Traffic (Amendment) Act 1990 (NSW)

TRAFFIC (AMENDMENT) ACT 1990 No. 96

NEW SOUTH WALES

TABLE OF PROVISIONS

1. Short title

2. Commencement

3. Amendment of Traffic Act 1909 No. 5

4. Consequential amendment of Transport Administration Act 1988 No. 109, Sch. 4 (Railway Staff—Alcohol or Other Drugs)

5. Consequential amendment of Crimes Act 1900 No. 40, s. 414A (Certificates to be evidence)

6. Validation

SCHEDULE 1—AMENDMENTOF TRAFFIC ACT 1909 IN RELATION TO

THE TAKING AND ANALYSIS OF BLOOD SAMPLES

SCHEDULE 2—AMENDMENTOF TRAFFIC ACT 1909 IN RELATION TO

RADAR DETECTORS AND JAMMERS

SCHEDULE 3—AMENDMENT OF TRAFFIC ACT 1909 IN RELATION TO DRIVING HOURS AND SPEED LIMITS APPLYING TO CERTAIN VEHICLES AND DRIVERS

SCHEDULE 4—AMENDMENT OF TRAFFIC ACT 1909 IN RELATION TO

PERMISSIBLE CONCENTRATION OF ALCOHOL

SCHEDULE 5—AMENDMENTOF TRANSPORT ADMINISTRATION ACT

1988, SCH. 4 (RAILWAY STAFF-ALCOHOL OR OTHER DRUGS)

SCHEDULE 6—CONSEQUENTIAL AMENDMENT OF CRIMES ACT 1900

TRAFFIC (AMENDMENT) ACT 1990 No. 96

NEW SOUTH WALES

Act No. 96, 1990

An Act to amend the Traffic Act 1909 with respect to the taking and testing of blood samples from drivers, the sale and use of radar detection and jamming devices, the driving hours and speed limits applying to certain vehicles and drivers and the permissible blood alcohol concentration for certain drivers; consequently to amend certain Acts; and for other purposes. [Assented to 7 December 1990]

Traffic (Amendment) 1990

The Legislature of New South Wales enacts:

Short title

1. This Act may be cited as the Traffic (Amendment) Act 1990.

Commencement

2. This Act commences on a day or days to be appointed by

proclamation.

Amendment of Traffic Act 1909 No. 5

3. The Traffic Act 1909 is amended as set out in Schedules 1-4.

Consequential amendm ent of T ransport Administration Act 1988 No.

109, Sch. 4 (Railway S ta ff-A lc o h o l O ther Drugs)

4. Schedule 4 to the Transport Administration Act 1988 is amended as

set out in Schedule 5.

Consequential amendm ent of Crimes Act 1900 No. 40, S. 414A

(Certificates to be evidence)

5. The Crimes Act 1900 is amended as set out in Schedule 6.

Validation

6. A regulation purporting to be in force under the Traffic Act 1909 immediately before the commencement of Schedule 3 (1) and which would have been valid, if made after the commencement of that provision, by virtue of a power conferred by section 3 of that Act, as amended by this Act, is taken to have been validly made since its making.

SCHEDULE l-A M E N D M E N T O F TRAFFIC ACT 1909 IN RELATION TO TH E TAKING AND ANALYSIS O F BLOOD

SAMPLES

(Sec. 3)

(1) Section 4F (Blood samples to be taken in certain cases):

(a) After section 4F (l), insert:

Traffic (Amendment) 1990

SCHEDULE

1-A M EN D M EN T OF TRAFFIC ACT

1909 IN

RELATION TO THE TAKING AND ANALYSIS OF BLOOD

SAMPLE— continued

(1A) If there is no medical practitioner present to attend the person at the hospital, the blood sample is to be taken by a registered nurse who is attending the person and who is accredited by a hospital as competent to perform the sampling procedures.

