Untitled document
Road Safety and Sentencing Acts Amendment Act 2013
No. 56 of 2013
table of provisions
Section Page
Part 1—Preliminary
1Purposes
2Commencement
Part 2—Driver Licence and Learner Permit Eligibility Following Disqualification
3New sections 31A to 31L inserted in Road Safety Act 1986
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 order31IEffect 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 Act 1986
3ADCircumstances in which person is to be taken to
be disqualified from obtaining a driver licence or
learner permit3AECircumstances 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)
Act 1988
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 offences89ASuspension 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 section 149
Division 5—Criminal Procedure Act 2009
34Amendment of Criminal Procedure Act 2009
Division 6—Sentencing Amendment (Community Correction Reform) Act 2011
35Amendment of Sentencing Amendment (Community Correction Reform) Act 2011
Part 5—Transitional Arrangements
36New section 103ZG inserted in Road Safety Act 1986
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 Act 2013
38Amendment of Schedule 3 to Sentencing Act 1991
part 6—repeal of Amending act
39Repeal of amending Act
═══════════════
Endnotes
Road Safety and Sentencing Acts Amendment Act 2013
No. 56 of 2013
[Assented to 24 September 2013]
The Parliament of Victoria enacts:
Part 1—Preliminary
1Purposes
The main purposes of this Act are to amend the Road Safety Act 1986 and the Sentencing Act 1991—
(a)to create a single process for applying to the Magistrates' Court for an order declaring that a person disqualified under either of those Acts from obtaining a driver licence or learner permit is eligible to apply to the Roads Corporation for one; and
(b)to create a single process for imposing an alcohol interlock condition on, or removing one from, a driver licence or learner permit granted following the making of an order referred to in paragraph (a).
2Commencement
(1)This Part, sections 19(1), 20, 21, 22, 33 and 38 and Divisions 3, 5 and 6 of Part 4 come into operation on the day after the day on which this Act receives the Royal Assent.
(2)The remaining provisions of this Act come into operation on 30 September 2013.
__________________
Part 2—Driver Licence and Learner Permit Eligibility Following Disqualification
3New sections 31A to 31L inserted in Road Safety Act 1986
After section 31 of the Road Safety Act 1986 insert—
"31A Disqualified person requires licence eligibility order before applying for licence or permit
(1)A person to whom this section applies may only make an application to the Corporation for the grant of a driver licence or learner permit if the Magistrates' Court has made a licence eligibility order in respect of him or her.
(2)Subject to subsection (3), this section applies to a person who has been disqualified under section 50 or 89C of this Act or section 89 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 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)This section does not apply to a person if the only offence in respect of which the person was disqualified—
(a)was an offence under section 49(1)(b), (f) or (g); and
(b)the concentration of alcohol—
(i)in the blood of that person was less than 0·07 grams per 100 millilitres of blood; or
(ii)in the breath of that person was less than 0·07 grams per 210 litres of exhaled air—
as the case requires; and
(c)it was that person's first offence.
Note
Under section 28B it is an offence for a person disqualified from obtaining a driver licence or learner permit to apply for, or obtain, one.
31BApplication for licence eligibility order
(1)An application to the Magistrates' Court for a licence eligibility order may be made on giving 28 days written notice of the application and of the venue of the Court at which it is to be heard to—
(a)the Chief Commissioner of Police; and
(b)the registrar at that venue of the Court.
(2)The Magistrates' Court must not deal with, or determine, an application for a licence eligibility 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 to 31G.
31CWho must obtain an assessment report?
(1)A person to whom this section applies must, within the timeframe provided by section 31D, 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 column 3 of that Table.
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.
31DWhen assessment report must be obtained
(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 Schedule 1A in relation to the relevant item in that Table.
(4)If a person is subject to more than one requirement to obtain an assessment report and to different periods for obtaining it, he or she must obtain the report by the earliest required date.
31EWho must obtain a licence eligibility report?
(1)A person to whom this section applies must, within the timeframe provided by section 31F, obtain from an accredited agency a report about his or her suitability for a licence eligibility order before applying for such an order.
(2)This section applies to a person who has been disqualified under section 50 in respect of—
(a)an offence under section 49(1)(a), (ba), (c), (ca), (d), (e) or (ea); or
(b)an offence under section 49(1)(b), (f) or (g) which was—
(i)a first offence and the level of concentration of alcohol—
(A)in that person's blood was 0·15 grams or more per 100 millilitres of blood; or
(B)in that person's breath was 0·15 grams or more per 210 litres of exhaled air—
as the case requires; or
(ii)a subsequent offence.
(3)This section also applies to a person who has been disqualified under section 89 or 89A(1) of the Sentencing Act 1991 if the court on convicting or finding the person guilty of the offence made a finding under that Act 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.
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.
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 it within 28 days before applying for a licence eligibility order.
31GObtaining by Magistrates' Court of licence eligibility report when not otherwise required
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 the applicant 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, the Court 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 and mental 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 section 31G.
Note
Under section 31B(2) an application for a licence eligibility order cannot be dealt with or determined while 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 section 50AAA.
31IEffect of licence eligibility order
(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
The Magistrates' Court must cause particulars of a licence eligibility order to be sent immediately to the Corporation.
31KApplication of Evidence Act 2008
To avoid doubt, the proceeding on an application for the making of a licence eligibility order is a proceeding that relates to sentencing for the purposes of section 4(2) of the Evidence Act 2008.
31LAccompanying driver offences
Sections 31A to 31K do not apply to a person who is convicted or found guilty of an accompanying driver offence.".
4New Schedule 1A inserted
After Schedule 1 to the Road Safety Act 1986 insert—
"SCHEDULE 1A
Assessment Report Requirement
Table
|
| Column 1
| Column 2
| Column 3
| Column 4 Minimum period before application by which report must be obtained |
| 1 | Section 50 | Offence under section 49(1)(a) | Before 13 May 2002 | 12 months |
| 2 | Section 50 | Offence under section 49(1)(a) involving only a drug | On or after 13 May 2002 | 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 after 13 May 2002 but before 11 October 2006 | 12 months |
| Item No. | Column 1
| Column 2
| Column 3
| 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 0·15 grams or more per 100 millilitres of blood or in the breath was 0·15 grams or more per 210 litres of exhaled air | Before 13 May 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 100 millilitres of blood or in the breath was 0·15 grams or more per 210 litres of exhaled air | On or after 13 May 2002 but before 11 October 2006 | 12 months |
| 6 | Section 50 | Offence under section 49(1)(ba), (ca) or (ea) | Before, on or after 13 May 2002 | 6 months |
|
| Column 1
| Column 2
| Column 3
| Column 4 Minimum period before application by which report must be obtained |
| 7 | Section 50 | Offence under section 49(1)(c), (d) or (e) | Before 13 May 2002 | 12 months |
| 8 | Section 50 | Offence under section 49(1)(c), (d) or (e) which was a first offence | On or after 13 May 2002 but before 11 October 2006 | 12 months |
| 9 | Section 89(1) of the Sentencing Act 1991 | First serious motor vehicle offence (as defined by paragraph (a), (b) or (c) of the definition of that term in section 87P of the Sentencing Act 1991) 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 1 November 2001 | 12 months |
| Item No. | Column 1
| Column 2
| Column 3
| Column 4 Minimum period before application by which report must be obtained |
| 10 | Section 89(1) of the Sentencing Act 1991 | First serious motor vehicle offence (as defined by paragraph (d) of the definition of that term in section 87P of the Sentencing Act 1991) 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 13 October 2004 | 12 months |
| 11 | Section 89(3) of the Sentencing Act 1991 | First offence under section 319AA of the Crimes Act 1958 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 30 September 2013 | 12 months |
|
| Column 1
| Column 2
| Column 3
| Column 4 Minimum period before application by which report must be obtained |
| 12 | Section 89(4) of the Sentencing Act 1991 | First offence of stealing or attempting to steal a motor vehicle 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 30 September 2013 | 3 months |
| 13 | Section 89A(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 30 September 2013 | 3 months |
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.
