Road Safety (Drivers) and (General) Amendment (Alcohol Interlocks) Regulations 2014

Authorised by the Chief Parliamentary Counsel Authorised Version i Road Safety (Drivers) and (General) Amendment (Alcohol Interlocks) Regulations 2014 S.R. No. 143/2014 TABLE OF PROVISIONS Regulation Page PART 1—PRELIMINARY 1 1 Objectives 1 2 Authorising provision 2 3 Commencement 2 4 Principal Regulations 2 PART 2—ROAD SAFETY (DRIVERS) REGULATIONS 2009 3 5 New Division 3A of Part 2 inserted 3 Division 3A—Alcohol interlocks 3 37A Definition of minimum compliance period 3 37B Prescribed alcohol interlock usage data requirements 4 37C Reporting of compliance with requirements specified under item 57AA(f) of Schedule 2 to the Act 8 37D Report to accompany application for exemption from or removal of alcohol interlock condition on medical grounds 9 37E Offences relating to alcohol interlocks and privacy of motor vehicle occupants 10 6 Extension of probationary driver licence 10 7 Variation of P2 probationary driver licence to P1 probationary driver licence 11 8 Variation of full driver licence to P2 probationary driver licence 11 9 Regulation 82 substituted 11 82 Definition for Part 4 11 10 New regulation 82A inserted 11 82A Definition for Division 2 11 11 Internal review 12 12 New regulation 84A inserted 13 84A Definition for Division 3 13 13 Fees 14 111A Cost recovery fees—alcohol interlock scheme 14 -- 1 of 22 -- Regulation Page ii Authorised by the Chief Parliamentary Counsel 14 New regulation 114A inserted 16 114A Persons eligible for concessional rates—commercial fees for alcohol interlocks 16 15 Schedule 3 amended 17 16 Schedule 4 amended 17 17 Schedule 5 amended 17 PART 3—ROAD SAFETY (GENERAL) REGULATIONS 2009 18 18 Schedule 7 amended 18 ═══════════════ ENDNOTES 20 -- 2 of 22 -- Authorised by the Chief Parliamentary Counsel Authorised Version 1 STATUTORY RULES 2014 S.R. No. 143/2014 Road Safety Act 1986 Road Safety (Drivers) and (General) Amendment (Alcohol Interlocks) Regulations 2014 The Governor in Council makes the following Regulations: Dated: 23 September 2014 Responsible Minister: TERRY MULDER Minister for Roads YVETTE CARISBROOKE Clerk of the Executive Council PART 1—PRELIMINARY 1 Objectives The objectives of these Regulations are— (a) to amend the Road Safety (Drivers) Regulations 2009— (i) to prescribe alcohol interlock usage data requirements; and (ii) to specify classes of persons eligible for concessions from alcohol interlock suppliers to assist with the cost of installation and regular maintenance of an approved alcohol interlock; and (iii) to prescribe a monthly cost recovery fee that will be payable by persons required to install an approved alcohol interlock -- 3 of 22 -- Part 1—Preliminary Road Safety (Drivers) and (General) Amendment (Alcohol Interlocks) Regulations 2014 S.R. No. 143/2014 2 Authorised by the Chief Parliamentary Counsel in a motor vehicle and to prescribe a concessional rate of that fee; and (iv) to regulate the use of images and other information recorded by approved alcohol interlocks; and (v) to make consequential amendments due to the enactment of the Road Safety Amendment Act 2014; and (b) to amend the Road Safety (General) Regulations 2009 to make consequential amendments to the description of certain drink-driving infringements due to the enactment of the Road Safety Amendment Act 2014. 2 Authorising provision These Regulations are made under section 95 of the Road Safety Act 1986. 3 Commencement (1) These Regulations, except regulations 13, 14 and 17, come into operation on 1 October 2014. (2) Regulations 13, 14 and 17 come into operation on 30 January 2015. 4 Principal Regulations In these Regulations, the Road Safety (Drivers) Regulations 2009 1 are called the Principal Regulations. __________________ r. 2 -- 4 of 22 -- Part 2—Road Safety (Drivers) Regulations 2009 Road Safety (Drivers) and (General) Amendment (Alcohol Interlocks) Regulations 2014 S.R. No. 143/2014 3 Authorised by the Chief Parliamentary Counsel PART 2—ROAD SAFETY (DRIVERS) REGULATIONS 2009 5 New Division 3A of Part 2 inserted After regulation 37 of the Principal Regulations insert— "Division 3A—Alcohol interlocks 37A Definition of minimum compliance period In this Division, minimum compliance period means a continuous or non- continuous period of at least 6 months, or if the applicant is subject to