Queensland Bills Explanatory Notes Queensland Bills Explanatory Notes[Index] [Search] [Download] [Bill] [Help]
Transport Legislation Amendment Bill 2008
Transport Legislation Amendment Bill
2008
Explanatory Notes
General Outline
The Bill amends the following eight pieces of transport legislation:
· Maritime Safety Queensland Act 2002;
· Transport Infrastructure Act 1994;
· Transport Legislation and Another Act Amendment Act 2007;
· Transport Operations (Marine Pollution) Act 1995;
· Transport Operations (Marine Safety) Act 1994;
· Transport Operations (Passenger Transport) Act 1994;
· Transport Operations (Road Use Management) Act 1995; and
· Transport Planning and Coordination Act 1994.
Amendments to the Transport Infrastructure Act 1994 will enable the
Minister to facilitate the development of the Airport Link project by
declaring, prior to the construction of a franchised road, that a toll may be
payable on completion of the road; to allow the chief executive to grant
permission to a local government for a road to be on non-rail corridor land;
and to ensure that passenger convenience services, including commercial
and retail facilities, can clearly be considered busway or light rail
infrastructure.
Amendments to the Transport Operations (Marine Pollution) Act 1995
insert a head of power to require vessels that have a fixed toilet onboard to
have the toilet configured in such a way to meet the discharge requirements
for the area in which the vessel is operating; insert a head of power to
enable the appointment of an analyst to test possible pollutants; and enable
third parties to recover loss or damage suffered from the discharge of a
pollutant.
Page 1
Transport Legislation Amendment Bill 2008
Amendments to the Transport Operations (Marine Safety) Act 1994 clarify
the definition of `registered owner'; provide capacity for courts to impose a
range of civil penalties; and provide for an offence to knowingly make a
false or misleading statement in or on a document.
Amendments to the Transport Operations (Passenger Transport) Act 1994
provide for summary offences of wilful exposure and aggravated wilful
exposure in Schedule 1A, category C driver disqualifying offences.
Amendments to the Transport Operations (Road Use Management) Act
1995 adopt the National Transport Commission (Model Legislation -
Heavy Vehicle Driver Fatigue) Regulation 2006 (model law) in relation to
the Heavy Vehicle Driver Fatigue Reform Package (fatigue package). The
National Transport Commission undertook a comprehensive review of the
regulatory approaches to managing heavy vehicle driver fatigue which
culminated in the fatigue package, which included the model law. The
amendments to the Transport Operations (Road Use Management) Act
1995 provide for the adoption of the model law.
Amendments to the Transport Planning and Coordination Act 1994 allow
the State to acquire land for future use in transport associated development,
and allow for surplus land to be sold or leased to third parties. There are
strict limitations to ensure that the proposed amendments do not extend
beyond Queensland Transport's resumption powers of providing the power
for bona fide transport infrastructure development.
There are a number of miscellaneous amendments to the Transport
Legislation and Another Act Amendment Act 2007, the Maritime Safety
Queensland Act 2002, the Transport Operations (Marine Pollution) Act
1995, the Transport Operations (Marine Safety) Act 1994 and the
Transport Operations (Road Use Management) Act 1995. The National
Rail Corporation (Agreement) Act 1991 is to be repealed.
The preliminary sections of the explanatory notes deal with each of the
matters in the Bill under the following headings:
· Maritime legislation - these are amendments to the Maritime Safety
Queensland Act 2002, the Transport Operations (Marine Pollution)
Act 1995 and the Transport Operations (Marine Safety) Act 1994;
· Transport legislation - these are amendments to the Transport
Legislation and Another Act Amendment Act 2007;
· Passenger transport legislation - these are amendments to the
Transport Operations (Passenger Transport) Act 1994;
Page 2
Transport Legislation Amendment Bill 2008
· Transport infrastructure legislation - these are amendments to the
Transport Infrastructure Act 1994;
· Transport operations and road use management legislation - these are
amendments to the Transport Operations (Road Use Management)
Act 1995; and
· Transport planning and coordination legislation - these are
amendments to the Transport Planning and Coordination Act 1994.
Short Title
The short title of the Bill is the Transport Legislation Amendment Bill
2008.
Policy Objectives of the Legislation
Maritime legislation
The amendments to the Maritime Safety Queensland Act 2002 update
references to `Maritime Safety Agency of Queensland' and `MSQ' to read
`Maritime Safety Queensland'.
The amendments to the Transport Operations (Marine Pollution) Act 1995:
· insert a head of power to require vessels, other than declared ships,
that have a fixed toilet onboard to have the toilet configured in such a
way to meet the discharge requirements for the area in which the
vessel is operating;
· insert a head of power to enable the appointment of an analyst to test
possible pollutants;
· enable third parties to recover loss or damage suffered from the
discharge of a pollutant; and
· remove section 135 which requires the Act be reviewed 10 years after
its commencement and a report tabled in Parliament. A report about
the review was tabled by the Minister on 28 November 2006.
The amendments to the Transport Operations (Marine Safety) Act 1994:
· provide for an offence to knowingly make a false or misleading
statement in or on a document;
Page 3
Transport Legislation Amendment Bill 2008
· clarify that the definition of `registered owner' in section 87A
includes ships registered in another State, or Territory of Australia,
Commonwealth of Australia or another country;
· allow courts to impose civil penalties, for example, requiring
modification of a ship to ensure compliance to reduce the risk of
future incidents; and
· correct a typographical error in section 202K(7).
Transport legislation
The amendments to the Transport Legislation and Another Act Amendment
Act 2007 remove certain superfluous provisions.
Passenger transport legislation
New Category C Driver Disqualifying Offences
The amendments to the Transport Operations (Passenger Transport) Act
1994 provide for the offences of wilful exposure and aggravated wilful
exposure as category C driver disqualifying offences.
Transport infrastructure legislation
Tolling amendments
The Bill amends the Transport Infrastructure Act 1994 to allow the
Minister to make a declaration, prior to construction of a franchised road,
that a toll may be payable for use of a type of road or land set out in section
93(1).
Amendments for rail purposes
Determining access by adjoining property owners across a proposed
railway
The Bill amends the Transport Infrastructure Act 1994 to improve the
process for deciding the access given to adjoining property owners across a
proposed railway.
Extending local roads through or over non-rail corridor land
The Bill amends the Transport Infrastructure Act 1994 to allow the chief
executive to grant permission to a local government for a road to be on
non-rail corridor land.
National Rail Corporation
The Bill repeals the National Rail Corporation (Agreement) Act 1991.
Page 4
Transport Legislation Amendment Bill 2008
Amendments for busway and light rail purposes
Amendments are made to the definitions of busway transport infrastructure
and light rail transport infrastructure to remove any ambiguity that retail or
commercial services that are typically found in station concourses, such as,
transfer facilities (parking and cycle centres), passenger comfort facilities,
refreshment outlets and other services are transport infrastructure.
Transport operations road use management legislation
National heavy vehicle driver fatigue reforms
The amendments to the Transport Operations (Road Use Management) Act
1995 adopt provisions from the National Transport Commission (Model
Legislation - Heavy Vehicle Driver Fatigue) Regulation 2006 (model law).
The objective of the reforms is to regulate heavy vehicle driver fatigue in a
nationally consistent manner.
Transport planning and coordination legislation
The amendments to the Transport Planning and Coordination Act 1994
include the option to resume land for future use in transport associated
development, provided the land is initially acquired for transport or
incidental purposes. This amendment minimises the possibility of legal
challenges regarding the primary purpose of the original land resumption
and provides flexibility in the development of transport infrastructure and
related development. The amendment also allows surplus land, initially
acquired for transport and incidental purposes to be sold or leased to third
parties for `transport associated development'.
Reasons for the Bill
Maritime legislation
Maritime Safety Queensland Act 2002
The amendments to the Maritime Safety Queensland Act 2002 are
necessary to clarify that the title of the agency is `Maritime Safety
Queensland', rather than the `Maritime Safety Agency of Queensland'.
Transport Operations (Marine Pollution) Act 1995
The amendments to the Transport Operations (Marine Pollution) Act 1995
are necessary to maintain a high level of protection for Queensland's
marine environment by:
Page 5
Transport Legislation Amendment Bill 2008
· inserting a head of power to require vessels, other than declared ships,
that have a fixed toilet onboard to have the toilet configured in such a
way to meet the discharge requirements for the area in which the
vessel is operating; and
· inserting a head of power to enable the appointment of an analyst to
test possible pollutants.
There is also an amendment which provides that third parties who suffer
loss or damage suffered from the discharge of a pollutant may recover
costs.
In addition there are minor administrative amendments to remove obsolete
provisions and provide for transitional arrangements.
Transport Operations (Marine Safety) Act 1994
The amendments to the Transport Operations (Marine Safety) Act 1994 are
necessary to enhance marine safety and better manage abandoned ships in
Queensland coastal waters. This is to be achieved by:
· providing an offence to knowingly make a false or misleading
statement in or on a document;
· clarifying that the definition of `registered owner' in section 87A
includes ships registered in another State, or Territory of Australia,
Commonwealth of Australia or another country; and
· providing courts with the power to impose civil penalties, for
example, requiring modification of a ship to ensure compliance to
reduce the risk of future incidents.
In addition there are minor administrative amendments to the Transport
Operations (Marine Safety) Act 1994 which correct cross references and
provide for transitional provisions.
Transport Legislation
Transport Legislation and Another Act Amendment Act 2007
This amendment deletes part 2 and sections 57(62) and 57(63). Part 2 was
used to correct a cross reference error that existed in section 91 of the
Maritime and Other Legislation Amendment Act 2006. However timing
meant that section 91 of the Maritime and Other Legislation Amendment
Act 2006 commenced before the Transport Legislation and Another Act
Amendment Act 2007. This created the cross reference error in section
202K (7) of the Transport Operations (Marine Safety) Act 1994. Advice
Page 6
Transport Legislation Amendment Bill 2008
from the Office of the Queensland Parliamentary Counsel is that part 2 of
the Transport Legislation and Another Act Amendment Act 2007 must be
repealed, and the amendment made to the Transport Operations (Marine
Safety) Act 1994 itself.
