Road Safety and Other Legislation Amendment Act 2020 (Vic)
Road Safety and Other Legislation Amendment Act 2020
No. 6 of 2020
table of provisions
Section Page
Part 1—Preliminary
1Purposes
2Commencement
Part 2—Amendment of the Road Safety Act 1986
3Definitions
4Section 50, amendment of cross-reference
5Section 50AA, amendment of cross-reference
6Section 51 repealed
7New Part 6B inserted
8Section 89C, amendment of cross-reference
9New section 103ZN inserted
Part 3—Amendment of the Sentencing Act 1991
10Amendment of the definition of serious motor vehicle offence
11Suspension or cancellation of driver licence or learner permit etc. for certain motor vehicle offences
12Suspension or cancellation of driver licence or learner permit and driver disqualification—any offence
Part 4—Repeal of this Act
13Repeal of this Act
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Endnotes
1 General information
Road Safety and Other Legislation Amendment Act 2020
No. 6 of 2020
[Assented to 17 March 2020]
The Parliament of Victoria enacts:
Part 1—Preliminary
1Purposes
The purposes of this Act are—
(a)to amend the Road Safety Act 1986 to provide for immediate licence or permit suspensions in certain cases and to make consequential and related amendments to that Act; and
(b)to make minor amendments to the Sentencing Act 1991.
2Commencement
(1)Subject to subsection (2), this Act comes into operation on a day or days to be proclaimed.
(2)If a provision of this Act does not come into operation before 12 November 2020, it comes into operation on that day.
Part 2—Amendment of the Road Safety Act 1986
3Definitions
In section 3(1) of the Road Safety Act 1986 insert the following definitions—
"infringement notice has the same meaning as in the Infringements Act 2006;
traffic infringement notice means an infringement notice in respect of a traffic infringement;".
4Section 50, amendment of cross-reference
In section 50(2) of the Road Safety Act 1986, for "section 51" substitute "Division 1 of Part 6B".
5Section 50AA, amendment of cross-reference
In Column 1 of the Table at the foot of section 50AA of the Road Safety Act 1986, for "and 51(1)" substitute "and 85".
6Section 51 repealed
Section 51 of the Road Safety Act 1986 is repealed.
7New Part 6B inserted
After Part 6A of the Road Safety Act 1986 insert—
"Part 6B—Immediate licence or permit suspension
Division 1—Immediate licence or permit suspension for certain drug or alcohol related offences
85Immediate licence or permit suspension for charges for certain drug or alcohol related offences
(1)If a person is charged with a relevant offence by a police officer, any police officer, by written notice, may suspend the driver licence or learner permit of the person at any time after the filing of the charge-sheet charging the relevant offence until the charge has been determined.
(2)If a person is charged with a relevant offence by an employee of the Department, where the person had been driving or in charge of a commercial motor vehicle, an employee of the Department, by written notice, may suspend the driver licence or learner permit of the person at any time after the filing of the charge-sheet charging the relevant offence until the charge has been determined.
(3)In this section—
relevant offence means—
(a)an offence under section 49(1)(b), (bc), (f), (g) or (j) where it is alleged that the concentration of alcohol in the blood or breath of the person charged (as the case requires) was—
(i)if the person held a full driver licence—
(A)0·10 grams or more per 100 millilitres of blood; or
(B)0·10 grams or more per 210 litres of exhaled air; or
(ii)if the person held a learner permit or probationary driver licence—
(A)0⋅07 grams or more per 100 millilitres of blood; or
(B)0⋅07 grams or more per 210 litres of exhaled air; or
(b)an offence under paragraph (c), (d) or (e) of section 49(1); or
(c)an offence that would be a subsequent offence, within the meaning of section 48(2), if the person charged were convicted.
85AImmediate licence or permit suspension for charges for other drug or alcohol related offences
(1)Any police officer, by written notice, may suspend the driver licence or learner permit of a person who has been charged with a relevant offence at any time after the filing of the charge-sheet charging the relevant offence until the charge has been determined.
(2)In this section—
relevant offence means an offence under section 49(1)(ba), (ca), (ea) or (eb).
85BImmediate licence or permit suspension where certain certificates of breath or blood alcohol concentration issued
(1)Any police officer, by written notice, may suspend the driver licence or learner permit of a person who has been issued with a relevant breath or blood alcohol concentration certificate, in relation to an offence under section 49(1)(b), (bc), (f), (g) or (j), at any time within a period of 12 months after the issue of the certificate.
