As of 31st October 2005 a graduated licence scheme was introduced for new drivers. A provisional licence must be held for a period of 2 years or until the driver is aged 19 years of age (whichever period is longer) before an unconditional licence can be issued. Where demerit points are incurred before the age of 19, provisional licence conditions are extended for a further 2 years or until 20 years of age, whichever is longer.

There are two categories of provisional licence i.e. P1 and P2. The scheme operates in conjunction with a licence regression scheme introduced on 31st October 2006 whereby a driver who is disqualified from a learner’s/provisional licence will regress to an earlier stage on getting back their licence after the disqualification period.

CONDITIONS:

WHEN IS A PROBATIONARY LICENCE ISSUED?

Probationary licences are granted whenever a person applies for the issue of a driver’s licence following a period of disqualification which resulted in the cancellation of their licence.

A probationary licence will be issued as a result of the following disqualifications:

Notification of breach of conditions

When a permit or licence is cancelled for breaching conditions, the driver will receive a notice from the Registrar of Motor Vehicles cancelling the permit/ licence.

Penalty for breach of conditions

If an appeal is not lodged a disqualification period of 6 months applies.

Grounds for appeal

An appeal can be made against the cancellation to the Civil Division of the Magistrates Court on the ground that the loss of the licence will result in 'severe and unusual' hardship. The application for appeal should be lodged at the Magistrates Court nearest to where the person lives.

Time limit to apply for appeal

A person has 28 days in which to lodge an appeal. Provided the person appeals before the cancellation takes effect, the person can continue to drive until the appeal is heard. If the licence is surrendered before the appeal is lodged, the person cannot drive. However, once the appeal is lodged, the person can drive until the appeal is heard.

Severe and unusual hardship

A person considering an appeal must be able to demonstrate that the loss of licence will cause severe and unusual hardship to either themselves or a dependant. Suffering inconvenience will not be sufficient. To claim hardship the person must show, for example, complete reliance on the licence to earn a living, an inability to travel to work or a loss of pay or a promotion opportunity. A person may be asked to prove the hardship and should, for example, take a letter from her/his employer explaining the consequences of losing the licence. Where there is an inability to get to work, the employer should explain that there is no flexibility in starting or finishing times, and the person should obtain public transport timetables that demonstrate that it is impossible to get to work at the necessary times. A person who claims a loss or reduction in income should, in addition to an employer's letter, should consider preparing a budget showing the financial hardship resulting from losing the licence.

Serious disqualification offence curfew

Where the offence is a serious disqualification offence a curfew will be imposed prohibiting driving between the hours of midnight and 5 am, unless accompanied by a qualified supervising driver. If the court is satisfied that this condition would frustrate the purpose for which the appeal has been allowed a licence may be exempted from this condition.

Learner drivers cannot appeal

Drivers disqualified while holding a Learner's Permit cannot appeal.

Only one successful appeal allowed in 5 year period

A person who has appealed successfully cannot appeal again within 5 years of the date of the appeal hearing. If the person breaches her or his conditions again, it is important to seek advice as soon as practicable after the offence is committed.

Interstate licence holders can drive on their interstate licence for a period of up to 3 months before having to apply for a South Australian licence.

Foreign licence holders who are permanent residents at the time of their arrival in Australia can use their foreign licence for a period of up to 3 months before being required to apply for a South Australian licence.

Temporary residents and tourists can drive on their foreign drivers licence for the duration of their stay.

Interstate and foreign licence holders are restricted from driving if they are disqualified (whether interstate or overseas) and can be prohibited from driving if they are determined to be unsuitable to drive in South Australia or are impaired due to permanent or long-term injury or illness.

If a driver receives 12 or more demerit points within a three year period, the Registrar of Motor Vehicles will suspend her or his licence for

The disqualification notice is served in the first instance by ordinary post to the last known address of the person disqualified. Once received the disqualified person is required to the attend personally at the Department for Transport, Energy and Infrastructure to acknowledge receipt of the notice and pay the Registrar an administration fee.

If a person fails to comply with the notice another notice will be issued personally by a process server, the cost of which will be met by the person disqualified.

If personal service is unsuccessful the disqualified person will be prohibited from transactions with the Department for Transport, Energy and Infrastructure until they provide acknowledgement of receipt of the notice and pay the administration and service fees.

The disqualification takes effect 28 days from the date specified in the notice or 28 days from the date the notice was served. If the person is already disqualified for another reason (for example, as part of a penalty imposed by a court), the demerit point disqualification begins once the other period of disqualification ends.

