ROAD MANAGEMENT BILL 2004 Explanatory Memoranda

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ROAD MANAGEMENT BILL 2004

Road Management Bill Victorian Legislation and Parliamentary Documents Circulation Print EXPLANATORY MEMORANDUM General The Road Management Bill ("the Bill") will establish a coordinated management system for the road network, facilitating coordination of the various uses of road reserves. It is a new public general Act, to operate consistently with other statutes such as the Road Safety Act 1986, the Transport Act 1983 and the Local Government Act 1989. The Bill-- · establishes a new statutory framework for the management of the road network which facilitates the coordination of the various uses of road reserves for roadways, pathways, infrastructure and similar purposes; · sets out rights of road users and amends the Road Safety Act 1986 to provide a statement of obligations of road users (which will be relevant to negligence actions); · establishes the general principles which apply to road management; · provides for the role, functions and powers of a road authority; · provides for the making of Codes of Practice to provide practical guidance in relation to road management; · facilitates the making of road management plans as part of the management system to be implemented by a road authority in the performance of road management functions; · enables the declaration and discontinuance of roads; · provides a new process for the declaration and classification of roads and the re-allocation of management responsibility for roads and parts of roads; 1 551064 BILL LA CIRCULATION 5/3/2004

· provides for a road authority to keep a register of public roads in respect of which the road authority is the coordinating road authority; Victorian Legislation and Parliamentary Documents · provides for the construction, inspection, maintenance and repair of public roads; · sets out the road management functions of road authorities; · sets out the road management functions of infrastructure managers and works managers in providing infrastructure or conducting works; · provides for issues relating to civil liability arising out of road management; · provides for mechanisms to enforce and administer provisions of the Act; · makes related amendments to the Transport Act 1983, the Road Safety Act 1986, the Local Government Act 1989 and other Acts. There have been a number of reports and consultation processes that have been taken into account in the development of this legislation. They include-- · "Management of Roads by Local Government" a report by the Auditor-General to the Parliament of Victoria, June 2002, · The Final Report of the Review of the Law of Negligence ("Ipp Report") of October 2002, · "Road Standards and the Legal Duties of Road Authorities", a discussion paper published by the Department of Infrastructure, Victoria, June 2002. · "Arrangements for Management of Arterial Roads", a discussion paper distributed by the Municipal Association of Victoria and VicRoads to Victorian municipalities, July 2002. · "Outline of a Proposed Road Management Bill", a position paper issued for public consultation by VicRoads and the Department for Victorian Communities, April 2003. · "Proposals for a Road Management Bill", an exposure draft issued for public consultation by VicRoads and the Department for Victorian Communities, September 2003. 2

Structure The Bill comprises eight Parts and ten Schedules, as follows-- Victorian Legislation and Parliamentary Documents Part 1 deals with preliminary matters, such as definitions, interpretation and commencement arrangements. It also sets out the primary object of the Act, which is to establish a coordinated management system that will promote safe and efficient roads at State and local levels and the responsible use of road reserves for other legitimate purposes. Part 2 sets out certain rights of road users, including the public's right of passage along public roads and the right of access to roads of adjoining landholders. Part 2 also confirms the common law principle that highways are dedicated to public use in perpetuity. These rights may only be extinguished under legislation. Part 3 deals with the road system, in particular, the legal process for creating or discontinuing roads that the public has a right to use, and the identification of those roads that are required for general public use and which road authorities must actively manage (referred to as "public roads"). Division 1 deals with the declaration, naming and discontinuance of roads generally. In particular, it enables VicRoads to declare roads to be freeways or arterial roads--VicRoads will manage these roads. Division 2 deals with "public roads", which are freeways, arterial roads and other roads that are reasonably required for general public use. The Division requires each road authority to keep a register of the public roads which it administers. Division 3 enables road authorities to transfer functions by arrangement, and also enables the Minister to designate road projects and nominate an agency as project coordinator, which then becomes the road authority for relevant roads. Part 4 deals with the management of roads. Division 1 · Sets out the general object of road management, which is to ensure that a safe and efficient road network is provided for use by members of the public and is available for other appropriate uses. · Sets out works and infrastructure management principles that are to guide the management and coordination of works and infrastructure on roads. 3

· Deals with the development and making of Codes of Practice, which will provide practical guidance for road authorities, infrastructure managers and works managers Victorian Legislation and Parliamentary Documents in the performance of their functions and duties under this legislation. Codes must be developed through a process of public consultation, including consultation with utilities through a special reference panel, and must be made publicly available. Either House of Parliament may disallow Codes. Courts may have regard to Codes of Practice for certain purposes. · Establishes the Utilities' Infrastructure Reference Panel. The panel will advise government on issues affecting the use of road reserves for utility infrastructure, including regulations and Codes of Practice. The Panel will also provide a vehicle for consultation with utilities and community organisations in relation to the use of road reserves. Division 2 sets out the general functions and powers of road authorities. It also allocates responsibilities amongst the various State and local road authorities. In particular, road authorities will have responsibility to-- · provide a network of roads for the use of the community (State-wide or local) that is served by the particular road authority; · manage traffic on those roads in the interests of safety and efficient operation; · coordinate the installation of infrastructure and related works so as to minimise impacts on road safety, traffic, infrastructure and the provision of utility services. Division 2 also sets out the powers of road authorities in carrying out those functions, and in particular-- · Identifies the coordinating road authority and the responsible road authority for specified public roads. · The "coordinating road authority" is the State agency or council that administers a road. Its functions include providing a network of public roads for the community it serves and managing safe and efficient operation of the road system. Coordinating road authorities will also coordinate works on roads in the interests of road safety, 4

traffic management and the minimisation of damage to road and other infrastructure. Victorian Legislation and Parliamentary Documents · "Responsible road authorities" will have operational responsibility for particular roads or parts of roads and road infrastructure. · Sets out the matters to which a road authority must have regard in exercising these powers and functions, including broader government policy and budgetary context. · Enables road authorities to make policies about how these functions are to be exercised (such as the standard of construction or maintenance of a road). Division 3 deals with the construction, inspection, maintenance and repair of public roads. In particular, Division 3-- · Imposes a statutory duty on road authorities to inspect, maintain and repair the public roads assigned to them. · Enables road authorities to set standards for these purposes, such as inspection intervals and the identification and prioritisation of matters for repair or maintenance work, having regard to policy and budgetary considerations. These standards may be set out in road management plans. These policy decisions will set the standard for legal purposes, provided the road authority has not made a decision that no reasonable road authority would have made. · Where no standard has been made, the road authority will be under a duty to maintain the road to a reasonable standard having regard to principles set out in the Bill. These are similar to the common law duties of road authorities set out in the High Court decision of Brodie v Singleton Shire Council [2001] 206 CLR 512. 5

Division 3 also confers specific powers and duties of State road authorities for these purposes, including powers with respect to road construction, repair, traffic management and road property. Victorian Legislation and Parliamentary Documents Municipal councils will continue to exercise powers in relation to such matters under the Local Government Act 1989. The specific powers of State road authorities will include-- · construction, inspection, maintenance and repair of roads; · managing traffic; · powers relating to the protection roads and powers in relation to road hazards caused by adjoining land. Division 3 also deals with the ownership and management of road property. Arterial roads and roads on Crown land will remain as Crown land, although the relevant road authority may manage the land as if it were the owner. Other roads will remain the property of municipal councils. The relevant road authority or utility will own infrastructure on roads, as opposed to the land within the road reserve. The Division also confers power to declare "controlled access roads" and regulate access from adjoining land or roads to such roads, subject to appeals to VCAT. Division 4 deals with the coordination of infrastructure, works and other activities on roads. It imposes certain duties on road authorities, service providers and others that install or maintain infrastructure or carry out works on roads. The key duties are set out in Schedule 7 to the Bill--see below. Road authorities may also require existing infrastructure to be removed or upgraded at its cost for reasons such as road safety. It is intended that the regulations will exempt classes of works from the consent requirement where works of that type do not have significant impacts on road safety, traffic management or existing infrastructure. Division 5 deals with the development and publication of road management plans. Through road management plans, individual road authorities may determine the standards and the policies for managing the public roads under their control. The primary purpose of road management plans is to establish good asset management practices focussed on delivering the optimal outcomes for the available resources and having regard to the policies and priorities determined by accountable bodies. 6

Division 6 deals the levying of development contributions by a State road authority to recover fair and reasonable contributions to the cost of construction of a new public road which will Victorian Legislation and Parliamentary Documents benefit adjacent land, subject to appeal to VCAT. Part 5 deals with the protection of roads. Division 1 includes measures to prevent or minimise safety hazards, prevent interference with or damage to roads and infrastructure. It makes it an offence to interfere with or obstruct a road without legal authority. The Division makes it an offence to carry out works on roads without the consent of the coordinating road authority (unless certain exemptions apply) or to fail to comply with conditions or directions relating to the works. Division 2 makes it an offence to post bills or signs on roads without permission, and confers certain powers on road authorities for their removal. Division 3 deals with the appointment of, and the powers and duties of, officers authorised by road authorities to perform certain functions under this legislation, such as power to issue road management infringements or to enter land. Division 4 deals with enforcement. It deals with the issuing of road management infringement notices and the institution of enforcement proceedings in court. Part 6 deals with civil liability and proceedings relating to road management. Division 1 sets out definitions for the purposes of the Part and provides that the Part is not to be construed as derogating from any duty or liability that a person other than a road authority, infrastructure manager or works manager has under any other Act or at common law. Division 2 deals with negligence claims relating to the performance of road management functions. The Division-- · Sets out the principles for ascertaining whether a road authority has a duty of care and, if so, the standard of care, in respect of the performance of a road management function. These principles are similar to those set out in the High Court decision in Brodie v Singleton Shire Council [2001] 206 CLR 512. 7

· Provides that a road authority is not liable for failure to remove or repair hazards or defects between inspections, unless it was actually aware of the hazard Victorian Legislation and Parliamentary Documents or defect. This does not take away from any liability for failing to inspect at appropriate intervals. · Creates a "policy defence" in relation to road management functions, in line with the recommendations of the Final Report of the Review of the Law of Negligence ("the Ipp Report"). · Deals with the situation where one body had a duty to deal with a hazard and another had a discretionary power to deal with it. · Establishes a defence to a civil action relating to the condition of a road for a road authority (or in the case of infrastructure on a road, the relevant infrastructure manager or works manager) to prove that it had managed the road or infrastructure with reasonable care. · Requires that alleged contributory negligence by road users be assessed against a new set of duties of road users to be inserted into the Road Safety Act 1986. Division 2 is in addition to Part XII of the Wrongs Act 1958. Division 3 deals with other liability issues. In particular, it-- · Provides that the duty of road authorities to maintain and repair roadways or pathways of public roads does not extend to areas that are not public roads nor to roadside areas. · Clarifies that a road authority is not an "occupier" of a road for the purposes of civil liability and provides that a road authority is not required to fence a road. · Establishes a $1000 (CPI indexed) deductible for claims against road authorities for property damage caused by the condition of a road or infrastructure, that is, the claimant pays the first $1000. Division 4 deals with the liability of persons other than road authorities and, in particular-- · Sets out certain duties of owners or occupiers of land adjoining roads. 8

· Enables road authorities to recover the cost of repairing damage to roads caused by excessive traffic or excessive mass. Victorian Legislation and Parliamentary Documents Division 5 requires persons who are involved in accidents and who wish to lodge a claim in relation to road conditions to give prior notice to the road authority within 30 days. This information will enable road authorities to respond to claims and to make repairs where necessary. On receipt of a report, a road authority may prepare a condition report on the road that will be available for the purposes of legal proceedings. The reports will also provide a source of information about road conditions that lead to accidents. Part 7 deals with a range of general matters and machinery provisions, including-- · procedures for the resolution of disputes between road authorities and service providers; · legal proceedings and abolishes or modifies some common law rules relating to highways; · powers to charge fees or enter into agreements for the provision of services; · appeal rights; · regulation making powers; · compensation for loss of access to controlled access roads; · the application of the Act to City Link. Part 8 makes related or consequential amendments to other Acts that deal with the management of roads or the installation and carrying out of utility works on such roads. Part 8 also amends the Road Safety Act 1986 to-- · set out duties of road users, such as duty of vehicle drivers to drive safely having regard to relevant laws and prevailing conditions, and the duties of road users generally to avoid conduct that may endanger the safety or welfare of other road users, to avoid damaging the road and infrastructure on the road and to have regard to certain rights of the community; 9

· require all persons who conduct works on roads to ensure that those works are safe for both road users and those who carry out the works. Among other things, a Victorian Legislation and Parliamentary Documents traffic management plan will be required. It will be an offence to fail to comply with these requirements. Codes of Practice may be made to give practical guidance about the carrying out of such works. Schedules To assist road authorities, infrastructure managers and works managers and other persons who have to administer or operate under this legislation, the key duties and responsibilities have been grouped together into a number of Schedules for ease of reference. Schedule 1 sets out the matters which a road authority must include in its register of public roads and those matters which a road authority may include at its discretion. Public roads are the roads that State and local road authorities will have a duty to maintain and repair. The registers must include details that will enable it to be readily established whether a particular road is registered as a public road, and if so, when and which is the responsible road authority. Schedule 2 sets out specific powers of road authorities to manage access to freeways and "controlled access roads" (declared under clause 42), in the interests of reducing hazards and managing traffic. These powers include making decisions about whether connections (such as driveways) may be made to a controlled access road, and if so, the location and design of the connection. Schedule 3 sets out specific road construction, maintenance and powers of State road authorities. The corresponding powers of municipal councils will continue to be set out in the Local Government Act 1989. Schedule 4 sets out specific traffic management powers of State road authorities. The corresponding powers of municipal councils will continue to be set out in the Local Government Act 1989. Schedule 5 sets out various powers of road authorities in relation to property rights in roads and land under roads. Public highways will continue to be the property of State or local government and will not be subject to adverse possession or creation of private easements. Schedule 6 sets out specific powers of road authorities with respect to protection of roads and adjoining land. 10

Schedule 7 sets out specific duties of works and infrastructure managers in relation to the conduct of works on roads and the installation of non-road infrastructure in road reserves. These requirements Victorian Legislation and Parliamentary Documents include-- · Adhering to basic principles about good road and infrastructure management (these are set out in clause 20 of the Bill); · Using good engineering practice and adhering to industry standards; · When working on roads, managing traffic to minimise disturbance and minimise safety risks; · Cooperating with other infrastructure managers (both road authorities and utilities); · Avoiding unnecessary delay or obstruction to road users and unnecessary interference with other infrastructure; · Maintaining infrastructure to a satisfactory standard; · Informing the coordinating road authority of proposed works; · Informing other infrastructure managers (ie other road authorities and other infrastructure managers) of proposed works; · Sharing information with other infrastructure managers (both road authorities and utilities) about the location of infrastructure (pipes, cables, etc.); · Consulting affected members of the public; · While carrying out works, minimising disruption to traffic, ensuring safety of works and looking after disabled persons; · Reinstating roads and other infrastructure following works, especially for disabled people; · Informing the coordinating road authority when works have been completed, so that it can make sure that the works, including reinstatement works, have been carried out satisfactorily. 11

