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TRAFFIC (AMENDMENT) BILL 1990
NEW SOUTH WALES
EXPLANATORY NOTE
(This Explanatory Note relates to this Bill as introduced into Parliament)
The object of this Bill is to amend the Traffic Act 1909 with respect to:
(a) the taking and analysis of blood samples from drivers; and
(b) the sale, purchase and use of radar detecting devices and radar jammers; and
(c) permissible driving hours and speed limits for certain vehicles and drivers; and
(d) the permissible blood alcohol concentration for certain drivers.
The Bill makes related amendments to the provisions of the Crimes Act 1900 dealing
with the admissibility in criminal proceedings of certificates prepared for the purposes
of the Traffic Act 1909 and to the provisions of the Transport Administration Act 1988
dealing with the taking and analysis of blood and urine samples from railway workers.
Clause 1 specifies the short title of the proposed Act.
Clause 2 provides for the commencement of the proposed Act on a proclaimed day
or proclaimed days.
Clause 3 is a formal provision that gives effect to the Schedules of amendments to
the Traffic Act 1909.
Clause 4 is a formal provision that gives effect to the Schedule of amendments to
the Transport Administration Act 1988.
Clause 5 is a formal provision that gives effect to the Schedule of amendments to
the Crimes Act 1900.
Clause 6 is a validation of certain regulations concerning permissible driving hours
for coach drivers, to make it clear that those regulations apply to
such drivers
equally, whether or not a particular coach is a heavy motor vehicle.
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Traffic (Amendment) 1 9 9 0
SCHEDULE 1 - AMENDMENT OF TRAFFIC ACT 1909 IN RELATION TO
THE TAKING AND ANALYSIS OF BLOOD SAMPLES
Samples to be taken by nurses in certain cases
Section 4F requires a blood sample to be taken from a person who has been admitted
to hospital after a road accident. At present the section requires the sample to be taken
by the medical practitioner attending the person at the hospital. Schedule 1 (1) mends
the section so as to require the sample to be taken by a suitably qualified registered
nurse in a case where a medical practitioner is not present to attend the person
concerned. The nurse in such a case is given the same legal indenmities as a doctor in
the same circumstances.
Schedule 1 (2) (a) and (3) (b) make consequential amendments.
Procedure after sampling
When a blood sample is taken at a hospital under section 4F, the provisions of
section 4G currently require the sample to be divided into three parts. One part is given
to the person who provided the sample. The other two parts may be used for analysis. In
practice, only one of these latter samples has been used for analysis, the other being
retained for use in case the first is lost or stolen or adversely affected in some way. Due
to developments in methods of analysis and secure storage of samples, the second
sample is now considered unnecessary. Schedule 1 (2) (b) and (c) accordingly amend
section 4G so that the section will provide for a sample to be divided into only two puts
instead of three.
Testing of hospital blood sample for drugs
Blood samples taken at a hospital following a road accident are routinely tested for
the presence of alcohol, but are not tested for other drugs. Under the Act at present, the
only occasions on which a blood sample is tested for the presence of a drug other than
alcohol are when the sample is taken following the arrest of a motorist under section
5AA. Schedule l (2) (d)-(f) amend section 4G so as to enable a police officer to require
a blood sample taken at hospital following a road accident to be tested for other drugs as
well as alcohol, but only when the accident was not attended by police or where, for
some other reason, there opportunity for police to require the person from whom
the sample was taken to undergo a sobriety test.
Schedule 1 (3) (a) and (c) make consequential amendments to section 5AB, allowing
results of an analysis undertaken in accordance with section 4G (as mended) to be
given in evidence in a prosecution for driving under the influence of drugs.
Degree of accuracy of analysis
Schedule 1 (4) inserts a new section 17C, dealing with the interpretation of the result
of an analysis of blood or urine carried out for purposes of the Principal Act. The
scientific equipment and methods used in carrying out such an analysis produce a result
that is reliable only to a particular degree of accuracy. The effect of the new section is to
allow a certificate attesting to the result of an analysis to state the result in terms of a
minimum concentration of alcohol or drugs present in the sample concerned. The
specified minimum concentration is arrived at by subtracting from the figure produced
by the analysis an amount representing the greatest error that can be produced by the
proper employment of the analytical equipment and methods used. This minimum figure
SCHEDULE 2--AMENDMENT OF TRAFFIC ACT 1909 IN RELATION TO
RADAR DETECTORS AND JAMMERS
Schedule 2 (1) amends section 2 to insert defitions of "radar detecting device" and
"radar jamming device".
