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Road Safety (Further Amendment) Bill
Introduction Print
EXPLANATORY MEMORANDUM
PART 1--PRELIMINARY
Clause 1 states the purposes of the Bill, which are to make amendments to
the Road Safety Act 1986, the Road Management Act 2004,
the Melbourne City Link Act 1995, the Road Safety (Drug
Driving) Act 2003 and the Police Regulation Act 1958; to make
minor consequential amendments to the Transport Legislation
(Amendment) Act 2004, the Magistrates' Court Act 1989 and
the Children and Young Persons (Miscellaneous
Amendments) Act 2005.
Clause 2 provides for the commencement of the Bill. All the provisions
commence on the day after the day of Royal Assent, except
clause 13 which comes into force on a day to be proclaimed or
1 January 2006, whichever is sooner. The reason for delaying the
commencement date of clause 13 is to give time for regulations
to be made regarding traffic management plans.
PART 2--AMENDMENT OF ROAD SAFETY ACT 1986
Clause 3 repeals section 3A of the Road Safety Act 1986.
Section 3A(1) provides that the Acts Interpretation Act 1901 of
the Commonwealth applies to the interpretation of the Road
Safety Act 1986, except that, in relation to Victoria--
· the word "Gazette" in the Acts Interpretation Act 1901
refers to the Victorian Government Gazette; and
· the word "Minister" in the Acts Interpretation Act 1901
refers to the responsible Minister of Victoria, which in
the case of the Road Safety Act 1986 is the Minister for
Transport.
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551312 BILL LA INTRODUCTION 4/5/2005
Section 3A(2) provides that section 3A does not prevent the
Victorian Interpretation of Legislation Act 1984 from applying
to the Road Safety Act 1986 to the extent that it can do so
consistently with the application of the Acts Interpretation Act
1901 of the Commonwealth.
The effect of section 3A is that if a provision in the Road Safety
Act 1986 can be interpreted differently depending on whether the
Acts Interpretation Act 1901 of the Commonwealth or the
Victorian Interpretation of Legislation Act 1984 applies to it,
the interpretation that results from application of the
Commonwealth Act is the one to be adopted. However, if there
is no difference in the interpretation that results from application
of the Commonwealth Act and the one that results from
application of the Victorian Act, the Victorian Act applies.
Section 3A was inserted into the Road Safety Act 1986 in 1998
to facilitate the adoption in Victoria of national road transport
laws that were being developed by the then National Road
Transport Commission, including the national Road Rules
(refer to Minister's second reading speech, Legislative Assembly,
21 April 1998). However, the Road Safety Act 1986 is
predominantly concerned with road safety initiatives that are
particular to Victoria. It is therefore preferable that the Victorian
Interpretation of Legislation Act 1984 apply to the Act as a
whole, even where the application of the Acts Interpretation Act
1901 of the Commonwealth would result in a different
interpretation.
If there are provisions where nationally uniform interpretation is
required, they should be made subject to the Acts Interpretation
Act 1901 of the Commonwealth through amendments that apply
to those particular provisions. This has been achieved by
clauses 14, 27 and 28 which apply the Acts Interpretation Act
1901 of the Commonwealth to provisions which implement a
nationally agreed approach to the regulation of heavy vehicles.
Clause 12 also allows for regulations made under the Road
Safety Act 1986 to be interpreted having regard to the Acts
Interpretation Act 1901 of the Commonwealth and the
Legislative Instruments Act 2003 of the Commonwealth.
Clauses 12, 14, 27 and 28 are discussed further below.
Clause 3 is subject to a transitional provision in clause 16.
Clause 4 amends section 50AA of the Road Safety Act 1986 so as to
apply the "10 year rule" (whereby offences more than 10 years
old are disregarded for the purpose of determining whether a
further offence is treated as a subsequent offence) to certain
drug-driving offences.
2
Section 50 establishes the periods for which a person whose
driver licence or learner permit has been cancelled as a result of
various drink-driving or drug-driving offences is disqualified
from obtaining a further licence or permit. Section 50 fixes
higher disqualification periods for subsequent offences than for
first offences.
Section 50AA provides that, in determining whether the offence
before it ("the relevant offence") is a first or subsequent offence
for the purposes of fixing a disqualification period under
section 50, the court must disregard offences where the
conviction or finding of guilt in relation to that offence was made
10 years or more before the date that the relevant offence was
committed.
This "10 year rule" is also applied under section 50AA to
determine whether a person will be treated as a subsequent
offender for the purposes of re-licensing procedures and alcohol
interlock requirements.
There are a number of drug-driving offences to which the
"10 year rule" does not apply, because the sub-sections of
section 50 establishing the relevant disqualification periods are
not referred to in section 50AA. These are--
· driving or being in charge of a motor vehicle while
impaired by a drug (section 50(1C));
· refusing to undergo an assessment of drug impairment
(section 50(1D));
· refusing to allow a blood sample to be taken, or to
provide a urine sample, if an assessment of drug
impairment indicates that the driver may be impaired by
a drug or drugs (section 50(1D)); and
· refusing to provide a sample of oral fluid as part of a
roadside drug screening test (section 50(1DA)).
The result is that a person who has been convicted or found
guilty of one of these offences 10 or more years ago may be
treated as a subsequent offender. This would result in their being
treated more harshly. To date, the failure to apply the 10 year
rule to these offences has not disadvantaged any drivers in
practice. This is because these offences were established less
than 10 years ago. (The offences relating to drug impairment
were created by the Road Safety (Amendment) Act 2000, and
the offence of refusing to provide a sample of oral fluid was
created by the Road Safety (Drug Driving) Act 2003.).
3
However, there is no reason in principle why the 10 year rule
should not also apply to them.
Therefore, clause 4 includes the drug-driving offences described
above in the list of offences to which the "10 year rule" contained
in section 50AA applies.
Clause 5(1) substitutes a new section 61(3) into the Road Safety Act 1986.
