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1
Transport Legislation Amendment
TRANSPORT LEGISLATION
AMENDMENT BILL 1999
EXPLANATORY NOTES
GENERAL OUTLINE
OBJECTIVES OF THE LEGISLATION
The objective of the Transport Legislation Amendment Bill 1999 is to
provide for a number of amendments to a range of statutes administered by
the Department of Transport and Department of Main Roads.
REASONS FOR THE BILL
To clarify under the Transport Infrastructure Act 1994, a number of
powers to be used by the Minister or Chief Executives of the
Department of Transport or Department of Main Roads particularly
concerning air transport infrastructure, road works and management of
public marine facilities and certain waters.
To amend the Transport Operations (Marine Pollution) Act 1995 with
respect to ship board waste management and recovery of expenses
incurred by the Chief Executive following a pollution incident, as well
as amendments to a definition used in the Act.
To amend the Transport Operations (Passenger Transport) Act 1994
with respect to driver authorisation and operator accreditation, and with
respect to fare evasion and other misconduct on vehicles, other than
trains.
Minor amendments are made to the Traffic Act 1949 and Transport
Operations (Road Use Management) Act 1995.
ESTIMATED COSTS FOR GOVERNMENT
IMPLEMENTATION
No costs are estimated for governmental implementation of these
amendments.
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Transport Legislation Amendment
RESULTS OF CONSULTATION
The proposed amendments have been supported.
CONSISTENCY WITH FUNDAMENTAL LEGISLATIVE
PRINCIPLES
The Legislative Standards Act 1992 defines fundamental legislative
principles ("FLPs") as "principles relating to legislation that underlie a
parliamentary democracy based on the rule of law".
The amendments depart from FLPs as follows:-
Limited access roads
Management of access between State-controlled roads and particular
adjacent property
Road access works within State-controlled road
Person other than owner or occupier may also be bound by decision
under S 52(1)
Annual levies imposed by the Transport Infrastructure Act 1994
Subject matter for waterway transport management plan
LIMITED ACCESS ROADS
The Transport Infrastructure Act 1994 is to be amended by clause 17 of
the Bill by replacement of SS 51 to 56 of that Act.
The Fundamental Legislative Principle
The legislation makes rights and liberties, or obligations, dependent on
administrative power only if the power is sufficiently defined and subject to
appropriate review (Section 4(3)(a) Legislative Standards Act 1992).
The Departure
The new clause 17 replaces SS 51 to 56 with replacement legislative
provisions associated with the review of the legislative regime dealing with
accesses between adjacent properties and State-controlled roads with special
provisions for limited access roads.
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Transport Legislation Amendment
The new S 51C details the information to be included in the notice of a
declaration of a State-controlled road or notice of a policy in relation thereto.
This information includes the location where a policy can be inspected. The
new S 51D however states that provided the original policy is not published
in the gazette the changes that merely amend or repeal specific provisions
for one or more particular properties need not be published in the gazette.
The Reason for the Departure
The changes to a policy affecting particular properties are not of such
general importance that would warrant an advertisement in the gazette.
Changes to the policy which affected one or more particular properties
would generally not be made on the initiative of the chief executive. The
changes would result from a request by a property owner or occupier to
change the policy as it affects their property. In such instances the property
owner or occupier would be aware of the change to the policy. A
prospective purchaser of a property would, on checking the gazette, become
aware that the policy was subject to minor changes and could view the
amended policy. Changes to the policy regarding one or more particular
properties can be inspected at the location stated in the gazette notice. The
notice will make it clear that the policy may be changed in a minor way
without the revised policy being gazetted. Any change to the policy that a
current owner or occupier was not made aware of, would be required to be
gazetted. Also significant changes to the policy would be dealt with as
replacing the original policy and a gazette notice would be required.
MANAGEMENT OF ACCESS BETWEEN
STATE-CONTROLLED ROAD AND A PARTICULAR
ADJACENT PROPERTY
The Departure
Section 52 provides for management of access between State-controlled
roads (including limited access roads) and adjacent land.
As outlined in the definitions, land adjacent to a State-controlled road
includes land which gains access by way of a registered easement to and
from the State-controlled road.
On his own initiative or on the application of an owner of land adjacent to
a State-controlled road, the chief executive has the power to determine, or
vary, the basis of traffic movement between a State-controlled road and
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Transport Legislation Amendment
adjacent land. It is envisaged that if a property abuts more than one
State-controlled road, a single determination may address access
arrangements to a number of State-controlled roads.
As an example a person with an interest in land would include a native
title holder, an owner of freehold land, a lessee of leasehold land, or an
occupier.
The determination of the chief executive could include the types of
vehicles which may or may not use the means of access and their frequency
of use (eg. 40 12 tonne truck trips per day for a quarry), or, even the
prohibition of traffic at a particular point or along an entire frontage (or
frontages).
Some examples of conditions which may be applied are included. The
determination by the chief executive may specify the use, conditions and
restrictions on the use of, a road access location and/or road access works,
and the type and/or form of physical access works.
Physical access works may extend from inside the particular property to
within the State-controlled road, to the traffic lanes of the road.
The approval of the access arrangement or part of the access arrangement
may indicate that the approval expires at some future date or when some
particular event occurs eg. when a planned roundabout is constructed
nearby.
The chief executive may make his determination in response to an
application for construction of a road access location or works, in response
to a development application, or in response to an owner or person with an
interest in the land seeking to, or having been directed to, have their access
arrangements approved. Alternatively, he may make a determination on his
or her own initiative.
The chief executive may require particular works to be removed within a
reasonable stated time, thirty days is generally considered to be reasonable.
However, if the safety of road users is threatened, a shorter stated time may
be reasonable.
As per Schedule 2, a merits appeal lies against a determination by the
chief executive in relation to access between a State-controlled road and
particular adjacent land.
Any person adversely affected by this amendment is also entitled to
judicial review of the decision of the chief executive.
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Transport Legislation Amendment
This section affects the common law right of a person to enter on to land.
Although this common law right can be affected by, in this instance,
statutory reform of the law, this amendment to a person's common law
rights should be noted.
The Reason for the Departure
The underlying reasons for affecting this common law right are safety
and the efficient management of the road network that best contributes to the
economic productivity of the State. A merits appeal lies against a
determination by the chief executive in relation to access between a
State-controlled road and particular adjacent land.
The Judicial Review Act 1991 applies with respect to a determination by
the chief executive providing further protection to any person affected by
this amendment.
The current provisions of the Transport Infrastructure Act 1994 provide
the same statutory reform of the common law. The proposed provisions
require that compensation be paid in all instances where the chief executive
has acted on his or her own initiative. This represents a fairer compensation
regime as the present scheme permits the chief executive to make a decision
on his or her own initiative, which results in a complete prohibition of
access to a property, and no compensation would be payable unless the
access prohibited was previously approved.
