Traffic Act 1909 No 5

An Act to provide for the regulation of vehicles and of vehicular and pedestrian traffic; and for other purposes.

long title: Am 1978 No 122, Sch 2 (1); 1987 No 44, Sch 2 (1); 1988 No 110, Sch 1 (1).

Part 1 Preliminary

1 Name of Act

This Act may be cited as the Traffic Act 1909.

s 1: Am 1988 No 110, Sch 1 (2).

1A (Repealed)

s 1A: Ins 1980 No 158, sec 2 (a). Am 1982 No 123, Sch 2 (1). Rep 1988 No 110, Sch 1 (3).

2 Definitions

(1)  In this Act, unless the context or subject-matter otherwise indicates:

Analyst means:

(a)  any person employed by the Government as an analyst,

(b)  any person who is an analyst within the meaning of the Poisons and Therapeutic Goods Act 1966, or

(c)  a prescribed person or a person of a prescribed class or description.

Approved camera detection device means a device of a type approved by the Commissioner of Police by order published in the Gazette as being designed to take a photograph of a vehicle which is driven in contravention of a traffic control light signal displaying a red circle or a red arrow and to record on the photograph:

(a)  the date on which the photograph is taken,

(b)  the time and location at which the photograph is taken,

(c)  the direction and lane in which the vehicle activating the camera is travelling, and

(d)  the interval during which the red circle or red arrow has been continuously displayed immediately before the photograph is taken.

Approved camera recording device means a device of a type approved by the Commissioner of Police by order published in the Gazette as being designed for attachment to an approved speed measuring device for the purpose of taking photographs of vehicles being driven in excess of speed limits and for recording on any such photograph:

(a)  the speed at which any such vehicle is travelling (as measured by the approved speed measuring device), and

(b)  the date on which the photograph is taken, and

(c)  the time and location at which the photograph is taken, and

(d)  the speed limit which, according to section 4A (2), is applicable to the length of road or road related area at which the photograph is taken, and

(e)  the direction in which the vehicle is travelling (that is, towards or away from the device).

Approved speed measuring device means a device of a type approved by the Governor by order published in the Gazette as being designed to measure the speed at which a vehicle is travelling.

Authority means the Roads and Traffic Authority constituted under the Transport Administration Act 1988.

Breath analysing instrument means any instrument of a type approved by the Governor by order published in the Gazette as being designed to ascertain, by analysis of a person’s breath, the concentration of alcohol present in that person’s blood.

Breath analysis means a test carried out by a breath analysing instrument for the purpose of ascertaining, by analysis of a person’s breath, the concentration of alcohol present in that person’s blood.

Breath test means a test for the purpose of indicating the concentration of alcohol present in a person’s blood, carried out on that person’s breath by means of a device, not being a breath analysing instrument, of a type approved by the Governor by order published in the Gazette.

Coach means a motor vehicle which is:

(a)  constructed principally to carry persons, and

(b)  equipped to seat more than 8 adult persons, and

(c)  used to convey passengers for hire or reward or in the course of trade or business.

Court means court before which the hearing takes place.

District registry means any place appointed for the registration of motor vehicles or trailers and the licensing of drivers.

Driver means any person driving a vehicle, and includes any person riding a cycle, and drive includes ride and, in the case of a trailer, draw the trailer.

Driver licence means a driver licence within the meaning of the Road Transport (Driver Licensing) Act 1998.

Drug means:

(a)  alcohol,

(b)  a prohibited drug within the meaning of the Drug Misuse and Trafficking Act 1985, not being a substance specified in the regulations as being excepted from this definition, and

(c)  any other substance prescribed as a drug for the purposes of this definition.

Heavy motor vehicle means:

(a)  a motor vehicle that has a manufacturer’s gross vehicle mass exceeding 13.9 tonnes (being the maximum laden mass at which the manufacturer recommends the vehicle be operated), or

(b)  a motor vehicle and trailer combination that has a manufacturer’s gross combination mass exceeding 13.9 tonnes (being the maximum laden mass at which the manufacturer recommends the combination be operated).

Heavy truck means:

(a)  a motor vehicle (except a bus or a tram) with a GVM over 12 tonnes,

(b)  a motor vehicle (except a bus or tram) forming part of a combination if the total of the GVMs of the vehicles in the combination is over 12 tonnes,

with the GVM of a vehicle being the maximum loaded mass of the vehicle:

(c)  specified by the manufacturer on an identification plate on the vehicle, or

(d)  if there is no specification by the manufacturer on an identification plate on the vehicle or if the specification is not appropriate because the vehicle has been modified—certified by the Authority or a corresponding authority.

Horse includes any animal used for the carriage of persons or goods.

Hospital means:

(a)  any public hospital within the meaning of the Health Services Act 1997 controlled by an area health service or the Crown, and

(b)  a statutory health corporation or affiliated health organisation within the meaning of the Health Services Act 1997, and

(c)  any private hospital within the meaning of the Private Hospitals and Day Procedure Centres Act 1988.

Identification number, when used in relation to the engine, engine block or other prescribed part of a motor vehicle or trailer, means the number and any accompanying letters or symbols stamped on or otherwise affixed to that engine, engine block or part as a means of identifying that engine, engine block or part, but does not include any casting number or any number used as a means of identifying a class of engines, engine blocks or parts.

Licensed means licensed under the Road Transport (Driver Licensing) Act 1998.

Light rail vehicle means a vehicle used on a light rail system within the meaning of the Transport Administration Act 1988, or any other light rail system prescribed by the regulations under this Act.

Major offence means:

(a)  a crime or offence referred to in section 10A (1), or

(b)  an offence under section 4E (1) or (1B) as in force before the commencement of this paragraph.

Motor vehicle means a vehicle that is built to be propelled by a motor that forms part of the vehicle.

Photograph includes a digitised, electronic or computer generated image in a form approved by the Authority.

Prohibited speed measuring evasion article means any device or substance that is designed, or apparently designed, to be fitted or applied to, or to be carried in, a motor vehicle or trailer for the purpose of detecting, interfering with, or reducing the effectiveness of, an approved speed measuring device, and includes a radar detecting device and a radar jamming device.

Radar detecting device means a device designed or apparently designed to be fitted to or carried in a motor vehicle or trailer for the purpose of detecting electromagnetic radiations from an approved speed measuring device.

Radar jamming device means a device designed or apparently designed to be fitted to or carried in a motor vehicle or trailer for the purpose of interfering with the receiving by an approved speed measuring device of reflected electromagnetic radiations.

Registered, in relation to a vehicle, means registered under and in accordance with the Road Transport (Vehicle Registration) Act 1997 and the regulations made under that Act.

Regulation means regulation made under this Act.

Rider, in relation to a horse, includes a person having charge of the horse.

Road means an area that is open to or used by the public and is developed for, or has as one of its main uses, the driving or riding of motor vehicles.

Road related area means:

(a)  an area that divides a road, or

(b)  a footpath or nature strip adjacent to a road, or

(c)  an area that is open to the public and is designated for use by cyclists or animals, or

(d)  an area that is not a road and that is open to or used by the public for driving, riding or parking vehicles, or

(e)  any other area that is open to or used by the public and that has been declared under section 2A to be an area to which specified provisions of this Act or the regulations apply.

Shared traffic zone means a road or road related area or part of a road or road related area designated as a shared traffic zone in accordance with section 3B.

Trader’s plate has the same meaning as it has in the Road Transport (Vehicle Registration) Act 1997.

Trailer means a vehicle that is built to be towed, or is towed, by a motor vehicle, but does not include a motor vehicle that is being towed.

Use of a vehicle includes standing the vehicle on a road or road related area.

Vehicle means:

(a)  any description of vehicle on wheels (including a light rail vehicle) but not including any other vehicle used on a railway or tramway, or

(b)  any other vehicle prescribed by the regulations.

(1A)    (Repealed)

(2)  Any reference in this Act to an engine, engine block or other part of a motor vehicle or trailer shall, where that engine, engine block or other part has been removed from a motor vehicle or trailer, be read and construed as including a reference to the engine, engine block or other part so removed except where it has been installed as an engine, engine block or part of a motor launch or other vehicle or machinery, not being a motor vehicle or trailer.

(2A)  In this Act, a reference to a driver licence in respect of a motor vehicle, being a driver licence of any class, is a reference to a driver licence which authorises the holder to drive motor vehicles of a class which includes the motor vehicle (whether or not in combination with a trailer).

(3)  A reference in this Act to:

(a1)  the special range prescribed concentration of alcohol is a reference to a concentration of 0.02 grammes or more, but less than 0.05 grammes, of alcohol in 100 millilitres of blood,

(a)  the low range prescribed concentration of alcohol is a reference to a concentration of 0.05 grammes or more, but less than 0.08 grammes, of alcohol in 100 millilitres of blood,

(b)  the middle range prescribed concentration of alcohol is a reference to a concentration of 0.08 grammes or more, but less than 0.15 grammes, of alcohol in 100 millilitres of blood, and

(c)  the high range prescribed concentration of alcohol is a reference to a concentration of 0.15 grammes or more of alcohol in 100 millilitres of blood.

(4)  Where a person holding a learner licence:

(a)  is driving a motor vehicle, and

(b)  is accompanied by another person occupying the seat next to the person by reason of a requirement made by the regulations,

the other person shall, for the purposes of sections 4E, 4F and 5, be deemed to be the holder of a driver licence.

s 2: Am 1924 No 76, sec 3 (a); 1930 No 18, sec 175 (1); 1935 No 13, sec 7 (2); 1956 No 5, sec 19 (1) (a); 1968 No 64, sec 2 (a); 1976 No 32, Sch 2 (1); 1978 No 122, Sch 2 (2); 1980 No 155, Sch 1 (1); 1982 No 123, Schs 2 (2), 3 (1), 4; 1983 No 35, Sch 2 (1); 1985 No 18, Schs 1 (1), 2 (1); 1985 No 140, Sch 1; 1986 No 161, Sch 1 (1); 1987 No 8, Sch 1 (1); 1987 No 31, Sch 1 (1); 1987 No 44, Schs 1 (1), 2 (2); 1987 No 95, Schs 1 (1), 3 (1); 1988 No 92, Sch 15; 1988 No 110, Sch 1 (4); 1989 No 153, Sch 1 (1); 1990 No 53, Sch 1 (1); 1990 No 96, Sch 2 (1); 1996 No 2, Sch 2; 1996 No 75, Sch 1 (1); 1996 No 128, Sch 2.5 [1]–[3]; 1997 No 115, Schs 1 [2], 2 [1]–[4] [5] (am 1998 No 120, Sch 2.39 [1]) [6] [7]; 1997 No 119, Sch 1 [1] [2] (am 1998 No 26, Sch 1 [26]); 1997 No 154, Sch 6.48; 1998 No 26, Sch 2.6 [1]; 1998 No 99, Sch 1.13 [1]–[7]; 1998 No 120, Sch 1.44 [1]; 1998 No 152, Sch 1 [1].

2A Power to include or exclude areas

(1)  The Minister may declare, by notice published in the Gazette, that this Act and the regulations, or specified provisions of this Act or the regulations:

(a)  apply to a specified area of the State that is open to or used by the public, or

(b)  do not apply to a specified road or road related area.

(2)  Before making a declaration under subsection (1), the Minister is to consult with the Minister administering the Motor Accidents Act 1988.

(3)  The declaration has effect until it is revoked, or for the period specified in the declaration.

s 2A: Ins 1930 No 18, sec 174 (3) (a). Subst 1976 No 32, Sch 2 (2). Am 1978 No 122, Sch 2 (3). Rep 1988 No 110, Sch 1 (5). Ins 1997 No 115, Sch 1 [3].

2B–2D (Repealed)

s 2B: Ins 1930 No 18, sec 174 (3) (a). Am 1978 No 122, Sch 2 (4); 1987 No 154, Sch 1. Rep 1988 No 110, Sch 1 (5).

s 2C: Ins 1930 No 18, sec 174 (3) (a). Am 1954 No 7, sec 2 (a); 1968 No 2, sec 5 (a); 1978 No 122, Sch 2 (5). Rep 1988 No 110, Sch 1 (5).

s 2D: Ins 1930 No 18, sec 174 (3) (a). Am 1978 No 122, Sch 2 (6). Rep 1988 No 110, Sch 1 (5).

Part 1A Functions of Authority relating to traffic arrangements etc

pt 1A: Ins 1988 No 110, Sch 1 (6).