The effect of the new sub-section is to--
· increase the maximum penalty for drivers who fail to
stop or render assistance after an accident in which a
person is killed or seriously injured, as required by
section 61(1)(a) and (b), from a penalty of not more
than 80 penalty units or imprisonment for not more than
2 years to a penalty of not more than 1200 penalty units
or imprisonment for not more than 10 years; and
· defines the offence to include not only the situation
where the driver knew that an accident had occurred and
had resulted in a person being killed or suffering serious
injury, but also where the driver ought reasonably to
have known.
Clause 5(2) amends section 61(4)(a) of the Road Safety Act 1986 to remove
the reference to section 61(1)(f). Section 61(4)(a) provides that if
as a result of an accident a person is killed or suffers serious
injury then a person who was driving a motor vehicle involved in
the accident is guilty of an offence if he or she does not comply
with the reporting requirements in section 61(1)(c), (d), (e) or (f).
The reason why the reference to paragraph (f) is being removed
is that it only applies to a situation in which property is damaged
or destroyed, and is therefore not relevant to the situation
described in section 61(4)(a) of a person being killed or suffering
serious injury.
Clause 5(3) increases the penalty for a breach of the offences created by
section 61(4)(a) and (b). Section 61(4)(a) provides that if as a
result of an accident a person is killed or suffers serious injury
then a person who was driving a motor vehicle involved in the
accident is guilty of an offence if he or she does not comply with
the reporting requirements in section 61(1)(c), (d) or (e).
Section 61(4)(b) provides that if as a result of an accident a
person suffers injury then a person who fails to stop and render
assistance as required by section 61(1)(a) or (b), or who does not
comply with the reporting requirements in section 61(1)(c), (d)
or (e) or section 61(2) is guilty of an offence. The penalty for a
breach of either of these offences is being increased so that--
4
· for a first offence, the maximum penalty is increased to
80 penalty units or imprisonment for 8 months; and
· for a subsequent offence, the maximum penalty is
increased to 240 penalty units or imprisonment for
2 years.
Clause 5(4) amends section 61(6), which provides for mandatory driver
licence and learner permit cancellation where a driver has been
convicted of an offence under section 61 of failing to stop and
render assistance after an accident or failing to report an accident,
and a person is killed or suffers serious injury as a result of the
accident.
Clause 5(4)(a) provides that a minimum period of driver licence
and learner permit cancellation will also apply where a person
has been found guilty of an offence against section 61, even if he
or she is not convicted.
Clause 5(4)(b) has the effect that--
· where a person is convicted of an offence against
section 61, and a person is killed or suffers serious
injury as a result of the accident, the minimum period of
driver licence and learner permit cancellation is
increased from 2 years for a first offence and 4 years for
a subsequent offence, to 4 years for a first offence and
8 years for a subsequent offence; and
· where a person is found guilty of an offence against
section 61, and a person is killed or suffers serious
injury as a result of the accident, any driver licence or
learner permit held by that person must be cancelled for,
in the case of a first offence, at least 2 years, and in the
case of a subsequent offence, at least 4 years.
Clause 5(5) amends section 61(7) to provide that if a person who is convicted
or found guilty of an offence against any provision of section 61
has at any time been convicted or found guilty of an offence
against another provision of section 61 or any previous
corresponding provision, the conviction or finding of guilt for the
offence against that provision is to be taken to be a conviction or
finding of guilt for a subsequent offence.
5
The inclusion of a reference to a finding of guilt recognises
the fact that the financial and imprisonment penalties in
sections 61(3), (4) and (5), as well as the licence loss
consequences in section 61(6), all apply not only where a person
is convicted of an offence against section 61, but also where he or
she is found guilty of that offence.
Clause 5(6) makes it clear that the specification of the fault elements which
the prosecution must establish to prove the offence established by
the new section 61(3) which is inserted by clause 5(1) of the Bill
is not intended to affect the question of whether fault elements
are required for any other offence against the Road Safety Act
1986.
Clause 5 is subject to a transitional provision in clause 16.
Clause 6 inserts a new section 63B into the Road Safety Act 1986 to
allow for the use of tyre deflation devices in police pursuits.
Clause 63(1) provides that the Chief Commissioner of Police
may authorise the use of these devices to stop or assist in the
stopping of a vehicle in connection with the pursuit of the vehicle
by police.
Clause 63(2) provides that a member of the police force acting in
the exercise of his or her duties may place or deploy a tyre
deflation device notwithstanding any provision which would
otherwise prohibit or restrict this from being done. Examples of
such provisions are--
· section 62 of the Road Management Act 2004--
obstructing the use of a road;
· section 4(e) of the Summary Offences Act 1966--
obstructing a footpath or road; and
· regulation 603 of the Road Safety (Road Rules)
Regulations 1999--putting a destructive or injurious
thing on a road likely to endanger a vehicle.
Clause 7 amends section 64(2) of the Road Safety Act 1986 to increase
the minimum driver licence and learner permit cancellation
period in certain dangerous driving cases.
Section 64(1) of the Road Safety Act 1986 provides that a
person must not drive a motor vehicle at a speed or in a manner
which is dangerous to the public, having regard to all the
circumstances of the case.
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Under section 64(2) the penalty for this offence is a fine of not
more than 240 penalty units or imprisonment for a term of not
more than 2 years or both and on conviction the court must
cancel any driver licence or learner permit held by the offender
and disqualify him or her from obtaining one for at least
6 months.
Clause 7 amends section 64(2) to provide that this minimum
licence or permit cancellation and disqualification period also
applies when the driver is found guilty of the offence, even if he
or she is not convicted. That is, it is no longer necessary for a
conviction to be recorded in order for this licence or permit
cancellation and disqualification period to apply.
In addition, where the dangerous driving involved exceeding the
speed limit by 45 kilometres per hour or more, clause 7 increases
the minimum licence or permit cancellation and disqualification
period to 12 months. This is intended to ensure that the
minimum period which a driver who is found guilty of dangerous
driving will be off the road is no less than that which he or she
would have suffered under section 28(1)(a)(ii) of the Road
Safety Act 1986 if he or she had been found guilty of the less
serious offence of exceeding the speed limit. Section 28(1)(a)(ii)
provides that where a court convicts a person of, or is satisfied
that a person is guilty of, an offence of driving a motor vehicle at
a speed of 45 kilometres per hour or more in excess of that
permitted, it must suspend all driver licences and learner permits
held by the person for at least 12 months.
