2009 THE LEGISLATIVE ASSEMBLY FOR THE AUSTRALIAN CAPITAL TERRITORY (As presented) (Mr Jeremy Hanson) Road Transport (Alcohol and Drugs) (Random Drug Testing) Amendment Bill 2009 Contents Page 1 Name of Act 2 2 Commencement 2 3 Legislation amended 2 4 Offences against Act--application of Criminal Code etc Section 4, note 1 2 5 Section 5 3 6 Approval of operators, analysts and laboratories New section 6 (1A) 4 7 Sections 11 and 12 5 J2009-769 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Page 8 New section 12A 8 9 Precautions for privacy Section 13 10 10 Section 14 heading 10 11 Section 14 (1) 10 12 Section 14 (3) 10 13 Section 14 (3) (a) 11 14 Taking blood samples from people in custody Section 15 (1) (a) and (b) 11 15 Analysis of blood samples Section 15A (1) 11 16 Section 15A (2) (a) 12 17 Section 15A (3) and (4) 12 18 Medical examinations Section 16 (1) (a) (i) 12 19 Protection of police officers and medical staff Section 18 (3) (a) 12 20 Section 18 (3) (c) 12 21 New section 20 13 22 New sections 22A and 22B 14 23 Section 27 heading 15 24 Section 27 (a) 15 25 Certificate of evidence New section 41 (1) (aa) 16 26 New section 41 (1) (ba) 17 27 Section 41 (1) (c) 18 28 Section 41 (1) (e) (iii) 19 29 New section 42AA 19 30 New section 42C 20 31 Dictionary, new definitions 20 32 Dictionary, definitions of approved analyst and approved breath analysis instrument 21 33 Dictionary, new definition of approved drug screening device 21 34 Dictionary, definition of approved operator 21 35 Dictionary, new definition of approved oral fluid analysis instrument 21 contents 2 Road Transport (Alcohol and Drugs) (Random Drug Testing) Amendment Bill 2009 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Page 36 Dictionary, definition of approved screening device 22 37 Dictionary, new definition of assessment of drug impairment 22 38 Dictionary, definition of disqualifying offence 22 39 Dictionary, new definition of oral fluid analysis 23 40 Dictionary, definition of screening test 23 Road Transport (Alcohol and Drugs) (Random Drug contents 3 Testing) Amendment Bill 2009 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] THE LEGISLATIVE ASSEMBLY FOR THE AUSTRALIAN CAPITAL TERRITORY (As presented) (Mr Jeremy Hanson) Road Transport (Alcohol and Drugs) (Random Drug Testing) Amendment Bill 2009 A Bill for An Act to amend the Road Transport (Alcohol and Drugs) Act 1977 The Legislative Assembly for the Australian Capital Territory enacts as follows: J2009-769 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] 1 1 Name of Act 2 This Act is the Road Transport (Alcohol and Drugs) (Random Drug 3 Testing) Amendment Act 2009. 4 2 Commencement 5 This Act commences on a day fixed by the Minister by written 6 notice. 7 Note 1 The naming and commencement provisions automatically commence on 8 the notification day (see Legislation Act, s 75 (1)). 9 Note 2 A single day or time may be fixed, or different days or times may be 10 fixed, for the commencement of different provisions (see Legislation 11 Act, s 77 (1)). 12 Note 3 If a provision has not commenced within 6 months beginning on the 13 notification day, it automatically commences on the first day after that 14 period (see Legislation Act, s 79). 15 3 Legislation amended 16 This Act amends the Road Transport (Alcohol and Drugs) Act 1977. 17 4 Offences against Act--application of Criminal Code etc 18 Section 4, note 1 19 insert 20 · s 20 (Driving while impaired by drug or blood drug concentration 21 exceeded) 22 · s 22A (Refusing to provide oral fluid sample) 23 · s 22B (Refusing to undergo drug assessment) page 2 Road Transport (Alcohol and Drugs) (Random Drug Testing) Amendment Bill 2009 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] 1 5 Section 5 2 substitute 3 5 Approval of screening devices 4 (1) The Minister may approve a device for this subsection (an approved 5 alcohol screening device) if the Minister considers that the device-- 6 (a) is designed and made to indicate, when a sample of the breath 7 of a person is exhaled into the device, whether alcohol is 8 present in the person's blood and, if so, to give an indication of 9 the concentration of alcohol in the person's blood; and 10 (b) is suitable for use in screening tests under part 2. 11 (2) The Minister may approve a device for this subsection (an approved 12 drug screening device) if the Minister considers that the 13 instrument-- 14 (a) is designed and made to indicate, when a sample of oral fluid 15 of a person is collected in the device by the person chewing or 16 sucking on it (or a particular part of it), whether a drug is 17 present in the person's oral fluid and, if so, to give an 18 indication of the concentration of the drug in the person's oral 19 fluid; and 20 (b) is suitable for use in screening tests under part 2. 