Australian Capital Territory Bills Explanatory Statements Australian Capital Territory Bills Explanatory Statements[Index] [Search] [Download] [Bill] [Help]
2013
THE LEGISLATIVE
ASSEMBLY FOR THE
AUSTRALIAN CAPITAL TERRITORY
HEAVY VEHICLE NATIONAL LAW
(CONSEQUENTIAL AMENDMENTS) BILL 2013
EXPLANATORY
STATEMENT
Presented by
Simon Corbell
MLA
Attorney-General
HEAVY VEHICLE NATIONAL LAW
(CONSEQUENTIAL
AMENDMENTS) BILL 2013
This explanatory statement relates to the Heavy Vehicle National Law
(Consequential Amendments) Bill 2013 (the Bill) as presented to the Legislative
Assembly. It has been prepared to assist the reader of the Bill and to help
inform debate on it. The statement does not form part of the Bill and has not
been endorsed by the Assembly.
The statement must be read in
conjunction with the Bill. It is not, and is not meant to be, a comprehensive
description of the Bill. What is said about a provision is not to be taken as
an authoritative guide to the meaning of a provision. This is a task for the
courts.
The Heavy Vehicle National Law (the ‘National Law’) forms part of the national heavy vehicle transport industry reform program of the Council of Australian Governments (COAG). As part of the 2008 National Partnership Agreement to Deliver a Seamless National Economy, COAG agreed to deliver reforms to improve the efficiency of transport regulation. In this context, the Intergovernmental Agreement on Heavy Vehicle Regulatory Reform (the ‘Intergovernmental Agreement’) was signed by first ministers on 19 August 2011.[1]
The Intergovernmental Agreement provides for the establishment of a national regulatory regime for heavy vehicles administered by a single national regulator.
The National Law is a schedule to the Heavy Vehicle National Law Act 2012 of Queensland.[2]
The National Law applies to vehicles (including buses) with a gross vehicle mass (GVM) over 4.5 tonnes. It consolidates model laws for heavy vehicles developed by the National Transport Commission (NTC) and its predecessor, the National Road Transport Commission, and establishes the National Heavy Vehicle Regulator (‘the Regulator’). These model laws have been progressively legislated in the states and territories since 1993. Application of the National Law in participating jurisdictions is the next step in achieving a consistent approach to regulation of the industry.
The purpose of the National Law is to create a uniform regulatory framework for heavy vehicle road transport and to establish the National Heavy Vehicle Regulator to administer the Law. The National Law:
• provides for the national registration of heavy vehicles
• prescribes standards for heavy vehicles on the road
• establishes requirements for heavy vehicle operation such as mass limits, size restrictions, and secure loading, and road access (including measures to allow improved access under certain circumstances)
• prescribes measures to control speeding
• prescribes measures to prevent driving while
fatigued
• imposes duties and obligations on operators, drivers and
other persons in the chain of responsibility whose activities may influence
vehicle or driver compliance with requirements under the Law.
The Heavy
Vehicle National Law (Consequential Amendments) Bill 2013 is cognate with the
Heavy Vehicle National Law (ACT) Bill 2013 (the ‘application Bill’)
the purpose of which is to apply the National Law set out in the schedule to the
Queensland Act as a law of the Territory. The Explanatory Statement for the
application Bill should be read together with this Explanatory Statement. The
Explanatory Statement for the application Bill includes an extended discussion
of the Human Rights Act implications of the Heavy Vehicle National Law (ACT).
The amendments in this Consequential Amendments Bill are not believed to
engage human rights independently of the broader heavy vehicle regulatory scheme
of which they form part, and for that reason readers are directed to the human
rights discussion in the Explanatory Statement for the application
Bill.
The purpose of the Heavy Vehicle National Law (Consequential
Amendments) Bill 2013 is to make consequential amendments to existing ACT
legislation following the enactment of the Heavy Vehicle National Law (ACT)
Act 2013. The Bill principally amends the body of laws collectively
described as the ‘road transport legislation’, as well as making
necessary amendments to other laws. The amendments are technical in nature and
do not make substantive policy changes, other than those discussed in the clause
notes in relation to heavy vehicle infringement notice offences.
The
amendments remove references to heavy vehicles for matters that are covered by
the Heavy Vehicle National Law (ACT). The Heavy Vehicle National Law
(ACT) does not regulate matters relating to the transport of dangerous
goods, traffic laws, public transport regulation, heavy vehicle driver
licensing, or drink and drug driving. These matters will continue to be
regulated through the body of law described as the ‘road transport
legislation’ and the Dangerous Goods (Road Transport) Act
2009.