Clause 7 is subject to a transitional provision in clause 16.
Clause 8 substitutes a new section 67 into the Road Safety Act 1986,
which allows a person who can demonstrate that he or she was
not actually aware that a traffic infringement notice had been
issued against him or her to apply to the Magistrates' Court for a
further 28 days to deal with the notice. The traffic infringement
notices to which the section applies are those other than a notice
issued in respect of a drink-driving infringement, a drug-driving
infringement or an excessive speed infringement. Drink-driving,
drug-driving and excessive speed infringements are subject to a
separate extension of time procedure set out in section 89B of the
Act.
7
The previous section 67 provides that where a person was not
aware that a traffic infringement notice to which the section
applies was issued, he or she has 14 days after becoming aware
of the notice to apply to the Magistrates' Court for an extension
of time to deal with it. If the extension of time is granted, then--
· A reference in sections 66(3) or 88(3) of the Act to a
28 day period is to be read as a reference to the
extended period. (Section 66(3) establishes the time
limit for providing the name and address of the person
who was driving a vehicle or trailer and thereby
avoiding the effect of the "owner onus" provision in
section 66(1), and section 88(3) establishes the time
limit for service of a notice withdrawing a traffic
infringement notice.).
· Cancellations, disqualifications, suspensions and
extensions of probation that resulted from the notice are
set aside.
· If the penalty has been paid it must be refunded.
· Demerit points recorded as a result of the notice are
cancelled.
· The procedures set out in Schedule 7 to the
Magistrates' Court Act 1989 in relation to
enforcement of amounts specified in the notice are
discontinued and any warrants issued under that
Schedule cease to have effect.
· Anything done by the person before he or she became
aware that the notice had been issued that constituted an
offence only because of any licence sanction that
resulted from the notice does not constitute an offence.
· Any licence sanction that resulted from the notice and
that occurred after the person became aware of the
notice is to be taken into account by a court where it
finds the person guilty of an offence in respect of which
the notice was issued.
· A reference in section 89(4) to the expiration of the
period in which the penalty specified in the notice is to
be paid is to be taken to be a reference to the expiration
of the extended period.
8
New section 67 contains the following differences from the
previous section 67 summarised above--
· The traffic infringement notice continues to have effect,
unless withdrawn under section 88(3), despite the fact
that enforcement proceedings have been taken in respect
of it (new section 67(5)(a)). This is necessary because
normally once a traffic infringement notice is registered
with the PERIN Court under Schedule 7 to the
Magistrates' Court Act 1989 it is transformed into an
order of the court. A traffic infringement notice must
remain in force in order for the person against whom it
was issued to be able to take action in relation to it
under the new section 67(6).
· However, if an enforcement order had been made in
relation to the traffic infringement notice before the
extension of time order was granted, the notice only
continues to have effect until the end of the extension
period (new section 67(5)(a)). It is necessary to provide
this because if a person does not take action in relation
to the notice under new section 67(6) before the end of
the extension period, the provision cancelling the
enforcement order (new section 67(5)(g)) will not come
into operation. It is not appropriate for an enforcement
order and the traffic infringement notice in relation to
which it was made to co-exist, except for the limited
purpose of allowing the person against whom the notice
had been issued to deal with the notice under new
section 67(6) within the extended period. If the traffic
infringement notice and the enforcement order were
allowed to co-exist after that time, then the notice would
continue in operation, even after the enforcement order
had been executed, and the matter had been finalised.
If that was the case it would, at least in theory, be
possible for further enforcement proceedings to be taken
in relation to the notice, and for the person against
whom the notice was issued to be punished twice for the
same offence.
9
· A reference in section 89(1) to the period in which the
penalty specified in a traffic infringement notice is to be
paid is to be taken to be a reference to the extended
period (new section 67(5)(c)). This is necessary to
enable the penalty in the traffic infringement notice to
be paid within the further 28 days that the court has
given to deal with the notice.
· Cancellations, disqualifications, suspensions and
extensions of probation that resulted from a traffic
infringement notice are only set aside if the person
against whom it was issued takes one of the actions
outlined in new section 67(6)(b) or (c) within the
extended period (new section 67(5)(d)).
· Any part of the fine or the costs that have been incurred
in relation to the traffic infringement notice that have
been paid is only required to be refunded if the person
against whom it was issued takes one of the actions
outlined in new section 67(6)(a), (b) or (c) within the
extended period (section 67(5)(e)).
· Demerit points recorded as a result of the traffic
infringement notice are only cancelled if the person
against whom it was issued takes one of the actions
outlined in section 67(6)(b) or (c) within the extended
period (section 67(5)(f)).
· The procedures set out in Schedule 7 to the
Magistrates' Court Act 1989 in relation to
enforcement of amounts specified in the traffic
infringement notice are only discontinued and any
warrants issued under that Schedule only cease to have
effect if the person against whom it was issued takes
one of the actions outlined in section 67(4)(a), (b) or (c)
within the extended period (section 67(3)(g)).
· Anything done by the person before he or she became
aware that the traffic infringement notice had been
issued that constituted an offence only because of any
licence sanction that resulted from the notice is only
excused from being an offence if the person against
whom the notice was issued takes one of the actions
outlined in section 67(6)(a), (b) or (c) within the
extended period (section 67(5)(h)).
10
· The time limit for providing the name and address of the
person who was driving the vehicle or trailer that it is
the subject of the traffic infringement notice under
section 66(3)(aab), and thereby avoiding the effect of
the "owner onus" provision in section 66(1), is to be
read as a reference to the extended period (section
67(5)(i)).
As outlined above, a key difference between the new section 67
and the previous section 67 is that the licence loss sanctions that
have been incurred as the result of a traffic infringement notice
are only reversed if the person who has obtained an extension of
time order takes one of the actions in relation to the notice
outlined in new section 67(6)(b) or (c) within the further 28 days
that has been granted by the court.
