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ROAD SAFETY AMENDMENT BILL 2014
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28 May 2014
Statement of Compatibility
MULDER
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ROAD SAFETY AMENDMENT BILL 2014
Statement of compatibility
Mr MULDER (Minister for Roads) tabled following statement in accordance with
Charter of Human Rights and Responsibilities Act 2006:
In accordance with section 28 of the Charter of Human Rights and
Responsibilities Act 2006 (charter act), I make this statement of
compatibility with respect to the Road Safety Amendment Bill 2014.
In my opinion, the Road Safety Amendment Bill 2014, as introduced to the
Legislative Assembly, is compatible with the human rights set out in the
charter act.
I base my opinion on the reasons outlined in this statement.
Page 1740
Overview of bill
The main purpose of the bill is to expand the circumstances in which a
drink-driving offender will be subject to an alcohol interlock requirement and
a driver licence or learner permit cancellation. To ensure the workload of the
court is not adversely affected by this reform, the bill will also create a
new VicRoads-operated administrative process for the imposition and removal of
alcohol interlock licence conditions for first time drink-driving offenders
with a blood or breath alcohol concentration (BAC) of less than 0.10.
The bill provides for the introduction of new interlock camera technology to
identify the driver. This will assist VicRoads and the courts to determine
whether alcohol readings detected by an alcohol interlock device should be
attributed to the offender or other persons sharing the vehicle.
This information will help to determine whether an offender has successfully
learned to separate drinking and driving behaviour.
The bill provides for the introduction of a cost recovery fee to recover from
drink-driving offenders the cost of operating the expanded Victorian alcohol
interlock program.
The bill will also create a new combined drink and drug driving offence.
The bill will amend the Transport Accident Act 1986, the Accident Compensation
Act 1985 and the Workplace Injury Rehabilitation and Compensation Act 2013.
Under current legislation, a person can lose some or all of his or her
entitlement to particular kinds of compensation if he or she is convicted or
found guilty of a drink-driving or a drug-driving offence related to the
circumstances of the injury.
These amendments will ensure that a person who is convicted or found guilty of
the new drink and drug driving offence receives a reduction in compensation
payments equal to what he or she would have received if he or she had
committed a drug-driving offence alone or a drink-driving offence alone.
The bill will provide for the imposition of a 30-day vehicle impoundment
sanction on first time drink drivers with a blood or breath alcohol
concentration of 0.10 or more. The power of police to impound vehicles will
remain discretionary.
The bill will also extend a zero BAC requirement and introduce a mandatory
carriage of licence requirement for motorcyclists subject to a restricted
licence.
The bill will provide that where police officers are forced to enter and
remove vehicles which are causing an obstruction, or are unlawfully parked or
left standing so as to cause danger or traffic congestion, Victoria Police can
recover the costs of doing so from the registered operator of the vehicle.
Currently, they are only entitled to recover these costs from the owner.
The bill amends the Rail Management Act 1996 to enable access arrangements to
continue beyond their expiration date in May 2015. Access arrangements set out
the terms and conditions on which the transport service providers provide
access to the service, including the price for access and the standards to
which infrastructure must be maintained.
All declared rail transport services require access arrangements to be
approved by the Essential Services Commission.
Allowing access arrangements to continue beyond their expiration date in May
2015 will allow time for a complete review of the Victorian rail access
regime, which is currently being undertaken by the Department of Transport,
Planning and Local Infrastructure, to be finalised.
Human rights issues
Section 8 of the charter act provides that every person is equal before the
law and is entitled to the equal protection of the law without discrimination.
This includes protection from age-based discrimination.
The bill restates certain provisions in the Road Safety Act 1986 that impose
stronger driver licence sanctions on drink-driving offenders under 26 years of
age. Therefore, the right to equality is relevant.
However, the right is not limited because the bill does not, of itself, impose
any new age-based discriminatory measures. It merely restates provisions that
already specify licence sanctions that vary according to the age of the
offender. The rationale for imposing stronger licence sanctions on
drink-driving offenders under 26 years of age is that this group of offenders
is more vulnerable due to inexperience compared with other driver groups and
is overrepresented in traffic crashes resulting in serious injuries and
deaths.
Section 12 of the charter act provides that every person lawfully within
Victoria has the right to move freely within Victoria and to enter and leave
it and has the freedom to choose where to live.
The bill provides that a broader range of drink-driving and new
drink-drug-driving offenders will be subject to sanctions including the
cancellation of driver licences and learner permits and disqualification from
driving in Victoria for a specified period. The imposition of these sanctions
is relevant to the right to freedom of movement under section 12 of the
charter act because they prevent a person driving a vehicle for a specified
period.
However, the right to freedom of movement is not limited because the affected
person is free to use other forms of transport such as walking, cycling and
public transport. In addition, they are free to travel as passengers in
private vehicles provided that another person drives the vehicle.
Section 13 of the charter act provides that a person has the right not to have
his or her privacy unlawfully or arbitrarily interfered with.
