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This is a Bill, not an Act. For current law, see the Acts databases.
House of Assembly—No 9
As laid on the table and read a first time, 11 May 2006
South Australia
Statutes
Amendment (Road Transport Compliance and Enforcement) Bill 2006
A Bill For
An
Act to amend the Road Traffic Act 1961, the Motor Vehicles
Act 1959 and the Summary Offences Act 1953.
Contents
Part 1—Preliminary
1 Short title
2 Commencement
3 Amendment provisions
Part 2—Amendment of Road
Traffic Act 1961 (temporary powers related to drink driving and drug
driving)
4 Insertion of section 47EAB
47EAB Direction to leave vehicle etc
Part 3—Amendment of Road
Traffic Act 1961
5 Amendment of section 5—Interpretation
6 Substitution of section 8A
8 Driver’s base
9 Associates
10 Act in addition to and not in
derogation of other Acts
7 Amendment of section 16—Roads under
care etc of Commissioner of Highways
8 Amendment of section 17—Installation
etc of traffic control devices
9 Amendment of section 18—Direction as
to installation etc of traffic control devices
10 Amendment of section 19—Cost of
traffic control devices and duty to maintain
11 Amendment of section 19A—Recovery of
cost of installing certain traffic control devices
12 Amendment of section 21—Offences
relating to traffic control devices
13 Amendment of section 31—Action to deal
with false devices or hazards to traffic
14 Substitution of Part 2 Divisions 4 and
5
Division 4—Enforcement
officers for Australian road laws
35 Authorised officers
36 Exercise of powers by authorised
officers
37 Exercise of powers by police
officers
38 Identification cards
39 Production of identification
40 Return of identification cards
40A Reciprocal powers of officers
40B Registrar may exercise powers of
authorised officers
Division 5—General enforcement
powers for Australian road laws
Subdivision 1—Interpretation
40C Meaning of qualified, fit or
authorised to drive or run engine
40D Meaning of unattended vehicle and
driver of disconnected trailer
40E Meaning of broken down vehicle
40F Meaning of compliance purposes
Subdivision 2—Directions to
stop, move or leave vehicles
40G Application of Subdivision
40H Direction to stop vehicle to enable
exercise of other powers
40I Direction to move vehicle to enable
exercise of other powers
40J Direction to move vehicle if danger
or obstruction
40K Direction to leave vehicle
40L Manner of giving directions under
Subdivision
40M Moving unattended vehicle to enable
exercise of other powers
Subdivision 3—Power to move or
remove unattended or broken down vehicles
40N Removing unattended or broken down
vehicle if danger or obstruction
40O Operator’s authorisation not required
for driving under Subdivision
40P Notice of removal of vehicle and
disposal of vehicle if unclaimed
Subdivision 4—Powers of
inspection and search
40Q Power to inspect vehicle on road or
certain official premises
40R Power to search vehicle on road or
certain official premises
40S Power to inspect premises
40T Power to search premises
40U Residential purposes
Subdivision 5—Other directions
40V Direction to give name and other
personal details
40W Direction to produce records, devices
or other things
40X Direction to provide information
40Y Direction to provide reasonable
assistance for powers of inspection and search
40Z Provisions relating to running engine
41 Manner of giving directions under
Subdivision
41A Directions to state when to be
complied with
Subdivision 6—Warrants
41B Warrants
Subdivision 7—Other provisions
regarding inspections and searches
41C Use of assistants and equipment
41D Use of equipment to examine or
process things
41E Use or seizure of electronic
equipment
Subdivision 8—Other provisions
regarding seizure
41F Receipt for and access to seized
material
41G Embargo notices
Subdivision 9—Miscellaneous
41H Power to use force against persons to
be exercised only by police officers
41I Various powers may be exercised on
same occasion
41J Restoring vehicle or premises to
original condition after action taken
41K Self-incrimination
41L Providing evidence to other
authorities
41M Obstructing or hindering authorised
officers or police officers
41N Impersonating authorised officers
41O Division not to affect other powers
Part 2A—Mutual recognition and corresponding
road laws
41P Effect of administrative actions of
authorities of other jurisdictions
41Q Effect of court orders of other
jurisdictions
15 Repeal of Part 3 Division 1
16 Repeal of section 47EAB
17 Repeal of section 86
18 Repeal of section 106
19 Amendment of section 107—Damage to
road infrastructure
20 Repeal of section 110AAD
21 Repeal of section 112
22 Repeal of section 114
23 Amendment of section 115—Standard form
conditions for oversize or overmass vehicle exemptions
24 Insertion of Part 4 Divisions 3A and
3B
Division 3A—Provisions
relating to breaches of vehicle standards or maintenance requirements
116 Meaning of breach of vehicle standards
or maintenance requirement
117 Liability of driver
118 Liability of operator
Division 3B—Provisions
relating to breaches of mass, dimension and load restraint requirements
Subdivision 1—Preliminary
119 Meaning of breach of mass, dimension
or load restraint requirement
120 Meaning of minor, substantial or
severe risk breaches
Subdivision 2—Reasonable steps
defence
121 Reasonable steps defence
122 Reasonable steps defence—reliance on
container weight declaration
Subdivision 3—Liability for
breaches of mass, dimension or load restraint requirements
123 Liability of driver
124 Liability of operator
125 Liability of consignor
126 Liability of packer
127 Liability of loader
128 Liability of consignee
129 Penalties for offences against
Subdivision
Subdivision 4—Sanctions
130 Matters to be taken into
consideration by courts
Subdivision 5—Container weight
declarations
131 Application of Subdivision
132 Meaning of “responsible entity”
133 Container weight declarations
134 Complying container weight
declarations
135 Duty of responsible entity
136 Duty of operator
137 Duty of driver
138 Liability of consignee—knowledge of
matters relating to container weight declaration
Subdivision 6—Recovery of
losses resulting from non-provision of or inaccurate container weight
declarations
139 Recovery of losses for non-provision
of container weight declaration
140 Recovery of losses for provision of
inaccurate container weight declaration
141 Recovery of amount by responsible
entity
142 Assessment of monetary value or
attributable amount
143 Costs
Subdivision 7—Transport
documentation
144 False or misleading transport
documentation: liability of consignor, packer, loader, receiver and others
25 Substitution of sections 148 to 156
Subdivision 1—Defect notices
relating to breaches of vehicle standards or maintenance requirements
26 Amendment and redesignation of section
160—Defect notices
27 Insertion of Subdivision 2
Subdivision 2—Formal warnings
relating to breaches of mass, dimension or load restraint requirements
146 Formal warnings
147 Withdrawal of formal warnings
Subdivision 3—Directions
powers relating to breaches of mass, dimension or load restraint requirements
148 Directions power if minor risk
breach
149 Directions power if substantial risk
breach
150 Directions power if severe risk
breach
151 Authorisation to continue journey if
minor risk breach
152 Operation of directions in relation
to combinations
153 Directions and authorisations to be
in writing
154 Application of Subdivision in
relation to other directions
28 Amendment of section 161A—Driving of
certain vehicles subject to Ministerial approval
29 Amendment of section 162A—Seat belts
and child restraints
30 Amendment of section 163GA—Maintenance
records
31 Repeal of section 163H
32 Amendment of section 163I—Evidentiary
33 Substitution of section 163KA
Part 4B—Special provisions relating to heavy
vehicle offences
Division 1—Improvement notices
163L Definition
163M Improvement notices
163N Contravention of improvement notice
163O Amendment of improvement notices
163P Cancellation of improvement notices
163Q Clearance certificates
163R Review of notice
163S Appeal to District Court
Division 2—Sanctions for heavy
vehicle offences
163T Sanctions imposed by courts
163U Commercial benefits penalty orders
163V Supervisory intervention orders
163W Contravention of supervisory
intervention order
163X Prohibition orders
163Y Contravention of prohibition order
Division 3—Criminal
responsibility in relation to organisations and employers
163Z Application of Division limited to
heavy vehicle offences
163ZA Liability of directors, managers and
partners
163ZB Vicarious responsibility
Part 4C—General compensation orders
163ZC Compensation orders for damage to road
infrastructure
163ZD Assessment of compensation
163ZE Service of certificates
163ZF Limits on amount of compensation
163ZG Costs
163ZH Relationship with orders or awards of
other courts and tribunals
34 Amendment of section 164A—Offences and
penalties
35 Amendment of section 165—False
statements
36 Substitution of section 166
166 Double jeopardy
37 Amendment of section 168—Power of
court to make orders relating to licences or registration
38 Amendment of section 173A—Defence
relating to registered owner or operator
39 Insertion of section 173AB
173AB Further defences
40 Insertion of section 174AB
174AB Marking of tyres for parking purposes
41 Insertion of sections 174F to 174K
174F Industry codes of practice
174G Dismissal or other victimisation of
employee or contractor assisting with or reporting breaches
174H False or misleading information
provided between responsible persons
174I Amendment or revocation of directions
or conditions
174J Minister may provide information to
corresponding Authorities
174K Contracting out prohibited
42 Amendment of section 175—Evidence
43 Amendment of section 176—Regulations
and rules
44 Amendments relating to members of
police force
45 Amendments relating to inspectors
Part 4—Amendment of Motor
Vehicles Act 1959
46 Amendment of section 5—Interpretation
47 Amendment of section 7—Registrar and
officers
48 Amendment of section 47C—Return or
recovery of number plates
49 Amendment of section 52—Return or
destruction of registration labels
50 Insertion of sections 55B and 55C
55B Notice to be given to Registrar
55C Action following disqualification or
suspension outside State
51 Amendment of section 83—Action
following disqualification etc outside State
52 Amendment of section 93—Notice to be
given to Registrar
53 Amendment of section 96—Duty to
produce licence or permit
54 Amendment of section 97—Duty to
produce licence or permit at court
55 Amendment of section 97A—Visiting
motorists
56 Amendment of section 98AAA—Duty to
carry licence when driving heavy vehicle
57 Amendment of section 98AAB—Duty to
carry probationary licence, provisional licence or learner's permit
58 Repeal of section 98C
59 Amendment of section 98P—Investigation
powers
60 Amendment of section 139BA—Power to
require production of licence etc
61 Amendment of section 139D—Confidentiality
62 Repeal of section 139F
63 Insertion of section 143B
143B General defences
64 Amendment of section 145—Regulations
65 Amendments relating to members of
police force
66 Amendments relating to inspectors
Part 5—Amendment of Summary
Offences Act 1953
67 Insertion of section 68A
68A Power to search land for stolen
vehicles etc
68 Amendment of section 74A—Power to
require name and name and other personal details
69 Insertion of section 74AB
74AB Questions as to
identity of drivers etc
The Parliament of South Australia enacts
as follows:
This Act may be cited as the Statutes Amendment (Road Transport
Compliance and Enforcement) Act 2006.
(1) This
Act will come into operation on a day to be fixed by proclamation.
(2) Section
7(5) of the Acts Interpretation Act 1915 does not apply to Part 2
or section 16.
In this Act, a provision under a heading referring to the
amendment of a specified Act amends the Act so specified.
Part 2—Amendment of Road Traffic
Act 1961 (temporary powers related to drink driving and drug driving)
After section 47EAA insert:
47EAB—Direction
to leave vehicle etc
(1) If a member of the police force believes on
reasonable grounds that the driver of a vehicle is not fit to drive the vehicle
because of the consumption of alcohol or a drug, the officer may do one or more
of the following:
(a) direct
the driver to vacate the driver’s seat;
(b) direct
the driver to leave the vehicle;
(c) direct
the driver not to occupy the driver’s seat until permitted to do so by a police
officer;
(d) direct
the driver not to enter the vehicle until permitted to do so by a police
officer;
(e) direct
the driver to secure the vehicle and surrender to the officer all keys to the
vehicle that are in the person's immediate possession or in the vehicle;
(f) immobilise
the vehicle;
(g) direct
the driver not to drive any other vehicle until permitted to do so by a police
officer.
(2) The police officer may also direct any
other person to do either or both of the following:
(a) to
leave the vehicle;
(b) not
to enter the vehicle until permitted to do so by a police officer.
(3) A
direction under this section may be given to a driver orally or by means of a
sign or signal (electronic or otherwise), or in any other manner.
(4) A person commits an offence if—
(a) the
person is subject to a direction under this section; and
(b) the person engages in conduct that results
in a contravention of the direction.
Penalty: $5 000.
(5) If a police officer takes possession of
keys or (in order to immobilise the vehicle) components of a vehicle, the
officer must—
(a) advise
the driver that the keys or components may be recovered from a specified police
station; and
(b) cause
the keys or components to be taken to the police station.
(6) A
police officer on duty at the police station to which the keys or components
are taken under this section must deliver possession of the keys or components
to any person who the officer is satisfied is lawfully entitled to them and who
makes a request for them at the police station, provided that the officer has
no reason to believe that the person will drive the vehicle but not be
qualified or fit to do so.