an alcohol interlock condition for a minimum period that is less than 6 months, a continuous or non-continuous period of at least that minimum period— (a) during which alcohol interlock usage data was collected from an approved alcohol interlock fitted to a motor vehicle driven by the applicant; and (b) that does not include any operating months during which the applicant used the approved alcohol interlock less than twice; and (c) that does not include any period during which the driver licence or learner permit of the applicant was suspended; and (d) that does not include any period during which the applicant did not hold a driver licence or learner permit; and (e) that is not interrupted by more than 6 consecutive operating months during which the applicant used the approved alcohol interlock less than twice; and r. 5 -- 5 of 22 -- Part 2—Road Safety (Drivers) Regulations 2009 Road Safety (Drivers) and (General) Amendment (Alcohol Interlocks) Regulations 2014 S.R. No. 143/2014 4 Authorised by the Chief Parliamentary Counsel (f) that, unless required by paragraphs (b) to (d), does not exclude a more recent period during which alcohol interlock usage data was collected in respect of an approved alcohol interlock fitted to a motor vehicle driven by the applicant. Example A person has an alcohol interlock installed in a motor vehicle for 7 months, uses it regularly and holds a current driver licence for the entire period. The person complies with the prescribed alcohol interlock usage requirements for the first 6 months but a tampering event occurs in the seventh month. The person cannot exclude the seventh operating month and therefore the person is unable to demonstrate compliance with the prescribed alcohol interlock usage requirements, even though the person would have been able to demonstrate compliance immediately before the tampering event occurred. 37B Prescribed alcohol interlock usage data requirements (1) For the purposes of sections 50AAAB(3) and 50AAB(5) of the Act, the prescribed alcohol interlock usage data requirements are that, during the minimum compliance period— (a) an approved alcohol interlock remains installed in a motor vehicle driven by the applicant; and (b) the applicant uses that alcohol interlock at least twice during every operating month; and (c) no tampering events occur other than in the first operating month of the minimum compliance period; and r. 5 -- 6 of 22 -- Part 2—Road Safety (Drivers) Regulations 2009 Road Safety (Drivers) and (General) Amendment (Alcohol Interlocks) Regulations 2014 S.R. No. 143/2014 5 Authorised by the Chief Parliamentary Counsel (d) if the applicant starts the motor vehicle without providing a breath sample into the alcohol interlock other than because of a push start event and other than in the first operating month of the minimum compliance period, the applicant must advise the approved alcohol interlock supplier of that start within 14 days after the start or at the next maintenance service of the alcohol interlock, whichever occurs sooner; and (e) subject to subregulation (2), no person fails to start the motor vehicle due to alcohol detected in the breath of that person; and (f) subject to subregulation (2), no person, if directed to undertake an alcohol breath test after the motor vehicle was started either by a message on the digital display of the alcohol interlock or by an audible message given by the alcohol interlock— (i) fails to provide a breath sample that contains no registrable alcohol using the alcohol interlock; or (ii) fails to successfully undertake an alcohol breath test using the alcohol interlock. (2) For the purposes of subregulation (1)(e) and (f), a person is not taken to have failed or failed to undertake an alcohol breath test using an alcohol interlock if— (a) the failure is detected during the first operating month of the minimum compliance period; or r. 5 -- 7 of 22 -- Part 2—Road Safety (Drivers) Regulations 2009 Road Safety (Drivers) and (General) Amendment (Alcohol Interlocks) Regulations 2014 S.R. No. 143/2014 6 Authorised by the Chief Parliamentary Counsel (b) the applicant has made an application under section 50AAB of the Act and the Court is satisfied that the failure was caused by a person other than the applicant; or (c) the applicant holds a driver licence or learner permit granted under section 31KA