TRANSPORT LEGISLATION (MISCELLANEOUS AMENDMENTS) BILL 2004 Explanatory Memoranda

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TRANSPORT LEGISLATION (MISCELLANEOUS AMENDMENTS) BILL 2004

Transport Legislation (Miscellaneous Amendments) Bill Victorian Legislation Parliamentary Documents Circulation Print EXPLANATORY MEMORANDUM Clause Notes PART 1--PRELIMINARY MATTERS Clause 1 states the purposes of the Bill, which are to make amendments to the Marine Act 1988, the Melbourne City Link Act 1995, the Public Transport Competition Act 1995, the Rail Corporations Act 1996, the Road Safety Act 1986, the Road Safety (Drug Driving) Act 2003, the Road Transport (Dangerous Goods) Act 1995, the Sentencing Act 1991 and the Transport Act 1983. Clause 2 provides for the commencement of the Bill. All the provisions commence on the day after the day of Royal Assent, except-- · clauses 9, 10 and 12(5) and (6), which come into force on a day or days to be proclaimed, or 4 January 2005, whichever is sooner; and · Part 8, which is deemed to have come into effect on 15 January 2004. PART 2--AMENDMENT OF MARINE ACT 1988 Clause 3 inserts new sections 28(1A) and 28(1B) into the Marine Act 1988. Section 28(1A) provides that-- · A person may be convicted or found guilty of refusing to undergo a preliminary breath test even though the prescribed device by which the test could be conducted was not presented to the person at the time of the making of the requirement to undergo the test (section 28(1A)(a)). 1 551148 BILL LA CIRCULATION 7/5/2004

· A person may be convicted or found guilty of refusing to comply with a requirement made in connection with the taking of a sample of breath even though a breath analysing instrument was not available, or a person authorised to operate that instrument was not present, at Victorian Legislation Parliamentary Documents the place where the requirement was made at the time it was made (section 28(1A)(b)(i) and (ii)). · A person may be convicted or found guilty of refusing to comply with a requirement made in connection with the taking of a sample of blood even though a registered medical practitioner or approved health professional who could take the sample had not been nominated by the person requiring the sample, or was not present at the place where the requirement was made at the time it was made (section 28(1A)(b)(iii) and (iv)). Section 28(1B) provides, for the avoidance of doubt, that the fact that a breath analysing instrument was not available, or a person authorised to operate that instrument was not present, at the place where the requirement was made at the time it was made, is not a reason of a substantial character for refusing to comply with a requirement made in connection with the taking of a sample of breath for the purposes of section 31(9) of the Marine Act 1988. Section 31(9) of the Marine Act 1988 provides that a person must not be convicted or found guilty of refusing to furnish a sample of breath for analysis if he or she satisfies the court that there was some reason of a substantial character for the refusal, other than a desire to avoid providing information which may be used against him or her. The purpose of these amendments is to address the consequences of a decision of the Supreme Court of Victoria in Halepovic v Sangston [2003] VSC 464 (No. 6401 of 2003), in which it was decided that a charge of failing to provide a blood sample as required under section 55(9A) of the Road Safety Act 1986 could only be sustained if a nominated doctor or other approved health professional was present and able to take the sample at the time the requirement was made. These amendments avoid the need to call out a registered medical practitioner or approved health professional, set up testing equipment or make similar arrangements when it is clear from the outset that this will be a waste of time and resources because the person to be tested or from whom a sample is to be taken under the Marine Act 1988 has made it clear that he or she will not cooperate. The amendments also avoid the need for a person who has 2

decided not to cooperate in a breath or blood test under that Act to be detained any longer than is necessary. PART 3--AMENDMENT OF MELBOURNE CITY LINK ACT 1995 Victorian Legislation Parliamentary Documents Clause 4 amends section 3 of the Melbourne City Link Act 1995, to repeal the definitions of "Director" and "Secretary", and insert a definition of "Roads Corporation". These amendments are necessary as a consequence of the amendments in clause 5. Clause 5 abolishes the statutory office of Director, Melbourne City Link and confers the Director's functions and powers on the Roads Corporation. To this end, clause 5-- · repeals section 6A of the Melbourne City Link Act 1995, which establishes the office of Director, Melbourne City Link, and section 6B(2), which confers powers on the Director (clauses 5(1) and 5(3)); and · amends section 6B(1) of the Melbourne City Link Act 1995, which sets out the Director's functions, and section 6B(3), which provides that the Director must comply with any directions given by the Minister, by substituting "Roads Corporation" for "Director" (clauses 5(2) and 5(4)). Clause 5(5) also amends section 18B(1) of the Melbourne City Link Act 1995, by substituting "Roads Corporation" for "Secretary". This means that the power to certify that a document is a copy of an exhibit to an agreement or a variation to an agreement under the Melbourne City Link Act 1995 now rests with the Roads Corporation, rather than the Secretary to the Department of Infrastructure. Under section 18B(1) a certified copy of an exhibit to an agreement or a variation to an agreement under the Melbourne City Link Act 1995 is admissible as evidence of the agreement before all courts or persons acting judicially within Victoria. Clause 6 inserts definitions of "taxi-cab", "tollway", "tollway billing arrangement" and "tollway operator" into section 69 of the Melbourne City Link Act 1995. The definition of "taxi-cab" is necessary for the purposes of clause 9 of the Bill. The remaining definitions are necessary for the purposes of clauses 7, 8(1), 8(3), 13 and 14 of the Bill. 3

Clause 7 inserts a new section 72(5) into the Melbourne City Link Act 1995 to support the interoperability of tollroads in Australia. Section 72(5) provides that section 72(1), which imposes a liability to pay tolls to the relevant corporation (as defined in section 3), does not apply if the person driving in a toll zone has Victorian Legislation Parliamentary Documents an agreement or arrangement to pay tolls with an interstate tollway operator. A driver who has an arrangement with an interstate tollroad operator for the payment of tolls will be able to drive in a City Link toll zone without having to have an account with the relevant corporation and without committing an offence under the Melbourne City Link Act 1995. Interoperability agreements between tollroad operators permit tolls so accumulated to be debited to a motorist's existing tollroad account with an interstate tollway operator. Clause 8 amends section 73 of the Melbourne City Link Act 1995, which creates the offence of driving a vehicle in a toll zone without the vehicle being registered by the relevant corporation (as defined in section 3) in respect of that toll zone (referred to in these Notes as a "tolling offence"). Clause 8(1) extends the defences available to a person charged with the tolling offence to include where he or she believed on reasonable grounds that the vehicle was covered by a "tollway billing arrangement", that is, that the vehicle was covered by an agreement or arrangement to pay tolls with an interstate tollway operator. Clause 8(2) is a minor technical amendment, which recognises that criminal proceedings are "commenced against" a person and infringement notices are "served on" a person. Clause 8(3) provides that the tolling offence does not apply in respect of a vehicle covered by a tollway billing arrangement. Clause 9 amends section 77(1)(b) of the Melbourne City Link Act 1995, which allows a relevant corporation (as defined in section 3) to request an enforcement agency to serve an infringement notice on the owner of a vehicle involved in non-payment of a toll. Amended section 77(1)(b) provides that where the vehicle involved in the offence is a taxi-cab within the meaning of section 86(1) of the Transport Act 1983, the relevant corporation may request the enforcement agency to serve an infringement notice on either the owner of the taxi-cab or the person whom the relevant corporation, or a person authorised by the relevant corporation for the purposes of section 77, believes was driving the taxi-cab at the time of the offence. The belief must be on the basis of a sworn statement in writing or a statutory declaration supplied by the owner of the taxi-cab. 4

