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Accident Towing Services Bill 2007
Introduction Print
EXPLANATORY MEMORANDUM
General
The purpose of this Bill is to promote the safe, efficient and timely provision
of accident towing services and other related services.
The objectives of the Bill are to--
· promote the safe, efficient and timely provision of accident
towing services and other related services; and
· ensure that people who are providing accident towing
services--
· are of appropriate character;
· are technically competent to provide the services; and
· when providing the services, act with integrity and in a
manner that is safe, timely, efficient and law abiding,
and in particular, that regard is had for vulnerable
people.
The Bill establishes a contemporary framework for the regulation of accident
towing services in Victoria by--
· transferring powers, functions and responsibilities for industry
regulation from the Director of Public Transport to VicRoads;
· remaking the existing regulatory framework in Division 8 of
Part VI of the Transport Act 1983;
· deregulating the trade towing sector, as regulation of that sector
is no longer necessary;
· introducing a modern accreditation regime to provide
assurance that accident towing operators, depot managers and
tow truck drivers are of suitable character and competence to
provide relevant services;
561012 1 BILL LA INTRODUCTION 17/4/2007
· enabling the Minister to determine service standards in relation
to complaints handling to facilitate improved service and for
industry monitoring purposes;
· providing for improved and proportionate enforcement powers
and sanctions; and
· including changes and drafting improvements determined after
industry consultation held during 2005 and 2006.
Clause Notes
PART 1--PRELIMINARY
Part 1 of the Bill outlines the purpose and objectives of the Bill and contains
the commencement and interpretative provisions, including definitions.
Clause 1 sets out the main purpose of the Bill, which is to provide for the
safe, efficient and timely provision of accident towing services
and other related services in Victoria.
Clause 2 provides for Clause 1, this clause and clause 10 of Schedule 3 to
come into operation on the day after the Bill receives Royal
Assent. The remaining provisions of the Bill are to come into
operation on a day to be proclaimed. If the remaining provisions
of the Bill have not come into operation before 1 January 2009,
the Bill provides that they come into operation on that day.
Clause 3 sets out definitions for the purposes of the Bill. Key terms
include accident damaged motor vehicle, accident towing
service, road accident scene, regular tow truck and heavy tow
truck. The clause also explains what is meant by a finding of
guilt or a reference to a charge that has not been finally disposed
of.
Clause 4 sets out the objectives of the Bill, which are--
· to promote the safe, efficient and timely provision of
accident towing services and related services; and
· to ensure that persons providing accident towing
services are of appropriate character, technically
competent to provide the services and when providing
the services will act with integrity and in a manner that
is safe, timely, efficient and law abiding.
Clause 5 provides that the Bill is to bind the Crown.
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PART 2--REQUIREMENTS AS TO TOW TRUCKS
Part 2 sets out the requirements for tow truck operators. It sets out
requirements for the various types of licences, and deals with processes for
the application, authorisation and issue of licences.
Division 1--Requirements for operating and driving certain
tow trucks
Clause 6 establishes requirements relating to the operation of regular tow
trucks providing accident towing services. It is an offence to
operate a regular tow truck for the purpose of providing an
accident towing service unless--
· the person holds a towing operator accreditation;
· the person holds a regular tow truck licence for that
truck;
· the truck is providing accident towing services in
relation to an accident damaged motor vehicle that has a
gross vehicle mass of less than 4 tonnes; and
· the person is the registered operator (under the Road
Safety Act 1986) of the tow truck.
A regular tow truck must be operated from the depot specified in
the licence.
A person who contravenes this clause is guilty of an offence and
is liable to a penalty not exceeding 60 penalty units (for a natural
person) or 300 penalty units (for a body corporate).
Clause 7 establishes requirements relating to the operation of heavy tow
trucks providing accident towing services. A heavy tow truck is
a tow truck capable of towing a damaged motor vehicle that has a
gross vehicle mass of 4 tonnes or more. This provision generally
contains similar requirements to those that apply to regular tow
trucks under clause 6, except that it applies to heavy tow truck
towing.
A person who contravenes this clause is guilty of an offence and
is liable to a penalty not exceeding 60 penalty units (for a natural
person) or 300 penalty units (for a body corporate).
Clause 8 provides that a person must not drive a regular tow truck for the
purposes of providing an accident towing service unless a regular
tow truck licence authorises its operation.
A person who contravenes this clause is guilty of an offence and
is liable to a penalty not exceeding 60 penalty units.
3
Clause 9 provides that a person must not drive a heavy tow truck for the
purposes of providing an accident towing service unless a heavy
tow truck licence authorises its operation.
A person who contravenes this clause is guilty of an offence and
is liable to a penalty not exceeding 60 penalty units.
Division 2--Licensing
Clause 10 provides for the issue of regular tow truck licences.
Subclause (1) provides that VicRoads may licence a person to
operate a regular tow truck specified in the licence--
· for the purposes of providing accident towing services
in relation to accident damaged motor vehicles with a
gross vehicle mass of less than 4 tonnes; and
· from the depot specified in the licence.
Subclauses (2) and (3) set out special provisions for VicRoads to
issue licences for regular tow trucks dealing with the Link road,
Extension road, Eastlink or any other designated road when
authorised by the Minister to do so.
Clause 11 provides for the issue of heavy tow truck licences.
Subclause (1) provides that VicRoads may licence a person to
operate a heavy tow truck specified in the licence--
· for the purposes of providing accident towing services
for accident damaged vehicles with a gross vehicle mass
of 4 tonnes or more; and
· from the depot specified in the licence.
Subclause (2) sets out special provisions for VicRoads to issue
licences for heavy tow trucks dealing with the Link road,
Extension road, Eastlink or any other designated road when
authorised to do so by the Minister.
Clause 12 requires the issue of licences by VicRoads to be in accordance
with an authorisation of the Minister under Division 3.
Division 3 essentially sets out the circumstances in which the
Minister may authorise the issue of new tow truck licences.
Subclause (2) provides for VicRoads to issue a new licence
where a limited tow truck licence ceases to be held by a person in
circumstances provided for under clause 13, in substitution of the
licence that has ceased to be in force.
4
Clause 13 sets out the periods for which a tow truck licence remains in
force.
· Generally, a tow truck licence remains in force until
cancelled or surrendered.
· If a limited tow truck licence held by a relevant agency
(or its contractor) or the Freeway Corporation (or its
contractor) ceases to be held by it, the licence ceases to
be in force.
Division 3--Authorisation for issue of new tow truck licences
Clause 14 empowers the Minister to authorise the issuing of regular tow
truck licences for an area.
Subclause (2) sets out circumstances in which the Minister must
not make an authorisation in relation to a controlled area.
These are--
· unless the Minister considers it to be in the public
interest to do so, unless the licence is to replace a
cancelled licence or unless the Minister considers there
are exceptional circumstances;
· in relation to the Link road, Extension road or EastLink:
unless the licence is issued to the particular agency or
Freeway Corporation (or a person contracted to provide
accident towing services) and the Minister considers it
is necessary to enable the agency or corporation to
perform its statutory functions.
Subclause (3) sets out the circumstances in which the Minister
must not make an authorisation for an area that is not in a
controlled area.
Subclause (4) requires the Minister to specify the number of
licences authorised to be issued.
Subclause (5) provides that the Minister may require VicRoads to
impose conditions on the licences, or specify fees that are
payable for the licences.
Clause 15 empowers the Minister to authorise the issuing of heavy tow
truck licences for an area. The clause generally contains similar
requirements for heavy tow truck licences to those that apply to
regular tow truck licences under clause 14.
5
Clause 16 requires the publication in the Government Gazette of notice of
Ministerial authorisations for the issue of tow truck licences.
Division 4--Process for issuing new tow truck licences
Clause 17 provides for VicRoads to publish a notice in the Government
Gazette on being authorised to issue new non-limited tow truck
licences. This clause sets out the information that may be
specified in the notice, including the number of new licences
authorised to be issued, the procedures to be followed for issuing
a licence, details of fees to be paid and the application procedure.
Clause 18 allows a person to apply for a non-limited tow truck licence
where a notice has been published under clause 17.
Clause 19 provides that VicRoads must approve or refuse applications
within one year after the closing date for applications, and give
notice of the decision to the applicant.
Clause 20 sets out the circumstances in which VicRoads may approve an
application for a non-limited tow truck licence. VicRoads must
be satisfied that the applicant holds a towing operator
accreditation and is the registered operator of the tow truck and
that the required fee has been paid.
Subclauses (2) to (4) require an applicant whose application has
been approved to give VicRoads details of the tow truck within
90 days of receiving the notice. This period may be extended by
VicRoads. If details of the tow truck are not given within the
required period, the application approval is not valid.
Clause 21 provides for the issue of non-limited tow truck licences to
approved applicants, and sets out when VicRoads must issue the
licence.
Clause 22 gives VicRoads a discretion to issue a new limited tow truck
licence to a person with the authorisation of the Minister where
VicRoads is satisfied that the person holds a towing operator
accreditation.
Division 5--General provisions applying to tow truck licences
Clause 23 provides for the payment of fees on the issue of tow truck
licences. The clause distinguishes between fees for non-limited
and limited tow truck licences.
Clause 24 requires VicRoads to issue a certificate to a licence holder
evidencing the issue of the licence.
6
Clause 25 empowers VicRoads to impose conditions on the issue of a tow
truck licence. VicRoads, on its own initiative or on the
application of the licence holder, may vary or revoke a condition,
or impose new conditions. Notice must first be given to the
licence holder, to provide them with an opportunity to make
written submissions.
Subclause (4) provides that a licence is also subject to any
condition set out in regulations made under this Bill.
Clause 26 establishes an offence of failing to comply with licence
conditions.
A person who contravenes this clause is guilty of an offence and
is liable to a penalty not exceeding 30 penalty units (for a natural
person) or 150 penalty units (for a body corporate).
Clause 27 sets out an exemption from the general requirement that a tow
truck must be specified in respect of the licence. Holders of
regular tow truck licences in the Melbourne controlled area may
apply to VicRoads for an exemption.
Subclause (3) confers on VicRoads the power to alter the
specification of a tow truck in a licence. This envisages the
situation where the holder of a tow truck licence buys a new
vehicle to replace the vehicle specified in the licence.
In practice, this enables the holder of more than one licence to
obtain accident allocations in respect of all licences while
operating fewer tow trucks. For example, a person might hold
five licences but operate only four tow trucks. Therefore, one of
the licences would not specify a tow truck.
Clause 28 provides that a tow truck licence forms part of the property of the
licence holder.
Clause 29 empowers VicRoads to approve the transfer of a tow truck
licence from one licence holder to another.
VicRoads must be satisfied of the circumstances set out in
subclause (2) before it can approve a transfer. These include that
the holder must be accredited and be a registered operator of the
tow truck.
Clause 30 provides for a tow truck licence holder to apply to VicRoads for
approval of the transfer of the licence.
7
Clause 31 specifies that VicRoads must record the transfer of tow truck
licences in a register. The transfer must be recorded once
VicRoads has approved the transfer and received a document of
transfer.
Subclause (3) provides for VicRoads to amend licence
certificates to reflect the transfer.
Division 6--Cancellation and suspension of tow truck licences
Clause 32 provides that VicRoads may cancel or suspend a tow truck
licence if the holder has not complied with a licence condition or
a provision of the Bill, the Road Safety Act 1986, the Transport
Act 1983 or regulations under this Bill or one of those Acts.
Subclause (3) states that before the taking of the proposed action,
VicRoads must give notice to the licence holder and allow the
licence holder to make representations about the proposed action.
An exception applies where VicRoads considers it necessary to
take immediate action in the interests of public safety.
Subclause (5) requires VicRoads to notify the licence holder in
writing of details of any action taken, a statement of reasons and
the period of any suspension, as well as notifying the licence
holder of its rights of review of VicRoads' decision.
Clause 33 establishes that if a licence holder's towing operator accreditation
is cancelled, that person's tow truck licence is also cancelled.
