Part 2Regulations
3Regulations
(1)
The Governor may make regulations, and may
thereby:
(a)
regulate the use of vehicles and the conditions
under which they may be used,
(b)
regulate the speed of vehicles, and the weights
of the loads which may be carried upon different kinds of vehicles, and
regulate the carrying on vehicles of long, large, heavy, or projecting
articles,
(c)
prescribe and regulate the carrying of lights on
vehicles,
(d)
prescribe and regulate the affixing and use of
bells or alarms on vehicles,
(e)
prescribe and regulate the affixing of efficient
brakes on vehicles,
(f)
provide for minimising the noise, and the issue
of smoke or fumes from the working of vehicles,
(g)
prohibit the use of vehicles that, owing to
construction or other cause, are unsuitable for safe use,
(g1)
provide for the inspection by a member of the
police force, or an officer authorised in that behalf either generally or in a
specific case in writing under the hand of the Authority, of vehicles whether
in or upon a road or road related area or not for the purposes of determining
whether or not such vehicles are suitable for safe use or comply with the
requirements of this Act and the regulations, and for such purposes and in
connection with any such inspection:
(i)
require the production of any vehicle at a place
and within a time specified in such request,
(ii)
authorise the entry in or upon any vehicle upon a
road or road related area,
(iii)
authorise the entry in or upon any premises
ordinarily used for the sale of any vehicles and in or upon any vehicle upon
those premises,
(iv)
authorise the entry in or upon any other
premises, where such member or officer has reasonable cause to believe a
vehicle is for sale, held in possession for sale or in a damaged condition as
a result of an accident, for the purpose of inspecting any such vehicle upon
those premises, and the entry in or upon any such vehicle upon those
premises,
(v)
make provision with respect to:
the duties and obligations of owners of and
persons in charge of or having the custody of or selling or having in
possession for sale or otherwise vehicles the subject of such
inspection,
the issue of notices giving directions setting
out the conditions with which such owners or persons shall comply before such
vehicles may be used, driven or sold,
the affixing of notices or labels in the
prescribed form to such vehicles,
the imposition of penalties for removing,
obliterating or interfering with any notices or labels so affixed,
and
other matters incidental to or necessary for
prohibiting or regulating the use, driving or sale of vehicles unsuitable for
safe use or which do not comply with the requirements of this Act and the
regulations,
(g2)
provide, for the purposes of determining whether
or not motor vehicles or trailers are suitable for safe use or comply with the
requirements of this Act and the regulations:
(i)
for the Authority to authorise in writing any
person whom the Authority is satisfied is suitably qualified to inspect and
test motor vehicles or trailers and to issue inspection reports, in a
prescribed form and in a prescribed manner, relating to such
inspections,
(ii)
for the Authority to authorise in writing any
person whom the Authority is satisfied has suitable premises and equipment to
use the premises for the purposes of conducting any inspection referred to in
subparagraph (i),
(iii)
for the issue and renewal of authorities referred
to in subparagraphs (i) and (ii), their duration and form, and for fees to be
paid in connection with their issue,
(iv)
for the maximum charge to be made for the issue
of an inspection report referred to in subparagraph (i) and for different
charges to be made for inspection of different classes of
vehicles,
(v)
(vi)
for the issue by the Authority of rules to be
observed by any person referred to in subparagraph (i) or
(ii),
(vii)
for any person authorised pursuant to
subparagraph (ii) to provide a security fee, in a form required by the
Authority, for an amount of twenty dollars, or such other amount as may be
prescribed, and for any such security fee to be forfeited to the Authority if
the Authority is satisfied that the person has failed to comply with any of
the rules referred to in subparagraph (vi),
(viii)
for the Authority to cancel or suspend any
authority referred to in subparagraph (i) or (ii) if the holder has failed to
comply with any rule referred to in subparagraph (vi) or if the Authority is
for any reason of the opinion that the holder is not a fit and proper person
to continue to hold such authority,
(ix)
for the Authority to appoint a committee of
review to which the Authority may refer for consideration and report to the
Authority any case where consideration is being given to the refusal,
cancellation or suspension of an authority referred to in subparagraph (i) or
(ii), any such committee to include representatives of such organisations
associated with trading and servicing of motor vehicles or trailers as the
Authority considers appropriate,
(x)
for an appeal to a Local Court, and for matters
related to any such appeal, against a refusal, cancellation or suspension of
any authority referred to in subparagraph (i) or (ii),
(xi)
for the issue of an authority referred to in
subparagraph (i) or (ii) as a component licence of a master licence under the
Business Licences Act
1990,
(g3)
provide that vehicles of a prescribed class shall
not be sold or offered for sale unless the purchasers or prospective
purchasers are supplied in the prescribed manner with specified information or
documents relating to whether or not the vehicles are suitable for safe use or
comply with the requirements of this Act and the
regulations,
(h)
prohibit or restrict the use of vehicles upon any
specified roads or road related areas or within the roads or road related
areas in any specified area, either generally or within certain
hours,
(i)
provide for the regulation of the owners and
drivers of vehicles and of persons in or upon or entering or alighting from
vehicles,
(j)–(k1)
(k2)
provide for the furnishing to the Authority of
notification of the changing or replacement of any engine, engine block or
other prescribed part of a motor vehicle or trailer,
(l)
(l1)
provide conditionally or unconditionally for the
exemption of any person from all or any of the provisions of section 6 or 6B
and for the exemption from registration of any motor vehicle or
trailer,
(m)–(o)
(o1)
regulate pedestrian traffic on roads or road
related areas, and make provisions as to the marking of crossing-places for
pedestrian traffic and special measures to be taken and precautions to be
observed by drivers for the safety of pedestrians,
(o2)
prohibit the obstruction of pedestrian traffic on
roads or road related areas,
(o3)
prohibit or regulate the use of stalls or other
means for the sale of goods, or the carrying out of any other business or
trade, in a road or road related area,
(o4)
provide for the regulation of horses and the
riders of horses on roads or road related areas,
(o5)
prohibit or restrict the use of horses on
specified roads or road related areas or within roads or road related areas in
any specified area either generally or within certain
hours,
(o6)
prohibit or regulate the driving or leading of
animals in roads or road related areas,
(p)
provide for the erection of uniform signs and
notices for the guidance of drivers or otherwise for the purposes of this Act
or the regulations,
(p1)
make provision for or with respect to:
(i)
the methods and conditions to be observed by
medical practitioners in taking samples of blood or urine under section 4F or
5AA,
(ii)
the storage of samples so
taken,
(iii)
the delivery or transmission of portions of
samples so taken to the persons from whom they are taken, to members of the
police force or to analysts,
(iv)
the destruction of portions of samples so taken,
and
(v)
any other matters to which section 4F, 4G, 5AA,
5AB or 5AC relates,
(p2)
make provision with respect to approved speed
measuring devices, including the testing of such devices,
(q)
provide for any other purpose the Governor may
consider necessary for the safety of the public and for protection of
property,
(q1), (q2)
(q3)
regulate or prohibit the manufacture, repair,
cleansing or assembling of a vehicle in a road or road related
area,
(q4)
regulate or prohibit the conveyance of
inflammable liquid in or upon a vehicle used for the carriage of passengers
for hire or reward,
(q5)
provide for the seizure and for the taking charge
of, removal or towing away of any vehicle that is a danger or unreasonable
obstruction to traffic or has been abandoned in a road or road related area,
or has been caused or permitted to stand, wait, stop or to be parked contrary
to law in any part of a road or road related area in which is conspicuously
displayed a sign exhibiting or including the words “tow away area”
or “vehicles impounded” or other words indicating that such a
vehicle is subject to seizure; and for the keeping or impounding, at a place
appointed or set apart by the Commissioner of Police for the purpose, of any
vehicle so removed or towed away; and for the conditions to be observed before
the release of any such vehicle, including a condition for payment of such
amount as may, from time to time, be fixed by the Commissioner of Police in
respect of the seizure, taking charge of, removal, towing away, keeping,
impounding or releasing of any such vehicle; and for the disposal or
destruction of any such vehicle if the owner fails within the time prescribed
to claim the same and to pay such amount.
Such regulations shall prescribe the conditions
to be observed before such seizure as aforesaid.
Different amounts may be fixed by the
Commissioner of Police as aforesaid in respect of different classes of
vehicles or according to different circumstances.
(q6)
require the carrying of efficient fire
extinguishers upon specified classes of vehicles used for the carriage of
passengers for hire or reward,
(q7)
(q8)
prescribe the records to be kept by the owner of
a vehicle rented to be driven by the hirer or his or her servant or agent and
for the inspection of such records by any member of the police
force,
(q9)
prohibit, restrict, or regulate upon roads or
road related areas any person, other than the driver or other persons
prescribed, from parking, minding, caring for, or taking charge of any
vehicle, or offering his or her services for such
purposes,
(q10)
make provisions for or with respect to the
marking of tyres of vehicles by means of crayon, chalk or any similar
substance by members of the police force and special constables in the employ
of the Commissioner of Police for any purpose connected with the enforcement
of any of the provisions of any Act, regulation or
ordinance,
(q11)
where a motor vehicle or trailer is or is to be
registered otherwise than in the name of one body corporate or one natural
person, provide for the designation of a person to be treated as being, for
the purposes of section 18A, the owner of the motor vehicle or trailer and for
the consent of the designated person to the designation,
(q12)
specify classes of persons (being persons
appearing from the records kept by the Authority to be owners of motor
vehicles or trailers) who shall be treated as being, for the purposes of
section 18A, the owners of registered motor vehicles or trailers or motor
vehicles or trailers that have been but are not
registered,
(q13)
provide for the issue of certificates relating to
the records that the Authority is required by section 12 (1) to
keep,
(r)
impose a penalty not exceeding 20 penalty units
for a contravention of any regulation or any provision of or condition
attached to any licence, exemption or permit granted under the
regulations,
(s)
require the payment of fees and regulate the
payment and the application of those fees,
(t)
(t1)
make provision for or with respect to the
management and prevention of driver fatigue in connection with the driving of
heavy trucks and coaches, including (without limitation) provision for or with
respect to the following:
(i)
restrictions on the hours for which the driver of
a heavy truck or coach may (continuously or otherwise) drive a heavy truck or
coach or engage in other activities in connection with the driving or
operation of a heavy truck or coach,
(ii)
requirements for minimum periods of rest for
drivers of heavy trucks or coaches,
(iii)
the inclusion of time spent in a specified manner
as time spent driving a heavy truck or coach,
(iv)
the making, keeping, possession and inspection of
records in respect of heavy trucks and coaches and their
drivers,
(v)
the medical examination of drivers of heavy
trucks and coaches,
(vi)
fatigue management training,
(vii)
the duties of employers of drivers of heavy
trucks and coaches and other persons (such as consignors of goods) who make
use of or engage in activities involving the use or operation of heavy trucks
or coaches,
(viii)
the conferral of jurisdiction on the
Administrative Decisions Tribunal to review a decision made by the Authority
in the exercise of any functions conferred or imposed on the Authority by a
regulation under this paragraph,
(ix)
powers of entry and inspection for monitoring and
enforcing compliance with the requirements of the regulations under this
paragraph,
(u)
provide for the exemption of any class or
description of persons or vehicles from any specified provision or provisions
of the regulations in such circumstances, if any, and subject to such
conditions, if any, as may be specified in the regulations or in any
instrument granting the exemption.
(1A)
(1B)
In subsection (1) (q5), a reference to a vehicle
includes a reference to the remains of a vehicle.
(1C)
(2)
(a)
A regulation may be made to apply to the whole or
any specified portion of the State or to the whole of the State other than a
specified portion, and unless otherwise provided or clearly intended shall
apply to the whole of the State.
(b)
A regulation with respect to roads or road
related areas may be made to apply to all roads or road related areas or to
any specified roads or road related areas or to all roads or road related
areas other than those specified, or to parts of specified roads or road
related areas or to parts of roads or road related areas other than those
specified, and at all times or during specified times or at times other than
those specified, and unless otherwise provided or clearly intended, shall
apply to all roads or road related areas, and to the whole thereof and at all
times.
(c)
A regulation may authorise any matter or thing to
be from time to time determined, applied or regulated by the Authority, the
Commissioner of Police or any other person either generally or for any class
of cases or for all classes of cases other than that specified or in any
particular case.
(d)
A regulation may be made to apply either to all
vehicles or to any specified class or description of vehicles or to vehicles
other than those of a specified class or description, and unless otherwise
provided or clearly intended shall apply to all vehicles.
For the purposes of any regulation the expression
class or
description of vehicles includes vehicles classified or
described according to the direction in which the drivers thereof are
travelling or in which the drivers thereof turn or propose to turn the
vehicles or the projected destination of the drivers thereof or such other
circumstances or matters as the regulation specifies.
(e)
(3)
A provision of a regulation may:
(a)
apply generally or be limited in its application
by reference to specified exceptions or factors, or
(b)
apply differently according to different factors
of a specified kind,
or may do any combination of those
things.
(4)
Subsection (3) is supplemental to and not in
derogation of any other provision of this Act relating to the making of
regulations.
(5)
The Governor may make regulations, not
inconsistent with this Act, for or with respect to any matter that by this Act
is required or permitted to be prescribed or that is necessary or convenient
to be prescribed for carrying out or giving effect to this
Act.
(6)
The generality of subsection (5) is not affected
by any other provision of this Act relating to the making of
regulations.
(7)
The regulations may apply, adopt or incorporate
any publication, as in force from time to time, relating to the construction,
design or equipment of motor vehicles or trailers.
s 3: Am 1915 No 11,
sec 2; 1924 No 24, sec 51 (3); 1930 No 18, sec 175 (2); 1945 No 22, sec 8;
1955 No 49, sec 3 (a); 1956 No 5, sec 19 (1) (b); 1956 No 16, sec 2 (1); 1961
No 4, sec 2 (a); 1962 No 36, sec 2 (1) (a); 1964 No 16, sec 2 (1) (a); 1966 No
4, sec 2 (1); 1966 No 60, sec 2 (a); 1968 No 2, sec 5 (b); 1971 No 58, sec 2
(a); 1973 No 21, sec 3 (a); 1974 No 52, sec 60; 1974 No 57, sec 3 (a); 1976 No
32, Sch 2 (3); 1977 No 88, Schs 1, 2 (1); 1978 No 122, Schs 1 (1), 2 (7); 1979
No 157, sec 2 (a); 1980 No 158, sec 2 (b); 1982 No 123, Sch 3 (2); 1982 No
151, Sch 1 (1); 1983 No 102, Sch 1 (1); 1983 No 139, Sch 1 (1); 1985 No 18,
Sch 1 (2); 1985 No 140, Sch 1; 1986 No 117, sec 2; 1987 No 31, Sch 1 (2); 1987
No 44, Sch 1 (2); 1987 No 95, Schs 1 (2), 3 (2); 1987 No 209, Sch 22; 1988 No
74, Sch 1 (1); 1988 No 110, Sch 1 (7); 1989 No 89, Sch 1; 1989 No 153, Sch 1
(2); 1990 No 72, Sch 3; 1990 No 96, Sch 3 (1); 1990 No 108, Sch 1; 1995 No 99,
Sch 2; 1997 No 115, Schs 2 [6] [8], 3 [1]; 1997 No 119, Sch 1 [3]–[5];
1998 No 99, Sch 1.13 [8]; 1998 No 120, Sch 1.44 [2].
3A
s 3A: Ins 1930 No 18,
sec 272 (1) (a). Subst 1987 No 95, Sch 1 (3). Rep 1988 No 110, Sch 1
(8).
3BShared traffic
zones
(1)
If the Authority is of the opinion that it would
be appropriate for the use of a specified road or road related area or a
specified part of a road or road related area to be shared among pedestrian
traffic, vehicular traffic and persons riding horses so that no one form of
traffic has a right of precedence over another form, the Authority may, by
notice published in the Gazette, designate that road or road related area or
part of a road or road related area as a shared traffic
zone.
(2)
The Authority may, from time to time, by notice
published in the Gazette, vary or revoke a designation made under subsection
(1).
(3)
The regulations may make provision for or with
respect to:
(a)
the use of a shared traffic zone by pedestrian
traffic, vehicular traffic and persons riding horses, and
(b)
the erection or placement of obstacles and other
structures within such a zone, or on its perimeter for the purpose of marking
its boundaries, and
(c)
the activities that may be carried on within such
a zone.
(4)
The provisions of this Act and the regulations,
in so far as they relate to roads or road related areas and the use of roads
or road related areas by pedestrian traffic, vehicular traffic or persons
riding horses, apply to a shared traffic zone except to the extent that those
provisions are inconsistent with the provisions of regulations made for the
purposes of this section.
s 3B: Ins 1988 No
110, Sch 1 (9). Am 1997 No 115, Sch 1 [4].
Part 3Offences
4Negligent, furious or reckless
driving
(1)
Any person who drives a motor vehicle upon a road
or road related area, negligently, furiously, or recklessly, or at a speed or
in a manner which is dangerous to the public, shall be guilty of an offence
under this Act.
(2)
In considering whether an offence has been
committed under this section, the court shall have regard to all the
circumstances of the case, including the nature, condition, and use of the
road or road related area upon which such offence is alleged to have been
committed, and to the amount of traffic which actually is at the time, or
which might reasonably be expected to be, upon such road or road related
area.
