Road Safety and Sentencing Acts Amendment Act 2013

Road Safety and Sentencing Acts Amendment Act 2013

No. 56 of 2013

table of provisions

SectionPage

Part 1—Preliminary

1Purposes

2Commencement

Part 2—Driver Licence and Learner Permit Eligibility Following Disqualification

3New sections 31A to 31L inserted in Road Safety Act1986

31ADisqualified person requires licence eligibility order before applying for licence or permit

31BApplication for licence eligibility order

31CWho must obtain an assessment report?

31DWhen assessment report must be obtained

31EWho must obtain a licence eligibility report?

31FWhen licence eligibility report must be obtained

31GObtaining by Magistrates' Court of licence eligibility report when not otherwise required

31HProcedure on hearing of application for licence
eligibility order

31IEffect of licence eligibility order

31JCourt must notify the Corporation of the making of a licence eligibility order

31KApplication of Evidence Act 2008

31LAccompanying driver offences

4New Schedule 1A inserted

SCHEDULE 1A—Assessment Report Requirement

Part 3—Alcohol Interlock Conditions

5Interpretative provisions

6New section 50AAA substituted

50AAADirection to impose alcohol interlock condition

7When an alcohol interlock condition can be removed

8Appeals against direction or period specified in direction

9New sections 50AACA to 50AACC inserted

50AACAEffect of alcohol interlock condition removal order

50AACBCourt must notify the Corporation of certain matters

50AACCApplication of Evidence Act 2008

10Approval of types of alcohol interlocks and alcohol interlock suppliers

11New sections 50AAEA and 50AAEB inserted

50AAEARefusal of approved alcohol interlock supplier to supply

50AAEBChange of terms and conditions

12Conditions on approvals

13New Schedule 1B inserted

SCHEDULE 1B—Alcohol Interlock Requirement

Part 4—Consequential and Other Miscellaneous Amendments

Division 1—Road Safety Act 1986

14Definitions

15New sections 3AD and 3AE inserted in Road Safety Act1986

3ADCircumstances in which person is to be taken to
be disqualified from obtaining a driver licence or
learner permit

3AECircumstances in which person is to be taken to be disqualified from driving a motor vehicle on a road
in Victoria

16Offence if driver not licensed

17Driver licences

18Probationary driver licences

19Effect of suspension of licence or permit

20Disqualified person must not apply for licence or permit

21Appeal against disqualification, cancellation, suspension or variation by order of Magistrates' Court or Children's Court

22Offence to drive while disqualified etc.

23Accredited agencies

24Provisions about cancellation and disqualification

25Alcohol interlock provisions

26Previous convictions

27Zero blood or breath alcohol

28General duty of driver or person in charge of motor vehicle

Division 2—Marine (Drug, Alcohol and Pollution Control)
Act1988

29Interpretation

Division 3—Magistrates' Court Act 1989

30Duplicate warrants

Division 4—Sentencing Act 1991

31Definition

32New Division 3 of Part 4 substituted

Division 3—Driver licences and learner permits—suspension, cancellation and driver disqualification

87PDefinition

87QMatters to be sent to Roads Corporation

88Application of Evidence Act 2008

89Suspension or cancellation of driver licence or learner permit and driver disqualification—certain motor
vehicle offences

89ASuspension or cancellation of driver licence or learner permit and driver disqualification—any offence

89BCommencement of period of disqualification

89CFinding on cancellation of driver licence or learner permit or driver disqualification

89DPresumption in favour of concurrency

89DACancellation on disqualification

89DBEffect of cancellation

33Statute law revision—section 146 renumbered as section149

Division 5—Criminal Procedure Act 2009

34Amendment of Criminal Procedure Act 2009

Division 6—Sentencing Amendment (Community Correction Reform) Act2011

35Amendment of Sentencing Amendment (Community Correction Reform) Act 2011

Part 5—Transitional Arrangements

36New section 103ZG inserted in Road Safety Act1986

103ZGTransitional provisions—Road Safety and
Sentencing Acts Amendment Act 2013

37New section 150 inserted in Sentencing Act 1991

150Transitional provisions—Road Safety and
Sentencing Acts Amendment Act2013

38Amendment of Schedule 3 to Sentencing Act 1991

part 6—repeal of Amending act

39Repeal of amending Act

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Endnotes

SectionPage

Victoria

SectionPage

Road Safety and Sentencing Acts Amendment Act 2013[†]

