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HEAVY VEHICLE NATIONAL LAW APPLICATION BILL 2013

           Heavy Vehicle National Law
              Application Bill 2013

                         Introduction Print


               EXPLANATORY MEMORANDUM


                                  General
The purposes of this Bill are to provide for the application of the Heavy
Vehicle National Law to regulate the use of heavy vehicles, and to make
related and consequential amendments to other Acts and for other purposes.
The Heavy Vehicle National Law is template legislation that will establish
a national system of regulation for all heavy vehicles over 4·5 tonnes,
consisting of uniform laws administered by a single national regulator.
In applying the Heavy Vehicle National Law, the Bill enacts a number of
new provisions and makes a series of consequential and other amendments
to ensure that the Heavy Vehicle National Law is tailored to suit Victoria's
legislative environment.

                               Clause Notes

                       PART 1--PRELIMINARY
Clause 1    sets out the main purposes of the Bill. These are--
                     to provide for the application of a national law
                     regulating the use of heavy vehicles; and
                     to make related and consequential amendments to other
                     Acts.

Clause 2    provides for the commencement of the provisions of the Bill.
            The Bill will come into operation on a day or days to be
            proclaimed. It does not identify a default commencement date
            as the commencement of the Heavy Vehicle National Law is to
            be co-ordinated nationally. As a national scheme, the Heavy


571278                                1      BILL LA INTRODUCTION 16/4/2013

 


 

Vehicle National Law relies on each jurisdiction passing its application laws before the agreed commencement date. To allow for any contingencies that may occur in other jurisdictions passing their application laws, no default commencement date is set. It is planned to commence the Heavy Vehicle National Law in all States and Territories on a common agreed date. Clause 3 defines certain terms for the purposes of the Bill. Subclause (1) sets out definitions for the terms magistrate, Roads Corporation, Scrutiny of Acts and Regulations Committee and this jurisdiction. A definition is also provided for the term Heavy Vehicle National Law (Victoria) thereby clarifying that this is distinct from the term Heavy Vehicle National Law. Subclause (2) provides that the meaning of terms used throughout the Bill and the Heavy Vehicle National Law are to have the same meaning as in the Heavy Vehicle National Law. PART 2--APPLICATION OF HEAVY VEHICLE NATIONAL LAW Clause 4 applies the Heavy Vehicle National Law in Victoria. It provides that the Heavy Vehicle National Law set out in the Schedule to the Heavy Vehicle National Law Act 2012 of Queensland-- applies as a law of Victoria, subject to Part 5 of the Bill that provides that Chapter 2 of the Heavy Vehicle National Law that deals with registration of heavy vehicles does not apply; may be referred to as the Heavy Vehicle National Law (Victoria); and so applies as if it were an Act of Victoria. Note that national regulations made under section 730 of the Heavy Vehicle National Law apply as a law of Victoria. The national regulations are made by the Queensland Governor acting with the advice of the Executive Council of Queensland and on the unanimous recommendation of the responsible 2

 


 

Ministers, and will apply as a law of Victoria by virtue of the application of the Heavy Vehicle National Law in clause 4. Clause 5 provides for certain Victorian Acts to not apply to the Heavy Vehicle National Law (Victoria). To ensure that the Heavy Vehicle National Law scheme can operate in a consistent way in all jurisdictions, administrative and machinery legislation usually applying in Victoria is excluded. The Financial Management Act 1994, the Freedom of Information Act 1982, the Information Privacy Act 2000, the Public Administration Act 2004, and the Public Records Act 1973 do not apply to the Heavy Vehicle National Law (Victoria) except when a Victorian public sector body or employee (as defined in the Public Administration Act 2004) exercises a function under any of those Acts. The Audit Act 1994 is also disapplied in this manner. However, that Act applies to the Victorian Auditor-General if he or she is to be the national auditor under section 693(3) of the Heavy Vehicle National Law. The Interpretation of Legislation Act 1984, other than sections 11, 13 and 46A, and the Monetary Units Act 2004 do not apply to the Heavy Vehicle National Law (Victoria). The Subordinate Legislation Act 1994 also does not apply except as provided under clause 6. In place of these Acts, the Heavy Vehicle National Law and the national regulations make provisions for covering these areas-- either through applying relevant Queensland legislation or through detailing relevant provisions within the text of the Heavy Vehicle National Law and the national regulations. For example, section 696 of the Heavy Vehicle National Law (Victoria) applies the Information Privacy Act 2009, Public Records Act 2002 and Right to Information Act 2009 of Queensland to the Regulator and this national scheme. National regulations will be used to modify the Queensland Acts to ensure they can operate effectively for this scheme in all participating jurisdictions. In particular, the national regulations will be used to make necessary adjustments to cater for administrative arrangements. 3

 


 