21 (3) An approval is a notifiable instrument. 22 Note A notifiable instrument must be notified under the Legislation Act. Road Transport (Alcohol and Drugs) (Random Drug page 3 Testing) Amendment Bill 2009 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] 1 5A Approval of analysis instruments 2 (1) The Minister may approve an instrument for this subsection (an 3 approved breath analysis instrument) if the Minister considers that 4 the instrument-- 5 (a) is designed and made to ascertain the concentration of alcohol 6 present in a sample of a person's breath and can record the 7 concentration in grams per 100mL of blood; and 8 (b) is suitable for use in analysis under part 2. 9 (2) The Minister may approve an instrument for this subsection (an 10 approved oral fluid analysis instrument) if the Minister considers 11 that the instrument-- 12 (a) is designed and made to ascertain the presence of a drug in a 13 sample of the person's oral fluid and can record the 14 concentration whether by a particular figure, level or 15 percentage; and 16 (b) is suitable for use in analysis under part 2. 17 (3) An approval is a notifiable instrument. 18 Note A notifiable instrument must be notified under the Legislation Act. 19 6 Approval of operators, analysts and laboratories 20 New section 6 (1A) 21 insert 22 (1A) The chief police officer may authorise a police officer to carry out 23 oral fluid analyses if the officer has-- 24 (a) undergone a course approved by the Minister as a course for 25 the instruction of police officers in the carrying out of oral 26 fluid analyses; and 27 (b) completed the course to the satisfaction of the chief police 28 officer. page 4 Road Transport (Alcohol and Drugs) (Random Drug Testing) Amendment Bill 2009 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] 1 7 Sections 11 and 12 2 substitute 3 11 Detention for breath or oral fluid analysis 4 (1) This section applies if-- 5 (a) a person undergoes a screening test under a requirement made 6 by a police officer under section 8, section 9 or section 10 and 7 an approved alcohol screening device indicates to the police 8 officer-- 9 (i) that the concentration of alcohol in the person's blood is 10 at least the prescribed concentration; or 11 (ii) for a person the police officer has reasonable grounds to 12 believe is a special driver--that the concentration of 13 alcohol in the person's blood is at least 0.02g of alcohol 14 per 100mL of blood; or 15 (b) a person undergoes a screening test under a requirement made 16 by a police officer under section 8, section 9 or section 10 and 17 an approved drug screening device indicates to the police 18 officer that-- 19 (i) a drug for which there is a prescribed concentration is 20 present in the person's oral fluid and the concentration of 21 the drug is at least the prescribed concentration; or 22 (ii) a drug for which there is no prescribed concentration is 23 present in the person's oral fluid; or 24 (c) a person who has been required by a police officer under 25 section 8, section 9 or section 10 to undergo a screening test 26 refuses to undergo the screening test; or Road Transport (Alcohol and Drugs) (Random Drug page 5 Testing) Amendment Bill 2009 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] 1 (d) a person who has been required by a police officer under 2 section 8, section 9 or section 10 to undergo a screening test 3 fails to undergo the screening test in accordance with the 4 direction of the police officer. 5 (2) The police officer may take the person into custody. 6 (3) If the person is taken into custody, a police officer must take the 7 person, as soon as practicable, to a police station or another 8 convenient place to carry out a breath analysis, an oral fluid analysis 9 or both for the person. 10 (4) In this section: 11 prescribed concentration, of a drug means-- 12 (a) for a prescribed illicit drug--any concentration of the drug 13 present in the blood or oral fluid of a person; and 14 (b) for any other drug--the concentration prescribed by regulation. 15 prescribed illicit drug means-- 16 (a) methylamphetamine; or 17 (b) delta-9-tetrahydrocannabinol; or 18 (c) any other drug prescribed by regulation. 19 12 Breath or oral fluid analysis 20 (1) A person who has been taken into custody under section 11 must 21 give, in accordance with the reasonable directions of a police 22 officer, either or both of the following (as directed by the police 23 officer): 24 (a) a sample of the person's breath; 25 (b) a sample of the person's oral fluid. 