Legal representation could mean the difference between losing your licence and keeping it.

 

Traffic offences in the Northern Territory can result in serious penalties, including the potential loss of your drivers’ licence.

 

Driving While Intoxicated

Although some drink driving offences have mandatory minimum licence suspension periods, there are some circumstances where a magistrate has discretion to choose not to suspend someone’s licence, or how long to suspend one for. In these circumstances, competent legal representation can mean the difference between losing your licence for 12 months or 6 months – or not losing it at all. If you have been charged with a drink driving offence, contact us for a free consultation – it might just save your licence.

TRAFFIC ACT

19              Interpretation

(1)   In this Part:

AIL, or alcohol ignition lock, means a device fitted to a motor vehicle that will prevent the starting of the vehicle unless:

(a)     a sample of a person’s breath is given through the device; and

(b)     the sample indicates the person has a BrAC of less than 0.02 grams per 210 litres of exhaled breath.

AIL licence, see section 10(4A) of the Motor Vehicles Act.

AIL period, see sections 21(3)(b), 22(3)(b), 24(5)(b), 25(6A), 29AAA(3A)(b), 29AAE(3)(b) and 29AAH(3)(b).

AIL vehicle, see section 10(4A) of the Motor Vehicles Act.

approved AIL, see section 5(1) of the Motor Vehicles Act.

BAC means blood alcohol content.

BrAC means breath alcohol content.

commercial passenger vehicle, see section 3(1) of the Commercial Passenger (Road) Transport Act.

crash, see Australian Road Rules – dictionary.

driving instructor means a person approved under section 25B of the Motor Vehicles Act.

drug means a substance (other than alcohol):

(a)     prescribed by the Regulations under section 28; or

(b)     that, when consumed, ingested or used by a person deprives the person, temporarily or permanently, of the person’s normal mental or physical faculties.

GVM, see Australian Road Rules – dictionary.

high range breath or blood alcohol content means:

(a)     a BrAC of 0.15 grams or more of alcohol per 210 litres of exhaled breath; or

(b)     a BAC of 0.15 grams or more of alcohol per 100 millilitres of blood.

immediate suspension offence means an offence that attracts a notice of immediate suspension under section 29AAN.

low range breath or blood alcohol content means:

(a)     a BrAC of 0.05 grams or more, but less than 0.08 grams, of alcohol per 210 litres of exhaled breath; or

(b)     a BAC of 0.05 grams or more, but less than 0.08 grams, of alcohol per 100 millilitres of blood.

mandatory period, see sections 21(3)(b), 22(3)(b), 24(5)(b), 25(6A), 29AAA(3A)(b), 29AAE(3)(b) and 29AAH(3)(b).

medium range breath or blood alcohol content means:

(a)     a BrAC of 0.08 grams or more, but less than 0.15 grams, of alcohol per 210 litres of exhaled breath; or

(b)     a BAC of 0.08 grams or more, but less than 0.15 grams, of alcohol per 100 millilitres of blood.

road, see Australian Road Rules – dictionary.

road-related area, see Australian Road Rules – dictionary.

(2)   In this Part:

drive:

(a)     means the act of driving a motor vehicle; and

(b)     includes starting the engine of a motor vehicle; and

(c)     also includes putting a vehicle in motion; and

(d)     includes attempting to do any of those things;

on a road, road-related area or public place.

(3)   In this Part, a police officer directs a person to pull over (or pulls a driver over) when the officer signals to the person to bring the motor vehicle the person is driving to a stop near where the signal is made.

(4)   In this Part, a reference to a failure to:

(a)     submit to a breath test or breath analysis; or

(b)     submit to a saliva test; or

(c)     provide a sample of blood for analysis;

is taken to be a reference to:

(d)     a refusal or failure to submit to a breath test or breath analysis, or to provide a sufficient sample of breath for a breath test or breath analysis; or

(e)     a refusal or failure to submit to a saliva test or provide a sufficient sample of saliva; or

(f)      a refusal or failure to submit to the taking of a sample of blood;

respectively.

(5)   In this Part, a reference to driving under the influence of alcohol or a drug is taken to be a reference to driving a motor vehicle under the influence of alcohol or a drug, or any combination of alcohol and a drug or drugs, to such an extent as to be incapable of having proper control of the vehicle.

(6)   In this Part, a reference to a period for which a person is disqualified from obtaining a licence is a reference to such a period decided by the court ordering the disqualification.

Division 2           Offence of driving with alcohol in breath or blood

 

20              Impairment not necessary

It is not necessary to show that a person’s ability to drive a motor vehicle is impaired in order to establish an offence under this Division.

21              High range breath or blood alcohol content

(1)   A person who drives a motor vehicle with a high range breath or blood alcohol content commits an offence.

Maximum penalty:         For a first offence – 10 penalty units or imprisonment for 12 months.

For a second or subsequent offence –20 penalty units or imprisonment for 12 months.

(2)   An offence against subsection (1) (a relevant offence) is a second or subsequent offence if the person has previously been found guilty of any of the following offences:

(a)     driving with:

(i)      a high range breath or blood alcohol content; or

(ii)     a medium range breath or blood alcohol content;

(b)     driving under the influence of alcohol or a drug;

(c)     failing to provide a sufficient sample of breath for a breath analysis;

(d)     failing to give a sample of blood for analysis;

(e)     driving with alcohol in the breath or blood (if the person, at the time of the previous offence, was of a class mentioned in section 24(1)).

(3)   If a court finds a person guilty of a relevant offence, the person’s licence to drive is automatically cancelled and the person is disqualified from:

(a)     for a first offence – obtaining a licence for a period that is at least 12 months; and

(b)     for a second or subsequent offence:

(i)      obtaining a licence for a period (mandatory period) that is at least 18 months; and

(ii)     if the mandatory period is less than 5 years – obtaining a licence other than an AIL licence for an additional period (AIL period) immediately after the mandatory period that is at least 12 months and not more than 3 years.

Notes

1    This means the person may be able to drive a motor vehicle fitted with an alcohol ignition lock during the AIL period after being disqualified for the mandatory period (see sections 29AAYB and 29AAYC).

2    If the mandatory period is 5 years or more, no AIL period applies to the person and the person cannot obtain an AIL licence.

(4)   However, if a court finds a person guilty of a relevant offence and the person has previously been found guilty of any of the following offences, committed within 3 years before committing the relevant offence:

(a)     driving with a high range breath or blood alcohol content;

(b)     failing to provide a sufficient sample of breath for a breath analysis;

(c)     failing to provide a sample of blood for analysis;

the person’s licence to drive is automatically cancelled and the person is disqualified from obtaining a licence for a minimum period of 5 years.

(5)   Also, if a court finds a person guilty of a relevant offence and the person has previously been found guilty of any of the following offences, committed within 3 years before committing the relevant offence:

(a)     driving with a medium range breath or blood alcohol content;

(b)     driving under the influence of alcohol or a drug;

(c)     driving with alcohol in the breath or blood (if the person, at the time of the previous offence, was of a class mentioned in section 24(1));

and the person has also been previously found guilty at any time of committing any of the following offences:

(d)     driving with:

(i)      a high range breath or blood alcohol content; or

(ii)     a medium range breath or blood alcohol content;

(e)     driving under the influence of alcohol or a drug;

(f)      failing to provide a sufficient sample of breath for a breath analysis;

(g)     failing to provide a sample of blood for analysis;

(h)     driving with alcohol in the breath or blood (if the person, at the time of the previous offence, was of a class mentioned in section 24(1));

the person’s licence to drive is automatically cancelled and the person is disqualified from obtaining a licence for a minimum period of 5 years.

(6)   A relevant offence is an immediate suspension offence.

22              Medium range breath or blood alcohol content

(1)   A person who drives a motor vehicle with a medium range breath or blood alcohol content commits an offence.

Maximum penalty:         For a first offence – 7.5 penalty units or imprisonment for 6 months.

For a second or subsequent offence –20 penalty units or imprisonment for 12 months.

(2)   An offence against subsection (1) (a relevant offence) is a second or subsequent offence if the person has previously been found guilty of any of the following offences:

(a)     driving with:

(i)      a high range breath or blood alcohol content; or

(ii)     a medium range breath or blood alcohol content;

(b)     driving under the influence of alcohol or a drug;

(c)     failing to provide a sufficient sample of breath for a breath analysis;

(d)     failing to give a sample of blood for analysis;

(e)     driving with alcohol in the breath or blood (if the person, at the time of the previous offence, was of a class mentioned in section 24(1)).

(3)   If a court finds a person guilty of a relevant offence, the person’s licence to drive is automatically cancelled and the person is disqualified from:

(a)     for a first offence – obtaining a licence for a period that is at least 6 months; and

(b)     for a second or subsequent offence:

(i)      obtaining a licence for a period (mandatory period) that is at least 12 months; and

(ii)     if the mandatory period is less than 5 years – obtaining a licence other than an AIL licence for an additional period (AIL period) immediately after the mandatory period that is at least 12 months and not more than 3 years.

Notes

1    This means the person may be able to drive a motor vehicle fitted with an alcohol ignition lock during the AIL period after being disqualified for the mandatory period (see sections 29AAYB and 29AAYC).

2    If the mandatory period is 5 years or more, no AIL period applies to the person and the person cannot obtain an AIL licence.

(4)   A relevant offence that is a second or subsequent offence is an immediate suspension offence.

23              Low range breath or blood alcohol content

(1)   A person who drives a motor vehicle with a low range breath or blood alcohol content commits an offence.

Maximum penalty:         For a first offence – 5 penalty units or imprisonment for 3 months.

For a second or subsequent offence –7.5 penalty units or imprisonment for 6 months.

(2)   An offence against subsection (1) (a relevant offence) is a second or subsequent offence if the person has previously been found guilty of any of the following offences:

(a)     driving with:

(i)      a high range breath or blood alcohol content; or

(ii)     a medium range breath or blood alcohol content; or

(iii)    a low range breath or blood alcohol content (only if the previous offence was committed after 1 July 2007 and only if the previous offence was committed within 3 years before committing the relevant offence);

(b)     driving under the influence of alcohol or a drug;

(c)     failing to provide a sufficient sample of breath for a breath analysis;

(d)     failing to give a sample of blood for analysis.

(e)     driving with alcohol in the breath or blood (if the person, at the time of the previous offence, was of a class mentioned in section 24(1)).

(3)   For subsection (2)(a)(iii), an offence for which an infringement notice was issued and not withdrawn is taken to be a previous finding of guilt for the offence.

(4)   If a court finds a person guilty of a relevant offence that is a second or subsequent offence, the person’s licence to drive is automatically cancelled and the person is disqualified from obtaining a licence:

(a)     for a second offence – for a minimum period of 3 months; or

(b)     for a subsequent offence – for a minimum period of 6 months.

(5)   A relevant offence that is a second or subsequent offence is an immediate suspension offence.

(6)   The Regulations may prescribe persons to whom, or circumstances in which, this section does not apply.

24              Some drivers to be zero alcohol

(1)   This section applies to the following persons:

(a)     a person who has not reached the age of 18 years;

(b)     the holder of a learner licence when driving a vehicle of the class to which the learner licence relates;

(c)     the holder of a licence that is provisional under section 42 or section 10A of the Motor Vehicles Act;

(d)     a person who is not licensed to drive a motor vehicle (other than through failure to renew a licence);

(e)     a person who is not a resident of the Territory who does not have a right under section 32(1) to drive in the Territory.

(2)   The person must not drive a motor vehicle if the person’s breath or blood contains alcohol.

Maximum penalty:         For a first offence – 5 penalty units or imprisonment for 3 months.

For a second or subsequent offence –7.5 penalty units or imprisonment for 6 months.

(3)   An offence against subsection (2) (a relevant offence) is a second or subsequent offence if the person has previously been found guilty of any of the following offences:

(a)     driving with:

(i)      a high range breath or blood alcohol content; or

(ii)     a medium range breath or blood alcohol content; or

(iii)    a low range breath or blood alcohol content (only if the previous offence was committed after 1 July 2007 and only if the previous offence was committed within 3 years before committing the relevant offence);

(b)     driving under the influence of alcohol or a drug;

(c)     failing to provide a sufficient sample of breath for a breath analysis;

(d)     failing to give a sample of blood for analysis;

(e)     driving with alcohol in the breath or blood (if the person, at the time of the previous offence, was of a class mentioned in subsection (1));

(f)      driving with alcohol in the breath or blood (if the person, at the time of the previous offence, was of a class mentioned in section 25(1) or (2) and only if the previous offence was committed within 3 years before committing the relevant offence).

(4)   For subsection (3)(a)(iii), (e) and (f), an offence for which an infringement notice was issued and not withdrawn is taken to be a previous finding of guilt for the offence.

(5)   If a court finds a person guilty of a relevant offence, the person’s licence to drive is automatically cancelled and the person is disqualified from:

(a)     for a first offence – obtaining a licence for a period that is at least 3 months; and

(b)     for a second or subsequent offence:

(i)      obtaining a licence for a period (mandatory period) that is at least 6 months; and

(ii)     if the mandatory period is less than 5 years – obtaining a licence other than an AIL licence for an additional period (AIL period) immediately after the mandatory period that is at least 6 months and not more than 3 years.

Notes

1    This means the person may be able to drive a motor vehicle fitted with an alcohol ignition lock during the AIL period after being disqualified for the mandatory period (see sections 29AAYB and 29AAYC).

2    If the mandatory period is 5 years or more, no AIL period applies to the person and the person cannot obtain an AIL licence.

(6)   A relevant offence that is a second or subsequent offence is an immediate suspension offence.

25              Driver of certain vehicles to be zero alcohol

(1)   Subject to the Regulations, this section applies to the following persons:

(a)     the driver of a vehicle having a GVM of more than 15 t;

(b)     the driver of a vehicle carrying dangerous goods within the meaning of any of the following:

(i)      the Dangerous Goods Act;

(ii)     Schedule 1 of the Work Health and Safety (National Uniform Legislation) Act;

(iii)    the Transport of Dangerous Goods by Road and Rail (National Uniform Legislation) Act;

(c)     the driver of a commercial passenger vehicle within the meaning of the Commercial Passenger (Road) Transport Act;

(d)     the driver of a vehicle capable of seating more than 12 persons (including the driver);

(e)     the driver of a vehicle carrying more than 12 persons (including the driver);

(f)      the driver of a vehicle that has a space designed primarily for the carriage of goods when a person is travelling in that space.

(2)   This section also applies to a person who:

(a)     is under the age of 25 years; and

(b)     has not held, in the Territory or elsewhere, a licence to drive a motor vehicle for a continuous period of 3 years;

but does not apply if section 24 applies to the person.

(3)   The person must not drive a motor vehicle if the person’s breath or blood contains alcohol.

Maximum penalty:         For a first offence – 5 penalty units or imprisonment for 3 months.

For a second or subsequent offence –7.5 penalty units or imprisonment for 6 months.