Part 2 of Schedule 7 sets out the powers of coordinating road authorities in relation to the coordination of works and infrastructure on roads. Victorian Legislation and Parliamentary Documents Schedule 8 sets out which offences under this Act may be the subject of a road management infringement. Schedule 9 sets out the transitional and saving provisions, such as the status that existing roads will have under this legislation. Schedule 10 sets out further transitional and saving provisions. In particular, it provides that certain gas projects to be carried out under the Regional Infrastructure Development Fund Act 1999 will be carried out under the legislative framework as in force before the passing of this legislation. Clause Notes PART 1--PRELIMINARY Clause 1 sets out the purpose and outline of the Bill. Clause 2 is the commencement provision. The following provisions will come into operation the day after the Bill is passed to facilitate implementation of the other provisions of the Bill at a later time-- · Part 1--This contains preliminary and machinery matters, including definitions, other interpretative provisions and the commencement arrangements. · Divisions 1 and 5 of Part 4--Division 1 deals with the coordination of road management, confers certain powers on the Minister and enables Codes of Practice to be made. It is intended to make Codes of Practice relating to the exercise of road management functions before the provisions that confer those functions come into operation. Division 5 enables road authorities to make road management plans, and it is intended to enable road authorities to begin the process of developing their road management plans as soon as the Bill is passed. 12

Most other provisions of the Bill will commence on 1 July 2004. The exceptions are the provisions that deal with the regulation of works and infrastructure on roads, and the protection of roads Victorian Legislation and Parliamentary Documents against interference. These provisions will come into operation on days to be fixed by proclamation, or 1 January 2005 if not proclaimed before that date. This will provide an opportunity for regulations to be made before these provisions come into operation. Note that the Schedules will take effect when the relevant provisions of the Act come into operation. For example, Schedule 7 will take effect when section 48 comes into operation. Clause 3 is the definitions clause. Key definitions include-- "arterial roads" are roads that have been declared by VicRoads under clause 14 to be arterial roads. VicRoads will be the coordinating road authority for arterial roads. Clause 14 sets out criteria for deciding which roads should be classified as arterial roads. Note that, under the transitional provisions, most existing "declared roads" under the Transport Act 1983 will become either arterial roads or freeways for the purposes of this Bill-- see Schedule 9, clause 1. "coordinating road authority" refers to the road authority that has coordination functions in respect of the whole road reserve, as determined under clause 36. Generally speaking, VicRoads will be the coordinating road authority for freeways and arterial roads, the relevant State agency for non-arterial State roads and municipal councils for municipal roads. Responsibility can be reassigned by agreement between road authorities or by the Minister assigning responsibility for a designated road project to a road authority. "infrastructure manager" refers to the relevant "responsible road authority" in relation to road infrastructure. In the case of non-road infrastructure, it refers to the person or body, such as a utility, that is responsible for that infrastructure. Infrastructure managers have a number of specific duties under Schedule 7, such as the duty to maintain infrastructure in a safe condition. "non-arterial State road" refers to roads that are the responsibility of a State Government agency (not a municipal council), but which have not been declared a freeway or arterial road. Examples of non-arterial State roads include State administered roads in forests and national parks. 13

"non-road infrastructure" refers to infrastructure that is in, on or under a road but which is not road-related. Examples of non- road infrastructure are set out in a note to the definition itself, and Victorian Legislation and Parliamentary Documents include electricity poles and gas pipes. "pathway" refers to footpaths, bicycle paths and other paths not built for use by vehicles, but does not include paths not constructed by the relevant road authority, such as a privately constructed path across the roadside, or a path that has not been constructed but is merely a foot trodden track. "public highway" refers to highways in the common law sense, being land over which members of the public have a right to pass, whether or not there is an actual roadway or pathway on the land. The term "public highway" is intended to cover all land that is a highway for the purposes of the common law, that is, any land that is dedicated to the public for use as a highway. This includes highways created under common law as well as highways created under legislation. Highways can be created over both private and public land, the defining characteristic of a highway being that every member of the public has a right to pass over the land at all times: See the High Court decision in Mayor, Councillors and Citizens of the City of Keilor v O'Donohue (1971) 126 CLR 353 at 363. Where such a right of passage exists, the land may be a highway irrespective of the physical condition of the land. In particular, it is not necessary that a physical roadway has been constructed on the land: see the High Court decision in Permanent Trustee Co of New South Wales Ltd v Council of the Municipality of Campbelltown (1960) 105 CLR 401 at 420 and the decision of the Victorian Court of Appeal in Bass Coast Shire Council v King [1997] 2 VR 5 at 18. Some of the more common ways in which highways have been created in Victoria include-- · Under the common law doctrine of 'dedication and acceptance', where the owner of the land has dedicated the land as a highway by opening it to public use as a road intending it to be used as such, and the public has accepted the dedication by in fact using the road: see the High Court decision in Permanent Trustee Co of New South Wales Ltd v Council of the Municipality of Campbelltown referred to above. 14

· In the case of highways on Crown land, the marking out of land on Crown land surveys as "road" may itself be sufficient to dedicate it as a public highway. In this Victorian Legislation and Parliamentary Documents regard, see section 25(5) and (6) of the Land Act 1958 and the decision of the Victorian Court of Appeal in Bass Coast Shire Council v King [1997] 2 VR 5 at pp 17 to 19, which dealt with a strip of land that had been marked as road on official survey plans but which did not have the physical characteristics of a road. · By or under an Act, such as-- · Declarations under the Local Government Act 1989, the Transport Act 1983, the Land Act 1958, the Melbourne City Link Act 1995 or, in the future, under this legislation. · Reservation as a road under the Crown Land (Reserves) Act 1978. · Roads constructed under the Forests Act 1958. · By operation of section 24 of the Subdivision Act 1988. Land set aside as a road on certain plans vests in the relevant municipal council and becomes a public highway upon registration of the plan under that Act. · By operation of section 587(1)(b) of the Local Government Act 1958. Under that provision, where a municipal council undertook the physical construction of a private street, that street was deemed to be dedicated as a public highway. Although section 587 was repealed when that Act was superseded by the Local Government Act 1989, the dedications deemed by that section prior to its repeal on 1 October 1992 were not affected by the repeal: see Local Government (Consequential Provisions) Act 1989, Schedule 3, item 47 and Interpretation of Legislation Act 1984, section 14(2). All of the roads and highways mentioned above are intended to be covered by the term "public highway" as used in the definition, but the list is not exhaustive. 15

"public road" refers to roads that are public roads within the meaning of clause 17. Essentially, these are roads over which VicRoads or municipal councils have made formal road Victorian Legislation and Parliamentary Documents declarations, and other roads that a road authority has determined, under clause 17, to be roads that are reasonably required for general public use. Public roads must be registered on a road authority's register of public roads. Clause 40 imposes specific duties on road authorities with respect to the inspection, repair and maintenance of public roads. "repair" refers to reinstatement of a road following works (such as refilling and surfacing an excavated area), or to remedy deterioration or damage (such as patching a pothole) or to provide warnings to road users (such as a sign warning of hazardous conditions). Road authorities will have a duty to repair roads under clause 41. However, the definition states that "repair" does not include upgrading, so the duty to repair under clause 41 does not include a duty to upgrade a road to a better standard of construction by, say, sealing a gravel road. "responsible road authority" refers to the road authority which is responsible for a particular operational function or which is the relevant road authority under clause 37. "road" is defined to include-- · A public highway as defined in the Bill. This includes land that is a highway at common law: see the notes on the definition of "public highway" above. · An ancillary area. This means an area designated as an ancillary area by the coordinating road authority under section 18. · Land forming part of a public highway or ancillary area. Note that the definition of "road" refers to the land within the boundaries of the road reserve, not the actual roadway. "road authority" refers to a State or local authority specified in or under clause 37 as a road authority. This includes both coordinating road authorities and responsible road authorities. "road infrastructure" refers to infrastructure that forms part of a roadway or pathway, such as a bridge, culvert or ford. It includes the materials that form part of the roadway such as asphalt, bitumen or gravel. It also includes "road related infrastructure" as defined. 16

"road management function" refers to the functions, powers and duties conferred or imposed on road authorities under provisions of this Bill, the Road Safety Act 1986, the Transport Victorian Legislation and Parliamentary Documents Act 1983 the Local Government Act 1989 and other legislation dealing with management of roads. It also includes functions, powers and duties conferred or imposed on utilities, infrastructure managers and works managers under this Bill. "road related infrastructure" refers to infrastructure which facilitates the operation or use of a roadway or pathway or supports or protects it or is installed by the relevant road authority for road-related purposes. Traffic control signs and traffic lights are examples of road-related infrastructure. "road reserve" refers to all the land within the boundaries of the road. Note that boundaries of roads can be fixed by the instrument of declaration, or by a subsequent instrument under clause 13. Schedule 5, clause 3, sets out how boundaries are ascertained if they have not been fixed by the road declaration or a subsequent instrument. "roadside" refers to land in the road reserve that has not been developed by a road authority for use by members of the public as a roadway or pathway. The definition includes vehicles crossings and pathways connecting to nearby land. "roadway" refers to the area of a public road developed by the road authority for use by motor vehicles. The definition excludes driveways on the road reserve that connect nearby land to the roadway. "urban area" refers to areas where the speed limit is 60 km/h or less, other than for temporary reasons, such as roadworks. Secondly, it also includes areas where there is street lighting and/or buildings at a certain density (the lighting or buildings must be no more than 100 metres apart) for a distance of at least 500 metres or for the full length of the road. This second criterion is based on the definition of "built-up" areas for the purposes of the Road Rules--Victoria to ensure consistency between this Bill and the Road Rules on this point. The application of the definition of "urban area" determines which road authority administers roadside on arterial roads: in urban areas it will be councils and in other areas it will be VicRoads--see clause 37. "works" refers to any activity carried out on or near a road in connection with the construction, maintenance or repair of the infrastructure in, on or under the road. 17

"works manager" refers to any person or body that is responsible for the conduct of works in, on, under or over a road. Works managers have a number of specific duties under Victorian Legislation and Parliamentary Documents Schedule 7. Clause 4 sets out the primary object of the Bill, which is to establish a coordinated management system for roads that will promote safe and efficient road networks and the responsible use of road reserves for other legitimate purposes, such as the provision of utility services. The clause explains how the Bill aims to meet this objective by, among other things-- · setting out the general rights of road users, · establishing a road management system to provide safe and efficient roads that best meet the needs and priorities of State and local communities, · establishing a road classification system and setting clear principles for division of responsibilities between State and local road authorities, · providing for the coordination of the placement and maintenance of infrastructure on road reserves so as to minimise interference with road use, facilitate the provision of utility services and minimise interference with other infrastructure and the provision of utility services, · provides for each road authority to keep a register of public roads that register the roads to be constructed, maintained and managed by that authority, · establishing decision-making processes in relation to standards for construction, inspection, maintenance and repair of certain roads that take into account policy and budgetary considerations and priorities, · conferring adequate operational power on road authorities with matching accountability, and · clarifying the standards expected of road authorities in carrying out their road management functions, including for the purposes of civil liability. 18

Clause 5 sets out a number of rules to interpret the application of the Bill and its interrelationship with other Acts, including the Local Government Act 1989, the Transport Act 1983, the Building Victorian Legislation and Parliamentary Documents Act 1993 and the Melbourne City Link Act 1995. The clause provides that the Building Act 1993 does not apply to roads as such, but that it does apply to parts of buildings that extend onto roads, such as balconies and verandahs. The Local Government Act 1989 confers a number of road management functions on municipal councils, and these provisions will remain in that Act with a few modifications. Clause 5 provides that the relevant provisions of the Local Government Act 1989 are to be construed for the purposes of this Act as if they formed part of this Act. The Melbourne City Link Act 1995, and the agreements under that Act, deal with the obligations and duties of the private operators of the "Link road" and "Extension road" within the meaning of that Act. Clause 5 provides that the Bill is subject to that Act and those Agreements and thus the private operators of the "Link road" and the "Extension road" must not exercise their powers under the Bill in a manner that is inconsistent with that Act and those Agreements. The clause also provides that-- · native title rights and interest are not affected by the Bill; and · the Bill does not limit the operation of section 37A of the Transport Act 1983. Section 37A has reinstated until 1 January 2005, in statutory form, the "highway rule" that had been considered to exist as part of the common law until the decision of the High Court in Brodie v Singleton Shire Council (2001) 206 CLR 512. Similarly, the Bill will not limit the operation of proposed section 245B of that Act, which is to be inserted into that Act on 1 January 2005, and which will preserve the "highway rule" in respect of events occurring before that date. Clause 6 operates to bind the Crown in right of Victoria and also, so far as the legislative power of the Parliament permits, the Crown in all its other capacities. 19

PART 2--RIGHTS OF ROAD USERS Clause 7 outlines the purpose of the Part, which is to confer specified Victorian Legislation and Parliamentary Documents rights on members of the public using roads that are legally enforceable. These rights are not intended to take away or derogate from rights conferred by the common law. Clause 8 describes the rights of members of the public to pass along roads. These rights are intended to be the same as existing common law rights, and to be subject to other laws that limit the rights-- see clause 8(5). Clause 9 describes the rights of owners and occupiers of land adjoining a road to access the road from their land. These rights are intended to be the same as existing common law rights, and to be subject to other laws that limit the rights--see clause 9(2). Clause 10 provides that the rights of the public, whether under this Bill or the common law, in respect of a public highway can only be extinguished in accordance with this Bill or other legislation that authorises the discontinuance or permanent closure of a road. This is a statutory confirmation of the common law principle that a highway, once dedicated to public use, is dedicated in perpetuity (the maxim is, "once a highway, always a highway"). Note that Schedule 5 contains provisions about the ownership of roads. PART 3--THE ROAD SYSTEM Division 1--Roads Division 1 deals with the management of roads generally, their creation and discontinuance. Clause 11 empowers a road authority to declare a road over land owned or managed by the authority. Where a road authority intends to declare a road over land the road authority manages, the authority must obtain the appropriate written consent from the relevant persons specified in the clause. The clause also requires a road authority to inform the Secretary to the Department of Sustainability and Environment (or a person nominated by the Secretary) if the authority declares a new road, changes the name of a road or creates or discontinues a road. This information will assist in keeping records used by emergency despatch services up to date. 20

The clause does not limit other means by which public highways may be dedicated under the common law or created under other Acts. Land may become a "highway" under the common law by Victorian Legislation and Parliamentary Documents operation of the doctrine of "dedication and acceptance", where land is dedicated to the public for use as a highway and it is used as such. Both dedication and acceptance may be inferred from conduct. Clause 12 empowers a road authority to discontinue a road or a part of a road. The clause also sets out a consultation procedure with which a road authority must comply before it discontinues a road in accordance with the clause. The land in a discontinued road will vest in the relevant coordinating road authority, unless the land is Crown land. The clause also provides that the consultation procedure specified in the section will not apply if an exemption specified in the regulations applies or if the relevant road Minister has given a specific or general exemption that covers the case. Clause 13 empowers a road authority to fix the boundary of a road. Unless the relevant land is owned by VicRoads, the road authority must have the approval of the Surveyor-General or the Chief Surveyor in the Titles Office so that road boundaries align with freehold and Crown land boundaries. Clause 14 confers power on VicRoads to declare land on a road to be a freeway, an arterial road, a non-arterial State road or a municipal road and to revoke such declarations. The clause sets out the criteria which VicRoads must consider in deciding whether to declare a freeway or arterial road, including whether the road-- · provides a principal transport route between major population centres, regions, transport terminals, or · provides a principal transport route across or around cities, or · has State-wide economic or tourism significance. Finally, the clause also sets out a procedure for notification of municipal councils, other relevant road authorities and infrastructure managers that VicRoads must comply with in respect of any declaration or revocation under the clause. 21

