EXPLANATORY STATEMENT

 

Select Legislative Instrument 2006 No. 164

 

Issued by the Authority of the Minister for Transport and Regional Services

 

National Transport Commission Act 2003

 

National Transport Commission (Model Legislation -- Intelligent Access Program) Regulations 2006

 

Section 52 of the National Transport Commission Act 2003 (the Act) provides that the Governor-General may make regulations, not inconsistent with the Act, prescribing all matters required or permitted by the Act to be prescribed or necessary or convenient to be prescribed for carrying out or giving effect to the Act.

 

The provisions of the Act are supported by the Inter-Governmental Agreement Regulatory and Operational Reform in Road, Rail and Intermodal Transport (IGA), which serves to formalise the cooperative arrangements between the Commonwealth, States and Territories and define the roles and responsibilities of the National Transport Commission (NTC), the Australian Transport Council (ATC) and the jurisdictions. Clause 14 of the IGA requires the Commonwealth to submit model legislation for inclusion in schedules to regulations under the Act.  The proposed Regulations would implement this commitment.

 

The purpose of the Regulations is to make provision for the use of an intelligent transport system known as the Intelligent Access Program as part of a system of nationally consistent road transport laws. The Intelligent Access Program is a program to allow heavy vehicles to have access, or improved access, to the road network in return for monitoring, by an intelligent transport system, of their compliance with specified access conditions.

 

The Regulations provide a single reference point for the Intelligent Access Program model legislation.  The States and Territories, and the Commonwealth where appropriate, may now  either reference or enact the substance of the model legislation in their own law thereby establishing and maintaining a nationally agreed regulatory framework.  This mechanism also facilitate future amendments to the model legislation as they are developed by the NTC and agreed by the ATC.

 

Section 9 of the Act requires the Commission to consult, where it is appropriate and practicable to do so, with governments and government bodies, industry representatives, representatives of people who live in regional or remote areas of Australia and other interested people, bodies and organisations.  As these regulations were made to meet the obligations set out in the IGA, the NTC established a reference group made up of representatives from the Australian Government, State and Territory road transport agencies, police and the road transport industry. The Model Legislation was subject to a two month public consultation period, in which it was published on the NTC website, and circulated to key stakeholders, including all road authorities, police and justice agencies, road transport industry associations, the Transport Workers Union and Privacy Commissioners. The Model Legislation has also been reviewed by expert legal counsel.

 

Comments made were considered and taken into account by the NTC.  Transport Agency Chief Executives and the Australian Transport Council were provided with copies of the draft regulations.  The main focus has been to ensure that the regulations clearly set out the agreed reforms and also facilitate the making of future amendments to those reforms.

 

Details of the Regulations are set out in Attachment A.

 

Section 7 of the Act provides that the regulations may set out model legislation, being legislation developed by the National Transport Commission in accordance with the IGA. Paragraph 7(2)(a) provides that model legislation does not have the force of law.  The schedules to the regulations serve only as a repository for nationally agreed reforms, which may then be implemented by jurisdictions.

 

Item 44 of the table in subsection 44(2) of the Legislative Instruments Act 2003 and item 7 of Schedule 2 to the Legislative Instruments Regulations 2004 provide that the Regulations are not subject to disallowance.  In addition, item 51 of the table in subsection 54(2) of the Legislative Instruments Act 2003 and item 4 of Schedule 3 to the Legislative Instruments Regulations 2004 provide that the Regulations are not subject to sunsetting.

 

The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.

 

The Regulations commence on the day after they are registered.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

ATTACHMENT

 

National Transport Commission (Model Legislation -- Intelligent Access Program) Regulations 2006

 

Regulation 1 -- Name of Regulations

 

This regulation provides that the title of the Regulations is the National Transport Commission (Model Legislation -- Intelligent Access Program) Regulations 2006.

 

Regulation 2 -- Commencement

 

This regulation provides for the regulations to commence on the day after they are registered.

 

Regulation 3 -- Model legislation -- Intelligent Access Program

 

This regulation provides that the Schedule to the regulations sets out model legislation, in the form of a Bill for an Act, about the Intelligent Access Program (IAP), for the purposes of section 7 of the National Transport Commission Act 2003.