(3)
A person convicted of the offence under this
section of driving a motor vehicle negligently is liable:
(a)
for driving occasioning death:
(i)
in the case of a first offence—to a penalty
not exceeding 30 penalty units or to imprisonment for a period not exceeding
18 months or to both such penalty and imprisonment, or
(ii)
in the case of a second or subsequent
offence—to a penalty not exceeding 50 penalty units or to imprisonment
for a period not exceeding 2 years or to both such penalty and imprisonment,
or
(b)
for driving occasioning grievous bodily
harm:
(i)
in the case of a first offence—to a penalty
not exceeding 20 penalty units or to imprisonment for a period not exceeding 9
months or to both such penalty and imprisonment, or
(ii)
in the case of a second or subsequent
offence—to a penalty not exceeding 30 penalty units or to imprisonment
for a period not exceeding 12 months or to both such penalty and imprisonment,
or
(c)
for driving not occasioning death or grievous
bodily harm—to a penalty not exceeding 10 penalty
units.
(3A)
A person convicted of the offence under this
section of driving a motor vehicle furiously or recklessly, or at a speed or
in a manner which is dangerous to the public, is liable:
(a)
in the case of a first offence—to a penalty
not exceeding 20 penalty units or to imprisonment for a period not exceeding 9
months or to both such penalty and imprisonment, or
(b)
in the case of a second or subsequent
offence—to a penalty not exceeding 30 penalty units or to imprisonment
for a period not exceeding 12 months or to both such penalty and
imprisonment.
(4)
For the purposes of subsection (3) or (3A), where
a person is guilty of an offence under this section, that offence:
(a)
is a second or subsequent offence as referred to
in that subsection if and only if, within the period of 5 years immediately
before being convicted of that offence, the person was convicted of a major
offence, and
(b)
otherwise shall be treated as a first
offence.
(5)
In this section, grievous bodily harm includes any
permanent or serious disfigurement.
s 4: Am 1915 No 11,
sec 3; 1951 No 59, sec 2 (1) (a); 1961 No 4, sec 2 (b); 1978 No 114, Sch 1
(1); 1982 No 123, Sch 2 (3); 1992 No 112, Sch 1; 1994 No 79, Sch 1; 1997 No
115, Sch 1 [5]; 1998 No 70, Sch 1 [1] [2].
4AAMenacing
driving
(1)Offence—intent to
menace
A person is guilty of an offence against this Act
if:
(a)
the person drives a motor vehicle on a road or
road related area in a manner that menaces another person,
and
(b)
the person intended to menace that other
person.
Maximum penalty:
•
for a first offence—30 penalty units or
imprisonment for 18 months, or both, and
•
for a second or subsequent offence—50
penalty units or imprisonment for 2 years, or both.
(2)Offence—possibility of
menace
A person is guilty of an offence against this Act
if:
(a)
the person drives a motor vehicle on a road or
road related area in a manner that menaces another person,
and
(b)
the person ought to have known that the other
person might be menaced.
Maximum penalty:
•
for a first offence—20 penalty units or
imprisonment for 12 months, or both, and
•
for a second or subsequent offence—30
penalty units or imprisonment for 18 months, or
both.
(3)Application
This section applies:
(a)
whether the other person is menaced by a threat
of personal injury or by a threat of damage to property,
and
(b)
whether or not that person or that property is on
a road or road related area.
(4)Defence
A person is not guilty of an offence under this
section if the person could not, in the circumstances, reasonably avoid
menacing the other person.
(5)Double
jeopardy
A person is not liable to be convicted of:
(a)
both an offence under subsection (1) and an
offence under subsection (2), or
(b)
both an offence under this section and an offence
under section 4,
arising out of a single incident.
(6)Second or subsequent
offences
An offence under this section is a second or
subsequent offence for the purposes of this section if:
(a)
it is the second or subsequent occasion on which
the person is convicted of that same offence, or
(b)
within the period of 5 years immediately before
the person is convicted of the offence, the person was convicted of a major
offence.
s 4AA: Ins 1986 No 4,
Sch 1 (1). Am 1992 No 112, Sch 1. Subst 1997 No 75, Sch 1
[1].
4ASpeed
limits
(1)
Any person who upon any length of road or road
related area drives a motor vehicle at a speed in excess of the speed limit
applicable to that length of road or road related area shall be guilty of an
offence under this Act and liable to a penalty not exceeding 20 penalty
units.
(1A)
A person who on any length of road or road
related area drives a motor vehicle at a speed which exceeds, by more than 45
kilometres per hour, the speed limit applicable to that length of road or road
related area is guilty of an offence under this Act and liable to a penalty
not exceeding 30 penalty units in the case of a heavy motor vehicle or coach,
or 20 penalty units in any other case, and, in addition:
(a)
the person is disqualified by a conviction for
the offence (and without any specific order) for 3 months from holding a
driver licence, or
(b)
where the court on the conviction thinks fit to
order a longer period of disqualification, the person is disqualified for the
period specified in the order.
(1B)
A person who on any length of road or road
related area drives a motor vehicle at a speed which exceeds, by more than 30
kilometres per hour but not more than 45 kilometres per hour, the speed limit
applicable to that length of road or road related area is guilty of an offence
under this Act and liable to a penalty not exceeding 20 penalty units and, in
addition:
(a)
the person is disqualified by a conviction for
the offence (and without any specific order) for 1 month from holding a driver
licence, or
(b)
where the court on the conviction thinks fit to
order a longer period of disqualification, the person is disqualified for the
period specified in the order.
(2)
For the purposes of this section, the speed
limit:
(a)
is 60 kilometres per hour for a length of road or
road related area (not being within a shared traffic zone) for which provision
is made for it to be lit by road or road related area lighting and to which no
direction given under subsection (3) applies,
(b)
is 100 kilometres per hour for a length of road
or road related area (not being within a shared traffic zone) for which no
provision is made for it to be lit by road or road related area lighting and
to which no direction given under subsection (3) applies,
(c)
is 10 kilometres per hour for a length of road or
road related area that is within a shared traffic zone,
and
(d)
where the length of road or road related area is
the subject of a direction given under subsection (3)—is the speed
specified in the direction.
(2A)
If, on a prosecution of a person for an offence
under subsection (1A), the court is satisfied that the person exceeded the
relevant speed limit, but is not satisfied that it was exceeded by more than
45 kilometres per hour, the court may convict the person of an offence under
subsection (1), or under subsection (1B) if satisfied that it was exceeded by
more than 30 kilometres per hour.
(2B)
If, on a prosecution of a person for an offence
under subsection (1B), the court is satisfied that the person exceeded the
relevant speed limit, but is not satisfied that it was exceeded by more than
30 kilometres per hour, the court may convict the person of an offence under
subsection (1).
(3)
The Authority may, at any time, with respect to
any length of road or road related area (not being within a shared traffic
zone), give a direction fixing the speed limit applicable to that length of
road or road related area.
(3A)
The Authority may, at any time, revoke or vary
any direction given under subsection (3).
(3B)
A reference in this Act, or any other instrument,
to a direction given by the Authority under subsection (3) includes, where the
direction has been varied by the Authority under subsection (3A), the
direction as so varied.
(4)
The regulations:
(a)
shall provide for the display and form of signs
to indicate, with respect to a length of road or road related area, the speed
limit applicable to that length of road or road related area by virtue of a
direction under subsection (3),
(b)
may provide for the display of any other signs
necessary or convenient for carrying this section into effect,
and
(c)
may prescribe any matter necessary or convenient
to be prescribed in relation to any such signs.
(5)
In any proceedings in any court, evidence that a
sign is, with respect to a length of road or road related area, displayed in
accordance with the regulations made for the purposes of subsection (4) shall
be prima facie evidence that the speed limit indicated by the sign applies to
that length of road or road related area.
(5A)
In any proceedings in any court, evidence that a
sign indicating the existence of a shared traffic zone is, with respect to a
length of road or road related area that is within the zone, displayed in
accordance with regulations made for the purposes of section 4D shall be prima
facie evidence that the speed limit applicable to shared traffic zones applies
to that length of road or road related area.
(5B)
A person who drives a motor vehicle on a road or
road related area 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
road or road related area on which the vehicle is being
driven.
(5BA)
A person who drives a motor vehicle on a road or
road related area at a speed that exceeds, by more than 30 kilometres per hour
but not 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 (1B). This subsection applies only where the maximum speed
limit fixed by the regulations is below the speed limit applicable to the
length of road or road related area 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 convict the
person of an offence under subsection (5BA) if satisfied that it was exceeded
by more than 30 kilometres per hour or may, to the extent that exceeding the
speed so fixed constitutes an offence under the regulations, convict the
person of that offence instead.
(5D)
If, on a prosecution of a person for an offence
under subsection (5BA), the court is satisfied that the person exceeded the
relevant maximum speed limit fixed by the regulations, but is not satisfied
that it was exceeded by more than 30 kilometres per hour, the court may, to
the extent that exceeding the speed limit so fixed constitutes an offence
against the regulations, convict the person of that offence
instead.
(6)
Nothing in this section shall be construed to
justify the driving of any motor vehicle upon a road or road related area at a
speed which:
(a)
having regard to all the circumstances of the
case, is dangerous to the public, whether or not such speed is less than the
limit fixed by this section, or
(b)
exceeds any maximum speed applicable to such
vehicle and fixed by or under any Act, regulation or
ordinance.
(7)
The provisions of this section shall not apply to
the driver of:
(a)
any motor vehicle whilst conveying a member of
the police force on urgent duty,
(b)
any fire engine, reel or other similar vehicle
whilst proceeding to a fire,
(c)
any ambulance vehicle whilst proceeding to the
scene of an accident or to a hospital with an injured person,
or
(d)
any vehicle referred to in paragraph (a), (b) or
(c) whilst proceeding to any place to deal with an
emergency,
if the observance of those provisions would be likely to
hinder the use of the vehicle for any purpose aforesaid: Provided that such
driver shall give the best practicable warning so as to enable way to be made
for such vehicle.
(8)
The provisions of this section shall not apply to
the driver of a motor vehicle which is taking part in a race, an attempt to
break a motor vehicle speed record, a trial of speed or any competitive trial
as referred to in section 4B (1) (a) in accordance with an approval given and
any conditions imposed by the Commissioner of Police pursuant to section
4B.
(9)
In this section:
ambulance
vehicle includes any motor vehicle or trailer used in the
provision of ambulance services (as defined in the Ambulance Services Act
1976) and provided, conducted, operated or maintained by
the Health Administration Corporation constituted by the Health
Administration Act 1982.
motor
vehicle includes a trailer.
s 4A: Ins 1937 No 29,
sec 2 (1). Am 1957 No 69, sec 10 (2) (a) (i); 1962 No 36, sec 2 (1) (b); 1964
No 16, sec 2 (1) (b); 1974 No 31, sec 3 (a); 1976 No 32, Sch 2 (4); 1978 No
122, Schs 1 (2), 2 (8); 1979 No 16, sec 3; 1987 No 8, Sch 1 (2); 1988 No 110,
Sch 1 (10); 1988 No 131, Sch 13 (1); 1989 No 153, Sch 1 (3); 1990 No 96, Sch 3
(2); 1997 No 115, Schs 1 [6] [7], 2 [6]; 1998 No 26, Sch 2.6 [10]; 1998 No 70,
Sch 1 [3]–[10]; 1998 No 99, Sch 1.13 [9].
4AAB
s 4AAB: Ins 1997 No
132, Sch 1. Rep 1998 No 70, Sch 1 [11].
4ABApproved speed measuring
devices
(1)
In proceedings for any offence in which evidence
is given of a measurement of speed obtained by the use of an approved speed
measuring device, a certificate purporting to be signed by a member of the
police force certifying that:
(a)
the device is an approved speed measuring device
within the meaning of the Act,
(b)
on a day specified in the certificate (being
within the prescribed time before the alleged time of the offence) the device
was tested in accordance with the regulations and sealed by a member of the
police force, and
(c)
on that day the device was accurate and operating
properly,
is admissible and shall be prima facie evidence of the
particulars certified in and by the certificate.
(2)
If a certificate which is so admissible is
tendered in proceedings for an offence, evidence of the accuracy or
reliability of the approved speed measuring device shall not be required in
those proceedings unless evidence that the device was not accurate or not
reliable has been adduced.
(3)
The Minister is not to recommend the making of an
order by the Governor for the purposes of the definition of Approved
speed measuring device in section 2 (1) except with the
concurrence of the Attorney General.
(4)
A device which, immediately before the
commencement of Schedule 1 (1) to the Traffic (Photographic Evidence)
Amendment Act 1990, was an approved radar speed measuring
device is to be taken to be an approved speed measuring device for the
purposes of this Act.
s 4AB: Ins 1987 No
31, Sch 1 (3). Am 1990 No 53, Sch 1 (2).
4ACPhotographic evidence of
speeding offence
(1)
In proceedings for an offence of driving at a
speed in excess of a speed limit imposed by or under this Act or the
regulations, evidence may be given of a measurement of speed obtained by the
use of an approved speed measuring device and recorded by an approved camera
recording device.
(2)
In proceedings where such evidence is
given:
(a)
the provisions of section 4AB relating to the
accuracy or reliability of the speed measuring device apply,
and
(b)
subsections (3) and (4) apply in relation to the
approved camera recording device.
(3)
A photograph tendered in evidence as a photograph
taken by an approved camera recording device on a specified day at a specified
location:
(a)
is to be accepted as having been so taken, unless
evidence is adduced to the contrary, and
(b)
is prima facie evidence of the matters shown or
recorded on the photograph.
(4)
When the photograph is tendered in evidence, a
certificate purporting to be signed by a member of the police force and
certifying the following particulars is also to be tendered in evidence and is
prima facie evidence of those particulars:
(a)
that the member is authorised by the Commissioner
of Police to install and inspect approved camera recording
devices,
(b)
that within 84 hours before the time and day
recorded on the photograph as the time at which and the day on which the
photograph was taken, the member carried out the inspection specified in the
certificate on the approved camera recording device that took the
photograph,
(c)
that on that inspection the approved camera
recording device was found to be operating
correctly.
s 4AC: Ins 1990 No
53, Sch 1 (3). Am 1998 No 27, Sch 1 [3].
4ADSale, purchase and use of
prohibited speed measuring evasion articles
(1)
A person must not sell or offer for sale, or
purchase, a prohibited speed measuring evasion article.
Maximum penalty: 20 penalty
units.
(2)
A person must not drive a motor vehicle, or cause
a motor vehicle or trailer to stand, on a road or road related area if a
prohibited speed measuring evasion article is fitted or applied to, or carried
in, the vehicle.
Maximum penalty: 20 penalty
units.
(3)
The owner of a motor vehicle or trailer which is
driven or stands on a road or road related area 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 article
concerned was not designed as a prohibited speed measuring evasion article 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, at the
time of the alleged offence:
(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 article, 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 article from the vehicle within a specified time and that time had
not expired, or
(c)
the defendant did not know, and in the
circumstances could not reasonably be expected to have known, that the article
concerned was fitted or applied to, or was being carried in, the
vehicle.
s 4AD: Ins 1990 No
96, Sch 2 (2). Am 1997 No 115, Sch 2 [6] [9]; 1998 No 152, Sch 1
[2]–[6].
4AESurrender and forfeiture of
prohibited speed measuring evasion articles
(1)
A police officer who reasonably believes
that:
(a)
a prohibited speed measuring evasion article is
being sold or offered for sale in contravention of section 4AD (1),
or
(b)
a motor vehicle or trailer is standing or being
driven in contravention of section 4AD (2) because of an article fitted or
applied to, or carried in, the vehicle,
may require a person in possession of the article to
surrender it immediately to the police officer or, in the case of an article
fitted or applied to a motor vehicle or trailer and not immediately removable,
may by notice in writing served on the owner of the vehicle require the owner
to surrender the article within a 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
prohibited speed measuring evasion article fitted or applied to, or carried
in, a motor vehicle or trailer 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 article (if it is fitted to the
vehicle),
(b)
surrender the article 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 article
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 article 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)
An article 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 prohibited speed measuring evasion article of which that person is not
the absolute owner.
s 4AE: Ins 1990 No
96, Sch 2 (2). Am 1997 No 115, Sch 2 [6]; 1998 No 152, Sch 1
[7]–[10].
4BRaces, attempts on speed
records etc
(1)
(a)
Any person who organises or promotes or takes
part in:
(i)
any race between vehicles upon a road or road
related area, or
(ii)
any attempt to break any vehicle speed record
upon a road or road related area, or
(iii)
any trial of the speed of a vehicle upon a road
or road related area, or
(iv)
any competitive trial designed to test the skill
of any vehicle driver or the reliability or mechanical condition of any
vehicle upon a road or road related area,
shall be guilty of an offence under this Act, unless the
approval in writing of the Commissioner of Police to the holding or making of
the race, attempt or trial has been obtained.
(b)
The Commissioner of Police shall have power to
grant or refuse such approval.
(c)
The Commissioner of Police may in any such
approval impose any conditions he or she deems necessary in the interests of
public safety and convenience.
Any such approval or conditions may be of general
or limited application.
(d)
Where any person taking part in any such race,
attempt or trial fails to observe or comply with any condition imposed as
aforesaid, such person and the organiser or promoter of such race, attempt or
trial shall be guilty of an offence under this Act.
(e)
This subsection shall not apply to any test of
the slow running of a vehicle.
(2)
Where a person is convicted by a court of an
offence under subsection (1) in relation to a motor vehicle or trailer:
(a)
except as provided by paragraph (b), the person
is disqualified by the conviction and without any specific order for 12
months, or
(b)
if the court at the time of the conviction thinks
fit to order a shorter or a longer period of disqualification—the person
is disqualified for the period specified in the
order,
from holding a driver licence.
