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Road Safety Legislation Amendment
Bill 2022
Introduction Print
EXPLANATORY MEMORANDUM
General
The primary objective of the Bill is to support the delivery of the Road Safety
Strategy and the aim of reducing the road toll by making amendments to the
Road Safety Act 1986. The Bill enables better enforcement of distracted
driving and seatbelt wearing offences by giving evidential status to images
from new types of road safety cameras. The Bill also adds to the list of
serious offences that Victoria Police may use to trigger immediate licence
suspension and disqualification from driving when charges are laid.
The Bill also amends the Transport Accident Act 1986 to improve the
operational efficiency of the Victorian transport accident scheme and make
the scheme fairer by addressing identified anomalies.
Clause Notes
Part 1--Preliminary
Part 1 of the Bill provides for the preliminary matters of purposes and
commencement.
Clause 1 sets out the purposes of the Bill, which are to amend the Road
Safety Act 1986 to make further provision in relation to--
evidentiary matters relating to offences detected by road
safety cameras; and
the suspension of driver licences and learner permits
and the disqualification of persons from obtaining a
driver licence or learner permit; and
591362 1 BILL LA INTRODUCTION 22/3/2022
to amend the Transport Accident Act 1986 to make further
provision in relation to the payment of benefits under that Act
and for miscellaneous purposes.
Clause 2 deals with the commencement of the Act. It will come into
operation on a day or days to be proclaimed. Any provisions that
have not come into operation before 1 March 2023 will come into
operation on that day.
Part 2--Amendment of Road Safety Act 1986
Part 2 of the Bill amends the Road Safety Act 1986 to facilitate enforcement
of distracted driving and seatbelt wearing offences by giving evidential status
to images from new types of road safety cameras. Additionally, amendments
are made to add to the list of serious offences that trigger immediate licence
suspension and disqualification when charges are laid.
Clause 3 inserts new sections 80B to 80D into the Road Safety Act 1986.
These sections will apply in a proceeding for an offence to which
section 66 of the Road Safety Act 1986 applies. Section 66
refers to offences detected by prescribed road safety cameras or
by a prescribed process or the detection of which involves the use
of a prescribed road safety camera and makes those offences
operator onus offences to which Part 6AA of the Road Safety
Act 1986 applies.
New sections 80B to 80D will have a delayed commencement,
which is necessary to ensure that supporting amendments are
made to--
the Road Safety Road Rules 2017, which contain the
offences concerning the use of mobile phones while
driving and failing to wear a properly fitted and adjusted
seatbelt; and
the Road Safety (General) Regulations 2019, which
prescribe cameras and processes that may be used to
detect road safety offences, road safety offences that
may be dealt with by infringement notice and the
penalty for those infringements.
Section 80B applies in any legal proceeding where it is relevant
whether the driver of a motor vehicle, while the vehicle was
moving or stationary but not parked--
was touching a portable device; or
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had a portable device resting on their body or on clothes
being worn by them or on an item in their lap.
In such a case section 80B states that evidence of the relevant
fact as indicated or determined on the relevant occasion by--
a prescribed road safety camera when used in the
prescribed manner; or
an image or message produced by a prescribed road
safety camera or a prescribed process, when used in the
prescribed manner--
is, without prejudice to any other mode of proof and in the
absence of evidence to the contrary, proof of the relevant fact on
the relevant occasion.
Section 80C applies in any legal proceeding where it is relevant
whether the driver of a motor vehicle, while the vehicle was
moving or stationary but not parked--
was occupying a driver's seating position in the vehicle
fitted with an approved seatbelt; and
was not wearing the seatbelt for that seating position in
a properly adjusted and fastened manner.
In such a case, section 80C states that evidence of the relevant
fact as indicated or determined on the relevant occasion by--
a prescribed road safety camera when used in the
prescribed manner; or
an image or message produced by a prescribed road
safety camera or a prescribed process, when used in the
prescribed manner--
is, without prejudice to any other mode of proof and in the
absence of evidence to the contrary, proof of the relevant fact on
the relevant occasion.
Section 80D applies in any legal proceeding where it is relevant
whether the passenger of a motor vehicle, while the vehicle was
moving or stationary but not parked--
was occupying a seating position in the vehicle fitted
with an approved seatbelt; and
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was not wearing the seatbelt for that seating position in
a properly adjusted and fastened manner.
In such a case, section 80D states that evidence of the relevant
fact as indicated or determined on the relevant occasion by--
a prescribed road safety camera when used in the
prescribed manner; or
an image or message produced by a prescribed road
safety camera or a prescribed process, when used in the
prescribed manner--
is, without prejudice to any other mode of proof and in the
absence of evidence to the contrary, proof of the relevant fact on
the relevant occasion.
Clause 4 amends section 84(7) of the Road Safety Act 1986 to insert a
new paragraph (ba). The effect of this is that an image or
message produced by a prescribed road safety camera used to
detect a portable device offence or seatbelt offence when tested,
sealed and used in the prescribed manner has the benefit of the
evidentiary presumptions set out in section 84(7)(c) to (e).