(b)	In section 4F (3)-(7A), after “medical practitioner” wherever occurring, insert “or nurse”.
(c)	From section 4F (10), omit “intoxicating liquor” wherever occurring, insert instead “alcohol” .
(d)	In section 4F (11), after “medical practitioner” where firstly occurring, insert “or registered nurse” .

(2) Section 4G (Analysis of samples of blood):

(a)	In section 4G (1), (3), (9) and (14), after “medical practitioner ” wherever occurring, insert “or nurse”.
(b)	From section 4G (1) (a), omit “3 approximately equal portions”, insert instead “2 approximately equal portions”.

(a)	one is to be used for any analysis under this section; and
(b)	the other is to be made available to or for the use and benefit of the person from whom the sample was taken.

(d)

In section 4G (4), after “alcohol”, insert “, or of alcohol and

other

drugs,” .

(e) After section 4G (4), insert:

(4A) A member of the police force may not make arrangements under subsection (4) for the analysis of a blood sample to determine the concentration in the blood of a drug other than alcohol except in circumstances where the member of the police force has reasonable grounds to believe that, at the time of the accident concerned, the person from whom the sample was taken was under the influence of a drug other than alcohol and where:

(a)	no member of the police force attended the scene of the accident that led to the taking of the sample; or

Traffic (Amendment) 1990

SCHEDULE l-AM ENDM ENTOF TRAFFIC ACT 1909 IN RELATION TO THE TAKING AND ANALYSIS OF BLOOD

SAMPLES—continued

(b)	although a member or members of the police force attended the scene of the accident, there was no reasonable opportunity to require the person from whom the sample was taken to submit, in accordance with section 5AA, to an assessment of his or her sobriety.

(f)	In section 4G (5), after “alcohol”, insert “(and, where required, of other drugs)”.

(3) Section 5AB (Evidence of presence of drugs):

(a)	From section 5AB (1) (a), omit “under section 5AA”, insert instead “under section 4G or 5AA”.
(b)	In section 5AB (2), after “practitioner” wherever occurring, insert “or nurse”.

(4A) Subsections (1)-(4):

(a)	do not apply to proceedings brought on a charge that, by the operation of section 4F (10), cannot be laid; and

(b) do not enable evidence to be given of or in relation to:

(i) the presence of a drug other than alcohol; or

(ii) the presence of a particular concentration of a drug other than alcohol,

in the blood of a person charged with an offence under section 5 (2), as determined by an analysis under section 4G, unless the court is satisfied that the analysis was not arranged in contravention of section 4G (4A).

(4) Section 17C:

After section 17B, insert:

Certificate evidence may specify minimum concentrations

17C. If, in any proceedings in which evidence is permitted to be given of the results of an analysis, undertaken for the purposes of this Act, of a sample of a person's blood or urine, evidence is given by a certificate under this Act to the effect that alcohol or another specified drug was found by the analysis to be present in the sample in a concentration not less than a specified concentration:

Traffic (Amendment) 1990

SCHEDULE l—AMENDMENT OF TRAFFIC ACT 1909 IN RELATION TO THE TAKING AND ANALYSIS OF BLOOD

SAMPLES— continued

(a)	the certificate is to be treated as though it stated that the concentration of alcohol or of the other drug concerned was determined by the analysis to be present in the specified minimum concentration; and
(b)	the evidence given by the certificate is not open to challenge on the basis that the analysis, merely because it purports to determine a concentration in terms of a minimum, does not meet the requirements of this Act.

SCHEDULE 2—AMENDMENT OF TRAFFIC ACT 1909 IN

RELATION TO RADAR DETECTORS AND JAM M ERS

(Sec. 3)

(1) Section 2 (Definitions):

In section 2 (l), insert in alphabetical order:

“R adar detecting device” means a device designed or apparently designed to be fitted to or carried in a motor vehicle for the purpose of detecting electromagnetic radiations from an approved speed measuring device.

“R adar jamming device” means a device designed or apparently designed to be fitted to or carried in a motor vehicle for the purpose of interfering with the receiving by an approved speed measuring device of reflected electromagnetic radiations.