Clause 15 provides that a road authority may enter into an arrangement with another road authority to transfer a road management function to another road authority. This will provide flexibility in the Victorian Legislation and Parliamentary Documents administration of the legislation, so road authorities can agree on workable demarcations of responsibility. For example, a municipal council may wish to administer a very wide median strip that is used as local parkland. The details of such an arrangement must be included in a road authority's register of public roads, which is available for public inspection. This ensures that a person who wants to know which road authority was responsible for a particular road at a given time can find out by referring to the register. Clause 16 confers power on the Minister to designate a road project and a project area. The Minister may also specify the agency that will have the functions of a road authority for the purposes of the road project. This provision will enable one agency to be given responsibility for the construction or redevelopment of an area that includes both arterial and local roads. So that information about allocation of responsibility for the roads in the project area is publicly available, the Minister's determinations must be published in the Government Gazette, and affected road authorities must record the details in their registers of public roads. Division 2--Public Roads Clause 17 sets out which roads are to be treated as "public roads" for the purposes of this legislation. Under clause 40, the relevant road authority will have a positive duty to manage roadways and pathways on public roads for public use. Sub-clause (1) sets out which public highways are to be public roads. The following roads are public roads for the purposes of the Bill-- · a freeway; · an arterial road; · roads declared under section 204 (1) of the Local Government Act 1989; · a road declared under section 61 or 93H of the Melbourne City Link Act 1995; · a road in respect of which a decision has been made under sub-clause (3); 22

· a non-arterial State road or a municipal road that VicRoads has declared under clause 14; Victorian Legislation and Parliamentary Documents · a non-arterial State road or a municipal road that VicRoads has declared under clause 14. Freeways and arterial roads will be declared by VicRoads under clause 14. The transitional provisions in Schedule 9 deal with the status of existing roads for the purposes of this Bill. Sub-clause (2) imposes a duty on a road authority to register every public road for which it is responsible on its register of public roads, other than the roads referred to in paragraph (e) above. This means that roads of the type referred to in paragraphs (a) to (d) and (f) and (g) are automatically public roads, which the relevant road authority is responsible for managing. Sub-clause (3) applies to roads that are not automatically public roads by operation of sub-clause (1). For such roads, the relevant road authority must register the road on its register of public roads if it makes a decision that a road is reasonably required for general public. This means that it is for a road authority to decide, on policy grounds, whether a particular road is reasonably required for general public use and should therefore be maintained by the road authority as a "public road"--see clause 39. Note that a road authority is not required to perform road management functions in respect of a road that is not a public road: see clause 107. In this regard, see the comments on the definition of "public highway" in clause 3. Not all highways in the common law sense are actual roadways. Many parcels of land are merely "paper roads", created as road by some legal process even though there is no actual roadway on the land. Further, it is not always clear whether a particular piece of land is or is not a highway, as this may depend on the application of rules of common law. Clause 17(3) therefore enables a road authority to make a policy decision about whether a particular road is reasonably required for general public use and, accordingly, whether it should be constructed and maintained at public expense. The fact that a road is not registered as a public road will not diminish the public's right to use any land that is a common law "highway", but it will mean that the road authority does not have to manage such land as part of the network of public roads that it provides for travel and transport. 23

Sub-clause (4) requires every road authority that makes a policy decision that a road is no longer reasonably required for general public use to remove that road from its register of public roads. Victorian Legislation and Parliamentary Documents Sub-clause (5) provides that the removal of a public road from the register of public roads or the non-inclusion of a road on the register of public roads does not affect the status of the road as a public highway or affect the right of public use of the public highway. In this regard, see the notes on clause 10. Clause 18 empowers a road authority to designate an area adjacent to a public road as an ancillary area. Ancillary areas will include areas such as scenic lookouts, rest stops and "park and ride" carparks. The clause also requires that any designation must be recorded on the register of public roads. Ancillary areas will be maintained by the relevant responsible road authority. Clause 19 imposes a duty on every coordinating road authority to keep a register of the public roads it administers. The register must contain the details set out in clause 1 of Schedule 1. In addition, the road authority has discretion to include other relevant information in the register--see clause 2 of Schedule 1. The clause also imposes a requirement to ensure that the register is available for inspection by members of the public free of charge, during normal business hours, and at a place determined by the authority. This will enable persons to establish whether a road is a public road, if so when it became a public road and which authority administers the road. PART 4--MANAGEMENT OF ROADS Division 1--Coordination of Road Management Clause 20 sets out the principal object of road management, which is to ensure that a safe and efficient network of roads is provided primarily for travel and transport and that road reserves are available for other appropriate uses. Other appropriate uses may include the provision of utility services. Clause 20 also sets out a set of principles that apply to the management of infrastructure (such as utility pipes, poles and cables) on roads and works related to infrastructure (such as installation, maintenance and repair works). Among other things, these principles require the person or body that is responsible for the works or infrastructure to minimise road safety hazards, avoid or minimise disruption to infrastructure and traffic. 24

Clause 21 provides that the Minister or a relevant road Minister, for the purposes of administering the Act, may require information or advice from a road authority. Victorian Legislation and Parliamentary Documents Clause 22 provides that the relevant road Minister may direct a road authority to perform (or refrain from performing) any of its functions or exercise (or refrain from exercising) any of its powers under the Act and to do so in the manner or subject to any conditions specified in the direction. The Minister must give the road authority an opportunity to comment before making a direction. A direction, or a summary of a direction, must be published in the road authority's annual report. Clause 23 enables the Governor in Council to give exemptions from specified provisions of the Act for specified persons, projects or activities. The purpose of the provision is to enable projects to be exempted from requirements of the Act relating to the manner in which works and infrastructure on roads are managed. For example, an Order might exempt works related to an infrastructure project from the requirement to give notice of proposed project works under clause 8 of Schedule 7. Exemption orders must be tabled in Parliament and may be disallowed by either House in the same way as regulations. Clause 24 sets out the purposes of Codes of Practice. The main purposes are to provide practical guidance, by setting out benchmarks of good practice, by clarifying demarcations of responsibility as between road authorities and by providing practical guidance for road authorities on the allocation of resources, the development of policies, the setting of priorities and the making of road management plans. A Code of Practice cannot-- · impose a duty on a person; · direct how any matter or thing is to be done; · create an enforceable legal right; · impose any liability or penalty. Clause 25 sets out what a Code of Practice may include. A Code of Practice may contain anything that gives guidance to road authorities, infrastructure managers or works managers relating to the performance of their functions, the standards which they may adopt or develop or the conduct of works under the Act or the proposed section 99A of the Road Safety Act 1986--see clause 141. 25

A Code of Practice may (among other things) give practical guidance to a road authority in-- · Victorian Legislation and Parliamentary Documents planning and risk identification and inspection functions, · planning and managing routine maintenance and repair functions, · planning and managing the development and implementation of road management plans, · the exercise of coordination functions-- or to a road authority, works manager or infrastructure manager in relation to-- · the manner in which works may be carried out, · situations that would constitute an emergency, · good engineering practice or relevant industry standards. Codes of Practice may also give guidance as to-- · the demarcation of responsibilities between road authorities where areas administered by the authorities abut--see clause 37(3), and · the conduct of works on roads in a manner that is safe for road users--see clause 141 and the proposed new section 99A of the Road Safety Act 1986. Clause 26 permits Codes of Practice to incorporate documents, codes, standards, rules, specifications, benchmarks, technical references and the like. Clause 27 provides for the admissibility of Codes of Practice in evidence in legal proceedings to which the Bill or the proposed section 99A of the Road Safety Act 1986 (see clause 141) applies. Where a function is conferred or a duty is imposed on a road authority, infrastructure manager or works manager, evidence of compliance with a relevant Code of Practice will be evidence of performance of that function or compliance with the relevant duty. Further, the Codes of Practice will also be relevant if the reasonableness of a road management plan or other road authority decision is called into question, such as decision to withhold consent to proposed works or to impose conditions. 26

Clause 28 set out the method for making Codes of Practice. A Code of Practice may be made by the Minister administering the legislation, after consultation with relevant road and utility Victorian Legislation and Parliamentary Documents Ministers. In relation to Codes that deal with utility infrastructure or works, the Minister must also consult the Utilities' Infrastructure Reference Panel to be established under clause 31. In the case of Codes relating to municipal councils, the Minister must consult with the Municipal Association of Victoria. Clause 29 sets out requirements relating to the publication and availability of Codes of Practice. Notice about the availability of a Code of Practice must be published in the Government Gazette. The notice must specify where Codes may be obtained, including any document adopted or incorporated by the Code (such as a benchmark or standard published by a standards organisation). Clause 30 requires Codes of Practice to be tabled in Parliament and provides that either House may disallow a Code in the same way as regulations. Clause 31 establishes a Utilities' Infrastructure Reference Panel. The panel's composition is intended to ensure that it includes individuals with backgrounds and expertise in road management, local government, the provision and regulation of utility services, as well as a person selected to represent road users. The clause also sets out who may be, and the method by which, members of the Panel are to be appointed by the Minister. It empowers the Minister to determine remuneration and travelling and other allowances that may be payable to a member of the Panel, and the terms of conditions of appointment of a member. Clause 32 sets out the functions of the Utilities' Infrastructure Reference Panel. The Panel will provide advice to the Government on the effective coordination of the use of road reserves, act as the vehicle for consultation with utilities and other stakeholders in relation to their use of road reserves and provide information and advice to the Minister in relation to Codes of Practice and regulations that deal with matters under Schedule 7 of the Bill. In performing these functions, the Panel will have regard to the by utilities consistent with the object of road management and the works and infrastructure management principles set out in clause 20. The Panel may also provide advice on any other matter referred by the Minister. 27

Division 2--General Functions and Powers of Road Authorities Clause 33 provides that a road authority must give effect to the principal Victorian Legislation and Parliamentary Documents object of road management and the works and infrastructure management principles. Clause 34 sets out the general functions of a road authority. These include the provision and maintenance of a safe and efficient network of roads for use by the community served by the road authority. Road authorities are to manage roads in a manner that enhances their safe and efficient operation and which minimises adverse effects on the environment. Road authorities will also have responsibility to coordinate the installation of infrastructure and works on roads. Clause 35 sets out the powers of a road authority in relation to roads. These include the general power to do all things necessary or convenient to be done in the performance of the road authority's functions. Other specific functions are set out elsewhere in the Bill. Many of the specific functions of municipal councils as road authorities are set out in the Local Government Act 1989. Clause 36 sets out which road authority is the coordinating road authority in respect of different kinds of roads, namely-- · VicRoads for freeways and arterial roads, · the relevant State agency (as determined under clause 37) for other State roads, and · municipal councils for municipal roads. Coordinating road authorities have responsibility for overall coordination of the roads they administer. Clause 37 sets out which road authority is the responsible road authority in respect of different parts of the different kinds of roads. Responsible road authorities have operational responsibility for the construction, inspection, maintenance and repair of the road infrastructure assigned to them. In summary, the allocation of operational responsibility for roads is as follows-- · in the case of freeways--VicRoads, · in case of arterial roads in urban areas, VicRoads is responsible for the roadways used by through traffic and the relevant municipal council is responsible for other areas, including service roads, footpaths and roadside, 28

· in the case of arterial roads that are not in built-up areas--VicRoads (rather than the municipal council) is responsible for the roadside, Victorian Legislation and Parliamentary Documents · in the case of non-arterial State roads-the relevant State agency, for example the Department of Sustainability and Environment, and · in the case of municipal roads (including roads on Crown land reserves administered by a municipal council)--the municipal council. Responsible road authorities also have responsibility for any ancillary areas or road-related infrastructure (such as traffic lights and traffic signs) that relate to the roadways they administer. Thus, VicRoads would be responsible for traffic lights for an arterial road even though the lights are placed in an area administered by the municipal council. Codes of Practice made under clause 28 may also give guidance for ascertaining which road authority is responsible for certain areas and functions. For example, a Code may give guidance about the demarcation of responsibility for road maintenance and signage as between VicRoads and municipal councils at intersections of arterial roads and municipal roads, or as between municipal councils along municipal boundaries. Clause 38 deals with the manner by which a road authority may perform its functions and exercise its powers. Sub-clause (1) describes matters and things to which a road authority must have regard in exercising its functions and powers, such as Government policies, Codes of Practice issued under the Bill and the various principles and rights described in the Bill. Sub-clause (2) provides for a range of things that a road authority should do, or seek to achieve, in the exercise of its functions and powers. This makes it clear that a road authority is to exercise its functions within an overall policy and budgetary context and must take into account the needs and expectations of the community and the resources available to meet them. It also directs road authorities to cooperate with each other, other agencies, utilities, community organisations and the private sector in the management of the authority's road network. Road authorities should facilitate the appropriate use of road reserves for non-road infrastructure and utility services. 29

Coordinating road authorities are directed to coordinate works and infrastructure on roads so as to ensure road safety, minimise inconvenience and disruption, protect the environment and the Victorian Legislation and Parliamentary Documents road and infrastructure on the road Clause 39 enables road authorities to make policies or policy decisions relating to the performance of road management functions. The clause sets out the circumstances in which a decision is a policy decision and the kinds of decisions which will be policy decisions. Policy decisions include decisions about-- · the circumstances in which a road management function is to be performed; · the manner in which a road management function is to be performed; · the standard to be achieved in performing a road management function. One of the ways in which a road authority may make a policy decision is by making a "road management plan" under clause 54. Sub-clause (5) provides that a policy decision or standard relating to the performance of a road management functions satisfies the relevant statutory and common law duties in relation to the exercise of those functions. However, this does not apply if the decision is so unreasonable that no road authority acting reasonably could have made the decision. This exception is intended to express the concept of "Wednesbury unreasonableness", which is a ground for invalidating an administrative decision under general administrative law. For these purposes, any relevant Code of Practice may be used as evidence of the reasonableness or unreasonableness of the road authority's decisions: see clause 27. Clause 39, together with clause 41 (determination of standards), Division 5 of Part 4 (road management plans) and clause 103 (policy defence) are important because they will bring greater certainty to the legal requirements for management of roads. They will enable road authorities to determine policies about the standard of construction, inspection, repair and maintenance of roadways and other functions having regard to their overall functions, policies and budgets. 30

If the policies are not unreasonable, and if the road authority adheres to the policies in practice, the road authority will not be held to be negligent. These provisions of the Bill are intended to Victorian Legislation and Parliamentary Documents implement the recommendations of the Ipp Report in relation to the proposed policy defence. Division 3--Specific Powers and Duties of Road Authorities Clause 40 imposes on road authorities a specific statutory duty to inspect, maintain and repair public roads (see clause 17 for an explanation of what is a public road). The clause describes the content of the duty and those parts of a public road to which the duty applies and does not apply. The statutory duty under clause 40 (and the principles concerning the performance of road management functions set out clause 101) reflect the decision of the High Court in Brodie's Case that road authorities have a responsibility to take reasonable steps to actively manage the roads and paths under their administration to ensure that they are reasonably safe for use. Clause 40 also sets out how the standard of inspection, maintenance or repair is to be determined for the purposes of this duty. The relevant standard of inspection, maintenance or repair is-- · the standard (if any) determined by the road authority through a road management plan under Division 5 of Part 4 or other policy (if any) decided under clauses 39 and 41, · if the road authority has not determined a standard, to a reasonable standard having regard to the criteria detailed in clause 101. The duty to inspect, maintain and repair applies to roadways and pathways on public roads, being the parts of the road network specifically intended for use by vehicles, pedestrians, cyclists and other road users. It also applies to road infrastructure, such as bridges, safety barriers and traffic signs. The duty to inspect, maintain and repair does not extend to areas that the public has a right to use (such as common law "highways") but which are not required for general public use and therefore have not been registered as public roads. The duty also does not apply to land within the road reserve which has not been developed for public use as a roadway or pathway, such as roadside bushland or grassland. 31