Clause 5 inserts a new section 84AB into the Road Safety Act 1986 to
provide that an accused in a proceeding for a camera detected
seatbelt offence who intends to raise a matter relating to an
exemption under the Road Safety Road Rules 2017 must give
written notice of the matter to the Chief Commissioner of Police
at least 28 days before the day on which the proceeding is set
down for hearing. The new section provides that this notice must
contain any matter that is prescribed. The failure to comply with
new section 84AB does not take away a person's substantive right
to claim an exemption.
Clause 6 amends the heading to Division 3 of Part 6B of the Road Safety
Act 1986, to replace the reference to "offences resulting in injury
or death" with "other offences". This is necessary because
Division 3 will, due to the amendments contained in clauses 8
to 11 of the Bill, apply to additional offences that do not
necessarily result in injury or death.
Clause 7 inserts new section 85IAA of the Road Safety Act 1986. The
new section sets out the new definition of senior police officer.
This definition will apply to all provisions in Division 3 of
Part 6B of the Act. This definition was previously located in
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section 85I(4) of the Road Safety Act 1986 and only applied to
that section. That existing definition will be repealed by clause 8
of the Bill.
Clause 8 amends section 85I(2)(a) of the Road Safety Act 1986 to remove
the requirement for a senior police officer to not, under
section 85I(1) of the Act, suspend the driver licence or learner
permit of a person unless the senior police officer is reasonably
satisfied that the person used a motor vehicle in the commission
of the relevant offence. This requirement will become redundant
because the definition of relevant offence in section 85I(4) will
now specify, as appropriate, whether each relevant offence is
only a relevant offence if it arose out of the driving of a motor
vehicle.
Clause 8 also expands the definition of relevant offence in
section 85I(4) of the Road Safety Act 1986 to include additional
offences. The additional offences are--
an offence of manslaughter arising out of the driving of
a motor vehicle; and
an offence against section 24 of the Crimes Act 1958
(negligently causing serious injury) arising out of the
driving of a motor vehicle; and
an offence against section 318(1) of the Crimes
Act 1958 (culpable driving causing death) arising out of
the driving of a motor vehicle but not the operating of a
vessel; and
an offence against section 319(1) of the Crimes
Act 1958 (dangerous driving causing death) arising out
of the driving of a motor vehicle but not the operating of
a vessel; and
an offence against section 319(1A) of the Crimes
Act 1958 (dangerous driving causing serious injury)
arising out of the driving of a motor vehicle but not the
operating of a vessel.
5
If a person is charged by a police officer with one of these
offences, a senior police officer, by written notice, may suspend
the driver licence or learner permit of the person. This may occur
at any time on or after the charge-sheet is given to the person and
the suspension will apply until the charge has been determined.
Clause 8 also repeals the definition of senior police officer. This
definition will be relocated to new section 85IAA of the Road
Safety Act 1986 by clause 7 and will now apply to all provisions
in Division 3 of Part 6B of the Act.
Clause 9 inserts new section 85IA into the Road Safety Act 1986. This
new provision provides that if a person is charged by a police
officer with--
an offence against section 61(1)(a) or (b) of the Road
Safety Act 1986 (duty of a driver, if an accident occurs,
to immediately stop and render assistance); or
an offence against section 317AC of the Crimes
Act 1958 (intentionally exposing an emergency worker,
a custodial officer or a youth justice custodial worker to
risk by driving); or
an offence against section 317AD of the Crimes
Act 1958 (aggravated offence of intentionally exposing
an emergency worker, a custodial officer or a youth
justice custodial worker to risk by driving); or
an offence against section 317AE of the Crimes
Act 1958 (recklessly exposing an emergency worker, a
custodial officer or a youth justice custodial worker to
risk by driving); or
an offence against section 317AF of the Crimes
Act 1958 (aggravated offence of recklessly exposing an
emergency worker, a custodial officer or a youth justice
custodial worker to risk by driving); or
an offence against section 319AA(1) of the Crimes
Act 1958 (dangerous or negligent driving while pursued
by police)--
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a senior police officer, by written notice, may suspend the driver
licence or learner permit of the person at any time on or after the
charge-sheet is given to the person. The suspension will apply
until the charge has been determined.
Subclause (3) provides that the senior police officer must not
suspend the driver licence or learner permit of the person unless
the senior police officer is reasonably satisfied that--
in the case where the person has been charged with an
offence against section 61(1)(a) or (b) of the Road
Safety Act 1986--
another person has died or suffered serious injury from
the accident that occurred; and
the person is an unacceptable risk to road safety until
the charge is determined; and
in the case where the person has been charged with an
offence against section 317AC, 317AD, 317AE, 317AF
or 319AA(1) of the Crimes Act 1958--the person is an
unacceptable risk to road safety until the charge is
determined.
Clause 10 makes a consequential amendment to section 85J(1) of the Road
Safety Act 1986 to include a cross-reference to new section 85IA
which is inserted into that Act by clause 9 of the Bill.