__________________".
__________________
Part 3—Alcohol Interlock Conditions
5Interpretative provisions
(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 section 89; or
(b)an offence against any previous enactment corresponding to any section an offence against which is referred to in that section 89; 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) 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 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
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 section 89 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)the Magistrates' Court considers it appropriate to make the order.
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.
(2)If column 3 of the Table in Schedule 1B specifies that it is mandatory to give an alcohol interlock condition direction for the relevant offence, the Magistrates' Court must, on making a licence eligibility order in respect of a person, direct the Corporation that it can only grant the person a driver licence or learner permit that is subject to an alcohol interlock condition.
(3)If column 3 of the Table in Schedule 1B specifies that it is discretionary to give an alcohol interlock condition direction for the relevant offence, the Magistrates' Court may, on making a licence eligibility order in respect of a person, direct the Corporation that it can only grant the person a driver licence or learner permit that is subject to an alcohol interlock condition.
(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 Schedule 1B in relation to those offences, the longest period so specified is the relevant period for the purpose of calculating the specified period under subsection (4).
(7)The specified period must be taken to begin on the first granting of a driver licence or learner permit that is subject to the alcohol interlock condition.
(8)If more than one alcohol interlock condition direction has been given in respect of a person, the periods specified in those directions under subsection (4) operate concurrently.
(9)For the purposes of this section and Schedule 1B—
(a)in determining whether an offence under any paragraph of section 49(1) was or was not a first offence, any previous conviction or finding of guilt of the person of an offence under section 49(1)(a) (involving only a drug) or of an offence under 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) is to be disregarded, despite section 48(2); and
(b)in determining whether an offence in respect of which a person has been disqualified under section 89 of the Sentencing Act 1991 (other than one involving only a drug) was or was not a first offence, section 48(5) and (6) have effect.".
7When an alcohol interlock condition can be removed
(1)In section 50AAB of the Road Safety Act 1986, subsections (1), (2) and (3) are repealed.
(2)In section 50AAB(4) of the Road Safety Act 1986 omit "made at the end of the specified period and on giving 28 days written notice of the application and of the venue of the Court at which it is to be made to the Chief Commissioner of Police".
(3)After section 50AAB(4) of the Road Safety Act 1986 insert—
"(4A)An application to the Magistrates' Court for an order referred to in subsection (4) may be made on giving 28 days written notice of the application and of the venue of the Court at which it is to be heard to—
(a)the Chief Commissioner of Police; and
(b)the registrar at that venue of the Court.
(4B)The Magistrates' Court must not—
(a)deal with or determine an application for an alcohol interlock condition removal order unless it is satisfied that the applicant has complied with the requirements of subsections (4A) and (5); or
(b)grant such an application unless it is satisfied that the specified period of each and every alcohol interlock condition direction given in respect of the person has elapsed.
(4C)In calculating whether the specified period of an alcohol interlock condition direction has elapsed, the Magistrates' Court may decide not to count—
(a)any period during which a driver licence or learner permit that is subject to the alcohol interlock condition is suspended; or
(b)any period during which the person did not hold a driver licence or learner permit.
Example
A person has his or her licence cancelled during the specified period on account of being found guilty of another offence. The Magistrates' Court may decide not to count the period during which it is cancelled when calculating whether the specified period has elapsed. If it does that, the period during which the person cannot apply for an alcohol interlock condition removal order is extended by the length of the period during which the licence was cancelled. Accordingly, the application for an alcohol interlock condition removal order must be refused as the extended period has not elapsed.".
(4)In section 50AAB(5) of the Road Safety Act 1986 for "the removal of an alcohol interlock condition imposed on a person's driver licence or permit" substitute "an alcohol interlock condition removal order".
(5)In section 50AAB(5)(b)(iii) of the Road Safety Act 1986 for "licence restoration report" substitute "licence eligibility report".
(6)After section 50AAB(5) of the Road Safety Act 1986 insert—
"(5A)If the specified period of an alcohol interlock condition direction given on the making of a licence eligibility order in respect of a disqualification under section 89A(1) of the Sentencing Act 1991 is less than 6 months, the report under subsection (5) must cover all of that period.".
(7)In section 50AAB(6) of the Road Safety Act 1986 for "order to remove an alcohol interlock condition imposed on a person's driver licence or permit" substitute "alcohol interlock condition removal order".
(8)In section 50AAB(6)(b) of the Road Safety Act 1986 for "the court, without limiting the generality of its discretion," substitute "without limiting its discretion, the court".
(9)In section 50AAB of the Road Safety Act 1986, subsections (7) and (8) are repealed.
8Appeals against direction or period specified in direction
(1)In the heading to section 50AAC of the Road Safety Act 1986 for "direction" substitute "alcohol interlock condition direction".
(2)For section 50AAC(1) of the Road Safety Act 1986 substitute—
"(1)If the Magistrates' Court, on making a licence eligibility order, gives an alcohol interlock condition direction to the Corporation, the person in respect of whom the direction is given may appeal to the County Court under section 254 of the Criminal Procedure Act 2009 against—
(a)in the case of a direction given under section 50AAA(3), the giving of the direction; or
(b)in any case, the specified period of the direction if that period is more than the minimum period required to be specified under section 50AAA(5) or (6) in relation to the relevant offence—
as if the direction were a sentence of a kind referred to in section 254 of the Criminal Procedure Act 2009.".
(3)After section 50AAC(2) of the Road Safety Act 1986 insert—
"(3)The making of an appeal to the County Court under subsection (1) does not stay the operation of the direction but the Magistrates' Court may stay its operation pending the decision of the appeal.".
9New sections 50AACA to 50AACC inserted
After section 50AAC of the Road Safety Act 1986 insert—
"50AACA Effect of alcohol interlock condition removal order
(1)An alcohol interlock condition removal order has effect with respect to all alcohol interlock conditions imposed before the making of the order on any driver licence or learner permit held by the person and with respect to which no previous alcohol interlock condition removal order has had effect.
(2)An alcohol interlock condition removal order must include a statement to the same effect as subsection (1).
50AACBCourt must notify the Corporation of certain matters
The Magistrates' Court must cause particulars of the following to be sent immediately to the Corporation—
(a)an alcohol interlock condition direction given by it;
(b)an alcohol interlock condition removal order made by it;
(c)a stay granted by it under section 50AAC(3).
50AACCApplication of Evidence Act 2008
To avoid doubt, the proceeding on an application for the making of an alcohol interlock condition removal order is a proceeding that relates to sentencing for the purposes of section 4(2) of the Evidence Act 2008.".