These actions are as follows--
· supplying a sworn statement or statutory declaration
which provides the name and address of the person who
was driving the motor vehicle or trailer at the relevant
time under section 66(3)(aab) (new section 67(6)(b));
· satisfying an enforcement official by sworn statement or
statutory declaration that he or she did not know and
could not with reasonable diligence have ascertained the
name and address of the person who was driving the
motor vehicle or trailer at the relevant time under
section 66(3)(b) (new section 67(6)(b));
· serving a written statement on an enforcement official to
the effect that he or she declines to be dealt with under
Part 2 of Schedule 7 to the Magistrates' Court Act
1989 (which outlines the process of dealing with
infringement notices through the PERIN Court) (new
section 67(6)(c)).
(New section 67(8) goes on to provide that in this
instance the enforcement official would be required to
only proceed against the defendant by filing a charge
which would be heard in open court.).
In addition, if a person is granted an extension of time order, the
fine or costs incurred in relation to a traffic infringement notice
only have to be repaid, and any enforcement proceedings in
relation to the notice are only cancelled, if the person against
whom it was issued either takes one of the steps outlined above
within the extended period, or pays the whole of the amount
11
specified in the notice within the extended period under new
section 67(6)(a).
There are two reasons why a person is required to take some
action in relation to a traffic infringement notice within the
extended period before the consequences of the notice can be
reversed. These are as follows--
· Traffic infringement notices can involve the imposition
of demerit points and licence suspension. The approach
of cancelling the notice, refunding any penalty that has
been paid and cancelling any enforcement action in
relation to the notice as soon as an extension of time
order is given does not work satisfactorily where
demerit points and licence loss are involved, because
the demerit points which have not been cancelled would
immediately be added to other demerit points on the
driver's record which were not related to the original
suspension, and that original suspension would then be
replaced with a new suspension, with no credit for the
period already served. In contrast, under new section 67
the demerit points would remain in place pending the
person's decision whether or not to contest the traffic
infringement notice. If the person does not contest the
notice, then the original suspension would remain in
place, so that there is no overall increase in the total
cumulative period of suspension which could occur if
the demerit points relating to the notice were cancelled
as soon as an extension of time order was made.
· The proposed changes in section 67 are consistent with
the existing system in relation to drink-driving, drug-
driving and excessive speed infringements on which the
new section 67 was modelled. The consequences of a
drink-driving, drug-driving and excessive speed
infringement are not reversed merely on the making of
an order giving an extension of time to object to that
notice, but only on a person actually objecting to the
notice within the extended period.
12
New section 67 does not alter the position established by the
previous section 67 that if an extension of time order is given in
relation to a traffic infringement notice, any licence sanction that
resulted from the notice and that occurred after the person
became aware of the notice is to be taken into account by a court
where it finds the person guilty of the offence in respect of which
the notice was issued (new section 67(5)(j)).
This means that if a person who has been given an extension of
time to deal with a traffic infringement notice insists on his or her
right to have the matter heard in court under new section 67(6)(c)
and is subsequently found guilty by that court, he or she is
required to be given credit for any period of cancellation,
disqualification or suspension, and any extension of probation, of
a driver licence or permit that resulted from the original traffic
infringement notice and that occurred after he or she became
aware that the notice had been issued.
New section 67(7) makes it clear that a traffic infringement
notice that is the subject of an extension of time order may be
withdrawn even though the infringement penalty has been
registered under Schedule 7 to the Magistrates' Court Act 1989.
The equivalent provision in the existing section 67(4) only
allowed for an application to be made for such a notice to be
withdrawn even though the infringement penalty had been
registered, not for the actual withdrawal of the notice itself.
New section 67(8) provides that if a person who has obtained an
extension of time order declines to be dealt with under Part 2 of
Schedule 7 to the Magistrates' Court Act 1989 (which outlines
the process of dealing with infringement notices through the
PERIN Court) the person may only be proceeded against by a
charge filed for the alleged offence.
New section 67(8) also provides that this charge may be filed not
later than 12 months after service of the statement by the person
against whom the notice was issued that he or she declines to be
dealt with under Part 2 of Schedule 7, despite anything to the
contrary in any other Act. This means that section 26(4) of the
Magistrates' Court Act 1989, which normally requires a
proceeding for a summary offence to be commenced not later
than 12 months after the offence was alleged to have been
committed, does not apply to such a charge.
13
Clause 9(1) amends section 68A of the Road Safety Act 1986 to extend the
offence of unauthorised use of a freeway to cyclists.
Clause 9(2) amends section 68A of the Road Safety Act 1986 to allow a
member of the police force to remove from a freeway
unauthorised pedestrians and cyclists and people who are causing
or permitting an animal or agricultural machinery to be on the
freeway without being authorised to do so. The police officer is
also empowered to remove any bicycle, animal or machinery
connected with the offence or any other property belonging to or
in the possession of the person.
This is intended to give the police power to deal with the
immediate danger posed by unauthorised use of a freeway
without having to arrest or charge the person causing that danger.
New section 68A(9), inserted by clause 9(2), defines "pathway"
for the purposes of section 68A as having the same meaning as it
has in the Road Management Act 2004.
Clause 10 amends section 86(1) of the Road Safety Act 1986, which
provides that the owner of a vehicle in relation to which a
parking infringement occurs is guilty of an offence against the
Act, rule, regulation or by-law contravened as if that person had
been the actual offender, unless the court is satisfied that the
vehicle or the number plates displayed on it were stolen.
Section 86 goes on to provide for the owner to be excused from
liability if he or she nominates the person who was in charge of
the vehicle (section 86(3)(a)-(ab)) or satisfies the court that he or
she is unable to do so (section 86(3)(b)). The amendment
confirms that this "owner onus" principle also applies to a
parking infringement which is an offence against the local law of
a municipal council. This is consistent with the definition of
"parking infringement" in section 3(1) of the Act, which includes
the parking of a vehicle in contravention of a local law made by a
municipal council.