Clause 11 makes a consequential amendment to section 85V of the Road
Safety Act 1986 to include a cross-reference to new section 85IA
which is inserted into that Act by clause 9 of the Bill.
Clause 12 inserts a definition of senior police officer into section 85X of
the Road Safety Act 1986. This definition will apply to all of
Part 6C of the Act. This definition was previously located in
section 85ZH(4) of the Road Safety Act 1986 and only applied
to that section. That existing definition will be repealed by
clause 14 of the Bill.
Clause 13 amends the heading to Division 4 of Part 6C of the Road Safety
Act 1986, to replace the reference to "offences resulting in injury
or death" with "other offences". This is necessary because
Division 4 will, due to the amendments contained in clauses 14
to 17 of the Bill, apply to additional offences that do not
necessarily result in injury or death.
7
Clause 14 amends section 85ZH of the Road Safety Act 1986.
Subclause (1) substitutes section 85ZH(2)(a) to remove the
requirement for a senior police officer to not, under
section 85ZH(1) of the Act, disqualify a person from obtaining a
driver licence or learner permit unless the senior police officer is
reasonably satisfied that the person used a motor vehicle in the
commission of the relevant offence. This requirement will
become redundant because the definition of relevant offence in
section 85ZH(4) will now specify, as appropriate, whether each
relevant offence is only a relevant offence if it arose out of the
driving of a motor vehicle.
Clause 14(2) expands the definition of relevant offence in
section 85ZH(4) of the Road Safety Act 1986 to include
additional offences. The additional offences are--
an offence of manslaughter arising out of the driving of
a motor vehicle; and
an offence against section 24 of the Crimes Act 1958
(negligently causing serious injury) arising out of the
driving of a motor vehicle; and
an offence against section 318(1) of the Crimes
Act 1958 (culpable driving causing death) arising out of
the driving of a motor vehicle but not the operating of a
vessel; and
an offence against section 319(1) of the Crimes
Act 1958 (dangerous driving causing death) arising out
of the driving of a motor vehicle but not the operating of
a vessel; and
an offence against section 319(1A) of the Crimes
Act 1958 (dangerous driving causing serious injury)
arising out of the driving of a motor vehicle but not the
operating of a vessel.
Clause 14(2) also repeals the definition of senior police officer.
This definition will be relocated to section 85X of the Road
Safety Act 1986 by clause 12 and will now apply to all
provisions in Part 6C of the Act.
8
Clause 15 inserts new section 85ZHA into the Road Safety Act 1986. This
new provision provides that if a person (who is a non-Victorian
licence or permit holder or an unlicensed driver) is charged by a
police officer with--
an offence against section 61(1)(a) or (b) of the Road
Safety Act 1986 (duty of a driver, if an accident occurs,
to immediately stop and render assistance); or
an offence against section 317AC of the Crimes
Act 1958 (intentionally exposing an emergency worker,
a custodial officer or a youth justice custodial worker to
risk by driving); or
an offence against section 317AD of the Crimes
Act 1958 (aggravated offence of intentionally exposing
an emergency worker, a custodial officer or a youth
justice custodial worker to risk by driving); or
an offence against section 317AE of the Crimes
Act 1958 (recklessly exposing an emergency worker, a
custodial officer or a youth justice custodial worker to
risk by driving); or
an offence against section 317AF of the Crimes
Act 1958 (aggravated offence of recklessly exposing an
emergency worker, a custodial officer or a youth justice
custodial worker to risk by driving); or
an offence against section 319AA(1) of the Crimes
Act 1958 (dangerous or negligent driving while pursued
by police)--
a senior police officer, by written notice, may disqualify the
person from obtaining a driver licence or learner permit at any
time on or after the charge-sheet is given to the person. The
disqualification will apply until the charge has been determined.
The senior police officer must not disqualify the person from
obtaining a driver licence or learner permit unless the senior
police officer is reasonably satisfied that--
in the case where the person has been charged with an
offence against section 61(1)(a) or (b) of the Road
Safety Act 1986--
9
another person has died or suffered serious injury
from the accident that occurred; and
the person is an unacceptable risk to road safety
until the charge is determined; and
in the case where the person has been charged with an
offence against section 317AC, 317AD, 317AE, 317AF
or 319AA(1) of the Crimes Act 1958--the person is an
unacceptable risk to road safety until the charge is
determined.
Clause 16 makes a consequential amendment to section 85ZI(1) of the
Road Safety Act 1986 to include a cross-reference to new
section 85ZHA which is inserted into that Act by clause 15 of the
Bill.
Clause 17 makes a consequential amendment to section 85ZT of the Road
Safety Act 1986 to include a cross-reference to new
section 85ZHA which is inserted into that Act by clause 15 of the
Bill.
Clause 18 amends the regulation making power in item 49C of Schedule 2
to the Road Safety Act 1986 to provide for regulations to be
made concerning the manner in which images or messages
produced by devices, systems or processes can be disclosed,
shared, destroyed or used. These regulations will be necessary to
support the amendments being made by clauses 3 to 5 of the Bill.