(2) Sections 4AD, 4AE:

Before section 4B insert:

Sale, purchase o r use of rad a r detectors and jam m ers

4AD. (1) A person must not sell or offer for sale, or

purchase, a radar detecting device or a radar jamming device.

Maximum penalty: 20 penalty units.

(2)	A person must not drive a motor vehicle, or cause a

motor vehicle to stand, on a public street if the vehicle is fitted with or is carrying a radar detecting device or a radar jamming device.

Maximum penalty: 20 penalty units.

Traffic (Amendment) 1990

SCHEDULE 2—AMENDMENT OF TRAFFIC ACT 1909 IN

RELATION TO RADAR DETECTORS AND lAUM m S-continued

(3) The owner of a motor vehicle which is driven or stands on a public street in contravention of subsection (2) is guilty of an offence.

Maximum penalty: 20 penalty units.

(4) It is a defence to a prosecution for an offence under

this section if the defendant satisfies the court that the device concerned was not designed as a radar detecting device or a radar jamming device but was designed for another purpose.

(5) It is a defence to a prosecution for an offence under

subsection (2) or (3) if the defendant satisfies the court that,

(a)	the vehicle was in the course of a journey to a place appointed by a member of the police force, an officer of the Authority or a court, in order to surrender the device; or
(b)	the vehicle was the subject of a notice, issued in accordance with the regulations, requiring the owner of the vehicle to remove the device from the vehicle within a specified time and that time had not expired;
(c)	the defendant did not know, and in the circumstances could not reasonably be expected to have known, that the vehicle was fitted with or was carrying the device concerned.

Surrender and forfeiture of radar detectors and jammers

4AE. (1) A member of the police force who reasonably

believes that:

(a)	a radar detecting device or radar jamming device is being sold or offered for sale in contravention of section 4AD (1); or
(b)	a motor vehicle is standing or being driven in contravention of section 4AD (2) because of a device fitted to or carried in the vehicle,

may require a person in possession of the device to surrender it immediately to the member of the poUce force or (in the case of a device fitted to a motor vehicle and not immediately removable) may by notice in writing served on the owner of the vehicle require the owner to surrender the device within a

Traffic (Amendment) 1990

SCHEDULE 2-A M EN D M EN T OF TRAFFIC ACT 1909 IN

RELATION TO RADAR DETECTORS AND JAMMER—continued

specified time and in a specified manner to the

Commissioner of Police.

(2) An officer of the Authority who is authorised in writing by the Authority for the purposes of this section and who finds a motor vehicle to be fitted with, or to be carrying, a radar detecting device or a radar jamming device may, by notice in writing served on the owner of the vehicle, require the owner to do either or both of the following:

(a) remove the device (if it is fitted to the vehicle);

(b)	surrender the device within a specified time and in a specified manner to the Commissioner of Police.

(3)	A person must comply with a requirement under

subsection (1) or (2), whether or not he or she is the owner of

the device concerned.

Maximum penalty: 20 penalty units.

(4)	A court which finds an offence under section 4AD or

under subsection (3) to have been proven against any person may order that the device concerned, if not already surrendered pursuant to a requirement under this section, be delivered to the Commissioner of Police within a time and in a manner specified by the court.

(5)	A device surrendered as required under this section is

thereby forfeited to the Crown and may be destroyed or otherwise disposed of at the direction of the Commissioner of Police.

(6)	No liability attaches to any person on account of the

surrender by the person, in pursuance of a requirement under this section, of a radar detecting device or radar jamming device of which that person is not the absolute owner.

SCHEDULE 3—AMENDMENT OF TRAFFIC ACT 1909 IN

RELATION TO DRIVING HOURS AND SPEED LIMITS

APPLYING TO CERTAIN VEHICLES AND DRIVERS

(Sec. 3)

(1) Section 3 (Regulations):

In section 3 (1) (t1), after “heavy motor vehicle” wherever occurring, insert “, or coach,”.

