Transport Legislation Amendment (Marine Drug and Alcohol Standards Modernisation and Other Matters) Bill 2012

Transport Legislation Amendment (Marine Drug and Alcohol Standards Modernisation and Other Matters) Bill 2012

Introduction Print

EXPLANATORY MEMORANDUM

571272

BILL LA INTRODUCTION 12/9/2012

General

The primary purpose of the Transport Legislation Amendment (Marine Drug and Alcohol Standards Modernisation and Other Matters) Bill 2012 is to change the Marine (Drug, Alcohol and Pollution Control) Act 1988 to modernise Victorian marine drug and alcohol standards.

The Bill achieves this by

broadly aligning marine drug and alcohol standards and controls with those applying to Victoria's road safety scheme, including by introducing a number of new offences, which are explained in detail in the clause notes to the Bill;

providing for appropriate testing regimes;

supporting the standards and controls with appropriate evidentiary provisions; and

ensuring that police officers and transport safety officers have adequate powers to enforce those standards.

The Bill also reduces the regulatory burden on the recreational boating sector by changing the Marine Safety Act 2010 to enable vessels to be registered in the name of incorporated or unincorporated bodies, partnerships and associations, as well as natural persons, so that clubs and other bodies can register vessels more easily.

In addition, the Bill modifies the directors' liability provision in the Port Management Act 1995 in line with the Council of Australian Governments Directors' Liability reform project principles.

The Bill also makes further provision for the enforcement of marine safety standards in the Transport (Compliance and Miscellaneous) Act 1983 and the Marine Safety Act 2010, and for transport safety infringements in the Transport (Compliance and Miscellaneous) Act 1983.

The Bill also adjusts the Marine (Drug, Alcohol and Pollution Control) Act 1988 to clarify functions, powers and responsibilities of the Secretary to the Department of Transport relating to marine pollution and responsibilities of, and indemnities applying to, participants in the Victorian Marine Pollution Contingency Plan.

Finally, the Bill amends the Transport Legislation Amendment (Public Transport Development Authority) Act 2011 to make statute law revision amendments to that Act.

Clause Notes

PART 1PRELIMINARY

Clause 1sets out the main purposes of the Bill which are

to make changes to the Marine (Drug, Alcohol and Pollution Control) Act 1988

to create new offences prohibiting the operation of a vessel or being a master or pilot of a vessel underway or at anchor while impaired by a drug other than alcohol; and

to introduce a zero or 000% blood alcohol concentration for persons under 21 years of age who are the operator of any vessel, or are the master or pilot of a vessel either underway or at anchor; and

to introduce a zero or 000% blood alcohol concentration for persons who are the operator of a commercial or government vessel, or are the master or pilot of a commercial or government vessel either underway or at anchor; and

to align penalty and enforcement provisions for drug and alcohol offences under that Act with equivalent provisions under the Road Safety Act 1986; and

to provide for a drug assessment and testing regime; and

to clarify functions, powers and responsibilities in relation to marine pollution; and

to make other miscellaneous amendments to improve the operation of that Act; and

to remove the requirement in the Marine Safety Act 2010 that a vessel may only be registered in the name of a natural person; and

to make further provision for prosecutions under the Marine Safety Act 2010; and

to make further provision in relation to police powers under the Marine Safety Act 2010; and

to modify the directors' liability provision under the Port Management Act 1995; and

to make further provision for enforcement powers under the Transport (Compliance and Miscellaneous) Act 1983; and

to make further provision for regulations in relation to transport safety infringements made under the Transport (Compliance and Miscellaneous) Act 1983; and

to make statute law revision amendments to the Transport Legislation Amendment (Public Transport Development Authority) Act 2011.

Clause 2deals with commencement and provides that the Bill comes into operation on a day or days to be proclaimed.

If a provision in the Bill has not come into operation before 1July 2013, it comes into operation on that date.

PART 2AMENDMENT OF THE MARINE (DRUG, ALCOHOL AND POLLUTION CONTROL) ACT1988

Division 1 of Part 2 makes a number of improvements to the scheme governing drug and alcohol standards in the Marine (Drug, Alcohol and Pollution Control) Act 1988.

These amendments modernise marine drug and alcohol standards by broadly aligning marine standards with those that apply under Victoria's road safety scheme.

The reforms

introduce a general prohibition on masters, operators and pilots of all vessels using, or being impaired by, illicit drugs;

introduce a zero blood alcohol concentration requirement for masters, pilots and operators of vessels who are aged under 21years of age;

introduce a zero blood alcohol concentration requirement for masters, pilots and operators of trading, fishing and government vessels;

maintain a 005 blood alcohol concentration for operators, master and pilots of other vessels who are 21years of age or over;

establish a comprehensive marine drug and alcohol testing regime, including evidentiary and procedural requirements; and

provide for the cancellation or suspension of marine licences and certificates of competency where a person is convicted of an offence involving alcohol or drugs in specified circumstances.

Clause 3changes the definition of prescribed concentration of alcohol and inserts a number of new definitions in section 3(1) of the Marine (Drug, Alcohol and Pollution Control) Act 1988.

Subclause 3(1) substitutes a new definition of pilot for the existing definition in the Marine (Drug, Alcohol and Pollution Control) Act 1988, which relies on regulations to prescribe persons who are pilots.

Pilot is given the same meaning as in the Marine Safety Act 2010. That is, a person who does not belong to, but has the conduct of, a vessel. An example is pilots who work for the Port Phillip Sea Pilots.

Subclause (2) amends the definition of prescribed concentration of alcohol to mean

in the case of a person who is operating a vessel underway, or is the master or pilot of a vessel underway or at anchor, where any of the following apply

the person is under the age of 21 years;

the vessel is a commercial or government vessel

any concentration of alcohol present in the blood or breath of that person; and

in the case of any other person

a concentration of alcohol present in the blood of that person of 005grams per 100 millilitres of blood; or

a concentration of alcohol present in the breath of that person of 005grams per 210 litres of exhaled air.

The effect of this change is that

a person under the age of 21 who operates any vessel; or

a person under the age of 21 who is the master or pilot of a vessel underway or at anchor; or

a person aged 21 or above who operates a commercial vessel or a government vessel; or

a person aged 21 or above who is the master or pilot of a commercial or government vessel underway or at anchor

is guilty of an offence if the person has any concentration of alcohol present in his or her breath or blood.

A person aged 21 or above who operates a vessel, or is the master or pilot of a vessel underway or at anchor, other than a commercial vessel or a government vessel, is guilty of an offence if the person has a concentration of alcohol in his or her breath or blood of or more than 005 grams per 100 millilitres of blood or 210 litres of exhaled air.

Subclause (3) inserts a number of new definitions into section3(1) of the Marine (Drug, Alcohol and Pollution Control) Act 1988.

Australian fishing vessel is given the same meaning as in the Marine Safety Act 2010. That is, any of the following vessels that is equipped for fishing or from which fishing takes place

an Australian boat within the meaning of the Fisheries Management Act 1991 of the Commonwealth;

an Australian flagged boat within the meaning of the Fisheries Management Act 1991 of the Commonwealth.

Certificate of competency has the same meaning as in the Marine Safety Act 2010. That is, a certificate issued under section 78 of that Act.

Commercial vessel is given the same meaning as in the Marine Safety Act 2010. That is, a fishing vessel or a trading vessel.

Dentist means a person registered under the Health Practitioner Regulation National Law

to practise in the dental profession (other than as a student); and

in the dentists division of that profession.

This definition is needed for the purposes of new section 28(3C) of the Marine (Drug, Alcohol and Pollution Control) Act 1988.

Drug is given the same meaning as in the Road Safety Act 1986. That is, a substance that is a drug for the purposes of the Road Safety Act 1986 by virtue of a declaration under subsection 3(3) of that Act, or any other substance (other than alcohol) which, when consumed or used by a person, deprives that person (temporarily or permanently) of any of his or her normal mental or physical faculties.

Fishing vessel is given the same meaning as in the Marine Safety Act 2010. That is, a vessel used or intended to be used for catching fish or other living resources of the sea or seabed for profit or reward and includes any such vessel in the course of construction or a vessel that is declared under section 7 of the Marine Safety Act 2010 to be a fishing vessel but excludes any vessel

engaged in harvesting or transport of algae or aquatic plants; or

that is primarily a carrier or a mother vessel.

Government vessel is given the same meaning as in the Marine Safety Act 2010. That is

a vessel

that belongs to the Commonwealth or a State or a Territory; or

the beneficial interest in which is vested in the Commonwealth or a State or a Territory; or

that is for the time being demised or sub-demised to, or in the exclusive possession of, the Commonwealth or a State or a Territory; or

a vessel that is, or is of a class that is, declared under section 7 of the Marine Safety Act 2010 to be a government vessel or class of government vessel

but does not include a vessel belonging to the naval,military or air forces of the Commonwealth.