No. 56 of 2013

[Assented to 24 September 2013]

Road Safety and Sentencing Acts Amendment Act 2013
No. 56 of 2013

The Parliament of Victoriaenacts:

Part 6—Repeal of Amending Act

Road Safety and Sentencing Acts Amendment Act 2013
No. 56 of 2013

Part 1—Preliminary

1Purposes

The main purposes of this Act are to amend the Road Safety Act 1986 and the Sentencing Act 1991—

(a)tocreateasingleprocessforapplyingto the Magistrates'Courtforanorderdeclaring that apersondisqualifiedundereither of those Actsfrom obtaininga driverlicenceorlearnerpermit is eligibletoapplytotheRoads Corporation forone; and

(b)tocreateasingleprocessforimposing an alcoholinterlockconditionon,or removing onefrom,adriverlicenceorlearner permit grantedfollowingthemakingofan order referredtoinparagraph(a).

2Commencement

s. 2

(1)This Part, sections19(1), 20, 21, 22,33and38and Divisions3,5 and 6 of Part 4 come into operationonthedayafterthedayonwhich this ActreceivestheRoyal Assent.

(2)The remaining provisionsofthisActcomeintooperationon30 September 2013.

______

Part 2—Driver Licence and Learner Permit Eligibility Following Disqualification

s. 3

See:
Act No.
127/1986.
Reprint No. 15
as at
20 February 2013
and amending
Act Nos
19/1991, 34/2011, 65/2011, 75/2012, 76/2012 and 22/2013.
LawToday:
www.
legislation.
vic.gov.au

3Newsections31Ato31L inserted inRoad Safety Act1986

After section 31 of the Road Safety Act 1986 insert—

"31A Disqualified person requireslicence eligibility order before applying for licence or permit

(1)Apersontowhomthissectionappliesmay onlymakeanapplicationtothe Corporation forthegrantofadriverlicenceor learner permitiftheMagistrates'Courthasmadea licence eligibility order in respectofhimorher.

(2)Subjectto subsection (3),thissection applies toapersonwhohas beendisqualified under section50or89CofthisActorsection89 or89A(1) oftheSentencing Act 1991from obtaining adriver licenceorlearner permit or who, by force of section 3AD (other than paragraph (b) of that section) of this Act, is to be taken to have been so disqualified.

Note

Section 28A(2) provides that a person whose driver licence or learner permit is suspended by force of section 89(4) or 89A(1) of the Sentencing Act 1991 is not disqualified for the purposes of this section.

(3)Thissectiondoesnotapplytoapersonif the onlyoffence inrespectofwhichthe person was disqualified—

(a)wasanoffence undersection 49(1)(b), (f)or(g); and

(b)the concentration of alcohol—

(i) inthebloodofthatperson was lessthan0·07gramsper 100millilitresofblood; or

(ii)inthebreathofthatperson was lessthan0·07gramsper210 litres ofexhaled air—

asthecaserequires; and

(c)itwasthatperson'sfirst offence.

Note

Undersection28B itisanoffenceforaperson disqualified fromobtainingadriverlicenceorlearnerpermit to apply for, or obtain, one.

31BApplication for licence eligibility order

s. 3

(1)An application totheMagistrates' Courtfor a licence eligibility ordermaybe made on giving28dayswrittennoticeof the application and of the venueoftheCourt at whichitistobeheard to—

(a)theChief Commissioner ofPolice; and

(b)theregistraratthatvenueofthe Court.

(2)The Magistrates' Courtmustnotdeal with, or determine, an applicationforalicenceeligibility order unless it is satisfied that the applicant has—

(a)ceased to be disqualified from obtaining a driver licence or learner permit; and

(b)complied with the requirements of subsection (1) and of sections 31C to31G.

31CWho must obtain an assessment report?

(1)A person to whom this section applies must, within the timeframe provided by section31D, obtain from an accredited agency an assessment report about his or her usage of alcohol or drugs, as the case requires, before applying for a licence eligibility order.

(2)This section applies to a person who was disqualified under a section specified in column 1 of the Table in Schedule 1A in respect of an offence specified in column 2 of that Table committed on a date specified in column3 of that Table.