(7) For the purposes of this section, a person
is qualified to drive a vehicle (or to run its engine) if the
person—
(a) holds
a driver's licence of the appropriate class to drive it and the driver's
licence is not suspended; and
(b) is
not prevented under a law (including, for example, by the conditions of the
licence) from driving it at the relevant time.
(8) For the purposes of this section, a person
is fit to drive a vehicle (or to run its engine) if—
(a) the
person is apparently physically and mentally fit to drive the vehicle; and
(b) (without
limiting the above) the person is not apparently affected by—
(i) alcohol;
or
(ii) any
drug that affects the person’s fitness to drive,
or both; and
(c) the
person has not at the time been found to have, and there are not any reasonable
grounds to suspect that the person has, the prescribed concentration of alcohol
in his or her blood; and
(d) the
person has not at the time been found to have, and there are not any reasonable
grounds to suspect that the person has, a prescribed drug in his or her oral
fluid or blood.
(9) In this section—
keys means keys or electronic or other devices for starting or
securing a vehicle.
Part 3—Amendment of Road Traffic Act 1961
5—Amendment of section 5—Interpretation
(1) Section 5(1)—after the definition of air-cushioned
vehicle insert:
approved road transport compliance scheme means a scheme, agreement or arrangement
that—
(a) is
prescribed by the regulations; or
(b) is
identified by, or is of a class identified by, the regulations,
and that makes provision for compliance with and enforcement of
any Australian road laws, including (for example) a scheme, agreement or
arrangement that provides for—
(c) a
system of accreditation-based compliance; or
(d) an
intelligent transport system; or
(e) a
system applying alternative legal entitlements to those otherwise applicable,
such as one based on performance-based standards;
(2) Section 5(1)—after the definition of articulated
motor vehicle insert:
associate—see section 9;
Australian Authority means the Minister, the Registrar of Motor Vehicles or a
corresponding Authority;
Australian police officer means—
(a) a
police officer; or
(b) a
member (however described) of the police force or police service of another
jurisdiction;
Australian road law means a road law or a corresponding road law;
Australian road law offence means an offence against an Australian
road law;
(3) Section 5(1)—after the definition of Australian
Road Rules insert:
authorised officer means a person appointed as an authorised officer, or of a
class of persons appointed as authorised officers, under Part 2 Division 4;
(4) Section 5(1)—after the definition of axle
group insert:
base of a driver—see section 8;
(5) Section 5(1)—after the definition of bicycle
insert:
body corporate includes the Crown in any capacity and any body or entity that is
not a natural person;
breach of a mass, dimension or load restraint requirement , breach of a mass, dimension or
load restraint requirement in this State and breach of a mass,
dimension or load restraint requirement in another jurisdiction—see
section 119;
breach of a vehicle standards or maintenance requirement —see section 116;
(6) Section 5(1)—after the definition of bus
insert:
capabilities of a vehicle means the functional
capabilities of the vehicle or any of its components, as determined by the
vehicle’s manufacturer or by an Australian Authority, and includes—
(a) its
GCM and GVM; and
(b) its
speed capabilities;
(7) Section 5(1)—after the definition of condition
insert:
conduct means an act or an omission to perform an act;
consignee of goods that are transported by road
means—
(a) a
person who, with the person’s authority, is named or otherwise identified as the
intended consignee of the goods in the transport documentation relating to the
transport of the goods by road; or
(b) a
person who is to actually receive the goods after completion of their transport
by road,
but does not include a person who is to merely unload the goods;
consignor of goods that are transported by road
means—
(a) a
person who, with the person’s authority, is named or otherwise identified as
the consignor of the goods in the transport documentation relating to the
transport of the goods by road; or
(b) a
person who engaged the operator of the vehicle concerned, either directly or
indirectly or through an agent or other intermediary, to transport the goods by
road; or
(c) a
person who had possession of, or control over, the goods immediately before
their transport by road; or
(d) a
person who loaded the vehicle with the goods, for transport by road, at a place
where goods in bulk are stored or temporarily held and that is unattended
(except by the driver of the vehicle, a trainee driver or any person necessary
for the normal operation of the vehicle) during loading; or
(e) if
the transport of the goods by road followed their import into Australia—a
person who imported the goods into Australia;
container weight declaration means a declaration referred to in
Part 4 Division 3B Subdivision 5, and includes a copy of such a
declaration or a version of such a declaration in electronic or other form;
contravene includes fail to comply with;
corresponding Authority means—
(a) the
Authority as defined in a corresponding road law (except in the case of a
jurisdiction for which a declaration is made under paragraph (b)); or
(b) a
person declared under the regulations to be the corresponding Authority for
another jurisdiction for the purposes of this Act;
corresponding law means a law of another jurisdiction that is declared under
the regulations to be a corresponding law;
corresponding road law means—
(a) a
law declared under the regulations to be a corresponding road law for another
jurisdiction for the purposes of this Act; or
(b) except
in the case of a jurisdiction for which a declaration is made under paragraph
(a), a road law, or applicable road law, as defined in a corresponding law; or
(8) Section 5(1), definition of driver—after
"the term" insert:
includes a two-up driver of a vehicle who is present in or near
the vehicle, but
(9) Section 5(1), definition of driver's
licence—before "includes" insert:
means a licence under the Motor Vehicles Act 1959 and
(10) Section 5(1), definition of inspector—delete
the definition and substitute:
employee means a natural person who works under a contract of employment,
apprenticeship or training;
employer means a person who employs persons under—
(a) contracts
of employment, apprenticeship or training; or
(b) contracts
for services;
engage in conduct means—
(a) do
an act; or
(b) omit
to perform an act;
equipment, in relation to a vehicle, includes tools, devices and
accessories in or on the vehicle;
extract from a record, device or other thing means a copy of any
information contained in the record, device or other thing;
freight container means—
(a) a
re-usable container of the kind referred to in Australian/New Zealand Standard
AS/NZS 3711.1:2000, Freight containers—Classification, dimensions and
ratings, that is designed for repeated use for the transport of goods by
one or more modes of transport; or
(b) a
re-usable container of the same or a similar design and construction to a
container referred to in paragraph (a) though of different dimensions; or
(c) a
container of a kind prescribed by the regulations,
but does not include anything declared by the regulations to be
excluded from this definition;
garage address, in relation to a vehicle, means—
(a) the
address of the place of residence or business at which the vehicle is
ordinarily kept when not in use; or
(b) the
principal depot or base of operation of the vehicle;
GCM of a vehicle means the greatest possible sum of the
maximum loaded mass of the vehicle and of any vehicles that may lawfully be
towed by it at any one time—
(a) as
specified by the vehicle's manufacturer; or
(b) as
specified by an Australian Authority if—
(i) the
manufacturer has not specified the sum of the maximum loaded mass; or
(ii) the
manufacturer cannot be identified; or
(iii) the
vehicle has been modified to the extent that the manufacturer's specification
is no longer appropriate;
goods includes—
(a) animals
(whether alive or dead); and
(b) a
container (whether empty or not),
but does not include—
(c) people;
or
(d) fuel,
water, lubricants and equipment required for the normal operation of the
vehicle in which they are carried;
GVM of a vehicle means the maximum loaded mass of the vehicle—
(a) as
specified by the vehicle's manufacturer; or
(b) as
specified by an Australian Authority if—
(i) the
manufacturer has not specified a maximum loaded mass; or
(ii) the
manufacturer cannot be identified; or
(iii) the
vehicle has been modified to the extent that the manufacturer's specification
is no longer appropriate;
heavy vehicle means a motor vehicle or trailer that has a GVM greater than 4.5
tonnes;
home address of a person means—
(a) in
the case of a natural person—the person’s residential address or place of abode
in Australia; or
(b) in
the case of a body corporate that has a registered office in Australia—the
address of the registered office; or
(c) in
any other case—the address of the person’s principal or only place of business
in Australia;
(11) Section 5(1)—after the definition of installation
insert:
intelligent transport system means a system involving the use of
electronic or other technology (whether located in or on a vehicle, or on or
near a road, or elsewhere) that has the capacity and capability to monitor,
collect, store, display, analyse, transmit or report information relating to—
(a) a
vehicle or its equipment or load, the driver of a vehicle, the operator of a
fleet of vehicles or another person involved in road transport; and
(b) without
limiting the above, the operation of a vehicle in relation to its legal
entitlements;
journey documentation means any documentation (other than
transport documentation) directly or indirectly associated with—
(a) the
actual or proposed physical transport of goods or passengers by road or any
previous transport of the goods or passengers by any mode; or
(b) goods
or passengers themselves so far as the documentation is relevant to their
actual or proposed physical transport,
whether the documentation is in paper, electronic or any other
form, and whether or not the documentation has been transmitted physically,
electronically or in any other manner, and whether or not the documentation
relates to a particular journey or to journeys generally, and includes (for
example) any of the following:
(c) records
kept, used or obtained by a responsible person in connection with the transport
of the goods or passengers;
(d) workshop,
maintenance and repair records relating to a vehicle used, or claimed to be
used, for the transport of the goods or passengers;
(e) a
subcontractor’s payment advice relating to the goods or passengers or the
transport of the goods or passengers;
(f) records
kept, used or obtained by the driver of the vehicle used, or claimed to be used,
for the transport of the goods or passengers, including (for example) a driver’s
run sheet, a log book entry, a fuel docket or receipt, a food receipt, a
tollway receipt, pay records and mobile or other phone records;
(g) information
reported through the use of an intelligent transport system;
(h) driver
manuals and instruction sheets;
(i) advice
in any form from check weighing performed before, during or after a journey;
jurisdiction means the Commonwealth or a State or Territory;
learner's permit means a learner's permit under the Motor Vehicles
Act 1959;
legal entitlements of a vehicle (or component of a vehicle)
means the particulars of the entitlements, conferred under an Australian road
law, that authorise the vehicle (or component) to be operated on a road, and
includes—
(a) any
entitlements arising under or as affected by a permit, registration,
authorisation, approval, exemption, notice or anything else given or issued in
writing under such a law; and
(b) any
entitlements arising under or as affected by restrictions, or by the
application of restrictions, under an Australian road law or other laws (for
example, sign-posted mass limits for bridges, hazardous weather condition
permits, and special road protection limits); and
(c) any
entitlements arising under or as affected by an approved road transport
compliance scheme;
load of a vehicle, or in or on a vehicle, means—
(a) all
the goods, passengers and drivers in or on the vehicle; and
(b) all
fuel, water, lubricants and readily removable equipment carried in or on the
vehicle and required for its normal operation; and
(c) personal
items used by a driver of the vehicle; and
(d) anything
that is normally removed from the vehicle when not in use,
and includes a part of a load as so defined;
loader of goods that are transported by road
means a person who—
(a) loaded
the vehicle concerned with the goods for transport by road; or
(b) loaded
the vehicle with a freight container (whether or not containing goods) for
transport by road; or
(c) without
limiting the above, loaded a freight container already in or on the vehicle
with the goods for transport by road; or
(d) supervised
an activity mentioned in paragraph (a), (b) or (c); or
(e) managed
or controlled an activity mentioned in paragraph (a), (b), (c) or (d);
(12) Section 5(1)—after the definition of mass
and loading requirements insert:
mass, dimension or load restraint
requirement means any
of the following:
(a) the
mass and loading requirements;
(b) requirements
of the Australian Road Rules relating to mass limits where the mass limits are
indicated by signs (for example, sign-posted bridge limits);
(c) a
law of another jurisdiction that is defined in the corresponding law of the
jurisdiction as a mass, dimension or load restraint requirement or mass,
dimension or load restraint limit or requirement or taken under the
corresponding law of the jurisdiction to be a mass, dimension or load restraint
requirement or mass, dimension or load restraint limit or requirement;
mass limit means a mass limit specified in or applying under mass, dimension
or load restraint requirements;
minor risk breach—see section 120;
(13) Section 5(1), definitions of operator
and owner—delete the definitions and substitute:
night means the period between sunset on one day and sunrise on the
next day;
operator of a vehicle means—
(a) in
the case of a vehicle other than a combination but including a vehicle in a
combination—a person controlling or directing the operation of the vehicle; or
(b) in
the case of a combination—a person controlling or directing the operation of
the towing vehicle in the combination,
and includes the registered operator of the vehicle; (however, a
person is not an operator of a vehicle merely because the person
does any or all of the following:
(c) owns
the vehicle;
(d) drives
the vehicle;
(e) maintains
or arranges for the maintenance of the vehicle;
(f) arranges
for the registration of the vehicle);
owner of a vehicle means—
(a) in
the case of a vehicle other than a combination but including a vehicle in a
combination—
(i) a
person who is the sole owner, a joint owner or a part owner of the vehicle; or
(ii) a
person who has possession or use of the vehicle under a credit, hire-purchase,
lease or other agreement, except an agreement requiring the vehicle to be
registered in the name of someone else; or
(b) in
the case of a combination—
(i) a
person who is the sole owner, a joint owner or a part owner of the towing
vehicle in the combination; or
(ii) a
person who has possession or use of the towing vehicle in the combination under