Traffic (Amendment) 1990

SCHEDULE 3 -A M E N D M E N T OF TRAFFIC ACT 1909 IN

RELATION TO DRIVING HOURS AND SPEED LIMITS

APPLYING TO CERTAIN VEHICLES AND DRIVERS—continued

(2) Section 4A (Speed limits):

After section 4A (5A), insert:

(5B) A person who drives a motor vehicle on a public

street at a speed that exceeds, by more than 45 kilometres per

hour, a speed fixed by the regulations as the maximum speed:

(a)	at which motor vehicles of a class that includes that motor vehicle may be driven; or
(b)	at which any motor vehicle, or any motor vehicle of a class that includes that motor vehicle, may be driven by drivers of a class that includes that person,

is guilty of an offence under this Act and liable to the same penalties, and to be dealt with in the same manner, as for an offence under subsection (1A). This subsection applies only where the maximum speed fixed by the regulations is below the speed limit applicable to the length of public street on which the vehicle is being driven.

(5C) If, on a prosecution of a person for an offence under subsection (5B), the court is satisfied that the person exceeded the relevant maximum speed fixed by the regulations, but is not satisfied that it was exceeded by more than 45 kilometres per hour, the court may, to the extent that exceeding the speed so fixed constitutes an offence under the regulations, convict the person of that offence instead.

(3) Section 11AB (Suspension or cancellation of drivers' licences

by Authority):

Omit section 11AB (4) (a), insert instead:

(a)	that involves exceeding a speed limit for the purposes of section 4A, or exceeding a maximum speed fixed by the regulations as referred to in section 4A (5B); and

SCHEDULE 4-AMENDMENTOF TRAFFIC ACT 1909 IN

RELATION TO PERMISSIBLE CONCENTRATION OF

ALCOHOL

(Sec. 3)

(1) Section 4E (Prescribed concentration of alcohol in person's

blood):

Traffic (Amendment) 1990

SCHEDULE 4—AMENDMENT OF TRAFFIC ACT 1909 IN

RELATION TO PERMISSIBLE CONCENTRATION OF

ALCOHOL—continued

At the end of section 4E (1B) (c), insert:

; or

(d)	if the person is under 25 years of age, unless the person has held a licence (apart from a learner's licence) to drive a motor vehicle for a period of 3 years or more; or
(e)	if that motor vehicle is being driven for hire or reward, or in the course of any trade or business, as a public passenger vehicle within the meaning of the Passenger Transport Act 1990; or
(f)	if that motor vehicle is a coach or heavy motor vehicle; or

(g) if that motor vehicle:

(i) because it carries dangerous goods within the meaning of the Dangerous Goods Act 1975, is required by regulations under that Act, or under any code prescribed for the purposes of this paragraph by regulations under this Act, to have a sign exhibited on it; or

(ii) carries any radioactive substance within the meaning of the Radiation Control Act 1990.

(2) Section 10G (Application of Part 3A) (as inserted by Act No.

153 of 1989):

Omit section 10G (1) (b), insert instead:

(b)	any motor vehicle which, because it carries dangerous goods within the meaning of the Dangerous Goods Act 1975, is required by regulations under that Act, or under any code prescribed for the purposes of this paragraph by regulations under this Act, to have a sign exhibited on it.

SCHEDULE 5—AMENDMENT OF TRANSPORT

ADMINISTRATION ACT 1988, SCH. 4 (RAILWAY STAFF—

ALCOHOL OR OTHER DRUGS)

(Sec. 4)

(1) Clause 10 (Blood or urine samples taken at hospitals from

Traffic (Amendment) 1990

SCHEDULE

5-A M EN D M EN TO F

TRANSPORT

ADMINISTRATION ACT 1988, SCH. 4 (RAILWAY STAFF—

ALCOHOL OR OTHER DRUGS)—continued

railway employees involved in accidents in carrying out

railway safety work):

(a) After clause 10 (1), insert:

(1A) If there is no medical practitioner present to attend the person at the hospital, the blood or urine sample is to be taken by a registered nurse who is accredited by a hospital as competent to perform the sampling procedures.

