After section 5C (as redesignated under section 6
of this Act) insert:
5D—Liability for certain offences from vehicles
(1) If—
(a) an activity is carried on—
(i) in, at or from a vehicle; or
(ii) in connection with the use of a vehicle; and
(b) the activity results in a principal offence,
the owner of the vehicle is guilty of an offence against this section and is liable to the same penalty as is prescribed for the principal offence and the expiation fee (if any) that is fixed for the principal offence also applies in relation to the offence against this section.
(2) However, the owner of a vehicle and the person who committed the principal offence (the "alleged principal offender") are not both liable through the operation of this section to be found guilty of, or to expiate, an offence arising out of the same circumstances, and consequently a finding of guilt in relation to, or expiation by, the owner exonerates the alleged principal offender and conversely a finding of guilt in relation to, or expiation by, the alleged principal offender exonerates the owner.
(3) An expiation notice or expiation reminder notice given under the Expiation of Offences Act 1996
to the owner of a vehicle for an alleged offence against this section involving the vehicle must be accompanied by a notice inviting the owner, if he or she was not the alleged principal offender, to provide the issuing authority specified in the notice, within the period specified in the notice, with a statutory declaration—
(a) setting out the name and address of the person who the owner believes to have been the alleged principal offender; or
(b) if he or she had transferred ownership of the vehicle to another prior to the time of the alleged principal offence and has complied with the Motor Vehicles Act 1959
or the Harbors and Navigation Act 1993
(as the case may require) in respect of the transfer—setting out details of the transfer (including the name and address of the transferee).
(4) If the vehicle is owned by 2 or more persons—
(a) a prosecution for an offence against this section may be brought against 1 of the owners or against some or all of the owners jointly as co-defendants; and
(b) if the case for the prosecution is proved and a defence is not established, the defendant or each of the defendants who does not establish a defence is liable to be found guilty of an offence against this section.
(5) Before proceedings are commenced against the owner of a vehicle for an offence against this section, the informant must send the owner a notice—
(a) setting out particulars of the alleged principal offence; and
(b) inviting the owner, if he or she was not the alleged principal offender or the owner of the vehicle at the time of the alleged principal offence, to provide the informant, within 21 days of the date of the notice, with a statutory declaration setting out the matters referred to in subsection (3)(a)
and (b)
.
(6) Subsection (5)
does not apply to—
(a) proceedings commenced where an owner has elected under the Expiation of Offences Act 1996
to be prosecuted for the offence; or
(b) proceedings commenced against an owner of a vehicle who has been named in a statutory declaration under this section as the alleged principal offender.
, in proceedings against the owner of a vehicle for an offence against this section, it is a defence to prove—
(a) that, in consequence of some unlawful act, the vehicle was not in the possession or control of the owner at the time of commission of the alleged principal offence; or
(b) that the owner provided the informant with a statutory declaration in accordance with an invitation under this section.
(8) The defence in subsection (7)(b)
does not apply if it is proved that the owner made the declaration knowing it to be false in a material particular.
(9) If—
(a) an expiation notice is given to a person named as the alleged principal offender in a statutory declaration under this section; or
(b) proceedings are commenced against such a person,
the notice or summons, as the case may be, must be accompanied by a notice setting out particulars of the statutory declaration that named the person as the alleged principal offender.
(10) The particulars of the statutory declaration provided to the alleged principal offender must not include the address of the person who provided the statutory declaration.
(11) In proceedings against a person named in a statutory declaration under this section for the offence to which the declaration relates, it will be presumed, in the absence of proof to the contrary, that the person was present in or at the vehicle at the time at which the alleged principal offence was committed.
(12) In proceedings against the owner of a vehicle or the alleged principal offender for an offence against this Act, an allegation in the information that a notice was given under this section on a specified day will be accepted as proof, in the absence of proof to the contrary, of the facts alleged.
(13) For the purposes of this section, an activity consisting of the disposal of waste or other matter to the environment will be presumed, in the absence of proof to the contrary, to have been carried on in connection with the use of a vehicle if the waste or matter has been disposed of to the environment and the vehicle was seen arriving at the place of disposal before the disposal or leaving that place after the disposal.
(14) This section does not apply in relation to the disposal of waste or other matter by a passenger of a taxi or a train, tram, bus, ferry, passenger ship, or other public transport vehicle, that was being used for a public purpose at the time.
(15) In this section—
"owner" of a vehicle—
(a) in the case of a vessel within the meaning of the Harbors and Navigation Act 1993
, has the same meaning as in section 4(1) of that Act, and includes the operator of the vessel within the meaning of that Act;
(b) in the case of a vehicle within the meaning of the Road Traffic Act 1961
, has the same meaning as in section 5(1) of that Act, and includes the operator of the vehicle within the meaning of that Act;
"principal offence" means—
(a) an offence against section 34 (contravening a mandatory provision of an environment protection policy); or
(b) an offence against—
(i) Part 8 Division 2; or
(ii) Part 9; or
(c) an offence prescribed by regulation.