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Road Legislation Amendment Bill 2007
Introduction Print
EXPLANATORY MEMORANDUM
General
Part 1 sets out the purposes of the Bill and when its various provisions
come into force.
Part 2 amends the Road Safety Act 1986, the Melbourne City Link
Act 1995 and the EastLink Project Act 2004 to replace current
requirements for statutory declarations or sworn statements with
a new and simpler process to transfer or avoid liability for
parking offences and for traffic and tolling offences that are
detected by cameras.
Part 3 amends--
· the Melbourne City Link Act 1995--to facilitate the
making of arrangements to give toll road customers
reciprocal rights to use other toll roads
("interoperability");
· the EastLink Project Act 2004--in relation to tolling
and planning laws;
· the Road Safety Act 1986--to extend certain
evidentiary provisions to trailers and towed motor
vehicles, particularly in relation to the prosecution of
offences detected by traffic safety cameras;
· the new Part 6AA of the Road Safety Act 1986, which
is to be inserted into that Act by the Road Legislation
(Projects and Road Safety) Act 2006.
Part 4 will repeal the Bill one year after all of it has come into force.
561052 1 BILL LA INTRODUCTION 14/3/2007
Clause Notes
PART 1--PRELIMINARY
Clause 1 sets out the purposes of the Bill.
Clause 2 sets out the commencement dates for each of the provisions.
All of the Bill with the exception of clauses 11, 12 and 18 will
come into operation the day after Royal Assent.
Clauses 11 and 12 will come into operation on the same day as
section 24 of the Road Legislation (Projects and Road Safety)
Act 2006. This means 1 July 2007, unless sooner proclaimed--
see section 2(4) of that Act.
Clause 18 will come into operation on a day to be proclaimed.
If not earlier proclaimed, it will come into operation on 1 January
2009.
PART 2--OWNER ONUS AMENDMENTS
The main purpose of Part 2 is to simplify the process by which a person may
avoid or transfer "owner onus" liability for certain parking, traffic and tolling
offences.
Basically, existing requirements for a sworn statement or a statutory
declaration will be replaced with a much simpler statement system. The main
features of the change are:
· It will be easier for a person to make one of the new
statements. Under the new system, the person can simply fill
out a form, or write a letter, and send it to the enforcement
officer. In contrast, the existing law requires the person to use
the formal statutory declaration or sworn statement process,
which require a special wording to be used and that the
document be signed in the presence of a qualified person, such
as a justice of the peace or a State or Federal Member of
Parliament.
· Lying to avoid a parking, traffic camera or tolling fine will
carry a lesser maximum penalty under the new system.
Knowingly making a false statement will be a summary
offence that can be prosecuted in the Magistrates' Court. It will
carry a maximum fine of 60 penalty units (around $6000 plus
indexation). In contrast, under current arrangements, making a
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false sworn statement or statutory declaration amounts to the
indictable crime of perjury. A perjury charge involves a jury
trial and possible imprisonment if convicted. The system is
also costly to administer.
· On the other hand, a person who makes a false statement under
the new laws is likely to be prosecuted more frequently.
This is because such offences will, in future, be prosecuted by
Police or Council officers before a Magistrate--a procedure
which will be less costly than a judge and jury trial. Hopefully,
the increased likelihood of prosecution will provide a better
deterrent against making false statements.
The existing owner onus provisions to be amended are--
· traffic offences detected by automatic detection devices and
processes, such as speed and red light cameras--section 66 of
the Road Safety Act 1986;
· parking offences--section 86 of the Road Safety Act 1986;
· use of the Melbourne City Link without a tolling
arrangement--section 87 of the Melbourne City Link Act
1995;
· unpaid use of the EastLink road--section 219 of the EastLink
Project Act 2004.
The common element in all three is that the identity of the offender is not
established at the time an offence is detected. For example:
· In the case of a parking offence, the parking officer finds a car
parked illegally but has no way of knowing who parked it
there, or when.
· In the case of a speed or red light offence, if a police officer
sees the offence being committed, the officer can intercept the
driver, establish his or her identity and issue an infringement
notice or summons to the offender. However, if the offence is
detected by the traffic camera, the identity of the offender is
not known.