Clause 6 Whilst clause 5 disapplies the Subordinate Legislation Act 1994, this clause provides that sections 15(1) and Part 5 (except for sections 21(1)(ga) and (j)) continue to apply to the national regulations as if the national regulations were statutory rules within the meaning of that Act. Section 15(1) of the Subordinate Legislation Act 1994 requires that a statutory rule be laid before each House of Parliament. Part 5 of that Act provides for the suspension or disallowance of statutory rules in certain circumstances. Therefore the national regulations are subject to the tabling requirements in Victoria, and the suspension and disallowance process. Subclause (2) provides that if, as a result of this process, a national regulation is disallowed (in whole or in part) the disallowed regulation or part does not cease to have effect in Victoria unless it is disallowed in a majority of the participating jurisdictions. This majority disallowance provision reflects a national agreement to ensure national consistency and uniformity, that national regulations will only be disallowed if agreed by a majority of the jurisdictions. Subclause (3) provides that, should this happen, the actual date of the disallowance is the date that the last of the participating jurisdictions who form part of this majority disallow the regulation. Clause 7 provides that Chapter 6 (Vehicle operations--driver fatigue) of the Heavy Vehicle National Law (Victoria) does not apply to a driver for a rail replacement bus service who is responding to a rail disruption or a driver for a bus service who is responding to an emergency. Clause 7 defines these terms. This clause continues the effect of the current exemption in Victoria found in section 191ZZ of the Road Safety Act 1986. It was agreed nationally this exemption should continue as it is a "local productivity initiative" within clause 9(c) of the Intergovernmental Agreement on Heavy Vehicle Regulatory Reform. 4

 


 

Clause 8 provides that, for the Heavy Vehicle National Law (Victoria), section 556 of the Heavy Vehicle National Law (the provision concerning the return of seized things or samples) should be read as if 2 additional clauses were added, which concern how the relevant tribunal or court can order the return of the thing or sample seized to the person, or have it destroyed or sold. Clause 9 provides that the reference to 28 days in section 613(1) of the Heavy Vehicle National Law (Victoria) means 60 days in Victoria. This means the relevant public authority must give a copy of a certificate under section 612 to the defendant at least 60 days before the hearing. PART 3--MEANING OF TERMS FOR HEAVY VEHICLE NATIONAL LAW (VICTORIA) Clause 10 clarifies that in the Heavy Vehicle National Law (Victoria) the term Roads Corporation defined in the Transport Integration Act 2010 applies, and that the phrase this jurisdiction means Victoria. Clause 11 clarifies that for the purpose of the Heavy Vehicle National Law (Victoria), the term "authorised warrant official" means a magistrate (defined in clause 3). This means that applications for warrants in Victoria to exercise certain powers in relation to places requires a warrant issued by a magistrate. Clause 12 clarifies that a "member of the force" (as defined in the Police Regulation Act 1958) is declared to be an "authorised officer" for the purposes of Part 9.2 of the Heavy Vehicle National Law (Victoria). In the specific case of Part 9.2 of the Heavy Vehicle National Law (Victoria) (Powers in relation to places), only a member of the force authorised by the Chief Commissioner of Police is an "authorised officer". The reason this clause is needed is that section 5 of the Heavy Vehicle National Law defines an "authorised officer" to include a "police officer declared by a law of a participating jurisdiction to be an authorised officer for the purposes of this Law". The clause also declares any member of the force to be an authorised officer in respect of any Part of the Heavy Vehicle National Law (Victoria) other than Part 9.2. 5

 


 

Clause 13 specifies that the phrase "Infringement Notice Offences Law" in the Heavy Vehicle National Law (Victoria) means the Infringements Act 2006 and the regulations made under that Act. Section 5 of the Heavy Vehicle National Law defines "Infringement Notice Offences Law". It states that "for a participating jurisdiction, [this phrase] means the law that is declared by a law of that jurisdiction to be the Infringement Notice Offences Law for the purposes of this Law". Section 591 of the Heavy Vehicle National Law gives authorised officers the power to serve persons with infringement notices--the procedures for which are prescribed under the "Infringement Notice Offences Law" of each jurisdiction. Clause 14 specifies that the term "local government authority" in the Heavy Vehicle National Law (Victoria), means a Council within the meaning of the Local Government Act 1989. Section 5 of the Heavy Vehicle National Law defines "local government authority". It states that "for a participating jurisdiction, [this phrase] means an entity that is declared by a law of that jurisdiction to be a local government authority for that jurisdiction for the purposes of this Law". A local government authority is also part of the definition of "public authority" under section 5 of the Heavy Vehicle National Law. Clause 15 declares the term "relevant tribunal or court" in the Heavy Vehicle National Law (Victoria) means the Victorian Civil and Administrative Tribunal (VCAT). Section 5 of the Heavy Vehicle National Law defines "relevant tribunal or court" as meaning "for a participating jurisdiction, means a tribunal or court that is declared by a law of that jurisdiction to be the relevant tribunal or court for that jurisdiction for the purposes of this Law". The clause further declares that the Magistrates' Court is the "relevant tribunal or court" for the purpose of Division 2 of Part 9.4 of the Heavy Vehicle National Law (Victoria). Clause 16 specifies that the term "responsible Minister" in the Heavy Vehicle National Law (Victoria) means the Minister responsible for administering the Bill. 6

 


 

Section 5 of the Heavy Vehicle National Law defines "responsible Minister". It states that "for a participating jurisdiction, [this phrase] means the Minister of that jurisdiction nominated by it as its responsible Minister for the purposes of this Law". Therefore this nomination is required in the Bill. Clause 17 specifies that the term "road authority" in the Heavy Vehicle National Law (Victoria) means the Roads Corporation (also known as VicRoads). Section 5 of the Heavy Vehicle National Law defines "road authority". It states that "for a participating jurisdiction, [this phrase] means an entity that is declared by a law of that jurisdiction to be the road authority for that jurisdiction for the purposes of this Law". VicRoads has a number of powers and functions as the "road authority" under the Heavy Vehicle National Law. Clause 18 details the Victorian entities who are declared to be "road managers" for the purpose of the Heavy Vehicle National Law (Victoria). The term road manager is defined in section 5 of the Heavy Vehicle National Law as "for a road in a participating jurisdiction, means an entity that is declared by a law of that jurisdiction to be the road manager for the road for the purposes of this Law". The term is particularly relevant to Part 4.5 of the Heavy Vehicle National Law, which relates to exemptions for access for particular overmass or oversize vehicles. The road manager is involved in the decision making process for access for these vehicles. The clause declares the different entities and what roads they are road managers for. Clause 19 declares that the reference to "Road Rules" in the Heavy Vehicle National Law means the Road Safety Road Rules 2009 made under section 95D of the Road Safety Act 1986. Section 5 of the Heavy Vehicle National Law defines "Road Rules" as "for a participating jurisdiction, means the law that is declared by a law of that jurisdiction to be the Road Rules for the purposes of this Law". 7