ROAD ACCESS WORKS WITHIN STATE-CONTROLLED
ROAD
The new clause 17 replaced SS 51 to 56 with legislative provisions
associated with the review of the legislative regime dealing with accesses
between adjacent properties and State-controlled roads with special
provisions for limited access roads.
The Departure
The new S 52D clarifies that construction of road access works on a
State-controlled road does not give the land owner or occupier any rights to
the ownership of the works. This new clause also clarifies that regardless of
the new S 52C, the chief executive may exercise their powers to change or
remove works wholly within the State-controlled road without regard to
those restrictions.
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Transport Legislation Amendment
Pursuant to new S 52D(2), a decision pursuant to new S 52(1) can be
amended without a person being affected by that amended decision being
notified of that decision.
The Reason for the Departure
This section removes doubt associated with the effects of a decision
made by the chief executive pursuant to new S 52(1). It is intended to clarify
the effects of a decision pursuant to new S 52(1) rather than confirm new
rights or obligations.
These rights and obligations are currently accepted practice.
This section clarifies that the chief executive has the power to upgrade the
road works within the area of land that is designated as State-controlled
road. Normally some form of public consultation would be performed
prior to the performance of such works. This provision makes it clear that a
decision under S 52 is not required to be considered or made (with respect
to a particular property) provided that the property's boundary access works
and on-site functionality are not affected.
Such works within the road reserve are specifically excluded with respect
to payment of compensation. There is concern that if a person receives a S
52 notification in this instance, they may believe (wrongly) that they are
entitled to some form of compensation. Should an agreement be in force
which requires him to do so, the chief executive must notify the property
own of changes in the road reserve which affect him or her.
PERSON OTHER THAN OWNER OR OCCUPIER MAY ALSO
BE BOUND BY A DECISION UNDER S 52(1)
The new clause 17 replaced SS 51 to 56 with replacement of legislative
provisions associated with the review of the legislative regime dealing with
accesses between adjacent properties and State-controlled roads with special
provisions for limited access roads.
The Fundamental Legislative Principle
The legislation makes rights and liberties, or obligations, dependent on
administrative power only if the power is sufficiently defined and subject to
appropriate review (Section 4(3)(a) Legislative Standards Act 1992)).
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Transport Legislation Amendment
The legislation has sufficient regard to rights and liberties of individuals
depends on whether for example, the legislation is consistent with principles
of natural justice (Section 4(3)(b) Legislative Standards Act 1992)).
The Departure
The new section 52F allows the chief executive to give a person other
than the original owner and occupier a notice of the determination and
therefore bind them by the determination. Appeals against the original
determination do not apply to future owners and occupants nor other
persons given a notice. Offences pursuant to new s 53 then apply to persons
that have received such a notice. A new owner is entitled to compensation
(as if they were the original owner) in accordance with SS 56 and 57, if a
new determination is made pursuant to new S 52(1).
The Reasons for the Departure
This amendment is necessary to ensure once a chief executive has made a
decision pursuant to S 52(1) the decision continues to apply to that land
despite subsequent changes in ownership or occupation with respect to that
land.
Under S 52E a prospective owner can apply to the chief executive to get a
copy of the decision which they will be bound by.
Also there is nothing stopping a new owner making an application
requesting that a new decision be made by the chief executive. This new
decision would be appealable.
ANNUAL LEVY
The Transport Infrastructure Act 1994 is to be amended by clause 21 of
the Bill so that a railway manager must pay a levy prescribed under a
regulation for each year of an accreditation.
The Fundamental Legislative Principle
Whether the Bill has sufficient regard to the institution of Parliament
depends on whether, for example, the Bill sufficiently subjects the exercise
of a delegated legislative power to the scrutiny of the Legislative Assembly
(Section 4(4)(b) Legislative Standards Act 1992).
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Transport Legislation Amendment
The Departure
The new clause 21 authorises a levy to be prescribed under a regulation
for each year of an accreditation.
The Reasons for the Departure
Although the levy is prescribed by regulation, the process of enacting
subordinate legislation includes the requirement for a Regulatory Impact
Statement to be prepared, pursuant to the Statutory Instruments Act 1992.
Therefore any regulation made by the Governor-in-Council is subject to
disallowance by the Legislative Assembly and it is considered that this
presents an appropriate degree of transparency and accountability which
would only otherwise be achieved by prescribing in the Act detail of the
levy. This would mean the flexibility of the levy to accommodate changing
circumstances in rail management and operation would be unduly
constrained requiring a Bill of Parliament to effect change.
CALCULATION OF A LEVY
The Transport Infrastructure Act 1994 is to be amended by clause 30 of
the Bill, by the insertion into schedule 1 of a new S 20 by allowing the chief
executive to impose a levy on a person who has a tenure over boat harbour
land managed by the chief executive as a contribution towards the dredging
of, and the maintenance of, public marine transport infrastructure.
The Fundamental Legislative Principle
Whether the Bill has sufficient regard to the institution of Parliament
depends on whether, for example, the Bill sufficiently subjects the exercise
of a delegated legislative power to the scrutiny of the Legislative Assembly
(Section 4(4)(b) Legislative Standards Act 1992).
The Departure
The new clause 30 inserts a new S 20 into schedule 1 which will
authorise the imposition of a levy on a person who has a tenure over boat
harbour land managed by the chief executive as a contribution towards the
dredging of, and maintenance of, public marine transport infrastructure.
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Transport Legislation Amendment
The Reasons for the Departure
Although prescribed by regulation, the process of enacting subordinate
legislation includes the requirement for a Regulatory Impact Statement to be
prepared, pursuant to the Statutory Instruments Act 1992.
Therefore any regulation made by the Governor-in-Council is subject to
disallowance by the Legislative Assembly and it is considered that this
presents an appropriate degree of transparency and accountability which
would only otherwise be achieved by prescribing in the Act detail of the
levy. This would mean the flexibility of the levy to accommodate changing
circumstances in public marine transport infrastructure management and
operation would be unduly constrained requiring a Bill of Parliament to
effect change.
SCHEDULE 1A--SUBJECT MATTER FOR WATERWAY
TRANSPORT MANAGEMENT PLANS
The Transport Infrastructure Act 1994 is to be amended by clause 31 of
the Bill which inserts a new schedule 1A into the Act. The new schedule
details the subject matter for a Waterway Transport Management Plan.
Section 7 of that schedule states that a levy can be placed on marina owners,
as a contribution towards the dredging of, and the maintenance of, public
marine transport infrastructure.
The Fundamental Legislative Principle
Whether the Bill has sufficient regard to the institution of Parliament
depends on whether, for example, the Bill sufficiently subjects the exercise
of a delegated legislative power to the scrutiny of the Legislative Assembly
(Section 4(4)(b) Legislative Standards Act 1992).
