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Transport Legislation Amendment Bill
2007
Introduction Print
EXPLANATORY MEMORANDUM
General
The prime purpose of the Bill is to facilitate the ongoing reform of transport
policy and legislation in a number of key areas, including--
· the use of smartcards for public transport;
· the introduction of new bus contracts;
· providing financial assistance to traumatised train drivers;
· controlling illegal touting by commercial passenger vehicle
operators and other vehicle drivers;
· rail safety primarily by introducing requirements for safety
interface agreements at rail and road crossings;
· addressing road rules parking breaches in park and ride
facilities;
· confirming the policy that private full fee-paying overseas
students are not entitled to concession travel on public
transport.
The Bill underpins a number of initiatives and actions contained in the
Government's action plan for transport, Meeting Our Transport Challenges.
In addition, the Bill makes some minor, miscellaneous and technical
amendments to facilitate the safe and orderly provision of public transport.
561055 1 BILL LA INTRODUCTION 19/9/2007
Clause Notes
PART 1--PRELIMINARY
Part 1 of the Bill outlines the purpose of the Bill and contains the
commencement provisions.
Clause 1 sets out the purposes of the Bill, which are--
· to amend the Transport Act 1983--
· to facilitate the use of smartcards for public
transport; and
· to otherwise improve the operation and
enforcement of that Act; and
· to amend the Public Transport Competition
Act 1995--
· in relation to regular passenger service contracts;
and
· to otherwise improve the operation of that Act;
and
· to amend the Rail Safety Act 2006 to improve the
operation of that Act; and
· to make miscellaneous amendments to--
· the Marine Act 1988;
· the Rail Corporations Act 1996;
· the Road Management Act 2004;
· the Road Safety Act 1986;
· the Terrorism (Community Protection)
Act 2003;
· the Transport (Taxi-cab Accreditation and
Other Amendments) Act 2006;
· the Victims of Crime Assistance Act 1996.
Clause 2 provides for the commencement of the various clauses of the Bill.
Subclause (1) provides for a number of provisions of the Bill to
come into operation on the day after the day on which the Bill
receives the Royal Assent.
2
Subclause (2) provides for subsection (3), section 9 and
Division 7 of Part 5 come into operation on a day to be
proclaimed.
Subclause (3) provides that if section 9 and Division 7 of Part 5
do not come into operation before 1 July 2008, they come into
operation on that day
Subclause (4) provides that section 38 is deemed to have come
into operation on 7 August 2006. Proposed section 38 inserts a
new transitional provision into section 271 of the Transport Act
1983 linking to the amendments made to that Act by section
31(1) of the Transport Legislation (Further Amendment) Act
2006. These amendments transferred functions from the
Secretary to the Department of Infrastructure to the Director of
Public Transport. Section 31(1) commenced on 8 August 2006.
The reason for the retrospective commencement of proposed
section 38 on 7 August 2006 is to ensure that the transitional
provision is in place before section 31(1) commences.
Subclause (5) provides that sections 40(2) and 42 are deemed to
have come into operation on 1 July 2007. New driver
accreditation provisions for commercial passenger vehicle drivers
in the Transport Act 1983 commenced on 1 July 2007. It is
necessary for proposed sections 40(2) and 42 to have a
retrospective commencement to ensure that the provisions
amended operate correctly from the commencement of the new
driver accreditation provisions.
Subclause (6) provides that section 40(5) is deemed to have come
into operation on 30 March 2007. Section 40(5) corrects wrong
cross references in section 228H of the Transport Act 1983.
Section 228H commenced on 30 March 2007. The retrospective
commencement of proposed section 40(5) is necessary to ensure
that section 228H operates correctly from its commencement.
Subclause (7) provides that sections 54(1), 58, 60, 61, 64 and 66
and Division 3 of Part 5 come into operation on 1 July 2010.
The reason for the deferred commencement is to give rail
operators and rail infrastructure managers sufficient time to
prepare for the implementation of the new safety interface
agreement requirements.
Subclause (8) provides that section 55 comes into operation on
1 March 2008.
Subclause (9) provides that sections 62 and 63 come into
operation on 1 July 2008.
3
Subclause (10) provides that subject to subsection (11),
Division 4 of Part 5 comes into operation on a day to be
proclaimed.
Subclause (11) provides that if Division 4 of Part 5 does not
come into operation before 1 July 2008, it comes into operation
on that day.
Subclause (12) provides that subject to subsection (13), the
remaining provisions of the Act come into operation on a day
or days to be proclaimed.
Subclause (13) provides that if a provision referred to in
subsection (12) does not come into operation before
1 January 2009, it comes into operation on that day.
PART 2--AMENDMENTS TO TRANSPORT ACT 1983
Division 1--Smartcards
This Division inserts a number of provisions into the Transport Act 1983 to
facilitate efficient prosecutions and other proceedings related to the smartcard
ticketing system for public transport by providing a streamlined process for
proving largely computer based facts or matters where there are no disputes
about those facts or matters.
Clause 3 inserts definitions of hand held reader, prescribed device and
smartcard into section 208 of the Transport Act 1983.
Clause 4 inserts a new subsection (7) into section 230 of the Transport
Act 1983 that provides for a certificate, certifying as to any
matter relating to a smartcard that appears in or can be calculated
from records kept by the Public Transport Ticketing Body, to be
admissible in evidence in proceedings other than proceedings for
a ticket offence (as defined) and, in the absence of evidence to
the contrary, to be proof of that matter.
Clause 5 inserts new sections 230AB to 230AH into the Transport
Act 1983 regarding the provision of evidence relating to
smartcards in proceedings for ticket offences. A ticket offence is
defined in section 208 of the Act to mean an offence against
Division 4 of Part VII of the Act or any regulations made under
section 221AA of the Act. These offences relate to entitlements
to use a public transport service and tickets or other things that
can be used to prove such an entitlement.
New section 230AB provides for the admissibility in evidence in
proceedings relating to a ticket offence, of evidence of a fact
relating to a smartcard as indicated or determined by a prescribed
device that was used in a prescribed manner (if any) or by a
4
printed document that was produced by a prescribed process.