All of the demerit points that led to the disqualification will be erased at the end of the period. Also erased will be any demerit points resulting from other offence committed prior to the disqualification, whether or not the person had been convicted of, or expiated, those offence when the disqualification took effect.

Demerit points only apply to offence committed under the Road Traffic Act 1961 and/or Regulations made under the Act, except an offence of breaching a condition imposed by a court following a successful demerit points appeal (1 point). The table below summarises some of the more common offences that attract demerit points. References in the table are to the Road Traffic Act 1961 or the Australian Road Rules (ARR). A complete list of offences attracting demerit points is set out in the Motor Vehicles Regulations 1996 [7th Schedule].

A person who accumulates 12 or more demerit points in any 3 year period, will be disqualified from driving for at least 3 months. A demerit points disqualification starts 28 days after a formal notice is sent. If the driver is already disqualified, any new demerit points disqualification will start immediately after the existing disqualification ends.

A person can keep their driver's licence by electing to take a ‘good behaviour’ option instead of the demerit points disqualification. The good behaviour option is offered with the demerit points disqualification notice. Instead of surrendering their licence, within 21 days, a driver must make a formal application to accept a 12 month good behaviour option.

This means the person can continue to drive but their licence will be subject to the condition that they do not incur 2 or more demerit points during the good behaviour period. If they incur 2 or more points they will be disqualified for twice the original disqualification period [ Motor Vehicles Act 1959 s98BE(1c) ].

For example if A incurred 14 points, A's licence would be disqualified for 3 months. By accepting a good behaviour option, A will face 6 months disqualification if she or he incurs two or more demerit points during the 12 month period. After successfully completing the period of the conditional licence all the demerit points previously recorded are erased.

Where a driver has served a court ordered disqualification period they will need to renew their licence once the disqualification has been served. Failure to do so will mean that they are ineligible for the good behaviour option should demerit points apply for the original offence.

Elements of the offence

A person who drives, or attempts to drive, a motor vehicle while there is more than the 'prescribed concentration' of alcohol in the person's blood is guilty of the offence of exceed prescribed concentration of alcohol [Road Traffic Act 1961 s 47B].

Prescribed concentration of alcohol

The prescribed concentration of alcohol (PCA) for holders of an unconditional licence is 0.05 blood alcohol concentration (BCA). For unlicensed drivers or drivers of “prescribed vehicles”, the PCA is zero [Road Traffic Act 1961 s 47A].

Vehicles prescribed for this purpose include:

Penalties

For the penalties, see alcohol and drug penalties.

Learner, provisional and probationary drivers

Learner, provisional and probationary drivers also must drive with a zero blood alcohol concentration. However, it is only a breach of their conditions if they drive with a blood alcohol level greater than zero but less than 0.05. If they drive with a blood alcohol level greater than 0.05 they may be charged with both breaching their conditions and an offence of driving with the prescribed concentration of alcohol see driver's licences.

Roadside saliva testing

From 1st July 2006 police have the power to conduct random roadside saliva testing to detect drivers under the influence of certain illicit drugs.

Testing will be for:

Driving with prescribed drug

Under the new legislation is an offence for a person to drive with these drugs in his or her oral fluid or blood — this includes a passenger acting as ‘qualified supervising driver’ for a learner driver. For details of penalties see Alcohol and drug penalties.

Any driver (or qualified supervising driver) may be required to undergo a random roadside saliva test and tests can be conducted anywhere in South Australia.

Offence made out if any amount of drugs detected by test

Unlike drink driving, where a prescribed concentration of alcohol must be present for an offence to have been committed, the presence of any amount of the drugs tested will constitute an offence. THC remains detectable for up to 5 hours after the drug has been taken and methylamphetamine and MDMA for a period of 24 hours.

Refusal/failure to comply

Where a person has been required to submit to an alcotest or breath analysis [Road Traffic Act 1961 s 47E], they may also be required to submit to a drug screening test or oral fluid analysis [Road Traffic Act 1961 s 47EAA(1) and (2)]. It is an offence to refuse, or to fail to comply with, a request for a drug screening test, oral fluid analysis or blood test. For details of penalties see Alcohol and drug penalties.

Rules regarding samples taken

All samples taken must be destroyed if there is no prosecution of any offence or at the conclusion of court proceedings. Samples taken cannot be used in DNA testing nor can they be used in relation to offences other than driving offences.