(4)   An offence against subsection (3) (a relevant offence) is a second or subsequent offence if the person has previously been found guilty of any of the following offences:

(a)     driving with:

(i)      a high range breath or blood alcohol content; or

(ii)     a medium range breath or blood alcohol content; or

(iii)    a low range breath or blood alcohol content (only if the previous offence was committed after 1 July 2007 and only if the previous offence was committed within 3 years before committing the relevant offence);

(b)     driving under the influence of alcohol or a drug;

(c)     failing to provide a sufficient sample of breath for a breath analysis;

(d)     failing to give a sample of blood for analysis;

(e)     driving with alcohol in the breath or blood (if the person, at the time of the previous offence, was of a class mentioned in section 24(1));

(f)      driving with alcohol in the breath or blood (if the person, at the time of the previous offence, was of a class mentioned in subsection (1) or (2) and only if the previous offence was committed within 3 years before committing the relevant offence).

(5)   For subsection (4)(a)(iii) and (f), an offence for which an infringement notice was issued and not withdrawn is taken to be a previous finding of guilt for the offence.

(6)   If a court finds a person who is not covered by subsection (2) guilty of a relevant offence that is a second or subsequent offence, the person’s licence to drive is automatically cancelled and the person is disqualified from obtaining a licence:

(a)     for a second offence – for a minimum period of 3 months; or

(b)     for a subsequent offence – for a minimum period of 6 months.

(6A)   If a court finds a person covered by subsection (2) guilty of a relevant offence that is a second or subsequent offence, the person’s licence to drive is cancelled and the person is disqualified from:

(a)     for a second offence:

(i)      obtaining a licence for a period (mandatory period) that is at least 3 months; and

(ii)     if the mandatory period is less than 5 years – obtaining a licence other than an AIL licence for an additional period (AIL period) immediately after the mandatory period that is at least 6 months and not more than 3 years; and

(b)     for a subsequent offence:

(i)      obtaining a licence for a period (mandatory period) that is at least 6 months; and

(ii)     if the mandatory period is less than 5 years – obtaining a licence other than an AIL licence for an additional period (AIL period) immediately after the mandatory period that is at least 6 months and not more than 3 years.

Notes

1    This means the person may be able to drive a motor vehicle fitted with an alcohol ignition lock during the AIL period after being disqualified for the mandatory period (see sections 29AAYB and 29AAYC).

2    If the mandatory period is 5 years or more, no AIL period applies to the person and the person cannot obtain an AIL licence.

(7)   A relevant offence that is a second or subsequent offence is an immediate suspension offence.

(8)   The Regulations may prescribe persons to whom, or circumstances in which, this section does not apply.

26              Driving instructor

(1)   A driving instructor, when instructing another person how to drive a motor vehicle, must not:

(a)     drive a motor vehicle; or

(b)     permit a person to drive a motor vehicle if the instructor is occupying a passenger seat in the vehicle for the purpose of instructing the person to drive the vehicle;

if the instructor’s breath or blood contains alcohol.

Maximum penalty:         For a first offence – 5 penalty units or imprisonment for 3 months.

For a second or subsequent offence –7.5 penalty units or imprisonment for 6 months.

(2)   An offence against subsection (1) (a relevant offence) is a second or subsequent offence if the person has previously been found guilty of any of the following offences:

(a)     driving with:

(i)      a high range breath or blood alcohol content; or

(ii)     a medium range breath or blood alcohol content; or

(iii)    a low range breath or blood alcohol content (only if the previous offence was committed after 1 July 2007 and only if the previous offence was committed within 3 years before committing the relevant offence);

(b)     driving under the influence of alcohol or a drug;

(c)     failing to provide a sufficient sample of breath for a breath analysis;

(d)     failing to give a sample of blood for analysis;

(e)     driving with alcohol in the breath or blood (if the person, at the time of the previous offence, was of a class mentioned in section 24(1));

(f)      driving with alcohol in the breath or blood (if the person, at the time of the previous offence, was of a class mentioned in section 25(1) or (2) and only if the previous offence was committed within 3 years before committing the relevant offence);

(g)     a relevant offence (a previous relevant offence) only if the previous relevant offence was committed within 3 years before committing the relevant offence;

(h)     an offence (a previous offence) committed before the commencement of this section that would, if committed after the commencement of this section, be a relevant offence (only if the previous offence was committed after 1 July 2007 and only if the previous offence was committed within 3 years before committing the relevant offence).

(3)   For subsection (2)(a)(iii), (f), (g) and (h) an offence for which an infringement notice was issued and not withdrawn is taken to be a previous finding of guilt for the offence.

(4)   If a court finds a person guilty of a relevant offence that is a second or subsequent offence, the person’s licence to drive is automatically cancelled and the person is disqualified from obtaining a licence:

(a)     for a second offence – for a minimum period of 3 months; or

(b)     for a subsequent offence – for a minimum period of 6 months.

(5)   A relevant offence that is a second or subsequent offence is an immediate suspension offence.

Division 3           Offence of driving with drug in blood

 

27              Impairment not necessary

It is not necessary to show that a person’s ability to drive a motor vehicle is impaired in order to establish an offence under this Division.

28              Driving with certain drugs in the blood

(1)   A person commits an offence if, while there is in the person’s blood a prohibited drug, the person:

(a)     drives a motor vehicle; or

(b)     is a driving instructor occupying a passenger seat in a vehicle for the purpose of instructing another person to drive the vehicle.

Maximum penalty:         For a first offence – 5 penalty units or imprisonment for 3 months.

For a second or subsequent offence –7.5 penalty units or imprisonment for 6 months.

(2)   An offence against subsection (1) (a relevant offence) is a second or subsequent offence if the person has previously been found guilty of any of the following offences:

(a)     driving under the influence of alcohol or a drug;

(b)     driving with a prohibited drug in the blood.

(3)   For subsection (2)(b), an offence for which an infringement notice was issued and not withdrawn is taken to be a previous finding of guilt for the offence.

(4)   If a court finds a person guilty of a relevant offence that is a second or subsequent offence, the person’s licence to drive is automatically cancelled and the person is disqualified from obtaining a licence:

(a)     for a second offence – for a minimum period of 3 months; or

(b)     for a subsequent offence – for a minimum period of 6 months.

(5)   A relevant offence that is a second or subsequent offence is an immediate suspension offence.

(6)   For subsection (1), a prohibited drug means a drug prescribed by the Regulations as either of the following:

(a)     drugs that are strictly prohibited for subsection (1);

(b)     drugs that are prohibited for subsection (1) but to which the defence under section 29 applies.

29              Defence for certain drugs

(1)   It is a defence to a prosecution for an offence against section 28(1) if:

(a)     analysis of a blood sample taken under this Part:

(i)      gives no indication of any drug prescribed under section 28(6)(a); but

(ii)     does indicate the presence of a drug (or drugs) prescribed under section 28(6)(b); and

(b)     the defendant satisfies the court as to the matters mentioned in subsection (2).

(2)   The defendant must satisfy the court that:

(a)     the defendant was, at the time of the alleged offence, under treatment by a medical practitioner and had taken the drug as part of that treatment; and

(b)     the defendant had taken the drug in accordance with the directions of the medical practitioner.

Division 4           Offence of driving under influence of alcohol or drug

 

29AAA      Driving under influence

(1)   A person commits an offence if, while under the influence of alcohol or a drug to such an extent as to be incapable of having proper control of the vehicle, the person:

(a)     drives a motor vehicle; or

(b)     is a driving instructor occupying a passenger seat in a vehicle for the purpose of instructing another person to drive the vehicle.

Maximum penalty:         For a first offence – 10 penalty units or imprisonment for 12 months.

For a second or subsequent offence –20 penalty units or imprisonment for 12 months.

(2)   An offence against subsection (1) (a relevant offence) is a second or subsequent offence if the person has previously been found guilty of any of the following offences:

(a)     driving with:

(i)      a high range breath or blood alcohol content; or

(ii)     a medium range breath or blood alcohol content;

(b)     driving under the influence of alcohol or a drug;

(c)     failing to provide a sufficient sample of breath for a breath analysis;

(d)     failing to give a sample of blood for analysis;

(e)     driving with alcohol in the breath or blood (if the person, at the time of the previous offence, was of a class of person mentioned in section 24(1)).

(3)   If a court finds a person guilty of a relevant offence relating to the influence of a drug only, the person’s licence to drive is automatically cancelled and the person is disqualified from obtaining a licence:

(a)     for a first offence – for a minimum period of 6 months; or

(b)     for a second or subsequent offence – for a minimum period of 12 months.

(3A)   If a court finds a person guilty of a relevant offence relating to the influence of alcohol, or alcohol and a drug, but not a drug only, the person’s licence to drive is cancelled and the person is disqualified from:

(a)     for a first offence – obtaining a licence for a period that is at least 6 months; and

(b)     for a second or subsequent offence:

(i)      obtaining a licence for a period (mandatory period) that is at least 12 months; and

(ii)     if the mandatory period is less than 5 years – obtaining a licence other than an AIL licence for an additional period (AIL period) immediately after the mandatory period that is at least 12 months and not more than 3 years.

Notes

1    This means the person may be able to drive a motor vehicle fitted with an alcohol ignition lock during the AIL period after being disqualified for the mandatory period (see sections 29AAYB and 29AAYC).

2    If the mandatory period is 5 years or more, no AIL period applies to the person and the person cannot obtain an AIL licence.

(4)   A relevant offence that is a second or subsequent offence is an immediate suspension offence.

(5)   Evidence other than the result of a breath analysis or blood test may be given in a court to show the concentration of alcohol in a person’s breath or blood or to show that a person was or was not under the influence of alcohol or a drug.

(6)   A court may find that a person was, at the relevant time, under the influence of alcohol or a drug:

(a)     without there being evidence of the concentration of alcohol in the person’s breath or blood or of a prohibited drug in the person’s blood; or

(b)     even though the evidence showed the person had:

(i)      a BrAC of less than 0.05 grams of alcohol per 210 litres of exhaled breath; or

(ii)     a BAC of less than 0.05 grams of alcohol per 100 millilitres of blood.

(7)   For this section, a person is taken to be under the influence of alcohol or a drug even though the effect on the person’s ability to have proper control of a vehicle arises from a combination of alcohol and a drug or a combination of drugs.

Division 5           Taking of samples

 

29AAB     When police can pull driver over at random

(1)   A police officer may direct the driver of a motor vehicle to pull over, without reasonable suspicion the driver has committed an offence, for one or both of the following purposes:

(a)     to require the driver to submit to a breath test to determine whether there is alcohol in the driver’s breath;

(b)     to require the driver of a vehicle with a GVM of 4.5 t or greater to submit to a saliva test to determine whether there is a prohibited drug in the driver’s blood.

(2)   The person must comply with the direction.

Maximum penalty:         200 penalty units or imprisonment for 12 months.

29AAC     Breath test and breath analysis

(1)   A police officer may, in the following circumstances, require a person to submit to a breath test or a breath analysis (or both) to determine if the person’s breath contains alcohol:

(a)     the person is a driver directed to pull over under section 29AAB(1)(a);

(b)     the officer has reasonable cause to suspect the person:

(i)      has committed an offence against Division 2 or 4; or

(ii)     was the driver of a motor vehicle that was involved in a crash on a road, road-related area or public place; or

(iii)    was involved in a crash on a road, road-related area or public place and the person has, or had at the time of the crash, alcohol in the person’s breath or blood.

(2)   The officer may only require the person to submit to a breath test or breath analysis if not more than 4 hours has expired since the driver was pulled over or the offence, or crash, mentioned in subsection (1) occurred.

(3)   If a police officer requires a person to submit to a breath test, the person must comply with the directions given by the officer or another police officer.

(4)   If a police officer requires a person to submit to a breath test and:

(a)     the person fails to provide a sufficient sample of breath for the completion of the test; or

(b)     the officer reasonably believes (whether as a result of the test or otherwise) that the person may have committed an offence under Division 2;

the officer or another police officer may arrest the person without warrant and detain the person for the purpose of carrying out a breath analysis.

(5)   A police officer may require the arrested person to submit to a breath analysis.

(6)   A police officer must not require a person to submit to a breath test or breath analysis under this section if it appears to the officer that the person:

(a)     is injured, and the officer is satisfied it may be detrimental to the person’s medical condition for the person to submit to the breath test or breath analysis within the time mentioned in subsection (2); or

(b)     has a physical disability that prevents the person from providing a sufficient sample of breath for the completion of a breath test or breath analysis.

29AAD     Further breath analyses

(1)   A person who has submitted to a breath analysis (whether or not the sample provided was sufficient) may be required by a police officer to submit to another breath analysis on the same occasion and the person must provide a sufficient sample of breath for that analysis.

(2)   A person who has submitted to a breath analysis may, after receiving the result of the initial analysis, request that a further analysis be carried out on one other sample of the person’s breath, and the police officer who carried out the initial analysis (or another officer) must carry out an analysis on one further sample of the person’s breath provided the sample of breath is sufficient.

(3)   A request under subsection (2) must be made without undue delay after the person receives the result of the initial analysis.

29AAE      Offence of failing to submit to breath analysis

(1)   A person who is required under section 29AAC or 29AAD to submit to a breath analysis must not fail to provide a sample of breath sufficient for the analysis to be carried out.

Maximum penalty:         For a first offence – 10 penalty units or imprisonment for 12 months.

For a second or subsequent offence – 20 penalty units or imprisonment for 12 months.

(2)   An offence against subsection (1) (a relevant offence) is a second or subsequent offence if the person has previously been found guilty of any of the following offences:

(a)     driving with:

(i)      a high range breath or blood alcohol content; or

(ii)     a medium range breath or blood alcohol content;

(b)     driving under the influence of alcohol or a drug;

(c)     failing to provide a sufficient sample of breath for a breath analysis;

(d)     failing to give a sample of blood for analysis;

(e)     driving with alcohol in the breath or blood (if the person, at the time of the previous offence, was of a class mentioned in section 24(1)).

(3)   If a court finds a person guilty of a relevant offence, the person’s licence to drive is automatically cancelled and the person is disqualified from:

(a)     for a first offence – obtaining a licence for a period that is at least 12 months; and

(b)     for a second or subsequent offence:

(i)      obtaining a licence for a period (mandatory period) that is at least 18 months; and

(ii)     if the mandatory period is less than 5 years – obtaining a licence other than an AIL licence for an additional period (AIL period) immediately after the mandatory period that is at least 12 months and not more than 3 years.

Notes

1    This means the person may be able to drive a motor vehicle fitted with an alcohol ignition lock during the AIL period after being disqualified for the mandatory period (see sections 29AAYB and 29AAYC).

2    If the mandatory period is 5 years or more, no AIL period applies to the person and the person cannot obtain an AIL licence.

(4)   However, if a court finds a person guilty of a relevant offence and the person has previously been found guilty of any of the following offences, committed within 3 years before committing the relevant offence:

(a)     driving with a high range breath or blood alcohol content;

(b)     failing to provide a sufficient sample of breath for a breath analysis;

(c)     failing to provide a sample of blood for analysis;

the minimum period for which the person is disqualified from obtaining a licence is 5 years.