The maintenance of non-road infrastructure is the responsibility of the relevant infrastructure manager rather than the road authority: see clause 104 and clause 6 of Schedule 7. Victorian Legislation and Parliamentary Documents The clause also provides that the duty that is imposed under the clause is not to affect the discretionary power which a road authority has to maintain or inspect a road which is not a public road. Clause 41 enables a relevant road authority to determine the standard to which the relevant road authority will construct, inspect, maintain and repair roadways, pathways, road infrastructure and road related infrastructure. The standard determined under this clause then becomes the standard to which the road authority's duty of inspection, maintenance and repair under clause 40 must be performed. One of the main ways in which standards will be determined will be through the making of formal "road management plans"-- see sub-clause (5) and clause 52(1). These standards will then be applied for the purposes of the "policy defence" established by clause 103. In this regard, see the comments in the notes on clause 39. Clause 41(2) sets out some of the types of matters for which a road authority may set a standard. Some examples of how it is expected this power will be used are set out at the foot of sub- clause (4). In overview, it is for the road authority, so long as it does not act unreasonably, to determine how a road should be constructed, how often inspections are needed, how frequently maintenance work of various types should be carried out, at what stage defects or deterioration in roads require repair, and the priority in which these various road management functions should be carried out. These are matters for policy decision by the relevant road authority, for which it is to be answerable through the usual processes of accountability for governmental agencies and subject to judicial review if it acts unreasonably in the Wednesbury sense: see the notes on clause 39. Clause 42 provides that a coordinating road authority may declare a part or all of a public road for which it is responsible, or a class or part of a class of public road for which it is responsible, to be controlled access roads. 32

Schedule 2 sets out in detail the powers of road authorities to manage access to controlled access roads. For example, the authority could determine whether connections to the road may Victorian Legislation and Parliamentary Documents be constructed and, if so, where they should be constructed and to what standard. Codes of Practice may give practical guidance about the exercise of these functions. These provisions will enable road authorities to control access to public roads from other roads or from adjoining property (driveways) on roads that are hazardous because of the terrain or traffic conditions or both. Note that section 60 creates certain offences in relation to the construction of unauthorised access points to freeways and controlled access roads. Clause 126 confers rights of appeal to the Victorian Civil and Administrative Tribunal ("VCAT") in certain circumstances and clause 167 makes consequential amendments to the Victorian Civil and Administrative Tribunal Act 1998. Clause 43 provides that, without limiting any other powers of a State road authority, the powers of the authority include the specific road construction, repair and maintenance powers set out in Schedule 3. The clause provides that Schedule 3 has effect, and Schedule 3 will therefore have effect on the day that clause 43 comes into operation. See the notes on Schedule 3. Clause 44 provides that, subject to the Road Safety Act 1986 and any regulations made under that Act, but without limiting any other powers of a State road authority, the powers of the authority include the specific traffic management powers set out in Schedule 4. The clause provides that Schedule 4 has effect, and Schedule 4 will therefore have effect on the day that clause 44 comes into operation. See the notes on Schedule 4. Clause 45 provides that, without limiting any other powers or duties of a State road authority, the powers and duties of the authority include the specific road property powers and duties set out in Schedule 5. The clause provides that Schedule 5 has effect, and Schedule 5 will therefore have effect on the day that clause 45 comes into operation. Schedule 5 also deals with the ownership of roads and which private rights may exist over roads. See the notes on Schedule 5. Clause 46 provides that, without limiting any other powers of a State road authority, the powers of the authority include the specific powers with respect to the protection of public roads and adjoining land set out in Schedule 6. The clause provides that Schedule 6 has effect, and Schedule 6 will therefore have effect on the day that clause 46 comes into operation. See the notes on Schedule 6. 33

Division 4--Infrastructure and Works on Roads Clause 47 sets out the purposes of the Division, which is to give effect to Victorian Legislation and Parliamentary Documents the works and infrastructure management principles set out in clause 20(2) of the Bill. Clause 48 provides that without affecting any other duties, an infrastructure manager or works manager has the duties set out in Part 1 of Schedule 7. Schedule 7 sets out in detail the various duties of works and infrastructure managers, including road authorities, in relation to the management of infrastructure on roads. The clause also provides that the duties set out in Part 1 of Schedule 7 also apply to a person who is responsible for a non-road activity to which proposed section 99B of the Road Safety Act 1986 applies in relation to the use of the road for the event as if the person were a works manager. Section 99B, which is to be inserted by clause 141 of this Bill, imposes certain duties on persons responsible for non-road activities on roads, such as street markets. The clause further provides that without limiting any other powers of a coordinating road authority, a coordinating road authority has the powers set out in Part 2 of Schedule 7. The clause also provides that a relevant responsible road authority must comply with the requirements of the coordinating road authority made in the exercise of the powers set out in Part 2 of Schedule 7. Division 5--Road Management Plans Clause 49 empowers a road authority to develop and publish a road management plan in accordance with the Division. It is the intention that the making of a road management plan is voluntary. Clause 50 sets out the purposes of road management plans, which are-- · to establish road management systems for the road management functions of a road authority based on policy and operational objectives and available resources; · to set the relevant standards in relation to the discharge of those road management functions. 34

Clause 51 provides that a road authority may determine standards for the purposes of clause 41 by incorporating the standards in a road management plan. Such decisions are subject to the provisions Victorian Legislation and Parliamentary Documents concerning the making of policies and policy decisions in clause 39. Clause 52 specifies what a road management plan may contain. Among other things, a road authority may, through its road management plan, set standards and policies for implementing the authority's functions and duties under this legislation. It is envisaged that a road management plan would detail the system that the road authority determines, in the context of overall policies and budgets, to be appropriate for the management of its public road network. In doing this, a plan would normally address the kinds of matters set out in clause 41(2) and in the example at the foot of clause 41(4). The clause also provides a road management plan relating to the Link road or the Extension road must be consistent with the Melbourne City Link Act 1995 and related agreements and must facilitate the performance of obligations and duties under that Act and agreements. Clause 53 provides that a road management plan may apply, adopt or incorporate any matter contained in any document, code, standard, rule or specification. Clause 54 sets out the procedure for making or amending a road management plan. A road authority must publicly advertise a proposed road management plan and allow at least 28 days for public submissions on the plan before deciding whether to adopt it. Notice of a proposed road management plan must be published in the Government Gazette and a newspaper. Road management plans must be reviewed at periods to be fixed by the regulations. The regulations are also to set out the process for amending road management plans. Clause 55 requires publication of a notice in the Government Gazette and a newspaper when a road management plan is made and requires that the road management plan be available for public inspection. Division 6--Development Contributions Clause 56 provides for development contributions. A State road authority may seek fair and reasonable contributions to the cost of construction of a new public road from an owner or occupier of land who may benefit from the construction of the public road, or from the owner or occupier of a proposed subdivision. 35

Various matters must be specified in a notice seeking contribution, including details of the work to be conducted and how the amount of the payment was determined, as well as the Victorian Legislation and Parliamentary Documents right to object and apply for review under clause 57. The State road authority must ensure that details of the proposal to build the public road are available for inspection. Clause 57 provides for objections by owners or occupiers required to make payments under clause 56. It specifies the time limit for lodging objections and the grounds on which an objection may be made. The clause also confers the right to apply to VCAT for a review of a decision of a State road authority on an owner's or occupier's objection. Clause 58 provides that a State road authority that requires contributions under clause 56 may seek further contributions, or refund any contributions not required. If further payments are required, then clause 56(4), 56(5), 57 and 59 apply to the further payments. However, the further payments cannot exceed 20% of the amount specified in the notice under section 56(1), and those further payments must be fairly distributed between any parcels of land that will benefit. Clause 59 provides time limits by which payments of development contributions must be made in specified circumstances. If no objections have been made, the period for payment is the date set by the road authority, not less than 1 month after receipt of the notice. If there are objections, the payment must be made on a date set by the road authority after decisions have been made on all of the objections. PART 5--PROTECTION OF ROADS Division 1--Offences Clause 60 creates several offences. Sub-clause (1) creates an offence of constructing an access point to a freeway without the consent of VicRoads under clause 1 of Schedule 2, and sub-clause (2) makes it an offence not to comply within any conditions on such a consent. Sub-clause (3) creates an offence of constructing or changing a physical means of entry or exit between adjacent land and a controlled access road without first obtaining a decision of the road authority under clause 2 of Schedule 2 which authorises the construction or change. Sub-clause (4) makes it an offence not to comply within any conditions on such a consent. 36

Conditions on consents may deal with a range of matters, such as the location of the access point or restrictions on its use: see clause 2 of Schedule 2. Victorian Legislation and Parliamentary Documents Clause 61 creates an offence of failing to comply with a direction issued to a person under clause 3 of Schedule 6 within the time specified in the direction. Clause 3 of Schedule 6 provides that where the State road authority considers that the condition of land near a road may adversely affect the safety of users of a road, the structural integrity of the road, or that anything on land near the road constitutes a danger to persons or vehicles lawfully entitled to use the road, the authority may serve a notice on the owner or occupier of land to remove or mitigate or rectify the condition or thing specified in the notice. Clause 3 of Schedule 6 describes some instances in which a notice may be served, including, for example, the removal of overhanging trees. Clause 62 creates an offence to obstruct the use of a public highway by persons or vehicles lawfully entitled to use the public highway unless otherwise authorised or permitted by or under the Bill, the Road Safety Act 1986 or if the obstruction arises out of a lawful and reasonable use of the road. Clause 63 creates an offence of conducting works on a road without the consent of the coordinating road authority. Coordinating road authorities may give consent to works under clause 16 of Schedule 7, and consent may be given on a case by case or on an ongoing basis. The clause does not apply if-- · a person is specifically required to conduct the works under another Act; or · the person is a public body and has obtained consent under section 98(1) or 99(4)of the Melbourne City Link Act 1995 in relation to the roads administered under that Act; or · an exemption under clause 23 applies; or · an exemption in accordance with the regulations applies; or · the works are conducted under emergency powers conferred by or under the Act. 37

Clause 64 creates an offence of failing to notify the coordinating road authority upon the completion of works, including any reinstatement works for which consent was given. Victorian Legislation and Parliamentary Documents The requirement to notify is set out in clause 13 of Schedule 7. Clause 65 creates an offence for failing to comply with the conditions set by a coordinating road authority when giving consent for the conduct of proposed works on a road: see clause 16 of Schedule 7. Division 2--Controls on Advertising, Signs and Bills on Roads and Road Infrastructure Clause 66 creates an offence of placing any advertising structures or signs on a road or on any object or infrastructure on a road reserve without the express authority of the relevant road authority. Clause 67 imposes an obligation on persons who commissioned the making of a sign or bill that is placed on infrastructure on a road reserve to give the relevant road authority the name and address of the person who was responsible for distributing the sign or bill in a particular area. The clause also creates an offence for a failure to comply with a written request for that information from the relevant road authority. Clause 68 imposes an obligation on a person who engages another person to place a sign or bill on infrastructure on a road reserve to provide to the relevant road authority the name and address of that other person. The clause also creates an offence of not providing that information within 7 days of receiving a written request for the information. Clause 69 imposes an obligation to remove any advertising structure or sign placed in contravention of clause 66 if requested to do so by an authorised officer. Failure to comply with a request constitutes an offence under the clause. The clause also provides that if a request is not complied with, an authorised officer may remove and sell the structure or sign and apply the proceeds of the sale towards the reimbursement of expenses incurred in connection with its removal or sale or obliteration. Clause 70 confers on a Court the power to make a range of specified orders in cases where the Court convicts a person of an offence under clause 66, 67, 68 or 69. 38

Division 3--Authorised Officers Clause 71 provides for the appointment by road authorities of members of Victorian Legislation and Parliamentary Documents their staff as authorised officers for the purposes of the Bill. A road authority must not appoint a person unless the person has completed appropriate training or has appropriate qualifications. The clause also provides that an authorised officer appointed by VicRoads may exercise their powers in respect of the Link road and Extension road as if VicRoads were the responsible road authority in respect of those roads if-- · the Link corporation and Extension corporation so request; or · there is a written arrangement with the Link corporation and Extension corporation. Clause 72 requires the relevant road authority to issue identity cards to each authorised officer it has appointed. The clause also sets out what must appear on each identity card that is issued, such as the name of the officer, his or her photograph and the name of the relevant road authority. Clause 73 requires an authorised officer to produce their identity card for inspection before exercising a power under the Act and if asked to do so at any time during the exercise of a power under this Act. It is an offence to fail to do this. However, a card does not need to be produced to a person more than once. Clause 74 provides that for the purposes of the administration of the Act and the regulations made under the Act, an authorised officer may exercise the powers conferred under the Act and the regulations to ascertain whether the Act and regulations are being complied with. Clause 75 requires authorised officers to comply with the requirements set out in clause 75 when exercising any power to enter upon any land that is to be conferred the Bill. Clause 76 confers a power on authorised officers to require a person to state his or her name and residential address. This power may only be exercised if the authorised officer believes on reasonable grounds that the person has contravened, or is contravening, the Act or regulations. 39

Clause 77 empowers an authorised officer to require, in cases where the authorised officer has exercised their power of entry, an occupier of premises or agent or employee of the occupier to give Victorian Legislation and Parliamentary Documents reasonable assistance to the authorised officer. Clause 78 states that any member of the police force may assist an authorised officer in exercising a power or function under the Bill. Clause 79 creates an offence to fail to comply without reasonable excuse or refusal to comply with a requirement of an authorised officer to provide name and address. Clause 80 creates an offence of failing to comply with a lawful requirement or direction of an authorised officer without reasonable excuse. Clause 81 confers a protection against self-incrimination. The clause provides that it is a reasonable excuse for a natural person (that is, an individual) to refuse or fail to give information or to do any other thing that the person is required to do by or under the Bill if the giving of the information or the doing of that other thing would tend to incriminate the person. Clause 82 creates an offence of giving false and misleading information to an authorised officer or produce a document to an authorised officer that the person knows to be false or misleading in a material particular. Clause 83 creates an offence of hindering or obstructing an authorised officer without reasonable excuse. Clause 84 creates an offence of impersonating an authorised officer. Clause 85 imposes an obligation on authorised officers who exercise a power of entry under the Bill to report the exercise of the power to the relevant road authority within 7 days after the entry. The clause also sets out what relevant details must be included in the report. Clause 86 requires a relevant road authority to keep a register containing the particulars of all matters reported to the authority under clause 85. Clause 87 confers on all persons a right to complain to the relevant authority about the exercise of a power by an authorised officer under the Bill. If the relevant road authority receives a complaint it must investigate the complaint and provide a written report to the complainant on the results of the investigation. 40

Clause 88 provides for the service of documents for the purposes of the Bill in relation to written requirements by authorised officers and documents or information to be produced in response to such Victorian Legislation and Parliamentary Documents requirements. Clause 89 provides that an authorised officer must not, except to the extent necessary to carry out his or her functions under the Bill, give to any other person, whether directly or indirectly any information acquired by the authorised officer in carrying out those functions. The obligation does not apply to the giving of information in certain specified circumstances such as to a court or a tribunal in the course of legal proceedings or pursuant to an order of a court or tribunal. Division 4--Enforcement Clause 90 enables road management infringement notices to be used as an alternative to prosecution. An authorised officer may serve an infringement notice personally or by post. Road management infringements may only be issued in respect of the offences listed in Schedule 8 or, in the case of offences to be created by the regulations, if the issuing of a road management infringement is authorised by those regulations. Clause 91 provides that the form of a road management infringement notice is to be prescribed in the regulations. It must also set out the penalty specified in Schedule 8 or the regulations and must inform the recipient that the matter will not be taken to court if the penalty is paid by a specified date. Clause 92 provides that an authorised officer may withdraw a road management infringement notice within 28 days of it being served, and provides for refunds of any penalties paid where a notice is withdrawn. Clause 93 provides that upon payment of the penalty shown on a road management infringement notice or if the authorised officer allows, further proceedings may not be taken, and no conviction may be recorded, in respect of the offence. Clause 94 provides that a road management infringement notice will not prejudice further proceedings that may be taken where a penalty is not paid or the infringement notice has been withdrawn. Clause 95 provides for enforcement of a road management infringement in accordance with Part 2 of Schedule 7 to the Magistrates' Court Act 1989 in certain circumstances. This refers to the PERIN system for the enforcement of infringement notices. 41