This Bill makes consequential amendments to:
• Freedom of Information Regulation 1991
• Legislation Act 2001
• Magistrate Court Act 1930
• Road Transport (Alcohol and Drugs) Act 1977
• Road Transport (Driver Licensing) Act 1999
• Road Transport (Driver Licensing) Regulation 2000
• Road Transport (General) Act 1999
• Road Transport (General) Regulation 2000
• Road Transport (Offences) Regulation 2005
• Road Transport (Public Passenger Services) Act 2001
• Road Transport (Safety and Traffic Management) Act 1999
• Road Transport (Safety and Traffic Management) Regulation 2000
• Road Transport (Third-Party Insurance) Act
2008
• Road Transport (Vehicle Registration) Act
1999.
The Road Transport (Mass, Dimensions and Loading) Act
2009 and the Road Transport (Mass, Dimensions and Loading) Regulation
2010 are repealed, as are a number of associated legislative instruments.
The Road Transport (General) Act 1999 provides for the
administration and enforcement of the road transport legislation generally. The
Road Transport (Mass, Dimensions and Loading) Act 2009, which is repealed
by this Bill, is one of the laws that are collectively defined as
comprising the ‘road transport legislation’ (see section 6 of the
Road Transport (General) Act). The Heavy Vehicle National Law
(ACT) establishes a separate administrative and regulatory framework through
a national regulator (‘the Regulator’) for many elements of heavy
vehicle transport. The Heavy Vehicle National Law (ACT) replaces
provisions in the repealed Road Transport (Mass, Dimensions and Loading) Act
and Regulation. This replacement is reflected in a number of
consequential amendments which omit references to the Road Transport (Mass,
Dimensions and Loading) Act from the list of Acts that are part of the
‘road transport legislation’. In addition, the Heavy Vehicle
National Law (ACT) also brings together a number of elements of heavy
vehicle transport regulation in its provisions. These include heavy vehicle
standards, registration, driving while fatigued, and
speeding.[3]
Five chapters of
the Heavy Vehicle National Law (ACT) will be subject to delayed
commencement. It should be noted that consequential amendments relating to the
delayed application of chapter 2 (Registration) are not included in the Heavy
Vehicle National Law (Consequential Amendments) Bill 2013. Similarly,
consequential amendments to the Road Transport (Offences) Regulation 2005
in relation to offences, infringement notice penalties and demerit points for
the five chapters are not included in the Bill. This omission is intentional
and avoids the situation where consequential amendments are enacted but remain
uncommenced for a considerable period. Proposed legislation for amendments to
the Territory’s heavy vehicle registration laws will be brought forward
closer to the nationally agreed proclamation date for chapter 2, and to
commencement dates agreed with the Regulator in relation to chapters 5 to
8.
Consequential amendments to the Road Transport (Vehicle
Registration) Regulation 2000 will be developed separately in preparation
for making and commencement in conjunction with the commencement of the proposed
Heavy Vehicle National Law (ACT) Act 2013 and Heavy Vehicle National
Law (Consequential Amendments) Act 2013. This is due to the complexity of
developing new light vehicle standards following the removal of heavy vehicle
standards to the Heavy Vehicle (Vehicle Standards) National
Regulation.
This part deals with formal matters including the name of the proposed
legislation and its commencement.
This clause is a formal provision that sets out the name of the proposed
legislation.
This clause provides for the commencement of the Act. The Act will commence
on the day that section 7 (Application of Heavy Vehicle National Law) of the
Heavy Vehicle National Law (ACT) Act 2013 commences. Section 7 of that
Act will come into operation on a day fixed by written notice.
This clause lists all the legislation to be amended by the Bill.
This clause provides that the Road Transport (Mass, Dimensions and
Loading) Act 2009, the Road Transport (Mass, Dimensions and Loading)
Regulation 2010, and other legislative instruments under the Act are
repealed. The provisions of the Road Transport (Mass, Dimensions and Loading)
Act implemented heavy vehicle model laws that are replaced by comparable
provisions in the Heavy Vehicle National Law (ACT), particularly those in
chapter 4 (Vehicle operations – mass, dimension and loading), chapter 9
(Enforcement) and chapter 10 (Sanctions and provisions about liability for
offences).
The Road Transport (General) (Restricted Access Vehicle
Route Access Permit Fees) Determination 2010 (No 1) is also repealed. Under
the Heavy Vehicle National Law (ACT), the Regulator will assume the power
to determine and receive access permit fees. Separate provision is made by
clause 45, which amends section 96 of the Road Transport (General) Act 1999,
for the determination of fees and charges. This approach is consistent with
section 159 of the Heavy Vehicle National Law (ACT), which contemplates
the payment of fees for route assessment under the law of a jurisdiction where a
road is located.
