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Road Legislation Further Amendment
Bill 2007
Introduction Print
(As corrected by the Clerk of the Assembly under Standing Order 81
on 22/11/2007)
EXPLANATORY MEMORANDUM
Note: The Explanatory Memorandum has been revised to reflect the
corrections made by the Clerk.
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--
· to include provisions providing for fatigue management
for drivers of certain heavy vehicles based on model
legislation developed by the National Transport
Commission for implementation throughout Australia;
· to introduce a new offence for drivers who deliberately
or recklessly enter level crossings when warning
devices are operating or a train or tram is approaching;
· to amend section 92 of the Act to add further purposes
for which information in VicRoads' records may be
used, namely--
· to assist in locating missing persons;
· to facilitate the reunion of families and friends;
· to facilitate road safety related research projects;
· to assist infrastructure managers to carry out the
managers' functions under the Road
Management Act 2004;
· to clarify the operator onus provisions in Part 6AA for
the purposes of tolling offences;
561106 1 BILL LA INTRODUCTION AS
CORRECTED BY THE CLERK UNDER
STANDING ORDER 81: 22/11/2007
· to enable VicRoads to delay sending a demerit point
suspension notice if a demerit point notice is returned as
undeliverable;
· to enable regulations to be made in respect of learner
drivers that make different provision for drivers of
different ages, experience or other factors;
· to enable regulations to be made providing for
VicRoads to grant people under the age of 21 years
probationary driver licences for longer terms than those
that apply to older drivers;
· to clarify that a Ministerial order that recognises laws of
other States or Territories for the purposes of
determining a person's liability for repeat drink-driving
and drug-driving offences may include offences under
laws that have been repealed or expired.
Part 3 amends the Chattel Securities Act 1997 to clarify provisions
regarding the registration of security interests in motor vehicles,
including clarification of the power to make regulations imposing
fees, and the ability to waive or reduce those fees in certain
circumstances.
Part 4 amends the EastLink Project Act 2004 to ensure that the tolling
provisions in that Act are consistent with recent changes to
operator onus offences and with those that apply under the
Melbourne City Link Act 1995.
Part 5 amends the Melbourne City Link Act 1995 to apply recent
changes to operator onus offences to City Link tolling, so that
recipients of tolling invoices who were not driving can avoid
responsibility by nominating the responsible person in relation to
the vehicle.
Part 6 amends the Road Management Act 2004 to establish a new set
of arrangements for the funding and management of street
lighting on arterial roads between the State and local
governments, and to make amendments in relation to road
management functions.
Part 7 amends the Transport Act 1983 to transfer responsibility for the
provisions regarding tow trucks from the Director of Public
Transport and the Secretary to the Department of Infrastructure to
VicRoads.
Part 8 provides for repeal of this amending Act.
2
Clause Notes
PART 1--PRELIMINARY
Clause 1 sets out the main purposes of the Bill.
Clause 2 sets out the commencement dates for each of the provisions.
PART 2--AMENDMENT OF ROAD SAFETY ACT 1986
Clause 3 substitutes for the existing definitions of associate, consignee,
consignor, driver base, garage address, loader and operator in
section 3(1) of the Road Safety Act 1986 to reflect the
definitions of those terms in the National Transport Commission
(Model Legislation--Heavy Vehicle Driver Fatigue)
Regulations 2007. Clause 3 also inserts definitions of
beneficiary, business day and registered industry code of
practice, and amends the definition of journey documentation.
Clause 4 inserts a new section 3AAA after section 3 of the Road Safety
Act 1986.
Paragraph (a) assists in determining the driver base for a
combination of vehicles by providing that a group of vehicles
means a heavy vehicle or fatigue regulated heavy vehicle that is
physically connected to one or more other vehicles, even if those
other vehicles are not heavy vehicles or fatigue regulated heavy
vehicles.
Paragraph (b) provides that if a driver is a self-employed driver
and an employed driver at different times, the driver may have
one driver base as a self-employed driver and another driver base
as an employed driver.
Paragraph (c) provides that if a driver has 2 or more employers,
the driver may have a different driver base in relation to each
employer.
Clause 5 inserts a new subsection (2A) into section 19 of the Road Safety
Act 1986, which provides that regulations which set out the
procedures and requirements to be complied with before
VicRoads can grant a driver licence, are able to provide for
procedures and requirements that differ depending on the
person's age, experience or any other factor.
3
Clause 6 inserts a new subsection (4) into section 21 of the Road Safety
Act 1986, which provides that regulations may provide that
probationary licences granted to people under the age of 21 years
may have longer terms than the terms that usually apply to people
who are 21 years of age or more.
Clause 7 amends section 25 of the Road Safety Act 1986 primarily to
enable VicRoads, in situations where a demerit point option
notice has been returned undelivered to VicRoads, to delay
sending the relevant person a driver licence suspension notice
until he or she applies for renewal of his or her driver licence or
vehicle registration. Further amendments are made to substitute
references to "notice" in section 25 to "demerit points option
notice" and to provide that, where VicRoads decides to serve
another demerit point option notice on a person, the suspension
takes effect from the date specified in the later notice.
Clause 8 amends section 47A(2) of the Road Safety Act 1986.
Section 43 of the Road Legislation (Projects and Road Safety)
Act 2006 inserted section 47A into the Road Safety Act 1986.
The new section 47A enables the Minister to publish an Order in
the Government Gazette which declares laws of other States and
Territories to be "corresponding laws" for the purposes of Part 5
of the Act.
Part 5 of the Act sets out various offences involving alcohol or
other drugs.
An offence against a corresponding law of another jurisdiction
may be taken into account as a prior offence for the purposes of
Part 5 of the Road Safety Act 1986.
A difficulty has arisen in the implementation of the new
section 47A. In a number of jurisdictions, the legislation dealing
with drink driving and drug driving has been repealed and
superseded by new legislation governing the same subject-matter.
It is possible that the power conferred by section 47A may not
enable the superseded law to be declared as a "corresponding
law" for the reason that a repealed law is no longer a law.
The amendment is intended to make clear that laws of other
jurisdictions which are no longer in force may be "corresponding
laws" for the purposes of Part 5 of that Act.
4
Clause 9 inserts a new section 68B into the Road Safety Act 1986.
The section provides that if a driver deliberately or recklessly
enters a level crossing when warning lights or bells or a boom
gate are operating, a train or tram is visible or has sounded a
warning, or there is a blockage in the road beyond the crossing,
he or she commits an offence and is liable to a penalty of
30 penalty units and loss of licence for a minimum of
three months. The new section addresses concerns that have
arisen, following a recent series of level crossing accidents, that
existing offences do not reflect the serious dangers in crossing
railway and tram tracks, especially where that behaviour is
deliberate or reckless.
Clause 10 inserts various new definitions into Part 6AA of the Road Safety
Act 1986. Paragraph (a) inserts a number of new definitions into
section 84BB of the Road Safety Act 1986 that support the
introduction of the operator onus provisions into the EastLink
Project Act 2004 and the Melbourne City Link Act 1995.
The key definitions are as follows--
· Authorised tolling person means a person authorised in
writing by either the Freeway Corporation under new
section 197AA of the EastLink Project Act 2004 to
carry out functions under Part 9 of that Act or by a
relevant corporation under section 69B of the
Melbourne City Link Act 1995 to carry out functions
under Part 4 of that Act.
· A tolling nomination statement is a written statement
made by an authorised tolling person that nominates the
person that the authorised tolling person believes is the
responsible person in relation to a motor vehicle at the
time of a tolling offence.
· A tolling offence is an offence for driving a vehicle in a
toll zone without the appropriate registration under
section 73(1) of the Melbourne City Link Act 1995 or
section 204(1) of the EastLink Project Act 2004.
Part 6AA will apply to tolling offences.
Paragraph (b) amends the definition of effective to incorporate a
tolling nomination statement as another form of statement that
can nominate the responsible person in relation to a motor
vehicle at the time of a tolling offence.
5
Paragraph (c) amends the definition of illegal user statement
to remove the requirement for reasons in the definition.
The requirement for reasons will now be set out in
section 84BE(5).
Paragraph (d) amends the definition of known user statement to
remove the requirement to give reasons for the matters stated in
the statement. The requirement to give reasons will be
incorporated under section 84BE(2).
Paragraph (e) substitutes for the current definition of nomination
rejection statement a new definition, which essentially amends
the existing definition by incorporating a tolling nomination
statement and removing the requirement to give reasons in the
statement. The requirement to give reasons will be incorporated
under section 84BE(2).
Paragraph (f) substitutes paragraph (d) of the definition of
responsible person with a new paragraph (d) consequential upon
the introduction of the operator onus system into the Melbourne
City Link Act 1995 and EastLink Project Act 2004.
Paragraph (g) amends the definition of unknown user statement
to exclude the use of an unknown user statement with respect to
a tolling offence and to remove the requirement to give reasons in
the statement for the matters stated. The requirements for
reasons will be incorporated under new section 84BE(5A).
Clause 11 amends section 84BE of the Road Safety Act 1986
consequential upon the introduction of "operator onus" systems
in both the Melbourne City Link Act 1995 and the EastLink
Project Act 2004. The amendments made by this clause add a
"tolling nomination statement" to the types of statement which
may enable a person to escape liability for an operator onus
offence, and set out various requirements for such statements and
conditions under which they will be accepted as effective.
Clause 12 amends section 84BF(1)(a) of the Road Safety Act 1986
consequential upon the introduction of "operator onus" systems
in both the Melbourne City Link Act 1995 and EastLink
Project Act 2004. Specifically, it incorporates a "tolling
nomination statement" into this provision.
Clause 13 amends sections 84BG(1) and 84BG(2) of the Road Safety
Act 1986 consequential upon the introduction of "operator onus"
systems in both the Melbourne City Link Act 1995 and
EastLink Project Act 2004. Specifically, it incorporates a
"tolling nomination statement" into these provisions.
6
Clause 14 amends section 84BH of the Road Safety Act 1986
consequential upon the introduction of "operator onus" systems
in both the Melbourne City Link Act 1995 and EastLink
Project Act 2004. Specifically, it amends the provision to allow
for the operation of a "tolling nomination statement".
New paragraph 84BH(ba) provides an additional defence with
respect to cancellation of an accepted tolling nomination
statement under section 84BF(1).
Clause 14(3) repeals section 84BH(d) because the provision
concerns the "owner onus" system and is therefore redundant.
Clause 15 inserts a new paragraph (ea) in the definition of relevant offence
in section 84C(1) of the Road Safety Act 1986.
The definition of relevant offence in section 84C(1) lists the
offences for which a motor vehicle may be impounded,
immobilised or forfeited under Part 6A of the Road Safety Act
1986 (commonly referred to as the "hoon driving" provisions).
The effect of the insertion of paragraph (ea) is to make the new
offence of deliberately or recklessly entering a level crossing
(inserted by clause 9 of this Bill) one of the offences that will
give rise to the impoundment, immobilisation or forfeiture of a
motor vehicle under Part 6A.
Clause 16 inserts paragraphs (ic), (id) and (ie) into section 92(3) of the
Road Safety Act 1986. Section 92 of the Act prohibits use or
disclosure of personal or commercially sensitive information held
by VicRoads except for specified purposes listed in
subsection (3). The new paragraphs will enable information to
be used and disclosed for a number of further purposes.
These purposes are--
· to enable a person or body approved by the Minister to
locate and contact missing persons or to facilitate
reunion of families and friends;
· for the purposes of road safety research or disseminating
information or advice on road safety; and
· to enable a road authority or utility as those terms are
defined in the Road Management Act 2004 to issue or
defend civil proceedings relating to their road
management functions under the Road Management
Act 2004 or damage to infrastructure arising out of road
accidents.
7
Clause 17 inserts a number of transitional provisions after section 103M of
the Road Safety Act 1986.