2E Definitions

(1)  In this Part:

approaches, in relation to an intersection or railway crossing, means so much of the approaches to the intersection or crossing as consists of roads or road related areas or of parts of roads or road related areas.

functions includes powers, authorities and duties.

intersection means an intersection or junction of roads or road related areas.

public authority means a public or local authority constituted by or under an Act, and includes:

(a)  the Police Force, and

(b)  any Government department or administrative office, and

(c)  a statutory body representing the Crown, and

(d)  a person or body prescribed by the regulations for the purposes of this definition.

traffic includes vehicular traffic and pedestrian traffic.

traffic control facility means:

(a)  traffic control lights on roads or road related areas, and equipment used in connection with traffic control lights, or

(b)  any sign, marking, structure or device containing or relating to a requirement or direction, contravention of which is an offence arising under:

(i)  this Act or the regulations, or

(ii)  any other Act, regulation or by-law prescribed for the purposes of this subparagraph, or

(c)    (Repealed)

(d)  any other sign, marking, structure or device that is intended to promote safe or orderly traffic movement on roads or road related areas or to warn, advise or inform the drivers of vehicles, or pedestrians, of any matter or thing in relation to vehicular or pedestrian traffic or road conditions or hazards, or

(e)  any bridge or subway or other facility for use by pedestrians over, across, under or alongside a road or road related area, or

(f)  any other thing prescribed as a traffic control facility by the regulations.

(2)  A reference (however expressed) in this Part to any thing, person or traffic, on a road or road related area, includes a reference to any thing, person or traffic above, over, across, in or under a road or road related area.

s 2E: Ins 1988 No 110, Sch 1 (6). Am 1993 No 34, Sch 1 (1).

2F Functions of the Authority relating to traffic arrangements etc

(1)  The functions of the Authority include the following:

(a)  reviewing the traffic arrangements in the State, including arrangements in connection with the movement, regulation and control of traffic and the parking of vehicles,

(b)  formulating or adopting plans and proposals for the improvement of those arrangements,

(c)  establishing general standards and general principles in connection with:

(i)  the design, construction, erection, affixing, marking, maintenance, repair, alteration, operation or removal of traffic control facilities, and

(ii)  the design of intersections and the approaches to them or the approaches to railway level crossings,

for purposes connected with traffic safety and the movement, regulation and control of traffic,

(d)  promoting traffic safety,

(e)  co-ordinating the activities of public authorities so far as those activities relate to:

(i)  the carrying out of plans and proposals formulated or adopted by the Authority for the improvement of traffic arrangements, or

(ii)  the design, construction, erection, affixing, marking, maintenance, repair, alteration, operation or removal of traffic control facilities, or

(iii)  traffic safety, or

(iv)  any other matter connected with the Authority’s functions under this Part.

(2)  The Authority may:

(a)  promote traffic safety measures or activities, including measures or activities for:

(i)  the safety and protection of the public, including pedestrians, on roads or road related areas, and

(ii)  the prevention of accidents on roads or road related areas, and

(iii)  the minimising of the effect of accidents on roads or road related areas, and

(iv)  the protection of property from damage from accidents on roads or road related areas, and

(b)  promote or engage in the dissemination and publication by suitable media of advice and information resulting from research or otherwise for the education and guidance of, and observance by, drivers of or persons travelling in vehicles, or persons on roads or road related areas, or manufacturers of, repairers of, or dealers in, vehicles or vehicle parts, and

(c)  make reports or recommendations to the Minister, or any other person or body, in relation to the following:

(i)  traffic arrangements, and the movement, regulation and control of traffic, on roads or road related areas,

(ii)  traffic planning,

(iii)  traffic safety,

(iv)  the parking of vehicles,

(v)  the operation, maintenance or alteration of traffic control facilities,

(vi)  any other matter connected with the Authority’s functions under this Part, and

(d)  carry out or promote research or investigations into matters connected with any of the Authority’s functions under this Part including research or investigations into:

(i)  traffic control facilities, and

(ii)  the cause of accidents, their incidence and the ways and means that may be adopted for their prevention or for controlling or mitigating their effects.

ss 2F–2H: Ins 1988 No 110, Sch 1 (6).

2G Directions to public authorities

(1)  The Authority may, from time to time, direct public authorities to implement plans or proposals formulated or adopted, general standards or general principles established, or other decisions made, by the Authority in the exercise or performance of the Authority’s functions under this Part.

(2)  The Authority may communicate directions under this section to such public authorities, and in such manner, as it thinks fit.

(3)  While a direction communicated to a public authority under this section and applicable to its functions is in force, it is the duty of the public authority, by the exercise or performance of its functions in accordance with law, to comply with the direction, except where to do so:

(a)  would be impracticable because of emergency, accident or other special circumstances, or

(b)  would affect the functions of any person or body with respect to the laying or making of any information or complaint, the continuance or discontinuance of any proceedings for an alleged offence or any other manner of dealing with an alleged offence.

(4)  The failure of a public authority to comply with a direction of the Authority under this section does not invalidate any act, matter or thing to which the direction relates, and in particular does not invalidate the construction, erection, affixing or marking of any traffic control facility or any direction that is contained in or relates to the facility.

(5)  A direction may be given under this section so as to apply generally or in any particular case or class of cases.

(6)  The power to give a direction includes the power to amend or revoke a direction.

(7)  The Authority may bring proceedings in the Supreme Court for an order to require a public authority to comply with a direction under this section.

(8)  The Supreme Court may, in any such proceedings, make such order as it thinks fit.

ss 2F–2H: Ins 1988 No 110, Sch 1 (6).

2H Recommendations as to street lighting

(1)  The Authority may, for the purpose of promoting traffic safety, make recommendations to a public authority in relation to the public authority’s functions in connection with the lighting of roads or road related areas, including recommendations in relation to:

(a)  general principles relating to the provision of lighting on roads or road related areas, and

(b)  the need for lighting on any particular road or road related area or part of a road or road related area, and

(c)  the need for the improvement of lighting on any particular road or road related area or part of a road or road related area.

(2)  It is the duty of a public authority to which recommendations are made under this section to give them proper consideration and, as far as may be reasonably practicable, to carry them into effect.

ss 2F–2H: Ins 1988 No 110, Sch 1 (6).

2I Miscellaneous provisions

(1)  If the provisions of this Part are inconsistent with the provisions of:

(a)  the Local Government Act 1993, or

(b)  any regulations, ordinances or by-laws made under any Act,

the provisions of this Part shall prevail.

(2)  Nothing in this Part applies to or in respect of any sign, mark, structure or device containing or relating to a requirement or direction, contravention of which gives rise to an offence under the Local Government Act 1993, or any regulation under that Act, but not under any other Act or regulation.

(3)  Any person who or body which would not, but for this subsection, have the power to co-operate with, or do or perform any act or thing in conjunction with, the Authority is hereby authorised so to co-operate or do or perform the act or thing.

s 2I: Ins 1988 No 110, Sch 1 (6). Am 1993 No 34, Sch 1 (2).

Part 2 Regulations

3 Regulations

(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)    (Repealed)

(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)    (Repealed)

(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)    (Repealed)

(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)    (Repealed)

(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)    (Repealed)

(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)    (Repealed)

(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)    (Repealed)

(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)    (Repealed)

(1B)  In subsection (1) (q5), a reference to a vehicle includes a reference to the remains of a vehicle.

(1C)    (Repealed)

(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)    (Repealed)

(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 (Repealed)

s 3A: Ins 1930 No 18, sec 272 (1) (a). Subst 1987 No 95, Sch 1 (3). Rep 1988 No 110, Sch 1 (8).

3B Shared 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 3 Offences

4 Negligent, 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].

4AA Menacing 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].

4A Speed 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 (Repealed)

s 4AAB: Ins 1997 No 132, Sch 1. Rep 1998 No 70, Sch 1 [11].

4AB Approved 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).

4AC Photographic 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].

4AD Sale, 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].

4AE Surrender 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].

4B Races, 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].

4BA Conduct 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].

4BB Removal 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].

4BC Impounding 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)    (Repealed)

(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].

4BD Search 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].

4C Schemes 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.

4D Traffic 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).

4DA Photographic 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.

4E Prescribed 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)    (Repealed)

(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)    (Repealed)

(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)    (Repealed)

(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].

4F Blood 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].

4G Analysis 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.

5 Offences

(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].

5AA Samples 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).

5AB Evidence 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).

5AC Offences 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].

5A Detention 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 (Repealed)

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].

6 Driver 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)    (Repealed)

shall be guilty of an offence under this Act.

(1A)    (Repealed)

(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 (Repealed)

s 6A: Ins 1982 No 151, Sch 1 (2). Am 1997 No 115, Sch 2 [11]. Rep 1997 No 119, Sch 1 [8].

6B Parents 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 (Repealed)

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].

7A Offences committed by disqualified drivers etc

(1)    (Repealed)

(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].

7B Offences 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)    (Repealed)

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].

7C Power 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].

8 Requirements 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].

8A Motor 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].

8B Procuring 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].

8C Unsafe 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].

9 Production 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.

10 Court 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)    (Repealed)

(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].

10A Disqualification 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)    (Repealed)

(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)    (Repealed)

(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)    (Repealed)

(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].

10AA Effect 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.

10B Suspension 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)    (Repealed)

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).

10C Immediate 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].

10D Suspension 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].

10E Appeal 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].

10EA Habitual 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].

Part 3A Monitoring of heavy vehicles and vehicles carrying dangerous loads

pt 3A: Ins 1989 No 153, Sch 1 (12).

10F Definitions

(1)  In this Part:

approved means approved by the Authority.

automatic data, in relation to a journey made by a motor vehicle, means recordings (made by mechanical or electronic means, or by both of those means, in an approved form, and to an approved degree of accuracy) of:

(a)  the lengths of time for which the vehicle is driven, and for which it is standing, during the journey, and

(b)  the speeds at which the vehicle is driven (measured continuously or at approved intervals) during the journey, and

(c)  the distance travelled during each period when the vehicle is driven during the journey,

being recordings made by a monitoring device.

manual data, in relation to a journey made by a motor vehicle, means recordings made by hand of:

(a)  the date, time and place of commencement, and of completion, of the journey, and

(b)  the times at which the vehicle is driven, and at which it is standing, during the journey, and

(c)  the name of each driver, and the times at which each driver was in charge of the vehicle, during the journey, and

(d)  the registration number of the vehicle, and

(e)  the name of each person making each of the abovementioned recordings.

monitoring device means a device which, when fitted to a motor vehicle, is capable of producing automatic data for a journey made by the vehicle.

motor vehicle includes a trailer.

owner, in relation to a motor vehicle, includes:

(a)  every person who is the owner or a joint owner or part owner of the vehicle and any person who has the use of the vehicle under a lease or hire-purchase agreement (but not the lessor while the vehicle is being leased under any such agreement), and

(b)  the person in whose name the vehicle is registered (except as provided by paragraph (c)), and

(c)  if the vehicle has been sold or otherwise disposed of by a previous registered owner who has complied with the provisions of the regulations applicable to him or her regarding the sale or disposal—the person to whom it was sold or otherwise disposed of.

prescribed officer means a person:

(a)  who is employed:

(i)  by the Authority, or

(ii)  as an inspector under the Dangerous Goods Act 1975, or

(iii)  in some other capacity prescribed by the regulations, and

(b)  who is authorised for the purposes of this Part by the regulations.

vehicle movement record, in relation to a journey made by a vehicle, means a record, in durable and graphic form, consisting of:

(a)  manual data for the journey, and

(b)  either:

(i)  corresponding automatic data for the journey produced by a monitoring device, except where subparagraph (ii) applies, or

(ii)  where the automatic data is stored electronically in a monitoring device—a graphic representation, produced by an approved method, of that data.

(2)  The regulations may prescribe the manner in which the Authority may signify any approval for the purposes of this Part.

s 10F: Ins 1989 No 153, Sch 1 (12). Am 1997 No 115, Sch 2 [14].

10G Application of Part 3A

(1)  This Part applies to:

(a)  any motor vehicle (being a coach or heavy motor vehicle) of a class or description prescribed by the regulations, except in such circumstances as may be so prescribed, and

(b)  any motor vehicle which, 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.

(2)  This Part applies to vehicles, drivers and owners whether or not:

(a)  the vehicles are registered in New South Wales, or

(b)  the drivers hold licences issued in New South Wales, or

(c)  the owners ordinarily reside (or, being corporations, are incorporated or have their principal places of business) in New South Wales.

s 10G: Ins 1989 No 153, Sch 1 (12). Am 1990 No 96, Sch 4 (2).

10H Vehicles to be fitted with monitoring devices in working order

(1)  A motor vehicle to which this Part applies is not to be used on any journey made wholly or partly on a road or road related area or roads or road related areas in New South Wales, unless:

(a)  a monitoring device is fitted to the vehicle, and

(b)  the device is producing automatic data for the journey.

(2)  If a vehicle is used in contravention of this section, the owner of the vehicle is guilty of an offence.

Maximum penalty: 50 penalty units.

ss 10H–10M: Ins 1989 No 153, Sch 1 (12).

10I Vehicle movement record to be preserved

(1)  A vehicle movement record relating to each journey commenced, on or after the commencement of this section, by a vehicle to which this Part applies is to be preserved for a period of at least 12 months after the date of commencement of the journey.

(2)  If this section is not complied with, the owner of the vehicle is guilty of an offence.

Maximum penalty: 50 penalty units.

ss 10H–10M: Ins 1989 No 153, Sch 1 (12).

10J Vehicle movement record to be carried by driver

(1)  A motor vehicle to which this Part applies must not be used for any journey made wholly or partly on a road or road related area or roads or road related areas unless a duly completed vehicle movement record is carried, in accordance with this section, by the driver of the vehicle at all times while the vehicle is in the State during the journey.