 


 

Clause 20 provides that in relation to the terms "road" and "road related area" in the Heavy Vehicle National Law, any Orders made under section 3(2)(a) of the Road Safety Act 1986, are taken to be declarations in respect of an area for the purpose of the Heavy Vehicle National Law (Victoria). Section 8(3) of the Heavy Vehicle National Law provides that an area is a road or road-related area "if the area is declared by a law of that jurisdiction to be a road or road-related area for the purposes of this Law or the particular provision". In Victoria, the mechanism by which this is done is section 3(2)(a) of the Road Safety Act 1986, which provides that the Governor in Council may by Order published in the Government Gazette declare any place or class of places, whether open to vehicles or not, to be or not to be a road or roads or a road related area or road related areas. Clause 20 will ensure that such orders (both current and future) will also apply to the Heavy Vehicle National Law (Victoria), and ensure that places are, or are not, roads or road-related areas for both laws. Clause 21 provides that, to avoid doubt, section 9(1) of the Heavy Vehicle National Law (Victoria), which defines the meaning of "convicts" and "convicted of an offence", only applies for the purpose of the Heavy Vehicle National Law (Victoria) and does not extend for the purposes of any other law of Victoria. Clause 22 specifies that the phrase "primary WHS Law" used in the Heavy Vehicle National Law (Victoria) means the Occupational Health and Safety Act 2004 and the regulations made under that Act. Primary WHS Law is relevant to section 18 of the Heavy Vehicle National Law (Victoria), which details how the Occupational Health and Safety Act 2004 will interact with the Heavy Vehicle National Law (Victoria). Clause 23 provides that for the purpose of section 561(4)(b) of the Heavy Vehicle National Law (Victoria), the Police Regulation Act 1958 is the "applicable legislation". Section 561(4)(b) provides that a thing or sample seized under Chapter 9 by a police officer cannot be forfeited to the Regulator but must be dealt with under "applicable legislation of the 8

 


 

relevant State or Territory". The Police Regulation Act 1958 (note especially sections 122 and 125 of that Act) already provide for how goods seized by a police officer are dealt with. Clause 24 provides that an offence for which an infringement notice may be served under section 591 of the Heavy Vehicle National Law (Victoria) is an infringement offence for the purposes of the Infringements Act 2006. Section 591 Heavy Vehicle National Law (Victoria) provides the power for authorised officers to serve a person with an "infringement notice". Section 5 provides that an infringement notice is either-- an infringement notice issued under section 591; or an infringement notice, expiation notice, penalty notice or similar notice under the Infringement Notice Offences Law. The importance of this clause, links with the fact that the Infringements Act 2006 defines an "infringement offence" (which clause 24 refers to) as an offence under the Act or statutory rules which is the subject of an infringement notice. An "infringement notice" is a notice in respect of an infringement offence served or to be served in accordance with Part 2 of that Act. Therefore, this clause allows the procedures, and rights, of that Act to apply to infringements issued under the Heavy Vehicle National Law (Victoria) to apply. Note that clause 13, above, defines Infringement Notice Offences Law as the Infringements Act 2006. Clause 25 provides that the infringement penalty is 10% of the maximum penalty for the offence. Infringement penalty is defined in the Infringements Act 2006 as "the amount stated in an infringement notice as payable in respect of the infringement offence to which the notice relates". Note also that section 596(3) of the Heavy Vehicle National Law (Victoria) provides for the maximum penalty for an offence applicable to a body corporate. Section 737 of the Heavy Vehicle National Law (Victoria) sets out the method for increasing a penalty amount each 1 July. 9

 


 

This was agreed to by the Standing Council on Transport and Infrastructure at its meeting on 25 February 2013. Clause 26 clarifies that the phrase "appeal against a review decision" under Part 11.3 of the Heavy Vehicle National Law (Victoria) means "an application to VCAT for review" in accordance with the provisions of the Victorian Civil and Administrative Tribunal Act 1998. Clause 27 provides that the "relevant law" referred to in section 727(1) of the Heavy Vehicle National Law (Victoria) is the Road Safety Act 1986. Section 727(1) relates to the "authorised use" of "protected information" under the Heavy Vehicle National Law, and subsection (1)(k) provides that "authorised use" includes "a use required or authorised under a relevant law of a participating jurisdiction". The Road Safety Act 1986 makes provision for the lawful use of information. Clause 28 prescribes the "entities in connection with road tolls", for the purposes of paragraph (h) of the definition of authorised use under section 727(1) of the Heavy Vehicle National Law (Victoria). PART 4--OFFENCES AND LEGAL PROCEEDINGS Division 1--General Clause 29 is the "no double jeopardy" provision and essentially provides that if an act or omission is an offence against the Heavy Vehicle National Law (Victoria) and is also an offence against the Heavy Vehicle National Law as applied in another participating jurisdiction, and the offender has been punished for the offence in that jurisdiction, the offender is not liable to be punished for the offence twice. This avoids the prospect of a person being liable for the same conduct under the Victorian law and a corresponding law of a different jurisdiction. Clause 30 clarifies that, if a section of the Heavy Vehicle National Law (Victoria) states that a person charged with an offence does not have the benefit of the mistake of fact defence for the offence, this means that it is not a defence to a charge for the offence that, 10