a credit, hire-purchase, lease or other agreement, except an agreement
requiring the vehicle to be registered in the name of someone else,
and includes a registered owner of the vehicle;
package of goods means the complete product of the packing of the goods
for transport by road, consisting of the goods and their packaging;
packaging of goods means the container (including a freight container) in
which the goods are received or held for transport by road, and includes
anything that enables the container to receive or hold the goods or to be
closed;
packer of goods that are transported by road
means a person who—
(a) put
the goods in a packaging for transport by road; or
(b) assembled
the goods as packaged goods in an outer packaging or unit load for transport by
road; or
(c) supervised
an activity mentioned in paragraph (a) or (b); or
(d) managed
or controlled an activity mentioned in paragraph (a), (b) or (c);
(14) Section 5(1)—after the definition of photographic
detection device insert:
premises includes any structure, building, vessel or place (whether built
on or not), and any part of any such structure, building, vessel or place;
(15) Section 5(1)—after the definition of prime
mover insert:
public authority means—
(a) a
police force or police service or the Crown in any other capacity; or
(b) a
body established under law, or the holder of an office established under law,
for a public purpose, including a local government authority;
public place includes a place—
(a) of
public resort open to or used by the public as of right; or
(b) for
the time being—
(i) used
for a public purpose; or
(ii) open
to access by the public,
whether on payment or otherwise; or
(c) open
to access by the public by the express or tacit consent or sufferance of the
owner of that place, whether the place is or is not always open to the public,
but does not include—
(d) a
track that at the material time is being used as a course for racing or testing
motor vehicles and from which other traffic is excluded during that use; or
(e) a
place declared by the regulations not to be a public place;
public safety means the safety of persons or property,
including the safety of—
(a) the
drivers of and passengers in vehicles; and
(b) persons
in or in the vicinity of (or likely to be in or in the vicinity of) roads, road
infrastructure and public places; and
(c) vehicles
and any loads in or on them;
(16) Section 5(1)—after the definition of quad-axle
group insert:
reasonable steps defence—see section 121;
records means any documents, documentation or records, whether in paper,
electronic or any other form;
registered industry code of practice means an instrument that is registered by
an Australian Authority as an industry code of practice under section 174F or
under a corresponding road law;
registered operator of a vehicle means—
(a) in
the case of a vehicle other than a combination but including a vehicle in a
combination—the person registered as the operator of the vehicle by the
Registrar of Motor Vehicles under the Motor Vehicles Act 1959 or
recorded as the operator of the vehicle by another Australian Authority on a
register maintained under an Australian road law; or
(b) in
the case of a combination—the person registered as the operator of the towing
vehicle in the combination by the Registrar of Motor Vehicles under the Motor
Vehicles Act 1959 or recorded as the operator of the towing vehicle in
the combination by another Australian Authority on a register maintained under
an Australian road law;
registered owner of a vehicle means—
(a) in
the case of a vehicle other than a combination but including a vehicle in a
combination—a person registered as an owner of the vehicle by the Registrar of
Motor Vehicles under the Motor Vehicles Act 1959 or recorded as an
owner of the vehicle by another Australian Authority on a register maintained
under an Australian road law; or
(b) in
the case of a combination—a person registered as an owner of the towing vehicle
in the combination by the Registrar of Motor Vehicles under the Motor
Vehicles Act 1959 or recorded as an owner of the towing vehicle in the
combination by another Australian Authority on a register maintained under an
Australian road law;
Registrar of Motor Vehicles or Registrar means the
person holding or acting in the office of Registrar of Motor Vehicles under the
Motor Vehicles Act 1959, and includes any person acting on behalf
of the Registrar in accordance with that Act;
responsible entity in relation to a freight container—see section 131;
responsible person means any person having, at a relevant
time, a role or responsibilities associated with road transport, and includes
any of the following:
(a) an
owner of a vehicle;
(b) a
driver of a vehicle;
(c) an
operator or registered operator of a vehicle;
(d) a
person in charge or apparently in charge of a vehicle;
(e) a
person in charge or apparently in charge of the garage address of a vehicle or
the base of the driver or drivers of a vehicle;
(f) a
person appointed under an approved road transport compliance scheme to have
monitoring or other responsibilities under the scheme, including (for example)
responsibilities for certifying, monitoring or approving vehicles under the
scheme;
(g) an
operator of an intelligent transport system;
(h) a
person in charge of premises entered by an authorised officer or police officer
under this Act;
(i) a
person who consigns goods for transport by road;
(j) a
person who packs goods in a freight container or other container or in a
package or on a pallet for transport by road;
(k) a
person who loads goods or a container on a vehicle for transport by road;
(l) a
person who unloads goods or a container containing goods consigned for
transport by road;
(m) a
person to whom goods are consigned for transport by road;
(n) a
person who receives goods packed outside Australia in a freight container or
other container or as a unit load for transport by road in Australia;
(o) an
owner or operator of a weighbridge, or weighing facility, used to weigh
vehicles or an occupier of premises where such a weighbridge or weighing
facility is located;
(p) a
responsible entity for a freight container;
(q) a
person who controls or directly influences the loading or operation of a
vehicle;
(r) an
agent, employer, employee, contractor or subcontractor of any person referred
to in the preceding paragraphs of this definition;
(17) Section 5(1)—after the definition of road
insert:
road authority means—
(a) an
authority, person or body that is responsible for the care, control or
management of a road; or
(b) any
person or body prescribed by the regulations for the purposes of this
definition, in relation to specified roads or specified classes of roads;
road infrastructure includes—
(a) a
road, including its surface or pavement; and
(b) anything
under or supporting a road or its surface or pavement and maintained by a road
authority; and
(c) any
bridge, tunnel, causeway, road-ferry, ford or other work or structure forming
part of a road system or supporting a road; and
(d) any
bridge or other work or structure located above, in or on a road and maintained
by a road authority; and
(e) any
traffic control devices, railway or tramway equipment, electricity equipment,
emergency telephone systems or any other facilities (whether of the same or a
different kind) in, on, over, under or connected with anything referred to in
paragraphs (a)–(d); and
(f) anything
declared by the regulations to be included in this definition;
but does not include anything declared by the regulations to be
excluded from this definition;
road law means this Act, the Motor Vehicles Act 1959 or rules
or regulations under either of the Acts;
road law offence means an offence against a road law;
(18) Section 5(1), definition of road-related
area, (d) and (e)—delete paragraphs (d) and (e) and substitute:
(d) any
public place that is not a road and on which a motor vehicle may be driven,
whether or not it is lawful to drive a motor vehicle there;
(19) Section 5(1)—after the definition of road-related
area insert:
run
the engine of a vehicle includes to start or stop the engine;
(20) Section 5(1)—after the definition of semi-trailer
insert:
severe risk breach—see section 120;
(21) Section 5(1)—after the definition of single
axle group insert:
specifications of a vehicle means the physical dimensions and other physical
attributes of the vehicle and its fittings;
substantial risk breach—see section 120;
(22) Section 5(1)—after the definition of tram
insert:
transport documentation means—
(a) any
contractual documentation directly or indirectly associated with—
(i) a
transaction for or relating to the actual or proposed transport of goods or passengers
by road or any previous transport of the goods or passengers by any mode; or
(ii) goods
or passengers themselves so far as the documentation is relevant to their
actual or proposed transport; or
(b) any
associated documentation—
(i) contemplated
in the contractual documentation; or
(ii) required
by law, or customarily provided, in connection with the contractual
documentation or with the transaction,
whether the documentation is in paper, electronic or any other
form, and whether or not the documentation has been transmitted physically,
electronically or in any other manner, and includes (for example) an invoice,
vendor declaration, delivery order, consignment note, load manifest, export
receival advice, bill of lading, contract of carriage, sea carriage document,
or container weight declaration, relating to the goods or passengers;
(23) Section 5(1)—after the definition of twinsteer
axle group insert:
two-up driver means a person accompanying a driver of a heavy vehicle on a
journey or part of a journey, who has been, is or will be sharing the task of
driving the vehicle during the journey;
unit load means a load of packaged goods that are—
(a) wrapped
in plastics, and strapped or otherwise secured to a pallet or other base and to
each other, for transport; or
(b) placed
together in a protective outer container (except a freight container) for
transport; or
(c) secured
together in a sling for transport;
Section 8A—delete the section and
substitute:
8—Driver’s
base
(1) For the purposes of this Act, the base of a
driver of a vehicle is—
(a) the
place recorded for the time being as the driver’s base in the log book kept by
the driver of the vehicle; or
(b) if
no place is recorded as specified in paragraph (a)—the garage address of
the vehicle (or, in the case of a combination, the towing vehicle of the
combination), as recorded by an Australian Authority; or
(c) if
no place is recorded as specified in paragraph (a) or (b)—the place from
which the driver normally works and receives instructions.
(2) For
the purposes of this section, if a driver is a self-employed driver and an
employed driver at different times, the driver may have one base as a
self-employed driver and another base as an employed driver.
(3) For
the purposes of this section, if a driver has 2 or more employers, the driver
may have a different base in relation to each employer.
9—Associates
(1) For the purposes of this Act, a person is an
associate of another if—
(a) one
is a spouse, parent, brother, sister or child of the other; or
(b) they
are members of the same household; or
(c) they
are partners; or
(d) they
are both trustees or beneficiaries of the same trust, or one is a trustee and
the other is a beneficiary of the same trust; or
(e) one
is a body corporate and the other is a director or member of the governing body
of the body corporate; or
(f) one
is a body corporate (other than a public company whose shares are listed on a
stock exchange) and the other is a shareholder in the body corporate; or
(g) they
are related bodies corporate within the meaning of the Corporations Act 2001
of the Commonwealth; or
(h) a
chain of relationships can be traced between them under one or more of the
above paragraphs.
(2) For
the purposes of subsection (1), a beneficiary of a trust
includes an object of a discretionary trust.
10—Act in
addition to and not in derogation of other Acts
This Act is in addition to, and does not derogate from, the
provisions of any other Act.
7—Amendment of section 16—Roads under care etc of Commissioner of Highways
Section 16(1)—delete subsection (1)
8—Amendment of section 17—Installation etc of traffic control devices
Section 17(1) and (2)—delete "An
Authority" wherever occurring and substitute in each case:
A road authority
9—Amendment of section 18—Direction as to installation etc of traffic control devices
(1) Section 18(1) and (6)—delete "an
Authority" wherever occurring and substitute in each case:
a road authority
(2) Section 18(5) and (7)—delete
"Authority" wherever occurring and substitute in each case:
road authority
(3) Section 18(6)—delete "the
Authority" and substitute:
the road authority
10—Amendment of section 19—Cost of traffic control devices and duty to maintain
Section 19—delete "Authority"
wherever occurring and substitute in each case:
road authority
11—Amendment of section 19A—Recovery of cost of installing certain traffic control devices
(1) Section 19A(1)—delete "Authority"
and substitute:
road authority
(2) Section 19A(3)—delete "An
Authority" and substitute:
A road authority
12—Amendment of section 21—Offences relating to traffic control devices
Section 21(2)—delete "an
Authority" and substitute:
a road authority
13—Amendment of section 31—Action to deal with false devices or hazards to traffic
Section 31(2)—delete "Authority"
wherever occurring and substitute in each case:
road authority
14—Substitution of Part 2 Divisions 4 and 5
Part 2 Divisions 4 and 5—delete the
Divisions and substitute:
Division 4—Enforcement
officers for Australian road laws
35—Authorised
officers
(1) The Minister may, by instrument in writing,
appoint—
(a) a
specified person to be an authorised officer; or
(b) persons
of a specified class to be authorised officers.
(2) An
authorised officer may but need not be an employee in the public service or an
employee of a government or government body.
(3) An authorised person as defined in the Local
Government Act 1999 is an authorised officer under this Act for the
purposes of—
(a) enforcing
prescribed provisions of this Act in the area of the council for which he or
she is an authorised person; or
(b) exercising
the powers of an authorised officer under prescribed provisions of this Act in
the area of the council for which he or she is an authorised person.
(4) Every
person for the time being in charge of a ferry established by a council or
established, maintained or operated by the Commissioner of Highways is an
authorised officer under this Act.
(5) Without
limiting the above, an authorised officer as defined in a corresponding road
law may be appointed as an authorised officer under this section.
36—Exercise
of powers by authorised officers
(1) This
section applies to the powers conferred on authorised officers by a road law.
(2) The
Minister may, by instrument in writing applicable to a specified authorised
officer or each authorised officer of a specified class, impose conditions on
the exercise of powers.
37—Exercise
of powers by police officers
A police officer has the powers conferred on police officers by a
road law in addition to the officer's powers under other Acts or at law.
38—Identification
cards
(1) The Minister may—
(a) issue
an authorised officer with an identification card; or
(b) designate
a card, issued to an authorised officer by another person, body or authority
(whether or not of this State), as an identification card for the purposes of
this Act.