· The situation is similar with tolling offences under the
Melbourne City Link Act 1995 or the EastLink Project Act
2004. Such offences are detected by the tolling systems run by
the roads' operators, who report toll evasion to the Police.
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In each of these cases, successful enforcement action depends, in the first
instance, on the use of vehicle registration records to establish the identity of
the person registered as the operator of the vehicle and, if necessary, by that
registered operator subsequently identifying the actual driver.
The existing owner onus regimes are similar in operation. They are based on
the principle that the registered operator has an obligation to ensure that his
or her vehicle is operated responsibly and in accordance with the law.
Accordingly, when an offence involving the use of the car is detected but the
identity of the person who committed it is not established, the registered
operator is held liable for the offence as if he or she were the driver unless
and until they nominate the actual driver. There are exceptions where it can
be shown that the vehicle was stolen, or that the identity of the driver cannot
be ascertained for a good reason.
The owner onus systems under the Road Safety Act 1986 and the
Melbourne City Link Act 1995 are to be superseded by a new "operator
onus" system under amendments that were passed by Parliament in 2006.
These are expected to come into force on 1 July 2007. These new "operator
onus" laws already use the simpler statement method, on which these
amendments have been modelled.
By introducing the new statement method whilst the owner onus systems are
still in operation, the Bill will confer the benefits of the new method on
citizens immediately. These benefits include less complexity (no need for
special forms), a less burdensome process (no need to find a qualified
witness) and lower penalties. It will also facilitate the changeover to the new
operator onus system by avoiding the need to run two different administrative
processes while all cases under the current systems are being finalised.
Clause 3 amends section 66 of the Road Safety Act 1986 to introduce the
new statement method for avoiding or transferring "owner onus"
liability in respect of a traffic camera offence. The amendments
remove references to statutory declarations and sworn statements
and replace them with references to written statements.
There are no special forms or rules to make one of these
statements--it just needs to be made in writing and then provided
to the Police or other enforcement officer. A statement could be
given to the enforcement officer by letter or email, or by using a
simple form provided by the enforcement agency, so long as it is
in writing and contains the necessary information.
New section 66(3AAA), which is to be inserted by clause 3(4),
will make it a summary offence to make such a statement where
the person making it knows the information it contains is false or
misleading.
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Note that the section 66 "owner onus" process is due to be
superseded by new "operator onus" laws, which are expected to
come into operation on 1 July 2007.
Clause 4 amends section 86 of the Road Safety Act 1986 to introduce the
new statement method for avoiding or transferring "owner onus"
liability in respect of a parking offence. The amendments
parallel those to be made in respect of "owner onus" for traffic
camera offences under clause 3--see above.
Clause 5 inserts a new section 103M into the Road Safety Act 1986.
This is a transitional provision that deals with the phasing in of
the new statement method and how it replaces the current
statutory declaration/sworn statement process. The new section
will enable a person to use the new statement method as soon as
the amendments set out in clauses 3 and 4 take effect, even if the
offence was committed before then. This does not affect liability
for making a false statutory declaration or sworn statement.
Clause 6 amends section 87 of the Melbourne City Link Act 1995 to
introduce the new statement method for avoiding or transferring
"owner onus" liability in respect of a tolling offence under that
Act. The amendments parallel those to be made in respect of
"owner onus" for traffic camera offences under clause 3--see the
notes on clause 3 above.
Clause 7 inserts a new section 124 into the Melbourne City Link Act
1995. This is a transitional provision that deals with the phasing
in of the new statement method and how it replaces the current
statutory declaration/sworn statement process. The new section
will enable a person to use the new statement method as soon as
the amendments set out in clauses 6 take effect, even if the
offence was committed before then.
Clause 8 amends section 219 of the EastLink Project Act 2004 to
introduce the new statement method for avoiding or transferring
"owner onus" liability in respect of a tolling offence under that
Act. Again, the amendments parallel those to be made in respect
of "owner onus" for traffic camera offences under clause 3--see
the notes on clause 3 above. No transitional provision is needed
in relation to this provision because tolling has not commenced.