Clause 11 amends section 92(3) of the Road Safety Act 1986 to allow the
Roads Corporation (VicRoads) to disclose personal information
held about a person in connection with the authorisation of the
towing of a vehicle given by a member of the police force or
VicRoads. Disclosure of the name and address of a person which
appears from VicRoads' registration and licensing records may be
necessary to enable the exercise by VicRoads or a member of the
police force of their power to authorise the towing of a vehicle
that is owned by that person.
14
Refer also to clause 26 of the Bill which allows for the disclosure
of this personal information by a member of the police force to a
tow truck operator.
Clause 12 allows for regulations made under the Road Safety Act 1986 to
provide for any provisions of those regulations to be interpreted
in accordance with Commonwealth interpretation of legislation
enactments. This power may be necessary to ensure that
regulations which implement a nationally agreed scheme such as
the Road Rules are interpreted in a consistent manner between
each of the jurisdictions which are part of the scheme.
Clause 13 amends section 99A(3) of the Road Safety Act 1986, which
provides specific examples of the obligation imposed by
section 99A(2) to ensure that works and non-road activities on a
highway are conducted in a safe manner. The effect of the
amendment is that a person who fails to comply with the
requirements imposed by section 99A(3) thereby commits an
offence under section 99A(2) and is liable for a penalty of up to
60 penalty units.
Clause 14 inserts a new section 106A into the Road Safety Act 1986.
The effect of section 106A is that if a provision in Part 9 of the
Road Safety Act 1986 can be interpreted differently depending
on whether the Acts Interpretation Act 1901 of the
Commonwealth or the Victorian Interpretation of Legislation
Act 1984 applies to it, the interpretation that results from
application of the Commonwealth Act is the one to be adopted.
However, if there is no difference in the interpretation which
results from application of the Commonwealth Act and that
which results from application of the Victorian Act, the Victorian
Act applies.
Clause 14 duplicates section 3A which is repealed by clause 3,
but limits it to Part 9. Part 9 implements the National Transport
Commission's model Road Transport Reform (Compliance and
Enforcement) Bill 2003. Because that model Bill sets out
nationally agreed principles for the regulation of heavy vehicles,
provisions implementing it such as Part 9 of the Road Safety Act
1986 should be interpreted in a way that is nationally consistent.
The only way of ensuring this is to make them subject to the Acts
Interpretation Act 1901 of the Commonwealth, rather than the
interpretation of legislation enactments of individual
jurisdictions.
15
Clauses 15(1)-(4) amend section 89B(1) of the Road Safety Act 1986,
which allows for a person who was not aware of a drink-driving,
drug-driving or excessive speed infringement that had been
issued against him or her before it took effect as a conviction to
apply to the Magistrates' Court for an extension of time to object
to the notice. The amendment removes the obligation for the
person to apply in accordance with regulations made under the
Road Safety Act 1986. There are no such regulations in place.
Instead the person will be required to file his or her application
with a registrar of the Magistrates' Court, setting out the grounds
on which the extension of time is sought. This is consistent with
the process for applying for an extension of time to object to
other traffic infringement notices established by clause 8 of this
Bill.
Clause 15(5) amends section 90C of the Road Safety Act 1986, which deals
with the detention or immobilisation of motor vehicles.
It replaces the outdated reference to a declared road within the
meaning of the Transport Act 1983 with the expression which
has now replaced it, namely a freeway or an arterial road within
the meaning of the Road Management Act 2004.
Clause 15(6) amends section 99B of the Road Safety Act 1986.
Section 99B(1) allows a road authority to issue a permit to a
person to conduct a non-road activity on a highway.
Section 99B(4) allows the Minister to declare by notice published
in the Government Gazette that specified provisions of the Act
and of the regulations do not apply with respect to the non-road
activity specified in the notice. Section 99B(5) previously
incorrectly provided that a notice under section 99B(1) may
declare that the highway or part of the highway specified in the
notice is not a highway under the Road Safety Act 1986 for all
purposes or specified purposes during the specified period.
Clause 15(6) corrects the reference in section 99B(5) so that
it refers to the notice published by the Minister under
section 99B(4).
Clause 16 inserts transitional provisions into the Road Safety Act 1986
relating to amendments made by this Bill.
New section 103J(1) has the effect that on and after the
commencement of clause 3 of the Bill (which repeals section 3A
of the Road Safety Act 1986 requiring that the Road Safety Act
1986 be interpreted in light of the Acts Interpretation Act 1901 of
the Commonwealth) the Interpretation of Legislation Act 1984
applies to the interpretation of all of the provisions of the Road
Safety Act 1986, whether or not the effect of that application is
consistent with the effect that there would be if the Acts
16
Interpretation Act 1901 of the Commonwealth applied to the
interpretation of those provisions. Clause 3 of the Bill
commences on the day after the day on which the Bill receives
Royal Assent.
The combined effect of new section 103J(2) and 103J(4) is that
the amendments to section 61 of the Road Safety Act 1986
dealing with failing to stop, render assistance and provide
information after an accident in which a person is injured that are
made by clause 5 of the Bill only apply to offences wholly
committed after the commencement of clause 5. Clause 5 of the
Bill commences on the day after the day on which the Bill
receives Royal Assent.
The combined effect of new section 103J(3) and 103J(4) is that
the amendments to section 64(2) of the Road Safety Act 1986
dealing with dangerous driving made by clause 7 of the Bill only
apply to offences wholly committed after the commencement of
clause 7. Clause 7 of the Bill commences on the day after the
day on which the Bill receives Royal Assent.
PART 3--AMENDMENT OF ROAD MANAGEMENT ACT
2004
Clause 17 amends section 69 of the Road Management Act 2004, which
allows an authorised officer to direct the removal of a structure,
device, hoarding, advertisement, sign or bill. Under previous
section 69 this power was contingent on there having been a
"contravention of section 66". As section 66 only came into
operation on 1 January 2005, there can be no contravention
before that date and it appears that the power of removal under
section 69 therefore also cannot apply to structures, devices,
hoardings, advertisements, signs or bills erected before that date.
