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ROAD SAFETY AMENDMENT (HOON DRIVING AND OTHER MATTERS) BILL 2011

Road Safety Amendment (Hoon Driving
    and Other Matters) Bill 2011

                      Introduction Print


            EXPLANATORY MEMORANDUM


                               General
Part 1   sets out the purposes of the Road Safety Amendment (Hoon
         Driving and Other Matters) Bill 2011 (the Bill) and when the Bill
         comes into operation.

Part 2   amends the Road Safety Amendment (Hoon Driving) Act
         2010--
                  to strengthen vehicle impoundment and immobilisation
                  sanctions in relation to serious traffic offences;
                  to provide that where the driver of a motor vehicle
                  carries more passengers in the vehicle than the vehicle
                  is designed to carry, that person may be subject to
                  vehicle impoundment, immobilisation and forfeiture
                  sanctions;
                  to repeal certain provisions relating to the notification of
                  the Registrar of Personal Property Securities with
                  respect to impoundment, immobilisation and forfeiture
                  enforcement action taken with respect to motor
                  vehicles; and
                  to clarify the rights of security interest holders to
                  participate in the distribution of proceeds of sale where
                  an uncollected impounded vehicle is sold by the Chief
                  Commissioner of Police.




571022                              1      BILL LA INTRODUCTION 24/5/2011

 


 

Part 3 amends the Road Safety Act 1986-- to authorise the use of a particular instrument for the measurement of the concentration of alcohol in a person's breath; to provide a number of exemptions from the prohibition on deliberately losing traction while driving a motor vehicle; to provide that a motoring organisation that sanctions races or speed trials may apply for an exemption from the prohibition on participating in, organising and managing a race or speed trial on a highway; to extend the period from 3 years to 6 years in which prior offences can be taken into account to determine if a vehicle impoundment or immobilisation offence is a second or subsequent offence; to provide that the Chief Commissioner of Police must apply for the registration of a financing statement or a financing change statement (as the case requires) on the Commonwealth Personal Property Securities Register in those cases where there is an intention to apply to the court for vehicle impoundment, immobilisation or forfeiture sanctions or where a court has made a determination with respect to the imposition of those sanctions or where the Chief Commissioner of Police intends to sell or dispose of a motor vehicle or where a motor vehicle has vested in the Crown; to clarify that police officers and other authorised persons may carry out roadworthiness inspections with respect to impounded, immobilised or forfeited vehicles; to provide that persons exempt from holding a Victorian driver licence or permit will be disqualified from driving in Victoria for a specified period if they commit a drug-driving infringement; and to make minor amendments of a statute law revision nature to the Road Safety Act 1986 and the Road Legislation Miscellaneous Amendments Act 2010. 2

 


 

Part 4 amends the Police Regulation Act 1958 to authorise members of police personnel to access information and to disclose it to the Registrar of the Commonwealth Personal Property Securities Register for limited purposes and amends the Superannuation Legislation Amendment Act 2010 to make a minor amendment of a statute law revision nature. Part 5 provides for the repeal of this Bill. Clause Notes PART 1--PRELIMINARY Clause 1 sets out the purposes of the Bill which are-- to amend the Road Safety Act 1986 and the Road Safety Amendment (Hoon Driving) Act 2010 in relation to impoundment, immobilisation and forfeiture of motor vehicles, loss of traction offences, speed trial offences, breath analysing instruments and drug-driving infringements; and to amend the Police Regulation Act 1958 to facilitate the disclosure of information required for financing statements and financing change statements under Part 6A of the Road Safety Act 1986; and to make minor amendments of a statute law revision nature. Clause 2 provides for the commencement of the Bill. Subclause (1) provides that Part 1 comes into operation on the day on which the Bill receives the Royal Assent. Subclause (2) provides that clause 23 is taken to have come into operation on 30 June 2010. Clause 23 will therefore operate retrospectively. The reason for the retrospective commencement is set out in the discussion of clause 23 below. Subclause (3) provides that clause 8 comes into operation on 1 July 2011. Subclauses (4) and (5) provide for clauses 11, 13, 14, 15, 16, 17 and 22 to come into operation on a day to be proclaimed, with a forced commencement date of 1 February 2012. The commencement date of the Personal Property Securities 3

 


 