The Departure
The new clause 31 inserts a new schedule 1A into the Act. The new
schedule will authorise the imposition of a levy on a marina owner as
contribution towards the dredging of, and maintenance of, public marine
transport infrastructure.
The Reasons for the Departure
Although prescribed by regulation, the process of enacting subordinate
legislation includes the requirement for a Regulatory Impact Statement to be
prepared, pursuant to the Statutory Instruments Act 1992.
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Transport Legislation Amendment
Therefore any regulation made by the Governor-in-Council is subject to
disallowance by the Legislative Assembly and it is considered that this
presents an appropriate degree of transparency and accountability which
would only otherwise be achieved by prescribing in the Act detail of the
levy. This would mean the flexibility of the levy to accommodate changing
circumstances in waterway transport management plans would be unduly
constrained requiring a Bill of Parliament to effect change.
NOTES ON CLAUSES
PART 1--PRELIMINARY
Clause 1 states the short title of the Act is to be the Transport Legislation
Amendment Act 1999.
Clause 2 states how and when this Act commences.
PART 2--AMENDMENT OF TRAFFIC ACT 1949
Clause 3 states this part amends the Traffic Act 1949.
Clause 4 omits Part 4. This part provided for passenger transport fare
and misconduct matters which will now be provided for in the Transport
Operations (Passenger Transport) Act 1994. This amendment is
complementary to clause 65.
Clause 5 omits S 62 which enabled part of a penalty recovered in relation
to fare evasion offence to be remitted to an aggrieved person. This
amendment is complementary to clauses 4, 65 and 66.
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Transport Legislation Amendment
PART 3--AMENDMENT OF TRANSPORT
INFRASTRUCTURE ACT 1994
Clause 6 states this part amends the Transport Infrastructure Act 1994.
Clause 7 states that the long title of the Transport Infrastructure Act
1994 is amended by inserting the words, "and related matters".
Clause 8 amends S 2(2) of the Transport Infrastructure Act 1994 by
inserting a new objective (f) and (g) concerning air transport infrastructure
and public marine transport infrastructure.
Clause 9 amends S 9 to reflect the responsibility that rests with the chief
executive for ensuring government supported transport infrastructure
construction, maintenance and operation is efficient, of affordable quality
and cost effective. The amendment removes the same responsibilities from
the boards of Queensland Rail and each port authority, in order that these
transport government owned corporations (transport GOCs) operate under
the same obligations as others in the same market. However, independent of
this legislation, these transport GOCs boards still have an organisational
responsibility to achieve outcomes of efficiency, affordable quality and cost
effectiveness, as part of their commercial charter.
Clause 10 amends S 10 to reflect changes made to S 9 by clause 6, by
omitting Queensland Rail's and each port authority's annual report
requirement to disclose the way in which effect has been given to S 9.
Clause 11 inserts a new chapter 4A into the Transport Infrastructure Act
1994. The new chapter details the powers of the chief executive with respect
to air transport infrastructure.
Clause 12(1) omits the definition "means of access".
Clause 12(2) replaces "sugar tramways" with "cane railways", to be
consistent with the terminology used within the industry.
Clause 12(3) clarifies that "pipes" and "tanks" as ancillary works and
encroachments encapsulates only water tanks and pipes.
Clause 12(4) expands the list of ancillary works and encroachments to
include "tanks" and "pipes". This includes all tanks and pipes not captured
in "water tanks" and "water pipes".
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Transport Legislation Amendment
Clause 12(5) replaces "means of access" with "road access works", as
part of a review of the legislative regime dealing with accesses between
adjacent properties and State-controlled roads.
Clause 12(6) expands the list of ancillary works and encroachments to
include "pumps and bowsers".
Clause 12(7) incorporates a definition for "road access works", as part
of a review of the legislative regime dealing with accesses between adjacent
properties and State-controlled roads. Examples are given of the two
categories of road access works.
Clauses 13(1) and (2) allow for the insertion of a provision requiring that
any approval of road access works cannot be given unless a current
approval exists for a permitted road access location for those road access
works.
Clauses 14(1) and (2) allow the situations to be expanded when the chief
executive may intervene concerning ancillary works and encroachments.
Clause 15 is administrative in nature in that it amends a legislative
heading to reflect the decisions arising from the review of the legislative
regime dealing with accesses between adjacent properties and
State-controlled roads.
Clause 16(1) removes the definition for "approved means of access",
which is a term no longer used as a result of the review of the legislative
regime dealing with accesses between adjacent properties and
State-controlled roads.
Clause 16(2) inserts definitions for new terms associated with the review
of the legislative regime dealing with accesses between adjacent properties
and State-controlled roads.
Clause 17 deals with replacement legislative provisions associated with
the review of the legislative regime dealing with accesses between adjacent
properties and State-controlled roads, with special provisions for limited
access roads. Attachment A shows a geographical representation of the
new scheme. Details follow below:
Section 51 deals with limited access roads, which are State-controlled
roads that are subject to special requirements concerning access to and from
the road.
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Transport Legislation Amendment
Sections 51(1) and (2) provides for the chief executive to declare, by
Gazette notice, a State-controlled road to be a limited access road and for a
policy concerning access to be developed and applied. A road-specific
access policy will be required to be developed with each declaration of a
limited access road. This is the only distinguishing feature about limited
access roads except that it is an offence to construct or change a driveway
without an approval under S 52 - (refer S 51G).
Section 51(3) permits the chief executive to develop a policy for limited
access roads which have been previously declared and which do not have a
policy.
Section 51(4) requires that once notice of a policy has been gazetted or a
new limited road declared, the chief executive must apply the policy and
ensure there is always a policy. It also gives the chief executive the power to
replace a policy by way of gazette notice under S 51C. It also allows minor
changes without giving notice, provided the policy has not been gazetted.
Section 51A provides for the notification to local governments of
proposals concerning limited access roads which could affect them and
allows for subsequent submissions by the local governments to the chief
executive.
Section 51B sets out information to be included in Gazette notices under
S 51(1) including the reasons for the determination to limit access to the
particular road, and the appeal rights for any person affected.
Section 51C details the information to be included in gazette notices
concerning a declaration, notice of a policy or replacement of a policy. If the
policy is not published, this information is to include the location where a
policy can be inspected. Appeal rights for any person affected by the policy
are included.
Section 51D details how policies maybe amended. Major changes or
where individual property owners are not notified of a change will require
replacement of a policy under S 51C.
Section 51E requires that the declaration must be described in sufficient
detail to allow the particular limited access road to be identified.
Section 51F requires that details of such declarations are to be advertised
in a local newspaper.
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Transport Legislation Amendment
Section 51G sets out offences with respect to limited access roads. The
offence prohibits construction or alteration of a driveway to and from a
limited access road without approval.
Section 52 provides for management of access between State-controlled
roads (including limited access roads) and adjacent land.