To ensure the Heavy Vehicle National Law scheme operates consistently across
participating jurisdictions, a number of Territory laws are excluded from
application to the Regulator and to the National Heavy Vehicle Regulator Board
by clause 9 of the Heavy Vehicle National Law (ACT) Bill 2013. Section 696
(Application of particular Queensland Acts to this Law) of the National Law
specifically applies the Information Privacy Act 2009 (Qld), the
Public Records Act (Qld), and the Right to Information Act (Qld)
to the Regulator and Board for the purposes of the Law.
Clause 5 inserts
a new section in the Freedom of Information Regulation 1991 to the effect
that the Regulator and the Board are not ‘prescribed authorities’
for the purposes of the Freedom of Information Act 1989 (ACT). As a
consequence, the Freedom of Information Act—and the Privacy Act
1988 (Cwlth) by virtue of the definition of ‘agency’ in the
Privacy Act—will not apply to the Regulator and the Board. Administrative
and ‘oversight’ laws of the Territory that are excluded from
application to the Regulator and Board, including the Freedom of Information
Act and the Privacy Act, will continue to apply to Territory entities
exercising functions under the Heavy Vehicle National Law (ACT) or under
agreements with the Regulator or by delegation.
This clause inserts a new term, Heavy Vehicle National Law (ACT), and
definition into the Legislation Act to ensure consistent usage of the term
throughout the ACT statute book.
This clause inserts a new subsection in part 3.7
(Service and pleading by post for certain offences), to insert an additional
definition of a ‘prescribed offence’ for the part. The additional
definition is an offence against the Heavy Vehicle National Law (ACT) for
which the maximum fine that can be imposed is $3 000 or another amount
prescribed by regulation.
This clause removes a reference to the Road Transport (Mass, Dimensions
and Loading) Act 2009 from the definition of ‘road transport
legislation’. Road transport legislation is defined in section 6 (What is
the road transport legislation?) of the Road Transport (General) Act
1999. References to the Road Transport (Mass, Dimensions and Loading) Act
are omitted here and elsewhere consequent to repeal of that Act.
This clause removes a reference to the Road Transport (Mass, Dimensions
and Loading) Act 2009 from the note which lists laws which are included
in ‘road transport legislation’. Road transport legislation is
defined in section 6 (What is the road transport legislation?) of the
Road Transport (General) Act 1999. References to the Road Transport
(Mass, Dimensions and Loading) Act are omitted here and elsewhere consequent to
repeal of that Act.
This clause inserts an additional note that explains that there are laws
other than those included in ‘road transport legislation’ which deal
with road transport, in particular the Dangerous Goods (Road Transport) Act
2009 and the Heavy Vehicle National Law (ACT).
This clause amends the definition of ‘heavy vehicle’ for section
4B (Meaning of special driver) to refer to
the definition of ‘heavy vehicle’ in section 5 of the Heavy
Vehicle National Law (ACT).
This clause removes a reference to the Road Transport (Mass, Dimensions
and Loading) Act 2009 from the note that lists laws that are included
in the ‘road transport legislation’. Road transport legislation is
defined in section 6 (What is the road transport legislation?) of the
Road Transport (General) Act 1999. References to the Road Transport
(Mass, Dimensions and Loading) Act are omitted here and elsewhere consequent to
repeal of the Act.
This clause inserts an additional note that explains that there are laws
other than those included in ‘road transport legislation’ that deal
with road transport, in particular the Dangerous Goods (Road Transport) Act
2009 and the Heavy Vehicle National Law (ACT).
This clause replaces notes about the non-application of section 31 in certain
circumstances in the Road Transport (Mass, Dimensions and Loading) Act
2009, which is to be repealed, with notes about the non-application of the
section in certain comparable circumstances under provisions in the under the
Heavy Vehicle National Law (ACT).
Section 9 (Vehicles authorised to be driven by licence classes) of the
Regulation authorises the holder of a driver licence of a particular driver
licence class to drive a motor vehicle of a kind covered by that driver licence
class, or a lower class in the class hierarchy.
Subsection 9 (3) (b) is amended to provide that the section
does not authorise the holder of the licence to drive in contravention of the
Heavy Vehicle National Law (ACT). The amended provision removes a
reference to the Road Transport (Mass, Dimensions and Loading Act) 2009,
which is to be repealed.
This clause replaces notes about the non-application of elements of section
23 in certain circumstances in the Road Transport (Mass, Dimensions and
Loading) Act 2009, which is to be repealed, with notes about the
non-application of the elements in certain comparable circumstances under
provisions in the under the Heavy Vehicle National Law (ACT).
Section 87 (When authority may vary, suspend or cancel driver licences)
provides for the road transport authority to vary, suspend or cancel a
person’s driver licence on its own initiative. Subsection 87 (2) also
provides that the authority can suspend or cancel a person’s driver
licence in accordance with an order made by an Australian court. Clause 17
replaces an existing note that provides the additional information that a court
can also order a licence variation, suspension and cancellation under the
Road Transport (Mass, Dimensions and Loading) Act 2009, which is to
be repealed, with a comparable note which refers to section 598A in the Heavy
Vehicle National Law (ACT).