Section 103N deals with the amendments made to Part 6AA
particularly with respect to tolling offences. Subsection (1)
provides that the amendments made to the Road Safety Act 1986
by any of clauses 10, 11, 12, 13 and 14 of this Bill only apply to
offences alleged to have been committed on or after the
commencement of that provision.
Subsection (2) provides that for the purposes of subsection (1), if
an offence is alleged to have been committed between 2 dates,
one before and one after the commencement of a provision, the
offence is alleged to have been committed before the
commencement of that provision.
New section 103O provides that the amendments to section 25 of
the Road Safety Act 1986 made by section 7 of the Bill apply
only to a demerit point option notice served on a person after the
commencement of that section 7, whether the demerit points to
which the notice relates were incurred before or after that
commencement.
New section 103P provides that the provisions dealing with level
crossings under section 68B of the Road Safety Act 1986
(inserted by section 9 of this Bill) and paragraph (e) of the
definition of relevant offence in section 84C(1) of the Road
Safety Act 1986 (inserted by section 15 of this Bill) apply only
to offences alleged to have been committed on or after the
commencement of those sections.
New section 103Q provides that the provisions dealing with
regulated heavy vehicles under Part 10A of the Road Safety
Act 1986 (inserted by section 20 of the Bill) apply only to
offences alleged to have been committed on or after the
commencement of that section.
The section also provides for an offence alleged to have been
committed between 2 dates, in the same way as new
section 103N.
New section 103R sets out circumstances under which a driver
may, for 6 months after the commencement of new Part 10A,
drive at BFM hours without obtaining BFM accreditation, and
when such an exemption does not apply. Participants in a fatigue
management pilot of another State or Territory will be able to
continue to drive at hours approved in the applicable exemption
for 6 months.
8
New section 103S provides for the continuation of existing
exemptions from regulatory requirements to make records in a
driver's log book.
New section 103T provides that a log book issued under the
regulations may continue to be used by a driver working under
standard hours for 90 days after the commencement of new
Part 10A. It also provides that a driver cannot work under BFM
hours or AFM hours unless the driver has surrendered the driver's
logbook and obtained a work diary.
Clause 18 repeals the definition of driver base set out in section 108 of the
Road Safety Act 1986.
Clause 19 repeals sections 171(1), 173(1) and 176(1) of the Road Safety
Act 1986 as a consequence of the insertion of new definitions of
consignor, consignee and loader in clause 3 of the Bill.
Clause 20 inserts a new Part 10A into the Road Safety Act 1986 which
establishes a new scheme for managing heavy vehicle driver
fatigue.
These provisions implement the National Transport
Commission's model legislation on fatigue management for
drivers of heavy vehicles, subject to some minor departures.
The current legislative provisions deal with driver working
hours in somewhat narrow and prescriptive terms. The new
model legislation is intended to address all aspects of the driver
fatigue problem rather than focussing on hours of work.
Central components of the National Transport Commission's
approach include--
· addressing the factors which cause fatigue;
· imposing obligations on other parties in the transport
chain whose decisions may influence fatigue outcomes;
and
· improving compliance through more effective
enforcement, targeted offences, a wider range of
sanctions and improved record-keeping requirements.
It is intended that the reforms will provide three options for the
heavy transport industry--
· option 1 is to comply with standard hours limitations on
maximum working hours and minimum rest hours.
This is the default requirement;
9
· option 2 is to implement a Basic Fatigue Management
regime (BFM). This comprises an optional set of
working and rest hours, providing more flexibility than
the standard hours, but with some mandatory fatigue
management and compliance-assurance responsibilities
imposed on operators;
· option 3 is to implement an Advanced Fatigue
Management (AFM) regime. Under AFM operators
must comply with agreed standards and operating limits.
Heavy vehicle operators will lodge an AFM application
including the hours of work and rest for approval.
VicRoads will then as part of the approval process
satisfy itself that the permitted AFM limits are not
exceeded and that the fatigue risks are appropriately
managed.
The new provisions apply the "chain of responsibility" principles
developed by the National Transport Commission (and presently
applying to the mass, dimension and load restraint requirements
under the Road Safety Act 1986). However, they do so in a
manner that is specific to driver fatigue. They also extend to
fatigue management the compliance and enforcement provisions
set out in Part 11 of the Road Safety Act 1986 relating to
relevant heavy vehicle offences (which at present is limited to
mass, dimension and load restraint offences).
New Division 1 of Part 10A inserts various interpretation
provisions.
New section 191A inserts a range of definitions used in the
National Transport Commission (Model Legislation--Heavy
Vehicle Driver Fatigue) Regulations 2007.
New section 191B defines fatigue regulated heavy vehicle.
The requirements set out in new Part 10A will generally apply to
such vehicles. A fatigue related heavy vehicle is a motor vehicle
or combination with a gross mass of more than 12 tonnes, or a
bus. Expressly excluded from the definition are trams, motor
homes and vehicles that primarily operate off public roads, such
as agricultural machinery and road building plant.
10
New section 191C ensures that for consistency of interpretation
of the provisions in Part 10A with the way they may be
interpreted in other States and Territories, the Acts Interpretation
Act 1901 of the Commonwealth applies to the interpretation of
this Part, except that, in relation to Victoria, "Ministerial Order"
refers to an order made by the responsible Minister of Victoria.
New subsection (2) provides that section 191C does not prevent
the Interpretation of Legislation Act 1984 from applying to this
Part to the extent that it can do so consistently with the
application of the Acts Interpretation Act 1901 of the
Commonwealth.
New Division 2 imposes duties to avoid and prevent fatigue on a
range of parties in the transport chain, in accordance with the
"chain of responsibility" principles that apply in other parts of the
Act to mass, dimension and load restraint offences.
New section 191D imposes a duty on a driver of a fatigue
regulated heavy vehicle not to drive on a road while impaired by
fatigue. Impaired by fatigue is defined in new section 191A to
mean that the driver is fatigued to the extent that the driver is
incapable of driving a vehicle safely. A person charged with this
offence does not have the benefit of the mistake of fact defence.
The penalty for contravening the section is the penalty for a
severe risk offence. Penalties for severe risk offences, along with
minor, substantial and critical offences, are set out in a Table in
new section 191ZZU.
New section 191E(1) imposes duties on other parties in the chain
of responsibility to prevent driver fatigue. It requires that a party
in the chain of responsibility take all reasonable steps to ensure
that a person does not drive the vehicle on a road while the
person is impaired by fatigue. Under new section 191A, party in
the chain of responsibility in relation to a fatigue regulated
vehicle, means the following persons--
· the employer of the driver;
· the prime contractor of the driver;
· the operator of the vehicle;
· the scheduler of goods or passengers for transport by the
vehicle, and the scheduler of its driver;
· the consignor of goods for transport by the vehicle;
· the consignee of goods for transport by the vehicle;
11
· the loading manager of goods for transport by the
vehicle;
· the loader of goods on to the vehicle;
· the unloader of good on to the vehicle.
The penalty for a party in the chain of responsibility failing to
take all reasonable steps to ensure that a person does not drive
while impaired by fatigue is the penalty for a critical risk offence.
New section 191E(2) provides that a person charged with an
offence under subsection (1) does not have the benefit of the
mistake of fact defence, making the offence one of absolute
liability.
New section 191E(4) provides that in a prosecution for an
offence under subsection (1) it is not necessary to prove that any
particular person drove or would or may have driven the vehicle
on a road while impaired.
New section 191F imposes duties on employers, contractors and
operators.
New subsection 191F(1) provides that section 191F applies to--
· the employer of an employed driver of a regulated
heavy vehicle;
· the prime contractor of a self employed driver of a
regulated heavy vehicle;
· the operator of the regulated heavy vehicle if the driver
is to make a journey for the operator.
New subsection 191F(2) requires employers, prime contractors
and operators to take all reasonable steps to ensure that their
business practices will not cause or permit the driver to drive
while impaired by fatigue, or in breach of applicable work/rest
hours requirements.
New subsection 191F(3) imposes a duty on the employer to not
cause or permit the driver to drive the vehicle unless the
employer has complied with subsection (2) and, after making
reasonable inquiries, is satisfied the scheduler has complied with
section 191G. Section 191G imposes certain duties on
schedulers to avoid and prevent fatigue.
12
New section 191F(4) imposes a duty on the prime contractor and
operator to not cause or permit, or enter into a contract with the
driver, to drive, unless the prime contractor or operator has
complied with subsection (2) and, after making reasonable
inquiries, is satisfied the scheduler has complied with
section 191G.
New section 191G imposes certain duties on schedulers.
A scheduler is a person who schedules a driver's work time or
rest time, or schedules the transport of passengers or goods by
road.
New subsection 191G(2) imposes a duty on a scheduler to take
all reasonable steps to ensure that the driver's schedule for
driving the vehicle will not cause or permit the driver to drive
while impaired by fatigue or in breach of work/rest requirements.
New subsection 191G(3) provides that a scheduler must not
cause or permit the driver to drive the vehicle unless the
scheduler has complied with subsection (2) and the driver's
schedule for driving the vehicle allows for the driver to take rest
breaks in accordance with applicable work/rest requirements,
traffic conditions and other delays that could be expected.
Section 191H imposes duties on consignors and consignees of
goods for transport or transported by a regulated heavy vehicle.
Definitions of consignor and consignee are set out in clause 3 of
the Bill.
Section 191H(2) and (3) provides that both the consignor and the
consignee must take all reasonable steps to ensure that the terms
of the consignment, including, for example, the delivery time,
will not result in, encourage or provide an incentive to a driver,
employer, prime contractor or operator to cause or permit the
driver to engage in conduct referred to in section 191H(2).
New section 191H(4) provides that the consignor or consignee
must not cause or permit the driver to drive the vehicle, or enter
into a contract to that effect, unless the consignor or consignee
has complied with subsections (2) and (3) and--
· for an employed driver, the consignor or consignee,
after making reasonable inquiries, is satisfied that the
driver's employer and operator of the driver's vehicle
have each complied with section 191F and the scheduler
has complied with section 191G; and
13
· for a self employed driver, the consignor or consignee,
after making reasonable inquiries, is satisfied that, if the
driver has a prime contractor, the prime contractor of
the driver has complied with section 191F and the
scheduler has complied with 191G.
New section 191H(5) provides that the consignor or consignee
must not make a demand that affects, or that may affect, a time in
a schedule for the transport of goods and that may cause or
permit the driver to engage in conduct referred to in section
191H(2).
New section 191H(6) provides that subsection (5) does not apply
if the consignor or consignee has take all reasonable steps to
prevent the breach and is satisfied that the making of the demand
will not cause or permit a person to drive while fatigued.
New section 191I imposes duties on loading managers. Loading
manager is defined in new section 191A.
New subsection 191I(1) provides that a loading manager must
take all reasonable steps to ensure that the arrangements for
loading and unloading regulated heavy vehicles at the premises at
which he or she is the loading manager will not cause or permit
the driver to engage in conduct referred to in subsection 191H(2).
New subsection 191I(2) provides that the loading manager must
take all reasonable steps to ensure that the driver is able to take a
rest while waiting for the vehicle to be loaded or unloaded if the
loading manager, or a person acting under the loading manager's
supervision or control, nominates a time for loading that exceeds
the nominated loading time by more than 30 minutes, or the
loading manager, or a person acting under his or her supervision
is unable to nominate a time for loading or unloading the vehicle.
New section 191J provides that a person must not ask, direct or
require (directly or indirectly) a driver or a party in the chain of
responsibility to do something the person knows, or reasonably
ought to know, would have the effect of causing or permitting the
driver to engage in conduct referred to in section 191F(2).
New section 191K provides that a person must not enter into a
contract with a driver or with a party in the chain of
responsibility that the person knows or reasonably ought to know
would either have the effect of causing or permitting a driver to
engage in conduct referred to in section 191F(2), or would
encourage or provide incentive for a party in the chain of
responsibility to do so.
14
New Division 3 sets out the requirements for work and rest times
which must be observed by a driver of a fatigue regulated heavy
vehicle.