 


 

at or before the time of the conduct constituting the offence, the person was under a mistaken but honest and reasonable belief about facts which, had they existed, would have meant that the conduct would not have constituted an offence. Section 14(2) of the Heavy Vehicle National Law (Victoria) provides that each jurisdiction may declare the effect where a provision of the national law sets out that the mistake of fact defence does not apply. Clause 31 provides for a list of persons (or class of persons) who can commence proceedings in court for an offence against the Heavy Vehicle National Law (Victoria) or national regulations. Under section 659(2)(d) of the Heavy Vehicle National Law (Victoria), the Regulator has the function to "bring and conduct proceedings in relation to contraventions or possible contraventions of provisions of this Law, including offences against this Law". As a result, the Bill provides that the Regulator and all the different classes of persons who may appear in a tribunal or court to bring proceedings have proper standing or authority to commence relevant proceedings. This clause is substantially based on the existing provision in section 77 of the Road Safety Act 1986. Division 2--Evidentiary provisions for offences against the Heavy Vehicle National Law (Victoria) or national regulations Clause 32 provides for a method of working out the average speed of a heavy vehicle. The clause is based on section 78 of the Road Safety Act 1986. Clause 33 provides for certificate evidence and its evidentiary value issued by an approved surveyor on distance between two points. This clause is based on section 78A of the Road Safety Act 1986. Clause 34 provides that in a proceeding for an offence against the Heavy Vehicle National Law (Victoria), evidence of the speed of the heavy vehicle as indicated or determined on that occasion by a prescribed road safety camera or prescribed speed detector (prescribed in regulations under the Road Safety Act 1986) 11

 


 

when tested, sealed and used in the prescribed manner is, without prejudice to any other mode of proof and in the absence of evidence to the contrary, proof of the speed of the heavy vehicle on that occasion. This clause is based on section 79 of the Road Safety Act 1986. Clause 35 provides in essence that that any information held in a heavy vehicle's engine management system (or derived from it) is to be presumed, in the absence of evidence to the contrary, to be an accurate record of that information if the device is operated in the manner specified for that device in the regulations made under the Road Safety Act 1986 for the purpose of section 79A of that Act. This clause is based on section 79A of the Road Safety Act 1986. Clause 36 provides that in proceedings for an offence against the Heavy Vehicle National Law (Victoria) in respect of the listed sections, evidence of speed as indicated by-- a prescribed road safety camera when tested, sealed and used in the prescribed manner; or an image or message produced by a prescribed road safety camera when tested, sealed and used in the prescribed manner; or an image or message produced by a prescribed process when used in the prescribed manner-- is without prejudice to any other mode of proof and in the absence of evidence to the contrary, proof of the speed of the heavy vehicle on that occasion. This clause is based on section 81 of the Road Safety Act 1986. Clause 37 provides that a certificate to the effect that any prescribed speed detector referred to in clause 34 has been tested or sealed in the prescribed manner, signed or purporting to be signed by a person authorised to do so by the regulations is, without prejudice to any other mode of proof and in the absence of evidence to the contrary, proof that the prescribed speed detector or device has been so tested or sealed. This clause is based on section 83 of the Road Safety Act 1986. 12

 


 

Clause 38 provides similar provisions to clause 36 in relation to prescribed road safety cameras. This clause is based on section 83A of the Road Safety Act 1986. PART 5--REGISTRATION OF HEAVY VEHICLES Clause 39 provides that this Part applies on the period beginning on the commencement of clause 4, when the Heavy Vehicle National Law commences in Victoria, and ends on the commencement of clause 53, when this Part is repealed. Clause 40 provides that Chapter 2 of the Heavy Vehicle National Law does not apply as a law of Victoria. Chapter 2 contains the national registration provisions, and it has been agreed by the Standing Council on Transport and Infrastructure that the national registration provisions are not ready for operation yet. As a result, state based registration of heavy vehicles will continue. Therefore the effect of this clause, along with others in Part 5, is to disapply the national registration provisions and to make provision for the operation of local registration laws under the new laws. Clause 41 provides that the definition of GCM in section 5 of the Heavy Vehicle National Law (Victoria) should be read as the definition in the Road Safety Act 1986. This is needed because section 56 of the Heavy Vehicle National Law (Victoria) provides for the Regulator to specify the GCM when the heavy vehicle is being registered. Since the national registration system is being deferred, and therefore Chapter 2 of the Heavy Vehicle National Law (Victoria) will not apply, an alternative definition of GCM is needed that continues the current power of the Roads Corporation to specify the GCM. Clause 42 provides that the definition of GVM in section 5 of the Heavy Vehicle National Law (Victoria) should be read as the definition in the Road Safety Act 1986. This is needed because section 57 of the Heavy Vehicle National Law (Victoria) provides for the Regulator to specify the GVM when the heavy vehicle is being registered. 13

 


 