(2)  The record that must be carried on any day is to relate to any journey or part of a journey made by the vehicle, whether in or outside New South Wales, during the period of 14 days immediately preceding that day.

(3)  If a vehicle is used in contravention of this section, the owner and the driver of the vehicle are each guilty of an offence and are each liable to a penalty not exceeding 50 penalty units.

(4)  It is a defence to a prosecution for an offence under this section if the defendant satisfies the court:

(a)  that the monitoring device fitted to the vehicle was of a type that stores automatic data electronically, and

(b)  that the compilation of the vehicle movement record required to be carried by the driver on the date of the alleged offence would have required the production of a graphic representation of data which, on that date, were stored in the monitoring device, and

(c)  that, in the circumstances of the case, the required record could not reasonably be expected to have been compiled by that date.

(5)  Nothing in this section requires the carriage of a vehicle movement record relating to the use, before the commencement of this section, of any vehicle.

ss 10H–10M: Ins 1989 No 153, Sch 1 (12).

10K Inspection of monitoring devices and records carried on vehicles

(1)  A member of the Police Force may inspect any motor vehicle to which this Part applies in order to ascertain:

(a)  whether a monitoring device is fitted to the vehicle, and

(b)  whether any device so fitted appears to be operating correctly.

(2)  For the purposes of an inspection under subsection (1), a member of the Police Force may require the driver to operate the vehicle and to co-operate in any other manner reasonably necessary to facilitate the inspection.

(3)  A prescribed officer may:

(a)  require the driver of a motor vehicle to which this Part applies to produce for inspection:

(i)  his or her licence to drive the vehicle (whether issued in New South Wales or elsewhere), and

(ii)  any record required by this Part or the regulations to be carried by the driver of the vehicle during the journey, and

(iii)  any record carried by the driver in connection with the business to which the journey relates, and

(b)  make copies of, or take extracts from, any such record, and

(c)  make reasonable inquiries of the driver concerning any entries in any such record that are made by the driver.

(4)  For the purposes of this section:

(a)  a member of the Police Force wearing the uniform of the Force, or

(b)  a prescribed officer identifying himself or herself in the manner required by the regulations,

may by any reasonably clear signal require the driver of any vehicle to which this Part applies to stop and park the vehicle.

(5)  A member of the Police Force or a prescribed officer may require a vehicle and its driver to stay for such time as is reasonably necessary for the exercise of a power conferred on the member or officer by this section.

(6)  A person must not:

(a)  obstruct or hinder a member of the Police Force or a prescribed officer in the exercise of a power conferred by this section, or

(b)  fail to comply with a requirement made under this section.

Maximum penalty: 50 penalty units.

ss 10H–10M: Ins 1989 No 153, Sch 1 (12).

10L Seizure of monitoring devices and records

(1)  A member of the Police Force may disconnect and take and retain possession of a monitoring device that is fitted to a motor vehicle to which this Part applies, together with any automatic data stored in the device:

(a)  if the vehicle has been involved in an accident in which any person was killed, or

(b)  if the member of the Police Force reasonably believes that the monitoring device or any part of its mechanism has been improperly interfered with, or

(c)  if the member of the Police Force reasonably believes that the driver has committed a major offence involving the vehicle during the journey then being undertaken by the vehicle.

(2)  A member of the Police Force or a prescribed officer may take and retain possession of any record carried, pursuant to a requirement of this Part or the regulations, by the driver of a motor vehicle to which this Part applies if the member or officer reasonably believes:

(a)  that false entries have been made in the record, or

(b)  that the record is unlawfully in the possession of the driver, or

(c)  that the record does not relate to the vehicle concerned.

(3)  A member of the Police Force or a prescribed officer may take and retain possession of any document which the driver of a motor vehicle to which this Part applies represents to be a record required by this Part or the regulations to be carried by the driver but which the member or officer reasonably believes is not such a record.

(4)  A person must not obstruct or hinder a member of the Police Force or a prescribed officer in the exercise of a power conferred by this section.

Maximum penalty: 50 penalty units.

ss 10H–10M: Ins 1989 No 153, Sch 1 (12).

10M Production of records by vehicle owners

(1)  The Authority, by notice in writing served on any owner of a vehicle to which this Part applies, may require the owner to produce vehicle movement records to the Authority.

(2)  The notice may require the production of:

(a)  all vehicle movement records relating to journeys undertaken in the vehicle during the 12 months preceding the date of service of the notice, or

(b)  such of those records as the notice specifies.

(3)  The notice is not complied with if the records are not produced at a place, and within a time, specified by the notice.

(4)  The owner of a vehicle must comply with a notice under this section.

Maximum penalty: 50 penalty units.

(5)  Vehicle movement records produced to the Authority, whether in compliance with a notice under this section or otherwise, may be retained by the Authority for analysis, and while they are so retained, the owner of the vehicle is exempted from the requirements of any further notice under this section in relation to them.

(6)  A notice under this section does not require the production of a vehicle movement record being carried by the driver of a vehicle in accordance with a requirement of this Part.

ss 10H–10M: Ins 1989 No 153, Sch 1 (12).

10N Tampering with monitoring devices or vehicle movement records

(1)  A person must not adjust any part of the mechanism of a monitoring device, fitted to a vehicle to which this Part applies, in such a manner that the accuracy of a vehicle movement record for the vehicle will be reduced.

Maximum penalty: 50 penalty units.

(2)  A person must not make any false entry in, or otherwise falsify, a vehicle movement record.

Maximum penalty: 50 penalty units.

(3)  Without limiting any power conferred on the Authority by or under this Act, the Authority may cancel the driver licence or licences of a person who commits an offence under this section.

s 10N: Ins 1989 No 153, Sch 1 (12). Am 1998 No 99, Sch 1.13 [37].

10O Exemptions

(1)  The Authority may, in accordance with the regulations, exempt any person or vehicle or any class of persons or vehicles from the operation of all or any of the provisions of this Part.

(2)  An exemption:

(a)  may be absolute or subject to conditions, and

(b)  if subject to conditions, has effect only while the conditions are observed.

s 10O: Ins 1989 No 153, Sch 1 (12).

10P Evidence of vehicle movement record

(1)  A vehicle movement record is not admissible in evidence in any criminal proceedings unless:

(a)  the proceedings are proceedings for:

(i)  an offence under section 10N, or

(ii)  aiding, abetting, counselling or procuring the commission of an offence under that section, or

(iii)  a major offence, or

(b)  the record is adduced by the defendant.

(2)  Nothing in this section affects the admissibility in any civil proceedings of a vehicle movement record.

s 10P: Ins 1989 No 153, Sch 1 (12).

Part 3B Parking meters and other paid parking

pt 3B, hdg: Ins 1993 No 34, Sch 1 (3). Subst 1994 No 8, Sch 1 (1).

pt 3B: Ins 1993 No 34, Sch 1 (3).

Division 1 Preliminary

pt 3B, div 1, hdg: Ins 1994 No 8, Sch 1 (1).

10Q Definitions

In this Part:

council means the council of a local government area.

metered space means any part of a road or road related area:

(a)  at which a parking meter is installed or which is identified as a space or spaces to which a parking meter applies, and

(b)  which has been marked by painted lines or by any other prescribed method for the purpose of indicating where a vehicle may park on payment of a fee.

park includes stand or wait.

parking meter means a device designed to indicate or capable of indicating whether the fee determined by the council concerned in respect of any vehicle parking in a metered space to which the device applies has been paid and includes the stand on which such a device is erected.

pay parking space means a pay parking space provided under section 10T, including a space provided under section 10T (3).

vehicle includes horse.

s 10Q: Ins 1993 No 34, Sch 1 (3). Am 1994 No 8, Sch 1 (2).

Division 2 Parking meters

pt 3B, div 2, hdg: Ins 1994 No 8, Sch 1 (3).

10R Parking meters

(1)  A council may do all or any of the following:

(a)  provide, in accordance with guidelines issued by the Authority for the provision of metered spaces, metered spaces in any road or road related area in the area of the council,

(b)  install a parking meter in respect of any such metered space or spaces in accordance with this section,

(c)  demand and recover in respect of any vehicle parking in any such metered space such fees as may be fixed by resolution of the council.

(2)  The council may, under this section, provide metered spaces in a road or road related area on land that is not owned by the council, but only with the approval of the owner of that land.

(3)  Parking meters may only be installed at the space to which they apply or, if one parking meter applies to more than one space, in the immediate vicinity of those spaces.

(4)  The Authority must issue written guidelines to councils as to the provision of metered spaces. The Authority may from time to time amend and revoke any such guidelines.

s 10R: Ins 1993 No 34, Sch 1 (3). Am 1994 No 8, Sch 1 (4).

10S Damage, interference with etc parking meters

A person who:

(a)  damages a parking meter, or does or causes to be done any act which interferes or is likely to interfere with the proper working of a parking meter, or

(b)  fraudulently operates a parking meter,

is guilty of an offence.

Maximum penalty: 5 penalty units.

s 10S: Ins 1993 No 34, Sch 1 (3).

Division 3 Other paid parking

pt 3B, div 3, hdg: Ins 1994 No 8, Sch 1 (5).

10T Pay parking spaces

(1)  A council may do all or any of the following:

(a)  provide, in accordance with guidelines issued by the Authority for the provision of pay parking spaces, in any road or road related area in the area of the council parking spaces where parking may be paid for by means other than parking meters,

(b)  provide, in accordance with the regulations (if any), and with the written approval of the Authority, for the means of and schemes for payment for the parking of vehicles in the spaces,

(c)  fix, by resolution of the council, the fees that may be charged for parking in the spaces.

(2)  For the purposes of this section, a parking space is provided if it has been designated as a pay parking space in the manner prescribed by the regulations.

(3)  Without limiting subsection (1) (a), a council may provide a parking space in a road or road related area in the area of the council where metered spaces are provided. The council may not recover the fee fixed in respect of any vehicle parking in such a metered space if any other applicable parking fee has been paid.

(4)  The council may, under this section, set aside a parking space in a road or road related area on land that is not owned by the council, but only with the approval of the owner of that land.

(5)  A device for use in relation to payment for parking a vehicle in a space provided under this section may be installed by a council, in accordance with subsection (1) (b), despite the provisions of any other Act.

(6)  The Authority must issue written guidelines to councils as to the provision of pay parking spaces and may also issue guidelines as to schemes for payment for the parking of vehicles in such spaces. The Authority may from time to time amend and revoke any such guidelines.

ss 10T–10V: Ins 1993 No 34, Sch 1 (3). Subst 1994 No 8, Sch 1 (5).

10U Common pay parking schemes

(1)  A council may, in accordance with guidelines issued by the Authority for the provision of pay parking on a common payment basis, agree with one or more other councils concerning the provision of pay parking on a common payment basis.

(2)  The councils must, by resolution, fix fees on a common basis that are to be charged for parking in spaces covered by the agreement.

(3)  The Authority must issue written guidelines to councils as to the provision of pay parking on a common payment basis. The Authority may from time to time amend and revoke any such guidelines.

ss 10T–10V: Ins 1993 No 34, Sch 1 (3). Subst 1994 No 8, Sch 1 (5).

10V Failure to comply with approval or guidelines

(1)  A council is not entitled to provide or to charge for parking in a pay parking space if the council fails to comply with an applicable guideline made by the Authority under this Division or, in a case where approval has been given under section 10T (1) (b), fails to comply with a condition of that approval.

(2)  For the purposes of this section, a council is taken to have complied with a guideline or an approval until the contrary is proved.

(3)  The regulations may provide for defences to offences relating to pay parking spaces in respect of which a council has failed to comply with a guideline or an approval given by the Authority under this Division.

ss 10T–10V: Ins 1993 No 34, Sch 1 (3). Subst 1994 No 8, Sch 1 (5).

10VA Pay parking in public reserves

Nothing in this Division affects any other power of the council to provide for parking in a public reserve controlled by the council.

s 10VA: Ins 1994 No 8, Sch 1 (5).

Division 4 Miscellaneous

pt 3B, div 4 (ss 10VB–10VE): Ins 1994 No 8, Sch 1 (5).

10VB Powers of police in emergency

(1)  A police officer may, during a temporary obstruction or danger to traffic or in an emergency:

(a)  direct a person not to cause or permit any vehicle to park in a metered space or a pay parking space, or

(b)  direct the owner or driver of a vehicle parking or standing in any such space to remove the vehicle from the space, or

(c)  if no person appears to be in charge of a vehicle standing in any such space—remove the vehicle from the space.

(2)  A person who, without reasonable excuse, fails to comply with the direction of a police officer under this section is guilty of an offence.

Maximum penalty: 5 penalty units.

pt 3B, div 4 (ss 10VB–10VE): Ins 1994 No 8, Sch 1 (5).

10VC Application of money from parking

(1)  The costs of administering this Part in relation to a local government area are to be borne by the council of that area.