Permissible non-prescription drug is given the same meaning as in the Road Safety Act 1986. That is

a Schedule 2 poison within the meaning of the Drugs, Poisons and Controlled Substances Act 1981 that is listed in Appendix K of Part 5 of the Commonwealth standard within the meaning of that Act; or

a Schedule 3 poison within the meaning of the Drugs, Poisons and Controlled Substances Act 1981.

Pharmacist means a person registered under the Health Practitioner Regulation National Law to practise in the pharmacy profession (other than as a student).

This definition is needed for the purposes of new section 28(3C) of the Marine (Drug, Alcohol and Pollution Control) Act 1988.

Prescribed concentration of drugs is given the same meaning as in the Road Safety Act 1986. That is, in the case of a prescribed illicit drug, any concentration of the drug present in the blood or oral fluid of that person.

Prescribed illicit drug is given the same meaning as in the Road Safety Act 1986. That is

methylamphetamine (speed or ice); or

3, 4-Methylenedioxy-N- Methylamphetamine (MDMA) (ecstasy); or

delta-9-tetrahydrocannabinol (cannabis).

Prescription drug is given the same meaning as in the Road Safety Act 1986. That is, in relation to a person, a Schedule 4 poison or Schedule 8 poison within the meaning of the Drugs, Poisons and Controlled Substances Act 1981 which that person is authorised or licensed by or under that Act to have in his or her possession.

Trading vessel is given the same meaning as in the Marine Safety Act 2010. That is

a vessel used or intended to be used foror in connection with any business or commercial activity, and includes (but is not limited to) a vessel used or intended to be used wholly or principally for

carrying passengers or cargo for hire or reward; or

providing services to vessels and shipping, whether for reward or otherwise; or

a vessel that is, or is of a class that is, declared under section 7 of the Marine Safety Act 2010 to be a trading vessel or class of trading vessel

but does not include a government vessel or a fishing vessel.

Clause 4contains interpretative provisions which enable presumptions to be made in relation to the presence of alcohol or a drug in the body of a person charged with certain drug and alcohol related offences.

Clause 4(1) substitutes section 27(1) of the Marine (Drug, Alcohol and Pollution Control) Act 1988 with new subsections (1), (1AA) and (1AB). The new provisions contain presumptions to be made where a certain concentration of alcohol or drugs is found to be present in a person's blood, breath, body or oral fluid within a certain time after an alleged offence, unless the contrary is proved.

New subsection (1) provides that, for the purposes of Part 4 of the Marine (Drug, Alcohol and Pollution Control) Act 1988

if it is established that at any time within 3 hours after an alleged offence against paragraph (a) or (b) of section 28(1) a certain concentration of alcohol was present in the blood or breath of the person charged with the offence it must be presumed, until the contrary is proved, that not less than that concentration of alcohol was present in the person's blood or breath (as the case requires) at the time at which the offence is alleged to have been committed;

if it is established that at any time within 3 hours after an alleged offence against paragraph (ba) of section28(1) a certain drug was present in the body of the person charged with the offence it must be presumed, until the contrary is proved, that the drug was present in the person's body at the time at which the offence is alleged to have been committed; and

if it is established that at any time within 3 hours after an alleged offence against paragraph (bb) of section28(1) a certain drug was present in the blood or oral fluid of the person charged with the offence it must be presumed, until the contrary is proved, that that drug was present in the person's blood or oral fluid at the time at which the offence is alleged to have been committed.

New section 27(1AA) provides that, for the purposes of an alleged offence against new paragraph (ba) of section 28(1) of the Marine (Drug, Alcohol and Pollution Control) Act 1988, it must be presumed that a drug found by an analyst to be present in the sample of blood or urine taken from the person charged was not due solely to the consumption or use of that drug after operating a vessel or being the master or pilot of a vessel underway or at anchor unless the contrary is proved by the person charged on the balance of probabilities by sworn evidence given by him or her which is corroborated by the material evidence of another person.

New section 27(1AB) provides that, for the purposes of new sections 31AA and 31AB of the Marine (Drug, Alcohol and Pollution Control) Act 1988, a master, pilot or person operating a vessel is not taken to be impaired unless, in the case of a person operating a vessel, his or her behaviour or appearance is such as to give rise to a reasonable suspicion that he or she is unable to operate a vessel properly and, in the case of a master or pilot, his or her behaviour or appearance is such as to give rise to a reasonable suspicion that he or she is unable to direct the proper operation of the vessel.

Clause 4(2) of the Bill amends section 27(1A) of the Marine (Drug, Alcohol and Pollution Control) Act 1988 by inserting the words "operating a vessel or being a master or pilot of a vessel underway or at anchor". The effect of the amendment is that, for the purposes of an alleged offence against paragraph (e) or (f) of section 28(1) of the Marine (Drug, Alcohol and Pollution Control) Act 1988 , it must be presumed that the concentration of alcohol indicated by an analysis to be present in the breath of the person charged or found by an analyst to be present in the sample of blood taken from the person charged (as the case requires) was not due solely to the consumption of alcohol after operating a vessel or being the master or pilot of a vessel underway or at anchor unless the contrary is proved by the person charged on the balance of probabilities by sworn evidence given by him or her which is corroborated by the material evidence of another person.

Clause 4(3) of the Bill inserts new section 27(1B) into the Marine (Drug, Alcohol and Pollution Control) Act 1988.

New section 27(1B) provides that, for the purposes of an alleged offence against new paragraphs (g) or (h) of section 28(1) of the Marine (Drug, Alcohol and Pollution Control) Act 1988, it must be presumed that a drug found by an analyst to be present in the sample of blood or oral fluid provided by, or taken from, the person charged was not due solely to the consumption or use of that drug after operating a vessel or being the master or pilot of a vessel underway or at anchor unless the contrary is proved by the person charged on the balance of probabilities by sworn evidence given by him or her which is corroborated by the material evidence of another person.

Clause 4(4) of the Bill inserts new sections 27(2A) and (2B) into the Marine (Drug, Alcohol and Pollution Control) Act 1988. The new subsections relate to authorisations to operate a breath analysing instrument under section 31 of the Marine (Drug, Alcohol and Pollution Control) Act 1988 or to carry out an assessment of drug impairment under new section 31AA(3) of that Act.

New section 27(2A) provides that an approval or authority given under or for the purposes of section 31 or 31AA(3) of the Marine (Drug, Alcohol and Pollution Control) Act 1988 by the Chief Commissioner of Police may be revoked at any time in the manner in which it was given and on revocation ceases to have any effect.

New section 27(2B) provides that, for the avoidance of doubt the Bill provides that nothing in Part 4 of the Marine (Drug, Alcohol and Pollution Control) Act 1988 requires a person who is in a dwelling to allow a member of the police force to enter that dwelling without a warrant.

Clause 4(5) of the Bill substitutes a new definition of vessel underway for vessel under way, and inserts a new definition of at anchor in section 27(3) of the Marine (Drug, Alcohol and Pollution Control) Act 1988. This is because the expressions vessel underway and at anchor are used in the definition of prescribed concentration of alcohol and for the purposes of various offences involving operators, masters and pilots.

At anchor is defined so that it does not include a vessel properly made fast at a registered mooring or at anchor at a registered mooring.

It is not intended that the controls apply to vessels properly made fast to the shore or moored (including anchored) at registered moorings. Instead, the controls are intended to extend to waters in which a person may need to manoeuvre a vessel to safety such as when adverse weather conditions arise.

Vessel underway is defined to include any period when the vessel is being secured, moored or retrieved from the water but does not include a vessel that is at anchor, properly made fast at a registered mooring or at anchor at a registered mooring, properly made fast to the shore, aground or ashore.

The International Regulations for Avoiding Collisions at Sea contain, in Rule 3(i), a definition of the word "underway". TheRule provides that the word "underway" means a vessel is not at anchor, made fast to the shore, or aground.

The new definition in the Marine (Drug, Alcohol and Pollution Control) Act 1988 covers similar ground but is broader that the definition in Rule 3(i) because it specifies, for the purpose of marine drug and alcohol controls only, that a vessel is underway when the vessel is being secured, moored or retrieved from the water.

The definition also specifies that a vessel is not underway when the vessel is ashore. Although axiomatic, this clarification ensures that the master or pilot of a vessel does not commit an offence when the vessel is ashore.

Note that operate is already defined in the Marine (Drug, Alcohol and Pollution Control) Act 1988 for the purpose of the marine drug and alcohol controls.

A person operates a vessel if the person facilitates or controls the movement or navigation of a vessel underway or a thing connected to a vessel.