As outlined in the definitions, land adjacent to a State-controlled road
includes land which gains access by way of a registered easement to and
from the State-controlled road.
On his own initiative or on the application of a person with interest in
land adjacent to a State-controlled road, the chief executive has the power to
determine, or vary, the basis of traffic movement between a State-controlled
road and adjacent land. It is envisaged that if a property abuts more than one
State-controlled road, a single determination may address access
arrangements to a number of State-controlled roads.
As an example a person with an interest in land would include a native
title holder, an owner of freehold land, a lessee of leasehold land, or an
occupier.
The determination of the chief executive could include the types of
vehicles which may or may not use the means of access and their frequency
of use (e.g. 40 12 tonne truck trips per day for a quarry), or, even the
prohibition of traffic at a particular point or along an entire frontage (or
frontages).
Some examples of conditions which may be applied are included. The
determination by the chief executive may specify the use, conditions and
restrictions on the use of, a road access location and/or road access works,
and the type and/or form of physical access works.
Physical access works may extend from inside the particular property to
within the State-controlled road, to the traffic lanes of the road.
Section 52(3) details that the approval of the access arrangement or part
of the access arrangement may indicate that the approval expires at some
future date or when some particular event occurs eg. when a planned
roundabout is constructed nearby.
The chief executive may make his determination in response to an
application for construction of a road access location or works, in response
to a development application, or in response to an owner or person with an
interest in the land seeking to, or having been directed to (under S 52G),
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Transport Legislation Amendment
have their access arrangements approved. Alternatively, he or she may
make a determination on his or her own initiative.
The chief executive may require particular works to be removed within a
reasonable stated time, thirty days is generally considered to be reasonable.
However, if the safety of road users is threatened, a shorter stated time may
be reasonable.
Section 52A gives the chief executive the power to require additional
information from an applicant, so that he or she can make their decision.
As per Schedule 2, a merits appeal lies against a determination by the
chief executive in relation to access between a State-controlled road and
particular adjacent land.
Section 52B gives the chief executive the power to require, as part of an
access approval under S 52, an applicant to construct, and/or maintain or
contribute to the cost of construction or maintenance of specific road access
works in certain circumstances.
Section 52C restricts the situations when the chief executive may make a
determination in relation to an approved access arrangement, on his own
initiative. The situations where this is permissible is if the road access
location or the road access works or the use of either of these is presenting a
traffic hazard, reducing safety, affecting traffic operations or is obstructing
road works or work involving public utility plant or ancillary works and
encroachments. Action may also be taken in an emergency. In addition, the
cumulative effects of (for example) safety and operational effects etc. on a
particular access, and/or the safety effects of number of accesses located
along the road may be considered when determining if the chief executive
can act on his or her own initiative.
Section 52D clarifies that the construction of road access works on a
State-controlled road does not give the land owner or occupier any rights to
the ownership of the works unless there is an agreement to the contrary.
This provision also clarifies that regardless of the restrictions outlined in S
52C as to when the chief executive may make a determination on his own
initiative, the chief executive may exercise his or her powers to change or
remove works wholly within the State-controlled road (meaning the area of
land) without regard to these restrictions.
Neither consideration nor determination need to be made where road
access works (which were required to be constructed a part of the approval)
are removed or changed, unless the functionality of the permitted road
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Transport Legislation Amendment
access location is substantially affected, or there is some agreement in force
to the contrary.
Section 52E requires that an owner and occupier and the applicant to be
given written notice of a determination made under S 52, and outlines the
information to be included in the notice.
This section also requires the chief executive to provide a person who has
an interest in particular land with a copy of the current S 52 determination
regarding access to the property. This is to allow new or intended
purchasers to have the necessary information concerning compensation
under SS 56 and 57, and offences under S 53.
Section 52F allows the chief executive to give a person other than the
owner, occupier and applicant, a notice of the determination and therefore
bind them by the determination. This is intended to restrict the actions of a
third party that accesses the land (such as say a rubbish removal contractor)
and ensure that they comply with the intended safe operation of the access
arrangements. Appeals against the original determination do not apply to
future owners and occupants nor other persons given a notice. However, a
future owner is able to apply under S 52 for a new determination to be
made. Offences under s53 apply to persons that have received such a notice.
A new owner is entitled to compensation (as if they were the original
owner) in accordance with SS 56 and 57, if a new determination is made
under S 52(1).
Section 52G allows the chief executive to direct the owner or occupier (or
both) of a property which does not have a S 52 determination in force to
apply to have the access arrangements approved (subject to any necessary
changes). On receipt of the direction the person must then apply under S 52
and/or discontinue accessing the State-controlled road at any location. An
offence is committed if the direction is not complied with.
Section 53 provides for offences for obtaining access to a State-controlled
road. Offences only apply to any person given a notice, and present and
future owners with a development approval which applies to future owners.
Section 54 provides for action to be taken to prevent access where an
offence is being or attempting to be committed under S 53. Any costs of
taking that action may be recovered by the chief executive from the person
obtaining or attempting to obtain illegal access, or contravening a condition
etc.
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Transport Legislation Amendment
Section 55 provides that, where compensation is potentially payable by
the chief executive as specified in S 56 and S 57, he or she may arrange for
the provision of alternative access arrangements and, by negotiation,
contribute to its cost. The arrangements may include alteration to on-site
buildings and parking facilities to restore the same functionality to the land.
Such alternative access may be to an alternative location on the
State-controlled road, or, to an adjoining local government road, which
would require the approval of the local government, or by way of negotiated
access easement through adjoining property.
Section 56 provides for compensation to be paid in certain circumstances
where both parties could not agree on an alternative access arrangement or
the chief executive determined that provision of such alternative is
prohibitively expensive.
Table 1 below shows the situations when compensation is payable by
combining SS 56 and 57.
Table 1--circumstances where compensation is payable
Effect of new decision
Column Column (b) Column (c)
(a)
Circumstances Property Permitted S52
associated with effectively road access Decision in
application becomes location and force and
landlocked access to SCR change to
(s56(1)(a)) prohibited substance of
(s56(1)(b)) previous
decision which
affects on site
functionality
(excluding (a)
and (b))
(s56(2))
Not on chief
executive's initiative:
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Transport Legislation Amendment
1. In connection with no no no
material change of use or
reconfiguring of a lot
(s57(4)(a) and (b)(i)(A))
2. In connection with yes no no
development which has
had or is likely to have a
significant impact on
traffic safety or efficiency
on the State-controlled
road and the decision
took this into account
(s57(4)(b)(i)(B))
3. Other instance not yes yes no
on chief executive's
initiative (s57(4)(c))
On chief executive's yes yes yes
initiative
The basic formula for compensation is unchanged and is based on the
diminution in value of the property.