(2A)
Any disqualification under this section is in
addition to any penalty imposed for the offence.
(3)
There shall be an appeal to a Local Court
constituted by a Magistrate whose decision shall be final against:
(a)
the refusal to grant any approval under
subsection (1),
(b)
any condition imposed upon the grant of any
approval under such subsection.
The regulations may prescribe the manner of
appeal and the Court to which it is to be brought.
s 4B: Ins 1937 No 29,
sec 2 (1). Am 1957 No 69, sec 10 (2) (a) (ii) (iii); 1978 No 122, Sch 2 (9);
1987 No 95, Schs 2 (1), 3 (3); 1988 No 110, Sch 1 (11); 1997 No 115, Sch 2
[6]; 1998 No 99, Sch 1.13 [10].
4BAConduct associated with street
and drag racing and other activities
(1)
A person who, on a road or road related area,
operates a motor vehicle in such a manner as to cause the vehicle to undergo
sustained loss of traction by one or more of the driving wheels (or, in the
case of a motor cycle, the driving wheel) of the vehicle is guilty of an
offence.
Maximum penalty: 5 penalty
units.
(2)
A person who operates a motor vehicle contrary to
subsection (1) knowing that any petrol, oil, diesel fuel or other inflammable
liquid has been placed on the surface of the road or road related area beneath
one or more tyres of the vehicle is guilty of an offence.
Maximum penalty: 7 penalty
units.
(3)
In any proceedings for an offence under
subsection (1) or (2), it is a defence if the person charged satisfies the
court that the vehicle, although operated as referred to in subsection (1),
was not so operated deliberately.
(4)
A person who, on a road or road related area,
engages in conduct prescribed by regulations made for the purposes of this
section, being conduct associated with the operation of a motor vehicle for
speed competitions or other activities specified or described in the
regulations, is guilty of an offence.
Maximum penalty: 5 penalty
units.
(5)
Nothing in this section applies to the operation
of a motor vehicle for the purposes of a race, attempt or trial undertaken in
accordance with an approval given under section 4B by the Commissioner of
Police.
Editorial
note—
The provisions of section 4BA continue in
operation by a resolution passed by the Legislative Assembly on 17.6.1997 and
the Legislative Council on 18.6.1997 in pursuance of section 4 of the Traffic
Amendment (Street and Illegal Drag Racing) Act
1996.
s 4BA: Ins 1996 No
145, Sch 1 (1). Am 1997 No 74, Sch 1 [1]; 1997 No 115, Sch 1
[8].
4BBRemoval and impounding of
vehicles used for certain offences
(1)
A police officer who reasonably believes that a
motor vehicle:
(a)
is being or has (on that day or during the past
10 days) been operated on a road or road related area so as to commit an
offence under section 4B or 4BA, or
(b)
is the subject of a period of impounding, or the
subject of forfeiture, under section 4BC,
may seize and take charge of the motor vehicle and cause
it to be removed to a place determined by the Commissioner of
Police.
(1A)
A motor vehicle may be seized under subsection
(1) from:
(a)
a public place, or
(b)
any other place, with the consent of the owner or
occupier of the place or under the authority of a search warrant issued under
section 4BD.
(2)
For the purpose of exercising the powers
conferred by subsection (1), a police officer may cause any locking device or
other feature of the motor vehicle concerned that is impeding the exercise of
those powers to be removed, dismantled or neutralised and may, if the driver
or any other person will not surrender the keys to the vehicle, start the
vehicle by other means.
(3)
Any motor vehicle removed to a place in
accordance with subsection (1) may, subject to the regulations, be impounded
at that place or may be moved to and impounded at any other place determined
by the Commissioner of Police.
(4)
A motor vehicle that may be removed under
subsection (1) or (3):
(a)
may be moved by its being driven, whether or not
under power, or by its being towed or pushed, or in any other manner whatever,
and
(b)
may be moved by one or more police officers or,
at the direction of a police officer, by persons engaged by the Commissioner
of Police, and may be impounded at premises under the control of the
Commissioner or of another authority or person.
(5)
Schedule 2 has effect with respect to a motor
vehicle impounded under this section.
(6)
The regulations may make provision for or with
respect to requiring the owner or driver of a motor vehicle to pay a fee in
relation to the towing of the vehicle under this section. The whole or any
part of the fee that is unpaid may be recovered from the owner or driver of
the motor vehicle by the Commissioner of Police as a debt due to the Crown in
any court of competent jurisdiction. A certificate in writing given by a
police officer as to the fact and cost of towing is evidence of those
matters.
(7)
In this section:
public
place includes any place that members of the public are
entitled to use.
Editorial
note—
The provisions of section 4BB continue in
operation by a resolution passed by the Legislative Assembly on 17.6.1997 and
the Legislative Council on 18.6.1997 in pursuance of section 4 of the Traffic
Amendment (Street and Illegal Drag Racing) Act
1996.
s 4BB: Ins 1996 No
145, Sch 1 (1). Am 1997 No 74, Sch 1 [2]–[4].
4BCImpounding or forfeiture of
vehicles on proof or admission of offence
(1)
A motor vehicle used in connection with an
offence under section 4B or 4BA, being in either case the first offence by the
offender under the provision concerned, that is found to be proven before any
court is by the finding liable to be impounded for a period of 3 months,
unless the court by order otherwise directs under subsection
(3).
(2)
A motor vehicle used in connection with an
offence under section 4B or 4BA, being in either case a second or subsequent
offence by the offender under the provision concerned, that is found to be
proven before any court is by the finding liable to be forfeited to the Crown,
unless the court by order otherwise directs under subsection
(3).
(3)
The court before which an offence under section
4B or 4BA is found to be proven may, for reasons of the avoidance of any undue
hardship to any person or other injustice perceived by the court, by its order
direct that a period of impounding imposed by this section be reduced or
dispensed with, or that a forfeiture imposed by this section be commuted to a
period of impounding.
(4)
The period for which a vehicle was impounded
under section 4BB is to be reckoned as counting towards a period of impounding
imposed by or under this section.
(5)
(6)
Any impounding or forfeiture under this section
is in addition to any other penalty that may be imposed for the offence
concerned, but for the purposes of any rights of appeal against a penalty so
imposed by the court finding the offence to be proven, the impounding or
forfeiture is taken to be, or to be part of, that
penalty.
(7)
For the purposes of this section, payment of the
amount specified:
(a)
in a penalty notice prescribed under section 18B
and issued in respect of an offence under section 4BA, or
(b)
in any process issued subsequent to such a
penalty notice,
as the amount that is payable in order to dispose of the
alleged offence without having it dealt with by a court, has the same effect
as a finding by a court that the offence was proven.
(8)
Schedule 2 has effect with respect to a motor
vehicle impounded or forfeited under this section.
(9)
Subsections (1) and (2) do not apply to or in
respect of an offence committed before the commencement of this
section.
Editorial
note—
The provisions of section 4BC continue in
operation by a resolution passed by the Legislative Assembly on 17.6.1997 and
the Legislative Council on 18.6.1997 in pursuance of section 4 of the Traffic
Amendment (Street and Illegal Drag Racing) Act
1996.
s 4BC: Ins 1996 No
145, Sch 1 (1). Am 1997 No 74, Sch 1 [5].
4BDSearch
warrants
(1)
A police officer may apply to an authorised
justice for a search warrant if the police officer has reasonable grounds for
believing that there is or, within 72 hours, will be on any premises a motor
vehicle that has been operated as referred to in section
4BB.
(2)
An authorised justice to whom such an application
is made may, if satisfied that there are reasonable grounds for doing so,
issue a search warrant authorising a police officer named in the
warrant:
(a)
to enter the premises, and
(b)
to search the premises for such a motor vehicle,
and
(c)
to seize such a motor vehicle, and otherwise deal
with it, in accordance with section 4BB.
(3)
Part 3 of the Search Warrants
Act 1985 applies to a search warrant issued under this
section.
(4)
In this section, authorised justice and premises have the same meanings as
they have in the Search Warrants Act
1985.
s 4BD: Ins 1997 No
74, Sch 1 [6].
4CSchemes to assist children to
cross roads or road related areas with safety
(1)
The Authority may:
(a)
from time to time give authorities for schemes,
designed to assist children to cross roads or road related areas with safety,
to be conducted by persons who are desirous of taking part in such schemes and
are referred to in such authorities,
(b)
authorise any person or class of persons by whom
such schemes may be conducted to exercise and discharge for the purposes of
such schemes the powers, authorities, duties and functions specified in such
authorities,
(c)
at any time revoke any such
authority.
(2)
Each such scheme so authorised shall come into
force upon the date specified in the scheme.
(3)
Any such scheme in force under this section may
from time to time be amended or replaced by a subsequent scheme authorised in
like manner.
(4)
The regulations may prescribe all matters
necessary or convenient to be prescribed for the purpose of carrying out any
scheme under this section. In particular, and without prejudice to the
generality of the foregoing power, the regulations may for the purpose of
carrying out any such scheme:
(a)
provide for “Stop” signs and the
exhibition thereof,
(b)
provide for the placing of barriers across or
partly across a road or road related area near a marked footcrossing or
children’s footcrossing whilst a “Stop” sign is being
exhibited,
(c)
prescribe conditions relating to the wearing or
display of an insignia, badge, belt or other article of uniform by any persons
taking part in the scheme.
(5)
Whilst a “Stop” sign is exhibited, as
prescribed, at or near a marked footcrossing or children’s footcrossing
and children are about to use, or are upon any portion of, the footcrossing,
the driver or rider of a vehicle or horse facing such sign shall stop such
vehicle or horse and cause it to remain stationary until all such children
have completed the passage of the footcrossing. If the driver or rider fails
to do so, he or she is guilty of an offence under this
Act.
(6)
In any proceedings in any court evidence that a
“Stop” sign was exhibited, as prescribed, by a person at or near a
marked footcrossing or children’s footcrossing when children were about
to use, or were upon, any portion of such footcrossing, shall be prima facie
evidence that the exhibition of such sign by such person was authorised under
this Act and the regulations.
s 4C: Ins 1954 No 7,
sec 2 (b). Am 1988 No 110, Sch 1 (12); 1988 No 131, Sch 13 (2); 1992 No 34,
Sch 1.
4DTraffic control
signs
(1)
In this section traffic
control sign means a standard, sign, notice or device in or
similar to a form, or generally answering a description, prescribed for the
purposes of this section and a reference to a road or road related area
includes a reference to a road or road related area or part of a road or road
related area for the time being designated as a shared traffic
zone.
(2)
The Authority may, by notice in writing, give
such a direction as, in its opinion, is necessary or desirable for the control
of pedestrians or the drivers or riders of vehicles or horses on a specified
road or road related area or specified roads or road related
areas.
(2A)
A direction given under subsection (2) may be
limited as to time, place or subject-matter.
(2B)
The Authority may from time to time, by notice in
writing, vary or revoke a direction given under subsection
(2).
(3)
A direction given under subsection (2) has effect
only:
(a)
while there is erected or displayed on or near,
or marked on, the road or road related area to which the direction relates a
traffic control sign that is notice of the direction, or
(b)
where the direction relates to a network of 2 or
more roads or road related areas within a defined area—while there is
erected or displayed on or near, or marked on, each of the roads or road
related areas that provides access to that area a traffic control sign that is
notice of the direction.
(3A)
The fact that a direction given under subsection
(2) relates to a network of roads or road related areas within a defined area
does not preclude the erection or display of traffic control signs in
accordance with subsection (3) (a).
(4)
The direction appearing upon, or prescribed as
given by, a traffic control sign that is erected or displayed upon or near, or
marked upon, a road or road related area with the authority of the Authority
shall, whether the traffic control sign was so erected, displayed or marked
before or after the commencement of section 3 of the Motor Traffic, Metropolitan
Traffic and Transport (Amendment) Act 1968, be deemed to
be a direction, for the time being in force, given pursuant to subsection (2)
in relation to that road or road related area and the traffic control sign
shall, for the purposes of subsection (3), be deemed to be notice of that
direction.
(5)
Regulations may be made for and with respect
to:
(a)
the control of pedestrians or the drivers or
riders of vehicles or horses upon roads or road related areas by means of
traffic control signs,
(b)
prescribing the form or description of traffic
control signs,
(c)
the interpretation of words, figures, symbols or
abbreviations appearing on a traffic control sign,
(d)
the direction represented by a sign or device
comprising, or partly comprising, a traffic control sign,
(e)
the observance of a direction appearing on, or
prescribed as being represented by, a traffic control
sign.
(6)
Any person who:
(a)
without the authority of the Authority:
(i)
erects or displays upon or near, or marks upon, a
road or road related area any traffic control sign, or
(ii)
interferes with, alters or removes any traffic
control sign erected or displayed upon or near, or marked upon, a road or road
related area, or
(b)
erects or displays upon or near, or marks upon, a
road or road related area any standard, sign, notice or device that might
reasonably be mistaken to be a traffic control
sign,
shall be guilty of an offence under this
Act.
(7)
The Commissioner of Police or any member of the
police force authorised by the Commissioner in that behalf may direct any
person who contravenes subsection (6) to remove, within a time specified by
the Commissioner when giving the direction, the standard, sign, notice or
device in respect of which the contravention took place and any such person
who fails to comply with such a direction within the time so specified shall
be guilty of an offence under this Act.
(8)
Without affecting any liability of any person
under subsection (6) or (7), the Commissioner of Police may remove, or cause
to be removed, a standard, sign, notice or device erected, displayed or marked
in contravention of subsection (6).
(9)
The allegation, in an information in respect of
an offence under this Act or a breach of a regulation, that a standard, sign,
notice or device was erected, displayed or marked with the authority of the
Authority or that a standard, sign, notice or device was erected, displayed,
marked, interfered with, altered or removed without the authority of the
Authority, shall be accepted by the court as evidence of the truth of the
allegation, unless the contrary is proved.
(10)
The provisions of this section shall be
supplemental to, and not in derogation from, any other provision of this
Act.
s 4D: Ins 1968 No 2,
sec 3. Am 1976 No 32, Sch 2 (5); 1987 No 8, Sch 1 (3); 1988 No 110, Sch 1
(13).
4DAPhotographic evidence of
traffic light offences
(1)
In this section:
traffic
control sign has the same meaning as it has in section
4D.
traffic
light offence means an offence under the regulations of
disobeying or failing to comply with a direction of a traffic control sign in
the form of a traffic control light signal erected by authority of the
Authority and displaying a red circle or a red arrow.
(2)
In proceedings for a traffic light
offence:
(a)
a photograph tendered in evidence as a photograph
taken by means of the operation, on a specified day, of an approved camera
detection device installed at a specified location shall be deemed to have
been so taken unless evidence is adduced to the contrary,
(b)
a photograph deemed to have been so taken shall
be prima facie evidence of the matters shown or recorded on the photograph,
and
(c)
evidence of the condition of the approved camera
detection device shall not be required unless evidence that the device was not
in proper condition has been adduced.
(3)
If a photograph referred to in subsection (2) is
tendered in evidence in proceedings for a traffic light offence, a certificate
purporting to be signed by a member of the police force certifying
that:
(a)
the member is authorised by the Commissioner of
Police to install and inspect approved camera detection
devices,
(b)
on a day and at a time specified in the
certificate (being within 84 hours before the time recorded on the photograph
as the time at which the photograph was taken), the member carried out the
inspection specified in the certificate on the approved camera detection
device by means of which the photograph was taken, and
(c)
upon that inspection, the approved camera
detection device was found to be properly
operating,
shall be tendered in evidence in those proceedings and
shall be prima facie evidence of the particulars certified in and by the
certificate.
s 4DA: Ins 1986 No
161, Sch 1 (2). Am 1988 No 110, Sch 1 (14); 1995 No 23, Sch
1.
4EPrescribed concentration of
alcohol in person’s blood
(1)
In this section:
driver
licence does not (except in subsection (1B)) include a
provisional licence or learner licence.
first-year provisional licence means
a provisional licence issued under the Road Transport
(Driver Licensing) Act 1998 to a person who has not
previously held, for a period of 12 months or more, a driver licence
authorising the person to drive a motor vehicle.
(1A)
A person who is the holder of a provisional
licence issued under the Road Transport (Driver Licensing) Act
1998 shall, for the purposes of this section, be deemed to
be the holder of a first-year provisional licence unless the person satisfies
the court to the contrary.
(1B)
For the purposes of this section, a person is a
special
category driver in respect of a motor vehicle:
(a)
if the person:
(i)
is the holder of a learner licence,
or
(ii)
is the holder of a first-year provisional
licence,
for motor vehicles of a class that includes that motor
vehicle, or
(b)
if the person is not the holder of a licence
which authorises the person to drive that motor vehicle because:
(i)
the person’s driver licence is suspended or
has been cancelled, or
(ii)
the person has been disqualified from holding or
obtaining a driver licence, or
(iii)
the person’s application for a driver
licence has been refused, or
(iv)
the person (never having had authority to drive
the vehicle in New South Wales by virtue of being the holder of a licence or
permit issued in a place outside New South Wales) has never obtained a driver
licence, or
(c)
if the person has no authority to drive that
motor vehicle in New South Wales because:
(i)
the person is not the holder of a driver licence,
and
(ii)
an authority which the person had to drive the
vehicle in New South Wales by virtue of being the holder of a licence or
permit issued in a place outside New South Wales is suspended or has been
cancelled, or
(d)
if the person is under 25 years of age, unless
the person has held a driver licence (apart from a learner 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 or trailer:
(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.
(1C)
For the purposes of this section, a person is a
special
category supervisor in respect of a motor vehicle if, were
the person driving the motor vehicle, the person would be a special category
driver in respect of the motor vehicle.