(2)  Those costs are taken to include the following:

(a)  the cost of providing, controlling, maintaining and regulating metered spaces and the parking meters installed in respect of those spaces,

(b)  the cost of providing, controlling, maintaining and regulating pay parking,

(c)  the cost of providing and maintaining signs or other devices and marking lines to indicate the position of metered spaces or pay parking spaces or to indicate the places in any road or road related area within the area of the council concerned where a vehicle (other than a public vehicle) may stop or park.

(3)  All fees that a council collects in respect of the operation of parking meters or pay parking belong to the council, subject to any regulations made in relation to fees collected by councils participating in an agreement under section 10U.

(4)  Any surplus arising from the operation of parking meters prior to 1 July 1993 must be applied towards the cost of providing, improving or managing the following:

(a)  roads,

(b)  traffic facilities,

(c)  parking facilities,

(d)  other public transport facilities.

(5)  Any surplus arising from the operation of parking meters on or after 1 July 1993, or of pay parking on or after the commencement of this section, may be applied at the discretion of the council.

(6)  A council must pay to the Authority such amount as is agreed on by the Authority and the council in respect of costs referred to in subsection (2) (c).

pt 3B, div 4 (ss 10VB–10VE): Ins 1994 No 8, Sch 1 (5).

10VD Disputes

Any dispute arising under this Division between the council and the Authority is to be resolved by consultation between the Minister for Local Government and Co-operatives and the Minister administering this Act, or, if agreement cannot be reached, by the Premier.

pt 3B, div 4 (ss 10VB–10VE): Ins 1994 No 8, Sch 1 (5).

10VE Regulations relating to parking

Regulations may be made for carrying this Part into effect and, in particular, for or with respect to the following:

(a)  regulating the installation and use of parking meters and the stopping or parking of any vehicle in a metered space,

(b)  without limiting paragraph (a), regulating the distance between parking meters and the metered spaces to which they apply and the manner in which parking meters are to operate,

(c)  prescribing the manner for designating pay parking spaces,

(d)  regulating the methods of payment for pay parking and the stopping or parking of any vehicle in a pay parking space,

(e)  without limiting paragraph (d), providing for the installation of any device for use in relation to payment for pay parking,

(f)  prescribing offences relating to devices, documents or other things used in relation to payment for pay parking,

(g)  regulating pay parking that is provided on a common payment basis by councils, including regulating the entitlement of the councils to fees received under the common pay parking scheme and providing for common means of payment for parking.

pt 3B, div 4 (ss 10VB–10VE): Ins 1994 No 8, Sch 1 (5).

10W This Part not to affect operation of other provisions

Nothing in this Part affects the operation of the provisions of any other Part of this Act, or of any other Act, by or under which functions in relation to the control of traffic are conferred or imposed on the Commissioner of Police or the Authority.

s 10W: Ins 1993 No 34, Sch 1 (3).

Part 3C Traffic route lighting

pt 3C: Ins 1993 No 24, Sch 3.

10X Definitions

In this Part:

council means a local government council.

traffic route means:

(a)  a main road or secondary road within the meaning of the Roads Act 1993, or

(b)  a public road within the meaning of that Act (other than a main road or secondary road) in respect of which the Authority has, by reason of the volume of vehicular or pedestrian traffic carried on it, determined requires lighting to a standard approved by the Authority.

s 10X: Ins 1993 No 24, Sch 3. Am 1994 No 44, Sch 19.

10Y Payments of subsidies

(1)  The Authority may with the approval of the Minister grant annual subsidies to councils for the lighting, to a standard approved by the Authority, of traffic routes.

(2)  Before granting any such subsidy the Authority may require a council to enter into an agreement with the Authority to secure the carrying out of the purposes for which, and the terms and conditions on and subject to which, the subsidy is granted.

s 10Y: Ins 1993 No 24, Sch 3.

10Z Authority to make available money for subsidies

(1)  In the period of 12 months commencing on 1 July next succeeding the commencement of this Part and in each period of 12 months thereafter, the Authority must make available the amount of subsidies that the Minister with the concurrence of the Treasurer estimates will be granted to councils under this Part in that period of 12 months.

(2)  The Minister, before the commencement of each period of 12 months referred to in subsection (1), is to serve a notice on the Authority specifying the amount of the payment required.

(3)  An amount payable under this section in any period of 12 months is to be paid in such sum or sums, at such time or times during that period and in such manner as the Minister may require in and by the notice referred to in subsection (2).

(4)  The Authority may make the whole or any part of a payment required by this section out of the Roads and Traffic Authority Fund under the Transport Administration Act 1988.

s 10Z: Ins 1993 No 24, Sch 3.

Part 3D Electricity structures

pt 3D: Ins 1993 No 24, Sch 3.

10ZA Definitions

In this Part:

distribution district of an electricity distributor means the electricity distributor’s distribution district within the meaning of the Electricity Supply Act 1995.

electricity distributor means an electricity distributor within the meaning of the Electricity Supply Act 1995.

electricity structure means any structure erected or maintained by an electricity distributor for the purpose of transmission or distribution of electricity or for the purpose of public lighting.

traffic route has the same meaning as in Part 3C.

s 10ZA: Ins 1993 No 24, Sch 3. Am 1995 No 11, Sch 1; 1995 No 94, Sch 5; 1995 No 95, Sch 4.

10ZB Payments of subsidies for removal etc of electricity structures

(1)  The Authority may, with the approval of the Minister grant subsidies to an electricity distributor for or towards the cost of removing or relocating electricity structures erected, within the distribution district of the distributor, on or adjacent to public roads, being electricity structures which the Authority has determined require removal or relocation for the purposes of traffic safety.

(2)  Before granting any such subsidy, the Authority may require an electricity distributor referred to in subsection (1) to enter into an agreement with the Authority to secure the carrying out of the purposes for which, and the terms and conditions upon and subject to which, the subsidy is granted.

s 10ZB: Ins 1993 No 24, Sch 3.

Part 3E Written off and wrecked motor vehicles

pt 3E: Ins 1996 No 146, Sch 1 [3].

10ZC Object of this Part

The object of this Part is to provide for the collection of information concerning written off and wrecked motor vehicles, and for the taking of other measures in relation to such motor vehicles, to assist in preventing the registration of stolen motor vehicles and detecting motor vehicle theft and for other purposes connected with the administration and execution of this Act.

s 10ZC: Ins 1996 No 146, Sch 1 [3].

10ZD Definitions

(1)  In this Part:

auto-dismantler has the same meaning as in the Motor Dealers Act 1974 and includes any other person, or class of persons, declared to be an auto-dismantler by the regulations under this Act.

dealer has the same meaning as in the Motor Dealers Act 1974 and includes any other person, or class of persons, declared to be a dealer by the regulations under this Act.

insurer means a person who carries on the business of insuring motor vehicles and includes any other person, or class of persons, declared to be an insurer by the regulations.

late model motor vehicle means a motor vehicle that is not more than 15 years old (age being determined from the date of manufacture) or, if the regulations prescribe a different age, not more than the age so prescribed.

motor vehicle includes a trailer.

register means the register of written off and wrecked motor vehicles kept by the Authority under this Part.

vehicle identifier, in relation to a motor vehicle, means:

(a)  in the case of a motor vehicle manufactured before 1 January 1989, the number quoted on the compliance plate that uniquely identifies the vehicle and sets it apart from similar vehicles and that corresponds to the identification number of the vehicle that is permanently recorded elsewhere on the vehicle, or

(b)  in any other case, the unique vehicle identification number (or “VIN”) allocated to the motor vehicle in accordance with the International Standards Organisation’s vehicle identification system required under an Australian Design Rule adopted by the regulations.

wrecked is defined in section 10ZE.

written off is defined in section 10ZF.

(2)  A reference in this Part to a person who carries on a business excludes a person who carries on such a business only as an employee.

s 10ZD: Ins 1996 No 146, Sch 1 [3] (am 1998 No 26, Sch 2.7 [1]). Am 1997 No 115, Sch 2 [15].

10ZE Meaning of “wrecked”

For the purposes of this Part, a motor vehicle is wrecked:

(a)  if it is demolished or dismantled, or

(b)  if it is in some other state or condition, or damaged in some manner, prescribed by the regulations.

ss 10ZE–10ZN: Ins 1996 No 146, Sch 1 [3].

10ZF Meaning of “written off”

For the purposes of this Part, a motor vehicle is written off:

(a)  if a determination is made by an insurer in respect of the motor vehicle that the vehicle should be written off or should not be repaired (for example, because the vehicle has been stolen and has not been recovered or because the cost of repairs required to be made to the vehicle exceeds the value or insured value of the vehicle), or

(b)  in any other circumstances prescribed by the regulations.

ss 10ZE–10ZN: Ins 1996 No 146, Sch 1 [3].

10ZG Register of written off and wrecked motor vehicles

(1)  The Authority is to keep a register of written off and wrecked motor vehicles.

(2)  The register may include information notified to the Authority under this Part and such other information as the Authority considers appropriate.

(3)  The register may be kept in the form of, or as part of, a computer database or in such other form as the Authority considers appropriate.

(4)  The Authority may authorise any person or class of persons to make entries in the register.

(5)  Access to the register is not available to members of the public (except as provided by this section).

(6)  The Authority may, on such conditions as the Authority considers appropriate:

(a)  allow a government department, a public authority, a local authority or the Police Service to have access to the register, and

(b)  allow a government department, a public authority, a local authority or the police force of another State, a Territory or the Commonwealth to have access to the register, and

(c)  allow an insurer, auto-dismantler or dealer to have access to the register, and

(d)  allow any other person or body, or class of persons or bodies, prescribed by the regulations to have access to the register.

(7)  The Authority may, on such conditions as the Authority considers appropriate, provide a person or body with information contained in the register.

ss 10ZE–10ZN: Ins 1996 No 146, Sch 1 [3].

10ZH Insurers to provide written off motor vehicle information to Authority

(1)  An insurer must provide to the Authority the information prescribed by the regulations concerning each late model motor vehicle that is written off (anywhere in Australia) in the course of the business carried on by the insurer.

Maximum penalty: 20 penalty units.

(2)  The information required to be provided under this section must be provided:

(a)  subject to paragraph (b), within 7 days after the motor vehicle is written off in the course of that business and before the motor vehicle is sold or otherwise disposed of in the course of that business, or

(b)  within the time prescribed by the regulations.

ss 10ZE–10ZN: Ins 1996 No 146, Sch 1 [3].

10ZI Auto-dismantlers to provide wrecked motor vehicle information to Authority

(1)  An auto-dismantler must provide to the Authority the information prescribed by the regulations concerning each late model motor vehicle that is demolished or dismantled (anywhere in Australia) in the course of the business carried on by the auto-dismantler.

Maximum penalty: 20 penalty units.

(2)  The information required to be provided under this section must be provided:

(a)  subject to paragraph (b), within 7 days after work is commenced in the course of that business for the purpose of demolishing or dismantling the motor vehicle and before the part of the motor vehicle to which the vehicle identifier is attached is sold or otherwise disposed of in the course of that business, or

(b)  within the time prescribed by the regulations.

ss 10ZE–10ZN: Ins 1996 No 146, Sch 1 [3].

10ZJ Dealers to provide motor vehicle information to Authority

(1)  A dealer must provide to the Authority the information prescribed by the regulations concerning each late model motor vehicle that is in the care, custody or control of the dealer (anywhere in Australia) and that has been written off.

Maximum penalty: 20 penalty units.

(2)  The information required to be provided under this section must be provided:

(a)  subject to paragraph (b), within 7 days after the motor vehicle comes into the care, custody or control of the dealer and before the motor vehicle is sold or otherwise disposed of in the course of the business carried on by the dealer, or

(b)  within the time prescribed by the regulations.

(3)  A dealer does not commit an offence under this section in respect of a failure to provide information concerning a motor vehicle if the dealer satisfies the court that:

(a)  the dealer believed, on reasonable grounds, that the required information concerning the motor vehicle had already been provided to the Authority by an insurer under this Part, or

(b)  the dealer did not know, and did not have reasonable cause to suspect, that the motor vehicle had been written off.

(4)  The regulations may extend this section so that it also applies to late model motor vehicles that have been wrecked, or that have been wrecked in any specified manner, in the same way as it applies to written off motor vehicles (in which case the section applies accordingly).

ss 10ZE–10ZN: Ins 1996 No 146, Sch 1 [3].

10ZK Regulations may extend obligation to provide information under this Part to others

The regulations may require any person who carries on a type of business specified in the regulations to provide to the Authority the information prescribed by the regulations concerning any late model motor vehicle that is written off or wrecked and is in the care, custody or control of the person (anywhere in Australia).

ss 10ZE–10ZN: Ins 1996 No 146, Sch 1 [3].

10ZL False or misleading information

A person must not, in purported compliance with this Part or the regulations under this Part, provide information to the Authority that the person knows to be false or misleading in a material particular.

Maximum penalty: 20 penalty units.

ss 10ZE–10ZN: Ins 1996 No 146, Sch 1 [3].