Note

31DWhen assessment report must be obtained

s. 3

(1)A person who under section 31C is required to obtain an assessment report from an accredited agency must obtain it at least the specified number of months before applying for a licence eligibility order.

(2) The Magistrates' Court may, in exceptional circumstances, reduce the specified number of months.

(3) In subsections (1) and (2) the specified number of months is the number of months specified in column 4 of the Table in Schedule1A in relation to the relevant item in that Table.

(4)Ifapersonissubjecttomorethan one requirement toobtainan assessment report andtodifferentperiodsforobtainingit,heorshemustobtainthereportby the earliest required date.

31EWho must obtain a licence eligibility report?

(1)Apersontowhomthissectionapplies must, within the timeframe provided by section31F,obtainfromanaccreditedagencya report abouthisorhersuitability fora licence eligibility orderbeforeapplying forsuch an order.

(2)Thissectionappliestoapersonwho has beendisqualified undersection50inrespect of—

(a)anoffence undersection 49(1)(a), (ba), (c),(ca),(d),(e)or(ea); or

(b)anoffenceundersection 49(1)(b), (f) or(g)which was—

(i) afirstoffenceandthelevel of concentration of alcohol—

(A)inthatperson'sblood was 0·15gramsormore per100millilitresofblood; or

s. 3

(B)inthatperson'sbreath was 0·15gramsormoreper210litresofexhaled air—

asthecaserequires; or

(ii)a subsequent offence.

(3)Thissectionalsoappliestoa personwho has beendisqualified undersection89or89A(1) of theSentencing Act 1991ifthecourt on convicting orfindingthepersonguiltyof the offencemadeafindingunderthatAct that theoffencewascommitted whilethe person was under the influence of alcohol or a drug, or both alcohol and a drug, which contributed to the offence.

Note

31FWhen licence eligibility report must be obtained

A person who under section 31E is required to obtain a licence eligibility report from an accredited agency must obtain itwithin 28days before applying for a licence eligibility order.

31GObtaining by Magistrates' Court of licence eligibility report when not otherwise required

s. 3

The Magistrates' Court may request, or require an applicant for a licence eligibility order to request, an accredited agency to provide a licence eligibility report in circumstances in which such a report is not required to be obtained under section 31E.

31HProcedure on hearing of application for licence eligibility order

On hearing an application for a licence eligibility order the Magistrates' Court may make or refuse to make the order, and for the purpose of determining whether or not the order should be made—

(a)the Court must hear any relevant evidence tendered either by theapplicant or by the Chief Commissioner of Police and any evidence of a registered medical practitioner required by the Court; and

(b)without limiting its discretion, theCourt must have regard to—

(i) the conduct of the applicant with respect to alcohol or drugs (as the case may be) during the period of disqualification; and

(ii)the applicant's physical andmental condition at the time of the hearing of the application; and

(iii)the effect which the making of the order may have on the safety of the applicant or of the public; and

(iv) any report that was required to be obtained under section 31C or 31E or that was obtained under section31G.

Note

Under section 31B(2) an application for a licence eligibility order cannot be dealt with or determinedwhile any disqualification from obtaining a driver licence or learner permit remains in force.

On making a licence eligibility order the Magistrates' Court may give an alcohol interlock condition direction: see section50AAA.

31IEffect of licence eligibility order

s. 3

(1)A licence eligibility order has effect with respect to all relevant disqualifications the period of which has ended before the making of the order and with respect to which no previous licence eligibility order has had effect.

(2)In subsection (1) relevant disqualifications are disqualifications following the ending of which a person may only apply for the grant of a driver licence or learner permit if he or she has obtained a licence eligibility order.

(3)A licence eligibility order must include a statement to the same effect as subsection(1).

31JCourt must notify the Corporation of the making of a licence eligibility order

TheMagistrates'Courtmust cause particulars ofalicenceeligibilityordertobe sentimmediatelytothe Corporation.

31KApplication of Evidence Act 2008

Toavoiddoubt,theproceedingon an applicationforthemakingofa licence eligibilityorderisaproceedingthatrelatesto sentencingforthepurposesofsection4(2) of theEvidence Act 2008.

31LAccompanying driver offences

s. 3

Sections31Ato31Kdo not apply toa person who is convicted or found guilty of an accompanyingdriver offence.".