The section specifies the types of fact that relate to a smartcard
for the purposes of the section.
New section 230AC relates to a certificate by an authorised
officer who uses a hand held reader to scan a smartcard produced
to the authorised officer for inspection, certifying as to certain
information scanned from the smartcard relating to the card, the
card holder, the use of the card and the entitlement to use public
transport services.
Subsection (1) provides that such a certificate is admissible in
evidence in any proceedings relating to a ticket offence.
Subsection (2) provides that, if such a certificate is issued, it is
presumed, for the purposes of those proceedings, that the
smartcard had accurately recorded the information scanned from
it and had accurately discharged the information when scanned
by the hand held reader.
New section 230AD provides for the admissibility in evidence in
any proceedings relating to a ticket offence of a certificate by a
person authorised by the Public Transport Ticketing Body or the
Chief Executive of the Body--
· as to the correct operation of specified prescribed
devices;
· as to facts indicated or determined by those devices;
· that specified printed documents had been produced by
a prescribed process.
New section 230AE provides for the service by the informant in
proceedings relating to a ticket offence, on the defendant to those
proceedings, of any or all of a copy of a certificate referred to in
new section 230AC, a notice setting out the presumptions set out
in new section 230AC(2) or a copy of a certificate referred to in
new section 230AD. If such a certificate or such a notice is
served no later than 56 days before the hearing date for the
offence, the relevant certificate is conclusive proof of certain
facts or matters stated in, or related to, the certificate and, in the
case of the notice, the facts that are the subject of the
presumptions are to be taken to have been conclusively proved.
New section 230AF provides a process under which a defendant
may challenge a certificate or notice served under new
section 230AE. Under this process, the defendant may, not less
than 28 days before the hearing, or any shorter period ordered by
the court or agreed to by the informant, give notice in writing to
the informant that the defendant requires the giver of a certificate
5
under new section 230AD to be called as a witness or that he or
she intends to adduce evidence in rebuttal of any fact or matter of
which a certificate is otherwise conclusive proof or in rebuttal of
any fact that is the subject of the presumption set out in new
section 230AC(2). Such a notice must specify any fact or matter
with which issue is taken and indicate the nature of any expert
evidence the defendant intends to have adduced at the hearing.
Any other expert evidence may only be introduced by the
defendant with leave of the court.
If such a notice is served by the defendant, the relevant certificate
continues, or is deemed, to have evidentiary value in respect of
the facts or matters concerned, but the facts or matters are no
longer conclusively proved by virtue of it.
The section also provides for when the giver of a certificate under
new section 230AD is unable to be called to give evidence as
required.
New section 230AG makes it clear that the informant may
adduce evidence to explain any fact or matter contained in a
certificate but provides that if so, while the certificate remains
admissible in evidence, it ceases to be conclusive proof of that
fact or matter.
New section 230AH provides for the making of regulations
relating to the above new provisions.
Division 2--Other amendments
Clause 6 inserts definitions of the Public Transport Ticketing Body and
entitlement to us a public transport service into section 2 of the
Transport Act 1983.
Clause 7 amends sections 9(7) and 9AA of the Transport Act 1983.
Subclause (1) clarifies that the Director of Public Transport can
delegate his or her functions as well as his or her powers under
the Transport Act 1983.
Subclause (2) clarifies the circumstances in which the Director of
Public Transport must maintain and develop a contingency plan.
Clause 8 amends sections 9T and 9Y of the Transport Act 1983.
Subclause (1) clarifies that it is the Governor in Council who
makes regulations.
Subclause (2) clarifies that the Director, Public Transport Safety
can delegate his or her functions as well as his or her powers
under the Transport Act 1983, the Rail Safety Act 2006 and the
Public Transport Competition Act 1995.
6
Clause 9 inserts a new section 12 into the Transport Act 1983 to provide
for a scheme for the granting of financial assistance to train
drivers following fatal incidents.
New section 12 requires the Director of Public Transport to grant
financial assistance in certain circumstances to train drivers
engaged by train operators. In particular, if the Director is
satisfied that the train driver was driving a train involved in an
accident in which one or more people died as a result of being
struck by the train or by being in a vehicle struck by the train and
the accident occurred after the commencement of the section, the
Director is required to pay the driver out of the Public Transport
Fund an amount prescribed in the new section.
Clause 10 substitutes a new provision for section 158A of the Transport
Act 1983, which is an existing offence provision relating to
unauthorised touting for passengers to hire a commercial
passenger vehicle. The new offence provision is intended to deal
more robustly and comprehensively with the subject matter.
The new provision sets out in more detail the conduct prohibited
by the provision and relates the conduct more generally to the
hire of a motor vehicle. The provision provides for the
specification of places by notice published in the Government
Gazette in which the conduct is prohibited absolutely. In all
other places the conduct is prohibited unless it is in respect of the
hiring of a licensed commercial passenger vehicle and the
conduct is not in breach of the conditions of the relevant licence
or the regulations. The provision only applies where the hire of
the vehicle includes the provision of a driver.
Clause 11 for the avoidance of doubt, amends section 158B(1) and (2) of
the Transport Act 1983 relating to the downloading, printing,
possession, publishing, transmitting and disclosure of images or
other data obtained from the use of a security camera installed in
a taxi-cab. The amendments make it explicit that a person to
whom these provisions apply must act in accordance with the
regulations only if relevant regulations have been made. This is
intended to ensure that it cannot be argued that the mere absence
of such regulations automatically makes the relevant conduct
unlawful.
Clause 12 inserts new paragraph (bc) into section 162(1) of the Transport
Act 1983 which will enable regulations to be made in relation to
information derived from or contained in equipment permitted by
or under the regulations to be used in or on a taxi-cab.
7
Clause 13 inserts a new subsection 169A(4) in the Transport Act 1983 to
provide that the Director of Public Transport must give a written
copy of any conditions imposed on the relevant driver
accreditation to the person to whom a driver accreditation is
issued or renewed.
Clause 14 amends section 169C of the Transport Act 1983. Subclause (1)
amends section 169C of the Transport Act 1983 to align the
circumstances under which the Director of Public Transport can
disqualify an applicant from applying for driver accreditation
with those under which the Director must refuse an applicant.
