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Bus Safety Bill 2008
Introduction Print
EXPLANATORY MEMORANDUM
General
The Bus Safety Bill 2008 establishes a new regime of best practice safety
regulation for Victoria's growing bus industry.
The Bill is Victoria's first ever stand-alone bus safety statute. It is a key
component of the Victorian Government's ongoing program of transport
legislation reform. This follows a review of transport law which identified
the need for proactive risk management and effective independent safety
regulation in a number of transport modes.
An integrated and sustainable transport system must have safety and health as
one of its key overarching objectives. It should be explicit that transport
decision makers will aim to ensure that the transport system is safe and
supports improved health through the manner in which it is planned,
provided, managed and used.
In particular, the responsible parties must seek to continually improve the
safety performance of the system through safe infrastructure, safe forms of
travel and safe user behaviour. Decision makers must seek to avoid and
minimise the risk of harm arising from the transport system and aim to
promote forms of travel which have the greatest benefits for, and the least
negative impact on, the health of the community.
The Bill has not been developed in response to any perceived failure in the
safety performance of Victoria's bus sector--the industry compares well with
Australian and international trends. Rather, it introduces a contemporary
regulatory framework that responds to changing circumstances in the
industry.
In Victoria, buses will play an increasingly important role in the public
transport system, inevitably leading to a busier and more complex operational
environment for buses. This raises the risk profile of the bus sector.
Other components of the Victorian Government's program of transport policy
and legislation reform include the development and implementation of the
Rail Safety Act 2006, improved regulatory schemes for the taxi industry
(Transport (Taxi Accreditation and Other Amendments) Act 2006) and
561244 1 BILL LA INTRODUCTION 3/12/2008
accident towing industry (Accident Towing Services Act 2007), and a
planned review of marine safety legislation.
These modal specific reforms will ultimately sit within a new integrated
framework for the delivery and regulation of transport services, to be
established in Victoria by a major new statute, the Transport Integration Act,
which is planned for introduction in early 2009.
Taken together, this new suite of policy and legislation focuses on best
practice reform principles and supports the Government's vision to develop
an integrated and sustainable transport system.
The scale of the reforms is illustrated by a comparison of the two diagrams
below. Diagram 1 represents the current transport portfolio legislation
framework in Victoria.
Diagram 2 sets out the target structure for Victorian transport legislation
being pursued by Government. The new framework represents major
renewal and restructure of the current framework. Achievement of the
settings outlined in the structure will establish clearer accountabilities for all
those involved in the planning, delivery, management and regulation of
transport services and transport infrastructure in Victoria and will establish
best practice transport regulation across the board in Victoria.
Diagram 1
2
Diagram 2
The main purpose of the Bus Safety Bill 2008 is to improve the safety of bus
operations, so that the risk of accidents is reduced, and so that people feel
secure and safe when using this mode of public transport. It is expected that
promoting a safety culture and improving safety outcomes in the delivery of
bus services, will encourage greater use of bus services. This Bill will
actively promote maintenance and improvement in bus safety through a
number of key initiatives, including--
· Extending to the bus sector, the type of contemporary public transport
safety regulation introduced to the rail sector by the Rail Safety Act
2006.
· Formally separating the bus safety regulation function from the
responsibilities of the Director of Public Transport, by making the
Director of Public Transport Safety responsible for the administration
of this Bill.
· Articulating a range of key policy principles to guide persons involved
in the provision and regulation of bus services. These principles are
intended to ensure that the responsibilities are shared appropriately,
and are transparently and consistently applied.
· Creating a series of new general safety duties to eliminate or minimise
risk in the provision of bus services. These duties apply to people
who operate and provide or contract for the provision of bus services,
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and those who undertake safety critical work in relation to bus
services and bus infrastructure (in particular, bus stops).
· Establishing a more targeted, streamlined process for the accreditation
of bus services which focuses on commercial and local bus services
using medium to large buses, in order to ensure that regulatory
attention is directed appropriately to areas of greatest risk.
· Providing the opportunity to give specific guidance in the form of
Codes of Practice.
· Ensuring that a wide range of powers and sanctions are available to
the Safety Director, by extending the Safety Director's existing powers
under the Transport Act 1983, to the bus sector.
Clause Notes
PART 1--PRELIMINARY
Part 1 of the Bill provides for preliminary matters, including purposes,
commencement and definitions.
Clause 1 sets out the purposes of the Bill, which are to--
· provide for the safe operation of bus services in
Victoria;
· make related amendments to a number of Acts including
the Public Transport Competition Act 1995, the Rail
Safety Act 2006, the Road Safety Act 1986, the
Transport Act 1983 and certain other Acts; and
· to change the title of the Public Transport
Competition Act 1995 to the Bus Services Act 1995.
Clause 2 provides for the commencement of the various clauses of the Bill.