Schedule 2 (2) inserts new sections 4AD and 4AE. Under proposed section 4AD, it is
an offence:
(a) to buy or sell these devices or offer them for sale; or
(b) to drive or stand a motor vehicle on a public street if the vehicle has one of
these devices fitted or if one of these devices is being carried. in the vehicle.
Under proposed section 4AE, police can demand immediate surrender of a device
involved in a contravention of proposed section 4AD. If the device is on sale, it can be
required to be surrendered at the point of sale. If the device is fitted to a motor vehicle
and difficult to remove immediately, police can require the device to be surrendered at
an appointed time and place. Similarly, officers of the Roads and Traffic Authority who,
while inspecting a vehicle for any reason, come across such a device may serve a notice
on the owner of the vehicle requiring its surrender to police. In addition, a court which
finds an offence proven with respect to a device can also order the surrender of the
device.
SCHEDULE 3--AMENDMENT OF TRAFFIC ACT 1909 IN RELATION TO
DRIVING HOURS AND SPEED LIMITS APPLYING TO CERTAIN
VEHICLES AND DRIVERS
Driving hours for coach drivers
The intent of clause 6, and of the amendments made to section 3 by Schedule 3 (1),
is to remove any doubt that regulations may be made with respect to driving hours,
mandatory rest periods and associated requirements for drivers of coaches (as defined in
section 2) whether or not they are heavy motor vehicles, and that regulations already
made for that purpose are valid.
Speed limits
Schedule 3 (2) amends section 4A to make it clear that the heavy penalties provided
by the Act for exceeding the speed limit by more than 45 kilometres per hour apply
equally whether the speed limit concerned is fixed by the Act itself, or by a road sign, or
by regulations relating to particular vehicles or drivers (for example, in relation to
learner drivers or drivers of heavy motor vehicles or coaches).
Schedule 3 (3) makes a consequential amendment.
SCHEDULE 4-AMENDMENT OF TRAFFIC ACT 1909 IN RELATION TO
PERMISSIBLE CONCENTRATION OF ALCOHOL
Schedule 4 (1) amends section 4E, which regulates the blood alcohol content of
drivers. The 0.02 limit that now applies to learners, provisional licensees and unlicensed
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Traffic (Amendment) 1 9 9 0
drivers is extended by the amendment to a wider class of drivers. The persons affected
are:
(a) any person under 25 years of age, unless the person has held a licence (apart
from a learner's licence) for at least 3 years; and
(b) drivers of public passenger vehicles (i.e. buses, taxis and private hire cars); and
(c) drivers of coaches and heavy motor vehicles; and
(d) drivers of vehicles carrying radioactive substances and dangerous goods.
Schedule 4 (2) makes a consequential amendment (for consistency of expression).
SCHEDULE 5--AMENDMENT OF TRANSPORT ADMINISTRATION ACT
1988, SCH. 4 (RAILWAY STAFF-ALCOHOL OR OTHER DRUGS)
Schedule 4 to the Transport Administration Act 1988 makes provision for the testing
of blood and urine samples from railway workers for alcohol and other drugs in cases
where they are engaged in work affecting the safety of the public. Schedule 5 to the Bill
contains amendments similar to those contained in Schedule 1 in relation to motorists
The amendments:
(a) provide for the taking of a blood or urine sample by an appropriately qualified
registered nurse in cases where there is no medical practitioner in attendance at
the material time (Schedule 5 (1)-(4) and (6)); and
(b) specify the circumstances in which a blood or urine sample taken at hospital
after an accident may be tested for drugs other than alcohol (Schedule 5 (5))
and prevent the giving of evidence in relation to a sample that has been
analysed in other circumstances (Schedule 5 (7)).
SCHEDULE 6--AMENDMENT OF CRIMES ACT 1900
Schedule 6 amends section 414A of the Crimes Act 1900 to provide that a certificate,
prepared in accordance with either the Traffic Act 1909 or the Transport Administration
Act 1988, to the effect that the presence of drugs (other than alcohol) was detected in
the analysis of a blood sample obtained following a road accident, or of a blood or urine
sample from a railway worker, is not admissible in proceedings under the Drug Misuse
and Trafficking Act 1985 as evidence of the use or administration of a prohibited drug
within the meaning of that Act.