Clause 19 makes a number of statute law revision amendments to the Road
Safety Act 1986. Subclause (1) amends a reference in
section 58C(2)(b)(ii) of the Road Safety Act 1986 to an offence
under section 319AA of the Crimes Act 1958 so that it also
refers to the relevant subsection under which the offence applies.
This will ensure that the amended provision is consistent with
other provisions in the Road Safety Act 1986 that also refer to
that offence.
Subclauses (2) to (4) correct grammatical errors in the headings
to sections 85E, 85ZD and 85ZE of the Road Safety Act 1986.
Part 3--Amendment of Transport Accident Act 1986
Part 3 of the Bill amends the Transport Accident Act 1986 to improve the
operational efficiency of the Victorian transport accident scheme by
expanding entitlement to benefits for claimants and their supporting family
10
members including by removing anomalies and ensuring benefits are
consistent for claimants. Additionally, the Bill clarifies the capacity of the
Transport Accident Commission (the Commission) to disclose information to
other statutory agencies and expands its capacity to prosecute fraud offences
committed in connection with a claim to the Commission.
Clause 20 provides for the amendment of 2 definitions in section 3(1) of the
Transport Accident Act 1986.
The definition of dependent child is amended to extend this
definition from a child who is under the age of 16 years to a child
who is under the age of 18 years. This brings the definition in
line with the understanding of the meaning of "child" in the
Charter of Human Rights and Responsibilities Act 2006.
The definition of member of the immediate family is amended to
extend this definition so that a grandchild is considered a member
of the immediate family, alongside a partner, parent, grandparent,
child and sibling. This inclusion of "grandchild" creates a
consistent approach with other "immediate family" relationships
in the Transport Accident Act 1986 that are paired, for example
parent/child relationships.
The inclusion of "grandchild" in the definition of member of the
immediate family means that persons in the following scenarios
can be entitled to benefits under the Transport Accident
Act 1986 in respect of a transport accident, so long as they meet
other eligibility requirements--
family counselling for grandchildren of grandparents
severely injured or killed in a transport accident--
section 60(2A)(a);
travel or accommodation expenses for grandchildren
visiting their injured grandparent in hospital after a
transport accident or attending the funeral of their
grandparent killed in a transport accident--
sections 60(2D), 60(2E), 60(2EA) and 60(2EB);
replacement carer for grandchildren with a disability for
12 weeks if their grandparent is injured or killed in a
transport accident and was their primary carer--
section 60(2)(ca).
11
Clause 21 inserts a note at the foot of section 4 of the Transport Accident
Act 1986 to see also section 45(5A). Section 4 sets out the
meaning of pre-accident weekly earnings. Section 45(5A) is a
newly inserted provision that deals with the pre-accident weekly
earnings for an earner who was, immediately before a transport
accident, already receiving a weekly payment in respect of total
or partial loss of earnings suffered as a result of, or materially
contributed by, an injury resulting from a previous transport
accident.
Clause 22 inserts an additional note at the foot of section 4A of the
Transport Accident Act 1986 to see also section 45(5A).
Section 4 sets out the meaning of pre-accident weekly earnings
for apprentices and trainees. Section 45(5A) is a newly inserted
provision that deals with the pre-accident weekly earnings for an
earner who was, immediately before a transport accident, already
receiving a weekly payment in respect of total or partial loss of
earnings suffered as a result of, or materially contributed by, an
injury resulting from a previous transport accident.
Clause 23 inserts a note at the foot of section 5 of the Transport Accident
Act 1986 to see also section 45(5A). Section 5 sets out the
meaning of pre-accident weekly earnings for self-employed
persons. Section 45(5A) is a newly inserted provision that deals
with the pre-accident weekly earnings for an earner who was,
immediately before a transport accident, already receiving a
weekly payment in respect of total or partial loss of earnings
suffered as a result of, or materially contributed by, an injury
resulting from a previous transport accident.
Clause 24 amends sections 39(3)(a) and (b) of the Transport Accident
Act 1986 to broaden the circumstances in which a person is not
entitled to compensation under that Act. The effect of clause 24
is to provide that the Commission is not liable to pay
compensation under the Transport Accident Act 1986 (except
for medical and like benefits under section 60) to a person who is
convicted of murder or manslaughter, or an offence against
section 5A of the Crimes Act 1958 (the offence of child
homicide), which involved the use of a motor vehicle. This is in
addition to the current exclusion that applies to a person who was
driving a motor vehicle at the time of the transport accident and
is convicted of dangerous driving or culpable driving causing
death under section 318(1) or 319(1) of the Crimes Act 1958 or
12
a corresponding law in respect of driving the motor vehicle at
that time.