of the Act and— (i) the driver licence or learner permit is subject to an alcohol interlock condition imposed under section 31KA of the Act; and (ii) the driver licence or learner permit is not subject to an alcohol interlock condition imposed because of an alcohol interlock condition direction given to the Corporation by the Magistrates' Court; and (iii) the alcohol interlock is a type of alcohol interlock approved under section 50AAE of the Act that records the identity of the person starting or attempting to start the motor vehicle in which it is installed; and (iv) the Corporation, on the request of the applicant, checks the information recorded by the alcohol interlock and is satisfied that the information demonstrates that the failure was caused by a person other than the applicant; or (d) the person failed to start the motor vehicle due to alcohol detected in the breath of that person or failed to r. 5 -- 8 of 22 -- Part 2—Road Safety (Drivers) Regulations 2009 Road Safety (Drivers) and (General) Amendment (Alcohol Interlocks) Regulations 2014 S.R. No. 143/2014 7 Authorised by the Chief Parliamentary Counsel provide a breath sample that contained no registrable alcohol, and that person starts the vehicle by providing a breath sample that does not contain registrable alcohol within one hour of the failure. (3) In this regulation— operating month means a month, the beginning of which is determined by reference to the day on which the approved alcohol interlock was installed in the motor vehicle, during which an approved alcohol interlock remained fitted to a motor vehicle driven by the applicant; push start event means an event in which a person, in an emergency— (a) push starts a motor vehicle, bypassing the breath test requirement of an approved alcohol interlock installed in that vehicle; and (b) gives, using the approved alcohol interlock, a breath sample in which no registrable alcohol is present within 10 minutes after the push start; registrable alcohol, in relation to a breath sample given by a person using an approved alcohol interlock, means a concentration of breath alcohol that would prevent a motor vehicle in which the alcohol interlock is installed from starting if that concentration was detected by the alcohol interlock; r. 5 -- 9 of 22 -- Part 2—Road Safety (Drivers) Regulations 2009 Road Safety (Drivers) and (General) Amendment (Alcohol Interlocks) Regulations 2014 S.R. No. 143/2014 8 Authorised by the Chief Parliamentary Counsel service or repair event means an event during which a person, in the course of servicing or repairing a motor vehicle in which an approved alcohol interlock is installed— (a) bypasses or disengages an approved alcohol interlock installed in that motor vehicle in accordance with the supplier's instructions; and (b) when the service or repair is complete, removes the bypass or re-engages the interlock; tampering event means an event, other than a push start event or a service or repair event, during which a person drives a motor vehicle in which an approved alcohol interlock is installed and the motor vehicle is started— (a) with the approved alcohol interlock disengaged; or (b) in a way other than by the person blowing directly into the appropriate part of the approved alcohol interlock. Note A tampering event may constitute an offence under section 50AAD of the Act. 37C Reporting of compliance with requirements specified under item 57AA(f) of Schedule 2 to the Act For the purposes of section 50AAB of the Act, data relating to compliance with any prescribed alcohol interlock usage data requirements specified under item 57AA(f) r. 5 -- 10 of 22 -- Part 2—Road Safety (Drivers) Regulations 2009 Road Safety (Drivers) and (General) Amendment (Alcohol Interlocks) Regulations 2014 S.R. No. 143/2014 9 Authorised by the Chief Parliamentary Counsel of Schedule 2 to the Act must be provided to the court— (a) in a report produced by an accredited agency under section 50AAB(5) of the Act; or (b) by the Chief Commissioner of Police, in the form of a certificate under section 84(1) of the Act; or (c) by any other means acceptable to the court. 