Register set out in section 306 of the Personal Property Securities Act 2009 of the Commonwealth is 1 February 2012 or as otherwise determined by the Commonwealth Minister. The Commonwealth had originally proposed a commencement date before 1 July 2011 (the commencement date of Part 2 of the Road Safety Amendment (Hoon Driving) Act 2010). As a consequence of the delayed commencement of the Commonwealth Register, the Bill removes the provisions in the 2010 Victorian Act that refer to the Registrar of Personal Property Securities and inserts them into the Road Safety Act 1986 with a commencement date that aligns with the Commonwealth legislation default commencement date, and the ability to bring the provisions into operation earlier by proclamation. Subclauses (6) and (7) provide for clause 12 to come into operation on a day to be proclaimed, with a forced commencement date of 1 July 2012. It is possible that the Bill may receive the Royal Assent more than 12 months before clause 12 commences operation. Clause 12 relates to the extension of the period in which prior offences are to be taken into account to determine whether a vehicle impoundment or immobilisation offence is a second or subsequent offence. The reason why it is necessary to specify a default commencement date of 1 July 2012 is to allow time for changes to administrative arrangements, including the modification of record keeping systems. Subclause (8) provides that the remaining provisions of the Bill come into operation on the day after the day on which the Bill receives the Royal Assent. PART 2--AMENDMENT OF THE ROAD SAFETY AMENDMENT (HOON DRIVING) ACT 2010 Clause 3 Subclause (1) amends section 4(1)(a) of the Road Safety Amendment (Hoon Driving) Act 2010 to provide that the definition of designated period in section 84C(1) of the Road Safety Act 1986 shall specify a 30 day period rather than a 14 day period. 4

 


 

The effect of this amendment is that the period of time for which a motor vehicle can be impounded or immobilised by a member of the police force under Division 2 of Part 6A of the Road Safety Act 1986 is extended to 30 days. Subclause (2) amends section 4(1)(c) of the Road Safety Amendment (Hoon Driving) Act 2010 to expand the definition of tier 2 relevant offence to include an offence against rule 265(3), 266(1), 268(4A) or 268(4B) of the Road Safety Road Rules 2009 (which are offences that relate to a driver's responsibility to ensure that passengers are restrained and seated appropriately) in circumstances where the number of passengers in the motor vehicle exceeds the number of seats available to them in the motor vehicle. The effect of this amendment is that the driver of a motor vehicle who carries more passengers in the vehicle than the vehicle is designed to carry, may be subject to vehicle impoundment, immobilisation and forfeiture sanctions in accordance with Part 6A of the Road Safety Act 1986. Clause 4 repeals sections 18 and 20 of the Road Safety Amendment (Hoon Driving) Act 2010. These sections were to insert new sections 84TA and 84WA in the Road Safety Act 1986. Those new sections are, in a revised form, now to be inserted in the Road Safety Act 1986 by clauses 14 and 15 of the Bill. Clause 5 amends section 29 of the Road Safety Amendment (Hoon Driving) Act 2010 to repeal new sections 84ZQB and 84ZQC. Those new sections are, in a revised form, now to be inserted in the Road Safety Act 1986 by clause 16 of the Bill. Clause 6 amends section 32 of the Road Safety Amendment (Hoon Driving) Act 2010 to clarify the rights of security interest holders to participate in the distribution of the proceeds of sale of an uncollected impounded vehicle that is to be sold by the Chief Commissioner of Police. Clause 7 repeals sections 35 and 37 of the Road Safety Amendment (Hoon Driving) Act 2010. Those provisions were going to insert new sections 84ZUA and 84ZWA in the Road Safety Act 1986. Those new sections are, in a revised form, now to be inserted in the Road Safety Act 1986 by clauses 17 and 18 of the Bill. 5

 


 

PART 3--AMENDMENT OF THE ROAD SAFETY ACT 1986 Clause 8 amends the definition of breath analysing instrument in section 3(1) of the Road Safety Act 1986 to authorise the use of a particular instrument, known as the Alcotest 9510 AUS, for the measurement of the concentration of alcohol in a person's breath. This clause also amends section 58(5) of the Road Safety Act 1986 to provide that if a person authorised to operate the Alcotest 9510 AUS makes a statement on oath that the device was inscribed with the relevant identifiers, then that statement shall be, in the absence of evidence to the contrary, proof that the apparatus is a breath analysing instrument within the meaning of the Road Safety Act 1986. Clause 9 amends section 65A of the Road Safety Act 1986 to provide a number of exemptions from the prohibition on deliberately losing traction while driving a motor vehicle. Those exemptions apply to authorised functions or events at motor sport venues and also functions or events that are organised, conducted or sanctioned by motoring organisations. The exemptions also apply to formal driver training activities, vehicle testing by vehicle manufacturers and training activities of Victoria Police. The amendments to section 65A also broaden the Minister's power to declare, by notice published in the Government Gazette, exemptions from the deliberate loss of traction offence. In particular, the Minister will be authorised to provide exemptions for persons participating in an activity, event or function, or a class of activities, events or functions, specified in the declaration. Such an exemption does not need to be confined to particular land or a particular venue. Clause 10 amends section 68(4) of the Road Safety Act 1986 to provide that a motoring organisation that sanctions races or speed trials may apply for an exemption from the prohibition on participating in, organising and managing a race or speed trial on a highway. 6