This clause removes a reference to the Road Transport (Mass, Dimensions
and Loading) Act 2009 from the note which lists laws which are included
in ‘road transport legislation’. Road transport legislation is
defined in section 6 (What is the road transport legislation?) of the
Road Transport (General) Act 1999. Reference to the Road Transport
(Mass, Dimensions and Loading) Act is omitted here and elsewhere consequent to
repeal of the Act.
This clause inserts an additional note that explains that there are laws
other than those included in ‘road transport legislation’ which deal
with road transport, in particular the Dangerous Goods (Road Transport) Act
2009 and the Heavy Vehicle National Law (ACT).
This clause removes a reference to the Road Transport (Mass, Dimensions
and Loading) Act 2009 from the definition of the ‘road transport
legislation’. Road transport legislation is defined in section 6 (What is
the road transport legislation?) in the Road Transport (General) Act
1999. References to the Road Transport (Mass, Dimensions and Loading) Act
are omitted here and elsewhere consequent to repeal of the Act.
The
object of the Road Transport (General) Act is to establish a framework for the
administration and enforcement of the road transport legislation, including the
review of certain decisions made under road transport legislation and the
determination of fees and charges payable under road transport legislation. The
Heavy Vehicle National Law (ACT) establishes a separate framework for
these purposes in relation to certain aspects of the regulation of heavy
vehicles and is outside the ‘road transport legislation’.
This clause removes notes which refer to a provision in the Road Transport
(Mass, Dimensions and Loading) Act 2009 for recognition by the road
transport authority of identity cards issued to a person under corresponding
heavy vehicle law. The Road Transport (Mass, Dimensions and Loading) Act
is to be repealed by this Bill.
Section 591 (Infringement notices) of the Heavy Vehicle National Law
(ACT) establishes a general power for an authorised officer “who
reasonably believes that a person has committed a prescribed offence against
this Law may serve the person with an infringement notice issued as an
alternative to prosecution in court for the offence”. Section 591 also
provides that the procedures followed are to be the procedures prescribed by or
under the Infringement Notice Offences Law of the participating jurisdiction.
Clause 13 (Infringement notice offences law—the Law, s 5) of the
application Bill declares the Road Transport (General) Act 1999 to be the
Infringement Notice Offences Law for the Heavy Vehicle National Law
(ACT). Subsection 591 (3) defines a “prescribed offence”
against the Heavy Vehicle National Law (ACT) as “an offence
prescribed by a law of this jurisdiction for the purposes of this
section”.
The purpose of part 3 (Infringement notices for certain
offences) of the Road Transport (General) Act is to create a system of
infringement notices for certain offences against the road transport legislation
and other legislation as an alternative to prosecution. The effect of the
amendments in clauses 22 to 41 is to make necessary amendments to part 3 so
that it can operate effectively as a scheme for issuing, serving and enforcing
infringement notices for offences under the Heavy Vehicle National Law
(ACT).
By way of background, section 591 (Infringement notices) of
the Heavy Vehicle National Law (ACT) provides that a person who has
committed a ‘prescribed offence’ against the Law can be served with
an infringement notice. Subsection 591 (3) states that a prescribed offence
means an offence prescribed by a law of this jurisdiction. For this purpose,
clause 22 inserts an amendment to section 21A, to include a new definition of
heavy vehicle infringement notice offence. This definition explains that heavy
vehicle infringement notice offence is an infringement notice offence against
the Heavy Vehicle National Law (ACT).
In relation to who may
serve a heavy vehicle infringement notice for an offence under the national law
scheme, the Heavy Vehicle National Law (ACT) provides that a police
officer or other person appointed under section 481 (Appointment and
qualifications) will be ‘authorised officers’ for the Law. To
reflect this concept of “authorised officer”, clause 40 amends
section 53A of the Road Transport (General) Act, part 3 to clarify that an
authorised officer for an infringement notice or reminder notice is authorised
under the Law.
In relation to the prosecution of offences, section 707
(Proceedings for offences) of the Heavy Vehicle National Law (ACT) makes
provision for summary proceedings for offences against the Law and establishes
the maximum period within which a proceeding must start. As will be explained
further in subsequent paragraphs, part 3 is amended where relevant to explain
that proceedings for heavy vehicle infringement notice offences will be subject
to section 707.