10Approval of types of alcohol interlocks and alcohol interlock suppliers
After section 50AAE(6) of the Road Safety Act 1986 insert—
"(6A)Concessions to be provided in accordance with subsection (6) may vary depending on the class of person eligible for the concession.".
11New sections 50AAEA and 50AAEB inserted
After section 50AAE of the Road Safety Act 1986 insert—
"50AAEA Refusal of approved alcohol interlock supplier to supply
(1)An approved alcohol interlock supplier may, with the prior approval of the Corporation, refuse to supply approved alcohol interlocks to a specified person or a specified class of person.
(2)The Corporation may only grant an approval under subsection (1) if—
(a)the approved alcohol interlock supplier has submitted to it in writing a statement of the grounds for wishing to refuse to supply approved alcohol interlocks to the specified person or specified class of person; and
(b)the Corporation is satisfied that, having regard to those grounds, it is reasonable to approve the refusal to supply.
50AAEBChange of terms and conditions
(1)This section applies if an approved alcohol interlock supplier wishes to vary, whether with respect to all customers or a particular class of customer—
(a)the terms and conditions covered by section 50AAE(5)(g) on which it then operates; or
(b)the concessions covered by section 50AAE(6) that it then provides.
(2)The approved alcohol interlock supplier may only make the variation if—
(a)it submits to the Corporation in writing particulars of the proposed variation and the grounds for wishing to make it; and
(b)the Corporation approves the proposed variation.".
12Conditions on approvals
In section 50AAF(2)(a) of the Road Safety Act 1986 after "(if any)" insert "as in force from time to time".
13New Schedule 1B inserted
Before Schedule 2 to the Road Safety Act 1986 insert—
"SCHEDULE 1B
Alcohol Interlock Requirement
Table
|
| Column 1
| Column 2
| Column 3 Whether giving of alcohol interlock condition direction mandatory or discretionary | Column 4
|
| 1 | Offence under section 49(1)(a) (other than one involving only a drug), (c), (d) or (e) | Before 13 May 2002 | Discretionary | 6 months |
| Item No. | Column 1
| Column 2
| Column 3 Whether giving of alcohol interlock condition direction mandatory or discretionary | Column 4
|
| 2 | Offence under section 49(1)(a) (other than one involving only a drug), (c), (d) or (e) which was a first or second offence | On or after 13 May 2002 but before 22 December 2004 | Discretionary for a first offence and mandatory for a second offence | 6 months |
| 3 | Offence under section 49(1)(a) (other than one involving only a drug), (c), (d) or (e) which was a third or subsequent offence | On or after 13 May 2002 but before 22 December 2004 | Mandatory | 3 years |
| 4 | Offence under section 49(1)(a) (other than one involving only a drug), (c), (d) or (e) which was a first offence | On or after 22 December 2004 but before 11 October 2006 | Discretionary | 6 months |
| Item No. | Column 1
| Column 2
| Column 3 Whether giving of alcohol interlock condition direction mandatory or discretionary | Column 4
|
| 5 | Offence under section 49(1)(a) (other than one involving only a drug), (c), (d) or (e) which was not a first offence | On or after 22 December 2004 but before 11 October 2006 | Mandatory | 3 years |
| 6 | Offence under section 49(1)(a) (other than one involving only a drug), (c), (d) or (e) which was a first offence | On or after 11 October 2006 | Mandatory | 6 months |
| 7 | Offence under section 49(1)(a) (other than one involving only a drug), (c), (d) or (e) which was not a first offence | On or after 11 October 2006 | Mandatory | 4 years |
| Item No. | Column 1
| Column 2
| Column 3 Whether giving of alcohol interlock condition direction mandatory or discretionary | Column 4
|
| 8 | 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 100 millilitres of blood or in the breath was 0·15 grams or more per 210 litres of exhaled air | Before 13 May 2002 | Discretionary | 6 months |
| 9 | Offence under section 49(1)(b), (f) or (g) which was a first offence and the level of concentration of alcohol in the blood was 0·15 grams or more per 100 millilitres of blood or in the breath was 0·15 grams or more per 210 litres of exhaled air | On or after 13 May 2002 but before 11 October 2006 | Discretionary | 6 months |
| Item No. | Column 1
| Column 2
| Column 3 Whether giving of alcohol interlock condition direction mandatory or discretionary | Column 4
|
| 10 | Offence under section 49(1)(b), (f) or (g) which was not a first offence | On or after 13 May 2002 but before 11 October 2006 | Mandatory | 6 months in the case of a second offence if the level of concentration of alcohol in the blood was less than 0·15 grams per 100 millilitres of blood or in the breath was less than 0·15 grams per 210 litres of exhaled air; 3 years in any other case |
| 11 | Offence under section 49(1)(b), (f) or (g) which was a first offence and the level of concentration of alcohol in the blood was 0·15 grams or more per 100 millilitres of blood or in the breath was 0·15 grams or more per 210 litres of exhaled air | On or after 11 October 2006 | Mandatory | 6 months |
| Item No. | Column 1
| Column 2
| Column 3 Whether giving of alcohol interlock condition direction mandatory or discretionary | Column 4
|
| 12 | Offence under section 49(1)(b), (f) or (g) which was not a first offence | On or after 11 October 2006 | Mandatory | 12 months in the case of a second offence if the level of concentration of alcohol in the blood was less than 0·15 grams per 100 millilitres of blood or in the breath was less than 0·15 grams per 210 litres of exhaled air; 4 years in any other case |
| 13 | Offence under section 49(1)(b), (f) or (g) which was a first offence and the level of concentration of alcohol in the blood was 0·07 grams or more per 100 millilitres of blood but less than 0·15 grams per 100 millilitres of blood or in the breath was | On or after 11 October 2006 but before 1 January 2007 | Discretionary | 6 months |
| Item No. | Column 1
| Column 2
| Column 3 Whether giving of alcohol interlock condition direction mandatory or discretionary | Column 4
|
| 0·07 grams or more per 210 litres of exhaled air but less than 0·15 grams per 210 litres of exhaled air | ||||
| 14 | Offence under section 49(1)(b), (f) or (g) which was a first offence and the level of concentration of alcohol in the blood was 0·07 grams or more per 100 millilitres of blood but less than 0·15 grams per 100 millilitres of blood or in the breath was 0·07 grams or more per 210 litres of exhaled air but less than 0·15 grams per 210 litres of exhaled air | On or after 1 January 2007 | Mandatory if at the time of the offence the person was under the age of 26 years or the holder of a probationary driver licence; Discretionary in any other case | 6 months |
| Item No. | Column 1
| Column 2
| Column 3 Whether giving of alcohol interlock condition direction mandatory or discretionary | Column 4
|
| 15 | An offence referred to in section 89(1) of the Sentencing Act 1991 if the court made a finding that the offence was committed while the person was under the influence of alcohol, or both alcohol and a drug, which contributed to the offence | Before 13 May 2002 | Discretionary | 6 months |
| 16 | An offence referred to in section 89(1) of the Sentencing Act 1991 which was a first offence if the court made a finding that the offence was committed while the person was under the | On or after 13 May 2002 | Discretionary | 6 months |
|
| Column 1
| Column 2
| Column 3 Whether giving of alcohol interlock condition direction mandatory or discretionary | Column 4
|
| influence of alcohol, or both alcohol and a drug, which contributed to the offence | ||||
| 17 | An offence referred to in section 89(1) of the Sentencing Act 1991 which was not a first offence if the court made a finding that the offence was committed while the person was under the influence of alcohol, or both alcohol and a drug, which contributed to the offence | On or after 13 May 2002 but before 22 December 2004 | Mandatory | 6 months in the case of a second offence; 3 years in any other case |