26 (2) An analysis of breath must be carried out by an approved operator 27 using an approved breath analysis instrument. page 6 Road Transport (Alcohol and Drugs) (Random Drug Testing) Amendment Bill 2009 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] 1 (3) An analysis of oral fluid must be carried out by an approved 2 operator using an approved oral fluid analysis instrument. 3 (4) A regulation may make provision about the following: 4 (a) the procedures to be followed by an approved operator 5 immediately before, during, and immediately after, carrying 6 out a breath analysis or oral fluid analysis; 7 (b) the conditions that must exist for the use of a particular 8 approved analysis instrument; 9 (c) the conditions during which a particular approved analysis 10 instrument must not be used; 11 (d) the results that must be obtained from procedures to be 12 followed immediately after carrying out a breath or oral fluid 13 analysis and without which the analysis must be disregarded 14 for this Act. 15 (5) If, because of a regulation made for subsection (4) (d), an analysis 16 must be disregarded in relation to a person, a police officer may 17 require the person to give, in accordance with the reasonable 18 directions of the officer, another sample of the person's breath or 19 oral fluid for analysis using another approved analysis instrument. 20 (6) As soon as practicable after the analysis has been carried out, the 21 approved operator who carried out the analysis must give the person 22 a written statement, signed by the operator, containing the 23 particulars required by regulation. Road Transport (Alcohol and Drugs) (Random Drug page 7 Testing) Amendment Bill 2009 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] 1 8 New section 12A 2 insert 3 12A Assessment of drug impairment 4 (1) This section applies to a person if any 1 or more of the following 5 paragraphs applies to the person: 6 (a) the person is the driver of a motor vehicle on a public street or 7 in a public place; 8 (b) a police officer has reasonable cause to suspect that the person 9 was the driver of a motor vehicle on a public street or in a 10 public place; 11 (c) a motor vehicle is involved in an accident on a public street or 12 in a public place and-- 13 (i) a police officer has reasonable cause to suspect that the 14 person was the driver of the motor vehicle at the time of 15 the accident; or 16 (ii) a police officer has reasonable cause to suspect that the 17 person was in the vehicle at the time of the accident, but 18 the police officer does not know or has doubt about who 19 was the driver of the vehicle at the time of the accident; 20 (d) a police officer has reasonable cause to suspect that the person 21 has committed an offence of culpable driving; 22 (e) the person has been required to undergo a screening test under 23 section 8, section 9 or section 10; 24 (f) the person has been required to give a breath or oral fluid 25 sample under section 12. page 8 Road Transport (Alcohol and Drugs) (Random Drug Testing) Amendment Bill 2009 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] 1 (2) If a police officer has reasonable cause to suspect that the person's 2 behaviour or appearance indicates that the person may be impaired 3 for a reason other than alcohol alone, the police officer may require 4 the person to undergo an assessment of drug impairment. 5 (3) For the purpose of requiring someone to undergo an assessment of 6 drug impairment, a police officer may take the person into custody. 7 (4) If the person is taken into custody, a police officer must take the 8 person, as soon as practicable, to a police station or another 9 convenient place to carry out the assessment. 10 (5) The person must undergo an assessment of drug impairment in 11 accordance with the reasonable directions of a police officer. 12 (6) An assessment of drug impairment must be carried out-- 13 (a) by a police officer authorised by the chief police officer to 14 carry out assessments of drug impairment; and 15 (b) in accordance with the procedure prescribed by regulation; and 16 (c) unless a particular time is prescribed by regulation--within the 17 reasonable time needed to carry out the assessment. 18 (7) The carrying out of an assessment of drug impairment must be 19 videorecorded unless the prosecution satisfies the court that it was 20 not practicable in the circumstances to make a video recording. 