may cancel a driver licence or permit, and the maximum period the offender may be disqualified from obtaining a licence or permit, when a person is convicted or found guilty of an offence against paragraphs (bb), (h) or (i) of section 49(1) (failing a roadside drug test). In the case of a first offence the period is increased from 3 months to 6 months and in the case of a subsequent offence the period is increased from 6 months to 12 months.
Sub-clause 4(c) provides that where a person has been disqualified from driving as the result of a first drink driving offence involving a BAC of 007 or more, he or she can only be re-licensed if the Magistrates' Court has made a licence restoration order. Previously the BAC level which triggered the requirement to obtain a licence restoration order was 010 or more. This amendment is a consequence of other amendments made by the Bill allowing (clause 5(1)) or requiring (clause19(2)) the court to impose an alcohol interlock condition when granting a licence restoration order in respect of a person whose licence was disqualified for a first drink-driving offence involving a BAC of 007 or more. Section 50AAA(1) of the Actmakes it clear that alcohol interlock conditions are imposed as a condition of a licence restoration order, and therefore in order for the court to be able to impose an alcohol interlock condition in the situations provided for by the amendments made by clauses 5(1) and 19(2), it is necessary to ensure that a person whose licence was disqualified for a first drink driving offence involving a BAC of 007 or more is required to obtain a licence restoration order.
Theincrease in penalties made by clause 4(1) to (4)(b), and the lowering of the BAC level for a first drink driving offence which triggers the requirement to obtain a licence restoration order made by clause 4(4)(c), will only apply to offences committed wholly after the commencement of the relevant provision (seenew section 103L inserted by clause 50).
Sub-clause (4)(d) is also a consequential amendment upon the alcohol interlock amendments in clause 5. Clause 5(3) and (4) repeal section 50AAA(3)(a) and replace it with new section 50AAA(3AA). This means that the notes at the end of section 50(4A) and 50(4B) which refer to section 50AAA(3)(a) need to be amended to refer to the new section 50AAA(3AA). The effect of previous section 50AAA(3)(a) and new section 50AAA(3AA) is that where the court will be required to impose an alcohol interlock condition on a person whose licence was cancelled as a result of a drink driving offence, the person does not have to obtain the report which is normally required by section 50(4B)(a) assessing his or her use of alcohol at least 12 months before applying for a licence restoration order. This issue is dealt with further in the explanation of clause 5(3) and (4).
Clause 5makes various amendments to the provisions in the Road Safety Act 1986 regarding alcohol interlocks. Alcohol interlocks are devices that prevent motor vehicles from starting unless a sample of breath blown into them has been analysed by the device as being free from alcohol.
Sub-clauses (1) to (5)(a) amend section 50AAA, which requires or enables courts to impose an alcohol interlock condition on a person's driver licence or permit when they grant a re-licensing application made by that person after he or she has completed a period of disqualification imposed as the result of a drink driving offence.
Sub-clause (1) inserts a new sub-section (1A) into section 50AAA to provide that the court may impose an alcohol interlock condition on a person who was disqualified from driving as the result of a first drink driving offence involving a blood or breath alcohol concentration (BAC) of 007 or more but less than 015. Previously an interlock condition could only be imposed for a first drink driving offence involving a BAC of 015 or more.
Sub-clause (2) amends section 50AAA(2) to provide that the court must impose an alcohol interlock condition on a person who was disqualified from driving as the result of a first drink driving offence involving—