The work and rest times which a driver must comply with will
vary depending on whether a driver is operating under
accreditation or not, and if so, what type of accreditation.
· A driver who is not working under accreditation must
comply with 'standard hours limitations' (maximum
working hours and minimum rest hours).
· A driver who is working under a Basic Fatigue
Management (BFM) regime must comply with an
alternative set of working and rest hours. These are
more flexible than the standard hours, but involve some
mandatory fatigue management and compliance-
assurance responsibilities being imposed on the
operator.
· A driver who is working under an Advanced Fatigue
Management (AFM) regime must comply with a set of
working and rest hours agreed between the operator and
the regulatory agency (VicRoads), having regard to the
operator's specific fatigue risks and fatigue management
system.
New Subdivision 1 deals with work and rest times for drivers not
working under accreditation. These are referred to in new section
191A as 'standard hours'.
New section 191L provides for the standard hours of a solo driver
of a fatigue regulated heavy vehicle, including a bus (which are
set out in detail in Table 1 in Schedule 3). Solo driver means a
driver who is not a party to a two-up driving arrangement.
New section 191M provides for the standard hours of a solo
driver of a bus, other than a bus driver who complies with
section 191L. These are set out in detail in Table 2 in
Schedule 3.
New section 191N provides for the standard hours of a two-up
driver. These are set out in detail in Table 3 in Schedule 3.
15
Each of the new sections 191L, 191M and 191N create offences
for drivers who fail to observe applicable working times and rest
times, and for other parties in the chain of responsibility who fail
to ensure drivers do not contravene applicable work and rest
times. Other parties in the chain of responsibility, except for
operators, have the benefit of the reasonable steps defence.
Each of the new sections 191L, 191M and 191N also provide that
a person charged with an offence under those sections does not
have the benefit of the mistake of fact defence.
New Subdivision 2 relates to work and rest times applying to
drivers working under BFM accreditation. These are referred to
in new section 191A as 'BFM hours'. BFM accreditation means
accreditation granted under Schedule 4 or a corresponding
fatigue law.
New section 191O provides for the BFM hours of solo drivers.
These are set out in Table 1 in Schedule 4.
New section 191P provides for the BFM hours of two-up drivers.
These are set out in Table 2 in Schedule 4.
New sections 191O and 191P create offences for drivers who fail
to observe stipulated BFM hours, and for other parties in the
chain of responsibility who fail to ensure drivers do so. Parties in
the chain of responsibility, except for operators, have the benefit
of the reasonable steps defence.
New sections 191O and 191P also provide that a person charged
with an offence under those sections does not have the benefit of
a mistake of fact defence.
New Subdivision 3 relates to work and rest hours under AFM
accreditation.
New section 191Q requires drivers to observe maximum work
times and minimum rest times specified in the certificate for
the AFM accreditation under which the driver is working
(see section 191Q(2)).
New section 191Q(3) provides that other parties in the chain of
responsibility must ensure that drivers do not contravene the
applicable work and rest times. Other parties in the chain of
responsibility, except for operators, have the benefit of the
reasonable steps defence.
New section 191Q(4) creates an offence for a driver or other
party in the chain of responsibility who contravenes section
191Q(2) or (3).
16
New section 191Q(5) provides that a person charged with an
offence under section 191Q does not have the benefit of the
mistake of fact defence.
New section 191Q(7), (8), (9) and (10) set out the circumstances
in which an offence by a driver (because of a contravention of
new section 191Q(2)) or another party in the chain of
responsibility (because of a contravention of new section
191Q(3)) will be considered to be a minor, substantial, severe
or critical risk offence.
New section 191R sets out the circumstances in which a driver
may, and must not, change from one work/rest hours option to a
different work/rest hours option. The penalty for contravening a
prohibition on changing from one option to another option in
contravention of the section is the penalty for a substantial risk
offence.
New Division 4 imposes a range of duties relating to record
keeping.
New section 191S relates to the keeping of a work diary.
It requires a driver who is or was in the previous 28 days engaged
in 100+ km work and driving under accreditation to keep in the
vehicle a work diary that contains certain information relating to
the preceding 28 days.
New section 191T sets out the information that the driver must
record in the work diary required to be kept under new
section 191S. Subsection (5) provides a defence for a driver who
was unaware that he or she would be engaging in 100+ km work
on the relevant day.
New section 191U sets out how a driver must record information
in a work diary, including an electronic work diary.
Section 191V(1) provides a defence for an offence relating to
failure to keep a work diary where the diary had been filled up,
destroyed, lost or stolen or, in the case of an electronic diary, was
malfunctioning.
New sections 191V(2), (3) and (4) set out what a driver or a
record keeper must do in these circumstances. New section
191V(7) provides that the reasonable steps defence is available
for certain offences under this section.
New section 191W(1) provides that it is a defence for a charge
for a breach of section 191T(3)(d) (which requires the taking of
an odometer reading before and after a work/rest option change),
for the driver to prove that the odometer was malfunctioning and
that the driver had reported the malfunction to the owner and
17
operator of the vehicle and, where applicable, to the driver's
employer.
New section 191W(2) requires the owner of a fatigue regulated
heavy vehicle to ensure that an odometer fitted to the vehicle is
maintained to the standard specified by the Fatigue Authorities
Panel.
New section 191W(3) provides that if the driver of a fatigue
regulated heavy vehicle becomes aware or reasonably suspects
that an odometer fitted to the vehicle is malfunctioning, he or she
must inform the owner and operator of the vehicle, and where
applicable the driver's employer, as soon as practicable (but
within 2 business days).
New section 191W(4) provides that as soon as is practicable after
being informed under subsection (3), the owner must ensure that
the odometer is examined and brought into working order.
New section 191W(5) requires the driver's employer and the
operator of the vehicle to ensure that the owner complies with
subsection (4).
New section 191W(7) provides that if a driver's employer or
operator is charged with an offence against section 191W, they
have the benefit of the reasonable steps defence.
New section 191X(1) imposes obligations on employers, prime
contractors, operators and schedulers to ensure driver compliance
with the record keeping duties under new Division 4. Such a
person, other than the operator, has the benefit of the reasonable
steps defence.
New Division 5 deals with records relating to drivers.
New section 191Y sets out the information that must be recorded
by a driver's record keeper in various circumstances. Failure to
make the records required by the section is an offence, although a
record keeper has the benefit of the reasonable steps defence.
New sections 191Z, 191ZA, 191ZB, 191ZC, 191ZD, 191ZE,
191ZF and 191ZG create various offences relating to work
records, including offences relating to making false entries,
having possession of more than one work diary, recording
information for the same period in more than one work diary,
having possession of something purporting to be a work record,
defacing or changing an entry in a work record, making false
representations in respect of work records, inserting entries into
other people's work records, destroying or tampering with the
operation of an electronic work diary.
18
New Division 6 relates to accreditation and exemptions from
accreditation.
New Subdivision 1 relates to the requirements for BFM
accreditation.
New section 191ZH(1) provides that BFM system means the
operator's management system for ensuring compliance with
BFM standards and business rules. BFM standards and business
rules will be developed or approved by the Fatigue Authorities
Panel established under new Division 8 of the Bill.
New section 191ZH(2) sets out what the operator's BFM system
must include.
New section 191ZI provides that the operator of a fatigue
regulated heavy vehicle may apply to VicRoads for BFM
accreditation, and sets out the requirements of the application.
New section 191ZJ sets out procedural matters relating to an
application for accreditation, and the matters VicRoads can take
into consideration when determining an application.
New section 191ZK provides that if VicRoads grants the BFM
accreditation, it must give the operator an accreditation
certificate. It also sets out the duration of the accreditation period.
New section 191ZL provides that if VicRoads decides not to
grant BFM accreditation it must give reasons for the refusal and
tell the operator that the operator may apply to have the decision
reconsidered.
New section 191ZM makes BFM accreditation subject to the
condition that the operator must comply with the BFM standards
and business rules, and to any other conditions stated in the
accreditation certificate or prescribed by the regulations. It is an
offence for an operator to contravene a condition of the BFM
accreditation.
New section 191ZN(1) provides that an operator to whom BFM
accreditation is granted must ensure that each driver who is to
work under the BFM accreditation is inducted into the operator's
BFM system and meets the requirements relating to drivers under
the operator's BFM accreditation.
New section 191ZN(2) provides that an operator to whom BFM
accreditation is granted must keep a current list of the drivers
working under the accreditation and records demonstrating that
each driver has been inducted into the operator's BFM system
and meets all relevant requirements, as well as any other records
prescribed by the regulations.
19
New section 191ZO(1) provides that if an operator to whom a
BFM accreditation has been granted changes or ceases to hold
that accreditation, the operator must inform any driver or
scheduler who may be affected by that change.
New Subdivision 2 relates to AFM accreditation.
To obtain AFM accreditation, the operator must make an AFM
proposal that sets out the proposed work and rest limits for
drivers of the vehicle, the risks involved with working under the
proposed work and rest limits, the proposed countermeasures that
are designed to manage the risks, and the other details required
under the AFM standards and business rules.
New section 191ZQ, defines an operator's AFM system as a
management system for ensuring compliance with the AFM
standards and business rules.
New section 191ZQ(2) provides what an operator's AFM system
must include.
New section 191ZR provides for applications to VicRoads for
AFM accreditation.
New section 191ZS sets out when VicRoads must decide an
application and the matters it can or must take into consideration
when determining the application.
New section 191ZT(1) requires VicRoads to issue an
accreditation certificate, and sets out what it must contain,
including the work and rest hours limits that apply to the
accreditation. Subsections (2) and (3) deal with the duration of
the AFM accreditation.
New section 191ZU provides that VicRoads must give reasons if
it refuses to grant AFM accreditation to the operator.
New section 191ZV provides that each AFM accreditation is
subject to the condition that the operator to whom it is granted
must comply with the AFM standards and business rules, and to
any other conditions stated in the accreditation certificate or
prescribed by the regulations. An operator who contravenes a
condition of the AFM accreditation commits an offence.
New section 191ZW provides that a driver who is driving under
an operator's AFM accreditation must have recorded in the
driver's work diary a statement of the AFM hours allowed under
the accreditation. The operator must ensure each of the drivers
driving under the operator's AFM accreditation do not contravene
that requirement.
20
New section 191ZX(1) provides that an operator to whom AFM
accreditation has been granted must ensure that each driver who
is currently working under the AFM accreditation is inducted into
the operator's AFM system, is informed of the AFM hours under
the operator's AFM accreditation and meets the requirements
relating to drivers.
New section 191ZX(2) sets out what records an operator to
whom AFM accreditation has been granted must keep.
New section 191ZY provides that if an operator to whom AFM
accreditation has been granted changes or ceases to hold the
accreditation, the operator must inform any driver or scheduler
who may be affected by that change.
New Subdivision 3 provides for exemptions from prescribed
requirements.
New section 191ZZ provides that a person who is acting for an
emergency service and who has time-critical duties on the way
to, or during, an emergency is exempted in the course of carrying
out those duties from the prescribed provisions.
New section 191ZZA provides that VicRoads may exempt a
driver from complying with the work diary requirements, subject
to an application being made in accordance with the section.
New Subdivision 4 provides for variation, suspension or
cancellation of accreditation or exemption.
New section 191ZZB deals with applications for the variation or
cancellation of the accreditation or an exemption.
New sections 191ZZC and 191ZZD set out the grounds under
which VicRoads may vary or cancel an accreditation or
exemption, without receiving an application.
New section 191ZZE sets out the procedures for variation or
cancellation of an accreditation or an exemption.
New section 191ZZF provides that VicRoads may immediately
suspend an individual's accreditation if it considers it necessary
in the interest of public safety.
New section 191ZZG provides for return of the accreditation
certificate where accreditation is cancelled.
New Subdivision 5 provides for various miscellaneous provisions
relating to accreditation and exemptions.
New section 191ZZH deals with replacement of destroyed, lost,
defaced or stolen certificates.
21
New section 191ZZI makes it an offence for a person to falsely
represent that they hold or are working under an accreditation or
exemption.
New Division 7 relates to compliance and enforcement.
New sections 191ZZJ and 191ZZK authorise an inspector under
the Road Safety Act 1986 who believes the driver of a fatigue
regulated heavy vehicle has worked a period in excess of the
maximum period allowed under a maximum work requirement,
or who has taken a rest period that is shorter than the rest period
required under a minimum rest requirement, to issue a written
notice requiring the driver to take a rest or to work for a shorter
period.
If the contravention is a critical or severe risk contravention, the
inspector must issue the notice. If the contravention is a
substantial or minor risk offence, the inspector has a discretion
whether or not to issue the notice. Whether an offence is a
critical, severe, substantial or minor risk offence is specified in
the relevant offence provision.
New section 191ZZL authorises an inspector under the Road
Safety Act 1986 to issue a written notice requiring a driver to
stop work immediately and not work again for a stated period if
the inspector believes the driver is impaired by fatigue.
An inspector may authorise a person who is qualified to do so to
drive the vehicle to a suitable rest place.
New section 191ZZM authorises an inspector under the Road
Safety Act 1986 to issue a written notice requiring a driver to
stop work and not work again for up to 24 hours where the driver
has--
· failed to produce a work diary upon request of the
inspector; or
· produced a document that is not a work diary or which
the inspector reasonably believes cannot be relied upon
as an accurate record of time spent working or resting.
New section 191ZZN creates an offence of failing to comply
with a notice under Part 10A without reasonable excuse.
Subsection (2) authorises an inspector who gives a driver notice
under new section 191ZZK, 191ZZL or 191ZZM to allow the
driver to delay complying with the notice where it is safe for the
driver to proceed to a suitable rest place or where it is necessary
for the driver to attend to or secure the load before taking rest.
22
New section 191ZZO sets out what constitutes reasonable steps
for the purposes of the offences in Part 10A.
New section 191ZZO(2) provides that a person must be treated as
having taken reasonable steps to prevent the act or omission that
led to a contravention if the person proves that they did certain
things to prevent the act or omission. In general terms, those
things include identifying and assessing (at or within specified
times) aspects of their activities and activities of the driver that
may lead to a contravention of a fatigue management requirement
by the driver, and taking steps to eliminate or minimise the risk.
New subsection 191ZZO(3) provides for regulations to be made
specifying ways of assessing and addressing fatigue related risks
for the purposes of new section 191ZZO(2).
New section 191ZZP provides that a person who has the benefit
of the reasonable steps defence under Part 10A has a defence to a
charge for an offence against that section if the person charged
proves that--
· the person did not know, and could not reasonably be
expected to have known, of the contravention; and
· either the person took all reasonable steps to prevent the
contravention or there were no steps the person could
reasonably have taken to prevent the contravention.
New section 191ZZQ sets out various matters to which a court
may have regard when deciding whether things done or omitted
to be done by a person charged constitute reasonable steps.
New section 191ZZR provides that the reasonable steps defence
includes the exercise of "reasonable diligence".
New section 191ZZS enables a person charged with an offence
under Part 10A to prove that they took all reasonable steps to
prevent the contravention by providing proof that they complied
with relevant standards and procedures, including an industry
code of practice.
New subsection 191ZZT explains the effect of an offence
provision which this section states that a person does not have the
benefit of the mistake of fact defence, which is that the person is
not able to rely on the defence of honest and reasonable mistake
of fact.
23
New section 191ZZU provides for the penalties for offences in
Part 10A. The maximum fines specified vary depending upon
whether the offence was a minor, substantial, severe or critical
risk offence; whether the offender is a corporation or natural
person and whether the offence is a first or subsequent offence.
New section 191ZZV makes provision with respect to evidence
of certain matters in proceedings for fatigue related offences.
New section 191ZZW sets out things that a court must take into
consideration when deciding whether a person ought reasonably
to have known something as an element of an offence relating to
a fatigue management requirement.
New section 191ZZX provides that proceedings can be taken
against more than one person who may be guilty of a fatigue
related offence regardless of whether proceedings have been
taken against anyone else, and regardless of the outcome of those
proceedings.
New section 191ZZY provides that nothing in new Part 10A
affects any power of a court, a tribunal, the Corporation or an
inspector apart from Part 10A.
New section 191ZZZ provides that there cannot be any
contracting out of obligations under Part 10A. A term of a
contract that purports to limit the effect of that Part is void.
New Division 9 makes provision with respect to the Fatigue
Authorities Panel.
New section 191ZZZA provides for the establishment,
membership and functions of the Fatigue Authorities Panel, and
provides that the regulations may make further provision about
the Panel. An important purpose of the Panel is to provide a
forum for co-operation between jurisdictions on fatigue related
matters.
New section 191ZZZB provides for publication by the Panel of
details of matters approved by it.
New section 191ZZZC sets out the decisions of VicRoads under
Part 10A which are subject to internal review.
New section 191ZZZD sets out the process to be followed to
have a decision reconsidered, the options open to VicRoads in
respect of such a decision and the role of the Panel in respect of
such a process.
Clause 21 substitutes a new heading to Part 11 of the Road Safety
Act 1986.
24
Clause 22 repeals section 191A of the Road Safety Act 1986 (which
applies the Commonwealth Acts Interpretation Act 1901)
consequentially on other amendments made by this Bill.
Clause 23 substitutes for section 192(2)(a) of the Road Safety Act 1986 a
new section 192(2)(a), which extends the operation of the section
to cover contravention of a fatigue impairment requirement, a
maximum work limit, a minimum rest requirement or a work
diary requirement. The effect of this provision is to apply the
provisions of Part 11 of the Road Safety Act 1986 to the fatigue
management requirements inserted in new Part 10A.
Part 11 of the Act sets out a range of compliance and
enforcement provisions which apply to a "relevant heavy vehicle
offence". Part 11 includes--
· an offence relating to victimisation of a person who
complains about, or assists a public agency in relation
to, a relevant heavy vehicle offence;
· offences relating to making false statements to an
official concerning a relevant heavy vehicle offence;
· an offence of providing false or misleading information
that would result in a person who relies on the
information committing a relevant heavy vehicle
offence;
· provisions rendering officers and employees, and
company directors, partners and employers, liable for
relevant heavy vehicle offences committed by others;
· a provision allowing courts to disqualify persons
convicted or found guilty of a relevant heavy vehicle
offence from registering a vehicle for a specified period;
· a provision allowing a court to make a "commercial
benefits penalty order" that is, an order that a person
found guilty of a relevant heavy vehicle offence pay a
penalty for an amount that is up to the three times the
gross commercial benefit that would have been derived
as a result of the contravention;
25
· a provision allowing a court to make a "supervisory
intervention order", that is an order that a person found
guilty of a relevant heavy vehicle offence committed by
a person who has systematically or consistently
committed such offences to do certain things under the
supervision of the court designed to demonstrate
improved compliance performance;
· a provision allowing a court to prohibit a person found
guilty of a relevant heavy vehicle offence from
undertaking specified roles or responsibilities associated
with road transport;
· provisions allowing inspectors to issue improvement
notices to persons believed to be committing or to
have committed a relevant heavy vehicle offence.
An improvement notice can direct the person to take
specified action to stop the offence or prevent it from
recurring;
· provisions setting out further defences available to
persons charged with relevant heavy vehicle offences.
Clause 24 substitutes a new section 193 which incorporates existing
sections 191A and 193.
Clause 25 repeals section 194 of the Road Safety Act 1986 and with it the
meaning of associate, which is now defined in section 3 of the
Act as a consequence of clause 3 of this Bill.
Clause 26 repeals section 195 of the Road Safety Act 1986 and with it the
definition of operator, which is now defined in section 3 of the
Act as a consequence of clause 3 of this Bill.
Clause 27 repeals the definition of business day in section 225 of the Road
Safety Act 1986, which is now defined in section 3 of the Act as
a consequence of clause 3 of this Bill.
Clause 28 substitutes for existing regulation making power at item 37A of
Schedule 2 of the Road Safety Act 1986 to give effect to the new
fatigue management policy. Regulations may be made with
respect to (amongst other things)--
· record keeping;
· the approval of work diaries;
· matters relevant to calculation of work and rest times;
26
· matters relating to the Fatigue Authorities Panel; and
· mutual recognition of decisions of authorities
responsible for managing driver fatigue.
Clause 29 inserts new Schedules 3, 4 and 4A after schedule 2 of the Road
Safety Act 1986.
In Schedule 3, Table 1 sets out work and rest hours for drivers
not working under accreditation, Table 2 sets out standards hours
for solo drivers of buses. Table 3 sets out standard hours for
two-up drivers of regulated heavy vehicles.
In Schedule 4, Table 1 sets out work and rest hours for drivers
under BFM accreditation. Table 2 sets out BFM hours for
two-up drivers of a regulated heavy vehicle.
In Schedule 4A, the Table sets out outer limits for work and rest
hours for drivers under AFM accreditation.
PART 3--AMENDMENT OF CHATTEL SECURITIES
ACT 1987
Clause 30 inserts a new section 16B into the Chattel Securities Act 1987
which authorises VicRoads to enter into an agreement with the
Sheriff for the registration of a security interest as required under
section 116(3)(b) of the Infringements Act 2006.
Under section 116(3)(b) of the Infringements Act 2006, the
Sheriff must record in the vehicle securities register ("VSR") an
entry of a direction under section 116(1) that VicRoads is not to
transfer the registration of a motor vehicle until the registered
operator pays the amount outstanding on an infringement
warrant.
Clause 31 substitutes for section 18 of the Chattel Securities Act 1987 a
new section designed to remove the requirement in that section
for a holder of a registered security interest wishing to cancel the
registration of that interest to make application to VicRoads
"in or to the effect of the prescribed form". Prescribing this form
in the Regulations is considered to be too inflexible. Forms can
become outdated, requiring further amendment to the
Regulations to keep up-to-date with evolving business practices
and legislative amendments.
Clause 32 inserts the words "and not rejected by the Corporation" after "19"
in section 20 of the Chattel Securities Act 1987 to make it clear
that VicRoads is only required to remove a security interest from
the VSR if it has accepted an application for cancellation of the
registration of that interest.
27
Clause 33 inserts a new subsection 21(1A) after subsection 21(1) of the
Chattel Securities Act 1987 to confirm that an application for
variation of the particulars of a registered security interest on the
VSR must be accompanied by the prescribed fee.
Clause 34 inserts a new subsection 22(2) into the Chattel Securities
Act 1997 to enable VicRoads to impose a fee for varying
information in the VSR in accordance with the section.
Clause 35 inserts a new heading "Correction of inaccuracies of the register"
into section 22A of the Chattel Securities Act 1987 so that it
better reflects the purpose of that section and enables VicRoads
to impose a fee for varying information in the VSR in accordance
with the section.
Clause 36 substitutes for section 24(2)(b) of the Chattel Securities Act
1987 a new section 24(2)(b). Section 24(2)(b) currently provides
for VicRoads to provide, with a VSR certificate issued under
section 24(1), information relating to whether the motor vehicle
has been reported as stolen or otherwise unlawfully obtained.
The provision can be read to mean that anyone can record on the
VSR that a vehicle is stolen or unlawfully obtained. This may
involve the register being used in civil disputes. The new
provision is designed to ensure that the only source of such
information is the police. This ensures that the information is
from an objective and reliable source.
Clause 36 also substitutes for section 24(3) of the Chattel
Securities Act 1987 a new section 24(3). Existing section 24(3)
provides that VicRoads and other persons are not liable in respect
of any information provided with a VSR certificate, being
information--
· that was provided to VicRoads for the purposes of
section 24(2)(a) of the Act;
· relating to a vehicle that has been reported as being
stolen or otherwise unlawfully obtained; or
· relating to a vehicle for which the Chief Commissioner
of Victoria Police has served a notice seeking an order
for its impoundment, immobilization or forfeiture--
provided that the information is provided with an appropriate
disclaimer and in good faith.
New section 24(3) is intended to ensure that this protection
extends to include not only the information provided with the
certificate but also the certificate itself.
28
Clause 37 inserts a new section 24A into the Chattel Securities Act 1987
so that VicRoads can provide information of the type referred to
in sections 24(1) and 24(2) without providing a certificate under
that section, and charge a fee for this purpose.
Clause 38 clarifies the power to make regulations regarding fees with
respect to the registration of security interests on the VSR, and
obtaining information from the VSR.
PART 4--AMENDMENT OF EASTLINK PROJECT ACT 2004
Part 4 of the Bill amends the tolling provisions of the EastLink Project
Act 2004 so that they are more consistent with those under the Melbourne
City Link Act 1995.
The main change is to the tolling offence in section 204. Presently, an
offence is committed if an invoice for the trip is not paid. The effect of the
amendment is that an offence will be committed at the time of driving if the
person does not have a tolling account or has not prepaid the toll.
As under the Melbourne City Link Act 1995, it will be a defence if the
driver proves he or she was registered to use the tollway or had paid an
invoice.
Part 4 also replaces the "owner onus" system with the "operator onus" system
and thus brings the toll invoice system in the EastLink Project Act 2004
into line with the system applicable to camera and parking offences under the
Road Safety Act 1986 where the identity of the offender is not established at
the time the offence is detected.
The "operator onus" system provides for a chain of nominations of persons
who had "possession or control" of a vehicle detected using a tollway.
Responsibility for the offence rests with the operator or the last person
nominated who is unable or unwilling to nominate anyone else.
The current system is based on the nomination of "drivers" only.
This approach is of limited value if the vehicle has passed from person to
person several times before the offence was committed. In such situations,
the vehicle's operator may have no knowledge of the identity of the driver.
Further, the existing system is of limited utility where companies or other
organisations are links in the "chain" of control over the vehicle.
For example, if a vehicle is leased to a company, the registered operator
cannot nominate the company because a company cannot be the driver.
Clause 39 (a) inserts a number of new definitions into section 3(1) of the
East Link Project Act 2004 to support the new operator onus
provisions. The new terms establish a mechanism for
ascertaining the identity of the person who had possession or
control of a vehicle when an offence was committed.
29
The key definitions are as follows--
· authorised person means a person authorised by the
Freeway Corporation in writing under new
section 197AA to carry out functions under Part 9 of the
EastLink Project Act 2004. The role of an authorised
person includes the assessment of a "known user
statement" and a "sold vehicle statement" under
section 199.
· corresponding body, which has the same meaning as in
section 84BB of the Road Safety Act 1986 refers to
bodies that perform functions in relation to the
registration of motor vehicles in other Australian
jurisdictions. The records of VicRoads and
corresponding bodies may be used to identify the person
generally responsible for the operation of a vehicle or
the number plates displayed on a vehicle.
· corresponding law refers to a law of the
Commonwealth or one of the other States or Territories
that correspond to Division 2 of Part 2 of the Road
Safety Act 1986, which relates to the registration of
motor vehicles.
· effective is used to refer to an illegal user statement, a
known user statement or a sold vehicle statement that
has been accepted by an authorised person under section
199 of the EastLink Project Act 2004.
· An illegal user statement is one of the three types of
statement that a person to whom a request for payment
has been made may make to avoid liability. An illegal
user statement is a statement that the relevant motor
vehicle, or the number plates displayed on it, were
stolen at the time of the alleged offence, and which
gives reasons for that belief.
· A known user statement is one of the three types of
statement that a person may make to avoid liability for
an alleged operator onus offence. The essence of a
known user statement is that the person making the
statement denies that they committed the offence and
provides sufficient information to identify and locate the
person last known to have had possession or control of
the relevant vehicle.
30
A statement will be sufficient for this purpose if it
contains certain identifying information, described in
the new section 199(2). However, an authorised person
may accept a statement that does not contain all of this
information if they believe that the statement may be
sufficient identify and locate the person nominated.
· A nomination rejection statement is a statement that a
person may make to avoid liability for an alleged
operator onus offence. A nomination rejection
statement may be made by a person who has been
nominated by somebody else (in a known user statement
or sold vehicle statement) as having possession or
control of the vehicle prior to the relevant offence.
To be effective, a nomination rejection statement must
establish that the person had not permanently acquired,
or had not taken possession or control of, the vehicle as
alleged, and must give reasons.
· The term operator refers to a person who, according to
registration records maintained by VicRoads (or
corresponding bodies in other Australian jurisdictions),
has responsibility for the operation of a motor vehicle or
for number plates displayed on a vehicle. The term
covers--
· The registered operator of a motor vehicle or
equivalent under interstate registration.
Note the registered operator is the person who
has accepted responsibility for and is registered
as the vehicle's operator. The registered operator
is not necessarily the owner of the vehicle.
Registration as operator is not evidence of
ownership--see section 9B of the Road Safety
Act 1986.
· If there has been a notice of transfer, the person
who appears to be responsible according to the
registration records of VicRoads or a
corresponding interstate body.
· If the vehicle is not currently registered, the
person who appears to be responsible from
the relevant vehicle registration records.
For example, if registration had not been
renewed at the time of an offence, the person
31
who was the registered operator when the vehicle
was last registered would be an operator for the
purposes of the definition.
· The person responsible for the vehicle to which
the registration number displayed on the vehicle
was last assigned, or who is recorded as being
entitled, or last entitled to use or possess that
number plate. It sometimes happens that a
vehicle-related offence is detected but the plates
displayed on the vehicle are not currently
assigned to any registered vehicle. This can
happen where the plates were last assigned to a
vehicle that is no longer registered, the plates
were not returned to the registration authority
and are later displayed on another vehicle. It can
also occur when personalised plates are
purchased without the number being assigned to
a registered vehicle, and the plates are then
attached to a vehicle.
In this situation, the person to whom the plates
where last assigned may be treated as the
operator.
· The person responsible for "trade plates"
displayed on a vehicle.
· The term registered operator has the same meaning as
in section 3(1) of the Road Safety Act 1986, being the
person recorded on the register as the person responsible
for the vehicle.
· The words responsible person refer to the person who is
responsible for committing the offence at a particular
time under the operator onus principles. A responsible
person may transfer responsibility to another person by
identifying them as the responsible person through a
sold vehicle statement or a known user statement, or
transfer responsibility back to the person who
nominated them through a nomination rejection
statement.
32
· Sold vehicle statement refers to one of the three types of
statement that a person may make to avoid liability.
The essence of a sold vehicle statement is that the
person making the statement denies that they committed
the offence on the basis that the vehicle had been
permanently disposed of to another person before the
offence, and provides sufficient information to identify
and locate the person nominated. Even though the
statement is called a sold vehicle statement, it is
intended to be used in situations where, prior to the
offence, the relevant vehicle had been disposed of
permanently, whether by way of sale or by other means.
· A tolling nomination statement refers to a tolling
nomination statement under section 84BB of the Road
Safety Act 1986. A tolling nomination statement is a
statement made by a person authorised to carry out
tolling enforcement functions in relation to EastLink or
City Link which effectively identifies the responsible
persons in relation to a tolling offence.
· A tollway billing arrangement refers to an agreement or
arrangement between a person and an interstate tollway
operator relating to the payment of tolls for the use of
the tollway operated by the interstate operator for a
prescribed toll or charge.
· A tollway operator refers to an operator of a tollway in
this State or another State or Territory that is
empowered to impose a toll for the use of the tollway.
Clause 39(b) repeals the definition of owner in section 3(1) of the
EastLink Project Act 2004 consequential upon the introduction
of the new definition of operator and making the operator the
person responsible for the vehicle at the time of an offence.
Clause 39(c) substitutes a new, narrower definition for the
existing definition of trip. Under the current definition, trip
means the driving of a vehicle on EastLink in a single direction
through one or more toll zones (without repeating a toll zone)
within a single hour, whether or not that driving is interrupted by
exit from that freeway. Under the new definition, a trip can only
be interrupted by exit from EastLink if the vehicle re-enters at a
point that is forward of the point of exit. Thus, if driving is
interrupted by exit from EastLink but the vehicle re-enters at a
point that is behind the point of exit, a separate trip will occur.
33
Clause 40 inserts a new section 197AA into the EastLink Project
Act 2004.
New section 197AA gives the Freeway Corporation the power to
authorise a person to carry out functions under Part 9. Functions
of authorised persons include determining if the information
contained in a "known user statement" or a "sold vehicle
statement" is sufficient for it to be effective to pass responsibility
for a toll invoice under new section 199.
Clause 41 substitutes "owner" with "operator" wherever occurring in
sections 197(2) and 197(3) of the EastLink Project Act 2004
thus making the person who was the operator of a vehicle at the
time it was driven in a toll zone liable for the payment of the toll
and toll administration fee.
Clause 42 substitutes the term "tollway billing arrangement" for "freeway
use agreement" in sections 198(1) and 198(4) of the EastLink
Project Act 2004. The effect of this amendment is that vehicles
that are the subject of an interstate tolling arrangement will not be
liable for the toll and toll administration fee charged by the
Freeway Corporation under section 197 for the use of EastLink.
A person may enter into a tollway billing arrangement within the
allowable agreement period (currently 72 hours) after the use of
the vehicle in a toll zone.
Clause 42(2) changes the definition of allowable agreement
period from 72 hours to 3 days, beginning on the day after the
day on which the vehicle was used in a toll zone.
Clause 43 substitutes for section 199 of the EastLink Project Act 2004 a
new section 199, and inserts two further new sections 199A
and 199B.
New section 199(1) provides that the "operator" will not be liable
for payment of the toll and toll administration fee under
section 197 if the operator makes an effective illegal user
statement, known user statement or sold vehicle statement within
14 days after the first demand for payment of the toll or
administration fee.
New section 199(2) sets out the information that needs to be
included in a known user statement or sold vehicle statement for
the statement to be effective. A statement will also need to
include any information that may be required by the regulations.
The purpose of these statements is to transfer liability to another
person who was in possession or control of the relevant motor
vehicle at the time of it being used on the tollway. The person
making the nomination must therefore provide information
34
sufficient to enable the responsible person to be identified and
located for the purposes of enforcement action. However,
inclusion of this information does not automatically mean that the
statement is an effective statement. The effectiveness of a
statement is determined by an authorised person.
New section 199(3) provides that if all of the information
required under subsection (2) is included in a known user
statement or sold vehicle statement it may be accepted by an
authorised person as being effective to pass liability for a toll
invoice.
New section 199(4) provides that if the authorised person is
satisfied that either a known user statement or a sold vehicle
statement contains sufficient information to identify and locate
the nominated person the authorised person may accept the
statement as an effective statement even if it does not contain all
of the information specified in subsection (2).
Under new section 199(5), an authorised person may accept an
illegal user statement as effective if satisfied about the matters set
out in the statement, and any reasons given.
New section 199(6) is an evidentiary provision that provides that
in toll recovery proceedings, an effective statement that is a
known user statement or a sold vehicle statement is evidence that
the person named in the statement was driving at the relevant
time.
New section 199A(1) allows an authorised person to cancel an
acceptance of a known user statement or sold vehicle statement if
the nominated person provides a nomination rejection statement
and the authorised officer is satisfied of the matters in the
statement.
Under new section 199A(2), if a known user statement or sold
vehicle statement is cancelled under subsection (1), then the
statement ceases to be effective for the purposes of Part 9 of the
EastLink Project Act 2004 and the person who had made the
cancelled statement again becomes the "responsible person" in
respect of the offence and is liable to be prosecuted.
New section 199B makes it an offence for a person to knowingly
provide false or misleading information to an authorised person
in an illegal user statement, a known user statement, a sold
vehicle statement or a nomination rejection statement.
35
Under the current owner onus system, a nomination must be
supported by a sworn statement or a statutory declaration, so that
a false statement makes the person liable to prosecution for the
indictable offence of perjury. The proposed new offence will be
a summary offence. The nature of the offence and available
penalty is consistent with the penalties for false statements under
the Infringements Act 2006.
Clause 44 amends section 200 of the EastLink Project Act 2004 consistent
with the provisions of the Melbourne City Link Act 1995.
Under the amended provision only one request for payment is
required (although further requests may be issued).
The change to a single request for payment and the change in
language from "demand" to "request for payment" reflect the fact
that the offence will now arise at the time of driving, if the person
does not have a tolling account or has not prepaid the toll. Under
the existing scheme, the offence is committed if the second
invoice for the trip is not paid.
New section 200(1) provides that the Freeway Corporation may
make a request for payment from the operator or a person
nominated in a known user statement or a sold vehicle statement
that has been accepted as an effective statement.
Clause 44(3) repeals sections 200(3) and 200(4), which
effectively removes the two step demand process from the
commission of an offence from the EastLink Project Act 2004.
Clause 44(5) changes the meaning of allowable agreement
period in section 200(6) from 72 hours to 3 days, beginning the
day after the day on which the vehicle was used in the toll zone.
This clarifies the point of commencement of the allowable
agreement period and consequently the point at which a request
for payment can be made.
Clause 45 substitutes all references in section 201 of the EastLink Project
Act 2004 of "demand" and "demands" with "request for
payment" and "requests for payment" respectively, consistent
with the amendment to section 200.
Clause 46 amends the heading of Division 3 of Part 9 of the EastLink
Project Act 2004 to read "Tolling offences and registration of
vehicles". This reflects the introduction of a registration scheme
which will align the EastLink tolling scheme with the scheme for
City Link tolling under the Melbourne City Link Act 1995.
Under the City Link scheme, authorisation to travel in a toll zone
is achieved through registration.
36
The scheme introduces some exemptions to the requirement to
register a vehicle and a number of defences to the offence,
including payment of the toll and toll administration fee within a
specified period.
Clause 47 substitutes for sections 204 and 205 of the EastLink Project
Act 2004 six new sections that replace the existing tolling
offence with a process for the registration of vehicles for travel in
a toll zone.
New section 204(1) makes it an offence to drive in a toll zone
without being registered by the Freeway Corporation.
Registration is achieved by entering into an agreement or
arrangement with the Freeway Corporation under new
sections 205A or 205B.
The offence occurs at the time of driving in the toll zone.
This differs from the current provision in which the offence
occurs at the time a demand for payment, for any relevant toll
and administration fee for a trip, is not paid.
The new provision makes the offence consistent with section 73
of the Melbourne City Link Act 1995.
New section 204(2) provides that only one offence can occur per
trip irrespective of the number of toll zones a person drives
through during the course of that trip. Trip is defined under
section 3(1) of the EastLink Project Act 2004.
New section 204(3) clarifies that if a trip occurs over two
calendar days a person will only be guilty of one offence per trip
and the offence will be taken to have occurred on the day that the
trip commenced. For example, if the trip commenced at
11.30 p.m. on 1 July 2008 and finished at 12.30 a.m. on 2 July
2008, the trip will be taken to have occurred on 1 July 2008.
New section 204(4) makes it a defence to a charge under
subsection (1) if the driver believed on reasonable grounds, at the
time he or she was driving the vehicle in the toll zone, that the
vehicle was registered to drive on that freeway or that it was
subject to a tollway billing arrangement. Tollway billing
arrangement is defined under section 3(1) of the EastLink
Project Act 2004.
New section 204(5) makes it a defence to a charge under
subsection (1) if the driver of the vehicle proves that they
received and paid in full an invoice in respect of the relevant trip
charge.
37
New section 204(6) defines invoice as a request for payment of a
toll and any relevant toll administration fee. The term invoice is
consistent with section 73 of the Melbourne City Link Act 1995
and replaces the concept of a demand used in the existing
section 204.
New section 204(7) provides that only one criminal proceeding
can be commenced and only one infringement issued with respect
to tolling offences committed on any one day, regardless of how
many trips the vehicle makes during that day and how many
different people drive it.
Thus, if three offences were committed in vehicle X on day Y by
drivers A, B and C respectively, criminal proceedings could be
commenced and an infringement issued only against one of those
drivers for one offence.
New section 204(8) provides that if a criminal charge or
infringement notice is withdrawn, the proceeding or an
infringement notice is to be disregarded for the purposes of
section 204(7).
New section 204(9) provides that vehicles can be exempted from
the requirement to be registered for the purpose of travelling in a
toll zone under the regulations. The offence in subsection (1)
will not apply to exempt vehicles.
New section 204(10) provides that the offence in sub-section (1)
will not apply to a vehicle that under the regulations is exempt
from the requirement to pay tolls.
New section 204(11) provides that an offence under subsection
(1) will not apply to a vehicle covered by a tollway billing
arrangement. A tollway billing arrangement has the same effect
as registration, as an interstate reciprocal arrangement.
New section 204(12) extinguishes the liability of an operator to
pay a toll and the relevant toll administration fees (charged by the
Freeway Corporation for use of the toll zone under section 197) if
that person is found guilty of a an offence under subsection (1).
New section 205(1) provides for the Freeway Corporation to
establish and maintain a register of vehicles.
New section 205(2) sets out the different periods for which the
Freeway Corporation may register the vehicles.
New section 205(3) makes provision with respect to applications
for registration.
38
New section 205(4) provides the Freeway Corporation with the
power to cancel or suspend the registration of a vehicle in
accordance with the Part.
New section 205A allows for the Freeway Corporation, at its
discretion, to refuse to register a vehicle unless the vehicle is the
subject of an on-going registration agreement with the person
seeking registration.
New section 205A(2) lists certain matters for which an ongoing
registration agreement may provide, including the term of the
agreement, conditions, dispute settlement procedures, and
suspension and cancellation.
New section 205A(3) provides that registration of a vehicle by
the Freeway Corporation is sufficient consideration to create a
binding on-going registration agreement.
New section 205B provides for temporary registration of a
vehicle for up to 14 days. Temporary registration may be
effected in the absence of an on-going registration under new
section 205A(1).
New section 205B(2) allows the Freeway Corporation to grant
temporary registration subject to conditions. Notification of
conditions can be in writing, oral or partly written and partly oral.
New section 205B(3) provides that temporary registration for a
24 hour period can be backdated for a period of up to three days.
For example, if registration for a 24 hour period was sought on a
Thursday at 11.00 am, it could be backdated to commence any
time from the beginning of the Monday of the same week.
New section 205B(4) provides that a temporary registration for a
period that is other than a period of 24 hours may be backdated.
Essentially, a period cannot be backdated more than 6 days after
the beginning of the specified period.
New section 205B(5) provides that registration of a vehicle by
the Freeway Corporation is sufficient consideration to create an
arrangement between the parties under subsection (1).
New section 205C sets out a list of information that the Freeway
Corporation must give to a person who sought registration from
the Freeway Corporation under Part 9.
New section 205C(2) specifies how the information listed in
subsection (1) must be provided. Some information can be
provided orally or in writing. However, information about
conditions of use and suspension or cancellation must be
provided in writing unless the vehicle is only given temporary
registration.
39
New section 205C(3) makes it an offence for the Freeway
Corporation not to give the information as required by
subsection (1).
New section 205D prescribes the method in which the Freeway
Corporation can cancel or suspend the registration under Part 9.
Where a specific method is not stated in a registration agreement,
new section 205D(1)(b) requires that cancellation or suspension
must be given by notice and sets out the ways in which the notice
can be given.
New section 205D(2) sets out when a notice under subsection (1)
is deemed to be given.
Clause 48 inserts a new section 206A after section 206 of the EastLink
Project Act 2004.
New section 206A creates two new offences concerning
fraudulent or false representations to the Freeway Corporation.
New section 206A(1) makes it an offence for a person to induce
the Freeway Corporation to register a vehicle by false
representation or fraudulent or collusive means. The penalty for
this offence will be a fine of up to 10 penalty units.
New section 206A(2) makes it an offence for a person to seek the
right to drive a vehicle on a tollway by making a false
representation to the Freeway Corporation.
Clause 49 inserts a new section 206B after the heading to Division 4 of
Part 9 of the EastLink Project Act 2004. Division 4 deals with
tolling enforcement.
New section 206B(1) provides that if a charge against a person
for a toll offence under new section 204(1) is found proven, that
person will be required to pay to the Freeway Corporation any
administrative costs that are prescribed in the regulations.
This applies whether or not a conviction is recorded.
Note that new section 204(12) extinguishes any toll charge and
toll administration fees under section 197 of the EastLink
Project Act 2004 upon a charge being proven against a person
for a toll offence under new section 204(1).
New subsection 206B(2) provides that the administrative costs
ordered under subsection (1) are a judgement debt payable to the
Freeway Corporation.
40
Clause 50 amends section 207 of the EastLink Project Act 2004.
Clause 50(1)(a) substitutes "operator" for "owner" in
paragraph (a) of section 207(2) in line with the introduction of
the "operator onus" provisions.
Clause 50(1)(b) substitutes for paragraph (b) in section 207(2) of
the EastLink Project Act 2004 a new paragraph (b).
Section 207(2) sets out what the Freeway Corporation or an
authorised person may request the enforcement agency to do if it
has a reasonable belief that a person has committed an offence
under section 204. New section 207(2)(b) provides that the
Freeway Corporation may request the enforcement agency to
serve an infringement notice on a person nominated in a tolling
nomination statement.
Consistent with the "operator owner" system, new
section 207(2)(b) replaces the procedure whereby the responsible
driver is nominated by a sworn statement or statutory declaration.
Clause 50(2) inserts new section 207(4A) into the EastLink
Project Act 2004.
New section 207(4A) provides that the Freeway Corporation can
request the enforcement agency to send a notice to the operator of
a vehicle of the requirement to be registered to drive in a toll
zone if it believes the vehicle has been driven in a toll zone
without the required registration.
Clause 50(3) repeals section 207(6) of the EastLink Project
Act 2004. New section 197AA will provide for the authorisation
of a person to carry out functions under Part 9, superseding
section 207(6), which currently provides for "authorised persons"
in relation to section 207.
Clause 51 inserts a new section 207A into the EastLink Project Act 2004.
New section 207A(1) provides that the enforcement agency may
send a notice of the requirement to be registered to travel in a toll
zone to the operator of a vehicle if requested to do so by the
Freeway Corporation under new section 207(4A). The request
must be sent by post.
New section 207A(2) provides that criminal proceedings against
an operator relating to the non-registration of a vehicle cannot be
commenced if a dispute resolution process under an on-going
registration agreement is in progress.
41
Clause 52 inserts a new subsection (1B) into section 210 of the EastLink
Project Act 2004. New section 210(1B) provides that an
infringement notice may be served by sending the notice by post
and sets out who an infringement notice referred to in
subsection (1) may be served on.
Clause 53 substitutes the set amounts for the infringement penalties
contained in sections 212(1) and 212(2) of the EastLink Project
Act 2004 with penalty units. The amount of the penalty will
therefore be indexed.
Clause 54 substitutes text in section 215 to provide that if an infringement
penalty is paid on time or approval for late payment is accepted
under section 213, any debt that arose as a result of a person
driving in the toll zone on the day of the offence in the vehicle
that was the subject of the offence is extinguished.
Clause 55 substitutes section 219 of the EastLink Project Act 2004 with a
new section 219, consistent with the change from "owner onus"
to "operator onus".
Clause 56 inserts a new section 219A that provides for an extension of time
of 28 days for dealing with an infringement notice in certain
circumstances.
New section 219A(1) provides that a person may apply for an
extension of time to deal with an infringement notice if the
person to whom the notice relates has not been served personally
with the notice and is not aware that that infringement notice had
been issued. The application must be made to the infringements
registrar or a registrar of the Children's Court.
New section 219A(2) sets out particulars of the application
process, specifically that the application must be filed with the
registrar within 14 days of the person becoming aware of the
infringement notice and must contain a sworn statement
specifying the grounds on which the extension is sought.
New section 219A(3) sets out the process that the infringements
registrar must follow if an application for an extension is made to
the infringements registrar under new section 219A(1).
An application for an extension of time made to an infringements
registrar is heard before a magistrate in the Magistrates' Court.
New section 219A(4) provides that the Magistrates' Court or a
registrar of the Children's Court may only grant an extension of
time if they are satisfied that the person did not know more than
14 days before making the application for an extension of time
that the infringement notice had been issued.
42
New section 219A(5) sets out what happens to the infringement
notice if an extension of time is granted. Essentially the
infringement notice remains on foot (unless it has been
withdrawn) irrespective of what next steps were initiated in the
infringement process under the Infringements Act 2006 or
Schedule 3 to the Children, Youth and Families Act 2005.
The extension of time effectively extends the operation of the
infringement notice under the same conditions for the additional
28 days.
If an enforcement order had been made in respect of the
infringement notice before the extension of time was granted and
the person did not take a "relevant action" within the 28 day
extension period, the infringement notice will cease to have
effect at the end of the 28 day period and the enforcement order
will resume.
If a relevant action specified in section 219A(6) is taken within
the extended period, any infringement penalty or part of an
infringement penalty paid must be refunded.
The taking of a relevant action will also result in the
discontinuance of any procedures being used for the enforcement
of the infringement penalty, and any enforcement order made or
warrant issued will cease to have effect.
New section 219A(6) sets out what action constitutes a relevant
action for the purposes of new section 219A. It includes payment
of the penalty and electing to have the matter heard by a court.
New section 219A(7) provides that if an extension of time has
been granted, an infringement notice may be withdrawn under
section 18 of the Infringements Act 2006 even though the
infringement penalty has been lodged or registered.
New section 219A(9) provides that the 28 day extension period is
suspended or stayed in the circumstances prescribed. No steps
can be taken to enforce an infringement notice whilst it is
suspended. Essentially, the extension period is suspended until
an application for internal review is determined or an application
for a payment plan under section 46 of the Infringements
Act 2006 has been resolved.
Clause 57 inserts into the heading of section 220 of the EastLink Project
Act 2004 and in section 220 "in a toll zone" directly after
"EastLink". This clarifies that proof is required that the vehicle
was driven in a toll zone on EastLink.
43
Clause 58 amends section 221 of the EastLink Project Act 2004 to align it
with the "operator onus" scheme.
Clause 58(1) substitutes "owner" for "operator" in section 221(2).
Clause 58(2) substitutes text in paragraphs (a) and (b) of
section 221(4) consistent with the introduction of the operator
onus scheme.
Clause 59 inserts a new section 221A into the EastLink Project Act 2004,
which provides that the matters contained in a certificate issued
by an enforcement agency are admissible as evidence in any legal
proceeding and will be taken to be proven unless evidence to the
contrary is submitted. The certificate must be in the form
prescribed in the regulations.
Clause 60 inserts into section 222 of the EastLink Project Act 2004
additional matters that, if certified by the Freeway Corporation in
the form of a prescribed certificate, are admissible in evidence in
any proceedings and, in the absence of evidence to the contrary,
are proof of the matters stated in the certificate. The two new
matters concern the new registration process to be introduced
under new section 205.
Clause 61 inserts after section 258(1)(f) of the EastLink Project Act 2004
new paragraph (fa), which provides an additional purpose for
which regulations can be made, that is, to allow the Freeway
Corporation to exempt vehicles from the requirement to be
registered.
PART 5--AMENDMENT OF MELBOURNE CITY LINK
ACT 1995
Part 5 of the Bill replaces the "owner onus" system with the "operator onus"
system and thus brings the Melbourne City Link Act 1995 system in
relation to toll invoices into line with the system applicable to camera and
parking offences under the Road Safety Act 1986, where the identity of the
offender is not established at the time the offence is detected.
The "operator onus" system provides for a chain of nominations of persons
who had "possession or control" of a vehicle detected using a tollway.
Responsibility for the offence rests with the operator or the last person
nominated who is unable or unwilling to nominate anyone else.
The current system is based on the nomination of "drivers" only.
This approach is of limited value if the vehicle has passed from person to
person several times before the offence was committed. In such situations,
the vehicle's operator may have no knowledge of the identity of the driver.
Further, the existing system is of limited utility where companies or other
organisations are links in the "chain" of control over the vehicle.
44
For example, if a vehicle is leased to a company, the registered operator
cannot nominate the company because a company cannot be the driver.
Part 5 also makes some minor amendments to provisions to ensure
consistency within the Melbourne City Link Act 1995 and with related
provisions in the Road Safety Act 1986 and the EastLink Project Act 2004.
Clause 62 (a) inserts a number of new definitions into section 69 of the
Melbourne City Link Act 1995 to support the operator onus
provisions. The new terms establish a mechanism for
ascertaining the identity of the person who had possession or
control of a vehicle when an offence was committed.
The key definitions are as follows--
· authorised person means a person authorised by the
relevant corporation in writing under new section 69B
to carry out functions under Part 4 of the Melbourne
City Link Act 1995. The role of an authorised person
includes the assessment of a "known user statement"
and "sold vehicle statement" under section 72.
· corresponding body has the same meaning as in
section 84BB of the Road Safety Act 1986. It refers to
bodies that perform functions in relation to the
registration of motor vehicles in other Australian
jurisdictions. The records of VicRoads and
corresponding bodies may be used to identify the person
generally responsible for the operation of a vehicle or
the number plates displayed on a vehicle.
· corresponding law refers to a law of the
Commonwealth or one of the other States or Territories
that correspond to Division 2 of Part 2 of the Road
Safety Act 1986, which relates to the registration of
motor vehicles.
· effective is used to refer to an "illegal user statement", a
"known user statement" or a "sold vehicle statement"
that has been accepted by an authorised person under
section 72 of the Melbourne City Link Act 1995.
· An illegal user statement is one of the three types of
statement that a person to whom a request for payment
has been made may make to avoid liability. An illegal
user statement is a statement that the relevant motor
vehicle, or the number plates displayed on it, were
45
stolen at the time of the alleged offence, and which
gives reasons for that belief.
· A known user statement is one of the three types of
statement that a person may make to avoid liability for
an alleged operator onus offence. The essence of a
known user statement is that the person making the
statement denies that they committed the offence and
provides sufficient information to identify and locate the
person last known to have had possession or control of
the relevant vehicle.
A statement will be sufficient for this purpose if it
contains certain identifying information, described in
the new section 72(3A). However, an authorised person
may accept a statement that does not contain all of this
information if they believe that the statement may be
sufficient to identify and locate the person nominated.
· A nomination rejection statement is a statement that a
person may make to avoid liability for an alleged
operator onus offence. A nomination rejection
statement may be made by a person who has been
nominated by somebody else (in a "known user
statement" or "sold vehicle statement") as having
possession or control of the vehicle prior to the relevant
offence. To be effective, a nomination rejection
statement must establish that the person had not
permanently acquired, or had not taken possession or
control of, the vehicle as alleged and must give reasons.
· The term operator refers to a person who, according to
registration records maintained by VicRoads (or
corresponding bodies in other Australian jurisdictions),
has responsibility for the operation of a motor vehicle or
for number plates displayed on a vehicle. The term
covers--
· The registered operator of a motor vehicle or
equivalent under interstate registration.
Note the registered operator is the person who
has accepted responsibility for and is registered
as the vehicle's operator. The registered operator
is not necessarily the owner of the vehicle.
Registration as operator is not evidence of
46
ownership--see section 9B of the Road Safety
Act 1986.
· If there has been a notice of transfer, the person
who appears to be responsible according to the
registration records of VicRoads or a
corresponding interstate body.
· If the vehicle is not currently registered, the
person who appears to be responsible from the
relevant vehicle registration records. For
example, if registration had not been renewed at
the time of an offence, the person who was the
registered operator when the vehicle was last
registered would be an operator for the purposes
of the definition.
· The person responsible for the vehicle to which
the registration number displayed on the vehicle
was last assigned, or who is recorded as being
entitled, or last entitled, to use or possess that
number plate.
It sometimes happens that a vehicle-related
offence is detected but the plates displayed on
the vehicle are not currently assigned to any
registered vehicle. This can happen where the
plates were last assigned to a vehicle that is no
longer registered, the plates were not returned to
the registration authority and are later displayed
on another vehicle. It can also occur when
personalised plates are purchased without the
number being assigned to a registered vehicle,
and the plates are then attached to a vehicle.
In this situation, the person to whom the plates
where last assigned may be treated as the
operator.
· The person responsible for "trade plates"
displayed on a vehicle.
· The term registered operator has the same meaning as
in section 3(1) of the Road Safety Act 1986, being the
person recorded on the register as the person responsible
for the vehicle.
47
· The words responsible person refer to the person who is
taken to be responsible for committing the offence at a
particular time under the operator onus principles.
A responsible person may transfer responsibility to
another person by identifying them as the responsible
person through a "sold vehicle statement" or a "known
user statement", or transfer responsibility back to the
person who nominated them through a nomination
rejection statement.
· Sold vehicle statement refers to one of the three types of
statement that a person may make to avoid liability.
The essence of a sold vehicle statement is that the
person making the statement denies that they committed
the offence on the basis that the vehicle had been
permanently disposed of to another person before the
offence, and provides sufficient information to identify
and locate the person nominated.
Even though the statement is called a sold vehicle
statement, it is intended to be used in situations where,
prior to the offence, the relevant vehicle had been
disposed of permanently, whether by way of sale or by
other means.
· A tolling nomination statement refers to a tolling
nomination statement under section 84BB of the Road
Safety Act 1986. A tolling nomination statement is a
statement made by a person authorised to carry out
tolling enforcement functions in relation to EastLink or
City Link which effectively identifies the responsible
person in relation to a tolling offence.
Clause 62(b) repeals the definition of owner in section 69 of the
Melbourne City Link Act 1995 consequential upon the
introduction of the new definition of operator and making the
operator the person responsible for the vehicle at the time of an
offence.
Clause 63 inserts a new section 69B into the Melbourne City Link
Act 1995, which gives the relevant corporation the power to
authorise a person to carry out functions under Part 4.
The functions of authorised persons include determining if the
information contained in a known user statement or a sold
vehicle statement is sufficient for it to be effective to pass
liability for a toll invoice under section 72.
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Clause 64 deals with liability to pay toll and administration fees.
Clause 64(1) substitutes "owner" with "operator" in section 72(2)
of the Melbourne City Link Act 1995 thus deeming the operator
of a vehicle to be the driver of that vehicle at the time it was
driven in a toll zone.
Clause 64(2) substitutes for sections 72(3) and 72(4) of the
Melbourne City Link Act 1995 new subsections (3), (3A), (3B),
(3C), (3D) and (4).
New section 72(3) provides that the operator will not be liable to
pay the toll charge and the relevant toll administration fee under
subsection (2) if the operator makes an effective illegal user
statement, known user statement or sold vehicle statement within
28 days after being notified of the non-payment of the toll or
administration fee.
New section 72(3A) sets out the information that needs to be
included in a known user statement or a sold vehicle statement
identifying a person for the statement to be effective.
A statement will also need to include any information that may
be required by the regulations.
The purpose of these statements is to transfer liability to another
person who was in possession or control of the relevant motor
vehicle at the time of it being used on a tollway. The person
making the nomination must therefore provide information
sufficient to enable the responsible person to be identified and
located for the purposes of enforcement action. However,
inclusion of this information does not automatically mean that the
statement is an effective statement. The effectiveness of a
statement is determined by an authorised person.
New section 72(3B) provides that if all of the information
required under subsection (3A) is included in a known user
statement or a sold vehicle statement it may be accepted by an
authorised person as being effective to pass liability for a toll
invoice.
New section 72(3C) provides that if the authorised person is
satisfied that either a known user statement or a sold vehicle
statement contains sufficient information to identify and locate
the nominated person, the authorised person may accept the
statement as an effective statement even if it does not contain all
of the information specified in subsection (3A).
Under new section 72(3D), the authorised person may accept an
illegal user statement as effective if satisfied about the matters set
out in the statement and any reasons given.
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New section 72(4) is an evidentiary provision that provides that
in toll recovery proceedings an effective statement that is a
known user statement or a sold vehicle statement is evidence that
the person named in the statement was driving at the relevant
time.
Clause 65 inserts new sections 72AA and 72AB into the Melbourne City
Link Act 1995 after section 72.
New section 72AA(1) allows an authorised person to cancel an
acceptance of a known user statement or sold vehicle statement if
a person nominated as the responsible person provides a
nomination rejection statement and the authorised person is
satisfied in regard to the matters in the statement that the
nomination was incorrect.
Under new section 72AA(2), if a statement is cancelled under
subsection (1), then the statement ceases to be effective for the
purposes of Part 4 of the Melbourne City Link Act 1995 and the
person who made the cancelled statement again becomes the
"responsible person" in respect of the offence and is liable to be
prosecuted.
New section 72AB makes it an offence for a person to knowingly
provide false or misleading information to an authorised person
in an illegal user statement, a known user statement, a sold
vehicle statement or a nomination rejection statement.
The penalty for this offence will be a fine of up to 60 penalty
units.
Under the current "owner onus" system, a nomination must be
supported by a sworn statement or a statutory declaration so that
a false statement makes the person liable to prosecution for the
indictable offence of perjury. The proposed new offence will be
a summary offence. The nature of the offence and available
penalty is consistent with the penalties for false statements under
the Infringements Act 2006.
Clause 66 makes various amendments to section 72B(1) of the Melbourne
City Link Act 1995 consistent with the introduction of the
operator onus scheme.
Clause 67 changes the penalty for the offence in section 73(1) of the
Melbourne City Link Act 1995 from 5 penalty units to
10 penalty units.
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Clause 68 amends section 77 of the Melbourne City Link Act 1995
consequential upon the introduction of the "operator onus"
scheme.
Clause 68(1) substitutes "an authorised person" for "a person
authorised by the relevant corporation for the purposes of this
section" in section 77(1) of the Melbourne City Link Act 1995.
Section 69A gives the relevant corporation the power to authorise
a person to carry out functions under Part 4. Clause 68(2)
substitutes a new section 77(1)(b)(ii) which provides that an
infringement notice must be served on the operator of the vehicle
or the person nominated in a tolling nomination statement, rather
than an owner or a person named in a sworn statement or
statutory declaration as is currently the case.
Clause 68(3) makes the same amendment to 77(1A) as
clause 68(1) makes to section 77(1). In addition, it substitutes
"operator" for "owner" in section 77(1A).
Clause 69 amends sections 78(1) and 78(1A) of the Melbourne City Link
Act 1995 consistent with the introduction of the "operator onus"
scheme.
Clause 69(1) substitutes "an authorised person" for "a person
authorised by the relevant corporation for the purposes of this
section" in section 78(1) of the Melbourne City Link Act 1995.
This is consistent with the introduction of new section 69A,
which gives the relevant corporation the power to authorise a
person to carry out functions under Part 4.
Clause 69(2) makes the same amendment to section 78(1A) as
clause 69(1) makes to section 78(1). In addition, it substitutes
"operator" for "owner" in section 78(1A).
Clause 70 substitutes section 80(2A)(b) of the Melbourne City Link
Act 1995 with a new section that ensure that an infringement
notice is posted to the operator or a person nominated in a tolling
nomination statement, not an owner or a person named in a
sworn statement or statutory declaration as is currently the case.
This amendment is consistent with the introduction of the
"operator onus" scheme.
Clause 71 amends section 82 of the Melbourne City Link Act 1995.
Clause 71(1)(a) amends section 82(1) to ensure consistency with
the language of section 82(2) and reflect the requirement under
section 81(b) that an infringement notice must state the
"prescribed penalty" for the offence.
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Clause 71(1)(b) substitutes "$100" with "1 penalty unit".
The effect of the change is that in future the fine will be indexed.
This will retain the relative value of the penalty for deterrence
purposes. The original sum was fixed to correspond with on-the-
spot fines for public transport fare evasion. Public transport fines
have now been indexed. Thus, the amendment also maintains the
principle of parity between tolling and fare evasion penalties.
Clause 71(2) substitutes "$2000" with "20 penalty units".
The effect of the change is that the maximum fine will be
indexed. This will retain the relative value of the penalty for
deterrence purposes.
Clause 72 amends section 89 of the Melbourne City Link Act 1995 to
align it with the operator onus scheme.
Clause 72(1) substitutes "owner" for "operator in section 89(2).
Clause 72(2) substitutes text in section 89(3) consistent with the
introduction of the "operator onus" scheme. Corresponding law
has the same meaning as in section 84BB of the Road Safety
Act 1986.
Clause 72(3) substitutes text in section 89(3B) consistent with the
introduction of the operator onus scheme.
Clause 73 inserts a new section 125 into the Melbourne City Link
Act 1995 that deals with the transition from the "owner onus"
scheme to the new "operator onus" scheme.
New section 125(1) provides that the operator onus scheme will
only apply to offences committed on and after the date that the
new scheme has commenced. Part 5 will commence on a day to
be proclaimed or if not proclaimed by 1 September 2008, on that
day.
New section 125(2) provides that if it is unclear exactly what date
an offence occurred on, and the approximate time it is believed to
have occurred commences before and finishes after the date the
new provisions commence, it will be taken to have occurred prior
to the new provisions commencing.
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PART 6--AMENDMENT OF ROAD MANAGEMENT
ACT 2004
The main purposes of Part 6 are--
· to establish a new set of arrangements for the funding and
management of street lighting on arterial roads, with the cost
being shared between the State (through VicRoads) and local
governments;
· to make further provision regarding road management
functions.
Clause 74 amends the definition of road-related infrastructure in the Road
Management Act 2004 to include street lights.
Clause 75 amends section 35(3) of the Road Management Act 2004 to
substitute Schedule '7A' for Schedule 7. This is to indicate that
the provisions of the proposed new Schedule 7A, like
Schedules 1 to 7, does not limit the functions or power conferred
on the road authority.
Clause 76 inserts a new paragraph (ca) into section 34(1) of the Road
Management Act 2004 to provide that a road authority's general
functions also include designing, constructing, inspecting,
repairing and maintaining roads and road infrastructure.
Clause 77 inserts a new section 46A into the Road Management Act 2004
to give effect to new Schedule 7A.
Clause 78 substitutes the phrase "the performance or non-performance of a
road management function in respect of" in the place of "a failure
to maintain" in sections 105(1) and 105(2) of the Road
Management Act 2004. This clarifies that the defence of
reasonable care is available to a road authority, infrastructure
manager or works manager in respect of all of their road
management functions, not just in relation to an allegation that
they have not properly carried out their maintenance
responsibilities. Note that under the existing section 105(3), a
road authority is taken to have established this defence if it is
able to prove that it complied with its road management plan.
Therefore this amendment has the effect that compliance with a
road management plan will be a defence to civil actions not only
in relation to the maintenance of a road, but also in relation to the
performance of other road management functions, such as design,
construction, inspection and traffic management functions.
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Clause 79 inserts a new Schedule 7A into the Road Management Act 2004
which deals with responsibility for street lighting. The new
Schedule 7A implements an arrangement reached between
VicRoads and the Municipal Association of Victoria ("MAV")
in relation to sharing cost and responsibility for street lighting.
Clause 1 provides specific definitions of the terms operating
costs and relevant municipal council in the context of the new
street lighting regime.
Clause 2 provides that each responsible road authority is to have
the discretion to have additional street lighting installed if it
considers it appropriate in relation to the road management
functions for which it is responsible under the Road
Management Act 2004. This is intended to allow each
responsible road authority to be free to determine for itself as a
matter of policy whether it considers that additional lighting is
necessary or desirable.
Clause 3(1) allocates responsibility as between road authorities
for payment of the installation and operating costs of street
lighting on roads other than arterial roads.
Clause 3(2) apportions responsibility for the payment of
installation and operating costs for street lighting on arterial roads
that are not covered by clause 3(1) between VicRoads and the
relevant municipal council.
Clause 4 sets out transitional arrangements for dealing with street
lighting schemes approved before the new provisions came into
operation.
Clause 4(1) ensures that the definition of Street Lighting
Committee remains in place following the repeal of Schedule 5 to
the Transport Act 1983. The Street Lighting Committee was
the body responsible for approving street lighting schemes under
the current Transport Act 1983 provisions.
Clause 4(2) provides for cost allocations that are to apply for
specified periods from 1 January 2008.
Clause 4(3) sets out transitional arrangements for the
apportionment of responsibility as between VicRoads and
councils for ongoing operating costs of existing street lighting on
arterial roads (other than service roads) from 1 January 2008.
Arterial roads are administered by VicRoads for the purposes of
managing transport on routes of key significance at a
metropolitan or State-wide level. However, street lighting on
these roads also serves a local community purpose for residents
and businesses located on those roads. The division of
54
responsibility for the cost of street lighting has not been altered
for many decades, and is based on arrangements for which there
is no continuing rationale.
Currently, clause 18 of Schedule 5 to the Transport Act 1983
provides that, if street lighting on an arterial road had been
approved, then the costs of operating that lighting are to be borne
two-thirds by VicRoads and one-third by the relevant council.
This means that, in relation to lighting not approved by the Street
Lighting Committee, the operating cost is borne entirely by the
road authority (VicRoads or council) which installed the lighting
in question. As a result, there are three current cost allocation
arrangements in place for lighting on arterial roads, depending
which authority initiated the installation of the lighting and
whether it had, at some stage in the past, been approved by the
Street Lighting Committee for cost-sharing purposes.
Transitional arrangements have been developed for each of the
current cost allocation arrangements and these will be phased in
over six years, beginning on 1 January 2008.
Clause 4(4) is a deeming provision to clarify the circumstances in
which particular street lighting will be considered to have been
approved by the Street Lighting Committee.
Clause 4(5) sets out an expiry date of 1 January 2013 for the
transitional arrangements.
PART 7--AMENDMENT OF TRANSPORT ACT 1983
Clause 80 substitutes a new section 32(2) of the Transport Act 1983 to
clarify the persons to which VicRoads may delegate any of its
powers or duties. The effect of the amendment is to enable
VicRoads to make a delegation not only to an officer of
VicRoads but also to an employee in the Department of
Infrastructure.
Clause 81 repeals section 55 of the Transport Act 1983, which is
superseded by new street lighting provisions to be inserted into
the Road Management Act 2004 by this Bill.
Clause 82 makes amendments to the Transport Act 1983 which confirm
that VicRoads, not the Director of Public Transport in the
Department of Infrastructure, is the licensing authority in relation
to tow trucks.
Clause 83 makes amendments to a heading in the Transport Act 1983
consequential on the amendments made by clause 82, which
confirm that VicRoads is the licensing authority in relation to tow
trucks.
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Clause 84 makes amendments to the Transport Act 1983 which confirm
that VicRoads, not the Secretary to the Department of
Infrastructure, is responsible for administering the demerits
register in relation to tow truck licences.
Clause 85 repeals Schedule 5 to the Transport Act 1983, which deals with
"Provisions with Respect to Roads". These provisions are to be
superseded by new street lighting provisions to be inserted into
the Road Management Act 2004 by this Bill.
PART 8--REPEAL OF AMENDING ACT
Clause 86 provides for the automatic repeal of this amending Act on
1 October 2009. 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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