This clause is intended to ensure that only accredited persons
hold tow truck licences. This does not apply if the licence is
transferred to another person within 60 days of the cancellation
of the accreditation.
Subclauses (3) and (4) contain equivalent provisions relating to
the suspension of a licence holder's towing operator
accreditation. A similar exemption applies where the tow truck
licence is transferred to another person within 60 days of the
accreditation being suspended.
Clause 34 requires a tow truck licence holder to surrender the licence
certificate to VicRoads on the cancellation or suspension of the
holder's towing operator accreditation.
A person who contravenes this clause is guilty of an offence and
is liable to a penalty not exceeding 20 penalty units.
8
Division 7--Permits to operate tow trucks in specific
circumstances
Clause 35 provides for VicRoads to issue a temporary permit to a tow truck
licence holder. A temporary permit may authorise operation of
the tow truck in a manner not specified in the licence. VicRoads
may impose conditions on and determine the length of the
temporary permit.
Subclause (5) requires the permit holder to comply with the
permit and its conditions.
A person who contravenes this subclause is guilty of an offence
and liable to a penalty not exceeding 30 penalty units (for a
natural person) or 150 penalty units (for a body corporate).
Subclause (6) provides that an offence is not committed under
Division 1 or clause 26 if that person is operating a tow truck
with a temporary permit.
Clause 36 provides that a driver using a temporary permit must carry the
permit in the tow truck.
A person who contravenes this clause is guilty of an offence and
is liable to a penalty not exceeding 20 penalty units.
Clause 37 requires a tow truck driver to produce the temporary permit if
asked to do so by certain persons, including an authorised officer
or police officer.
A person who contravenes this clause is guilty of an offence and
is liable to a penalty not exceeding 20 penalty units.
Division 8--Offences as to regular and heavy tow trucks
Clause 38 makes it an offence to fail to take care in driving or operating a
tow truck.
In relation to the driver towing an accident damaged motor
vehicle--
· the driver must not lose or damage the vehicle
(or anything in it);
· it is a defence if the person charged complied with an
applicable Code of Practice and took all precautions that
were appropriate in the circumstances.
9
In relation to the tow truck licence holder--
· the licence holder must take all reasonable steps to
ensure that any accident damaged motor vehicle
(or anything in it) being towed is not lost or damaged.
A person who contravenes this clause is guilty of an offence and
is liable to a penalty not exceeding 20 penalty units (for a natural
person) or 100 penalty units (for a body corporate).
Clause 39 makes it an offence for a driver to leave a tow truck standing at a
road accident scene for longer than a certain period.
The driver of a tow truck must not leave the tow truck standing
on a road at an accident scene in a manner that obstructs traffic
for longer than is necessary to get authority to tow and to load the
vehicle onto the tow truck.
A person who contravenes this requirement is guilty of an
offence and liable to a penalty not exceeding 20 penalty units.
Clause 40 provides that a driver of a tow truck must not allow anyone to
travel in an accident damaged motor vehicle being towed away
from a road accident scene.
Subclause (2) makes clear that this does not apply where the
towed vehicle is more than 4 tonnes and a person is needed to
steer the vehicle to ensure safe towing.
A person who contravenes this clause is guilty of an offence and
is liable to a penalty not exceeding 20 penalty units.
Clause 41 provides that a police officer or an authorised officer may give
directions to a tow truck licence holder or driver to leave a
restricted road accident area where the member or officer
believes the person's presence is causing an unwarranted
obstruction, or is hindering efforts to deal with the accident.
Subclause (3) provides that a person must not, without reasonable
excuse, fail to comply with a direction given.
A person who contravenes this clause is guilty of an offence and
is liable to a penalty not exceeding 20 penalty units.
Subclause (5) sets out a definition of restricted road accident
area.
10
Division 9--Operation of tow trucks in controlled areas
Clause 42 sets out the requirements for the operation of regular tow trucks
in a controlled area.
Licence holders or drivers in a controlled area must not attend a
road accident scene or tow accident damaged motor vehicles
without authorisation from the allocation body and allocation of a
job number.
The penalty for contravention of this clause is a penalty not
exceeding 100 penalty units for the holder of a regular tow truck
licence and 50 penalty units for the driver of a regular tow truck.
Subclause (3) sets out exceptions to the offence. These include
attendance at a road accident scene where the accident is on a
designated road, the Link road or Extension road, on Eastlink,
and where the motor vehicle is towed to a safe and convenient
place.
Clause 43 exempts the driving and operation of tow trucks which are being
used to salvage an accident damaged motor vehicle from the
requirement in clause 42.
Clause 44 prohibits the holder of a regular tow truck licence from causing
an accident damaged motor vehicle that has been towed to a safe
and convenient place under clause 42(3) to be towed from that
place unless the allocation body for that area has given a job
number authorising the tow.
A person who contravenes this clause is guilty of an offence and
is liable to a penalty not exceeding 100 penalty units.
Subclause (2) makes similar provision in relation to the driver of
a regular tow truck.
A person who contravenes this clause is guilty of an offence and
is liable to a penalty not exceeding 50 penalty units.
Clause 45 sets out further offences relating to allocations.
The holder of a regular tow truck licence must not cause more
than one motor vehicle to be towed under a job number by the
specified tow truck.
A person who contravenes this requirement is guilty of an
offence and is liable to a penalty not exceeding 100 penalty units.
11
The driver of a regular tow truck must not tow more than one
accident damaged motor vehicle from the accident scene for a job
number.
A person who contravenes this requirement is guilty of an
offence and is liable to a penalty not exceeding 50 penalty units.
Clause 46 provides for VicRoads to declare controlled areas by a notice
published in the Government Gazette.
Clause 47 empowers VicRoads to appoint an allocation body for a
controlled area by a notice published in the Government Gazette.
Clause 48 creates entitlements to the allocation roster. Each regular tow
truck licence authorised to operate from a specified depot in a
controlled area is entitled to one place on the road accident scene
roster for the controlled area.
Clause 49 sets out the circumstances in which roster entitlements can be
applied to another Melbourne licence held by a person who has
been exempted from a requirement to specify a tow truck in the
licence.
Clause 50 provides that allocation roster entitlements are linked to specified
licensed tow trucks, and are not separately transferable to another
person or another tow truck licence. Entitlements under the
licence are extinguished upon the cancellation of the licence.
Division 10--Self-management areas
Clause 51 establishes restrictions on the use of licensed regular tow trucks
in self-management areas. A self management area is an area
declared to be a self management area under clause 52.
Subclause (1) specifies that the holder of a regular tow truck
licence may only attend to an accident in a self-management area
if the specified depot for that licence is in the self-management
area.
A person who contravenes this clause is guilty of an offence and
is liable to a penalty not exceeding 50 penalty units.
Subclause (2) specifies that the holder of a regular tow truck
licence operating a tow truck from a depot in a self-management
area may only attend to an accident in the self-management area
if authorised to do so under this Bill.
A person who contravenes this clause is guilty of an offence and
is liable to a penalty not exceeding 100 penalty units.
12
Clause 52 provides for the establishment of self-management areas.
VicRoads may declare an area to be a self-management area, and
may outline the terms and conditions on which the area is to be
managed. A declaration may be amended or revoked at any time
by further declaration.
Division 11--Applications for review to VCAT
Clause 53 sets out rights to apply to VCAT for a review of a decision
affecting an applicant for a tow truck licence or the holder of a
tow truck licence.
Subclause (2) lists the decisions to which the clause applies.
These include: the issue or refusal to issue tow truck licences,
decisions to impose conditions on a licence, and the cancellation
or suspension of tow truck licences.
Clause 54 sets out the time period for making an application to VCAT.
PART 3--INDUSTRY ACCREDITATION
Part 3 of the Bill deals with the accreditation of towing operators and depot
managers. It introduces new accreditation arrangements for tow truck
operators and depot managers. These requirements are aimed at improving
industry performance by requiring persons seeking to act as accident towing
operators and depot managers to obtain accreditation from VicRoads to
perform the activities associated with these roles. The purpose of the
accreditation scheme is to provide assurance that accident towing operators
and depot managers are of suitable character and can meet appropriate
service standards. The Minister may make accreditation service standards to
support the new requirements.
This Part also makes provisions for certificates of accreditation, disciplinary
action, and rights of review to VCAT.
Division 1--Objective and requirement for accreditation
Clause 55 sets out the objective for industry accreditation. The objective
is--
· the provision of safe, reliable and efficient accident
towing services; and
· ensuring that persons providing accident towing
services are of appropriate character and, when
providing the services, act with integrity and in a
manner that is safe, timely, efficient and law abiding.
13
Clause 56 sets out offences of operating or managing an accident towing
service business without accreditation.
A person must not--
· carry on an accident towing service business unless the
person holds a towing operator accreditation;
· manage an accident towing service business from a
depot without holding a towing depot manager
accreditation; or
· falsely represent that the person is accredited or holds a
specified kind of accreditation.
A person who contravenes any of these requirements is guilty of
an offence and is liable to a penalty not exceeding 60 penalty
units (for a natural person) or 300 penalty units (for a body
corporate).
Clause 57 empowers VicRoads to accredit persons to carry on an accident
towing service business or to manage an accident towing service
business from a depot.
Clause 58 sets out the period for which the accreditation remains in force.
Division 2--Application for accreditation
Clause 59 provides for applications for the grant or renewal of a towing
operator accreditation or towing depot manager accreditation.
An unincorporated body or association is not capable of applying
for accreditation.
Clause 60 sets out the requirements for making an application to VicRoads.
Clause 61 provides that VicRoads may require the applicant to supply
further information or verify information supplied for the
purposes of accreditation.
Clause 62 provides that the Chief Commissioner of Police may notify
VicRoads of any relevant findings of guilt of an applicant or
relevant person in relation to the applicant for accreditation.
Relevant person in relation to an applicant is defined in clause 3.
It includes certain shareholders, managers and directors
associated with management of the activities or business to which
the application relates.
Clause 63 requires VicRoads to approve or refuse an application within
90 days. VicRoads may extend this period.
14
Clause 64 requires a corporation applying for accreditation to nominate a
qualified person to be responsible for ensuring compliance with
the corporation's duties under the Act.
Subclause (2) makes provision for a change in the nominated
person. If a nominated person ceases to act, the holder of
accreditation must notify VicRoads within 30 days, and must
nominate another qualified person.
A person who contravenes subclause (2) is guilty of an offence
and is liable to a penalty not exceeding 300 penalty units.
Further subclauses provide for communication with the
nominated person.
Clause 65 sets out the circumstances in which VicRoads may approve an
application for accreditation.
Approval may be granted (with or without conditions) if the
application has not been refused under clauses 66, 67 or 68 and
VicRoads is satisfied that--
· the applicant has complied with application
requirements; and
· the applicant is suitable to be accredited; and
· the issuing of accreditation is appropriate.
Subclause (2) makes it clear that VicRoads may have regard to
the applicant's place of residence or business when exercising a
discretion to approve or refuse accreditation.
Clause 66 sets out the circumstances in which VicRoads must refuse an
application for accreditation.
This clause requires mandatory refusal of the application where
VicRoads believes on reasonable grounds that--
· the applicant (or where the applicant is a corporation,
the nominated person) or a relevant person in relation to
the applicant has been found guilty of a disqualifying
offence listed in clause 1 of Schedule 1 (serious violent
offences); or
· the applicant is disqualified from applying; or
· if a natural person, the applicant is bankrupt; or
· if a corporation, the applicant is in receivership, under
administration or being wound up.
15
Subclause (2) provides that a disqualifying offence will not
prevent renewal of accreditation if the offence has previously
been considered in a previous application, renewal or disciplinary
proceedings.
Clause 67 provides that VicRoads must refuse an application if it believes
on reasonable grounds that the applicant (or where the applicant
is a corporation, the nominated person) or a relevant person in
relation to the applicant has been found guilty of certain serious
offences, in particular offences relating to fraud, dishonesty,
violence, sexual offences or drug trafficking.