The Transport Legislation and Another Act Amendment Act 2007
introduced provisions dealing with drug testing of drivers into the
Transport Operations (Road Use Management) Act 1995. Those
provisions were, to a large extent, mirrored on existing provisions within
the Act relating to the breath/blood testing of drivers for alcohol. Sections
57(62) and 57(63) of the Transport Legislation and Another Act
Amendment Act 2007 sought to mirror, for drug testing, an existing
provision dealing with the issue of a certificate by a health care
professional. The circumstances in which that certificate can be issued are
not, however, relevant to drug testing of drivers. The Bill will delete those
provisions from the Transport Legislation and Another Act Amendment Act
2007.
Part 2 and sections 57(62) and 57(63) of the Transport Legislation and
Another Act Amendment Act 2007, which have not been proclaimed into
force, have been postponed to ensure they were not automatically
commenced under section 15DA(2) of the Acts Interpretation Act 1954.
Passenger transport legislation
New Category C Driver Disqualifying Offences
Depending on the circumstances, a person convicted of wilful exposure on
a number of occasions or aggravated wilful exposure could be considered
to not be suitable to hold driver authorisation.
Currently Queensland Transport uses the public interest provisions in the
Transport Operations (Passenger Transport) Act 1994 to take action
against driver authorisation holders whose Summary Offences Act 2005
offence is considered to be particularly serious; for example, an aggravated
wilful exposure offence that attracts one year imprisonment or a person
who has a history of wilful exposure offences.
However, inclusion of wilful exposure and aggravated wilful exposure as a
Transport Operations (Passenger Transport) Act 1994 category C driver
disqualifying offence would strengthen Queensland Transport's ability to
prevent such offenders from holding driver authorisation. It would also
provide magistrates considering appeals about Queensland Transport
Page 7
Transport Legislation Amendment Bill 2008
decisions with a stronger indication of the offences serious nature for
public transport purposes.
Transport infrastructure legislation
Tolling amendments
The current provisions relating to the declaration of State toll roads under
the Transport Infrastructure Act 1994 allow for the declaration of a toll
road to be made after construction of the road is completed.
The amendments to the Transport Infrastructure Act 1994 will change the
nature and the timing of the declaration. Accordingly, the amendments will
allow a declaration to be made which will provide that a toll may be
payable for use of the road. The toll, however, may not be collected until
after the road has been constructed. The amendments will allow the
declaration to be made at an early stage in the development of the State toll
road project, before all land has been acquired for the project and before
the construction of the road. This will provide the private financiers of the
private public partnership with certainty that a future revenue stream has
been identified which may service any debt incurred in obtaining finance
for the project.
Amendments for rail purposes
Determining access by adjoining property owners across a proposed
railway
The Bill will insert new provisions into the Transport Infrastructure Act
1994 to set out the procedures for negotiating access by adjoining property
owners across a proposed railway.
There have been problems in determining access by adjoining property
owners across new major coal haulage railways in the past. Some
adjoining property owners, with land on both sides of the proposed railway,
have requested numerous crossings across the proposed railway. While the
railway manager for safety reasons prefers limited or no level crossings,
with crossings to be by underpass where practicable.
Extending local roads through or over non-rail corridor land
Page 8
Transport Legislation Amendment Bill 2008
The Bill amends the Transport Infrastructure Act 1994 to extend section
253 to allow the Director-General of Queensland Transport to permit a
local government to construct, maintain and operate a road on non-rail
corridor land.
Section 253 allows the Director-General of Queensland Transport to permit
a local government to construct, maintain and operate a road on rail
corridor land. Non-rail corridor land is land leased by the State
(represented by Queensland Transport) where the railway has ceased to
operate.
Non-rail corridor land is increasingly being leased to local government for
walking and bicycling tracks and to government entities for public utilities,
for example a recycled water pipeline.
With development occurring adjacent to some non-rail corridor land,
requests are being received for roads to cross the non-rail corridor land.
The provision of the road is presently being achieved by surrendering a
portion of the non-rail corridor land and transferring the land to the local
government to open as road.
However, this results in the Director-General of Queensland Transport
losing control of the portion of land and for a gap to appear in the corridor.
If the non-rail corridor was to reopen as a railway or to be used for another
transport purpose, Queensland Transport would have to negotiate with the
local government as to how the railway or other transport use would cross
the road.
National Rail Corporation
The National Rail Corporation (Agreement) Act 1991 approved and gave
effect to an agreement made on 30 July 1991 between the State of
Queensland, the Commonwealth and certain other States relating to the
National Rail Corporation Limited.
The agreement proposed the formation of the National Rail Corporation
Limited with the principal objective being the carriage of interstate rail
freight on a national network. The Queensland Government at the time
decided not to become a shareholder in the National Rail Corporation
Limited.
The corporation has subsequently been sold to Pacific National. As no
further action can be taken under the Act, the Bill repeals the Act.
Page 9
Transport Legislation Amendment Bill 2008
Transport operations road use management legislation
The Transport Operations (Road Use Management) Act 1995 contains
numerous provisions assigning powers and functions to the chief executive.
In practice, many of these powers are exercised and functions performed by
delegates of the chief executive. This delegation of powers and functions is
provided for in section 37 of the Transport Planning and Coordination Act
1994 and section 57 of the Public Service Act 1996 and is regulated by
section 27A of the Acts Interpretation Act 1954.
Section 124(1)(l) of the Transport Operations (Road Use Management) Act
1995 refers to "the chief executive or the chief executive's delegate".
Because of the general ability for the chief executive to delegate the
exercise of a power, the words "or the chief executive's delegate" are not
necessary and have been deleted. This will clarify the ability of the chief
executive to delegate powers in the Transport Operations (Road Use
Management) Act 1995 - including the power in section 124(1)(l) - and
will remove any uncertainty those additional words might create.
National heavy vehicle driver fatigue reforms
Fatigue has long been identified as a significant safety concern in the road
transport industry - impacting on heavy vehicle drivers and other road
users. Fatigue is one of the main causes of crashes involving heavy vehicle
drivers. The precise contribution of fatigue in heavy vehicle crashes is
difficult to isolate. Estimates range from about 12% to over 60%. Most
fatigue experts consider the true figure to be 20% to 30%.
Currently, the legislation in Queensland which regulates heavy vehicle
driver fatigue sets prescriptive hours of driving and rest, whereas more
recent research indicates a wider program of reforms is necessary to
adequately manage fatigue in the heavy vehicle road transport industry.
The current legislation also fails to cater for diversity in the heavy vehicle
industry and restricts industry innovation in managing fatigue. The lack of
scientific basis in current working hours regulation, poor levels of industry
compliance, and ongoing concern about fatigue for drivers of heavy
vehicles have all been further triggers for change.
The national model law on which the amendments are based is
underpinned by advice from fatigue experts. It places emphasis on
restorative rest, fitness for duty, body clock factors and the influence of the
many parties in the supply chain on driver fatigue. Based on improved
knowledge about the onset of fatigue and its effects on driver behaviour, the
Page 10
Transport Legislation Amendment Bill 2008
model law also takes into account non-driving activities (such as
loading/unloading) when calculating a driver's allowable work time.
Transport planning and coordination legislation
Transport Infrastructure Act 1994
Without amendment to the Act, it is not clear that retail or commercial
services that are typically found in station concourses such as transfer
facilities (parking and cycle centres), passenger comfort facilities,
refreshment outlets and other services (eg. ATMs) are transport
infrastructure. The amendments to the Act are intended to remove this
ambiguity.
Transport Planning and Coordination Act 1994
Existing legislation does not address the integration of land uses such as
commercial and business activity or housing density, which the South East
Queensland Regional Plan (regional plan) identifies as essential to support
efficiency of public transport developments. Some specific limitations
include:
· Current legislation focuses on specific infrastructure (i.e. roads,
busways, rail and ports), but has limited application to the wider
development needs which support the infrastructure and which the
regional plan acknowledges are fundamental to the successful
integration of public transport infrastructure.
· The Act allows for the acquisition of land for the development of
public transport infrastructure or incidental activities. However, the
Act does not address issues of acquisition, disposal or continued
government use of land for transport associated activities, such as
destination services or community infrastructure.
· Current legislation does not provide for the disposal of land to
underpin Government initiatives, in particular the development of
`transport associated development' (defined), where it is desirable to
include a balanced mix of commercial, residential and retail
development, in close proximity to key public transport infrastructure,
such as rail, busway or light rail stations.
· The powers and procedures under the State Development and Public
Works Organisation Act 1971 are comprehensive but their timing and
processes are targeted towards major urban developments of state
significance rather than the commercial/residential developments
surrounding key public transport infrastructure.
Page 11
Transport Legislation Amendment Bill 2008
Administrative Costs
Maritime legislation
The administrative costs associated with the introduction of the
amendments to the Maritime Safety Queensland Act 2002, the Transport
Operations (Marine Pollution) Act 1995 and the Transport Operations
(Marine Safety) Act 1994 will be absorbed within existing budget
allocations.
Transport legislation
Nil.
Passenger transport legislation
New Category C Driver Disqualifying Offences
There will be no direct costs associated with the inclusion of the new
category C driver disqualifying offences. Costs could be incurred if a driver
authorisation applicant or holder requests a review of or appeals the
decision made by Queensland Transport. However, this cost would be seen
as necessary to protect users of passenger transport services.
Transport infrastructure legislation
Tolling amendments
Any costs connected with introduction of the tolling amendments in this
Bill will be minor and absorbed within existing budget allocations.
Amendments for rail purposes
Any costs connected with introduction of the rail amendments in this Bill
will be minor and absorbed within existing budget allocations.
Transport operations road use management legislation
National heavy vehicle driver fatigue reforms
Implementation costs for the Queensland Government to adopt the national
heavy vehicle driver fatigue reforms relate to marketing and
communications costs to inform industry of the proposed changes and
training and development costs for Queensland Transport staff. All costs
will be absorbed within existing budget allocations.
Transport planning and coordination legislation
Nil.
Page 12
Transport Legislation Amendment Bill 2008
Achieving the Objectives
Maritime legislation
The Maritime Safety Queensland Act 2002
The Bill will simply clarify that the title of the agency is `Maritime Safety
Queensland', rather than the `Maritime Safety Agency of Queensland'.
Maritime Safety Queensland has been the name operationally used since
the agency commenced in 2002.
The Transport Operations (Marine Pollution) Act 1995
The Bill will ensure that Queensland waters are protected from ship
sourced pollutants to the greatest extent practicable.
The Transport Operations (Marine Safety) Act 1994
The Bill will ensure that Maritime Safety Queensland continues to be able
to effectively manage issues related to ships that are lost, abandoned or
stranded and to maintain strong messages about the importance of marine
safety through the courts.