Previously, the relevant corporation would only have been able to request an enforcement agency to serve an infringement notice on the owner of the taxi-cab under the "owner onus" provisions in section 87 of the Act. Allowing the relevant corporation also to request that an infringement notice be served on the driver Victorian Legislation Parliamentary Documents recognises the fact that many taxi owners do not actually drive their taxis. In these cases, it is an inefficient use of enforcement resources for the taxi owner to have to be served with an infringement notice, and then to nominate the driver under the "owner onus" provisions in section 87. This amendment needs to be read in conjunction with-- · clause 10, which allows for an infringement notice to be served on the person identified as the driver of a taxi- cab under section 77(1)(b)(ii); and · clause 12(5), which allows for a statement or declaration provided under section 77(1)(b)(ii) to be used as evidence that the person identified as the driver was driving the taxi-cab at all times relating to the offence; and · clause 12(6), which excludes the owner onus provisions in section 87 when a statement or declaration is provided under section 77(1)(b)(ii). Clause 10 amends section 80(2)(b)(ii) of the Melbourne City Link Act 1995 to provide that an infringement notice may be served on a person identified as the driver of a taxi-cab by the taxi-cab's owner in a statement or declaration made under section 77(1)(b)(ii) (which is inserted by clause 9 of the Bill). Clause 11(1) amends section 83(1) of the Melbourne City Link Act 1995 to enable an infringement notice to be withdrawn at the request of the alleged offender at any time. Currently an infringement notice can only be withdrawn within 28 days after it is served. Clause 11(2) inserts a new section 83(2A) in the Melbourne City Link Act 1995. New section 83(2A) prevents an infringement notice being withdrawn after the infringement penalty is registered with the PERIN Court under Schedule 7 to the Magistrates' Court Act 1989. These amendments need to be read in conjunction with clause 12(2), which extends the period within which the owner of a vehicle who has been served with an infringement notice under the "owner onus" provisions in section 87 may nominate the person who was driving the vehicle from 28 days after the 5

notice is served to the time when the infringement penalty is registered with the PERIN Court under Schedule 7 to the Magistrates' Court Act 1989. Clause 12 amends section 87 of the Melbourne City Link Act 1995, which Victorian Legislation Parliamentary Documents provides for "owner onus" enforcement of tolling offences. Under section 87, the owner of a vehicle (or the person responsible for the number plates displayed on the vehicle), which is used in a tolling offence is responsible for that offence. However, the owner may avoid liability by "nominating" the actual driver, or by establishing that he or she could not reasonably have known who the driver was, or by establishing that the vehicle or number plates were stolen. Clause 12(1) substitutes a new section 87(3)(a) into the Melbourne City Link Act 1995, so that it now deals only with the time within which the owner of a vehicle who has been served with a summons must nominate the actual driver. This time remains the same as previously, namely before or within 28 days after service of the summons. Clause 12(2) inserts a new section 87(3)(aab) into the Melbourne City Link Act 1995, which provides for the time within which the owner of a vehicle who has been served with an infringement notice must nominate the actual driver. This period has been extended from 28 days after service of a courtesy letter under Schedule 7 to the Magistrates' Court Act 1989 (as it was under the previous section 87(3)(a)) to the time when the infringement penalty is registered with the PERIN Court under Schedule 7 to the Magistrates' Court Act 1989. Clause 12(3) amends section 87(3A)(b) of the Melbourne City Link Act 1995 to extend the range of people to whom a person who has been served with an infringement notice may provide a nomination identifying the actual driver. This now includes not only the enforcement officer who caused the infringement notice to be served, but also any other enforcement officer. "Enforcement officer" is defined in section 3 of the Act to mean any person authorised by an enforcement agency to carry out functions for the purposes of Part 4 of the Act. Clause 12(4) amends sections 87(4) and (5) of the Melbourne City Link Act 1995 to include a reference to the new section 87(3)(aab) inserted by clause 12(2). This means that where the owner of a vehicle who has been served with an infringement notice provides a statement or declaration in respect of a tolling offence nominating the actual driver, then-- 6

· a proceeding against the nominated driver may be commenced not later than 12 months after the date on which the statement or declaration was supplied (section 87(4)); and Victorian Legislation Parliamentary Documents · the statement or declaration is evidence that the nominated driver was driving the vehicle at all times relating to the offence (section 87(5)). Clause 12(5) amends section 87(5) of the Melbourne City Link Act 1995 to include a reference to the new section 77(1)(b)(ii) inserted by clause 9. This means that if, before the owner of a taxi-cab which has been detected committing a tolling offence is served with an infringement notice under the owner onus provisions in section 87, that owner provides a statement or declaration to the relevant corporation (as defined in section 3), or a person authorised by the relevant corporation for the purposes of section 77(1)(b)(ii), identifying a person as the driver, then that statement or declaration is evidence that the person identified as the driver was driving the taxi-cab at all times relating to the offence. Clause 12(6) inserts a new section 87(6) into the Melbourne City Link Act 1995. Section 87(6) excludes the owner onus provisions in section 87 if, as the result of a statement or declaration by the owner of a taxi-cab under the new section 77(1)(b)(ii) inserted by clause 9, an infringement notice is served on a person allegedly driving the taxi-cab. However, this exclusion of the owner onus provisions does not apply where the infringement notice against the driver is subsequently withdrawn (unless it is withdrawn and a summons is served on the driver). Clause 13 amends section 89(4) of the Melbourne City Link Act 1995, which provides that a certificate in the form prescribed by regulation 504 of the Melbourne City Link (General) Regulations 1999 purporting to be issued by a relevant corporation (as defined in section 3), or a person authorised by a relevant corporation, certifying any of the matters set out in paragraphs (a) to (f) of section 89(4), is admissible in evidence in any proceedings and, in the absence of evidence to the contrary, is proof of the matters stated in the certificate. Clause 13 inserts a new paragraph (ca) into section 89(4) so that a relevant corporation, or a person authorised by a relevant corporation, may certify as to a further matter, namely that a specified vehicle was, or was not, covered by a tollway billing arrangement at a specified time. This provision is consequential upon the interoperability provisions contained in clauses 7, 8 7

and 14 of the Bill and will facilitate the leading of evidence in proceedings concerning a tolling offence where the new defence provided by clause 8(1) is raised. Clause 14 amends section 90A of the Melbourne City Link Act 1995 by Victorian Legislation Parliamentary Documents providing a further circumstance, additional to those contained in the existing section 90A(3) and elsewhere in Division 3 of Part 4 of the Act, in which "restricted tolling information" may be disclosed and used. "Restricted tolling information" is defined in section 90 of the Act. Division 3 of Part 4 of the Act prohibits the disclosure or use of restricted tolling information and sets out exceptions to the prohibition. This amendment supports interoperability between Australian tollroads, enabling tollway operators to disclose and use "restricted tolling information" to achieve payment of, and to be credited for, tolls. Clause 14 substitutes for the existing section 90A(3) new sections 90A(3), (3A) and (3B). Section 90A(3)(a) re-enacts the existing section 90A(3). The new provisions are contained in new sections 90A(3)(b), 90A(3A) and 90A(3B). Section 90A(3)(b) allows a relevant agency (which is defined in section 69 of the Act to include the Link corporation, the Link operator, the Extension corporation and the Extension operator, each of these terms being in turn defined in section 3 of the Act) to disclose to an interstate tollway operator restricted tolling information relating to-- · the date and time of use of a toll zone by any vehicle; or · the toll payable for the use of a toll zone by any vehicle; or · the licence plate number or category of any vehicle using a toll zone; or · any vehicle transponder carried in any vehicle using a toll zone. Section 90A(3A) allows an interstate tollway operator to whom restricted tolling information is disclosed pursuant to section 90A(3)(b) to use that information to either-- · bill and charge its customer for the use in a City Link toll zone of a vehicle covered by the customer's account with the interstate tollway operator; or · enable the Link corporation or the Extension corporation to be credited with the toll payable for such use. 8