Clause 25 inserts a new paragraph (ab) into section 44(2) of the Transport
Accident Act 1986 to provide for an alternative calculation of
the amount of the weekly payment to an earner who is injured
because of a transport accident and suffers a total loss of
earnings, where the earner is already receiving a weekly payment
for total loss of earnings under section 44 of the Act due to a
previous transport accident. The amendment provides that in
such circumstances the person would continue to receive loss of
earnings payments at the same rate as the loss of earnings
payments being received for their initial transport accident claim,
rather than their payment being reduced to a portion of their loss
of earnings benefits from their earlier transport accident.
Clause 25 also inserts a new paragraph (ac) into section 44(2) of
the Transport Accident Act 1986 to provide for an alternative
calculation of the weekly payment to an earner who is injured
because of a transport accident and suffers a total loss of
earnings, where the earner is already receiving a weekly payment
for partial loss of earnings under section 45 of the Act due to a
previous transport accident. The new paragraph provides that in
such circumstances the person would receive total loss of
earnings payments that are 80% of their pre-accident weekly
earnings immediately before the previous accident. Loss of
earnings payments are generally lower than pre-accident weekly
earnings, so this ensures that a person does not receive a lesser
amount for their total loss of earnings payments because of the
period in which they were in receipt of partial loss of earnings
payments.
Clause 26 inserts a new subsection (5A) into section 45 of the Transport
Accident Act 1986 such that in the case where a person is
entitled to partial loss of earnings payments as a result of a
subsequent transport accident while they were already receiving
weekly loss of earnings payments under section 44 of the Act, or
weekly partial loss of earnings payments under section 45 of the
Act, as a result of a previous transport accident, their pre-accident
weekly earnings for the purpose of their ongoing partial loss of
earnings payments will be determined to be the same
pre-accident weekly earnings as for their previous transport
accident.
13
Prior to the amendment, if a person had a subsequent transport
accident while in receipt of loss of earnings payments, their
subsequent loss of earnings payments were recalculated using
their initial loss of earnings payments as their pre-accident
weekly earnings and not using their pre-accident weekly earnings
prior to their first transport accident. As loss of earnings
payments are generally lower than pre-accident weekly earnings,
the person's loss of earnings entitlement was reduced.
Clause 27 amends section 49(5A) to provide that if an amount cannot be
determined in accordance with the definition of pre-accident
earning capacity under that section, the amount is deemed to be
the amount which is equal to 100% of the average weekly
earnings of all employees for Victoria last published by the
Australian Bureau of Statistics.
This amendment ensures that a person whose pre-accident
earning capacity cannot be determined is not disadvantaged.
This predominantly affects seriously injured minors with a whole
person impairment rating above 50%, who are entitled to
continuing loss of earning capacity payments and who have no
prospect of their earning capacity improving.
If a person's pre-accident earning capacity can be determined, the
person generally receives loss of earning capacity payments
equal to 80% of their pre-accident earning capacity. Prior to the
amendment, if a person's pre-accident earning capacity could not
be determined, it was deemed to be the amount equal to 80% of
the average weekly earnings of all employees for Victoria last
published by the Australian Bureau of Statistics. This resulted in
a person, whose pre-accident earning capacity could not be
determined, receiving loss of earnings payments equal to
approximately 64% of the Victorian average weekly earnings
(that is, 80% of 80% of the average weekly earnings of all
employees for Victoria last published by the Australian Bureau of
Statistics).
Clause 28 amends section 53(1) of the Transport Accident Act 1986 to
provide that an earner who is injured in a transport accident and
at the time of that transport accident has attained the normal
retiring age for their occupation or the pension age, or who is
within 36 months of attaining that age, is entitled to weekly
payments (inclusive of loss of earnings, loss of earning capacity,
14
and safety net income benefit payments) for a period not
exceeding 36 months after their injury first manifests itself.
Previously, a person would have only been entitled to applicable
weekly payments for a period of 12 months if they had attained
the normal retiring age for their occupation or the pension age, or
if they were within 12 months of attaining that age.
Clause 29 amends section 56A(4) of the Transport Accident Act 1986 to
replace the reference to the Transport Accident (Impairment)
Regulations 2010 with a reference to "regulations (if any)". This
ensures that the legislation will not refer to any revoked
regulations, as the 2010 Regulations have been replaced by the
Transport Accident (Impairment) Regulations 2020 and the
2020 Regulations will be replaced in the future.
Clause 30 inserts new subsections (6) and (7) into section 57 of the
Transport Accident Act 1986 to extend the circumstances in
which a surviving partner or dependent child will not be entitled
to benefits under that Act in relation to the death of their partner
or parent in a transport accident. In particular, new section 57(6)
provides that the Commission is not liable to pay a death benefit
under section 57 to a surviving partner or dependent child of a
person who dies as a result of a transport accident if the surviving
partner or dependent child is convicted of--
an offence of murder or manslaughter, the commission
of which involved the killing of the deceased partner or
parent and use of a motor vehicle; or
an offence of dangerous or culpable driving causing
death under section 318(1) or 319(1) of the Crimes
Act 1958 or a corresponding law in respect of driving a
motor vehicle at that time that caused the death of the
deceased partner or parent.