Since the national registration system is being deferred, and therefore Chapter 2 of the Heavy Vehicle National Law (Victoria) will not apply, an alternative definition of GVM is needed that continues the current power of the Roads Corporation to specify the GVM. Clause 43 provides that the definition of registration in section 5 of the Heavy Vehicle National Law (Victoria) should be read as meaning registration of the vehicle under the Road Safety Act 1986. Since the national registration system is being deferred, and therefore Chapter 2 of the Heavy Vehicle National Law (Victoria) will not apply, an alternative definition of registration (for where the word occurs in other parts of the Heavy Vehicle National Law) is needed, which means registration under the current registration system in Victoria. Clause 44 provides that the definition of registration exemption in section 5 of the Heavy Vehicle National Law (Victoria) should be read as meaning an exemption under the Road Safety Act 1986 from the requirement for a heavy vehicle to be registered. Since the national registration system is being deferred, and therefore Chapter 2 of the Heavy Vehicle National Law (Victoria) is not applying, an alternative definition of registration exemption (for when the word occurs in other parts of the Heavy Vehicle National Law) is needed, which means an exemption granted under the current registration system in Victoria. Clause 45 provides that the definition of registration number in section 5 of the Heavy Vehicle National Law (Victoria) should be read as meaning letters, numbers or characters, or a combination of one or more letters, numbers or characters, assigned to a heavy vehicle under the Road Safety Act 1986. Since the national registration system is being deferred, and therefore Chapter 2 of the Heavy Vehicle National Law (Victoria) is not applying, an alternative definition of registration number (for when the word occurs in other parts of the Heavy Vehicle National Law) is needed, which means a registration number assigned under the current registration system in Victoria. 14

 


 

Clause 46 provides that the definition of vehicle register in section 5 of the Heavy Vehicle National Law (Victoria) should be read as meaning the register of motor vehicles and trailers under the Road Safety Act 1986. Since the national registration system is being deferred, and therefore Chapter 2 of the Heavy Vehicle National Law (Victoria) is not applying, an alternative definition of vehicle register (for when the word occurs in other parts of the Heavy Vehicle National Law) is needed which means the register used under the current registration system in Victoria. Clause 47 provides that the definition of unregistered heavy vehicle permit in section 5 of the Heavy Vehicle National Law (Victoria) should be read as meaning a short term unregistered vehicle permit issued by the Roads Corporation under the Road Safety Act 1986 or under regulations made under that Act. Since the national registration system is being deferred, and therefore Chapter 2 of the Heavy Vehicle National Law (Victoria) is not applying, an alternative definition of unregistered heavy vehicle permit (for when the word occurs in other parts of the Heavy Vehicle National Law) is needed, which means a permit issued under the current registration system in Victoria. Clause 48 substitutes a new subsection (3) and (4) of section 60 of the Heavy Vehicle National Law (Victoria), which relates to compliance with heavy vehicle standards. Since the national registration system is being deferred, and therefore Chapter 2 of the Heavy Vehicle National Law (Victoria) is not applying, the new subsections are needed, to refer to the vehicle being registered under the Road Safety Act 1986. Clause 49 provides that the Roads Corporation may register a heavy vehicle under the Road Safety Act 1986 if the Regulator has granted a vehicle standards exemption (notice) for the category of heavy vehicle or granted a vehicle standards exemption (permit) to the person who applies to be a registered operator under the Heavy Vehicle National Law (Victoria). 15

 


 

Since the national registration system is being deferred, and therefore Chapter 2 of the Heavy Vehicle National Law (Victoria) is not applying, the provision is needed, to refer to the heavy vehicle being registered under the Road Safety Act 1986. Clause 50 provides for a new provision that the Roads Corporation may cancel the registration of a heavy vehicle under the Road Safety Act 1986 if the Regulator has cancelled or suspended a vehicle standards exemption (notice) for the category of heavy vehicle or granted a vehicle standards exemption (permit) to the person when they applied to be a registered operator under the Heavy Vehicle National Law (Victoria). Since the national registration system is being deferred, and therefore Chapter 2 of the Heavy Vehicle National Law (Victoria) is not applying, the provision is needed, to refer to the heavy vehicle being registered under the Road Safety Act 1986. Clause 51 substitutes a new section 527(1)(i) of the Heavy Vehicle National Law (Victoria) to provide that if the Regulator does not clear a vehicle defect notice under section 530 of that Law the Roads Corporation may suspend or cancel the registration of a heavy vehicle. Since the national registration system is being deferred, and therefore Chapter 2 of the Heavy Vehicle National Law (Victoria) is not applying, the provision is needed, to refer to the heavy vehicle being registered under the Road Safety Act 1986. Clause 52 substitutes a new section 598(5) of the Heavy Vehicle National Law (Victoria) to provide that a Court must ensure that it notifies the Roads Corporation if it cancels or suspends the registration of a heavy vehicle. Since the national registration system is being deferred, and therefore Chapter 2 of the Heavy Vehicle National Law (Victoria) is not applying, the provision is needed, to refer to the heavy vehicle being registered under the Road Safety Act 1986 and to ensure the Court notifies the Roads Corporation and not the Regulator. 16

 


 