Subclause (1) provides for clauses 1, 2 and 80 to come into
operation on the day after the day on which the Bill receives the
Royal assent.
Subclause (2) provides for the remaining provisions of the Bill to
come into operation on a day to be proclaimed.
Subclause (3) provides that any provision not already in force is
to come into operation on 31 December 2010.
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Clause 3 sets out definitions for the purposes of the Bill. There is a new,
expanded and flexible definition of bus and important definitions
establish particular categories of bus services for the purpose of
determining whether bus services are required to be accredited,
and if so, what requirements are to apply. Key categories of
service are--
· commercial bus service;
· community and private bus service;
· courtesy bus service;
· demand responsive bus service;
· hire and drive bus service;
· local bus service;
· non-commercial courtesy bus service;
· route bus service; and
· tour and charter bus service.
Subclause (2) clarifies the meaning of the terms "fixed route"
and "regular basis" for the purpose of the definition of route bus
service in subclause (1).
Subclause (3) clarifies the meaning of any reference in the Bill to
"a person who has been found guilty of an offence".
Subclause (4) clarifies the meaning of any reference in the Bill to
"a person who has been charged with an offence".
Subclause (5) clarifies the meaning of any reference in the Bill to
"a charge that has not been finally disposed of".
Clause 4 sets out the objects of the Bill, which are to promote--
· the safety of bus services;
· the effective management of safety risks in bus services;
· continuous improvement in bus safety management;
· public confidence in the transport of passengers by bus;
· the involvement of relevant stakeholders in bus safety;
· a safety culture among persons who participate in the
provision of bus services.
Subclause (2) provides that the intention of Part 2 is not to create
a legal right in any person or give rise to a civil cause of action.
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Clause 5 provides that the Bill is to bind the Crown.
Subclause (2) provides that the Crown is a body corporate for the
purposes of the Bill and any regulations.
Clause 6 provides that the provisions of the Occupational Health and
Safety Act 2004, and any regulations made under that Act, are
pre-eminent and continue to apply in relation to an activity in
respect of which a duty is imposed under Division 2 of Part 3 of
this Bill, and will prevail to the extent of any inconsistency with
such a duty.
Compliance with this Bill or the regulations is not a defence in
proceedings for an offence under the Occupational Health and
Safety Act 2004 or any regulations made under it. However,
evidence of a contravention of this Bill or the regulations is
admissible in such proceedings.
Clause 7 empowers the Director, Public Transport Safety, appointed under
the Transport Act 1983 ("Safety Director") to declare, by notice
in the Government Gazette, that certain vehicles, classes of
vehicles or services either are or are not to be included within the
definitions of that vehicle, class of vehicle or service.
Subclause (2) requires the Safety Director to advise operators and
sectors of the industry that will be affected by a declaration made
under subclause (1) and to provide them with an opportunity to
make submissions.
Subclause (3) requires the Safety Director to have regard to any
submissions received under subclause (2).
Clause 8 empowers the Minister to declare, by notice in the Government
Gazette, that a substance is a drug for the purposes of Part 5.
PART 2--PRINCIPLES OF BUS SAFETY
Part 2 sets out the key principles which underpin the regulatory scheme
established by the Bus Safety Bill. These principles are intended to ensure
that the responsibility for bus safety is shared appropriately and that decisions
concerning bus safety are transparently and consistently applied. This Part
also emphasises the importance of participation, consultation and
involvement of all affected persons in managing risks to safety.
Clause 9 articulates the policy principle that the responsibility for the safe
operation of bus services is to be shared between the following
people or class of persons, depending on the nature of the
relevant risk, and the person or class of persons' capacity to
control, eliminate or mitigate the risk--
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· the operator;
· bus safety workers;
· procurers of bus services;
· persons who determine the location of bus stopping
points, or who design, construct, install, modify or
maintain a bus stopping point or bus stop infrastructure;
· the Safety Director; and
· members of the public.
Clause 10 articulates the policy principle that the person best able to control
risks to bus safety is the person responsible for managing those
risks.
Clause 11 articulates the policy principle that enforcement of the Act and
regulations should be undertaken for the purpose of--
· protecting public safety;
· promoting improvement in bus safety;
· removing any incentive for any unfair commercial
advantage that might be derived from a contravention
under this Bill or any regulations; and
· influencing the attitude and behaviour of persons whose
actions may have adverse impacts on bus safety.
Clause 12 articulates the policy principle that bus regulatory decision
making processes should be timely, transparent and nationally
consistent.
Clause 13 articulates the policy principle that operators, bus safety workers,
procurers and persons who determine the location of bus stopping
points, or who design, construct, install, modify or maintain a bus
stopping point or bus stop infrastructure, should--
· participate or be able to participate in; and
· be consulted on; and
· involved in--
the formulation and implementation of measures to manage risks
to safety associated with bus services.