This ensures that a surviving partner or dependent child is not
able to unfairly benefit from the commission of an offence which
results in the death of their partner or parent.
New section 57(7) provides that for the purposes of new
section 57(6), the Minister may, by Order published in the
Government Gazette, declare a law of another State or a
Territory, including a law that has been repealed or has expired,
to be a corresponding law for the purposes of new section 57(6).
15
Clause 31 amends the definition of dependent child in section 58(6) of the
Transport Accident Act 1986 so that in section 58 this term, in
relation to a surviving partner of an earner who dies as a result of
a transport accident, means a child who is under the age of
18 years or is under the age of 25 years and is a full-time student
or an apprentice. This increases the age of a child, who is not a
student, covered by section 58 from under the age of 16 years to
under the age of 18 years. This brings the definition of
dependent child in section 58(6) in line with the Charter of
Human Rights and Responsibilities Act 2006, which defines a
"child" as a person under 18 years of age.
Subclause (2) of clause 31 inserts new sections 58(8) and (9) into
section 58 of the Transport Accident Act 1986 to expand the
circumstances in which a surviving partner will not be entitled to
benefits under that Act in relation to the death of their partner in a
transport accident. In particular, new section 58(8) provides that
the Commission is not liable to pay a death benefit under
section 58 to a surviving partner of a person who dies as a result
of a transport accident if the surviving partner is convicted of--
an offence of murder or manslaughter, the commission
of which involved the killing of the deceased partner
and use of a motor vehicle; or
an offence of dangerous or culpable driving causing
death under section 318(1) or 319(1) of the Crimes
Act 1958 or a corresponding law in respect of driving a
motor vehicle at that time that caused the death of the
deceased partner.
This ensures that a surviving partner is not able to unfairly
benefit from the commission of an offence which results in the
death of their partner.
New section 58(9) provides that, for the purposes of new
section 58(8), the Minister may, by Order published in the
Government Gazette, declare a law of another State or a
Territory, including a law that has been repealed or has expired,
to be a corresponding law for the purposes of new section 58(8).
Clause 32 amends section 59(3), (4) and (6) of the Transport Accident
Act 1986 so that any reference to a child under the age of
16 years is replaced with a reference to a child under the age of
18 years. This extends the payment of a benefit under
16
section 59(1) or (2) to a child under the age of 18 years, where
previously children aged 16 or 17 were only entitled to benefits if
they were a full-time student. This brings section 59 in line with
the Charter of Human Rights and Responsibilities Act 2006,
which defines a "child" as a person under 18 years of age.
Clause 32(1)(b) and (2)(b) amends section 59(1) and (2) to
provide that a benefit paid under those subsections must be paid
to the "responsible person" for the child for the benefit of the
child until the child attains the age of 18 years.
These amendments ensure that dependency benefits under
section 59 are paid to the most appropriate person for the benefit
of the child, being the person who has the day-to-day care of the
child. Prior to this amendment, payments under section 59 were
paid to the "guardian" of the child, and there was no requirement
that to receive the payment the guardian had to have care of the
dependent child.
Clause 32(4) inserts new section 59(10A) and (10B) into
section 59 of the Transport Accident Act 1986 to expand the
circumstances in which a surviving dependent child will not be
entitled to benefits under that Act in relation to the death of their
parent in a transport accident. In particular, new section 59(10A)
provides that the Commission is not liable to pay a death benefit
under section 59 to a surviving dependent child of a person who
dies as a result of a transport accident if the surviving dependent
child is convicted of--
an offence of murder or manslaughter, the commission
of which involved the killing of the deceased parent and
use of a motor vehicle; or
an offence of dangerous or culpable driving causing
death under section 318(1) or 319(1) of the Crimes
Act 1958 or a corresponding law in respect of driving a
motor vehicle at that time that caused the death of the
deceased parent.
This ensures that a surviving child is not able to unfairly benefit
from the commission of an offence which results in the death of
their parent.
New section 59(10B) provides that for the purposes of new
section 59(10A), the Minister may, by Order published in the
Government Gazette, declare a law of another State or a
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Territory, including a law that has been repealed or has expired,
to be a corresponding law for the purposes of new
section 59(10A).
Clause 32(5) inserts new section 59(11A) into the Transport
Accident Act 1986 to make clearer that a dependent child whose
parents have both been killed in the same transport accident is
entitled to receive 2 sets of payments under sections 59(3), (4)
and (6) of that Act, one for each parent who died in the transport
accident. This is subject to the child meeting the other eligibility
requirements to receive payments under those sections, which are
unchanged. This ensures that a dependent child is in the same
position that they would have been in had their parents died in
2 separate transport accidents.
Clause 32(6) inserts new section 59(17) into the Transport
Accident Act 1986, which sets out the following definitions for
the purposes of section 59--
care, in relation to a child, means the daily care and
control of the child, whether or not involving parental
responsibility for the child;
parental responsibility, for a child, means all the duties,
powers, responsibilities and authority which, by law or
custom, parents have in relation to children;
responsible person, for a child, means a person who has
care of the child.