Clause 53 provides for the repeal of Part 5. This clause will not be proclaimed when the Heavy Vehicle National Law (Victoria) initially commences, but will be proclaimed at a later date once the national registration scheme is ready to commence. The effect of proclaiming the provision will be the repealing of all the provisions in Part 5 which continue the state-based registration of heavy vehicles. PART 6--GENERAL Division 1--Regulations Clause 54 is the regulation-making power. Significantly, regulations may be made prescribing offences for the purposes of section 591 of the Heavy Vehicle National Law (Victoria); and prescribing a notice that may be served under section 591 of the Heavy Vehicle National Law (Victoria). Regulations may also be made about any transitional nature, including matters of an application and savings nature, arising as a result of the enactment of the Heavy Vehicle National Law (Victoria). They may have a retrospective effect to a day on or after the day of the commencement of clause 4. The ability to make retrospective regulations will be repealed on the first anniversary of the commencement of clause 53. Clause 55 provides that the power to make retrospective Regulations under clause 54(3), (4), (5) and (6) is repealed 1 year after the national registration scheme elements of the Heavy Vehicle National Law (Victoria) commence, and Part 5 is repealed. Division 2--Savings and transitional provisions Clause 56 provides for definitions for this Division. Part 14.2 of the Heavy Vehicle National Law (Victoria), (especially sections 747 and 748), provide national savings and transitional provisions that seek to capture most aspects of the current jurisdictional laws to ensure a smooth transition over into the national law. However, there are some relevant matters that are not captured by the national savings and transitional provisions, and are therefore captured in local savings and transitional provisions in the Bill. 17

 


 

Clause 57 provides that any person authorised as an authorised officer or authorised inspector under sections 112 and 119 of the Road Safety Act 1986 immediately before the day of commencement of the Heavy Vehicle National Law (Victoria) is deemed to be an authorised officer appointed under section 481 of the national law or for the purpose of Part 9.2 of the national law to be an authorised officer. The provision is needed because section 748(3)(a) of the Heavy Vehicle National Law (Victoria), specifically excludes appointments of persons as being covered by the national savings and transitional provisions. This clause will ensure that current authorised officers will not need to be re-authorised under the Heavy Vehicle National Law (Victoria). Clause 58 provides a local provision for the purposes of "counting time" (for fatigue management) that time spent driving before commencement day within 7 days (as applied in section 245) should be treated as if it was time spent driving under the national law for the purposes of Chapter 6 of that law. Clause 59 provides that a work diary kept in accordance with Part 10A of the Road Safety Act 1986 is taken to be a written work diary for the purpose of the Heavy Vehicle National Law (Victoria). PART 7--CONSEQUENTIAL AMENDMENTS Clause 60 provides that, on the coming into operation of a consequential amendment in the Schedule, the Act specified in the heading to that item is amended as set out in that item. Clause 61 provides for the automatic repeal of Part 7 and the Schedule of consequential amendments on the first anniversary of the commencement of clause 53. The repeal of this Part and the Schedule does not affect in any way the continuing operation of the amendments made by this Part and the Schedule (refer to section 15(1) of the Interpretation of Legislation Act 1984). 18

 


 

SCHEDULE Part 1 details the consequential amendments that commence immediately on the application of the Heavy Vehicle National Law under clause 4. Part 2 sets out the consequential amendments that do not commence until Part 5 is repealed, and the national registration scheme provisions commence operation. That is, they are amendments that are only necessary upon the implementation of the national registration scheme. PART 1--CONSEQUENTIAL AMENDMENTS ON COMMENCEMENT OF NATIONAL LAW Item 1 amends the Accident Compensation Act 1985. Section 239AAC of the Accident Compensation Act 1985 provides that VicRoads can disclose relevant information to WorkSafe for WorkSafe to use in claims for compensation under the Act. The information that can be disclosed relates to drink driving offences under the Road Safety Act 1986 (referred to in sections 82A, 82B and 82C of the Accident Compensation Act 1985) but also relates to "conduct comprising serious and wilful misconduct as referred to in section 82(4)". Section 82(4) of the Act further refines this concept as not being limited to just alcohol or drugs, but any "serious and wilful misconduct". This may encompass offences wider than the drink driving offences described. A new section 239AAD is inserted to provide that the Regulator, as established by the Heavy Vehicle National Law (Victoria), may disclose relevant information gained by the Regulator to WorkSafe for the purpose of the assessment by WorkSafe of a claim by a person for compensation under this Act, being relevant information that the Authority considers relates to conduct by the person that the Authority considers may be conduct to which the injury to which the claim relates may be attributable. The only "relevant information" that the Regulator can disclose is information that relates to or may relate to conduct comprising serious and wilful misconduct (as referred to in section 82(4)). 19

 


 

Item 2 amends the Accident Towing Services Act 2007 to account for the fact that it has several cross-references to provisions in the Road Safety Act 1986 which are the subject of amendment. The amendments are-- in the definition of mass, dimension or load restraint limit or requirement in section 3(1), alters the reference to the Road Safety Act 1986 and make reference to the Heavy Vehicle National Law; amends section 3(6) to make reference to the Heavy Vehicle National Law (Victoria); amends section 32(1)(b) to provide that non-compliance with a provision of the Heavy Vehicle National Law (Victoria) by the holder of a licence, may also be a grounds upon which VicRoads may cancel or suspend a tow truck licence. Note that amendments to the phrase "registered operator" in the Road Safety Act 1986 to include heavy vehicles registered under the national law (when enacted), will ensure that the references to "registered operator" in the Accident Towing Services Act 2007 will be correct, for accident towing trucks that are heavy vehicles (e.g. sections 7, 20(1)(a)(ii), 29(2)(b)). Item 3 repeals clause 12(4) of Schedule 3 of the Children, Youth and Families Act 2005. This clause makes reference to enforcement orders being "recorded for the purposes of a heavy vehicle registration suspension scheme within the meaning of section 89(7) of the Road Safety Act 1986". However section 89(7) of the Road Safety Act 1986 was repealed in 2009 (Act No. 28/2009). Item 4 repeals section 61(4) of the Infringements Act 2006. This section makes reference to enforcement orders being "recorded for the purposes of a heavy vehicle registration suspension scheme within the meaning of section 89(7) of the Road Safety Act 1986". However section 89(7) of the Road Safety Act 1986 was repealed in 2009 (Act No. 28/2009). Item 5 inserts a new section 38I into the Interpretation of Legislation Act 1984 to provide for the use of the abbreviated term "Heavy Vehicle National Law (Victoria)" in the statute book. 20