Clause 96 deals with how legal proceedings may be instituted against a person alleged to have committed an offence under the Act. Proceedings may only be instituted by a member of the police Victorian Legislation and Parliamentary Documents force or by a person authorised for the purpose by the relevant road authority. The chief executive of a road authority may certify that a person has been authorised to take such proceedings. PART 6--CIVIL LIABILITY Division 1--General Clause 97 defines certain terms for the purposes of Part 6. The term "negligence" is defined to mean a failure to exercise reasonable care. Clause 98 provides that Part 6 is not to be construed as derogating from any duty or liability that a person other than a road authority, infrastructure manager or works manager has under any other Act or at common law. That is, while the Part does modify certain aspects of the law in relation to the duties or liabilities of road authorities and works and infrastructure managers, it does not take away from duties or liabilities of other persons. Division 2--Negligence Clause 99 deals with the application of Division 2. Division 2 applies to a claim for damages resulting from negligence in relation to the performance or non-performance of a road management function, regardless of whether claim is brought in tort, in contract, under statute or otherwise. This means that the Division is not limited to claims under the tort of negligence but applies also to claims under other causes of action, such as breach of statutory duty, where the claim is founded in an allegation of negligence. Clause 100 provides that Division 2 is to be construed as being in addition to and not in derogation of Part XII of the Wrongs Act 1958. Clause 101 sets out the principles which a court must consider when 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. The principles set out in the clause are similar to the principles set out by the High Court in Brodie's Case. These principles also apply for the purposes of determining the standard of inspection, maintenance and repair of public roads that is required by clause 40 in the absence of a determined policy or standard. 42

The principles include-- · the character of the road and the type of traffic that Victorian Legislation and Parliamentary Documents could reasonably be expected to use it; · the standard of maintenance and repair appropriate for a road of that character used by traffic of that type; · the state of repair that a reasonable person would have expected to find a road or infrastructure of that character; · whether the road authority, infrastructure manager or works manager knew, or should have known, the condition of the road or infrastructure at the time of the relevant incident; · if the road authority, infrastructure manager or works manager did know of the condition of the road, whether it did or could reasonably be expected to have displayed appropriate warnings. The court is to consider these principles in addition to other relevant things, such as the principles set out in section 83 of the Wrongs Act 1958. Clause 102 sets out limitations on liability of road authorities. The clause provides that a road authority is not liable in any proceedings for damages, whether for breach of the statutory duty imposed by clause 40 or for negligence, in respect of any alleged failure by the road authority to remove a hazard or to repair a defect or deterioration in a road or to give a warning of a hazard, defect or deterioration in a road. The limitation of liability does not apply if the road authority had actual knowledge of the particular risk which resulted in the harm. A road authority is to be taken to have had actual knowledge if written notice had been given to the authority under clause 115. The clause does not affect any liability of a road authority arising out of a failure to inspect a road in accordance with the duty imposed by clause 40. 43

Clause 103 provides that, for the purposes of proceedings relating to negligence, an act or omission which is in accordance with a policy determined by the relevant road Minister or the relevant Victorian Legislation and Parliamentary Documents road authority does not constitute a wrongful exercise or failure unless the policy was in the circumstances so unreasonable that no Minister or public authority having the functions of the relevant road Minister or the relevant road authority in question could have determined that policy. The clause also contains a note drawing attention to the fact that clause 27 enables a court to have regard to any applicable Code of Practice in determining whether a road management plan is unreasonable. Clause 103 is intended to establish, in relation to road management functions, the policy defence recommended in Chapter 10 of the Ipp Report. In particular, recommendation 39 of that Report reads: "In any claim for damages for personal injury or death arising out of negligent performance or non-performance of a public function, a policy decision (that is, a decision based substantially on financial, economic, political or social factors or constraints) cannot be used to support a finding that the defendant was negligent unless it was so unreasonable that no reasonable public functionary in the defendant's position could have made it.". Clause 40, 41, 102 and 131 are related provisions. Clause 104 deals with proceedings relating to a claim arising out of an alleged failure to exercise a road management function. It provides that, where one person has a duty in relation to a matter and another person has a discretionary power to take remedial action in relation to that matter, that only the person with the duty is liable for the claim. This ensures that liability is borne by the body primarily responsible for the function. An example is given at the foot of the clause of a case where an infrastructure manager fails in its duty to maintain its infrastructure in a safe condition--it is that infrastructure manager which would be liable rather than a road authority which may have had discretionary power to require the infrastructure manager to rectify the problem. 44

Clause 105 provides that in respect of damage arising from a failure to maintain a public road or non-road infrastructure it is a defence for a road authority, infrastructure manager or works manager to Victorian Legislation and Parliamentary Documents prove that it had taken such care as in all the circumstances was reasonably required to ensure that the relevant part of the public road was not dangerous for traffic. A road authority is to be taken to have established the defence if it proves to the satisfaction of the court that it had a policy (such as a road management plan under clause 52) which addressed the matter and had complied with the policy. Note that clause 101 sets out principles that are to be applied in determining whether there is a duty of care and, if so, the standard of care. Finally, the clause also provides that the defence that is set out in the clause does not prejudice any other defence or the application of the law relating to contributory negligence. Clause 106 provides that, if the issue of contributory negligence is raised in any proceeding relating to a claim for negligence in relation to a road management function, the court must consider whether any matter specified in the proposed section 17A(1) of the Road Safety Act 1986 was a relevant factor. The proposed new section 17A(1) of the Road Safety Act 1986 (to be inserted by clause 138 of the Bill) sets out general obligations of road users, such as a duty to drive safely having regard to the nature of the road and prevailing traffic and weather conditions. Division 3--Other Liability Clause 107 provides that a road authority does not have a statutory duty or a common law duty to perform road management functions in respect of a public highway which is not a public road. Nor does it have a duty to maintain, inspect or repair the roadside of any public highway (whether or not a public road). Clause 108 declares, for the avoidance of doubt, that a road authority is not an occupier, and a public road is not premises, for the purposes of section 14B of the Wrongs Act 1958. It is understood that this is consistent with the position under the common law: see Buckle v Bayswater Road Board (1936) 57 CLR 259 at 280-1. The clause also provides that the clause does not affect the application of the Wrongs Act 1958 to any building on the road reserve, such as a toilet block. 45

Clause 109 provides that neither the Crown nor a road authority is liable for a public highway not being fenced in or fenced off. This is similar in effect to section 249 of the Transport Act 1983. Victorian Legislation and Parliamentary Documents Related provisions are clause 131, clause 4 of Schedule 5 and section 31 of the Fences Act 1968. Clause 110 limits the liability of road authorities for property damages where the value of the damage is equal to or less than the "threshold amount", namely $1000, with CPI indexation under clause 111. In relation to property damages claims, the clause requires that any amount which may be recovered is to be reduced by the threshold amount. In effect, a road user bears the first $1000 of any property damage claim arising out of the condition of a road or infrastructure.. Further, a road authority is not liable for tar damage if the road authority has closed the road to traffic during works and a reasonable period after the tar was applied and covered the portion of the road to which the tar was applied with gravel or stones or other appropriate material before re-opening the road to traffic. Clause 111 provides for indexation (in line with the Consumer Price Index) of the threshold amount for the purposes of clause 110. Division 4--Liability of Persons Other than Road Authorities Clause 112 provides that a road authority may recover damages for any extraordinary expenses it incurs in repairing a road damaged as a result of the passage of extraordinary traffic or excessive weight along the road. The road authority may generally recover from any person responsible for causing that traffic or weight but may not recover from the Link corporation or Extension corporation (within the meaning of the Melbourne City Link Act 1995) or another road authority in certain specified circumstances. Clause 113 provides that an owner or occupier of land adjoining a road has a duty of care to the relevant road authority, infrastructure managers, works managers and road users. This consists of a duty not to do anything on or in relation to the land or not allow the condition of the land to affect the support the land provides to the road to the extent specified in the clause with respect to the stability of the road, the safety of road users or the condition of any infrastructure on the road. 46

Division 5--Claims Procedure Clause 114 state that the purpose of the Division is to provide for a Victorian Legislation and Parliamentary Documents notification process to a road authority in relation to the condition of a public road which may require repair, to enable site reports to be prepared for the purposes of legal proceedings and to gather information for the analysis of the causes of accidents and the planning and implementation of road management and safety measures. Clause 115 require a person who proposes to commence legal proceedings arising out of the condition of a public road or infrastructure, to give written notice of an incident to the road authority to enable that road authority to prepare a condition report under clause 116. It also requires a court to take any failure to make a report into account in determining the weight to be given in evidence in any legal proceedings brought by a person in respect of an incident. Clause 116 empowers a road authority to cause an inspection of the condition of a road or infrastructure to be carried out if it receives a notice of an incident under clause 115 or otherwise considers it appropriate for the purposes of this clause. The clause details the matters that may be included in a report, such as a statement of the condition of the road or infrastructure and appropriate photographs and other references. A certified copy of the report is admissible as evidence in any legal proceedings arising out of the condition of the public road or infrastructure on a public road. PART 7--GENERAL Clause 117 provides that the Minister may, by instrument, delegate to any person his or her powers or functions under the Bill or the regulations, except the power of delegation. Clause 118 provides that a road authority may, by instrument, delegate to a member of staff its powers under the Bill or the Regulations or under any other Act, except the power of delegation. A road authority may also delegate to another road authority and may authorise that other road authority to sub-delegate those powers. 47

Clause 119 provides that VicRoads may perform any road management function on any road to facilitate road safety and traffic management in relation to access to or from a freeway or arterial Victorian Legislation and Parliamentary Documents road, or in relation to any project assigned to VicRoads by the Minister. VicRoads must first consult with the relevant responsible road authority. Clause 120 provides that a road authority other than VicRoads, after having obtained the consent of VicRoads, may exercise any road management function on an arterial road for the purposes of facilitating road safety and traffic management in relation to access to and from the arterial road. Clause 121 provides that a road authority may enter into agreements with the owner or occupier of land adjacent to a road, or the developer of nearby land, to conduct works on that road which may benefit that person. If the road authority is the responsible authority under the Planning and Environment Act 1987, provisions of such an agreement may be incorporated into an agreement under section 173 of that Act. Clause 122 provides that a road authority may charge or recover fees for specified service it provides under the Bill, not exceeding the amounts prescribed or determined in accordance with the regulations. Clause 123 provides that a road authority may charge for services the road authority provides under the Bill. A road authority cannot charge for services in a manner that is inconsistent with the regulations. Clause 124 enables the chief executive of a road authority to issue evidentiary certificates on a range of matters that can be established from road authority records, such as whether a location is a road or a public road or ancillary area, that a document is a condition report or a road management plan or sets out a policy or policy decision of the road authority, or anything that can be determined or calculated from the records of the authority. Clause 125 provides for resolution of disputes between two or more road authorities, or between a road authority and a utility, and provides that any Code of Practice may provide for mechanisms, processes and procedures which may be adopted for the purposes of the clause. 48

Clause 126 sets out which decisions of road authorities may be reviewed by the Victorian Civil and Administrative Tribunal (VCAT). Those decisions are decisions made under clause 2 of Schedule 2 Victorian Legislation and Parliamentary Documents or referred to in clause 5(3) of Schedule 2. Clause 127 deals with compensation that may be payable by a road authority in respect of cases where the construction of a freeway or a decision under Schedule 2 (Management of Road Access) results in existing access to any land being denied. The clause sets out circumstances in which compensation will not be payable and if compensation is payable how it is to be determined. Clause 128 abrogates the distinction at common law between carriageways, footways and bridleways as it applies to certain public highways. Clause 129 partially abrogates the common law "ratione tenure" rule, under which an owner of land may have a duty to maintain a public highway over that land by reason of his or her tenure of the land. The clause provides that neither the Crown nor a road authority is liable for the maintenance of a road only because of ownership of the road. The duty of road authorities to maintain roads will be set out in clause 40. Clause 129 does not affect these duties of road authorities. Clause 130 provides that a bridge or tunnel constructed by a road authority as part of a public road across navigable waters is a lawful obstruction at common law of those navigable waters. At common law, navigable waters have similar status to public highways for some purposes, and it may be unlawful to obstruct the free navigation of those waters without specific authorisation. The clause clarifies that bridges and tunnels constructed by road authorities pursuant to their road management functions under this legislation are to be regarded as having been constructed lawfully for these purposes. Clause 131 provides that it is the intention of Divisions 2 and 3 of Part 6 and section 129 to alter or vary section 85 of the Constitution Act 1975. These provisions deal with civil liability of road authorities and works and infrastructure managers. Clause 132 sets out the regulation-making powers. These powers are based, in large part, on the existing regulation-making powers in relation to declared roads under section 56(2) of the Transport Act 1983. 49

The regulations dealing with utility infrastructure on works are to be made following consultation with the Utilities' Infrastructure Reference Panel (to be established under Victorian Legislation and Parliamentary Documents clause 31). These regulations are intended to establish a process that is consistent with the works and infrastructure management principles set out in clause 20(2) and to provide exemptions from consent requirements where classes of infrastructure or works do not have significant impacts on road safety, traffic or other infrastructure. Clause 133 provides that Regulations which may be made in respect of a freeway may be made in respect of the Link road or the Extension road. The clause also reconstrues a number of terms in the Bill for the purpose of any Regulations made in respect of the Link road or Extension road. Clause 134 sets out the scope of the application of the Bill to the Link road and Extension road. The Link corporation and the Extension corporation (the bodies which, under the Melbourne City Link Act 1995, administer the Link road and the Extension road respectively) will have the powers and functions of a responsible road authority in relation to those roads. These are road operation and management powers that, under the relevant Concession Deeds, are to be conferred on the road operators. The powers of coordinating road authorities are not conferred on the road operators but may be exercised by VicRoads in respect of the roads at the request of the operators. This maintains the principle established under the Concession Deeds that the operators will exercise powers relating to construction, repair, maintenance and operation of the roads but will not exercise powers of a regulatory or enforcement nature: see clause 2.18 of "the Agreement" within the meaning of the Melbourne City Link Act 1995. The clause also modifies the application of specific provisions of the Bill as it applies to the Link road and the Extension road to maintain the existing allocation of responsibilities and functions. Clause 135 provides for the transitional and savings provisions set out in Schedule 9 to have effect. 50