This section makes it clear that compensation is not payable for loss of
functionality to the extent that it may relate to access to a particular traffic
stream, nor to the works in the State-controlled road. For example, if a
service road is constructed in front of a property, and access is provided to
this road instead of (as was previously) gained directly to highway traffic
lanes, if no other changes are made to the access arrangement to affect the
functionality on-site, then no compensation would be payable. This is the
case even if the owner or occupier of the property paid for the construction
of the access ramp which connected his or her driveway to the highway
traffic lanes (if there is no agreement to the contrary).
Compensation would apply to the extent that functionality on-site is
required to be restored. However, if changes to the State-controlled road and
abutting roads result in changes to the external access arrangements, (for
example a more circuitous route is required to access the property), then
there would be no compensation for this component of the changes.
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Transport Legislation Amendment
Compensation may be claimed by an owner of adjacent land, a lessee of
leasehold land, a native title holder, an occupier of adjacent land or both.
The total amount of compensation for the diminished value of the
property would be divided between the owner and occupier in proportion to
the diminution in value of the property which each one incurs. In this way
there is no doubling up of payment of compensation.
As per Schedule 2, a merits appeal lies against a determination by the
chief executive concerning the amount of compensation.
Clause 18 deals with amendments to S 57. Where an access arrangement
has not been approved there is only one situation where compensation
would be payable. That is where a property becomes effectively landlocked
and the determination (under S 52) which prohibits all access does not take
into account a development which involves a reconfiguration of a lot or a
material change in use of the property. Compensation is not payable if a
previous determination in force caused the property to be landlocked. Once
compensation is paid in this instance it will not be paid again with respect to
the same property.
In all other cases, there must be a S 52 determination in force (ie. a
permitted road access location for access onto the State-controlled road) and
a new determination must be made. The substance of the two decisions
would be compared.
Where a new determination is made in response to an application (either
a development application, a separate S 52 application made in connection
with a development application), or a S 52 application submitted because of
a direction under S 52G, and the decision takes a development involving
reconfiguration of a lot, or a material change in use of the property or other
development which may adversely affect the safety or operation of the
State-controlled road, into account, provided there is an alternative way to
access the property (e.g.. via a side road), the new determination may
specify that all access to the State-controlled road may be prohibited. No
compensation would be payable in this instance.
Where a new determination is made in response to an application by a
person, whether or not it is associated with a development of any kind, the
new determination may change the substance of the old determination (other
than making the property landlocked or its getting all access via an
alternative road or way) and no compensation would be payable.
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Transport Legislation Amendment
As an example of how this section applies, if the chief executive is
referred a development under the Integrated Development Approval System
(IDAS) process, the chief executive's response could be taken to be
equivalent to a S 52 determination in connection with that development (see
s57A). This assumes he has adequate information on which to base his
decision.
Once relevant powers with respect to access are incorporated into the
Integrated Planning Act 1997 (IPA), if the chief executive does not respond
to such an application (and the chief executive is a concurrence agency under
IPA), the proposed access arrangements are taken for the purposes of
compensation to be the approved access arrangements under S 52 (this
assumes that the development proceeds). A concurrence response about
access need not be restricted in its contents by S 52.
Also, if a development is not referred to the chief executive as a
concurrence agency then the chief executive's response to a separate S 52
application by the owner or agent is taken to be a determination in
connection with the development.
If a development is not referred to the chief executive as a concurrence
agency, and the access arrangement for the development is not the subject of
a S 52 application, there is no determination in connection with the
development and therefore the access arrangements are not approved.
Section 31 prohibits roadworks (such as road access works and including
boundary works) without approval.
Consequently, if the chief executive becomes aware that access
arrangements are unapproved, he may direct the owner or occupier under S
52G, to obtain access approval. The decision is taken to be in connection
with, or influenced by, the development.
For this section, the different types of development (eg. material change
of use etc.) have the same meanings as under IPA.
Also, no separate compensation is payable where the land is acquired by
agreement or resumption. As per Schedule 2, a merits appeal lies against a
determination not to extend the time for claiming compensation.
Clause 19 inserts new S 57A which is included to give developers some
security over their access arrangements. If a concurrence response to a
development approval includes conditions about access, then for the
purpose of the effect of future S 52(1) decisions on compensation, the
response is taken to be a S 52 decision.
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Transport Legislation Amendment
Clause 20 amends the term "sugar railway" to "cane railway" in S 75, in
accordance with the clause 12 changes to the definition of ancillary works
and encroachments.
Clause 21 inserts a new S 84A providing for the payment of a levy by a
railway manager. The levy is prescribed pursuant to a regulation, and must
be paid for each year of an accreditation.
The chief executive must give the railway manager or railway operator
written notice of the amount of the levy.
Clause 22 amends S 104 to change procedures concerning medical
examinations. The section allows an authorised person for a railway to
require an employee, who was involved in a rail incident, to undergo an
alcohol test, a drug test or a medical examination within 2 hours of the
incident. The time limit for a medical examination will be amended to
within a reasonable time after the authorised person forms the reasonable
suspicion the employee was involved in the incident.
Clause 23 omits SS 105 to 108 inclusive, from the Transport
Infrastructure Act 1994.
Clause 24 amends the definition of miscellaneous transport infrastructure
by excluding air transport infrastructure and public marine transport
infrastructure from that definition.
Clause 25 inserts Chapter 8B entitled Public Marine Transport
Infrastructure into the Transport Infrastructure Act 1994.
Section 187B allows the Governor-in-Council to appoint a manager of a
public marine facility by regulation with the consent of the person to be
appointed. The meaning of person is meant to be as wide as possible as is
indicated in the examples provided. The appointment may be subject to such
conditions as the Governor in Council considers appropriate at the time
given the prevailing circumstances. A condition may include the payment to
the chief executive of a fee for each mooring located in a State provided boat
harbour facility. Conditions of appointment may be changed with the
consent of the manager except the consent of the manager is not required
where the fee payable to the chief executive for each mooring located in a
State provided boat harbour is amended.
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Transport Legislation Amendment
This fee provision is intended to cover existing arrangements where the
fee for each mooring can be levied on the manager direct, or where the
manager does not control the area direct, on the tenure holder of the area
involved, eg. a lessee of a Land Act 1994 lease.
Section 187C provides for who is responsible for maintaining a public
marine facility and who is liable in adverse civil proceedings where some
form of accident has occurred which is associated with the facility.
Particularly:
subsection (1) provides that a manager is responsible for maintaining the
public marine facility.
subsection (2) provides that for the purposes of all adverse civil
proceedings in relation to death, injury, damage or loss that the facility is
taken to be solely owned, occupied and under the management, control and
responsibility of the manager.
However, subsection (3) also describes circumstances whereby
subsection (2) does not apply. An example may be when a facility is
constructed (other than by the Manager) with a structural defect. The facility
is then subject to the appointment of a Manager. A civil action arises as a
result of the structural defect. Without subsection (3) the Manager may be
unfairly assumed to be responsible.