(5)   Also, if a court finds a person guilty of a relevant offence and the person has previously been found guilty of any of the following offences, committed within 3 years before committing the relevant offence:

(a)     driving with a medium range breath or blood alcohol content;

(b)     driving under the influence of alcohol or a drug;

(c)     driving with alcohol in the breath or blood (if the person, at the time of the previous offence, was of a class mentioned in section 24(1));

and the person has also been previously found guilty at any time of committing any of the following offences:

(d)     driving with:

(i)      a high range breath or blood alcohol content; or

(ii)     a medium range breath or blood alcohol content;

(e)     driving under the influence of alcohol or a drug;

(f)      failing to provide a sufficient sample of breath for a breath analysis;

(g)     failing to provide a sample of blood for analysis;

(h)     driving with alcohol in the breath or blood (if the person, at the time of the previous offence, was of a class mentioned in section 24(1));

the minimum period for which the person is disqualified from obtaining a licence is 5 years.

(6)   A relevant offence is an immediate suspension offence.

(7)   A person is taken to have failed to provide a sufficient sample of breath for a breath analysis if the person’s actions (or inactions) in any way prevent a police officer from requiring the person to submit to a breath analysis.

(8)   It is a defence to a prosecution for a relevant offence if the defendant satisfies the court:

(a)     it would have been detrimental to the defendant’s medical condition to have submitted to a breath analysis at the time the person was required to do so; or

(b)     the defendant had other reasonable grounds for failing to submit to a breath analysis.

(9)   It is not reasonable grounds for failing to submit to a breath analysis that the defendant had consumed alcohol after the defendant ceased to drive a motor vehicle.

29AAF      Requirement for saliva test

(1)   A police officer may, in the following circumstances, require a person to submit to a saliva test to determine if the person’s blood may contain a prohibited drug:

(a)     the person is a driver required to pull over under section 29AAB(1)(b);

(b)     the officer has reasonable cause to suspect the person:

(i)      has committed an offence against Division 3 or 4; or

(ii)     was the driver of a motor vehicle that was involved in a crash on a road, road-related area or public place.

(2)   The officer may only require the person to submit to a saliva test if not more than 4 hours has expired since the driver was pulled over or the offence, or crash, mentioned in subsection (1) occurred.

(3)   If a police officer requires a person to submit to a saliva test, the person must comply with the directions given by the officer or another police officer.

(4)   If a police officer requires a person to submit to a saliva test and:

(a)     the person fails to provide a sufficient sample of saliva for the completion of the test; or

(b)     the officer reasonably believes (whether as a result of the test or otherwise) that the person’s blood may contain a prohibited drug;

the officer or another police officer may arrest the person without warrant and detain the person for the purpose of having a sample of blood taken for analysis.

(5)   A police officer must not require a person to submit to a saliva test under this section if it appears to the officer that the person:

(a)     is injured, and the officer is satisfied it may be detrimental to the person’s medical condition for the person to submit to the saliva test within the time mentioned in subsection (2); or

(b)     has a physical disability that prevents the person from providing a sufficient sample of saliva for the completion of a saliva test.

29AAG     Requirement to give blood sample

(1)   Subsection (2) applies if a police officer:

(a)     does not require a person to submit to a breath test or breath analysis for a reason mentioned in section 29AAC(6) and the officer reasonably believes that the concentration of alcohol in the person’s breath or blood is such that the person has committed an offence against this Act; or

(b)     the officer has reasonable cause (whether or not as a result of a positive indication from a saliva test) to suspect the person’s blood contains a prohibited drug.

(2)   The officer may require the person to give a sample of blood for the purpose of analysis by an authorised analyst to determine if the person’s blood contains:

(a)     alcohol in a concentration that constitutes the person having committed an offence against Division 2 or 4; or

(b)     a prohibited drug.

(3)   If a person is required under this section to give a sample of blood, a police officer must make arrangements for the person to be taken to a hospital or health centre for a sample of the person’s blood to be taken.

(4)   If the person is to be taken to a health centre, the police officer making the arrangements must ensure there is a medical practitioner, a registered nurse or a qualified person at the health centre who is available and willing to take the sample.

29AAH     Offence of failing to provide blood sample

(1)   A person who is required to give a sample of blood for this Part must not fail to:

(a)     comply with an arrangement for taking the person to a hospital or health centre for the taking of a sample of the person’s blood; or

(b)     give, in accordance with the directions of the person taking the blood sample, a sample of blood sufficient for analysis.

Maximum penalty:         For a first offence – 10 penalty units or imprisonment for 12 months.

For a second or subsequent offence – 20 penalty units or imprisonment for 12 months.

(2)   An offence against subsection (1) (a relevant offence) is a second or subsequent offence if the person has previously been found guilty of any of the following offences:

(a)     driving with:

(i)      a high range breath or blood alcohol content; or

(ii)     a medium range breath or blood alcohol content;

(b)     driving under the influence of alcohol or a drug;

(c)     failing to provide a sufficient sample of breath for a breath analysis;

(d)     failing to give a sample of blood for analysis;

(e)     driving with alcohol in the breath or blood (if the person, at the time of the previous offence, was of a class mentioned in section 24(1)).

(3)   If a court finds a person guilty of a relevant offence, the person’s licence to drive is automatically cancelled and the person is disqualified from:

(a)     for a first offence – obtaining a licence for a period that is at least 12 months; and

(b)     for a second or subsequent offence:

(i)      obtaining a licence for a period (mandatory period) that is at least 18 months; and

(ii)     if the mandatory period is less than 5 years – obtaining a licence other than an AIL licence for an additional period (AIL period) immediately after the mandatory period that is at least 12 months and not more than 3 years.

Notes

1    This means the person may be able to drive a motor vehicle fitted with an alcohol ignition lock during the AIL period after being disqualified for the mandatory period (see sections 29AAYB and 29AAYC).

2    If the mandatory period is 5 years or more, no AIL period applies to the person and the person cannot obtain an AIL licence.

(4)   However, if a court finds a person guilty of a relevant offence and the person has previously been found guilty of any of the following offences, committed within 3 years before committing the relevant offence:

(a)     driving with a high range breath or blood alcohol content;

(b)     failing to provide a sufficient sample of breath for a breath analysis;

(c)     failing to provide a sample of blood for analysis;

the minimum period for which the person is disqualified from obtaining a licence is 5 years.

(5)   Also, if a court finds a person guilty of a relevant offence and the person has previously been found guilty of any of the following offences, committed within 3 years before committing the relevant offence:

(a)     driving with a medium range breath or blood alcohol content;

(b)     driving under the influence of alcohol or a drug;

(c)     driving with alcohol in the breath or blood (if the person, at the time of the previous offence, was of a class mentioned in section 24(1));

and the person has also been previously found guilty at any time of committing any of the following offences:

(d)     driving with:

(i)      a high range breath or blood alcohol content; or

(ii)     a medium range breath or blood alcohol content;

(e)     driving under the influence of alcohol or a drug;

(f)      failing to provide a sufficient sample of breath for a breath analysis;

(g)     failing to provide a sample of blood for analysis;

(h)     driving with alcohol in the breath or blood (if the person, at the time of the previous offence, was of a class mentioned in section 24(1));

the minimum period for which the person is disqualified from obtaining a licence is 5 years.

(6)   A relevant offence is an immediate suspension offence.

(7)   It is a defence to a prosecution for a relevant offence if the defendant satisfies the court:

(a)     it would have been detrimental to the defendant’s medical condition to have given the sample of blood at the time the person was required to do so; or

(b)     the defendant had other reasonable grounds for failing to give the sample.

(8)   It is not reasonable grounds for failing to give a blood sample that the defendant had consumed alcohol or another substance after the defendant ceased to drive a motor vehicle.

29AAJ      Failure to give sample of blood in certain circumstances

(1)   This section applies if a person is found guilty of an offence against section 29AAH(1) and the court is satisfied that:

(a)     the person was required to give the blood sample because the person entered a hospital for examination or treatment of injuries; and

(b)     the person’s injuries did not arise from a crash in which the person was driving a motor vehicle.

(2)   The court must not sentence the person to a term of imprisonment, cancel the person’s licence or impose a fine greater than 1 penalty unit.

(3)   The person’s licence is not cancelled by force of the finding of guilt despite section 29AAH(3).

(4)   The offence is not taken into account as a second or subsequent offence, or for determining whether another offence is a second or subsequent offence, in accordance with section 21(2)(d), 22(2)(d), 24(3)(d), 29AAA(2)(d), 29AAE(2)(d) or 29AAH(2)(d).

29AAK     Taking of sample of blood

(1)   A sample of blood may be taken for this Act, from a person taken to a hospital or a health centre under section 29AAG, or from a person who has apparently attained the age of 15 years and who enters a hospital or health centre for examination or treatment of injuries which may have been received in a crash:

(a)     at a hospital – by a medical practitioner, a registered nurse or a member of the staff of the hospital who is under the direct supervision of a medical practitioner or registered nurse; and

(b)     at a health centre – by a medical practitioner, a registered nurse or a qualified person.

(2)   If a person is taken to a hospital under section 29AAG, the person in charge of the hospital must ensure a sample of the person’s blood is taken as soon as practicable.

(3)   The Minister responsible for administering hospitals in the Territory must ensure that, for the purpose of analysis by an authorised analyst, a sample of blood is taken as soon as practicable from each person who has apparently attained the age of 15 years who enters a hospital for examination or treatment of injuries which may have been received in a crash.

(4)   For subsection (3), a medical practitioner, registered nurse or a member of the staff of a hospital who is under the direct supervision of a medical practitioner or registered nurse may:

(a)     take a sample of blood from a person who is unconscious or apparently incapable of consenting to the taking of the sample; or

(b)     require a person to give a sample of blood.

(5)   However, a member of the staff of a hospital or a health centre is not required to take a sample of the person’s blood if the member of staff believes on reasonable grounds that:

(a)     the concentration of alcohol in the person’s blood is already known; or

(b)     the taking of the sample would be detrimental to the person’s medical condition; or

(c)     the injuries of the person were not received in a motor vehicle accident or the motor vehicle accident happened more than 12 hours before the person entered the hospital or health centre; or

(d)     a period of more than 4 hours has elapsed since the person entered the hospital or health centre.

(6)   A blood sample taken under this section is the property of the Commissioner.

(7)   However, the person who takes the sample may make approximately half of the sample available to the person from whom it was taken.

(8)   No action or proceedings for assault, whether in or outside the Territory, lie against a person who takes a blood sample for this Act.

(9)   This section does not obligate any person to take a sample of blood at a health centre.

29AAL      Right to communicate with medical practitioner

(1)   A person who is in custody after undergoing a breath analysis or after giving a sample of blood under this Act may ask to communicate with a medical practitioner for the purpose of requesting the medical practitioner to do any of the following:

(a)     examine the person;

(b)     take a sample of the person’s blood;

(c)     arrange for a sample of the person’s blood to be taken by another medical practitioner, a registered nurse or a qualified person.

(2)   If a request is made under subsection (1), a police officer must make arrangements that are reasonable in the circumstances for the person to communicate with a medical practitioner.

Division 6           Immediate licence suspension

 

29AAM     Licence suspension for up to 24 hours

(1)   Subject to the Regulations, if a person is:

(a)     arrested under section 29AAF(4); or

(b)     taken to a hospital or a health centre under section 29AAG;

for the purpose of having a sample of blood taken for analysis to determine if the person’s blood contains a prohibited drug, a police officer may, before the person is released from custody or departs the hospital or health centre, give the person a notice under this section.

(2)   The notice must be in a form approved by the Commissioner and:

(a)     has the effect that the person’s licence is suspended immediately the person is given the notice; and

(b)     must inform the person that he or she is disqualified from driving;

for the period, not exceeding 24 hours, specified in the notice.

(3)   A notice under this section cannot be challenged or reviewed in any court.

(4)   A police officer who gives a person a notice under this section must provide details of the notice, and the person to whom it was given, to the Registrar without delay.

29AAN     Notice of immediate licence suspension and disqualification from driving

(1)   If a person is charged with an immediate suspension offence, a police officer may give the person a notice under this section.

(2)   For subsection (1), a person is charged with the offence when given a copy of the charge, signed by a police officer.

(3)   The notice must be in a form approved by the Commissioner and:

(a)     has the effect that the person’s licence is suspended immediately the person is given the notice; and

(b)     must inform the person that he or she is disqualified from driving until the charge is determined by a court; and

(c)     must require the person to surrender to police any licence document the person holds; and

(d)     must include a statement of the person’s right to appeal to the Local Court against the suspension and disqualification.

(4)   A police officer who gives a person a notice under this section must provide details of the notice, and the person to whom it was given, to the Registrar without delay.

29AAP      Offences

(1)   A person who is given a notice under section 29AAN must not, without reasonable excuse, refuse or fail to surrender any licence document held by the person.

Maximum penalty:         20 penalty units or imprisonment for 12 months.

Note

The onus is on the person to establish there was reasonable excuse for a failure to surrender a licence document.

(2)   A person who is given a notice under section 29AAN must not, while disqualified from driving, apply for a licence in the Territory or elsewhere.

Maximum penalty:         20 penalty units or imprisonment for 12 months.

29AAQ     Appeal against immediate suspension notice

(1)   A person given a notice under section 29AAN may appeal to the Local Court against the licence suspension and disqualification from driving as a result of the notice.

(2)   The appellant:

(a)     must give 14 days written notice of the appeal to the Registrar and to the Local Court; and

(b)     must set out particulars of exceptional circumstances the appellant relies upon to justify the setting aside of the notice.

(3)   In determining the appeal, the Local Court must hear:

(a)     any evidence tendered by the appellant; and

(b)     any evidence tendered by or on behalf of the Registrar; and

(c)     any evidence required by the Court from a medical practitioner.

(4)   The Court may, by order:

(a)     uphold the notice; or

(b)     if satisfied of exceptional circumstances that justify it – set aside the notice.

(5)   An order under subsection (4) is final and cannot be appealed against or reviewed by the Court or any other court.

Division 7           Licence cancellation on finding of guilt

 

29AAR     Further disqualification for certain drivers

(1)   This section applies if:

(a)     a court finds a person guilty of any of the following offences:

(i)      driving under the influence of alcohol or a drug;

(ii)     driving with a high range breath or blood alcohol content;

(iii)    driving with a medium range breath or blood alcohol content;

(iv)    refusing or failing to provide a sufficient sample of breath for a breath analysis;

(v)     refusing or failing to provide a sample of blood; and

(b)     at the time of committing the offence the person was driving:

(i)      a vehicle with a GVM of 15 t or more; or

(ii)     a commercial passenger vehicle.

(2)   The person is disqualified from obtaining a licence to drive a vehicle with a GVM of 15 t or more or a commercial passenger vehicle for a minimum period of 5 years.

Note

The person’s licence to drive a motor vehicle is cancelled, and the person is also disqualified from obtaining a licence to drive any vehicle, for the period specified in the relevant section.

29AAS      When court finds person guilty

(1)   If a court finds a person guilty of an offence under this Part, the person’s licence is cancelled and the person is disqualified from obtaining another licence for the minimum period specified in relation to the offence, taking into account whether the offence is a first, second or subsequent offence.

(2)   For subsection (1), a court which finds a person guilty of an offence under this Part must specifically find whether the offence is the person’s first, second or subsequent offence.