An exception applies where VicRoads is satisfied that the
applicant has demonstrated that the issue of accreditation is
appropriate having regard to the industry accreditation objective
set out in clause 55.
Clause 68 provides that VicRoads may refuse an application for
accreditation in certain circumstances.
Subclauses (1) and (2) list the circumstances in which VicRoads
has the discretion to refuse an application. These include where
VicRoads--
· is aware that the applicant, (or where the applicant is a
corporation, the nominated person) or a relevant person
in relation to an applicant has been found guilty of an
offence listed in clause 3 of Schedule 1 (this includes
any offence not listed in clause 1 or 2 which deals with
serious violent, drug or fraudulent offences) or is
subject to any charge that has not been fully disposed of
at the time of the application;
· believes on reasonable grounds that the applicant has
contravened a service standard or a condition imposed
on an accreditation held or previous held, or where the
nominated person (where the applicant is a corporation)
or a relevant person in relation to the applicant has done
so in relation to an accreditation held, or previously
held, by that person; or
· believes on reasonable grounds that the applicant
(or where the applicant is a corporation, a nominated
person) or a relevant person in relation to the applicant
has contravened a provision of the Bill.
16
Subclause (3) provides that if VCAT refers an application back to
VicRoads, VicRoads may still refuse the application if it is not
satisfied as to the matters set out in clause 65(1)(b).
Subclause (4) sets out a list of factors that VicRoads must have
regard to in exercising its discretion in relation to an offence.
Some key factors include--
· the nature and gravity of the offence or alleged offence
and its relevance; and
· the period of time since the offence; and
· specific factors surrounding a finding of guilt or
conviction; and
· specific details of the applicant, nominated person or
relevant person; and
· any other matter that VicRoads considers relevant.
Clause 69 sets out requirements for notifying the applicant of a refusal of
the application for accreditation. The specific requirements for
notification depend on which particular clause the decision to
refuse is based. This is because rights of review differ depending
on whether the refusal is made under clause 66(1)(a) or (b)
(where the applicant has a right to apply to VCAT in its original
jurisdiction), or clause 67 or 68 (where the applicant has a right
to review of the decision by VCAT) or under clause 66(1)(c)
or (1)(d) (where the applicant has no right of review).
The requirements include notifying the applicant of the decision,
providing a statement of reasons, and notifying the applicant of
rights of review.
Clause 70 empowers VicRoads to disqualify a person whom it has refused
to accredit from applying for accreditation within a period
determined by VicRoads, not exceeding five years.
Clause 71 allows a disqualified person to apply to VicRoads for a
declaration that the disqualification ceases to have effect where
there has been a relevant change of circumstances.
Subclause (3) defines the term relevant change of circumstances
to include where a finding of guilt or other finding on which the
decision to disqualify was based is quashed or set aside after the
date of the disqualification.
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Division 3--Accreditation conditions and service standards
Clause 72 empowers VicRoads to limit an accreditation in any way it thinks
appropriate taking into account the industry accreditation
objective. This may include by imposing conditions on or
restricting the accreditation.
Accreditation is also subject to any relevant conditions set out in
the regulations under this Bill.
Clause 73 empowers VicRoads at any time to vary or revoke a condition of
accreditation, or to add a new condition of accreditation.
VicRoads may do so on its own initiative or on application by the
accredited person.
This clause specifies a process which must be followed,
including notification and submissions. This process does not
apply if VicRoads considers it is necessary to take immediate
action in the interests of public safety.
Clause 74 provides that the accredited person must comply with any
conditions imposed on the accreditation.
A person who fails to do so is guilty of an offence and is liable to
a penalty not exceeding 60 penalty units (for a natural person) or
300 penalty units (for a body corporate).
Clause 75 empowers the Minister, by a notice published in the Government
Gazette, to determine minimum service standards to be met by
accredited persons.
The standards which may be determined relate to--
· complaints handling processes;
· providing information in relation to complaints to
VicRoads;
· managing complaints processes on behalf of the
relevant towing operator;
· managing the provision of information in relation to
complaints to VicRoads.
Subclause (3) sets out a procedure that the Minister must follow
before determining standards, including notification of the
proposed standards in the Government Gazette and consideration
of comments and submissions.
18
Division 4--Certificates of accreditation
Clause 76 requires VicRoads to allocate an accreditation number to the
accredited person and to issue a certificate of accreditation.
Subclause (1) sets out what information must be included in the
certificate of accreditation.
Subclause (2) provides that VicRoads is required to give the
accredited person a copy of the applicable service standards.
Subclause (3) provides that VicRoads may, on the application of
the accredited person, issue a replacement certificate of
accreditation if the certificate has been lost, stolen or destroyed.
Subclause (4) provides that a person who has applied for a
replacement certificate and who subsequently recovers the lost or
stolen certificate, must notify VicRoads within 14 days and
return the recovered certificate.
A person who contravenes subclause (4) is guilty of an offence
and is liable to a penalty not exceeding 20 penalty units.
Clause 77 provides that an accredited person must notify VicRoads within
7 days of changing address and must return the certificate of
accreditation to VicRoads and must apply to VicRoads to amend
the certificate or issue a replacement.
A person who contravenes this clause is guilty of an offence and
is liable to a penalty not exceeding 20 penalty units.
Clause 78 provides that if an accreditation certificate becomes illegible, or
is altered or defaced, the holder must return the certificate to
VicRoads and apply for the issue of a replacement within 7 days.
A person who contravenes this clause is guilty of an offence and
is liable to a penalty not exceeding 20 penalty units.
Division 5--Disciplinary action
Clause 79 requires VicRoads to cancel an accreditation if it becomes aware
that the accredited person (or where the person is a corporation,
the nominated person) or relevant person in relation to the
accredited person has been found guilty of an offence listed in
clause 1 of Schedule 1 (serious violent offences).
19
Clause 80 sets out discretionary grounds for disciplinary action by
VicRoads against an accredited person.
Disciplinary action may be taken against an accredited person if
VicRoads is satisfied that--
· the accredited person (or where the applicant is a
corporation, the nominated person) or a relevant person
in relation to the accredited person has contravened a
provision of the Bill or regulations under the Bill;
· the accredited person has contravened a condition of
accreditation or an applicable service standard;
· the accredited person (or where the applicant is a
corporation, the nominated person) or a relevant person
in relation to the accredited person has committed an
offence listed in clause 2 or 3 of Schedule 1 (fraud,
dishonesty, violence, sexual offences or drug trafficking
or any other offence);
· the accredited person (or where the applicant is a
corporation, the nominated person) or a relevant person
in relation to the accredited person has contravened a
condition of a relevant tow truck licence; or
· action is appropriate having regard to the industry
accreditation objective.
Subclause (2) gives VicRoads the discretion to take disciplinary
action when a matter is referred to it by VCAT.
Clause 81 sets out the type of disciplinary action that may be taken in the
circumstances described in clause 80. This includes--
· cancellation of accreditation and disqualification for up
to five years;
· suspension of accreditation for up to one year;
· imposition of new conditions on the accreditation or
variation of existing conditions;
· directing the person or a relevant person to undertake
training;
· warning or reprimanding the accredited person.
20
Clause 82 sets out the procedure to be followed if VicRoads is considering
taking disciplinary action under clause 80. The procedure
requires VicRoads to serve a disciplinary notice on the person
stating, among other things, that VicRoads is considering taking
action against the accreditation held by that person, and to
consider any written response given by that person.
Clause 83 requires VicRoads to serve on the person accredited, a written
notice of any decision to take, or not to take, disciplinary action.
Clause 84 sets out the circumstances in which VicRoads may suspend an
accreditation without serving a disciplinary notice.
VicRoads must believe on reasonable grounds that it is in the
public interest, having regard to the industry accreditation
objective, that the accreditation be suspended before a decision is
made to take disciplinary action.
Subclauses (2) to (5) provide that--
· VicRoads must serve a suspension notice on the person
that immediately suspends the accreditation, and must
set out the reasons for the suspension;
· a suspension ceases to have effect if a decision is made
to take disciplinary action, if VicRoads reinstates the
accreditation, or within 14 days if a disciplinary notice
has not been served on the person or the accreditation
has not been reinstated.
Clause 85 provides that during a period of suspension, the person is taken
not to hold an accreditation under this Part and to be disqualified
from applying for accreditation.
Clause 86 requires a person whose accreditation is cancelled or suspended
to return the certificate of accreditation to VicRoads or to provide
VicRoads with a statement that the certificate has been lost,
stolen or destroyed.
A person who contravenes this clause is guilty of an offence and
is liable to a penalty not exceeding 20 penalty units.
Subclause (2) provides that if an accredited person's period of
suspension ends and the period of accreditation has not yet
expired, VicRoads must return the certificate of accreditation to
the person at the end of the suspension.
21
Division 6--VCAT review and jurisdiction
Clause 87 provides that VCAT has original jurisdiction in relation to the
mandatory refusal of an application for accreditation under clause
66(1)(a) or (b) or cancellation of accreditation.
The clause sets out the circumstances in which a person whose
application for accreditation has been refused (on a ground set
out in clause 66(1)(a) or (b)) or whose accreditation has been
cancelled under clause 79, may apply to VCAT for an order.
Clauses 66(1)(a) and (b) provide for mandatory refusal on the
basis of a finding of guilt for certain serious violent offences or
disqualification and clause 79 deals with cancellation in similar
circumstances.
The type of order that VCAT may make depends on the nature of
the application made by the person. VCAT may direct VicRoads
to accredit the applicant or reinstate accreditation, may refer the
matter to VicRoads to consider whether accreditation should be
approved or disciplinary action should be taken or may dismiss
the application.
Subclause (3) provides that VCAT must not make an order
directing VicRoads to accredit the applicant unless it is satisfied
that it is appropriate to issue the accreditation, the applicant is
suitable to be accredited and the applicant has met the application
requirements.
Subclause (4) similarly provides that VCAT must not make an
order directing VicRoads to reinstate the accreditation of the
applicant unless it is satisfied that it is appropriate to do so, and
the applicant is suitable to be accredited.
Clause 88 allows a person affected by certain decisions of VicRoads to
apply to VCAT for review of that decision. The decisions that
may be reviewed by VCAT are: refusal of an application,
imposition of a condition, variation or revocation of a condition
suspension or cancellation of accreditation, and disqualification
from applying for accreditation.
This clause does not apply to cancellation of accreditation under
clause 79 where the person has been found guilty of an offence
listed in clause 1 of Schedule 1 (serious violent offences) or
mandatory refusal of accreditation under clause 66(1)(a) or (b).
Clause 89 sets out the time limits for making an application to VCAT.
22
Division 7--Miscellaneous
Clause 90 requires accredited persons to maintain records relating to
complaints.
Subclause (1) requires accredited towing operators to record and
maintain information relating to complaints regarding the
accredited person and to make information about complaints
available to VicRoads on request.
Subclause (2) makes similar provisions with respect to a person
who holds a towing depot accreditation but relates to managing
the information about the complaints.
A person who contravenes this clause is guilty of an offence and
is liable to a penalty not exceeding 30 penalty units (for a natural
person) or 150 penalty units (for a body corporate).
Clause 91 provides that accreditation is personal to the holder and is not
transferable.
Subclause (2) provides that any purported transfer, assignment or
lease of accreditation is invalid.
Subclause (3) provides that the accredited person must not
purport to transfer, assign or otherwise deal with the
accreditation.
A person who contravenes subclause (3) is guilty of an offence
and is liable to a penalty not exceeding 60 penalty units (for a
natural person) or 300 penalty units (for a body corporate).
Subclause (4) provides that this clause does not apply to
surrender of an accreditation.
Clause 92 requires an accredited person (or where the person is a
corporation, the nominated person) or a relevant person in
relation to the accredited person, who is found guilty of an
offence listed in clause 1 or 2 of Schedule 1 (serious violent
offences, fraud, dishonesty violence, sexual offences or drug
trafficking) to notify VicRoads of the finding of guilt.
Under subclause (1), VicRoads must be notified within 7 days of
the accredited person becoming aware of the finding in relation
to a nominated person or relevant person or within 7 days of the
accredited person being found guilty.