(1D)
Any person who, while there is present in the
person’s blood the special range prescribed concentration of
alcohol:
(a)
being a special category driver in respect of the
motor vehicle, drives a motor vehicle, or
(b)
being a special category driver in respect of the
motor vehicle, occupies the driving seat of a motor vehicle and attempts to
put the motor vehicle in motion, or
(c)
being a special category supervisor in respect of
the motor vehicle and the holder of a driver licence, occupies the seat in a
motor vehicle next to a holder of a learner licence who is driving the
vehicle,
is guilty of an offence under this Act and is
liable:
(d)
in the case of a first offence—to a penalty
not exceeding 10 penalty units, or
(e)
in the case of a second or subsequent
offence—to a penalty not exceeding 20 penalty
units.
(1E)
Any person who while there is present in his or
her blood the low range prescribed concentration of alcohol:
(a)
drives a motor vehicle, or
(b)
occupies the driving seat of a motor vehicle and
attempts to put the motor vehicle in motion, or
(b1)
being the holder of a driver licence, occupies
the seat in a motor vehicle next to a holder of a learner licence who is
driving the vehicle,
shall be guilty of an offence under this Act and shall
be liable:
(c)
in the case of a first offence—to a penalty
not exceeding 10 penalty units, or
(d)
in the case of a second or subsequent
offence—to a penalty not exceeding 20 penalty
units.
(1F)
Any person who while there is present in his or
her blood the middle range prescribed concentration of alcohol:
(a)
drives a motor vehicle, or
(b)
occupies the driving seat of a motor vehicle and
attempts to put the motor vehicle in motion, or
(b1)
being the holder of a driver licence, occupies
the seat in a motor vehicle next to a holder of a learner licence who is
driving the vehicle,
shall be guilty of an offence under this Act and shall
be liable:
(a)
in the case of a first offence—to a penalty
not exceeding 20 penalty units or to imprisonment for a period not exceeding 9
months or to both such penalty and imprisonment, or
(b)
in the case of a second or subsequent
offence—to a penalty not exceeding 30 penalty units or to imprisonment
for a period not exceeding 12 months or to both such penalty and
imprisonment.
(1G)
Any person who while there is present in his or
her blood the high range prescribed concentration of alcohol:
(a)
drives a motor vehicle, or
(b)
occupies the driving seat of a motor vehicle and
attempts to put the motor vehicle in motion, or
(b1)
being the holder of a driver licence, occupies
the seat in a motor vehicle next to a holder of a learner licence who is
driving the vehicle,
shall be guilty of an offence under this Act and shall
be liable:
(c)
in the case of a first offence—to a penalty
not exceeding 30 penalty units or to imprisonment for a period not exceeding
18 months or to both such penalty and imprisonment, or
(d)
in the case of a second or subsequent
offence—to a penalty not exceeding 50 penalty units or to imprisonment
for a period not exceeding 2 years or to both such penalty and
imprisonment.
(1H)
For the purposes of subsection (1D), (1E), (1F)
or (1G), where a person is guilty of an offence under that subsection, that
offence:
(a)
is a second or subsequent offence under that
subsection if and only if, within the period of five years immediately before
being convicted of that offence, the person was convicted of a major offence,
and
(b)
otherwise shall be treated as a first
offence.
(1I)
If, on a prosecution of a person for an offence
under subsection (1F), the court is satisfied that, at the time the person did
the act referred to in subsection (1F) (a), (b) or (b1), as the case may be,
there was not present in the person’s blood the middle range prescribed
concentration of alcohol but there was present in the person’s blood the
low range prescribed concentration of alcohol, the court may convict the
person of an offence under subsection (1E).
(1J)
If, on a prosecution of a person for an offence
under subsection (1G), the court is satisfied that, at the time the person did
the act referred to in subsection (1G) (a), (b) or (b1), as the case may be,
there was not present in the person’s blood the high range prescribed
concentration of alcohol but there was present in the person’s
blood:
(a)
the middle range prescribed concentration of
alcohol, the court may convict the person of an offence under subsection (1F),
or
(b)
the low range prescribed concentration of
alcohol, the court may convict the person of an offence under subsection
(1E).
(1JA)
If, on a prosecution of a person for an offence
under subsection (1E), (1F) or (1G), relating to driving a motor vehicle or to
occupying the driving seat of a motor vehicle and attempting to put the motor
vehicle in motion, the court is satisfied that, at the time the person drove
the motor vehicle or occupied the driving seat and attempted to put the motor
vehicle in motion:
(a)
the person was a special category driver in
respect of the motor vehicle, and
(b)
there was not present in the person’s blood
the high range prescribed concentration of alcohol, the middle range
prescribed concentration of alcohol or the low range prescribed concentration
of alcohol,
but that there was present in the person’s blood
the special range prescribed concentration of alcohol, the court may convict
the person of an offence under subsection (1D).
(1K)
It is not a defence to a prosecution for:
(a1)
an offence under subsection (1D) if the defendant
proves that, at the time the defendant did the act referred to in subsection
(1D) (a), (b) or (c), as the case may be, there was present in the
defendant’s blood a concentration of alcohol of 0.05 grammes or more in
100 millilitres of blood,
(a)
an offence under subsection (1E) if the defendant
proves that, at the time he or she did the act referred to in subsection (1E)
(a), (b) or (b1), as the case may be, there was present in the
defendant’s blood a concentration of alcohol of 0.08 grammes or more in
100 millilitres of the defendant’s blood, or
(b)
an offence under subsection (1F) if the defendant
proves that, at the time he or she did the act referred to in subsection (1F)
(a), (b) or (b1), as the case may be, there was present in the
defendant’s blood a concentration of alcohol of 0.15 grammes or more in
100 millilitres of the defendant’s blood.
(1L), (2)
(2A)
Where a member of the police force has reasonable
cause to believe that any person:
(a)
is or was driving a motor vehicle upon a road or
road related area, or
(b)
is or was occupying the driving seat of a motor
vehicle upon a road or road related area and attempting to put the motor
vehicle in motion, or
(c)
being the holder of a driver licence, is or was
occupying the seat in a motor vehicle next to a holder of a learner licence
while the holder of the learner licence is or was driving the vehicle upon a
road or road related area,
a member of the police force may require that person to
undergo a breath test in accordance with the directions of a member of the
police force.
(2AA)
(2B)
Without limiting any other power or authority,
any member of the police force may, for the purposes of this section, request
or signal the driver of a motor vehicle to stop the vehicle, and any person
who fails to comply with any request or signal made or given pursuant to this
subsection shall be guilty of an offence under this Act and shall be liable to
a penalty not exceeding 10 penalty units.
(2C)
(3)
Where:
(a)
it appears to a member of the police force in
consequence of a breath test carried out under subsection (2A) by the
member:
(i)
on a person the member has reasonable cause to
believe is a special category driver in respect of the motor vehicle
concerned—that the device by means of which the test was carried out
indicates that there may be present in that person’s blood a
concentration of alcohol of not less than 0.02 grammes in 100 millilitres of
the blood, or
(ii)
on any person—that the device by means of
which the test was carried out indicates that there may be present in that
person’s blood a concentration of alcohol of not less than 0.05 grammes
in 100 millilitres of the blood, or
(b)
a person required by a member of the police force
under subsection (2A) to undergo a breath test refuses or fails to undergo
that test in accordance with the directions of that
member,
that member may thereupon arrest that person without
warrant and take that person or cause that person to be taken with such force
as may be necessary to a police station or some other place as that member
considers desirable and there detain the person or cause the person to be
detained for the purposes of the provisions hereinafter in this section
provided.
(4)
A member of the police force may require a person
who has been arrested under subsection (3) to submit, in accordance with the
directions of that member, to a breath analysis.
A breath analysis shall be carried out by a
member of the police force authorised in that behalf by the Commissioner of
Police at or near a police station or such other place as that member
considers desirable.
(5)
A member of the police force shall not require a
person to undergo a breath test or to submit to a breath analysis:
(a)
if that person has been admitted to hospital for
medical treatment, unless the medical practitioner in immediate charge of his
or her treatment has been notified of the intention to make the requisition
and the medical practitioner does not object on the grounds that compliance
therewith would be prejudicial to the proper care or treatment of that
person,
(b)
if it appears to that member that it would by
reason of injuries sustained by that person be dangerous to that
person’s medical condition to undergo a breath test or submit to a
breath analysis,
(c)
at any time after the expiration of two hours
from the occurrence of the event by reason of which that member was entitled
under subsection (2A) to require that person to undergo a breath test,
or
(d)
at that person’s usual place of
abode.
(6)
Any person who when required by a member of the
police force to undergo a breath test under subsection (2A) refuses or fails
to undergo the breath test in accordance with the directions of a member of
the police force shall be guilty of an offence under this Act and shall be
liable to a penalty not exceeding 10 penalty units.
(7)
Any person who:
(a)
upon being required under subsection (4) by a
member of the police force to submit to a breath analysis refuses or fails to
submit to that analysis in accordance with the directions of a member of the
police force, or
(b)
between the time of the event referred to in
subsection (2A) (a), (b) or (c) in respect of which the person has been
required by a member of the police force to undergo a breath test and the time
when the person undergoes that test or, if the person is required by a member
of the police force to submit to a breath analysis, the time when the person
submits to that analysis, wilfully does anything to alter the concentration of
alcohol in the person’s blood,
shall be guilty of an offence under this Act and shall
be liable:
(c)
in the case of a first offence—to a penalty
not exceeding 30 penalty units or to imprisonment for a period not exceeding
18 months or to both such penalty and imprisonment, or
(d)
in the case of a second or subsequent
offence—to a penalty not exceeding 50 penalty units or to imprisonment
for a period not exceeding 2 years or to both such penalty and
imprisonment.
(7A)
For the purposes of subsection (7), where a
person is guilty of an offence under that subsection, that offence:
(a)
is a second or subsequent offence under that
subsection if and only if, within the period of 5 years immediately before
being convicted of that offence, the person was convicted of a major offence,
and
(b)
otherwise shall be treated as a first
offence.
(8)
It shall be a defence to a prosecution for an
offence under subsection (6) or (7) (a) if the defendant satisfies the court
that the defendant was unable on medical grounds at the time the defendant was
required to do so to undergo a breath test or to submit to a breath analysis,
as the case may be.
(9)
(a)
A person who is required pursuant to subsection
(4) to submit to a breath analysis may request the member of the police force
making the requisition to arrange for the taking, in the presence of a member
of the police force, of a sample of that person’s blood for analysis at
that person’s own expense, by a legally qualified medical practitioner
nominated by the person or by a legally qualified medical practitioner
nominated by that member at the person’s request, but the making of such
a request or the taking of a sample of that person’s blood shall not
absolve that person from the obligation imposed on the person to submit to a
breath analysis in accordance with subsection (4).
(b)
A medical practitioner by whom a sample of a
person’s blood is taken pursuant to an arrangement referred to in
paragraph (a) shall divide the sample into two approximately equal parts of
which one shall be handed to the person from whom it was taken or to some
other person for the use and benefit of that person and one, enclosed in a
suitable sealed container, shall be handed to the member of the police force
present at the time the sample was taken.
(10)
As soon as practicable after a person has
submitted to a breath analysis the member of the police force operating the
breath analysing instrument shall deliver to that person a statement in
writing signed by that member specifying:
(a)
the concentration of alcohol determined by the
analysis to be present in that person’s blood and expressed in grammes
of alcohol in 100 millilitres of blood, and
(b)
the day on and time of the day at which the
breath analysis was completed.
(11)
In proceedings for an offence under subsection
(1D), (1E), (1F) or (1G), evidence may be given of the concentration of
alcohol present in the blood of the person charged, as determined by a breath
analysing instrument operated by a member of the police force authorised in
that behalf by the Commissioner of Police, and the concentration of alcohol
determined as aforesaid shall be deemed to be the concentration of alcohol in
the blood of that person at the time of the occurrence of the event referred
to in subsection (2A) (a), (b) or (c), as the case may be, where the breath
analysis was made within two hours after that event, unless the defendant
proves that the concentration of alcohol in the defendant’s blood at
that time was:
(a1)
in the case of an offence under subsection (1D),
less than 0.02 grammes of alcohol in 100 millilitres of the
blood,
(a)
in the case of an offence under subsection (1E),
less than 0.05 grammes of alcohol in 100 millilitres of the defendant’s
blood,
(b)
in the case of an offence under subsection (1F),
less than 0.08 grammes of alcohol in 100 millilitres of the defendant’s
blood, or
(c)
in the case of an offence under subsection (1G),
less than 0.15 grammes of alcohol in 100 millilitres of the defendant’s
blood,
but nothing in this subsection affects the operation of
subsection (1I), (1J) or (1JA).
(12)
(a)
In proceedings for an offence under subsection
(1D), (1E), (1F) or (1G) a certificate purporting to be signed by a member of
the police force certifying that:
(i)
the member is authorised by the Commissioner of
Police to operate breath analysing instruments,
(ii)
a person named therein submitted to a breath
analysis,
(iii)
the apparatus used by the member to make the
breath analysis was a breath analysing instrument within the meaning of this
Act,
(iv)
the analysis was made on the day and completed at
the time stated in the certificate,
(v)
a concentration of alcohol determined by that
breath analysing instrument and expressed in grammes of alcohol in 100
millilitres of blood was present in the blood of that person on the day and at
the time stated in the certificate, and
(vi)
a statement in writing required by subsection
(10) was delivered in accordance with that
subsection,
shall be prima facie evidence of the particulars
certified in and by the certificate.
(b)
In proceedings for an offence under this section
a certificate purporting to be signed by the Commissioner of Police that the
member of the police force named therein is authorised by the Commissioner of
Police to operate breath analysing instruments shall be prima facie evidence
of the particulars certified in and by the certificate.
(c)
In any proceedings for an offence under this
section, evidence of the condition of a breath analysing instrument or the
manner in which it was operated shall not be required unless evidence that the
instrument was not in proper condition or was not properly operated has been
adduced.
(13)
(a)
The fact that a person has undergone a breath
test or submitted to a breath test analysis, the result of a breath test or
breath analysis or the fact that a person has been convicted of an offence
under subsection (1D), (1E), (1F), (1G), (6) or (7) shall not, for the
purposes of any contract of insurance, be admissible as evidence of the fact
that that person was at any time under the influence of or in any way affected
by intoxicating liquor or incapable of driving or of exercising effective
control over a motor vehicle, but nothing in this subsection precludes the
admission of any other evidence to show any such fact.
(b)
The provisions of this subsection have effect
notwithstanding anything contained in any contract of insurance and any
covenant, term, condition or provision therein is to the extent that the
operation of this subsection is excluded, limited, modified or restricted,
void.
(c)
Any covenant, term, condition or provision
contained in any contract of insurance, to the extent that it purports to
exclude or limit the liability of the insurer in the event of the owner or
driver of a motor vehicle being convicted of an offence under this section, is
void, but nothing in this subsection precludes the inclusion in a contract of
insurance of any other covenant, term, condition or provision whereby the
liability of the insurer is excluded or limited.
(14)
A person convicted of an offence:
(a)
under subsection (7), or
(b)
under section 5 (2),
shall not be liable:
(c)
where the person has been convicted of an offence
referred to in paragraph (a), to be convicted of an offence referred to in
paragraph (b), or
(d)
where the person has been convicted of an offence
referred to in paragraph (b), to be convicted of an offence referred to in
paragraph (a),
if the offence referred to in paragraph (a), and the
offence referred to in paragraph (b), arose directly or indirectly out of the
same circumstances.
(15)
Where by reason of the occurrence of an event
referred to in subsection (2A) (a), (b) or (c) a person is required by a
member of the police force to undergo a breath test and as a consequence
thereof to submit to a breath analysis and the person submits to the breath
analysis in accordance with the directions of a member of the police force,
the person shall not be charged with an offence under section 5 (2), being the
offence of driving a motor vehicle, at the time of that event, whilst the
person was under the influence of intoxicating liquor or the offence of
occupying the driving seat of a motor vehicle and attempting to put such motor
vehicle in motion, at the time of that event, whilst the person was under the
influence of intoxicating liquor.
s 4E: Ins 1968 No 64,
sec 2 (b). Am 1978 No 114, Sch 1 (2); 1978 No 122, Sch 2 (10); 1980 No 155,
Sch 1 (2); 1982 No 123, Schs 1, 2 (4); 1985 No 18, Schs 1 (3), 2 (2); 1985 No
205, Sch 1; 1987 No 95, Sch 1 (4); 1988 No 110, Sch 1 (15); 1989 No 153, Sch 1
(4); 1990 No 96, Sch 4 (1); 1992 No 112, Sch 1; 1996 No 75, Sch 2
(1)–(3); 1997 No 115, Sch 2 [6]; 1998 No 70, Sch 1 [12]–[19]; 1998
No 99, Sch 1.13 [11]–[17].
4FBlood samples to be taken in
certain cases
(1)
Where a person of or above the age of 15 years
attends at or is admitted into a hospital for examination or treatment in
consequence of an accident upon a road or road related area (whether in New
South Wales or elsewhere) involving a motor or other vehicle or a horse, it is
the duty of any medical practitioner by whom the person is attended at the
hospital to take as soon as practicable from the person a sample of the
person’s blood for analysis, whether or not the person consents to the
taking thereof.
(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.