Can random saliva testing be used to detect other drugs?

Random saliva testing will only be used for the detection of THC, methylamphetamine and MDMA. However, drivers impaired by other drugs (whether prescription or illicit) can expect to be charged with the existing offence of driving under the influence of alcohol or drugs.

Who can conduct random roadside saliva tests?

Only uniformed police officers who have received special training in saliva testing procedures will be authorised to administer roadside saliva tests.

How will random roadside saliva tests be conducted?

On being stopped by police, drivers will first be required to complete an alcohol test.

Drivers may then be requested to provide a saliva sample by placing a swab in their mouth or touching it with their tongue until a sample is collected.

The initial saliva test can be conducted at the roadside without a driver having to leave his/her vehicle. The sample will be screened at this stage with results being available in approximately 5 minutes.

Where a positive sample is recorded a second sample will be required for further analysis. This process will be conducted at either a ‘drug bus’ or police station and may take around 30 minutes.

Where a second positive sample is recorded the driver will then be interviewed and the sample sent to a laboratory for further analysis.

When will action be taken?

In the event a driver records positive results to drug testing no further action can be taken until the results of the laboratory analysis are known. Before any expiation notice can be issued or charge can be laid the presence of either THC or methylamphetamine must be confirmed by the laboratory analysis. This process will take several weeks but where the presence of these drugs is established the driver will then be fined or charged accordingly.

Can I continue to drive if I have tested positive in a roadside saliva test?

A driver who tests positive for THC, methylamphetamine or MDMA will be advised by police not to drive until the drug is no longer detectable in their system. For THC this will be up to 4 hours and for methylamphetamine and MDMA 24 hours.

Where a police officer believes a driver to be unfit to drive due to alcohol or drug consumption they have the power to require the driver to surrender their keys and immoblise the vehicle (Road Traffic Act s 40K(4)).

Elements of the offence

A person who drives, or who attempts to drive, a vehicle while so much under the influence of alcohol or a drug as to be incapable of exercising effective control of the vehicle is guilty of the offence of driving under the influence [Road Traffic Act 1961 s 47].

Can be charged with DUI even if under legal limit

The charge of driving under the influence is not the same as driving with the prescribed concentration of alcohol and it is possible to be convicted of driving under the influence of alcohol even if the blood alcohol level is less than the prescribed concentration. It is not unknown for people to be convicted of driving under the influence with a blood alcohol level of 0.04 of alcohol per 100mls of blood or even less. For the purposes of this offence, a person is deemed to be incapable of exercising effective control of a vehicle if any physical or mental faculty is lost or appreciably impaired. For the penalties, see alcohol and drug penalties.

Evidence of DUI

The prosecution may attempt to prove charges of driving under the influence by bringing evidence of the manner in which the vehicle was being driven and of signs of intoxication (including observations by the police and other witnesses), the smell of alcohol about the driver, unsteadiness, watery or bloodshot eyes and slow or slurred speech.

Automatic licence disqualification

It is an offence to refuse to exhale (blow) into the apparatus used for an alcotest or breath analysis when directed to do so by police [Road Traffic Act 1961 s 47E]. As of 1st December 2005, refusing a breath test will result in an automatic licence disqualification. For further information on penalties see alcohol and drug penalties.

Police powers to test drivers

As of June 2005 the police have expansive powers with which to stop and breath test drivers. The police may stop and breath test any person who they reasonably believe has:

In addition to these powers the police may stop and breath test any person who they reasonably believe while driving has:

Note: Any request to submit to an alcotest or breath analysis cannot be commenced more than 2 hours after the conduct of the person giving grounds for the request has occurred.

Random breath testing stations

The police may also stop and test any driver of a motor vehicle that approaches a random breath testing station. Police powers to set up breath testing stations have been significantly expanded and a breath testing station can be established at any time an in the vicinity of any road.

Alcotesting

A person being tested will generally, particularly at a random breath testing station, be first required to blow into an alcotest - a small hand held unit that drivers usually blow into without leaving their vehicles. Alcotest units must comply with the requirements of the Road Traffic Act 1961 [s 47H].

Breath analysis machine

Alternatively, or if an alcotest shows that the prescribed concentration of alcohol may be present, the driver can be required to blow into a breath analysis machine — a more sophisticated apparatus that is carried in the boot of most police vehicles. The result indicated by the breath analysis is presumed to have been the person's blood alcohol level for the two hours immediately before the test. If the breath analysis indicates the prescribed concentration of alcohol, the police officer who conducted the test must tell the driver of her or his right to have a blood test taken.