Subclause (2) repeals sections 169C(5)(c) and 169C(5)(d) of the
Transport Act 1983.
Clause 15 repeals section 169D(b)(iii) of the Transport Act 1983 as the
subject matter is now dealt with by new section 169A(4) (being
inserted by clause 13). The clause also makes a consequential
amendment to section 169D(b)(ii).
Clause 16 inserts new sections 169EA to 169EC into the Transport
Act 1983 relating to accreditation of drivers of commercial
passenger vehicles.
New section 169EA provides for the mandatory suspension by
the Director of Public Transport of the accreditation of a driver
whose driver licence is cancelled or suspended.
New section 169EB requires the Director to reinstate the
accreditation of a driver whose driver licence has been restored in
certain cases.
New section 169EC requires an accredited driver whose driver
licence is cancelled or suspended to notify the Director of that
cancellation or suspension and to return to his or her certificate of
accreditation.
Clause 17 inserts a new subsections 169O(1)(d) and (e) into the Transport
Act 1983 to enable the Victorian Civil and Administrative
Tribunal to review--
· a determination of the Director of Public Transport to
disqualify a person from applying for the issue of an
accreditation where the person's application for the issue
or renewal of that accreditation is refused;
· a decision of or a failure of the Director to, under
section 169EB, reinstate the accreditation of person
suspended in accordance with section 169EA.
8
Clause 18 substitutes a new section 169R of the Transport Act 1983.
New section 169R requires an accredited driver of a commercial
passenger vehicle, whose residential address changes, to notify
the Director and return his or her certificate of accreditation.
Clause 19 amends section 169S of the Transport Act 1983. Subclause (1)
amends the section to ensure that a relevant operator of a
commercial passenger vehicle is notified of the suspension or
cancellation of a driver accreditation by a driver who is employed
or engaged by the relevant operator.
Subclause (2) inserts a definition of relevant operator as an
operator of a taxi-cab, a commercial passenger vehicle licence
holder (other than a taxi-cab) or an accredited person under the
Public Transport Competition Act 1995.
The amendments contained in this clause ensure that the
requirement to notify of a suspension or cancellation of a driver's
accreditation is extended to include taxi operators who are not
licence holders in cases where the right to operate the taxi under
a licence has been assigned by the licence holder to an operator.
Clause 20 inserts new section 169WA into the Transport Act 1983.
New section 169WA prohibits a relevant operator of a
commercial passenger vehicle from permitting a person who is
not accredited from driving the relevant vehicle. Under new
section 169WA(3), a relevant operator cannot be guilty of the
new offence provided in new section 169WA(2) if the operator
believed after making all reasonable enquiries that the relevant
person was the holder of a driver accreditation.
Clause 21 inserts new section 169WB into the Transport Act 1983.
New section 169WB prohibits a holder of a driver accreditation
from permitting a person who is not the holder of a driver
accreditation to drive a relevant vehicle. Under new
section 169WB(2), a relevant holder of a driver accreditation
cannot be guilty of the new offence provided in new
section 169WB(1) if the holder believed after making all
reasonable enquiries that the relevant person was the holder of a
driver accreditation.
Clause 22 inserts a new section 220D(1A) into the Transport Act 1983 to
make it clear that certain conditions determined by the Director
of Public Transport under section 220D(1), such as those
contained in the Victorian Fares and Ticketing Manual, can
apply, adopt or incorporate external material (e.g. lists of bus
routes).
9
Clause 23 inserts a new section 220DA into the Transport Act 1983
regarding conditions determined under section 220D which may
relate to overseas students. The purpose of the provision is to
continue the current policy of not providing public transport
concession entitlements to private full fee-paying overseas
students. As part of that, the provisions confirm that the policy
does not constitute, and has never constituted, discrimination on
the basis of race for the purposes of the Equal Opportunity
Act 1995. However, the provisions expressly preserve the right
of a current named complainant to pursue the argument in a
current matter which is before the Victorian Equal Opportunity
and Human Rights Commission.
The provisions also empower the making of conditions under
section 220D for the purposes of section 32 of the Charter of
Human Rights and Responsibilities Act 2006 to put beyond
doubt the possibility of their validity being affected.
Subclause (1) provides that conditions determined under
section 220D(1) may include a condition providing that overseas
students are not eligible for student concessions to use a public
transport service.
Subclause (2) provides that where such conditions are
determined, overseas students are not entitled to student
concessions to use a public transport service to which the
condition applies.
Subclause (3) provides that the determination or publication of
such conditions by the Director of Public Transport, or
compliance by a person with such conditions, does not constitute
discrimination on the basis of race for the purposes of the Equal
Opportunity Act 1995.
The subclause deals with the act of making and publishing the
conditions by the Director as well as actions taken by others such
as a passenger transport company or bus company, in applying
the conditions.
For the avoidance of doubt, subclause (4) declares that the
determination or publication of such conditions by the Director of
Public Transport, or compliance by a person with such conditions
made under section 220D or the approval or determination of, or
compliance with, such conditions under the section that 220D
replaced, is taken never to have constituted discrimination on the
basis of race for the purposes only of the Equal Opportunity
Act 1995 and to be and always to have been conduct that was
authorised.
10
Subclause (5) excludes from the effect of subclause (4) a
complaint made by the Victorian Ethnic Communities Council
on behalf of Elva Zhang to the Victorian Human Rights and
Equal Opportunity Commission and any completed proceedings.
The purpose is to enable the complaint to proceed but only in
respect of the named complainant.
Subclause (6) provides a definition of the commencement day
and of overseas student. The definition of overseas student is
linked to visa status for the purpose of studying in Victoria and
expressly excludes an Australian citizen, a permanent resident of
Australia, a student with refugee status, an overseas exchange
student or a student in receipt of the an Australian Development
Scholarship from the Commonwealth Government.
Clause 24 inserts a new section 222B into the Transport Act 1983 which
creates a new offence intended to protect equipment owned by,
or operated by or on behalf of, the Public Transport Ticketing
Body from being moved, interfered with or tampered with.