Section 90A(3)(c) allows a relevant agency to disclose to an interstate tollway operator restricted tolling information relating to-- · the licence plate number or category of any vehicle Victorian Legislation Parliamentary Documents registered with a relevant corporation (as defined in section 3); or · any vehicle transponder issued in respect of any such vehicle. Section 90A(3B) allows an interstate tollway operator to whom restricted tolling information is disclosed pursuant to section 90A(3)(c) to use the information to be credited with a payment by the Link corporation or the Extension corporation in respect of the use in an interstate tollway of a vehicle registered with the interstate tollway operator. Clause 15 allows the disclosure to and use by the police and the Roads Corporation of restricted tolling information for the purposes of investigating and enforcing certain road safety offences. The road safety offences are those of dangerous driving, careless driving, non-compliance with overhead lane control devices, travel by an oversized vehicle, travel by an overheight vehicle, failure to properly secure a load and failure to properly affix and display number plates. Clause 15(1) inserts a new heading to section 90B of the Melbourne City Link Act 1995, reflecting the addition of the amendments to the existing provisions concerning disclosure to and use by the police of restricted tolling information for the purposes of the enforcement of the criminal law. Clause 15(2) inserts definitions of "authorised Roads Corporation officer", "enforcement of a relevant road safety law" and "relevant road safety law" into section 90B(1) of the Melbourne City Link Act 1995. The definitions are necessary for the purposes of clauses 15(3), (4) and (5) and clause 16 of the Bill. Clause 15(3) allows the Roads Corporation to authorise in writing an officer of the Roads Corporation to be an authorised Roads Corporation officer for the purposes of section 90B. Clause 15(4) substitutes a new section 90B(2) in the Melbourne City Link Act 1995. The new section 90B(2) allows a person to whom section 90A applies (which includes any person who possesses any restricted tolling information) to disclose restricted tolling information to a member of the police force or an authorised Roads Corporation officer if-- 9

· an authorised police officer has certified in writing that the disclosure is reasonably necessary for the enforcement of the criminal law (which re-enacts the existing section 90B(2)); or Victorian Legislation Parliamentary Documents · an authorised police officer or the Roads Corporation has certified in writing that the disclosure is reasonably necessary for the enforcement of a relevant road safety law (as defined in section 90B(1) as amended by clause 15(2) of the Bill). Clauses 15(5)(a) and (c) insert references to "authorised Roads Corporation officer" and "the enforcement of a relevant road safety law" into section 90B(3) of the Melbourne City Link Act 1995 as a consequence of the new section 90B(2) inserted by clause 15(4). The restrictions already contained in section 90B(3) placed on a member of the police force in relation to disclosure and use of restricted tolling information for the purposes of the enforcement of the criminal law will now be extended to disclosure and use of such information for the purposes of the enforcement of a relevant road safety law. As a result of the amendments an authorised Roads Corporation officer is also covered by the restrictions in relation to disclosure and use of restricted tolling information for the purposes of the enforcement of a relevant road safety law. Clause 15(5)(b) makes a grammatical change consequential upon the amendment made by clause 15(5)(a). Clause 16 inserts a new section 90CA into the Melbourne City Link Act 1995 to establish a regime in relation to the keeping of records of disclosure and use of restricted tolling information by authorised Roads Corporation officers. This is necessary because of the amendments made by clause 15. The regime is similar to that contained in the existing section 90C of the Act for members of the police force and assists the Ombudsman in the carrying out of his or her functions insofar as they concern the restricted tolling information provisions contained in Division 3 of Part 4 of the Act. The new section 90CA(1) requires the Roads Corporation to ensure that there are created in relation to-- · certificates that are issued by the Roads Corporation for the purposes of section 90B of the Act; and 10

· the disclosure or use of restricted tolling information by authorised Roads Corporation officers-- any records that are reasonably required by the Ombudsman, after consultation with the Roads Corporation, to enable the Victorian Legislation Parliamentary Documents Ombudsman to carry out his or her functions in relation to Division 3 of Part 4 of the Act. The new section 90CA(2) requires the Roads Corporation to ensure further that the records are created in the form and manner and within the time, and kept in the manner, reasonably required by the Ombudsman after consultation with the Roads Corporation. The Roads Corporation is also required to ensure that any such record is retained for a period of two years or any other period specified by regulation. Clause 17 inserts three transitional provisions into the Melbourne City Link Act 1995. The new section 121(1) provides that any reference to the Director, Melbourne City Link (which office is abolished by clause 5 of the Bill) in any Act or document is, so far as it relates to any period after the commencement of clause 5, and if not inconsistent with the context or subject-matter, to be construed as a reference to the Roads Corporation. This is to achieve continuity between the statutory office of the Director, Melbourne City Link and the Roads Corporation. The new section 121(2) provides that the new extended time within which an infringement notice for a tolling offence may now be withdrawn at the request of the person on whom it was served provided by clause 11 applies to any infringement notice issued on or after the commencement of that clause, whether the infringement itself occurred before, on or after that commencement date. This will ensure that the owner of a vehicle that has been involved in a tolling offence will obtain the maximum benefit of these amendments. The new section 121(3) provides that the new extended time within which nominations may be made under the owner onus provisions in section 87 provided by clauses 12(1) to (4) apply irrespective of whether or not a charge was filed or an infringement notice or courtesy letter was served before that commencement. This will also ensure that the owner of a vehicle that has been involved in a tolling offence will obtain the maximum benefit of these amendments. 11

PART 4--AMENDMENT OF PUBLIC TRANSPORT COMPETITION ACT 1995 Clause 18 amends section 3(1) of the Public Transport Competition Act 1995, to insert a new definition of "disqualifying offence", and Victorian Legislation Parliamentary Documents amends the definition of "road transport passenger service" to omit "a regular passenger service". Clause 19 inserts a new section 9(1) into the Public Transport Competition Act 1995 to give the Secretary to the Department of Infrastructure power to refuse to grant accreditation if the applicant (or one of its directors or nominated managers) has been found guilty of a disqualifying offence or has been charged with a disqualifying offence and the charge has not been finally determined. PART 5--AMENDMENT OF RAIL CORPORATIONS ACT 1996 Clause 20 amends section 3 of the Rail Corporations Act 1996 to-- · repeal the definitions of "metropolitan train operator" and "metropolitan tram operator"; and · insert a new broad definition of a "public transport service"; and · amend the definitions of "train operator" and "tram operator" to delete reference to Part 5, which is repealed by this Act. Clause 21 amends section 68(1) of the Rail Corporations Act 1996 to extend the civil penalties allowed under section 68 for breach of a contract for passenger train or tram services or a lease of rail or tram infrastructure. This allows a civil penalty clause to be enforced under a contract with a provider of public transport services, where the contract is with the Secretary to the Department of Infrastructure or the Director of Public Transport. The amendment will apply regardless of whether the contract was entered into before or after the commencement of this section. Public transport services include services such as ticketing systems, marketing of passenger services, maintenance of tram or train infrastructure or rolling stock, or other services ancillary or incidental to the provision of passenger services. Clause 22 repeals Part 5 of the Rail Corporations Act 1996, which establishes the cross-ownership restrictions on train and tram operators. 12