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PART 3--BUS SAFETY DUTIES
Part 3 of the Bill introduces the concept of 'ensuring safety', and a suite of
duties for various persons and classes of persons involved in the provision of
bus and bus related services.
Division 1--The concept of ensuring safety
Clause 14 makes clear that a duty to ensure safety so far as is reasonably
practicable is a duty to eliminate risks to safety so far as is
reasonably practicable or, where elimination is not reasonably
practicable, to reduce risks to safety so far as is reasonably
practicable.
Subclause (2) sets out the matters to be taken into account in
determining what is reasonably practicable. These include the
likelihood of a risk eventuating, the degree of potential harm, and
the cost, availability and suitability of ways, of which the person
knows or ought reasonably to know, to eliminate or reduce the
risk.
Division 2--Safety duties
Clause 15 requires an operator of a bus service to ensure the safety of the
bus service so far as is reasonably practicable. Failure to do so is
an indictable offence and carries a penalty of 1800 penalty units
in the case of a natural person, or 9000 penalty units in the case
of a body corporate.
Clause 16 requires a procurer of a bus service to ensure the safety of the
service so far as is reasonably practicable. Failure to do so is an
indictable offence, and carries a penalty of 1800 penalty units for
a natural person, or 9000 penalty units in the case of a body
corporate.
Subclause (2) makes clear that a person contravenes the
requirement if the person procures the bus service on terms that
impose conditions or obligations which prevent or threaten, or
are reasonably likely to prevent or threaten, its safe operation.
Subclause (3) clarifies that a person is not a procurer because
they provide funding to the operator of the bus service.
Clause 17 requires a bus safety worker to take reasonable measures to
ensure the safety of persons who may be affected by his or her
acts or omissions. Failure to do so is an indictable offence, and
carries a penalty of 1800 penalty units in the case of a natural
person or 9000 penalty units in the case of a body corporate.
8
Clause 18 requires a person who determines the location of, designs,
constructs, installs, modifies or maintains a bus stopping point or
any bus stop infrastructure or who engages a person to do any of
those things, ensures, as far as is reasonably practicable, the
safety of the location, design, construction or condition of any
stopping point or bus stop infrastructure. Failure to do so is an
indictable offence, and carries a penalty of 1800 penalty units in
the case of a natural person, or 9000 penalty units in the case of a
body corporate.
Division 3--Bus inspections and safety audits
Clause 19 requires an accredited bus operator to ensure that buses used to
provide a commercial or local bus service, are inspected annually
or at prescribed intervals in accordance with the regulations.
Failure to do so is an offence, and a penalty of 20 penalty units
applies in the case of a natural person, and a penalty of
100 penalty units applies in the case of a body corporate.
Subclause (2) requires a registered bus operator to ensure each
bus used to provide the bus service undergoes a safety inspection
in accordance with the regulations (if any). Failure to do so is an
offence, and a penalty of 5 penalty units applies in the case of a
natural person, and a penalty of 25 penalty units applies in the
case of a body corporate.
Subclause (3) requires an accredited or registered bus operator to
arrange a safety inspection of each bus used to provide the bus
service operated by that operator, if directed by the Safety
Director. Failure to do so is an offence, and a penalty of
20 penalty units applies in the case of a natural person, and a
penalty of 100 penalty units applies in the case of a body
corporate.
Clause 20 empowers the Safety Director to conduct or cause to be
conducted, a safety audit to determine whether the requirements
of this Bill are being complied with.
PART 4--ACCREDITATION AND REGISTRATION
Part 4 establishes a new accreditation scheme for operators of commercial
and local bus services, and requires other providers of bus services to be
registered. The accreditation scheme will ensure that persons who operate
commercial or local bus services have the competence and capacity to
manage the safety risks associated with the operation of such services, and
will ensure high standards of safety in the operation of these bus services.
The registration requirement will ensure that the Safety Director is able to
9
supervise other bus services (which are not commercial or local bus services),
without imposing the full range of obligations associated with accreditation.
Division 1--Preliminary matters
Clause 21 provides that the purpose of accreditation is to attest that a person
who operates a commercial bus service or local bus service has
demonstrated, and can continue to demonstrate to the Safety
Director's satisfaction, that the person has the competence and
capacity to manage the safety risks of operating the service.
Subclause (2) provides that, if the operator is not a natural
person, the duty in subclause (1) is imposed on the responsible
person. The term responsible person is defined in clause 3 of
the Bill. The definition sets out the individuals who are to take
responsibility for duties imposed on various types of operator.
Clause 22 creates a scheme for the registration, by the Safety Director, of an
operator of a bus service, which is not a commercial or a local
bus service. The purpose of this scheme is to enable the Safety
Director to exercise some regulatory control over bus services
which are not covered by the accreditation scheme.