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PART 3--OTHER AMENDMENTS
Part 3 makes a range of amendments to road legislation, including a number
of changes to the EastLink Project Act 2004, primarily to facilitate tolling
and interoperability.
It changes the definition of a trip on EastLink. A trip is the fundamental
basis of charging drivers for the use of vehicles on EastLink. Due to the way
in which the EastLink Tolling System operates, as an open system with toll
gantries located in the middle of toll zones rather than as a closed system
with toll gantries at every entry and exit point, it is necessary to ensure that
the occurrence of a trip can be established with certainty. The definition of a
trip has been altered from the existing basis of an uninterrupted journey on
EastLink, which cannot be established with certainty, to being the number of
toll zones that are traversed by a vehicle, heading in one direction in the
space of one hour, with no repeated toll zones.
The other major changes made by this Part concern interoperability,
particularly interoperability as between EastLink and CityLink. Once an
interoperability agreement, usually called a "roaming agreement", is entered
into between the tollway operators of EastLink and CityLink, those operators
will not be able to directly bill the customers of the other operator for the use
of their own toll road. Instead, they recover tolls and fees from the other
operator who in turn charges those tolls and fees to their own customers.
A fee, usually called the "roaming fee", is charged by each tollway operator
to the other for the service of collecting toll revenue from its customers and
remitting that revenue to the other operator.
Initially the "roaming fee" will have a disproportionate impact on the
operator of EastLink, as CityLink has been in operation for many years and
will have a significant customer base when EastLink commences operation.
The CityLink Concession Deed does not deal with the commercial aspects of
interoperability with other toll roads in Victoria as at that time it was the only
toll road in Victoria. The State is committed to ensuring that the roaming fee
will permit the operator of CityLink to recover its additional costs in
providing the interoperable roaming service to its customers but without
allowing CityLink to effectively pass some of its CityLink costs on to the
operator of EastLink. Accordingly, this Bill seeks to limit the amount of the
roaming fee to the net incremental marginal cost that will be incurred by the
operator of CityLink in providing for interoperability.
Clause 9 amends section 24 of the Road Legislation (Projects and Road
Safety) Act 2006, which is not yet in operation.
The effect of clause 9 is to insert a new subsection (3) into the
proposed new section 84BG of the Road Safety Act 1986.
New section 84BG forms part of the proposed new Part 6AA of
the Road Safety Act 1986. Thus, the proposed amendment will
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form an integral part of the new operator onus laws when those
laws come into effect, which is expected to be 1 July 2007.
Under new Part 6AA, responsibility for an operator onus offence
may be transferred a number of times through a series of
nominating statements. If a person is named as the last person
known to have had possession or control prior to the relevant
offence, that person then becomes the "responsible person" for
the offence. A responsible person will then be assumed to have
been the person who committed the offence unless they, in turn,
provide information to identify the person to whom they passed
the vehicle. That person will then become the "responsible
person". If that person had passed on the vehicle, they make yet
another nomination. And so on until the person who actually
committed the offence is identified, or it is established that that
person cannot be ascertained for some acceptable reason, or that
the vehicle or plates were stolen.
Each time a new "responsible person" is identified, under new
section 84BG the 12 month period for bringing prosecutions
restarts as against that new person. This is to provide the
enforcement agency sufficient time to bring proceedings, and
guards against the 12 month period being eroded by a series of
nominations, leaving insufficient time to take action against the
person actually responsible.
A person who believes they have been nominated incorrectly
may reject that nomination by giving the appropriate statement to
the enforcement agency. If the enforcement agency accepts the
statement, the person will cease to be the "responsible person".
In this case, the person who nominated them again becomes the
"responsible person" by force of new section 84BF(2).
The purpose of the amendment is to ensure that, where a
nomination has been rejected and responsibility reverts to the
earlier person in the chain, the 12 month period for bringing
prosecutions will begin again.
In particular, the new subsection (3) of section 84BG will provide
an extension of time for the taking of enforcement action where
responsibility reverts--under section 84BF(2)--to a person who
had incorrectly nominated someone else.
For example, say John's car is detected in a speeding offence by a
speed camera. John nominates Mary as the "responsible person"
on the basis that, to the best of his knowledge, she was the last
person to have had possession of his car prior to the offence.