PART 6--AMENDMENT OF ROAD SAFETY ACT 1986 Clause 23 includes definitions of "non-standard number plate" and "registration number rights" that are used in Division 1 of Part 6 of the Bill. Victorian Legislation Parliamentary Documents "Registration number rights" are the rights, subject to the Act and the regulations, to exclusive ownership of a particular combination of letters and numbers that may, under regulation 220 of the Road Safety (Vehicles) Regulations 1999, be assigned to a vehicle for use on a Victorian number plate. "Non-standard number plates" are number plates for use on a vehicle that, at the time of the issue, are not of the design, size, colour or material of number plates then generally issued on payment of the basic fee for the issue of number plates prescribed in regulation 221(1) of the Road Safety (Vehicles) Regulations 1999 and items 3 and 4 of Schedule 6 to those Regulations. Subject to the Act and regulations, registration number rights are capable of exclusive ownership, may be transferred to any other person or otherwise dealt with by their owner, and form part of the property of the estate of their owner on his or her death (see section 5AD(2)(a), (c), (d) and (e) inserted by clause 26 of the Bill). By contrast, number plates, including non-standard number plates, remain the property of the State (regulation 221(5) of the Road Safety (Vehicles) Regulations 1999). Section 5AD(6) inserted by clause 26 makes it clear that the principle that number plates remain the property of the State also includes number plates bearing a registration number that is the subject of registration number rights, despite the separate ownership of the registration number rights. Clause 24 amends the functions of the Roads Corporation to allow it to sell registration number rights, and issue non-standard number plates and replacement number plates. Clause 25 amends the powers of the Roads Corporation to allow it to collect money received on the sale of registration number rights and the issue of non-standard number plates and replacement number plates. Clause 26 provides for the sale of registration number rights, non-standard number plates and replacement number plates, and sets out the rights enjoyed by a person who owns registration number rights. 13

Clause 27(1) provides that a certificate purporting to be issued by the Roads Corporation certifying that on a particular date-- · a particular registration number was the subject of registration number rights; or Victorian Legislation Parliamentary Documents · a particular person was the owner of registration number rights in respect of a particular registration number, is admissible in evidence and, in the absence of evidence to the contrary, is proof of the matters contained within it. Clause 27(2) is a minor technical amendment to correct punctuation in section 84(5) of the Road Safety Act 1986. Clause 28(1) allows for the fees charged in respect of the assignment of registration numbers to exceed the cost to the Roads Corporation of providing that service. Clause 28(2) amends 97A of the Road Safety Act 1986, which limits the fees that the Roads Corporation may charge for a service it provides in connection with the registration of vehicles to the cost to the Corporation of providing that service. New section 97A(3) provides that this does not limit the ability of the Corporation to charge fees for the sale of registration number rights or the issuing of non-standard number plates and replacement number plates that exceed the cost to the Corporation of providing those services (conferred by sections 5AC(4) and 5AE(2) that are inserted by clause 26 of the Bill). Clause 29 allows for regulations to be made regarding number plates and registration number rights. Clause 30 inserts new sections 103E and 103F into the Road Safety Act 1996. Section 103E(1) defines "commencement day" which is used in section 103E. This is the day on which Division 1 of Part 6 of the Bill comes into operation. Section 103E(2) validates sales of registration number rights that occurred prior to the commencement day. Section 103E(3) clarifies the ownership of registration number rights sold prior to the commencement day where the vehicle to which they were assigned had ceased to be registered. In this situation, it must be presumed that the registration number rights were cancelled 12 months after the vehicle had ceased to be registered, unless the owner of those rights had before that 14

expiry notified the Roads Corporation of their wish to retain the registration number that was the subject of those rights. This confirms existing arrangements where a registration number that is the subject of registration number rights has been assigned to a vehicle. Victorian Legislation Parliamentary Documents Section 103E(4) clarifies the ownership of registration number rights sold prior to the commencement day where the relevant registration number is displayed on a number plate that was issued by the Roads Corporation before 1 September 2002. In this situation, it must be presumed, in the absence of evidence to the contrary, that the person to whom the number plate was issued was the person to whom the registration number rights were sold. This recognises that there may not be records of the sale of registration numbers prior to 1 September 2002, which is that date when the Roads Corporation was required by Information Privacy Principle 3 in Schedule 1 to the Information Privacy Act 2000 to take reasonable steps to make sure that the personal information that it collects is accurate, complete and up to date. Section 103E(5) validates transfers of registration number rights that occurred prior to the commencement day. Section 103E(6) validates the payments made for registration number rights that were sold prior to the commencement day. Section 103E(7) validates the fees charged prior to the commencement day for the assignment to a vehicle of a specifically requested registration number that at the time of the sale formed part of a general issue series. The assignment fee that has been charged in this situation is higher than the assignment fee allowed to be charged by regulation 220(3) and (4) of the Road Safety (Vehicles) Regulations 1999 and item 2 of Schedule 6 to those Regulations and corresponding previous legislation. Section 103E(8) provides that it must be presumed, in the absence of evidence to the contrary, that where a specifically requested registration number that formed part of a general issue series was assigned to a vehicle prior to the commencement day, the person to whom the registration number was assigned did not thereby obtain registration number rights in respect of that number. Section 103E(9) validates the fees charged before the commencement day for the assignment of a registration number that was or had been assigned to a vehicle registered in the name of a person other than the person paying the fee. The assignment fee that has been charged in this situation is the same as the 15

assignment fee allowed to be charged by regulation 220(3) and (4) of the Road Safety (Vehicles) Regulations 1999 and item 2 of Schedule 6 to those Regulations and corresponding previous legislation. However, that prescribed fee can presently only be charged when a registration number is assigned between Victorian Legislation Parliamentary Documents vehicles owned by the same person. Section 103E(10) validates the fees charged before the commencement day for the issue of non-standard number plates or replacement non-standard number plates. Fees collected on the issue of non-standard number plates exceeded the amounts allowed to be charged for the issue of number plates under regulation 221(1) of the Road Safety (Vehicles) Regulations 1999 and items 3 and 4 of Schedule 6 to those Regulations and corresponding previous legislation. The fees charged for the issue of replacement non-standard number plates exceeded the cost to the Roads Corporation in obtaining them, and are therefore in excess of the amount allowed to be charged for the issue of replacement number plates in regulation 221(5) of the Road Safety (Vehicles) Regulations 1999 and corresponding previous legislation. Section 103F provides that regulations regarding number plates and registration number rights may take effect from the day on which Division 1 of Part 6 of the Bill commences operation (whether or not the regulations are made after that day). Clause 31 expands the circumstances in which a court which grants an application for re-licensing at the end of a period during which a person has been disqualified from obtaining a driver licence or permit because of a drink-driving offence may direct the Roads Corporation that it can only grant the driver licence or permit subject to an alcohol interlock condition. It inserts a new section 50AAA(3) into the Road Safety Act 1986, which provides that if a person commits a repeat drink- driving offence or an offence involving a blood alcohol concentration of 0·15 grams or more per 100 millilitres of blood or a breath alcohol concentration of 0·15 grams or more per 210 litres of expired air, and the person was, by reason of that offence, disqualified from obtaining a driver licence or permit on or before the commencement of section 10 of the Road Safety (Alcohol Interlocks) Act 2002 (that is, on or before 13 May 2002), then when considering whether to re-licence that person at the end of the period of disqualification, the court-- 16