Transport legislation
The Transport Legislation and Another Act Amendment Act 2007
The Bill deletes Part 2 and sections 57(62) and 57(63) from the Transport
Legislation and Another Act Amendment Act 2007 as these provisions are
superfluous.
Passenger transport legislation
New Category C Driver Disqualifying Offences
On assent of this Bill, the screening of driver authorisation applicants for
the new category C driver disqualifying offences will commence. This will
have an immediate impact on the suitability of persons driving public
passenger vehicles.
Transport infrastructure legislation
Tolling amendments
The Bill amends chapter 6, part 8 of the Transport Infrastructure Act 1994,
in particular sections 92 and 93 of the Act. The proposed amendments will
provide the proponents of a public private partnership, at the outset of their
involvement, with greater certainty that funds outlaid in planning and
Page 13
Transport Legislation Amendment Bill 2008
constructing a State toll road may be recovered through the collection of
tolls once the infrastructure has been completed.
The Bill also amends chapter 18 of the Transport Infrastructure Act 1994
by inserting a new transitional provision, section 546, under a new part 9 of
chapter 18 of the Act. This amendment will ensure that existing State toll
roads continue to be toll roads as if the Minister, by gazette notice under
section 93, has declared a toll may be payable for use of the road. It also
ensures that, in particular, section 543(3) continues to enable the Minister,
by gazette notice, to provide for a matter in Schedule 5 to apply to the road,
as if the road had been the subject of a declaration under section 93.
Amendments for rail purposes
Determining access by adjoining property owners across a proposed
railway
The Bill amends chapter 7, part 7 of the Transport Infrastructure Act 1994
to insert new sections 240E and 240F with a minor amendment to section
255. It sets out a process to negotiate access by adjoining property owners
across a proposed railway that is fair and reasonable to all parties. A
property owner and the railway manager will be required to consider the
safety and operation integrity of the proposed railway, the need to limit the
number of level crossings and the cost of providing a right of access across
the proposed railway.
If the property owner and railway manager cannot negotiate suitable right
of access across the proposed railway, either party may refer the matter to
the Director-General of Queensland Transport for determination. However,
it will be preferable for the railway manager to negotiate an acceptable
outcome, rather than the Director-General of Queensland Transport having
to make a determination.
Extending local roads through or over non-rail corridor land
The Bill amends chapter 7, part 7 of the Transport Infrastructure Act 1994
to extend section 253 to allow the Director-General of Queensland
Transport to permit a local government to construct, maintain and operate a
road on non-rail corridor land.
There is no railway manager for non-rail corridor land. However, there
could be another sublessee, for example a local authority. Provisions
concerning the railway manager have been amended so that they apply to a
railway manager of rail corridor land or a sublessee of non-rail corridor
land (if any).
Page 14
Transport Legislation Amendment Bill 2008
Likewise, there would be no railway on non-rail corridor land but there
could be other infrastructure. Provisions concerning railway have been
amended so that they apply to relevant infrastructure which is defined to
include a railway on rail corridor land and any infrastructure on non-rail
corridor land.
National Rail Corporation
The Bill repeals the National Rail Corporation (Agreement) Act 1991.
Transport operations road use management legislation
The Bill deletes superfluous words from section 124(1) (l) of the Transport
Operations (Road Use Management) Act 1995. This will clarify the ability
of the chief executive to delegate powers in the Transport Operations
(Road Use Management) Act 1995 - including the power in section 124(1)
(l) - and will remove any uncertainty those additional words might create.
National heavy vehicle driver fatigue reforms
In line with the national model law, the new provisions contained in this
Bill relate to heavy vehicles with a gross vehicle mass or gross combination
mass of more than 12 tonnes and to buses with more than 12 seats.
The Bill supplements existing powers of authorised officers by providing
for specialised and tailored powers to deal with on-road breaches of heavy
vehicle fatigue requirements. This includes the power to require a person
in control of a heavy vehicle, found to be in breach of key fatigue
management obligations, to take rest breaks or work for a shorter period in
their next work period. The Bill also includes a power to require a person in
control of a heavy vehicle to stop work if the authorised officer reasonably
believes the person is impaired by fatigue or if their work diary cannot be
produced or relied upon. These supplementary powers are essential for the
effective enforcement of the fatigue management reforms, by providing
immediate on-road remedies where key fatigue management breaches are
detected.
The Bill also provides for a scheme of extended liability for specified
persons in the chain of responsibility who are in a position to directly
influence a heavy vehicle driver's compliance with fatigue management
laws. In relation, for example, to an offence involving a contravention of a
driver's maximum work requirement or minimum rest requirement, an
"influencing person" will include: the employer, scheduler (of the transport
and drivers), consignor, consignee, and loading managers. Consistent with
defences available for mass, dimension and loading offences, an
Page 15
Transport Legislation Amendment Bill 2008
influencing person for a fatigue offence will have access to a "reasonable
steps" defence. This defence will apply if the influencing person can
establish that they did not know and could not reasonably be expected to
have known of the breach of the relevant fatigue management requirement,
and the person either took all reasonable steps or there were no steps that
the person could have taken to prevent the breach, and finally that the
person exercised reasonable diligence to prevent a contravention by the
driver.
Finally, the Bill provides a consolidated regulation making power for the
management of fatigue of drivers of heavy vehicles.
Transport planning and coordination legislation
Transport Infrastructure Act 1994
By amending schedule 6 of the Act it will be made clear that commercial
and retail activities which are commonly associated with public transport
stations, including newsagents, chemists, dry cleaners, repair services,
automatic teller machines or cycle or walking facilities can be considered a
part of station infrastructure.
Transport Planning and Coordination Act 1994
The amendments will give some flexibility to the development of transport
infrastructure and related developments, by redefining the Queensland
Transport (QT) chief executive's land acquisition powers.
· The concepts of a `transport associated development' and a
`prescribed transit node' are defined.
· A `prescribed transit node' can be a busway, light rail or railway
station or any other transport facility. The location of a `prescribed
transit node' must be identified by regulation.
· Section 25(1) will be amended to allow land acquisition, handling and
disposal for `transport associated development', and section 25(2) will
be amended to allow resumption for `'transport associated
development'.
· Limitations apply to the operation of this provision to ensure that it
does not extend the resumption powers beyond those that are currently
used for transport infrastructure development. Under a new
subsection 25(2A) it will be mandatory that before any resumed land
can be used for `transport associated development', it must first have
been required for a transport or incidental purpose.
Page 16
Transport Legislation Amendment Bill 2008
· An amendment to section 27 allows resumed land to be sold or leased
to third parties for `transport associated development'. This
amendment will enable land acquired for transport or incidental
purposes under section 25 to be more effectively managed by allowing
surplus land to be amalgamated and sold or leased to a third party for
`transport associated development'.
Fundamental Legislative Principles
Maritime legislation
None of the amendments to maritime legislation breach any of the
fundamental legislative principles.
Transport legislation
None of the amendments to the Transport Legislation and Another Act
Amendment Act 2007 breach any of the fundamental legislative principles.
Passenger transport legislation
Category C driver disqualifying offences
The proposed amendment to include the offences of wilful exposure in
Schedule 1A, category C driver disqualifying offences may be considered
to breach a fundamental legislative principle. It may adversely affect the
rights of, or impose obligations on, future driver authorisation holders who
may not be able to drive public passenger vehicles. The public benefit of a
high level of safety and security for passenger transport users far outweighs
any possible breach of this fundamental legislative principle.
Transport infrastructure legislation
Tolling amendments
The amendments have sufficient regard to the rights and liberties of
individuals and fundamental legislative principles.
Amendments for rail purposes
Determining access by adjoining property owners across a proposed
railway
Section 240F of the Transport Infrastructure Act 1994 (clause 16) provides
for the cancellation of right of access across rail corridor land or non-rail
corridor land. It is proposed to restrict when compensation is payable. This
could be considered a breach of fundamental legislative principles. No
Page 17
Transport Legislation Amendment Bill 2008
compensation is payable if the right of access is cancelled due to
non-compliance with any conditions imposed by the Director-General of
Queensland Transport on the right of access. Where the right of access is
cancelled due to the affect of the use of the right on safety or operational
integrity of the railway or another transport purpose, compensation will be
restricted to the loss of the approved use of the right of access. For
example, the right of access may have been granted for approved use of
farm vehicles, say approximately two vehicles per day crossing the level
crossing. However, if the farm is subdivided, the use of the crossing could
increase to over 100 vehicles per day. This would change the risk at the
crossing and may be why the right of access is being cancelled. As right of
access was only granted for farm use, this will form the basis of deciding
compensation. Alternatively, the developer could have proposed to
contribute to the upgrade of the crossing, so that it did not become a safety
issue. If the crossing was upgraded, the approved use would be amended to
reflect the change.
Transport operations road use management legislation
National heavy vehicle driver fatigue reforms
Particular provisions in the Bill relating to the heavy vehicle driver fatigue
reforms may infringe fundamental legislative principles. However, the
need to ensure the safe operation of heavy vehicles is considered to
outweigh any potential infringement of an individual's rights.
Furthermore, for the reasons of national consistency and to permit
authorised officers to exercise reciprocal powers in different jurisdictions,
it is imperative that the model law provisions be adopted as closely as
possible.
Does not adversely affect rights and liberties (s.4(3)(g) of the Legislative
Standards Act 1992).
The Bill includes amendments that permit authorised officers to require
those in charge of a heavy vehicle to take a rest break immediately or to
work for a shorter period in their next work period (new s.39K and 39L,
clause 49). Further, the Bill contains the power for an authorised officer to
require a person in control of regulated heavy vehicle to stop work if
impaired by fatigue (new s.39M, clause 49) or if their work diary cannot be
produced or relied upon (new s.39N, clause 49). These powers are essential
for the on-road enforcement of the legislation, by providing for immediate
remedial action where breaches of core fatigue management requirements
are detected. The exercise of these powers will occur in situations where a
Page 18
Transport Legislation Amendment Bill 2008
driver may be fatigued and, therefore, present a danger to themselves and
other road users. The Bill specifically describes the nature / level of the
enforcement response that can be exercised based upon the seriousness of
the breach detected.