(2)
This section does not require the taking of a
sample of blood from a person involved in an accident upon a road or road
related area involving a vehicle or horse unless the person was, at the time
of the accident:
(a)
driving a motor vehicle involved in the accident,
or
(b)
occupying the driving seat of a motor vehicle
involved in the accident and attempting to put the motor vehicle in motion,
or
(c)
a pedestrian involved in the accident,
or
(d)
driving or riding a vehicle (not being a motor
vehicle) involved in the accident, or
(e)
driving or riding a horse involved in the
accident, or
(f)
the holder of a driver licence and occupying the
seat in the motor vehicle next to a holder of a learner licence who was
driving a motor vehicle involved in the accident.
(3)
A medical practitioner or nurse is not required
by this section to take a sample of a person’s blood:
(a)
if a sample of the person’s blood has
already been taken in accordance with this section by another medical
practitioner or nurse, or
(b)
if the medical practitioner or nurse has been
informed by a member of the police force or has reasonable grounds to believe
that the sample is required to be taken for the purposes of section
5AA.
(4)
Where a medical practitioner or nurse fails to
take a person’s blood sample as required by this section, he or she
shall be guilty of an offence under this Act.
(5)
It is a defence to a prosecution for an offence
under subsection (4) if the medical practitioner or nurse satisfies the court
that:
(a)
he or she believed on reasonable grounds that the
taking of blood from the person from whom he or she was required by this
section to take a sample of blood would be prejudicial to the proper care and
treatment of the person,
(b)
he or she did not believe that the person was of
or above the age of 15 years and it was reasonable for him or her not to have
so believed,
(c)
he or she did not believe that the person had
attended at or been admitted into the hospital in consequence of an accident
upon a road or road related area involving a vehicle or
horse,
(d)
without limiting paragraph (c), he or she did not
believe that the person was a person from whom he or she was required by this
section to take a sample of blood and it was reasonable for him or her not to
have so believed,
(da)
the requirement that he or she take a sample of
blood from the person arose after the expiration of 12 hours after the
accident concerned occurred or he or she believed on reasonable grounds that
the requirement so arose,
(e)
he or she did not know, and could not with
reasonable diligence have ascertained, which of 2 or more persons involved in
an accident upon a road or road related area involving a vehicle or horse was
or were a person or persons from whom he or she was required by this section
to take a sample or samples of blood,
(f)
he or she was, by reason of the behaviour of the
person, unable to take a sample of blood from the person at the time the
person attended at or was admitted into the hospital or a reasonable time
thereafter, or
(g)
there was reasonable cause for him or her not to
take a sample of blood from the person in accordance with this
section.
(6)
A person who hinders or obstructs a medical
practitioner or nurse in attempting to take a sample of the blood of any other
person in accordance with this section shall be guilty of an offence under
this Act and shall be liable to a penalty not exceeding 20 penalty
units.
(7)
Any person (other than a pedestrian or a person
who was driving or riding a vehicle, not being a motor vehicle, or a horse,
being a pedestrian or person involved in the accident concerned) who:
(a)
by reason of the person’s behaviour,
prevents a medical practitioner or nurse from taking a sample of the
person’s blood in accordance with this section, or
(b)
between the time of the accident concerned and
the taking of a sample of the person’s blood in accordance with this
section wilfully does anything to alter the concentration of alcohol in the
person’s blood (except at the direction or under the supervision of a
medical practitioner or nurse, or a person of a prescribed class or
description, for the proper care and treatment of the
person),
shall be guilty of an offence under this Act and shall
be liable:
(c)
in the case of a first offence—to a penalty
not exceeding 30 penalty units or to imprisonment for a period not exceeding
18 months or to both such penalty and imprisonment, or
(d)
in the case of a second or subsequent
offence—to a penalty not exceeding 50 penalty units or to imprisonment
for a period not exceeding 2 years or to both such penalty and
imprisonment,
and, for the purposes of this subsection, where a person
is guilty of an offence under this subsection, that offence:
(e)
is a second or subsequent offence under this
subsection if and only if, within the period of 5 years immediately before
being convicted of that offence, he or she was convicted of a major offence,
and
(f)
otherwise shall be treated as a first
offence.
(7A)
Any person (being a pedestrian or a person who
was driving or riding a vehicle, not being a motor vehicle, or a horse, being
a pedestrian or person involved in the accident concerned) who:
(a)
by reason of the person’s behaviour,
prevents a medical practitioner or nurse from taking a sample of the
person’s blood in accordance with this section, or
(b)
between the time of the accident concerned and
the taking of a sample of the person’s blood in accordance with this
section wilfully does anything to alter the concentration of alcohol in the
person’s blood (except at the direction or under the supervision of a
medical practitioner or nurse, or a person of a prescribed class or
description, for the proper care and treatment of the
person),
shall be guilty of an offence under this Act and shall
be liable to a penalty not exceeding 30 penalty units.
(7B)
It is a defence to a prosecution of a person for
an offence under subsection (7) or (7A) of wilfully doing anything to alter
the concentration of alcohol in the person’s blood if he or she
satisfies the court that he or she did the thing after the expiration of 2
hours after the accident concerned occurred.
(8)
Any duty of a medical practitioner under this
section and any relevant provisions of the regulations may be performed by a
person acting under the supervision of the medical practitioner, and in that
event the duty shall be deemed to have been performed by the medical
practitioner.
(9)
A person convicted of an offence:
(a)
under subsection (7), or
(b)
under section 5 (2),
shall not be liable:
(c)
where he or she has been convicted of an offence
referred to in paragraph (a), to be convicted of an offence referred to in
paragraph (b), or
(d)
where he or she has been convicted of an offence
referred to in paragraph (b), to be convicted of an offence referred to in
paragraph (a),
if the offence referred to in paragraph (a), and the
offence referred to in paragraph (b), arose directly or indirectly out of the
same circumstances.
(10)
A person who has had a sample of blood taken in
accordance with this section because of an accident is not to be charged with
an offence under section 5 (2) if it is alleged as a component of the offence
that the person was under the influence of alcohol and the offence relates to
the same accident.
(11)
No civil or criminal liability is incurred by a
medical practitioner or registered nurse in respect of anything properly and
necessarily done by him or her in the course of taking a sample of the blood
of a person where:
(a)
he or she believed on reasonable grounds that he
or she was required to take the sample from the person under this
section,
(b)
he or she believed on reasonable grounds that the
person was involved in an accident upon a road or road related area (whether
in New South Wales or elsewhere) involving a vehicle or horse and he or she
did not know, and could not with reasonable diligence have ascertained,
whether or not he or she was required to take the sample from the person under
this section, or
(c)
he or she was informed by a member of the police
force that the person was a person from whom he or she was required to take
the sample under this section,
nor by any person acting under the supervision of the
medical practitioner as referred to in subsection (8).
(12)
In this section, a reference to a hospital
includes a reference to any premises, institution or establishment prescribed
as a hospital for the purposes of this section.
s 4F: Ins 1982 No
123, Sch 3 (3). Am 1983 No 35, Sch 2 (2); 1986 No 53, Sch 1; 1987 No 44, Schs
1 (3), 2 (3); 1988 No 73, Sch 1 (1); 1990 No 96, Sch 1 (1); 1992 No 112, Sch
1; 1996 No 75, Sch 1 (2)–(4); 1998 No 70, Sch 1 [20]–[25]; 1998 No
99, Sch 1.13 [18] [19].
4GAnalysis of samples of
blood
(1)
The medical practitioner or nurse by whom a
sample of a person’s blood is taken in accordance with section 4F
shall:
(a)
divide the sample into 2 approximately equal
portions,
(b)
place each portion into a
container,
(c)
fasten and seal each such container,
and
(d)
mark or label each such container for future
identification.
(2)
Of the 2 portions of a sample of blood:
(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.
(3)
The medical practitioner or nurse by whom a
sample of a person’s blood is taken in accordance with section 4F shall,
as soon as reasonably practicable after the sample is taken, arrange for a
portion of the sample to be submitted for an analysis by an analyst to
determine the concentration of alcohol in the blood.
(3A)
A medical practitioner who, in another State or
Territory, takes a sample of blood:
(a)
from a person attended by the medical
practitioner in consequence of an accident in New South Wales,
and
(b)
in accordance with provisions of a law of that
State or Territory that substantially correspond to the provisions of section
4F,
may arrange for a portion of the sample to be submitted
for an analysis by an analyst to determine the concentration of alcohol in the
blood.
(4)
A member of the police force may arrange for a
portion of a sample of a person’s blood taken in accordance with section
4F to be submitted for an analysis by an analyst to determine the
concentration of alcohol, or of alcohol and other drugs, in the
blood.
(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
(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.
(5)
An analyst to whom a portion of a sample of blood
is submitted for analysis under this section may carry out an analysis of the
portion to determine the concentration of alcohol (and, where required, of
other drugs) in the blood.
(6)
An analysis referred to in subsection (5) may be
carried out, and any act, matter or thing in connection with the analysis
(including the receipt of the portion of the sample of blood to be analysed
and the breaking of any seal securing the portion) may be done, by a person
acting under the supervision of an analyst, and in that event shall be deemed
to have been carried out or done by the analyst.
(7)
Any power or duty of a medical practitioner under
this section and any relevant provisions of the regulations may be exercised
or performed by a person acting under the supervision of the medical
practitioner, and in that event the duty shall be deemed to have been
exercised or performed by the medical practitioner.
(8)
In proceedings for an offence under section 4E
(1D), (1E), (1F) or (1G) evidence may be given of the concentration of alcohol
present in the blood of the person charged, as determined pursuant to an
analysis under this section of a portion of a sample of that person’s
blood, and the concentration of alcohol so determined shall be deemed to be
the concentration of alcohol in the blood of that person at the time of the
occurrence of the event referred to in section 4E (2A) (a), (b), or (c), as
the case may be, where the sample of blood was taken within 2 hours after that
event, unless the defendant proves that the concentration of alcohol in the
defendant’s blood at that time was:
(a1)
in the case of an offence under section 4E (1D),
less than 0.02 grammes of alcohol in 100 millilitres of the
blood,
(a)
in the case of an offence under section 4E (1E),
less than 0.05 grammes of alcohol in 100 millilitres of the defendant’s
blood,
(b)
in the case of an offence under section 4E (1F),
less than 0.08 grammes of alcohol in 100 millilitres of the defendant’s
blood, or
(c)
in the case of an offence under section 4E (1G),
less than 0.15 grammes of alcohol in 100 millilitres of the defendant’s
blood,
but nothing in this section affects the operation of
section 4E (1I), (1J) or (1JA).
(9)
In proceedings for an offence under section 4E
(1D), (1E), (1F) or (1G) a certificate purporting to be signed by a medical
practitioner or nurse certifying any one or more of the following
matters:
(a)
that he or she was a medical practitioner or
nurse who attended a specified person who attended at or was admitted into a
hospital as referred to in section 4F,
(b)
that he or she took a sample of the
person’s blood in accordance with section 4F, and any relevant
provisions of the regulations, on the day and at the time stated in the
certificate,
(c)
that he or she dealt with the sample in
accordance with subsection (1) and any relevant provisions of the
regulations,
(d)
that he or she used equipment of a specified
description in so taking and dealing with the sample,
(e)
that the container was sealed, and marked or
labelled, in a specified manner,
shall be prima facie evidence of the particulars
certified in and by the certificate.
(10)
In proceedings for an offence under section 4E
(1D), (1E), (1F) or (1G) a certificate purporting to be signed by a member of
the police force certifying any one or more of the following matters:
(a)
that the member received a portion of a sample of
a specified person’s blood taken in accordance with section
4F,
(b)
that the member arranged for the portion to be
submitted for an analysis by an analyst to determine the concentration of
alcohol in the blood,
(c)
that the container was sealed, and marked or
labelled, in a specified manner,
shall be prima facie evidence of the particulars
certified in and by the certificate.
(11)
In proceedings for an offence under section 4E
(1D), (1E), (1F) or (1G) a certificate purporting to be signed by an analyst
certifying any one or more of the following matters:
(a)
that the analyst received, on a specified day, a
portion of a sample of a specified person’s blood in a container
submitted for analysis under this section,
(b)
that the container, as received by the analyst,
was sealed, and marked or labelled, in a specified manner,
(c)
that on receipt by the analyst of the container,
the seal was unbroken,
(d)
that the analyst carried out an analysis of the
portion to determine the concentration of alcohol in the
sample,
(e)
that the concentration of alcohol determined
pursuant to the analysis and expressed in grammes of alcohol in 100
millilitres of blood was present in that sample,
(f)
that the analyst was, at the time of the
analysis, an analyst within the meaning of this
Act,
shall be prima facie evidence:
(g)
of the particulars certified in and by the
certificate,
(h)
that the sample was a portion of the sample of
the blood of that specified person, and
(i)
that the portion had not been tampered with
before it was received by the analyst.
(11A)
In proceedings for an offence under section 4E
(1D), (1E), (1F) or (1G) a certificate purporting to be signed by a person
who, in another State or Territory:
(a)
took a blood sample, or
(b)
analysed a blood
sample,
in accordance with provisions of a law of that State or
Territory that substantially correspond to the provisions of section 4F or of
this section is prima facie evidence of the particulars certified in and by
the certificate, and an analysis to which any such certificate relates shall
be taken to be an analysis under this section.
(12)
The result of an analysis under this section
shall not, for the purpose of any contract of insurance, be admissible as
evidence of the fact that a person was at any time under the influence of or
in any way affected by intoxicating liquor or incapable of driving or of
exercising effective control over a vehicle or horse, but nothing in this
section precludes the admission of any other evidence to show any such
fact.
(13)
The provisions of subsection (12) have effect
notwithstanding anything in any contract of insurance and any covenant, term,
condition or provision therein is, to the extent that the operation of that
subsection is excluded, limited, modified or restricted,
void.
(14)
Any medical practitioner or nurse who fails to
comply with subsection (1) or (3) shall be guilty of an offence under this
Act.
s 4G: Ins 1982 No
123, Sch 3 (3). Am 1983 No 35, Sch 2 (3); 1985 No 18, Schs 1 (4) (5), 2 (3);
1985 No 205, Sch 1 (5); 1987 No 44, Sch 2 (4); 1988 No 73, Sch 1 (2); 1989 No
153, Sch 1 (5); 1990 No 96, Sch 1 (2); 1990 No 108, Sch 1.
5Offences
(1)
Any driver or rider of a vehicle or horse who,
when required by a member of the police force in the execution of his or her
duty under this Act or the regulations to produce his or her licence (in the
case of the driver of a motor vehicle) and state his or her name and place of
abode refuses to do so, or, when so required, states a false name or place of
abode, shall be guilty of an offence under this Act.
(1A)
In subsection (1), a reference to a driver of a
vehicle (in the case of a motor vehicle) includes, where the driver is the
holder of a learner licence and the motor vehicle is not a motor cycle, a
reference to a holder of a driver licence occupying the seat in or on the
motor vehicle next to the driver.
(1B)
Where the driver of a motor vehicle (other than a
motor cycle) is the holder of a learner licence, any person occupying the seat
in or on the motor vehicle next to the driver must, when required to do so by
a police officer or a person authorised in writing by the Authority for the
purposes of this section, produce the person’s driver licence and state
the person’s true name and place of abode. A person who does not comply
with this requirement is guilty of an offence under this
Act.
(1C)
A person accompanying another person who is
attending a district registry for the purpose of undergoing any test or
examination required by the regulations must, on request, produce his or her
driver licence and state his or her true name and place of abode if:
(a)
the request is made by a police officer or a
person authorised in writing by the Authority for the purposes of this
section, and
(b)
the person making the request believes on
reasonable grounds that the person accompanying the person who is to undergo
the test or examination has been giving driving instruction to that
person.
A person who does not comply with such a request
is guilty of an offence under this Act.
(2)
Any person who, while under the influence of
alcohol or any other drug:
(a)
drives a vehicle,
(b)
occupies the driving seat of a vehicle and
attempts to put such vehicle in motion, or
(c)
being the holder of a driver licence (other than
a provisional licence or a learner licence), occupies the seat in or on a
motor vehicle next to a holder of a learner licence who is driving the motor
vehicle,
shall be guilty of an offence under this Act and shall
be liable:
(d)
in the case of an offence to which paragraph (c)
relates—to a penalty not exceeding 20 penalty units,
or
(e)
in the case of a first offence to which paragraph
(a) or (b) applies—to a penalty not exceeding 20 penalty units or to
imprisonment for a period not exceeding 9 months or to both such penalty and
imprisonment, or
(f)
in the case of a second or subsequent offence to
which paragraph (a) or (b) applies—to a penalty not exceeding 30 penalty
units or to imprisonment for a period not exceeding 12 months or to both such
penalty and imprisonment.
(2AA)
For the purposes of subsection (2), if a person
is guilty of an offence under subsection (2) (a) or (b), that offence:
(a)
is a second or subsequent offence if and only if,
within the period of 5 years immediately before being convicted of that
offence, the person was convicted of a major offence, or
(b)
otherwise is to be treated as a first
offence.
(2A)
Where a person is charged with an offence under
subsection (2):
(a)
the information may allege the person was under
the influence of more than one drug and is not liable to be dismissed on the
ground of uncertainty or duplicity if each of those drugs is described in the
information, and
(b)
the offence is proved if the court is satisfied
beyond reasonable doubt that the defendant was under the influence of:
(i)
a drug described in the information,
or
(ii)
a combination of drugs any one or more of which
was or were described in the information.