37D Report to accompany application for exemption from or removal of alcohol interlock condition on medical grounds (1) For the purposes of section 50AAAD(3)(c) of the Act, an application to the Corporation for an exemption from or the removal of an alcohol interlock condition on medical grounds must include a report from the specialist health practitioner who prepares the report required under section 50AAAD(3)(b) of the Act indicating whether the specialist health practitioner is of the opinion that— (a) the applicant is unfit to drive motor vehicles or a category of motor vehicles; or (b) it would be dangerous for the applicant to drive a motor vehicle or a particular category of motor vehicle; or (c) any driver licence or learner permit held by the person should be subject to conditions and, if so, the type of conditions that should be imposed. r. 5 -- 11 of 22 -- Part 2—Road Safety (Drivers) Regulations 2009 Road Safety (Drivers) and (General) Amendment (Alcohol Interlocks) Regulations 2014 S.R. No. 143/2014 10 Authorised by the Chief Parliamentary Counsel (2) A report under subregulation (1) must be prepared in accordance with guidelines (if any) issued by the Minister under section 96B of the Act. 37E Offences relating to alcohol interlocks and privacy of motor vehicle occupants A person must not, unless required or permitted to do so under Part 5 or 7B of the Act or under another law or in accordance with the written authorisation of the Corporation— (a) download, print or possess; or (b) publish, transmit or disclose to any other person— an image or data recorded by a camera or other mechanism that records information about the identity of a person starting, attempting to start or using a motor vehicle that forms part of an approved alcohol interlock installed in the motor vehicle. Penalty: In the case of a natural person, 20 penalty units; In the case of a body corporate, 120 penalty units.". 6 Extension of probationary driver licence (1) In regulation 52(1)(b) of the Principal Regulations after "the Act" insert "committed before 1 October 2014". (2) In Example 2 at the foot of regulation 52(2) of the Principal Regulations, after "the Act" insert "before 1 October 2014". r. 6 -- 12 of 22 -- Part 2—Road Safety (Drivers) Regulations 2009 Road Safety (Drivers) and (General) Amendment (Alcohol Interlocks) Regulations 2014 S.R. No. 143/2014 11 Authorised by the Chief Parliamentary Counsel 7 Variation of P2 probationary driver licence to P1 probationary driver licence In regulation 53(1)(b)(ii) of the Principal Regulations after "the Act" insert "committed before 1 October 2014". 8 Variation of full driver licence to P2 probationary driver licence In regulation 54(1)(b)(ii) of the Principal Regulations after "the Act" insert "committed before 1 October 2014". 9 Regulation 82 substituted For regulation 82 of the Principal Regulations substitute— "82 Definition for Part 4 In this Part— affected person means a person in relation to whom the Corporation has made a relevant decision.". 10 New regulation 82A inserted Before regulation 83 of the Principal Regulations insert— "82A Definition for Division 2 In this Division— relevant decision means— (a) a decision by the Corporation to refuse a person's application for a driver licence or learner permit; or (b) a decision by the Corporation to refuse a person's application to vary or renew the person's driver licence or to renew the person's learner permit; or r. 7 -- 13 of 22 -- Part 2—Road Safety (Drivers) Regulations 2009 Road Safety (Drivers) and (General) Amendment (Alcohol Interlocks) Regulations 2014 S.R. No. 143/2014 12 Authorised by the Chief Parliamentary Counsel (c) a decision by the Corporation to vary, suspend or cancel a person's driver licence or learner permit under section 24 of the Act; or (d) a decision by the Corporation to grant a driver licence or learner permit that is subject to an alcohol interlock condition under section 31KA of the Act; or (e) a decision by the Corporation not to remove an alcohol interlock condition under section 50AAAB of the Act.". 