Clause 5adjusts section 28(1) of the Marine (Drug, Alcohol and Pollution Control) Act 1988, and inserts new section 28(1C) into that Act. The amendments broadly align drug and alcohol standards for marine safety with those applicable to road safety under the Road Safety Act 1986, including by introducing new offences.

Clause 5(1) of the Bill substitutes the offence in section 28(1)(a) of the Marine (Drug, Alcohol and Pollution Control) Act 1988 to provide that a person commits an offence if the person operates a vessel or is a master or pilot of a vessel underway or at anchor while under the influence of alcohol or any other drug to such an extent as to

in the case of a person operating a vessel, be incapable of having proper control of the vessel; or

in the case of a master or pilot of a vessel, be incapable of directing the proper operation of the vessel.

Directing the proper operation of the vessel is a phrase used throughout the Bill to express what a master or pilot of a vessel does as opposed to operating the vessel.

Clause 5(2) of the Bill amends section 28(1)(b) of the Marine (Drug, Alcohol and Pollution Control) Act 1988 to provide that a person is guilty of an offence if the person operates a vessel or is the master or pilot of a vessel underway or at anchor while the prescribed concentration of alcohol or more than the prescribed concentration of alcohol is present in his or her blood or breath.

Clause 5(3) of the Bill inserts new sections 28(1)(ba) and (bb) into the Marine (Drug, Alcohol and Pollution Control) Act 1988. These provisions create new offences of a person operating a vessel or being the master or pilot of a vessel underway or at anchor while impaired by a drug, and a person operating a vessel or being the master or pilot of a vessel underway or at anchor while more than the prescribed concentration of drugs is present in his or her blood or oral fluid.

Clause 5(4) of the Bill inserts new sections 28(1)(ca) and 28(1)(cb) into the Marine (Drug, Alcohol and Pollution Control) Act 1988.

New section 28(1)(ca) provides for a new offence of refusing to undergo an assessment of drug impairment in accordance with new section 31AA when required under that section to do so, or refusing to comply with any other requirement under new section31AA(1).

New section 28(1)(cb) provides for a new offence of refusing or failing comply with a request or signal to go to a preliminary breath testing station in accordance with section 30(3) of the Marine (Drug, Alcohol and Pollution Control) Act 1988.

Clause 5(5) of the Bill inserts a reference to new section 31(2AA) in section 28(1)(d) of the Marine (Drug, Alcohol and Pollution Control) Act 1988. This makes it an offence to refuse to comply with a requirement made under new section 31(2AA).

New section 31(2AA) enables a member of the police force to require any person who is required to undergo a drug assessment under new section 31AA to furnish a sample of breath for analysis by a breath analysing instrument and may, for that purpose, require the person to remain at the place at which the person is required to remain for the purposes of the drug assessment until

the person has furnished the sample of breath and any further sample required to be furnished under subsection (2A) and been given the certificate referred to in subsection (4) produced by the breath analysing instrument of the concentration of alcohol indicated by the analysis to be present in the person's breath and the drug assessment has been carried out; or

3 hours after operating, being involved in the operation of or being an occupant of a vessel

whichever is sooner.

Clause 5(6) of the Bill amends section 28(1)(e) of the Marine (Drug, Alcohol and Pollution Control) Act 1988 to substitute the words "operating a vessel or being the master or pilot of a vessel underway or at anchor" for "being involved in the operation of a vessel underway" in the first sentence of that section, and to substitute the words "or being the master or pilot of a vessel underway or at anchor" for "underway" in subparagraph (ii) of that section.

The effect of these changes is to clarify that a person is guilty of an offence if the person, within 3 hours after operating a vessel or being a master or pilot of a vessel underway at anchor, furnishes a sample of breath for analysis which contains more than the prescribed concentration of alcohol (as defined in section 3 of the Marine (Drug, Alcohol and Pollution Control) Act 1988) and the concentration of alcohol indicated by the analysis to be present was not solely due to the consumption of alcohol after operating a vessel or being a master or pilot of a vessel underway at anchor.

Clause 5(7) of the Bill inserts new sections 28(1)(ea) and (eb) in section 28(1) of the Marine (Drug, Alcohol and Pollution Control) Act 1988.

New section 28(1)(ea) provides that a person commits an offence by refusing to comply with a requirement made under new section 31AB(1). The requirements under that section are to allow a registered medical practitioner or an approved health professional nominated by a police officer to take a sample of the person's blood for analysis and to furnish a sample of the person's urine to allow a registered medical practitioner or an approved health professional nominated by a police officer for analysis.

New section 28(1)(eb) creates a new offence of refusing to provide a sample of oral fluid in accordance with new sections 31AD or 31AE of the Marine (Drug, Alcohol and Pollution Control) Act 1988 when required under either of those sections to do so.

The provision also makes it an offence to refuse to comply with any other requirement under either section 31AD or 31AE. Forexample, a police officer may, under new section 31AD(5), give any reasonable direction as to the physical actions that are necessary for a person to undergo a preliminary oral fluid test and may, under new section 31AD(6), require a person to remain at the place at which a preliminary oral fluid test is being carried out until the sample of oral fluid has been tested by a prescribed device.

Clause 5(8) of the Bill amends section 28(1)(f) of the Marine (Drug, Alcohol and Pollution Control) Act 1988 to clarify that a person is guilty of an offence if the person has had a sample of blood taken from him or her in accordance with section 31, 31A, 31AB or 31AE within 3 hours after operating a vessel or being a master or pilot of a vessel underway or at anchor, and the sample has been analysed and has been found to contain the prescribed concentration or more than the prescribed concentration of alcohol, and the concentration found present in the sample was not solely due to the consumption of alcohol after operating a vessel or being a master or pilot of a vessel underway or at anchor.

Clause 5(9) of the Bill inserts new sections 28(1)(g) and (h) into the Marine (Drug, Alcohol and Pollution Control) Act 1988.

New section 28(1)(g) provides that a person is guilty of an offence where the person, within 3 hours after operating a vesselor being a master or pilot of a vessel underway or at anchor, provides a sample of oral fluid in accordance with new section31AE and

the sample has been analysed by a properly qualified analyst within the meaning of new section 32B and the analyst has found that at the time of analysis a prescribed illicit drug was present in that sample in any concentration; and

the presence of the drug in that sample was not due solely to the consumption or use of that drug after operating or being involved in the operation of the vessel or being a master or pilot of a vessel underway or at anchor.

New section 28(1)(h) provides that a person is guilty of an offence where the person has had a sample of blood taken from him or her in accordance with sections 31 or 31A or new sections 31AB or 31AE within 3 hours after operating a vessel or being a master or pilot of a vessel underway or at anchor and

the sample has been analysed by a properly qualified analyst within the meaning of section 32B of the Marine (Drug, Alcohol and Pollution Control) Act 1988 and the analyst has found at the time of analysis a prescribed illicit drug was present in that sample in any concentration; and

the presence of the drug in that sample was not due solely to the consumption or use of that drug after operating the vessel or being a master or pilot of a vessel underway or at anchor.

Clause 5(10) of the Bill amends section 28(1A) of the Marine (Drug, Alcohol and Pollution Control) Act 1988 to provide that a person may be convicted or found guilty of an offence under new paragraphs (ca), (ea) or (eb) of section 28(1), in addition to sections 28(1)(c) and (d) of that Act, in the circumstances described in the new provisions.

In the case of an offence under new paragraph (ca) of section 28(1A) of refusing to undergo an assessment of drug impairment in accordance with new section 31AA when required under that section to do so, or refusing to comply with any other requirement under new section 31AA(1), a person may be convicted or found guilty of an offence even if

a requirement to undergo an assessment of drug impairment was not made at a place where such an assessment could have been carried out; and

a member of the police force authorised to carry out an assessment of drug impairment was not present at the place where the requirement was made at the time it was made.

In the case of an offence under new paragraph (ea) of section28(1) of refusing to allow a registered medical practitioner or an approved health professional nominated by a police officer to take a sample of the person's blood for analysis or to furnish a sample of the person's urine to a registered medical practitioner or an approved health professional nominated by a police officer for analysis under new section 31AB(1), a person may be convicted or found guilty of an offence even if

the member of the police force requiring a sample of blood had not nominated a registered medical practitioner or approved health professional to take the sample; and

the member of the police force requiring a sample of urine had not nominated a registered medical practitioner or approved health professional to whom the sample was to be furnished for analysis; and

a registered medical practitioner or approved health professional was not present at the place where the requirement was made at the time it was made.