The equipment, or classes of equipment, protected by the
provision must be prescribed by regulation and the offence
attracts a maximum penalty of 20 penalty units. The provision
does not apply to anything done by any person acting on behalf
of, or with the permission of, the Public Transport Ticketing
Body.
Clause 25 amends section 228U of the Transport Act 1983 to provide that
an identity card for a transport safety officer appointed to only
exercise the powers under Part 6 of the Rail Safety Act 2006
does not need to contain a photograph of that officer.
Clause 26 amends section 228ZV(2)(c) of the Transport Act 1983 to
remove the requirement for a thing to be forfeited to the State
under an order made by the Magistrates' Court. This amendment
is consequential on the amendment made by clause 27
concerning the forfeiture of seized things.
Clause 27 substitutes section 228ZX of the Transport Act 1983. The new
section 228ZX allows for things seized by a transport safety
officer to be forfeited to the State in certain circumstances listed
in subsection (1). The effect of the new provision is to enable a
thing to be forfeited without first obtaining a court order.
Clause 28 amends section 228ZZB(2)(b) of the Transport Act 1983 to
clarify the reach of section to ensure that compensation can be
payable for damage within the meaning of that provision caused
by a transport safety officer when inspecting or searching for a
thing under the powers set out under Division 4B of Part VII of
the Act.
11
Clause 29 amends section 228ZZC(6) of the Transport Act 1983 to link
that provision to a clearance certificate served in relation to an
improvement notice served under section 228ZZH of the Act.
The provision is consequential on the amendment made by
clause 30 of the Bill and the introduction of the concept of
clearance certificates for improvement notices.
Clause 30 substitutes section 228ZZH of the Transport Act 1983 to make
better provision for clearance certificates for improvement
notices. The substituted section provides that a clearance
certificate in relation to an improvement notice and certifying
that the matters that were the subject of the notice have been
remedied must be served by the Safety Director or a transport
safety officer as soon as practicable after those persons have
made that decision. The provision confirms that the requirement
of the improvement notice to which the clearance certificate
relates ceases to be operative on receipt of the certificate by the
relevant person.
Clause 31 amends section 228ZZI of the Transport Act 1983, including
the heading to the section, to provide that proceedings for an
offence against a relevant transport safety law in connection with
any matter in respect of which the improvement notice was
served are not affected by or restricted by the issue of a clearance
certificate.
Clause 32 amends section 228ZZJ(2) of the Transport Act 1983 to link
the provision to a certificate served under section 228ZZN of the
Act certifying that the matter or matters raised in the prohibition
notice have been remedied.
Clause 33 inserts new section 228ZZKA into the Transport Act 1983.
The new section provides the Safety Director or a transport safety
officer with the power to give an oral direction to a person
prohibiting an activity. The direction may be given where the
Safety Director or transport safety officer believe on reasonable
grounds that there is an immediate risk to safety and considers
that it is not possible or reasonable to immediately serve a
prohibition notice under section 228ZZJ.
Clause 34 substitutes section 228ZZN of the Transport Act 1983 to
provide that a certificate certifying that the matters that were the
subject of a prohibition notice have been remedied must be
served by the Safety Director or a transport safety officer as soon
as practicable after the Safety Director or a transport safety
officer have made that decision.
12
Clause 35 makes a number of amendments to section 35 of the Transport
Act 1983 to clarify that proceedings for an offence against a
relevant transport safety law in connection with any matter in
respect of which a prohibition notice was served are not
affected by or restricted by the issue of a certificate under
section 228ZZN.
Clause 36 makes a consequential amendment to section 228ZZQ of the
Transport Act 1983 to ensure that the forfeiture of a seized
thing under the relevant rail safety related powers of the Act is
a decision that is reviewable by the Victorian Civil and
Administrative Appeals Tribunal.
Clause 37 inserts new sections into the Transport Act 1983 in relation to a
new compliance sanction known as an exclusion order.
New section 230DA enables a court, on the application of the
prosecutor or Safety Director, to make an exclusion order if the
court finds a person guilty of an offence against a relevant
transport safety law, and considers the person to be a persistent or
systematic offender against relevant rail safety laws and also
considers a supervisory intervention order inappropriate.
An exclusion order may prohibit a person from managing or
being involved in the management of rail operations.
New section 230DB inserts a Corporations Act displacement
provision to avoid inconsistency with the Corporations Act with
the inclusion of new section 230DA.
New section 230DC makes it an offence to engage in conduct
that results in a contravention of an exclusion order.
Clause 38 amends section 271 of the Transport Act 1983 to insert a
savings provision. The provision provides support for the
transfer of public transport decision-making powers from the
Secretary to the Department of Infrastructure to the Director of
Public Transport effected by the Transport Legislation
(Further Amendment) Act 2006. The provision confirms that
the savings provision applies to regulations and instruments of
delegation as well as to provisions of affected Acts.
Clause 39 makes a number of amendments to section 272 of the Transport
Act 1983 which contains transitional provisions for the
introduction of the accreditation scheme for taxi-cab licence
holders, taxi-cab operators and the providers of taxi-cab network
services provided for by amendments to the Transport Act to be
made by the Transport (Taxi-cab Accreditation and Other
Amendments) Act 2006.
13
Subclause (1) amends section 272(1) to extend the maximum
period during which existing licence holders as at the date of
commencement of the scheme are deemed to be accredited from
12 months to 2 years. This has the effect of bringing this period
into line with the equivalent period for taxi-cab operators.
Subclause (2) inserts new subsections (2A), (2B), (2C) and (2D)
into section 272 which extend the transitional arrangements
under that section for taxi-cab licence holders and taxi-cab
operators.
New subsection (2A) provides that, where an application for the
grant or transfer of a taxi-cab licence, or for authority to assign
the right to operate a vehicle under a taxi-cab licence, is made but
not determined before the commencement of the scheme, that
application is to be considered and determined in accordance
with the Act as in force before that commencement.
If such an application is approved, new subsections (2B), (2C)
and (2D) then provide for the grantee, transferee or assignee, to
be deemed to be accredited as either or both a taxi-cab licence
holder or a taxi-cab operator (as the case requires) for a
maximum period of 2 years, in line with the period of deemed
accreditation for existing licence holders and operators as at the
date of commencement of the scheme.