(2)In this section—
relevant breath or blood alcohol concentration certificate means a certificate—
(a)issued to a person under section 55(4) or 57; and
(b)that states that the concentration of alcohol present in the breath or blood of the person as indicated by the analysis of the person's breath or blood sample is—
(i)0·10 grams or more per 210 litres of exhaled air or 100 millilitres of blood (as the case requires), if the person holds a full driver licence; or
(ii)0⋅07 grams or more per 210 litres of exhaled air or 100 millilitres of blood (as the case requires), if the person holds a learner permit or probationary driver licence; or
(iii)the prescribed concentration of alcohol or more than the prescribed concentration of alcohol, if the person has, within 10 years before the commission of the alleged offence, been found guilty or convicted of an offence (other than a supervising driver offence) referred to in section 48(2)(a), (b), (c), (e) or (f).
85CPeriod of suspension
(1)A suspension of a driver licence or learner permit under section 85 or 85A remains in force until—
(a)the charge is determined; or
(b)the charge is withdrawn; or
(c)the suspension is cancelled on appeal.
(2)A suspension of a driver licence or learner permit under section 85B remains in force, subject to section 85D, until the lesser of—
(a)12 months after the notice of suspension is given; or
(b)the period, after the notice is given, set out in Column 2 of Schedule 1 or of Schedule 1AB (as the case requires) that corresponds to the breath or blood alcohol concentration in Column 1 of that Schedule that is stated in the certificate.
85DEffect of issue of traffic infringement notice
(1)If—
(a)a person's driver licence or learner permit is suspended under section 85B; and
(b)less than 28 days before the end of the period of suspension, a traffic infringement notice is issued against the person in respect of the alleged offence—
the period of suspension under section 85C(2)(b) is not affected by the person giving a notice of objection to the traffic infringement notice before the end of the period of suspension but, if the person does not give a notice of objection before the end of the period of suspension, the period of suspension is extended until the end of the 28 day period for giving the notice of objection.
(2)If—
(a)a person's driver licence or learner permit is suspended in accordance with a notice under section 85B; and
(b)28 days or more before the end of the period of suspension, a traffic infringement notice is issued against the person in respect of the alleged offence—
the period of suspension under section 85C(2)(b) is not affected by the person giving a notice of objection to the traffic infringement notice within the 28 day period for doing so.
Note
If the person does not give a notice of objection within the 28 day period for doing so the person's driver licence or learner permit may be cancelled under section 89C(1).
(3)If—
(a)subsection (1) or (2) applies to a person; and
(b)the person does not give a notice of objection to the traffic infringement notice within the 28 day period for doing so; and
(c)the person's driver licence or learner permit is cancelled under section 89C(1)—
any period of suspension under this section ends when the driver licence or learner permit is cancelled under section 89C(1) and the period for which the person is disqualified under that section from obtaining a driver licence or learner permit is reduced by the period of the suspension (as extended, if applicable, by subsection (1)).
(4)If—
(a)a person's driver licence or learner permit is suspended under section 85B; and
(b)after the period of suspension a traffic infringement notice is issued against the person in respect of the alleged offence; and
(c)the person does not give a notice of objection to the traffic infringement notice within the 28 day period for doing so; and
(d)the person's driver licence or learner permit is cancelled under section 89C(1)—
the period for which the person is disqualified under section 89C(1) from obtaining a driver licence or learner permit is reduced by the period of the suspension.
85EEffect of charging a person whose licence or permit is suspended under section 85B
If a person whose driver licence or learner permit is suspended under section 85B is charged with the alleged offence during the period of suspension (as extended, if applicable, by section 85D(1)), from the time the charge-sheet is filed the suspension is taken to be instead a suspension under section 85.
Note
The period of suspension therefore continues until the charge is determined by a court (see section 85C(1)).
Division 2—Immediate licence or permit suspension for certain speeding offences
85FImmediate licence or permit suspension for certain speeding offences
(1)If a person is charged by a police officer with a relevant speeding offence that has been detected by a speed detector, any police officer, by written notice, may suspend the driver licence or learner permit of the person at any time after the filing of the charge-sheet charging the relevant speeding offence until the charge has been determined.