(3)   The cancellation and disqualification occur automatically by operation of this Part, but take effect from the date of the finding of guilt.

(4)   The court may order that the person be disqualified from obtaining a licence for a period longer than any minimum period specified in this Part, as the court considers fit.

(5)   The period of disqualification is reduced by any period of licence suspension imposed under section 29AAN in relation to the same offence.

Division 8           Court and evidentiary matters

 

29AAT      Use of indicated BrAC or BAC in court proceedings

(1)   This section applies:

(a)     in any proceedings in a court; and

(b)     even if evidence is given that the person consumed alcohol after the time of the alleged commission of the offence (the relevant time) and before the breath analysis was carried out or the sample of blood was taken.

(2)   If a breath analysis is carried out on a person in accordance with section 29AAC or 29AAD, the BrAC indicated by the analysis is taken to be the BrAC of the person at the relevant time.

(3)   If more than one breath analysis was carried out, the lower of the BrAC indicated is taken to be the BrAC of the person at the relevant time.

(4)   If a sample of a person’s blood is taken in accordance with section 29AAK:

(a)     the BAC indicated by analysis of the sample is taken to be the BAC of the person at the relevant time; and

(b)     any prohibited drug detected in the person’s blood is taken to have been present in the person’s blood at the relevant time.

(5)   If the person’s blood is analysed because the person was taken to a hospital or health centre with injuries that may have been caused in a crash:

(a)     the BAC indicated by the analysis is taken to be the BAC of the person at the time of the crash; and

(b)     any prohibited drug detected in the person’s blood is taken to have been present in the person’s blood at the time of the crash.

29AAU     Evidence by certificate

(1)   In any proceedings in a court, a certificate in the relevant prescribed form purporting to be signed by:

(a)     a person authorised by the Commissioner under this Act to use a prescribed breath analysis instrument for this Act; or

(b)     a member of the staff of a hospital or health centre; or

(c)     an authorised analyst or a person employed by an authorised analyst;

is prima facie evidence of the matters stated in the certificate and the facts on which they are based.

(1A)   If evidence is given by a certificate as mentioned in subsection (1), it is not necessary to prove:

(a)     the signature of the person who signed the certificate; or

(b)     the person holds the capacity in which the person purported to act in signing the certificate.

(2)   For subsection (1), the Regulations may prescribe forms of certificate to be used by different persons on different occasions.

(3)   If the Regulations do not prescribe a form for a specific situation, the Registrar may approve a form for use in that situation.

29AAV      If witness to be called

In any proceedings in a court, if a party intends to call as a witness a person whose evidence may be received by way of certificate under section 29AAU, that party must:

(a)     give not less than 14 days notice in writing of that intention to the other party; and

(b)     call the person in accordance with the procedures of the relevant court to give the person’s evidence.

29AAW     Breath analysis instrument

(1)   The Regulations may provide:

(a)     that a device for the carrying out of a breath analysis is a prescribed breath analysis instrument; and

(b)     for the proper use of a prescribed breath analysis instrument;

for this Act.

(2)   A court must not receive evidence that a prescribed breath analysis instrument, when it is in good working order and used in accordance with the Regulations relating to its use, does not give a true and correct assessment of the concentration of alcohol in a person’s breath.

29AAX      Limitation on use of certain evidence

The fact that a sample of a person’s blood, when analysed for this Act, indicated the presence of a prohibited drug cannot be used in evidence in any proceedings in a court under the Misuse of Drugs Act.

29AAY      References to court and proceedings

In this Part:

(a)     a reference to proceedings in a court includes a reference to a preliminary examination under Part V of the Justices Act; and

(b)     a reference to a court includes a reference to a Justice conducting a preliminary examination under Part V of the Justices Act.

Division 9           Alcohol ignition locks

 

29AAYA   Object of Division

The object of this Division is to enable certain persons disqualified from obtaining a licence under this Part to drive an AIL vehicle after the end of a mandatory period of the disqualification.

29AAYB   Application of Division

This Division applies to a person who is:

(a)     disqualified from obtaining a licence because of section 21(3)(b)(ii), 22(3)(b)(ii), 24(5)(b)(ii), 25(6A)(a)(ii) or (b)(ii), 29AAA(3A)(b)(ii), 29AAE(3)(b)(ii) or 29AAH(3)(b)(ii); and

(b)     granted an AIL licence under section 10(4A) of the Motor Vehicles Act.

29AAYC   Effect of holding licence

Despite any other provisions of this Act, the person may drive an AIL vehicle at a public place or on a public street while the AIL licence has effect.

Note

In general, the AIL licence has effect for the remains of the AIL period (see section 10(4C) and (4D) of the Motor Vehicles Act).

29AAYD   Offences

(1)   While the AIL licence has effect, the person must not drive a motor vehicle at a public place or on a public street if it is not an AIL vehicle.

Maximum penalty:         Imprisonment for 12 months.

(2)   While the AIL licence has effect, the person must not drive an AIL vehicle at a public place or on a public street if:

(a)     the AIL fitted to the vehicle is not functioning properly; and

(b)     the person knows the AIL is not functioning properly.

Maximum penalty:         Imprisonment for 12 months.

(3)   While the AIL licence has effect, the person must not drive an AIL vehicle at a public place or on a public street:

(a)     if the AIL fitted to the vehicle is disengaged; or

(b)     in a way that would hamper the proper functioning of the AIL.

Maximum penalty:         Imprisonment for 12 months.

(4)   The person must not contravene a condition of the AIL licence.

Maximum penalty:         20 penalty units.

(5)   If a court finds a person guilty of an offence against subsection (1), (2) or (3):

(a)     the AIL licence is cancelled; and

(b)     the person is disqualified from obtaining a licence for the rest of the AIL period.

(6)   An offence against subsection (1), (2) or (3) is an immediate suspension offence.

Part VA             Hoon behaviour

Division 1           Preliminary matters

 

29AA        Object of Part

The object of this Part is to discourage hoon driving and related anti-social behaviour.

29AB        Definitions

In this Part:

alleged offence, see section 29AD(1).

Consumer Credit Code means Schedule 1 to the National Consumer Credit Protection Act 2009 (Cth).

costs, of impounding a motor vehicle as a result of an impounding determination or impounding order, means all the costs related to the following as a result of the determination or order (whether or not the initial period has passed):

(a)     removing and keeping the vehicle;

(b)     if the determination or order specifies that the vehicle be immobilised – immobilising, and removing the immobilisation of, the vehicle.

forfeiture order, see section 29AI(2).

impound, for a motor vehicle and in relation to an impounding determination or impounding order, means 1 or both of the following as specified in the determination or order:

(a)     keeping the vehicle at a specified place (including, for example, a place under the control of a tow truck operator);

(b)     immobilising the vehicle by using wheel clamps or other devices.

impounding determination, see section 29AD(1).

impounding order, see sections 29AH(2) and 29AI(8).

initial period means:

(a)     for an impounding determination – see section 29AD(6); or

(b)     for an impounding order – see sections 29AH(4) and 29AI(8).

offender, see section 29AG.

prescribed driving offence means an offence committed by the driver of a motor vehicle against a provision of this Act prescribed by regulation for this definition.

registered operator, of a motor vehicle, means the person who is nominated under section 92A of the Motor Vehicles Act to be the operator of the vehicle.

registered owner, of a motor vehicle, means the person who is the owner of the vehicle as defined in section 5(1) of the Motor Vehicles Act.

senior police officer means a police officer of the rank of superintendent or above.

storage place, for an impounding determination or impounding order relating to a motor vehicle, means the place at which the vehicle is kept because of the impounding determination or impounding order.

traffic infringement notice means a traffic infringement notice issued under the regulations.

29AC        Traffic infringement notice counted as offence

If a traffic infringement notice for a prescribed driving offence has been issued to a person and the notice is not withdrawn, the person is taken to have been found guilty of the offence for this Part.

Division 2           Impounding determination

 

29AD        Power of police officer to impound vehicle

(1)   A police officer who reasonably believes a motor vehicle was used in committing a prescribed driving offence (the alleged offence) may determine in writing (the impounding determination) that the vehicle be impounded.

(2)   Without limiting subsection (1), the police officer may form the belief on the basis of a statement made on oath by a complainant in relation to the commission of the alleged offence.

(3)   The police officer may make the impounding determination only within 14 days of the alleged offence.

(4)   The police officer must, as far as reasonably practicable after making the impounding determination, give a copy of it to the following:

(a)     the person who was the driver of the motor vehicle at the time of the alleged offence;

(b)     if the vehicle is registered and the driver is not the registered owner or registered operator of the vehicle – the registered owner and registered operator of the vehicle;

(c)     if the police officer knows the identity of the owner of the vehicle (whether or not the vehicle is registered) – that owner;

(d)     if the driver was found guilty of 1 or more prescribed driving offences within 2 years immediately before the date of the alleged offence – the Registrar.

(5)   The impounding determination:

(a)     must include information about the impounding determination and its effect (including, for example, the storage place and liability for the costs of impounding the vehicle); and

(b)     may include other information relating to impounding the vehicle.

(6)   The impounding determination has effect during the period (the initial period):

(a)     starting when a police officer takes control of the motor vehicle for the determination; and

(b)     ending 48 hours later or at an earlier time if the determination is revoked at the earlier time.

29AE        Review and revocation of impounding determination

(1)   As soon as practicable after the police officer has made the impounding determination, the police officer must give a copy of it to a senior police officer to review the determination.

(2)   The senior police officer must review the impounding determination as soon as practicable and no later than 24 hours after the copy is given to him or her.

(3)   At any time before an impounding determination ceases to have effect:

(a)     the police officer or senior police officer must revoke the determination if the police officer or senior police officer is satisfied that, at the time of the alleged offence, the motor vehicle was a rental vehicle, or was stolen or otherwise used without the authority of its owner; or

(b)     the senior police officer must revoke the determination if the senior police officer is not satisfied the vehicle was used in committing the alleged offence.

29AF         Related powers of police officer

(1)   A police officer may, for the purposes of the impounding determination:

(a)     require a person who was the driver of the motor vehicle at the time of the alleged offence to give to the officer the names and addresses of the registered owner, registered operator or anyone who is otherwise the owner of the vehicle; and

(b)     by the impounding determination or another written notice – require a person having the control of the vehicle to deliver the vehicle to the officer by a specified time at a specified place; and

(c)     without a warrant, enter a place where the officer reasonably suspects the vehicle may be found; and

(d)     without a warrant, search for, seize and remove the vehicle.

(2)   A police officer’s power to seize the motor vehicle under subsection (1)(d) may be exercised only within 14 days after the day on which the impounding determination is made.

(3)   A police officer may use any reasonable force and assistance in exercising a power under this section.

(4)   A person required by a police officer to give information as mentioned in subsection (1)(a) must comply with the requirement.

Maximum penalty:         20 penalty units.

(5)   A person required by a police officer to deliver the vehicle as mentioned in subsection (1)(b) must comply with the requirement.

Maximum penalty:         100 penalty units.

(6)   It is a defence to a prosecution for an offence against subsection (4) or (5) if the defendant establishes a reasonable excuse.

Division 3           Impounding orders and forfeiture orders

 

29AG        Application of Division

This Division applies if, within 2 years after a person (the offender) being found guilty of a prescribed driving offence (the first offence):

(a)     the offender is found guilty of another prescribed driving offence (the second offence); or

(b)     the offender is found guilty of 1 or more further prescribed driving offences (each of which is a subsequent offence) after being found guilty of the second offence.

29AH        Sentencing for second offence

(1)   This section applies after a court has found the offender guilty of the second offence.

(2)   Before the offender is sentenced for the second offence, the Commissioner of Police may apply to the court for an order (an impounding order) to impound the motor vehicle used in committing the offence.

(3)   However, the Commissioner of Police may not do so if, at the time of the second offence, the motor vehicle was a rental vehicle, or was stolen or otherwise used without the permission of its owner.

(4)   The court may order the impounding of the motor vehicle for a specified period (the initial period) that is at least 3 months and not more than 6 months if the court is satisfied:

(a)     each person with an interest in the vehicle had the opportunity to be heard in the proceedings for the application; and

(b)     impounding the vehicle will not cause severe financial or physical hardship to a person mentioned in paragraph (a) who was heard in the proceedings.

(5)   The court must not make the impounding order if the court is satisfied:

(a)     the offender was not the owner of the motor vehicle at the time of the second offence; and

(b)     the second offence happened without the knowledge and consent of the owner of the vehicle.

(6)   The impounding order must specify the storage place and may specify other matters relating to impounding the motor vehicle as decided by the court.

(7)   The impounding order takes effect as specified in the order at the earlier of the following:

(a)     the expiration of the period for instituting an appeal in relation to the offence or sentence if no appeal is instituted;

(b)     the end of the proceedings for an appeal by the offender if the appeal is unsuccessful.

(8)   The impounding order may be made whether or not the motor vehicle was previously impounded under section 29AD because of the second offence.

29AI          Sentencing for subsequent offence

(1)   This section applies after a court finds the offender guilty of a subsequent offence.

(2)   Before the offender is sentenced for the subsequent offence, the Commissioner of Police may apply to the court for an order (a forfeiture order) to forfeit the motor vehicle used in committing the offence.

(3)   However, the Commissioner of Police may not do so if, at the time of the subsequent offence, the motor vehicle was a rental vehicle, or was stolen or otherwise used without the permission of its owner.

(4)   The court may make the forfeiture order only if the court is satisfied:

(a)     each person with an interest in the motor vehicle had the opportunity to be heard in the proceedings for the application; and

(b)     forfeiting the vehicle will not cause severe financial or physical hardship to a person mentioned in paragraph (a) who was heard in the proceedings.

(5)   The court must not make the forfeiture order if the court is satisfied:

(a)     the offender was not the owner of the motor vehicle at the time of the subsequent offence; and

(b)     the subsequent offence happened without the knowledge and consent of the owner of the vehicle.

(6)   The forfeiture order takes effect as specified in the order at the earlier of the following:

(a)     the expiration of the period for instituting an appeal in relation to the offence or sentence if no appeal is instituted;

(b)     the end of the proceedings for an appeal by the offender if the appeal is unsuccessful.

(7)   When the forfeiture order takes effect:

(a)     the vehicle becomes the property of the Territory; and

(b)     any rights in the vehicle existing before the forfeiture are extinguished.

(8)   Instead of making a forfeiture order, the court may make an order (an impounding order) to impound the vehicle for a specified period (the initial period) that is at least 3 months and not more than 6 months, if the court:

(a)     would, apart from subsection (4)(b), make the forfeiture order; and

(b)     is satisfied that impounding the vehicle for the initial period will remove or reduce the hardship as mentioned in that subsection.

(9)   The court may make the impounding order on its own initiative or on the application of the Commissioner of Police, and whether or not the motor vehicle was previously impounded under section 29AD because of the subsequent offence.

(10)   The impounding order must specify the storage place and may specify other matters relating to impounding the vehicle as the court decides.

29AJ         Interested parties for proceedings

(1)   This section applies if, in relation to an offender, the Commissioner of Police intends to apply for an impounding order or forfeiture order.