In summary, clauses 23 to 30 amend sections 24, 26, 28,
31 and 39 of the General Act to provide for the infringement notice scheme to
apply, with appropriate modifications and adjustments, to heavy vehicle
infringement notices. In relation to certain aspects of the infringement notice
scheme (particularly in relation to who may serve infringement notices and the
institution of proceedings for an offence where an infringement notice has been
served but is disputed or the alleged offence is otherwise to be determined by a
court) the effect of the amendments is to draw a distinction between heavy
vehicle infringement notices and other types of infringement notices. This
distinction is necessary because the national heavy vehicle law makes specific
provision for these matters, as they relate to specific functions to be
undertaken by or on behalf of the national regulator. The substantial details
of the processes for service, and most of the requirements for the contents of
notices, are otherwise the same for national heavy vehicle law and other
infringement notice offences.
Clauses 31 to 36 make further consequential
amendments to the enforcement provisions in part 3 of the Act. These
consequential amendments include the inclusion of notes and references to the
Heavy Vehicle National Law (ACT) Act; the inclusion of references to
“proceedings” to take account of the terminology used to refer to
the procedures under that law for dealing with offences against that law; and
excluding (in cases where the national law makes alternative arrangements) heavy
vehicle infringement offences from the operation of particular provisions.
Clauses 37 to 40 amend section 53A. That section deals with authorised
people for infringement notice offences, and in summary, provides the power for
the administering authority for an infringement notice offence to appoint
authorised people to serve infringement and reminder notices for those offences.
Under the Heavy Vehicle National Law (ACT) Act, the Regulator will be the
administering authority for offences against that law; the amendments in clauses
37 to 40 reflect this fact, and the concept of “authorised officer”
(which, under section 5 of that Law, includes a police officer as well as
authorised officers of the Regulator appointed under section 481 of the
Law).
Clause 41 is a consequential amendment to the power of delegation
in section 54, to ensure that the administering authority (in this case, that
will be the Regulator) is able to delegate its powers for heavy vehicle
infringement offences to an authorised officer under the Heavy Vehicle National
Law (ACT).
The amendments in these clauses should be read in conjunction
with the amendments to the Road Transport (Offences) Regulation 2005, in
clauses 49 to 60 of this Bill. Those amendments affect provisions in that
Regulation that deal with the administering authority for infringement notices,
the service of infringement notices and reminder notice, their contents, and a
range of associated matters (readers are directed to the clause notes for a
further description). In particular, clause 52 provides that the Regulator is
the administering authority for heavy vehicle infringement notice
offences.
Clause 42 inserts a new note with the information that a similar power is
provided for under section 567A of the Heavy Vehicle National Law (ACT)
and can be exercised by an authorised officer within the meaning of that term in
the Heavy Vehicle National Law (ACT).
Clause 43 inserts a new note with the information that a similar power is
provided for under section 567B of the Heavy Vehicle National Law (ACT)
and can be exercised by an authorised officer within the meaning of that term in
the Heavy Vehicle National Law (ACT).
Clause 44 removes a note providing additional information that a court can
disqualify a driver from obtaining a driver licence under section 204 of the
Road Transport (Mass, Dimensions and Loading) Act 2009, which is repealed
and substitutes a note with additional information about a similar power in
section 598A in the Heavy Vehicle National Law (ACT).
This clause extends the definition of the ‘road transport
legislation’ for the purpose of determining fees, charges, etc. to include
the Heavy Vehicle National Law (ACT). Under the Heavy Vehicle
National Law (ACT), the Regulator will assume the power to determine fees.
However, separate provision of a power to determine fees and charges is
necessary. For example, section 159 of the Heavy Vehicle National Law
(ACT), contemplates the payment of fees for route assessment by the road
manager under the law of a jurisdiction where a road is located.
This clause inserts a new definition for part 3 (Infringement notices for
certain offences) into the dictionary for the Act.
This is a technical amendment which follows amendments to section 24.
This clause removes parts related to the Road Transport (Mass, Dimensions
and Loading) Act 2009 and the Road Transport (Mass, Dimensions and
Loading) Regulation 2010 from the schedule of internally reviewable
decisions as this legislation is repealed. Matters relating to mass, dimensions
and loading of heavy vehicles are dealt with in chapter 11 of the Heavy
Vehicle National Law (ACT), which also includes review and appeal
provisions.
The Road Transport (Offences) Regulation 2005 is made under part 3,
section 23 of the Road Transport (General) Act 1999. The Regulation
prescribes offences as ‘infringement notice offences’. Proposed
amendments to part 3 of the Road Transport (General) Act include insertion of a
new definition for ‘heavy vehicle infringement notice offences’ for
the purposes of the part—see clause 22 which defines a heavy vehicle
infringement notice offence as an infringement notice offence against the
Heavy Vehicle National Law (ACT).
Clauses 49 to 58 amend a series of provisions that support the infringement
notice offence scheme established under part 3 of the Road Transport
(General) Act 1999. Like the amendments to part 3 of the Act, these
consequential amendments enable the infringement notice scheme to apply, with
necessary modifications, to offences under the Heavy Vehicle National Law
(ACT).