Subclause (7) makes it an offence to operate a bus service, that is
not a commercial or a local bus service, without such registration.
The penalty is 60 penalty units in the case of a natural person, or
300 penalty units in the case of a body corporate.
Subclauses (3) and (4) set out the matters which must be included
in an application for registration.
Subclause (5) empowers the Safety Director to register an
operator if satisfied that the operator is not accredited.
Subclause (6) sets out the conditions of registration, including the
requirement to keep the certificate of registration, to produce it
or return it in specified circumstances and to notify the Safety
Director of specified events. Subclause (8) makes it an offence
not to comply with this subclause. The penalty is 60 penalty
units in the case of a natural person, and 300 penalty units in the
case of a body corporate.
Clause 23 requires the operator of a licensed taxi-cab that is also a bus to
apply for either registration or accreditation, depending on the
kind of bus service proposed, if the operator proposes to use the
taxi-cab to provide a bus service.
Subclause (4) requires the Safety Director to consult with the
licensing authority under the Transport Act 1983 to determine
appropriate conditions under subclause (3).
10
Division 2--Accreditation
Clause 24 prohibits an operator from operating a commercial bus service or
a local bus service unless the operator is accredited under Part 4.
A penalty of 240 penalty unit applies in the case of a natural
person, and 1200 penalty units in the case of a body corporate.
Clause 25 provides that an operator may apply to the Safety Director for
accreditation to operate a commercial or local bus service.
Subclauses (2) to (7) provide for the application process.
Clause 26 requires the Safety Director to accredit the operator of a
commercial or local bus service if satisfied that the applicant has,
and will continue to have, the competence and capacity to safely
operate the bus service. The power to accredit is subject to
Division 3.
Subclause (2) describes the matters the Safety Director must
consider in deciding on an application, including whether the
applicant or the responsible person has completed an approved
training course.
Division 3--Accreditation refusal
Clause 27 requires the Safety Director to refuse an application for
accreditation if he or she believes on reasonable grounds that--
· the applicant or responsible person has been found
guilty of a tier 1 offence (which is defined in clause 3);
or
· the applicant or responsible person is subject to a
reporting obligation or an order referred to in section
12(1)(a) or (b) of the Working with Children Act
2005; or
· the applicant is disqualified from obtaining the
accreditation, based on the cancellation of a previous
accreditation; or
· the applicant is insolvent, or has been placed in
administration under law; or
· a receiver, or receiver and manager, has been appointed;
or
· a court has made an order for the winding up of the
applicant.
11
Clause 28 requires the Safety Director to refuse an application for
accreditation if he or she believes on reasonable grounds that the
applicant or responsible person has been found guilty of a tier 2
offence (defined in clause 3), unless the applicant can
demonstrate that accreditation is appropriate in the
circumstances.
Subclause (2) empowers the Safety Director to refuse an
application for accreditation if he or she believes on reasonable
grounds that the applicant or responsible person has been found
guilty of a tier 3 offence (defined in clause 3), or that the
applicant has contravened a current or past condition of
accreditation.
Clause 29 empowers the Safety Director to postpone a decision on
accreditation if the applicant or responsible person has been
charged with a disqualifying offence, the charge has not been
finally disposed of and the Safety Director believes that a finding
of guilt would be relevant to his or her decision.
Clause 30 empowers the Safety Director to disqualify an applicant whose
accreditation application has been refused from applying for
accreditation for a period not exceeding 5 years.
Clause 31 requires the Safety Director to give the applicant written notice as
soon as practicable after a refusal to accredit the applicant,
together with a statement of reasons for the refusal and for any
disqualification determination under clause 30. The notice must
also inform the applicant of their right to seek review of the
Safety Director's decision under Part 6.
Division 4--Provisions relating to accreditation
Clause 32 provides that the Safety Director may determine different classes
of accreditation in respect of different types of commercial or
local bus services.
Clause 33 requires the Safety Director, upon granting accreditation, to
allocate an accreditation number to the operator, and issue a
certificate of accreditation setting out certain details, including
the class of accreditation and any conditions of accreditation.
Subclauses (2) and (3) provide for replacement certificates when
certificates are lost, stolen or destroyed.
12
Clause 34 provides that accreditation is subject to the conditions specified
in clause 35, any prescribed conditions, or conditions imposed by
the Safety Director.
Subclause (2) empowers the Safety Director to impose on an
accreditation any conditions considered necessary or desirable to
ensure safety. The conditions may be general, may apply to
certain classes of service, or may be imposed case by case.
Subclauses (3) and (4) require the Safety Director to consult with
operators and sectors of the industry that will be affected, of any
proposed general conditions which may affect them.
Subclause (5) requires the Safety Director to publish any general
conditions in the Government Gazette.
Clause 35 provides that accreditation is subject to the following
conditions--
· A driver of a bus must hold a driver accreditation under
Division 6 of Part VI of the Transport Act 1983.