 


 

Clause 11 inserts a number of new definitions in section 84C(1) of the Road Safety Act 1986. The term Commonwealth Act has been defined to means the Personal Property Securities Act 2009 of the Commonwealth. The term Commonwealth Registrar has been defined to mean the Registrar of Personal Property Securities appointed under the Personal Property Securities Act 2009 of the Commonwealth. The term financing change statement has been defined to have the same meaning as in the Personal Property Securities Act 2009 of the Commonwealth. The term financing statement has been defined to have the same meaning as in the Personal Property Securities Act 2009 of the Commonwealth. Clause 12 amends sections 84S(1)(b), 84T(1) and 84U(1)(b) of the Road Safety Act 1986 to extend the period from 3 years to 6 years in which prior offences can be taken into account to determine if a vehicle impoundment or immobilisation offence is a second or subsequent offence. Clause 13 inserts a new section 84TA in the Road Safety Act 1986 to provide that as soon as practicable after an impoundment or immobilisation order is made under section 84S of the Road Safety Act 1986 or a forfeiture order is made under section 84T of that Act, the Chief Commissioner of Police must apply to register a financing statement or a financing change statement (as the case requires) in respect of the motor vehicle that is the subject of the order. New section 84TA, as set out in clause 13, differs from the earlier version of that section set out in section 18 of the Road Safety Amendment (Hoon Driving) Act 2010 which is to be repealed by clause 4 of this Bill. The main difference is that the revised section requires the Chief Commissioner of Police to apply to register a financing statement or a financing change statement (as the case requires) with respect to a motor vehicle whereas the earlier provision required notification to be sent to the Registrar of the Commonwealth Personal Property Securities Register. The revised section is more consistent with the way that the Commonwealth Personal Property Securities Register is intended to operate. 7

 


 

Furthermore, the commencement date of new section 84TA, as set out in clause 13 of this Bill, is different from the earlier provision. It is necessary to delay the commencement of new section 84TA because the commencement of operation of the Commonwealth Personal Property Securities Register has been delayed. Clause 14 inserts a new section 84WA in the Road Safety Act 1986 to provide that as soon as practicable after serving notice of an intended application for an impoundment or immobilisation order or a forfeiture order under section 84W(1), the Chief Commissioner of Police must apply to register a financing statement or a financing change statement (as the case requires) in respect of the motor vehicle that is the subject of the intended application. New section 84WA, as set out in clause 14, differs from the earlier version of that section set out in section 20 of the Road Safety Amendment (Hoon Driving) Act 2010 which is to be repealed by clause 4 of this Bill. The main difference is that the revised section requires the Chief Commissioner of Police to apply to register a financing statement or a financing change statement (as the case requires) with respect to a motor vehicle whereas the earlier provision required notification to be sent to the Registrar of the Commonwealth Personal Property Securities Register. The revised section is more consistent with the way that the Commonwealth Personal Property Securities Register is intended to operate. Furthermore, the commencement date of new section 84WA, as set out in clause 14 of this Bill, is different from the earlier provision. It is necessary to delay the commencement of new section 84WA because the commencement of operation of the Commonwealth Personal Property Securities Register has been delayed. Clause 15 inserts new sections 84ZQB and 84ZQC in the Road Safety Act 1986. New section 84ZQB provides that as soon as practicable after giving notice of an intention to sell or otherwise dispose of an uncollected impounded motor vehicle, the Chief Commissioner of Police must apply to register a financing statement or a financing change statement (as the case requires) in respect of the motor vehicle that is proposed to be sold or disposed of. 8

 


 