Drivers must be advised of right to blood test

The courts have held that random breath testing procedures must be strictly complied with in order to support a prosecution for an offence of driving with a prescribed concentration of alcohol. Drivers charged with this offence should seek legal advice if they were not adequately advised of their rights to a blood test.

Compulsory testing after hospital admission

The police do not have the power to require a person to have a blood test. However a doctor must take a blood test from anyone aged 14 years or more and who is admitted to hospital after a road accident unless there is a good medical reason why the blood sample should not be taken [Road Traffic Act 1961 s 47I]. The provision only applies to a hospital declared under regulation 13 of the Road Traffic (Miscellaneous) Regulations 1999 .

Refusing a blood test

The blood test must be done as soon as possible after the person is admitted to hospital and within eight hours of the motor vehicle accident. It is an offence to refuse the blood test to be taken without a good medical reason [Road Traffic Act 1961 s 47I]. As of 1st December 2005 this offence will attract an immediate licence disqualification.

Procedure for blood tests

The blood sample is divided into two equal portions, one of which is given to the police to be analysed and the person is given a notice advising that the other sample may be collected and separately analysed as a check against the police analysis. If the person is not given the opportunity of an independent analysis, the police analysis cannot be given in evidence. The blood sample is to be kept for collection for a period of 12 months from the date the sample was taken. If independent analysis of the sample is required it is recommended that this be arranged as soon as practicable using one of the independent pathology groups listed under Pathology Laboratories in the Yellow Pages.

Generally it is not possible to challenge the results of a breath test without a blood test. However, legal advice should be sought if a person drinks alcohol after driving but before the breath test is taken. It may be possible to challenge the results of the breath test:

It will be a question of whether the driver is believed that any alcohol was consumed after the driving and what effect that alcohol had on the driver's blood alcohol level. It is possible that the court may find the driver guilty of a lesser offence (instead of an alcohol level of 0.15 BAC the court may decide the reading should be 0.09 BAC or may find the driver not guilty [Road Traffic Act 1961 s 47GA].

The penalties for any of the offence described above are very severe and are set out in the following table. If a person commits an offence and has committed any of the offences listed in the table within the previous five years, the person is dealt with as a second offender, whether or not both offences are in the same category. Where the previous offence is a first offence of exceeding the prescribed concentration of alcohol of .05-.08, the period is 3 years. As of 1st December 2005, in determining previous offences both convictions and expiated offences will be counted, however only expiated offences committed after the 1st December 2005 can be taken into account.

Automatic loss of licence applies for the majority of drink driving offences from the 1st December 2005. For further details see IMMEDIATE LOSS OF LICENCE. For offences committed prior to this date the suspension/disqualification occurs on conviction.

People who have committed an offence more than five years earlier (3 years for a .05 -.08 first offence) are given a penalty within a first offence category, but can expect the court to take the previous offence into account and give the driver a higher penalty within that range.

Driving under the Influence (alcohol or drugs) : [Road Traffic Act 1961 s 47]

First Offence

$700-$1200 or imprisonment for no more than 3 months; licence disqualification of not less than 12 months (if not a motor vehicle, eg bicycle, $300); and 6 demerit points

Subsequent Offence

$1500-$2500 or imprisonment for not more than 6 months; licence disqualification of not less than 3 years (if not a motor vehicle, $300); and 6 demerit points

Prescribed Concentration of Alcohol: [Road Traffic Act 1961 s 47B]

First Offence

0.05-0.079: fine up to $700 ('on-the-spot' = $147) — there is no mandatory disqualification although if the matter goes to court the court has a discretion to disqualify; plus 4 demerit points

0.08-0.149: $500-$900; automatic licence disqualification of not less than 6 months; plus 5 demerit points

0.15 or over: $700-$1200; automatic licence disqualification of not less than 12 months; plus 6 demerit points

Second Offence

0.05-0.079: fine up to $700; licence disqualification of not less than 3 months; plus 4 demerit points

0.08-0.149: $700-$1200; automatic licence disqualification of not less than 12 months; plus 5 demerit points

0.15 or over: $1200-$2000; automatic licence disqualification of not less than 3 years; plus 6 demerit points

Third Offence

0.05-0.079: fine up to $700; licence disqualification of not less than 6 months; plus 4 demerit points