As previously explained, the Regulator will be the
administering authority for heavy vehicle infringement notice offences, and this
is achieved through the amendment to section 8 (3) of the Regulation in clause
52. Related amendments in clause 53 replace sections 9 to 11 with redrafted
provisions. The redrafted provisions take account of the slightly different
requirements that apply under the Heavy Vehicle National Law (ACT) in relation
to the service of infringement and reminder notices by authorised
officers for heavy vehicle infringement notice offences, and the processes
applying under the road transport legislation to authorised people for
other infringement notice offences. Explanatory notes are included to clarify
that police officers and other authorised officers under the Law can exercise
functions in relation to the service of infringement and reminder notices for
heavy vehicle infringement notice offences.
Clause 54 makes a
consequential amendment to the provision relating to service of infringement
notices to include a reference to the Heavy Vehicle National Law (ACT) Act.
Clause 55 makes a consequential amendment to the provision dealing with the
content of infringement notices to reflect the process for commencing a
proceeding under the Heavy Vehicle National Law (ACT) Act. Clause 56 is a
related amendment, that includes a reference to “proceeding” to
reflect the processes under the Heavy Vehicle National Law (ACT) Act. Clauses
57 and 58 apply to reminder notices and are similar in effect, respectively, to
clauses 55 and 56.
Clause 59 inserts a new parts 1.2A and 1.2B into schedule 1 (Short
descriptions, penalties and demerit points) which prescribes infringement notice
offences and demerit points for the Heavy Vehicle National Law (ACT).
Clause 57 amends schedule 1 to remove parts 1.8A and 1.8B which prescribe
offences, penalties and demerit points for offences in the Road Transport
(Mass, Dimensions and Loading) Act 2009 and Road Transport (Mass,
Dimensions and Loading) Regulation 2010, which are to be repealed.
As noted above, five chapters of the Heavy Vehicle National Law (ACT)
will be subject to delayed commencement. Offences, penalties and demerit
points in the five chapters are not included in new part 1.2A of schedule 1.
This is to avoid the situation where consequential amendments are enacted but
remain uncommenced for a considerable period.
In addition to the
offences agreed nationally, the ACT-specific modifications to the Heavy
Vehicle National Law (ACT) in schedule 1, part 1.1 of the application
Bill provide for two offences that are also prescribed as infringement
notice offences in new part 1.2A. These are section 567A (Power to require
production of driver licence) and section 567B (Power to require people to
disclose identity of driver) and are located at items 90 and 91 in column 1 of
the table in new part 1.2A.
These two offences
parallel offences in the Road Transport (General) Act 1999 (sections 58
and 60). Unlike the other offences in the table, the maximum penalties for
sections 567A and 567B offences are prescribed in penalty units. The
infringement notice offence penalties are specific monetary amounts that
parallel the penalties prescribed for the offences under sections 58 and 60 of
the General Act.
Infringement notice offence penalties in new parts 1.2A
and 1.2B will be indexed subject to section 737 (Increase of penalty amounts) in
the Heavy Vehicle National Law (ACT), with the exception of offences
under sections 567A and 567B, as the penalties for those offences have been
determined by reference to existing ACT offences and are not part of the
national scheme. Sections 133 (Penalty units) and 134 (Penalties at end of
sections and subsections) of the Legislation Act 2001—that provide
for the monetary value of a penalty unit where penalties are expressed in
numbers of units and for the application of a penalty to a provision—apply
to sections 567A and 567B.
In order to ensure the Heavy Vehicle
National Law scheme can operate consistently across participating jurisdictions,
infringement notice offences, penalties and demerit points have been agreed
nationally for the Heavy Vehicle National Law along with a set of national
principles and agreements in a ‘Schedule of Infringement Penalties and
& Demerits Points’. These principles and agreements are reflected in
new parts 1.2A and 1.2B. The text of the nationally agreed ‘Schedule of
Infringement Penalties and & Demerits Points’ is reproduced
below:
Schedule of Infringement Penalties & Demerits
Points
Agreements:
1. There will be national
agreement on the schedule of infringements and demerit points. The schedules
will be adopted into jurisdictional law (ie. existing legislation or application
law) and the penalties imposed using existing jurisdictional penalty regimes.
2. Offences nominated as infringeable will be set at a value of
10% of the maximum court imposable penalty amount. Should the court imposable
penalty amount increase jurisdictions will need to reflect this increase in the
infringement values.