11 Internal review (1) In regulation 84(3)(a) of the Principal Regulations, before "affirm the relevant decision" insert "subject to subregulation (3A),". (2) After regulation 84(3) of the Principal Regulations insert— "(3A) The Corporation may affirm a decision under section 50AAAB of the Act not to remove an alcohol interlock condition on the basis of a partial analysis as to whether the affected person complied with the prescribed alcohol interlock usage data requirements if it is the opinion of the person conducting the review that the partial analysis reveals that the affected person has failed to comply with those requirements. Example The Corporation, under section 50AAAB of the Act, decides to not remove an alcohol interlock condition imposed on a person’s driver licence on the basis of multiple tampering events. The affected person seeks internal review of that decision. r. 11 -- 14 of 22 -- Part 2—Road Safety (Drivers) Regulations 2009 Road Safety (Drivers) and (General) Amendment (Alcohol Interlocks) Regulations 2014 S.R. No. 143/2014 13 Authorised by the Chief Parliamentary Counsel The person reviewing the decision concludes that a tampering event occurred in the last operating month within the meaning of regulation 37B(3), and therefore the affected person must remain subject to the alcohol interlock condition. The person reviewing the decision is not required to consider whether any earlier alleged tampering events are accurately recorded because the analysis of the most recent tampering event establishes that the affected person has not complied with the prescribed alcohol interlock usage data requirements.". 12 New regulation 84A inserted Before regulation 85 of the Principal Regulations insert— "84A Definition for Division 3 In this Division— relevant decision means— (a) a decision by the Corporation to refuse a person's application for a driver licence or learner permit; or (b) a decision by the Corporation to refuse a person's application to vary or renew the person's driver licence or to renew the person's learner permit (other than a decision by the Corporation not to remove an alcohol interlock condition under section 50AAAB of the Act); or (c) a decision by the Corporation to vary, suspend or cancel a person's driver licence or learner permit under section 24 of the Act.". r. 12 -- 15 of 22 -- Part 2—Road Safety (Drivers) Regulations 2009 Road Safety (Drivers) and (General) Amendment (Alcohol Interlocks) Regulations 2014 S.R. No. 143/2014 14 Authorised by the Chief Parliamentary Counsel 13 Fees After regulation 111 of the Principal Regulations insert— "111A Cost recovery fees—alcohol interlock scheme (1) A person must pay the cost recovery fee specified in Schedule 5 if an approved alcohol interlock is installed in a motor vehicle because that person's driver licence or learner permit is subject to an alcohol interlock condition. (2) A cost recovery fee payable under subregulation (1)— (a) may be paid by any means acceptable to the approved alcohol interlock supplier who maintains, or authorises a person or body to maintain, the alcohol interlock; and (b) is payable in respect of each month or part of a month during which the approved alcohol interlock is installed in the motor vehicle; and (c) is due at the beginning of the month for which the fee is payable. (3) A person is eligible for the concessional rate of the cost recovery fee, specified in Schedule 5, if that person— (a) is the holder of a pensioner concession card issued under section 1061ZF of the Social Security Act 1991 of the Commonwealth; or (b) is the holder of a health care card issued under section 1061ZS of the Social Security Act 1991 of the Commonwealth other than— r. 13 -- 16 of 22 -- Part 2—Road Safety (Drivers) Regulations 2009 Road Safety (Drivers) and (General) Amendment (Alcohol Interlocks) Regulations 2014 S.R. No. 143/2014 15 Authorised by the Chief Parliamentary Counsel (i) in respect of a child in foster care; or (ii) a child in respect of whom a carer allowance under section 953 of that Act is payable; or (c) is the holder of a Gold Card, being a card issued to a person who is eligible— (i) for treatment under Part V of the Veterans' Entitlements Act 1986 of the Commonwealth; and (ii) to receive a pension under section 13(1) of that Act as— (A) the widow or widower of a veteran within the meaning of that Act; or (B) a totally and permanently incapacitated veteran to whom section 24 of that Act applies; or (d) is the holder of a Gold Card, being a card issued to a person who is eligible for treatment under Part V of the Veterans' Entitlements Act 1986 of the Commonwealth, other than a dependant (not including the widow or widower) of a veteran. (4) In order to claim the concessional rate of the cost recovery fee a person must— (a) present a current health care card, pensioner concession card or