0.08-0.149: $1100-$1800; automatic licence disqualification of not less than 2 years; plus 5 demerit points

0.15 or over: $1500-$2500; automatic licence disqualification of not less than 3 years; plus 6 demerit points

Subsequent Offence

0.05-0.079: fine up to $700; licence disqualification of not less than 12 months; plus 4 demerit points

0.08-0.149: $1100-$1800; automatic licence disqualification of not less than 2 years; plus 5 demerit points

0.15 or over: $1500-$2500; automatic licence disqualification of not less than 3 years; plus 6 demerit points

Driving with prescribed drug:[Road Traffic Act 1961 s 47BA]

First Offence

$300 expiation fee and 4 demerit points OR

$500-$900 (court penalty) and 4 demerit points

Second Offence

$700-$1200 and 4 demerit points; licence disqualification of not less than 6 months

Third Offence

$1100-$1800 and 4 demerit points; licence disqualification of not less than 12 months

Subsequent Offence

$1100-$1800 and 4 demerit points; licence disqualification of not less than 2 years

Refuse Breath Test: [Road Traffic Act 1961 s 47E]

First Offence

$700-$1200; automatic licence disqualification of not less than 12 months; plus 6 demerit points

Subsequent Offence

$1500-$2500; automatic licence disqualification of not less than 3 years; plus 6 demerit points

Refuse Blood Test: [Road Traffic Act 1961 s 47I]

First Offence

$700-$1200; automatic licence disqualification of not less than 12 months; plus 6 demerit points

Subsequent Offence

$1500-$2500; automatic licence disqualification of not less than 3 years; plus 6 demerit points

Refuse Drug Test: [Road Traffic Act 1961 s 47EAA]

First Offence

$500-$900; licence disqualification of not less than 12 months; plus 6 demerit points

Subsequent Offence

$1100-$1800; licence disqualification of not less than 2 years; plus 6 demerit points

Offences attracting immediate loss of licence

As of 1st December 2005 police now have the power to impose immediate licence disqualification or suspension for drink driving offence [s.47IAA Road Traffic Act 1961 ]. Police only require a reasonable belief that a person has committed an offence in one of the following categories:

This applies only to offences committed after the 1st December 2005. For offences committed prior to this suspension or disqualification takes place on conviction.

When does the immediate disqualification commence?

From the 1st December 2005 suspension or disqualification for offences in the above categories commences from the time the notice is issued by police (i.e. at the time the offence was committed) until proceedings for the offence are determined by a court, or are withdrawn or discontinued, or the Magistrates Court makes an order that would have the effect of ending the period of suspension or disqualification. In the event that a conviction occurs the suspension/disqualification continues until the sentenced period has been served.

Can they be enforced nationwide?

A nationwide agreement exists to enforce these suspensions so they are effective in all states. For example, if a driver with a NSW licence is charged with a category 3 drink driving offence whilst driving in South Australia (e.g. exceed Prescribed Concentration Alcohol - 0.15), their resulting suspension will apply within South Australia and any other state immediately.

Conditions for appeal

A person can apply to have a disqualification or suspension lifted or to have the period of disqualification or suspension reduced. Applications must be in writing in the form prescribed and are made to the Magistrates Court.

The Magistrates Court may make the following orders under the conditions specified:

Trifling offences

Not only are the above penalties severe but the court only has very limited power to reduce the penalties below the minimum. A court can reduce the minimum disqualification to one month for a first offence if it is satisfied the offence is trifling. When deciding whether or not an offence is trifling, the court takes into account all the surrounding circumstances of the driving. These include, the blood alcohol level, the extent of impairment of faculties, the locality, the nature and extent of the driving and the actual or potential damage to the public. A low alcohol reading alone will not be enough to be considered trifling; there must be additional circumstances that are rare and exceptional. A person's need for a licence is not relevant. Only rarely will an offence be considered trifling.

CASE STUDY

A driver was stopped at a random breath test and recorded a blood concentration of 0.08 grams of alcohol per 100 mls of blood. As there were no other circumstances that made the situation atypical or unusual the offence was not considered trifling.

Boyland v Dunsmore (1988) 141 L.S.J.S. 186

Minimum disqualification period must be imposed regardless of circumstances

When determining the penalty, courts cannot consider the person's need for their licence. In Janz v Woolven (1990), the Full Bench of the Supreme Court held that the minimum licence disqualification must be imposed even where a licence is needed for work and the loss of the licence will result in great personal or financial hardship. Hence most defendant lose their licence for at least the minimum period, and it is not possible to retain one's licence even on a restricted basis, eg during working hours, even if the defendant will lose his/her employment as a result. When the disqualification period is over, a person must hold a provisional licence for at least one year.