In the case of an offence under new paragraph (eb) of section28(1) of refusing to provide a sample of oral fluid in accordance with new sections 31AD or 31AE when required under either of those sections to do so, a person may be convicted or found guilty of an offence even if

a prescribed device was not presented to the person at the time of the making of the requirement; and

a prescribed device was not available at the place or vessel where the requirement was made at the time it was made; and

a person authorised to carry out the prescribed procedure for the provision of a sample of oral fluid was not present at the place where the requirement was made at the time it was made; and

the person requiring a sample of blood had not nominated a registered medical practitioner or approved health professional to take the sample; and

a registered medical practitioner or approved health professional was not present at the place where the requirement was made at the time it was made.

New clause 5(11) of the Bill inserts new section 28(1C) into the Marine (Drug, Alcohol and Pollution Control) Act 1988.

To avoid doubt, new section 28(1C) provides that, in proceedings for an offence under new paragraph (eb) of section 28(1), a state of affairs or circumstance referred to in new subsection (1A)(d)(i), (ii) or (iii) is not a reason of a substantial character for a refusal to provide a sample of oral fluid for the purposes of new section 31AE(12).

Clause 6aligns penalties for Marine (Drug, Alcohol and Pollution Control) Act 1988 offences with equivalent offences under the Road Safety Act 1986.

Clause 6(1) of the Bill substitutes section 18(2)(b) of the Marine (Drug, Alcohol and Pollution Control) Act 1988 with new section 28(2)(b) and (c). The effect of the amendment is that that a person who is guilty of an offence under section 28(1)(a) of operating a vessel or being a master or pilot of a vessel underway or at anchor while under the influence of alcohol or any other drug to such an extent as to be incapable of having proper control or being unable to direct the proper operation of the vessel is liable, for a second offence, to a fine of not more than 120penalty units or to imprisonment for not more than 12months, and for a subsequent offence, to a fine of not more than 180penalty units or to imprisonment for not more than 18months.

Clause 6(2) of the Bill inserts new section 28(2A) into the Marine (Drug, Alcohol and Pollution Control) Act 1988.

New section 28(2A) provides that a person who is guilty of an offence under sections 28(1)(b), (e) or (f) of the Marine (Drug, Alcohol and Pollution Control) Act 1988, which relate to a person who operates or who has operated, or is or has been a master or pilot of a vessel underway or at anchor where the prescribed concentration or more than the prescribed concentration of alcohol is present in the person's breath or blood, is liable

in the case of a first offence, to a fine of not more than 20 penalty units; and

in the case of a second offence

to a fine of not more than 60 penalty units or to imprisonment for a term of not more than 6months if the concentration of alcohol

in the person's blood was less than 015grams per 100 millilitres of blood; or

in the person's breath was less than 015grams per 210 litres of exhaled air

as the case requires; or

to a fine of not more than 120 penalty units or to imprisonment for a term of not more than 12months if the concentration of alcohol

in the person's blood was 015 grams or more per 100 millilitres of blood; or

in the person's breath was 015 grams or more per 210 litres of exhaled air

as the case requires or;

in the case of any other subsequent offence

to a fine of not more than 120 penalty units or imprisonment for a term of not more than 12months if the concentration of alcohol

in the person's blood was less than 015grams per 100 millilitres of blood; or

in the person's breath was less than 015grams per 210 litres of exhaled air

as the case requires; or

to a fine of not more than 180 penalty units or to imprisonment for a term of not more than 18months if the concentration of alcohol

in the person's blood was 015 grams or more per 100 millilitres of blood; or

in the person's breath was 015 grams or more per 210 litres of exhaled air

as the case requires.

Clause 6(3) of the Bill amends section 28(3) of the Marine (Drug, Alcohol and Pollution Control) Act 1988 to provide penalties for first, second and subsequent offences against section 28(1)(ba), (c), (ca), (cb), (d) or (ea).

Those offences relate to operating or being a master or pilot of a vessel underway or at anchor while impaired by a drug, a refusal to undergo a preliminary breath test under section 29, and failure to satisfy certain requirements under section 31(1), (2), (2A) or (9A), or under new sections 31(2AA), 31AA or 31AB(1).

Clause 6(3)(a) of the Bill removes the reference in section 28(3) of the Marine (Drug, Alcohol and Pollution Control) Act 1988 to paragraphs (b), (e) and (f) of section 28(1) because the penalties for first, second and subsequent offences against those paragraphs are now dealt with under new section 28(2A) (inserted by clause 6(2) of the Bill).

Clause 6(3)(b) of the Bill inserts new paragraphs (b) and (c) in section 28(3) of the Marine (Drug, Alcohol and Pollution Control) Act 1988. New paragraph (b) provides that, for a second offence against sections 28(1)(ba), (c), (ca), (cb), (d) or (ea), a person may be liable to a fine of not more than 120penalty units or to imprisonment for not more than 12months. New paragraph (c) provides that, for a subsequent offence, a person may be liable to a fine of not more than 180penalty units or to imprisonment for a term of not more than 18 months.

Clause 6(4) of the Bill inserts new sections 28(3A), (3B), (3C) and (3D) into the Marine (Drug, Alcohol and Pollution Control) Act 1988.

New section 28(3A) provides penalties for first, second and subsequent offences against sections 28(1)(bb), (eb), (g), or (h), which relate to a person who operates or who has operated, or is or has been the master or pilot of a vessel underway or at anchor where the prescribed concentration or more than the prescribed concentration of drugs is present in the person's blood or oral fluid, and a refusal to provide a sample of oral fluid in accordance with new sections 31AD or 31AE.

In the case of an offence against new section 28(1)(bb), (eb), (g) or (h), a person is liable

in the case of a first offence, to a fine of not more than 12 penalty units; and

in the case of a second offence, to a fine of not more than 60 penalty units; and

in the case of any other subsequent offence, to a fine of not more than 120 penalty units.

The changes made by clause 6(4) also establish the elements of proof in proceedings for certain offences.

New section 28(3B) provides that, in the case of an offence against new section 28(1)(ba), proof that

the person operated or was the master or pilot of a vessel underway or at anchor; and

one or more drugs were present in the person's body at the time at which he or she operated or was the master or pilot of a vessel underway or at anchor; and

the behaviour of the person on an assessment of drug impairment carried out under new section 31AA was consistent with the behaviour usually associated with a person who has consumed or used that drug or those drugs; and

the behaviour usually associated with a person who has consumed or used that drug or those drugs would result, in the case of a person operating the vessel, being unable to operate the vessel properly or, in the case of a master or pilot, being unable to direct the proper operation of the vessel

is, in the absence of evidence to the contrary but subject to new subsections (3C) and (3D), proof that the accused operated or was the master or pilot of a vessel underway or at anchor while impaired by a drug.

New section 28(3C) provides that, if on an analysis carried out in accordance with Part 2 of the Marine (Drug, Alcohol and Pollution Control) Act 1988, no drug other than a permissible non-prescription drug or a prescription drug was found present in the person's body, it is a defence to a charge under new paragraph (ba) of section 28(1) for the person charged to prove that

he or she did not know and could not reasonable have known that the permissible non-prescription drug or the prescription drug, or the combination of those drugs, so found would, if consumed or used in accordance with advice given to him or her by a registered medical practitioner, a dentist or a pharmacist in relation to the drug or combination of drugs, impair operating a vessel or, in the case of a master or pilot, directing the proper operation of the vessel; and

he or she consumed or used that drug or combination of drugs in accordance with that advice.

The effect of these provisions is to provide a defence to proceedings where the only drug or drugs found are permissible non-prescription drugs and permissible drugs (defined by reference to the Road Safety Act 1986) and the person could not reasonably have known that the drug or drugs consumed in accordance with the advice of a medical practitioner, dentist or pharmacist would impair operating or directing the proper operation of a vessel.

New section 28(3D) defines advice, for the purposes of the defence set out in new subsection (3C), to mean written or oral advice, including anything written on a label accompanying the drug.

Clause 6(5) of the Bill amends section 28(5) of the Marine (Drug, Alcohol and Pollution Control) Act 1988 to add reference to paragraphs (g) and (h) of section 28(1).

The effect of this change is that it is a defence to a charge under paragraphs (f), (g) and (h) of section 28(1) for the person charged to prove that the result of the analysis was not a correct result.

Paragraphs (f), (g) and (h) of section 28(10) relate to a person who has operated or has been the master or pilot of a vessel underway or at anchor where the prescribed concentration or more than the prescribed concentration of alcohol is present in the person's blood or oral fluid, or a prescribed illicit drug is present in that person's blood.

Clause 6(6) of the Bill inserts new section 28(6A) into the Marine (Drug, Alcohol and Pollution Control) Act 1988.

New section 28(6A) provides that in any proceedings for an offence under new paragraph (g) or (h) of section 28(1) evidence as to the effect of the consumption or use of a drug on the accused is admissible for the purpose of rebutting the presumption created by new section 27(1B) but is otherwise inadmissible.