(b)	In clause 10 (2), after “practitioner” wherever occurring, insert “or nurse”.

(c)	In clause 10 (3), after “medical practitioner”, insert “or any

such

nurse ” .

(2) Clause 11 (Blood or urine samples taken where breath

analysing instrument not available):

(a) After clause 11 (1), insert:

(b)	In clause 11 (2), after “practitioner” wherever occurring, insert “or nurse”.

(3) Clause 13 (Restrictions on requiring breath test, assessment,

breath analysis or sample):

(a)	In clause 13 (a), after “hospital” where secondly occurring, insert “(or, where no medical practitioner is present to attend the person, a registered nurse who is accredited by a hospital as competent to perform the sampling procedures)”.
(b)	In clause 13 (a), after “medical practitioner” where secondly occurring, insert “or nurse”.

(4) Clause 14 (Action by medical practitioner or nurse with

respect to samples of blood or urine):

After “medical practitioner” wherever occurring, insert “or nurse”.

Traffic (Amendment) 1990

SCHEDULE

5-A M EN D M EN TO F

TRANSPORT

ADMINISTRATION ACT 1988, SCH. 4 (RAILWAY S T A F F -

ALCOHOL OR OTHER DRUGS)—continued

(5) Clause 15 (Analysis of samples of blood or urine):

(a) After clause 15 (1), insert:

(1A) If the blood or urine sample was obtained under clause 10, an authorised officer or a member of the police force may not make arrangements under this clause for the analysis of the sample to determine the concentration in the blood or urine of a drug other than alcohol except in circumstances where the authorised officer or member of the police force has reasonable grounds to believe that, at the time of the accident concerned, the person from whom the sample was taken was under the influence of a drug other than alcohol and where:

(a)	no member of the police force or authorised officer attended the scene of the accident that led to the taking of the sample; or
(b)	although a member or members of the police force or one or more authorised officers attended the scene of the accident, there was no reasonable opportunity to require the person from whom the sample was taken to submit, in accordance with clause 12, to a breath test or assessment of his or her sobriety.

From clause 15 (2) omit “drug”, insert “alcohol instead or other drugs, as the case requires”.

(6) Clause 16 (Medical practitioners and nurses-protection from

liability):

After “practitioner” wherever occurring, insert “or nurse”.

(7) Clause 22 (Certificate evidence of presence of drugs):

After clause 22 (4), insert:

(5)	Nothing in this clause enables evidence to be given of

or in relation to:

(a) the presence of a drug other than alcohol; or

(b)	the presence of a particular concentration of a drug other than alcohol,

Traffic (Amendment) 1990

SCHEDULE

5-A M EN D M EN TO F

TRANSPORT

ADMINISTRATION ACT 1988, SCH. 4 (RAILWAY STAFF—

ALCOHOL OR OTHER DRUGS—continued

in the blood or urine of a person charged with an offence under clause 4, as determined by an analysis of a sample obtained under clause 10, unless the court is satisfied that the analysis was not arranged in contravention of clause 15 ( 1A).

SCHEDULE 6—CONSEQUENTIAL AMENDMENT OF

CRIMES ACT 1900

(Sec. 5)

Section 414A (Certificates to be evidence):

(a) After section 4 14A (4), insert:

(4A) A certificate referred to in subsection (4) is not admissible, in proceedings under the Drug Misuse and Trafficking Act 1985, as evidence of the use or administration, by the person to whom the certificate relates, of any prohibited drug within the meaning of that Act.

(b) After section 414A (7), insert:

A certificate referred to in subsection (7) is not admissible, in proceedings under the Drug Misuse and Trafficking Act 1985, as evidence of the use or administration, by the person to whom the certificate relates, of any prohibited drug within the meaning of that Act.

[Minister's second reading speech made in

Legislative Assembly on 20 November 1990 Legislative Council on 28 November 1990]