Subclause (2) imposes a similar obligation if any of the persons
listed above are charged with that type of offence.
23
A person who contravenes subclause (1) or (2) is guilty of an
offence and is liable to a penalty not exceeding 60 penalty units.
This provision also allows the Chief Commissioner of Police to
notify VicRoads of any relevant findings of guilt of an accredited
person (or where the person is a corporation, the nominated
person) or a relevant person in relation to the accredited person.
Clause 93 requires an accredited person to notify drivers employed or
engaged by that person to drive a licensed tow truck of any
suspension or cancellation of accreditation within 7 days of
receiving notice of this.
A person who contravenes this clause is guilty of an offence and
is liable to a penalty not exceeding 60 penalty units (in the case
of a natural person) or 300 penalty units (in the case of a body
corporate).
Clause 94 empowers an accredited person to apply to VicRoads for consent
to surrender the accreditation. The application must be
accompanied by the certificate of accreditation, unless the
certificate has already been returned or has been lost, stolen or
destroyed.
Clause 95 requires VicRoads to consent to an application for surrender of
accreditation, unless VicRoads is taking or is proposing to take
action to suspend or cancel the accreditation. VicRoads may
impose any conditions on the consent to surrender that it
considers reasonably necessary to protect third party interests.
Subclause (3) requires that if VicRoads consents to the surrender
of an accreditation and imposes a condition on the surrender, the
person must comply with the condition.
A person who contravenes subclause (3) is guilty of an offence
and is liable to a penalty not exceeding 60 penalty units (in the
case of a natural person) or 300 penalty units (in the case of a
body corporate).
Clause 96 empowers VicRoads to disclose information if VicRoads
considers it necessary for the provision of safe accident towing
services.
The information may also be published, so long as it does not
identify any person.
24
PART 4--DRIVER ACCREDITATION
Part 4 of the Bill deals with the accreditation of drivers. It requires persons
seeking to drive tow trucks or accompany tow truck drivers to obtain
accreditation from VicRoads to perform the activities associated with that
role. The purpose of the accreditation scheme established under this Part is
to provide assurance that tow truck drivers are of suitable character and
technically competent to perform that role.
This Part also makes provision for certificates of accreditation, disciplinary
action and rights of review to VCAT.
Part 4 establishes a similar framework for driver accreditation to that
established in Part 3 of the Bill for operator and depot manager accreditation.
Division 1--Objective and requirement for accreditation
Clause 97 sets out the driver accreditation objective. The objective includes
ensuring that drivers of tow trucks--
· provide safe and convenient services to persons using tow
trucks and other persons; and
· are technically competent to drive the tow truck and
provide the services, are of appropriate character, and act
with integrity and in a manner that is safe, timely,
efficient, responsible and law abiding when providing the
services.
Clause 98 sets out offences of driving a tow truck without accreditation.
· A person must not drive, or accompany the driver of,
a licensed tow truck or a tow truck being driven to
provide accident towing services unless that person
holds a tow truck driver accreditation.
· The holder of a tow truck driver accreditation must not
allow a person to drive a licensed tow truck or tow truck
being driven to provide accident towing services, or
accompany the holder when driving that tow truck,
unless that person holds a tow truck driver accreditation.
A person who contravenes this clause is guilty of an offence and
is liable to a penalty not exceeding 60 penalty units.
25
Subclause (3) sets out exceptions to these offences. It provides
that the offences do not apply to--
· a driver of, or passenger in, an accident damaged
vehicle who accompanies the tow truck driver towing
the vehicle from the road accident scene and, if
necessary, is driven home, or to another convenient
place, by the tow truck driver;
· a driver of, or passenger in, an accident damaged
vehicle who accompanies the tow truck driver to travel
back to the accident damaged motor vehicle for the
purpose of towing it if it is outside a controlled area; or
· a person who is repairing, maintaining or testing the tow
truck.
Clause 99 empowers VicRoads to accredit a person to drive, or accompany
the driver of, a licensed tow truck or a tow truck being driven to
provide accident towing services.
Clause 100 sets out the period for which the accreditation remains in force.
Division 2--Application for accreditation
Clause 101 provides for applications for the grant or renewal of a tow truck
driver accreditation.
Clause 102 sets out the requirements for making an application to VicRoads.
Clause 103 provides that VicRoads may require the applicant to supply or
verify further information for the purposes of accreditation.
Clause 104 provides that the Chief Commissioner of Police may notify
VicRoads of any relevant findings of guilt of an applicant for
accreditation.
Clause 105 requires VicRoads to approve or refuse an application within
90 days. VicRoads may extend this period.
Clause 106 sets out the circumstances in which VicRoads may approve an
application for accreditation.
Approval may be granted (with or without conditions) if the
application has not been refused under clauses 107, 108 or 109
and VicRoads is satisfied that--
· the applicant has complied with application
requirements;
26
· the applicant is technically competent and sufficiently
fit and healthy to provide the services; and
· the issuing of accreditation is appropriate.
Clause 107 sets out the circumstances in which VicRoads must refuse an
application for accreditation. This clause requires mandatory
refusal of the application where VicRoads believes on reasonable
grounds that the applicant--
· does not hold a driver licence; or
· has been found guilty of an offence listed in clause 1 of
Schedule 2 (serious violent offences and sexual
offences); or
· is disqualified from applying for driver accreditation.
Subclause (2) provides that a disqualifying offence will not
prevent renewal of accreditation if the offence has previously
been considered in a previous application, renewal or disciplinary
proceeding.
Clause 108 provides that VicRoads must refuse an application for
accreditation if it believes on reasonable grounds that the
applicant has been found guilty of certain serious offences, in
particular offences related to fraud, dishonesty, violence, sexual
offences or drug trafficking.
An exception applies where VicRoads is satisfied that the
applicant has demonstrated that the issue of accreditation is
appropriate having regard to the driver accreditation objective.
The driver accreditation objective is set out in clause 97.
Clause 109 provides that VicRoads may refuse an application for
accreditation in certain circumstances.
Subclauses (1) and (2) list the circumstances in which VicRoads
has the discretion to refuse an application. These include where
VicRoads--
· is aware that the applicant has been found guilty of an
offence listed in clause 3 of Schedule 2 (this includes
any offence not listed in clause 1 or 2 of Schedule 2
which deals with serious violent, sexual, drug or
fraudulent offences) or is subject to any charge that has
not been finally disposed of at the time of the
application; or
27
· where the matter has been referred to VicRoads by
VCAT.
Subclause (3) sets out a list of factors that VicRoads must have
regard to in exercising its discretion in relation to an offence.
Some factors include--
· the nature and gravity of the offence or alleged offence
and its relevance; and
· the period of time since the offence; and
· specific factors surrounding a finding of guilt or
conviction; and
· specific details of the applicant; and
· any other matter that VicRoads considers relevant.
Clause 110 sets out requirements for notifying the applicant of a refusal of
the application for accreditation. The specific requirements for
notification depend on which particular clause the decision to
refuse is based. This is because rights of review differ depending
on whether the refusal is made under clause 107(1)(b) or (c)
(where the applicant has a right to apply to VCAT in its original
jurisdiction) under clause 108 or 109 (where the applicant has a
right to review of the decision by VCAT) or under clause 107(a)
(where the applicant has no right of review). The requirements
include notifying the applicant of the decision, providing a
statement of reasons and notifying the applicant of rights of
review.
Clause 111 empowers VicRoads to disqualify a person whom it has refused
to accredit from applying for accreditation within a period
determined by VicRoads, not exceeding five years.
Clause 112 allows a disqualified person to apply to VicRoads for a
declaration that the disqualification ceases to have effect where
there has been a relevant change of circumstances.
Subclause (3) defines relevant change of circumstances to
include where a finding of guilt or other finding on which the
decision to disqualify was based is quashed or set aside after the
date of the disqualification.
Division 3--Accreditation conditions
Clause 113 empowers VicRoads to impose conditions on a tow truck driver
accreditation. In doing so, VicRoads must have regard to the
driver accreditation objective, which is set out in clause 97.
28
Clause 114 empowers VicRoads at any time to vary or revoke a condition of
accreditation, or to add a new condition of accreditation.
VicRoads may do so on its own initiative or on application by the
accredited person.
This clause specifies a process which must be followed,
including notification and submissions. This process does not
apply if VicRoads considers it is necessary to take immediate
action in the interests of public safety.
Clause 115 provides that the accredited person must comply with any
conditions imposed on the accreditation.
A person who fails to do so is guilty of an offence and is liable to
a penalty not exceeding 20 penalty units.
Division 4--Certificates of accreditation
Clause 116 requires VicRoads to allocate an accreditation number to the
accredited person and to issue a certificate of accreditation.
Subclause (1) sets out what information must be included in the
certificate of accreditation.
Subclause (2) provides that VicRoads may, on the application of
the accredited person, issue a replacement certificate of
accreditation if the certificate has been lost, stolen or destroyed.
Subclause (3) provides that a person who has applied for a
replacement certificate and who subsequently recovers the lost or
stolen certificate, must notify VicRoads within 14 days and
return the recovered certificate.
A person who contravenes subclause (3) is guilty of an offence
and is liable to a penalty not exceeding 10 penalty units.
Clause 117 provides that if a certificate of accreditation does not contain a
digitised signature of the accredited person, the accredited person
must sign the certificate on receipt.
A person who contravenes this clause is guilty of an offence and
is liable to a penalty not exceeding 10 penalty units.
Clause 118 provides that an accredited person must notify VicRoads within
7 days of changing address and must return the certificate of
accreditation to VicRoads and must apply to VicRoads to amend
the certificate or issue a replacement.
A person who contravenes this clause is guilty of an offence and
is liable to a penalty not exceeding 10 penalty units.
29
Clause 119 provides that if an accreditation certificate becomes illegible, or
is altered or defaced, the holder must return the certificate to
VicRoads and apply for the issue of a replacement within 7 days.
A person who contravenes this clause is guilty of an offence and
is liable to a penalty not exceeding 10 penalty units.
Clause 120 provides that if an accredited person is driving a tow truck in
circumstances in which the person is required to be accredited,
the person must carry the certificate of accreditation.
A person who contravenes this clause is guilty of an offence and
is liable to a penalty not exceeding 15 penalty units.
Clause 121 provides that the accredited person, when required to be
accredited, must produce the certificate if asked to do so by an
authorised officer, police officer, or owner or driver of a vehicle
that is to be towed by the accredited person.
A person who contravenes this clause is guilty of an offence and
is liable to a penalty not exceeding 15 penalty units.
Division 5--Disciplinary action
Clause 122 requires VicRoads to cancel an accreditation if it becomes aware
that the accredited person has been found guilty of an offence
listed in clause 1 of Schedule 2 (serious violent offences and
sexual offences).
Clause 123 provides that if the driver licence of an accredited person expires
or is cancelled under the Road Safety Act 1986, the person's tow
truck driver accreditation is taken to be cancelled.
Subclause (2) provides that if the driver licence of an accredited
person is suspended under the Road Safety Act 1986, the
person's tow truck driver accreditation is taken to be suspended
for the period of time for which the driver licence remains
suspended.
Clause 124 sets out discretionary grounds for disciplinary action by
VicRoads against an accredited person.
Disciplinary action may be taken against an accredited person if
VicRoads is satisfied that--
· the accredited person has contravened a provision of the
Bill or regulations under the Bill; or
· the accredited person has contravened a condition of
accreditation; or
30
· the accredited person has committed an offence listed in
clause 2 or 3 of Schedule 2 (fraud, dishonesty, violence,
sexual offences or drug trafficking or any other
offence); or
· the accredited person has caused the contravention of a
condition of a licence for a tow truck driven by that
person; or
· action is appropriate having regard to the driver
accreditation objective.
Subclause (2) gives VicRoads the discretion to take disciplinary
action when a matter is referred to it by VCAT.