Alcohol interlock device

Legislation introduced in July 2001 provides for a system involving use of an alcohol interlock device as an alternative to part of a person's period of disqualification. An alcohol interlock device can be attached to a motor vehicle to monitor the driver's blood alcohol concentration (BAC) preventing the vehicle from being started or operated if the driver's BAC exceeds a pre-set limit. People disqualified for a drink driving offence after 16 July 2001 will be able to apply to regain a driver's licence after they have served at least half of their disqualification period. The person must agree to fit an alcohol interlock device for the duration of the original disqualification period. For example, an applicant disqualified for 12 months can apply for an alcohol interlock device after six months and must have the device fitted for 12 months.

People convicted before the commencement of the scheme on 16 July 2001 will not be able to apply for a device to be fitted. Also offender assessed as alcohol dependent will not be permitted to participate in the scheme. Conditions will be imposed including that the applicant must:

Breach of alcohol interlock conditions

A breach of any of these conditions will lead to the person being excluded from the scheme for 6 months or the balance of the interlock scheme whichever is the greatest. The person will also be subject to a probationary licence and the conditions of that licence (see probationary licence).

Expense

The applicant must pay for the alcohol interlock device although the Government is giving consideration to establishing a scheme to assist participants meet the cost.

Must hold probationary licence

Whether a person serves the full disqualification period or resumes driving using an alcohol interlock device, the person must hold a probationary licence for at least one year (see probationary licence).

Insurance exclusions

Most insurance policies covering damage to a motor vehicle exclude the liability of the insurer if the driver was under the influence of alcohol at the time of the accident. However, the fact that a driver has been convicted of a drink driving offence previously or in connection with the accident cannot by itself be used by an insurer to avoid liability [Road Traffic Act 1961 s 47C], see insurance.

Drink driving conviction for second or subsequent time within three years

In addition to those penalties, a person convicted for a second or subsequent time within three years of a drink driving offence must, before being sentenced, be referred to an assessment clinic to determine whether they suffer from alcoholism or addiction to a drug [Road Traffic Act 1961 s 47J]. At present this requirement only relates to offences committed in the metropolitan area because there are no assessment clinics in other areas of the State.

Assessment report and consequences

The assessment clinic reports to the court on its examination of the person. A court that is satisfied that the person suffers from alcoholism or addiction to a drug must disqualify the person from holding or obtaining a driver's licence until further order. A person may, after the minimum period of disqualification to which they would have been liable if dealt with otherwise than under s 47J has expired, apply to the court for a revocation of the disqualification order. The court may revoke the order on the basis that the person no longer suffers from alcoholism or drug addiction or that there is other proper cause for him or her to be allowed to drive, and may grant a full or conditional licence. Before applying to the court for this order, the person must submit to a further assessment by the assessment clinic, which makes a report to the court.

Failure to attend assessment

If a person is ordered to attend a s 47J assessment, and does not attend the appointment, the court has power treat them as if they do suffer from alcoholism or drug addiction, and disqualify them until further order.

Default speed limits

A speed limit sign often indicates the speed limit [Australian Road Rules 20] or if there are no signs, the default speed limit applies. In a built-up area the default speed limit is 50 kph or outside of built-up areas, 100 kph [Australian Road Rules 25].

Speed limits applying to classes of vehicles

There are also some special speed limits applying to certain classes of vehicles, for example buses exceeding 5 tonne gross vehicle mass (GVM) and vehicles exceeding 12 tonne GVM must not exceed 100 kph.

Speed limit when passing emergency services vehicles

Drivers must also slow down and drive at a safe speed, and in any case no greater than 40 km/h when passing an emergency services vehicle that is stationary and displaying a flashing blue or red light [Road Traffic Act 1961 s 83].

Penalty

The maximum penalty for any of the speeding offence described above is a fine of up to $1250 [Road Traffic Act 1961 s 164A].

Further offence of dangerous driving

Drivers who excessively speed may also be charged with an offence of dangerous driving [Road Traffic Act 1961 s 46], see Dangerous driving.