Appropriateness of penalties for offences (s.4(2)(a) of the Legislative
Standards Act 1992)
Authorised officers will have the power to direct a person in control of a
heavy vehicle to stop work and not work again for 24 hours if a work diary
cannot be produced or relied upon (new s.39N, clause 49). This new power
will supplement the existing offence provision in section 49 of the Act
which relates to a failure to produce a document required to be kept under
the Act. The new power is not, however, an additional punishment for the
driver but is, instead, aimed at dealing with the immediate road safety
concern that arises where a work diary (i.e. logbook) cannot be produced
and there may be no other way of confirming how long a heavy vehicle
driver has been continuously on the road. When a heavy vehicle driver is
unable to produce their work diary, this is a serious matter because the sole
means by which an authorised officer can confirm compliance with the
legislation is not available. A protection is provided in the legislation for
the heavy vehicle driver who is able to provide a reasonable excuse for not
being able to produce the work diary.
Appropriate delegation of legislative power (s.4(3)(c) and s.4(4)(a) of the
Legislative Standards Act 1992)
The Bill provides for a number of terms to be defined by reference to what
is specified under a regulation. These terms are "suitable rest place" and
the classification of breaches of fatigue requirements as "minor risk",
"substantial risk", "severe risk" and "critical risk" (amendment to schedule
4, clause 65).
The definitions for the classification of breaches of fatigue requirements
are determined by the degree of time by which a heavy vehicle driver has
exceeded their maximum work time or is deficient in their minimum rest
time, over various periods of time (for example a minor risk breach occurs
in a number of circumstances including if a driver has worked for > 5 ¼
hours in any period of 5 ½ hours, or if the driver has worked for >7 ½ hours
in any 8 hour period). Accordingly this level of detail is most appropriately
placed in a regulation. The operation of these provisions is restricted to
vehicles defined as "Fatigue Regulated Heavy Vehicles", which are
Page 19
Transport Legislation Amendment Bill 2008
generally heavy vehicles with a gross vehicle mass of more than 12 tonnes
(new s. 39J, clause 49).
New section 150C as inserted by clause 62 allows for a regulation to
provide for an evidentiary provision in relation to proceedings for an
offence against a fatigue management regulation that may be committed by
a person failing to take all reasonable steps. The reason for the placement
of the evidentiary provision in the regulation is so that it is next to the
offence provision to which it relates. This will aid in the accessibility and
interpretation of the legislation.
Reverse the onus of proof (s.4(3)(d) of the Legislative Standards Act 1992)
Legislation should not reverse the onus of proof in criminal proceedings
without adequate justification. Some amendments may breach that
principle. The first is the amendment expressly identifying additional
persons (i.e. employer, scheduler (of the transport and drivers), consignor,
consignee, and loading manager) in the definition of "influencing person"
(s.57AB, clauses 52). If a driver of a heavy vehicle is proved to have
committed an offence, then under s.57B, an influencing person is taken to
have committed the offence. However the influencing person has the
benefit of the defences in s.57B. These are the reasonable steps defence
and the defence of not being in a position to influence the conduct of the
driver.
The amendment expands an existing legislative concept in the Transport
Operations (Road Use Management) Act 1995. This concept is crucial to
ensure all those in the chain of responsibility can be held accountable for
their acts or omissions. Each of the additional classes of persons expressly
identified have been included in the model law as having an integral role in
influencing the potential breach of a specified fatigue management
requirement by the driver. Therefore the express expansion of the
definition of "influencing person" for specified fatigue offences is
considered to be justified.
The potential breach of the fundamental legislative principle is also
considered to be justified as these amendments are important measures to
ensure people in the chain of responsibility take responsibility for their
actions in so far as they contribute to breaches of specified fatigue offences.
This is important in addressing some root causes of driver fatigue, for
example unrealistic scheduling and unfair pressure from currently
unaccountable consignors.
Page 20
Transport Legislation Amendment Bill 2008
Furthermore, a "reasonable steps" defence is available to these persons
within the chain of responsibility. Finally, the information necessary to
prove this defence is peculiarly within the defendant's knowledge rather
than the prosecutor's knowledge.
Transport planning and coordination legislation
Transport Planning and Coordination Act 1994
The rights and liberties of individuals / principles of natural justice
To the extent that the proposed amendments allow Queensland Transport to
dispose of resumed land to third persons for `transport associated
development' purposes, this amendment introduces a change in procedures
under the Acquisition of Land Act 1967. These changes are consistent with
the existing Coordinator-General's powers under the State Development
and Public Works Organisation Act 1971 to transfer the land for other
public purposes.
There is no change to the rights of individuals regarding objection, review
or compensation. Under the proposed amendments, the land will be
required for a stated specific purpose which includes transport associated
development.
In particular, the Bill does not provide for the compulsory acquisition of
land without fair compensation (the quantum of compensation payable to a
dispossessed landowner will not change). Further, there is no retrospective
abrogation of rights. The resumption process still provides for natural
justice, through the adoption of the compulsory acquisition (and objection)
process under the Acquisition of Land Act 1967.
Compulsory acquisition of property only with fair compensation
The Transport Planning and Coordination Act 1994 adopts the relevant
procedures required under the Acquisition of Land Act 1967. The
legislation does not intend to make the rights, liberties or obligations
dependent on administrative power - other than the power already exercised
under the Acquisition of Land Act 1967. No changes are proposed to the
availability of judicial review (regarding the validity of resumption notices
and procedures) or the availability of compensation or appeal rights in the
Land Court.
The amendments do not propose delegation of administrative power
Proposed amendments increase the power of the Queensland Transport
chief executive within defined parameters. The proposed amendments do
Page 21
Transport Legislation Amendment Bill 2008
not involve offences, so fundamental legislative principles associated with
reversal of the onus of proof, entering premises, self incrimination, and
immunity from proceeding or prosecution are not relevant.
Transport Infrastructure Act 1994
There are no fundamental legislative principles affected by this amendment
Consultation
Maritime legislation
Consultation on the maritime amendments has been undertaken with the
Department of the Premier and Cabinet, Queensland Treasury, Queensland
Police Service, the Department of Justice and Attorney-General, the
Department of Primary Industries and Fisheries, the Department of
Employment and Industrial Relations and the Environmental Protection
Agency. None of the agencies have any issues with the amendments.
Transport legislation
Consultation on the Transport Legislation and Another Act Amendment Act
2007 amendments has been undertaken with the Department of the Premier
and Cabinet, Queensland Treasury and the Department of Justice and
Attorney-General. None of these agencies have any issues with the
amendments.
Passenger transport legislation
New Category C Driver Disqualifying Offences
Consultation was undertaken with the Department of Premier and Cabinet,
Department of Justice and Attorney-General, Commission for Children and
Young People and Child Guardian, Queensland Police Service and
Queensland Treasury. All stakeholders agree with the amendment.
Transport infrastructure legislation
Tolling amendments
Consultation has been undertaken with the Department of the Premier and
Cabinet, Queensland Treasury, the Department of Justice and
Attorney-General, City North Infrastructure Pty Ltd, Queensland Transport
and the Department of Infrastructure and Planning. None of these agencies
have any issues with the amendments.
Page 22
Transport Legislation Amendment Bill 2008
Amendments for rail purposes
Consultation has been undertaken with QR Limited and no issues were
identified.
National Rail Corporation
Consultation has been undertaken with Queensland Treasury with no issues
identified.
Transport operations road use management legislation
National heavy vehicle driver fatigue reforms
Both Queensland Transport and the National Transport Commission have
undertaken extensive public consultation in relation to the fatigue reforms.
The Royal Automobile Club of Queensland Limited, as the major advocacy
body for motorists, was briefed on 19 July 2007. The Livestock
Transporters Association of Queensland, as the key industry representative
for livestock transporters, has been briefed on a number of occasions
including presentations at their annual conference in Brisbane, at
information sessions in Townsville, Charters Towers and Hughenden as
well as through regular briefings at the Road Freight Industry Council.
Agforce Queensland, as a representative of the livestock industry, was
briefed at a joint meeting with the Livestock Transporters Association of
Queensland on 23 May 2007. Further briefings have also taken place in
Brisbane and Queensland Transport representatives conducted an
information session on the reform package and spoke at a regional Agforce
meeting in Roma in September 2007. Queensland Transport is also
regularly undertaking direct consultation with other leading industry
bodies, including the Queensland Trucking Association, NatRoads and the
Transport Workers Union.
All relevant Queensland Government agencies were consulted and support
the provisions in the Bill. Key agencies consulted on the entire Bill include
the Department of the Premier and Cabinet and Queensland Treasury.
Other relevant agencies consulted on appropriate parts of the Bill include
the Department of Justice and Attorney-General, the Queensland Police
Service, the Department of Communities, and the Department of
Employment and Industrial Relations.
Transport planning and coordination legislation
Consultation has principally been within the government as these
provisions largely impact upon those responsible for acquiring land for the
purposes of transport infrastructure.
Page 23
Transport Legislation Amendment Bill 2008
Agencies consulted include the Department of the Premier and Cabinet, the
Department of Justice and Attorney-General, Queensland Treasury, the
Department of Natural Resources and Water, the Department of
Infrastructure and Planning, the Office of Urban Management, and the
Department of Local Government, Sport and Recreation.
Notes on Clauses
Part 1 Preliminary
Short Title
Clause 1 sets out the short title of the Act as the Transport Legislation
Amendment Act 2008.
Commencement
Clause 2 provides that Part 8, division 3 commences on a day to be fixed
by proclamation.
Part 2 Amendment of Maritime Safety
Queensland Act 2002
Clause 3 states that the Act amended in this part is the Maritime Safety
Queensland Act 2002.
Clause 4 provides that the long title of the Act will be amended to read
`Maritime Safety Queensland' instead of `Maritime Safety Agency of
Queensland'. This amendment simply clarifies the correct title of the
agency and has no impact on stakeholders.
Clause 5 amends section 4 (Purpose of Act) by omitting `the Maritime
Safety Agency of Queensland' and replacing it with `Maritime Safety
Page 24
Transport Legislation Amendment Bill 2008
Queensland'. This amendment simply clarifies the correct title of the
agency and has no impact on stakeholders.
Clause 6 amends the heading for part 2 (Maritime Safety Agency of
Queensland) by omitting `Agency of''. This amendment simply clarifies
the correct title of the agency and has no impact on stakeholders.
Clause 7 amends section 7(1) (Establishment of MSQ) by omitting `The
Maritime Safety Agency of Queensland' and inserting `Maritime Safety
Queensland'. This amendment simply clarifies the correct title of the
agency and has no impact on stakeholders.