· must have regard to an assessment report about the person's usage of alcohol or drugs obtained from an accredited agency under section 50(4B)(a) of the Road Safety Act 1986; and Victorian Legislation Parliamentary Documents · may direct the Roads Corporation that it can only grant the person a driver licence or permit that is subject to an alcohol interlock condition. Clause 31 needs to be read in conjunction with clause 33(1), which amends the transitional provision that previously applied to section 50AAA. Clause 32 amends section 50AAB(4) of the Road Safety Act 1986 to require a person making an application for removal of an alcohol interlock condition at the end of the period specified by the court to give 28 days written notice of the application and of the venue of the court at which it is to be made to the Chief Commissioner of Police. This is the same requirement that arises when a person makes an application to be re-licensed at the end of a period of disqualification for a drink-driving offence under section 50(4) of the Road Safety Act 1986. This is necessary to ensure that the Chief Commissioner of Police is able to exercise his or her right to tender evidence regarding the application for removal of an alcohol interlock condition given by section 50AAA(6)(a). Clause 32 needs to be read in conjunction with the transitional provision in proposed new section 103B(1B) that is inserted by clause 33(2). Clause 33(1) substitutes a new section 103B(1) into the Road Safety Act 1986, which is the transitional provision in respect of section 50AAA of that Act. Section 50AAA provides for the circumstances in which the court may impose an alcohol interlock condition when it grants an application for re-licensing at the end of a period of disqualification for a drink-driving offence. Clause 33(1) has the effect that the court may impose an alcohol interlock condition under section 50AAA whenever the offence was committed, including when it was committed before or on the commencement of section 10 of the Road Safety (Alcohol Interlocks) Act 2002 (that is, before or on 13 May 2002). Under the previous section 103B(1), the court could only impose an alcohol interlock condition if the drink-driving offence for which a driver licence or permit was disqualified was committed before that date. 17

Clause 33(2) inserts new sections 103B(1A) and (1B) into the Road Safety Act 1986. New section 103B(1A) provides that any re-licensing application made before the commencement of the amendments regarding Victorian Legislation Parliamentary Documents alcohol interlock conditions made by Division 2 of Part 6 of this Bill will be governed by the previous transitional provision in section 103B(1) of the Road Safety Act 1986. This means that where an application to be re-licensed is made prior to the commencement of those amendments the court can only impose an alcohol interlock condition if the drink-driving offence was committed before or on the commencement of section 10 of the Road Safety (Alcohol Interlocks) Act 2002 (that is, before or on 13 May 2002). New section 103B(1B) provides that clause 32, which requires a person making an application for removal of an alcohol interlock condition at the end of the period specified by the court to give 28 days written notice of the application and of the venue of the court at which it is to be made to the Chief Commissioner of Police, only applies to applications made more than 28 days after the commencement of that clause. This means that applications for removal of an alcohol interlock condition that have already been made when the new requirement comes into operation do not run the risk of being delayed while the driver gives 28 days written notice of the application to the Chief Commissioner of Police. Clause 34 inserts new sections 49(1A) and 49(1B) into the Road Safety Act 1986. Section 49(1A) provides that-- · A person may be convicted or found guilty of refusing to undergo a preliminary breath test even though the prescribed device by which the test could be conducted was not presented to the person at the time of the making of the requirement to undergo the test (section 49(1A)(a)). · A person may be convicted or found guilty of refusing to comply with a requirement to undergo an assessment of drug impairment even though the requirement was not made at a place where such an assessment could have been carried out, or a person authorised to carry out the assessment was not present at the place where the requirement was made at the time it was made (section 49(1A)(b)(i) and (ii)). 18

· A person may be convicted or found guilty of refusing to comply with a requirement made in connection with the taking of a sample of breath even though a breath analysing instrument was not available, or a person authorised to operate that instrument was not present, at Victorian Legislation Parliamentary Documents the place where the requirement was made at the time it was made (section 49(1A)(c)(i) and (ii)). · A person may be convicted or found guilty of refusing to comply with a requirement made in connection with the taking of a sample of blood even though a registered medical practitioner or approved health professional who could take the sample had not been nominated by the person requiring the sample, or was not present at the place where the requirement was made at the time it was made (section 49(1A)(c)(iii) and (iv) where the requirement is made under section 49(1)(e); and section 49(1A)(d)(i) and (iii) where the requirement is made under section 49(1)(ea)). · A person may be convicted or found guilty of refusing to comply with a requirement made in connection with the taking of a sample of urine even though a registered medical practitioner or approved health professional who could take the sample had not been nominated by the person requiring the sample, or was not present at the place where the requirement was made at the time it was made (section 49(1A)(d)(ii) and (iii)). Section 49(1B) provides, for the avoidance of doubt, that the fact that a breath analysing instrument was not available, or a person authorised to operate that instrument was not present, at the place where the requirement was made at the time it was made, is not a reason of a substantial character for refusing to comply with a requirement made in connection with the taking of a sample of breath for the purposes of section 55(9) of the Road Safety Act 1986. Section 55(9) provides that a person must not be convicted or found guilty of refusing to furnish a sample of breath for analysis if he or she satisfies the court that there was some reason of a substantial character for the refusal, other than a desire to avoid providing information which may be used against him or her. 19

The purpose of these amendments is to address the consequences of a decision of the Supreme Court of Victoria in Halepovic v Sangston [2003] VSC 464 (No. 6401 of 2003), in which it was decided that a charge of failing to provide a blood sample as required under section 55(9A) of the Road Safety Act 1986 Victorian Legislation Parliamentary Documents could only be sustained if a nominated doctor or other approved health professional was present and able to take the sample at the time the requirement was made. These amendments avoid the need to call out a registered medical practitioner or approved health professional, set up testing equipment or make similar arrangements when it is clear from the outset that this will be a waste of time and resources because the person to be tested or assessed, or from whom a sample is to be taken, under the Road Safety Act 1986 has made it clear that he or she will not cooperate. The amendments also avoid the need for a person who has decided not to cooperate in a breath, blood or urine test, or assessment of drug impairment, under that Act to be detained any longer than is necessary. New section 103G(1) inserted by clause 39 provide that the amendments in clause 34 do not affect the rights of the parties in this case of Halepovic v Sangston. Clause 35 amends sections 66 and 86 of the Road Safety Act 1986, which provide for "owner onus" enforcement of road safety and parking offences respectively. Under sections 66 and 86, the owner of a vehicle (or the person responsible for the number plates displayed on the vehicle), which is detected committing certain prescribed road safety offences or a parking offence, is responsible for that offence. However, the owner may avoid liability by "nominating" the actual driver or person in charge of the vehicle, or by establishing that he or she could not reasonably have known who the driver or person in charge was, or by establishing that the vehicle or number plates were stolen. Clause 35(1) substitutes a new section 66(3)(a) into the Road Safety Act 1986, so that it now deals only with the time within which the owner of a vehicle who has been served with a summons for a prescribed road safety offence must nominate the actual driver. This time remains the same as previously, namely before or within 28 days after service of the summons. Clause 35(2) inserts a new section 66(3)(aab) into the Road Safety Act 1986, which provides for the time within which the owner of a vehicle who has been served with a traffic infringement notice must nominate the actual driver. This period has been extended from 28 days after service of a courtesy letter under Schedule 7 to the Magistrates' Court Act 1989 (as it was under the previous section 66(3)(a)) to the time when the 20