21 (8) If a person who undergoes an assessment of drug impairment is 22 subsequently charged with an offence against section 20, a copy of 23 the video recording (if any) must be served with the summons or, if 24 a summons is not issued, not later than 7 days after the day the 25 person is charged with the offence. Road Transport (Alcohol and Drugs) (Random Drug page 9 Testing) Amendment Bill 2009 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] 1 9 Precautions for privacy 2 Section 13 3 omit 4 breath analysis 5 substitute 6 breath or oral fluid analysis 7 10 Section 14 heading 8 substitute 9 14 Restrictions on screening tests and breath and oral fluid 10 analyses 11 11 Section 14 (1) 12 omit everything before paragraph (a), substitute 13 (1) A police officer must not require a person to undergo a screening 14 test under section 8, section 9 or section 10, to provide a sample of 15 the person's breath or oral fluid for analysis under section 12, or to 16 undergo an assessment of drug impairment under section 12A, and a 17 police officer must not begin or continue the analysis under 18 section 12 or the assessment under section 12A-- 19 12 Section 14 (3) 20 omit everything before paragraph (a), substitute 21 (3) A police officer must not require a person to undergo a screening 22 test under section 8, section 9 or section 10, to provide a sample of 23 the person's breath or oral fluid for analysis under section 12, or to 24 undergo an assessment of drug impairment under section 12A-- page 10 Road Transport (Alcohol and Drugs) (Random Drug Testing) Amendment Bill 2009 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] 1 13 Section 14 (3) (a) 2 substitute 3 (a) if it appears to the police officer that it may, because of injury 4 suffered by the person or otherwise, be dangerous or not 5 practicable for the person to undergo the screening test, to 6 provide the sample or to undergo the assessment; or 7 14 Taking blood samples from people in custody 8 Section 15 (1) (a) and (b) 9 substitute 10 (a) a police officer does not, because of section 14 (3) (a) or (b) 11 require a person to undergo a screening test, to provide a 12 sample of breath or oral fluid for analysis or to undergo an 13 assessment of drug impairment; or 14 (b) because the analysis instrument available is not in working 15 order or an approved analysis instrument is not available, it is 16 not practicable to carry out the breath or oral fluid analysis; or 17 (c) because it is not practicable to carry out the assessment of drug 18 impairment; 19 15 Analysis of blood samples 20 Section 15A (1) 21 substitute 22 (1) If only 1 sealed container of a particular person's blood that has 23 been taken under section 15 or section 15AA has been put in a 24 one-way box for collection by an approved analyst, the analyst must 25 analyse the blood to ascertain-- 26 (a) the concentration of alcohol in the blood; and 27 (b) if asked by a police officer to do so--the concentration of 28 drugs in the blood. Road Transport (Alcohol and Drugs) (Random Drug page 11 Testing) Amendment Bill 2009 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] 1 16 Section 15A (2) (a) 2 substitute 3 (a) analyse the blood in 1 of the containers to ascertain-- 4 (i) the concentration of alcohol in the blood; and 5 (ii) if asked by a police officer to do so--the concentration of 6 drugs in the blood; and 7 17 Section 15A (3) and (4) 8 omit 9 18 Medical examinations 10 Section 16 (1) (a) (i) 11 substitute 12 (i) has been required to undergo a screening test, to provide 13 a sample of his or her breath or oral fluid for analysis or 14 to undergo an assessment of drug impairment; and 15 19 Protection of police officers and medical staff 16 Section 18 (3) (a) 17 substitute 18 (a) if the sample of the person's breath or oral fluid has been 19 analysed--the time when the approved operator gives the 20 person the written statement mentioned in section 12 (6); or 21 20 Section 18 (3) (c) 22 substitute 23 (c) if the person is required to undergo an assessment of drug 24 impairment--the period mentioned in section 12A (6) (c) ends; 25 or page 12 Road Transport (Alcohol and Drugs) (Random Drug Testing) Amendment Bill 2009 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] 1 (d) the end of whichever of the periods mentioned in section 14 (1) 2 applies in relation to the person. 3 21 New section 20 4 insert 5 20 Driving while impaired by drug or blood drug 6 concentration exceeded 7 (1) A person commits an offence if the person-- 8 (a) drives a motor vehicle on a public street or in a public place; 9 and 10 (b) is impaired by a drug. 11 Maximum penalty: 12 (a) for an offence by a first offender--10 penalty units; and 13 (b) for an offence by a repeat offender--25 penalty units, 14 imprisonment for 3 months or both. 15 (2) A person commits an offence if the person-- 16 (a) has been the driver of a motor vehicle on a public street or in a 17 public place; and 18 (b) has, within the relevant period, a concentration of drugs in the 19 person's blood equal to or more than the prescribed 20 concentration. 