| Item No. | Column 1
| Column 2
| Column 3 Whether giving of alcohol interlock condition direction mandatory or discretionary | Column 4
|
| 18 | An offence referred to in section 89(1) of the Sentencing Act 1991 which was not a first offence if the court made a finding that the offence was committed while the person was under the influence of alcohol, or both alcohol and a drug, which contributed to the offence | On or after 22 December 2004 but before 11 October 2006 | Mandatory | 3 years |
| 19 | An offence referred to in section 89(1) of the Sentencing Act 1991 which was not a first offence if the court made a finding that the offence was committed while the | On or after 11 October 2006 | Mandatory | 4 years |
|
| Column 1
| Column 2
| Column 3 Whether giving of alcohol interlock condition direction mandatory or discretionary | Column 4
|
| person was under the influence of alcohol, or both alcohol and a drug, which contributed to the offence | ||||
| 20 | An offence referred to in section 89(3) or (4) of the Sentencing Act 1991 which was a first offence if the court made a finding that the offence was committed while the person was under the influence of alcohol, or both alcohol and a drug, which contributed to the offence | On or after 30 September 2013 | Discretionary | 6 months |
| Item No. | Column 1
| Column 2
| Column 3 Whether giving of alcohol interlock condition direction mandatory or discretionary | Column 4
|
| 21 | An offence referred to in section 89(3) or (4) of the Sentencing Act 1991 which was not a first offence if the court made a finding that the offence was committed while the person was under the influence of alcohol, or both alcohol and a drug, which contributed to the offence | On or after 30 September 2013 | Mandatory | 4 years |
| 22 | An offence referred to in section 89A(1) of the Sentencing Act 1991 if the court made a finding that the offence was committed while the person was under the | On or after 30 September 2013 | Discretionary | Not applicable |
|
| Column 1
| Column 2
| Column 3 Whether giving of alcohol interlock condition direction mandatory or discretionary | Column 4
|
| influence of alcohol, or both alcohol and a drug, which contributed to the offence |
__________________".
__________________
Part 4—Consequential and Other Miscellaneous Amendments
Division 1—Road Safety Act 1986
14Definitions
(1)In section 3(1) of the Road Safety Act 1986, in the definition of accredited agency, for "50" substitute "31C, 31E, 31G".
(2)In section 3(1) of the Road Safety Act 1986 insert the following definitions—
"alcohol interlock condition direction means a direction given under section 50AAA(2) or (3) to the Corporation that it can only grant a person a driver licence or learner permit that is subject to an alcohol interlock condition;
alcohol interlock condition removal order means an order made under section 50AAB(4) that an alcohol interlock condition imposed on a person's driver licence or learner permit be removed;
assessment report means a report about a person's usage of alcohol or drugs obtained from an accredited agency in accordance with section 31C;
licence eligibility order means an order made by the Magistrates' Court under section 31H declaring that a person is eligible to apply to the Corporation for the grant of a driver licence or learner permit;
licence eligibility report means a report about a person's suitability for a licence eligibility order obtained from an accredited agency in accordance with section 31E or 31G;".
(3)In section 3(1) of the Road Safety Act 1986 for the definition of alcohol interlock condition substitute—
"alcohol interlock condition means a condition on a driver licence or learner permit under which the holder is only permitted to drive a motor vehicle in which an approved alcohol interlock has been installed, and maintained, by an approved alcohol interlock supplier or a person or body authorised by such a supplier;".
(4)In section 3(1) of the Road Safety Act 1986, the definition of licence restoration report is repealed.
15New sections 3AD and 3AE inserted in Road Safety Act 1986
After section 3AC of the Road Safety Act 1986 insert—
"3AD Circumstances in which person is to be taken to be disqualified from obtaining a driver licence or learner permit
Without limiting the circumstances in which a person is disqualified from obtaining a driver licence or learner permit, a person who is disqualified from driving a motor vehicle on a road in Victoria under—
(a)section 89C(3A) of this Act; or
(b)section 89D(1A) of this Act; or
(c)section 89(1)(b), (3)(b) or (4)(b) or 89A(1)(b) of the Sentencing Act 1991—
is to be taken to be also disqualified under that section from obtaining a driver licence or learner permit under this Act for the period for which he or she is so disqualified from driving.
3AECircumstances in which person is to be taken to be disqualified from driving a motor vehicle on a road in Victoria
Without limiting the circumstances in which a person is disqualified from driving a motor vehicle on a road in Victoria, a person who (whether under this or any other Act, other than by force of section 3AD of this Act) is disqualified from obtaining a driver licence or learner permit under this Act is to be taken to be disqualified from driving a motor vehicle on a road in Victoria for the period for which he or she is so disqualified from obtaining a driver licence or learner permit.".
16Offence if driver not licensed
For section 18(3) of the Road Safety Act 1986 substitute—
"(3)If the court is satisfied in the case of a person who drove a motor vehicle on a highway in the circumstances referred to in subsection (1)(a)—
(a)that the person was disqualified under this Act or the Sentencing Act 1991 from obtaining a driver licence or learner permit; and
(b)that the Magistrates' Court would have had power to give an alcohol interlock condition direction had the person applied for a licence eligibility order or, having applied for such an order, had the Court not refused to make it—
that person is liable to a penalty not exceeding 30 penalty units or to imprisonment for not more than 4 months.".
17Driver licences
(1)In section 19(7) of the Road Safety Act 1986—
(a)after "who" insert ", having been disqualified from obtaining a driver licence or learner permit under section 50 or 89C of this Act or section 89 of the Sentencing Act 1991 or by force of section 3AD (other than paragraph (b) of that section) of this Act,";
(b)for "full driver licence" substitute "driver licence or learner permit";
(c)for "order of the Magistrates' Court made on an application under section 50(4) of this Act or section 89(2) of the Sentencing Act 1991" substitute "making by the Magistrates' Court of a licence eligibility order";
(d)after "the licence" (where first occurring) insert "or permit";
(e)for "as defined in section 3(1) of this Act or section 87P(1) of the Sentencing Act 1991, as the case requires, applies to the licence" substitute "applies to the licence or permit";
(f)after "a licence" insert "or permit".
(2)At the foot of section 19(7) of the Road Safety Act 1986 insert—
"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 subsection.".
(3)After section 19(7) of the Road Safety Act 1986 insert—
"(7A)A person who, having been disqualified from obtaining a driver licence or learner permit under section 89A(1) of the Sentencing Act 1991, holds a driver licence or learner permit issued only because of the making by the Magistrates' Court of a licence eligibility order and to which an alcohol interlock condition applies must have the licence or permit in his or her possession while driving or in charge of a motor vehicle at any time while an alcohol interlock condition applies to the licence or permit.
Penalty:5 penalty units.
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 subsection.".
18Probationary driver licences
In section 21(7) of the Road Safety Act 1986 after "section 50(4)" insert "(as then in force)".