3. Guidance principles will be developed as
part of the development of the NHVR training package. This will assist and
instruct authorised officers in what to consider when determining if an
infringement penalty is appropriate in the event that an offence contains a
subjective element. The agreements in relation to infringements on offences with
subjective elements are as follows:
|
Subjective Element
|
Infringement/No Infringement
|
|
Permit to be used/Must not Permit
|
Infringement (with guidelines)
|
|
Reasonable Excuse
|
Infringement (with guidelines)
|
|
As soon as reasonably practicable
|
Infringement (with guidelines)
|
|
After becoming aware/Becomes aware or has reason to suspect
|
No Infringement
|
|
Ought reasonably to know
|
No Infringement
|
|
Must take all reasonable steps
|
No Infringement
|
4. Infringements will attach to all driver offences containing the
‘reasonable steps’ defence (with a notice developed to notify an
offender of their rights under the defence).
5. Infringements will
attach to the following administrative chain of responsibility and record keeper
offences containing the ‘reasonable Steps’ defence (with a notice
developed to notify an offender of their rights under the defence). Please note:
Attaching infringements to extended liability offences and to other parties in
the chain of responsibility outside of operator/employer/prime contractor/owner
will be explored as part of the 2014 penalty review.
|
HVNL Section No.
|
HVNL Provision
|
|---|---|
|
82(3)
|
Keeping relevant document while driving under vehicle standards
exemption (notice)
|
|
83(3)
|
Keeping copy of permit while driving under vehicle standards exemption
(permit)
|
|
132(3)
|
Keeping relevant document while driving under mass or dimension
exemption (notice)
|
|
133(3)
|
Keeping copy of permit while driving under mass or dimension exemption
(permit)
|
|
151(3)
|
Keeping relevant document while driving under class 2 heavy vehicle
authorisation (notice )
|
|
152(3)
|
Keeping copy of permit while driving under class 2 heavy vehicle
authorisation (permit)-
|
|
153(2)
|
Keeping copy of PBS vehicle approval while driving under class 2 heavy
vehicle authorisation
|
|
183(2)
|
Liability of employer etc. for contravention of mass, dimension or
loading requirement
|
|
190(1)
|
Duty of responsible entity
|
|
191(1)
|
Duty of operator
|
|
191(3)
|
Duty of operator
|
|
219(1)
|
Liability of employer etc. for speeding offence
|
|
287(3)
|
Keeping relevant document while operating under work and rest hours
exemption (notice)
|
|
288(3)
|
Keeping copy of permit while driving under work and rest hours exemption
(permit)
|
|
319(1)
|
Records record keeper must have
|
|
321(1)
|
Records record keeper must have
|
|
321(2)
|
Records record keeper must have
|
|
341(1)
|
Period for which, and way in which, records must be kept
|
|
341(2)
|
Period for which, and way in which, records must be kept
|
|
341(3)
|
Period for which, and way in which, records must be kept
|
|
376(3)
|
Keeping relevant document while operating under work diary exemption
(notice)
|
|
396(2)
|
Owner must maintain odometer
|
|
399(2)
|
What employer or operator must do if odometer malfunctioning
|
|
468(3)
|
Driver must carry accreditation details
|
6. Infringements will attach to the operator, prime contractor and
employer for sections 183(2) – Liability of employer etc. for
contravention of mass, dimension or loading requirement.
7. Infringements will attach to the following subsections of section 219(1) – Liability of employer etc. for speeding offence:
• 219 (1)
o (a) - If the speeding offence involves the driver of a heavy vehicle exceeding a speed limit of 50km/h or 60km/h
• 219 (1)(b)(i) & (ii)
o If the speeding offence involves the driver of a heavy vehicle exceeding a speed limit of 70km/h or 80km/h
(i) by less than 15km/h.
(ii) by 15km/h or more
• 219 (1)(c) (i) & (ii)
o If the speeding offence involves the driver of a heavy vehicle other than a road train exceeding a speed limit of 90km/h
(i) by less than 15km/h;
(ii) by 15km/h or more;
• 219 (1)(d)(i)
o If the speeding offence involves the driver of a road train exceeding a speed limit of 90km/h
(i) by less than 15km/h
• 219 (1)(e)(i)
o If the speeding offence involves the
driver of a heavy vehicle exceeding a speed limit of 100km/h or more— (i)
by less than 15km/h.
8. Guidelines will be prepared to address
the administration of infringement notices under sections 183(2) and 219(1) to
clarify when the issuing of an infringement notice would be appropriate. This
will include having regard to the elements of the reasonable steps defence and
when prosecution for an offence should be considered instead of an infringement
penalty.
9. While it is proposed to remove infringements from the
majority of offences with a $10,000 maximum penalty there is recognition that
there are some $10,000 offences to which it is critical that jurisdictions
retain infringements. It has been agreed to attach infringements to the
following three $10,000 offences:
|
HVNL Section No.
|
HVNL Provision
|
|---|---|
|
30
|
Registration requirement
|
|
533(7)
|
Powers for minor risk breach of mass, dimension or loading
requirement
|
|
534(5)
|
Powers for substantial risk breach of mass, dimension or loading
requirement
|
10. For offences with levels of breaches (ie. minor, substantial,
severe, critical), only the minor and substantial categories will attract
infringements.