10ZM Unauthorised access to or interference with register

A person must not, except as authorised by the Authority or other lawful authority:

(a)  obtain access to the register or information contained in the register, or

(b)  make, alter or delete an entry in the register, or

(c)  interfere with the register in any other way.

Maximum penalty: 20 penalty units.

ss 10ZE–10ZN: Ins 1996 No 146, Sch 1 [3].

10ZN Unauthorised disclosure of information

A person must not disclose any information obtained in connection with the administration or execution of this Part, except:

(a)  with the consent of the person from whom the information was obtained, or

(b)  in connection with the administration or execution of this Act or the regulations, or

(c)  for the purposes of any legal proceedings arising out of this Act or the regulations or of any report of such proceedings, or

(d)  with other lawful excuse.

Maximum penalty: 20 penalty units.

ss 10ZE–10ZN: Ins 1996 No 146, Sch 1 [3].

10ZO Removal of vehicle identifiers

(1)  An insurer, auto-dismantler, dealer or other person required to provide information to the Authority under this Part may be required to take any reasonable steps, or to ensure that such steps are taken, to remove, deface, obliterate or destroy the vehicle identifier on any part of a motor vehicle that has been written off or wrecked.

(2)  The requirement may be made:

(a)  by the regulations, or

(b)  by notice in writing served on the person by the Authority.

(3)  A notice under this section may be served personally or by post.

(4)  A person must comply with a requirement made under this section.

Maximum penalty: 20 penalty units.

s 10ZO: Ins 1996 No 146, Sch 1 [3] (am 1998 No 26, Sch 2.7 [2]).

10ZP Authority may refuse to register motor vehicle that has written off or wrecked vehicle identifier

(1)  The Authority may refuse to register any motor vehicle if its vehicle identifier is the same as the vehicle identifier of a motor vehicle that has been noted on the register as being written off or wrecked.

(2)  Subsection (1) does not apply:

(a)  in the case of a motor vehicle that was written off because it was stolen—if the Authority is satisfied that the motor vehicle has been recovered, or

(b)  in the case of a motor vehicle that was written off because it was damaged—if the Authority is satisfied that the motor vehicle has been restored or repaired, or

(c)  in any other circumstances prescribed by the regulations.

(3)  This section does not limit the power of the Authority to refuse to register a motor vehicle under any other provision of this Act or the regulations.

ss 10ZP–10ZS: Ins 1996 No 146, Sch 1 [3].

10ZQ Variations to Part

The regulations may provide that this Part or any specified provision of this Part:

(a)  does not apply to and in respect of:

(i)  any specified motor vehicle or class of motor vehicles, or

(ii)  any specified person or class of persons, or

(b)  applies only in respect of:

(i)  any specified motor vehicle or class of motor vehicles, or

(ii)  any specified person or class of persons.

ss 10ZP–10ZS: Ins 1996 No 146, Sch 1 [3].

10ZR Exemptions

(1)  The Authority may, by instrument in writing, exempt any person from the operation of all or any of the provisions of this Part.

(2)  An exemption:

(a)  may be absolute or subject to conditions, and

(b)  if subject to conditions, has effect only while the conditions are observed.

ss 10ZP–10ZS: Ins 1996 No 146, Sch 1 [3].

10ZS Regulations

(1)  The regulations may make provision for or with respect to giving effect to the object of this Part.

(2)  In particular, the regulations may prescribe the form and manner in which the information required to be provided under this Part is to be provided to the Authority.

ss 10ZP–10ZS: Ins 1996 No 146, Sch 1 [3].

Part 4 General and supplemental

11 Inconsistency of regulation or by-law

When any regulation or by-law or ordinance is inconsistent with a regulation made under this Act, the latter shall prevail, and the former, to the extent of the inconsistency, be invalid.

s 11: Am 1915 No 11, sec 8.

11AA–11AC (Repealed)

s 11AA: Ins 1987 No 95, Sch 1 (6). Am 1988 No 82, Sch 1 (4); 1988 No 110, Sch 1 (18) (20). Rep 1998 No 99, Sch 1.13 [38].

s 11AB: Ins 1987 No 95, Sch 1 (6). Am 1988 No 110, Sch 1 (18); 1989 No 153, Sch 1 (13); 1990 No 96, Sch 3 (3); 1998 No 70, Sch 1 [59]; 1998 No 120, Sch 2.38. Rep 1998 No 99, Sch 1.13 [39].

s 11AC: Ins 1987 No 95, Sch 1 (6). Am 1988 No 110, Sch 1 (18). Subst 1989 No 153, Sch 1 (14). Rep 1998 No 99, Sch 1.13 [40].

11AD Demand for production of driver licence

(1)  A person who (knowing that he or she is not by law authorised to require its production) demands production by another person of that other person’s driver licence is guilty of an offence under this Act.

(2)  For the purposes of this section, the making of a statement that could reasonably be understood, by the person to whom the statement is made, as indicating that that person is being required to produce his or her driver licence shall be taken to be a demand for its production.

(3)  Nothing in this section prohibits a request for production of a driver licence as a means of evidencing the identity or age of a person:

(a)  in connection with the supply of any goods or services, or

(b)  in connection with the conferring of any right, title or benefit, or

(c)  in other circumstances,

where it is reasonable for the person making the request to require evidence of the other person’s identity or age.

s 11AD: Ins 1988 No 82, Sch 1 (5). Am 1998 No 99, Sch 1.13 [30] [41].

11AE Downgrading of driver licences

(1)  If a driver licence is cancelled:

(a)  by the operation of this Act as a result of the imposition on the licensee of a period of disqualification from holding a driver licence, or

(b)  by the Authority the Road Transport (Driver Licensing) Act 1998:

(i)  because of the licensee’s driving record of offences or alleged offences, or

(ii)  because of an alleged speeding offence referred to in section 33 of the Road Transport (Driver Licensing) Act 1998,

the Authority may, if the offence or offences (or alleged offence or offences) that gave rise to the cancellation arose wholly or mainly out of the use of a motor vehicle or trailer of a class prescribed for the purposes of this section, issue the former licensee with another driver licence (being one that does not authorise the driving of motor vehicles or trailers of that class) in substitution for the cancelled driver licence.

(2)  The regulations may make provision with respect to the exercise by the Authority of its power under this section, and that power is to be exercised in conformity with any such provision.

(3)  Nothing in this section:

(a)  limits any discretion of the Authority to decline to issue a driver licence to a person, or

(b)  permits the issue of any driver licence to a person who for the time being is disqualified from holding one.

s 11AE: Ins 1989 No 153, Sch 1 (15). Am 1997 No 115, Sch 2 [6]; 1998 No 99, Sch 1.13 [42] [43] [44] (am 1999 No 31, Sch 2.36 [2]).

11A, 11B (Repealed)

s 11A: Ins 1930 No 18, sec 180 (a). Am 1987 No 8, Sch 1 (4); 1997 No 115, Schs 2 [6], 3 [2]. Rep 1997 No 119, Sch 1 [10].

s 11B: Ins 1930 No 18, sec 180 (a). Am 1983 No 102, Sch 1 (6); 1988 No 110, Sch 1 (18); 1990 No 46, Sch 2. Rep 1997 No 119, Sch 1 [10].

11C Seizure of number-plate

Any member of the police force or person authorised in that behalf by the Authority may seize any number-plate:

(a)  which is attached to:

(i)  a motor vehicle or trailer the registration of which has expired not less than 15 days before the date on which the number-plate is seized, or

(ii)  a motor vehicle or trailer the registration of which has been cancelled, or

(b)  which has been used in contravention of section 7.

s 11C: Ins 1983 No 102, Sch 1 (7). Am 1988 No 110, Sch 1 (18); 1997 No 115, Sch 2 [6].

11D (Repealed)

s 11D: Ins 1992 No 30, sec 4. Am 1997 No 115, Sch 2 [6]. Rep 1997 No 119, Sch 1 [10].

12 Records and evidence

(1), (2)    (Repealed)

(3)  A certificate purporting to be signed by a prescribed officer and certifying that on any date or during any period specified in the certificate a person so specified was, pursuant to a regulation under section 3 (1) (q11) or (q12), a person to be treated as being, for the purposes of section 18A, the owner of a motor vehicle or trailer so specified shall, in all courts and upon all occasions whatsoever, without proof of the signature or of the official character of the person purporting to have signed the certificate and without the production of any record or document upon which the certificate is founded, be prima facie evidence of the particulars certified in and by the certificate.

(4)  A certificate purporting to be signed by a prescribed officer and certifying that on any date or during any period specified in the certificate the particulars set forth in the certificate did or did not appear on the register kept under Part 3E (Written off and wrecked motor vehicles) is, in all courts and on all occasions, without proof of the signature or of the official character of the person purporting to have signed the certificate and without the production of any record or document on which the certificate is founded, prima facie evidence of the particulars certified in and by the certificate.

s 12: Subst 1930 No 18, sec 180 (b); 1955 No 49, sec 3 (b). Am 1978 No 122, Schs 1 (3), 2 (17); 1988 No 110, Sch 1 (18); 1996 No 146, Sch 1 [4]; 1997 No 115, Sch 2 [6] [16]; 1997 No 119, Sch 1 [11]; 1998 No 99, Sch 1.13 [45].

13 (Repealed)

s 13: Subst 1930 No 18, sec 180 (c); 1978 No 122, Sch 2 (18). Rep 1987 No 48, Sch 32.

14 Court may order compensation for damages etc

In any conviction under this Act or the regulations, the court may order such payment as compensation for loss of time or expense incurred in consequence of the offence of which the defendant was convicted, as it thinks fit.

15 Compensation for loss of time

If an information or complaint is laid or made by any person other than a member of the police force for any offence punishable in pursuance of this Act or the regulations, and the proceedings are dismissed or withdrawn, the court may, if it thinks fit, order that the said person pay to the defendant, in addition to any costs, such compensation for loss of time or otherwise as seems reasonable; and the court of appeal shall have like power in respect of any proceedings taken before such court.

16 Persons in service of the Crown

It is hereby declared that this Act and the regulations apply to persons in the public service of the Crown.

17 Common law or statute liability

(1)  Nothing in this Act shall affect any liability of any person by virtue of any statute or at common law.

(2)  Notwithstanding subsection (1), any matter or thing done by a member of the police force shall not, if the matter or thing was done bona fide in pursuance of, and for the purpose of, section 26A or any regulation made under section 3 (1) (q5), subject the member to any action, liability, claim or demand.

s 17: Am 1982 No 151, Sch 1 (3); 1983 No 35, Sch 1 (1); 1998 No 1, Sch 1 [1]; 1998 No 99, Sch 1.13 [46].

17A (Repealed)

s 17A: Ins 1983 No 35, Sch 1 (2). Am 1988 No 110, Sch 1 (18) (21). Rep 1998 No 99, Sch 1.13 [47].

17B Use of samples for accident research

(1)  Where a sample of blood is provided in accordance with section 4F:

(a)  the sample or any part of it, and

(b)  any sample of saliva voluntarily provided at the same time,

may be used in any research programme which is related to road safety and has been approved by the Minister.

(2)  The results of research carried out under this section with respect to the blood or saliva of a person shall not be admissible as evidence of the presence of any drug in the blood or saliva of the person.

(3)  A person who carries out research under this section with respect to blood or saliva is guilty of an offence under this Act and liable to a penalty not exceeding 5 penalty units if the person carries out the research in such a way as identifies the person who provided the blood or saliva.

s 17B: Ins 1987 No 44, Sch 2 (5). Am 1992 No 112, Sch 1.

17C Certificate evidence may specify minimum concentrations

If, in any proceedings in which evidence is permitted to be given of the results of an analysis, undertaken for the purposes of this Act, of a sample of a person’s blood or urine, evidence is given by a certificate under this Act to the effect that alcohol or another specified drug was found by the analysis to be present in the sample in a concentration not less than a specified concentration:

(a)  the certificate is to be treated as though it stated that the concentration of alcohol or of the other drug concerned was determined by the analysis to be present in the specified minimum concentration, and

(b)  the evidence given by the certificate is not open to challenge on the basis that the analysis, merely because it purports to determine a concentration in terms of a minimum, does not meet the requirements of this Act.

s 17C: Ins 1990 No 96, Sch 1 (4).

18 (Repealed)

s 18: Am 1915 No 11, sec 9; 1930 No 18, sec 180 (d); 1983 No 102, Sch 1 (8); 1997 No 115, Sch 2 [6]. Rep 1997 No 119, Sch 1 [12].

18A Liability of vehicle owner for designated offences

(1)  When a designated offence occurs in relation to any motor vehicle or trailer the person who at the time of the occurrence of the offence is the owner of the motor vehicle or trailer shall, by virtue of this section, be guilty of an offence under the provision concerned in all respects as if the person were the actual offender guilty of the designated offence unless:

(a)  in any case where such offence is dealt with under section 18B, such owner satisfies the prescribed officer under section 18B that such vehicle was at the relevant time a stolen vehicle or a vehicle illegally taken or used,

(b)  in any other case the court is satisfied that such vehicle was at the relevant time a stolen vehicle or a vehicle illegally taken or used.