19Effect of suspension of licence or permit
(1)In section 28A of the Road Safety Act 1986 after "this Act" insert ", the Sentencing Act 1991".
(2)At the end of section 28A of the Road Safety Act 1986 insert—
"(2)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, only because of that suspension, a person who has been disqualified under that section for the purposes of section 19(7) or (7A), 31A, 31C, 31E, 50AAA or 52.".
20Disqualified person must not apply for licence or permit
In section 28B(1) of the Road Safety Act 1986 after "this Act" insert ", the Sentencing Act 1991".
21Appeal against disqualification, cancellation, suspension or variation by order of Magistrates' Court or Children's Court
After section 29(2) of the Road Safety Act 1986 insert—
"(2A)To avoid doubt, this section applies irrespective of whether the order of the Magistrates' Court or of the Children's Court is made under this Act or the Sentencing Act 1991.".
22Offence to drive while disqualified etc.
(1)In section 30(1) of the Road Safety Act 1986, after "authorisation" (where secondly occurring) insert "imposed by a court or by the Corporation or by force of this Act or the Sentencing Act 1991".
(2)Section 30(2) of the Road Safety Act 1986 is repealed.
23Accredited agencies
In section 49A(1)(a) of the Road Safety Act 1986, for "50" substitute" 31C, 31E, 31G".
24Provisions about cancellation and disqualification
(1)In section 50 of the Road Safety Act 1986, subsections (3), (4), (4A), (4B), (4C), (4D), (5), (5A) and (5B) are repealed.
(2)At the foot of section 50 of the Road Safety Act 1986 insert—
"Note
A person disqualified under this section needs to obtain a licence eligibility order from the Magistrates' Court before he or she can apply to the Corporation for the grant of a driver licence or learner permit: see section 31A.".
25Alcohol interlock provisions
(1)In section 50AAH(4)(b) of the Road Safety Act 1986, omit "and the Sentencing Act 1991".
(2)In section 50AAH of the Road Safety Act 1986, subsection (5) and the note at the foot of that subsection are repealed.
(3)At the foot of section 50AAH of the Road Safety Act 1986 insert—
"Note
Under section 50AAD(3), a person who breaches an alcohol interlock condition because the approval of a type of alcohol interlock has been cancelled has a defence if the person proves that he or she reasonably believed that the type of alcohol interlock was approved.".
(4)In section 50AAI of the Road Safety Act 1986, subsection (4) and the note at the foot of that subsection are repealed.
(5)At the foot of section 50AAI of the Road Safety Act 1986 insert—
"Note
Under section 50AAD(3), a person who breaches an alcohol interlock condition because the approval of an alcohol interlock supplier has been cancelled or suspended has a defence if the person proves that he or she reasonably believed that the supplier was approved or that the supplier's approval was in force (as the case requires).".
26Previous convictions
(1)In column 1 of the Table in section 50AA of the Road Safety Act 1986, for "Sections 50(3) and 50A(1)" substitute "Section 50A(1)".
(2)In column 2 of the Table in section 50AA of the Road Safety Act 1986, for "the application for the driver licence or permit" substitute
"an application for the grant of a driver licence or learner permit".
(3)In the Table in section 50AA of the Road Safety Act 1986 omit every entry in relation to which the event specified in column 2 is the making of an application under section 50(4).
(4)At the end of the Table in section 50AA of the Road Safety Act 1986 insert—
"Sections 31A and 31E The making of an application for a licence eligibility order Section 50AAA The making of an application for a licence eligibility order Schedules 1A and 1B The making of an application for a licence eligibility order". 27Zero blood or breath alcohol
(1)For section 52(1B) of the Road Safety Act 1986 substitute—
"(1B)This section also applies to a person who is driving or in charge of a motor vehicle, while holding a driver licence or learner permit which authorises the holder to drive such a motor vehicle, during the period of 3 years (or any longer period during which an alcohol interlock condition applies to the licence or permit) from the first issue of the licence or permit if—
(a)the person had been disqualified from obtaining a driver licence or learner permit under section 50 or 89C of this Act or section 89 of the Sentencing Act 1991 or, by force of section 3AD of this Act, is to be taken to be so disqualified under that section 89C or 89; and
(b)the licence or permit has been issued only because of the making by the Magistrates' Court of a licence eligibility order.
(1BA)This section also applies to a person who is driving or in charge of a motor vehicle, while holding a driver licence or learner permit which authorises the holder to drive such a motor vehicle and to which an alcohol interlock condition applies if—
(a)the person had been disqualified from obtaining a driver licence or learner permit under section 89A(1) of the Sentencing Act 1991 or, by force of section 3AD of this Act, is to be taken to be so disqualified under that section 89A(1); and
(b)the licence or permit has been issued only because of the making by the Magistrates' Court of a licence eligibility order.
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.".
(2)After section 52(2) of the Road Safety Act 1986 insert—
"(3)If this section applies to a person by force of the operation of more than one subsection, the periods provided by those subsections operate concurrently.
(4)If—
(a)during any period during which this section applies to a person (the application period), the driver licence or learner permit held by the person is suspended or he or she does not hold a driver licence or learner permit; and
(b)before the end of the application period the suspension ends or a new or renewed driver licence or learner permit is granted to the person—
the part of the application period then remaining continues or, in the case of a new or renewed driver licence or learner permit, is carried over to that licence or permit.
Example
Under this section a person is subject to zero blood or breath alcohol for a 3 year period and this requirement is due to expire on 1 January 2017. 18 months into that 3 year period the person's driver licence is cancelled and the person is disqualified from obtaining a further driver licence or learner permit for 6 months. The person is granted a new driver licence within the original 3 year period. He or she will then be subject to zero blood or breath alcohol for the remainder of that original 3 year period, that is, from when the new driver licence is granted until 1 January 2017.".
28General duty of driver or person in charge of motor vehicle
(1)In section 59(1)(a), (1A)(a) and (2)(a) of the Road Safety Act 1986 for "permit document" substitute "learner permit document".
(2)In section 59(3) of the Road Safety Act 1986—
(a)for "under section 50(4)" substitute "for a licence eligibility order";
(b)for "permit document"(where twice occurring) substitute "learner permit document".
(3)In section 59(9) of the Road Safety Act 1986 for "permit document" substitute "learner permit document".
Division 2—Marine (Drug, Alcohol and Pollution Control) Act 1988
29Interpretation
In section 27(2)(e) of the Marine (Drug, Alcohol and Pollution Control) Act 1988, for "whether in relation to a motor vehicle or a vessel" substitute "in relation to a vessel".
Division 3—Magistrates' Court Act 1989
30Duplicate warrants
(1)In section 59(4) of the Magistrates' Court Act 1989, after "executed" insert ", or having been released on parole from a prison, a police gaol or a youth justice centre is still under sentence,".
(2)In section 59(5) of the Magistrates' Court Act 1989, after "the person is" insert ", or into whose legal custody the person is delivered,".
Division 4—Sentencing Act 1991
31Definition
In section 3(1) of the Sentencing Act 1991 the definition of licence restoration report is repealed.