Clause 8 amends section 10(1) (Appointment of general manager) by
inserting `the general manager'. This amendment defines the term
`general manager' and a definition is also inserted in the Dictionary
(schedule 2).
Clause 9 inserts part 5, division 1, heading. This establishes the new
division 1 `Transitional provisions for pilotage service contracts'.
Clause 10 inserts new part 5, division 2 to provide transitional provisions
for the Transport Legislation Amendment Act 2008. This ensures that in
any document any reference to the `Maritime Safety Agency of
Queensland' may, if the context allows, be read as a reference to `Maritime
Safety Queensland'. This amendment simply clarifies the correct title of
the agency and has no impact on stakeholders.
Clause 11 amends schedule 2 (Dictionary) to include a definition of
general manager as included by clause 8 and to amend the definition of
"Maritime Safety Queensland" to clarify the correct title of the agency.
Part 3 Amendment of Transport
Infrastructure Act 1994
Division 1 Act amended
Clause 12 states that the Act amended in this part is the Transport
Infrastructure Act 1994.
Page 25
Transport Legislation Amendment Bill 2008
Division 2 Amendments for tolling purposes
Clause 13 amends the definition of "toll road" in section 92 (Definitions
for pt 7). The new definition of "toll road" provides that a toll road means a
road, or part of a road, that a toll has become payable for the use of, under a
declaration made under section 93.
Clause 14 amends section 93(1) (Tolls) by providing that a declaration
may be made that a toll may be payable for use of the various categories of
road or land specified in section 93(1).
Currently, the section only allows that a toll road may be declared after the
road has been constructed. The amendment will allow such a declaration to
be made at an earlier stage ensuring that tolls may be collected on
completion of the construction of a road.
Section 93(1) has also been amended to provide that a toll may be payable
for an additional category of road, that is, a road to be constructed under a
franchise agreement.
Clause 15 inserts a new part 9 into chapter 18 to provide a transitional
provision for the Transport Legislation Amendment Act 2008. Part 9
contains a new section 546 (Transitional provision for toll roads).
The Transport and Other Legislation Amendment Act 2005 inserted
section 543 into the Transport Infrastructure Act 1994 on 27 January 2006
to ensure that State toll roads that existed prior to the amendments made by
the Transport and Other Legislation Amendment Act 2005 continued to be
toll roads.
The current amendments to section 93 change the nature of the declaration
from a declaration of a toll road to a declaration that a toll may be payable
for the use of a type of road or land as set out in section 93(1). As a
consequence, the insertion of section 546 is necessary to avoid any adverse
impact on existing toll roads to which section 543 applies.
Section 546 ensures that existing State toll roads to which section 543
applies, continue to be toll roads as if the Minister, by gazette notice under
section 93, has declared a toll may be payable for use of these roads. It also
ensures that, in particular, section 543(3) continues to enable the Minister,
by gazette notice, to provide for a matter in Schedule 5 to apply to these
roads, as if these roads had been the subject of a declaration under section
93.
Page 26
Transport Legislation Amendment Bill 2008
Division 3 Amendments for rail purposes
Clause 16 inserts new sections 240E and 240F after section 240D. Section
240E (Access arrangements across proposed railway) sets out a process to
negotiate access for adjoining property owners across a proposed railway
that is fair and reasonable to all parties. A property owner and the railway
manager will be required to consider the safety and operational integrity of
the proposed railway, the need to limit the number of level crossings and
the cost of providing a right of access across the proposed railway.
If the property owner and railway manager cannot negotiate suitable right
of access across the proposed railway, either party may refer the matter to
the Director-General of Queensland Transport for determination. The
Director-General must consider relevant matters when deciding whether or
not to grant the right of access, with or without conditions.
If the Director-General decides to grant the right of access, the railway
manager is required to meet the full costs of any works needed for the
purpose of a right of access across the proposed railway.
Section 240F (Cancellation of right of access) applies if the land for the
proposed railway in section 240E becomes rail corridor land. A right of
access granted by the Director-General of Queensland Transport under
section 240E remains in force while the land is rail corridor land or if the
land becomes and continues to be non-rail corridor land.
However, the Director-General of Queensland Transport may cancel the
grant of right of access if specified circumstances occur, such as, the right
would affect the safety or operational integrity of the railway on the land or
would adversely affect another transport purpose, in which reasonable
compensation is payable.
New section 240E may apply when the Director-General of Queensland
Transport enters into an agreement with a person to acquire land under
section 240(1)(a) or (b) and the land acquired (relevant land) is to be used
for a railway. The land has or is to be gazetted 'future railway land'. The
person is appointed or is proposed to be appointed railway manager for the
railway proposed to be constructed on the relevant land.
Subsection 240E(2) allows the previous owner of relevant land that is
adjacent to the proposed railway and needs access across the proposed
railway to ask the railway manager for access across the proposed railway.
Page 27
Transport Legislation Amendment Bill 2008
Under subsection 240E(3) the railway manager having regard to relevant
matters (defined in subsection 240E(13)) must negotiate with the land
owner and decide if the right of access across the proposed railway will be
given or refused. Subsection 240E(11) provides for a right of access to be
granted with or without conditions.
Where the owner of the land and the railway manager cannot reach
agreement on the right of access, or alternatively the railway manager has
refused the right of access, under subsection 240E(5) the owner of the land
or the railway manager may ask the Director-General of Queensland
Transport to decide if the right of access across the proposed railway
should be granted.
Subsection 240E(6) requires the Director-General to have regard to
relevant matters when deciding whether or not to grant the right of access.
To assist with the decision, the Director-General of Queensland Transport
must consult with the railway manager about conditions, if any, to be
imposed in a grant of access and may ask the owner of the land or the
railway manager for information. Subsection 240E(7) requires the owner
of the land or the railway manager to provide this information.
Under subsection 240E(8), the Director-General of Queensland Transport
must decide to grant or not to grant the right of access over the proposed
railway. However, if the Director-General of Queensland Transport
believes that insufficient negotiations were conducted, the
Director-General may alternatively decide to refer the matter back to the
railway manager to further negotiate with the owner of the land.
Where the Director-General of Queensland Transport has decided under
paragraphs 240E(8)(a) or (b), to grant or not to grant a right of access, the
Director-General under subsection 240E(9) must notify the decision to the
owner of the land and the railway manager.
Subsection 240E(10) requires the railway manager to meet the full costs of
any works needed for the purpose of a right of access across the proposed
railway where the Director-General has made the decision under
subsection 240E(8). However, this provision does not apply where the
railway manager and the owner of the land have negotiated a right of access
over the proposed railway. In this negotiated situation, the railway
manager and the owner of the land may make other arrangements regarding
the cost of any works to provide the access. For example, they may
negotiate a more elaborate crossing with the owner of the land agreeing to
meet certain costs.
Page 28
Transport Legislation Amendment Bill 2008
Subsection 240E(12) allows the Director-General of Queensland Transport
to impose a condition that the right of access may be used only for a stated
approved use granted under subsection 240E(8).
Under schedule 3 of the Act, the Director-General decisions under
subsections 240E(8) are reviewable and appealable.
Section 240F (Cancellation of right of access) applies if the land for the
proposed railway in section 240E becomes rail corridor land, that is, it is
subleased to a railway manager under section 240. Under subsection 240F
(2), the right of access granted by the Director-General of Queensland
Transport under paragraph 240E(8)(a) remains in force while the land is
rail corridor land.
The right of access also remains in force if the land becomes and continues
to be non-rail corridor land. Non-rail corridor land is land where the
railway manager has surrendered the sublease to the land and Queensland
Transport continues to hold the land under the rail perpetual lease.
Subsection 240F(3) sets out how a right of access granted by the
Director-General of Queensland Transport under paragraph 240E(8)(a)
may be cancelled. It may be by written agreement between the
Director-General, the railway manager (if any) and the holder of the right
of access. (The adjacent land may have been sold and the right of access
would have transferred to the new owner/holder. If the land for the railway
has become non-rail corridor land, there would be no railway manager.)
Furthermore, the Director-General may cancel the right of access if the
holder of the right of access does not comply with conditions imposed
under subsection 240E(8). Likewise if the Director-General believes that
the use of the right would affect the safety or operational integrity of the
railway on the land, or would adversely affect another transport purpose,
the right of access may be cancelled.
Under subsection 240F(4) if the right of access is cancelled because the use
of the right would affect the safety or operational integrity of the railway on
the land or would adversely affect another transport purpose, reasonable
compensation is payable. However, if the right of access was subject to a
stated approved use under subsections 240E(8) and (12), compensation is
only payable for the loss of the approved use. For example, if the right of
access crossing was approved for limited farm use and the farm has been
subdivided and numerous households want to use the crossing,
compensation will only be based on the limited farm use.
Page 29
Transport Legislation Amendment Bill 2008
Under Schedule 3 of the Act, the Director-General decisions under
subparagraphs 240F(3)(b)(i) and (ii) are reviewable and appealable.
Clause 17 amends section 253 (Extending roads through or over rail
corridor land). Under section 253, the Director-General of Queensland
Transport may give permission, subject to conditions, for a local
government to build a road on rail corridor land. The amendment extends
the provision to allow the Director-General of Queensland Transport to
give permission, subject to conditions, for a local government to build a
road on non-rail corridor land. Non-rail corridor land is land where the
railway has ceased to be operational with Queensland Transport continuing
to hold the land under the perpetual lease for a future transport use.
As there would be no railway on non-rail corridor land, relevant
infrastructure, defined in proposed subsection 253(9), replaces railway in
the existing provision.
With non-rail corridor land, there is no railway manager but the land may
be subleased to another entity, for example a local government for a
walking and cycling path. Relevant person is defined in proposed
subsection 253(9) and replaces railway manager in the existing provision.
Clause 18 amends section 255 (Interfering with railway) to exclude a right
of access granted under section 240E as being interference with a railway.
Clause 19 amends schedule 3 (Reviews and appeals) by making reviewable
and appealable certain decisions inserted by clause 16.
Division 4 Amendments for busway and light rail
purposes
Clause 20 amends section 302 (Declaration of land as busway land) to
ensure that passenger convenience facilities which are likely to be built at
busway stations can clearly be considered station infrastructure. Clause
20(1) deletes the word `necessary' from the clause which allows busway
land to be declared, removing ambiguity as to which facilities may be
considered as necessary. Clause 20(2) includes specific reference to a
combination of purposes that include busway purposes. This removes any
ambiguity or doubt that busway land may include all relevant purposes.