(2) An identification card issued by the
Minister must—
(a) contain
a photograph of the officer and either—
(i) the
name and signature of the officer; or
(ii) a
unique number that has been assigned to the officer by the Minister; and
(b) identify
the officer as an authorised officer.
(3) The Minister must not designate a card
issued to an authorised officer by another person, body or authority as an
identification card for the purposes of this Act unless the card—
(a) contains
a photograph of the officer, the name of the other person, body or authority
and either—
(i) the
name and signature of the officer; or
(ii) a
unique number that has been assigned to the officer by the other person, body
or authority; and
(b) identifies
in some way (however expressed) the officer as an authorised officer under
another law or as having official functions under another law.
39—Production
of identification
(1) This
section applies to powers conferred on authorised officers or police officers
under a road law, but only where the physical presence of an officer at the
scene is necessary for the exercise of the power.
(2) An
authorised officer must not exercise a power unless an identification card has
been issued to or designated for the officer.
(3) An
authorised officer who is exercising or about to exercise a power is required
to comply with a request to identify himself or herself, by producing his or
her identification card.
(4) A police officer who is exercising or about
to exercise a power is required to comply with a request to identify himself or
herself, by—
(a) producing
his or her police identification; or
(b) stating
orally or in writing his or her surname, rank and identification number.
(5) An authorised officer or police officer is
required to comply with a requirement under subsection (3) or (4)—
(a) immediately;
or
(b) if
it is not practicable to comply with the requirement immediately—as soon as practicable
afterwards.
(6) An
authorised officer or police officer need only identify himself or herself once
to a particular person during the course of an incident, even though more than
one power is being exercised during the course of the incident.
(7) In this section—
incident means—
(a) a
single incident; or
(b) a
connected series of incidents involving the same or substantially the same
parties and occurring during a period of 72 hours;
power means a power under an Australian road law;
request, in relation to the exercise of a power, means a request made by
a person (if any) in respect of whom the power is being or is about to be
exercised.
40—Return of
identification cards
(1) A person commits an offence if—
(a) the
Minister has issued an identification card to the person; and
(b) the
person was but has stopped being an authorised officer; and
(c) the
Minister has requested the person to return the card to the Minister within a
specified period; and
(d) the person did not return the card during
the period.
Penalty: $2 500.
(2) Subsection (1)
does not apply if the person has a reasonable excuse.
40A—Reciprocal
powers of officers
(1) This
section has effect in relation to another jurisdiction while the corresponding
law of the other jurisdiction contains provisions corresponding to this
section.
(2) The
Minister may enter into agreements with a Minister of the other jurisdiction
for the purposes of this section, and to amend or revoke any such agreement.
(3) To the extent envisaged by such an
agreement—
(a) authorised
officers or police officers of this State may, in this State or the other
jurisdiction, exercise powers conferred respectively on authorised officers or
police officers of the other jurisdiction under the corresponding law of the
other jurisdiction; and
(b) authorised
officers or police officers of the other jurisdiction may, in this State or the
other jurisdiction, exercise powers conferred respectively on authorised
officers or police officers under this Act.
(4) Anything
done or omitted to be done by an authorised officer or police officer of this
State under subsection (3)(a) is taken to have been done under this Act as
well as under the corresponding law.
(5) The
regulations may make provision for or with respect to the exercise of powers
under this section.
(6) Nothing
in this section affects the appointment under this Division of persons as
authorised officers for the purposes of this Act.
40B—Registrar
may exercise powers of authorised officers
(1) The
Registrar of Motor Vehicles may exercise any power conferred under a road law
on an authorised officer.
(2) Accordingly,
in this Act (except this Division) references to an authorised officer include
references to the Registrar of Motor Vehicles.
Division 5—General
enforcement powers for Australian road laws
Subdivision
1—Interpretation
40C—Meaning
of qualified, fit or authorised to drive or run engine
(1) For the purposes of this Division, a person
is qualified to drive a vehicle (or to run its engine) if the
person—
(a) holds
a driver's licence of the appropriate class to drive it and the driver's
licence is not suspended; and
(b) is
not prevented under a law (including, for example, by the conditions of the
licence) from driving it at the relevant time.
(2) For the purposes of this Division, a person
is fit to drive a vehicle (or to run its engine) if—
(a) the
person is apparently physically and mentally fit to drive the vehicle; and
(b) (without
limiting the above) the person is not apparently affected by—
(i) alcohol;
or
(ii) any
drug that affects the person’s fitness to drive,
or both; and
(c) the
person has not at the time been found to have, and there are not any reasonable
grounds to suspect that the person has, a concentration of alcohol in the
person’s blood that exceeds the amount permitted by a road law; and
(d) the
person has not at the time been found to have, and there are not any reasonable
grounds to suspect that the person has, a prescribed drug in his or her oral
fluid or blood.
(3) For the purposes of this Division, a person
is authorised—
(a) to
drive a vehicle if the person is its operator or has the authority of the
operator to drive it; or
(b) to
run the engine of a vehicle if the person is its operator or has the authority
of the operator to drive it or to run the engine,
regardless of whether or not the person is qualified to drive the
vehicle (or run its engine) as mentioned in subsection (1).
40D—Meaning
of unattended vehicle and driver of disconnected trailer
(1) For the purposes of this Division, a
vehicle is unattended if—
(a) where
the authorised officer or police officer concerned—
(i) is
present at the scene—there is, after inspection and enquiry by the officer that
is reasonable in the circumstances, apparently no person in, on or in the
vicinity of the vehicle who appears to be a driver of the vehicle; or
(ii) is
not present at the scene but is able to inspect the scene by means of camera or
other remote surveillance system—there is, after inspection by the officer that
is reasonable in the circumstances, apparently no person in, on or in the
vicinity of the vehicle who appears to be a driver of the vehicle; or
(b) where
there is apparently such a person in, on or in the vicinity of the vehicle—the
officer believes on reasonable grounds that—
(i) the
person is not qualified, not fit or not authorised to drive it; or
(ii) the
person is or appears to be unwilling to drive it; or
(iii) the
person is subject to a direction under section 40K in relation to the
vehicle.
(2) For
the purposes of this Division, a person is the driver of a
vehicle if, in a case where the vehicle is a trailer and is not connected (either
directly or by one or more other trailers) to a towing vehicle, the person is
the driver of the towing vehicle to which the trailer was or apparently was
last connected.
40E—Meaning
of broken down vehicle
(1) For
the purposes of this Division, a vehicle that is a motor vehicle is broken
down if it is not possible to drive the vehicle because it is disabled
through damage, mechanical failure, lack of fuel or any similar reason.
(2) For
the purposes of this Division, a vehicle that is a trailer is broken down
if it is not connected (either directly or by one or more other trailers) to a
towing vehicle, whether or not the trailer is also disabled through damage,
mechanical power or any similar reason.
(3) For
the purposes of this Division, a vehicle that is a combination is broken
down if it is not possible to drive the combination because the
combination or a vehicle comprised in the combination is disabled through
damage, mechanical failure, lack of fuel or any similar reason.
(4) For
the purposes of this Division, a vehicle of a kind not referred to in
subsection (1), (2) or (3) is broken down if it is not
connected to a towing vehicle or an animal by which it could be drawn or if it
is not possible to tow or draw the vehicle because it is disabled through
damage, mechanical failure or any similar reason.
40F—Meaning
of compliance purposes
For the purposes of this Division, a power
is exercised for compliance purposes in relation to a person if
the power is exercised—
(a) to
find out whether the Australian road laws or an approved road transport
compliance scheme are being complied with by that or any other person; or
(b) to
investigate a breach or suspected breach of an Australian road law or an
approved road transport compliance scheme by that or any other person; or
(c) to
investigate an accident in which that person or any other person has been
involved.
Subdivision
2—Directions to stop, move or leave vehicles
40G—Application
of Subdivision
(1) This Subdivision applies to a vehicle
located—
(a) on
any road; or
(b) in
or on any premises occupied or owned by a public authority; or
(c) in
or on any premises where the officer is lawfully present after entry under
Subdivision 4.
(2) This
Subdivision applies to the driver of a vehicle who is apparently in, on or in
the vicinity of the vehicle.
40H—Direction
to stop vehicle to enable exercise of other powers
(1) An authorised officer or police officer
may, for the purpose of or in connection with exercising other powers under a
road law, direct—
(a) the
driver of a vehicle to stop the vehicle; or
(b) the
driver of a vehicle or any other person not to do one or more of the following:
(i) move
the vehicle;
(ii) interfere
with it or any equipment in or on it;
(iii) interfere
with its load.
(2) A
direction to stop a vehicle may require that it be stopped without delay, or
that it be stopped at the nearest place for it to be safely stopped as
indicated by the officer.
(3) A
direction to stop the vehicle, or not to move it, or not to interfere with it
or any equipment in or on it or with its load, does not prevent an authorised
officer or police officer from giving the driver or another person any later
inconsistent directions under a road law or any other law.
(4) A direction ceases to be operative to the
extent that an authorised officer or police officer—
(a) gives
the driver or other person a later inconsistent direction; or
(b) indicates
to the driver or other person that the direction is no longer operative.
(5) A person commits an offence if—
(a) the
person is subject to a direction under subsection (1); and
(b) the person engages in conduct that results
in a contravention of the direction.
Penalty: $5 000.
(6) In this section—
stop a vehicle means to stop the vehicle and keep it stationary.
40I—Direction
to move vehicle to enable exercise of other powers
(1) An
authorised officer or police officer may, for the purpose of or in connection
with the exercise of other powers under this Act, direct the driver or operator
of a vehicle to move it or cause it to be moved to the nearest suitable
location that is within the prescribed distance and specified by the officer.
(2) A person commits an offence if—
(a) the
person is subject to a direction under subsection (1); and
(b) the person engages in conduct that results
in a contravention of the direction.
Penalty:
(a) in
the case of a direction to move the vehicle for the purpose of determining
whether there has been a breach of a mass limit—not less than $5 000 and not
more than $10 000;
(b) in
any other case—$5 000.
(3) A
court may not reduce or mitigate in any way a minimum penalty prescribed by
subsection (2).
(4) In proceedings for an offence in relation
to a contravention of a direction under subsection (1), it is a defence if
the person charged establishes that—
(a) it
was not possible to move the vehicle concerned because it was broken down; and
(b) the
breakdown occurred for a physical reason beyond the driver’s or operator’s
control; and
(c) the
breakdown could not be readily rectified in a way that would enable the
direction to be complied with within a reasonable time.
(5) In this section—
prescribed distance means a distance (in any direction)
within a radius of 30 kilometres of—
(a) the
location of the vehicle when the direction is given; or
(b) any
point along the forward route of the journey, if the direction is given in the
course of a journey of the vehicle;
suitable location means a location that the authorised officer or police
officer concerned believes on reasonable grounds to be a suitable location
having regard to any matters the officer considers relevant in the
circumstances.
40J—Direction
to move vehicle if danger or obstruction
(1) This section applies if an authorised
officer or police officer believes on reasonable grounds that a vehicle on a
road is—
(a) causing
serious harm, or creating an imminent risk of serious harm, to public safety,
the environment or road infrastructure; or
(b) causing
or likely to cause an obstruction to traffic or any event lawfully authorised
to be held on the road; or
(c) obstructing
or hindering, or likely to obstruct or hinder, vehicles from entering or
leaving land adjacent to the road.
(2) The officer may direct the driver or
operator of the vehicle to do either or both of the following:
(a) to
move it, or cause it to be moved, to the extent necessary to avoid the harm or
obstruction;
(b) to
do anything else reasonably required by the officer, or to cause anything else
reasonably required by the officer to be done, to avoid the harm or
obstruction.
(3) A person commits an offence if—
(a) the
person is subject to a direction under subsection (2); and
(b) the person engages in conduct that results
in a contravention of the direction.
Penalty: $5 000.
(4) In proceedings for an offence in relation
to the contravention of a direction under subsection (2)(a), it is a
defence if the person charged establishes that—
(a) it
was not possible to move the vehicle concerned because it was broken down; and
(b) the
breakdown occurred for a physical reason beyond the driver’s or operator’s
control; and
(c) the
breakdown could not be readily rectified in a way that would enable the
direction to be complied with within a reasonable time.
40K—Direction
to leave vehicle
(1) This section applies if—
(a) the
driver of a vehicle fails to comply with a direction given by an authorised
officer or police officer under another provision of this Subdivision; or
(b) an
authorised officer or police officer believes on reasonable grounds that the
driver of a vehicle is not qualified, is not fit or is not authorised to drive
the vehicle.
(2) The officer may do one or more of the
following:
(a) direct
the driver to vacate the driver’s seat;
(b) direct
the driver to leave the vehicle;
(c) direct
the driver not to occupy the driver’s seat until permitted to do so by an
authorised officer or police officer;
(d) direct
the driver not to enter the vehicle until permitted to do so by an authorised
officer or police officer.