The presumption created by new section 27(1B) is that, for the purposes of an alleged offence against new paragraphs (g) or (h) of section 28(1) of the Marine (Drug, Alcohol and Pollution Control) Act 1988, it must be presumed that a drug found by an analyst to be present in the sample of blood or oral fluid provided by, or taken from, the person charged was not due solely to the consumption or use of that drug after operating or being the master or pilot of a vessel underway or at anchor unless the contrary is proved by the person charged on the balance of probabilities by sworn evidence given by him or her which is corroborated by the material evidence of another person.

Clause 6(7) of the Bill inserts new sections 28(9) and (10) into the Marine (Drug, Alcohol and Pollution Control) Act 1988.

New section 28(9) provides that if on a prosecution for an offence under paragraph (a) of section 28(1), the court is not satisfied that the accused is guilty of that offence but is satisfied that the accused is guilty of an offence under new paragraph (ba) of section 28(1), the court may find the accused guilty of an offence under new paragraph (ba) and punish the accused accordingly.

New section 28(10) provides that if on a prosecution for an offence under new paragraph (ba) of section 28(1), the court is not satisfied that the accused is guilty of that offence but is satisfied that the accused is guilty of an offence under new paragraph (bb) of section 28(1), the court may find the accused guilty of an offence under paragraph (bb) and punish the accused accordingly.

The effect of these provisions is that if a prosecution for the first mentioned offences fails, the court can find the defendant guilty of the second, lesser offence.

Clause 7substitutes section 28A of the Marine (Drug, Alcohol and Pollution Control) Act 1988 to insert new provisions relating to the cancellation of, and disqualification from holding, marine licences and certificates of competency.

New section 28A(1) provides that, on convicting a person, or finding a person guilty of an offence under sections 28(1)(b), (e) or (f) the court may where

the concentration of alcohol

in the blood of that person was less than 005grams per 100 millilitres of blood; or

in the breath of that person was less than 005grams per 210 litres of exhaled air

as the case requires; and

the offence is a first offence

if the offender holds a marine licence or certificate of competency, cancel that licence or certificate and, whether or not the offender holds a marine licence or certificate of competency, disqualify the offender from obtaining one for such time as the court thinks fit, not being more than 6 months.

New section 28A(2) provides that, subject to subsection (3), on convicting a person, or finding a person guilty, of an offence under sections 28(1)(b), (e) or (f), the court must, if the offender holds a marine licence or certificate of competency, cancel that licence or certificate and, whether or not the offender holds a marine licence or certificate of competency, disqualify the offender from obtaining one for such time as the court thinks fit, not being less than

in the case of a first offence, the period specified in Column 2 of Schedule 1 to the Marine (Drug, Alcohol and Pollution Control) Act 1988 ascertained by reference to the concentration of alcohol in the blood or breath of the offender as specified in Column 1 of that Schedule; and

in the case of a subsequent offence, the period specified in Column 3 of Schedule 1 to the Marine (Drug, Alcohol and Pollution Control) Act 1988 ascertained by reference to the concentration of alcohol in the blood or breath of the offender as specified in Column 1 of that Schedule.

New section 28A(3) provides that if a court finds a person guilty of an offence under section 28(1)(b), (e) or (f) but does not record a conviction, the court is not required to cancel a marine licence or certificate of competency or disqualify the offender from obtaining one in accordance with subsection (2) if it appears to the court that at the relevant time the concentration of alcohol in the blood or breath of the offender

in the case of a person previously found guilty of an offence against any one of the paragraphs of section 28(1) or any previous enactment corresponding to any of those paragraphs or any corresponding law, was less than 005 grams per 100 millilitres of blood or 210 litres of exhaled air (as the case requires); or

in any other case, was less than 007 grams per 100millilitres of blood or 210 litres of exhaled air (asthe case requires).

New section 28A(4) provides that subsection (3)(b) does not apply to a person who, at the time the offence was committed, was under the age of 26 years.

New section 28A(5) provides that on convicting a person, or finding a person guilty, of an offence under sections 28(1)(a), (c), (cb) or (d), the court must, if the offender holds a marine licence or certificate of competency, cancel that licence or certificate and, whether or not the offender holds a marine licence or certificate of competency, disqualify the offender from obtaining one for such time as the court thinks fit, not being less than

in the case of a first offence, 2 years; and

in the case of a subsequent offence, 4 years.

New section 28A(6) provides that on convicting a person, or finding a person guilty of an offence under section 28(1)(ba), the court must, if the offender holds a marine licence or certificate of competency, cancel that licence or certificate and, whether or not the offender holds a marine licence or certificate of competency, disqualify the offender from obtaining one for such period as the court thinks fit, not being less than

in the case of a first offence, 12 months; and

in the case of a subsequent offence, 2 years.

New section 28A(7) provides that on convicting a person, or finding a person guilty of an offence under section 28(1)(ca) or (ea), the court must, if the offender holds a marine licence or certificate of competency, cancel that licence or certificate and, whether or not the offender holds a marine licence or certificate of competency, disqualify the offender from obtaining one for such period as the court thinks fit, not being less than

in the case of a first offence, 2 years; and

in the case of a subsequent offence, 4 years.

New section 28A(8) provides that on convicting a person, or finding a person guilty of an offence under section 28(1)(eb), the court must, if the offender holds a marine licence or certificate of competency, cancel that licence or certificate and, whether or not the offender holds a marine licence or certificate of competency, disqualify the offender from obtaining one for such period as the court thinks fit, not being less than

in the case of a first offence, 6 months; and

in the case of a subsequent offence, 12 months.

New section 28A(9) provides that on convicting a person, or finding a person guilty of an offence under section 28(1)(bb), (g) or (h), the court must, if the offender holds a marine licence or certificate of competency, cancel that licence or certificate and, whether or not the offender holds a marine licence or certificate of competency, disqualify the offender from obtaining one for such period as the court thinks fit, not being less than

in the case of a first offence, 3 months; and

in the case of a subsequent offence, 6 months.

New section 28A(10) provides that any period of suspension imposed on a person under section 28C must be deducted from the period of disqualification imposed on that person under section 28A.

New section 28A(11) provides that section 28A does not apply to a person who is convicted or found guilty of an accompanying operator offence.

Clause 8provides for the immediate suspension of a marine licence or certificate of competency in certain circumstances.

Clause 8(1) amends the heading to section 28C(1) of the Marine (Drug, Alcohol and Pollution Control) Act 1988 to insert, as an aid to interpretation, "or certificate of competency" after "marine licence", to clarify that the immediate suspension provisions apply to marine licences in respect of recreational vessels and certificates of competency, which apply to commercial vessels and are prescribed to apply to government vessels.

Clause 8(2)(a) substitutes "010 grams" for "015 grams" in section 28C(1)(a)(i) and (ii) of the Marine (Drug, Alcohol and Pollution Control) Act 1988 so that, where it is alleged that a certain concentration of alcohol is present in the blood or breath of a person, the requisite concentration of alcohol (010 grams) is the same as for equivalent offences in Victoria's road safety scheme under the Road Safety Act 1986.

Clause 8(2)(b) substitutes the phrase "operating a vessel or the master or pilot of a vessel underway or at anchor" for "the master of a registered recreational vessel or a regulated hire and drive vessel" in section 28C(1) of the Marine (Drug, Alcohol and Pollution Control) Act 1988. This is to ensure that the provision applies to operators, masters and pilots of all vessels.

Clauses 8(2)(c) and (d) amend section 28C(1) of the Marine (Drug, Alcohol and Pollution Control) Act 1988 to ensure that the immediate suspension provisions in section 28C apply to both marine licences (for recreational vessels) and certificates of competency (for commercial vessels).

Clause 8(3) of the Bill inserts new section 28C(1A) into the Marine (Drug, Alcohol and Pollution Control) Act 1988 to provide that if a person is charged by a member of the police force with an offence under paragraph (ba), (ca), (ea) or (eb) of section 28(1), any member of the police force may, at any time after the filing of the charge-sheet charging the offence until the charge has been determined, give to the accused a notice containing the prescribed particulars informing the accused that his or her marine licence or certificate of competency is immediately suspended until the charge has been determined and requiring the accused to surrender immediately to the person who gave the notice the licence document or certificate.

Clause 8(4) of the Bill amends section 28C(3) of the Marine (Drug, Alcohol and Pollution Control) Act 1988 to substitute "subsection (1) or (1A)" for "subsection (1)" and to insert "or certificate of competency" after "marine licence" so that the immediate suspension provisions in section 28C apply to operators, masters and pilots of recreational, government and commercial vessels.

Clause 9amends section 29 of the Marine (Drug, Alcohol and Pollution Control) Act 1988 to provide for preliminary breath testing.