Section 69 is therefore being amended to allow authorised
officers to direct the removal of a structure, device, hoarding,
advertisement, sign or bill placed on or over a road or road
infrastructure if it has been placed there at any time before the
commencement of section 66 in contravention of any law in force
at that time.
This is intended to restore the position that applied prior to the
commencement of the Road Management Act 2004 whereby
illegally erected structures, devices, hoardings, advertisements,
signs or bills could be removed by the authority managing the
relevant road.
17
Clause 18(1) amends section 90 of the Road Management Act 2004, which,
together with Schedule 8 to that Act, allows certain offences
against the Act to be dealt with by infringement notice.
Section 90 previously only provided for these notices to be
served by an authorised officer of a road authority. Clause 18(1)
extends this to include members of the police force.
Clause 18(2) and (3) make consequential amendments to section 92 of the
Road Management Act 2004 to allow the withdrawal of a road
management infringement notice by the member of the police
force who issued it or any other member of the police force of
equivalent or higher rank. This section previously only applied
to an infringement notice issued by an authorised officer.
Clause 18(4) makes a consequential amendment to section 93 of the Road
Management Act 2004 to allow for the extension of time for
payment of the infringement penalty by the member of the police
force who issued it or any other member of the police force of
equivalent or higher rank. This section previously only applied
to an infringement notice issued by an authorised officer.
Clause 19 inserts new sections 119A and 119B into the Road Management
Act 2004 to give VicRoads greater powers to deal with hazards
on freeways and other roads declared by the Minister to be roads
to which the sections apply. These powers are similar to those
given to the corporation with responsibility for the relevant part
of City Link under sections 114A and 114B of the Melbourne
City Link Act 1995.
Under new section 119A VicRoads will be able to move or cause
to be moved any vehicle--
· that is parked or left standing on the freeway or other
declared road contrary to any law;
· that is, or is likely to be or cause, a danger to other road
users or traffic congestion; or
· that is disabled or damaged.
For the purposes of exercising this power, a person may enter
the vehicle, if necessary by using reasonable force (new section
119A(2)(a)).
Under new section 119B VicRoads will also be able to move or
cause to be moved any thing on a freeway or other declared road
that appears to have been abandoned.
18
Clause 20 Section 42 of the Road Management Act 2004 allows for a road
to be declared a controlled access road. Clause 3 of Schedule 2
to that Act provides that a road authority must make a policy
about the rules regarding access to a controlled access road for
which it is responsible. Clause 20 inserts a new clause 3(5) into
Schedule 2 to the Road Management Act 2004 to provide that
these policies regarding controlled access roads are not
subordinate instruments for the purposes of the Interpretation of
Legislation Act 1984. This means that they will be able to
apply, adopt or incorporate a matter contained in a document
other than an Act, Code or statutory instrument. This is
consistent with the approach taken in the Road Management
Act 2004 with respect to road management plans.
The reason why this is necessary is that VicRoads has prepared a
document which is not an Act, Code or statutory rule that divides
the controlled access roads for which it is responsible into a
number of categories and establishes different requirements for
each of those categories. It is intended that the policy document
regarding controlled access roads required by clause 3 of
Schedule 2 to the Road Management Act 2004 will incorporate
this document by reference.
Clause 21 inserts a new clause 3A into Schedule 2 to the Road
Management Act 2004 to provide that a policy regarding
controlled access roads may apply, adopt or incorporate any
matter contained in any document, code, standard, rule,
specification or method. Similarly to the amendment in
clause 20, the reason why this is necessary is that VicRoads
intends to incorporate by reference into its policy regarding
controlled access roads a document it has prepared establishing
different requirements for each of the categories of controlled
access roads for which it is responsible.
PART 4--AMENDMENT OF MELBOURNE CITY LINK ACT
1995
Clause 22 amends section 61 of the Melbourne City Link Act 1995, which
allows the Minister for Transport to declare any part of any land
leased under section 60 of that Act to be a road.
Under section 61(2) that declaration must state whether the road
or any part of the road is to be treated as a freeway or an arterial
road. Section 61(3) requires that notice of the declaration must
be published in the Government Gazette. Section 61(4)(a)
previously stated that upon publication of that notice, the road
specified in the declaration is deemed to be an arterial road
within the meaning of the Road Management Act 2004.
Clause 22 amends this to provide that the road specified in the
19
declaration is deemed to be a freeway or an arterial road within
the meaning of the Road Management Act 2004 as stated in the
declaration.
It should be noted that section 61(2A) of the Melbourne City
Link Act 1995 provides that declarations made before the
commencement of section 162 of the Road Management Act
2004 stating that a road or part of a road is to be treated as a
freeway or a State highway is to be construed as stating that a
road or part of a road is to be treated as a freeway or an arterial
road. Section 162 commenced on 1 July 2004, and there have
not been any declarations under section 61(1) since that date.
Clause 23 substitutes a new section 87A into the Melbourne City Link Act
1995, which allows a person who can demonstrate that he or she
was not actually aware that a tolling infringement notice had
been issued against him or her to apply to the Magistrates' Court
for a further 28 days to deal with the notice.
This new section is consistent with new section 67 of the Road
Safety Act 1986 inserted by clause 8 of the Bill.
Existing section 87A provides that where a person was not aware
that a tolling infringement notice to which the section applies was
issued against him or her, he or she has 14 days to apply to the
Magistrates' Court for an extension of time to deal with the
notice. If the extension of time is granted, then--
· A reference in section 83(1) or 87(3) of the Act to a
28 day period is to be read as a reference to the
extended period. (Section 83(1) establishes the time
limit for providing the name and address of the person
who was driving a vehicle or trailer and thereby
avoiding the effect of the "owner onus" provision in
section 86(1), and section 87(3) establishes the time
limit for service of a notice withdrawing a tolling
infringement notice.).
· If the penalty has been paid it must be refunded.
· The procedures set out in Schedule 7 to the
Magistrates' Court Act 1989 in relation to
enforcement of amounts specified in the notice must be
discontinued and any warrants issued under that
Schedule cease to have effect.