Subclause (3) makes consequential amendments to
subsections (3) and (4) of section 272.
Clause 40 makes some statute law revision amendments.
Subclause (1) removes the superfluous reference to section 82
of the Transport Act 1983 contained in section 32 of the Act.
The original section 82 has since been repealed and a new, and
unrelated, section 82 inserted.
Subclause (2) corrects an incorrect cross-reference in the
definition of driver accreditation in section 86(1) of the
Transport Act 1983.
Subclause (3) amends the reference in section 221S of the
Transport Act 1983 from section 221C(2)(a) and (b) to
section 221C(1)(a) and (b) of the Act as the relevant criteria that
a person applying for a certificate under section 221S must meet
are contained in section 221C(1)(a) and (b).
Subclause (4) amends the incorrect reference in section 223 of
the Transport Act 1983 from premises owed to premises owned.
14
Subclause (5)(a) makes a numbering change by amending the
reference in new section 228H(4) of the Transport Act 1983
(as substituted by section 23 of the Transport Legislation
(Further Amendment) Act 2006) from "subsection (5)" to
"subsection (3)".
Subclause (5)(b) amends the reference in new section 228H(5)(a)
of the Transport Act 1983 from "subsection (3)" to
"subsection (1)".
Subsection (6) amends sections 228ZZJ(2), 228ZZJ(6) and
228ZZL(4) of the Transport Act 1983 to substitute the words
"carrying out" for the words "carrying on".
PART 3--AMENDMENTS TO PUBLIC TRANSPORT
COMPETITION ACT 1995
Clause 41 amends the definition of a bus in section 3(1) of the Public
Transport Competition Act 1995, and also inserts a new
definition of motor vehicle into the section.
Clause 42 makes an editorial amendment to section 10 of the Public
Transport Competition Act 1995 so that the section refers to
accreditation rather than certification of commercial passenger
vehicle drivers. The change is consequential on the introduction
of new accreditation scheme for commercial passenger vehicle
drivers contained in new Division 6 of Part VI of the Transport
Act 1983 and the replacement of the former driver certification
scheme provided by that Act.
Clause 43 inserts a new Division 1 heading in Part 3 of the Public
Transport Competition Act 1995 in relation to service contract
requirements for regular passenger services.
Clause 44 amends section 25 of the Public Transport Competition
Act 1995 to exclude subcontractors (of primary service contract
holders) from the requirement to hold service contracts in order
to provide regular passenger services.
Clause 45 inserts a new Division 2 heading in Part 3 of the Public
Transport Competition Act 1995.
Clause 46 amends section 26 of the Public Transport Competition
Act 1995 to clarify that the Director of Public Transport may
apply principles for the purposes of awarding service contracts
and that the Director of Public Transport must give those
principles to certain persons.
15
Clause 47 amends section 27 of the Public Competition Act 1995 to
clarify that a service contract may make provision for the
imposition and recovery of performance based penalties.
Clause 48 inserts new section 27A into the Public Transport Competition
Act 1995 creating a legislative basis for imposing performance
based penalties to support the principles contained in new
metropolitan bus service contracts.
Clause 49 repeals section 28(3) of the Public Transport Competition
Act 1995 to facilitate the introduction of the new Division 4 of
Part 3 (see clause 53).
Clause 50 repeals section 29 of the Public Transport Competition
Act 1995 to facilitate the introduction of the new Division 4 of
Part 3 (see clause 53).
Clause 51 inserts a new Division 3 heading of Part 3 in the Public
Transport Competition Act 1995.
Clause 52 amends section 30(1) of the Public Transport Competition
Act 1995 to clarify that a service contract, in addition to
regulations, may make provision for the variation, suspension or
cancellation of a service contract.
Section 30(2) of the Public Transport Competition Act 1995 is
also amended to preserve the statutory 10 day written notice and
right of reply period with respect to any intention to vary,
suspend or cancel a service contract, to the extent that a more
prescriptive termination regime is not provided for in the
governing service contract.
Clause 53 inserts new Divisions 4 and 5 of Part 3 into the Public
Transport Competition Act 1995.
New Division 4 replaces the statutory regime dealing with the
procurement of new regular passenger services.
New section 30A defines terms used in the Bill, and in particular,
defines key terms such as affected exclusive region, affected
exclusive route of operation, affected service contract holder,
exclusive region, exclusive route of operation, exclusive right of
operation, materially affected, materially affected service
contract holder and stage 2 procurement process.
New section 30B determines through application of a
mathematical formula, which service contract holders are
materially affected for the purpose of procuring new regular
passenger services under this Division.
16
New section 30C provides the Director with discretion, subject to
certain conditions, to widen the class of service contract holders
entitled to participate in the procurement process for a proposed
new regular passenger service.
New section 30D provides for the procurement of new regular
passenger services where only one service contract holder with
exclusive rights is affected by the introduction of the proposed
new service.
New section 30E provides for the first stage of the procurement
process for a proposed new regular passenger service where there
is more than one service contract holder with exclusive rights
affected by the introduction of that new service.
New section 30F provides for the extinguishment of exclusive
rights of service contract holders who were unsuccessful in the
first stage of the procurement process to enable the successful
party to provide the service.
New section 30G provides for the extinguishment of exclusive
rights of all unsuccessful participants in the procurement process
to the extent necessary to enable another person to provide the
new service.
New section 30H provides for the procurement process that will
apply where negotiations with multiple affected service contract
holders are unsuccessful. The process that applies will depend on
the number of materially affected service contract holders.
New section 30I provides for the procurement process that will
apply where there are multiple service contract holders affected
by the introduction of the new regular passenger services and
there is only one materially affected service contract holder.
New section 30J provides for the procurement process that will
apply where there are multiple service contract holders affected
by the introduction of the new regular passenger services and
there are multiple materially affected service contract holders.
New section 30K provides for the extinguishment of exclusive
rights of all materially affected service contract holders who are
unsuccessful in a procurement process to the extent necessary to
enable another person to provide the new service.