Section 187D provides for the management of a public marine facility by
the chief executive. The chief executive has all the powers necessary to
perform the function of managing a public marine facility to ensure the
effective and efficient operation of the facility provided the power is
consistent with any conditions of the appointment as manager. This includes
the power to limit or prohibit the use of a facility. This section also provides
that where no manager has been appointed to manage a public marine
facility, the chief executive is taken to be the manager until someone else is
appointed the manager under section 187B.
Section 187E provides for the management of a public marine facility by
a local government. A local government has all the powers necessary to
perform the function of managing a public marine facility to ensure the
effective and efficient operation of the facility provided the powers are
consistent with any conditions of the appointment as manager. This includes
the power to limit or prohibit the use of a facility.
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Transport Legislation Amendment
Section 187F provides for the management of a public marine facility by
a port authority. A port authority has all the powers necessary to perform
the function of managing a public marine facility to ensure the effective and
efficient operation of the facility provided the powers are consistent with any
conditions of the appointment as manager. This includes the power to limit
or prohibit the use of a facility.
Section 187G provides for the management of a public marine facility by
a person other than the chief executive, a local government or a port
authority. A person has all the powers of a natural person to manage a
public marine facility to ensure the effective and efficient operation of the
facility provided the powers are consistent with any conditions of the
appointment as manager. However, a person's ability to limit or prohibit the
use of a facility is limited to that provided in a regulation.
Section 187H provides that a manager must act in accordance with any
conditions imposed on the manager's appointment. Any action taken by a
manager in contravention of any condition of appointment is not valid or
enforceable action.
Section 187I allows a manager of a public marine facility to impose fees
for the use of the facility whether as a condition of an approval to use the
facility or otherwise. The manner in which fees may be imposed can
include, but not limited to, referring to ships using the facility or goods or
passengers loaded, unloaded or transhipped to or from a ship using the
facility or vehicular access to the facility. However, a fee cannot be imposed
for the genuine, transient recreational use of certain public marine facilities,
namely boat ramps, jetties, landings or pontoons. This is meant to cover
short term use of such facilities for recreational purposes and not
commercial purposes. Usually a sign at a facility will indicate the length of
time a person is permitted to moor at the facility for recreational purposes
without charge. This section ensures the continuation of any existing
charging arrangements for public marine facilities.
Section 187J allows a manager to resign an appointment under S 187B
but only with the consent of the Governor-in-Council.
Section 187K allows a manager to remove certain improvements to a
public marine facility within 3 months of when a manager's resignation has
been accepted by the Governor in Council or within 3 months of a
manager's appointment being revoked, otherwise the improvements become
the State's property. The revocation of the appointment of a manager is at
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Transport Legislation Amendment
the discretion of the Governor-in-Council. Also, improvements can only be
removed that do not form an integral part of the public marine facility and
been added to the facility by the manager.
Section 187L provides that where there is any inconsistency between a
regulation under this Act and an action taken under this Part by a manager,
the regulation prevails to the extent of the inconsistency. This includes a
regulation under this Act prevailing over a by-law or local law of a local
government or a Board resolution of a port authority.
Part 2 of the new chapter includes ss187M to 187R dealing with
management arrangements for use of waterways and associated
infrastructure by water traffic. The chief executive receives certain functions
pursuant to the part. These functions include planning and management
functions for waterways traffic and use.
These functions are performed by way of waterway transport
management plans which must be approved by the Governor and are
subordinate legislation.
The new clauses detail consultation requirements for a management plan
and consultation requirements prior to the introduction of a management
plan for an area.
Also, new s187R states that if there is any inconsistency between a
management plan and another law the other law prevails to the extent of the
inconsistency.
Clause 26 inserts a new S 240A of the Transport Infrastructure Act
1994 which deals with expiries under that part.
Clause 27 omits and replaces the heading to Chapter 10, part 4, division 5
of this Act.
Clause 28 deals with transitional provisions concerned with access and
ancillary works and encroachments. Details follow.
Section 263 provides for limited access roads and access-limited roads
which were declared as such either before the current amendments or the
current legislation, and their associated policies, to become limited access
roads under the amended s51.
Section 264 provides for decisions (which are still in force) made under
repealed s52 to become decisions under the new provisions, until they
expire, are revoked or are changed.
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Transport Legislation Amendment
For the provisions of previous decisions to be understood they will have
to be considered in light of the new terms and provisions.
As an example in many cases the term "approved means of access" will
encompass both new terms:- "permitted road access location" and the
associated "road access works".
As, under the new provisions, there are circumstances where
compensation is paid if an access arrangement is not an approved access
arrangement, (which is significantly different from the repealed provisions)
the limitations and prohibitions shown in limited access plans, (which stem
from provisions in the previous Act) gazettals etc., must be recognised as
decisions in force under S 52(1). Otherwise there is the possibility that
compensation for prohibitions of access to land (previously prohibited
under a declaration of limited access) for which compensation has already
been paid or for which the period for claiming compensation has long
expired.
Section 265 provides for decisions (which are still in force) made under
repealed s47 to become (for the purposes of compensation) decisions under
S 52(1).
Clause 29 inserts new Section 266 which provides for the transitional
arrangements from the previous legislative arrangements under S 140 of the
former Harbours Act 1955 to the new legislative arrangements under
Chapter 8B (Public Marine Transport Infrastructure). It is intended that there
be no change to the existing management arrangements of public marine
facilities upon the commencement of Chapter 8B, ie. if a person is
managing a public marine facility (currently referred to as wharf or other
harbour works under S 140 of the former Harbours Act 1955) before the
commencement of Chapter 8B, that person will continue to manage the
facility after the commencement of Chapter 8B. This is also meant to apply
to any existing by-law, local law or Board resolution of a port authority
about a public marine facility which are to remain in force until an action
under Chapter 8B changes the by-law, local law or Board resolution about
the facility.
Clause 30 amends schedule 1 in the Transport Infrastructure Act 1994
by omitting item 8 and inserting sections s 19, 20, 21, 22 and 23 dealing
with the calculation of a levy, the date by which it must be paid, and
payment by instalments.
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Transport Legislation Amendment
Clause 31 inserts a new schedule 1A into the Transport Infrastructure
Act 1994, which details, for the purposes of S 187Q what matters may be
placed in a waterway transport management plan.
Clause 32 amends schedule 2 in the Transport Infrastructure Act 1994
by amending the heading to "Reviews and Appeals", removing the review
for S 54 and inserting new S 51(1) and S 51 into the list of appealable
decisions listed in that schedule.
Clause 33 amends schedule 3 (Dictionary) in the Transport
Infrastructure Act 1994 inserting into that Dictionary new terms required as
a result of these amendments.