For paragraph (a) of section 29(1), subclause (1) substitutes the words "(a) any person he or she finds to be operating a vessel". New section 29(1)(ab) is inserted to include the words "anyperson he or she finds to be the master or pilot of a vessel underway or at anchor". These provisions ensure that section29(1) applies to any person a member of the police force finds to be the operator of a vessel, or a master or pilot of a vessel underway or at anchor.

In section 29(1)(b), the words "involved in" are omitted so that the provision is consistent with the new provisions in the Marine (Drug, Alcohol and Pollution Control) Act 1988.

The words "to stop at or" are added after the word "signalling" toensure that a person may be required to undergo a preliminary breath test if the person has been directed to go to or stop at a preliminary breath testing station under section 30(3).

Clause 9(1)(c) of the Bill inserts new paragraph (ba) into section29(1) of the Marine (Drug, Alcohol and Pollution Control) Act 1988 for consistency with later provisions. Newparagraph (ba) provides that any person who is a master or pilot of a vessel underway or at anchor who has been requested or signalled to stop at or go to a preliminary breath testing station under section 30(3) may be required to undergo a preliminary breath test.

Clause 9(1)(d) of the Bill amends section 29(1)(c) of the Marine (Drug, Alcohol and Pollution Control) Act 1988. The words "operating a vessel or the master or pilot of a vessel underway or at anchor" are substituted for "the master of the vessel" to ensure that a person may be required to undergo a preliminary breath test by a prescribed device if, in the preceding 3 hours, he or she operated or was involved in the operation of a vessel or was the master or pilot of a vessel at anchor that was involved in a marine incident.

Clause 9(1)(e) of the Bill amends section 29(1)(d) of the Marine (Drug, Alcohol and Pollution Control) Act 1988. The words "underway or at anchor" are inserted after "an occupant of a vessel", and the phrase "the person operating the vessel or the master or pilot " is substituted for "the master ", to ensure that operators, masters and pilots are captured by this provision. Thereference to occupant is needed because section 29(1)(d) deals with the situation where it has not been established to the satisfaction of the member of the police force which person was the operator, master or pilot of the vessel as the case requires.

Clause 9(2) of the Bill substitutes section 29(3) of the Marine (Drug, Alcohol and Pollution Control) Act 1988 to provide that a person is not obliged to undergo a preliminary breath test if more than 3 hours have passed since the person was

operating a vessel; or

the master or pilot of a vessel underway or at anchor; or

an occupant of a vessel.

The reference to occupant is needed to deal with the situation where it has not been established to the satisfaction of the member of the police force which person was the operator, master or pilot of the vessel as the case requires.

Clause 10makes provision for preliminary breath testing stations.

A preliminary breath testing station is a place where a preliminary breath test is carried out. This is usually a temporary station set up, for example, at a boat ramp.

The master, pilot or operator of a vessel may be required to undergo a preliminary breath test under section 29 of the Marine (Drug, Alcohol and Pollution Control) Act 1988 at a preliminary testing station. A person who is required to undergo a drug assessment may also be required to furnish a sample of breath for analysis under new section 31(2AA) of that Act. Theperson has an obligation to provide a sample of breath when requested.

Clause 10(1) of the Bill amends section 30(2)(a) of the Marine (Drug, Alcohol and Pollution Control) Act 1988 with the effect that a preliminary breath testing station may consist of any facilities that are necessary to enable the making of preliminary breath tests or preliminary oral fluid tests in quick succession.

Clause 10(2) of the Bill amends section 30(3) of the Marine (Drug, Alcohol and Pollution Control) Act 1988 to substitute the words "or who is the master or pilot of a vessel underway, at anchor or aground" for the words "under way" so that a member of the police force who is on duty and wearing uniform may request or signal a person operating a vessel, or who is the master or pilot of a vessel which is underway, at anchor or has run aground, to go to a preliminary breath testing station.

Clause 11deals with breath analysis.

Clause 11(1) of the Bill substitutes new sections 31(1), (1A), (2) and (2AA) of the Marine (Drug, Alcohol and Pollution Control) Act 1988 for current sections 31(1) and (2).

New subsection (1) provides that subsection (1A) applies if a person undergoes a preliminary breath test when required to do so by a member of the police force under section 29 of the Marine (Drug, Alcohol and Pollution Control) Act 1988 and

the test in the opinion of the member in whose presence it is made indicates that the person's breath contains alcohol; or

the person, in the opinion of the member, refuses or failsto carry out the test in the manner specified in section29(2).

New subsection (1A) provides that a member of the police force may require the person to furnish a sample of breath for analysis by a breath analysing instrument and for that purpose may also require the person to accompany a member of the police force to a police station or other place where the sample of breath is to be furnished and to remain there until whichever of the following occurs first

the person has furnished the sample of breath and been given the certificate referred to in subsection (4);

the passing of 3 hours after the person was

operating a vessel; or

the master or pilot of a vessel underway or at anchor; or

an occupant of a vessel.

New subsection (2) provides that a member of the police force may require any person whom that member reasonably believes to have offended against section 28(1)(a) or (b) to furnish a sample of breath for analysis by a breath analysing instrument (instead of undergoing a preliminary breath test in accordance with section 29) and for that purpose may also require the person to accompany a member of the police force to a police station or other place where the sample of breath is to be furnished and to remain there until whichever of the following occurs first

the person has furnished the sample of breath and been given the certificate referred to in subsection (4);

the passing of 3 hours after the person was

operating a vessel; or

the master or pilot of a vessel underway or at anchor; or

an occupant of a vessel.

New subsection (2AA) provides that a member of the police force may require any person who is required to undergo a drug assessment under new section 31AA of the Marine (Drug, Alcohol and Pollution Control) Act 1988 to furnish a sample of breath for analysis by a breath analysing instrument and may, for that purpose, require the person to remain at the place at which the person is required to remain for the purposes of the drug assessment until whichever of the following occurs first

the person has furnished the sample of breath and any further sample required to be furnished under subsection (2A) and been given the certificate referred to in subsection (4) and the drug assessment has been carried out;

the passing of 3 hours after the person was

operating a vessel; or

the master or pilot of a vessel underway or at anchor; or

an occupant of a vessel.

Clause 11(3) of the Bill provides that, in section 31(2A) of the Marine (Drug, Alcohol and Pollution Control) Act 1988, reference to subsections 31(1), (2) and (2AA) are substituted for the reference to subsections 31(1) and (2).

Clause 11(4) of the Bill substitutes section 31(6) of the Marine (Drug, Alcohol and Pollution Control) Act 1988 to provide that a person is not obliged to furnish a sample of breath under section 31 if more than 3 hours have passed since the person was

operating a vessel; or

the master or pilot of a vessel underway or at anchor; or

an occupant of a vessel.

Clause 11(5) of the Bill provides that, in section 31(9A) of the Marine (Drug, Alcohol and Pollution Control) Act 1988, reference to section 31(1), (2), (2AA) and (2A) is substituted for the reference to section 31(1), (2) and (2A).

In addition, section 31(9A) is amended so that a person who is required to accompany a member of the police force to a place where a sample of that person's blood is to be taken may be required to remain there until whichever of the following occurs first

the sample has been taken;

the passing of 3 hours after the person was

operating a vessel; or

the master or pilot of a vessel underway or at anchor; or

an occupant of a vessel.

Clause 12amends section 31A(2) of the Marine (Drug, Alcohol and Pollution Control) Act 1988 so that if a person of or over the age of 15 years enters or is brought to a place for examination or treatment in consequence of a marine incident (whether in Victoria or not) involving a vessel, the person must allow a doctor to take from that person at that place a sample of that person's blood for analysis if the person was operating the vessel, or was the master or pilot of the vessel underway, at anchor or aground.

It is an offence to refuse to provide a sample of blood.

Clause 13inserts new sections 31AA to 31AE into the Marine (Drug, Alcohol and Pollution Control) Act 1988 and deals with the process and procedures for conducting drug assessments.

New section 31AA(1) provides that a member of the police force may at any time require

any person he or she finds operating a vessel; or

any person he or she finds to be a master or pilot of a vessel underway or at anchor; or

any person that is or has been operating a vessel that has been requested or signalled to stop at or to go to a preliminary testing station under section 30(3); or

any person that is or has been a master or pilot of a vessel underway or at anchor that has been requested or signalled to stop at or to go to a preliminary testing station under section 30(3); or

any person whom he or she believes on reasonable grounds has within the last 3 preceding hours operated a vessel or been the master or pilot of a vessel underway or at anchor when it was involved in an accident; or

any person whom he or she believes on reasonable grounds was, within the last 3 preceding hours, an occupant of a vessel underway or at anchor when it was involved in an accident, if it has not been established to the satisfaction of the member of the police force which of the occupants was operating the vessel or was the master or pilot of the vessel when it was involved in the accident; or

any person whom he or she has required under section29 to undergo a preliminary breath test; or

any person required under section 31 to furnish a sample of breath or from whom a sample of blood was required to be taken under section 31(9A)

to undergo an assessment of drug impairment if, in the opinion of the member, that person's behaviour or appearance indicates that he or she may be impaired for a reason other than alcohol alone and for that purpose may further require the person to accompany a member of the police force to a place where the assessment is to be carried out and to remain there until whichever of the following occurs first

the assessment has been carried out;

the passing of 3 hours after the person was

operating a vessel; or

the master or pilot of a vessel underway or at anchor; or

an occupant of a vessel.