21 Maximum penalty: 22 (a) for an offence by a first offender--10 penalty units; and 23 (b) for an offence by a repeat offender--25 penalty units, 24 imprisonment for 3 months or both. Road Transport (Alcohol and Drugs) (Random Drug page 13 Testing) Amendment Bill 2009 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] 1 (3) In this section: 2 prescribed concentration--see section 11 (4). 3 relevant period means the period beginning when the person 4 stopped being the driver of the vehicle and ending at the latest time 5 when-- 6 (a) a breath or oral fluid analysis of the person may be carried out 7 under this Act; or 8 (b) if section 15 (Taking blood samples from people in custody) or 9 section 15AA (Taking blood samples from people in hospital) 10 applies--a sample of the person's blood may be taken under 11 that section. 12 22 New sections 22A and 22B 13 insert 14 22A Refusing to provide oral fluid sample 15 (1) This section applies to a person who-- 16 (a) has been the driver of a motor vehicle on a public street or in a 17 public place; and 18 (b) has, in accordance with this Act, been required to provide a 19 sample of oral fluid for analysis. 20 (2) The person commits an offence if-- 21 (a) the person refuses to provide a sample of oral fluid for 22 analysis; or 23 (b) the person fails to provide a sample of oral fluid in accordance 24 with reasonable directions of a police officer. 25 Maximum penalty: 30 penalty units. page 14 Road Transport (Alcohol and Drugs) (Random Drug Testing) Amendment Bill 2009 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] 1 22B Refusing to undergo drug assessment 2 (1) This section applies to a person who-- 3 (a) has been the driver of a motor vehicle on a public street or in a 4 public place; and 5 (b) has, in accordance with this Act, been required to undergo an 6 assessment of drug impairment. 7 (2) The person commits an offence if-- 8 (a) the person refuses to undergo an assessment of drug 9 impairment; or 10 (b) the person fails to undergo an assessment of drug impairment 11 in accordance with reasonable directions of a police officer. 12 Maximum penalty: 30 penalty units. 13 23 Section 27 heading 14 substitute 15 27 Imprisonment--s 22, s 22A, s 22B, s 23 and s 24 offences 16 24 Section 27 (a) 17 substitute 18 (a) a person is convicted of an offence against any of the following 19 provisions: 20 · section 22 (Refusing to provide breath sample); 21 · section 22A (Refusing to provide oral fluid sample); 22 · section 22B (Refusing to undergo drug assessment); 23 · section 23 (Refusing blood test etc); 24 · section 24 (Driving under the influence of intoxicating 25 liquor or a drug); and Road Transport (Alcohol and Drugs) (Random Drug page 15 Testing) Amendment Bill 2009 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] 1 25 Certificate of evidence 2 New section 41 (1) (aa) 3 insert 4 (aa) a certificate purporting to be signed by a police officer and 5 stating-- 6 (i) that the police officer was on a date stated in the 7 certificate an approved operator; and 8 (ii) that, at a place and at a time and on a date stated in the 9 certificate, a person named in the certificate was required 10 by a stated police officer to provide a sample of the 11 person's oral fluid for analysis by an approved oral fluid 12 analysis instrument; and 13 (iii) the instrument used in the analysis, by reference to its 14 model number, patent number and serial number; and 15 (iv) that the approved oral fluid analysis instrument was in 16 proper working order; and 17 (v) the procedures followed and precautions taken 18 immediately before the breath analysis, during the breath 19 analysis and immediately after the completion of the 20 breath analysis; and 21 (vi) that the person named in the certificate provided a sample 22 of the person's oral fluid for analysis in accordance with 23 the directions of the police officer who made the 24 requirement; and 25 (vii) the steps that were taken to ensure that it was not readily 26 apparent to members of the public that the oral fluid 27 analysis was being carried out; and 28 (viii) that, in following the procedures for which a regulation 29 makes provision that stated results are to be obtained, the 30 results stated in the certificate were obtained; and page 16 Road Transport (Alcohol and Drugs) (Random Drug Testing) Amendment Bill 2009 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] 1 (ix) that the