(3)
Where the driver of a motor vehicle is alleged to
be guilty of an offence under this Act or any regulation:
(a)
the owner of the vehicle, or the person in whose
name it is registered, or the person having the custody of the vehicle, shall,
when required so to do by a member of the police force, forthwith give
information (which shall, if so required, be given in the form of a statement
in writing signed by such owner or person) as to the name and place of abode
of such driver, and if any such owner or person fails to do so he or she shall
be guilty of an offence under this Act, unless he or she proves to the
satisfaction of the court that he or she did not know and could not with
reasonable diligence have ascertained such name and place of abode,
and
(b)
any other person shall, if required as aforesaid,
give any information which it is in the person’s power to give and which
may lead to the identification of such driver and, if the person fails to do
so, the person shall be guilty of an offence under this
Act.
(4)
Where a statement in writing purporting to be
furnished under subsection (3) (a) and to contain particulars of the name and
place of abode of the driver of a motor vehicle at the time of commission of
an alleged offence under this Act or any regulation is produced in any court
in proceedings against the person named therein as the driver for such
offence, the statement shall, if such person does not appear before the court,
be evidence without proof of signature that the person was the driver of such
vehicle at such time.
s 5: Am 1915 No 11,
sec 4; 1937 No 29, sec 3; 1949 No 14, sec 2; 1951 No 59, sec 2 (1) (b); 1961
No 4, sec 2 (c); 1966 No 31, sec 48; 1978 No 114, Sch 1 (3); 1978 No 122, Sch
2 (11); 1985 No 18, Sch 2 (4); 1985 No 227, Sch 1; 1987 No 44, Sch 1 (4); 1988
No 110, Sch 1 (16) (am 1989 No 226, Sch 2); 1989 No 132, Sch 1; 1989 No 153,
Sch 1 (6); 1992 No 3, Sch 2; 1992 No 112, Sch 1; 1998 No 70, Sch 1 [26] [27];
1998 No 99, Schs 1.13 [19]–[21], 2 [1] [2].
5AASamples for detecting
drugs
(1)
Where:
(a)
a person has undergone a breath test in
accordance with section 4E, and
(b)
the result of the test does not permit the person
to be required to submit to a breath analysis,
a member of the police force may require the person to
submit to an assessment of his or her sobriety in accordance with the
directions of a member of the police force.
(2)
The person shall not be required to submit to the
assessment unless:
(a)
a member of the police force has a reasonable
belief that, by the way in which the person:
(i)
is or was driving a motor vehicle upon a road or
road related area, or
(ii)
is or was occupying the driving seat of a motor
vehicle upon a road or road related area and attempting to put the vehicle in
motion,
the person may be under the influence of a drug,
and
(b)
the assessment is carried out by a member of the
police force at or near the place where the person underwent the breath
test.
(3)
If the person refuses to submit to the assessment
or, after the assessment has been made, a member of the police force has a
reasonable belief that the person is under the influence of a drug, the member
may:
(a)
arrest that person without warrant,
and
(b)
take the person or cause the person to be taken
with such force as may be necessary to a hospital or a prescribed place and
there detain the person or cause the person to be detained for the purposes of
the following subsections.
(4)
Except as provided by subsection (5), a member of
the police force may require a person who has been so arrested to provide
samples of the person’s blood and urine, whether or not the person
consents to them being taken, in accordance with the directions of a medical
practitioner, who shall be informed by the member that the samples are
required to be taken for the purposes of this section.
(5)
A member of the police force shall not require a
person to submit to an assessment or to provide a sample:
(a)
if the person has been admitted to hospital for
medical treatment, unless the medical practitioner in immediate charge of the
person’s treatment has been notified of the intention to make the
requirement and the medical practitioner does not object on the grounds that
compliance would be prejudicial to the proper care and treatment of the
person,
(b)
if it appears to that member that it would,
because of the person’s injuries, be dangerous to the person’s
medical condition to submit to the assessment or provide the
sample,
(c)
at any time after the expiration of 2 hours from
the occurrence of the event referred to in subsection (2) (a) (i) or (ii)
because of which the member was entitled to require the person to submit to
the assessment or provide the sample, or
(d)
at the person’s
home.
(6)
The medical practitioner by whom or under whose
directions a sample of blood or urine is taken in accordance with this section
shall:
(a)
divide the sample into 2 approximately equal
portions,
(b)
place each portion into a
container,
(c)
fasten and seal each such container,
and
(d)
mark or label each such container for future
identification.
(7)
Of the 2 sealed containers:
(a)
one shall be handed by the medical practitioner
to the person from whom it was taken or to some other person on behalf of that
person, and
(b)
the other shall be handed by the practitioner to
the member of the police force present when the sample was taken and forwarded
to a prescribed laboratory for analysis by an analyst to determine whether the
blood or urine contains a drug.
(8)
An analyst at a prescribed laboratory to whom any
blood or urine is submitted for analysis under this section or any blood is
submitted under section 4G may carry out an analysis of the blood or urine to
determine whether it contains a drug.
(9)
Any duty of a medical practitioner under this
section and any relevant provisions of the regulations may be performed by a
person acting under the supervision of the practitioner and, in that event,
the duty shall be deemed to have been performed by the
practitioner.
(10)
An analysis under this section may be carried
out, and anything in connection with the analysis (including the receipt of
the blood or urine to be analysed and the breaking of any seal) may be done,
by a person acting under the supervision of an analyst and, in that event,
shall be deemed to have been carried out or done by the
analyst.
s 5AA: Ins 1987 No
44, Sch 1 (5).
5ABEvidence of presence of
drugs
(1)
In proceedings for an offence under section 5
(2):
(a)
evidence may be given of:
(i)
the presence of a drug, or
(ii)
the presence of a particular concentration of a
drug,
in the blood or urine of the person charged, as
determined pursuant to an analysis under section 4G or 5AA of part of a sample
of the person’s blood or urine, and
(b)
the drug the presence of which is so determined
or the particular concentration of the drug the presence of which is so
determined, as the case may be, shall be deemed to have been present in the
blood or urine of that person when the event referred to in section 5 (2) (a)
or (b), as the case may be, occurred,
where the sample was taken within 2 hours after the
event, unless the defendant proves the absence of the drug, or the presence of
the drug in a different concentration, when the event
occurred.
(2)
In proceedings for an offence under section 5
(2), a certificate purporting to be signed by a medical practitioner or nurse
certifying any one or more of the following matters:
(a)
that the practitioner or nurse was a medical
practitioner or nurse who attended a specified person who attended at or was
admitted into a hospital or a prescribed place as referred to in section 5AA
or 4F,
(b)
that the practitioner or nurse took a sample of
the person’s blood or urine in accordance with section 5AA or 4F and any
relevant provisions of the regulations, on the day and at the time stated in
the certificate,
(c)
that the practitioner or nurse dealt with the
sample in accordance with section 5AA or 4G and any relevant provisions of the
regulations,
(d)
that the container was sealed, and marked or
labelled, in a specified manner,
is prima facie evidence of the particulars certified in
and by the certificate.
(3)
In proceedings for an offence under section 5
(2), a certificate purporting to be signed by a member of the police force
certifying any one or more of the following matters:
(a)
that the member received a part of a sample of a
specified person’s blood or urine taken in accordance with section 5AA
or 4F,
(b)
that the member arranged for the part to be
submitted for an analysis by an analyst to determine whether any drug was
present in the sample,
(c)
that the container was sealed, and marked or
labelled, in a specified manner,
is prima facie evidence of the particulars certified in
and by the certificate.
(4)
In proceedings for an offence under section 5
(2), a certificate purporting to be signed by an analyst certifying any one or
more of the following matters:
(a)
that the analyst received, on a specified day, a
part of a sample of a specified person’s blood or urine in a container
submitted for analysis under section 5AA or 4G,
(b)
that the container, as received by the analyst,
was sealed, and marked or labelled, in a specified manner,
(c)
that on receipt by the analyst of the container,
the seal was unbroken,
(d)
that the analyst carried out an analysis of the
part to determine whether any drug was present in the
sample,
(e)
that a specified drug ascertained pursuant to the
analysis was present in that part and, if so certified, was present in that
part in a specified concentration,
(f)
that the analyst was, at the time of the
analysis, an analyst within the meaning of this
Act,
is prima facie evidence:
(g)
of the particulars certified in and by the
certificate,
(h)
that the part was a part of the sample of the
blood or urine of that specified person, and
(i)
that the part had not been tampered with before
it was received by the analyst.
(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).
(5)
The result of an analysis under section 5AA shall
not, for the purpose of any contract of insurance, be admissible as evidence
of the fact that a person was at any time under the influence of or in any way
affected by a drug or incapable of driving or of exercising effective control
over a motor vehicle, but nothing in section 5AA or this section precludes the
admission of any other evidence to show any such fact.
(6)
The provisions of subsection (5) have effect
notwithstanding anything in any contract of insurance and any covenant, term,
condition or provision in it is, to the extent that the operation of that
subsection is excluded, limited, modified or restricted,
void.
s 5AB: Ins 1987 No
44, Sch 1 (5). Am 1990 No 96, Sch 1 (3).
5ACOffences related to testing
for drugs
(1)
Any person who, when required by a member of the
police force to submit to an assessment under section 5AA, refuses or fails to
submit to the assessment in accordance with the directions of a member of the
police force is guilty of an offence under this Act and liable to a penalty
not exceeding 10 penalty units.
(2)
Any person who:
(a)
upon being required under section 5AA by a member
of the police force to provide samples of blood and urine:
(i)
refuses or fails to submit to the taking of the
sample of blood, or
(ii)
refuses or fails to provide the sample of
urine,
in accordance with the directions of a medical
practitioner, or
(b)
between the time of the event referred to in
section 5AA (2) (a) (i) or (ii) in respect of which the person has been
required by a member of the police force to submit to an assessment and the
time when the person undergoes that assessment or, if the person is required
by a member of the police force to provide a sample, the time when the person
provides the sample, wilfully does anything to introduce, or alter the amount
of, a drug in the person’s blood or urine,
is guilty of an offence against this
Act.
(2A)
A person who is guilty of an offence under
subsection (2) is liable:
(a)
in the case of a first offence—to a penalty
not exceeding 30 penalty units or to imprisonment for a period not exceeding
18 months or to both such penalty and imprisonment, or
(b)
in the case of a second or subsequent
offence—to a penalty not exceeding 50 penalty units or to imprisonment
for a period not exceeding 2 years or to both such penalty and
imprisonment.
(2B)
For the purposes of subsection (2A), if a person
is guilty of an offence under subsection (2), that offence:
(a)
is a second or subsequent offence if and only if,
within the period of 5 years immediately before being convicted of that
offence, the person was convicted of a major offence, or
(b)
otherwise is to be treated as a first
offence.
(3)
It is a defence to a prosecution for an offence
under subsection (1) or (2) (a) if the defendant satisfies the court that the
defendant was unable on medical grounds when the defendant was required to do
so to submit to an assessment or to provide a sample.
(4)
It is a defence to a prosecution of a person for
an offence under subsection (2) (b) of wilfully doing anything to introduce,
or alter the amount of, a drug in the person’s blood or urine if the
person satisfies the court that the thing was done more than 2 hours after the
time of the event referred to in section 5AA (2) (a) (i) or
(ii).
(5)
A person convicted of an offence:
(a)
under subsection (2), or
(b)
under section 5 (2),
is not liable:
(c)
where the person has been convicted of an offence
referred to in paragraph (a), to be convicted of an offence referred to in
paragraph (b), or
(d)
where the person has been convicted of an offence
referred to in paragraph (b), to be convicted of an offence referred to in
paragraph (a),
if the offence referred to in paragraph (a) and the
offence referred to in paragraph (b) arose directly or indirectly out of the
same circumstances.
(6)
Where a medical practitioner is informed by a
member of the police force in accordance with section 5AA that a sample is
required to be taken for the purposes of that section, the practitioner is
guilty of an offence under this Act if the practitioner:
(a)
fails to take the sample, or
(b)
fails to comply with any requirement made by
section 5AA (6) or (7) in relation to the sample.
(7)
It is a defence to a prosecution for an offence
under subsection (6) if the medical practitioner satisfies the court
that:
(a)
the practitioner believed on reasonable grounds
that the taking of the sample from the person would be prejudicial to the
proper care and treatment of the person,
(b)
the practitioner did not believe that the person
was of or above the age of 15 years and it was reasonable for the practitioner
not to have so believed,
(c)
the practitioner was, because of the behaviour of
the person, unable to take the sample, or
(d)
there was other reasonable cause for the
practitioner not to take the sample.
(8)
A person who hinders or obstructs a medical
practitioner in attempting to take a sample of the blood or urine of any other
person in accordance with section 5AA is guilty of an offence under this Act
and liable to a penalty not exceeding 20 penalty units.
(9)
No civil or criminal liability is incurred by a
medical practitioner in respect of anything properly and necessarily done by
the practitioner in the course of taking a sample of blood or urine from a
person for the purpose of its being used by an analyst to detect the presence
of any drug, where the practitioner:
(a)
believed on reasonable grounds that he or she was
required under this Act to take the sample of blood or urine from the person,
or
(b)
was informed by a member of the police force that
the person was a person from whom the practitioner was required under this Act
to take the sample of blood or urine,
nor by any person acting under the supervision of the
medical practitioner as referred to in section 5AA (9).
s 5AC: Ins 1987 No
44, Sch 1 (5). Am 1992 No 112, Sch 1; 1998 No 70, Sch 1 [28]–[30]; 1998
No 99, Sch 2 [3] [4].
5ADetention of vehicle in
certain cases
Any member of the police force may take charge of
and remove any vehicle in respect of which an offence has been committed
against section 4E or section 5 (2) to any convenient place for safe keeping,
and the court adjudicating may, if it be of opinion that there was reasonable
cause for such taking charge, removal and safe keeping, order the costs,
charges and expenses thereof to be paid by the offender.
s 5A: Ins 1930 No 18,
sec 176. Am 1951 No 59, sec 2 (1) (c); 1968 No 64, sec 2 (c); 1978 No 122, Sch
2 (12); 1988 No 110, Sch 1 (17); 1996 No 99, Sch 2.17 [1].
5B, 5C
s 5B: Ins 1949 No 35,
sec 2 (a). Am 1996 No 128, Sch 2.5 [4]. Rep 1997 No 119, Sch 1
[6].
s 5C: Ins 1983 No
102, Sch 1 (2). Am 1988 No 110, Sch 1 (18); 1992 No 112, Sch 1; 1997 No 115,
Sch 2 [10]. Rep 1998 No 26, Sch 2.6 [11].
6Driver must be
licensed
(1)
Any person who, unless exempted by the
regulations:
(a)
drives a motor vehicle upon any road or road
related area without being licensed for that purpose, or
(b)
employs or permits any person not so licensed to
drive a motor vehicle upon any road or road related area,
or
(c)
shall be guilty of an offence under this
Act.
(1A)
(1B)
A person who is guilty of an offence under
subsection (1) is, except as provided in subsection (1C), liable to a penalty
not exceeding 20 penalty units.
(1C)
A person who is guilty of an offence under
subsection (1) (a) is, if the person has never been licensed, guilty of an
offence under this subsection and is liable:
(a)
in the case of a first offence—to a penalty
not exceeding 20 penalty units, or
(b)
in the case of a second or subsequent
offence—to a penalty not exceeding 30 penalty units or to imprisonment
for a period not exceeding 18 months or to both such penalty and
imprisonment.
(1D)
If a person is convicted of an offence under
subsection (1C) (being a second or subsequent offence), the person is
disqualified by the conviction (and without any specific order) for a period
of 3 years from holding a driver licence. The disqualification is in addition
to any penalty imposed for the offence.
(1E)
For the purposes of subsection (1C), a person has
not been licensed in connection with an offence if the person has not held a
driver licence (or equivalent) of any kind in Australia for the period of at
least 5 years immediately before being convicted of the
offence.
(1F)
For the purposes of subsections (1C) and (1D), an
offence under subsection (1C) is a second or subsequent offence if:
(a)
it is the second or subsequent occasion on which
the person is convicted of the offence within the period of 5 years
immediately before being convicted of the offence, or
(b)
it is the first occasion on which the person is
convicted of the offence, but within the period of 5 years immediately before
being convicted of the offence, the person was convicted of an offence under
section 7A.
(1G)
A person who has never been licensed cannot be
convicted under both this section and section 7A in respect of driving on the
same occasion, but nothing in this section prevents such a person from being
convicted of an offence under section 7A in respect of driving that
constitutes an offence under this section.
(1H)
A person cannot be convicted under both
subsection (1) (a) and subsection (1C) in respect of driving on the same
occasion. A person charged with an offence under subsection (1C) can be
convicted instead of an offence under subsection (1) (a), but a person charged
with an offence under subsection (1) (a) cannot be convicted instead of an
offence under subsection (1C).
(2)
Subsection (1) does not apply to or in respect of
a light rail vehicle.
s 6: Am 1915 No 11,
sec 5; 1930 No 18, secs 177, 272 (1) (b); 1983 No 102, Sch 1 (3); 1986 No 3,
Sch 1; 1996 No 128, Sch 2.5 [5]; 1997 No 115, Sch 2 [6]; 1997 No 119, Sch 1
[7]; 1998 No 70, Sch 1 [31]; 1998 No 99, Schs 1.13, 2
[5]–[11].
6A
s 6A: Ins 1982 No
151, Sch 1 (2). Am 1997 No 115, Sch 2 [11]. Rep 1997 No 119, Sch 1
[8].
6BParents not to cause or permit
children to drive upon roads or road related areas
(1)
In this section:
child means a person who has not
attained the age of 16 years and 9 months.
parent, in relation to a child,
includes a guardian of the child and any other person who stands in loco
parentis to the child.