Clause 20(3) inserts a definition for `busway purposes' to make it clear that
busway purposes includes busway transport infrastructure.
Page 30
Transport Legislation Amendment Bill 2008
Clause 21 amends section 353 (Declaration of land as light rail land) to
ensure that passenger convenience facilities which are likely to be built at
light rail stations can clearly be considered station infrastructure. Clause
21(1) deletes the word "necessary" from the clause which allows light rail
land to be declared, removing ambiguity as to which facilities may be
considered as necessary. Clause 21(2) includes specific reference to a
combination of purposes that include light rail purposes. This removes any
ambiguity or doubt that light rail land may include all relevant purposes.
Clause 21(3) inserts a definition for `light rail purposes' to make it clear
that light rail purposes includes light rail transport infrastructure.
Clause 22 amends the definitions of busway transport infrastructure and
light rail transport infrastructure in schedule 6 (Dictionary). Clause 22(1)
amends the definition of busway transport infrastructure and Clause 22(2)
amends the definition of light rail transport infrastructure. This clause
ensures that passenger convenience facilities which are likely to be built at
busway or light rail stations can clearly be considered station
infrastructure.
The amended definitions will allow commercial and retail activities which
commonly are associated with transport stations, including newsagents,
chemists, dry cleaners, and repair services, to be considered a part of
station infrastructure. Additionally, services such as automatic teller
machines, cycle facilities, locker rooms and showers, when at a station,
will also be considered as transport infrastructure. As both commuter
needs and technology change over time, specific restrictions on the types of
services are avoided.
Part 4 Amendment of Transport
Legislation and Another Act
Amendment Act 2007
Clause 23 states that this part amends the Transport Legislation and
Another Act Amendment Act 2007.
Clause 24 repeals part 2 (Amendment of Maritime and Other Legislation
Amendment Act 2006) of the Transport Legislation and Another Act
Amendment Act 2007 (Act No.6 of 2007). That Act was not progressed in
time to correct a cross reference error in section 91 (Licence
Page 31
Transport Legislation Amendment Bill 2008
disqualifications, cancellations and suspensions) under the Maritime and
Other Legislation Amendment Act 2006. Section 91 inserted a new pt 15,
divs 2--4 into the Transport Operations (Marine Safety) Act 1994. The
cross reference error occurred in section 202K(7) where a reference to
section 202D(4) should have been a reference to section 202D(6).
Because section 91 commenced before the Transport Legislation and
Another Act Amendment Act 2007 received assent, the error came into force
under the Transport Operations (Marine Safety) Act 1994. Advice from
the Office of the Queensland Parliamentary Counsel required part 2 of the
Transport Legislation and Another Act Amendment Act 2007 to be repealed
and section 202K(7) of the Transport Operations (Marine Safety) Act 1994
corrected. Part 6 of this Bill includes the amendment to the Transport
Operations (Marine Safety) Act 1994.
Clause 25 omits sections 57(62) and 57(63) from the Transport Legislation
and Another Act Amendment Act 2007. The Transport Legislation and
Another Act Amendment Act 2007 introduced provisions dealing with drug
testing of drivers into the Transport Operations (Road Use Management)
Act 1995. Those provisions were, to a large extent, mirrored on existing
provisions within the Act relating to the breath/blood testing of drivers for
alcohol. Sections 57(62) and 57(63) of the Transport Legislation and
Another Act Amendment Act 2007 sought to mirror, for drug testing, an
existing provision dealing with the issue of a certificate by a health care
professional. The circumstances in which that certificate can be issued are
not, however, relevant to drug testing of drivers. The Bill will delete those
provisions from the Transport Legislation and Another Act Amendment Act
2007.
Part 5 Amendment of Transport
Operations (Marine Pollution)
Act 1995
Clause 26 states that this part amends the Transport Operations (Marine
Pollution) Act 1995.
Clause 27 inserts a new section 48A (Ship with fixed toilet operating in
prescribed nil discharge waters to be able to hold or treat sewage) which
Page 32
Transport Legislation Amendment Bill 2008
requires that all ships fitted with a toilet taken into prescribed nil discharge
waters must be able to hold or treat sewage onboard.
This will apply to non `declared ships' which are predominantly
recreational and commercial ships with fixed toilets onboard operating in
nil discharge waters. Maritime Safety Queensland is aware that many
vessel operators put a portable toilet on board to give the impression that
they are complying with the existing legislative provisions, but continue to
use the fixed onboard toilet. They continue to unlawfully discharge sewage
into nil discharge and prohibited discharge waters.
As a result many vessel operators are not complying with the intent of the
legislation. This situation particularly applies to ships in marinas and
smooth waters used for living aboard. Enforcement of the provisions is not
possible unless persons are actually caught in the act of discharging and
this is impractical.
The proposed maximum penalty of $63,750.00 (850 penalty units) is
consistent with other offence provisions in the Transport Operations
(Marine Pollution) Act 1995.
Clause 28 amends section 118 (Evidentiary provisions) to include
reference to an analyst. This is a consequential amendment to the new part
15A.
Clause 29 inserts a new part 15A (Appointment of analysts) into the
Transport Operations (Marine Pollution) Act 1995. This sets out how the
general manager may appoint suitable persons as analysts for the purposes
of the Transport Operations (Marine Pollution) Act 1995. Persons may
only be appointed as analysts for the Transport Operations (Marine
Pollution) Act 1995 if they are considered to have the necessary expertise
or experience. The conditions of appointment include the term of
appointment and allow Maritime Safety Queensland to properly maintain a
register of suitable persons. The new part also provides for what happens
when an analyst stops holding office and establishes how an analyst may
resign from the appointment.
Clause 30 inserts a new section 132F (Recovery of damages) into the
Transport Operations (Marine Pollution) Act 1995. This enables a person
who suffers loss or damage to property because of a discharge of a
pollutant prohibited under the Transport Operations (Marine Pollution) Act
1995 to recover costs via court and reflects other jurisdictions in Australia.
Page 33
Transport Legislation Amendment Bill 2008
Clause 31 omits section 135 (Review of Act). Section 135 of the Transport
Operations (Marine Pollution) Act 1995 requires that the Act be reviewed
10 years after its commencement and, within one year, a report of the
review be tabled in the Legislative Assembly by the Minister. Maritime
Safety Queensland has reviewed the Transport Operations (Marine
Pollution) Act 1995 in accordance with section 135. A report on the review
was tabled in Parliament by the Minister on 28 November 2006. As the
requirement is complete, the provision is obsolete and this amendment
removes it.
Clause 32 inserts a new part 17, division 3 (Provisions for Transport
Legislation Amendment Act 2008, part 5) to provide a number of
transitional provisions for the application of the change to the Maritime
Safety Queensland Act 2002, the changes regarding appointment of
analysts, actions done and documents made by analysts, and recovery of
damages under the Transport Operations (Marine Pollution) Act 1995.
Clause 33 amends the schedule (Dictionary) to omit the current definitions
of `analyst' and `authorised officer' and inserts updated definitions for
these terms. The definition of `Maritime Safety Queensland' is also
amended to reflect the change from `Maritime Safety Agency of
Queensland' to `Maritime Safety Queensland'.
Part 6 Amendment of Transport
Operations (Marine Safety) Act
1994
Clause 34 provides that the Act amended in part 6 is the Transport
Operations (Marine Safety) Act 1994.
Clause 35 amends section 87A (Owner of ship lost, abandoned or
stranded) of the Transport Operations (Marine Safety) Act 1994. Section
87A of the Transport Operations (Marine Safety) Act 1994 provides that a
direction may be given to the registered owner of a ship that is lost,
stranded or abandoned about the ship. This provision currently does not
make it clear that `registered owner' also means the registered owner of a
ship under the law of another State or Territory of Australia,
Commonwealth of Australia or overseas in any country. Clause 35 of the
Bill clarifies the intent of this provision by amending section 87A of the
Page 34
Transport Legislation Amendment Bill 2008
Transport Operations (Marine Safety) Act 1994 to insert a definition of
registered owner to mean the person who registered the ship under the
Transport Operations (Marine Safety) Act 1994, the law of another State or
Territory of Australia, the Commonwealth of Australia or overseas in any
country. The existing provision in section 87A that enables a person to
prove they are not the registered owner of a ship will continue to apply.
Clause 36 inserts a new section 199B (Courts may make orders about
apologies and other matters). The Transport Operations (Marine Safety)
Act 1994 allows for monetary penalties and imprisonment to be imposed
against persons successfully prosecuted for a breach of safety legislation.
However, there are no provisions that allow the courts to impose civil
penalties.
The amendment provides that a court, at its own discretion or upon
application by the prosecution, may apply a range of civil penalties in
addition to pecuniary penalties or imprisonment. For example, in cases
where a breach of the Transport Operations (Marine Safety) Act 1994 is
proven, a court will be able to order the defendant to undertake a range of
actions, including conducting an advertising or education campaign to
promote compliance with the Act, publishing an apology, putting in place a
system or modifying a ship to ensure compliance with the Act and reduce
the risk of future incidents.
These amendments are consistent with section 127 of the Transport
Operations (Marine Pollution) Act 1995 (Court may make orders about
rehabilitation, etc).
Clause 37 amends section 202K (Variation of restrictions) by omitting a
reference to section 202D(4) and inserting section 202D(6). This corrects a
minor typographical error in section 202K(7) of the Transport Operations
(Marine Safety) Act 1994.
In April 2007, the Maritime and Other Legislation Act 2006 included
section 91 which introduced new part 15, divs 2 - 4 to Transport
Operations (Marine Safety) Act 1994. This established a regime for
licence disqualifications, cancellations and suspensions and included new
section 202K(7). A typographical error in section 202K(7) incorrectly
referenced section 202D(4) instead of section 202D(6).
Clause 38 amends section 205 (False or misleading documents) of the
Transport Operations (Marine Safety) Act 1994.
Page 35
Transport Legislation Amendment Bill 2008
Currently section 205(1) of the Transport Operations (Marine Safety) Act
1994 provides that it is an offence for a person to knowingly give a false or
misleading statement to Queensland Transport in or on an approved form.
It is not always the case that the person who makes the statement (that is,
completes the form) will be the same person who actually gives the
document to Queensland Transport. For example, a Statement of Positive
Flotation is required when applying for registration of commercial ships
less than 6 metres in length. The person who gives this form to Queensland
Transport along with the registration form (the owner of the ship) may not
be the same person who completed the form. The person who completed
the form will be someone with expertise regarding a vessel's flotation such
as an accredited surveyor.