(2)   The Commissioner of Police must, before the offender is sentenced for the offence to which the proposed order relates, give written notice of that intention to the following:

(a)     the Registrar;

(b)     if the vehicle is registered – the registered owner and registered operator of the motor vehicle;

(c)     if the Commissioner knows the identity of the owner of the vehicle (whether or not the vehicle is registered) – that owner;

(d)     if the Commissioner knows the identity of a person who is the spouse or de facto partner of a person mentioned in paragraph (b) or (c) – that person;

(e)     for an application for a forfeiture order – anyone whose interest in the vehicle is recorded in the PPS Register.

(3)   A person notified under subsection (2), or anyone else claiming to have an interest in the motor vehicle, has a right to be heard in the proceedings for the application.

29AK        Other related orders

(1)   The court making an impounding order or forfeiture order may:

(a)     order the owner of the motor vehicle to which the order relates to deliver the vehicle to a police officer by a specified time at a specified place; or

(b)     authorise a police officer, without warrant, to:

(i)      enter a place the officer reasonably suspects the vehicle may be found; and

(ii)     search for, seize and remove the vehicle.

(2)   A police officer may use any reasonable force and assistance in exercising a power under the order.

29AL         Proceedings for order and other penalty

To avoid doubt:

(a)     the proceedings for the application of an impounding order or forfeiture order in relation to a prescribed driving offence are part of the proceedings for sentencing the offender in relation to the offence; and

(b)     the making of an impounding order or forfeiture order is in addition to, and does not limit the court’s power to impose, any other penalty for the offence.

29AM        Application to Local Court after making of forfeiture order

(1)   This section applies to a person if:

(a)     the person had an interest in a motor vehicle before it was forfeited under a forfeiture order; and

(b)     the person:

(i)      was not notified of the application for that order under section 29AJ and did not appear as a party in the proceedings for that application; or

(ii)     is allowed by the Local Court to make an application for an order under this section; and

(c)     the vehicle:

(i)      is still vested in the Territory; or

(ii)     has been sold under section 29AS and part of the proceeds has been paid to the Central Holding Authority (the CHA amount).

(2)   The person (the applicant) may, within 60 days after the forfeiture of the motor vehicle, apply to the Local Court for an order:

(a)     declaring the nature, extent and value of the interest; and

(b)     directing the Territory:

(i)      if the vehicle is still vested in the Territory – to transfer it to the applicant; or

(ii)     otherwise – to pay to the applicant an amount worked out under subsection (3).

(3)   The amount must be:

(a)     equal to the value of the interest if that value is less than so much of the CHA amount as is reduced by any amount already paid under this section to another person who also had an interest in the vehicle (the reduced CHA amount); or

(b)     otherwise – equal to the reduced CHA amount.

(4)   The Local Court may allow the application to be made more than 60 days after the forfeiture of the vehicle if it is satisfied the delay in making the application was not caused by the applicant’s neglect.

(5)   The applicant must notify the Commissioner of Police of the application at least 3 days before the Local Court hears the application.

(6)   The Commissioner of Police:

(a)     is a party to the proceedings for the application; and

(b)     if the vehicle is vested in the Territory – must not dispose of the vehicle after being notified of the application and before the end of the proceedings.

(7)   The Local Court must grant the application by making an order it considers appropriate if it is satisfied:

(a)     the applicant would, apart from the forfeiture order, have a genuine interest in the vehicle; and

(b)     if the vehicle was forfeited under a forfeiture order – the prescribed driving offence to which the order relates happened without the knowledge and consent of the applicant.

29AN        Registrar’s obligations

(1)   The Registrar must, on request of a police officer, give the officer all information held by the Registrar about a motor vehicle to which any of the following relates:

(a)     an impounding determination, impounding order or forfeiture order;

(b)     an application that has been made for an impounding order or forfeiture order.

(2)   In addition, the Registrar must not cancel or change the registration of the motor vehicle during the following periods:

(a)     if the Registrar is given a copy of the impounding determination under section 29AD(4) for the vehicle – the period of 28 days starting from the date of the notice;

(b)     if the Commissioner of Police has made an application for an impounding order or forfeiture order for the vehicle – the period starting on the day the Registrar is given a notice under section 29AJ(2) in relation to the application and ending on the day the application is decided by a court.

(3)   This section does not prevent the Registrar from:

(a)     renewing the registration of the motor vehicle without changing the registration of the ownership of the vehicle; or

(b)     changing the registration of the motor vehicle because it is repossessed or sold by a credit provider as mentioned in section 29AO.

Division 4           Impounded and forfeited vehicles

 

29AO        Rights of credit provider

An impounding determination or impounding order for a motor vehicle does not affect the rights of a credit provider to repossess and sell the vehicle under the Consumer Credit Code.

29AP        What happens at end of initial period

(1)   The owner of a motor vehicle to which an impounding determination or impounding order relates is entitled to collect the vehicle at the end of the initial period on payment of the costs of impounding the vehicle.

(2)   The Commissioner of Police must notify the following about any change of the arrangement for impounding the vehicle after the initial period:

(a)     the person who was the driver of the vehicle at the time of the alleged offence;

(b)     if the vehicle is registered and that driver is not the registered owner or registered operator of the vehicle – the registered owner and registered operator;

(c)     if the Commissioner knows the identity of the owner of the vehicle (whether or not the vehicle is registered) – that owner.

29AQ        Costs of impounding

(1)   The driver of a motor vehicle (the driver) at the time of the alleged offence or offence to which an impounding determination or impounding order relates is liable to pay the costs of impounding the vehicle as a result of the determination or order.

(2)   However, a person is entitled to be reimbursed the amount of those costs that is attributable to the initial period and the 2 days immediately following the initial period (the initial costs) if:

(a)     the person incurs the initial costs when the owner of the vehicle collects the vehicle after the initial period; and

(b)     for a vehicle impounded under an impounding determination – any of the following applies:

(i)      the determination is revoked;

(ii)     the driver is found not guilty of the alleged offence;

(iii)    the driver is not charged with, or issued with a traffic infringement notice or summons for, the alleged offence within 6 months after the determination is made; and

(c)     for a vehicle impounded under an impounding order – the order is overturned on an appeal against the decision to make the order.

(3)   The Territory is responsible for the initial costs if subsection (2) applies.

(4)   If the Territory incurs an amount of costs of impounding the vehicle (other than the initial costs for which the Territory is responsible under subsection (3)), the amount is a debt due to the Territory by the driver.

(5)   Despite subsections (3) and (4), the regulations may provide for the release of the vehicle to a person on payment of an amount by the person.

(6)   This section does not prevent the owner of the vehicle to recover from the driver an amount of the costs of impounding the vehicle paid by the owner under section 29AP(1).

29AR        Disposal of impounded vehicles

(1)   This section applies if the owner of a motor vehicle to which an impounding determination or impounding order relates does not collect the vehicle:

(a)     for an impounding determination – within 28 days after a copy of the impounding determination is given to a person under section 29AD(4); or

(b)     for an impounding order – within 28 days after the order expires.

(2)   The Commissioner of Police may dispose of the vehicle in any way the Commissioner considers appropriate (including, for example, sale or destruction) if:

(a)     all proceedings for the alleged offence or offence to which the determination or order relates have ended, the period for appeal has expired and, for an impounding order, the order is not overturned; and

(b)     at least 28 days before the proposed disposal of the vehicle – the Commissioner has notified each of the following of the proposed disposal:

(i)      the person who was the driver of the vehicle at the time of the alleged offence or offence;

(ii)     if the vehicle is registered and that driver is not the registered owner or registered operator of the vehicle – the registered owner and registered operator;

(iii)    if the Commissioner knows the identity of the owner of the vehicle (whether or not the vehicle is registered) – that owner;

(iv)    anyone else whom the Commissioner knows to have an interest in the vehicle; and

(c)     at least 28 days before the proposed disposal – the Commissioner has, by Gazette notice, publicised the proposed disposal; and

(d)     at least 28 days before the proposed disposal – the Commissioner has notified the Registrar about the proposed disposal; and

(e)     the Commissioner has obtained a written search result of the PPS Register in the appropriate form in relation to the vehicle under the PPS Act.

(3)   The Commissioner of Police is required to notify a person mentioned in subsection (2)(b) only to the extent to which it is reasonably practicable to do so.

(4)   The owner of the vehicle is entitled to collect the vehicle at anytime before the proposed disposal on payment of the costs of impounding the vehicle as mentioned in section 29AQ.

(5)   If the motor vehicle is disposed of by sale to a person, the purchaser holds title to the vehicle free of any interest existing in it before the disposal.

(6)   If the Commissioner of Police sells the vehicle under this section, the proceeds of the sale must be paid as follows:

(a)     first – in payment of the expenses of the sale;

(b)     second – in payment of the costs incurred by the Territory for any impounding determination or impounding order for the vehicle;

(c)     third – in payment of the costs incurred by the Territory for giving notice to a person about the proposed disposal;

(d)     fourth – in payment of the amount owing to the holder of a security interest in the vehicle that is registered in the PPS Register;

(e)     fifth – to the owner of the vehicle.

(7)   If, after making reasonable attempts to locate the owner, the Commissioner has not done so, the amount payable to the owner under subsection (6) must be paid to the Central Holding Authority.

29AS        Disposal of forfeited vehicles

(1)   The Commissioner of Police may dispose of a motor vehicle forfeited under a forfeiture order in any way the Commissioner considers appropriate (including, for example, sale or destruction).

(2)   If the Commissioner of Police sells the vehicle under this section, the proceeds of the sale must be paid as follows:

(a)     first – in payment of the expenses of the sale;

(b)     second – in payment of the costs incurred by the Territory for removing and keeping the vehicle for the forfeiture order;

(c)     third – in payment of the costs incurred by the Territory for any impounding determination or impounding order for the vehicle;

(d)     fourth – in payment of the amount owing to the holder of a security interest in the vehicle that is registered in the PPS Register;

(e)     fifth – to the Central Holding Authority.

Division 5           Related offences

 

29AT        Impounding determination, impounding order and forfeiture order

(1)   A person must not enter into a transaction relating to a motor vehicle, or remove anything fitted or attached to the vehicle, within 28 days after an impounding determination has been made for the vehicle if:

(a)     the driver of the vehicle at the time of the alleged offence to which the determination relates was found guilty of 1 or more prescribed driving offences within 2 years immediately before that time; and

(b)     the person knows that:

(i)      the driver has been found guilty of 1 or more of the offences within the 2 years; and

(ii)     an impounding determination has been made for the vehicle.

Maximum penalty:         200 penalty units or imprisonment not exceeding 1 year.

(2)   A person must not enter into a transaction relating to a motor vehicle, or remove anything fitted or attached to the vehicle, if:

(a)     a driver of the vehicle has been charged with, or issued with a summons for, a prescribed driving offence (the relevant offence); and

(b)     the driver was found guilty of a single prescribed driving offence during the 2 years immediately before being charged with the relevant offence; and

(c)     the person knows about the matters mentioned in paragraphs (a) and (b); and

(d)     the person has been notified under section 29AJ(2) of the intention of the Commissioner of Police to apply for an impounding order for the relevant offence.

Maximum penalty:         200 penalty units or imprisonment not exceeding 1 year.

(3)   Subsections (1) and (2) do not apply to any transaction entered into by a credit provider who repossesses or sells the vehicle as mentioned in section 29AO.

(4)   A person must not enter into a transaction relating to a motor vehicle, or unlawfully remove anything fitted or attached to the vehicle, if:

(a)     a driver of the vehicle is charged with, or issued with a summons for, a prescribed driving offence (the relevant offence); and

(b)     the driver was found guilty of 2 or more prescribed driving offences during the 2 years immediately before being charged with the relevant offence; and

(c)     the person knows about the matters mentioned in paragraphs (a) and (b); and

(d)     the person has been notified under section 29AJ(2) of the intention of the Commissioner of Police to apply for a forfeiture order for the relevant offence.

Maximum penalty:         400 penalty units or imprisonment not exceeding 2 years.

(5)   If a motor vehicle is impounded under an impounding determination or impounding order, a person must not:

(a)     unlawfully remove the vehicle or anything fitted or attached to the vehicle from the storage place where the vehicle is kept; or

(b)     interfere with the vehicle while it is kept at the storage place; or

(c)     remove or tamper with any device used to immobilise the vehicle while it is kept at the storage place.

Maximum penalty:         100 penalty units.

(6)   Subsection (5) does not apply to any of the following:

(a)     a credit provider repossessing or selling the vehicle as mentioned in section 29AO;

(b)     a person maintaining the vehicle (including, for example, periodically starting the engine of the vehicle);

(c)     a person removing personal possessions (other than a thing that is fitted or attached to the vehicle) from the vehicle.

(7)   In this section:

transaction, relating to a vehicle, includes but is not limited to:

(a)     a sale of all or part of the vehicle; and

(b)     the creation of a mortgage or charge in relation to the vehicle.

29AU        Excessive noise from vehicle

(1)   If a police officer reasonably believes excessive noise is generated by or from a motor vehicle that is at a public place or on a public street, the officer may direct a person having control of the vehicle to reduce or stop the noise.

(2)   A person given the direction must comply with it.

Maximum penalty:         20 penalty units.

(3)   It is a defence to a prosecution for an offence against subsection (2) if the defendant establishes a reasonable excuse.

Division 6           Administrative matters

 

29AV        Disclosure of information

(1)   This section applies to a motor vehicle if:

(a)     an impounding determination has been made for the vehicle; or

(b)     an application for an impounding order or forfeiture order for the vehicle has been made and is pending; or

(c)     an impounding order or forfeiture order is in force for the vehicle.

(2)   A police officer may give any information held by the officer about the vehicle to another person (including, for example, a tow truck operator) for the purposes of this Part.

(3)   A person who obtains the information because of subsection (2) (whether directly or indirectly) must not disclose the information to anyone except as authorised under, or for the purposes of, this Part.

Maximum penalty:         200 penalty units or imprisonment for 1 year.

29AW       Protection from liability

(1)   A person is not civilly or criminally liable for an act done or omitted to be done by the person in good faith in the exercise of a power or performance of a function under this Part as any of the following:

(a)     the Commissioner of Police;

(b)     a police officer;

(c)     a person assisting a police officer.

(2)   Subsection (1) does not affect any liability the Territory would, apart from that subsection, have for the act or omission.

(3)   In this section:

exercise, of a power, includes the purported exercise of the power.

performance, of a function, includes the purported performance of the function.

29AX        Review of Part

The Chief Executive Officer is to conduct a review of the first 7 years of the operation of this Part after the commencement of this section.

Part VI              Offences

 

29A           Effect of suspension of licence to drive or vehicle registration

(1)   If a person’s licence to drive is suspended under this Act or another Act, the person is to be taken not to hold a licence to drive during the period of suspension.

(2)   If the registration of a vehicle is suspended under the Motor Vehicles Act, the vehicle is to be taken to not be registered during the period of suspension.

30              Dangerous driving or riding

(1)   A person shall not, on a public street or public place, drive or ride a vehicle negligently or recklessly or at a speed or in a manner dangerous to the public.

Penalty:         20 penalty units or imprisonment for 2 years.