(3) The officer may direct any other person to
do either or both of the following:
(a) to
leave the vehicle;
(b) not
to enter the vehicle until permitted to do so by an authorised officer or
police officer.
(4) The officer, being a police officer, may do
one or more of the following if the officer believes on reasonable grounds that
the driver is not fit to drive the vehicle because of the consumption of
alcohol or a drug:
(a) direct
the driver to secure the vehicle and surrender to the officer all keys to the
vehicle that are in the person's immediate possession or in the vehicle;
(b) immobilise
the vehicle;
(c) direct
the driver not to drive any other vehicle until permitted to do so by a police
officer.
(5) A person commits an offence if—
(a) the
person is subject to a direction under this section; and
(b) the person engages in conduct that results
in a contravention of the direction.
Penalty: $5 000.
(6) If a police officer takes possession of
keys or (in order to immobilise the vehicle) components of a vehicle, the
officer must—
(a) advise
the driver that the keys or components may be recovered from a specified police
station; and
(b) cause
the keys or components to be taken to the police station.
(7) A
police officer on duty at the police station to which the keys or components
are taken under this section must deliver possession of the keys or components
to any person who the officer is satisfied is lawfully entitled to them and who
makes a request for them at the police station, provided that the officer has
no reason to believe that the person will drive the vehicle but not be
qualified or fit to do so.
(8) In this section—
keys means keys or electronic or other devices for starting or
securing a vehicle.
40L—Manner
of giving directions under Subdivision
(1) A
direction under this Subdivision may be given to a driver orally or by means of
a sign or signal (electronic or otherwise), or in any other manner.
(2) A
direction under this Subdivision may be given to an operator orally or by
telephone, facsimile, electronic mail or radio, or in any other manner.
40M—Moving
unattended vehicle to enable exercise of other powers
(1) This section applies if an authorised
officer or police officer—
(a) believes
on reasonable grounds that a vehicle is unattended on a road; and
(b) is
seeking to exercise other powers under this Act; and
(c) believes
on reasonable grounds that the vehicle should be moved to enable or to
facilitate the exercise of those powers.
(2) The officer may—
(a) move
the vehicle (by driving or towing it or otherwise); or
(b) authorise
another person to move it (by driving or towing it or otherwise),
to the extent reasonably necessary to enable or to facilitate the
exercise of the powers concerned.
(3) The
officer may enter the vehicle, or authorise another person to enter it, for the
purpose of moving the vehicle.
(4) The officer or person authorised by the
officer may use reasonable force to do any or all of the following:
(a) to
open unlocked doors and other unlocked panels and objects;
(b) to
gain access to the vehicle, or its engine or other mechanical components, to
enable the vehicle to be moved;
(c) to
enable the vehicle to be towed.
(5) The
officer or person authorised by the officer may drive the vehicle only if
qualified and fit to drive it.
Subdivision
3—Power to move or remove unattended or broken down vehicles
40N—Removing
unattended or broken down vehicle if danger or obstruction
(1) This section applies if—
(a) an
authorised officer or police officer believes on reasonable grounds that a
vehicle is unattended or broken down on a bridge, culvert or freeway; or
(b) an
authorised officer or police officer believes on reasonable grounds that—
(i) a
vehicle is unattended or broken down on any road; and
(ii) the
vehicle is—
(A) causing
harm, or creating a risk of harm, to public safety, the environment or road
infrastructure; or
(B) causing
or likely to cause an obstruction to traffic or any event lawfully authorised
to be held on the road; or
(C) obstructing
or hindering, or likely to obstruct or hinder, vehicles from entering or
leaving land adjacent to the road.
(2) The officer may—
(a) remove
the vehicle, or, in the case of a vehicle that is a combination, any vehicle
forming part of the combination (by driving or towing it or otherwise), or
(b) authorise
another person to remove it (by driving or towing it or otherwise),
to a convenient place.
(3) The officer may—
(a) enter
the vehicle, or authorise another person to enter it, for the purpose of
removing the vehicle; or
(b) in
the case of a vehicle that is a combination, separate any or all of the
vehicles forming part of the combination, or authorise another person to
separate them, for the purpose of removing any or all of the vehicles.
(4) The
officer may drive the vehicle even though the officer is not qualified to drive
it, if the officer believes on reasonable grounds that there is no other person
in, on or in the vicinity of the vehicle who is more capable of driving it than
the officer and who is fit and willing to drive it.
(5) The
person authorised by the officer may drive the vehicle even though the
authorised person is not qualified to drive it, if the officer believes on
reasonable grounds that there is no other person in, on or in the vicinity of
the vehicle who is more capable of driving it than the authorised person and
who is fit and willing to drive it.
(6) The
officer or person driving a vehicle under the authority of this section is
exempt from any other road law to the extent that the other law would require
him or her to be licensed or otherwise authorised to drive it.
(7) The
officer or person authorised by the officer may use reasonable force to the
extent reasonably necessary for the purpose of entering or removing the
vehicle.
(8) In this section—
authorised officer has the meaning assigned to the term by
section 5, and includes—
(a) in
relation to a vehicle unattended or broken down on a freeway—a person
authorised by the Minister for the purposes of this section; and
(b) in
relation to a vehicle unattended or broken down on any road within the area of
a council—an officer of the council;
event has the same meaning as in section 33;
freeway means a length of road to which a freeway sign applies in
accordance with the Australian Road Rules.
40O—Operator’s
authorisation not required for driving under Subdivision
It is immaterial that the officer or person driving a vehicle
under the authority of this Subdivision is not authorised to drive it.
40P—Notice
of removal of vehicle and disposal of vehicle if unclaimed
(1) This
section applies if a vehicle is removed to a convenient place under
section 40N.
(2) The person who removed the vehicle must
ensure that the owner of the vehicle is notified of the removal of the vehicle
and of the place to which the vehicle was removed—
(a) by
written notice—
(i) served
on the owner personally; or
(ii) sent
by registered post to the owner's last-known residential address,
forthwith after the removal of the vehicle; or
(b) by
public notice published in a newspaper circulating generally in the State
within 14 days after the removal of the vehicle.
(3) If the owner of the vehicle does not,
within 1 month after service or publication of the notice relating to the
removal of the vehicle—
(a) take
possession of the vehicle; and
(b) pay
all expenses in connection with the removal, custody and maintenance of the
vehicle and of serving, posting or publishing the notice,
the relevant authority must, subject to subsection (4), offer
the vehicle for sale by public auction.
(4) If—
(a) the
vehicle is offered for sale by public auction but is not sold at the auction;
or
(b) the
relevant authority reasonably believes that the proceeds of the sale of the
vehicle would be unlikely to exceed the costs incurred in selling the vehicle,
the relevant authority may dispose of the vehicle in such manner
as the relevant authority thinks fit.
(5) The relevant authority must apply any
proceeds of sale of the vehicle as follows:
(a) firstly,
in payment of the costs of and incidental to the sale;
(b) secondly,
in payment of the costs of and incidental to the removal, custody and
maintenance of the vehicle and of the notice served, posted or published under
this section; and
(c) thirdly,
in payment of the balance to the owner of the vehicle.
(6) If after reasonable inquiry following sale
of the vehicle the owner of the vehicle cannot be found, the balance of the
proceeds of the sale will be paid—
(a) if
the vehicle was sold by the Commissioner of Police or the Minister—to the
Treasurer to be credited to the Consolidated Account; or
(b) if
the vehicle was sold by a council—to the council.
(7) In this section—
relevant authority means—
(a) in
relation to a vehicle removed by a police officer—the Commissioner of Police;
or
(b) in
relation to a vehicle removed by an officer of a council—the council; or
(c) in
relation to a vehicle removed by a person approved by the Minister—the
Minister.
Subdivision
4—Powers of inspection and search
40Q—Power to
inspect vehicle on road or certain official premises
(1) This section applies to a vehicle located
at a place—
(a) on
a road; or
(b) in
or on premises occupied or owned by a public authority,
whether or not the vehicle is unattended.
(2) An
authorised officer or police officer may inspect a vehicle for compliance
purposes.
(3) The
officer may enter the vehicle for the purpose of or in connection with
conducting the inspection.
(4) The
officer may exercise powers under this section at any time, and without the
consent of the driver or other person apparently in charge of the vehicle or
any other person.
(5) Without limiting the above, the power to
inspect a vehicle under this section includes any or all of the following:
(a) the
power to weigh, test, measure or take photographs of the vehicle or any part of
it or its equipment or load;
(b) the
power to check the existence or details of, or take photographs of, placards or
other information required under an Australian road law or under an approved
road transport compliance scheme to be displayed in or on the vehicle,
including placards or other information relating to its specifications,
capabilities or legal entitlements;
(c) the
power to inspect and take copies of or extracts from any records that are
located in or on the vehicle and that are required to be carried in or on the
vehicle under an Australian road law or under an approved road transport
compliance scheme;
(d) the
power to access or download information that is required to be kept under an
Australian road law or under an approved road transport compliance scheme and
that is—
(i) stored
electronically in equipment located in or on the vehicle; or
(ii) accessible
electronically from equipment located in or on the vehicle.
(6) This section does not authorise the use of
force, but the officer may under this section do any or all of the following:
(a) open
unlocked doors and other unlocked panels and objects;
(b) inspect
anything that has been opened or otherwise accessed under the power to use
reasonable force in the exercise of a power to enter or move a vehicle under
Subdivision 3;
(c) move
but not take away anything that is not locked up or sealed.
40R—Power to
search vehicle on road or certain official premises
(1) This section applies to a vehicle located
at a place—
(a) on
a road; or
(b) in
or on premises occupied or owned by a public authority,
whether or not the vehicle is unattended.
(2) An authorised officer or police officer may
search a vehicle for compliance purposes, if the officer believes on reasonable
grounds that—
(a) the
vehicle has been used, is being used, or is likely to be used, in the
commission of an Australian road law offence or in the commission of a breach
of an approved road transport compliance scheme; or
(b) the
vehicle has been or may have been involved in an accident.
(3) The
officer may form the necessary belief during or after an inspection or
independently of an inspection.
(4) The
officer may enter the vehicle for the purpose of or in connection with
conducting the search.
(5) The
officer may exercise powers under this section at any time, and without the
consent of the driver or other person apparently in charge of the vehicle or
any other person.
(6) Without limiting the above, the power to
search a vehicle under this section includes any or all of the following:
(a) the
power to search for evidence of an Australian road law offence or a breach of
an approved road transport compliance scheme;
(b) the
power to search for and inspect any records, devices or other things that
relate to the vehicle or any part of its equipment or load and that are located
in or on the vehicle;
(c) the
power to take copies of or extracts from any or all of the following:
(i) any
records that are located in or on the vehicle and that are required to be carried
in or on the vehicle under an Australian road law or under an approved road
transport compliance scheme;
(ii) any
transport documentation or journey documentation located in or on the vehicle;
(iii) any
other records, or any readout or other data obtained from any device or thing,
located in or on the vehicle that the officer believes on reasonable grounds
provide, or may on further inspection provide, evidence of an Australian road
law offence or a breach of an approved road transport compliance scheme;
(d) any
powers that may be exercised during an inspection of a vehicle under
section 40Q(5).
(7) The
power to search a vehicle under this section does not include a power to search
a person.
(8) The
officer may seize and remove any records, devices or other things from the
vehicle that the officer believes on reasonable grounds provide, or may on
further inspection provide, evidence of an Australian road law offence or a
breach of an approved road transport compliance scheme.
(9) The
officer may use reasonable force in the exercise of powers under this section.
40S—Power to
inspect premises
(1) This section applies to the following
premises:
(a) premises
at or from which a responsible person carries on business, or that are occupied
by a responsible person in connection with such a business, or that are a
registered office of a responsible person;
(b) the
garage address of a vehicle;
(c) the
base of the driver or drivers of a vehicle;
(d) premises
where records required to be kept under an Australian road law or under an
approved road transport compliance scheme are located or where any such records
are required to be located.
(2) An
authorised officer or police officer may inspect the premises for compliance
purposes.
(3) The
officer may enter the premises for the purpose of conducting the inspection.
(4) Without
limiting the above, the officer may inspect, or enter and inspect, any vehicle
at the premises.
(5) The inspection may be made—
(a) at
any time with the consent of the occupier or other person apparently in charge
of the premises; or
(b) if
a business is carried on at the premises—at any time during the usual business
operating hours applicable at the premises (whether or not the premises are
actually being used for that purpose), and without consent.
(6) This section does not authorise, without
consent, the entry or inspection of—
(a) premises
that are apparently unattended, unless the officer believes on reasonable
grounds that the premises are not unattended; or
(b) premises
that are, or any part of premises that is, used predominantly for residential
purposes.