Clause 125 sets out the type of disciplinary action that may be taken in the
circumstances described in clause 124. This includes--
· cancellation of accreditation and disqualification for up
to five years;
· suspension of accreditation for up to one year;
· imposition of new conditions on the accreditation or
variation of existing conditions;
· directing the person to undertake training;
· warning or reprimanding the accredited person.
Clause 126 sets out the procedure to be followed if VicRoads is considering
taking disciplinary action under clause 124. The procedure
requires VicRoads to serve a disciplinary notice on the person
stating, among other things, that VicRoads is considering taking
action against the accreditation held by that person, and to
consider any written response given by that person.
Clause 127 requires VicRoads to serve on the accredited person a written
notice of any decision to take, or not to take, disciplinary action.
Clause 128 sets out the circumstances in which VicRoads may suspend an
accreditation without serving a disciplinary notice.
VicRoads must believe on reasonable grounds that it is in the
public interest, having regard to the driver accreditation
objective, that the accreditation be suspended before a decision is
made to take disciplinary action.
31
Subclause (6) provides that a suspension under subclause (1)
ceases to have effect if a decision is made to take disciplinary
action, if VicRoads reinstates the accreditation, or within 14 days
if a disciplinary notice has not been served on the person or the
accreditation has not been reinstated.
Subclause (2) provides that--
· VicRoads must suspend the accreditation on being
satisfied that the accredited person has been charged
with an offence listed in clause 1 of Schedule 2 (serious
violent offences and sexual offences) and the charge has
not been finally disposed of;
· VicRoads may suspend the accreditation on being
satisfied that the accredited person has been charged
with an offence listed in clause 2 or 3 of Schedule 2
(fraud, dishonesty, violence, sexual offences or drug
trafficking or any other offence) and the change has not
been finally disposed of.
Subclause (7) provides that a suspension made under subclause
(2) ceases to have effect if the person charged with the offence is
found not guilty or the charge is withdrawn or discharged, if
VicRoads re-instates the accreditation or, if the person is found
guilty, once VicRoads has made a decision as to the action to be
taken.
Subclauses (3) to (5) provide that VicRoads must serve a
suspension notice on the person that immediately suspends the
accreditation, and must set out the reasons for the suspension.
Clause 129 provides that during a period of suspension, the person is taken
not to hold a tow truck driver accreditation and to be disqualified
from applying for accreditation.
Clause 130 requires a person whose tow truck driver accreditation is
cancelled or suspended to return the certificate of accreditation to
VicRoads or to provide VicRoads with a statement that the
certificate has been lost, stolen or destroyed.
A person who contravenes this clause is guilty of an offence and
is liable to a penalty not exceeding 15 penalty units.
Subclause (2) provides that if an accredited person's period of
suspension ends and the period of accreditation has not yet
expired, VicRoads must return the certificate of accreditation to
the person at the end of the suspension.
32
Clause 131 provides that a person whose accreditation has been suspended
on the basis of a charge may apply to VicRoads for a
determination of compensation for lost income.
The person may only apply if the person has been found not
guilty of the offence for which the accreditation has been
suspended, or the charge for which accreditation has been
suspended is withdrawn or discharged.
On receiving the application, VicRoads may determine the
amount of compensation to which the person is entitled.
The amount may be recovered as a debt owed by the Crown
to the accreditation holder.
Division 6--VCAT review and jurisdiction
Clause 132 provides that VCAT has original jurisdiction in relation to the
mandatory refusal of an application for accreditation under
section 107(1)(b) or (c) or the cancellation of accreditation.
The clause sets out the circumstances in which a person whose
application for accreditation has been refused (on a ground set
out in clause 107(1)(b) or (c)), or whose accreditation has been
cancelled under clause 122, may apply to VCAT for an order.
Clauses 107(1)(b) and (c) provide for mandatory refusal on the
basis of a finding of guilt for certain serious violent or sexual
offences or disqualification and clause 122 deals with
cancellation in similar circumstances.
The type of order that VCAT may make depends on the nature of
the application made by the person. VCAT may direct VicRoads
to accredit or reinstate accreditation, may refer the matter to
VicRoads to consider whether accreditation should be approved
or disciplinary action should be taken or may dismiss the
application.
Subclause (3) provides that VCAT must not make an order
directing VicRoads to accredit the applicant unless it is satisfied
that it is appropriate to issue the accreditation, the applicant is
technically competent and sufficiently fit and healthy to provide
the services, and the applicant has met the application
requirements.
Subclause (4) similarly provides that VCAT must not make an
order directing VicRoads to reinstate the accreditation of the
applicant unless it is satisfied that it is appropriate to do so, and
the applicant is technically competent and sufficiently fit and
healthy to provide the services.
33
Clause 133 allows a person affected by certain decisions of VicRoads to
apply to VCAT for review of that decision. The decisions that
may be reviewed by VCAT are: refusal of an application,
imposition of a condition, variation or revocation of a condition,
suspension or cancellation of accreditation and disqualification
from applying for accreditation.
This clause does not apply to cancellation of accreditation under
clause 122 where the person has been found guilty of an offence
listed in clause 1 of Schedule 2 (serious violent offences and
sexual offences) or mandatory refusal of accreditation under
clause 107(1)(b) or (c).
Clause 134 sets out the time limits for making an application to VCAT.
Division 7--Miscellaneous
Clause 135 provides that accreditation is personal to the holder and is not
transferable.
Subclause (2) provides that any purported transfer, assignment or
lease of accreditation is invalid.
Subclause (3) provides that the accredited person must not
purport to transfer, assign or otherwise deal with the
accreditation.
A person who contravenes subclause (3) is guilty of an offence
and is liable to a penalty not exceeding 30 penalty units.
Subclause (4) provides that this clause does not apply to
surrender of an accreditation.
Clause 136 requires an accredited person who is found guilty of an offence
listed in clause 1 or 2 of Schedule 2 (serious violence and sexual
offences, fraud, dishonesty, violence or drug trafficking) to notify
VicRoads of the finding of guilt.
Under subclause (1), VicRoads must be notified within 7 days of
the accredited person being found guilty.
Subclause (2) imposes a similar obligation where the accredited
person is charged with that type of offence.
A person who contravenes subclause (1) or (2) is guilty of an
offence and is liable to a penalty not exceeding 5 penalty units.
This provision also allows the Chief Commissioner of Police to
notify VicRoads of any relevant findings of guilt of an accredited
person.
34
Clause 137 requires an accredited person employed or engaged by a person
who holds a tow truck licence, to notify the holder of the tow
truck licence of any suspension or cancellation of his or her
accreditation within 28 days of receiving notice of this.
A person who contravenes this clause is guilty of an offence and
is liable to a penalty not exceeding 5 penalty units.
Clause 138 empowers an accredited person to apply to VicRoads for consent
to surrender the tow truck driver accreditation. The application
must be accompanied by the certificate of accreditation, unless
the certificate has already been returned or has been lost, stolen
or destroyed.
Clause 139 requires VicRoads to consent to an application for surrender of
accreditation, unless VicRoads is taking, or is proposing to take,
action to suspend or cancel the accreditation. VicRoads may
impose any conditions on the consent to surrender that it
considers reasonably necessary to protect third party interests.
Subclause (3) requires that if VicRoads consents to the surrender
of an accreditation and imposes a condition on the surrender, the
person must comply with the condition.
A person who contravenes subclause (3) is guilty of an offence
and is liable to a penalty not exceeding 20 penalty units.
Clause 140 empowers VicRoads to disclose information if VicRoads
considers it necessary for the provision of safe accident towing
services.
The information may also be published, so long as it does not
identify any person.
PART 5--GENERAL ACCIDENT TOWING AND RELATED
OPERATIONS
Part 5 contains various provisions aimed at protecting vulnerable accident
victims from undesirable conduct at road accident scenes including being
subject to requests in relation to deciding on the subsequent storage and
repair of accident damaged vehicles. It sets out the requirement for tow truck
drivers to obtain an authority to tow a vehicle from a road accident scene, and
imposes various obligations on tow truck drivers and repairers.
Division 1--Authority to tow
Clause 141 defines terms used in this Part of the Bill, in particular safe and
convenient place and owner.
35
Clause 142 provides that it is an offence for a tow truck driver to tow an
accident damaged motor vehicle from a road accident scene on a
non-designated road, or from a safe and convenient place where
the road accident scene is on a designated road, without the
written authority of the owner or the driver of the vehicle.
A member of the police force may authorise the towing of the
vehicle if the owner or driver is absent or does not have the
capacity to authorise the towing.
A tow truck driver who contravenes this clause is guilty of an
offence and is liable to a penalty not exceeding 30 penalty units.
The authority to tow must be in the prescribed form. The tow
truck driver must ensure that the form is completed with the
information listed in subclause (4) before obtaining the signature
of the person giving the authorisation.
An authorisation to tow a vehicle provided by a member of the
police force is deemed to have been given by the owner of the
vehicle. The police officer is not personally responsible, nor is
Victoria Police responsible, for any fees or expenses incurred as a
result of the towing of the vehicle.
Clause 143 provides that if the road accident scene or safe and convenient
place is located in a controlled area, the tow truck driver must
include the job number given by the allocation body on the
written authorisation to tow the vehicle obtained under
clause 142.
A tow truck driver who contravenes this clause is guilty of an
offence and is liable to a penalty not exceeding 50 penalty units.
Clause 144 provides that the tow truck driver must give a copy of the written
authority to tow to the person who has given the authority.
A tow truck driver who contravenes this clause is guilty of an
offence and is liable to a penalty not exceeding 30 penalty units.
Clause 145 provides that a tow truck driver must carry the authority to tow
for an accident damaged motor vehicle in the tow truck when
towing that vehicle.
A tow truck driver must also comply with a request from a
member of the police force or an authorised officer to--
· produce for inspection the authority to tow; and
· give details about the origin and destination of the
accident damaged vehicle being towed; and
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· allow the officer to inspect or examine the damaged
vehicle; and
· where applicable, give the job number under which the
vehicle is being towed.
An authority is not required to be carried by a tow truck driver,
and a tow truck driver is not obliged to comply with a request
from a police officer or authorised officer under this clause, if the
vehicle is being towed from a road accident scene on a
designated road to a safe and convenient place.
A tow truck driver who contravenes any part of this clause is
guilty of an offence and is liable to a penalty not exceeding
20 penalty units.
Clause 146 provides that a tow truck driver must ensure that a vehicle being
towed under an authority to tow, is taken to the place specified in
the authority.
A tow truck driver who contravenes this clause is guilty of an
offence and is liable to a penalty not exceeding 30 penalty units.
Division 2--Offences at road accident scenes
Clause 147 prohibits a person from obtaining or attempting to obtain any
form of authority or agreement for the preparation of a quotation
or the repair of an accident damaged motor vehicle until the
vehicle is stored at the address provided for on the written
authority to tow the vehicle.
A person who contravenes this clause is guilty of an offence and
is liable to a penalty not exceeding 60 penalty units.
Clause 148 prohibits soliciting or touting at a road accident scene in a
controlled area for any business that is in the nature of--
· towing of accident damaged motor vehicles by regular
tow trucks; or
· storing of accident damaged motor vehicles; or
· repairing of accident damaged motor vehicles.
The prohibition applies whether the act would be considered to
be touting, soliciting, offering, obtaining or attempting to obtain
an authority or agreement, and whether or not the person doing
the act is doing so on his or her own behalf or on behalf of
another.
A person who contravenes this clause is guilty of an offence and
is liable to a penalty not exceeding 60 penalty units.
37
Clause 149 provides, despite the prohibition under clause 148, that a driver
of a regular tow truck that has authorisation from the allocation
body to attend that road accident scene in a controlled area
may--
· enter, or offer to enter, into an agreement with a person
to store the vehicle.
Division 3--Storage of accident damaged motor vehicles
Clause 150 imposes an obligation on a tow truck licence holder to ensure that
a vehicle that is being towed is towed to the place specified in the
authority to tow and is stored at a secure area at that place, unless
it is being returned to the owner or it has been taken to another
place with the written authority of the owner or some other valid
authorisation.