result recorded or shown by the instruments as 2 the result of the analysis was a particular figure, level or 3 percentage or was not less than and not more than a 4 particular figure, level or percentage; and 5 (x) that, as soon as practicable after the oral fluid analysis 6 was carried out, the police officer signed and gave to the 7 person mentioned in subparagraph (ii) the statement 8 required by section 12 (6); 9 is evidence of the matters stated in the certificate; and 10 26 New section 41 (1) (ba) 11 insert 12 (ba) a certificate purporting to be signed by a police officer and 13 stating-- 14 (i) that the police officer was on a date stated in the 15 certificate an approved operator; and 16 (ii) that, at a place and at a time and on a date stated in the 17 certificate, a person named in the certificate was required 18 by a stated police officer to provide a sample of the 19 person's oral fluid for analysis by an approved oral fluid 20 analysis instrument; and 21 (iii) the instrument available to be used in the analysis, by 22 reference to its model number, patent number and serial 23 number; and 24 (iv) that the approved oral fluid analysis instrument was in 25 proper working order; and 26 (v) the procedures followed immediately before the person 27 was required to provide a sample of the person's oral 28 fluid for analysis and the results obtained in following 29 those procedures; and Road Transport (Alcohol and Drugs) (Random Drug page 17 Testing) Amendment Bill 2009 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] 1 (vi) that the person refused or failed to provide a sample of 2 his or her breath for analysis; 3 is evidence of the matters stated in the certificate; and 4 27 Section 41 (1) (c) 5 substitute 6 (c) a written statement mentioned in section 12 (6) that is a 7 print-out from an approved breath analysis instrument or 8 approved oral fluid analysis instrument is evidence of the 9 matters stated in the statement; and 10 (ca) a certificate purporting to be signed by a police officer and 11 stating-- 12 (i) that the police officer was on a date stated in the 13 certificate authorised by the chief police officer to carry 14 out assessments of drug impairment; and 15 (ii) that, at a place and time and on a date stated in the 16 certificate, a person named in the certificate was required 17 by a stated police officer to undergo an assessment of 18 drug impairment; and 19 (iii) the procedures followed in carrying out the assessment of 20 drug impairment; 21 is evidence of the matters stated in the certificate; and 22 (cb) a certificate purporting to be signed by a police officer and 23 stating-- 24 (i) that the police officer was on a date stated in the 25 certificate authorised by the chief police officer to carry 26 out assessments of drug impairment; and page 18 Road Transport (Alcohol and Drugs) (Random Drug Testing) Amendment Bill 2009 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] 1 (ii) that, at a place and time and on a date stated in the 2 certificate, a person named in the certificate was required 3 by a stated police officer to undergo an assessment of 4 drug impairment; and 5 (iii) that the person refused or failed to undergo an assessment 6 of drug impairment; 7 is evidence of the matters stated in the certificate; and 8 28 Section 41 (1) (e) (iii) 9 omit 10 or to provide a sample of the person's breath for breath analysis 11 under section 12 (Breath analysis); 12 substitute 13 , to provide a sample of the person's breath or oral fluid for analysis 14 under section 12 (Breath or oral fluid analysis) or to undergo an 15 assessment of drug impairment under section 12A (Assessment of 16 drug impairment); 17 29 New section 42AA 18 after section 42, insert 19 42AA Effect of noncompliance--analysis of oral fluid 20 (1) This section applies if the court hearing a charge for an offence 21 against this Act arising out of the carrying out of an oral fluid 22 analysis is not satisfied that there has been compliance with every 23 provision of this Act relating to the carrying out of the analysis. 24 Note A reference to an Act includes a reference to the statutory instruments 25 made or in force under the Act, including regulations (see Legislation 26 Act, s 104). Road Transport (Alcohol and Drugs) (Random Drug page 19 Testing) Amendment Bill 2009 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] 1 (2) Unless the court is satisfied that the failure to comply with the 2 provisions of this Act mentioned in subsection (1) would not have 3 affected the result obtained in the analysis, the court must dismiss 4 the charge. 