New section 84ZQC provides that within 7 days after an uncollected impounded motor vehicle vests in the Crown, the Chief Commissioner of Police must apply to register a financing statement or a financing change statement (as the case requires) in respect of the motor vehicle. New sections 84ZQB and 84ZQC, as set out in clause 15, differ from the earlier versions of those sections set out in section 29 of the Road Safety Amendment (Hoon Driving) Act 2010 which are to be repealed by clause 5(2) of this Bill. The main difference is that the revised sections require the Chief Commissioner of Police to apply to register a financing statement or a financing change statement (as the case requires) with respect to a motor vehicle whereas the earlier provision required notification to be sent to the Registrar of the Commonwealth Personal Property Securities Register. The revised sections are more consistent with the way that the Commonwealth Personal Property Securities Register is intended to operate. Furthermore, the commencement date of new sections 84ZQB and 84ZQC, as set out in clause 15 of this Bill, is different from that specified for the earlier provisions. It is necessary to delay the commencement of the new sections because the commencement of operation of the Commonwealth Personal Property Securities Register has been delayed. Clause 16 inserts a new section 84ZUA in the Road Safety Act 1986 to provide that as soon as practicable after giving notice of an intention to make application for a disposal order with respect to a motor vehicle, the Chief Commissioner of Police must apply to register a financing statement or a financing change statement (as the case requires) in respect of the motor vehicle. New section 84ZUA, as set out in clause 16, differs from the earlier version of that section set out in section 35 of the Road Safety Amendment (Hoon Driving) Act 2010 which is to be repealed by clause 7 of this Bill. The main difference is that the revised section requires the Chief Commissioner of Police to apply to register a financing statement or a financing change statement (as the case requires) with respect to a motor vehicle whereas the earlier provision required notification to be sent to the Registrar of the Commonwealth Personal Property Securities Register. The revised section is more consistent with the way 9

 


 

that the Commonwealth Personal Property Securities Register is intended to operate. Furthermore, the commencement date of new section 84ZUA, as set out in clause 16 of this Bill, is different from the earlier provision. It is necessary to delay the commencement of new section 84ZUA because the commencement of operation of the Commonwealth Personal Property Securities Register has been delayed. Clause 17 inserts a new section 84ZWA to provide that within 7 days after a disposal order is made with respect to a motor vehicle, the Chief Commissioner of Police must apply to register a financing statement or a financing change statement (as the case requires) in respect of the motor vehicle. New section 84ZWA, as set out in clause 17, differs from the earlier version of that section set out in section 37 of the Road Safety Amendment (Hoon Driving) Act 2010 which is to be repealed by clause 7 of this Bill. The main difference is that the revised section requires the Chief Commissioner of Police to apply to register a financing statement or a financing change statement (as the case requires) with respect to a motor vehicle whereas the earlier provision required notification to be sent to the Registrar of the Commonwealth Personal Property Securities Register. The revised section is more consistent with the way that the Commonwealth Personal Property Securities Register is intended to operate. Furthermore, the commencement date of new section 84ZWA, as set out in clause 17 of this Bill, is different from the earlier provision. It is necessary to delay the commencement of new section 84ZWA because the commencement of operation of the Commonwealth Personal Property Securities Register has been delayed. Clause 18 inserts a new Division 6 in Part 6A of the Road Safety Act 1986. New section 84ZY authorises police officers and other authorised persons to carry out roadworthiness inspections with respect to impounded, immobilised or forfeited vehicles and to take enforcement action in the event that a vehicle is found to be defective. 10

 


 

Clause 19 amends section 89D(1A) of the Road Safety Act 1986 to provide that persons exempt from holding a Victorian driver licence or permit will be disqualified from driving in Victoria if they commit a drug-driving infringement. The length of the disqualification will be the same as the period for which the person would have been suspended and disqualified had the person held a Victorian licence or permit. Clause 20 inserts new section 103ZD in the Road Safety Act 1986. This new provision provides for certain transitional matters. New section 103ZD(1) relates to the extension of the period in which prior offences can be taken into account to determine if a vehicle impoundment or immobilisation offence is a second or subsequent offence from 3 years to 6 years as provided for by clause 12 of this Bill. This extended time period will apply to applications for impoundment or immobilisation orders under section 84S of the Road Safety Act 1986 or forfeiture orders under section 84T of the Road Safety Act 1986 where the relevant offence is alleged to have been committed on or after the commencement of clause 12 of this Bill. When the court is considering whether to make an impoundment or immobilisation order or forfeiture order with respect to that relevant offence, the court may take into account prior relevant offences committed before, on or after the commencement of clause 12. New section 103ZD(2) provides that for the purposes of new section 103ZD(1), if a relevant offence is alleged to have been committed between 2 dates, one before and one after the commencement of clause 12 of this Bill, the offence is to be regarded as having been committed before the commencement of clause 12. New section 103ZD(3) provides that new section 84TA of the Road Safety Act 1986 as inserted by clause 13 of this Bill applies to an impoundment or immobilisation order or a forfeiture order that is made on or after the commencement of clause 13, irrespective of when the relevant offence or relevant prior offences that led to the making of that order were alleged to have been committed. 11