(2)  Nothing in this section shall affect the liability of the actual offender but where a penalty has been imposed on or recovered from any person in relation to any designated offence no further penalty shall be imposed on or recovered from any other person in relation thereto.

(3)  Notwithstanding anything in the foregoing provisions of this section no owner of a motor vehicle or trailer shall by virtue of this section be guilty of a parking offence if:

(a)  in any case where such offence is dealt with under section 18B, the owner:

(i)  within twenty-one days after service on the owner of a notice under section 18B alleging that the owner has been guilty of such offence, supplies by statutory declaration to the prescribed officer under section 18B the name and address of the person who was in charge of the vehicle at all relevant times relating to the parking offence concerned, or

(ii)  satisfies such prescribed officer that the owner did not know and could not with reasonable diligence have ascertained such name and address,

(b)  in any other case the owner:

(i)  within twenty-one days after service on the owner of a summons in respect of such offence, supplies by statutory declaration to the informant the name and address of the person who was in charge of the vehicle at all relevant times relating to the parking offence concerned, or

(ii)  satisfies the court that the owner did not know and could not with reasonable diligence have ascertained such name and address.

(3A)  A person who:

(a)  is served with a notice under section 18B, or a summons, in respect of a camera-detected traffic light offence or camera-recorded speeding offence, and

(b)  was not the driver of the vehicle to which the offence relates at the time the offence occurred,

shall, within 21 days after service of the notice or summons, supply by statutory declaration to the prescribed officer under section 18B (in the case of a notice) or the informant (in the case of a summons) the name and address of the person who was in charge of the vehicle at the time the offence occurred.

(3B)  A person who fails to comply with subsection (3A) is guilty of an offence under this Act unless the person satisfies:

(a)  in the case of a notice—the prescribed officer,

(b)  in the case of a summons—the court dealing with the camera-detected traffic light offence or camera-recorded speeding offence, or

(c)  in either case—the court dealing with the offence of failing to comply with subsection (3A),

that he or she did not know and could not with reasonable diligence have ascertained that name and address.

(3C)  A person who, in a statutory declaration supplied under subsection (3A), falsely nominates another person as the person who was in charge of the vehicle at the time the offence occurred is guilty of an offence under this Act.

(3D)  Any person who is guilty of an offence by virtue of subsection (3B) or (3C) shall be liable:

(a)  if the offence relates to a motor vehicle registered otherwise than in the name of a natural person—to a penalty not exceeding 10 penalty units, or

(b)  in any other case—to a penalty not exceeding 5 penalty units.

(3E)  A person who is served with a notice under section 18B, or a summons, in respect of a camera-detected traffic light offence or camera-recorded speeding offence shall not by virtue of this section be guilty of that offence if the person:

(a)  complies with subsection (3A) in relation to the offence, or

(b)  satisfies the prescribed officer (in the case of a notice) or the court (in the case of a summons) that he or she did not know and could not with reasonable diligence have ascertained the name and address of the person who was in charge of the vehicle at the time the offence occurred.

(4)  A statutory declaration under subsection (3) or (3A), if produced in any proceedings against the person named in the declaration and in respect of the designated offence concerned, shall be prima facie evidence:

(a)  in the case of a statutory declaration relating to a parking offence—that the person was in charge of the vehicle at all relevant times relating to the parking offence, or

(b)  in the case of a statutory declaration relating to a camera-detected traffic light offence or camera-recorded speeding offence—that the person was the driver of the vehicle at the time the offence occurred.

(4A)  A statutory declaration which relates to more than one designated offence shall not be deemed to be a statutory declaration under, or for the purposes of, subsection (3) or (3A).

(5)  In this section:

Camera-detected traffic light offence means a traffic light offence as defined in section 4DA in respect of which:

(a)  the notice under section 18B, or

(b)  the summons,

indicates that the offence was detected by an approved camera detection device.

Camera-recorded speeding offence means a speeding offence in respect of which:

(a)  the notice under section 18B, or

(b)  the summons,

indicates that the offence was detected by an approved speed measuring device and recorded by an approved camera recording device.

Designated offence means a camera-detected traffic light offence, a camera-recorded speeding offence or a parking offence.

Owner in relation to a motor vehicle or trailer includes:

(a)  every person who is the owner or joint owner or part owner of the vehicle and any person who has the use of the vehicle under a hire-purchase agreement but not the lessor under any such agreement,

(b)  the person in whose name the vehicle is registered except where such person has sold or otherwise disposed of the vehicle and has complied with the provisions of the regulations applicable to him or her in regard to such sale or disposal,

(c)  in the case of a vehicle to which a trader’s plate is affixed, the person to whom such trader’s plate is in issue, or

(d)  a person who, pursuant to a regulation under section 3 (1) (q11) or (q12), is to be treated as being, for the purposes of this section, the owner of the vehicle.

Parking offence means any offence of standing or parking a motor vehicle or trailer or of causing or permitting a motor vehicle or trailer to stand, wait or be parked in contravention of any regulation.

(6)  The provisions of this section shall be in addition to and not in derogation of any other provisions of this or any other Act.

s 18A: Ins 1957 No 67, sec 2. Am 1961 No 4, sec 2 (g); 1962 No 36, sec 2 (1) (d); 1966 No 60, sec 2 (c); 1978 No 122, Schs 1 (4), 2 (19); 1986 No 161, Sch 1 (3); 1988 No 110, Sch 1 (22); 1990 No 53, Sch 1 (4); 1992 No 71, sec 3; 1992 No 112, Sch 1; 1997 No 115, Sch 2 [6] (am 1998 No 120, Sch 2.39 [2]); 1998 No 54, Sch 2.35 [2].

18B Penalty notices for certain offences

(1)  Where it appears to a member of the police force or a prescribed officer that any person:

(a)  has committed, or by virtue of section 18A is guilty of, any prescribed offence under this Act or the regulations,

(aa), (b)    (Repealed)

(bb)  has committed, or by virtue of section 651 of the Local Government Act 1993, is guilty of, an offence under section 650 (1) or (4) of that Act,

(c)  has committed any prescribed offence under the Passenger Transport Act 1990 or any regulation made under that Act,

(ca)  has committed any prescribed offence under the Driving Instructors Act 1992 or any regulation made under that Act,

(cb)  has committed any prescribed offence under the Motor Vehicles Taxation Act 1988 or any regulation made under that Act,

(cc)  has committed any prescribed offence under the Road Transport (Heavy Vehicles Registration Charges) Act 1995 or any regulation made under that Act,

(cd)  has committed any prescribed offence under the Road Transport (Vehicle Registration) Act 1997 or any regulation made under that Act,

(d)  has committed any prescribed offence under the Motor Vehicles (Third Party Insurance) Act 1942 or any regulation made thereunder,

(da)  has committed any prescribed offence under the Transport Accidents Compensation Act 1987 or any regulation made under that Act,

(db)  has committed a prescribed offence under the Motor Accidents Compensation Act 1999 or the regulations made under that Act,

(dc)    (Repealed)

(dd)  has committed any prescribed offence under the Road Transport (Driver Licensing) Act 1998 or any regulation made under that Act,

(e), (f)    (Repealed)

(g)  has committed any prescribed offence under the Recreation Vehicles Act 1983 or any regulation made thereunder, or

(h)  has committed, or by virtue of section 244 of the Roads Act 1993 is guilty of, any prescribed offence under that Act or the regulations under that Act,

such member of the police force or prescribed officer may serve a notice on such person to the effect that if such a person does not desire to have the matter determined by a court, such person may pay to an officer specified in such notice within the time specified therein an amount of penalty prescribed for such offence if dealt with under this section.

(2)  Any notice under subsection (1):

(a)  may be served personally or by post,

(b)  if it relates to an offence of which the owner of a motor vehicle or trailer is guilty by virtue of section 18A of this Act or section 651 of the Local Government Act 1993, may:

(i)  be served personally or by post, or

(ii)  be addressed to the owner without naming the owner or stating his or her address and may be served by leaving it on or attaching it to the vehicle.

(3)    (Repealed)

(4)  Where the amount of any prescribed penalty for an alleged offence is paid pursuant to this section no person shall be liable for any further proceedings for the alleged offence.

(4A)  Subsection (4) does not affect any power of the Authority under section 11AE.

(5)  Payment of a penalty pursuant to this section shall not be regarded as an admission of liability for the purpose of nor in any way affect or prejudice any civil claim action or proceeding arising out of the same occurrence.

(6)  The regulations may:

(a)  prescribe the offences which shall be prescribed offences for the purposes of this section:

(i)  by setting out those offences,

(ii)  by referring to the provisions creating those offences,

(iii)  by providing that all offences under a specified Act, Part of an Act, or Division of a Part of an Act, or under specified regulations (being an Act, a Part or a Division or regulations referred to in subsection (1)), shall be prescribed offences for the purposes of this section, or

(iv)  by providing that all offences under any such Act, Part, Division or regulations, other than such of those offences as are specified in the regulations, shall be prescribed offences for the purposes of this section,

(b)  prescribe the amount of penalty payable under this section for any prescribed offence,

(c)  prescribe different amounts of penalties for different prescribed offences or classes of prescribed offences or for different prescribed offences or classes of prescribed offences having regard to the circumstances thereof.

No offence in respect of which a penalty of imprisonment may be imposed under this Act (except an offence against section 6 (1C)) or the Motor Accidents Act 1988 shall be prescribed for the purposes of this section as a prescribed offence.

(7)  No penalty prescribed under this section for any prescribed offence shall exceed any maximum amount of penalty which could be imposed for such offence by a court.

(8)  The provisions of this section are supplemental to and not in derogation of the provisions of any other section of this Act or any other Act in relation to proceedings which may be taken in respect of prescribed offences.

s 18B: Ins 1961 No 4, sec 2 (h). Am 1978 No 122, Schs 1 (5), 2 (20); 1981 No 93, Sch 1; 1983 No 34, Sch 1; 1983 No 139, Sch 1 (3); 1984 No 128, Sch 1; 1987 No 95, Sch 3 (5); 1987 No 102, Sch 1; 1988 No 103, Sch 1; 1988 No 110, Sch 1 (23); 1989 No 36, sec 2; 1989 No 153, Sch 1 (16); 1990 No 108, Sch 1; 1991 No 24, Sch 2; 1992 No 3, Sch 2; 1992 No 34, Sch 1; 1992 No 67, Sch 1; 1993 No 14, sec 3; 1993 No 34, Sch 1 (4) (a); 1994 No 44, Sch 19; 1995 No 11, Sch 1; 1995 No 73, Sch 3 (1); 1997 No 115, Schs 2 [6], 3 [3]; 1997 No 119, Sch 1 [14]; 1997 No 156, Sch 4.18; 1998 No 99, Schs 1.13 [48] [49], 2 [19]; 1998 No 111, Sch 3.5 [1]; 1999 No 41, Sch 4.14.

18C (Repealed)

s 18C: Ins 1965 No 32, sec 27. Am 1968 No 3, sec 14; 1970 No 85, sec 6. Rep 1973 No 11, sec 7. Ins 1987 No 252, sec 3. Am 1988 No 75, Sch 1; 1988 No 110, Sch 1 (24) (25); 1995 No 16, Sch 1. Rep 1996 No 99, Sch 2.17 [2].

19 Recovery of penalty

Any penalty imposed by this Act or the regulations may be recovered before a stipendiary magistrate or any two justices in petty sessions.

s 19: Am 1978 No 122, Sch 2 (21).

20 (Repealed)

s 20: Ins 1930 No 18, sec 180 (e). Am 1969 No 32, sec 3 (b); 1970 No 11, Sch; 1983 No 102, Sch 1 (9); 1985 No 140, Sch 1. Rep 1988 No 110, Sch 1 (26).

21 Authority to notify certain decisions

(1)  If the Authority decides to refuse to grant, renew or transfer, or decides to cancel, the registration of a motor vehicle or trailer, the Authority must cause:

(a)  the person applying for the grant, renewal or transfer of the registration, or

(b)  the holder of the registration suspended or cancelled,

to be served personally or by post with a notice setting out the decision and the reason for it.

(2)  A decision of the Authority to cancel the registration of a motor vehicle or trailer shall have effect on and from the date on which the holder of the registration is notified in accordance with subsection (1).

(3), (4)    (Repealed)

(5)  Subsection (2) does not affect the right of any person to appeal under section 22 or the powers of a Local Court under that section.

(6), (7)    (Repealed)

(8)  This section does not apply to the suspension or cancellation of a registration of a vehicle, or the refusal to exercise a function, under Part 4 of the Fines Act 1996.

s 21: Ins 1973 No 21, sec 3 (b). Am 1978 No 122, Sch 2 (22); 1979 No 157, sec 2 (c). Subst 1987 No 95, Sch 2 (6). Am 1988 No 110, Sch 1 (24); 1996 No 99, Sch 2.17 [3]; 1997 No 115, Sch 2 [6]; 1998 No 99, Sch 1.13 [50]–[53].

22 Appeals

(1)  Subject to subsection (8), any person aggrieved by a decision of the Authority notified to the person pursuant to section 21 may appeal against the decision to a Local Court constituted by a Magistrate.