PART 4--AMENDMENT OF THE TRANSPORT
OPERATIONS (MARINE POLLUTION) ACT 1995
Clause 34 states that Part 3 of this Act amends the Transport Operations
(Marine Pollution) Act 1995.
Clause 35 inserts a new S 55A which details if a ship requires a
Shipboard waste management plan, and the maximum penalties inflicted on
the ship's owner and master if a ship which requires a shipboard waste
management plan does not infect have such a plan, or is not fitted with the
equipment necessary to implement such a plan.
Clause 36 amends S 111 of the Transport Operations (Marine
Pollution) Act 1995 by further defining "discharge expenses".
Clause 37 amends S 115 of the Transport Operations (Marine
Pollution) Act 1995 by amending circumstances upon which claims on
security pursuant to that section can be made.
Clause 38 amends schedule 3 of the Transport Operations (Marine
Pollution) Act 1995 by inserting a definition of damage into that schedule.
PART 5--AMENDMENT OF THE TRANSPORT
OPERATIONS (PASSENGER TRANSPORT) ACT 1994
Clause 39 states this part amends the Transport Operations (Passenger
Transport) Act 1994.
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Transport Legislation Amendment
Clause 40 amends S 14 to clarify the operator's responsibility to comply,
and their responsibility to ensure that their drivers comply, with an Act or a
provision of an Act that promotes passenger safety or customer service. It
follows that this responsibility extends to provisions of the Transport
Operations (Passenger Transport) Standard 1995.
Clause 41 inserts a new S 22A which applies when proceeding for
offences against the Act. This section provides that evidence that person is
an operator can be established by showing that the person is involved in the
provision of a public passenger service and that the person has operator
accreditation. This section does not limit the matters that can be offered as
evidence that a person is an operator. This new section is meant to address
difficulties sometimes faced when proceeding with operator offences
against the Act.
Clause 42 amends S 26 to clarify that the standards made for driver
authorisation can require drivers to comply with an Act or a provision of an
Act when that compliance would promote passenger safety or customer
service.
Clause 43 inserts a new S 29A enabling a scheme to be administered by
regulation wherein restricted driver authorisations can be issued by
operators to their respective drivers. Restricted driver authorisation is a form
of driver authorisation which will be restricted by regulation in relation to
the scope of its application. Restricted driver authorisation will have validity
only when held by a driver providing services for the specific operator who
granted that authorisation. It is proposed that regulation will prescribe the
types of public passenger services in which restricted driver authorisation
can be used.
Clause 44 amends S 39 to identify that in addition to the other services
already stated, service contracts can be entered into for the provision of long
distance scheduled passenger services. Service contracts for long distance
scheduled passenger services had previously been enabled through
regulation. Although the section has also been restructured to overcome
prior duplication in wording, the effect of the section is unchanged.
Clause 45 inserts a new S 42A which provides that service contracts will
be required to provide scheduled ferry services in specific areas that may be
stated by the chief executive. Contracts can be used to ensure minimum
service levels and approved government subsidised concession fares.
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Transport Legislation Amendment
Clause 46 amends S 43 and is complementary to clause 44. Section 43
prohibits a person who does not hold an appropriate service contract, from
providing a scheduled ferry service, when a service contract has been
declared necessary for the provision of that particular service under the new
S 42A.
Clause 47 deletes the reference in S 44 to S 53. This complements the
amendment in clause 49.
Clause 48 amends S 46 so that holders of ferry service contracts or
prescribed school service contracts are excluded from the mandatory
midterm reviews applicable to operators of public passenger services
provided under service contracts. The review process prescribed under s46
is not appropriate to ferry services or prescribed school service contracts.
Clause 49 replaces S 48 to clarify that, dependent upon the chief
executive's approval, contract holders may transfer both all or some of their
future rights and liabilities under a contract. The transfer of some of the
future rights and liabilities becomes a new service contract but with the term
of the new contract expiring at the same time as the expiry of the original
contract's term.
Clause 50 deletes S 53. S 53 requires the compulsory inclusion in school
service contracts of a condition about contract termination. In practice, this
condition is not appropriate for inclusion in all contracts, and when the
condition does have relevance it appears alongside a number of other
conditions having similar intent but which are not referred to in legislation.
Clause 51 amends the heading for Chapter 6, part 2, division 2, in order
to better reflect the division's content.
Clause 52 amend sS 56(1) and refers to the entitlement granted to
existing operators which gives them a first opportunity to offer for new
contract. This amendment clarifies that this entitlement extends to operators
who are providing an existing service in part of the area to be contracted.
This amendment reflects current practice and clarifies existing rights.
Clause 53 amends S 57 and applies if an offer made under the
entitlement provided for in S 56 is only substantially acceptable. The
amended section clarifies that the chief executive can defer inviting the
public offers for a contract when the chief executive considers that
negotiation with an existing operator may produce an acceptable offer.
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Transport Legislation Amendment
Clause 54 amends S 60 and allows a faster administrative process to be
applicable to the amendment of prescribed school service contracts as
compared to other service contracts.
Clause 55 provides that S 62 does not apply to the offer of new
prescribed school service contracts. Section 62 provides for entry into new
service contracts but is inappropriate with regard to prescribed school
service contracts.
Clause 56 inserts a new division providing for entry into prescribed
school service contracts. Matters regarding contracts for school services had
largely been dealt with in generic provisions for service contracts. However
this had led to inappropriate administrative requirements. The establishment
of provisions to deal solely with prescribed school service contracts is
proposed in order to improve administrative efficiency.
The new division does not grant any retrospective benefits nor impose
any retrospective obligations. It does however reiterate the intent of division
2 provisions with regard to the entitlement of existing operators to be invited
to make first offers on new contracts. Operators satisfactorily providing part
or all of a service for which a contract is to be entered will have this
entitlement. In addition if a school is being serviced by one or more
operators and a new prescribed school service contract is proposed for a
new service to the school then the chief executive may choose to invite all of
those operators currently providing services to the school to offer for the
new contract before any invitation to the public need be given.
Clause 56 also provides for when public offers may be invited. The chief
executive can defer inviting public offers if a substantially acceptable offer is
received from an existing operator responding to an invitation to make a
first offer, if the chief executive considers an acceptable offer may be
negotiated. Section 59 in Division 2 applies to prescribed school service
contracts and provides the matters to be considered by the chief executive
when determining the acceptability of a contract offer.
Clause 56 also enables the chief executive when inviting a public offer to
additionally solicit offers from specific operators or other persons.
Clause 57 amends S 74. A technical error in the wording of subsection
74(4) is corrected, subsection 74(5) is relocated as the new section 74AA
and subsection 74(6) is relocated to the new S 74AB provided for in clause
58.