(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 public street or public place on which the offence is alleged to have been committed, and the amount of traffic which was, or might reasonably have been expected to have been, on that public street or public place at the time.

(3)   Where a person is found guilty of an offence against subsection (1) by reason of driving a motor vehicle on a public street or public place recklessly or at a speed or in a manner dangerous to the public, the person’s licence shall, by force of the finding of guilt, be cancelled and that person shall be disqualified from holding a licence:

(a)     for a first offence – for a period of 6 months; and

(b)     for a second or subsequent offence – for a period of 12 months,

or such longer period as the court thinks fit.

(4)   Subsection (1) in so far as it relates to the driving of a motor vehicle at a speed dangerous to the public does not apply to the driver of a motor vehicle which is:

(a)     being driven or used by a member of the Police Force in the execution of that member’s duty;

(b)     being driven by a member of the Northern Territory Fire and Rescue Service, within the meaning of the Fire and Emergency Act, to a place in answer to a call for the services of the Northern Territory Fire and Rescue Service, or whilst it is in use at a fire or other emergency; or

(c)     an ambulance.

30A           Driving at dangerous speed

(1)   A person must not drive a vehicle at a speed that is 45 km/h or more faster than the prescribed speed limit for the length of road.

Penalty:         20 penalty units or imprisonment for 2 years.

(2)   Where a person is found guilty of an offence against subsection (1), the person’s licence is, by force of the finding of guilt, cancelled and the person is disqualified from holding a licence:

(a)     for a first offence – for a period of 3 months; or

(b)     for a second offence or subsequent offence – for a period of 6 months,

or for such longer period as the Court thinks fit.

(3)   Subsection (1) does not apply to the driver of a motor vehicle that is:

(a)     being driven or used by a member of the Police Force in the execution of that member’s duty;

(b)     being driven by a member of the Northern Territory Fire and Rescue Service, within the meaning of the Fire and Emergency Act, to a place in answer to a call for the services of the Northern Territory Fire and Rescue Service, or whilst it is in use at a fire or other emergency; or

(c)     an ambulance.

31              Driving while disqualified

(1)   Where a person is disqualified from holding a licence for a period, that person shall not during that period:

(a)     obtain a licence; or

(b)     drive a motor vehicle on a public street or public place.

Penalty:         Imprisonment for 12 months.

(1A)   If a person is disqualified from obtaining a licence other than an AIL licence for an AIL period, the person must not apply for a licence other than an AIL licence during that period.

(1B)   In addition, the person must not, during that period, drive a motor vehicle at a public place or on a public street except under an AIL licence.

Maximum penalty:         Imprisonment for 12 months.

(2)   Where a person is found guilty of an offence against subsection (1) or (1B), the court may disqualify that person from holding a licence for such further period as it thinks fit.

32              Driving while not licensed

(1)   A person shall not drive a motor vehicle on a public street or public place:

(a)     unless that person:

(i)      holds a licence;

(ii)     is temporarily in the Territory and holds a licence or permit to drive a motor vehicle granted in:

(A)    the country or a State or other Territory of the Commonwealth in which that person usually resides; and

(B)    when required, holds a current international driving permit granted in accordance with the terms of the 1949 United Nations Convention on Road Traffic;

(iii)    holds a learner’s licence; or

(iv)    is temporarily in the Territory and holds a licence or permit (however referred to) granted in the country or the State or other Territory of the Commonwealth in which that person usually resides which permits the person to drive a motor vehicle to gain experience for the purpose of obtaining a licence to drive a motor vehicle,

and is driving in accordance with the conditions, if any, of the licence or permit, and the motor vehicle is one which the person is permitted by the licence or permit to drive; or

(b)     if:

(i)      that person is disqualified from holding a licence in a State or another Territory of the Commonwealth, during the period that the disqualification is in force; or

(ii)     the Registrar has revoked or suspended the person’s entitlement to drive a motor vehicle under section 101B of the Motor Vehicles Act, during the period that the revocation or suspension is in force.

(2)   A person shall not employ, permit or suffer a person to drive a motor vehicle on a public street or public place if that person is not, by virtue of subsection (1), permitted to drive that motor vehicle.

(3)   For the purposes of subsection (1)(a) or (2), a person who is a resident of the Territory shall be deemed not to hold a licence to drive a motor vehicle unless that person is, under section 8A(3) of the Motor Vehicles Act, exempted from the requirement to be licensed, notwithstanding that that person is the holder of a licence to drive that motor vehicle granted under a law of a country or of a State or another Territory of the Commonwealth relating to the licensing of persons to drive motor vehicles.

(4)   In a prosecution for an offence against subsection (1)(a) or (2) relating to a person who is deemed not to hold a licence to drive a motor vehicle by virtue of subsection (3), an averment in the complaint that the person is a resident of the Territory is prima facie evidence of that fact.

33              Driving unregistered vehicle

(1)   A person shall not:

(a)     drive; or

(b)     employ, permit or suffer a person to drive,

on a public street or public place a motor vehicle which is not registered.

Penalty:         20 penalty units or imprisonment for 12 months.

(2)   An inspector or a member of the Police Force who has reason to believe that a motor vehicle is not registered may remove a number plate which is attached to that vehicle.

(3)   For the purposes of this section:

(a)     a visiting motor vehicle in relation to which there is in force a policy of insurance complying with the provisions of a law in force in a State or another Territory of the Commonwealth requiring the owner or driver of a motor vehicle to be insured against liability in respect of the death of or bodily injury to a person caused by or arising out of the use of the motor vehicle;

(aa)   a motor vehicle being driven by the shortest practicable route to a repair workshop:

(i)      that is located within a reasonable distance in the circumstances;

(ii)     that has the services of an inspector appointed under the Motor Vehicles Act; and

(iii)    where arrangements for the presentation of the vehicle have been made in advance,

for the purpose of the vehicle being inspected or repaired in order for it to be registered;

(b)     a motor vehicle being driven by the shortest practicable route to the nearest office of the Registrar or police station, for the purpose of registering that vehicle;

(c)     a motor vehicle being removed or operated in pursuance of a licence granted under section 137 of the Motor Vehicles Act or a licence or other document, granted under a provision of an Act of a State or another Territory of the Commonwealth, which permits the driving of a vehicle not registered under such an Act;

(d)     a motor vehicle being driven in pursuance of, and in accordance with, a pastoral vehicle permit granted under section 137B of the Motor Vehicles Act;

(da)   a motor vehicle being towed, moved or driven under section 47(4);

(e)     a vehicle which is the property of the Commonwealth or an authority of the Commonwealth; and

(f)      a motor vehicle registered under the Interstate Road Transport Act of the Commonwealth,

shall be deemed to be registered.

(4)   A person shall not drive a visiting motor vehicle on a public street or public place unless that person complies with the conditions, restrictions or limitations (if any) imposed in respect of its registration in the country, State or Territory of the Commonwealth where it is registered and:

(a)     that person can establish, to the satisfaction of the Registrar, that within the period of 3 months immediately preceding that day, it had been outside the Territory; or

(b)     the vehicle is, under section 8A(1) of the Motor Vehicles Act, exempted from the requirement for registration.

(4A)   For the purposes of subsection (1), a motor vehicle is to be deemed to be not registered, notwithstanding that it is registered under a law of another country or of a State or another Territory of the Commonwealth relating to the registration of motor vehicles, where it is being driven in contravention of a condition, restriction or limitation imposed in respect of its registration in that country, State or Territory.

(5)   For the purposes of subsection (1), a motor vehicle shall be deemed to be not registered, notwithstanding that it is registered under a law of another country or of a State or another Territory of the Commonwealth relating to the registration of motor vehicles, where it is being driven by a person who is:

(a)     a resident of the Territory; and

(b)     the owner of the vehicle,

and the vehicle has been in the Territory continuously for:

(c)     more than 28 days; or

(d)     where the Registrar has, under section 8A(1) of the Motor Vehicles Act, exempted the vehicle from the requirement for registration for a period, for more than that period.

(6)   For the purposes of subsection (5)(b), but without limiting that subsection, a person shall be deemed to be the owner of a motor vehicle if it is registered under a law of another country or of a State or another Territory of the Commonwealth in the name of that person or in the name of a spouse, de facto partner, dependant or parent, who is a resident of the Territory, of that person.

(7)   In a prosecution for an offence against subsection (1) in respect of a motor vehicle which is deemed not to be registered by virtue of subsection (5), an averment in the complaint that:

(a)     a person is a resident of the Territory; or

(b)     the vehicle in respect of which an alleged offence was committed had been in the Territory continuously for a specified period,

is prima facie evidence of the matters averred.

(8)   This section does not apply to a vehicle to which section 33A applies.

33A           Driving unregistered heavy vehicle

(1)   A person shall not:

(a)     drive; or

(b)     employ, permit or suffer a person to drive,

on a public street or public place a heavy vehicle which is not registered.

Penalty:         In the case of a natural person – 20 penalty units or imprisonment for 12 months.

In the case of a body corporate – 100 penalty units.

(2)   Where a heavy vehicle that is a visiting motor vehicle:

(a)     is registered in the configuration in which the vehicle was driven at the time of the alleged offence under a law of another country or of a State or another Territory of the Commonwealth relating to the registration of motor vehicles and the registration is not void outside of, or of effect only within, the State or Territory in which registration occurred; or

(b)     was, at the time of the alleged offence, driven in a configuration specified in a permit issued under section 107B of the Motor Vehicles Act in relation to the vehicle,

and there is in force in relation to the vehicle a policy of insurance complying with the provisions of a law in force in a State or another Territory of the Commonwealth requiring the owner or driver of a motor vehicle to be insured against liability in respect of the death of or bodily injury to a person caused by or arising out of the use of the motor vehicle and the policy is not void outside of, or of effect only within, the State or Territory in which registration occurred, the heavy vehicle shall be deemed to be registered.

(3)   Subject to subsection (4), where an owner of a vehicle is found guilty of an offence against subsection (1) in relation to the vehicle, the owner shall, in addition to the penalty, if any, imposed under subsection (1), pay to the Registrar an amount equal to the amount, at the time at which the offence occurred, payable under section 13 of the Motor Vehicles Act for 12 months registration of the vehicle in the configuration in which the vehicle was driven at the time of the offence.

(4)   The Regulations may prescribe that the penalty specified in subsection (3) does not apply to certain specified classes of offences against that subsection and that penalty shall accordingly not apply to those offences.

(5)   An inspector or a member of the Police Force who has reason to believe that a heavy vehicle is not registered may remove a number plate which is attached to that vehicle.

(6)   For the purposes of this section:

(a)     a heavy vehicle being driven by the shortest practicable route to the nearest office of the Registrar or police station, for the purpose of registering that vehicle;

(b)     a heavy vehicle being removed or operated in pursuance of a licence granted under section 137 of the Motor Vehicles Act or a licence, granted under a law of a State or another Territory of the Commonwealth, which permits the driving of a vehicle not registered under such an Act;

(c)     a heavy vehicle being driven in pursuance of, and in accordance with, a pastoral vehicle permit granted under section 137B of the Motor Vehicles Act;

(d)     a heavy vehicle being towed, moved or driven under section 47(4);

(e)     a heavy vehicle which is the property of the Commonwealth or an authority of the Commonwealth; and

(f)      a heavy vehicle registered under the Interstate Road Transport Act of the Commonwealth,

shall be deemed to be registered.

(7)   A person shall not, on a public street or public place, drive a heavy vehicle that is a visiting motor vehicle, unless that person is driving the heavy vehicle in compliance with the conditions, restrictions or limitations (if any) imposed in respect of its registration in the country, State or Territory of the Commonwealth where it is registered and:

(a)     that person can establish, to the satisfaction of the Registrar, that within the period of 3 months immediately preceding that day, it had been outside the Territory; or

(b)     the vehicle is, under section 8A(1) of the Motor Vehicles Act, exempted from the requirement for registration.

(7A)   For the purposes of subsection (1), a heavy vehicle that is a visiting motor vehicle is to be deemed to be not registered, notwithstanding that it is registered under a law of another country or of a State or another Territory of the Commonwealth relating to the registration of heavy vehicles, where it is being driven in contravention of a condition, restriction or limitation imposed in respect of its registration in that country, State or Territory.

(8)   For the purposes of subsection (1), a heavy vehicle shall be deemed to be not registered, notwithstanding that it is registered under a law of another country or of a State or another Territory of the Commonwealth relating to the registration of motor vehicles, where it is being driven by a person who is:

(a)     a resident of the Territory; and

(b)     the owner of the vehicle,

and the vehicle has been in the Territory continuously:

(c)     for more than 28 days; or

(d)     where the Registrar has, under section 8A(1) of the Motor Vehicles Act, exempted the vehicle from the requirement for registration for a period, for more than that period.

(9)   For the purposes of subsection (8)(b), but without limiting that subsection, a person shall be deemed to be the owner of a heavy vehicle if it is registered under a law of another country or of a State or another Territory of the Commonwealth in the name of that person or in the name of a spouse, de facto partner, dependant or parent, who is a resident of the Territory, of that person.

(10)   In a prosecution for an offence against subsection (1) in respect of a heavy vehicle which is deemed not to be registered by virtue of subsection (9), an averment in the complaint that:

(a)     a person is a resident of the Territory; or

(b)     the vehicle in respect of which an alleged offence was committed had been in the Territory continuously for a specified period,

is prima facie evidence of the matters averred.

(11)   For the purposes of this section:

configuration has the meaning it has in the Motor Vehicles Act.

heavy vehicle means a vehicle to which, if the vehicle were required to be registered in the Territory, the Road Transport Charges Laws of the Territory as defined in the Road Transport Charges (Northern Territory) Act would apply.

33B           Person may be cautioned

(1)   This section applies if a person:

(a)     contravenes section 32, 33 or 33A because the person’s licence to drive or the registration of the vehicle is suspended because the person (or the owner of the vehicle) is a fine defaulter; or

(b)     contravenes section 32 because the person is subject to a suspension period under Part III of the Motor Vehicles Act.

(1A)   A member of the Police Force may, if satisfied that the person was unaware of the suspension, caution the person and (if necessary) permit the person to continue to drive the vehicle to a nominated place instead of charging the person with an offence.

(1B)   The Registrar may also, if satisfied that the person was unaware of the suspension, caution the person and (if necessary) permit the person to drive the vehicle to a nominated place.

(2)   A person who has been previously cautioned under this section for contravening section 32, 33 or 33A is not entitled to be cautioned again on another occasion in respect of the same suspension.

(3)   It is a defence to a charge of contravening section 32, 33 or 33A if the person charged proves that he or she was given permission to drive under subsection (1A) or (1B).

34              Driving uninsured or improperly insured vehicle

(1)   Subject to subsection (4), a person shall not drive or permit to be driven on a public street or public place a motor vehicle in respect of which a current compensation contribution has not been paid under Part V of the Motor Vehicles Act.

Penalty:         If the offender is a natural person – 100 penalty units.

If the offender is a body corporate – 500 penalty units.

In both cases, the minimum penalty is:

(a)      for a first offence – 5 penalty units; and

(b)      for a second or subsequent offence –            10 penalty units.