infringement penalty is registered with the PERIN Court under Schedule 7 to the Magistrates' Court Act 1989. Clause 35(3) amends section 66(3AA) of the Road Safety Act 1996 to extend the range of people to whom a person who has Victorian Legislation Parliamentary Documents been served with a traffic infringement notice may provide a nomination identifying the actual driver. This now includes not only the person who served the infringement notice or caused it to be served (section 66(3AA)(b)), but also any other person appointed by the Chief Commissioner of Police for the purposes of Part 7 of the Act (that is, the Part of the Act dealing with infringement notices). Clause 35(4) amends sections 66(3A) and (4) of the Road Safety Act 1986 to include a reference to the new section 66(3)(aab) inserted by clause 35(2). This means that where the owner of a vehicle who has been served with a traffic infringement notice provides a statement or declaration in respect of the infringement nominating the actual driver, then-- · a proceeding against the nominated driver may be commenced not later than 12 months after the date on which the statement or declaration was supplied (section 66(3A)); and · the statement or declaration is evidence that the nominated driver was driving the vehicle at all times relating to the offence (section 66(4)). Clause 35(5) substitutes a new section 86(3)(a) into the Road Safety Act 1986, so that it now deals only with the time within which the owner of a vehicle who has been served with a summons for a parking offence must nominate the person who was actually in charge of the vehicle. This time remains the same as previously, namely before or within 28 days after service of the summons. Clause 35(6) inserts a new section 86(3)(aab) into the Road Safety Act 1986, which provides for the time within which the owner of a vehicle who has been served with a courtesy letter under Schedule 7 to the Magistrates' Court Act 1989 must nominate the person who was actually in charge of the vehicle. This period has been extended from 28 days after service of the courtesy letter (as it was under the previous section 86(3)(a)) to the time when the infringement penalty is registered with the PERIN Court under Schedule 7 to the Magistrates' Court Act 1989. 21

Clause 35(7) amends section 86(4) of the Road Safety Act 1986 to extend the range of people to whom a person who has been served with a parking infringement notice may provide a nomination identifying the actual driver. This now includes not only the person who served the infringement notice or caused it Victorian Legislation Parliamentary Documents to be served (section 86(4)(b)), but also any other person appointed by the Chief Commissioner of Police for the purposes of Part 7 of the Act (that is, the Part of the Act dealing with infringement notices). Clause 35(8) amends sections 86(4A) and (5) of the Road Safety Act 1986 to include a reference to the new section 86(3)(aab) inserted by clause 35(6). This means that where the owner of a vehicle who has been served with a parking infringement notice provides a statement or declaration in respect of the infringement nominating the actual driver, then-- · a proceeding against the nominated driver may be commenced not later than 12 months after the date on which the statement or declaration was supplied (section 86(4A)); and · the statement or declaration is evidence that the nominated driver was driving the vehicle at all times relating to the offence (section 86(5)). Clause 36(1) amends section 88(3) of the Road Safety Act 1986 to enable a traffic infringement notice to be withdrawn at the request of the person on whom it was served at any time. Currently a traffic infringement notice can only be withdrawn within 28 days after it is served. Clause 36(2) inserts a new section 88(3AA) in the Road Safety Act 1986. New section 88(3AA) prevents a traffic infringement notice being withdrawn after the infringement penalty is registered with the PERIN Court under Schedule 7 to the Magistrates' Court Act 1989. These amendments need to be read in conjunction with clause 35(2), which extends the period within which the owner of a vehicle who has been served with an traffic infringement notice under the "owner onus" provisions in section 66 may nominate the person who was driving the vehicle from 28 days after the notice is served to the time when the infringement penalty is registered with the PERIN Court under Schedule 7 to the Magistrates' Court Act 1989. 22

Clause 37(1) substitutes sections 91(1) of the Road Safety Act 1986 with sections 91(1) to (1B). New section 91(1)(a) deals with delegation by the Roads Corporation of its powers under the Road Safety Act 1986 or Victorian Legislation Parliamentary Documents the regulations made under that Act to an officer of the Corporation. It amends the position that applied under the previous section 91(1) with respect to these delegations by allowing for the delegation by the Roads Corporation to an officer of the Corporation of the power of delegation itself. New section 91(1)(b) deals with delegation by the Roads Corporation of its powers under the Road Safety Act 1986 or the regulations made under that Act to people other than an officer of the Corporation. With respect to these delegations, the position that applied under the previous section 91(1) remains, that is, that the power of delegation itself may not be delegated. New section 91(1A) provides that if a power of the Roads Corporation is delegated to an officer of the Corporation, and the instrument of delegation authorises the sub-delegation of that power, then, subject to any conditions to which the original delegation is subject, the officer to whom the power has been delegated may in turn sub-delegate that power. However, the power of delegation itself may not be sub-delegated by an officer of the Corporation. An example of the sort of power that is delegated by the Roads Corporation is the power to issue driver licences or learner permits under regulation 206 of the Road Safety (Drivers) Regulations 1999. These powers are usually delegated to an organisation such as a College of TAFE or a private company. The amendments in sections 91(1)(a) and 91(1A) have the effect that if this sort of power is delegated to officers within the Roads Corporation itself then those officers are able to sub-delegate the powers to non-government organisations and businesses which have been assessed as being appropriately qualified and suitable to exercise those powers on the Roads Corporation's behalf. The amendments do not allow any powers of the Roads Corporation to then be sub-delegated by the non-government organisations and businesses themselves. 23

These amendments are necessary because it is unworkable for the Roads Corporation itself (which, under section 15 of the Transport Act 1983 is constituted by the Chief Executive) to have to sign and seal each instrument of delegation and instrument revoking a delegation, given the large number of Victorian Legislation Parliamentary Documents organisations that exercise powers on behalf of the Roads Corporation. It would be preferable for the delegation to be made by the person within the Roads Corporation who is responsible for the relevant business area, rather than for it to have to be done by the Chief Executive. Under these amendments, the power to delegate may only be delegated by the Roads Corporation itself, the only people to whom the power of delegation may be delegated are officers of the Corporation, and only officers of the Corporation are able to sub-delegate a power. Section 91(1B) provides that sections 42 and 42A of the Interpretation of Legislation Act 1984, which regulate the exercise of delegated power, and establish rules of construction regarding the power to delegate, apply to a sub-delegation authorised by section 91(1A). Clause 37(2) amends section 91(2) of the Road Safety Act 1986 consequential on the fact that section 91(1) has now been replaced with three sub-sections. Clause 38 repeals sections 96A(2) and 96A(4) of the Road Safety Act 1986. Section 96A(2) provides that a Ministerial declaration suspending or varying the operation of regulations made under that Act must be consistent with the provisions relating to application orders and emergency orders in the agreements scheduled to the National Road Transport Commission Act 1991 of the Commonwealth. Section 96A(4) provides that if an emergency order is terminated in accordance with an agreement scheduled to the National Road Transport Commission Act 1991 of the Commonwealth, the Minister must publish notice of the termination in the Government Gazette. The reason why these provisions are being repealed is that the National Road Transport Commission Act 1991 of the Commonwealth has now been repealed and replaced with the National Transport Commission Act 2003, and the agreements scheduled to the National Road Transport Commission that are referred to in them have not been replicated in the new Act. 24