· Buses must comply with prescribed requirements and
any applicable vehicle standards under the Road Safety
Act 1986.
· The operator must keep, and produce on request to the
Safety Director, the certificate of accreditation.
· If the responsible person ceases to be an employee or
officer, the operator must ensure that another employee
or officer first completes the approved training course,
and must advise the Safety Director of the identity of
that person. If this is not practicable the operator may
seek the Safety Director's approval for another person to
complete the approved training course at a later date.
Clause 36 requires an accredited bus operator to comply with the
accreditation conditions. An operator who fails to do so is guilty
of an offence and liable to a penalty of 240 penalty units if a
natural person, or 1200 penalty units if a body corporate.
Clause 37 requires the Safety Director to decide whether to accredit an
operator within 3 months of receiving an application, unless the
Safety Director gives the operator written notice of an extension.
13
Clause 38 provides that accreditation remains in force until it is cancelled, is
surrendered, or expires. The Safety Director can grant temporary
accreditation, for a period of less than 12 months.
Clause 39 provides that accreditation cannot be transferred or assigned to
any other person.
Division 5--Variation and surrender of accreditation
Clause 40 provides that an accredited bus operator may apply to the Safety
Director to vary the accreditation including by revoking or
varying a condition or varying the scope of accreditation.
Subclause (3) requires the Safety Director to consider the
application within 3 months of receiving the application.
Subclause (4) empowers the Safety Director to grant or refuse the
application, or to make a different variation of the accreditation.
Subclauses (5) and (6) require the Safety Director to give the
operator written notice of any refusal, together with reasons and
notification of the operator's right to seek review of the decision
under Part 6.
Clause 41 requires an operator to notify the Safety Director within 7 days of
becoming aware of any change in the number of buses or bus
services being operated, or any change in circumstances that--
· will render the accreditation certificate, or any
document relating to the accreditation application,
inaccurate;
· will render the operator unable to comply with this Bill;
or
· has, will or may result in a ground of refusal applicable
under clause 27 or 28.
Failure to provide written notice is an offence with a penalty of
240 penalty units in the case of a natural person, or 1200 penalty
units in the case of a body corporate.
Subclauses (3) and (4) require the operator to surrender the
accreditation certificate to the Safety Director if the change in
circumstances results in the certificate becoming inaccurate or
inapplicable, and empower the Safety Director to amend or
replace the certificate. Failure to surrender the certificate is an
offence with a penalty of 240 penalty units in the case of a
14
natural person, or 1200 penalty units in the case of a body
corporate.
Subclauses (5) and (6) require a responsible person to comply
with anything reasonably required (including a criminal record
check) by the Safety Director to decide whether or not the
operator is a suitable person, because of a relevant change of
circumstances. Failure to comply is an offence with a penalty of
1200 penalty units.
Clause 42 empowers the Safety Director to vary, revoke, or impose a new,
condition of accreditation, or vary the class or scope of an
accreditation.
The Safety Director must give the accredited bus operator written
notice of an intention to do so, and must allow the accredited bus
operator to make written representations, unless the Safety
Director considers it necessary to take immediate action in the
interest of public safety.
Subclauses (5) and (6) require the Safety Director to give written
notice to the accredited bus operator setting out any action taken
under this clause, reasons for the decision, any change to
prescribed accreditation conditions and the accredited bus
operator's right to seek review of the decision under Part 6.
Clause 43 empowers an accredited bus operator to request the Safety
Director to consent to the surrender of accreditation.
Subclauses (4) and (5) require the Safety Director to give the
accredited bus operator written notice of any refusal as soon as
practicable after the decision is made, including reasons for the
refusal, and the accredited bus operator's right to seek review of
the decision under Part 6.
Division 6--Bus services under corresponding law
Clause 44 allows limited cross border journeys by buses operated by a
person who is permitted to operate the service in another State or
Territory.
Clause 45 empowers the Safety Director to accredit an operator if satisfied
that the applicant is accredited to operate bus services of a similar
kind under a corresponding law in another State or Territory.
Subclauses (3) and (4) provide that any conditions imposed under
the corresponding law are imposed on the accreditation, are to
prevail to the extent of any inconsistency with a mandatory
condition under Division 4, unless the Safety Director
determines otherwise.
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Clause 46 requires an operator to give the Safety Director 7 days written
notice of any relevant change in circumstance, such as
disciplinary action, or additional conditions imposed, in respect
of an accreditation under a corresponding law.
Clause 47 requires the Safety Director to consult with any relevant
corresponding Bus Safety Regulators in relation to any
application for accreditation, or variation of accreditation, by an
operator who appears to be accredited, or to be seeking
accreditation, under a corresponding law. The purpose of the
consultation is to ensure that any decision to grant or refuse the
application is consistent with the decision in the other
jurisdiction.