20
· A reference in section 85(1) to the expiration of the
period in which the penalty specified in the notice is to
be paid is to be taken to be a reference to the expiration
of the extended period.
The new section 87A contains the following differences from the
previous section 87A summarised above--
· The tolling infringement notice continues to have effect,
unless withdrawn under section 83(1), despite the fact
that enforcement proceedings have been taken in respect
of it (new section 87A(5)(a)). This is necessary because
normally once a tolling infringement notice is registered
with the PERIN Court under Schedule 7 to the
Magistrates' Court Act 1989 it is transformed into an
order of the court. A tolling infringement notice must
remain in force in order for the person against whom it
was issued to be able to take action in relation to it
under new section 87A(6).
· However, if an enforcement order had been made in
relation to the tolling infringement notice before the
extension of time order was granted, the notice only
continues to have effect until the end of the extension
period (new section 87A(5)(a)). It is necessary to
provide this because if a person does not take action in
relation to the notice under new section 87A(6) before
the end of the extension period, the provision cancelling
the enforcement order (new section 87A(5)(e)) will not
come into operation. It is not appropriate for an
enforcement order and the tolling infringement notice in
relation to which it was made to co-exist, except for the
limited purpose of allowing the person against whom
the notice had been issued to deal with the notice under
new section 87A(6) within the extended period. If the
tolling infringement notice and the enforcement order
were allowed to co-exist after that time then the notice
would continue in operation, even after the enforcement
order had been executed, and the matter had been
finalised. If that was the case it would, at least in
theory, be possible for further enforcement proceedings
to be taken in relation to the notice, and for the person
against whom the notice was issued to be punished
twice for the same offence.
21
· A reference in section 84(1) to the period in which the
penalty specified in a tolling infringement notice is to be
paid is to be taken to be a reference to the extended
period (new section 87A(5)(c)). This is necessary to
enable the penalty in the tolling infringement notice to
be paid within the further 28 days that the court has
given to deal with the notice.
· Any part of the fine or the costs that have been incurred
in relation to the tolling infringement notice that have
been paid is only required to be refunded if the person
against whom it was issued takes one of the actions
outlined in new section 87A(6)(a), (b) or (c) within the
extended period (new section 87A(5)(d)).
· The procedures set out in Schedule 7 to the
Magistrates' Court Act 1989 in relation to
enforcement of amounts specified in the tolling
infringement notice are only discontinued and any
warrants issued under that Schedule only cease to have
effect if the person against whom it was issued takes
one of the actions outlined in section 87A(6)(a), (b) or
(c) within the extended period (new section 87A(5)(e)).
· The time limit for providing the name and address of the
person who was driving the vehicle or trailer that it is
the subject of the tolling infringement notice under
section 87(3)(aab), and thereby avoiding the effect of
the "owner onus" provision in section 87(1), is to be
read as a reference to the extended period (section
87A(5)(f)).
As outlined above, a key difference between the new section 87A
and the previous section 87A is that if a person is granted an
extension of time order, the fine or costs incurred in relation to a
tolling infringement notice only have to be repaid, and any
enforcement proceedings in relation to the notice are only
cancelled, if the person against whom it was issued takes one of
the actions in relation to the notice outlined in new section
87A(6)(a), (b) or (c) within the further 28 days that has been
granted by the court. These actions are as follows--
22
· paying the whole of the penalty shown on the
infringement notice (new section 87A(6)(a));
· supplying a sworn statement or statutory declaration
which provides the name and address of the person who
was driving the motor vehicle or trailer at the relevant
time under section 87(3)(aab) (new section 87A(6)(b));
· satisfying an enforcement official by sworn statement or
statutory declaration that he or she did not know and
could not with reasonable diligence have ascertained the
name and address of the person who was driving the
motor vehicle or trailer at the relevant time under
section 87(3)(b) (new section 87A(6)(b));
· serving a written statement on an enforcement official to
the effect that he or she declines to be dealt with under
Part 2 of Schedule 7 to the Magistrates' Court Act
1989 (which outlines the process of dealing with
infringement notices through the PERIN Court) (new
section 87A(6)(c)).
(New section 87A(8) goes on to provide that in this
instance the enforcement official would be required to
only proceed against the defendant by filing a charge
which would be heard in open court.).
New section 87A(7) makes it clear that a tolling infringement
notice that is the subject of an extension of time order may be
withdrawn even though the infringement penalty has been
registered under Schedule 7 to the Magistrates' Court Act 1989.
The equivalent provision in the existing section 87A(4) only
allowed for an application to be made for such a notice to be
withdrawn even though the infringement penalty had been
registered, not for the actual withdrawal of the notice itself.
New section 87A(8) provides that if a person who has obtained
an extension of time order declines to be dealt with under Part 2
of Schedule 7 to the Magistrates' Court Act 1989 (which
outlines the process of dealing with infringement notices through
the PERIN Court) the person may only be proceeded against by a
charge filed for the alleged offence.
New section 87A(8) also provides that this charge may be filed
not later than 12 months after service of the statement by the
person against whom the notice was issued that he or she declines
to be dealt with under Part 2 of Schedule 7, despite anything to
the contrary in any other Act. This means that section 26(4) of
23
the Magistrates' Court Act 1989, which normally requires a
proceeding for a summary offence to be commenced not later
than 12 months after the offence was alleged to have been
committed, does not apply to such a charge.
PART 5--AMENDMENT OF ROAD SAFETY (DRUG
DRIVING) ACT 2003
Clause 24 extends the date of commencement of the provision which will
cause all of the provisions allowing for roadside drug screening
in the Road Safety (Drug Driving) Act 2003 to sunset from
1 July 2005 to 1 July 2006.
Clause 25 amends section 23(13) of the Road Safety (Drug Driving) Act
2003, which will cause the sections of the Road Safety Act 1986
dealing with roadside drug screening that are referred to in
section 50AA of that Act to sunset on 1 July 2006.
Section 50AA establishes the "10 year rule", whereby for the
purposes of the provisions in the Act regarding licence
cancellation, re-licensing procedures and alcohol interlocks the
court must disregard offences where the conviction or finding of
guilt in relation to a preceding offence was made 10 years or
more before the date the offence currently before the court was
committed.