Proof of speeding

Police will generally seek to prove a speeding offence through use of radar, laser devices, speed cameras or through the observation of a police officer. Speed cameras must be set up and photographs processed in accordance with the Road Traffic (Miscellaneous) Regulations 1999 [r 19]. An expiation notice will be sent to the registered operator of the motor vehicle who must be given the opportunity to view the photograph and if she or he is not the driver, can complete a declaration nominating the actual driver. Other devices used to measure speed must be approved and also properly calibrated. A driver may be able to defend an offence if the police did not comply with any of these procedures, legal advice should be sought in these circumstances.

Who commits the offence?

When fitted to a vehicle, seat belts must be worn and properly adjusted. The offence is committed by the person not wearing the seatbelt [Australian Road Rules 264, 265] although the driver commits the offence for passengers aged under 16 years [Australian Road Rules 266].

Child restraints

Passengers aged less than one year must occupy a child restraint suitable for the child's weight.

Restrictions on where passengers can sit for vehicles without enough seatbelts

Passengers must sit in the front row of seats in vehicles with more than one row of seats where seatbelts are not fitted, or there are not enough seatbelts. If the other seats are full, passengers aged 16 years or more can sit in the front row [Australian Road Rules 265(4)]. Passengers aged less than 16 years may only sit in the front row if wearing a seatbelt that is properly adjusted [Australian Road Rules 266(4)].

Exceptions to wearing seatbelts

Seatbelts do not have to be worn by people if their doctor has written a letter stating that the person doesn't have to wear a seatbelt on the ground of physical disability or any medical ground. The person must have the letter with her or him, or a seatbelt must be worn [Australian Road Rules 267].

Generally drivers are required to give way to their right however, there are many additional give way requirements such as at intersections or crossings, when in slip lanes or moving away from the edge of the road, and to certain vehicles such as buses and emergency vehicles. Most provisions are contained in Part 7 of the Australian Road Rules which contain detailed descriptions of a driver's obligations including extensive use of explanatory diagrams.

Under rule 300 of the Australian Road Rules it is an offence to use a hand-held telephone when driving, other than when parked. This means that a driver is not permitted to use a mobile phone even when stationary at traffic lights. Only those drivers with phones which can be used remotely (e.g. via Bluetooth) or are mounted in a proper device that enables calls to be made or received without holding the phone itself can use a mobile phone whilst driving.

Penalty: $202 fine and 3 demerit points

There are a number of situations in relation to driving in which it is an offence not to truthfully answer questions asked by a police officer.

Must assist in identifying driver of a vehicle

A person must answer any question that would help to identify the driver of a motor vehicle [Motor Vehicles Act 1959 s 137].

Producing licence when requested

A driver must produce their licence when requested by a police officer, either immediately or to a specified police station within 48 hours [Motor Vehicles Act 1959 s 96].

Direction to give name and other personal details

Any person who is involved in road transport at the time they are approached by police, including a driver, a vehicle owner or someone in charge of a vehicle, must, on request, provide police with their full name, date of birth, the address where they are living, their usual address and their business address. [Road Traffic Act 1961, s40V]

 

 

Duties of a Driver after an Accident

The driver of every vehicle involved in an accident must:

[Australian Road Rules 1999 s 287, Road Traffic (Road Rules – Ancillary and Miscellaneous Provisions) Regulations 1999 Reg 30]

For example, if you have a minor crash where is less than $1000 damage, no-one is injured and both drivers provide their details, then there is no obligation to report it to police. When assessing the damage that has been caused, this includes damage to other property (such as a fence) as well as the car(s) involved. If the only damage is to the driver's car, then there is no requirement that the accident be reported. However, it is advisable to report an accident even when it may not be necessary.

Police can require the drivers to give details of the day, time and place of the crash, details of other drivers and vehicles involved in the crash, and details of injuries and damage resulting from the crash. the names of the people involved and of witnesses and details of injury and damage. Police can askabout vehicle speeds and positions before and at the time of impact, but if you think this information may incriminate you, you do not have to answer. See Answering Questions about what questions you must answer and Arrest and Questioning for further information.

Elements of the offence & penalty

Failure to comply with the duties in relation to accidents where no-one is injured or killed is an offence and the penalty is a fine of up to $2500. [Australian Road Rules 1999 s287 & Road Traffic (Road Rules – Ancillary and Miscellaneous Provisions) Regulations 1999 Reg 50]

If someone is killed or injured then the driver of every vehicle involved in an accident must:

Elements of the offence & penalty

Failure to comply with these duties is an offence and the penalty is imprisonment of up to five years and license disqualification for at least one year. [Road Traffic Act 1961 s43]

Defences

It is a defence to this charge if the driver was reasonably unaware that the accident had occurred. It is also a defence if the driver genuinely and reasonably believed that to comply would endanger them physically and they notified the police, ambulance or another authority at the earliest opportunity.