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Transport Legislation Amendment
Clause 58 inserts a new S 74AB providing for prohibitions on the use of
taxis. Taxis are prohibited from providing any public passenger service in a
taxi service area for which they are not licensed. This prohibition prevents
taxis from picking up passengers or commencing charter journeys or tours
in taxi service areas for which they are not licensed under a taxi service
licence. However this prohibition does not extend so far as to prevent a
passenger journey to be completed. Furthermore this prohibition does not
stop a taxi driver taking a passenger into another taxi service area, and then
waiting for the passenger and then continuing the journey elsewhere or
making a return journey, on the condition that the taxi is used to provide any
other public passenger service including a taxi service during any waiting
time. For example a passenger may travel from Brisbane to the Gold Coast,
disembark and go shopping, then return to the taxi and travel elsewhere.
However the taxi cannot be used for other taxi business during period that
the original passenger is shopping.
Clause 59 replaces S 100 and provides for the issue of written directions
to comply with provisions of the Transport Operations (Passenger
Transport) Standard 1995. Directions to comply can be issued so as to be
effective immediately from the time of issue or from a stated date at least 5
working days after the date of issue. Every failure to comply with the
direction within a period of three years is a separate offence. Directions
issued with an immediate effect can be issued only with regard to specified
safety related standards.
Clause 60 amends S 119 to clarify the protection from liability of an
authorised person for a railway or a person acting under an authorised
person's direction. Certain authorised persons for a railway, appointed under
this Act, have powers to investigate serious rail incidents under the
Transport Infrastructure Act 1994. In certain circumstances, these
authorised persons may request assistance from another person to help deal
with a situation. The amendment ensures that when working under a power
of another act, these persons will not be civilly liable for an act done, or
omission made, honestly and without negligence.
Subclause (2) expands "employed" by a railway manager or operator in
S 119(3) to include an authorised person for a railway, who a railway
manager or operator has engaged as an agent or a contractor, or who is the
agent's or contractor's employee. Under subsection (3), the civil liability of
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Transport Legislation Amendment
an authorised person employed by a railway manager or operator attaches to
the railway manager or operator. The default for all other authorised
persons, attaches the civil liability to the State.
Clause 61 amends S 129 so that driver's licences are included within the
documents that an authorised person may require certain persons to
produce. This will enable authorised persons to verify the identity of
persons claiming to hold driver authorisations. Driver authorisation
documentation does not include photographic identification.
Clause 62 amends S 130 by expanding the offence for a person to give
false or misleading information, to include giving this information to an
authorised person for a railway.
Clause 63(1) amends S 131 by extending the offence for a person to give
a document containing information that person knows to be false,
misleading or incomplete, to include giving the document to an authorised
person for a railway.
Subclause (2) extends the meaning of "document" within the section to
include a report under this or another Act.
Clause 64 amends S 135 by expanding the offence for a person
obstructing an authorised person, to include obstructing an authorised
person for a railway in the exercise of a power under this or another Act.
"Obstruct" is defined in the dictionary of the Act to include abuse, hinder,
insult, resist, threaten or attempt to obstruct.
Pursuant to S 136 a person must not pretend to be an authorised person
or an authorised person for a railway.
Clause 65 amends S 140 to remove an uncertainty about a
cross-reference. The amendment will allow an authorised person for a
railway to remove a person, from a railway or train, found committing an
offence against either S 144 (Interfering with railway) or S 146
(Trespassing on railway) of the Transport Infrastructure Act 1994.
Clause 66 inserts a new chapter 11A which has regard to fare evasion
and misconduct on public passenger vehicles other than trains. This chapter
is a consolidation of passenger transport fare and conduct provisions
contained in S 30 of the Traffic Act 1949 and in SS 45 to 46 of the
Transport Operations (Passenger Transport) Regulation 1994. The
previously mentioned corresponding provisions will be repealed.
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Transport Legislation Amendment
Clause 67 also inserts a new S 154A which provides that part of a fine or
penalty recovered for a fare related offence can be remitted to the person
aggrieved by the commission of the offence. For example if a penalty is
recovered in relation to fare evasion for a taxi journey then some of the
penalty recovered can be remitted to the taxi driver who incurred the fare
revenue loss. This section replaces the similar S 62 of the Traffic Act 1949
while extending the scheme to include penalties paid under infringement
notices.
Clause 68 amends S 161 to clarify that declarations made under this
section stop having effect when the section ceases to apply to the operator of
a service. This clarification is necessary to ensure to optimal effectiveness,
efficiency, and integrity in the scheme enabling prescribed school service
contracts.
Clause 69 amends S 162 to clarify that declarations made under this
section stop having effect when the section ceases to apply to the operator of
a service. This clarification is necessary to ensure to optimal effectiveness,
efficiency, and integrity in the scheme enabling prescribed school service
contracts.
Clause 70 amends schedule 2 (Reviewable decisions) and is
complementary to the new provisions for prescribed school service
contracts stated in clause 55. This amendment has regard to decisions made
by the chief executive under the new subsection 62AC(4) with regard to a
contract holder's unsatisfactory performance. This amendment enables a
person affected by the decision to seek review of the decision or make
appeal against the decision. The review and appeals process is provided for
in chapter 10 of the Act.
Clause 71 amends the schedule 3 dictionary and provides meanings for
"infringement notice" and "restricted driver authorisation".
Clause 71 also provides a definition for "driver service" which covers
any arrangement on behalf of an operator that involves the supply of vehicle
with a driver. The definition of "public passenger service" is amended to
include a "driver service". Hence if person purports to be only providing a
rental vehicle but provides or recommends or otherwise arranges a driver
for the vehicle then that person will be providing a public passenger service.
A similar determination would follow if a person provides a driver for a fee
or other consideration together with a free vehicle.
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Transport Legislation Amendment
Clause 71 also inserts a definition for "unscheduled long distance
passenger service" which had previously been defined in the regulation.
Clause 71 also amends the definition for "excluded public passenger
service" to clarify those services which are excluded from the scope of
services defined as taxi services even though they might otherwise fall
within the definition of a taxi service. For example this amendment ensures
that a service which is a unscheduled long distance passenger service cannot
be defined as a taxi service and hence is exempt from taxi service licence
requirements.
Clause 71 also inserts a new definition for "prescribed school service
contracts" to cover those service contracts which are entered into for the
provision of school services for eligible school children when the service is
to be provided in an area for which no s42 declaration has been made.
Section 42 declarations provide that stated services in a stated area can only
be provided under a service contract.
PART 6--AMENDMENT OF TRANSPORT
OPERATIONS (ROAD USE MANAGEMENT) ACT 1995
Clause 72 states this part amends the Transport Operations (Road Use
Management) Act 1995.
A schedule lists the amendments made.
PART 7--REPEAL OF SEA CARRIAGE OF GOODS
(STATE) ACT 1990
Clause 73 states this Act is repealed.
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© The State of Queensland 1999