(2)In this section—
relevant speeding offence means an offence—
(a)against section 64 where a motor vehicle was driven—
(i)at a speed of 45 kilometres per hour or more over the applicable speed limit; or
(ii)if the applicable speed limit was 110 kilometres per hour, at a speed of 145 kilometres per hour or more; or
(b)against section 65B or rule 20 of the Road Rules where a motor vehicle was driven—
(i)at a speed of 45 kilometres per hour or more over the applicable speed limit; or
(ii)if the applicable speed limit was 110 kilometres per hour, at a speed of 145 kilometres per hour or more.
85GImmediate licence or permit suspension where certain traffic infringement notices issued
(1)A police officer who issues a person with a relevant traffic infringement notice in respect of an offence that was detected by a speed detector may suspend the driver licence or learner permit of the person by written notice given to the person at the same time as the relevant traffic infringement notice is issued.
(2)In this section—
relevant traffic infringement notice means a traffic infringement notice issued to a person in respect of an offence against section 65B or rule 20 of the Road Rules where the motor vehicle was driven—
(a)at a speed of 45 kilometres per hour or more over the applicable speed limit; or
(b)if the applicable speed limit was 110 kilometres per hour, at a speed of 145 kilometres per hour or more.
85HPeriod of suspension
(1)A suspension of a driver licence or learner permit under section 85F remains in force until—
(a)the charge is determined; or
(b)the charge is withdrawn; or
(c)the suspension is cancelled on appeal.
(2)Subject to subsection (3), a suspension of a driver licence or learner permit under section 85G remains in force until whichever of the following first occurs—
(a)a period of 12 months expires after the notice of suspension is issued;
(b)the licence or permit is suspended under section 89D.
(3)A suspension of a driver licence or learner permit under section 85G for an infringement referred to in paragraph (b) of the definition of relevant traffic infringement notice in section 85G(2), where the speed in respect of which the notice was issued was less than 155 kilometres per hour, remains in force until whichever of the following first occurs—
(a)a period of 6 months expires after the notice of suspension is issued;
(b)the licence or permit is suspended under section 89D.
(4)If the driver licence or learner permit of a person is suspended for a traffic infringement under section 85G and the licence or permit is subsequently suspended for the traffic infringement by the operation of section 89D, the period of suspension under this Division must be taken into account in determining the period of suspension under section 89D.
Division 3—Immediate licence or permit suspension for certain offences resulting in injury or death
85IImmediate licence or permit suspension for certain offences resulting in injury or death
(1)If a person is charged by a police officer with a relevant offence, a senior police officer, by written notice, may suspend the driver licence or learner permit of the person charged with the relevant offence at any time on or after the charge-sheet is given to the person until the charge has been determined.
(2)The senior police officer must not, under subsection (1), suspend the driver licence or learner permit of the person unless the senior police officer is reasonably satisfied that—
(a)the person used a motor vehicle in the commission of the relevant offence resulting in injury or death; and
(b)the person is an unacceptable risk to road safety until the charge is determined.
(3)If the person is charged with more than one relevant offence at the same time, a suspension under subsection (1) applies to each charge for a relevant offence.
(4)In this section—
relevant offence means—
(a)an offence of murder or attempted murder; or
(b)an offence against section 15A, 15B, 16, 17 or 18 of the Crimes Act 1958;
senior police officer means a police officer who is of or above the rank of sergeant, as referred to in section 13(j) of the Victoria Police Act 2013.
85JPeriod of suspension
(1)A suspension of a driver licence or learner permit under section 85I remains in force until—
(a)the charge is determined; or
(b)the charge is withdrawn; or
(c)the suspension is cancelled on appeal.
(2)The period determined under subsection (1) applies irrespective of whether or not the person charged is in custody.
Division 4—General provisions
85KWhen does suspension commence?
A suspension of a driver licence or learner permit under this Part commences when the person who suspends the driver licence or learner permit gives the notice of the suspension to the holder of the licence or permit.
85LContent and copies of notice
(1)A notice of suspension under this Part must—
(a)specify the period of suspension or the circumstances that will end the suspension, as determined under the relevant Division of this Part; and
(b)set out the requirement under section 85N as to surrender of the licence or permit by the person whose licence is suspended; and
(c)contain the prescribed particulars.
(2)A person who gives a notice of suspension under this Part must cause a copy of that notice to be sent immediately to the Secretary.