5 30 New section 42C 6 insert 7 42C Effect of noncompliance--refusal to give sample of oral 8 fluid 9 (1) This section applies if the court hearing a charge for an offence 10 against section 22A is not satisfied that there has been compliance 11 with every provision of this Act relating to that part of the carrying 12 out of an oral fluid analysis that is required to be carried out before 13 the sample of oral fluid is supplied. 14 Note A reference to an Act includes a reference to the statutory instruments 15 made or in force under the Act, including regulations (see Legislation 16 Act, s 104). 17 (2) Unless the court is satisfied that the failure to comply with the 18 provisions of this Act mentioned in subsection (1) was such that, 19 had the failure not happened and the oral fluid analysis taken place, 20 the result obtained in the analysis would have indicated the presence 21 of a drug, the court must dismiss the charge. 22 31 Dictionary, new definitions 23 insert 24 approved alcohol screening device means a device that is approved 25 by the Minister under section 5 (1). 26 approved analysis instrument means an approved breath analysis 27 instrument or an approved oral fluid analysis instrument. page 20 Road Transport (Alcohol and Drugs) (Random Drug Testing) Amendment Bill 2009 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] 1 32 Dictionary, definitions of approved analyst and approved 2 breath analysis instrument 3 substitute 4 approved analyst means a person who is appointed by the Minister 5 under section 6 (2). 6 approved breath analysis instrument means an instrument that is 7 approved by the Minister under section 5A (1). 8 33 Dictionary, new definition of approved drug screening 9 device 10 insert 11 approved drug screening device means a device that is approved by 12 the Minister under section 5 (2). 13 34 Dictionary, definition of approved operator 14 substitute 15 approved operator means-- 16 (a) for a breath analysis--a police officer who is authorised under 17 section 6 (1); and 18 (b) for an oral fluid analysis--a police officer who is authorised 19 under section 6 (1A). 20 35 Dictionary, new definition of approved oral fluid analysis 21 instrument 22 insert 23 approved oral fluid analysis instrument means a device that is 24 approved by the Minister under section 5A (2). Road Transport (Alcohol and Drugs) (Random Drug page 21 Testing) Amendment Bill 2009 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] 1 36 Dictionary, definition of approved screening device 2 omit 3 37 Dictionary, new definition of assessment of drug 4 impairment 5 insert 6 assessment of drug impairment, of a person, means an assessment 7 of drug impairment carried out on the person under section 12A. 8 38 Dictionary, definition of disqualifying offence 9 substitute 10 disqualifying offence means an offence against-- 11 (a) section 19 (Prescribed blood alcohol concentration exceeded); 12 or 13 (b) section 20 (Driving while impaired by drug or blood drug 14 concentration exceeded); or 15 (c) section 22 (Refusing to provide breath sample); or 16 (d) section 22A (Refusing to provide oral fluid sample); or 17 (e) section 22B (Refusing to undergo drug assessment); or 18 (f) section 23 (Refusing blood test etc); or 19 (g) section 24 (Driving under the influence of intoxicating liquor 20 or a drug); or 21 (h) another provision of this Act prescribed by regulation. page 22 Road Transport (Alcohol and Drugs) (Random Drug Testing) Amendment Bill 2009 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] 1 39 Dictionary, new definition of oral fluid analysis 2 insert 3 oral fluid analysis, in relation to a person, means an analysis of a 4 sample of the person's oral fluid carried out for this Act using an 5 approved oral fluid analysis instrument. 6 40 Dictionary, definition of screening test 7 substitute 8 screening test, for a person, means either or both of the following 9 (as directed by a police officer): 10 (a) a test of a sample of the person's breath using an approved 11 alcohol screening device; 12 (b) a test of a sample of the person's oral fluid using an approved 13 drug screening device. Road Transport (Alcohol and Drugs) (Random Drug page 23 Testing) Amendment Bill 2009 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] 1 Presentation speech Presentation speech made in the Legislative Assembly on 2009. 2 Notification Notified under the Legislation Act on 2009. 3 Republications of amended laws For the latest republication of amended laws, see www.legislation.act.gov.au. © Australian Capital Territory 2009 page 24 Road Transport (Alcohol and Drugs) (Random Drug Testing) Amendment Bill 2009 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au