32New Division 3 of Part 4 substituted
For Division 3 of Part 4 of the Sentencing Act 1991 substitute—
"Division 3—Driver licences and learner permits—suspension, cancellation and driver disqualification
87PDefinition
In this Division—
serious motor vehicle offence means—
(a)manslaughter arising out of the driving of a motor vehicle; or
(b)an offence under section 24 of the Crimes Act 1958 in respect of serious injury arising out of the driving of a motor vehicle; or
(c)an offence under section 318 of the Crimes Act 1958 arising out of the driving of a motor vehicle (other than the operating of a vessel); or
(d)an offence under section 319 of the Crimes Act 1958 arising out of the driving of a motor vehicle (other than the operating of a vessel).
87QMatters to be sent to Roads Corporation
A court that makes an order under section 89 or 89A or a finding under section 89C(1) must cause particulars of the order or finding (including the offence or offences of which the person was found guilty or convicted) to be sent immediately to the Roads Corporation.
88Application of Evidence Act 2008
To avoid doubt, a proceeding under this Division is a proceeding that relates to sentencing for the purposes of section 4(2) of the Evidence Act 2008.
89Suspension or cancellation of driver licence or learner permit and driver disqualification—certain motor vehicle offences
(1)If a person is found guilty or convicted of a serious motor vehicle offence, the court must—
(a)if the person is the holder of a driver licence or learner permit, cancel that licence or permit and disqualify him or her from obtaining a further one for the period of time that the court specifies; or
(b)if the person is not the holder of a driver licence or learner permit but is the holder of an equivalent licence or permit issued in another State or a Territory of the Commonwealth or another country, disqualify him or her from driving a motor vehicle on a road in Victoria for the period for which he or she would have been disqualified from obtaining a driver licence or learner permit, had he or she held one; or
(c)in any other case where the person is not the holder of a driver licence or learner permit, disqualify him or her from obtaining one for the period of time that the court specifies.
(2)The court must not specify a period of disqualification under subsection (1) that is—
(a)for an offence to which paragraph (d) of the definition of serious motor vehicle offence in section 87P applies, less than 18 months; or
(b)for any other serious motor vehicle offence, less than 24 months.
(3)If a person is found guilty or convicted of an offence under section 319AA of the Crimes Act 1958, the court must—
(a)if the person is the holder of a driver licence or learner permit, cancel that licence or permit and disqualify him or her from obtaining a further one for the period of time that the court specifies, being not less than 12 months; or
(b)if the person is not the holder of a driver licence or learner permit but is the holder of an equivalent licence or permit issued in another State or a Territory of the Commonwealth or another country, disqualify him or her from driving a motor vehicle on a road in Victoria for the period for which he or she would have been disqualified from obtaining a driver licence or learner permit, had he or she held one; or
(c)in any other case where the person is not the holder of a driver licence or learner permit, disqualify him or her from obtaining one for the period of time that the court specifies, being not less than 12 months.
(4)If a person is found guilty or convicted of stealing or attempting to steal a motor vehicle, the court may (in the case of a finding of guilt) and must (in the case of a conviction)—
(a)if the person is the holder of a driver licence or learner permit—
(i)suspend that licence or permit for the period of time that the court specifies; or
(ii)cancel that licence or permit and disqualify him or her from obtaining a further one for the period of time that the court specifies; or
(b)if the person is not the holder of a driver licence or learner permit but is the holder of an equivalent licence or permit issued in another State or a Territory of the Commonwealth or another country, disqualify him or her from driving a motor vehicle on a road in Victoria for the period for which he or she would have been disqualified from obtaining a driver licence or learner permit, had he or she held one; or
(c)in any other case where the person is not the holder of a driver licence or learner permit, disqualify him or her from obtaining one for the period of time that the court specifies.
(5)If a period of suspension or disqualification is not specified by the court on making an order under subsection (4)(a), (b) or (c), the period is 3 months.
Notes
1 A person who is disqualified from obtaining a driver licence or learner permit under this section must apply to the Magistrates' Court under Part 3 of the Road Safety Act 1986 for a licence eligibility order if he or she wishes to be granted a driver licence or learner permit under that Act.
On the making of a licence eligibility order the Magistrates' Court may give an alcohol interlock condition direction under Part 5 of the Road Safety Act 1986 if a finding was made under section 89C(1) that the disqualifying offence was committed while the person was under the influence of alcohol, or both alcohol and a drug, which contributed to the offence.
A person disqualified under this section who is granted a driver licence or learner permit must have zero concentration of alcohol present in his or her blood or breath while driving or in charge of a motor vehicle during the first 3 years of that licence or permit or any longer period during which the licence or permit is subject to an alcohol interlock condition. See section 52(1B) of the Road Safety Act 1986.
A person who is disqualified from obtaining a driver licence or learner permit or whose driver licence or learner permit is cancelled under this section by order of the Magistrates' Court or Children's Court may appeal to the County Court. See section 29 of the Road Safety Act 1986.
See sections 3AD and 3AE of the Road Safety Act 1986 for circumstances in which a person is to be taken to be disqualified from obtaining a driver licence or learner permit or from driving a motor vehicle on a road in Victoria.
2 Particulars of any order made by a court under this section must be sent immediately to the Roads Corporation—see section 87Q.
89ASuspension or cancellation of driver licence or learner permit and driver disqualification—any offence
(1)If a person is found guilty or convicted of any offence the court may—
(a)if the person is the holder of a driver licence or learner permit—
(i)suspend that licence or permit for the period of time that the court specifies; or
(ii)cancel that licence or permit and disqualify him or her from obtaining a further one for the period of time that the court specifies; or
(b)if the person is not the holder of a driver licence or learner permit but is the holder of an equivalent licence or permit issued in another State or a Territory of the Commonwealth or another country, disqualify him or her from driving a motor vehicle on a road in Victoria for the period for which he or she would have been disqualified from obtaining a driver licence or learner permit, had he or she held one; or
(c)in any other case where the person is not the holder of a driver licence or learner permit, disqualify him or her from obtaining one for the period of time that the court specifies.
(2)If a period of suspension or disqualification is not specified by the court on making an order under subsection (1)(a), (b) or (c), the period is 3 months.
(3)A court that makes an order under subsection (1) must, at the time of doing so, cause to be entered in the records of the court the fact that it is an order made under this section and the offence or offences of which the person was found guilty or convicted.
(4)Subsection (1) does not apply to an offender found guilty or convicted of—
(a)a serious motor vehicle offence or an offence referred to in section 89(3) or (4); or
(b)an offence under the Road Safety Act 1986 or regulations made under that Act or rules made under section 95D of that Act.
Notes
1 A person who is disqualified from obtaining a driver licence or learner permit under subsection (1) must apply to the Magistrates' Court under Part 3 of the Road Safety Act 1986 for a licence eligibility order if he or she wishes to be granted a driver licence or learner permit under that Act.
On the making of a licence eligibility order the Magistrates' Court may give an alcohol interlock condition direction under Part 5 of the Road Safety Act 1986 if a finding was made under section 89C(1) that the disqualifying offence was committed while the person was under the influence of alcohol, or both alcohol and a drug, which contributed to the offence.
A person disqualified under subsection (1) who is granted a driver licence or learner permit must have zero concentration of alcohol present in his or her blood or breath while driving or in charge of a motor vehicle during any period when the licence or permit is subject to an alcohol interlock condition. See section 52(1BA) of the Road Safety Act 1986.