(2)  Notice of any such appeal specifying the grounds of the appeal shall be lodged with the clerk of the Local Court to which the appeal is being made not later than twenty-one days after the date on which the appellant was notified pursuant to section 21 of the decision appealed against.

(3)  The clerk of the Local Court shall give notice of the time and place of the hearing of any such appeal to the Authority and to the appellant, and in the notice to the Authority shall notify the Authority as to the grounds of the appeal.

(4)  The hearing of an appeal may proceed notwithstanding any omission or error in a notice under subsection (3) or the failure to give any such notice if the Court is satisfied that the appellant and the Authority had knowledge of the time and place of the hearing and were not prejudiced by any such omission or error or by the failure to give any such notice.

(5)  A Local Court shall hear and determine an appeal made to it under this section and may confirm (with or without variation) or disallow the decision appealed against, or make such other order in the circumstances as to the Court seems just.

(6)  For the purposes of varying under subsection (5) a decision of the Authority the Court may exercise only such powers as the Authority could have exercised under this Act or the regulations when making that decision.

(6A)    (Repealed)

(7)  The decision of a Local Court in respect of an appeal made under this section shall be final and shall be binding on the appellant and on the Authority.

(8)  A person who requests the Authority by instrument in writing to appoint a date under section 21 (4) shall not have a right of appeal under this section.

(9)  This section does not apply to the suspension or cancellation of a registration of a vehicle, or the refusal to exercise a function, under Part 4 of the Fines Act 1996.

s 22: Ins 1973 No 21, sec 3 (b). Am 1978 No 122, Sch 2 (23); 1987 No 95, Schs 2 (7), 3 (6); 1988 No 110, Sch 1 (24) (27); 1989 No 153, Sch 1 (17); 1996 No 99, Sch 2.17 [4]; 1998 No 99, Sch 1.13 [54] [55].

23 Street may be closed temporarily to traffic

(1)  Any member of the police force may:

(a)  close any road or road related area to traffic during any temporary obstruction or danger to traffic or for any temporary purpose, and

(b)  prevent the traffic of any vehicles or horses in any road or road related area closed to traffic under paragraph (a) or under the authority of any other Act.

(2)  A person who, without reasonable excuse, does not comply with any direction of a member of the police force under this section is guilty of an offence and liable to a penalty not exceeding 2 penalty units.

s 23: Ins 1988 No 110, Sch 1 (28). Am 1992 No 112, Sch 1.

24 Use of tyre deflation devices in police pursuits

(1)  The Commissioner of Police may authorise the use by police officers of a device (a tyre deflation device) that causes the deflation of the tyres of a vehicle, for use by police to stop or assist in the stopping of a vehicle in connection with the pursuit of the vehicle by police.

(2)  Provision made by or under an Act that would operate to prohibit or restrict the placement or deployment on or near a road or road related area of a tyre deflation device does not apply to the placing or deploying of a tyre deflation device by a police officer acting in the exercise of his or her duties.

(3)  This section ceases to have effect at the beginning of the day that is 1 year after the day on which this section commences unless either House of Parliament passes a resolution that this section is not to cease to have effect in accordance with this subsection.

(4)  Either House of Parliament may pass a resolution that this section is not to cease to have effect in accordance with subsection (3), but any such resolution has no effect unless passed before the time at which this section would, but for the resolution, cease to have effect.

s 24: Ins 1988 No 110, Sch 1 (29). Am 1995 No 73, Sch 3 (2); 1997 No 115, Sch 2 [6]. Rep 1997 No 119, Sch 1 [15]. Ins 1998 No 112, Sch 1.

25 Removal of dangers and obstructions to traffic

(1)  If a danger or obstruction to traffic on a road or road related area is caused by:

(a)  a vehicle that has been involved in an accident or has broken down, or

(b)  any thing that has fallen, escaped or been removed from a vehicle, or

(c)  any container used for transporting materials or refuse (including a building skip),

an authorised officer may remove the vehicle, thing or container and take such other steps as may be necessary to protect the public and facilitate the free flow of traffic.

(2)  The appropriate roads authority may, by proceedings brought in a court of competent jurisdiction, recover as a debt from the responsible person the expenses that that authority has incurred in exercising the functions conferred by this section.

(2A)  A certificate that is issued on behalf of the appropriate roads authority by a person prescribed by the regulations, or by a person belonging to a class of persons so prescribed, being a certificate that states that:

(a)  a specified amount represents the costs incurred by the authority in carrying out specified work or in taking specified action for the purposes of this section, or

(b)  a specified amount represents the costs incurred by the authority in relation to the exercise by an authorised officer of a function under this section,

is admissible in any legal proceedings and is evidence of the fact or facts so stated.

(3)  In this section:

appropriate roads authority means:

(a)  in relation to any road or road related area within a local government area—the council of that area, and

(b)  in relation to a classified road (within the meaning of the Roads Act 1993)—the Authority, and

(c)  in relation to that part of a road or road related area used for the passage of light rail vehicles or as an access to light rail vehicles—the Director-General of the Department of Transport and the operator of the light rail system.

authorised officer means:

(a)  an employee in the service of the appropriate roads authority authorised by that authority to exercise the powers conferred by this section, or

(b)  a police officer, or

(c)  a person of a class prescribed by the regulations who is authorised by the appropriate roads authority to exercise the functions of an authorised officer under this section.

responsible person means:

(a)  in relation to a vehicle—the person who had custody of the vehicle at the time of the accident or breakdown, or

(b)  in relation to any thing that has fallen, escaped or been removed from a vehicle—the person who had custody of the vehicle at the time of the fall, escape or removal, or

(c)  in relation to a container—the person who had custody of the container at the time it was placed in such a way as to cause danger or an obstruction to traffic.

s 25: Ins 1993 No 34, Sch 1 (5). Am 1994 No 44, Sch 19; 1996 No 128, Sch 2.5 [6].

26 Removal of unattended motor vehicles or trailers from clearways, transit lanes and other places

(1)  An authorised officer may cause an unattended motor vehicle or trailer unlawfully standing on a clearway, transit lane or other prescribed place to be removed in accordance with this section if, in the opinion of the officer, the vehicle is causing, or unless removed is likely to cause, danger to the public or undue traffic congestion.

(1A)  An authorised officer may cause an unattended motor vehicle or trailer unlawfully standing on any place to be removed in accordance with this section if, in the opinion of the officer, it is obstructing the passage of a light rail vehicle.

(2)  A motor vehicle or trailer is removed in accordance with this section if:

(a)  it is removed to a nearby place at which, in the opinion of the authorised officer concerned, the vehicle may lawfully stand without being likely to cause danger to the public or undue traffic congestion, or an obstruction to the passage of a light rail vehicle, and

(b)  as soon as practicable after removal, the Authority or the authorised officer concerned reports the removal and the location of the motor vehicle or trailer to the police officer in charge of a police station in the vicinity with a request that the owner or other person entitled to possession of the motor vehicle or trailer be notified of the place to which it has been removed.

(3)  If a motor cycle is moved to the footpath adjacent to the clearway, transit lane or other place where it was standing it is not necessary that the owner or other person entitled to possession of the motor cycle be notified of the place to which it has been removed.

(4)  If a motor vehicle or trailer:

(a)  is removed in accordance with this section, or

(b)  is attached to a tow truck for the purpose of being removed pursuant to this section,

the Authority may require the owner of the vehicle or the person who left it unattended to pay to the Authority the prescribed tow-away charge within a time specified by the Authority.

(5)  The owner of a vehicle is not required to pay the prescribed tow-away charge if the owner:

(a)  satisfies the Authority that the vehicle was at the relevant time a stolen vehicle or a vehicle illegally taken or used, or

(b)  supplies by statutory declaration to the Authority the name and address of the person (not being the owner) who was in charge of the vehicle at all relevant times, or

(c)  satisfies the Authority that he or she did not know and could not with reasonable diligence have ascertained such name and address.

(6)  A person who fails to pay the prescribed tow-away charge within the time specified by the Authority is guilty of an offence.

Maximum penalty: 2 penalty units.

(7)  A statutory declaration under subsection (5) (b), if produced in any proceedings against the person named in the declaration and in respect of the offence of failure to pay the prescribed tow-away charge, is prima facie evidence that the person left the vehicle unattended on the clearway, transit lane or other place.

(8)  In this section authorised officer means:

(a)  an employee in the service of the Authority authorised by the Authority to exercise the powers conferred by this section, or

(b)  a police officer, or

(b1)  a person, or a person of a class, who is authorised by the Director-General of the Department of Transport to exercise the functions of an authorised officer under this section, but only in respect of the removal of unattended vehicles obstructing the passage of light rail vehicles, or

(c)  a person of a class prescribed by the regulations who is authorised by the Authority to exercise the functions of an authorised officer under this section.

s 26: Ins 1993 No 34, Sch 1 (5). Am 1994 No 44, Sch 19; 1996 No 128, Sch 2.5 [7]–[9]; 1997 No 115, Sch 2 [6]; 1998 No 111, Sch 3.5 [2].

26A Power to prevent driving by persons who are under the influence of alcohol or other drugs

(1)  If a police officer is of the opinion that a person who is driving (or about to drive) a motor vehicle is under the influence of alcohol or any other drug, the police officer may:

(a)  prohibit the person from driving the vehicle while the person is under the influence of alcohol or that other drug, and

(b)  require the person to immediately hand over all ignition or other keys of the motor vehicle in the person’s actual possession:

(i)  to the police officer, or

(ii)  to another person in the company of the person who is driving or about to drive the motor vehicle, being another person whom the police officer is satisfied is responsible and capable of exercising proper control of the motor vehicle, and

(c)  take such other steps as, in the opinion of the police officer, are necessary in order to:

(i)  immobilise the motor vehicle, or

(ii)  remove the motor vehicle to a place of safety and detain it at that place.

(2)  If the police officer is of the opinion that the person concerned is under the influence of alcohol, the person is entitled to request that the person undergo a breath test in order to determine whether or not the person is under the influence of alcohol. If such a request is made, the police officer may not take any action under subsection (1) until the person undergoes the breath test.

(3)  Subsection (1) does not authorise the confiscation of any keys, or the immobilisation, removal or detention of any motor vehicle, for any period that is longer than necessary in the circumstances and in the interest of the person driving (or about to drive) or of any other person or of the public.

(4)  It is lawful for a police officer to retain any keys that are confiscated under subsection (1), or for any motor vehicle to be immobilised or detained under that subsection, until such time as:

(a)  the return of the keys or the motor vehicle is requested by a person, and

(b)  the police officer to whom the request is made:

(i)  is satisfied that the person making the request is capable of exercising proper control of the motor vehicle, or

(ii)  is informed by a registered medical practitioner (not being the person making the request) that the person making the request is not under the influence of alcohol or any other drug.

However, the person making the request is entitled to possession of the keys or motor vehicle concerned only if the police officer is satisfied that the person is entitled to lawful possession of the motor vehicle.

(5)  If the keys or the motor vehicle are not returned within 24 hours after such a request is made, the person may apply to a Local Court for an order for the keys or motor vehicle to be returned to the person.

(6)  A person who:

(a)  contravenes any prohibition or requirement made by a police officer under subsection (1), or

(b)  in any manner attempts to obstruct a police officer in the exercise of any power conferred on the police officer under subsection (1),

is guilty of an offence and liable to a penalty not exceeding 10 penalty units.

(7)  A court may only find a person guilty of an offence under subsection (6) if the court is satisfied that the police officer had reasonable grounds for believing that, in the circumstances, the action taken by the police officer was necessary in the interest of the person or of any other person or of the public.

(8)  The Commissioner of Police has (in the Commissioner’s official capacity) a duty to take all reasonable steps to secure a motor vehicle that is detained under subsection (1).

(9)  Any expenses incurred in connection with the immobilisation, removal or detention of a motor vehicle under subsection (1) may be recovered from the person who was driving (or about to drive) the vehicle, or from the owner of the vehicle, as a debt in a court of competent jurisdiction.

s 26A: Ins 1998 No 1, Sch 1 [2].

27 Savings, transitional and other provisions

Schedule 1 has effect.

s 27: Ins 1993 No 34, Sch 1 (6).

Schedule 1 Savings, transitional and other provisions

(Section 27)

Part 1 Preliminary

1 Regulations

(1)  The regulations may contain provisions of a savings or transitional nature consequent on the enactment of the following Acts:

Traffic (Parking Regulation) Amendment Act 1993

Traffic (Parking) Amendment Act 1994

Traffic Legislation Amendment Act 1997, but only in relation to the amendments made to this Act or regulations made under this Act

Roads and Traffic Legislation Amendment (Load Restraint) Act 1998

Road Transport (Driver Licensing) Act 1998

(2)  A provision referred to in subclause (1) may, if the regulations so provide, take effect on and from the date of assent to the Act concerned or a later day.

(3)  To the extent to which a provision referred to in subclause (1) takes effect from a date that is earlier than the date of its publication in the Gazette, the provision does not operate so as:

(a)  to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of its publication, or

(b)  to impose liabilities on any person (other than the State or an authority of the State) in respect of any thing done or omitted to be done before the date of its publication.