Subclauses (3) and (4) require the Safety Director to either decide
in accordance with guidelines prepared by the Minister, or to
give the applicant reasons for not doing so.
Division 7--Suspension, cancellation and other disciplinary action
Clause 48 empowers the Safety Director to immediately suspend an
accreditation, if he or she considers it necessary, without holding
an inquiry under clause 50 of this Bill. This power must be
exercised in accordance with the regulations (if any).
Subclause (3) provides for the duration of the suspension.
Subclauses (4) to (7) provide for an inquiry to be conducted
under section 50 if required by the operator. Provision is made
for the process, outcomes and the effect of the initial suspension.
Clause 49 requires the Safety Director to cancel the accreditation of an
operator where that operator, or a responsible person in relation
to that accredited bus operator, has been found guilty of a tier 1
offence or becomes subject to reporting obligations or an order
referred to in clause 27(a)(ii).
Clause 50 empowers the Safety Director to hold an inquiry to determine
whether proper cause exists for taking disciplinary action against
an accredited bus operator.
Subclause (2) provides that there is proper cause for taking
disciplinary action if the operator or a responsible person--
· has contravened this Bill or the regulations;
· has not complied with an accreditation condition;
· is convicted or found guilty of a tier 2 or tier 3 offence;
· has obtained accreditation improperly;
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· has not paid any accreditation fee.
Subclause (3) empowers the Safety Director, if satisfied that
proper cause exists, to--
· reprimand the operator;
· suspend accreditation;
· impose an expiry date or new conditions;
· vary the conditions, scope or expiry of accreditation;
· cancel accreditation and, if reasonable cause exists,
disqualify the operator from applying for accreditation.
In the case of an operator or responsible person being found
guilty of a tier 2 offence, subclause (4) requires the operator to
show cause why the accreditation should not be cancelled.
Clause 51 provides for the manner in which the Safety Director must
exercise his or her powers under clause 50. The procedure is
within the discretion of the Safety Director, but the Safety
Director must act fairly.
Clause 52 provides that a person whose accreditation is suspended is not
accredited during the period of suspension, and is disqualified
from applying for the same kind of accreditation.
Division 8--Miscellaneous
Clause 53 requires an operator whose accreditation is cancelled or
surrendered to return the certificate of accreditation and number
plates to the Safety Director. Failure to do so is an offence and
carries a penalty of 60 penalty units in the case of a natural
person, or 300 penalty units in the case of a body corporate.
Clause 54 empowers the Safety Director to request safety information from
the accredited or registered bus operator. Information may
include any incidents which have occurred, any hazards which
have been identified or the type of risk management activities
undertaken by an accredited or registered bus operator.
Subclause (2) requires an accredited or registered bus operator to
comply with a request made under subclause (1). It is an offence
not to comply with this clause and a penalty of 1200 penalty units
applies.
Clause 55 empowers the Safety Director to communicate with the
responsible person if the bus operator is not an individual.
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PART 5--ALCOHOL AND DRUG MANAGEMENT POLICY
Part 5 requires bus operators, to develop, maintain and implement an alcohol
and drug management policy. The policy must be developed in consultation
with relevant persons and must contain certain specified particulars.
Clause 56 requires accredited bus operators and registered bus operators to
develop, maintain and implement an alcohol and drug
management policy in consultation with certain bus safety
workers. The definition of drug is set out in clause 3(1) of the
Bill. Failure to prepare a policy is an offence and carries a
penalty of 240 penalty units in the case of a natural person, or
1200 penalty units in the case of a body corporate.
Clause 57 requires that a drug and alcohol management policy must be in
writing, and must--
· prohibit a driver from having alcohol or drugs in his or
her blood or breath; and
· comply with any guidelines issued by the Safety
Director.
Subclause (2) requires any drug or alcohol management policy,
which provides for testing of the presence of drugs or alcohol, to
specify--
· the circumstances in which a bus safety worker may be
tested;
· the testing procedures and who may conduct the tests;
· how and where tests are to be stored, handled or
destroyed;
· limitations on the frequency of testing;
· that tests can only occur where there is reasonable
cause;
· the purpose of testing for alcohol or drugs;
· results are treated confidentially.
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PART 6--REVIEW OF DECISIONS
Part 6 provides certain persons affected by decisions of the Safety Director,
to apply to the Victorian Civil and Administrative Tribunal for review.
Clause 58 provides that a person may apply to the Victorian Civil and
Administrative Tribunal for a review of a decision by the Safety
Director to--
· refuse, suspend or cancel accreditation;
· impose a condition on accreditation;
· vary or not vary accreditation; or
· disqualify an operator from applying for accreditation.
Subclauses (2) and (3) provide for time limits and the Tribunal's
powers.