Clause 39 inserts three transitional provisions into the Road Safety Act 1996. The new section 103G(1) provides that the amendments to the alcohol and drug testing provisions of the Act in clause 34 of the Victorian Legislation Parliamentary Documents Bill do not affect the rights of the parties in the proceeding in the Supreme Court case which identified the problems that are being addressed in those amendments, namely Halepovic v Sangston. The new section 103G(2) provides that the new extended time within which nominations may be made under the owner onus provisions in sections 66 and 86 provided by clause 35 apply to offences alleged to have been committed before, on or after the commencement of that clause and irrespective of whether or not a charge was filed, or an infringement notice or courtesy letter was served before that commencement. This will ensure that the owners of vehicles that have been involved in an offence will obtain the maximum benefit of these amendments. The new section 103G(3) provides that the new extended time within which a traffic infringement notice may now be withdrawn at the request of the person on whom it was served provided by clause 36 applies to any infringement notice issued on or after the commencement of that clause, whether the infringement itself occurred before, on or after that commencement date. This will also ensure that the owners of vehicles that have been involved in these offences will obtain the maximum benefit of these amendments. Clause 40 makes amendments to the provisions in the Magistrates' Court Act 1989 regarding service of a courtesy letter consequential upon clauses 12(2), 35(2) and 36(6) of the Bill. These clauses allow for the owner of a vehicle that has been involved in a traffic or parking infringement to provide the name and address of the person who was driving or in charge of a vehicle, and therefore the provisions inserted by those clauses need to be listed as possible means by which the address of that person may be ascertained for the purpose of the service of a courtesy letter. 25

PART 7--AMENDMENT OF ROAD SAFETY (DRUG DRIVING) ACT 2003 Victorian Legislation Parliamentary Documents Clause 41(1) inserts new sections 7(4A) and 7(4B) into the Road Safety (Drug Driving) Act 2003, which amend section 49 of the Road Safety Act 1986. Section 7(4A) of the Road Safety (Drug Driving) Act 2003 inserts a new section 49(1A)(e) into the Road Safety Act 1986. It provides that-- · A person may be convicted or found guilty of refusing to undergo an oral fluid test even though the prescribed device by which the test could be conducted was not presented to the person at the time of the making of the requirement to undergo the test, and was not available at the place or vehicle where the requirement was made at the time it was made (proposed section 49(1A)(e)(i) and (ii) of the Road Safety Act 1986). · A person may be convicted or found guilty of refusing to undergo an oral fluid test even though a person authorised to carry out the prescribed procedure for the provision of a sample of oral fluid was not present at the place where the requirement was made at the time it was made (proposed section 49(1A)(e)(iii) of the Road Safety Act 1986). · A person may be convicted or found guilty of refusing to comply with a requirement made in connection with the taking of a sample of blood even though a registered medical practitioner or approved health professional who could take the sample had not been nominated by the person requiring the sample, or was not present at the place where the requirement was made at the time it was made (proposed section 49(1A)(e)(iv) and (v) of the Road Safety Act 1986). Section 7(4B) of the Road Safety (Drug Driving) Act 2003 inserts a new section 49(1C) into the Road Safety Act 1986. It provides, for the avoidance of doubt, that the fact that-- · a prescribed device by which an oral fluid test could be conducted was not presented to the person at the time of the making of the requirement to undergo the test; and 26

· a prescribed device by which an oral fluid test could be conducted was not available at the place or vehicle where the requirement was made at the time it was made; and Victorian Legislation Parliamentary Documents · a person authorised to carry out the prescribed procedure for the provision of a sample of oral fluid was not present at the place where the requirement was made at the time it was made-- is not a reason of a substantial character for refusing to comply with a requirement made in connection with the taking of a sample of oral fluid for the purposes of section 55E(12) of the Road Safety Act 1986. Section 55E(12) provides that a person must not be convicted or found guilty of refusing to furnish a sample of oral fluid if he or she satisfies the court that there was some reason of a substantial character for the refusal, other than a desire to avoid providing information which may be used against him or her. The purpose of these amendments is to address the consequences of a decision of the Supreme Court of Victoria in Halepovic v Sangston [2003] VSC 464 (No. 6401 of 2003), in which it was decided that a charge of failing to provide a blood sample as required under section 55(9A) of the Road Safety Act 1986 could only be sustained if a nominated doctor or other approved health professional was present and able to take the sample at the time the requirement was made. These amendments avoid the need to call out a registered medical practitioner or approved health professional, set up testing equipment or make similar arrangements when it is clear from the outset that this will be a waste of time and resources because the person to be tested or from whom a sample is to be taken under the Road Safety (Drug Driving) Act 2003 has made it clear that he or she will not cooperate. The amendments also avoid the need for a person who has decided not to cooperate in a oral fluid or blood test under that Act to be detained any longer than is necessary. Clause 41(2) amends section 7(5) of the Road Safety (Drug Driving) Act 2003, which inserts section 49(3AAA) into the Road Safety Act 1986. The effect of this clause is to provide that the financial penalty for refusing to provide a sample of oral fluid or refusing to comply with a requirement made in connection with the provision of such a sample is-- 27

· In the case of a first offence, a fine of up to 6 penalty units; and · In the case of a subsequent offence, a fine of up to 2 penalty units. Victorian Legislation Parliamentary Documents Clause 41(3) amends section 8(1) of the Road Safety (Drug Driving) Act 2003 to insert section 50(1DA) into the Road Safety Act 1986. This clause provides that the period of licence cancellation for refusing to provide a sample of oral fluid or refusing to comply with a requirement made in connection with the provision of such a sample is-- · In the case of a first offence, not less than 3 months; and · In the case of a subsequent offence, not less than 6 months. Clause 41(4) makes a minor technical amendment to section 8(1) of the Road Safety (Drug Driving) Act 2003 consequent on the amendment to that section made by clause 41(3). PART 8--AMENDMENT OF ROAD TRANSPORT (DANGEROUS GOODS) ACT 1995 Clause 42 replaces a reference in the Road Transport (Dangerous Goods) Act 1995 to the National Road Transport Commission Act 1991 of the Commonwealth with a reference to the National Transport Commission Act 2003 of the Commonwealth. The Road Transport Reform (Dangerous Goods) Act 1995 of the Commonwealth and the regulations made under that Act set out nationally agreed road rules relating to the carriage of dangerous goods, and those rules have been applied in Victoria by the Road Transport (Dangerous Goods) Act 1995. The continued operation of the Victorian Act relies on a reference in that Act to the Commonwealth's National Road Transport Commission Act 1991. The replacement of the National Road Transport Commission Act 1991 with the National Transport Commission Act 2003 has resulted in the need to amend the reference in the Victorian Act. This amendment is important because, although the reference to the National Road Transport Commission Act 1991 is deemed by operation of the Interpretation of Legislation Act 1984 to be a reference to the replacement Act, the current wording of the Victorian Act may incorrectly be read as meaning that, since the repeal of the National Road Transport Commission Act 1991, there are no longer any rules in Victoria applying to the carriage 28