(2)   Subject to subsection (4), the owner of a motor vehicle shall not use or permit it to be used for a purpose which, under Part V of the Motor Vehicles Act, requires a compensation contribution to be paid greater than that paid for that vehicle at the time it was registered.

Penalty:         If the offender is a natural person – 100 penalty units.

If the offender is a body corporate – 500 penalty units.

In both cases, the minimum penalty is:

(a)      for a first offence – 5 penalty units; and

(b)      for a second or subsequent offence –            10 penalty units.

(3)   Subsections (1) and (2) do not apply to or in relation to a motor vehicle which is deemed under section 33(3) or section 33A(2) or (6) to be registered.

(4)   Notwithstanding that a minimum penalty is prescribed for an offence against subsections (1) and (2) the Regulations may provide that the minimum penalty shall not apply to certain classes of offences against those subsections and that minimum penalty shall accordingly not apply to those offences.

35              Driving motor vehicle registered on conditions, &c.

(1)   If the Registrar has under the Motor Vehicles Act registered or renewed the registration of a motor vehicle subject to conditions, a person driving the motor vehicle must comply with those conditions.

(2)   If the Registrar has under section 102A of the Motor Vehicles Act endorsed on a certificate of registration a direction that the motor vehicle is not to be driven except between the times specified in the endorsement, a person driving the motor vehicle must comply with the direction.

Part VII             Prosecutions of offences, penalties, &c.

 

36              Laying of complaint

(1)   A complaint for an offence against this Act may be made by any person.

(2)   Where a complaint is made by a person (other than the Director, an inspector, a member of the Police Force or a person authorized by a statutory corporation to make complaints on its behalf under this Act) and the proceedings are dismissed or the complaint is withdrawn, the court may, if it thinks fit, order that person to pay to the defendant, in addition to any costs, such compensation as it thinks reasonable.

37              Offence due to accident

(1)   A person is not liable to be found guilty of an offence against this Act if that person proves, to the satisfaction of the court hearing the case, that the offence could not have been avoided by any reasonable efforts on that person’s part.

(2)   It is a defence to a prosecution for an offence against this Act if the defendant satisfies the court that the action the defendant took was reasonable in the circumstances and intended to evade a dangerous situation which had arisen through no fault or negligence on the defendant’s part.

38              Proof of speed

(1)   A person shall not be found guilty of an offence of or relating to exceeding a prescribed speed limit solely on the evidence of one witness to the effect that, in the opinion of the witness, the person was driving the vehicle at a speed faster than that permitted for that vehicle.

(2)   A complaint for an offence of or relating to driving a vehicle at a speed exceeding a prescribed speed limit shall specify the speed at which, or faster than which, it is alleged the defendant drove the vehicle.

(3)   Evidence may be given in any proceedings in a court for the purpose of showing the speed at which a vehicle was travelling at a particular time by reference to the calculation of the speed of that vehicle as shown on a traffic infringement detection device and, where evidence is so given, it shall be prima facie evidence that the vehicle was travelling at the speed so calculated at that time.

40              Disqualification where offender not licensed

Where a person who does not hold a licence is found guilty of an offence against this Act, where, by force of the being found guilty the person’s licence would or may, if the person held one, be cancelled, that person shall be disqualified from holding a licence for the period provided by the section to which the offence relates, or as otherwise ordered by the court in accordance with that section.

41              Cancellation of licence

(1)   Subject to this Act, where a person is found guilty of an offence against this Act, the court may cancel the person’s licence and disqualify the person from holding another licence for such period as the court thinks fit.

(2)   The cancellation of a licence and disqualification from holding another licence in respect of an offence against this Act is in addition to any other penalty imposed by the court for the offence.

(3)   A reference to the cancellation of a person’s licence in this section or any other section of this Act shall be read as a reference to the cancellation of that person’s licence to drive any motor vehicle.

42              Continuation of provisional licence

If:

(a)     a court finds a person guilty of an offence against this Act or the Motor Vehicles Act; and

(b)     the person’s licence to drive a motor vehicle is provisional at the time of the finding of guilt;

the court may, in addition to imposing any other penalty, order that the provisional period be extended by not less than 3 months and not more than 12 months.

43              Appeals against findings of guilt, cancellations, &c.

(1)   Where:

(a)     a person has been found guilty of an offence against this Act; or

and as a consequence of the being found guilty or the finding:

(ba)   the person’s licence is cancelled; or

(bb)   the person is disqualified from holding a licence for a period;

and:

(bc)   the person has duly instituted an appeal to the Supreme Court from the conviction, order or finding in respect of the offence,

then on and from the date when the court by which the order or conviction was made is satisfied that an appeal has been duly instituted and until the determination of the appeal, this Act does not apply to or in relation to that person being found guilty in so far as it would, but for this section:

(c)     cause that person to cease to be licensed or be deemed to be licensed;

(d)     require the delivery of that person’s licence to the Registrar for cancellation; or

(e)     cause that person to be disqualified from being granted a licence or from holding a licence.

(2)   Unless the Supreme Court on the hearing of an appeal quashes conviction, order or finding sets aside the finding:

(a)     the period, if any, during which the appellant is disqualified from being granted or holding a licence to drive a motor vehicle ends, subject to any order the Supreme Court makes on the hearing of the appeal, on the date which is as many days after the date on which it would have ended if there had been no appeal as there are days in the period between the institution and the determination of the appeal; and

(b)     subject to any order the Supreme Court makes on the hearing of the appeal, the appellant is not licensed or shall not be deemed to be licensed during the period commencing on the determination of the appeal and ending on the date which is as many days after the determination as there are days in the period between the institution and the determination of the appeal.

(3)   A person may appeal to the Supreme Court against a finding of the court under section 4(1)(b) of the Criminal Law (Conditional Release of Offenders) Act that a charge for an offence against this Act is proved, and the finding shall be taken to be an adjudication of the court for the purposes of Division 2 of Part VI of the Justices Act.

43AA        Demerit points offence

(1)   If a demerit points offence is detected by a traffic infringement detection device and:

(a)     an infringement notice is issued to a body corporate that is the registered owner of the vehicle; and

(b)     the registered owner does not, within the time allowed by the notice, return a statutory declaration:

(i)      identifying a natural person as the driver of the vehicle at the time the offence was committed; or

(ii)     identifying another body corporate that, at the time the offence was committed, had control of the vehicle under a hire or lease agreement;

the body corporate is liable to an infringement notice penalty equal to 5 times the infringement notice penalty amount prescribed for the offence.

(2)   If a demerit points offence is detected by a traffic infringement detection device and:

(a)     an infringement notice is issued to a body corporate that, at the relevant time, had control of the vehicle under a hire or lease agreement; and

(b)     the body corporate does not, within the time allowed by the notice, return a statutory declaration identifying a natural person as the driver of the vehicle at the time the offence was committed;

the body corporate is liable to an infringement notice penalty equal to 5 times the infringement notice penalty amount prescribed for the offence.

(3)   In this section:

body corporate includes an Agency and, so far as the legislative power of the Legislative Assembly permits, an agency of the Commonwealth or another jurisdiction.

registered owner is taken to include a nominated operator under section 92A of the Motor Vehicles Act.

Part VIII            Miscellaneous

 

43A           Special provisions for races, &c.

(1)   On the application of a person, the Minister may, in writing, declare that an event that is to be held on a public street or public place is an event to which this section applies and may order that:

(a)     a public street or public place on which the event is to be held and any adjacent or adjoining public street or public place is closed to traffic for a specified period; and

(b)     a person taking part in the event is exempted, in relation to a public street or public place on which the event is to be held, from the duty to observe an Act, regulation, or by-law, prescribing a rule to be observed on public streets or public places by pedestrians or the drivers of vehicles.

(2)   An order under this section shall only be made:

(a)     with the consent of the competent authority of a public street or public place that is to be closed;

(b)     after the Minister responsible for the administration of the Motor Accidents (Compensation) Commission Act has notified the Minister that satisfactory arrangements are in place to protect the Territory from any liability, and the Motor Accidents (Compensation) Commission from any liability under the Motor Accidents (Compensation) Act, that may arise out of the holding of the event; and

(c)     after the Minister is satisfied that the organisers of the event have arranged a level of insurance that is adequate, in the Minister’s opinion, to meet any liability that may arise out of the holding of the event.

(3)   An applicant under this section shall give public notice of the event, by such means as the Minister requires, not less than 7 days prior to the date of the event.

(4)   An order under this section may be subject to such conditions as the Minister thinks fit to impose.

(5)   Where the Minister is satisfied that a condition to which an order is subject has not or is not being complied with, the Minister may vary, cancel, or suspend for such period as the Minister thinks fit, the order.

(6)   An order under this section renders lawful anything done in accordance with the order.

(7)   An order under this section may apply to the whole or a part of a public street or public place.

(8)   For the purposes of an event to which this section applies, the Director may appoint such persons as he or she thinks fit to be officials.

(9)   A person appointed as an official under subsection (8) shall be provided with an identification card by the Director, and the person shall, at all times when exercising his or her powers under subsection (10), display the identification card.

(10)   A person appointed as an official under subsection (8) may give such reasonable directions to a person on a public street or public place, other than a member of the Police Force, as are, in the person’s opinion, necessary for the safe and efficient conduct of an event to which this section applies.

(11)   In addition to any other power to regulate traffic given by this or any other Act, a member of the Police Force may give such reasonable directions to a person on a public street or public place, including a person appointed as an official under subsection (8), as are, in the member’s opinion, necessary for the safe and efficient conduct of an event to which this section applies.

(12)   A direction under subsection (10) or (11) may include clearing vehicles or persons from a public street or public place or part of a public street or public place or temporarily closing a public street or public place or part of a public street or public place.

(13)   A person shall not contravene or fail to comply with a condition to which an order under this section is subject.

(14)   A person to whom a direction under subsection (10) or (11) is given shall not contravene or fail to comply with the direction.

(15)   In this section, event means an organised sporting, recreational or other similar activity, whether the persons taking part are in competition with other persons or not, and includes a race and practice for a race.

(16)   No action or proceeding shall lie against the Minister or the Minister responsible for the administration of the Motor Accidents (Compensation) Commission Act in respect of anything done or omitted to be done by him or her in good faith and purporting to be for the purposes of this section.

43B           Exemptions

(1)   The Registrar may, by notice in the Gazette, exempt a motor vehicle of a class specified in the notice, subject to such conditions, if any, as the Registrar thinks fit, from the application of some or all of the provisions of this Act.

(2)   In determining whether to exempt a motor vehicle under subsection (1), the Registrar shall have regard to:

(a)     the speed capacity;

(b)     the likelihood of infrequent use on public streets or public places; and

(c)     such other special considerations or characteristics of the vehicle as the Registrar thinks fit,

of a vehicle of the relevant class.

44              Traffic infringement detection device

(1)   The Commissioner may, by Gazette notice, approve a device of a kind specified in the notice as a traffic infringement detection device.

(2)   In the notice, the Commissioner:

(a)     must specify the manner in which, and the frequency with which, testing of the accuracy of the device must be carried out by an approved person; and

(b)     may impose any other conditions the Commissioner thinks fit on the approval.

(3)   The Commissioner may, by Gazette notice, approve a person as a person qualified to test the accuracy of a traffic infringement detection device.

(4)   A traffic infringement detection device must not be used for or in relation to the detection of an offence unless it has been tested in accordance with the procedure specified under subsection (2).

44AA        Requirements for approval of device

(1)   The Commissioner must not approve as a traffic infringement detection device a device that produces a photographic image or an electronic image in respect of the commission of an offence unless:

(a)     the image shows the vehicle involved in the alleged commission of the offence, including the number plate area (front or rear) of the vehicle; and

(b)     the device also records the following information:

(i)      a code identifying the device that recorded the image;

(ii)     a code identifying the location at which the device recorded the image;

(iii)    the date and the time when the image was recorded;

(iv)    the relevant information mentioned in subsections (2) and (3);

(v)     other information as prescribed.

(2)   For an offence of exceeding a prescribed speed limit, the device must also record the following information:

(a)     the prescribed speed limit at the location;

(b)     the speed at which the device calculated the vehicle was travelling at the time the image was recorded.

(3)   For an offence of failing to obey a traffic control signal by proceeding while a red traffic light or red traffic arrow is displayed, the device must also record the number of seconds between the time the light or arrow was displayed and the time the driver proceeded beyond the stop line or the traffic control signal.

(4)   The image and other information must be held in an electronic file in an unalterable format and be transferable to a printed form that contains the unaltered image and information.

44A           Proof of certain matters relating to use of infringement detection devices

In proceedings for an offence against this Act:

(a)     evidence may be given by a member of the Police Force or an officer of the use by the member or officer of a traffic infringement detection device in relation to the detection of the offence, and the evidence is prima facie evidence of the offence;

(b)     a certificate purporting to be signed by a person approved under section 44(3), or a copy of the certificate, produced by the prosecution and purporting to certify that the traffic infringement detection device specified in the certificate:

(i)      is a traffic infringement detection device within the meaning of this Act; and

(ii)     was tested by a person approved under section 44(3) in accordance with the notice approving the devices under section 44(1) on a specified day in respect of a specified period, and was shown by the test to be accurate to the extent indicated in the certificate,

is, without proof of the signature, evidence of the facts certified and that the device was accurate to that extent;

(c)     where the offence is one of driving a vehicle at a speed that is faster than a prescribed speed limit, the production by the prosecution of a form that contains an image recorded by a traffic infringement detection device and the information specified in section 44AA is evidence that at the time and place indicated on the form the motor vehicle appearing in the image was driven at the speed indicated on the form; and

(d)     where the offence is one of contravening or failing to comply with a traffic control signal by proceeding on a public street beyond a stop line or a part of the signal while a light that is a red circle or a red arrow is displayed facing a driver, the production by the prosecution of a form that contains an image recorded by a traffic infringement detection device and the information specified in section 44AA is evidence that at the time and place indicated on the form the driver of the vehicle appearing in the image proceeded beyond the stop line or the part of the signal while a light that was a red circle or red arrow was facing the driver.

45              Offence against regulations not to affect damages in respect of death of, or injury to, child

Notwithstanding any other law of the Territory, in civil proceedings in respect of injury to a child or young person arising out of the use of a motor vehicle, damages recoverable by the child or young person shall not be reduced by reason only that an act or omission by a person constituted an offence under this Act relating to the obligations of a driver of a motor vehicle to children and young persons in a motor vehicle.

46              Liability at common law and by statute

Nothing in this Act affects the liability of a person by virtue of any other law (including the common law) in force in the Territory.

46A           Breath analysis instruments at licensed premises – readings not admissible as evidence

(1)   Evidence of the taking of a test indicating the presence or concentration of alcohol in the blood of a person by a breath analysis instrument installed in premises licensed under the Liquor Act, or of the results of such a test, is not admissible in any court or tribunal in any proceedings, whether civil or criminal.

(2)   A licensee in respect of premises licensed under the Liquor Act shall not install a breath analysis instrument on the premises unless the instrument complies with the Australian Standard relating to such instruments.

47              Duties and powers of police, &c.

(1)   A member of the Police Force shall do all things in that member’s power to ensure that this Act is duly observed.