Subclause (2) provides that authorisations will be valid if given
by--
· a member of the police force; or
· an insurer with the consent of the vehicle owner; or
· a person that has an interest in the vehicle.
A person who contravenes this clause is guilty of an offence and
is liable to a penalty not exceeding 20 penalty units.
Clause 151 requires a tow truck licence holder storing an accident damaged
motor vehicle (in accordance with clause 150) to give the owner
written notice of the storage charges owing at the date of the
notice, within 10 business days of the vehicle being towed.
A written update on the status of the storage charges must be sent
to the owner before the expiry of each period of 20 business days
after the date of the first notice until the vehicle is removed or an
agreement for the repair of the vehicle is signed.
A tow truck licence holder who contravenes this clause is guilty
of an offence and is liable to a penalty not exceeding 30 penalty
units.
Clause 151(2) sets out the circumstances in which the obligation
to provide notice ceases to apply.
38
Clause 152 prohibits a person from offering to pay consideration to obtain
work or from receiving any consideration to hand over any work
other than charges in accordance with this Bill.
Subclause (2) provides that sums charged for towing and storage
must be in accordance with the amounts set by the Minister for
the services, if the Minister has made a determination under
clause 211.
Subclause (3) provides that if it is proven that a person has
overcharged for towing or storage, the court may order that
person to refund any sum paid in excess of the charge determined
by the Minister.
A person who contravenes subclause (1) or (2) is guilty of an
offence and is liable to a penalty not exceeding 30 penalty units.
Division 4--Obligations on repairers
Clause 153 provides that repair work cannot be carried out without the
written consent of the owner.
Subclause (2) provides that if a person undertakes certain works
or services without the written authority of the owner, that person
is not entitled to sue for any charge incurred.
Subclauses (3) and (4) provide a formula to determine the hourly
rate for a storage charge. Under subclause (2) a person cannot
sue for a loss sustained for a storage charge unless the storage
was authorised by the person from whom the sum is being sought
and the charge does not exceed the amount calculated using the
formula.
Subclause (5) provides that it is an offence to recover a sum or
charge where the work was not authorised.
A person that contravenes any part of this clause is guilty of an
offence and is liable to a penalty not exceeding 30 penalty units.
Clause 154 provides vehicle owners with a 3 day cooling off period to
terminate an agreement to repair the vehicle.
The notice to terminate the agreement must be in writing and
given to the person to whom the repair agreement has been given
or an employee of that person.
Subclause (2) provides that the agreement to repair cannot be
terminated if the owner of the vehicle has signed a waiver of the
right to terminate the agreement at least one working day after
the agreement was signed. The waiver will not be valid if it was
signed within one day of signing the agreement.
39
Subclause (3) provides that the owner of the vehicle will not be
liable for any damages or costs arising from the signing of the
agreement or the cost of any work performed if an agreement to
repair is terminated under this clause.
Clause 155 provides that the owner of an accident damaged motor vehicle is
not liable for the cost of repairs to the vehicle if the vehicle is
taken to a place other than the place specified in the authority to
tow and repairs are undertaken at that place.
Clause 156 provides that a person who is in control of a place to which an
accident damaged motor vehicle has been towed must not--
· refuse, frustrate or obstruct the release of; or
· fail to release--
that vehicle from that place to its owner.
This obligation extends to staff and other persons at the place at
which the motor vehicle has been towed.
A person that contravenes this clause is guilty of an offence and
is liable to a penalty not exceeding 50 penalty units.
It is a defence to a charge brought against a person who is in
control of the place if the person who refused or failed to release
the vehicle is not within that person's control.
It is also a defence to a charge of refusing or failing to release a
vehicle if the person is owed money by the owner of the vehicle
for service or work undertaken on the vehicle, except where the
agreement to do work has been terminated in accordance with
clause 154.
Division 5--Obligations on repairers in relation to accident
towing services in a controlled area
Clause 157 defines terms used in this Division of the Bill, in particular
endorsed authority to tow and relevant accident damaged motor
vehicle.
Subclause (2) expands the scope of a reference to an "authority to
tow" to include a copy of an authority to tow.
Clause 158 specifies the circumstances in which a person can begin to
prepare a repair quotation for a damaged vehicle.
In most circumstances, a person must first obtain an endorsed
authority to tow, or a certificate as provided for in clause 162.
40
A person who prepares a repair quotation without having
obtained the necessary authority is guilty of an offence and is
liable to a penalty not exceeding 30 penalty units.
Clause 159 provides that a person who endorsed an authority to tow must
provide a copy of the authority to tow to the owner of the vehicle,
and to any person that the owner would like to prepare a
quotation for repair, if asked to do so by the owner or authorised
person.
Endorsement of an authority to tow is provided for in clause 158.
Subclause (2) provides that any written quotation prepared by a
person must be accompanied by an endorsed authority to tow.
A person who contravenes subclause (1) or (2) is guilty of an
offence and is liable to a penalty not exceeding 30 penalty units.
Clause 160 imposes obligations on repairers to inform VicRoads if the
endorsed authority to tow--
· has not been endorsed as required by section 158(a)(iii)
and (iv); or
· has not been provided by the owner of the vehicle
within five business days of requesting "the work"; or
· has not been provided by another person that has
endorsed the authority to tow within 5 business days of
the repairer asking for the endorsed authority to tow
from that person.
A repairer must notify VicRoads in writing of any of the above
failures within five business days.
A repairer who contravenes this clause is guilty of an offence and
is liable to a penalty not exceeding 30 penalty units.
Clause 161 provides that a person who receives an authority to tow for the
purpose of providing services in relation to a damaged vehicle
must keep a copy of that authority for 3 years and produce it for
inspection, together with any records of quotations provided, if
asked to do so by a member of the police force or an authorised
officer.
A person who contravenes this clause is guilty of an offence and
is liable to a penalty not exceeding 30 penalty units.
41
Clause 162 provides that the owner of a damaged vehicle may apply to
VicRoads for a certificate authorising preparation of quotations
in relation to the vehicle or repair of the vehicle where the
authority to tow has been lost or is defective.
Subclause (2) provides that VicRoads determines the form and
content of an application for a certificate under this clause.
Subclause (3) imposes an obligation on VicRoads to provide a
certificate within 5 business days of receiving a completed
application form and any fee, if a fee is prescribed under
regulations.
Clause 163 provides for a defence to charges under Division 5 of Part 5 if a
person has a reasonable belief that an accident damaged motor
vehicle was not damaged in a controlled area.
PART 6--ENFORCEMENT
Part 6 provides for measures to determine and enforce compliance with the
Bill, regulations and service standards.
Division 1--Accident towing demerit points
Clause 164 provides that VicRoads must keep a register and record accident
towing demerits points.
Clause 165 provides that the regulations will set out the circumstances in
which accident towing demerit points are incurred, the date the
points are to be recorded and the number of demerit points for
each offence. The offences that will lead to incurring demerit
points will be prescribed in the regulations.
Clause 166 sets out periods of suspension of accreditation based on the
number of demerit points incurred within any 3 year period.
Clause 167 provides that VicRoads may serve a notice on a person
suspending their accreditation for the period determined by the
number of demerit points that they have incurred within any
3 year period. A notice served under this clause must contain the
particulars provided for under the regulations.
Clause 168 provides that once the period of suspension is completed, the
demerit points that were used to calculate the period of that
suspension must be disregarded when calculating the period of
any further suspension. A demerit point cannot be used more
than once in calculating a period of suspension.
42
Clause 169 provides that VicRoads is to determine a date on which the
period of suspension takes effect, and that this date must be
specified in the notice of suspension served under clause 167.
Subclause (2) provides that if an accreditation is suspended under
another provision of this Act, the suspension period under
section 167 will not take effect until the other suspension period
is completed.
Subclause (3) provides that if a person does not have an
accreditation when they are served with a suspension notice, but
they are accredited at a later date, the suspension period will start
from the date the new accreditation is granted.
Clause 170 provides that VicRoads can cancel demerit points in the
circumstances set out in the regulations.
Clause 171 sets out the limited circumstances in which demerit points
recorded against an accredited person can be used in evidence.
Clause 172 provides that a person may apply to VCAT for a review of
VicRoads' decision to record demerit points in the Accident
Towing Demerits Register on the basis that the points were
recorded unlawfully or the total number of points was incorrectly
calculated.
Subclause (2) provides that any suspension will be stayed until
VCAT has made a decision on the application or VCAT gives the
applicant permission to withdraw their application.
Subclause (3) provides that if VCAT finds that VicRoads'
decision is correct and lawful it must confirm that decision.
Subclause (4) sets out the orders VCAT can make in relation to
an application for review under this clause.
Subclause (5) provides that an application under this clause must
be made within 28 days of VicRoads' decision or, if a statement
of reasons for the decision has been requested under the
Victorian Civil and Administrative Tribunal Act 1998, from
the date the statement is provided or the applicant is told that a
statement of reasons will not be provided.
Subclause (6) provides that if the decision of VCAT results in a
change to the demerit points recorded against an accredited
person, the suspension period will be altered to reflect the revised
total or the notice to suspend will cease to have effect.
43
Division 2--Infringement notices
Clause 173 empowers an authorised officer or member of the force to serve
an infringement notice for specified offences as prescribed by the
regulations. These offences are infringement offences for the
purposes of the Infringements Act 2006.
The penalty for each infringement is also to be set out in the
regulations.
Division 3--Improvement notices
Clause 174 makes provision for improvement notices.
Subclause (1) provides that where VicRoads believes that an
accredited person, a relevant person in relation to an accredited
person or a licensed person has contravened or is contravening a
provision of the Bill specified in this clause, or of the regulations,
and VicRoads believes the contravention will continue or be
repeated, it may serve an improvement notice on that person
requiring them to remedy the contravention in a specified time.
This also applies if an accredited person is contravening or has
contravened a service standard or relevant condition of
accreditation, or a licence holder has contravened or is
contravening a licence condition.
Subclause (2) sets out the information that must be included in an
improvement notice.
Subclauses (3) and (4) specify the nature of the directions that
may be included in an improvement notice including--
· a direction concerning the measures to be taken to
remedy the contravention;
· a direction to cease an activity if the contravention is not
rectified by a specified date; and
· interim directions or conditions to address risks to safety
or the provision of reliable and efficient accident towing
services.
Subclause (5) provides that it is an offence not to comply with an
infringement notice. A person that contravenes this clause is
guilty of an offence and is liable to a penalty not exceeding
20 penalty units.
Subclause (6) provides that if a person has made an application
for review of a decision to serve an improvement notice,
VicRoads cannot certify in writing that the contravention has
been remedied until the review ends.
44
Clause 175 provides that an improvement notice will not be invalid because
of formal defects or irregularities or a failure to use the correct
name on a notice if it sufficiently identifies the person.
Clause 176 provides that the service, amendment or cancellation of an
improvement notice does not affect proceedings for offences in
connection with any matter in respect of which the improvement
notice was served.
Clause 177 provides that a person may apply to VCAT for review of
VicRoads' decision to serve an improvement notice.
An application under this clause must be made within 28 days of
VicRoads' decision, or if a statement of reasons for the decision
has been requested under the Victorian Civil and
Administrative Tribunal Act 1998, from the date the statement
is provided or the applicant is told that a statement of reasons will
not be provided.
Division 4--Authorised officers
Clause 178 empowers VicRoads to appoint authorised officers, by
instrument, under this Act.
Subclause (2) provides that a person authorised under Part 9 of
the Road Safety Act 1986 may be an authorised officer for the
purposes of this Act.
Subclause (3) provides that an appointment is for the term and
subject to the conditions set out in the instrument of appointment.
Subclause (4) sets out what may be included as conditions of
appointment.
Clause 179 provides that VicRoads must issue authorised officers with
identity cards and sets out what information must be included on
the card.
Clause 180 provides that a person must return their identity card as soon as
practicable to VicRoads if they cease to be an authorised officer.
A person that contravenes this clause is guilty of an offence and
is liable to a fine not exceeding 10 penalty units.