PART 7--CODES OF PRACTICE
Part 7 of the Bill contains provisions for the approval of codes of practice by
the Minister. Codes of practice will contain operational guidelines and
standards to give practical guidance to accredited bus operators and any other
person on whom this Bill may place obligations.
Clause 59 empowers the Minister to approve one or more codes of practice
to provide practical guidance to accredited bus operators and
other persons.
Clause 60 empowers the Minister to approve any revisions to the whole, or
part, of an approved code of practice or to revoke the approval of
a code of practice.
Clause 61 sets out when an approved code of practice ceases to be of effect
and when a revocation of a code has effect.
Clause 62 requires the Minister to make available for inspection by the
public, at the office of the Safety Director, without charge--
· a current copy of every approved code of practice; and
· a copy of every document referred to in the approved
code of practice (in the appropriate form).
Clause 63 requires the Minister to consult with any person or body that may
be affected by the approval or revision of a code of a practice.
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Clause 64 provides that a person does not incur any civil or criminal
liability, only as a result of failing to observe any provision of an
approved code of practice.
PART 8--GENERAL
Division 1--General
Part 8 deals with general matters, including offences for misleading and
deceptive conduct, the setting of accreditation fees, offences by bodies
corporate, disallowance of approved codes of practice, the effect of
compliance with regulations or approved codes of practice, and the making of
regulations.
Clause 65 requires an accredited bus operator or registered bus operator to
notify the Safety Director of prescribed incidents in accordance
with the regulations. It is an offence not to comply with this
clause, and a penalty of 50 penalty units applies.
Clause 66 creates several offences where a person deliberately or recklessly
provides false or misleading information.
Subclause (1) provides that a person must not deliberately or
recklessly--
· provide any information or document that is false or
misleading in a material detail; or
· make any representation that provides a false or
misleading impression; or
· fail to include any matter in any information or
document 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), that person is guilty of an
offence and is liable to a penalty of 600 penalty units in the case
of a body corporate, and in any other case, either level 9
imprisonment (6 months maximum) or 120 penalty units or both.
Subclause (2) provides that a person is not guilty of an offence of
providing a false or misleading document, if the person informed,
or took all reasonable steps to inform, the person or body to
whom the document was provided, of the false or misleading
detail in the document.
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Clause 67 empowers the Safety Director to set accreditation fees by notice
published in the Government Gazette.
Subclause (1) empowers the Safety Director to set accreditation
fees, annual accreditation fees and inspection fees.
Subclause (2) sets out what the Safety Director may provide for
when setting fees.
Subclause (3) permits the Safety Director to reduce or waive fees
in certain circumstances.
Subclauses (5) and (6) require the Safety Director to consult with
operators and sectors of the industry that will be affected by any
proposed fees.
Clause 68 provides that conduct engaged in on behalf of a body corporate
by an employee, agent or officer acting within the actual or
apparent scope of his or her employment or within his or her
apparent authority is conduct also engaged in by the body
corporate.
Clause 69 provides for the liability of a body corporate and of officers of a
body corporate for offences under the Bill and regulations.
Clause 70 provides that where a person has complied with regulations or an
approved code of practice in relation to a provision of the Bill,
that person is taken to have complied with that provision.
Clause 71 provides for the tabling and disallowance of approved codes of
practice in Parliament.
Division 2--Regulations
Clause 72 empowers the Governor in Council to make regulations with
respect to certain general and incidental matters, including
prescribing forms for the purposes of this Bill and any matter
necessary to give effect to the Bill.
Subclause (2) provides that any regulations made under this Bill
may--
· be of general or limited application;
· differ according to differences in time, place or
circumstance;
· leave matters to be determined by specified persons or
specified classes of persons;
· provide for exemptions;
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· confer powers or impose duties;
· incorporate or adopt codes or standards; and
· impose a penalty not exceeding 20 penalty units for
contravention of the regulations.
Clause 73 empowers the Governor in Council to make regulations for or
with respect to bus services and bus safety work.
Clause 74 empowers the Governor in Council to make regulations with
respect to safety duties, including by imposing specific
obligations and prohibitions.
Clause 75 empowers the Governor in Council to make regulations with
respect to bus inspections and safety audits.
Clause 76 empowers the Governor in Council to make regulations with
respect to accreditation and registration.
Clause 77 empowers the Governor in Council to make regulations with
respect to fees.
Clause 78 empowers the Governor in Council to make regulations
containing provisions of a savings or transitional nature.
Such regulations may be retrospective. The transitional
regulation-making power expires on 31 August 2013.
PART 9--AMENDMENTS TO OTHER ACTS AND REPEAL
OF PART
Part 9 integrates the broad ranging reforms under this Bill with other key
pieces of transport related legislation.
Division 1--Magistrates' Court Act 1989
Clause 79 inserts a new clause 55AA into Schedule 4 to the Magistrates'
Court Act 1989 which provides the maximum penalty which can
be imposed for an indictable offence under this Bill that is tried
summarily.