4New Schedule 1A inserted

s. 4

AfterSchedule1totheRoad Safety Act 1986 insert—

"SCHEDULE 1A

AssessmentReport Requirement

Table

Item No. / Column 1
Section under which disqualified / Column 2
Offence for which disqualified / Column 3
Date of offence for which disqualified / Column 4
Minimum period before application by which report must be obtained
1 / Section 50 / Offence under section 49(1)(a) / Before 13May2002 / 12 months
2 / Section 50 / Offence under section 49(1)(a) involving only a drug / On or after13May2002 / 12 months
3 / Section 50 / Offence under section 49(1)(a) (other than one involving only a drug) which was a first offence / On or after13May2002 but before 11October2006 / 12 months
Item No. / Column 1
Section under which disqualified / Column 2
Offence for which disqualified / Column 3
Date of offence for which disqualified / Column 4
Minimum period before application by which report must be obtained
4 / Section 50 / Offence under section 49(1)(b), (f) or (g) where the level of concentration of alcohol in the blood was 0·15grams or more per 100millilitres of bloodor in the breath was0·15grams or more per 210litres of exhaled air / Before 13May 2002 / 12 months
5 / Section 50 / First offence under section 49(1)(b), (f) or (g) where the level of concentration of alcohol in the blood was 0·15 grams or more per 100millilitres of bloodor in the breath was0·15 grams or more per 210 litres of exhaled air / On or after 13 May 2002 but before 11October2006 / 12 months
6 / Section 50 / Offence under section 49(1)(ba), (ca) or (ea) / Before, on or after 13May2002 / 6 months

s. 4

Item No. / Column 1
Section under which disqualified / Column 2
Offence for which disqualified / Column 3
Date of offence for which disqualified / Column 4
Minimum period before application by which report must be obtained
10 / Section89(1)of the Sentencing Act 1991 / Firstserious motor vehicle offence(asdefined by paragraph (d) of the definition of that term in section 87P of the Sentencing Act 1991) if the courtmadea finding thattheoffence was committed while the personwasunder the influenceof alcohol oradrug,or both alcohol anda drug, which contributed to the offence / On or after 13October 2004 / 12months
11 / Section89(3) ofthe Sentencing Act 1991 / Firstoffence under section 319AA of the Crimes Act 1958if the courtmadea finding thattheoffence was committed while the personwasunder the influence of alcohol oradrug,or both alcohol anda drug, which contributed to the offence / On or after 30September 2013 / 12 months

s. 4

Item No. / Column 1
Section under which disqualified / Column 2
Offence for which disqualified / Column 3
Date of offence for which disqualified / Column 4
Minimum period before application by which report must be obtained
12 / Section 89(4)of the Sentencing Act 1991 / Firstoffence of stealing or attempting to steal a motor vehicleif the courtmadea finding thattheoffence was committed while the person wasunder the influence of alcohol or adrug,or both alcoholanda drug, whichcontributed to the offence / On or after 30September 2013 / 3months
13 / Section89A(1)of the Sentencing Act 1991 / Any offence if the court made a finding that the offence was committed while the person was under the influence of alcohol or a drug, or both alcohol and a drug, which contributed to the offence / On or after 30September 2013 / 3 months

s. 4

Note

Under section 31D(2) the Magistrates' Court may, in exceptional circumstances, reduce the number of months specified in column 4 in relation to any item in the Table.

s. 4

______".

______

Part 3—Alcohol Interlock Conditions

5Interpretative provisions

s. 5

(1)For section 48(2)(f) of the Road Safety Act 1986 substitute—

"(f)an offence referred to in section 89 of the Sentencing Act 1991 where the court on convicting or finding the person guilty of the offence made a finding that it was committed while the person was under the influence of alcohol or a drug, or both alcohol and a drug, which contributed to the offence or such a finding is taken to have been made by force of section 89C(3) of that Act—".

(2)After section 48(4)of the Road Safety Act 1986 insert—

"(5)Subject to subsection (6), if a person who is convicted, or found guilty, of an offence referred to in section 89 of the Sentencing Act 1991 (the new offence) has at any time been convicted, or found guilty, of—

(a)the same or any other offence referred to in subsection (2)(a) to (e)(other than an offence against paragraph (a) involving only a drug, or against paragraph(ba), (bb), (h) or (i), of section 49(1)) or in that section89; or

(b)an offence against any previous enactment corresponding to any section an offence against which is referred to in that section89; or

(c)any other offence, whether committed in Victoria or elsewhere, the necessary elements of which consist of elements that constitute any of the offences covered by paragraph (a) or (b)—

(an old offence), the new offence is to be taken to be a subsequent offence for the purposes of this Act and, if relevant for those purposes, also to be a second offence if the person has only ever been convicted, or found guilty, of one old offence.