Part 1A

1A  (Repealed)

Part 2 Provisions consequent on the enactment of the Traffic (Parking Regulation) Amendment Act 1993

2 Definition

In this Part:

amending Act means the Traffic (Parking Regulation) Amendment Act 1993.

3 Parking meters etc

Any metered space provided, or any parking meter installed, under Division 13A of Part 9 of the Local Government Act 1919 immediately before the repeal of that Division is taken to be a metered space provided, or a parking meter installed, under Part 3B of this Act.

4 Fees for parking at parking meter

Any resolution made by a council under section 270H of the Local Government Act 1919 providing for the fixing of fees or charges and in force immediately before the repeal of that section, is taken to be a resolution made by the council providing for the fixing of fees under section 10R of this Act, as inserted by the amending Act.

5 Continuation of Ordinance 34A

(1)  Ordinance No 34A under the Local Government Act 1919 is taken to be a regulation under this Act, as amended by the amending Act, and may be amended and repealed accordingly.

(2)  A reference in that ordinance to a provision of the Local Government Act 1919 is taken to extend to the corresponding provision (if any) of this Act.

6 Application of section 25

Anything done under section 63 of the State Roads Act 1986 or section 267A of the Local Government Act 1919 is, after the repeal of those sections, taken to have been done under section 25 of this Act, as inserted by the amending Act.

7 Application of section 26

(1)  Anything done under section 65 of the State Roads Act 1986 is, after the repeal of that section, taken to have been done under section 26 of this Act, as inserted by the amending Act.

(2)  However, a failure to pay a charge is not an offence under section 26 if the charge was incurred before that repeal.

Part 3 Provisions consequent on the enactment of the Traffic Amendment (Learner Driver Supervisors) Act 1996

8 Transitional provisions

(1)  In this clause, the amending Act means the Traffic Amendment (Learner Driver Supervisors) Act 1996.

(2)  An amendment made by Schedule 1 to the amending Act does not apply in respect of an accident involving a motor vehicle that occurs before the amendment commences.

(3)  An amendment made by Schedule 2 to the amending Act does not apply in respect of a person accompanying the driver of a motor vehicle before the amendment commences.

(4)  References in this Act to section 4E (1D) are taken to be references to that subsection as in force before or after its repeal and re-enactment by the amending Act.

Part 4 Provisions consequent on enactment of Traffic Legislation Amendment Act 1997

9 Definitions

In this Part:

amending Act means the Traffic Legislation Amendment Act 1997.

public street means public street as defined in section 2 of this Act immediately before the commencement of Schedule 1 [1] to the amending Act.

10 Savings in relation to public streets

(1)  Any act, matter or thing:

(a)  that, immediately before the commencement of Schedule 1 [1] to the amending Act, had effect under this Act in relation to a public street is taken to have effect under this Act in relation to a road or road related area, or

(b)  that, immediately before the commencement of Schedule 1 [1] to the amending Act, was done or omitted to be done on or in relation to a public street is taken to have been done or omitted to be done on or in relation to a road or road related area.

(2)  Without limiting the generality of subclause (1), the following matters are taken to have effect under this Act in relation to a road or road related area:

(a)  any traffic control sign within the meaning of section 4D of this Act as in force immediately before the commencement of Schedule 1 [1] to the amending Act that was in effect under this Act in relation to a public street immediately before that commencement,

(b)  any speed limit that was applicable to a length of public street under this Act immediately before the commencement of Schedule 1 [1] to the amending Act,

(c)  any shared traffic zone or other traffic or parking arrangement that was in effect under this Act in relation to any public street immediately before commencement of Schedule 1 [1] to the amending Act.

11 Savings in relation to other matters

Any act, matter or thing:

(a)  that, immediately before the commencement of Schedule 2 [3] to the amending Act, had effect under this Act in relation to a road, motor vehicle, trailer or vehicle (as defined by this Act, or having the meaning it otherwise had, immediately before the commencement of that item) is taken to have effect under this Act in relation to a road, motor vehicle, trailer or vehicle within the meaning of this Act (as amended by the amending Act), or

(b)  that, immediately before the commencement of Schedule 2 [3] to the amending Act, was done or omitted to be done with, on or in relation to a road, motor vehicle, trailer or vehicle (as defined by this Act, or having the meaning it otherwise had, immediately before the commencement of that item) is taken to have been done or omitted to be done with, on or in relation to a road, motor vehicle, trailer or vehicle (as amended by the amending Act).

12 References to public street

Any reference in any Act (other than this Act or the amending Act) or instrument made under any Act or in any instrument of any kind to a public street within the meaning of this Act is taken to be a reference to a road or road related area within the meaning of this Act (other than a road or road related area that is the subject of a declaration made under section 2A (1) (b) of this Act).

13 References to motor vehicles

(1)  Any reference in any Act (other than this Act or the amending Act) or instrument made under any Act or in any instrument of any kind to a motor vehicle within the meaning of this Act (as defined immediately before the commencement of Schedule 2 [3] to the amending Act) is taken to be a reference to a motor vehicle or trailer within the meaning of this Act (as amended by the amending Act).

(2)  This clause does not apply to the Acts and Regulations amended by Schedules 4 and 5 to the amending Act.

14 References to trailers

(1)  Any reference in any Act (other than this Act or the amending Act) or instrument made under any Act or in any instrument of any kind to a trailer within the meaning of this Act (as defined immediately before the commencement of Schedule 2 [3] to the amending Act) is taken to be a reference to a trailer within the meaning of this Act (as amended by the amending Act).

(2)  This clause does not apply to the Acts and Regulations amended by Schedules 4 and 5 to the amending Act.

15 References to motor vehicle in Justices (Short Descriptions of Motor Traffic and Other Offences) Regulation 1986

(1)  A reference in column 1 or 2 of Schedule 1 to the Short Description Regulation to a motor vehicle in relation to an altered offence is taken to include a reference to a trailer.

(2)  A penalty notice issued after the commencement of Schedule 2 [1] to the amending Act which describes an altered offence concerning a trailer by reference to an existing short description for that offence contained in column 2 of the Short Description Regulation:

(a)  is taken to include a reference to a trailer, and

(b)  is not invalid only by reason of it describing the offence by reference to the existing short description.

(3)  In this clause:

altered offence means an offence specified in column 1 of the Short Description Regulation that is contained in a provision of an Act or Regulation that is amended by the amending Act to change references to a motor vehicle to references to a motor vehicle or trailer.

Short Description Regulation means so much of the Justices (Short Descriptions of Motor Traffic and Other Offences) Regulation 1986 as relates to the following:

(a)  the Motor Traffic Regulations 1935,

(b)  the Traffic Act 1909.

16 Validation of refunds for unregistered vehicle permits

Any refund or partial refund by the Authority of a fee paid for a permit referred to in section 3 (1) (j1) of this Act before its amendment by Schedule 3 [1] to the amending Act is taken to have been done lawfully despite anything in this or any other Act or law.

sch 1: Am 1915 No 11, sec 10; 1924 No 76, sec 3 (b); 1930 No 18, sec 181; 1949 No 35, sec 2 (b); 1951 No 59, sec 2 (1) (g). Subst 1956 No 1, sec 2 (2). Am 1962 No 36, sec 2 (1) (e); 1968 No 2, sec 5 (c). Subst 1971 No 58, sec 2 (b); 1974 No 57, sec 3 (b). Am 1978 No 122, Sch 2 (24). Rep 1985 No 140, Sch 1. Ins 1993 No 34, Sch 1 (6). Am 1994 No 8, Sch 1 (6); 1995 No 16, Sch 4; 1996 No 75, Sch 3; 1996 No 99, Sch 2.17 [5]; 1997 No 115, Sch 3 [4] [5]; 1998 No 25, Sch 2 [2]; 1998 No 99, Sch 1.13 [56] [57].

Schedule 2 Impounded and forfeited vehicles

(Sections 4BB, 4BC)

Editorial note—

The provisions of Schedule 2 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.

1 Definitions

In this Schedule:

Commissioner means the Commissioner of Police.

registered interest, in relation to a motor vehicle, means an interest in the vehicle that is registered under the Registration of Interests in Goods Act 1986.

2 Registered owner and interested persons to be notified

(1)  The Commissioner is to give notice of:

(a)  the impounding of a vehicle under section 4BB, or

(b)  the impounding, or continued or further impounding, or forfeiture, of a vehicle under section 4BC,

to the registered owner of the vehicle and to the holder of any registered interest in the vehicle.

(2)  The notice may be given personally or by post, and must be given within 14 days after the occurrence the subject of the notice.

(3)  The notice is to state the offence for which the vehicle stands impounded or forfeit, as the case may be.

3 Retention of vehicle impounded under section 4BB

(1)  The Commissioner is to retain a vehicle impounded under section 4BB until such time as the offence for which it was impounded is dealt with by a court or by the offender under section 18B, unless it is sooner released under clause 5 or 6 or in accordance with the regulations.

(2)  A vehicle that is retained in accordance with this clause until an offence is dealt with is thereafter to be dealt with as required by or under section 4BC.

(3)  This clause does not apply in the case of a vehicle impounded in the circumstances referred to in section 4BB (1) (b), except as prescribed by the regulations.

4 Retention of vehicle impounded or forfeited under section 4BC

(1)  A vehicle impounded under section 4BC is to be retained by the Commissioner for the time required by or under that section, unless it is sooner released under clause 5 or 6.

(2)  A vehicle forfeited under section 4BC is to be retained by the Commissioner until further directed by the Minister, unless it is sooner released under clause 5 or 6.

5 Release of vehicle on application to Commissioner

(1)  Application may be made by any person to the Commissioner for the release of an impounded vehicle into the person’s custody.

(2)  The Commissioner may release the vehicle to the applicant if:

(a)  the period for which the vehicle would be liable to be impounded under section 4BC as a result of a conviction for the offence that gave rise to its impounding has expired and the prescribed fees for storage of the vehicle by the Commissioner have (except to the extent that the Commissioner has waived payment of those fees) been paid, or

(b)  although that period has not expired, the Commissioner is satisfied, on such evidence as the Commissioner may reasonably require, that:

(i)  the offence concerned was not committed with the consent of the applicant, and

(ii)  the applicant did not know, and could not reasonably be expected to have known, that the vehicle would be used for the commission of the offence,

and if the Commissioner is satisfied, on such evidence as the Commissioner may reasonably require, that the applicant is lawfully entitled to possession of the vehicle.

(3)  It is the duty of the Commissioner to endeavour to cause any impounded vehicle to be available for collection by a person entitled to its possession as soon as the person is entitled to it.

(4)  An applicant to whom a vehicle is released under this clause must in writing acknowledge receipt of the vehicle from the custody of the Commissioner.

(5)  The Commissioner may remit the whole or any part of the prescribed fees for storage of a vehicle.

6 Release of vehicle on application to Local Court

(1)  Application may be made by any person to a Local Court for the release of an impounded vehicle into the person’s custody.

(2)  An application under this clause stays any order or direction for forfeiture or disposal of the vehicle.

(3)  An application under this clause may be made whether or not an application has been made to the Commissioner under clause 5.

(4)  The Local Court is not limited by the provisions of clause 5, and is entitled in any case to have regard not only to the public interest but to any alleged hardship or other circumstances of the case.

(5)  Subclause (4) applies even though the Commissioner may have refused an application under clause 5, and the Court may affirm, quash or vary the decision of the Commissioner as justice requires.

(6)  An applicant to whom a vehicle is released by order of the Court must in writing acknowledge receipt of the vehicle from the custody of the Commissioner.

(7)  The Court may determine whether or not the prescribed fees for storage of the vehicle by the Commissioner, or some of those fees, are payable by the applicant to the Commissioner.

7 Safe keeping of vehicles

The Commissioner has (in the Commissioner’s official capacity) a duty to take all reasonable steps to secure an impounded vehicle against theft or damage while impounded.

8 Failure to prosecute

(1)  No action lies against the Crown, the Minister, the Commissioner or any police officer in respect of the seizure or impounding, under section 4BB, of a vehicle for an alleged offence for which no proceedings or process are taken or issued.

(2)  This clause does not protect a police officer from liability in respect of the seizure, otherwise than in good faith, of a motor vehicle.

9 Disposal of vehicles

(1)  The Commissioner may cause an impounded or forfeited vehicle to be offered for sale in the circumstances prescribed by the regulations. The sale is to be by public auction or public tender.

(2)  The vehicle may be disposed of otherwise than by sale if the Commissioner believes on reasonable grounds that the vehicle has no monetary value or that the proceeds of the sale would be unlikely to exceed the costs of sale.

(3)  If the vehicle offered for sale is not sold, the Commissioner may dispose of the vehicle otherwise than by sale.

(4)  The regulations may make provision for or with respect to the disposal of the proceeds of any such sale, including provisions for or with respect to entitling persons to seek to be paid any such proceeds.

sch 2: Ins 1996 No 145, Sch 1 (2). Am 1997 No 74, Sch 1 [7] [8].