Gold Card issued in the person's name to— r. 13 -- 17 of 22 -- Part 2—Road Safety (Drivers) Regulations 2009 Road Safety (Drivers) and (General) Amendment (Alcohol Interlocks) Regulations 2014 S.R. No. 143/2014 16 Authorised by the Chief Parliamentary Counsel (i) the approved alcohol interlock supplier who installs or maintains, or authorises a person or body to install or maintain, the relevant alcohol interlock; or (ii) a person or body authorised by the approved alcohol interlock supplier to install or maintain the relevant alcohol interlock; and (b) not already be receiving the concessional rate in respect of another approved alcohol interlock. (5) A concessional rate is not available in relation to a non-standard repair or service of an approved alcohol interlock for which the person is liable because of, for example, misuse, vandalism or a motor vehicle accident. Note Cost recovery fees are collected on behalf of the Corporation by the approved alcohol interlock supplier who maintains, or authorises a person or body to maintain, the alcohol interlock—see section 50AAKA(5) of the Act.". 14 New regulation 114A inserted After regulation 114 of the Principal Regulations insert— "114A Persons eligible for concessional rates— commercial fees for alcohol interlocks For the purposes of section 50AAE(6)(a) of the Act, the persons eligible under regulation 111A for the concessional rate of the cost recovery fee is a class of persons to which approved alcohol interlock suppliers must provide concessions.". r. 14 -- 18 of 22 -- Part 2—Road Safety (Drivers) Regulations 2009 Road Safety (Drivers) and (General) Amendment (Alcohol Interlocks) Regulations 2014 S.R. No. 143/2014 17 Authorised by the Chief Parliamentary Counsel 15 Schedule 3 amended (1) In item 1 of the Table in Schedule 3 to the Principal Regulations, for "section 50(1) or 50(1AB)" substitute "section 50(1AB) or 50(1AC)". (2) In item 2 of the Table in Schedule 3 to the Principal Regulations, for "section 89C(1)" substitute "section 89C". 16 Schedule 4 amended In Schedule 4 to the Principal Regulations, under the subheading Road Safety Act 1986, for "50AAD(1)(a)" substitute "50AAD(1)". 17 Schedule 5 amended After item 17 of Schedule 5 to the Principal Regulations insert— "17A Cost recovery fee (full fee) 111A(1) 3·0 17B Cost recovery fee (concessional fee) 111A(1) 1·5". __________________ r. 15 -- 19 of 22 -- Part 3—Road Safety (General) Regulations 2009 Road Safety (Drivers) and (General) Amendment (Alcohol Interlocks) Regulations 2014 S.R. No. 143/2014 18 Authorised by the Chief Parliamentary Counsel PART 3—ROAD SAFETY (GENERAL) REGULATIONS 2009 18 Schedule 7 amended (1) Before item 90 of the Table in Schedule 7 to the Road Safety (General) Regulations 20092 insert— "89A 2093 Drive or be in charge of a motor vehicle— (a) with unlawful blood alcohol level of less than 0⋅05g/100 ml or breath alcohol level of less than 0⋅05g/210 litres of exhaled air; and (b) holding either a full driver licence or an equivalent licence issued by another State or Territory or another country RSA 49 2⋅5 penalty units r. 18 -- 20 of 22 -- Part 3—Road Safety (General) Regulations 2009 Road Safety (Drivers) and (General) Amendment (Alcohol Interlocks) Regulations 2014 S.R. No. 143/2014 19 Authorised by the Chief Parliamentary Counsel 89B 8321 Drive or be in charge of a motor vehicle— (a) with unlawful blood alcohol level of less than 0⋅05g/100 ml or breath alcohol level of less than 0⋅05g/210 litres of exhaled air; and (b) not holding either a full driver licence or an equivalent licence issued by another State or Territory or another country RSA 49 2⋅5 penalty units". (2) Item 94 of the Table in Schedule 7 to the Road Safety (General) Regulations 2009 is revoked. ═══════════════ r. 18 -- 21 of 22 -- Road Safety (Drivers) and (General) Amendment (Alcohol Interlocks) Regulations 2014 S.R. No. 143/2014 20 Authorised by the Chief Parliamentary Counsel ENDNOTES 1 Reg. 4: S.R. No. 95/2009. Reprint No. 1 as at 1 August 2013. Reprinted to S.R. No. 86/2013. Subsequently amended by S.R. Nos 28/2010, 135/2013, 150/2013, 153/2013, 174/2013, 175/2013, 27/2014, 46/2014 and 85/2014. 2 Reg. 18: S.R. No. 115/2009. Reprint No. 1 as at 1 August 2013. Reprinted to S.R. No. 84/2012. Subsequently amended by S.R. Nos 118/2013, 135/2013, 150/2013, 153/2013 and 67/2014. Endnotes -- 22 of 22 --