of dangerous goods by road. To this end, the amendment has been made retrospective to 15 January 2004, which is the date of the repeal of the National Road Transport Commission Act 1991. PART 9--AMENDMENT OF SENTENCING ACT 1991 Victorian Legislation Parliamentary Documents Clause 43 expands the circumstances in which a court which grants an application for re-licensing at the end of a period during which a person has been disqualified from obtaining a driver licence or permit because of certain serious driving offences to which alcohol was a contributing factor may direct the Roads Corporation that it can only grant the driver licence or permit subject to an alcohol interlock condition. These offences (referred to in these Notes as "alcohol related serious driving offences") are-- · Manslaughter arising out of the use or driving of a motor vehicle; and · An offence under section 24 of the Crimes Act 1958 (negligently causing serious injury) arising out of the driving of a motor vehicle; and · An offence under section 318 of the Crimes Act 1958 (culpable driving causing death). It inserts a new section 89A(3) into the Sentencing Act 1991, which provides that if a person commits a repeat alcohol related serious driving offence, and the person was, by reason of that offence, disqualified from obtaining a driver licence or permit on or before the commencement of section 14 of the Road Safety (Alcohol Interlocks) Act 2002 (that is, on or before 13 May 2002), then when considering whether to re-licence that person at the end of the period of disqualification, the Magistrates' Court-- · must have regard to an assessment report about the person's usage of alcohol or drugs obtained from an accredited agency under section 50(4B)(a) of the Road Safety Act 1986; and · may direct the Roads Corporation that it can only grant the person a driver licence or permit that is subject to an alcohol interlock condition. Clause 43 needs to be read in conjunction with clause 45(1), which amends the transitional provision that previously applied to section 89A. 29

Clause 44 amends section 89B(3) of the Sentencing Act 1991 to require a person making an application for removal of an alcohol interlock condition at the end of the period specified by the Magistrates' Court to give 28 days written notice of the application and of the venue of the Court at which it is to be made to the Chief Victorian Legislation Parliamentary Documents Commissioner of Police. This is the same requirement as arises when a person makes an application to be re-licensed at the end of a period of disqualification for an alcohol related serious driving offence under section 89(3) of the Sentencing Act 1991. This is necessary to ensure that the Chief Commissioner of Police is able to exercise his or her right to tender evidence regarding the application for removal of an alcohol interlock condition given by section 89B(5)(a). This clause needs to be read in conjunction with the transitional provision in proposed new section 126(1B) that is inserted by clause 45(2). Clause 45(1) substitutes a new section 126B(1) into the Sentencing Act 1991, which is the transitional provision in respect of section 89A of that Act. Section 89A provides for the circumstances in which the Magistrates' Court may impose an alcohol interlock condition when it grants an application for re-licensing for a alcohol related serious driving offence. Clause 45(1) has the effect that the court may impose an alcohol interlock condition under section 89A whenever the offence was committed, including when it was committed before or on the commencement of section 14 of the Road Safety (Alcohol Interlocks) Act 2002 (that is, before or on 13 May 2002). Under the previous section 126B(1), the court could only impose an alcohol interlock condition if the alcohol related serious driving offence for which a driver licence or permit was disqualified was committed before that date. Clause 45(2) inserts new sections 126B(1A) and (1B) into the Sentencing Act 1991. New section 126B(1A) provides that any re-licensing application made before the commencement of the amendments regarding alcohol interlock conditions made by Part 9 of this Bill will be governed by the previous transitional provision in section 89A(1) of the Sentencing Act 1991. This means that where an application to be re-licensed is made prior to the commencement of those amendments the Magistrates' Court can only impose an alcohol interlock condition if the alcohol related serious driving offence was committed before or on the commencement of section 14 of the Road Safety (Alcohol Interlocks) Act 2002 (that is, before or on 13 May 2002). 30

New section 126B(1B) provides that clause 44, which requires a person making an application for removal of an alcohol interlock condition at the end of the period specified by the court to give 28 days written notice of the application and of the venue of the court at which it is to be made to the Chief Commissioner of Victorian Legislation Parliamentary Documents Police, only applies to applications made more than 28 days after the commencement of that clause. This means that applications for removal of an alcohol interlock condition that have already been made when the new requirement comes into operation do not run the risk of being delayed while the driver gives 28 days written notice of the application to the Chief Commissioner of Police. PART 10--AMENDMENT OF TRANSPORT ACT 1983 Clause 46 amends section 32(1A) of the Transport Act 1983, to give power to the Secretary to the Department of Infrastructure to delegate the power to grant driving instructor authorities under section 33 of the Road Safety Act 1986. Clause 47 inserts new sections 94(1A) and 94(1B) into the Transport Act 1983. Section 94(1A) provides that-- · A person may be convicted or found guilty of refusing to undergo a preliminary breath test even though the prescribed device by which the test could be conducted was not presented to the person at the time of the making of the requirement to undergo the test (section 94(1A)(a)). · A person may be convicted or found guilty of refusing to comply with a requirement to undergo an assessment of drug impairment even though the requirement was not made at a place where such an assessment could have been carried out, or a person authorised to carry out the assessment was not present at the place where the requirement was made at the time it was made (section 94(1A)(b)(i) and (ii)). · A person may be convicted or found guilty of refusing to comply with a requirement made in connection with the taking of a sample of breath even though a breath analysing instrument was not available, or a person authorised to operate that instrument was not present, at 31

the place where the requirement was made at the time it was made (section 94(1A)(c)(i) and (ii)). · A person may be convicted or found guilty of refusing to comply with a requirement made in connection with Victorian Legislation Parliamentary Documents the taking of a sample of blood even though a registered medical practitioner or approved health professional who could take the sample had not been nominated by the person requiring the sample, or was not present at the place where the requirement was made at the time it was made (section 94(1A)(c)(iii) and (iv) where the requirement is made under section 94(1)(c) and section 94(1A)(d)(i) and (iii) where the requirement is made under section 94(1)(ca)). · A person may be convicted or found guilty of refusing to comply with a requirement made in connection with the taking of a sample of urine even though a registered medical practitioner or approved health professional who could take the sample had not been nominated by the person requiring the sample, or was not present at the place where the requirement was made at the time it was made (section 94(1A)(d)(ii) and (iii). Section 94(1B) provides, for the avoidance of doubt, that the fact that a breath analysing instrument was not available, or a person authorised to operate that instrument was not present, at the place where the requirement was made at the time it was made, is not a reason of a substantial character for refusing to comply with a requirement made in connection with the taking of a sample of breath for the purposes of section 96(7) of the Transport Act 1983. Section 96(7) provides that a person must not be convicted or found guilty of refusing to furnish a sample of breath for analysis if he or she satisfies the court that there was some reason of a substantial character for the refusal, other than a desire to avoid providing information which may be used against him or her. The purpose of these amendments is to address the consequences of a decision of the Supreme Court of Victoria in Halepovic v Sangston [2003] VSC 464 (No. 6401 of 2003), in which it was decided that a charge of failing to provide a blood sample as required under section 55(9A) of the Road Safety Act 1986 could only be sustained if a nominated doctor or other approved health professional was present and able to take the sample at the time the requirement was made. These amendments avoid the need to call out a registered medical practitioner or approved 32

health professional, set up testing equipment or make similar arrangements when it is clear from the outset that this will be a waste of time and resources because the person to be tested or assessed, or from whom a sample is to be taken, under the Transport Act 1983 has made it clear that he or she will not Victorian Legislation Parliamentary Documents cooperate. The amendments also avoid the need for a person who has decided not to cooperate in a breath, blood or urine test, or assessment of drug impairment, under that Act to be detained any longer than is necessary. Clause 48 amends section 129X of the Transport Act 1983 to insert additional regulation-making powers with respect to the competence and health and fitness of railway safety workers who perform railway safety work. 33

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