45
Division 5--Searches of tow trucks
Clause 181 empowers an inspector to enter and search a tow truck to
determine whether the Bill, any regulations or the service
standards are being complied with.
Subclause (2) outlines what an inspector may do for the purposes
of determining whether the Act, any regulations made under the
Act or any service standard is being complied with.
Subclause (3) sets out the manner in which the entry and search
can be conducted.
Subclause (4) provides that this section does not authorise an
inspector to search any person.
Clause 182 empowers an inspector to enter and search a tow truck where the
inspector believes on reasonable grounds that the tow truck has
been, or is being, used in contravention of this Act, any
regulations or any service standards.
Subclause (3) sets out what an inspector may do when entering
and searching a tow truck in circumstances where they have a
reasonable belief a contravention has occurred.
Subclause (4) provides that an inspector may seize and remove
any documents, devices or other things from the tow truck.
Subclause (5) sets out the manner in which the entry and search
can be conducted.
Subclause (6) prohibits the search of a person.
Clause 183 provides that before an inspector searches a tow truck, the
inspector must identify himself or herself to the driver, or other
person in charge of the vehicle, by producing his or her identity
card.
Members of the police force who are not in uniform must also
show their identity card to the driver before searching the vehicle.
If requested, uniformed police officers must state their name,
rank and place of duty to the driver before searching the vehicle.
It is not necessary for an inspector to show his or her
identification again in relation to a search under clause 182 if
he or she has already done so in relation to a search under
clause 181 and decides to conducts the search under clause 182
during a search under clause 181.
46
Clause 184 provides that inspectors must produce their identity card for
inspection if asked to do so by a tow truck driver whilst
conducting an inspection.
Uniformed police officers must also state their name, rank and
place of duty to the driver, if requested to do so, whilst searching
the vehicle. However, they are not required to do so if they have
provided this information before commencing the inspection.
Clause 185 provides that the consent of the tow truck driver is not required to
conduct a search under this Division.
Division 6--Search of business premises
Clause 186 sets out what an inspector can do at business premises, where he
or she has obtained the consent of the person occupying the
premises.
The powers to enter and search tow trucks in clause 181(2)
extends to tow trucks found on or in the business premises.
Before an inspector obtains consent from the occupier to search
and enter premises, the inspector must produce or state his or her
identification (the type of which depends on whether the
inspector is an authorised officer or member of the force) and
inform the occupier of certain matters.
An inspector must obtain a signed acknowledgement of the
consent of the occupier before entering and searching the
premises.
A further written acknowledgement must be obtained from the
occupier prior to seizing or taking anything from the premises
and clause 187(5) sets out what must be included in the
acknowledgement.
An inspector must provide a copy of an acknowledgement to the
occupier.
An acknowledgement is evidence of consent in a proceeding
before a court. The prosecution will be required to prove consent
if it fails to produce a signed acknowledgement.
Clause 187 provides that an inspector may enter and inspect premises that are
open to the public.
47
Clause 188 empowers an inspector to enter and search premises and
undertake any of the tasks outlined in this clause for the purpose
of monitoring compliance with the Act, the regulations and
service standards, without the consent of the occupier or a
warrant.
The powers of an inspector under this clause do not extend to any
part of the premises used for residential purposes. Inspection
must be carried out between 9 a.m. and 5 p.m. or when the
premises are open for business.
If the inspector enters the premises without the owner or occupier
being present, the inspector must leave a notice setting out the
particulars listed in subclause (3).
Subclause (4) extends the powers to enter and search a tow truck
contained in clause 181(2) to a tow truck found on or in premises
searched under this clause.
Clause 189 provides that an inspector may apply to the Magistrates' Court for
a search warrant to search business premises to obtain evidence,
where an inspector believes on reasonable grounds that there is or
may be evidence within the next 72 hours, of the commission of
an offence.
Subclause (2) sets out the circumstances in which a magistrate
can issue a warrant under this clause, the nature of the warrant
and who the magistrate may authorise to execute the warrant.
Subclause (3) sets out further information that must be stated on
the warrant.
A search warrant must be issued in accordance with the
Magistrates' Court Act 1989.
Subclause (5) overrides section 78 of the Magistrates' Court
Act 1989, by providing that a search warrant issued under this
clause must not authorise an inspector to arrest a person.
Rules mentioned in the Magistrates' Court Act 1989 with
respect to search warrants extend and apply to warrants under
this clause.
Clause 190 sets out what an inspector must do before entering premises
under a warrant.
Subclause (2) allows for entry into the premises without warning
in specified circumstances.
Clause 191 provides that an inspector must identify himself or herself to any
occupants or persons present at the premises where the warrant is
being executed and provide a copy of the search warrant.
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Clause 192 extends the powers of inspectors to seize items that are not
described in the warrant where the inspector believes on
reasonable grounds that--
· an item could have been included in the warrant or will
afford evidence about a contravention of this Act, any
regulations or service standards; and
· it is necessary to seize the item in order to prevent its
concealment, loss or destruction or use in a
contravention of the Bill, regulations or a service
standard.
Clause 193 provides that if an item that an inspector is authorised to seize
under a search warrant is too large to be physically removed, an
inspector may issue an embargo notice with respect to that item.
The form of the embargo notice is to be provided for in the
regulations.
An inspector must give a copy of the notice to the occupier, or
where the occupier cannot be reasonably located, affix a copy of
the notice to the embargoed item.
Subclause (2) sets out the effect of the embargo and makes it an
offence for a person who knows that an embargo notice has been
issued with respect to a certain thing to contravene that embargo.
A person that contravenes this clause is guilty of an offence and
is liable to a penalty not exceeding 60 penalty units.
Division 7--Processes to deal with seized equipment or goods
Clause 194 provides that an inspector can operate equipment to access
information for the purpose of determining whether the Act, the
regulations or service standards have been complied with.
Subclause (2) sets out what an inspector may do with information
contained on a disk, tape or other device where the inspector
reasonably believes that that information is relevant in
determining compliance.
Subclause (3) provides that an inspector should only operate or
seize equipment for the purposes of this clause where the
inspector reasonably believes that the equipment will not be
damaged by doing so.
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Clause 195 provides that an inspector must give a certified copy of all things
seized that can be readily copied to the owner or custodian of the
thing, where he or she can reasonably be identified within
21 days of seizure.
If it is not practicable to copy the thing before the inspector
finishes the search, a receipt must be given to the person from
whom a thing is seized.
Subclause (4) provides that a certified copy of a seized thing is
taken to be evidence of equal validity to the original in all courts
and tribunals.
Clause 196 provides that if a copy of the seized thing is not provided to the
person that would normally have possession of it, an inspector
must provide that person, if it is practicable to do so, reasonable
access to that thing.
Clause 197 provides that an inspector must take reasonable steps to return
seized documents and things if the reason for the seizure no
longer exists.
An inspector must take reasonable steps to return seized goods
within 3 months unless the goods are required for evidence in
proceedings that have commenced or the Magistrates' Court
makes an order under clause 198 extending the period for which
the goods may be retained.
Clause 198 provides that an inspector may make an application to the
Magistrates' Court, within 3 months of seizing a document or
thing, for an extension of the period of time (not exceeding
3 months) for which the inspector may retain the document or
thing. The total period of retention cannot exceed 12 months.
Subclause (2) sets out the circumstances in which a magistrate
can order such an extension.
Subclause (3) provides for an adjournment of an application
under this clause to allow for notice of this application to be
given.
Division 8--General
Clause 199 requires an occupier of premises that are being searched by an
inspector to assist an inspector by--
· giving information;
· producing documents; and
· giving reasonable assistance.
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Clause 200 provides that a person is not excused from complying with a
requirement or direction made under this Division on the ground
that complying may result in self-incrimination.
However, information obtained from a natural person is not
admissible in evidence against the person in criminal proceedings
except in limited circumstances.
Clause 201 empowers an inspector to direct an individual to state his or her
name and business address where the inspector believes on
reasonable grounds that the individual is, or may be, the holder of
an accreditation or licence.
A person must comply immediately with the direction.
A person must not knowingly provide a false name or address.
A person that contravenes these requirements is guilty of an
offence and is liable to a fine not exceeding 5 penalty units.
It is a defence to any proceedings against a person for failing to
state the person's business address, if the person establishes that
the person did not have a business address or that the business
address was not connected with the provision of accident towing
services.
Clause 202 provides that the inspector, if giving a direction under this Part,
must warn the person to whom the direction is given that it is an
offence not to comply with the direction.
Clause 203 sets out 3 offences--
· Subclause (1) makes it an offence for a person to refuse
or fail to comply with a requirement of VicRoads or an
inspector under this Part without reasonable excuse.
· Subclause (2) makes it an offence to obstruct or hinder
an inspector who is exercising a power or function
under this Part.
· Subclause (3) makes it an offence to impersonate an
inspector.
A person that contravenes any of these subclauses is guilty of an
offence and is liable to a fine not exceeding 60 penalty units.
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Clause 204 sets out who can bring proceedings under this Bill or the
regulations.
VicRoads may authorise an authorised officer to bring
proceedings.
An authorised officer may conduct proceedings before a court
where the proceedings have been brought by that authorised
officer.
PART 7--CODES OF PRACTICE
Part 7 of the Bill contains provisions for the approval of codes of practice by
the Minister. It is intended that codes of practice will contain operational
guidelines and standards to give practical guidance to tow truck operators and
drivers involved in providing accident towing services.
Clause 205 empowers the Minister to approve one or more codes of practice
to provide practical guidance to holders of all types of
accreditation.
Subclause (2) provides that a code of practice may itself contain
standards or rules or may incorporate or refer to other documents
that contain such standards or rules.
Subclause (3) sets out when the approval of a code of practice
takes effect.
Clause 206 empowers the Minister to approve any amendment to the whole,
or part, of an approved code of practice.
Clause 207 empowers the Minister to revoke an approval of a code of
practice.
Clause 208 provides that the Minister must cause to be made available for
inspection by the public at the office of VicRoads without
charge--
· a current copy of every approved code of practice; and
· a copy of every document referred to in an approved
code of practice (in the form in which that document has
effect in the approved code of practice).
Clause 209 requires consultation by the Minister before the approval of a
code of practice or any amendment or revocation of an approved
code of practice.
The Minister must consult with any person or body that may be
affected by the making, amendment or revocation of the code of
practice.
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Clause 210 provides that a person does not incur any civil or criminal
liability merely because of a failure to comply with a provision of
an approved code of practice.
PART 8--MISCELLANEOUS
Part 8 deals with miscellaneous matters, including determinations by the
Minister and VicRoads, service of documents, offences by bodies corporate,
offences for misleading and deceptive conduct, and making of regulations.
Clause 211 empowers the Minister to determine the amounts that may be
charged by providers of accident towing services and services for
storage of accident damaged motor vehicles.
Clause 212 provides that the Minister must not make a determination for
charges under clause 211 unless the Minister has--
· referred the matter to the Essential Services
Commission for investigation and received the
Commission's report; and
· received a report from VicRoads.
Subclause (2) provides that the Minister's determination may
apply in a general or limited manner. It may differ according to
time, place or circumstance.
Subclauses (3) and (4) set out when a determination takes effect,
and provide for the amendment or revocation of a determination.
Clause 213 empowers VicRoads to determine fees for applications under this
Bill. VicRoads must obtain the Minister's approval for fee
determinations. The determination must be published in the
Government Gazette.
Clause 214 empowers VicRoads to delegate any power under the Bill (other
than the power of delegation) to a public sector employee
employed by the Department of Infrastructure. A power must be
delegated by instrument. This power is in addition to the power
VicRoads has under section 32(2) of the Transport Act 1983 to
delegate any of its powers under any Act to an officer of
VicRoads.
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Clause 215 establishes several offences where a person deliberately or
recklessly provides false or misleading information.
Subclause (1) provides that a person must not either deliberately
or recklessly--
· provide any information or document that is false or
misleading; or
· make any representation that provides a false or
misleading impression; or
· fail to include any matter in any information or
document provided under this Bill if the failure causes it
to be false or misleading; or
· engage in conduct that is false or misleading or likely to
mislead or deceive.