On this basis, the enforcement agency issues an infringement
notice to Mary and the period for bringing proceedings begins
again. Mary then rejects her nomination by John, and makes a
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statement satisfying the enforcement agency that John had made
a mistake and she did not have his car. In this case, responsibility
reverts to John under new section 84BF. The effect of this
amendment is that, in this situation, the 12 month time period for
bringing proceedings against John begins again.
Clause 10 amends proposed new section 84BI of the new operator onus
provisions to be inserted into the Road Safety Act 1986 this
year.
New section 84BI provides that it is an offence for a person in an
illegal user statement, known user statement, sold vehicle
statement, unknown user statement or nomination rejection
statement to provide information that the person knows to be
false or misleading in a material respect. The penalty for this
offence will be a fine of up to 60 penalty units.
The effect of the amendment to be made by clause 10 is to omit
the reference to a material respect. This is to ensure consistency
between the elements of the new "false statement" offence under
section 84BI and the elements of the criminal offence of perjury,
which currently applies. Under section 315 of the Crimes Act
1958, it is assumed that false evidence under oath is "material",
thus avoiding the need for this element of the offence to be
specifically established by the evidence. The proposed
amendment achieves the same result in relation to the new
summary offence.
The practical effect of clause 10 is to ensure that the elements of
proof remain the same (that is, as under the existing law of
perjury) where a person is prosecuted for knowingly making a
false statement to evade responsibility for a parking, traffic
camera or tolling fine.
Clause 11 inserts a new section 3AC into the Road Safety Act 1986.
It provides that the driver of a motor vehicle which is towing a
trailer is to be taken to be the "driver" of the trailer for the
purposes of that Act.
This is important because trailers often have separate registration
and display a different number plate. For this reason, it is often
the number plate of the trailer, rather than the towing vehicle,
which is detected by a speed or red light camera.
Other amendments made by this Bill will enable the evidence
generated by traffic cameras to be used against the persons
responsible for trailers and other towed vehicles in the same way
as that evidence can be used against a responsible person in
respect of a motor vehicle. See in particular the amendments to
be made by clause 12.
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It should also be noted that the new operator onus provisions
(which are due to commence in the first half of 2007) provide
that, where a person is liable for an offence as the responsible
person in relation to a trailer, that person may make a nominating
statement to transfer that liability to the responsible person for
the motor vehicle that was towing the trailer at the time of the
offence. In this regard, see the definition of responsible person
in proposed new section 84BB, which is to be inserted by
section 24 of the Road Legislation (Projects and Road Safety)
Act 2006.
Clause 12 amends sections 78, 78A, 79, 80 and 81 of the Road Safety Act
1986. All of these provisions deal with the use, as evidence, of
data generated by traffic cameras.
The effect of subclauses (1) and (4) are to extend the evidentiary
effect of these provisions to trailers, as well as motor vehicles.
Note that, under the amendments to be made by clause 11, the
driver of a vehicle towing a trailer will be liable as "driver" of the
trailer.
For example, say a semi-trailer is detected speeding on the Hume
Freeway by a speed camera. The photo shows the number plate
of the trailer, which is separately registered and has a different
registration number from the prime mover. The driver of the
prime mover towing the semi-trailer will be liable as "driver" of
the semi-trailer. The photo and other evidence recorded by the
speed camera can then be used in evidence (under the
amendment proposed by clause 12) for the purpose of
prosecuting the responsible person in relation to the speeding
trailer. In practice, an infringement notice would first be issued
to the registered operator of the trailer under the new operator
onus laws, and that person could then nominate the responsible
person.
Subclauses (2), (3), (5) and (6) will insert new sections 78(4),
79(2), 80(2) and 81(1A) respectively into the Road Safety Act
1986. The common effect of these new subsections is that where
a traffic camera establishes the speed (or a red light or other
traffic camera offence) of one of the vehicles in a combination
(that is, either a trailer or the vehicle towing it), this establishes
the speed (or other offence) in respect of both vehicles. This is
needed so that if the person responsible for the trailer makes a
statement to transfer liability to the responsible person for the
towing vehicle, the traffic camera evidence may also be used
against the person nominated as responsible for the towing
vehicle.