The bill provides for the introduction of new types of interlocks that will
assist VicRoads and the courts to determine whether alcohol readings detected
by an alcohol interlock device should be attributed to the offender or other
persons sharing the vehicle. That technology might, for example, consist of a
camera module that forms part of the alcohol interlock device and records
photographs of persons using the alcohol interlock device. Therefore, the
right to privacy is relevant.
The fitment of an alcohol interlock device to a vehicle that is capable of
recording the identity of the driver can only be done with the consent of the
vehicle owner. Furthermore, it will be readily apparent to any person who uses
the vehicle that driver identification technology has been fitted to it.
Therefore, any person using the vehicle will be effectively providing their
consent to the recording of driver identification information when they enter
and use the vehicle.
Page 1741
The bill does not limit the right set out in section 13 of the charter act
because the requirements relating to driver identification technology are
authorised by law. Furthermore, the recording of driver identification
information is not done arbitrarily. Driver identification information is only
recorded in specific vehicles where the vehicle owner has consented to the
installation of an alcohol interlock device that incorporates driver
identification technology. Furthermore, the collected information is used for
the specific purpose of monitoring the relevant offender to determine whether
he or she has successfully separated drinking and driving behaviour. The
collected information can only be used in accordance with the strict use and
disclosure of information regime set out in part 7B of the Road Safety Act
1986.
The collected information also benefits the offender by providing him or her
with evidence in the event that another driver was responsible for a positive
breath test reading that otherwise may have resulted in an extension of their
interlock condition.
Section 20 of the charter act protects property rights and requires that a
person must not be deprived of his or her property other than in accordance
with the law.
The extension of the current vehicle impoundment scheme to include immediate
roadside impoundment for all drivers who record a BAC of 0.10 or more is
relevant to the right to property. People who drive a motor vehicle with a BAC
of 0.10 or more may have their vehicle immediately impounded by Victoria
Police members for a period of 30 days, thus depriving the person of their
property.
As the person can only be deprived of his or her property under the
impoundment process in accordance with the law, the right to property is not
limited in any way.
The creation in the bill of a new combined drink and drug offence is relevant
to property rights as a person who commits this offence may have his or her
vehicle impounded by Victoria Police. As the person can only be deprived of
his or her property under the impoundment process in accordance with the law,
the right to property is not limited in any way.
Section 25(1) of the charter act states that a person charged with a criminal
offence has the right to be presumed innocent until proved guilty according to
law.
The bill creates a new offence of combined drink and drug driving.
The separate offences of drink driving and drug driving already exist in the
Road Safety Act 1986. To assist with proving these offences there are
evidentiary provisions contained in section 48 of the Road Safety Act 1986.
These evidentiary provisions state that if it is established within 3 hours
after the alleged offence that a person had a certain concentration of alcohol
in his or her blood or breath, or that an illicit drug was present in his or
her blood or oral fluid, then it is presumed, until the contrary is proved,
that the alcohol or drug was present in the person's body at the time the
offence was committed. The new offence of combined drink and drug driving is
subject to the same evidentiary provisions that are currently available for
the separate offences of drink driving and drug driving.
The evidentiary provisions in section 48 of the Road Safety Act 1986 reverse
the onus of proof because, following a positive result in a test for alcohol
or drugs, a person is presumed to have alcohol or drugs in his or her system
at the time the offence occurred, until the contrary is proved. This is
relevant to the presumption of innocence. Although action against a person, in
the form of immediate licence suspension and vehicle impoundment, does happen
prior to a conviction or finding of guilt in court, a person must first test
positive to alcohol or illicit drugs before any action can be taken.
The presumption of innocence is not removed by the evidentiary provisions that
reverse the onus of proof. Ultimately a court will hear the matter and the
accused remains innocent until proven guilty. The evidentiary provisions are
important because they relate to evidence (such as when and how much alcohol
and drugs a person consumed) that may be solely within the knowledge of the
accused.
The reversal of the onus of proof in this instance is a reasonable limitation
on the presumption of innocence and assists with the prosecution of persons
who pose a road safety risk by drinking alcohol and taking illicit drugs and
then driving a vehicle. There is not a less restrictive means reasonably
available that would similarly assist with the prosecution of these types of
offences.
Section 27(2) of the charter act provides that a penalty must not be imposed
on any person for a criminal offence that is greater than the penalty that
applied to the offence when it was committed.
The bill provides for the imposition of cost recovery fees to recover from
drink-driving offenders the cost of operating the Victorian alcohol interlock
program.
The fees will be payable by any person that has an alcohol interlock fitted
under the program, including where the relevant offence was committed before
the commencement of the bill.
The imposition of a cost recovery fee does not limit the right set out in
section 27(2) of the charter act because the purpose of the fee is to recover
the costs of operating the Victorian alcohol interlock program and it is not
punitive in nature. Therefore, there is no issue of an increased penalty for a
criminal offence.
Terry Mulder, MP
Minister for Roads