(6)Subsection (5) only applies to an offence referred to in section 89 of the Sentencing Act 1991(irrespective of whether it is a new or old offence within the meaning of that subsection) wherethe court on convicting or finding the person guilty of the offence made a finding that it was committed while the person was under the influence of alcohol, or both alcohol and a drug, which contributed to the offence or such a finding is taken to have been made by force of section 89C(3) of that Act.".

6New section 50AAA substituted

s. 6

For section 50AAA of the Road Safety Act 1986 substitute—

"50AAA Direction to impose alcohol interlock condition

(1)This section applies if—

(a)a person has been disqualified under section 50 or 89C of this Act or section89 or 89A(1) of the Sentencing Act 1991 from obtaining a driver licence or learner permit or who, by force of section 3AD (other than paragraph (b) of that section) of this Act, is to be taken to be so disqualified; and

(b)the disqualification is covered by the Table in Schedule 1B; and

(c)the person has applied to the Magistrates' Court for a licence eligibility order; and

(d)theMagistrates'Courtconsidersit appropriateto makethe order.

Note

s. 6

(2)Ifcolumn3ofthe Table inSchedule1Bspecifiesthatitis mandatory togivean alcohol interlockcondition directionforthe relevant offence, theMagistrates'Courtmust,onmakinga licenceeligibilityorderinrespectofa person, directtheCorporationthatit can onlygrantthepersonadriverlicence or learnerpermitthatis subjecttoan alcohol interlockcondition.

(3)Ifcolumn3ofthe Table inSchedule1Bspecifiesthatitis discretionarytogivean alcohol interlockcondition directionfor the relevant offence, theMagistrates'Courtmay,onmaking a licenceeligibilityorderinrespectofa person, directtheCorporationthatit can only grantthepersonadriverlicence or learnerpermitthatis subjecttoan alcohol interlockcondition.

(4)If the Magistrates'Court, on making a licence eligibility order, gives an alcohol interlock condition direction to the Corporation, it must specify in the direction a period (the specified period) during which the person concerned cannot apply to the Court for the removal of an alcohol interlock condition imposed on his or her driver licence or learner permit.

(5)The specified period must not be less than the period (if any) specified in column 4 of the Table in Schedule 1B in relation to the relevant offence.

(6) If a licence eligibility order has effect with respect to a disqualification in respect of more than one offence and different periods are specified in column 4 of the Table in Schedule1Bin relation to those offences, the longest period so specified is the relevant period for the purpose of calculating the specified period under subsection (4).

s. 6

(7) Thespecifiedperiod must betakentobeginonthefirstgrantingof a driverlicenceorlearnerpermit thatis subject to the alcohol interlock condition.

(8) Ifmorethanonealcoholinterlock condition direction has beengiveninrespectof a person,theperiodsspecifiedin those directions under subsection (4) operate concurrently.

(9) Forthepurposesofthissectionand Schedule1B—

(a)indeterminingwhetheran offence underanyparagraphofsection 49(1) wasorwasnotafirstoffence, any previousconviction orfindingofguilt ofthepersonofanoffence under section49(1)(a)(involvingonlya drug) orofanoffenceunder section 49(1)(ba),(bb),(h)or(i)or of an offence referred to in section 89(1), (3) or(4) of the Sentencing Act 1991 (involving only a drug) isto be disregarded,despitesection48(2);and

(b)indeterminingwhetheranoffencein respectofwhichapersonhas been disqualifiedundersection89ofthe Sentencing Act 1991(other than one involving only a drug) wasorwasnota firstoffence,section 48(5) and(6) have effect.".

7When an alcohol interlock condition can be removed

s. 7

(1)Insection50AABoftheRoad Safety Act 1986, subsections (1), (2) and (3) are repealed.

(2) Insection50AAB(4) oftheRoad Safety Act 1986 omit"madeattheendofthe specified period andongiving28dayswrittennoticeof the application andofthevenueoftheCourtat which itistobemadetotheChief Commissioner of Police".