In relation to failure to comply with the duty to present to a police officer, it is a defence if the driver has a reasonable excuse for failing to comply and they still presented themselves as soon as possible after the accident.

Failure to comply with duties where the accident involved injury or death

Elements of the offence

It is an offence to fail to comply with your duties as a driver involved in an accident (under the Road Traffic Act 1961 s43) where another person has been killed or injured as a result of driving without due care or attention. [Criminal Law Consolidation Act 1935 s19AB]

Penalty - fatal accidents

Where the accident has resulted in death, the penalty for the first offence is imprisonment of up to 15 years and licence disqualification for at least 10 years. Subsequent offences carry a penalty of up to life imprisonment and licence disqualification of at least 10 years.

Penalty - non-fatal accidents

Where the accident has resulted in serious harm, the penalty for a first offence is imprisonment of up to 15 years and a licence disqualification of at least 10 years. For subsequent offences the penalty is imprisonment up to life and licence disqualification for at least 10 years.

Where the accident has resulted in injury but is not serious harm, the penalty for a first offence is a term of imprisonment of up to 5 years and licence disqualification for at least one year. For subsequent offences the penalty is imprisonment up to seven years and licence disqualification for at least three years.

For a definition of what a subsequent offence is see s19AB(4) Criminal Law Consolidation Act 1935 and for serious harm see s21 Criminal Law Consolidation Act 1935.

 

Duty to inform Allianz when the accident involves injury or death

As soon as praciticable after an accident involving injury or death, contact the insurer, Allianz (ph: 1300 137 331). They will send forms which must be filled in and returned. It is an offence not to provide this written notice of the accident to the insurer. [Motor Vehicles Act 1959, s124]

Penalty

A fine of up to $1 250, or imprisonment for up to 3 months.

Because the thoughtless commission of a serious driving offence can result in an otherwise responsible person being sent to prison, juries (and even judges) are sometimes inclined to sympathise with the offender and vote for complete acquittal. To provide an alternative to this unsatisfactory solution a jury may find an offender not guilty of the offence charged but guilty of a specified lesser offence. In the case of a person charged with murder or manslaughter resulting from irresponsible driving, the lesser offence may be causing death by reckless driving.

Elements of the offence

To be guilty of this offence the person must have driven the motor vehicle in a culpably negligent manner, recklessly or at a speed or in a manner that was dangerous to the public. As with manslaughter, a very high degree of negligence is needed. A momentary lack of attention in the person's driving would rarely be sufficient.

Penalties - death or grievous injury

For a first offence of causing death or grievous injury by reckless driving the penalty is imprisonment for a maximum of ten years and licence disqualification for a minimum of five years. The penalty for a subsequent offence is imprisonment for up to fifteen years and licence disqualification for a minimum of ten years [Criminal Law Consolidation Act 1935 s 19a(1)]. As is the case with any minimum period of licence disqualification for an indictable offence under the Criminal Law Consolidation Act 1935 the court can increase the period of disqualification as it thinks fit.

Penalties - injury (not grievous)

Where injury (but not grievous injury) is caused, the penalty for a first offence is imprisonment for a maximum of four years and licence disqualification for a minimum of one year. For a subsequent offence the penalty is imprisonment for up to six years and disqualification for not less than three years [Criminal Law Consolidation Act 1935 s 19a(3)]. Where the offence causing an injury was committed by using a vehicle other than a motor vehicle, or an animal, the penalty is imprisonment for up to two years.

Lesser offence

A lesser offence to causing death or injury is driving in a reckless manner or at a speed or a manner which is dangerous to the public [Road Traffic Act 1961 s 46(1)], SEE Dangerous Driving.

Elements of the offence

As of 1st December 2005 a new offence of Driving at excessive speed exists [s.45A Road Traffic Act 1961 ]. The offence occurs when a driver exceeds the speed limit by 45 kilometres an hour or more.

Penalties

An expiation fee of $500 applies and service of an expiation notice will attract a disqualification notice under section 45B Road Traffic Act 1961 . The disqualification notice has the effect of suspending a person’s licence. Under section 45B police have the power to impose licence disqualification or suspension by issuing such a notice. The suspension operates for a period of 6 months, commencing: