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Road Management Amendment
(Peninsula Link) Bill 2012
Introduction Print
EXPLANATORY MEMORANDUM
General
The main purpose of the Road Management Amendment (Peninsula Link)
Bill 2012 (the Bill) is to amend the Road Management Act 2004 and the
Accident Towing Services Act 2007 to facilitate the operation and
maintenance of the Peninsula Link Freeway.
Peninsula Link is a 27 kilometre freeway which is being delivered as a public
private partnership governed by a project deed between the State of Victoria
and Southern Way Pty Limited (Southern Way). Under the terms of the
project deed, Southern Way is required to operate and maintain the freeway
for up to 25 years after construction is complete.
The Bill facilitates the operation and maintenance of the Peninsula Link
Freeway by Southern Way as declared to be the "Peninsula Link Freeway
Corporation" (PLFC) in the Bill, by--
appointing the PLFC for specified purposes as the coordinating
road authority under the Road Management Act 2004;
appointing the PLFC as the responsible road authority under
the Road Management Act 2004;
providing for the PLFC to exercise some powers of a State
road authority under the Road Management Act 2004;
enabling the PLFC to engage towing operators for specified
purposes under the Accident Towing Services Act 2007; and
making other related minor amendments to the Road
Management Act 2004 and the Accident Towing Services
Act 2007.
571314 1 BILL LA INTRODUCTION 10/10/2012
Clause Notes
PART 1--PRELIMINARY
Clause 1 sets out the main purpose of the Bill, which is to facilitate the
operation and maintenance of the Peninsula Link Freeway by
amending the Road Management Act 2004 and the Accident
Towing Services Act 2007 and for other purposes.
Clause 2 provides for the commencement of the Bill.
Subclause (1) provides that the Act will come into operation on a
day or days to be proclaimed subject to subclause (2).
Subclause (2) provides that if a provision of the Act does not
come into operation before 1 October 2013, it comes into
operation on that day.
PART 2--AMENDMENT OF ROAD MANAGEMENT ACT
2004
Clause 3 inserts new definitions and amends an existing definition in
section 3(1) of the Road Management Act 2004.
Subclause (1) inserts new definitions for the Peninsula Link
Freeway, Peninsula Link Freeway Corporation, Peninsula
Link project area and Peninsula Link Project Deed.
Subclause (2) amends the definition of State road authority to
make it clear that the Peninsula Link Freeway Corporation is
not a State road authority. Under new section 134D(11) inserted
by clause 12, the Peninsula Link Freeway Corporation is able to
exercise some powers of a State road authority in respect of the
Peninsula Link Freeway. The powers are sourced from
Schedule 4 to the Road Management Act 2004.
Clause 4 inserts new subsection (8C) into section 5 of the Road
Management Act 2004. New section 5(8C) provides a
limitation that the Peninsula Link Freeway Corporation must not
exercise any power or carry out any duty under this Act in a
manner that is not consistent with the Peninsula Link Project
Deed.
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Clause 5 amends section 17 of the Road Management Act 2004 which
sets out matters relating to public roads.
Subclause (1) amends section 17(1) to recognise the Peninsula
Link Freeway as a public road. This amendment works with
other amendments in the Bill to clarify that the Peninsula Link is
not to be considered a freeway for which VicRoads is
responsible.
Subclause (2) amends section 17(2) to require the relevant
coordinating road authority for the Peninsula Link Freeway to
register the road on its register of public roads.
Clause 6 amends section 37 of the Road Management Act 2004 which
sets out who are the responsible road authorities for different
classes of roads.
Subclause (1) amends section 37(1) to include a reference to a
new subsection (1B) which clarifies that the responsible road
authorities named in sections 15 and 16 are subject to new
subsection (1B). This amendment works with other amendments
in the Bill to clarify that the Peninsula Link Freeway is not to be
considered a freeway for which VicRoads is responsible.
Subclause (2) inserts a new subsection (1B) to provide that the
Peninsula Link Freeway Corporation is the responsible road
authority for the Peninsula Link Freeway. This amendment
means that the Peninsula Link Freeway Corporation is able to
perform, for instance, road maintenance as required under the
project deed.
Clause 7 inserts new subsection (2B) into section 52 of the Road
Management Act 2004 which sets out matters relating to the
contents of road management plans.
New subsection (2B) provides a limitation on the content of a
road management plan relating to the Peninsula Link Freeway.
A plan under new subsection (2B) must be consistent with the
project deed and must facilitate the performance of obligations
arising under the project deed.
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Clause 8 inserts new subsection (5B) into section 71 of the Road
Management Act 2004 which sets out matters relating to
VicRoads authorised officers.
New subsection (5B) provides that a VicRoads authorised officer
appointed under subsection (1) may exercise the powers of an
authorised officer in respect of the Peninsula Link Freeway as if
VicRoads were the responsible road authority if--
the Peninsula Link Freeway Corporation has so
requested; and
there is a written arrangement in place between
VicRoads and the Peninsula Link Freeway Corporation.
Clause 9 inserts new subsection (3) into section 101 of the Road
Management Act 2004 which requires a court to consider a
number of principles (among other relevant things including the
principles specified in section 83 of the Wrongs Act 1958) in
determining whether a road authority, infrastructure manager or
works manager has a duty of care or has breached a duty of care
in respect of the performance of a road management function.
New subsection (3) provides that subsection (1) applies to the
Peninsula Link Freeway Corporation as if the reference to the
principles specified in section 83 of the Wrongs Act 1958 were
excluded from the considerations set out in section 101.
Clause 10 amends section 112 of the Road Management Act 2004 which
sets out matters relating to the right to recover for damage to a
road. New section 112(3)(bb) provides that no road authority can
recover damages from the Peninsula Link Freeway Corporation
in respect of damage to a road arising because of the operation or
effect of the Peninsula Link Freeway.
Clause 11 inserts new section 133B into the Road Management Act 2004
relating to the making of regulations under that Act in respect of
the Peninsula Link Freeway.
New section 133B provides that regulations, which may be made
under the Road Management Act 2004 in respect of a freeway,
may be made in respect of the Peninsula Link Freeway with the
following modifications--
a reference in section 132 to a road is to be construed as
a reference to the Peninsula Link Freeway;
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a power which may be conferred on VicRoads to
recover damages is to be taken to enable power to be
conferred on the Peninsula Link Freeway Corporation to
recover damages;
a reference to the property of VicRoads is to be
construed as a reference to the property of the Peninsula
Link Freeway Corporation;
a discretionary power which may be conferred on
VicRoads may be conferred on the Peninsula Link
Freeway Corporation.
Clause 12 inserts new sections 134C, 134D and 134E into the Road
Management Act 2004.
New section 134C provides that for the purposes of the new
definition of Peninsula Link Freeway Corporation inserted by
clause 3 of the Bill into the Road Management Act 2004, the
Peninsula Link Freeway Corporation is Southern Way Pty
Limited A.C.N. 136 724 733.
The new section also provides that the person who is, for the time
being, the Peninsula Link Freeway Corporation can agree to the
declaration of another person as the Peninsula Link Freeway
Corporation in its place. The Governor in Council would give
effect to such a change by an Order published in the Government
Gazette. An Order under this new section takes effect on the day
that it is published in the Government Gazette, or if a later day is
specified in the Order, on that later day.
New section 134D details how the Road Management Act 2004
applies in respect of the Peninsula Link Freeway and the
Peninsula Link Freeway Corporation. Specifically, the Road
Management Act 2004 applies in respect of Peninsula Link
Freeway in accordance with this new section and new
section 134E.
New section 134D clarifies that the Peninsula Link Freeway
Corporation is, in respect of the Peninsula Link Freeway, the
coordinating road authority, for specified purposes. The new
section also provides that VicRoads has the powers and functions
of a coordinating road authority in respect of the Peninsula Link
Freeway if so requested by the Peninsula Link Freeway
Corporation subject to new subsection (2) and new section 134E.
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In addition, as the Peninsula Link Freeway Corporation is a
private corporation, it is not permitted to appoint authorised
officers. As a result, the functions and powers of an authorised
officer appointed by VicRoads extend under the Bill in respect of
the Peninsula Link Freeway if so requested by the Peninsula Link
Freeway Corporation in accordance with an arrangement between
the Peninsula Link Freeway Corporation and VicRoads.
New section 134D clarifies the relationship between statutory
powers and the project deed as follows--
a direction to Peninsula Link Freeway Corporation
under section 22 of the Road Management Act 2004
must not be inconsistent with the project deed;
a Code of Practice under section 28 of the Road
Management Act 2004 in its application to Peninsula
Link Freeway Corporation must not be inconsistent with
the project deed;
a determination under section 41 of the Road
Management Act 2004 must not be inconsistent with
the project deed;
section 66 of the Road Management Act 2004 does not
apply to the Peninsula Link Freeway if the placing of
the structure, device, hoarding, advertisement, sign or
bill is permitted under the project deed.
Section 134D also sets out how many provisions under the Road
Management Act 2004 apply, including that--
section 96 of the Road Management Act 2004 applies
to the Peninsula Link Freeway as if VicRoads were the
relevant road authority because the Peninsula Link
Freeway Corporation is not permitted to institute
proceeding for offences under the Road Management
Act 2004 or the regulations;
sections 11, 12, 13, 14, 15, 18, 36, 38(1)(d), 39, 105(3),
118, 119, 120, 123, and 127 and clauses 2 and 3 of
Schedule 2 and clauses 1, 2, 3, 5, 8, 9, 11 and 12 of
Schedule 5 to the Road Management Act 2004 do not
apply to the Peninsula Link Freeway or the Peninsula
Link Freeway Corporation as these largely relate to the
ongoing responsibilities of VicRoads;
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clauses 1, 4, 5, 6, 7, 9, 10, 11, 12, 13 and 14 of
Schedule 4 to the Road Management Act 2004 apply
to the Peninsula Link Freeway Corporation in respect of
the Peninsula Link Freeway as if the Peninsula Link
Freeway Corporation were the responsible State road
authority, to enable the Peninsula Link Freeway
Corporation to operate and maintain the Peninsula Link
Freeway in accordance with the project deed;
clause 10(1) of Schedule 5 to the Road Management
Act 2004 applies to the Peninsula Link Freeway as if
the reference to infrastructure did not include road-
related infrastructure installed in accordance with the
project deed;
the power to--
cause to be removed, destroyed or blocked a
means of access to a freeway constructed,
formed or laid out without the consent of the
road authority; and
cause to be erected and maintained fences, posts
or other obstructions along a freeway or along or
across an entrance, approach or means of access
to a freeway for the purpose of preventing access
to a freeway--
which is conferred on VicRoads by the Road
Management Act 2004 in relation to a freeway, is
conferred on the Peninsula Link Freeway Corporation in
respect of the Peninsula Link Freeway as part of its
limited coordinating road authority role;
New section 134E details how Schedule 7 to the Road
Management Act 2004 applies in respect of the Peninsula Link
Freeway. Specifically, the exercise of infrastructure and works
on roads powers by the Peninsula Link Freeway Corporation
under Schedule 7 to the Road Management Act 2004 should be
read with the following modifications--
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clause 8 of Schedule 7 to the Road Management Act
2004 applies as if after subclause (4) there were inserted
new subclauses (5) and (6) which provide--
(5) Subclause (1) does not apply to the carrying
out of routine maintenance and inspection
work.
(6) For the purposes of this clause, work is not
routine maintenance and inspection work if it
requires traffic management measures in order
to be conducted safely.
clause 14 of Schedule 7 to the Road Management Act
2004 applies as if after subclause (1) there were inserted
a new subclause (1A) which provides--
(1A) The Peninsula Link Freeway Corporation must
have regard to the principles specified in this
clause in the provision of road infrastructure.
clause 14 of Schedule 7 to the Road Management Act
2004 applies as if for subclause (2) there were
substituted--
(2) The Peninsula Link Freeway must be managed
as far as is reasonable practicable in such a way
as to minimise any adverse effects on--
(a) the use of the Peninsula Link Freeway
by members of the public; and
(b) the provisions of services by a utility
or a provider of public transport.
clause 14(3) of Schedule 7 to the Road Management
Act 2004 applies as if after paragraph (g) there were
inserted new paragraphs which provide--
(h) minimise any damage to non-road
infrastructure;
(i) minimise any risk to the property of utilities or
providers of public transport;
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(j) ensure that non-road infrastructure is reinstated
as nearly as practicable to the condition
existing before the works necessary for the
provision of the road infrastructure were
conducted.
clause 16(5) of Schedule 7 to the Road Management
Act 2004 applies as if the reference to the works and
infrastructure management principles were a reference
to clause 14(2).
clause 16 of Schedule 7 to the Road Management Act
2004 applies as if after subclause (8) there were inserted
a new subclause (8A) which provides--
(8A) Conditions to which a consent is given under
this clause must not require an applicant to
compensate the Peninsula Link Freeway
Corporation for economic loss or to pay any
form of penalty.
clause 17 of Schedule 7 to the Road Management Act
2004 applies as if after subclause (4) there were inserted
a new subclause (4A) which provides--
(4A) A Code of Practice applying to works on the
Peninsula Link Freeway must not be
inconsistent with the Peninsula Link Project
Deed.
PART 3--AMENDMENT OF ACCIDENT TOWING SERVICES
ACT 2007
Clause 13 inserts new definitions and amends a definition in section 3(1) of
the Accident Towing Services Act 2007.
Subclause (1) inserts the new definition of Peninsula Link
Freeway into section 3(1) of the Accident Towing Services Act
2007 which has the same meaning as the term inserted by
clause 3(1) of the Bill into the Road Management Act 2004.
Similarly, subclause (1) inserts the new definition of Peninsula
Link Freeway Corporation into section 3(1) of the Accident
Towing Services Act 2007 which has the same meaning as the
term inserted by clause 3(1) of the Bill into the Road
Management Act 2004.
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Subclause (2) amends the definition of designated road to
include the Peninsula Link Freeway. The defined term sets out a
number of roads on which a tow truck licence holder may operate
a specified tow truck.
Clause 14 amends section 42(3)(b) of the Accident Towing Services Act
2007. Section 42(1) and (2) of the Accident Towing Services
Act 2007 create allocation offences where a tow truck attends a
road accident scene without the authority of the relevant
allocation body in a controlled area. The amendment to section
42(3)(b) made by this Bill will provide that a tow truck driver
does not commit an allocation offence where the Peninsula Link
Freeway Corporation has authorised the driver to attend road
accident scenes on the Peninsula Link Freeway, a designated
road.
PART 4--REPEAL OF AMENDING ACT
Clause 15 provides for the automatic repeal of this amending Act on
1 October 2014.
The repeal of this Act does not affect the continuing operation of
the amendments made by this Act (see section 15(1) of the
Interpretation of Legislation Act 1984).
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