A person who is disqualified from obtaining a driver licence or learner permit or whose driver licence or learner permit is cancelled under this section by order of the Magistrates' Court or Children's Court may appeal to the County Court. See section 29 of the Road Safety Act 1986.
See sections 3AD and 3AE of the Road Safety Act 1986 for circumstances in which a person is to be taken to be disqualified from obtaining a driver licence or learner permit or from driving a motor vehicle on a road in Victoria.
2 Particulars of any order made by a court under this section must be sent immediately to the Roads Corporation—see section 87Q.
89BCommencement of period of disqualification
A period of disqualification under section 89(1), (3) or (4) or section 89A(1) commences on the day that the order imposing it is made or on any later day that the court specifies in the order.
89CFinding on cancellation of driver licence or learner permit or driver disqualification
(1)Subject to subsection (2), a court, in addition to making an order under section 89(1), (3) or (4) or section 89A(1), may make a finding that the offence was committed while the offender was under the influence of alcohol or a drug, or both alcohol and a drug, which contributed to the offence.
(2)If a person is found guilty or convicted of an offence under section 318(1) of the Crimes Act 1958 in respect of which the culpable driving is constituted by behaviour referred to in paragraph (c) or (d) or in both paragraphs (c) and (d) of section 318(2) of that Act, in addition to making an order under section 89(1) the court must make a finding that the offence was committed while the offender was under the influence of alcohol or a drug, or both alcohol and a drug, (as the case requires) which contributed to the offence.
(3)If a finding of a kind referred to in subsection (2) is not made in the circumstances to which that subsection applies, the relevant finding must be taken to have been made.
Note
Particulars of any finding made by a court under this section must be sent immediately to the Roads Corporation—see section 87Q.
89DPresumption in favour of concurrency
(1)If the driver licence or learner permit of an offender is suspended under section 89(4) or 89A(1) (later suspension) and the driver licence or learner permit of the offender has previously been suspended under—
(a)either of those sections; or
(b)the Road Safety Act 1986; or
(c)regulations made under the Road Safety Act 1986 or rules made under section 95D of that Act—
the later suspension is presumed to operate concurrently with the earlier suspension, unless the court orders otherwise.
(2)If a person is disqualified under section 89(1), (3) or (4) or 89A(1) from obtaining a driver licence or learner permit or from driving (later disqualification) and the offender has previously been disqualified from obtaining a driver licence or learner permit or from driving under—
(a)any of those sections; or
(b)the Road Safety Act 1986; or
(c)regulations made under the Road Safety Act 1986 or rules made under section 95D of that Act—
the later disqualification is presumed to operate concurrently with the earlier disqualification, unless the court orders otherwise.
(3)The presumption—
(a)under subsection (1) does not apply if the Road Safety Act 1986 or regulations made under that Act or rules made under section 95D of that Act require the suspension to be consecutive;
(b)under subsection (2) does not apply if the Road Safety Act 1986 or regulations made under that Act or rules made under section 95D of that Act require the disqualification to be consecutive.
89DACancellation on disqualification
If under this Division a court disqualifies a person from obtaining a driver licence or learner permit for any time without expressly cancelling any driver licence or learner permit held by that person, any driver licence or learner permit held by that person is, unless the order specifies otherwise, to be taken to have been cancelled by that order.
89DBEffect of cancellation
A driver licence or learner permit cancelled by a court under this Act is of no effect.".
33Statute law revision—section 146 renumbered as section 149
In section 146 of the Sentencing Act 1991, for "146" substitute "149".
Division 5—Criminal Procedure Act 2009
34Amendment of Criminal Procedure Act 2009
(1)In section 59(1)(a) of the Criminal Procedure Act 2009 after "motor vehicle" insert
"and disqualification under the Road Safety Act 1986 or the Sentencing Act 1991 from obtaining such a licence or permit or from driving a motor vehicle on a road in Victoria".
(2)In section 91(1) of the Criminal Procedure Act 2009 for "of the person on whom the sentence was imposed" substitute "or learner permit of the person on whom the sentence was imposed or the disqualification of that person under the Road Safety Act 1986 or the Sentencing Act 1991 from obtaining such a licence or permit or from driving a motor vehicle on a road in Victoria".
(3)In section 91(2) of the Criminal Procedure Act 2009—
(a)after "driver licence" insert "or learner permit"; and
(b)after "Magistrates' Court" insert "or that person has been disqualified under the Road Safety Act 1986 or the Sentencing Act 1991 by order of the Magistrates' Court from obtaining such a licence or permit or from driving a motor vehicle on a road in Victoria".
(4)In section 91(3) of the Criminal Procedure Act 2009—
(a)after "driver licence" insert "or learner permit"; and
(b)after "varied" insert "or who has been disqualified as mentioned in subsection (2)".
(5)In section 91(4) of the Criminal Procedure Act 2009 after "driver licence" insert "or learner permit or the order for the disqualification of the person from obtaining such a licence or permit or from driving a motor vehicle on a road in Victoria".
(6)After section 91(4) of the Criminal Procedure Act 2009 insert—
"(5)The Magistrates' Court must cause particulars of a stay under subsection (4) to be sent immediately to the Corporation.
(6)In this section driver licence and learner permit have the same meanings as in the Road Safety Act 1986.".
Division 6—Sentencing Amendment (Community Correction Reform) Act 2011
35Amendment of Sentencing Amendment (Community Correction Reform) Act 2011
(1)Sections 61 to 67 of the Sentencing Amendment (Community Correction Reform) Act 2011 are repealed.
(2)Sections 101 to 106 of the Sentencing Amendment (Community Correction Reform) Act 2011 are repealed.
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Part 5—Transitional Arrangements
36New section 103ZG inserted in Road Safety Act 1986
After section 103ZF of the Road Safety Act 1986 insert—
"103ZG Transitional provisions—Road Safety and Sentencing Acts Amendment Act 2013
(1)This Act as in force immediately before 30 September 2013 continues to apply with respect to applications made before that date—
(a)under section 50(4) for an order as to the issue of a driver licence or learner permit; or
(b)under section 50AAB(4) for an order to remove an alcohol interlock condition.
(2)A person who—
(a)has been disqualified under section 50 or 89C before 30 September 2013; and
(b)under this Act as in force immediately before that date may only be granted a driver licence or learner permit on an order made by the Magistrates' Court on an application under section 50(4); and
(c)wishes to apply for such an order on or after that date—
may only do so by applying for a licence eligibility order in accordance with this Act as amended by the Road Safety and Sentencing Acts Amendment Act 2013.
(3)Despite anything to the contrary in this Act, on an application for a licence eligibility order made by a person covered by subsection (2) the Magistrates' Court—
(a)is not required to give an alcohol interlock condition direction if it would not have been required to give a direction before 30 September 2013 under section 50AAA as in force immediately before that date; and
(b)does not have power to give such a direction if it would not have had power to give it before that date under that section 50AAA; and
(c)may not specify in such a direction under section 50AAA a period longer than it could have specified before that date under section 50AAB as in force immediately before that date—
had the application been made under section 50(4) before that date.
(4)A person who—
(a)has had an alcohol interlock condition imposed on his or her driver licence or learner permit in accordance with a direction under section 50AAA before 30 September 2013; and
(b)under this Act as in force immediately before that date can only have that condition removed by the Corporation on an order made by the Magistrates' Court on an application under section 50AAB(4); and
(c)wishes to apply for such an order on or after that date—
may only do so by applying for an alcohol interlock condition removal order in accordance with this Act as amended by the Road Safety and Sentencing Acts Amendment Act 2013.