 

Schedule 1 -- Text of the draft Bill for the Road Transport (Intelligent Access Program) Act 2005

 

The text in Schedule 1 sets out the model legislation, in the form of a Bill for an Act (the Road Transport (Intelligent Access Program) Act 2005). The model legislation makes provision in relation to the use of an intelligent transport system known as the Intelligent Access Program as part of a system of nationally consistent road transport laws.

 

Part 1              Preliminary

 

Clause 1 provides the Act may be cited as the Road Transport (Intelligent Access Program) Act 2005.

 

Clause 2 provides that the Act commences on a day or days determined by the jurisdiction to be fixed by proclamation.

 

Clause 3 defines the IAP as a program to allow heavy vehicles to have access, or improved access, to the road network in return for monitoring, by an intelligent transport system, of their compliance with specified access conditions.

 

Clause 4 is the definitions section.

 

Clause 5 provides that the Act is to be read as one with the relevant jurisdictional Act that corresponds to the model Road Transport Reform (Compliance and Enforcement) Act 2003. The Bill for this Act is found in Schedule 1 to the National Transport Commission (Road Transport Legislation -- Compliance and Enforcement Bill) Regulations 2006, one of the 28 regulations approved by the Governor-General on the advice of the Executive Council on 15 February 2006.

 

Clause 6 provides that nothing in this Act has the effect of preventing or excluding any other method of enforcement of a road law.

 

Part 2              Powers and duties of Authority in relation to IAP

 

This Part covers the powers and duties of the Authority. The Authority is defined in the model Road Transport Reform (Compliance and Enforcement) Act 2003, which is located in Schedule 1 to the National Transport Commission (Road Transport Legislation -- Compliance and Enforcement Bill) Regulations 2006, approved by the Governor-General on the advice of the Executive Council on 15 February 2006. The Authority is defined as the appropriate Authority identified by the jurisdiction when implementing the legislation.

 

Clause 7 defines an IAP condition, and what it must (and may) specify.

 

Clause 8 provides that the Authority may specify these IAP conditions, and may combine them with a mass, dimension or load restraint concession within the meaning given by the relevant provision of the Act corresponding to the model Road Transport Reform (Compliance and Enforcement) Act 2003.

 

Clause 9 provides that the Authority may issue an IAP identifier for an IAP vehicle, and if it is or becomes known to a person or entity who has the ability to associate it with a particular individual, the person or entity must treat the identifier as personal information for the purposes of the relevant law relating to privacy.

 

Part 3              Duties and obligations of operators of vehicles

 

This Part covers the duties and obligations of the operator of an IAP vehicle. Whether a person is considered the 'operator' of a IAP vehicle defined by the meaning of the term operator which is found in the model Road Transport Reform (Compliance and Enforcement) Act 2003, which is located in Schedule 1 to the National Transport Commission (Road Transport Legislation -- Compliance and Enforcement Bill) Regulations 2006, approved by the Governor-General on the advice of the Executive Council on 15 February 2006.

 

Clause 10 contains two offence provisions in relation to the operator of an IAP vehicle providing false or misleading information to IAP service provider.

 

Clause 11 provides privacy protection for drivers,  by requiring that the operator of an IAP vehicle has an obligation to take reasonable steps to tell drivers, before the vehicle begins a journey, about collection of personal information and other matters in the IAP. It defines what this constitutes and creates an offence for failure to do so.

 

Clause 12 provides for an obligation on the operator of an IAP vehicle to report a system malfunction to the Authority. There is an offence for a failure to do so.

 

Part 4              Duties of vehicle drivers

 

Clause 13 mirrors clause 12, above, by placing an obligation on the driver of an IAP vehicle to report a system malfunction to the operator. There is an offence for a failure to do so.

 

 

Part 5              Duties, powers and obligations of IAP service providers

 

This Part covers the duties, powers and obligations of an IAP service provider. An IAP service provider is defined in clause 4.

 

Clause 14 provides that an IAP service provider must not use or disclose IAP information otherwise than as required or authorised by or under this Act or any other law. There is an offence for disclosure in violation of this clause.