 


 

Item 6 inserts a new section 208AA into the Local Government Act 1989 to oblige Councils to not exercise powers inconsistently with the functions and powers of the Regulator under the Heavy Vehicle National Law (Victoria). Currently section 208(1) of the Local Government Act 1989 places an obligation on Councils to not exercise its powers under Part 9 Division 2 inconsistently with the functions and powers of the Roads Corporation under the Transport Integration Act 2010, the Transport (Compliance and Miscellaneous) Act 1983, the Road Management Act 2004 and the Road Safety Act 1986 and the regulations under those Acts. Part 9 Division 2 relates to specific functions, powers and restrictions of Councils in relation to transport. Given that many powers in relation to heavy vehicles will be transferred to the Heavy Vehicle National Law (Victoria), Councils should likewise have obligations not to exercise powers inconsistently with this Law. Item 7 amends section 82I(1) of the Magistrates' Court Act 1989 to include the Heavy Vehicle National Law (Victoria) as the other Act in which this section applies. Section 82I of the Magistrates' Court Act 1989 has effect when "a member of the police force exercising a power conferred (whether directly or by implication) by the Road Safety Act 1986 requests or signals the driver of a motor vehicle to stop the vehicle". It then gives the police officer or a bailiff certain powers in relation to vehicles, to enable a determination of whether the driver, or any person accompanying the driver, is named in any warrant. Given that many of the powers that police will be exercising against heavy vehicles in terms of stopping them at the roadside will be powers granted by the Heavy Vehicle National Law (Victoria), then this power of determination should be allowed to be used if the heavy vehicle has been so stopped under the Heavy Vehicle National Law (Victoria). Item 8 amends the Road Safety Act 1986 in a number of different ways. Items 8.1 to 8.6, 8.8, 8.11, 8.15, 8.17 to 8.19 repeal provisions or omit terms from the Road Safety Act 1986 because they are only relevant to provisions which will be repealed and form part of the Heavy Vehicle National Law (Victoria). 21

 


 

Items 8.7, 8.10, 8.16 substitute defined terms to give them the same meaning as in the Heavy Vehicle National Law (Victoria) to ensure consistency. Items 8.9 inserts a new definition to link with the Heavy Vehicle National Law (Victoria), e.g. Regulator. Items 8.21 to 8.33 make a number of amendments to Part 10 of the Road Safety Act 1986. This is the Part that makes provisions concerning breaches of mass, dimension and load restraint limits and requirements for all vehicles. Chapter 4 of the Heavy Vehicle National Law (Victoria) will apply the mass, dimension and load restraint limits and requirements (including chain of responsibility) to heavy vehicles. As a result consequential amendments to Part 10 will remove the current regime for heavy vehicles. Item 8.34 substitutes Part 10A and replaces it with a new Part 10A. Fatigue management for heavy vehicles will be covered by Chapter 6 of the Heavy Vehicle National Law (Victoria). Therefore the majority of Part 10A will no longer apply to heavy vehicles. However the current fatigue provisions under Part 10A apply to "fatigue-regulated heavy vehicles" within the meaning of section 191B of the Road Safety Act 1986. Section 191B(1) defines a "fatigue regulated heavy vehicle" as including "(c) a bus". A bus is defined as a "motor vehicle which (together with any trailer attached to it) seats more than 12 adults (including the driver)". However the Heavy Vehicle National Law (Victoria) defines a "fatigue regulated bus" as a "heavy vehicle built or fitted to carry more than 12 adults (including the driver)". It has added a note that "a fatigue regulated bus is a bus that weighs more than 4.5t for the purposes of being regulated under this Law". This means that the fatigue management regime under the national law only applies to buses over 4.5t GVM (i.e. buses that are heavy vehicles). This can be contrasted to the current Part 10A of the Road Safety Act 1986 which applies to all buses, regardless of weight. It has been agreed as a policy point that it is desirable to continue to have all buses subject to the fatigue management regime as they have been to date, and to exclude certain classes buses from fatigue management (which have been under it since it was enacted in Victoria in 2007) would result in a net safety reduction from the current law. 22

 


 