The amendment provides an offence to knowingly make a false and
misleading statement in or on an approved form to the department. The
offence is set at 200 penalty units (currently $15,000).
Clause 39 inserts a new part 19, division 4 (Provision for Transport
Legislation Amendment Act 2008, part 6) to provide for minor transitional
provisions. The provision relates to the changes regarding civil penalties.
Clause 40 amends the schedule (Dictionary) to reflect the change from
`Maritime Safety Agency of Queensland' to `Maritime Safety
Queensland'.
Part 7 Amendment of Transport
Operations (Passenger
Transport) Act 1994
Clause 41 provides that the Act amended in part 7 is the Transport
Operations (Passenger Transport) Act 1994.
Clause 42 inserts a new chapter 13, part 5 in the Transport Operations
(Passenger Transport) Act 1994 which provides that the new category C
driver disqualifying offences being introduced under clause 43 of this Bill
will apply from the date the Bill is assented to.
Page 36
Transport Legislation Amendment Bill 2008
Clause 43 amends the definition of a category C driver disqualifying
offence to include "an offence against the Summary Offences Act 2005,
section 9" (i.e. wilful exposure and aggravated wilful exposure).
Part 8 Amendment of Transport
Operations (Road Use
Management) Act 1995
Division 1 Act amended
Clause 44 provides that part 8 amends the Transport Operations (Road
Use Management) Act 1995.
Division 2 Amendment to commence on assent
Clause 45 amends section 124(1)(l) (Facilitation of proof) of the Transport
Operations (Road Use Management) Act 1995. The Act contains
numerous provisions assigning powers and functions to the chief executive.
In practice, many of these powers are exercised and functions performed by
delegates of the chief executive. This delegation of powers and functions is
provided for in section 37 of the Transport Planning and Co-ordination Act
1994 and section 57 of the Public Service Act 1996. Section 124(1)(l) of
the Transport Operations (Road Use Management) Act 1995 refers to "the
chief executive or the chief executive's delegate". Because of the general
ability for the chief executive to delegate the exercise of a power, the words
"or the chief executive's delegate" are not necessary and will be deleted.
This will remove any uncertainty those words might create and will clarify
that the chief executive has the authority to delegate all powers and
functions contained in the Transport Operations (Road Use Management)
Act 1995. Section 27A of the Acts Interpretation Act 1954 will apply to
that delegation and will, for example, allow a certificate under section
124(1)(1) to be signed by a delegate of the chief executive.
Page 37
Transport Legislation Amendment Bill 2008
Division 3 Amendments to commence by
proclamation
Clause 46 amends section 18 (Grounds for amending, suspending or
cancelling approvals) to insert new grounds on which the chief executive
can amend, suspend or cancel an accreditation or exemption granted under
a fatigue management regulation. The first of these new grounds relates to
the suitability of the person to whom the accreditation or exemption has
been granted. The second ground relates to a change in circumstances
since the accreditation or exemption was granted.
Clause 47 amends section 35 (Power to enter vehicles etc. other than for
vehicle inspection) to make it clear that the power of an authorised officer
to copy a document in a vehicle includes the power to download
information contained on a disk, tape or other device in the vehicle. This
has been included as an example of the power contained in section 35(2)
(e).
Clause 48 amends section 35B (Further powers to access stored
information or to decide if anything found in a heavy vehicle may be
seized) to clarify that the section enables not only the accessing but also the
downloading of information contained on anything found in or at the
vehicle.
Clause 49 inserts a new chapter 3, part 3, division 2, subdivision 6 into the
Act (Further powers in relation to fatigue regulated heavy vehicles).
The new subdivision contains new sections 39I- 39O.
New section 39I is an application section. The section states that the
subdivision applies to a fatigue regulated heavy vehicle regardless of
whether the vehicle is, has been, or becomes the subject of a direction or
requirement given or made by an authorised officer under another
provision of the part.
New section 39J (Meaning of fatigue regulated heavy vehicle) inserts a
definition of fatigue related heavy vehicle. This is defined as a motor
vehicle with a Gross Vehicle Mass of more than 12t, a combination with a
Gross Vehicle Mass of more than 12t or a bus. However, there are also a
number of specified vehicles that are expressly excluded from the
definition. It is only a fatigue related heavy vehicle as defined by this
section that is subject to the heavy vehicle reforms introduced by this Bill.
Page 38
Transport Legislation Amendment Bill 2008
New section 39K (Requiring person to rest for contravention of maximum
work requirement) contains powers for an authorised officer to direct a
person in control of a fatigue regulated heavy vehicle to take certain
specified actions if the officer reasonably believes the person has worked
for a period in excess of the maximum period allowed under a "maximum
work requirement". (The term "maximum work requirement" is a newly
defined term inserted into schedule 4 by clause 65. It is a requirement of a
fatigue management regulation relating to the maximum period a driver
may drive a fatigue regulated heavy vehicle, or otherwise work, without
taking a rest).
The nature of the powers contained in section 39K varies according to the
risk category of the breach detected. If the excess period worked has
resulted in the person committing a critical risk or severe risk breach, the
authorised officer must require the person:
· To immediately take a stated period of rest in accordance with a
minimum rest requirement applying to the person; and
· To work for a stated shorter period in the person's next work period to
compensate for the excess period worked.
If the breach amounts to a substantial or minor risk breach, the authorised
officer has the option to require the person to take the action set out above.
The terms critical, severe, substantial and minor risk breach in relation to a
maximum work requirement are newly defined terms which reflect the
severity of the breach and have been incorporated into schedule 4 of the
Act by clause 65.
New section 39L (Requiring person to rest for contravention of minimum
rest requirement) contains powers for an authorised officer to direct a
person in control of a fatigue regulated heavy vehicle to take certain
specified actions if the officer reasonably believes the person has taken a
rest period that is shorter than the minimum rest period required under a
"minimum rest requirement". (The term "minimum rest requirement" is a
newly defined term inserted into schedule 4 by clause 65. It is a
requirement of a fatigue management regulation relating to the minimum
period a driver of a fatigue regulated heavy vehicle must rest to break up
the period of time the driver drives the vehicle or otherwise works).
The nature of these powers varies according to the risk category of the
breach detected. If an authorised officer reasonably believes the
contravention is a critical risk or severe risk breach, the authorised officer
must require the person:
Page 39
Transport Legislation Amendment Bill 2008
· To immediately take a stated period of rest to compensate for the
shortfall between the rest period taken by the person and the minimum
rest period required under the minimum rest requirement; and
· If the person has failed to take one or more night rest breaks required
under a minimum rest requirement - to take one or more night rest
breaks to compensate for the shortfall between the number of night
rest breaks taken by the person and the number of night rest breaks
required under the minimum rest requirement.
The term "night rest break" has the meaning given by the fatigue
management regulation prescribing the minimum rest requirement (see
subsection (4)).
If the breach in question amounts to a substantial or minor risk breach, the
authorised officer has the option to require the person to take the action set
out above. The terms critical, severe, substantial and minor risk breach are
new defined terms which reflect the severity of the breach and have been
incorporated into schedule 4 of the Act by clause 65.
New section 39M (Requiring person to stop working if impaired by
fatigue) provides a power to an authorised officer if the officer reasonably
believes the person in control of a fatigue regulated heavy vehicle is
impaired by fatigue. The definition of "impaired by fatigue" is a newly
defined term inserted into schedule 4 by clause 65. It is defined as being
when a driver is fatigued to the extent that he or she is incapable of driving
a vehicle safely. Under subsection (2)(a), the officer may require the
person to immediately stop work and not work again for a stated period.
Subsection (3) provides that the stated period must be a reasonable period
having regard to a number of factors set out in that subsection.
Subsection (2)(b) deals with the instance that the officer has observed the
person driving in a way the officer considers on reasonable grounds to be
dangerous. In addition to giving a notice under subsection (2)(a), the
officer may require the person to stop being in the control of the vehicle
immediately under subsection (2)(b). Subsection (4) then allows the
officer to authorise a person who is qualified and fit to drive the vehicle to
move it to a suitable rest place for fatigue regulated heavy vehicles.
Subsection (5) provides that a regulation may prescribe the matters to
which the authorised officer, or a court, must or may have regard when
deciding whether or not a person was impaired by fatigue for this section.
Page 40
Transport Legislation Amendment Bill 2008
New section 39N (Requiring person to stop working if work diary not
produced or unreliable) provides the power for an authorised officer to
require a person in control of a fatigue regulated heavy vehicle to
immediately stop work and to not work again for a stated period of up to 24
hours, if the person does not produce a work diary when asked by the
authorised officer under section 49 of the Act. This power also applies if
the person produces a document that the officer reasonably believes is not a
work diary, or the officer reasonably believes the diary that is produced can
not be relied upon as an accurate record of the time the person recently
spent working or resting. Examples of when the officer may reasonably
believe that a diary can not be relied on as an accurate record are included
in the section.
New section 39O (Compliance with requirement under this subdivision) is
a penalty provision that provides that a person given a notice under this
new subdivision (that is, a notice given under sections 39K - N) must
comply with the notice unless the person has a reasonable excuse. The
maximum penalty is $9,000 (120 penalty units). Subsection (2) provides
the ability to allow up to 1 hour delay for complying with a notice in
relation to all powers other than in relation to a person the authorised
officer reasonably believes is impaired by fatigue (that is a notice given
under section 39M). Subsection (2) also qualifies when the 1 hour delay
may be allowed in relation to complying with a notice given under sections
39K, 39L or 39N.
Clause 50 amends section 49 (Power to require documents to be produced)
to include reference to a work diary, in addition to the existing reference to
logbook.
Clause 51 amends section 53B (False or misleading transport
documentation for goods) to insert the words "loading manager". This is a
consequential amendment due to the amendment of the definition of the
word "loader" and the addition of the defined term "loading manager".
Clause 52 inserts new section 57AB which contains definitions for chapter
3, part 5, division 1, subdivision 2. This subdivision deals with extended
liability offences. The definitions of "extended liability offence" and
"influencing person" which are contained in the current section 57B in
relation to mass, dimension and loading offences have been transferred into
this new section. These definitions have also been extended to cater for
definitions necessary for an offence committed by a person in control of a
fatigue regulated heavy vehicle in relation to a maximum work requirement
Page 41
Transport Legislation Amendment Bill 2008
or minimum rest requirement, a work and rest hours option requirement,
and a work diary requirement.