(2)   For the purposes of subsection (1), a member of the Police Force may drive, use, ride on or be carried or drawn by, any vehicle or animal the driver of which has been given a direction or order under this Act and that member shall not be liable for the payment of any fare ordinarily chargeable for such use, hire or carriage.

(3)   Where a driver or person in charge of a vehicle is arrested or otherwise lawfully detained by a member of the Police Force and that driver or person is unwilling or unable, for whatever reason, to move or secure the vehicle, the member may:

(a)     park and secure the vehicle at or near the place where the driver or person is arrested or detained; or

(b)     arrange for it to be towed, moved or, where considered by the member to be safe to do so, driven to a police station or other place,

without liability for any damage or loss which may occur to the vehicle or to anything in it.

(4)   Where a vehicle is not registered, a member of the Police Force may take charge of the vehicle and may arrange for it to be towed, moved or, where considered by the member to be safe to do so, driven, to a police station or other place without liability for any damage or loss which may occur to the vehicle or to anything in it.

(5)   Where a vehicle is, under subsection (3) or (4), towed, moved or driven to a police station or other place, the vehicle may be kept at that station or place until the costs of towing or moving it and of detaining it are paid to the Territory.

(6)   Where, at the expiration of 3 months after a vehicle has been taken charge of under subsection (3) or (4), the costs referred to in subsection (5) have not been paid, the Commissioner may, by public auction, dispose of the vehicle and the money, if any, obtained from the sale of the vehicle shall, after payment of the costs referred to in subsection (5), be paid into the Public Account, within the meaning of the Financial Management Act, in accordance with the requirements of that Act.

(7)   A sale in accordance with subsection (6) shall be valid as against all persons.

48              Liability of insurers under policies of insurance

(1)   The fact that a person has undergone a breath test, submitted to a breath analysis or given a sample of blood for a blood test, the result of a breath test, breath analysis or blood test or the fact that a person has been convicted of an offence under Part V (other than section 29AAA(1)) is not, for the purposes of a contract of insurance, 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.

(2)   A reference in a contract of insurance to a concentration of alcohol equal to or exceeding that prohibited by a law applicable in a State or Territory, or words to that effect, shall be construed, for the purposes of the contract of insurance, as a reference to the concentration specified in section 19(2).

(3)   Subsections (1) and (2) have effect notwithstanding anything contained in a contract of insurance and a covenant, term, condition or provision of a contract of insurance, to the extent that the operation of this section is excluded, limited, modified or restricted, is void.

49              Misleading information and document

(1)   A person must not knowingly give misleading information to a police officer or inspector who is exercising a power or performing a function under this Act.

Maximum penalty:         100 penalty units or imprisonment 6 months.

(2)   A person must not knowingly give a document containing misleading information to a police officer or inspector who is exercising a power or performing a function under this Act.

Maximum penalty:         100 penalty units or imprisonment 6 months.

(3)   Subsection (2) does not apply if the person, when giving the document:

(a)     draws the misleading aspect of the document to the attention of the police officer or inspector; and

(b)     to the extent to which the person can reasonably do so – gives the police officer or inspector the information necessary to remedy the misleading aspect of the document.

(4)   In this section:

misleading information means information that is misleading in a material particular because it:

(a)     does not include relevant information; or

(b)     includes false information.

51              Regulatory offences

An offence against or a contravention or failure to comply with this Act (other than sections 29AAYD(2), 29AF(4) and (5), 29AT(1), (2), (4) and (5), 29AU(2), 30(1), 30A(1), 31(1) and 49(1) and (2)) is a regulatory offence.

52              General penalties

A person who contravenes or fails to comply with a provision of this Act in respect of which no penalty, other than by this section, is provided, is guilty of an offence.

Penalty:         20 penalty units or imprisonment for 12 months.

52A           Acquisition on just terms

If the operation of this Act would, apart from this section, result in an acquisition of property from a person otherwise than on just terms:

(a)     the person is entitled to receive from the Territory the compensation necessary to ensure the acquisition is on just terms; and

(b)     a court of competent jurisdiction may decide the amount of compensation or make the orders it considers necessary to ensure the acquisition is on just terms.

53              Regulations

(1)   The Administrator may make regulations, not inconsistent with this Act, prescribing all matters:

(a)     required or permitted by this Act to be prescribed; or

(b)     necessary or convenient to be prescribed for carrying out or giving effect to this Act.

(2)   Without limiting the generality of subsection (1), the Regulations may provide for any of the following:

(a)     an exemption from the application of all or part of the Regulations of:

(i)      certain persons or classes of persons; or

(ii)     persons in respect of a specified class of motor vehicle;

(b)     the erection and operation of, and obedience to, traffic control devices;

(c)     the regulation or prohibition of persons driving vehicles including:

(i)      driving on the left, in reverse, at intersections or on beaches, footways, reservations and traffic islands; and

(ii)     the overtaking or passing of vehicles; and

(iii)    giving way to vehicles; and

(iv)    the parking or standing of vehicles or leaving vehicles unattended; and

(v)     the turning, starting and stopping of vehicles; and

(vi)    the towing of vehicles; and

(vii)   the number of hours which a person may drive a vehicle;

(d)     the regulation of pedestrians on public streets and public places;

(e)     the regulation of persons on or near railway level crossings;

(f)      the prescribing or determining by the Registrar of speed restrictions and the use of traffic infringement detection devices including the testing and operation of such devices;

(g)     the lights, warning signs and equipment to be fitted to vehicles and the use of such lights, warning signs and equipment;

(h)     the regulation of the use of bicycles and toy vehicles on public streets or public places;

(j)      freeways, bus lanes, bicycle ways, truck lanes, truck priority lanes and transit lanes;

(k)     the safety of persons in or on vehicles;

(m)    the authorisation of persons carrying out breath analyses, or of persons or organisations carrying out blood tests;

(n)     the securing of loads on vehicles and the measures to be taken in the event of the loss of material from vehicles;

(p)     the regulation or prohibition of persons obstructing public streets or public places;

(q)     the regulation or prohibition of persons holding:

(i)      processions, parades or other events; or

(ii)     vehicle trials, speed tests or races,

on public streets or public places;

(r)      the control of animals on public streets or public places;

(s)     the payment of a prescribed amount in lieu of a penalty which may otherwise be imposed for an offence against this Act or the Motor Vehicles Act or the Regulations made under that Act;

(t)      the service of notices on persons alleged to have infringed this Act or the Motor Vehicles Act or the Regulations made under that Act and particulars to be included in such notices;

(u)     the proof of ownership of a vehicle and other evidentiary matters in respect of offences committed against the Regulations;

(w)    the sale or disposal of abandoned vehicles;

(y)     penalties not exceeding 20 penalty units or imprisonment for 6 months, or both, for offences against the Regulations;

(z)     the forfeiture of goods on conviction for an offence against the Regulations.

(3)   The Regulations may incorporate or adopt by reference the provisions of any document, standard, rule, specification or method formulated, issued, prescribed or published by any authority or body whether:

(a)     wholly or partly, or as amended by the Regulations; or

(b)     as formulated, issued, prescribed or published at the time the Regulations are made or at any time before then; or

(c)     as amended after the making of the Regulations, but only where the Director has published in the Gazette a notice that the particular amendment is to be incorporated in the Regulations.

(4)   The Regulations may prescribe different penalties for different classes of offender for an offence against the Regulations.

(5)   The Regulations may:

(a)     make different provision in relation to:

(i)      different persons or matters; or

(ii)     different classes of persons or matters; or

(b)     apply differently by reference to stated exceptions or factors.

53A           Demerit points

(1)   The Administrator may also make regulations:

(a)     specifying offences under this Act or another Act regulating road use or use of road-related areas as offences that attract demerit points; and

(b)     specifying the number of demerit points to be allocated in respect of the offences.

(2)   The Minister may, by Gazette notice and published in a newspaper circulating throughout the Territory, declare that during a period specified in the notice additional demerit points will apply to demerit points offences.

(3)   The additional points declared by the Minister must not result in the total number of demerit points applying in relation to an offence exceeding double the points specified by the Administrator under subsection (1)(b).

54              Savings and transitional

(1)   In this section a reference to:

(a)     the former Act is a reference to the Traffic Act as in force immediately before the commencement of this Act; and

(b)     the commencement of this Act is a reference to the commencement of this Act other than sections 1 and 2.

(2)   Notwithstanding the commencement of this Act, the provisions of the former Act and the Regulations made under that Act shall apply to and in relation to a prosecution or legal proceeding for an offence against that Act which continues or is commenced after that commencement as if this Act had not come into operation.

(3)   Where, immediately before the commencement of this Act, a person was an authorized analyst under the former Act, that person shall, on the commencement of this Act, be deemed to be an authorized analyst appointed under this Act.

(4)   Where, immediately before the commencement of this Act, a member of the Police Force was authorized under section 8M of the former Act to use a prescribed instrument, that member shall, on the commencement of this Act, be deemed to be authorized to use a prescribed instrument under this Act.

(5)   Where, before the commencement of this Act:

(a)     a sign, signal, flag, notice, beacon or other device was erected, placed or displayed; or

(b)     a road marking on a carriageway or kerb was made,

for the purposes of the former Act, that sign, flag, notice, beacon, device or road marking shall, on the commencement of this Act, be deemed to be a traffic control device placed, erected or displayed by the competent authority in accordance with, and for the purposes of, this Act.

(6)   Where, immediately before the commencement of this Act, an apparatus was a traffic speed analyser approved under the former Act, that apparatus shall, on the commencement of this Act, be deemed to be a traffic infringement detection device approved under this Act and a test required to be carried out on the apparatus under the former Act shall be deemed to be a test carried out under this Act until such time as a test is carried out, or is required to be carried out, under this Act.

(7)   Where, immediately before the commencement of this Act, a person was approved under section 56AB(2) of the former Act as a person qualified to test the accuracy of a traffic speed analyser, that person shall, on the commencement of this Act, be deemed to be a person qualified to test the accuracy of a traffic infringement detection device appointed under this Act.

(8)   Where, before the commencement of this Act, a person referred to in section 55AA(1) of the former Act instituted an appeal to the Supreme Court and that appeal has not been determined at the time of the commencement of this Act, section 43 shall, on that commencement, apply to and in relation to that appeal as if it were an appeal against a conviction under this Act and the court in which the order or conviction was made shall be deemed to be satisfied an appeal has been duly instituted.

55              Repeal

(1)   Subject to subsection (2), the Ordinances and Acts listed in Schedule 2 are repealed.

(2)   Notwithstanding the repeals effected by subsection (1), Part IV of the Traffic Act, as in force immediately before the commencement of this Act (other than sections 1 and 2 of this Act), shall, by virtue of this subsection, continue in force after that commencement and shall be deemed to form part of this Act until repealed by the Minister by notice in the Gazette.  (Endnote 5)

56              Transitional matters for Transport Legislation (Hoon Behaviour) Amendment Act 2009

(1)   Part VA, as inserted by the Transport Legislation (Hoon Behaviour) Amendment Act 2009, applies as provided in this section.

(2)   A police officer may make an impounding determination under Part VA only in relation to a vehicle that is used, or alleged to have been used, in committing a prescribed driving offence that occurs on or after the commencement.

(3)   An impounding order or forfeiture order may be made under Part VA only in relation to a vehicle used in committing a prescribed driving offence that occurs on or after the commencement.

(4)   If, before the commencement, a person was found guilty of an offence that is a prescribed driving offence, that offence may be taken into account for sections 29AD(4)(d), 29AG and 29AT(1), (2) and (4).

Example

A person was found guilty of a prescribed driving offence 10 months before the commencement. The person is again found guilty of a prescribed driving offence 2 months after the commencement. The Commissioner of Police may therefore apply for an impounding order in relation to the vehicle used in committing the second offence.

(5)   In this section:

commencement means the commencement of this section.

Part IX              Transitional matters for Traffic and Other Legislation Amendment Act 2011

 

57              Definitions

In this Part:

amendment Act means the Traffic and Other Legislation Amendment Act 2011.

commencement day means the day on which this section commences.

pre-commencement Act means the Act as in force immediately before the commencement day.

58              Purpose of Part

The purpose of this Part is to provide for the transition over time from prescribed breath analysis instruments which express the result of a breath analysis in terms of BAC to the same or similar instruments which express the same result in terms of BrAC in accordance with the National Measurement Regulations 2009 (Cth).

59              Results of analysis

(1)   On and after the commencement day:

(a)     the result of a breath analysis is expressed as BrAC; and

(b)     the result of a blood test is expressed as BAC.

(2)   However, if a prescribed breath analysis instrument gives a result expressed as BAC, or as a percentage, the result is taken to be expressed as BrAC of the same numerical value as the result expressed as BAC, or percentage, as shown by the examples in the following table:

Table

Column 1

Grams per 210 litres of exhaled breath (BrAC)

Column 2

Grams per 100ml of blood (BAC)

Column 3

Analysis result expressed as %

0.05 0.05 0.05%
0.08 0.08 0.08%
0.15 0.15 0.15%

Note for subsection (2) table

The results indicated in Column 1 are identical to the results indicated opposite in Columns 2 and 3.  The only difference is the unit of measurement by which the result is expressed.

60              Person charged before commencement day

(1)   This section applies if, before the commencement day, a person has been charged with an offence of driving with alcohol in the blood, or of driving with a blood alcohol content expressed as a percent.

(2)   The pre-commencement Act continues to apply to the person in all proceedings in relation to the offence.

Examples for subsection (2)

1    Interlocutory proceedings.

2    A Magistrate conducting a preliminary examination under the Justices Act.

3    An appeal to the Supreme Court.

61              Transitional regulations

(1)   A regulation may provide for a matter of a transitional nature:

(a)     because of the enactment of the amendment Act; or

(b)     to otherwise allow or facilitate the transition from the operation of the pre-commencement Act to the Act as amended by the amendment Act.

(2)   The regulation may have retrospective operation to a day not earlier than the commencement day.

(3)   However, to the extent to which the regulation has retrospective operation, it does not operate to the disadvantage of a person (other than the Territory or a Territory authority) by:

(a)     decreasing the person’s rights; or

(b)     imposing liabilities on the person.

(4)   The regulation must declare it is made under this section.

(5)   This section, and each regulation made under it, expires 1 year after the commencement day.

62              Transitional regulations under other Act

(1)   This section applies if, under another Act, provision is made for breath testing or breath analysis, and the amendment Act does not make provision, or sufficient provision, for the transition from the result of a breath test or breath analysis for the other Act expressed as blood alcohol content, or percentage, to a result expressed as breath alcohol content.

(2)   The power under the other Act to make regulations is taken to include the power to make a regulation of a transitional nature to facilitate the transition as mentioned in subsection (1).

(3)   The regulation may have retrospective operation to a day not earlier than the commencement day.

(4)   However, to the extent to which the regulation has retrospective operation, it does not operate to the disadvantage of a person (other than the Territory or a Territory authority) by:

(a)     decreasing the person’s rights; or

(b)     imposing a new liability on the person.

(5)   The regulation must declare it is for the transition as mentioned in subsection (1).

(6)   This section, and each regulation made because of this section, expires 1 year after the commencement day.