PART 8--AMENDMENT OF OTHER ACTS Division 1--Transport Act 1983 Victorian Legislation and Parliamentary Documents Clause 136 amends the Transport Act 1983 to insert two new sections - 15A and 15B. The Roads Corporation is established by section 15 and incorporated by section 27 of the Transport Act 1983. The Roads Corporation is commonly known as VicRoads and is referred to throughout the Bill by that name--see the definition of "VicRoads" in clause 3. New section 15A provides that, despite anything to the contrary in the Business Names Act 1962, the Roads Corporation may carry on business under the name "VicRoads". New section 15B provides that, subject to any directions given or conditions imposed by the Minister, the Roads Corporation may also perform its functions and exercise its powers outside Victoria and outside Australia. Clause 137 makes a number of consequential amendments to the Transport Act 1983. Sub-clauses (1), and (6) to (16) repeal various definitions and provisions of the Transport Act 1983 and consequentially amend other provisions. Sub-clauses (2) to (6) make consequential amendments to sections 9E, 9F, 9I and 9J of the Transport Act 1983 which confer certain powers on the Director of Public Transport which are exercisable on roads. Sub-clause (2) amends section 9E(1) of the Transport Act 1983 to-- · remove the requirement that the Director of Public Transport consult with the Roads Corporation or a relevant municipal council before opening, breaking up or diverting traffic from a road, or taking possession and using any road; · insert a requirement that the Director exercise the powers conferred under that section subject to the Road Management Act 2004; · replace a reference to "any road" with a reference to "any public road within the meaning of the Road Management Act 2004"; and 51

· replace a reference to "that road" with a reference to "that public road". Victorian Legislation and Parliamentary Documents Sub-clause (3) amends section 9F(1) of the Transport Act 1983 to-- · remove the requirement that the Director of Public Transport consult with the Roads Corporation or a relevant municipal council before installing, removing or re-locating a tram stopping place and associated facilities; · insert a requirement that the Director exercise the powers conferred under that section subject to the Road Management Act 2004; · replace a reference to "any road" with a reference to "any public road within the meaning of the Road Management Act 2004". Sub-clause (4) amends section 9I(1) of the Transport Act 1983 to-- · insert a requirement that the Director of Public Transport must, when exercising his or her powers to install, remove and relocate infrastructure comprising or supporting overhead electrical power supply systems on or over the property of the Roads Corporation or municipal councils, exercise those powers subject to the Road Management Act 2004; · remove the requirement that the Director consult with the Roads Corporation or the relevant municipal council before exercising his or her powers to install, remove and relocate infrastructure comprising or supporting overhead electrical power supply systems on or over the property of the Roads Corporation or municipal councils. Sub-clause (5) amends section 9J(1) of the Transport Act 1983 to-- · make the exercise by the Director of Public Transport of his or her power to stop traffic subject to the Road Management Act 2004; and · remove the requirement that the Director consult with the Roads Corporation before stopping traffic. 52

Division 2--Road Safety Act 1986 The amendments to be made to the Road Safety Act 1986 by Victorian Legislation and Parliamentary Documents Division 2 will come into operation on 1 July 2004-- see clause 2. Clause 138 inserts new section 17A into the Road Safety Act 1986. In essence, proposed new section 17A requires all road users to exercise personal responsibility for their own and others' safety and interests. This includes obeying relevant road and traffic laws, having regard to weather conditions and avoiding conduct that endangers the safety of others, that may damage infrastructure in the road reserve or that may harm the environment of the road reserve. This sets out factors that will be relevant in considering possible negligence by road users-- see clause 106. Clause 139 inserts a new section 68A into the Road Safety Act 1986. New section 68A creates various offences in relation to the unauthorised use of a freeway. New section 68A(1) prohibits pedestrians from using any part of a freeway without reasonable excuse other than as provided by the section. New section 68A(2) provides that a person must not cause or permit an animal to be on any part of a freeway other than a pathway without the written authorisation of the Corporation. New section 68A(3) provides that a person must not cause or permit agricultural machinery to be on any part of a freeway without the written authorisation of the Corporation. New section 68A(4) provides that unless authorised in writing by the Corporation, a person must not cause or permit any road construction or maintenance machinery or any machinery related to the maintenance of non-road infrastructure to be on any part of a freeway. Clause 140 inserts a new paragraph into section 1 of the Road Safety Act 1986, to state that one of the objects of that Act is to set out the general obligations of road users in relation to responsible road use. 53

Division 3--Other Amendments to Road Safety Act 1986 The amendments to be made to the Road Safety Act 1986 by Victorian Legislation and Parliamentary Documents Division 3 will come into operation on a day or days to be proclaimed but no later than 1 January 2005--see clause 2. Clause 141 inserts new sections 99A and 99B into the Road Safety Act 1986. New section 99A creates an obligation on a person who is conducting or proposing to conduct works on a highway to ensure that the works are conducted in a manner that is safe for road users and persons engaged in carrying out the works. It is an offence to fail to comply with this obligation. To meet this obligation, the person must, among other things, have in operation a traffic management plan. A traffic management plan must comply with any requirements that are prescribed under the regulations. The Minister administering the Road Management Act 2004 may issue a Code of Practice for the purposes of new section 99A. New section 99B empowers a road authority to issue permits for the conduct of non-road activities on highways. Permits may be issued subject to any terms, conditions or limitations which the road authority considers appropriate and on payment of a fee. The new section also provides that the authority may authorise the closure of the highway for the purpose of conducting the non-road activity. In addition to State road authorities having the power to issue a permit for the conduct of a non-road activity, the Minister may, on the application of the person proposing to conduct the activity, declare that certain provisions of the Bill do not apply with respect to the non-road activity. Examples of non-road activities include use of the road to shoot a film, or for a bicycle event, a street festival or a street market. New section 99B(6) also makes the person to whom a permit is issued responsible for the use of the highway for the purpose of conducting the non-road activity for the period that the permit is in force. Clause 142 amends the Road Safety Act 1986 to enable regulations to be made dealing with the making and contents of traffic management plans and related matters. There must be consultation with the Utilities' Infrastructure Reference Panel over such regulations. 54

Division 4--Local Government Act 1989 The amendments to be made to the Local Government Act 1989 by Victorian Legislation and Parliamentary Documents Division 4 will come into operation on 1 July 2004--see clause 2. Clause 143 consequentially amends section 3 of the Local Government Act 1989 to insert definitions that cross-reference to terms used in this Bill. Clause 144 consequentially amends the Local Government Act 1989 by repealing sections 202, 203 and 207F of that Act. The matters dealt with in those provisions are now dealt with in this Bill. Clause 145 consequentially amends section 205 of the Local Government Act 1989, which deals with municipal councils' obligations to maintain roads, to ensure consistency with the requirements of this Bill. Clause 146 substitutes section 207 of the Local Government Act 1989. New section 207 provides that without limiting any other powers of a Council as a road authority, the powers include the specific traffic management powers set out in Schedule 11. These powers must be exercised subject to the requirements of this Bill. Clause 147 makes consequential amendments to sections 208 of, and clauses 9(4) and 10(3) of Schedule 11 to, the Local Government Act 1989. The clause also repeals clause 8(2) of Schedule 11 to that Act. Division 5--Miscellaneous amendments The amendments to be made to other Acts by Division 5 will come into operation on 1 July 2004--see clause 2. Clause 148 inserts a new section 3A into the Alpine Resorts Act 1997, dealing with the status of roads under that Act for the purposes of this Bill. Clause 149 makes a consequential amendment to the Business Franchise (Petroleum Products) Act 1979. Clause 150 makes a consequential amendment to a reference to "declared roads" within the meaning of the Transport Act 1983 in the Casino Control Act 1991. Clause 151 makes a consequential amendment to the Catchment and Land Protection Act 1994 to replace references to "declared roads" within the meaning of the Transport Act 1983. 55

Clause 152 makes a consequential amendment to section 15 of the Chinatown Historic Precinct Act 1984 to maintain the road management powers and functions of the Melbourne City Victorian Legislation and Parliamentary Documents Council in relation to that precinct. Clause 153 makes consequential amendments to sections 44A and 45 of the Commonwealth Games Arrangements Act 2001 to cross- reference to the relevant provisions of this Bill. Clause 154 amends the Crown Land (Reserves) Act 1978 to insert a new section 3A. New section 3A sets out when a road on reserved Crown land is a road or public road for the purposes of the Road Management Act 2004, and sets out which person or body will be the relevant road authority in respect of those roads for the purposes of the Road Management Act 2004. Clause 155 makes a consequential amendment to the Electricity Safety Act 1998 to replace a reference in section 84(6) to "declared roads" within the meaning of the Transport Act 1983 with a reference to "freeways or arterial roads" within the meaning of the Road Management Act 2004. Clause 156 makes a consequential amendment to section 19 of the Fences Act 1968 to insert a cross-reference to the Road Management Act 2004. Clause 157 amends the Forests Act 1958 to insert a new section 3A. New section 3A sets out when a road under the Forests Act 1958 is a road or public road for the purposes of the Road Management Act 2004. The section also sets out which person or body will be the relevant road authority in respect of those roads for the purposes of the Road Management Act 2004. Clause 158 amends section 77 of the Forests Act 1958 to ensure that the provisions of that Act relating to the management of forests continue to prevail over provisions of legislation relating to road management to the extent of any inconsistency. The clause also makes some consequential amendments for the purposes of cross-references to the Road Management Act 2004. Clause 159 makes consequential amendments to sections 3 and 5 of the Impounding of Livestock Act 1984 to replace references to "declared roads" within the meaning of the Transport Act 1983 with references "freeways or arterial roads" within the meaning of the Road Management Act 2004. 56

Clause 160 inserts a new section 3A into the Land Act 1958. New section 3A sets out when a road under the Land Act 1958 Victorian Legislation and Parliamentary Documents (other than a road to which section 400 applies) is a road or public road for the purposes of the Road Management Act 2004. Section 400 of the Land Act deals with unused roads being used for other purposes by adjoining landowners: these are often "paper roads"--see notes on the definition of "public highway" in clause 3. The section also sets out which person or body will be the relevant road authority in respect of roads under the Land Act 1958 for the purposes of the Road Management Act 2004. The section also provides that the Road Management Act 2004 is not to be construed as requiring a road which is specified to be an unused road under section 400 to be opened to the public or maintained. Clause 161 makes consequential amendments to the Land Act 1958. It amends section 22A(6), to provide that the provisions of section 22A dealing with the surrender to the Crown of public authority land do not affect the operation of the Road Management Act 2004, in addition to the Transport Act 1983. The clause also amends sections 134A, 138A and 339A of the Land Act 1958 to replace references to "declared roads" within the meaning of the Transport Act 1983 with references to "freeways or arterial roads" within the meaning of the Road Management Act 2004. These provisions deal with the leasing or licensing or alienation of strata of land above or below roads, such as above tunnels or below bridges or elevated roads. Clause 162 makes consequential amendments to the Melbourne City Link Act 1995. Section 3 is amended to change definitions to bring them into line with the terminology used in this Bill. In particular, the definition of "State highway" is removed and a definition of "arterial road" is inserted. Section 12 is amended to enable delegation of road management and operation functions under the Road Management Act 2004 and regulations in the same manner as existing functions under the Transport Act 1983 and regulations may be delegated. Sections 61 and 93H are amended to include cross-referencing to the relevant provisions of the Road Management Act 2004. 57

Sections 90, 90A and 90E are amended to enable "restricted tolling information" to be used in relation to enforcement and administration of the Road Management Act 2004 and Victorian Legislation and Parliamentary Documents regulations in the same way as it can be used in relation to enforcement and administration of the Transport Act 1983 and regulations. Clause 163 makes a consequential amendment to the Metropolitan Fire Brigades Act 1958 to replace a reference to "declared roads" within the meaning of the Transport Act 1983 with a reference to "freeways or arterial roads" within the meaning of the Road Management Act 2004. Clause 164 inserts new section 4A into the National Parks Act 1975. New section 4A sets out when a road under the National Parks Act 1975 is a road or public road for the purposes of the Road Management Act 2004. The new section also sets out which person or body will be the relevant road authority in respect of those roads for the purposes of the Road Management Act 2004. Clause 165 also amends the National Parks Act 1975. It amends section 27 of the National Parks Act 1975 to ensure that the provisions of that Act relating to the management of national parks continue to prevail over provisions of legislation relating to road management to the extent of any inconsistency. The clause also makes consequential amendment to the National Parks Act 1975 to replace a reference to "declared roads" within the meaning of the Transport Act 1983 with a reference to "freeways or arterial roads" within the meaning of the Road Management Act 2004. The clause also inserts a transitional provision that saves the effect of notices published under section 48(4) of the Act prior to the passing of this Bill. A notice under section 48(4) enables regulations to be made under the National Parks Act 1975 in relation to declared roads to which the notice applies that pass through national parks. Clause 166 makes consequential amendments to sections 35 and 44 of the Planning and Environment Act 1987-- · to replace references to the Transport Act 1983 with reference to the Road Management Act 2004; 58

· to replace references to "declared roads" within the meaning of the Transport Act 1983 with references to "freeways or arterial roads" within the meaning of the Victorian Legislation and Parliamentary Documents Road Management Act 2004. Clause 167 amends the Victorian Civil and Administrative Tribunal Act 1998. The effect of the amendments is to treat appeals to the Tribunal as appeals under "planning enactments" for the purposes of that Act. This maintains consistency with the current position, as appeals against decisions under regulations under section 56 of the Transport Act 1983 are presently treated as appeals under "planning enactments". The matters under this Bill in respect of which the Tribunal will have jurisdiction are-- · decisions in relation to development contribution in relation to the construction of State roads under clause 57, · decisions in relation to access to controlled access roads under clause 126 and Schedule 2, and · decisions under regulations made under clause 132. Clause 168 declares that it is the intention of section 52 of the Victorian Civil and Administrative Tribunal Act 1998, as amended by clause 167, to alter or vary section 85 of the Constitution Act 1975. This is necessary because section 52 of the Victorian Civil and Administrative Tribunal Act 1998 varies the jurisdiction of the Supreme Court in relation to planning enactments. Clause 169 makes a consequential amendment to the Victorian Plantations Corporation Act 1993 to replace a reference to "declared roads" within the meaning of the Transport Act 1983 with a reference to "freeways or arterial roads" within the meaning of the Road Management Act 2004. Clause 170 makes a number of amendments to section 93 of the Electricity Industry Act 2000. Sub-clause (1) inserts "subject to the Road Management Act 2004" into section 93(1)(d). The purpose of this amendment is to make the powers of an electricity corporation to carry out works on roads subject to compliance with the requirements of the Road Management Act 2004. See, in particular, Schedule 7 to this Bill. 59