(2)
Any parent of a child who, unless exempted by the
regulations, causes or permits the child to drive a motor vehicle upon a road
or road related area shall be guilty of an offence under this
Act.
s 6B: Ins 1983 No
139, Sch 1 (2).
7
s 7: Am 1930 No 18,
sec 178; 1983 No 102, Sch 1 (4); 1988 No 82, Sch 1 (1); 1997 No 115, Sch 2
[6]; 1997 No 119, Sch 1 [9]. Rep 1998 No 99, Sch 1.13 [23].
7AOffences committed by
disqualified drivers etc
(1)
(2)
Where a person is disqualified from holding or
obtaining a driver licence or the person’s driver licence is suspended
or cancelled or an application by the person for a driver licence is refused
and the person:
(a)
during the period of disqualification drives a
motor vehicle upon a road or road related area,
(b)
during the period of suspension drives upon a
road or road related area a motor vehicle of the class to which the driver
licence so suspended relates,
(c)
after such cancellation or refusal drives upon a
road or road related area a motor vehicle of the class to which the licence so
cancelled or the application so refused related without having subsequently
obtained a driver licence for a motor vehicle of that
class,
(d)
during the period of disqualification makes
application for a driver licence and in respect of the application states his
or her name falsely or incorrectly or omits to mention such
disqualification,
(e)
during the period of suspension makes application
for a driver licence for a motor vehicle of the class to which the driver
licence so suspended relates and in respect of such application states his or
her name falsely or incorrectly or omits to mention such suspension,
or
(f)
after such cancellation or refusal makes
application for a driver licence for a motor vehicle of the class to which the
licence so cancelled or the application so refused related and in respect of
the application states his or her name falsely or incorrectly or omits to
mention such cancellation or refusal,
the person is guilty of an offence and is liable:
(g)
in the case of a first offence—to a penalty
not exceeding 30 penalty units or to imprisonment for a period not exceeding
18 months, or to both such penalty and imprisonment, or
(h)
in the case of a second or subsequent
offence—to a penalty not exceeding 50 penalty units or to imprisonment
for a period not exceeding 2 years, or to both such penalty and
imprisonment.
Provided that where after such cancellation or
refusal a person has obtained a driver licence for a motor vehicle of the
class to which the licence so cancelled or the application so refused related
by means of an application which stated his or her name correctly and
mentioned such cancellation or refusal, it shall not be necessary for such
person to mention such cancellation or refusal in any application for a driver
licence for a motor vehicle of that class made by the person after the person
has so obtained the driver licence.
(2A)
Subsection (2) (a), (b) and (c) do not apply to
the driving of a motor vehicle in circumstances prescribed by the
regulations.
(2B)
For the purposes of subsection (2), an offence
under subsection (2) is a second or subsequent offence if:
(a)
it is the second or subsequent occasion on which
the person is convicted of the offence within the period of 5 years
immediately before being convicted of the offence, or
(b)
within that 5-year period, the person was
convicted of a major offence or an offence under section 6
(1C).
(3)
Where a person is convicted of an offence under
subsection (2) (a), (b), (c), (d) or (e), the person shall be disqualified by
such conviction and without any specific order for the relevant
disqualification period from the date of expiration of the existing
disqualification or suspension or from the date of such conviction, whichever
is the later, from holding a driver licence and may also be disqualified, for
such additional period as the court may order, from holding a driver
licence.
(3A)
The relevant disqualification period referred to
in subsection (3) is:
(a)
in the case of a first offence under subsection
(2)—12 months, or
(b)
in the case of a second or subsequent offence
under subsection (2)—2 years.
(4)
The disqualification referred to in subsection
(3) shall be in addition to any penalty imposed for the
offence.
(5)
Subsection (2) applies to a person who is
disqualified from holding a licence, or whose licence is suspended or
cancelled, by a court in Australia or under any law in this State or another
State or Territory.
s 7A: Ins 1951 No 59,
sec 2 (1) (d). Am 1961 No 4, sec 2 (d); 1978 No 114, Sch 1 (4); 1978 No 122,
Sch 2 (13); 1987 No 95, Schs 2 (2), 3 (4); 1988 No 82, Sch 1 (2); 1992 No 112,
Sch 1; 1998 No 54, Sch 2.35 [1]; 1998 No 70, Sch 1 [32]–[35]; 1998 No
99, Schs 1.13 [24]–[26], 2 [12].
7BOffences relating to
identification numbers of engines and other parts of motor vehicles or
trailers
(1)
Any person:
(a)
not being the manufacturer, who without the
written authority of the Authority and except as prescribed stamps or affixes
or causes or permits any person to stamp or affix any identification number on
or to the engine, engine block or other prescribed part of a motor vehicle or
trailer, or
(b)
who, except as required or permitted by or under
this Act, alters, defaces, removes, or obliterates any identification number
stamped on or otherwise affixed to the engine, engine block or other
prescribed part of a motor vehicle or trailer, or
(c)
who, without lawful authority or excuse, has in
the person’s possession any engine, engine block or other prescribed
part of a motor vehicle or trailer knowing that the identification number
stamped thereon or otherwise affixed thereto has been altered, defaced,
removed or obliterated otherwise than as required or permitted by or under
this Act,
shall be guilty of an offence under this Act and shall
be liable to a penalty not exceeding 5 penalty units or to imprisonment for a
period not exceeding six months or to both such penalty and
imprisonment.
(2)
s 7B: Ins 1956 No 5,
sec 19 (1) (c). Am 1978 No 114, Sch 1 (5); 1978 No 122, Sch 2 (14); 1988 No
110, Sch 1 (18); 1992 No 112, Sch 1; 1996 No 146, Sch 1 [1] [2]; 1997 No 115,
Sch 2 [6] [12].
7CPower of entry for tracing
stolen motor vehicles or trailers or parts thereof
(1)
A member of the police force authorised in that
behalf by the Commissioner of Police may enter at any time any premises or
place on which the business of carrying out repairs, resulting from accidents,
to damaged motor vehicles or trailers is ordinarily carried on and may inspect
any motor vehicle or trailer or part of a motor vehicle or trailer that is
found by the member in or upon those premises or that place for the purpose of
ascertaining whether or not it is a stolen motor vehicle or trailer or
part.
(2)
Any person who wilfully delays or obstructs a
member of the police force in the exercise of his or her authority under
subsection (1) shall be guilty of an offence under this Act and shall be
liable to a penalty not exceeding 5 penalty units.
s 7C: Ins 1969 No 32,
sec 3 (a). Am 1978 No 114, Sch 1 (6); 1992 No 112, Sch 1; 1997 No 115, Sch 2
[6].
8Requirements in case of
accidents
(1)
Where, owing to the presence of a vehicle or
horse upon a road or road related area, an accident occurs whereby the death
of or injury to any person, is caused the driver or rider of every vehicle or
horse concerned in the accident shall stop and give any assistance which may
be necessary and which it is in his or her power to
give.
(2)
Any person knowingly acting in contravention of
subsection (1) shall be guilty of an offence under this Act and shall be
liable:
(a)
in the case of a first offence—to a penalty
not exceeding 30 penalty units or to imprisonment for a period not exceeding
18 months or to both such penalty and imprisonment, or
(b)
in the case of a second or subsequent
offence—to a penalty not exceeding 50 penalty units or to imprisonment
for a period not exceeding 2 years or to both such penalty and
imprisonment.
(2A)
For the purposes of subsection (2), where a
person is guilty of an offence under that subsection, that offence:
(a)
is a second or subsequent offence under that
subsection if and only if, within the period of 5 years immediately before
being convicted of that offence, the person was convicted of a major offence,
and
(b)
otherwise shall be treated as a first
offence.
(3)
Where, owing to the presence of a vehicle or
horse upon a road or road related area, an accident occurs whereby the death
of or injury to any person is caused or whereby damage to an extent apparently
in excess of fifty dollars, or where some other amount is prescribed such
other amount, is caused to any property (including an animal in charge of any
person or a vehicle), the driver or rider of every vehicle or horse concerned
in the accident shall, unless he or she is unable by reason of personal injury
to do so, stop and shall:
(a)
if required so to do by any person having
reasonable grounds for so requiring produce his or her licence (if the driver
of a motor vehicle involved in the accident) and give particulars of his or
her name and place of abode, the distinguishing numbers or letters of the
registration (if any) of the vehicle (if a motor vehicle or trailer) and the
name and place of abode of the owner of such vehicle or
horse,
(b)
if required so to do by any member of the police
force, forthwith give such particulars as it is in his or her power to give as
to the time, place and nature of the accident, the distinguishing numbers or
letters of the registration (if any) of every motor vehicle or trailer
concerned therein, the name and place of abode of every person who was
concerned in or who witnessed the accident, and the extent of any injury or
damage caused by or resulting from the accident,
(c)
as soon as practicable and in any case within
twenty-four hours after the accident, at the police station nearest to the
scene of the accident, give to the officer-in-charge the particulars mentioned
in paragraph (b), except where such particulars have already been given by the
person to a member of the police force.
(4)
Where, owing to the presence of a vehicle or
horse upon a road or road related area, an accident occurs whereby damage to
an extent apparently not in excess of fifty dollars, or where some other
amount is prescribed such other amount, is caused to any property (including
an animal in charge of any person or a vehicle), the provisions of subsection
(3) with the exception of paragraph (c) of that subsection shall apply to the
driver or rider of every vehicle or horse concerned in the
accident.
(5)
Any person who fails to comply with any provision
of subsection (3) or subsection (4) or who wilfully furnishes any false or
misleading particulars in respect of any matter pursuant to either of such
subsections shall be guilty of an offence under this
Act.
Editorial
note—
Prescribed amount (subsections (3) and (4)):
$500. See Regulation 130C of the Motor Traffic Regulations
1935.
s 8: Subst 1937 No
29, sec 4 (1). Am 1951 No 59, sec 2 (1) (e); 1961 No 4, sec 2 (e); 1962 No 36,
sec 2 (1) (c); 1978 No 114, Sch 1 (7); 1982 No 123, Sch 2 (5); 1983 No 102,
Sch 1 (5); 1988 No 110, Sch 1 (19); 1989 No 226, Sch 1; 1992 No 112, Sch 1;
1997 No 115, Sch 2 [6] [13]; 1998 No 70, Sch 1
[36]–[39].
8AMotor vehicles or trailers not
to be driven or used without consent of owner
Any person who drives or uses any motor vehicle
or trailer without first obtaining the consent of the owner thereof shall be
guilty of an offence under this Act and liable to a maximum penalty of 20
penalty units.
Provided that the provisions of this section
shall not apply to a member of the police force in the execution of his or her
duty under this Act or the regulations.
s 8A: Ins 1915 No 11,
sec 6. Am 1988 No 81, Sch 6; 1992 No 112, Sch 1; 1997 No 115, Sch 2
[6].
8BProcuring or hire of motor
vehicle or trailer by fraud etc
Any person who procures the use or hire of any
motor vehicle or trailer by fraud or misrepresentation, and any person who
aids or abets any such person, shall be guilty of an offence under this
Act.
s 8B: Ins 1915 No 11,
sec 6. Am 1966 No 60, sec 2 (b); 1997 No 115, Sch 2 [6].
8CUnsafe
loads
(1)
A person is guilty of an offence if:
(a)
the person knows, or ought reasonably to know,
that a motor vehicle or trailer is loaded unsafely, and
(b)
the person drives or causes or permits the motor
vehicle or trailer to be driven or to stand on a road or road related area,
and
(c)
death or personal injury to a person, or damage
to property (other than the motor vehicle, trailer or load), occurs while the
motor vehicle or trailer is being so driven or stood because it is loaded
unsafely.
Maximum penalty: 50 penalty units, or 12
months’ imprisonment, or both, in the case of an individual or 100
penalty units, in the case of a corporation.
(2)
The owner of a motor vehicle or trailer is guilty
of an offence if:
(a)
the motor vehicle or trailer is loaded unsafely
and is driven or stood on a road or road related area, and
(b)
the owner knows, or ought reasonably to know,
that the motor vehicle or trailer is loaded unsafely, and
(c)
death or personal injury to a person, or damage
to property (other than the motor vehicle, trailer or load), occurs while the
motor vehicle or trailer is being so driven or stood because it is loaded
unsafely.
Maximum penalty: 50 penalty units, or 12
months’ imprisonment, or both, in the case of an individual or 100
penalty units, in the case of a corporation.
(3)
A person is guilty of an offence if:
(a)
the person is a director of, or a person
concerned in the management of, a corporation that is the owner of a motor
vehicle or trailer that is loaded unsafely and is driven or stood on a road or
road related area, and
(b)
the person knows, or ought reasonably to know,
that the motor vehicle or trailer is loaded unsafely, and
(c)
death or personal injury to a person, or damage
to property (other than the motor vehicle, trailer or load), occurs while the
motor vehicle or trailer is being so driven or stood because it is loaded
unsafely.
Maximum penalty: 50 penalty units, or 12
months’ imprisonment, or both, in the case of an individual or 100
penalty units, in the case of a corporation.
(4)
It is a defence to a prosecution for an offence
under this section if a person establishes that the person was not in a
position to prevent the motor vehicle or trailer from being driven or stood on
a road or road related area while loaded unsafely.
(5)
For the purposes of this section, a motor vehicle
or trailer is loaded
unsafely if:
(a)
a load on the motor vehicle or trailer is placed
in a way that makes the motor vehicle or trailer unstable or unsafe,
or
(b)
a load on the motor vehicle or trailer is not
secured in such a way that it is unlikely to fall or be dislodged from the
motor vehicle or trailer, or
(c)
an appropriate method is not used to secure a
load on the motor vehicle or trailer.
(6)
In proceedings for an offence under this section,
it is sufficient to prove that a motor vehicle or trailer was loaded unsafely
if the prosecution proves that the load on the vehicle or trailer was not
placed, secured or restrained in a way that met the performance standards
recommended in the Load Restraint
Guide—Guidelines for the safe carriage of loads on road
vehicles published by the Australian Government Publishing
Service on 12 December 1994.
(7)
In this section:
motor
vehicle includes a combination consisting of a motor vehicle
connected to one or more vehicles.
s 8C: Ins 1952 No 50,
sec 2. Am 1956 No 1, sec 2 (1); 1970 No 89, sec 2; 1975 No 72, Sch; 1977 No
88, Sch 2 (2); 1978 No 122, Sch 2 (15); 1988 No 110, Sch 1 (18). Rep 1988 No
74, Sch 1 (1). Ins 1998 No 25, Sch 2 [1].
9Production of licence at
court
Whenever a licensed driver is charged with any
breach of this Act, or the regulations, the driver shall produce his or her
licence to the court at the time of hearing, and if such driver fails without
reasonable excuse to produce his or her licence as aforesaid, the driver shall
be guilty of an offence under this Act.
10Court may impose penalty and
disqualify driver on conviction
(1)
Any court before which a person is convicted of
an offence under this Act for which no penalty is specifically provided may
impose a penalty not exceeding 20 penalty units for the
offence.
(2)
Subject to sections 4B, 6, 7A and 10A,
where:
(a)
a person is convicted by a court of an offence
against this Act or the regulations, and
(b)
at the time of the conviction, the court so
orders,
the person is disqualified from holding a driver licence
for such period as the court specifies.
(3)
Any disqualification under this section is in
addition to any penalty imposed for the offence.
(3A)–(3AB)
(3B)
The regulations under the Road
Transport (Driver Licensing) Act 1998 may provide that any
driver licence held by a person who has been convicted of the offence of
driving a motor vehicle upon a road or road related area at a speed which is
dangerous to the public or of any offence under section 4A, shall in all cases
or in prescribed classes of cases be subject to a condition limiting the
licence to the driving of a motor vehicle to which is affixed a sealed device
which will prevent the engine from propelling the vehicle at a speed in excess
of sixty kilometres per hour. The regulations under the Road
Transport (Driver Licensing) Act 1998 may provide a
penalty for any breach of such condition and may prescribe any matter
necessary or convenient to be prescribed in relation to any such
device.
(4)
The court shall cause particulars of each
conviction or order under this Act or the regulations to be forwarded to the
Authority.
(5)
The provisions of section 556A of the Crimes Act 1900 shall not apply where a
person is charged before a court with the offence under section 4 of driving
negligently (being driving occasioning death or grievous bodily harm), section
4 of driving a motor vehicle upon a road or road related area furiously or
recklessly or at a speed or in a manner which is dangerous to the public, or
with an offence under section 4AA, section 4E (1D), (1E), (1F), (1G) or (7),
section 5 (2) or section 8 (1), or with aiding, abetting, counselling or
procuring the commission of any such offence, if at the time of or during the
period of five years immediately before the court’s determination in
respect of the charge (whether such period commenced before or commences after
the commencement of the Motor Traffic (Amendment) Act 1951), the
provisions of the said section 556A are or have been applied to or in respect
of such person in respect of a charge for another offence (whether of the same
or a different kind) of the class referred to in this
subsection.
s 10: Am 1915 No 11,
sec 7; 1930 No 18, secs 174 (3) (b), 179 (a)–(c); 1937 No 29, sec 5 (1);
1951 No 59, sec 2 (1) (f); 1961 No 4, sec 2 (f); 1968 No 64, sec 2 (d); 1974
No 31, sec 3 (b); 1978 No 114, Sch 1 (8); 1978 No 122, Sch 2 (16); 1979 No
157, sec 2 (b); 1980 No 155, Sch 1 (3); 1982 No 123, Sch 2 (6); 1985 No 18,
Schs 1 (5), 2 (5); 1986 No 4, Sch 1 (2); 1987 No 95, Sch 2 (3); 1988 No 110,
Sch 1 (18); 1989 No 153, Sch 1 (7); 1998 No 70, Sch 1 [40] [41]; 1998 No 99,
Sch 1.13 [27]–[29].