(7) Without limiting the above, the power to
inspect premises under this section includes any or all of the following:
(a) the
power to inspect and take copies of or extracts from any records located at the
premises and required to be kept under an Australian road law or under an
approved road transport compliance scheme;
(b) the
power to check the existence of and inspect any devices (including weighing,
measuring, recording or monitoring devices) required to be installed, used or
maintained under an Australian road law or under an approved road transport
compliance scheme, and to inspect and take copies of or extracts from any
readout or other data obtained from any such device;
(c) the
power to exercise with respect to a vehicle located at the premises any powers
that may be exercised during an inspection of a vehicle under
section 40Q(5);
(d) the
power to use photocopying equipment on the premises free of charge for the
purpose of copying any records or other material.
(8) This section does not authorise the use of
force, but the officer may under this section do any or all of the following:
(a) open
unlocked doors and other unlocked panels and objects;
(b) inspect
anything that has been opened or otherwise accessed under the power to use
reasonable force in the exercise of a power to enter or move a vehicle under
Subdivision 3;
(c) move
but not take away anything that is not locked up or sealed.
40T—Power to
search premises
(1) This section applies to the following
premises:
(a) premises
at or from which a responsible person carries on business, or that are occupied
by a responsible person in connection with such a business, or that are a
registered office of a responsible person;
(b) the
garage address of a vehicle;
(c) the
base of the driver or drivers of a vehicle;
(d) premises
where records required to be kept under an Australian road law or under an
approved road transport compliance scheme are located or where any such records
are required to be located;
(e) premises
where the officer concerned believes on reasonable grounds that—
(i) a
vehicle is or has been located; or
(ii) transport
documentation or journey documentation is located.
(2) An authorised officer or police officer may
search premises for compliance purposes, if the officer believes on reasonable
grounds—
(a) that
there may be at the premises records, devices or other things that may provide
evidence of an Australian road law offence or of the commission of a breach of
an approved road transport compliance scheme; or
(b) that—
(i) a
vehicle has been or may have been involved in an accident; and
(ii) the
vehicle is connected with the premises.
(3) For the purposes of this section, a vehicle
is connected with the premises if—
(a) the
premises are the garage address of the vehicle; or
(b) the
vehicle is, or has within the past 72 hours been, located at the premises; or
(c) the
premises are or may be otherwise connected (directly or indirectly) with the
vehicle or any part of its equipment or load.
(4) The
officer may form the necessary belief during or after an inspection or
independently of an inspection.
(5) The
officer may enter the premises for the purpose of conducting the search.
(6) Without
limiting the above, the officer may search, or enter and search, any vehicle at
the premises.
(7) The search may be conducted—
(a) at
any time under the authority of a warrant under this Act; or
(b) at
any time with the consent of the occupier or other person apparently in charge
of the premises; or
(c) if
a business is carried on at the premises—at any time during the ordinary business
hours applicable at the premises (whether or not the premises are actually
being used at that time for that purpose), and without a warrant and without
the consent of the occupier or other person apparently in charge of the
premises or any other person; or
(d) if
the officer believes on reasonable grounds that subsection (2)(b) applies—at
any time, and without a warrant and without the consent of the occupier or
other person apparently in charge of the premises or any other person.
(8) This section does not authorise, without a
warrant or consent, the entry or searching of—
(a) premises
that are unattended, unless the officer believes on reasonable grounds that the
premises are not unattended; or
(b) premises
that are, or any part of premises that is, used predominantly for residential
purposes.
(9) Without limiting the above, the power to
search premises under this section includes any or all of the following:
(a) the
power to search for evidence of an Australian road law offence or a breach of
an approved road transport compliance scheme;
(b) the
power to search for and inspect any records, devices or other things that
relate to a vehicle or any part of its equipment or load and that are located
at the premises;
(c) the
power to take copies of or extracts from any or all of the following:
(i) any
records that are located at the premises and are required to be kept under an
Australian road law or under an approved road transport compliance scheme;
(ii) any
transport documentation or journey documentation located at the premises;
(iii) any
other records, or any readout or other data obtained from any device or thing,
located at the premises that the officer believes on reasonable grounds
provide, or may on further inspection provide, evidence of an Australian road
law offence or a breach of an approved road transport compliance scheme;
(d) the
power to use photocopying equipment on the premises free of charge for the
purpose of copying any records or other material;
(e) the
power to exercise with respect to a vehicle located at the premises any powers
that may be exercised during a search of a vehicle under section 40R(6);
(f) any
powers that may be exercised during an inspection of premises under
section 40S(7).
(10) The
power to search premises under this section does not include a power to search
a person.
(11) The
officer may seize and remove any records, devices or other things from the
premises that the officer believes on reasonable grounds provide, or may on
further inspection provide, evidence of an Australian road law offence or a
breach of an approved road transport compliance scheme.
(12) The
officer may use reasonable force in the exercise of powers under this section.
40U—Residential
purposes
For the purposes of this Subdivision, premises are, or any part of
premises is, taken not to be used for residential purposes merely because
temporary or casual sleeping or other accommodation is provided there for
drivers of vehicles.
Subdivision
5—Other directions
40V—Direction
to give name and other personal details
(1) In this section—
personal details, in relation to a person, means—
(a) the
person’s full name; and
(b) the
person’s date of birth; and
(c) the
address of where the person is living; and
(d) the
address of where the person usually lives; and
(e) the
person’s business address.
(2) If an authorised officer or police officer
suspects on reasonable grounds that a natural person whose personal details are
unknown to the officer—
(a) is
or may be a responsible person; or
(b) has
committed or is committing or is about to commit an Australian road law
offence; or
(c) may
be able to assist in the investigation of an Australian road law offence or a
suspected Australian road law offence; or
(d) is
or may be the driver or other person in charge of a vehicle that has been or
may have been involved in an accident,
the officer may direct the person to give the officer then and
there any or all of the person’s personal details.
(3) If
an authorised officer or police officer suspects on reasonable grounds that a
personal detail given by a person in response to a direction is false or
misleading, the officer may direct the person to produce evidence then and
there of the correctness of the detail.
(4) A person commits an offence if—
(a) the
person is subject to a direction under subsection (2) or (3); and
(b) the
person—
(i) engages
in conduct that results in a contravention of the direction; or
(ii) gives
any detail that is false or misleading in a material particular in purported
response to the direction; or
(iii) produces any evidence that is false or
misleading in a material particular in purported response to the direction.
Penalty: $5 000.
(5) Subsection (4)(b)(iii)
does not apply if the person has a reasonable excuse.
(6) In proceedings for an offence of
contravening a direction under subsection (2) in relation to a failure to
state a business address, it is a defence if the person charged establishes
that—
(a) the
person did not have a business address; or
(b) the
person’s business address was not connected (directly or indirectly) with road
transport involving vehicles.
40W—Direction
to produce records, devices or other things
(1) An authorised officer or police officer
may, for compliance purposes, direct any responsible person to produce—
(a) any
records required to be kept under an Australian road law; or
(b) any
records comprising transport documentation or journey documentation in the
person’s possession or under the person’s control; or
(c) any
records, or any devices or other things that contain or may contain records, in
the person’s possession or under the person’s control relating to or indicating—
(i) the
use, performance or condition of a vehicle; or
(ii) ownership,
insurance or registration of a vehicle; or
(iii) any
load or equipment carried or intended to be carried by a vehicle (including
insurance of any such load or equipment); or
(d) any
records, or any devices or other things that contain or may contain records, in
the person’s possession or under the person’s control demonstrating that a
vehicle’s garage address recorded in the relevant register is or is not the
vehicle’s actual garage address.
(2) The direction must—
(a) specify—
(i) the
records, devices or other things; or
(ii) the
classes of records, devices or other things,
that are to be produced; and
(b) state
where, when and to whom the records, devices or other things are to be
produced.
(3) The officer may do any or all of the
following:
(a) inspect
records, devices or other things that are produced;
(b) make
copies of, or take extracts from, records, devices or other things that are
produced;
(c) seize
and remove records, devices or other things that are produced that the officer
believes on reasonable grounds may on further inspection provide evidence of an
Australian road law offence.
(4) A person commits an offence if—
(a) the
person is subject to a direction under subsection (1); and
(b) the person engages in conduct that results
in a contravention of the direction.
Penalty: $5 000.
(5) Subsection (4)
does not apply if the person has a reasonable excuse.
40X—Direction
to provide information
(1) An
authorised officer or police officer may, for compliance purposes, direct a
responsible person to provide information to the officer about a vehicle or any
load or equipment carried or intended to be carried by a vehicle.
(2) Without limiting the above, a direction under
subsection (1) may require a responsible person who is associated with a
particular vehicle to do any or all of the following:
(a) to
state the name, home address and business address of—
(i) other
responsible persons of specified types who are associated with the vehicle; and
(ii) if
so requested, in the case of a combination, the registered operator of each
vehicle in the combination;
(b) to
provide information about the current or intended trip of the vehicle,
including—
(i) the
location of the start or intended start of the trip; and
(ii) the
route or intended route of the trip; and
(iii) the
location of the destination or intended destination of the trip.
(3) A person commits an offence if—
(a) the
person is subject to a direction under subsection (1); and
(b) the
person—
(i) engages
in conduct that results in a contravention of the direction; or
(ii) the person provides any information that is
false or misleading in a material particular in purported response to the
direction.
Penalty: $10 000.
(4) In
proceedings for an offence of contravening a direction under
subsection (1), it is a defence if the person charged establishes that the
person did not know and could not be reasonably expected to know or ascertain
the required information.
(5) In proceedings for an offence of
contravening a direction under subsection (1) in relation to a failure to
state another person’s business address, it is a defence if the person charged
establishes that—
(a) the
other person did not have a business address; or
(b) the
other person’s business address was not connected (directly or indirectly) with
road transport involving vehicles.
40Y—Direction
to provide reasonable assistance for powers of inspection and search
(1) An
authorised officer or police officer may direct a responsible person to provide
assistance to the officer to enable the officer effectively to exercise a power
under Subdivision 4.
(2) Without limiting the above, the assistance
may include helping the officer to do any or all of the following:
(a) to
find and gain access to any records or information, including, but not limited
to, electronically stored information;
(b) to
weigh or measure—
(i) the
whole or any part of a vehicle, including an axle or axle group; or
(ii) the
whole or any part of its equipment or load;
(c) to
operate equipment or facilities for a purpose relevant to the power being or
proposed to be exercised;
(d) to
provide access free of charge to photocopying equipment for the purpose of
copying any records or other material.
(3) This
section authorises the giving of a direction to run the engine of a vehicle,
but not otherwise to drive the vehicle.
(4) A direction—
(a) can
only be given in relation to a power under Subdivision 4 (the principal
power) while the principal power can lawfully be exercised; and
(b) ceases
to be operative if the principal power ceases to be exercisable.
(5) A person commits an offence if—
(a) the
person is subject to a direction under subsection (1); and
(b) the person engages in conduct that results
in a contravention of the direction.
Penalty: $10 000.
(6) Subsection (5) does not apply if—
(a) the
direction is unreasonable; or
(b) without
limiting the above, the direction or its subject-matter is outside the scope of
the business or other activities of the person.
(7) If the responsible person to whom a
direction to run the engine of a vehicle is given under this section fails to
comply with the direction or no responsible person is available or willing to
do so, the officer may—
(a) enter
the vehicle and run its engine; or
(b) authorise
any other person to do so.
40Z—Provisions
relating to running engine
(1) This section applies to a person (the authorised
person) who is—
(a) a
responsible person to whom a direction is given by an officer under
section 40Y; or
(b) an
officer authorised by section 40Y(7) to run the engine of a vehicle; or
(c) a
person authorised by an officer under section 40Y(7) to run the engine of
a vehicle.
(2) The
authorised person may run the engine even though the person is not qualified to
drive the vehicle, if the officer believes on reasonable grounds that there is
no other person in, on or in the vicinity of the vehicle who is more capable of
running the engine than the authorised person and who is fit and willing to run
the engine.
(3) The
authorised person may use reasonable force in complying with the direction to
run the engine or when acting under the authority of section 40Y(7) to run
the engine.
(4) It
is immaterial that the authorised person is not authorised to run the engine.
(5) The
authorised person is, in complying with the direction to run the engine or when
acting under the authority of section 40Y(7) to run the engine, exempt
from any other road law to the extent that the other law would require him or
her to be licensed or otherwise authorised to do so.
41—Manner of
giving directions under Subdivision
(1) A
direction under this Subdivision may be given orally, in writing or in any
other manner.
(2) A
direction not given in person may be sent or transmitted by post, telephone,
facsimile, electronic mail, radio or in any other manner.
41A—Directions
to state when to be complied with
(1) If
given orally, a direction under this Subdivision must state whether it is to be
complied with then and there or within a specified period.
(2) If
given in writing, a direction under this Subdivision must state the period
within which it is to be complied with.