Section 23(13) needs to be amended as a consequence of the fact
that clause 4 of the Bill has amended section 50AA to include a
reference to the offence in section 50(1DA) of refusing to
provide a sample of oral fluid as part of a roadside drug screening
test.
PART 6--AMENDMENT OF POLICE REGULATION ACT
1958
Clause 26 inserts a new section 127A(1F) into the Police Regulation Act
1958, which provides that section 127A(1) of that Act, which
prohibits the unauthorised publication or communication of facts
and documents which have come into the possession of Victoria
Police members by virtue of their office, does not prevent the
disclosure to a tow truck operator, in connection with the towing
of a vehicle by a tow truck, of personal information disclosed by
VicRoads under the new section 92(3)(d) of the Road Safety Act
1986 (which is inserted by clause 11 of the Bill).
24
PART 7--AMENDMENT OF OTHER ACTS
Clause 27 amends section 41 of the Transport Legislation (Amendment)
Act 2004. Section 41 will come into operation on a date to be
proclaimed or 30 September 2005, whichever is the sooner.
Once section 41 does come into operation it will insert new
Parts 10 and 11 into the Road Safety Act 1986. Clause 27
inserts a new section 149A into the proposed Part 10 of the Road
Safety Act 1986.
The effect of new section 149A is that once Part 10 of the Road
Safety Act 1986 comes into operation, if a provision in that Part
can be interpreted differently depending on whether the Acts
Interpretation Act 1901 of the Commonwealth or the Victorian
Interpretation of Legislation Act 1984 applies to it, the
interpretation which results from application of the
Commonwealth Act is the one to be adopted. However, if there
is no difference in the interpretation which results from
application of the Commonwealth Act and that which results
from application of the Victorian Act, the Victorian Act applies.
Clause 27 duplicates section 3A which is repealed by clause 3,
but limits it to Part 10. Part 10 implements the National
Transport Commission's model Road Transport Reform
(Compliance and Enforcement) Bill 2003. Because that model
Bill sets out nationally agreed principles for the regulation of
heavy vehicles, provisions implementing it such as Part 10 of the
Road Safety Act 1986 should be interpreted in a way that is
nationally consistent. The only way of ensuring this is to make
them subject to the Acts Interpretation Act 1901 of the
Commonwealth, rather than the interpretation of legislation
enactments of individual jurisdictions.
Clause 28 amends section 41 of the Transport Legislation (Amendment)
Act 2004. Section 41 will come into operation on a date to be
proclaimed or 30 September 2005, whichever is the sooner.
Once section 41 does come into operation it will insert new
Parts 10 and 11 into the Road Safety Act 1986. Clause 28
inserts a new section 191A into the proposed Part 11 of the Road
Safety Act 1986.
The effect of new section 191A is that once Part 11 of the Road
Safety Act 1986 comes into operation, if a provision in that Part
can be interpreted differently depending on whether the Acts
Interpretation Act 1901 of the Commonwealth or the Victorian
Interpretation of Legislation Act 1984 applies to it, the
interpretation which results from application of the
Commonwealth Act is the one to be adopted. However, if there
is no difference in the interpretation which results from
25
application of the Commonwealth Act and that which results
from application of the Victorian Act, the Victorian Act applies.
Clause 28 duplicates section 3A which is repealed by clause 3,
but limits it to Part 11. Part 11 implements the National
Transport Commission's model Road Transport Reform
(Compliance and Enforcement) Bill 2003. Because that model
Bill sets out nationally agreed principles for the regulation of
heavy vehicles, provisions implementing it such as Part 11 of the
Road Safety Act 1986 should be interpreted in a way that is
nationally consistent. The only way of ensuring this is to make
them subject to the Acts Interpretation Act 1901 of the
Commonwealth, rather than the interpretation of legislation
enactments of individual jurisdictions.
Clause 29 repeals clause 54 of Schedule 4 to the Magistrates' Court Act
1989, which provides that the offence of failing to stop or render
assistance after an accident in which a person is killed or
seriously injured created by section 61(3) is an indictable offence
which is triable summarily. This is no longer necessary, as
section 53(1A) of the Magistrates' Court Act 1989 provides that
an indictable offence that is punishable by level 5 imprisonment
(10 years) is able to be tried summarily if the court determines
that that is appropriate and the defendant consents to a summary
hearing. The new section 61(3), as set out in clause 5(1) of this
Bill, is an offence to which section 53(1A) of the Magistrates'
Court Act 1989 applies.
Clause 30 makes statute law revisions to Schedule 7 to the Magistrates'
Court Act 1989. The clauses being amended make incomplete
or grammatically incorrect references to the paragraphs in
sections 66(3) and 86(3) of the Road Safety Act 1986 and in
section 87(3) of the Melbourne City Link Act 1995 which
provide for a statement or declaration to be made avoiding
"owner onus" for certain traffic and tolling offences.
Clause 31 amends sections 57 and 58 of the Children and Young Persons
(Miscellaneous Amendments) Act 2005. That Act inserts a new
Schedule 2A in the Children and Young Persons Act 1989
establishing a procedure in the Children's Court for dealing with
unpaid infringement notices issued to children. Sections 57 and
58 of that Act amend sections 67 and 89B of the Road Safety
Act 1986 and section 87A of the Melbourne City Link Act
1995 consequential on the establishment of that new procedure.
Because of the amendments made by this Bill to sections 67
and 89B of the Road Safety Act 1986 and section 87A of the
Melbourne City Link Act 1995, it is necessary to amend
sections 57 and 58 of the Children and Young Persons
26
(Miscellaneous Amendments) Act 2005 so that the amendments
made by those sections will work after the commencement of the
amendments made by clauses 8, 15(1) to (4) and 23 of this Bill.
The relevant sections of the Road Safety Act 1986 and the
Melbourne City Link Act 1995 relate to the procedure for
obtaining an extension of time to deal with an infringement
notice where the person in respect of whom the notice is issued
was not aware of its issue.
27