85MWhen is a person charged with an offence?
For the purposes of this Part a person is charged with an offence when a copy of the charge-sheet that is signed by the police officer or the employee of the Department is given to the person.
85NSurrender of licence or permit document
(1)On receiving notice of suspension under this Part, the person who receives it must immediately surrender the driver licence document or learner permit to the person who gives the notice of suspension.
(2)A person who refuses or fails to surrender a document as required by subsection (1) is guilty of an offence, unless the person—
(a)is being held in custody; or
(b)has another just cause or excuse.
Penalty:5 penalty units.
85OEffect of suspension under this Part
(1)A driver licence or learner permit suspended under this Part is, during the suspension, of no effect and a person whose driver licence or learner permit is so suspended is, during the suspension, disqualified from obtaining a further driver licence or learner permit.
(2)A person must not apply for or obtain a driver licence or learner permit while the person is disqualified from obtaining a driver licence or learner permit under subsection (1).
Penalty:5 penalty units.
(3)A driver licence or learner permit obtained while a person is disqualified from obtaining a driver licence or learner permit under subsection (1) is of no effect.
85PEffect of later cancellation or suspension of licence or permit
If on the hearing of the charge against a person whose driver licence or learner permit has been suspended under this Part because of the charge—
(a)the driver licence or learner permit is cancelled and the person is disqualified from obtaining one for a specified time, the court must take into account, in fixing the period of disqualification, the period of suspension under this Part; or
(b)the driver licence or learner permit is suspended, the court must take into account, in fixing the period of that suspension, the period of suspension under this Part.
85QCancellation of suspension
(1)The Chief Commissioner of Police may cancel the suspension of a driver licence or learner permit under this Part by giving written notice of cancellation to the person to whom the notice of suspension was given.
(2)Immediately on giving written notice of cancellation under subsection (1), the Chief Commissioner of Police must give a copy of the notice of cancellation to the Secretary.
85RSupervising driver offences
This Part does not apply to a person who is convicted or found guilty of a supervising driver offence.
85SAppeal to the Magistrates' Court
(1)A person whose driver licence or learner permit is suspended under this Part may appeal against the decision to suspend the driver licence or learner permit to the Magistrates' Court.
(2)Before a person commences an appeal to the Magistrates' Court under subsection (1), the person must give at least 14 days' written notice of the commencement of the appeal to—
(a)the Chief Commissioner of Police; and
(b)a registrar of the Magistrates' Court.
(3)In a notice under subsection (2), the person must set out—
(a)for an appeal against a decision to suspend a licence under Division 1 or 2, the alleged exceptional circumstances; and
(b)for an appeal against a decision to suspend a licence under Division 3, the reasons why the person is not an unacceptable risk to road safety.
85TOrders Magistrates' Court may make in the proceeding
(1)On an appeal under section 85S against a decision to suspend a licence under Division 1 or 2, the Magistrates' Court may make an order—
(a)confirming the suspension; or
(b)cancelling the suspension.
(2)The Court must not make an order under subsection (1) cancelling the suspension unless the Court is satisfied that exceptional circumstances exist which justify the making of such an order.
(3)On an appeal under section 85S against a decision to suspend a licence under Division 3, the Magistrates' Court may make an order—
(a)confirming the suspension; or
(b)cancelling the suspension.
(4)The Court must not make an order under subsection (3) cancelling the suspension unless the Court is satisfied that the person charged is not an unacceptable risk to road safety.
(5)The Secretary must give effect to any order of the Court under this section.
85UCross-examination as to offence with which person is charged
On an appeal under section 85S against a decision to suspend a licence under Division 3—
(a)the person whose licence is suspended must not be examined or cross‑examined by the magistrate or any other person as to the offence with which the person is charged; and
(b)no inquiry may be made of the person as to that offence.
85VProhibition on use of information or documents in subsequent proceedings
Any information given or document produced on an appeal under section 85S against a decision to suspend a driver licence or learner permit under section 85I is not admissible in evidence in the proceeding for the hearing of the charge in respect of which the licence or permit was suspended.
85WOrders courts may make during other processes
If a person whose driver licence or learner permit is suspended under this Part is before a court for any reason in relation to the alleged offence for which the licence or permit was suspended, the court may make an order cancelling the suspension if the court is satisfied that—
(a)in relation to a suspension under Division 1 or 2, exceptional circumstances exist which justify making the order; or
(b)in relation to a suspension under Division 3, the person charged is not an unacceptable risk to road safety.".