 


 

New section 103ZD(4) provides that new section 84WA of the Road Safety Act 1986 as inserted by clause 14 of this Bill applies to a notice under new section 84W(1) served on or after the commencement of clause 14, irrespective of when the offence to which it relates is alleged to have been committed. New section 103ZD(5) provides that new section 84ZQB of the Road Safety Act 1986 as inserted by clause 15 of this Bill applies to a notice under new section 84ZQA(1) given on or after the commencement of clause 15, irrespective of when the offence to which it relates is alleged to have been committed. New section 103ZD(6) provides that new section 84ZQC of the Road Safety Act 1986 as inserted by clause 15 of this Bill applies to the vesting of a motor vehicle under section 84ZQ(4) on or after the commencement of clause 15, irrespective of when the offence that led to the impoundment or immobilisation of the vehicle was alleged to have been committed. New section 103ZD(7) provides that new section 84ZUA of the Road Safety Act 1986 as inserted by clause 16 of this Bill applies to a notice under section 84ZU(1) given on or after the commencement of clause 16, irrespective of when the offence to which it relates is alleged to have been committed. New section 103ZD(8) provides that new section 84ZWA of the Road Safety Act 1986 as inserted by clause 17 of this Bill applies to a disposal order made on or after the commencement of clause 17, irrespective of when the offence that led to the impoundment or immobilisation of the vehicle was alleged to have been committed. New section 103ZD(9) provides that new section 84ZY of the Road Safety Act 1986 as inserted by clause 18 of this Bill applies to any motor vehicle that is subject to impoundment, immobilisation or forfeiture on or after the commencement of clause 18, irrespective of when impoundment, immobilisation or forfeiture occurred. New section 103ZD(10) provides that new section 89D(1A) of the Road Safety Act 1986 as inserted by clause 19 of this Bill applies to a drug-driving infringement alleged to have been committed on or after the commencement of clause 19. 12

 


 

New section 103ZD(11) provides that for the purposes of new section 103ZD(10), if a drug-driving infringement is alleged to have been committed between 2 dates, one before and one after the commencement of clause 19 of this Bill, the drug-driving infringement is alleged to have been committed before the commencement of clause 19. Clause 21 Subclause (1) amends the heading to section 29 of the Road Safety Act 1986 to correct the placement of the apostrophe. Subclause (2) amends section 5 of the Road Legislation Miscellaneous Amendments Act 2010 to insert "the" before references to "Roads Corporation". PART 4--AMENDMENT OF THE POLICE REGULATION ACT 1958 Clause 22 amends section 127A of the Police Regulation Act 1958 to authorise a member of police personnel acting on behalf of the Chief Commissioner of Police to access information and to disclose it to the Registrar of the Commonwealth Personal Property Securities Register for the purpose of applying for registration of a financing statement or a financing change statement with respect to a motor vehicle in accordance with Part 6A of the Road Safety Act 1986. Clause 23 amends section 43(4) of the Superannuation Legislation Amendment Act 2010 to correct a typographical error. Section 43 is headed "Gender neutral language". Section 43(4) provides for the insertion of "or widower" after "widow" in clause 10 of Part III of the Fourth Schedule to the Police Regulation Act 1958. The reference to Part III is incorrect and should instead refer to Part II. This amendment applies retrospectively and clause 2(2) of this Bill provides that this clause is taken to have commenced operation on 30 June 2010 which is the day before section 43(4) of the Superannuation Legislation Amendment Act 2010 commenced operation. The amendment is necessary to remove any doubt that the amendment of the Police Regulation Act 1958 set out in section 43(4) of the Superannuation Legislation Amendment Act 2010 took effect as intended. 13

 


 

The amendment will have no detrimental effect on any person to whom the Schedule applies. PART 5--REPEAL Clause 24 provides for the repeal of this amending Bill. This repeal does not affect the continuing operation of the amendments made by the amending Act (see section 15(1) of the Interpretation of Legislation Act 1984). 14

 


 

 


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