 

Clause 15 establishes the IAP service providers' powers to collect, store, use and disclose IAP information. The clause imposes important legal obligations on IAP service providers for the handling and disclosing of any information received through the operation of the program, to ensure the protection of personal information. The IAP adopts the highest level of privacy protection found in Australian law. Use and disclosure of IAP information must be consistent with privacy principles and laws applying in individual jurisdictions. IAP service providers may only obtain, use and disclose IAP information for the limited purposes of enforcing the IAP and approved road transport compliance schemes, and may only disclose that information to police and the Authority for law enforcement purposes.

 

Clause 16 details the record-keeping duties relating to the use and disclosure of information by an IAP service provider under clause 15. It details the type of records that must be kept and the time period they must be kept for.

 

Clause 17 details the obligations on IAP service providers in regard to quality and security of IAP information that is collected, stored, used and disclosed. This includes a right of access by individuals to their personal information.

 

Clause 18 details the obligations of IAP service providers to keep records of information they collect and store. It includes requirements to keep certain records for a period, and requirements to take reasonable steps to destroy certain information after a period. The clause balances the need to have certain IAP information available for prosecutions within defined timeframes, and the need to destroy personal information as required by privacy principles.

 

Clause 19 details the obligations of IAP service providers to make individuals aware of personal information held about them. This includes requirements for responding to a request from a person who seeks access to their personal information being held. This clause is consistent with privacy principles in relation to access to records containing personal information.

 

Clause 20 outlines the IAP service provider's obligation to make non-compliance reports to the Authority. It creates an offence for an IAP service provider for failure to make a non-compliance report under specified circumstances. While clause 15 enables the IAP service provider to disclose IAP information to an Authority for compliance purposes, this clause is specifically related to non-compliance reports.

 

Clause 21 details the IAP service provider's obligation to report tampering with an intelligent transport system (ITS). Where the IAP service provider knows or has reasonable grounds to suspect that an approved ITS has been tampered with, the service provider must report that information to the Authority. However, this obligation is not triggered merely because information contained in a non-compliance report or through electronic detection or analysis of data in the approved ITS may provide grounds for suspecting that tampering has occurred. Where an IAP service provider knows or has reasonable grounds to suspect that an approved intelligent transport system has been tampered with, they must not disclose that they have that knowledge or suspicion to any person other than the Authority; or disclose any information from which the person to whom the disclosure is made could reasonably infer that the provider had that knowledge or suspicion.

 

Clause 22 creates an offence for an IAP service provider providing false or misleading information to an Authority or Transport Certification Australia (TCA).

 

Part 6              Duties, powers and obligations of TCA

 

This Part covers the duties, powers and obligations of TCA. TCA is the company set up and run by jurisdictions to manage the certification and audit regime for the IAP.

 

Clause 23 lists the functions of TCA, for the purpose of this Act. TCA is defined in the definitions section, and its functions are taken from its company constitution.

 

Clause 24 details TCA's duties in regard to use and disclosure of information an IAP. It is subject to the provisions of clauses 26 and 27.

 

Clause 25 details specifically the powers of TCA to collect, store, use and disclose IAP information for the performance of its functions and for law enforcement purposes. It may use or disclose it in other circumstances with the consent of a participating operator, as long as personal information has been irretrievably de-personalised. 

           

Clause 26 details the power of TCA to disclose certain IAP information to the Authority or a police officer for law enforcement purposes if authorised by a warrant. The clause is not intended to alter the existing laws relating to warrants in jurisdictions.

 

Clause 27 allows TCA to use or disclose information for research purposes, but only if the information contains no personal information.

 

Clause 28 details TCA's obligations to ensure all the information it collects is necessary for, or is directly related to, the purpose for which it is collected; is not excessive for that purpose; and is accurate, up-to-date and complete.

 

Clause 29 outlines TCA's obligation to keep the information it collects secure. This obligation is multi-faceted. It includes an obligation to take reasonable steps to protect IAP information collected by TCA against unauthorised access, unauthorised use, misuse, loss, modification or unauthorised disclosure. It also includes an obligation to destroy IAP information (including personal information) after 1 year unless the information is required as evidence. This is consistent with privacy principles, and ensures that personal information is removed.