Additionally, clause 32(6) inserts new section 59(15) into the
Transport Accident Act 1986, which requires a responsible
person for a child to, without delay, notify the Commission of
when they stopped having care of a child. Clause 32(6) also
inserts new section 59(16), which requires a person who becomes
a responsible person for a child to, without delay, notify the
Commission of when they became the responsible person for the
child. This is to ensure the Commission has the relevant
information required to determine who should receive payments
under section 59 for a dependent child.
Clause 33 inserts new section 94(1)(c) in section 94 of the Transport
Accident Act 1986 to create a new category of persons that the
Commission is liable to indemnify. Specifically, new
section 94(1)(c) provides that the Commission is liable to
indemnify any person in respect of any liability for an injury or
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death of a pedal cyclist caused by or arising out of a collision in
Victoria between a pedal cycle being ridden by the pedal cyclist
and a door of a registered motor vehicle being opened, or that has
been opened, by the person.
Clause 33(14) inserts new section 94(13) which provides that in
section 94 indemnified person means a person who the
Commission is liable to indemnify under subsection 94(1). This
is necessary because the indemnity in new section 94(1)(c) is not
limited to the owner or driver of the motor vehicle involved in
the "car-dooring" accident. The indemnity in the new
section 94(1)(c) applies to any person in the circumstances
described and would include, for example, a passenger of a motor
vehicle.
Subclauses (3) to (13) of clause 33 make a number of
consequential amendments to section 94 to replace references to
the "owner" or "driver" of a motor vehicle with references to an
"indemnified person" as a result of the insertion of this definition.
Clause 34 substitutes section 96(1) of the Transport Accident Act 1986,
inserts a new subsection (1A) into that section and amends
subsection (2) of that section. The effect of these amendments is
to extend the application of section 96 to a collision in Victoria
between a pedal cycle being ridden by the person and a door of
an unidentified vehicle or an unindemnified vehicle being
opened, or that has been opened. The effect is that a person who
is injured in a "car-dooring" incident involving an unidentified or
unindemnified vehicle is able to recover damages in proceedings
against the Commission (subject to the other conditions in
section 96).
In addition, clause 34 replaces section 96(3) with new
subsections (3) and (3A), which provide that the Commission
may recover in proceedings against a relevant person the amount
of any judgment or settlement and the amount of the
Commission's reasonable out of pocket expenses in defending the
proceedings.
A relevant person is the owner or driver of the unidentified or
unindemnified vehicle. The Commission is only able to recover
in proceedings against the person who opened the door of an
unidentified or unindemnified vehicle in a "car-dooring" incident
if that person was also the owner or driver of the vehicle.
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Clause 34 also amends section 96(6) to provide that damages in
respect of personal injury or death must not be recovered against
the person who was opening or opened the door of the vehicle in
a "car-dooring" incident with a pedal cycle by a person who may
recover an equivalent sum from the Commission under
section 96(1).
Clause 35 amends section 99 of the Transport Accident Act 1986 to make
changes that relate to the new category of indemnified persons
inserted into section 94(1) by clause 33. The amendments made
by clause 35 to section 99 ensure that the obligation to give
notice to the Commission of a transport accident to which an
indemnity under section 94 applies, and resulting in the death or
injury to any person, applies to any person indemnified under
section 94(1), not just an owner or driver of the vehicle. This is
necessary because a person indemnified under new
section 94(1)(c) may not be the owner or driver of the motor
vehicle.
Clause 35(6) inserts new section 99(5) into the Transport
Accident Act 1986, which provides that in section 99
indemnified person means a person who the Commission is
liable to indemnify under section 94(1).
Clauses 35(1) to (5) amend section 99 of the Transport
Accident Act 1986 so that the section refers to an indemnified
person rather than an owner or driver of a motor vehicle.
Clause 36 inserts new section 100(1A) into the Transport Accident
Act 1986 to provide that the obligation to give notice to the
Commission or the owner of a motor vehicle involved in an
accident to which an indemnity under new section 94(1)(c)
applies. and resulting in the death of or injury to any person,
extends to the person who caused the death or injury in the
accident. This is necessary because a person indemnified under
new section 94(1)(c), and who caused the death or injury in an
accident to which that indemnity applies, may not be the owner
or driver of the motor vehicle.
Clause 36 also contains consequential amendments to
section 100(1) and (2) that are required as a result of the newly
inserted section 100(1A).
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Clause 37 amends section 120(1) of the Transport Accident Act 1986, to
provide that a charge-sheet charging an offence against the
Crimes Act 1958 which occurs in connection with a claim for
compensation under the Transport Accident Act 1986 may be
filed by the Commission or any person authorised by the
Commission to file charge-sheets on behalf of the Commission.
This is in addition to the power of the Commission (or any
person authorised by the Commission) to file a charge-sheet
charging an offence against the Transport Accident Act 1986,
that already exists in section 120(1). Clause 37(3) contains a
consequential amendment required to section 120(3) so that it
refers to both categories of offences contained in section 120(1).