Sub-clause (2) inserts new sub-sections (6) to (8) into section 93. Proposed new sub-section (6) provides that the entitlement to Victorian Legislation and Parliamentary Documents compensation conferred under section 93(2) in relation to damage caused as a result of the exercise of a power under section 93(1) is not affected by anything to the contrary in the Road Management Act 2004 or any right, conferred, or any obligation or duty imposed under that Act. The purpose of new sub-section (6) is to enable the compensation regime presently provided for under section 93 to operate in cases where damage is caused to a public road in consequence of the exercise of a power under section 93(1). Proposed new sub-section (7) provides that an access code issued by the Essential Services Commission under section 93 must not confer any right or power, or impose any obligation or duty, which is inconsistent with the Road Management Act 2004. Proposed new sub-section (8) provides that any access code that is inconsistent with the requirement in new sub-section (7) is of no effect to the extent of the inconsistency. Clause 171 inserts a new sub-section (9A) into section 86 of the Electricity Safety Act 1998. This maintains the existing position under section 86(9) of that Act that no consent is required from the relevant road authority to remove tree branches near power lines. Clause 172 makes a number of amendments to section 149 of the Gas Industry Act 2001. Sub-clause (1) amends section 149(1) to make the exercise of the works powers of gas distribution and gas transmission companies in relation to roads subject to the Road Management Act 2004. Sub-clause (2) repeals section 149(2), because the notification obligation set out in the section is now to be found in clause 7 of Schedule 7 to the Road Management Act 2004. Sub-clause (3) makes 2 amendments to section 149(3). First, the clause clarifies that the powers conferred under section 149 may also be exercised in relation to roads. Secondly, the clause repeals paragraphs (a) and (b) of sub-section (3), because the obligations in those paragraphs are now to be found in Schedule 7 to the Road Management Act 2004. Sub-clause (4) inserts new sub-sections (8) to (10) into section 149. Proposed new sub-section (8) provides that a land access code issued by the Essential Services Commission under section 149 must not confer any right or power, or impose any obligation or 60

duty, which is inconsistent with the Road Management Act 2004. Victorian Legislation and Parliamentary Documents Proposed new sub-section (9) provides that a land access code that is inconsistent with the requirement in new sub-section (8) is of no effect to the extent of the inconsistency. Clause 173 inserts a new sub-section (1A) into section 32 of the Pipelines Act 1967 to deal with pipelines which will run along, across, over or under a road or bridge.. Proposed new sub-section (1A) provides that, in those cases, the pipeline to be constructed must, at the expense of the licensee, be constructed subject to and in accordance with the Road Management Act 2004. Clause 174 makes a number of amendments to sections 62, 63, 66 and 67 of the Rail Corporations Act 1996. Sub-clauses (1) and (2) amend section 62 of the Rail Corporations Act 1996. That section confers on Rail Track, V/Line Passenger Corporation, Spencer Street Station Authority, train operators, tram operators and other specified persons, the power to open, break up or divert traffic from a road, and to take possession of and use any road. Sub-clause (1) amends section 62(1) of the Rail Corporations Act 1996 to-- · remove the requirement for Rail Track, V/Line Passenger Corporation, Spencer Street Station Authority, train operators, tram operators and other specified persons to consult with the Roads Corporation or a relevant municipal council before opening, breaking up or diverting traffic from a road, or taking possession and using any road; · insert a requirement that those persons exercise the powers conferred by that section subject to the Road Management Act 2004. Sub-clause (2) inserts new sub-sections (2A) and (2B) into section 62 of the Rail Corporations Act 1996. Proposed new sub-sections (2A) and (2B) deal with directions that the Director of Public Transport may, under section 62, give to Rail Track, V/Line Passenger Corporation, Spencer Street Station Authority, train operators, tram operators and other specified persons. The effect of the new sub-sections (2A) and (2B) is that directions may not be inconsistent with the Road Management Act 2004. 61

Sub-clauses (3) and (4) amend section 63 of the Rail Corporations Act 1996. That section confers on Rail Track, tram operators and other specified persons the power to install, Victorian Legislation and Parliamentary Documents remove or re-locate stopping places and associated facilities on any road. Sub-clause (3) amends section 63(1) of the Rail Corporations Act 1996. The sub-clause-- · removes the requirement for Rail Track, tram operators and other specified persons to consult with the Roads Corporation or a relevant municipal council before installing, removing or re-locating a tram stopping place and associated facilities; · inserts a requirement that Rail Track, tram operators and other specified persons exercise the powers conferred under that section subject to the Road Management Act 2003; Sub-clause (4) inserts new sub-sections (2A) and (2B) into section 63 of the Rail Corporations Act 1996. Proposed new sub-section (2A) and (2B) operate to limit the kinds of directions that the Director of Public Transport may, under section 63, give to Rail Track, tram operators and other specified persons. The effect of the new sub-sections (2A) and (2B) is that directions may not be inconsistent with the Road Management Act 2004. Sub-clauses (5) and (6) amend section 66 of the Rail Corporations Act 1996. That section confers on train operators, tram operators and other persons referred to in the section the power to install, remove and relocate infrastructure comprising or supporting overhead electrical power supply systems on or over the property of the Roads Corporation or municipal councils. Sub-clause (5) amends section 66(1) of the Rail Corporations Act 1996. The sub-clause-- · inserts a requirement that train operators, tram operators and other persons referred to in the section must exercise their powers to install, remove and relocate infrastructure comprising or supporting overhead electrical power supply systems subject to the Road Management Act 2004; 62

· removes the requirement that those persons consult with the Roads Corporation or the relevant municipal council before exercising their powers to install, remove and Victorian Legislation and Parliamentary Documents relocate infrastructure comprising or supporting overhead electrical power supply systems. Sub-clause (6) inserts new sub-sections (2A) and (2B) into section 66 of the Rail Corporations Act 1996. Proposed new sub-sections (2A) and (2B) operate to limit the kinds of directions that the Director of Public Transport may, under section 66, give to train operators, tram operators and other persons referred to in the section. The effect of the new sub- sections (2A) and (2B) is that directions may not be inconsistent with the Road Management Act 2004. Sub-clauses (7) and (8) amend section 67 of the Rail Corporations Act 1996. That section confers on Rail Track, V/Line Passenger Corporation, train operators, tram operators and other persons referred to in the section to stop traffic. Sub-clause (7) amends section 67(1) of the Rail Corporations Act 1996 to-- · make the exercise of the power to stop traffic subject to the Road Management Act 2004; and · remove the requirement that Rail Track, V/Line Passenger Corporation, train operators, tram operators and other persons referred in the section consult with the Roads Corporation before stopping traffic. Sub-clause (8) inserts new sub-sections (2A) and (2B) into section 67 of the Rail Corporations Act 1996. Proposed new sub-sections (2A) and (2B) operate to limit the kinds of directions that the Director of Public Transport may, under section 67, give to Rail Track, V/Line Passenger Corporation, train operators, tram operators and other persons referred to in the section. The effect of the new sub- sections (2A) and (2B) is that directions may not be inconsistent with the Road Management Act 2004. 63

Clause 175 substitutes section 137 of the Water Act 1989 with a new section. Victorian Legislation and Parliamentary Documents Proposed new section 137 provides that, subject to the Road Management Act 2004, an Authority may-- · in relation to a road within the meaning of the Road Management Act 2003, enter upon any public or private land or road for the purpose of carrying out any works that the Authority is empowered to carry out, and · temporarily close to traffic the public road or any part of it, if it is necessary to do so for the carrying out of such works. Clause 176 amends section 148 of the Water Act 1989. Sub-clause (1) makes a consequential amendment related to the amendments being made to the section by sub-clause (2). Sub-clause (2) inserts new sub-sections (6) to (9) into section 48. Proposed new sub-section (6) provides an exemption from the offence set out in section 148(1) in cases where the Authority does anything referred to in section 148(1) for the purpose of constructing a road or conducting maintenance works on a road. Proposed new sub-section (7) provides that in cases where proposed new sub-section (6) applies, the relevant road authority is subject to any directions given to the road authority by an Authority which are reasonably necessary to ensure the safety of any works of the Authority or to prevent an interruption of the water supply. Proposed new sub-section (8) provides that, if a dispute arises between a road authority and an Authority in relation to any directions given under proposed new sub-section (7), the resolution of those disputes is to be determined in accordance with section 125 of the Road Management Act 2004. Proposed new sub-section (9) inserts a new definition of "road authority" for the purposes of the section: the term has the same meaning as in section 3(1) of the Road Management Act 2004. 64

Clause 177 substitutes section 62 of the Water Industry Act 1994 with a new section. Victorian Legislation and Parliamentary Documents Proposed new section 62 provides that, subject to the Road Management Act 2004, a licensee may-- · in relation to a road within the meaning of the Road Management Act 2004, enter upon any public or private land or road for the purpose of carrying out any works that the licensee is empowered to carry out, and · temporarily close to traffic the road or any part of it, if it is necessary to do so for the carrying out of such works. Clause 178 amends section 66 of the Water Industry Act 1994. Sub-clause (1) make a consequential amendment related to the amendments being made to the section by sub-clause (2). Sub-clause (2) inserts new sub-sections (6) to (9) into section 66. Proposed new sub-section (6) provides an exemption from the offence set out section 66(1) in cases where a road authority does anything referred to in section 66(1) for the purpose of constructing a road or conducting maintenance works on a road. Proposed new sub-section (7) provides that in cases where proposed new sub-section (6) applies, the relevant road authority is subject to any directions given to the road authority by a licensee which are reasonably necessary to ensure the safety of any works of the licensee or to prevent an interruption of the water supply. Proposed new sub-section (8) provides that if a dispute arises between a road authority and a licensee in relation to any directions given under proposed new sub-section (7), the resolution of those disputes is to be determined in accordance with section 125 of the Road Management Act 2004. Proposed new sub-section (9) inserts a new definition of "road authority" for the purposes of the section: the term has the same meaning as in section 3(1) of the Road Management Act 2004. 65

SCHEDULES To assist road authorities, works and infrastructure managers and Victorian Legislation and Parliamentary Documents other persons who have to administer or deal with this legislation, the key duties and responsibilities have been grouped together into a number of Schedules for ease of reference. Schedule 1 sets out the matters which must be, and may be, included in a register of public roads. It will take effect when clause 19 of the Bill comes into operation. Clause 1 sets out the matters which must be included. They are-- · the name of each public road or description of the road if it is unnamed; · the date on which a road became a public road (if after 1 July 2004); · the date on which a road ceases to be a public road; · the classification of the public road (if any); · the reference of any plan or instrument made after 1 July 2004 that fixes or varies the boundaries of a public road; · any ancillary areas; · any agreements under which responsibility for any part of a public road or ancillary area is transferred to or from another road authority--see clause 15; · details of any toll zones declared under section 61 or 93H of the Melbourne City Link Act 1995; · any matter required to be included by the relevant road Minister under a direction under clause 22 of the Bill; · any other matter required to be included by the Bill; and · any other matter which is prescribed by the regulation for the purposes of clause 1 of this Schedule. Clause 2 sets out what information may, at the road authority's discretion, be included on a register of public roads, including information about or cross-references to-- · the date the road became a road if before 1 July 2004; · about infrastructure in, on, over or under a road; 66

· the mechanism by which a road was created or became a road; Victorian Legislation and Parliamentary Documents · construction standards for a public road; · the reference of any plan or instrument made before 1 July 2004 that fixes or varies the boundaries of a road; and · any other information a road authority considers appropriate. Schedule 2 sets out provisions relating to the connection of roads and access points to freeways and access points to controlled access roads. It will take effect when clause 42 of the Act comes into operation. Clause 1 provides that no road, private road or access point is to be connected to a freeway without the written consent of VicRoads. Offences that are related to this obligation are set out in clause 60 of the Bill. Clause 2 empowers a road authority to make a decision in respect of one or more controlled access roads and land that is adjacent to such roads. The clause sets out the things or matters which may be specified in a decision, including the location or locations at which access between the particular adjacent land and a road is permitted and restrictions and conditions on the use of the location of access. A condition or restriction may also include a prohibition. This will enable road authorities to regulate access in hazardous locations in the interests of improving road safety or for traffic management purposes. For example, it may be necessary to declare a winding mountain road so as to require driveways to be placed in safe locations rather than on blind corners. Clause 3 requires a road authority to make a policy with respect to the application of clause 2 for each controlled access road proposed to be declared under clause 42 of the Bill. The clause also requires a road authority to-- · provide a copy of any policy to the responsible authority within the meaning of the Planning and Environment Act 1987 administering the planning scheme applying to the area in which the controlled access road is located; and 67

· notify the responsible authority within the meaning of the Planning and Environment Act 1987 administering the planning scheme applying to the area Victorian Legislation and Parliamentary Documents in which the controlled access road is located of any amendment or revocation of a policy. Clause 4 operates in respect of VicRoads in cases where it is proposing to act under clause 42 of the Bill or clause 3 of this schedule. The clause sets out a procedure by which VicRoads must consult with relevant municipal councils. Clause 5 sets out the relevant publication and notification requirements for declarations made under clause of the Bill and policies made under clause 3 of this Schedule. Schedule 3 sets out specific powers of State road authorities. It will take effect when clause 43 of the Bill comes into operation. The powers set out in the Schedule include-- · the power to construct, inspect, maintain and repair roads; · the power to determine the standard of construction in respect of a road that is to be constructed; · the power to deviate roads; · the power to remove unlawful objects from the road reserve; · the power to erect signs and name roads; · the power to establish survey marks; · the power to provide for temporary roads; · powers concerning fences, gates and bypasses; · powers to make bridges, crossings, footpaths or channels next to a road; and · the power to remove trees or vegetation. Schedule 4 sets out specific traffic management powers of State road authorities. It will take effect when clause 44 of the Bill comes into operation. The powers conferred under this Schedule are subject to compliance with the Road Safety Act 1986 and regulations. 68

Clause 1 provides that a State road authority has the power to manage traffic on a road for which it is the coordinating authority. Victorian Legislation and Parliamentary Documents Clause 2 empowers a State road authority, with respect to a non- arterial State road, to fix, rescind or vary-- · the days, hours and periods of time for which, and the conditions on which, vehicles may stand in a parking area in a non-arterial State road; · fees for any vehicles standing in a parking area and the manner of payment of those fees; and · fees for residents for local permit parking. The clause also provides that VicRoads may, with respect to arterial roads, manage a clearway and make policy decisions in relation to traffic management after consultation with any affected municipal councils. Finally, the clause provides that a municipal council must exercise the powers conferred on it under the Local Government Act 1989 in a manner which is consistent with this clause. Clause 3 provides that a State road authority may issue a special parking permit, to any disabled person to enable them to leave a vehicle standing, on different conditions from those fixed under clause 2. Clauses 4 and 5 empower a State road authority to remove unregistered or abandoned vehicles or vehicles causing obstructions or dangers. In respect of abandoned vehicles, clause 4 empowers a State road authority to sell, destroy or give away the vehicle. In relation to vehicles causing an obstruction or danger, a State road authority may charge the owner of the vehicle a fee for the return of the vehicle to the owner. Clause 6 empowers a State road authority to remove other kinds of obstructions that obstruct the free use of a road or reduces the breadth or confines the limits of a road. Clause 7 empowers a State road authority, for the purposes of enabling works to be carried out on or over a road, to fence off or occupy part of the road and erect a structure or temporary crossing for vehicles on or over the road. Clause 8 empowers a State road authority to close a road or part of a road for a particular period during the year. 69

Clause 9 empowers a State road authority to erect and remove any works or structures to protect passengers, pedestrians and drivers on a road, or to regulate traffic on a road. Victorian Legislation and Parliamentary Documents Clause 10 empowers a State road authority to permanently block or restrict the passage of access of vehicles on a road. Clause 11 empowers a State road authority to temporarily block or restrict the passage or access of vehicles. The clause goes on to provide the circumstances in which a State road authority may temporarily close a road. Clause 12 empowers a State road authority to prohibit or restrict the use of a road by a motor vehicle of, or over, a certain size or weight. Clause 13 provides that a State road authority may determine speed limits for vehicles on a roadway. Clause 14 provides that a State road authority may prohibit or restrict traffic on a road that it considers unsafe for that traffic. Schedule 5 sets out various powers in relation to property rights in roads and land under roads. It will take effect when clause 45 of the Bill comes into operation. Clause 1 deals with the vesting of property rights in the land over which there is a road. In summary, the clause provides that the Crown has absolute property in the land over which there is a freeway or arterial road, and all land reserved or proclaimed as a road under the Crown Land (Reserves) Act 1978, the Land Act 1958, the Forests Act 1958 or the National Parks Act 1975. The clause also provides that all roads within a municipal district vest in fee simple in the relevant council, other than-- · a freeway, · an arterial road, · a road that the council and VicRoads agree should vest in VicRoads, · a road on Crown land, or · roads vested in a Minister or a public authority. 70