10ADisqualification for certain
major offences
(1)
This section applies to a person (referred to in
this section as the
convicted person) who:
(a)
is, in respect of the death of or bodily harm to
another person caused by or arising out of the use of a motor vehicle driven
by the firstmentioned person at the time of the occurrence out of which the
death or harm arose, convicted of:
(i)
the crime of murder or manslaughter,
or
(ii)
an offence under section 33, 35, 53 or 54 or any
other provision of the Crimes Act
1900,
(a1)
is convicted of an offence under section 51A of
the Crimes Act 1900,
(b)
is convicted of:
(i)
the offence under section 4 of driving a motor
vehicle upon a road or road related area furiously or recklessly or at a speed
or in a manner which is dangerous to the public, or
(ia)
the offence under section 4 of driving a motor
vehicle negligently (being driving occasioning death or grievous bodily harm),
or
(ii)
an offence under section 4AA, section 4E (1D),
(1E) (a) or (b), (1F) (a) or (b), (1G) (a) or (b) or (7), section 4F (7),
section 5 (2) (a) or (b), section 5AC (2) or section 8 (2),
or
(c)
is convicted of aiding, abetting, counselling or
procuring the commission of, or being an accessory before the fact to, any
such crime or offence,
any such conviction being referred to in this section as
the
conviction.
(2)
If, at the time of the conviction of the
convicted person or during the period of 5 years before the conviction
(whether that period commenced before or commences after the commencement of
this section), the convicted person is not or has not been convicted of any
other major offence (whether of the same or a different kind), then:
(a1)
(a)
where the conviction is for an offence under
section 4E (1D) or (1E):
(i)
the person shall be disqualified by the
conviction and without any specific order for 6 months from holding a driver
licence, or
(ii)
where the court upon the conviction thinks fit to
order a shorter period (but not shorter than 3 months) of disqualification,
the person shall be disqualified for such shorter period as may be specified
in the order,
(b)
where the conviction is for an offence under
section 4E (1F) or 5 (2):
(i)
the person shall be disqualified by the
conviction and without any specific order for 12 months from holding any such
licence, or
(ii)
where the court upon the conviction thinks fit to
order a shorter period (but not shorter than 6 months) or longer period of
disqualification, the person shall be disqualified for such period as may be
specified in the order, or
(b1)
where the conviction is for an offence under
section 5AC (2):
(i)
the person shall be disqualified by the
conviction and without any specific order for 3 years from holding any such
licence, or
(ii)
where the court upon the conviction thinks fit to
order a shorter period (but not shorter than 6 months) or longer period of
disqualification, the person shall be disqualified for such period as may be
specified in the order, or
(c)
except as provided in paragraphs (a), (b) and
(b1):
(i)
the person shall be disqualified by the
conviction and without any specific order for a period of 3 years from holding
any such licence, or
(ii)
where the court upon the conviction thinks fit to
order a shorter period (but not shorter than 12 months) or longer period of
disqualification, the person shall be disqualified for such period as may be
specified in the order.
(3)
If, at the time of the conviction of the
convicted person or during the period of 5 years before the conviction
(whether that period commenced before or commences after the commencement of
this section), the convicted person is or has been convicted of one or more
other major offences (whether of the same or a different kind), then:
(a1)
(a)
where the conviction is for an offence under
section 4E (1D) or (1E):
(i)
the person shall be disqualified by the
conviction and without any specific order for 12 months from holding a driver
licence, or
(ii)
where the court upon the conviction thinks fit to
order a shorter period (but not shorter than 6 months) or longer period of
disqualification, the person shall be disqualified for such period as may be
specified in the order,
(b)
where the conviction is for an offence under
section 4E (1F) or 5 (2):
(i)
the person shall be disqualified by the
conviction and without any specific order for 3 years from holding any such
licence, or
(ii)
where the court upon the conviction thinks fit to
order a shorter period (but not shorter than 12 months) or longer period of
disqualification, the person shall be disqualified for such period as may be
specified in the order, or
(b1)
where the conviction is for an offence under
section 5AC (2):
(i)
the person shall be disqualified by the
conviction and without any specific order for 5 years from holding any such
licence, or
(ii)
where the court upon the conviction thinks fit to
order a shorter period (but not shorter than 12 months) or longer period of
disqualification, the person shall be disqualified for such period as may be
specified in the order, or
(c)
except as provided in paragraphs (a), (b) and
(b1):
(i)
the person shall be disqualified by the
conviction and without any specific order for 5 years from holding any such
licence, or
(ii)
where the court upon the conviction thinks fit to
order a shorter period (but not shorter than 2 years) or longer period of
disqualification, the person shall be disqualified for such period as may be
specified in the order.
(4)
Where 2 or more convictions of a person are made,
whether or not at the same time, for crimes or offences arising out of a
single incident involving the use of a motor vehicle or trailer, then:
(a)
for the purpose of ascertaining which of
subsections (2) and (3) should apply in relation to any such conviction, the
other or others of those convictions shall be disregarded, and subsection (2)
or (3), as the case may require, shall accordingly be the applicable
subsection,
(b)
the maximum period of automatic disqualification
in respect of all those crimes or offences shall be:
(i)
where subsection (2) is applicable—3 years,
or
(ii)
where subsection (3) is applicable—5 years,
and
(c)
any minimum period of ordered disqualification
shall, in respect of those crimes or offences, be disregarded to the extent
that the total period of ordered and (where relevant) automatic
disqualification would exceed:
(i)
where subsection (2) is applicable—12
months, or
(ii)
where subsection (3) is applicable—2
years,
but nothing in paragraph (c) prevents the court, if it
thinks fit, from making any order it could have made if that paragraph had not
been enacted.
(5)
Any disqualification under this section is in
addition to any penalty imposed for the offence.
(6), (7)
(8)
A reference in this section to:
(a)
automatic disqualification is a reference to
disqualification under this section without specific order of a court,
and
(b)
ordered disqualification is a reference to
disqualification under this section ordered by a
court.
s 10A: Ins 1982 No
123, Sch 2 (7). Am 1983 No 35, Sch 2 (4); 1985 No 18, Schs 1 (5) (6), 2 (6);
1986 No 4, Sch 1 (3); 1986 No 16, Sch 23; 1986 No 218, Sch 47; 1987 No 44, Sch
1 (6); 1987 No 95, Schs 1 (5), 2 (4); 1989 No 153, Sch 1 (8); 1997 No 75, Sch
1 [2]; 1997 No 115, Sch 2 [6]; 1998 No 70, Sch 1 [42]–[55]; 1998 No 99,
Schs 1.13 [30], 2 [13]–[17].
10AAEffect of
disqualification
(1)
If, as a consequence of being convicted of an
offence by a court, a person is disqualified (whether or not by an order of
the court) from holding a driver licence, the disqualification operates to
cancel, permanently, any driver licence held by the person at the time of his
or her disqualification.
(2)
A disqualification to hold an Australian driver
licence (within the meaning of the Road Transport
(Driver Licensing) Act 1998) held under a law in force in
another State or internal Territory by a person who holds a driver licence
issued in this State is, for the purposes of subsection (1), to be treated as
if it were a disqualification to hold the driver licence issued in this
State.
(2A)
A person who is so disqualified must:
(a)
if present at the court (being a court in this
State) and in possession of his or her driver licence—surrender the
licence to the court immediately after being convicted, or
(b)
if present at the court (being a court in this
State) but not in possession of the licence or if not present at the
court—surrender the licence to the Authority as soon as practicable
after being convicted, or
(c)
if the person is to be treated under subsection
(2) as having been disqualified from holding a driver licence issued in this
State—surrender the licence to the Authority as soon as practicable
after being disqualified from holding the Australian driver licence referred
to in that subsection.
(3)
No licence may be obtained by the person during
the period of disqualification.
(4)
If a licence is surrendered to the court, the
licence is to be delivered to the Authority.
(5)
If a person fails to surrender a licence as
required by this section, the person is guilty of an offence against this
Act.
s 10AA: Ins 1987 No
95, Sch 2 (5). Am 1988 No 110, Sch 1 (18); 1989 No 153, Sch 1 (9). Subst 1990
No 108, Sch 1. Am 1995 No 16, Sch 1; 1998 No 99, Sch 1.13 [30]; 1999 No 19,
Sch 4.4.
10BSuspension of licence by
Commissioner of Police
(1)
The Commissioner of Police may suspend for a
period not exceeding fourteen days the licence granted under any Act,
regulation or ordinance to any driver who is in the Commissioner’s
opinion an incompetent, reckless or careless driver, or of any driver or
conductor who is found under the influence of liquor.
(2)
The said Commissioner shall forthwith notify the
authority by which the licence was granted of the suspension and the grounds
thereof and report to the authority whether in the Commissioner’s
opinion a further suspension or the cancellation of the licence is warranted
or is desirable in the interest of public safety.
(3)
Where a licence is suspended under this section
the licence shall be surrendered by the holder and forwarded to the licensing
authority with the notification of the suspension.
(4)
s 10B: Ins (as sec
10A) 1930 No 18, sec 179 (d). Renumbered 1982 No 123, Sch 2 (8). Am 1989 No
153, Sch 1 (10).
10CImmediate suspension of driver
licence in certain circumstances
(1)
If a person is charged by a member of the Police
Force with an offence under section 4E (1F), (1G) or (7) or section 4F (7),
the same or another member of the Police Force may, at any time within 48
hours after the person has been charged, give the person a notice, in a form
approved by the Authority:
(a)
informing the person that every driver licence
held by the person is suspended:
(i)
on and from a date specified in the notice,
or
(ii)
if the notice so specifies—immediately on
receipt of the notice,
until the charge is heard and determined by a court (or
until the charge is withdrawn, if that should happen), and
(b)
informing the person of the right of appeal
conferred by section 10E, and
(c)
requiring the person:
(i)
to surrender every such driver licence, on or
before a date specified in the notice, to a member of the Police Force,
or
(ii)
if the notice so specifies—to surrender
every such driver licence in the person’s possession immediately to the
member of the Police Force who gave the person the
notice.
(2)
Any driver licences held by a person to whom a
notice under this section is given are suspended, in accordance with the terms
of the notice, until the charge is heard and determined by a court or
withdrawn.
(3)
Particulars of each notice given under this
section are to be forwarded to the Authority immediately after the notice is
given.
(4)
A person who is given a notice under this section
and who does not surrender his or her driver licences in compliance with the
notice is guilty of an offence.
(5)
If on the determination of the charge by a court
the person is disqualified from holding or obtaining a driver licence for a
specified time:
(a)
the court must take into account the period of
suspension under this section when deciding whether to make any order under
section 10A, and
(b)
to the extent (if any) that the court so orders,
a suspension under this section may be regarded as satisfying all or part of
any mandatory minimum period of disqualification required by that section to
be imposed when the charge is proved.
(6)
For the purposes of this section:
(a)
a person is charged with an offence when
particulars of the offence are notified in writing to the person by a member
of the Police Force, and
(b)
a charge is withdrawn when the person charged is
notified in writing of that fact by a member of the Police Force or when it is
withdrawn before the court, and
(c)
a charge is determined by a court when the
offence is proved or the information is dismissed.
s 10C: Ins 1989 No
153, Sch 1 (11). Am 1998 No 70, Sch 1 [56]; 1998 No 99, Sch 1.13 [31]
[32].
10DSuspension of driving
privileges of visiting driver
(1)
If:
(a)
a person is charged by a member of the Police
Force with an offence under section 4E (1F), (1G) or (7) or section 4F (7),
and
(b)
the person is not the holder of a driver licence
but, being the holder of a licence or permit issued in a place outside New
South Wales, has the benefit of any provision of the Road
Transport (Driver Licensing) Act 1998 or any regulations
under that Act conferring on the person authority to drive in New South
Wales,
the same or another member of the Police Force may, at
any time within 48 hours after the person has been charged, give the person a
notice, in a form approved by the Authority, informing the person:
(c)
that his or her authority to drive in New South
Wales is suspended:
(i)
on and from a date specified in the notice,
or
(ii)
if the notice so specifies—immediately on
receipt of the notice,
until the charge is heard and determined by a court or
is withdrawn (if that should happen), and
(d)
of the right of appeal conferred by section
10E.
(2)
Any authority of a person to whom a notice under
this section is given to drive in New South Wales is suspended, in accordance
with the terms of the notice, until the charge is heard and determined by a
court or withdrawn.
(3)
Particulars of each notice given under this
section are to be forwarded to the Authority immediately after the notice is
given.
(4)
For the purposes of this section:
(a)
a person is charged with an offence when
particulars of the offence are notified in writing to the person by a member
of the Police Force, and
(b)
a charge is withdrawn when the person charged is
notified in writing of that fact by a member of the Police Force or when it is
withdrawn before the court, and
(c)
a charge is determined by a court when the
offence is proved or the information is dismissed.
s 10D: Ins 1989 No
153, Sch 1 (11). Am 1998 No 70, Sch 1 [57]; 1998 No 99, Sch 1.13 [33]
[34].
10EAppeal against suspension of
driver licence
(1)
A person whose driver licence is suspended under
section 10C, or whose authority to drive in New South Wales is suspended under
section 10D, may, at any time before the charge that occasioned the suspension
has been heard and determined by a court or withdrawn, appeal against the
suspension to a Local Court constituted by a Magistrate.
(2)
The suspension is not stayed by lodgment of an
appeal under this section.
(3)
The court:
(a)
is not to uphold the appeal unless it is
satisfied that there are exceptional circumstances justifying a lifting of the
suspension, and
(b)
is not, for the purposes of this subsection, to
take into account the circumstances of the offence.
s 10E: Ins 1989 No
153, Sch 1 (11). Am 1998 No 99, Sch 1.13 [35].
10EAHabitual traffic
offenders—mandatory disqualifications after 3 convictions within 5
years
(1)
In this section, a relevant offence means an offence
committed after the commencement of this section, being:
(a)
any of the following offences of which a person
has been convicted by a court in this State:
(i)
a major offence,
(ii)
an offence under section 4A (1A) or
(5B),
(iii)
an offence under section 6
(1C),
(iv)
an offence under section 7A (2) (a), (b) or (c),
or
(b)
an offence of which a person has been convicted
by a court in another State or Territory that would be an offence of the kind
referred to in paragraph (a) if it had been committed in this
State.
A relevant offence includes an offence of the
kind referred to in paragraph (a) in respect of which the charge is found
proven (but without proceeding to a conviction) under section 556A of the
Crimes Act 1900 if the offence would, if
it were a relevant offence, give rise to the declaration of the person under
this section as a habitual traffic offender. In that case, a reference in this
section to the conviction of the person for a relevant offence includes a
finding that the charge for the offence is proven.
(2)
A person is, by this section, declared to be a
habitual traffic offender if:
(a)
a court in this State convicts the person of a
relevant offence, and
(b)
the person has, in the period of 5 years before
the conviction, also been convicted of at least 2 other relevant offences
committed on different occasions.
(3)
The declaration of a person as a habitual traffic
offender by this section may be quashed by a court that convicts the person of
a relevant offence (at the time of the conviction or at a later time) if it
determines that the disqualification imposed by the declaration is a
disproportionate and unjust consequence having regard to the total driving
record of the person and the special circumstances of the
case.
(4)
If a person is declared by this section to be a
habitual traffic offender, the person is disqualified by the declaration (and
without any specific order of a court) for a period of 5 years from holding a
driver licence, except as provided by this section.
(5)
If the court that convicts the person of the
offence giving rise to the declaration thinks fit, the court may order a
longer period of disqualification (including disqualification for
life).
(6)
If the court that convicts the person of the
offence giving rise to the declaration determines that a 5-year
disqualification is a disproportionate and unjust consequence having regard to
the total driving record of the person and the special circumstances of the
case, the court may order a shorter period of disqualification (but not
shorter than 2 years).
(7)
If a court quashes a declaration or orders a
shorter or longer period of disqualification, the court must state its reasons
for doing so.
(8)
A declaration or disqualification under this
section cannot be appealed to any court whether under this or any other
Act.
(9)
A disqualification under this section is in
addition to any penalty imposed for the offence giving rise to the
declaration.
(10)
A declaration of a habitual traffic offender
ceases to be in force when the period of disqualification imposed by the
declaration is completed.
(11)
The period of any disqualification under this
section does not commence until all other disqualifications, and all other
periods of licence cancellation or suspension, imposed on the person by or
under this or any other Act have been completed.
(12)
Further declarations have effect by this section
even though they occur while an existing declaration is in force, and the
consequent periods of disqualification do not commence until all existing
disqualifications under this section have been completed. It does not matter
that some of the relevant offences giving rise to a further declaration also
gave rise to an earlier declaration.
(13)
If, while an existing disqualification under this
section is in force, the person is disqualified by a court or automatically
under another provision of this or any other Act, that further
disqualification does not commence until all existing disqualifications under
this section have been completed.
(14)
The Authority is required to give a written
warning to the holders of driver licences who are liable to be declared to be
habitual traffic offenders if they are convicted of another relevant offence.
The declaration of a habitual traffic offender is not invalid merely because
of a failure to give the warning, but any such failure may be taken into
account by a court when determining whether a declaration should be
quashed.
s 10EA: Ins 1998 No
70, Sch 1 [58]. Am 1998 No 99, Schs 1.13 [30] [36] (am 1999 No 31, Sch 2.36
[1]), 2 [18].