(5)For the purposes of an application covered by subsection (4) the reference in section 50AAB(5)(b)(iii) to a licence eligibility report includes a reference to a licence restoration report within the meaning of this Act as in force immediately before 30 September 2013 if such a report was obtained before that date.
(6)Section 50AAC, as in force immediately before 30 September 2013, continues to apply with respect to appeals made to the County Court in respect of a direction given under section 50AAA before that date, irrespective of whether the appeal is made before, on or after that date.
(7)Section 48(2)(f), as substituted by section 5(1) of the Road Safety and Sentencing Acts Amendment Act 2013 applies only in respect of an offence that is alleged to have been committed on or after 30 September 2013.
(8)In section 50AAA(8), as inserted by section 6 of the Road Safety and Sentencing Acts Amendment Act 2013—
(a)the reference to an alcohol interlock condition direction includes a reference to a direction given under section 50AAA(1A), (2), (2A), (3)(b) or (3A) of this Act, or section 89A(2), 89A(3)(b) or 89A(4) of the Sentencing Act 1991, as in force immediately before 30 September 2013; and
(b)the reference to the periods specified in directions includes, in relation to a direction referred to in paragraph (a), the period specified under section 50AAB(1) of this Act, or section 89B(1) of the Sentencing Act 1991, as in force immediately before 30 September 2013.
(9)Section 50AACA, as inserted by section 9 of the Road Safety and Sentencing Acts Amendment Act 2013, only applies with respect to an alcohol interlock condition removal order made on or after 30 September 2013.
(10)A person or body approved under section 49A for the purposes of section 50 immediately before 30 September 2013 must be taken to be approved under section 49A for the purposes of sections 31C, 31E and 31G on and after that date subject to the same conditions, limitations or restrictions as are specified in the approval and for the same period as that during which the approval continues in force.
(11)The amendment of this Act by section 16 of the Road Safety and Sentencing Acts Amendment Act 2013 applies only in respect of an offence under section 18(1) of this Act that is alleged to have been committed on or after 30 September 2013.
(12)For the purposes of subsections (7) and (11), if an offence is alleged to have been committed between two dates, one before and one on or after 30 September 2013, the offence is alleged to have been committed before that date.
(13)In section 52(1B), as substituted by section 27(1) of the Road Safety and Sentencing Acts Amendment Act 2013—
(a)the reference to an alcohol interlock condition includes a reference to an alcohol interlock condition imposed under section 89A of the Sentencing Act 1991 before 30 September 2013; and
(b)the reference to a licence eligibility order includes a reference to an order of the Magistrates' Court made on an application under section 50(4) of this Act or section 89(2) of the Sentencing Act 1991 before 30 September 2013.
Note
30 September 2013 is the date on which the Road Safety and Sentencing Acts Amendment Act 2013 (other than Part 1, sections 19(1), 20, 21, 22, 33 and 38 and Divisions 3, 5 and 6 of Part 4) came into operation.".
37New section 150 inserted in Sentencing Act 1991
At the end of Part 12 of the Sentencing Act 1991 insert—
"150 Transitional provisions—Road Safety and Sentencing Acts Amendment Act 2013
(1)In this section—
alcohol interlock condition means a condition imposed on a driver licence or learner permit in accordance with a direction under section 89A(2), 89A(3)(b) or 89A(4) as in force immediately before 30 September 2013;
alcohol interlock condition direction has the same meaning as in the amended Act;
alcohol interlock condition removal order has the same meaning as in the amended Act;
amended Act means the Road Safety Act 1986 as amended by the Road Safety and Sentencing Acts Amendment Act 2013;
licence eligibility order has the same meaning as in the amended Act.
(2)This Act as in force immediately before 30 September 2013 continues to apply with respect to applications made before that date—
(a)under section 89(2) for an order as to the issue of a driver licence or learner permit; or
(b)under section 89B(3) for an order to remove an alcohol interlock condition.
(3)A person who—
(a)has been disqualified under section 89 before 30 September 2013; and
(b)under this Act as in force immediately before that date may only be granted a driver licence or learner permit on an order made by the Magistrates' Court on an application under section 89(2); and
(c)wishes to apply for such an order on or after that date—
may only do so by applying for a licence eligibility order in accordance with the amended Act.
(4)Despite anything to the contrary in the amended Act, on an application for a licence eligibility order made by a person covered by subsection (3) the Magistrates' Court—
(a)is not required to give an alcohol interlock condition direction if it would not have been required to give a direction before 30 September 2013 under section 89A as in force immediately before that date; and
(b)does not have power to give such a direction if it would not have had power to give it before that date under that section 89A; and
(c)may not specify in such a direction under section 50AAA of the amended Act a period longer than it could have specified before that date under that section 89A—
had the application been made under section 89(2) of this Act before that date.
(5)A person who—
(a)has had an alcohol interlock condition imposed on his or her driver licence or learner permit in accordance with a direction under section 89A before 30 September 2013; and
(b)under this Act as in force immediately before that date can only have that condition removed by the Corporation on an order made by the Magistrates' Court on an application under section 89B(3); and
(c)wishes to apply for such an order on or after that date—
may only do so by applying for an alcohol interlock condition removal order in accordance with the amended Act.
(6)For the purposes of an application covered by subsection (5) the reference in section 50AAB(5)(b)(iii) of the amended Act to a licence eligibility report includes a reference to a licence restoration report as defined by section 3(1) of this Act immediately before 30 September 2013 if such a report was obtained before that date.
(7)Section 89C, as in force immediately before 30 September 2013, continues to apply with respect to appeals made to the County Court in respect of a direction given under section 89A(2), 89A(3)(b) or 89A(4) before that date, irrespective of whether the appeal is made before, on or after that date.
(8)Sections 89 and 89A, as substituted by section 32 of the Road Safety and Sentencing Acts Amendment Act 2013, apply only in respect of an offence that is alleged to have been committed on or after 30 September 2013.
(9)For the purposes of subsection (8), if an offence is alleged to have been committed between two dates, one before and one on or after 30 September 2013, the offence is alleged to have been committed before that date.
Note
30 September 2013 is the date on which the Road Safety and Sentencing Acts Amendment Act 2013 (other than Part 1, sections 19(1), 20, 21, 22, 33 and 38 and Divisions 3, 5 and 6 of Part 4) came into operation.".
38Amendment of Schedule 3 to Sentencing Act 1991
In Part 3 of Schedule 3 to the Sentencing Act 1991, clauses 16 and 17 are repealed.
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Part 6—Repeal of Amending Act
39Repeal of amending Act
This Act is repealed on 30 September 2014.
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
Minister's second reading speech—
Legislative Assembly: 12 June 2013
Legislative Council: 22 August 2013
The long title for the Bill for this Act was "A Bill for an Act to amend the Road Safety Act 1986, the Marine (Drug, Alcohol and Pollution Control) Act 1988, the Magistrates' Court Act 1989, the Sentencing Act 1991, the Criminal Procedure Act 2009 and the Sentencing Amendment (Community Correction Reform) Act 2011 and for other purposes."
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