New Division 5 creates a statutory regime for the allocation of a
bus operator's property to support asset allocation provisions
contained in the new service contracts. The statutory and
contractual allocation provisions are designed to ensure service
continuity in the event of operator default. Property transferred
17
under an allocation statement may vest in the State or its nominee
to enable continued operation of the bus services.
The statutory allocation regime will apply to all assets used to
provide the bus services, whether owned by the operator or their
associated operators. The operators, associated operators and
assets subject to the statutory and contractual allocation regimes
will be known at the time the service contracts are entered.
This Division 5 is modelled on the statutory allocation regime
contained in the Rail Corporations Act 1996.
New section 30L defines terms used in the Bill, and in particular,
defines key terms such as associated operator, primary contract,
related contract, related deed, relevant property, relevant date,
transferee and transferor.
New section 30M clarifies that a service contract may make
provision for transfer of property of that contract holder in
circumstances specified in that service contract.
The Director may provide to the Minister, statements relating to
the relevant property.
New section 30N provides the process by which an allocation
statement must be created by the Director and given effect by the
Minister. This section also provides for amendment of an
allocation statement by the Minister.
New section 30O provides for a Government gazettal process to
fix the date on which relevant property the subject of an
allocation statement, vests in the State or its nominee.
New section 30P provides that an allocation statement cannot
defeat any third party interest in the property which is the subject
of an allocation statement by making the relevant property vested
in the State or its nominee subject to any encumbrances to which
that property was subject immediately before vesting.
New section 30Q provides for the issuing of certificates by the
Director as evidence that property has been transferred by
allocation statement and requires the Director to maintain a
register of all certificates and make them available for inspection.
New section 30R provides that the consideration paid for
property transferred by an allocation statement is as determined
by the provisions of the service contract (or related contract).
New section 30S provides that any instruments or agreements
relating to property that has been transferred by an allocation
statement continue to have effect after the transfer and the party
18
in whom property has vested becomes a party to the former
instrument or agreement.
New section 30T creates a statutory novation of the interest in
land that the transferor had in the former property under the
Transfer of Land Act 1958 before the transfer to the transferor.
New section 30U requires the Registrar of Titles to make
amendments in the Register which are necessary because of
operation of this Division.
New section 30V provides that unless an allocation statement
otherwise provides, the transferor is substituted for the transferee
as a party to any legal proceedings that were pending or on foot
before the transfer, in relation to the transferred property.
New section 30W provides that any chargeable duty or tax is
payable on the vesting of property under this Division.
New section 30X provides that any documentary evidence
against the interests of a transferor in relation to the transferred
property is admissible against the interests of the transferee.
New section 30Y validates things done under this Division so as
to not place any person in breach of any contract or agreement or
make that person guilty of a civil wrong, a default under any Act
or other law. Similarly, things done to effect this Division do not
trigger any rights to exercise a power to terminate an agreement
or give rights to remedies under a contract or frustrate a contract
or make it unenforceable.
New section 30Z declares the provisions of this Division to be
Corporations Act displacement provisions.
PART 4--AMENDMENTS TO RAIL SAFETY ACT 2006
Clause 54 inserts new definitions into the Rail Safety Act 2006.
Clause 54(1) inserts new definitions that apply to safety interface
agreements with respect to rail or road crossings. These are
coordinating road authority, footpath, level crossing, public
highway, public pathway, public roadway, rail or road crossing,
railway crossing, relevant pathway, relevant road manager,
relevant roadway, road infrastructure, Road Rule, safety
interface agreement and shared path. The definitions are
consistent with the Road Management Act 2004 and the Road
Safety (Road Rules) Regulations 1999 and define terms used in
the new provisions being inserted by clause 61.
19
Clause 54(1) also repeals the definition of interface coordination
plan as the requirement for these plans is now incorporated into a
more comprehensive scheme under clause 61.
Clause 54(2) substitutes the definition of safety audit in the Rail
Safety Act 2006 to clarify that the Safety Director can inspect a
sample of the accredited rail operations rather than being required
to inspect the whole operation during an audit.
Clause 54(3) clarifies that a rail operator is still liable for an
offence committed by a labour-hire contractor (the individual)
whilst that contractor is conducting work for that rail operator.
In addition the provision defines labour-hire contractor to
support the new provisions under clause 57 imposing safety
duties on persons providing rail operations by means of
contracted personnel.
Clause 55 amends the definition of rail safety work to confirm that it
includes the loading or unloading of rolling stock as forming part
of rail safety work.
Clause 56 inserts a new sub-section in section 13 of the Rail Safety
Act 2006 to clarify that the level and nature of responsibility for
rail safety is dependent on the nature of the risk that a person
creates from their activity.
Clause 57 inserts a new section 22A to provide that labour-hire companies
who supply by agreement or arrangement the services of
individuals to conduct rail infrastructure operations or to conduct
rolling stock operations must ensure, so far as is reasonably
practicable, that the individuals supplied are competent for the
purposes for which they are engaged. This provision will ensure
that labour hire companies are subject to specific safety duties
under the Rail Safety Act 2006.
Clause 58 amends section 26(c) of the Rail Safety Act 2006 to replace the
term "interface co-ordination plan" with the term "safety
interface agreement", consequential on the amendments proposed
in clause 61.
Clause 59 substitutes section 29 of the Rail Safety Act 2006 to provide for
the conduct of safety audits as determined by the Safety Director.
Clause 60 inserts a new heading in Part 4 of the Rail Safety Act 2006,
namely "Division 1--Rail operations and utility works".
20
Clause 61 inserts a new Division 2 in Part 4 of the Rail Safety Act 2006 to
provide for safety interface agreements.
New section 34A sets out what a safety interface agreement is.
It provides that a safety interface agreement is an agreement
about managing risks to safety identified and assessed according
to the provisions under Division 2.
New section 34B places obligations on a rail operator to identify
and assess risks to safety that may arise from rail operations
being carried out by another rail operator. The new section also
requires the rail operator to seek to enter into a safety interface
agreement with the other rail operator in order to manage those
risks to safety.