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Note that, under new section 84BAA (which is to be inserted by
clause 13), a person cannot be guilty as driver of both the towing
and towed vehicle in respect of the same incident.
Clause 13 inserts a new section 84BAA into the Road Safety Act 1986.
This says that if a person is the driver of a vehicle towing a
trailer, and is therefore the "driver" of both vehicles for the
purposes of the Act, they can be liable for an incident
(e.g. speeding) only once. That is, they can be liable as driver of
the speeding motor vehicle, or they can be liable as driver of the
speeding trailer, but not both in respect of the one incident of
speeding.
Clause 14 repeals section 15 of Road Legislation (Projects and Road
Safety) Act 2006, which is not yet in operation but was intended
to amend sections 174 and 175 of the Road Safety Act 1986.
Clause 14 also repeals section 103L(8) of the Road Safety Act
1986, which is a related transitional provision. These provisions
were to have dealt with the availability of the reasonable steps
defence for certain heavy vehicle offences. These amendments
are unnecessary because the objective of those provisions has
been achieved by other amending legislation. The provisions are
therefore superfluous and their repeal has no practical effect.
Clause 15 substitutes a new definition of trip in section 3(1) of the
EastLink Project Act 2004. The definition provides that a trip
comprises travel on all the toll zones traversed by a vehicle,
travelling in one direction, within the space of one hour provided
that no toll zone is repeated.
This clause also inserts a new section 3(4) into the EastLink
Project Act 2004 which describes the process by which the start
time of a trip is determined.
Clause 16 inserts a new section 125 into the EastLink Project Act 2004.
The section extends the area in respect of which the Southern and
Eastern Integrated Transport Authority is a referral authority
under the Planning and Environment Act 1987 to include both
the Extended Project area, for which it is presently a referral
authority, and any additional referral area declared by the
Minister by Order in Council provided that the additional referral
area is defined on plans signed by the Surveyor-General and
lodged in the Central Plan Office.
Clause 17 amends section 69 of the Melbourne City Link Act 1995.
The clause replaces paragraph (a) of the definition of a tollway
operator in section 69 of the Melbourne City Link Act 1995 to
include a person who operates a tollway in Victoria as a tollway
operator, in addition to interstate tollway operators. This clause
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also amends that definition to defer the application of the
definition to the Freeway Corporation (within the meaning of the
EastLink Project Act 2004) until a Link roaming agreement,
being an agreement dealing with toll road interoperability, is
entered into between it and the relevant corporation (within the
meaning of the Melbourne City Link Act 1995).
Clause 18 inserts a new Division 5 into Part 4 of the Melbourne City Link
Act 1995. The Division deals with the formation of Link
roaming agreements and validity of certain provisions in such
agreements that relate to the charging of a roaming fee. It is
provided that a roaming fee may not exceed the net incremental
marginal cost to the relevant corporation (within the meaning of
the Melbourne City Link Act 1995) of providing a roaming
service to its customers for the use of EastLink.
The net incremental marginal cost must be determined according
to methods and criteria specified by the Secretary or be the
amount determined by the Secretary on the joint application of
the relevant corporation (within the meaning of the Melbourne
City Link Act 1995) and the Freeway Corporation (within the
meaning of the EastLink Project Act 2004) or if neither
determination has been made, be the additional cost to the
relevant corporation of providing the roaming service (net of any
savings).
Clause 19 makes a number of statute law revision amendments to the Road
Safety Act 1986 and the Road Legislation (Projects and Road
Safety) Act 2006.
PART 4--REPEAL OF ACT
Clause 20 provides for the automatic repeal of this amending Act on the
first anniversary of the first day on which all the provisions of the
amending Act have commenced. As suggested by the Scrutiny of
Acts and Regulations Committee, all amending Acts now contain
an automatic repeal provision, which will save the time and
expense of having to repeal amending Acts in statute law revision
Bills. The repeal of this Act does not affect in any way the
operation of the amendments made by this Act (see section 15(1)
of the Interpretation of Legislation Act 1984).
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