 

Clause 30 outlines TCA's obligations to keep records of its transactions, and its rights and responsibilities in relation to a request for personal information. Additionally it provides that, with the consent of a participating operator, TCA may use or disclose IAP information about the operator for any purpose if the information does not identify any individual and contains nothing by which the identity of any individual can reasonably be ascertained.

 

Clause 31 details the obligations that TCA must keep and retain records of its transactions with the Authority, IAP service providers and IAP auditors. TCA must keep a non compliance report for at least 4 years after its receipt and must retain any other record for at least 1 year after the record is made.

 

Clause 32 provides for TCA's obligations to correct errors. TCA must take reasonable steps to ensure that personal information that it collects is accurate, complete, up-to-date and not misleading. If so requested by a participating operator or an IAP service provider, TCA must make appropriate alterations to any personal information it holds to ensure this.

 

Clause 33 provides for TCA's obligations to report tampering.

 

Part 7              Duties, powers and obligations of IAP auditors

 

This Part covers the duties, powers and obligations of an IAP auditor, who is defined in clause 4.

 

Clause 34 defines what the process of an IAP audit involves.

 

Clause 35 details an IAP auditor's obligations in relation to the disclosure of IAP information to third parties, the accuracy of the information and record-keeping in relation to disclosure.

 

Clause 36 provides for the power of a IAP auditor to collect, store, use and disclose IAP information for the performance of its functions.

 

Clause 37 provides for the IAP auditor's obligations in regard to collecting IAP information. Specifically it should only collect information that is reasonably necessary for the performance of its function. For the information it does collect, it must ensure that it does not intrude on the privacy of an individual to an unreasonable extent.

 

Clause 38 provides for the IAP auditor's obligations to keep the information it collects secure and to ensure that it is protected from unauthorised access. This includes an obligation to destroy personal information or irretrievably de-personalise it.

 

Clause 39 provides for the IAP auditor's obligations to make individuals aware of personal information held. If an individual so requests, an IAP auditor must take reasonable steps to inform him or her of the personal information held under specified circumstances.  An IAP auditor must, on request by an individual about whom the IAP auditor holds personal information, give him or her access to the information, and must do so without undue delay or cost.

 

Clause 40 details the IAP auditor's obligations to keep records of transactions.

 

Clause 41 details the IAP auditor's obligations to correct errors.

 

Clause 42 provides that an IAP auditor must report a known breach by an IAP service provider of the provider's obligations under this Act, to TCA. There is an offence for failure to do so.

 

Clause 43 provides for the IAP auditor's obligation to report tampering to TCA. An IAP auditor must report the case of tampering or suspected tampering by a participating operator to the Authority; or in the case of tampering or suspected tampering by an IAP service provider to the TCA. It is an offence for failure to do so.

 

 

Part 8              Tampering with approved intelligent transport systems

 

Clause 44 defines the meaning of tampering.

 

Clause 45 creates an offence for tampering with an approved intelligent transport system.

 

Part 9              Evidence

 

Clause 46 provides that for the purpose of this Part, a reference to a particular specified time includes a specified date and during a specified period.

 

Clause 47 details the various certificates that may be signed by the Authority and which are admissible in evidence and prima facie evidence of what they state. Such documents are also given the presumption of correct authorisation.

 

Clause 48 provides for evidentiary presumptions in relation to the intelligent access maps (defined in clause 4).

 

Clause 49 provides for evidentiary presumptions in relation to other certificates by TCA, that are admissible in evidence and prima facie evidence of what they state.

 

Clause 50 provides an evidentiary presumption to the effect that the equipment and software making up an approved intelligent transport system is presumed (unless evidence sufficient to raise doubt about the presumption is adduced) to have operated correctly on any particular occasion.

 

Clause 51 provides an evidentiary presumption in relation to a statement of a vehicle's position on the surface of the earth at a particular time, in a non-compliance report.

 

Clause 52 provides an evidentiary presumption for the accuracy of IAP information generated, recorded and stored by an approved intelligent transport system.

 

Clause 53 provides for an evidentiary presumption for non-compliance reports and reports generated under clause 21.

 

Clause 54 provides for a certificate of authority relating to any mathematical procedure in relation to IAP information.

 

Part 10            Miscellaneous

 

Clause 55 is the regulation making power.