8Section 89C, amendment of cross-reference
In the note at the foot of section 89C(1) of the Road Safety Act 1986—
(a)for "section 51(1B)" substitute "section 85B";
(b)for "section 51(3C)" substitute "section 85D(3)".
9New section 103ZN inserted
Before section 104 of the Road Safety Act 1986 insert—
"103ZN Transitional provision—Road Safety and Other Legislation Amendment Act 2020
(1)In this section—
commencement day means the day on which section 6 of the Road Safety and Other Legislation Amendment Act 2020 commences;
section 51(1) suspension means a suspension, that was in force immediately before the commencement day, of a driver licence or learner permit by a notice under section 51(1) (as in force before the commencement day);
section 51(1A) suspension means a suspension, that was in force immediately before the commencement day, of a driver licence or learner permit by a notice under section 51(1A) (as in force before the commencement day);
section 51(1B) suspension means a suspension, that was in force immediately before the commencement day, of a driver licence or learner permit by a notice under section 51(1B) (as in force before the commencement day);
section 51(10) appeal means an appeal, that was on foot immediately before the commencement day, to the Magistrates' Court under section 51(10) (as in force before the commencement day).
(2)On and from the commencement day—
(a)a section 51(1) suspension is taken to be a suspension under section 85;
(b)a section 51(1A) suspension is taken to be a suspension under section 85A;
(c)a section 51(1B) suspension is taken to be a suspension under section 85B.
(3)On and from the commencement day, a section 51(10) appeal is taken to be an appeal under section 85S.".
Part 3—Amendment of the Sentencing Act 1991
10Amendment of the definition of serious motor vehicle offence
In section 87P of the Sentencing Act 1991, in the definition of serious motor vehicle offence—
(a)in paragraph (d), for "vessel)." substitute "vessel); or";
(b)after paragraph (d) insert—
"(e)murder or attempted murder arising out of the driving of a motor vehicle; or
(f)any of the following offences, if arising out of the driving of a motor vehicle while under the influence of alcohol or alcohol and a drug—
(i)an offence under section 15A or 15B of the Crimes Act 1958;
(ii)an offence under section 16, 17 or 18 of the Crimes Act 1958;
(iii)an offence under section 22 or 23 of the Crimes Act 1958;
(iv)an offence under section 63A of the Crimes Act 1958;
(v)the common law offence of kidnapping;
(vi)an offence under section 79 of the Crimes Act 1958;
(vii)an offence under section 79A of the Crimes Act 1958.".
11Suspension or cancellation of driver licence or learner permit etc. for certain motor vehicle offences
(1)For section 89(2)(b) of the Sentencing Act 1991 substitute—
"(b)for an offence to which paragraph (a), (b), (ba), (c), (e) or (f)(vii) of the definition of serious motor vehicle offence in section 87P applies, less than 24 months; or
(c)for an offence to which paragraph (f)(i), (ii), (iii), (iv), (v) or (vi) of the definition of serious motor vehicle offence in section 87P applies, less than 12 months.".
(2)At the end of the notes at the foot of section 89 of the Sentencing Act 1991 insert—
"3 See section 85P of the Road Safety Act 1986 for the requirement to take into account any period of suspension under Part 6B of that Act when fixing a period of disqualification or suspension.".
12Suspension or cancellation of driver licence or learner permit and driver disqualification—any offence
At the end of the notes at the foot of section 89A of the Sentencing Act 1991 insert—
"3 See section 85P of the Road Safety Act 1986 for the requirement to take into account any period of suspension under Part 6B of that Act when fixing a period of disqualification or suspension.".
Part 4—Repeal of this Act
13Repeal of this Act
This Act is repealed on 12 November 2021.
Note
The repeal of this Act does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984).
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Endnotes
1 General information
See for Victorian Bills, Acts and current authorised versions of legislation and up-to-date legislative information.
Minister's second reading speech—
Legislative Assembly: 27 November 2019
Legislative Council: 6 February 2020
The long title for the Bill for this Act was "A Bill for an Act to amend the Road Safety Act 1986 to provide for immediate licence or permit suspensions in certain cases and to make consequential and related amendments to that Act and to make minor amendments to the Sentencing Act 1991 and for other purposes."
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