Division 2--Public Transport Competition Act 1995
Clause 80 inserts a new subsection 12(3) into the Public Transport
Competition Act 1995 (PTC Act), which empowers the Director
to extend the period of an accreditation, which was in force
before the commencement of this Bill, for a period of up to two
years. This provision will commence once the new Act receives
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the Royal assent (see clause 2), as it relates to the current
accreditation scheme under the PTC Act.
Clause 81 substitutes a new section 1 which describes the new narrower
purpose of the PTC Act.
Clause 82 makes consequential amendments to the PTC Act.
Subclause (1) repeals several definitions, adopts the definition of
bus from the Bill, redefines regular passenger service and
empowers regulations to be made relating to service levels.
Clause 83 changes the name of the PTC Act, to the Bus Services Act 1995.
Clause 84 inserts a new section 4A, which empowers the Director to make
certain declarations in relation to regular passenger services.
Division 3--Rail Safety Act 2006
Clause 85 inserts a new subclause 55(3A) into the Rail Safety Act 2006,
which requires the Safety Director (when taking immediate
action in the interests of public safety under section 55(3)), to
notify the accredited rail operator within 48 hours of making such
a decision. This reflects clause 42(4) of the Bill.
Division 4--Road Management Act 2004
Clause 86 substitutes the term "Bus Services Act" for the term "Public
Transport Competition Act" in the definition of provider of
public transport in section 3(1) of the Road Management Act
2004.
Division 5--Road Safety Act 1986
Clause 87 inserts a new section 3(1)(aa) into the Road Safety Act 1986,
which expands the definition of road or transport law to include
this Bill.
Clause 88 inserts the definition of Safety Director into section 191A, for the
purposes of section 191BA.
Clause 89 inserts a new section 191BA, which substitutes the Safety
Director for the Corporation (VicRoads) as the body that
administers the fatigue management provisions of the Road
Safety Act 1986 for heavy vehicles that are buses used to provide
bus services.
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Division 6--Safety on Public Land Act 2004
Clause 90 substitutes "Bus Services Act" for "Public Transport
Competition Act" in the definition of transport authority in the
Safety on Public Land Act 2004.
Division 7--Transport Act 1983
Clause 91 inserts the new definition of mandatory bus safety decision into
section 2(1) of the Transport Act 1983, to support the
amendment made by clause 93.
The definition of relevant transport safety law is expanded to
include bus-related subject-matter, to enable Transport Act
1983 enforcement provisions to apply to offences under the Bill.
Clause 92 makes consequential amendments to several sections by
replacing the references to the "Public Transport Competition
Act" with references to this Bill.
Clause 93 amends section 9ZA of Transport Act 1983, expanding the
scope of the section to include mandatory bus safety decisions.
This amendment will require the Director of Public Transport to
take into account any potential impact on the bus sector when
making decisions or recommendations under the Bill.
Clause 94 makes consequential amendments to certain definitions in section
86(1), including by excluding buses used to provide bus services
under the Bill from the definition of commercial passenger
vehicle. This has the effect of ensuring that the provisions of the
Bill are separate from the scheme of licensing and accreditation
for commercial passenger vehicles under the Transport Act
1983.
Clause 95 makes consequential amendments to Division 6 of Part VI of the
Transport Act 1983 (driver accreditation). In particular--
· Section 165(1)(b) of the Transport Act 1983 is
amended to provide that, although a bus under the Bill
is not a commercial passenger vehicle, drivers of buses
used to provide commercial bus services or local bus
services must be accredited.
· Other changes to this Division are consequential in
nature.
Clause 96 amends the definitions in section 228S(1) and inserts new
definitions to support the extension of the Transport Act 1983
enforcement provisions to cover bus services under the Bill.
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Clause 97 extends section 228Z so that it applies to bus premises as well as
rail premises.
Clause 98 makes an amendment to section 228ZA(1) related to the
amendment made to section 228Z.
Clause 99 amends section 228ZZC(1)(c) of the Transport Act 1983
(improvement notices for breaches of accreditation conditions) to
cover accredited bus operators in addition to accredited rail
operators.
Clause 100 makes amendments relating to prohibition notices under section
228ZZJ expanding the section to include references to bus
stopping points and bus services.
Clause 101 amends section 249B(1) by inserting references to "bus services"
in paragraph (a) and making consequential amendments to
paragraph (b) to reflect the changes made to section 2 of the
Transport Act 1983. This enables the making of regulations
relating to bus services under the Transport Act.
Clause 102 provides that Part 9 of the Bill will be repealed on 31 December
2011.
The repeal of Part 9 does not affect the ongoing operation of the
amendments made by Part 9 (see section 15(1) of the
Interpretation of Legislation Act 1984).
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