Subdivision
6—Warrants
41B—Warrants
(1) This section applies if an authorised
officer or police officer believes on reasonable grounds that—
(a) there
may be at particular premises, then or within the next 72 hours, records,
devices or other things that may provide evidence of an Australian road law
offence; or
(b) a
vehicle has been or may have been involved in an accident and—
(i) the
vehicle is or has been located at particular premises; or
(ii) particular
premises are or may be otherwise connected (directly or indirectly) with the
vehicle or any part of its equipment or load.
(2) The
officer may apply to a magistrate for a warrant authorising the officer to
exercise a power to enter and search the premises under section 40T.
(3) An
application for a warrant may be made personally or by telephone or other means
authorised under the regulations.
(4) A
magistrate may, on an application for a warrant under this section, issue the
warrant if satisfied that the warrant is reasonably required in the
circumstances.
(5) A warrant under this section—
(a) must
specify—
(i) the
person authorised to exercise the powers conferred by the warrant; and
(ii) the
period for which the warrant will be in force (being a period not longer than
90 days); and
(b) may
contain conditions and limitations; and
(c) may,
on application by the person named in the warrant, be varied or renewed (and
the provisions of this Act will apply in relation to such an application in the
same way as if it were an application for the issue of a warrant).
(6) The
Governor may make regulations governing the making of applications and the
issuing of warrants under this section.
Subdivision
7—Other provisions regarding inspections and searches
41C—Use of
assistants and equipment
(1) An
authorised officer or police officer may exercise powers under this Division
with the aid of such assistants and equipment as the officer considers
reasonably necessary in the circumstances.
(2) Powers
that may be exercised by an authorised officer or police officer under this
Division may be exercised by an assistant authorised and supervised by the
officer, but only if the officer considers that it is reasonably necessary in
the circumstances that the powers be exercised by an assistant.
41D—Use of
equipment to examine or process things
(1) Without
limiting section 41C, an authorised officer or police officer exercising a
power under this Division may bring to, or onto, a vehicle or premises any
equipment reasonably necessary for the examination or processing of things
found in, on or at the vehicle or premises in order to determine whether they
are things that may be seized.
(2) If—
(a) it
is not practicable to examine or process the things at the vehicle or premises;
or
(b) the
occupier of the vehicle or premises consents in writing,
the things may be moved to another place so that the examination
or processing can be carried out in order to determine whether they are things
that may be seized.
(3) The officer, or a person assisting the
officer, may operate equipment already in, on or at the vehicle or premises to
carry out the examination or processing of a thing found in, on or at the
vehicle or premises in order to determine whether it is a thing that may be
seized, if the officer or person assisting believes on reasonable grounds that—
(a) the
equipment is suitable for the examination or the processing; and
(b) the
examination or processing can be carried out without damage to the equipment or
the thing.
41E—Use or
seizure of electronic equipment
(1) If—
(a) a
thing found in, on or at a vehicle or premises is, or includes, a disk, tape or
other device for the storage of information; and
(b) equipment
in, on or at the vehicle or premises may be used with the disk, tape or other
storage device; and
(c) the
authorised officer or police officer concerned believes on reasonable grounds
that the information stored on the disk, tape or other storage device is
relevant to determine whether a relevant law or scheme has been contravened,
the officer or a person assisting the officer may operate the
equipment to access the information.
(2) If the officer or a person assisting the
officer finds that a disk, tape or other storage device in, on or at the
vehicle or premises contains information of a kind referred to in
subsection (1)(c), he or she may—
(a) put
the information in documentary form and seize the documents so produced; or
(b) copy
the information to another disk, tape or other storage device and remove that
storage device from the vehicle or premises; or
(c) if
it is not practicable to put the information in documentary form or to copy the
information, seize the disk, tape or other storage device and the equipment
that enables the information to be accessed.
(3) An
officer or a person assisting an officer must not operate or seize equipment
for the purpose mentioned in this section unless the officer or person
assisting believes on reasonable grounds that the operation or seizure of the
equipment can be carried out without damage to the equipment.
Subdivision
8—Other provisions regarding seizure
41F—Receipt
for and access to seized material
If a record, device or other thing is
seized and removed under this Division, the authorised officer or police
officer concerned must—
(a) give
a receipt for it to the person from whom it is seized and removed; and
(b) if
practicable, allow the person who would normally be entitled to possession of it
reasonable access to it.
41G—Embargo
notices
(1) This section applies if—
(a) an
authorised officer or police officer is authorised to seize any record, device
or other thing under this Division; and
(b) the
record, device or other thing cannot, or cannot readily, be physically seized
and removed.
(2) The
officer may issue an embargo notice under this section.
(3) An
embargo notice is a notice forbidding the movement, sale,
leasing, transfer, deletion of information from or other dealing with the record,
device or other thing, or any part of it, without the written consent of the
officer, the Minister or the Commissioner of Police.
(4) The embargo notice—
(a) must
be in the form, or contain the particulars, required by the regulations; and
(b) must
list the activities that it forbids; and
(c) must
set out a copy of subsections (6) and (8).
(5) The officer may issue the notice—
(a) by
causing a copy of the notice to be served on the occupier of the vehicle or
premises concerned; or
(b) if
that person cannot be located after all reasonable steps have been taken to do
so, by affixing a copy of the notice to the record, device or other thing in a
prominent position.
(6) A person commits an offence if—
(a) the
person knows that an embargo notice relates to a record, device or other thing;
and
(b) the
person—
(i) does
anything that is forbidden by the notice under this section; or
(ii) instructs any other person to do anything
that is forbidden by the notice under this section or to do anything that the
person is forbidden to do by the notice.
Penalty: $10 000.
(7) It is a defence to a prosecution for an
offence against subsection (6) to establish that the person charged—
(a) moved
the record, device or other thing, or part of it, for the purpose of protecting
or preserving it; or
(b) notified
the officer who issued the notice of the move, and of the new location of the
record, device or other thing or part of it, within 48 hours after the move.
(8) A person commits an offence if—
(a) an
embargo notice has been served on the person; and
(b) the person fails to take reasonable steps
to prevent any other person from doing anything forbidden by the notice.
Penalty: $10 000.
(9) Despite
anything in any other Act, a sale, lease or transfer or other dealing with a
record, device or other thing, or part of it, in contravention of this section
is void.
Subdivision
9—Miscellaneous
41H—Power to
use force against persons to be exercised only by police officers
A provision of this Division that authorises a person to use
reasonable force does not authorise a person who is not a police officer to use
force against a person.
41I—Various
powers may be exercised on same occasion
An authorised officer or police officer may exercise various
powers under road laws on the same occasion, whether the exercise of the powers
is for the same purpose or different purposes and whether the opportunity to
exercise one power arises only as a result of the exercise of another power.
41J—Restoring
vehicle or premises to original condition after action taken
If—
(a) an
authorised officer or police officer or a person authorised by the officer
takes any action in the exercise or purported exercise of any power under this
Division in relation to a vehicle or its equipment or load or in relation to
any premises; and
(b) damage
was caused by the unreasonable exercise of the power or by the use of force
that was not authorised under this Division,
the officer must take reasonable steps to return the vehicle,
equipment, load or premises to the condition it was in immediately before the
action was taken.
41K—Self-incrimination
(1) It
is not an excuse for a person to refuse or fail to provide or produce any information,
document, record, device or other thing in compliance with a direction under
this Division on the ground that to do so might tend to incriminate the person
or make the person liable to a penalty.
(2) If compliance by a natural person with a
direction under this Division to provide or produce any information, document,
record, device or other thing might tend to incriminate the person or make the
person liable to a penalty, then—
(a) in
the case of a person who is directed to produce any document, record, device or
other thing—the fact of production (as distinct from the contents of the
document, record, device or other thing); or
(b) in
any other case—the information provided in compliance with the direction,
is not admissible in evidence against the person in proceedings
for an offence or for the imposition of a penalty (other than proceedings in
respect of the making of a false or misleading statement).
41L—Providing
evidence to other authorities
Any records, devices or other things seized under this Act, or any
information obtained under this Act, may, for the purposes of law enforcement,
be given to any public authority of any jurisdiction (including any
corresponding Authority) considered appropriate by the Minister or the
Commissioner of Police, but only after consultation with the public authority
concerned.
41M—Obstructing
or hindering authorised officers or police officers
A person commits an offence if—
(a) an
authorised officer or police officer is exercising a power under a road law;
and
(b) the person obstructs or hinders the officer
in the exercise of the power.
Penalty: $10 000.
41N—Impersonating
authorised officers
A person commits an offence if the person
impersonates an authorised officer.
Penalty: $10 000.
41O—Division
not to affect other powers
This Division does not derogate from any other law that confers
powers on an authorised officer or police officer.
Part 2A—Mutual
recognition and corresponding road laws
41P—Effect
of administrative actions of authorities of other jurisdictions
(1) In this section—
administrative action means an action of an administrative nature, as in force
from time to time;
administrative authority means—
(a) a
corresponding Authority; or
(b) a
person holding an office constituted by or under the law of another
jurisdiction and prescribed by the regulations; or
(c) a
body constituted by or under the law of another jurisdiction and prescribed by
the regulations.
(2) An
administrative action of an administrative authority under or in connection
with a corresponding road law has the same effect in this State as it has in
the other jurisdiction.
(3) Nothing in this section gives an
administrative action effect in this State or in a particular place in this
State—
(a) in
so far as the action is incapable of having effect in or in relation to this
State or that place; or
(b) if
any terms of the action expressly provide that the action does not extend or
apply to or in relation to this State or that place; or
(c) if
any terms of the action expressly provide that the action has effect only in
the other jurisdiction or a specified place in the other jurisdiction.
(4) This
section applies only to administrative actions of kinds prescribed by the
regulations.
41Q—Effect
of court orders of other jurisdictions
(1) In this section—
order means an order in any judicial or other proceedings, civil or
criminal, as in force from time to time.
(2) An
order of a court or tribunal of another jurisdiction under or in connection
with a corresponding road law has the same effect in this State as it has in
the other jurisdiction.
(3) Nothing in this section gives an order
effect in this State or in a particular place in this State—
(a) in
so far as the order is incapable of having effect in or in relation to this
State or that place; or
(b) if
any terms of the order expressly provide that the order does not extend or
apply to or in relation to this State or that place; or
(c) if
any terms of the order expressly provide that the order has effect only in the
other jurisdiction or a specified place in the other jurisdiction.
(4) This
section applies only to orders of kinds prescribed by the regulations.
15—Repeal of Part 3 Division 1
Part 3 Division 1—delete Division 1
Section 47EAB—delete the section
Section 86—delete the section
Section 106—delete the section
19—Amendment of section 107—Damage to road infrastructure
Section 107—after its present contents
(now to be designated as subsection (1)) insert:
(2) A
person must not remove or interfere with road infrastructure or damage it in
any way other than through reasonable use.
(3) A
person who damages road infrastructure other than through reasonable use must
immediately report full particulars of the damage to a police officer or road
authority.
Section 110AAD—delete the section
Section 112—delete the section:
Section 114—delete the section
23—Amendment of section 115—Standard form conditions for oversize or overmass vehicle exemptions
Section 115(7)—delete subsection (7)
24—Insertion of Part 4 Divisions 3A and 3B
After section 115 insert:
Division 3A—Provisions
relating to breaches of vehicle standards or maintenance requirements
116—Meaning
of breach of vehicle standards or maintenance requirement
(1) For the purposes of this Act, there is a breach
of a vehicle standards or maintenance requirement if—
(a) a
vehicle is driven on a road; and
(b) the
vehicle—
(i) does
not comply with a requirement of the vehicle standards; or
(ii) has
not been maintained in a safe condition; or
(iii) has
not been maintained with an emission control system fitted to it of each kind
that was fitted to it when it was built and in a condition that ensures that
each emission control system fitted to it continues operating essentially in
accordance with the system's original design; or
(iv) does
not comply with the requirements of section 162A.
(2) For
the purposes of this section, a vehicle is not maintained in a safe
condition if driving the vehicle would endanger the person driving the
vehicle, anyone else in or on the vehicle or a vehicle attached to it or other
road users.
(3) This
section does not apply to vehicles excluded by the vehicle standards from the
application of those standards.
117—Liability
of driver
(1) A person commits an offence if—
(a) there
is a breach of a vehicle standards or maintenance requirement; and
(b) the person is the driver of the vehicle
concerned.
Penalty: $2 500.
(2) It is a defence to a charge for an offence
against this section if the person charged establishes that the person—
(a) did
not cause or contribute to the condition of the vehicle and had no
responsibility for or control over the maintenance of the vehicle at any
relevant time; and
(b) did
not know and could not reasonably be expected to have known of the condition of
the vehicle; and
(c) could
not reasonably be expected to have sought to ascertain whether there were or
were likely to be deficiencies in the vehicle.
118—Liability
of operator
(1) A person commits an offence if—
(a) there
is a breach of a vehicle standards or maintenance requirement; and
(b) the person is the operator of the vehicle
concerned.
Penalty: $2 500.