Clause 37(3) and (5) substitutes references in section 120 to
"instituted" with "commenced", as this reflects current drafting
practice regarding language.
Clause 38 substitutes section 131 of the Transport Accident Act 1986.
New section 131(1) provides that a specified person, except in
accordance with section 131, must not make a record of, or
disclose to a person, restricted information; or use restricted
information. New section 131(1) retains the existing penalty of
10 penalty units.
New section 131(2) provides that a specified person may make a
record of, disclose restricted information to a person or use
restricted information--
for the purpose of performing a function or duty, or
exercising a power, under the Transport Accident
Act 1986 or another Act; or
if authorised to do so under another Act or law; or
for the purpose of, or in connection with, a legal
proceeding; or
in the course of a proceeding before a court or tribunal.
New section 131(3) provides that a specified person may disclose
restricted information if--
the person to whom the restricted information relates
consents to the disclosure; or
the information is in the public domain.
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New section 131(4) provides that a specified person who is
authorised by the Commission to do so may disclose restricted
information to--
the Victorian WorkCover Authority, or an authorised
insurer or self-insurer within the meaning of that Act, if
the restricted information relates to a person who is a
worker who is or has received compensation under the
Accident Compensation Act 1985 or the Workplace
Injury Rehabilitation and Compensation Act 2013;
or
the National Disability Insurance Agency if the
restricted information relates to a person who is a
participant within the meaning of the NDIS Act; or
a private health insurer that has made an application
under section 76A of the Transport Accident
Act 1986, if that information relates to the application;
or
a person who has responsibility for the administration of
a welfare, benefit or compensation scheme of a State or
Territory or the Commonwealth; or
a regulatory body, as authorised by section 131A of the
Transport Accident Act 1986; or
a law enforcement agency if the specified person
believes, on reasonable grounds, that the disclosure of
the information is necessary to lessen or prevent a
serious threat to an individual's life, health, safety or
welfare; or
a law enforcement agency if the specified person
believes, on reasonable grounds, that the information is
relevant to the investigation of the commission of--
an offence against the Transport Accident
Act 1986, or a law of Victoria relating to the
payment of a benefit or compensation, that
involves fraud or dishonesty; or
an offence against a law of the Commonwealth
or another State or Territory relating to the
payment of a benefit or compensation that
involves fraud or dishonesty; or
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a coroner if the information is relevant to an
investigation of a death by the coroner under Part 4 of
the Coroners Act 2008 or an inquest into a death that
the coroner is holding under the Coroners Act 2008; or
the Australian Statistician, but only in a way that does
not identify the person to whom the restricted
information relates; or
a public entity or entity established by a law of the
Commonwealth, or another State or a Territory, that is
prescribed for the purposes of section 131(4)(j) in the
circumstances that are prescribed for the purposes of
that section.
New section 131(5) sets out definitions for the purpose of
section 131. New section 131(5) provides that in section 131--
law enforcement agency means--
Victoria Police or the police for, or police service of, the
Commonwealth or of any other State or Territory; or
any other body or person responsible for the
performance of functions or activities directed to--
the prevention, detection, investigation,
prosecution or punishment of offences against
the laws of Victoria, the Commonwealth or any
other State or Territory; or
the enforcement of infringement penalties (by
whatever name they are known in the relevant
jurisdiction) issued under a law of Victoria, the
Commonwealth or any other State or Territory;
or
the enforcement of the orders of a court; or
a body or person authorised by a law of Victoria, the
Commonwealth or any other State or Territory to
enforce a warrant;
NDIA has the same meaning as Agency in the NDIS Act;
NDIS Act means the National Disability Insurance Scheme
Act 2013 of the Commonwealth;
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public entity has the same meaning as in the Public
Administration Act 2004;
restricted information means information--
that identifies or could lead to the identification of any
person; and
that is or was acquired by the person by reason of being
or having been a specified person;
specified person means a person--
who is, or has at any time been, appointed for the
purposes of the Transport Accident Act 1986;
who is, or has at any time been, employed or engaged
by the Commission; or
who is, or has at any time been, authorised to perform or
exercise any function or power of, or any function or
power on behalf of, the Commission under the
Transport Accident Act 1986 or any other Act.
Clause 39 inserts new Division 14 of Part 11 into the Transport Accident
Act 1986. Part 11 deals with savings and transitional provisions
for amending Acts. New Division 14 contains one section, which
is new section 234, regarding commencement of prosecutions.
New section 234 provides that section 120, as amended by
clause 37, does not apply in respect of an offence referred to in
clause 37 committed before the commencement of the Road
Safety Legislation Amendment Act 2022.
Part 4--Repeal of this Act
Part 4 of the Bill provides for the repeal of the Act.
Clause 40 provides for the repeal of the Act on 1 March 2024 noting that
the repeal of the Act on that date does not affect the continuing
operation of the amendments made by it.
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