For example for an offence relating to a contravention of a maximum work
requirement or minimum rest requirement (both defined in schedule 4 as
inserted by clause 65), an "influencing person" includes the following (as
defined in schedule 4 where relevant):
· The employer of the driver of the heavy vehicle;
· A person who schedules the transport of any goods or passengers by
the vehicle;
· A person who schedules the work and rest times of the driver of the
vehicle;
· The consignor of any goods in the vehicle;
· The consignee of any goods in the vehicle; and
· The loading manager of any goods in the vehicle.
Each of these influencing persons is a key party that has been identified as
having responsibilities in relation to ensuring that persons in control of
heavy vehicles do not commit driver fatigue offences. This amendment
means that if the person in control of a heavy vehicle (for example, the
driver) breaches a maximum work requirement or minimum rest
requirement, then each of these parties is taken to have committed the
offence. This is the consequence of the new definitions as they will apply
to section 57B which contains Queensland's chain of responsibility
provision. Note however that the influencing person has access to defences
under section 57B. One of these is the "reasonable steps defence" (see
further notes in relation to clause 55 below).
New section 57AB provides a more limited definition of "influencing
person" in relation to an offence relating to a contravention of a work and
rest hours option requirement (defined in schedule 4 as inserted by clause
65), and for an offence relating to a contravention of a work diary
requirement (defined in schedule 4 as inserted by clause 65).
Clause 53 amends section 57B (Further liability provisions for extended
liability offences) by transferring the definitions of "associate", "holding
company", "security interest" and "subsidiary" into the new section 57AB.
Clause 54 amends section 57C (Liability for inducing breaches of mass,
dimension or loading requirements - consignees) by deleting from section
57C the definition of consignee since this definition has now been
Page 42
Transport Legislation Amendment Bill 2008
relocated to schedule 4 due to its application to sections in addition to
section 57C.
Clause 55 amends section 57D (Reasonable steps defence) to apply the
existing explanation of the reasonable steps defence to fatigue management
offences (in addition to its existing application to mass, dimension and
loading offences). Existing subsection (2) which provides what the court
may have regard to in relation to someone charged with a mass, dimension
or loading offence has been relocated to new section 57DA as inserted by
clause 56.
Clause 56 inserts new sections 57DA-57DD.
New section 57DA contains matters that a court may consider for deciding
whether a person took all reasonable steps in relation to heavy vehicle
mass, dimension or loading offences. These matters were previously
contained in section 57D.
New section 57DB contains matters that a court may consider for deciding
whether a person charged with a fatigue management offence took
reasonable steps.
New section 57DC specifies when a person charged with a fatigue
management offence is to be regarded as having taken all reasonable steps
to prevent the act or omission that led to the contravention to which the
offence relates. The matters listed in the section include that the person:
· identified and assessed on a regular basis, risks that may lead to the
contravention of a fatigue management requirement; and
· took measures to eliminate those risks or, if it is not reasonably
possible to eliminate the risk, to minimise the risk.
New section 57DD provides that a regulation may provide for the ways, or
examples of ways, persons can identify and assess the aspects of activities
of the persons, or relevant drivers, that may lead to a contravention of a
fatigue management requirement by a relevant driver and the measures, or
examples of measures, persons may take to eliminate or minimise risks of
aspects of activities of the persons, or relevant drivers, leading to a
contravention of a fatigue management requirement by a relevant driver.
Clause 57 amends section 57E (Inclusion of reasonable diligence) which
contains a drafting improvement by including the words `or is not liable' to
make the intent of the section clearer.
Page 43
Transport Legislation Amendment Bill 2008
Clause 58 amends section 60 (Evidentiary aids) to include reference to a
work diary in addition to the existing reference to logbook.
Clause 59 amends section 150 (Regulating driver management) by
replacing the existing subsection (1)(g) with a head of power provision
which specifies that a regulation may prescribe rules providing for the
management of fatigue of drivers of heavy vehicles.
Clause 60 renumbers the existing section 150AB (Driver licensing
regulation prevails over rules of court) as section 150AC.
Clause 61 inserts new section 150AB (Regulating management of fatigue
of drivers of heavy vehicles) which provides a head of power detailing the
matters for which a regulation may provide under this part concerning the
management of fatigue of drivers of heavy vehicles.
Clause 62 inserts new section 150C (Proceedings for particular offences
involving requirements about fatigue regulated heavy vehicles) which
provides a new evidentiary provision in relation to proceedings for an
offence against a fatigue management regulation that may be committed by
a person failing to take all reasonable steps to ensure that another person
does not drive a fatigue regulated heavy vehicle while impaired by fatigue.
Clause 63 inserts a new chapter 6, part 1, heading - Provisions for mass,
dimension or loading requirement.
Clause 64 inserts a new chapter 6, part 2 and part 3 heading - Provision for
offences about heavy vehicle driver fatigue. This clause also inserts a new
section 163D (Deciding whether person knew or ought reasonably to have
known something) which is an evidentiary provision for offences about
heavy vehicle driver fatigue. This section is in relation to a proceeding in
which it is relevant to prove that someone ought reasonably to have known
something. The provision provides that a court must consider a number of
factors when deciding whether the person ought reasonably to have known
the thing.
Clause 64 also inserts a new heading "Part 3 - Other provisions".
Clause 65 amends schedule 4 (Dictionary) to insert a number of new
definitions to support other amendments contained in this Bill.
Page 44
Transport Legislation Amendment Bill 2008
Part 9 Amendment of Transport
Planning and Coordination Act
1994
Clause 66 provides that this part amends the Transport Planning and
Coordination Act 1994.
Clause 67 amends section 3 (Definitions). This clause defines; a
complementary purpose, a transport associated development and a
prescribed transit node.
A complimentary purpose has been defined to include transport associated
development. This would enable land to be disposed for a transport
associated development under section 27(1) of the Act.
A prescribed transit node is defined as a location declared under a
regulation to be a prescribed transit node. Regulation making powers are
addressed in clause 70.
The definition of a transport associated development refers to
developments which are focussed on the integration of land use with
transport infrastructure and services considered to support public transport
use. The definition draws on the objectives of Part 2A of the Act which
aim to encourage increased integration between land use and transport by
ensuring that, as far as practicable, development does not have a significant
adverse impact on existing and future public passenger transport and public
passenger transport offers an attractive alternative to private transport in a
way that reduces the overall economic, environmental and social costs of
transport. Part 2A aims to promote urban development that maximises the
use of public passenger transport and increases opportunities for people to
access public passenger transport, including access by cycling and walking;
and ensures, as far as practicable, the provision of public passenger
transport infrastructure to support public passenger transport.
The definition of transport associated development provides that the
development support the integration of a prescribed transit node into the
community within which it is located. Transit nodes will be prescribed by
regulation and can include bus, light rail or rail stations and other transport
facilities. Such developments would provide easy access to and from the
prescribed transit node and could be expected to be within walking distance
of the prescribed transit node.
Page 45
Transport Legislation Amendment Bill 2008
In determining what may constitute integration into a prescribed transit
node, the principles established in statutory planing documents such as the
South East Queensland Regional Plan or other statutory planning
documents would provide the guiding framework. Examples of relevant
principles in the South East Queensland Regional Plan include the support
of a more compact pattern of urban development and the promotion of self-
contained travel in sub-regions by integrating transport and land use
planning.
Well integrated commercial centres, recreational centres and medium and
high density residential developments are amongst the developments
considered likely to promote the prescribed transit node as an origin and
destination for public transport users.
Clause 68 amends section 25 (General Powers regarding property). This
amendment is intended to allow for integrated development surrounding
key public transport stations which support public passenger transport use.
Subclause 68(1) amends section 25(1) of the Act to enable the chief
executive to acquire, hold, dispose of or otherwise deal with properties for
the purpose of a transport associated development only if the land was first
required for the purposes of transport or, for an incidental purpose, or for a
combination of these purposes. This limitation is referred to in the notation
expressed at the end of the provision regarding the introduction of a new
section 25(2A).
Subclause 68(2) amends section 25(2) which is also amended in a similar
fashion as section 25(1), with reference to the chief executive's resumption
powers. The chief executive's powers under this provision are also limited
by the introduction of a new section 25(2A).
Subclause 68(3), provides a new subsection 25(2A) which limits the
resumption powers as amended under subclause 68(1). It provides that any
resumption for the purposes of a transport associated development under
section 25(1) or (2) as amended, must first have been required, at the time
of acquisition, for either the purposes of transport or for an incidental
purpose or a combination of those purposes. Section 25(2A) ensures that
the proposed amendments do not broaden the chief executive's existing
resumption powers beyond those powers that currently exist.
Page 46
Transport Legislation Amendment Bill 2008
Subclause 68(5) amends section 25(8) which ensures that transport
associated development under the amended subsection 25(1) can be
considered a purpose for which land can be taken under the Acquisition of
Land Act 1967.
Clause 69 amends section 27 (Power of chief executive to lease, sell or
otherwise dispose of land). Subclause 69(1) amends section 27(1), by
inserting a new subsection 27(1)(ba) to provide for the disposal of land for
the purposes of transport associated development. Under this provision,
land acquired under section 25 can be sold or leased to another person for
the purposes of transport associated development.
Subclauses 69(2) & (4) contain amendments to correct referencing.
Subclause 69(3) inserts a notation into section 27(2) which clarifies that the
Acquisition of Land Act 1967 does not apply to section 27(1).
Clause 70 inserts a new section 28AA (Declaration of prescribed transit
node) for the declaration of a `prescribed transit node' by regulation. Any
existing or proposed busway, light rail or rail station or another transport
facility may be declared a prescribed transit node. In making such a
declaration the Minister, when making the regulation, may have regard to
key planning documents which may be relevant to the need for or location
of a transit node. Examples of current regional plans are provided but it is
anticipated that any major planning document which outlined the intended
shape of future growth and development would be used to inform the
decision.
Part 10 Repeal and other minor
amendments
Clause 71 repeals the National Rail Corporation (Agreement) Act 1991.
Clause 72 contains a schedule of minor amendments to the following Acts:
Tow Truck Act 1973
Transport Infrastructure Act 1994
Transport Operations (Marine Pollution) Act 1995
Transport Operations (Passenger Transport) Act 1994
Page 47
Transport Legislation Amendment Bill 2008
Transport Operations (Road Use Management) Act 1995
Transport Planning and Coordination Act 1994
© State of Queensland 2008
Page 48