New section 31AA(2) provides that a person is not obliged to undergo an assessment of drug impairment if more than 3 hours have passed since the person was

operating a vessel; or

the master or pilot of a vessel underway or at anchor; or

an occupant of a vessel.

New section 31AA(3) provides that an assessment of drug impairment must be carried out by a member of the police force authorised to do so by the Chief Commissioner of Police.

New section 31AA(4) provides that an assessment of drug impairment must be carried out in accordance with the procedure specified in a notice under new subsection (5).

New section 31AA(5) provides that the Director, Transport Safety may, by notice published in the Government Gazette, specify the procedure to be followed in assessing drug impairment.

New section 31AA(6) provides that the carrying out of an assessment of drug impairment must be video-recorded unless the prosecution satisfies the court that a video-recording has not been made because of exceptional circumstances.

New section 31AA(7) provides that if the person on whom an assessment of drug impairment was carried out is subsequently charged with an offence under paragraph (ba) of section 28(1), acopy of the video-recording, if any, must be served with the summons or, if a summons is not issued, within 7 days after the filing of the charge-sheet charging the offence.

New section 31AA(8) provides that, subject to new subsection (9), the video-recording of the carrying out of an assessment of drug impairment on a person is only admissible in a proceeding against that person for an offence against the Marine (Drug, Alcohol and Pollution Control) Act 1988 for the purpose of establishing that the assessment of drug impairment was carried out in accordance with the procedure specified in a notice under new subsection (5).

New section 31AA(9) provides that evidence obtained as a result of an assessment of drug impairment carried out on a person is inadmissible as part of the prosecution case in proceedings against that person for any offence if the video-recording of the assessment and any related material and information should havebeen but has not been destroyed as required by new section31AC.

New section 31AA(10) provides that in any proceeding under the Marine (Drug, Alcohol and Pollution Control) Act 1988

the statement of any member of the police force that on a particular date he or she was authorised by the Chief Commissioner of Police under new subsection (3) to carry out an assessment of drug impairment; or

a certificate purporting to be signed by the Chief Commissioner of Police that a member of the police force named in it is authorised by the Chief Commissioner under new subsection (3) to carry out an assessment of drug impairment

is admissible in evidence and, in the absence of evidence to the contrary, is proof of the authority of that member.

New section 31AB deals with blood and urine samples.

New section 31AB(1) provides that if a person undergoes an assessment of drug impairment when required under section31AA to do so and the assessment, in the opinion of the member of the police force carrying it out, indicates that the person may be impaired by a drug or drugs, any member of the police force may require the person to do either or both of the following

allow a registered medical practitioner or an approved health professional nominated by that member to take from the person a sample of that person's blood for analysis;

furnish to a registered medical practitioner or an approved health professional nominated by that member a sample of that person's urine for analysis

and for that purpose may further require the person to accompany a member of the police force to a place where the sample is to be taken or furnished and to remain there until whichever of the following occurs first

the sample has been taken or furnished;

the passing of 3 hours after the person was

operating a vessel; or

the master or pilot of a vessel underway or at anchor; or

an occupant of a vessel.

New section 31AB(2) provides that a member of the police force must not require a person to allow a sample of his or her blood to be taken for analysis under subsection (1)(a) if that person has already had a sample of blood taken from him or her under section 31 after the person was

operating a vessel; or

the master or pilot of a vessel underway or at anchor; or

an occupant of a vessel.

New section 31AB(3) provides that the registered medical practitioner or approved health professional who takes a sample of blood or is furnished with a sample of urine under section31AB must deliver a part of the sample to the member of the police force who required it to be taken or furnished and another part to the person from whom it was taken or by whom it was furnished.

New section 31AB(4) provides that a person must not hinder or obstruct a registered medical practitioner or an approved health professional attempting to take a sample of the blood, or be furnished with a sample of the urine, of any other person in accordance with section 31AB. The penalty is 12 penalty units.

New section 31AB(5) provides that no action lies against a registered medical practitioner or an approved health professional in respect of anything properly and necessarily done by the practitioner or approved health professional in the course of taking any sample of blood, or being furnished with any sample of urine, which the practitioner or approved health professional believed on reasonable grounds was required to be taken from, or be furnished by, any person under section 31AB.

New section 31AB(6) provides that if the person on whom an assessment of drug impairment was carried out is subsequently charged with an offence under paragraph (ba) of section 28(1), acopy of a written report on that assessment prepared by the member of the police force who carried it out and containing the prescribed particulars must be served with the summons or, if a summons is not issued, within 7 days after the filing of the charge-sheet charging the offence.

New section 31AC deals with the destruction of identifying information.

Section 31AC(1) provides that, in section 31AC, relevant offence means

an offence under section 28(1)(ba) or (ea); or

any other offence arising out of the same circumstances; or

any other offence in respect of which the evidence obtained as a result of the assessment of drug impairment has probative value.

New section 31AC(2) provides that if an assessment of drug impairment has been carried out on a person under section 31AA and

the person has not been charged with a relevant offence at the end of the period of 12 months after the assessment; or

the person has been so charged but the charge is not proceeded with or the person is not found guilty of the offence, whether on appeal or otherwise, before the end of that period

the Chief Commissioner of Police must, subject to subsection (4), destroy, or cause to be destroyed, at the time specified in subsection (3) any video-recording made of the assessment and any related material and information.

New section 31AC(3) provides that a video-recording and any related material and information referred to in subsection (2) must be destroyed

in a case to which subsection (2)(a) applies, immediately after that period of 12 months; or

in a case to which subsection (2)(b) applies

within 1 month after the conclusion of the proceeding and the end of any appeal period; or

if the proceeding has been adjourned under section 75 of the Sentencing Act 1991, within 1month after dismissal under that section.

New section 31AC(4) provides that a member of the police force may, before the end of a period referred to in new subsection (3)(b), apply without notice to the Magistrates' Court for an order extending that period and, if the Court makes such an order, the reference to the period in new subsection (3) is a reference to that period as so extended.

New section 31AC(5) provides that if the Magistrates' Court makes an order under new subsection (4), it must give reasons for its decision and cause a copy of the order to be served on the person on whom the assessment of drug impairment was carried out.

New section 31AC(6) provides that if a video-recording or related material and information is required to be destroyed in accordance with section 31AC, the Chief Commissioner of Police must, if the person on whom the assessment was carried out so requests, within 14 days after receiving the request, notify that person in writing whether the destruction has occurred.

New section 31AC(7) provides that a person who knowingly

fails to destroy; or

uses, or causes or permits to be used

a video-recording or related material and information required by section 31AC to be destroyed is guilty of an offence punishable by a fine of not more than 120 penalty units or to imprisonment for a term of not more than 12 months.

New section 31AC(8) provides that a person who at any time uses, or causes or permits to be used, or otherwise disseminates information derived from any video-recording or related material and information required by section 31AC to be destroyed except in good faith for the purposes of a relevant offence is guilty of an offence punishable by a fine of not more than 120 penalty units or to imprisonment for a term of not more than 12 months.

New section 31AD deals with preliminary oral fluid tests.

New section 31AD(1) provides that a member of the police force may at any time require

any person he or she finds operating a vessel; or

any person he or she finds to be a master or pilot of a vessel underway or at anchor; or

any person that is or has been operating a vessel that has been requested or signalled to stop at or to go to a preliminary testing station under section 30(3); or

any person that is or has been the master or pilot of a vessel underway or at anchor that has been requested or signalled to stop at or to go to a preliminary testing station under section 30(3); or

any person whom he or she believes on reasonable grounds has within the last 3 preceding hours operated a vessel or been the master or pilot of a vessel underway or at anchor when it was involved in an accident; or

any person whom he or she believes on reasonable grounds was, within the last 3 preceding hours, an occupant of a vessel underway or at anchor when it was involved in an accident, if it has not been established to the satisfaction of the member of the police force which of the occupants was operating the vessel or the master or pilot of the vessel when it was involved in the accident

to undergo a preliminary oral fluid test by a prescribed device and, for that purpose, may further require the person, if on board a vessel, to leave the vessel for the purpose of undergoing the test.

New section 31AD(2) provides that a preliminary oral fluid test must be carried out in accordance with the prescribed procedure.