11. For offences with levels of breaches (ie.
minor, substantial, severe, critical), only the severe and critical categories
will attract demerit points.
12. Demerit point penalties will
attach to HVNL offences as directed by Model Law.
Clause 60 removes parts 1.8A and 1.8B, which prescribe infringement notice
offences, penalties and demerit points for the Road Transport (Mass,
Dimensions and Loading) Act 2009 and the Road Transport (Mass,
Dimensions and Loading) Regulation 2010, as that legislation is repealed by
this Bill.
This clause removes a reference to the Road Transport (Mass, Dimensions
and Loading) Act 2009 from the note that lists the laws included in
‘road transport legislation’. Road transport legislation is defined
in section 6 (What is the road transport legislation?) of the Road
Transport (General) Act 1999. References to the Road Transport (Mass,
Dimensions and Loading) Act are omitted here and elsewhere consequent to repeal
of the Act.
This clause inserts an additional note that explains that there are laws
other than those included in ‘road transport legislation’ that deal
with road transport, in particular the Dangerous Goods (Road Transport) Act
2009 and the Heavy Vehicle National Law (ACT).
This clause removes a reference to the Road Transport (Mass, Dimensions
and Loading) Act 2009 from the note that lists laws included in
‘road transport legislation’. Road transport legislation is defined
in section 6 (What is the road transport legislation?) of the Road
Transport (General) Act 1999. References to the Road Transport (Mass,
Dimensions and Loading) Act are omitted here and elsewhere consequent to repeal
of the Act.
This clause inserts an additional note that explains that there are laws
other than those included in ‘road transport legislation’ that deal
with road transport, in particular the Dangerous Goods (Road Transport) Act
2009 and the Heavy Vehicle National Law (ACT).
This clause amends a table that sets out provisions of the Australian Road Rules (ARR) for which provision is made by other territory laws. The reference to the Road Transport (Mass, Dimensions and Loading) Act 2009
, which is to be repealed, is replaced by a reference to the Heavy Vehicle
National Law (ACT) in relation to ARR 311 (1) (c), which refers to
exemptions for oversize vehicles.
This clause amends the definition of ‘oversize vehicle’. The reference to the Road Transport (Mass, Dimensions and Loading) Act 2009
, which is to be repealed, is replaced by a reference to the Heavy Vehicle
National Law (ACT) to include a definition of oversize vehicle
in section 5 (Definitions).
This clause removes a reference to the Road Transport (Mass, Dimensions
and Loading) Act 2009 from the note that lists the laws included in
‘road transport legislation’. Road transport legislation is defined
in section 6 (What is the road transport legislation?) of the Road
Transport (General) Act 1999. References to the Road Transport (Mass,
Dimensions and Loading) Act are omitted here and elsewhere consequent to repeal
of the Act.
This clause substitutes a replacement note 3 that explains that there are
laws other than those included in ‘road transport legislation’ that
deal with road transport, in particular the Dangerous Goods (Road Transport)
Act 2009 and the Heavy Vehicle National Law (ACT). It also includes
a new note 4 that explains that a reference to an Act includes a reference to
statutory instruments, including regulations, under that Act.
This clause removes a reference to the Road Transport (Mass, Dimensions
and Loading) Act 2009 from the note that lists the laws included in
‘road transport legislation’. Road transport legislation is defined
in section 6 (What is the road transport legislation?) of the Road
Transport (General) Act 1999. References to the Road Transport (Mass,
Dimensions and Loading) Act are omitted here and elsewhere consequent to repeal
of the Act.
This clause substitutes a replacement note 3 that explains that there are
laws other than those included in ‘road transport legislation’ that
deal with road transport, in particular the Dangerous Goods (Road Transport)
Act 2009 and the Heavy Vehicle National Law (ACT). It also includes
a new note 4 that explains that a reference to an Act includes a reference to
statutory instruments, including regulations, under that Act.
This clause amends the definition of ‘vehicle standard’
reflecting the removal of heavy vehicle standards from the application of the
Act. Heavy vehicle standards are covered by chapter 3 of the Heavy Vehicle
National Law (ACT) and the Heavy Vehicle (Vehicle Standards) National
Regulation.
__________________________________________________
[1] The Agreement is available at http://www.coag.gov.au/node/54.
[2] The Queensland Act is available on the Queensland legislation website at https://www.legislation.qld.gov.au.
[3] Chapter 5 (Vehicle operations – speeding) of the Heavy Vehicle National Law imposes responsibility for speeding by heavy vehicles on persons whose business activities influence the conduct of the drivers of heavy vehicles.