This clause continues the current ownership arrangements in relation to road ownership that presently operate under the Transport Act 1983, the Local Government Act 1989, the Victorian Legislation and Parliamentary Documents Crown Land (Reserves) Act 1978, the Land Act 1958, the Forests Act 1958 and the National Parks Act 1975. Clause 2 deals with certain issues in relation to the nature of ownership of roads. The "ownership" of the road is given to the road authority for management purposes. In this regard, the comments of Mr Justice Dixon in Buckle v Bayswater Road Board (1936) 57 CLR 259 at 281 are relevant-- "The purpose of giving the road authority property in and control over the road is to enable it to execute its powers in relation to the highway, not to impose upon it new duties analogous to those of an occupier of property." In particular, a road authority does not have the duties of a land owner in respect of a road other than the duties it would have if it were only the road authority, and that the "ownership" of the road does not expose the land to adverse possession claims nor to the creation of easements by long user. Nor does it authorise the sale or disposition of the land in the road, nor make that land subject to the Land Acquisition and Compensation Act 1986. In this regard, it should be noted that, under clause 10 of this Bill, the public's rights over a public highway may only be extinguished by or under legislation: this is intended to confirm the existing common law principle that highways are dedicated in perpetuity, or "once a highway, always a highway". Sub-clause (2) provides that, for management purposes, a road authority will have all the powers of a landowner other than the power to dispose of the land. Clause 3 operates to fix the boundaries of a road in relation to which a boundary has not otherwise been fixed. If the road adjoins freehold land or land held under a Crown lease, then the road boundary is the same as that property's boundary. If the road adjoins unalienated Crown land, then the road's boundary is one metre from the edge of the roadway or, if there is road- related infrastructure, such as an embankment, from the edge of that infrastructure. Clause 4 provides that neither the Crown nor a road authority is required to fence or contribute to the fencing of any portion of a public highway. See also clause 109 of the Bill and section 31 of the Fences Act 1968. 71

Clause 5 provides that, subject to clause 16 of Schedule 7, a State road authority may use a road in the performance of its other functions if the use does not unreasonably interfere with the Victorian Legislation and Parliamentary Documents primary purpose of the road. The primary purpose of the road is use by members of the public (see clause 14(2) of Schedule 7). Clause 6 provides that a road authority has, in respect of a public highway for which it is responsible, a right, in the nature of an easement, of physical support from land adjacent to the public highway. Clause 7 provides that a State road authority may exercise any power conferred on it under the Bill in respect of a specified stratum only. So, for example, in declaring an arterial road under clause 14, VicRoads could declare the road in stratum only. Clause 8 enables a State road authority, for the purpose of the construction or maintenance of a road, to exercise any power conferred on it under the Bill in respect of unreserved Crown land or land vested in a public authority. Before doing so, the State road authority must obtain the appropriate written consent as specified in the clause. Clause 9 empowers a State road authority to grant a lease or licence over any part of a road reserve other than a roadway if the authority is satisfied that the lease or licence will not significantly affect the primary purpose of the road. The lease must not exceed 40 years. The authority must give notice to the Minister administering the Land Act 1958 of any lease or licence granted under the clause. Clause 10 provides that infrastructure installed on, in, under or over a road is not part of the land or road on, in, under or over which it is installed, and is personal property of the relevant road authority or infrastructure manager. Thus, for example, an electricity pole or gas pipe would be the property of the relevant utility, and road infrastructure (the roadway, footpath, traffic signs etc) would be the property of the relevant road authority. Clause 11 confers powers of compulsory acquisition in respect of any land which is or may be required by a State road authority for or in connection with the performance of the authority's functions under the Bill. The clause, in substance, re-enacts VicRoads' compulsory acquisition powers which are set out in section 44 of the Transport Act 1983 and which will be repealed by clause 137(8) of the Bill. 72

Clause 12 empowers the Registrar of Titles to make any recordings that are necessary or expedient in the register relating to any land affected by the exercise of a power of a State road Victorian Legislation and Parliamentary Documents authority under the Bill. Clause 13 enables VicRoads to be appointed a committee of management of a reserve under the Crown Land (Reserves) Act 1978. This substantially re-enacts section 48 of the Transport Act 1983, which is to be repealed by clause 137(8). Clause 14 provides that private rights of way may not develop or co-exist with public roads and do not revive on the closure of a road. Schedule 6 sets out specific powers with respect to protection of roads and adjoining land. Clause 1 empowers a State road authority to exercise any of its powers in respect of roads in relation to private roads with the agreement of the owner of or person responsible for the private land over or if the authority has reasonable grounds for considering that it is necessary or desirable to do so, in the interests of public safety or for environmental reasons. A State road authority may charge a reasonable amount for such work. Clause 2 empowers a State road authority to-- · fill any hole or excavation in or near a road; · remove any cause of possible damage to a road or of danger to anyone or anything using the road; · erect or restore any fence near any hole or excavation that is near a road. Clause 3 deals with situations where a State road authority considers that the condition of land near a road may adversely affect the safety of users of the road, or the structural integrity of any part of the road or a thing on land near a road constitutes a danger to persons or vehicles lawfully entitled to use the road. Under the clause, the authority may serve a notice on the owner or occupier of the land requiring the owner or occupier to remove, mitigate or rectify the condition or thing specified in the notice. It is an offence not to comply with a direction set out in a notice. That offence is set out in clause 61 of the Bill. 73

Clause 4 empowers a State road authority to enter any land to which clause 3 applies for the purpose of exercising powers under that clause if-- Victorian Legislation and Parliamentary Documents · the owner or occupier has not complied with a direction under that clause; or · the State road authority considers that there is an emergency or that the works are required urgently to ensure public safety, the structural integrity of the road or the movement of traffic on the road. Clause 5 provides that a State road authority may construct, install and maintain structures or works on any land near a road for the purpose of ensuring the structural integrity of the road. Schedule 7 deals with infrastructure and works on roads. The Schedule is divided into two Parts. Part 1 sets out specific duties of infrastructure managers and works managers in relation to the conduct of works on roads and the installation of non-road infrastructure in road reserves. Part 2 sets out the specific powers of coordinating road authorities with respect to infrastructure and works on roads. Clause 1 sets out the duty of infrastructure managers and works managers to have regard to the principles set out in clause 14 of the Schedule in the performance of their functions or the exercise of their powers in the provision of non-road infrastructure on roads. Clause 2 imposes a duty on infrastructure managers and work managers, in installing non-road infrastructure and conducting related works, to apply good engineering practice and relevant industry standards. Clause 3 imposes a duty on infrastructure managers and works managers to comply with any requirements in relation to the safety of road users and with section 99A of the Road Safety Act 1986. Section 99A is being inserted into the Road Safety Act 1986 by clause 141 of the Bill. Clause 4 imposes a duty on infrastructure managers and works managers to co-operate in good faith with the relevant road authority and any other infrastructure manager or works manager in co-ordinating the maintenance and management of non-road infrastructure and related works on a public road. 74

Clause 5 requires infrastructure managers and works managers, in conducting works for the provision of non-road infrastructure-- Victorian Legislation and Parliamentary Documents · if practicable, to use methods which do not involve excavating or breaking up the surface of a roadway or pathway; · to minimise any inconvenience to road users and other members of the public; · to minimise any long term damage or disruption; · as far as practicable, to reinstate at their own cost, the roadway or pathway to the pre-existing condition. Clause 6 imposes various duties on infrastructure managers and works managers in relation to maintaining non-road infrastructure. They are-- · to maintain the infrastructure and related works to a satisfactory state of repair; · to avoid causing damage to the road or other infrastructure; · to repair any damage caused to the road or infrastructure caused by a failure of infrastructure for which they are responsible; · to take reasonable precautions to ensure that anything placed on a road or pathway does not cause an obstruction or inconvenience; · to take reasonable precautions so as not to cause an obstruction or danger to any person with a disability; · in the case of a road used for rail infrastructure (such as a tramline or a level crossing), to ensure that the surface of the road is maintained to a satisfactory standard, equivalent to the adjacent sections of roadway. Clause 7 sets out requirements for the giving of notification to the relevant coordinating road authority in relation to proposed works for the provision of non-road infrastructure before the conduct of these works. In the case of an emergency, the relevant coordinating road authority must be advised as soon as is reasonably practicable. 75

Clause 8 imposes a duty on infrastructure managers and works managers, before installing any non-road infrastructure or related works on a public road which could affect that other Victorian Legislation and Parliamentary Documents infrastructure manager's or works manager's infrastructure in the area, to notify that other infrastructure manager or works manager. The clause also requires an infrastructure manager or works manager to negotiate in good faith so as to minimise any adverse effects on any other non-road infrastructure. Clause 9 imposes a duty on infrastructure managers and works managers to supply information in relation to the location of their non-road infrastructure, and any technical advice or assistance relating to the conduct of any works on that non-road infrastructure in a safe manner, to infrastructure manager or works manager which requests that information. The clause also provides that, in cases where an infrastructure manager or works manager becomes aware that any non-road infrastructure for which another infrastructure manager or works manager is responsible-- · is not in the location shown in relevant records; or · appears to be in an unsafe condition; or · appears to be in need of repair or maintenance-- the infrastructure manager or works manager must give that information to the other infrastructure manager or works manager. Clause 10 imposes a duty on infrastructure managers and works managers to consult with members of the public before installing non-road infrastructure or conducting related works which are likely to have a significant effect on occupiers and owners of property near the road or a class of road users or another section of the public. Clause 11 imposes a duty on infrastructure managers and works managers, while works are being conducted on a road, to take all reasonable measures to-- · minimise disruption to traffic; · ensure the safety of the works for road users and adjoining properties; · make adequate provision for persons with a disability. 76

Clause 12 imposes a duty to reinstate any roadway, pathway or area of a roadside to the standard before the works were commenced after works for the installation of non-road Victorian Legislation and Parliamentary Documents infrastructure are completed. Under the clause, an infrastructure manager and works manager must-- · complete the works as promptly as is reasonably practicable; · complete the works as nearly as reasonably practicable to an equivalent standard of quality and design; · ensure that any feature to assist persons with a disability is restored. If they do not complete the works as required by the clause, the relevant coordinating road authority may direct them to conduct appropriate reinstatement works. If they fail to comply with a direction, the relevant coordinating road authority may take measures to ensure reinstatement works are completed and may recover any costs reasonably incurred in doing so from the infrastructure manager and works manager. Clause 13 requires an infrastructure manager or works manager to notify the relevant coordinating authority within 7 days of completing any works, including reinstatement works. The clause also provides for the variation of the 7 day notice period by the relevant coordinating road authority or by regulation. Clause 14 sets out the principles which an infrastructure manager or works manager must have regard to in the provision of non- infrastructure on public roads. Note that Codes of Practice may be issued in respect of these matters and that relevant utility Ministers and the Utilities' Infrastructure Reference Panel is to be consulted in relation to such Codes (see clause 28(3) of the Bill). Clause 15 deals with the duties of infrastructure managers and works managers in relation to works conducted on a road and in relation to the provision of non-road infrastructure on a road reserve. 77

The clause provides that if an infrastructure manager or works manager is required to comply with a duty or condition of a consent given under the Bill, the infrastructure manager or works Victorian Legislation and Parliamentary Documents manager must meet the cost of complying with that duty or condition. The clause also provides that the duties set out in Schedule 7 also apply to any other person who installs infrastructure on a road or conducts works on a road without being authorised to do so. Clause 16 enables persons who wish to conduct proposed works on a road to apply to the relevant coordinating road authority for written consent to conduct those works. Under the clause, the relevant coordinating road authority may give its consent to the proposed works or refuse to give its consent to the proposed works. A consent given under the clause may be subject to conditions related to the conduct of the proposed works. Regulations under clause 132 may provide exemptions. In exercising powers under clause 16 of the Schedule to grant or withhold consent or to impose conditions, a coordinating road authority must have regard to the works and infrastructure management principles set out in clause 20 of the Bill. Clause 17 sets out the process for applications for written consent under clause 16. A time limit is imposed--if the coordinating road authority has not responded within the specified time (20 days, unless varied by regulation) it will be taken to have consented. Clause 18 provides that a coordinating road authority may enter into an agreement with a road authority infrastructure manager or works manager in respect of works on roads. Agreements entered into under the clause are not to be inconsistent with the Bill or any applicable Code of Practice. Clause 19 deals with rectification works on roads in cases where a coordinating road authority considers that the works have not been conducted in accordance with the Bill. The coordinating road authority may give a notice to the relevant person requiring rectification works to be conducted within a reasonable period specified in the notice. 78

If the relevant rectification work is not conducted within a reasonable period the coordinating road authority may-- · Victorian Legislation and Parliamentary Documents conduct the rectification works or engage a person to conduct the works on its behalf; and · recover the costs reasonably incurred in conducting those works from the person who failed to comply with the notice. Clause 20 empowers coordinating road authorities to require, by notice, the removal, relocation replacement or upgrade of existing non-road infrastructure. The clause requires that a coordinating road authority must meet the reasonable costs incurred by the infrastructure manager in completing the removal, relocation replacement or upgrade to the applicable standard. Schedule 8 sets out the offences under the Bill which may be enforced through the issuing of a road management infringement. It also fixes penalties for the purposes of those road management infringements. Schedule 8 will take effect when clause 90 of the Bill comes into operation. Note that the regulations under the Bill may authorise the use of road management infringements in respect of the offences (if any) to be created by the regulations, as well as fixing penalties for the purposes of those road management infringements-- see clause 132(2)(w). Schedule 9 sets out transitional and saving provisions. It will take effect when clause 135 of the Bill comes into operation, that is, on 1 July 2004. Clause 1 deems certain roads declared under the Transport Act 1983 to be freeways or arterial roads. Under sub-clause (1), a freeway declared under the Transport Act 1983 is deemed to have been classified as a freeway under the Bill. Under sub-clause (2), any road which is currently a forest road, main road, State highway, the King-Street Bridge or a tourists' road under the Transport Act 1983, is deemed to be an arterial road under the Bill. Under sub-clause (3), a stock route is deemed to be a road under the Bill. 79

Under sub-clause (4), a metropolitan bridge is deemed to have been classified under the Bill with the same classification under the Bill as the public road connected by that metropolitan bridge. Victorian Legislation and Parliamentary Documents Clause 2 sets out specific savings provisions in respect of the amendments made to the Transport Act 1983 and Local Government Act 1989 made by the Bill. Under sub-clause (1), the amendments made to the Transport Act 1983 by clause 134 do not affect the continuity, status, operation or effect of any act, matter or thing done existing or continuing under that Act as in force immediately before 1 July 2004. Under sub-clause (2), the repeal of section 203 of the Local Government Act 1989 does not affect the status of any public highways vested in a municipal council under that section. Schedule 10 sets out further transitional and saving provisions. It will take effect when clause 179 of the Bill comes into operation, that is, on a day to be proclaimed but no later than 1 January 2005. Clause 1 provides that clause 63 of the Bill does not apply to or in respect of the conduct of any works lawfully commenced by a person before 1 July 2004. Clause 63 will make it an offence to carry out works on a road without the consent of the relevant coordinating road authority: clause 63 will come into operation on 1 July 2004. The effect of clause 1 is that, if the works have begun before that date, no offence is committed in respect of the completion of the works after that date. Clause 2 exempts certain gas projects funded under the Regional Infrastructure Development Fund Act 1999 from the new approvals requirements of this legislation. These projects will, in effect, be subject to the legislative regime that applied in relation to such works prior to the passage of this Bill. The projects covered by this exemption are those which are for the extension of reticulated gas and associated works and funded out of the Regional Infrastructure Development Fund during the financial years 2003-04, 2004-05 and 2005-06. . 80

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