New section 31AD(3) provides that a prescribed device may be comprised of a collection unit and a testing unit and one or more other parts.

New section 31AD(4) provides that a person required to undergo a preliminary oral fluid test must do so by placing the prescribed device, or the collection unit of the device, into his or her mouth and carrying out the physical actions that are necessary to ensure that, in the opinion of the member of the police force who, under section 31AD, is requiring the test to be undergone, a sufficient sample of oral fluid has been captured by the device or unit.

New section 31AD(5) provides that a member of the police force who, under this new section, is requiring another person to undergo a preliminary oral fluid test may give any reasonable direction as to the physical actions that are necessary for the person to undergo the test.

New section 31AD(6) provides that, without limiting section 30(3), a person required to undergo a preliminary oral fluid test is required to remain at the place at which the test is being carried out until the sample of oral fluid provided has been tested by a prescribed device.

New section 31AD(7) provides that a person is not obliged to undergo a preliminary oral fluid test if more than 3 hours have passed since the person was

operating a vessel; or

the master or pilot of a vessel underway or at anchor; or

an occupant of a vessel.

New section 31AE makes provision for oral fluid testing and analysis.

New section 31AE(1) provides that if a person undergoes a preliminary oral fluid test when required to do so under section31AD by a member of the police force and

the test, in the opinion of the member in whose presence it is made, indicates that the person's oral fluid contains a prescribed illicit drug; or

the person, in the opinion of the member, refuses or fails to carry out the test in the manner specified in new section 31AD(4)

any member of the police force may require the person to provide a sample of oral fluid for testing by a prescribed device and, if necessary, analysis by a properly qualified analyst and for that purpose may further require the person to accompany any member of the police force to a place where the sample is to be provided and to remain there until whichever the first occurs

the person has provided the sample and any further sample required to be provided under subsection (4), the sample has been tested by a prescribed device and the person has been given (if necessary) a part of the sample under subsection (11);

the passing of 3 hours after the person was

operating a vessel; or

the master or pilot of a vessel underway or at anchor; or

an occupant of a vessel.

An example is given: a person may be required to go to a police station, a public building or a police car to provide a sample of oral fluid under section 31AD.

New section 31AE(2) provides that a member of the police force may require any person who is required to undergo an assessment of drug impairment under section 31AA or to furnish a sample of breath for analysis by a breath analysing instrument under section31 to provide a sample of oral fluid for testing by a prescribed device and, if necessary, analysis by a properly qualified analyst within the meaning of section 32B and may, for that purpose, require the person to remain at the place at which the person is required to remain for the purposes of the assessment or furnishing the sample of breath until whichever the first occurs

the person has provided the sample of oral fluid and any further sample required to be provided under subsection (4), the sample has been tested by a prescribed device and the person has been given (if necessary) a part of the sample under subsection (11) and the assessment has been furnished (as the case requires);

the passing of 3 hours after the person was

operating a vessel; or

the master or pilot of a vessel underway or at anchor; or

an occupant of a vessel.

New section 31AE(3) provides that the provision of a sample of oral fluid under section 31AE must be carried out in accordance with the prescribed procedure.

New section 31AE(4) provides that the member of the police force who required a person to provide a sample of oral fluid to be provided under subsection (1) or (2) may require the person who provided it to provide one or more further samples if it appears to the member that the prescribed device is incapable of testing for the presence in the sample, or each of the samples, previously provided of a prescribed illicit drug because the amount of sample provided was insufficient or because of a power failure or malfunctioning of the device or for any other reason whatsoever.

New section 31AE(5) provides that only a member of the police force authorised in writing by the Chief Commissioner of Police, for the purposes of section 31AE, may carry out the procedure for the provision of a sample of oral fluid under section 31AE.

New section 31AE(6) provides that the Chief Commissioner of Police may only authorise a member of the police force for the purposes of section 31AE if satisfied that the member has the appropriate training to carry out the prescribed procedure for the provision of a sample of oral fluid under section 31AE.

New section 31AE(7) provides that a prescribed device may be comprised of a collection unit and a testing unit and one or more other parts.

New section 31AE(8) provides that a person required to provide a sample of oral fluid under section 31AE must do so by placing the prescribed device, or the collection unit of the device, into his or her mouth and carrying out the physical actions that are necessary to ensure that, in the opinion of the member of the police force, a sufficient sample of oral fluid has been captured by the device or unit.

New section 31AE(9) provides that a member of the police force who, under section 31AE, is requiring another person to provide a sample of oral fluid may give any reasonable direction as to the physical actions that are necessary for the person to provide the sample.

New section 31AE(10) provides that a person is not obliged to provide a sample of oral fluid under section 31AE if more than 3hours have passed since the person the person was

operating a vessel; or

the master or pilot of a vessel underway or at anchor; or

an occupant of a vessel.

New section 31AE(11) provides that if a test by a prescribed device of a sample of oral fluid provided under section 31AE indicates, in the opinion of the member of the police force who carried out the procedure in the course of which the sample was provided, that the person's oral fluid contains a prescribed illicit drug, the member must retain a part of the sample and deliver another part to the person by whom the sample was provided.

New section 31AE(12) provides that a person must not be convicted or found guilty of refusing to provide a sample of oral fluid in accordance with section 31AE if he or she satisfies the court that there was some reason of a substantial character for the refusal, other than a desire to avoid providing information which might be used against him or her.

New section 31AE(13) provides that the member of the police force who required a person to provide a sample of oral fluid under subsection (1) or (2) may require that person to allow a registered medical practitioner or an approved health professional nominated by the member who required the sample to take from the person a sample of that person's blood for analysis if it appears to the member that

that person is unable to furnish the required sample of oral fluid on medical grounds or because of some physical disability or condition; or

the prescribed device is incapable of testing for the presence in the sample of a prescribed illicit drug for any reason whatsoever

and for that purpose may further require that person to accompany a member of the police force to a place where the sample of blood is to be taken and to remain there until whichever of the following first occurs

the sample has been taken;

the passing of 3 hours after the person was

operating a vessel; or

the master or pilot of a vessel underway or at anchor; or

an occupant of a vessel.

New section 31AE(14) provides that the registered medical practitioner or approved health professional who takes a sample of blood under subsection (13) must deliver a part of the sample to the member of the police force who required it to be taken and another part to the person from whom it was taken.

New section 31AE(15) provides that a person who allows the taking of a sample of his or her blood in accordance with subsection (13) must not be convicted or found guilty of refusingto provide a sample of oral fluid in accordance with section31AE.

New section 31AE(16) provides that a person must not hinder or obstruct a registered medical practitioner or an approved health professional attempting to take a sample of the blood of any other person in accordance with subsection (13). The penalty is 12penalty units.

New section 31AE(17) provides that no action lies against a registered medical practitioner or an approved health professional in respect of anything properly and necessarily done by the practitioner or approved health professional in the course of taking any sample of blood which the practitioner or approved health professional believed on reasonable grounds was allowed to be taken under subsection (13).

New section 31AE(18) provides that a person who is required under section 31AE to provide a sample of oral fluid may, immediately after being given a part of the sample under subsection (11), request the member of the police force making the requirement to arrange for the taking, in the presence of any member of the police force, of a sample of that person's blood for analysis at that person's own expense by a registered medical practitioner or an approved health professional nominated by the member of the police force in whose presence the sample is taken.

New section 31AE(19) provides that a part of a sample of blood taken under subsection (18) must be delivered to the person who required the oral fluid sample to be provided under section 31AE.

New section 31AE(20) provides that nothing in subsection (18) relieves a person from any penalty under section 28(1)(eb) for refusing to provide a sample of oral fluid.

New section 31AE(21) provides that evidence derived from a sample of oral fluid provided in accordance with a requirement made under section 31AE is not rendered inadmissible by a failure to comply with a request under subsection (18) if reasonable efforts were made to comply with the request.

New section 31AE(22) provides that in any proceeding under the Marine (Drug, Alcohol and Pollution Control) Act 1988

the statement of any member of the police force that on a particular date he or she was authorised under section31AE(6) for the purposes of section 31AE; or

a certificate purporting to be signed by the Chief Commissioner of Police certifying that a particular member of the police force named in it is authorisedunder section 31AE(6) for the purposes ofsection 31AE

is admissible in evidence and, in the absence of evidence to the contrary, is proof of the authority of that officer or member.

Clause 14amends section 32(2) of the Marine (Drug, Alcohol and Pollution Control) Act 1988 to insert reference to the master or pilot of a vessel. The effect of the change is to provide that, in respect of evidentiary blood tests, if the question

whether any person was or was not at any time under the influence of alcohol or any other drug; or

as to the presence of alcohol or any other drug or the concentration of alcohol in the blood of any person at any time

or if a finding on the analysis of a blood sample is relevant on a hearing for an offe