New section 34C places obligations on a rail infrastructure
manager to identify and assess risks to safety that may arise
because of the existence of any rail or road crossing that forms
part of a public roadway or that is a public pathway. The new
section also requires the rail infrastructure manager to seek to
enter into a safety interface agreement with the relevant road
manager responsible for that roadway or public pathway in order
to manage those risks to safety.
New section 34D places obligations on a rail infrastructure
manager to identify and assess risks to safety that may arise
because of the existence of any rail or road crossing that forms
part of the road infrastructure of any relevant roadway or that is a
relevant pathway. The new section also requires the rail
infrastructure manager to determine whether the risks to safety
must be managed in conjunction with the relevant road manager
for that relevant roadway or relevant pathway and if so, must
give the person notice to that effect and seek to enter into a safety
interface agreement with that person in order to manage those
risks to safety.
New section 34E places obligations on a relevant road manager
to identify and assess risks to safety that may arise because of the
existence of any rail or road crossing that forms part of the public
roadway or that is a public pathway. The new section also
requires the relevant road manager to seek to enter into a safety
interface agreement with the relevant rail infrastructure manager
in order to manage those risks to safety.
New section 34F places obligations on the relevant road manager
for a relevant roadway or relevant pathway to identify and assess
risks to safety that may arise because of the existence of any road
or rail crossing that forms part of the relevant roadway. The new
section also requires the relevant road manager to seek to enter
into a safety interface agreement with the relevant rail
21
infrastructure manager in order to manage those risks to safety.
The relevant road manager only needs to do this if the person has
received notification from the rail infrastructure manager that it is
necessary to manage the risks to safety jointly.
New section 34G provides that nothing in new sections 34E
or 34F authorises or requires a relevant road manager to act
inconsistently with or without regard to the functions, obligations
or powers conferred on them under any other Act.
New section 34H provides for the identification and assessment
of risks to safety by the independent identification and
assessment, or by a joint identification and assessment, or by one
party adopting the identification and assessment of the other
party.
New section 34I specifies that a safety interface agreement may
be entered into by 2 or more parties, it may include measures to
manage a number of risks to safety, it may make provision for or
in relation to any matter by applying, adopting or incorporating
any matter contained in any document and it may consist of 2 or
more documents.
New section 34J provides the Safety Director with the power to
give directions about the arrangements to apply in relation to the
management of risks to safety if the parties fail to make a safety
interface agreement due to one party unreasonably refusing to
enter into an agreement or otherwise delaying the negotiation of
that agreement.
New section 34K requires a rail operator and a relevant road
manager to maintain a register of safety interface agreements and
any arrangements determined by the Safety Director under new
section 34J.
Clause 62 amends section 54 of the Rail Safety Act 2006 with respect to an
application for variation of accreditation. The amendment
removes the trigger of a proposed change being linked to
requiring a significant variation to a risk assessment and makes
other consequential amendments to that section. The clause also
inserts a time limit for the determination of applications.
Clause 63 inserts new provisions in the Rail Safety Act 2006.
New section 54A extends the operation of sections 43 and 62A of
the Rail Safety Act 2006 to applications for variation.
Section 43 enables the Safety Director to direct applicants to
co-ordinate and cooperate in their accreditation applications and
section 62A relates to applications in more than one jurisdiction.
New section 54B applies conditions or restrictions prescribed by
the regulations to a varied accreditation.
22
Clause 64 amends section 63 to provide for the term "safety interface
agreement" to be substituted for the term "interface co-ordination
plan", consequential on the amendments made by clause 61.
Clause 65 inserts a new section 69A into the Rail Safety Act 2006 that
allows the Safety Director to request, by notice in writing, certain
information from an accredited rail operator.
Clause 66 makes a minor amendment to the general regulation making
powers of the Rail Safety Act 2006 in relation to matters or
things that safety interface agreements may provide for.
Clause 67 provides for a new date for the expiry of transitional
accreditations and post new scheme accreditations.
The accreditation of commercial operators will expire on 1 July
2008 and the accreditation of tourist and heritage operators will
expire on 1 July 2009.
PART 5--AMENDMENTS TO OTHER ACTS
Division 1--Marine Act 1988
Clause 68 substitutes a new section 87(2) of the Marine Act 1988.
The new section changes the terminology from "officer of the
Director" to "person authorised by the Director" to make it
consistent with section 87(1). This allows authorised employees
of the Department to prosecute marine offences.
Division 2--Rail Corporations Act 1996
Clause 69 amends the heading of section 60 of the Rail Corporations
Act 1996 consequential on the amendment made by section 70 of
the Bill.
Clause 70 inserts a new section 60A that allows a relevant rail operator to
clear any tree or wood without obtaining a permit under any
relevant planning scheme if the tree or wood: is on land owned or
occupied by the rail operator; and is in the vicinity of the railway
track operated or maintained by the relevant rail operator; and
poses a risk to the safety of anyone on or using the railway track.
Relevant rail operator means a person specified in section 60(6)
of the Rail Corporations Act 1996.
This provision will enable the timely and efficient removal of any
tree or wood that poses a safety risk to railway operations.
23
Division 3--Road Management Act 2004
Clause 71 amends section 3(1) of the Road Management Act 2004
consequential on the amendments made by clause 61 of the Bill
in relation to safety interface agreements.
Division 4--Road Safety Act 1986
This Division makes a number of amendments to the Road Safety Act 1986
relating to the enforcement of the provisions of that Act or the regulations
under that Act that are extended, under an Order under section 98 of that Act,
to certain land or premises to be known as park and ride facilities.
Clause 72 inserts a number of new definitions into section 3(1) of the Road
Safety Act 1986, including the key definition of a park and ride
facility. The important elements of this definition are that the
land or premises to which it refers must be vested in or under the
control of one of a number of public transport entities and that it
must be the subject of an Order under section 98 of the Road
Safety Act that applies to it at least provisions of that Act or the
regulations under that Act relating to the regulation or control of
the parking or leaving standing of a vehicle. The definition
effectively replaces an existing concept of a rail car park which
is too limited in scope and difficult to apply.
Clause 73 amends section 77 of the Road Safety Act 1986 which relates to
the bringing of prosecutions for offences against that Act and the
regulations under that Act.