It is also agreed from a policy point of view that the provisions applying to light buses in Victoria should be the same as those in the national law, to ensure substantive consistency, especially given that it will be the same people who are enforcing the law (police and authorised officers) and many bus operators will have all types of buses in their fleets. The amendments substantively "apply" the provisions of Chapter 6 of the national law to light buses under the Road Safety Act 1986. The amendments involve some provisions to reconstrue provisions of the national law so that the Law can be applied in a state-based regime (e.g. references to Regulator are to be taken to be VicRoads). This ensures substantive legal consistency between the state-based and the national regimes for buses, allowing for easier compliance by the industry and easier enforcement by police and authorised officers. Items 8.35 to 8.40 repeals Parts 11, 12, 13, and Schedules 3, 4 and 4A of the Road Safety Act 1986 as the matters in these provisions are completely covered by the Heavy Vehicle National Law (Victoria) and are not needed in the Road Safety Act 1986. Item 9 amends section 30(1)(a) of the Sheriff Act 2009 to include the Heavy Vehicle National Law (Victoria) as the other Act in which the police can stop a vehicle. Similar to the issue with the Magistrates' Court Act 1989, above, section 30 provides for certain powers for Sheriffs to exercise their enforcement functions and powers at police road checks. The section provides that when a member of the police force exercises a power conferred (whether expressly or by implication) by the Road Safety Act 1986 and requests or signals the driver of a motor vehicle to stop the vehicle, the Sheriff can exercise certain powers to determine whether the driver, or any person accompanying the driver, is named or described in a warrant. The power should also be able to be exercise where a member of the police force is exercising powers under the Heavy Vehicle National Law (Victoria) in stopping the heavy vehicle. 23

 


 

PART 2--CONSEQUENTIAL AMENDMENTS FOR NATIONAL REGISTRATION Item 10 amends the definition of owner in the Accident Towing Services Act 2007 to include a person in whose name a tow truck (that is a heavy vehicle) is registered under the Heavy Vehicle National Law (Victoria). Item 11 amends 3 sections of the Environment Protection Act 1970 to reflect the national registration scheme in the Heavy Vehicle National Law (Victoria). Items 11.1 and 11.2 amend section 4 of the Environment Protection Act 1970 to ensure the definition of registered owner includes a person who is registered under the Heavy Vehicle National Law (Victoria) as the registered operator of a heavy vehicle. The concept of a registered owner is relevant in relation to a number of offences in the Environment Protection Act 1970, including-- motor vehicles with devices that do not comply with prescribed emission standards (section 43A); littering from a motor vehicle (deemed guilt for registered owners) (section 45G); motor vehicles breaching prescribed noise standards (section 48B). Items 11.3 and 11.4 amend section 57B which also has a provision related to a certificate from the Roads Corporation stating that a person was the owner of a vehicle on a specified date is evidence that that person was the registered owner of the vehicle on that date. Item 11.5 amends section 61, a provision that relates to serving notices on the registered owner of a motor vehicle to the address in the certificate of registration. Both of these will be amended to include the Regulator under the Heavy Vehicle National Law (Victoria). Item 12 deletes the words "subject to Part 5" in section 4(a) of the Heavy Vehicle National Law Application Act 2013 when the national registration scheme commences. The application of the national law will no longer be subject to Part 5 after that time. 24

 


 

Item 13 amends a number of sections of the Infringements Act 2006 which give powers to the Sherriff to, amongst other things, direct VicRoads to suspend the registration (section 112), not to renew the registration (section 114), or not to transfer the registration (section 116) of a vehicle for a person who "is in default" under that Act (e.g. has outstanding fines with Civic Compliance Victoria). Since the Heavy Vehicle National Law (Victoria) will establish a national heavy vehicle registration scheme (Chapter 2) administered by the Regulator, amendments will be needed to allow the Sherriff to give the same directions to the Regulator as it does to VicRoads. Item 14 amends provisions of the Motor Car Traders Act 1986 relating to the registration of motor vehicles that need to be amended to reflect the fact that the national law will establish a national heavy vehicle registration scheme (Chapter 2) administered by the Regulator. The sections in question are-- definition of used motor car (section 3); all registered cars must be sold with a roadworthy certificate (section 42A); certain public authorities to provide information to the Motor Car Traders Claims Committee in respect of any matter relevant to the determination of a claim (section 69); determination of claims (section 76(1)(d)). Item 15 amends provisions of the registration Part (Part 2) of the Road Safety Act 1986 and other sections to ensure that relevant provisions relating to registration reflect the new national registration scheme administered by the Regulator. Significantly, item 15.2 ensures Part 2 does not apply to heavy vehicles. Item 16 amends a number of provisions in the Transport Accident Act 1986, the Act which establishes a scheme of compensation in respect of persons who are injured or die as a result of transport accidents, as a result of the establishment of a national registration scheme for heavy vehicles, as there are a few 25

 


 

references to registration that need to be extended to capture heavy vehicles. Item 17 amends the Transport (Compliance and Miscellaneous) Act 1983. Section 217A is repealed as it is related to VicRoads officers (the sections 216 and 217 reference) being able to inspect heavy vehicles for a breach of section 14 of the Road Safety Act 1986 (which is about "defective vehicles"). The issuing of defect notices to heavy vehicles will be done by the Regulator and its authorised officers (Chapter 9 Part 9.3 refers). Therefore there is no need to have a stand-alone section 217A which relates to heavy vehicles only. ANNEXURES The Annexures set out the Heavy Vehicle National Law which is contained in the Schedule to the Heavy Vehicle National Law Act 2012 of Queensland, as amended by the Heavy Vehicle National Law Amendment Act 2013 of Queensland, and the accompanying consolidated explanatory notes. Annexure 1 sets out the consolidated explanatory notes for the Heavy Vehicle National Law. The consolidated explanatory notes have been prepared for this Bill and contain typographical and editorial changes. Annexure 2 sets out the text of the Heavy Vehicle National Law. The Annexures do not form part of the Bill. 26

 


 

 


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