If a person contravenes subclause (1), the person is guilty of an
offence and is liable to a penalty not exceeding 50 penalty units.
Subclause (2) sets out certain exceptions to subclause (1).
Clause 216 provides that no compensation is payable to any person in respect
of certain decisions or determinations made under this Bill or in
respect of a decision of VicRoads under Part 3 or 4 (industry and
driver accreditation).
Subclauses (1) and (2) specify the particular decisions or
determinations to which this clause applies.
This clause applies subject to clause 131, which allows
compensation for lost income during the suspension of driver
accreditation in certain circumstances.
Clause 217 sets out what is required to effect service of a document on a
natural person. It includes: personal delivery, and prepaying and
posting the document to the last known place of residence or
business or leaving the document at a residential or business
address.
Clause 218 sets out what is required to effect service of a document on a
corporation. It includes: prepaying and posting the document to
the corporation's last known place of business.
Subclause (2) provides that a corporation's address means the
corporation's registered office or principal place of business.
Clause 219 makes provision for at what time service will be deemed to be
effective.
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Clause 220 sets out evidentiary provisions relating to certificates produced
by VicRoads.
Subclause (1) provides that a certificate purporting to be signed
by the Chief Executive of VicRoads certifying any of the matters
set out in subclause (2) is admissible as evidence and is proof of
the matters stated in the certificate.
Subclause (2) lists various matters which may be certified by a
certificate in subclause (1).
Clause 221 provides that if a body corporate contravenes any provision of
this Bill, each officer (defined in section 9 of the Corporations
Act) of the body corporate who knowingly authorised or
permitted the contravention, is taken to have contravened the
same provision.
Subclauses (2) and (3) provide that a person may be proceeded
against and convicted under subclause (1), whether or not the
body corporate has been proceeded against or convicted and this
clause does not affect any liability imposed on a body corporate
for an offence committed against this Bill.
Clause 222 makes provision for conduct engaged in on behalf of a body
corporate or principal to be deemed to be also engaged in by the
body corporate or principal if it was done with the authority of
the body corporate or principal.
Subclauses (3) and (4) set out what is required to establish a state
of mind of a body corporate or other person in relation to
particular conduct.
Clause 223 empowers the Governor in Council to make regulations with
respect to certain matters, including--
· prescribing and regulating in respect of holders of
accreditation;
· accreditations under this Bill;
· application for and conditions of licences;
· the operation of road accident scene rosters in controlled
areas;
· duties of tow truck drivers at road accident scenes;
· design, construction, equipment and maintenance of tow
trucks;
· prescribing offences to be infringement offences and
requirements to keep records and forms;
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· any matter required by this Bill to be necessary to give
effect to this Bill.
Subclause (2) provides that the regulations may prescribe
penalties, confer a power or discretionary authority on persons,
incorporate documents or provide exemptions for specified
persons.
Clause 224 provides that Schedule 3 has effect. Schedule 3 sets out
transitional provisions for the new accident towing services
scheme.
PART 9--AMENDMENTS TO THE TRANSPORT ACT AND
OTHER ACTS
Part 9 of the Bill deals with amendments to other Acts.
Division 1--Amendments to the Transport Act 1983
Clause 225 amends section 16(2) of the Transport Act 1983 to provide that
functions of VicRoads include functions conferred on it under
this Bill.
Clause 226 substitutes a new heading "Part VI--Licensing Of Certain
Vehicles And Driver Accreditation" for Part VI of the Transport
Act 1983 as a consequence of tow truck regulation being moved
from the Transport Act 1983 to this new Bill.
Clause 227 repeals various definitions in section 86(1) of the Transport Act
1983 that are made redundant by this Bill.
Subclause (2) makes consequential amendments to the definition
of owner in section 86(1) of the Transport Act 1983.
Clause 228 omits references to tow truck and tow truck licence from section
147A of the Transport Act 1983, which makes provision
relating to licence fees.
Clause 229 omits references to sections relevant to tow trucks in section
147B of the Transport Act, which deals with the setting of
certain fees.
Clause 230 substitutes a new section 155(2)(d) of the Transport Act 1983 to
refer to this new Bill in relation to an exemption for a passenger
carried for hire and reward if carried in a tow truck which is
permitted by this Bill. The amendment is consequential on tow
truck regulation being moved from the Transport Act 1983 to
this new Bill.
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Clause 231 repeals Division 8 of Part VI of the Transport Act 1983.
That Division contains provisions relating to tow truck regulation
which is now being dealt with by this Bill.
Clause 232 substitutes section 186(1)(c) of the Transport Act 1983.
Section 186 deals with the Essential Services Commission's
enquiries into various licence fees. The amendment is
consequential on tow truck regulation being moved from the
Transport Act 1983 to this new Bill.
Division 2--Amendments to the Road Safety Act 1986
Clause 233 makes consequential amendments to sections 3(1) and 84C(1) of
the Road Safety Act 1986. The amendment to section 3(1) in
the definition of commercial motor vehicle changes a reference
to tow trucks within the meaning of the Transport Act 1983 to
tow trucks within the meaning of this Bill. The amendment to
section 84C(1) is a definitional change consequential on tow
truck regulation being moved from the Transport Act 1983 to
this new Bill.
Clause 234 makes consequential amendments to section 90F(3), (4) and (5)
of the Road Safety Act 1986 which require the removal of
illegally parked vehicles from council controlled areas to be by a
tow truck. The change is consequential on tow truck regulation
being moved from the Transport Act 1983 to this new Bill.
Clause 235 inserts a new section 92(3)(ga) into the Road Safety Act 1986
which has the effect of permitting VicRoads to disclose personal
or commercially sensitive information for the purposes of this
Bill.
Division 3--Amendments to the Infringements Act 2006, the
Police Regulation Act 1958 and the Melbourne City Link Act 1995
Clause 236 makes amendments to sections 34(b) and 98 of the
Infringements Act 2006, consequential on tow truck regulation
being moved from the Transport Act 1983 to this new Bill.
Section 34(b) deals with the effect of expiation of an
infringement on tow truck related demerit points. Section 98
deals with towing of vehicles that have been detained or
immobilised.
Clause 237 makes amendments to section 127A(1F) of the Police
Regulation Act 1958, consequential on tow truck regulation
being moved from the Transport Act 1983 to this new Bill.
Section 127A(1F) permits police to disclose certain information
to tow truck operators, drivers or depot managers.
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Paragraph (b) is statute law revision to correct an incorrect cross
reference to ensure it refers to the correct provision that relates to
towing.
Clause 238 repeals section 114A(3) of the Melbourne City Link Act 1995.
This paragraph becomes redundant as a consequence of tow truck
regulation being moved from the Transport Act 1983 to this
new Bill.
Clause 239 provides for the automatic repeal of this Part on 1 January 2010.
As suggested by the Scrutiny of Acts and Regulations
Committee, all amending Acts or amendments to Parts now
contain an automatic repeal provision, which will save the time
and expense of having to repeal amending Acts or Parts in statute
law revision Bills. The repeal of this Part does not affect in any
way the operation of the amendments made by this Bill (see
section 15(1) of the Interpretation of Legislation Act 1984).
SCHEDULES
SCHEDULE 1
INDUSTRY ACCREDITATION OFFENCES
Schedule 1 lists offences contained in this and other legislation that are
relevant for the purposes of the accreditation of towing operators
and depot managers. The Schedule divides these offences into 3
categories--
· serious violent offences; and
· fraud, dishonesty, violence, sexual offences or drug
trafficking; and
· other offences not listed above.
SCHEDULE 2
DRIVER ACCREDITATION OFFENCES
Schedule 2 lists offences contained in this and other legislation that are
relevant for the purposes of the accreditation of tow truck drivers.
The Schedule divides these offences into 3 categories--
· serious violent and sexual offences; and
· fraud, dishonesty, violence, sexual offences or drug
trafficking; and
· other offences not listed above.
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SCHEDULE 3
TRANSITIONAL PROVISIONS FOR NEW TOWING
SERVICES SCHEME
Clause 1 defines terms used in this Schedule, including commencement
day (being the day on which Part 9 commences), disqualified
person, old accident towing licence, old demerits register, old
driver authority, old heavy accident tow truck towing licence,
and old limited tow truck licence.
Clause 2 provides for the saving of driver authorities issued under the
Transport Act 1983. It states that a person who was the holder
of an old driver authority before the commencement day is taken
to be the holder of a tow truck driver accreditation under this Bill
if the person has not been disqualified or, if disqualified, has been
determined to be eligible by VicRoads. The tow truck driver
accreditation is valid for the period of the old driver authority and
is subject to the same conditions that applied to that authority.
Clause 3 provides for the saving of accident towing licences issued under
the Transport Act 1983.
Subclause (1) provides that a person who was the holder of an
old heavy accident tow truck towing licence before the
commencement day is taken to be the holder of a heavy tow truck
licence under this Bill subject to certain qualifications.
Subclause (2) provides that a person who was the holder of an
old accident towing licence before the commencement day is
taken to be the holder of a regular tow truck licence under this
Bill subject to certain qualifications.
Clause 4 provides that a person who was the holder of an old heavy
accident tow truck towing licence or the holder of an old accident
towing licence before the commencement day is taken to be the
holder of a towing operator accreditation under this Bill if the
person has not been disqualified or has been determined to be
eligible by VicRoads. The accreditation will remain in force for
12 months from the commencement day unless sooner cancelled
or suspended.
Clause 5 provides for the saving of tow truck demerit points incurred
under the Transport Act 1983. It provides that demerit points
that are recorded before the commencement day in the old
demerits register are taken to be accident towing demerits points
for the purposes of this new Bill, and the point in time the
demerit points are taken to have been incurred under the old Act
remains the same point in time under this new Bill.
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Clause 6 provides that a determination on tow truck charges made by the
Minister under the old Act and in force immediately before the
commencement date is taken to be a determination by the
Minister under clause 211 of this Bill.
Clause 7 provides that if Part 9 commences before 14 November 2008
Part 4 of the Transport (Tow Truck) Regulations 2005 is taken to
continue to be in force until 14 November 2008 as if the
Regulations were made under this Bill. The Regulations can
therefore be amended or revoked under this Bill. 14 November
2008 is the sunset date for these Regulations.
Further, this clause provides that licensing authority in the
Regulations is taken to mean VicRoads.
Clause 8 provides that references to the Director of Public Transport in
any relevant agreement, instrument, deed or other document
created under the old Act are to be construed as VicRoads (if not
inconsistent with the context or subject matter) after the
commencement day.
Subclause (2) defines relevant agreement, instrument, deed or
other document for the purposes of this clause.
Clause 9 provides that the Melbourne controlled area is to be taken to be
the area described by a declaration published in the Government
Gazette on 31 October 2002 despite this Bill. This clause is
repealed on the first anniversary of the commencement day.
Clause 10 provides that VicRoads may determine that the holder of an old
driver authority, old heavy accident tow truck towing licence or
old accident towing licence who is a disqualified person in
respect of the relevant accreditation is eligible to be taken to be
the holder of the relevant accreditation.
Subclause (2) provides that VicRoads must refuse an application
for determination under subclause (1) unless it is satisfied the
applicant has demonstrated exceptional circumstances that
making the determination is appropriate having regard to the
industry or driver accreditation objective.
Subclause (3) sets out the criteria VicRoads may have regard to
including--
· the nature and gravity of the offence or alleged offence;
· the period of time since the offence was committed or
allegedly committed;
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· the age of the applicant or, if the applicant is a
company, a nominated person or a relevant person when
the offence was committed or allegedly committed;
· the behaviour of the applicant, nominated person or
relevant person since committing the offence;
· the likelihood of the applicant, nominated person or
relevant person committing an offence in the future, in
particular, any future threat to persons involved in
accidents;
· any information given by the applicant, nominated
person or relevant person;
· any other matter that VicRoads considers relevant.
Subclause (5) provides that an application must be made before
the commencement day.
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