Subclause (1) inserts a new paragraph (db) into section 77(2) that
empowers a person, who is employed or engaged by a passenger
transport company, a bus company or the Bus Association
Victoria and who is separately authorised under the Transport
Act 1983 to bring proceedings for certain offences, to also bring
proceedings for an offence against the Road Safety Act 1986 or
regulations if that offence occurs on or in a park and ride facility.
Subclause (2) repeals subsections (2A) and (2B) of section 77 of
the Road Safety Act 1986. These provisions deal with the same
subject matter, but in a more limited way and require separate
authorisation of the persons concerned.
Subclause (3) inserts a new subsection (3A) into section 77 that
makes it clear that if proceedings are brought by a person referred
to in new subsection (2)(db), those proceedings may be
conducted by an employee in the Department of Infrastructure.
24
Clause 74 amends section 87 of the Road Safety Act 1986 so as to
empower an authorised officer under the Transport Act 1983,
who is employed or engaged by a passenger transport company, a
bus company or the Bus Association Victoria, to issue a parking
infringement notice in respect of a parking infringement
committed in or on a park and ride facility. One effect of this
change is that the class of persons who may issue parking
infringement notices for offences committed in or on a park and
ride facility is not limited to the class of persons who may bring
proceedings for such offences.
Division 5--Terrorism (Community Protection) Act 2006
Clause 75 inserts a new section 27A into the Terrorism (Community
Protection) Act 2003 to enable a relevant Minister to delegate
his or her functions or powers under Part 6 of that Act to a public
servant who is a non-executive employee Grade 6, or Senior
Technical Specialist or an executive officer.
Clause 76 clarifies that the reference in section 33(1) of the Terrorism
(Community Protection) Act 2003 to "Minister" should read as
"relevant Minister".
Division 6--Transport (Taxi-cab Accreditation and Other
Amendments) Act 2006
This Division makes a number of amendments to the provisions of the
Transport (Taxi-cab Accreditation and Other Amendments) Act 2006
that, when they come into operation, will amend the Transport Act 1983 to
introduce a scheme of accreditation for taxi-cab licence holders, taxi-cab
operators and the providers of taxi-cab network services.
Clause 77 makes a technical amendment to the machinery part of section 3
of the Transport (Taxi-cab Accreditation and Other
Amendments) Act 2006.
Clause 78 amends section 3 of the Transport (Taxi-cab Accreditation
and Other Amendments) Act 2006 by inserting in proposed
section 130A(1) of the Transport Act 1983 a substituted
definition of taxi-cab network service. The effect of the change
in the definition is to establish the services referred to in
paragraphs (a) and (b) of the definition as central to the
definition, such that any of the other services referred to in
paragraphs (c) to (h) of the definition are only caught by the
definition if they are provided by a person who also provides
one or other, or both, of the services referred to in paragraphs (a)
and (b).
25
Clause 79 amends section 3 of the Transport (Taxi-cab Accreditation
and Other Amendments) Act 2006 by providing in proposed
section 132C of the Transport Act 1983, which specifies the
duration of an accreditation, for the licensing authority to have
the discretion to extend the period of operation of an
accreditation where an application for renewal of the
accreditation is made before the expiry of the period specified in
the certificate of accreditation. If an accreditation is extended in
this way, and is not otherwise cancelled or surrendered, it
remains in force until the later of the expiry of the period
specified in the certificate of accreditation or 7 days after the
licensing authority gives notice of its decision of its decision on
the application for renewal. The main purpose of the amendment
is to enable the licensing authority to ensure, in appropriate cases,
that an accreditation does not cease purely because a decision on
an application for its renewal is not able to be made before the
period of its operation would otherwise expire.
Clause 80 amends section 3 of the Transport (Taxi-cab Accreditation
and Other Amendments) Act 2006 by modifying proposed
sections 133 and 133C of the Transport Act 1983 so as to make
it clear that conditions prescribed under section 133 and business
and service standards determined under section 133C can apply
to accreditations already in force when the relevant regulations
come into operation or the relevant business and service
standards are determined.
Clause 81 amends section 3 of the Transport (Taxi-cab Accreditation
and Other Amendments) Act 2006 by making an editorial
correction to the heading to proposed section 135D of the
Transport Act 1983.
Clause 82 amends section 3 of the Transport (Taxi-cab Accreditation
and Other Amendments) Act 2006 by modifying proposed
section 137E(1)(b) of the Transport Act 1983 so as to make it
clear that regulations made under that paragraph, which will
provide for transitional arrangements for introducing the
accreditation scheme for providers of taxi-cab network services,
are able to exempt all providers. While the power to exempt all
providers is not limited, it is expected that the need to exempt all
providers will arise, if at all, only in respect of the initial part of
the two year transitional period the Act provides for.
26
Clause 83 amends section 11 of the Transport (Taxi-cab Accreditation
and Other Amendments) Act 2006 by extending proposed
section 156A(1) and (5) of the Transport Act 1983 to apply
where a deemed accreditation under proposed section 272 of the
Transport Act 1983 is cancelled and where a "normal"
accreditation or a deemed accreditation expires without being
renewed.
Division 7--Amendment to Victims of Crime Assistance Act 1996
Clause 84 inserts a new section 16(ac) into the Victims of Crime
Assistance Act 1996. The provision clarifies that any award
made by the Victims of Crime Assistance Tribunal must be
reduced by the amount of financial assistance that the applicant
has been awarded or eligible for under the compensation scheme
established by Clause 9 for the same matter arising from the same
incident. It ensures that there is no dual entitlement under the
scheme and the Victims of Crime Assistance Act 1996.
PART 6--EXPIRY OF ACT
Clause 85 provides for the automatic repeal of this amending Bill on 1 July
2011. As suggested by the Scrutiny of Acts and Regulations
Committee, all amending Bills now contain an automatic repeal
provision, which will save the time and expense of having to
repeal amending Acts in statute law revision Bills. The repeal of
this Bill does not affect in any way the operation of the
amendments made by this Act (see section 15(1) of the
Interpretation of Legislation Act 1984).
27