(2) It is a defence to a charge for an offence
against this section if the person charged establishes that the vehicle was
being used at the relevant time by—
(a) another
person not entitled (whether by express or implied authority or otherwise) to
use it, other than an employee or agent of the person; or
(b) by
an employee of the person who was acting at the relevant time outside the scope
of the employment; or
(c) by
an agent of the person who was acting at the relevant time outside the scope of
the agency.
Division 3B—Provisions
relating to breaches of mass, dimension and load restraint requirements
Subdivision
1—Preliminary
119—Meaning
of breach of mass, dimension or load restraint requirement
(1) For the purposes of this Act, there is a breach
of a mass, dimension or load restraint requirement if—
(a) a
vehicle is driven on a road (whether in this State or another jurisdiction);
and
(b) the
vehicle does not comply with a mass, dimension or load restraint requirement.
(2) For the purposes of this Act, there is a breach
of a mass, dimension or load restraint requirement in this State if—
(a) a
vehicle is driven on a road in this State; and
(b) the
vehicle does not comply with a mass, dimension or load restraint requirement
that is a law of this State.
(3) For the purposes of this Act, there is a breach
of a mass, dimension or load restraint requirement in another jurisdiction
if—
(a) a
vehicle is driven on a road in another jurisdiction; and
(b) the
vehicle does not comply with a mass, dimension or load restraint requirement
that is a law of the other jurisdiction.
120—Meaning
of minor, substantial or severe risk breaches
(1) For
the purposes of this Act, a breach of a mass, dimension or load restraint
requirement is a minor risk breach if the breach is categorised
as a minor risk breach under the regulations.
(2) For
the purposes of this Act, a breach of a mass, dimension or load restraint
requirement is a substantial risk breach if the breach is
categorised as a substantial risk breach under the regulations.
(3) For
the purposes of this Act, a breach of a mass, dimension or load restraint
requirement is a severe risk breach if the breach is categorised
as a severe risk breach under the regulations.
Subdivision
2—Reasonable steps defence
121—Reasonable
steps defence
(1) If a provision of this Division states that
a person has the benefit of the reasonable steps defence for an
offence, it is a defence to a charge for the offence concerned if the person
charged establishes that—
(a) the
person did not know, and could not reasonably be expected to have known, of the
contravention concerned; and
(b) either—
(i) the
person had taken all reasonable steps to prevent the contravention; or
(ii) there
were no steps that the person could reasonably be expected to have taken to
prevent the contravention.
(2) Without limiting the above, in determining
whether things done or omitted to be done by the person charged constitute
reasonable steps, a court may have regard to—
(a) the
circumstances of the alleged offence, including (if relevant) the risk category
to which the breach concerned belongs; and
(b) without
limiting paragraph (a), the measures available and measures taken for any
or all of the following:
(i) to
accurately and safely weigh or measure the vehicle or its load or to safely
restrain the load in or on the vehicle;
(ii) to
provide and obtain sufficient and reliable evidence from which the weight or
measurement of the vehicle or its load might be calculated;
(iii) to
manage, reduce or eliminate a potential breach arising from the location of the
vehicle, or from the location of the load in or on the vehicle, or from the
location of goods in the load;
(iv) to
manage, reduce or eliminate a potential breach arising from weather and
climatic conditions, or from potential weather and climatic conditions,
affecting or potentially affecting the weight or measurement of the load;
(v) to
exercise supervision or control over others involved in activities leading to
the breach; and
(c) the
measures available and measures taken for any or all of the following:
(i) to
include compliance assurance conditions in relevant commercial arrangements with
other responsible persons;
(ii) to
provide information, instruction, training and supervision to employees to
enable compliance with relevant laws;
(iii) to
maintain equipment and work systems to enable compliance with relevant laws;
(iv) to
address and remedy similar compliance problems that may have occurred in the
past; and
(d) whether
the person charged had, either personally or through an agent or employee,
custody or control of the vehicle, or of its load, or of any of the goods
included or to be included in the load; and
(e) the
personal expertise and experience that the person charged had or ought to have
had or that an agent or employee of the person charged had or ought to have
had.
(3) If
the person charged establishes that the person had complied with all relevant
standards and procedures under a registered industry code of practice with
respect to matters to which the breach relates, proof of compliance (as so
established by the person) constitutes prima facie evidence that the person
charged had taken reasonable steps to prevent the contravention.
(4) Subsection (3)
is not available unless the person charged has served notice of intention to
establish the matters referred to in that subsection on the prosecution at
least 28 days before the day on which the matter is set down for hearing.
122—Reasonable
steps defence—reliance on container weight declaration
(1) This
section applies if the operator or driver of a vehicle is charged with an
offence relating to a breach of a mass limit and is seeking to establish the
reasonable steps defence in relation to the offence.
(2) To the extent that the weight of a freight
container together with its contents is relevant to the offence, the person
charged may rely on the weight stated in the relevant container weight
declaration, unless it is established that the person knew or ought reasonably
to have known that—
(a) the
stated weight was lower than the actual weight; or
(b) the
distributed weight of the container and its contents, together with—
(i) the
mass or location of any other load in or on the vehicle; or
(ii) the
mass of the vehicle or any part of it,
would cause one or more breaches of mass limits.
Subdivision
3—Liability for breaches of mass, dimension or load restraint requirements
123—Liability
of driver
(1) A person commits an offence if—
(a) there
is a breach of a mass, dimension or load restraint requirement in this State;
and
(b) the
person is the driver of the vehicle concerned.
(2) If
the breach concerned is a minor risk breach, the person charged has the benefit
of the reasonable steps defence for an offence against this section.
(3) If
the breach concerned is a substantial risk breach or a severe risk breach, the
person charged has the benefit of the reasonable steps defence for an offence
against this section, but only so far as it relates to reliance on the weight
stated in a container weight declaration.
124—Liability
of operator
(1) A person commits an offence if—
(a) there
is a breach of a mass, dimension or load restraint requirement; and
(b) the
person is the operator of the vehicle concerned.
(2) This section applies to—
(a) a
breach of a mass, dimension or load restraint requirement in this State; or
(b) a
breach of a mass, dimension or load restraint requirement in another
jurisdiction if the journey of the vehicle during which the breach occurs
resulted from action taken by the person as the operator of the vehicle in this
State.
(3) If
the breach concerned is a minor risk breach, the person charged has the benefit
of the reasonable steps defence for an offence against this section.
(4) If
the breach concerned is a substantial risk breach or a severe risk breach, the
person charged has the benefit of the reasonable steps defence for an offence
against this section, but only so far as it relates to reliance on the weight
stated in a container weight declaration.
(5) It is a defence to a charge for an offence
against this section if the person charged establishes that the vehicle was
being used at the relevant time by—
(a) another
person not entitled (whether by express or implied authority or otherwise) to
use it, other than an employee or agent of the person; or
(b) by
an employee of the person who was acting at the relevant time outside the scope
of the employment; or
(c) by
an agent of the person who was acting at the relevant time outside the scope of
the agency.
125—Liability
of consignor
(1) This
section applies to the transport of goods by a heavy vehicle by road.
(2) A person commits an offence if—
(a) there
is a breach of a mass, dimension or load restraint requirement; and
(b) the
person is the consignor of any goods that are in or on the vehicle concerned.
(3) Subsection (2) applies to—
(a) a
breach of a mass, dimension or load restraint requirement in this State; or
(b) a
breach of a mass, dimension or load restraint requirement in another
jurisdiction if the person is the consignor of the goods—
(i) because
of action taken by the person in this State; or
(ii) because
the person had possession of, or control over, the goods in this State
immediately before their transport by road.
(4) A person commits an offence if—
(a) the
weight of a freight container containing goods consigned for road transport
exceeds the maximum gross weight as marked on the container or on the container’s
safety approval plate; and
(b) the
person is the consignor of any of the goods contained in the freight container.
(5) Subsection (4) applies to—
(a) the
transport of the freight container in this State; or
(b) the
transport of the freight container in another jurisdiction if the person is the
consignor of the goods—
(i) because
of action taken by the person in this State; or
(ii) because
the person had possession of, or control over, the goods in this State
immediately before their transport by road.
(6) The
person charged has the benefit of the reasonable steps defence for an offence
against this section.
(7) Proceedings
for an offence against this section may be commenced at any time within 2 years
after the date of the alleged commission of the offence or, with the
authorisation of the Attorney-General, at any later time within 3 years after
the date of the alleged commission of the offence.
(8) An
apparently genuine document purporting to be signed by the Attorney-General
authorising the commencement of proceedings for an offence against this section
must be accepted in legal proceedings, in the absence of proof to the contrary,
as proof of the authorisation.
126—Liability
of packer
(1) This
section applies to the transport of goods by a heavy vehicle by road.
(2) A person commits an offence if—
(a) there
is a breach of a mass, dimension or load restraint requirement; and
(b) the
person is the packer of any goods that are in or on the vehicle concerned.
(3) Subsection (2) applies to—
(a) a
breach of a mass, dimension or load restraint requirement in this State; or
(b) a
breach of a mass, dimension or load restraint requirement in another
jurisdiction if the person is the packer of the goods because of action taken
by the person in this State.
(4) A person commits an offence if—
(a) the
weight of a freight container containing goods consigned for road transport
exceeds the maximum gross weight as marked on the container or on the container’s
safety approval plate; and
(b) the
person is the packer of any of the goods contained in the freight container.
(5) Subsection (4) applies to—
(a) the
transport of the freight container in this State; or
(b) the
transport of the freight container in another jurisdiction if the person is the
packer of the goods because of action taken by the person in this State.
(6) The
person charged has the benefit of the reasonable steps defence for an offence
against this section.
(7) Proceedings
for an offence against this section may be commenced at any time within 2 years
after the date of the alleged commission of the offence or, with the
authorisation of the Attorney-General, at any later time within 3 years after
the date of the alleged commission of the offence.
(8) An
apparently genuine document purporting to be signed by the Attorney-General
authorising the commencement of proceedings for an offence against this section
must be accepted in legal proceedings, in the absence of proof to the contrary,
as proof of the authorisation.
127—Liability
of loader
(1) This
section applies to the transport of goods by a heavy vehicle by road.
(2) A person commits an offence if—
(a) there
is a breach of a mass, dimension or load restraint requirement; and
(b) the
person is the loader of any goods that are in or on the vehicle concerned.
(3) This section applies to—
(a) a
breach of a mass, dimension or load restraint requirement in this State; or
(b) a
breach of a mass, dimension or load restraint requirement in another
jurisdiction if the person is the loader of the goods because of action taken
by the person in this State.
(4) The
person charged has the benefit of the reasonable steps defence for an offence
against this section.
(5) Proceedings
for an offence against this section may be commenced at any time within 2 years
after the date of the alleged commission of the offence or, with the
authorisation of the Attorney-General, at any later time within 3 years after
the date of the alleged commission of the offence.
(6) An
apparently genuine document purporting to be signed by the Attorney-General
authorising the commencement of proceedings for an offence against this section
must be accepted in legal proceedings, in the absence of proof to the contrary,
as proof of the authorisation.
128—Liability
of consignee
(1) This
section applies to the transport of goods by a heavy vehicle by road.
(2) A person commits an offence if—
(a) there
is a breach of a mass, dimension or load restraint requirement; and
(b) the
person is the consignee of any goods that are in or on the vehicle concerned;
and
(c) the
person engaged in conduct that resulted or was likely to result in inducing or
rewarding the breach; and
(d) the
person intended or was reckless or negligent as to whether there would be that
result.
(3) This section applies to—
(a) a
breach of a mass, dimension or load restraint requirement in this State; or
(b) a
breach of a mass, dimension or load restraint requirement in another
jurisdiction if the person engaged in conduct in this State that resulted or
was likely to result in inducing or rewarding the breach.
(4) Proceedings
for an offence against this section may be commenced at any time within 2 years
after the date of the alleged commission of the offence or, with the
authorisation of the Attorney-General, at any later time within 3 years after
the date of the alleged commission of the offence.
(5) An
apparently genuine document purporting to be signed by the Attorney-General
authorising the commencement of proceedings for an offence against this section
must be accepted in legal proceedings, in the absence of proof to the contrary,
as proof of the authorisation.
129—Penalties
for offences against Subdivision
(1) The penalty for an offence against this
Subdivision involving a heavy vehicle is as follows:
Offence |
Penalty if first offence by natural
person against provision concerned |
Penalty if subsequent offence by
natural person against provision concerned |
Penalty if first offence by body
corporate against provision concerned |
Penalty if subsequent offence by body
corporate against provision concerned |
Offence involving minor risk breach of mass, dimension or load
restraint requirement (not being offence against section 128) |
Maximum $1 250 |
Maximum $2 500; minimum $300 |
Maximum $5 000 |
Maximum $10 000; minimum $300 |
Offence involving substantial risk breach of mass, dimension or
load restraint (not being offence against section 128) |
Maximum $2 500 |
Maximum $5 000; minimum $600 |
Maximum $10 000 |
Maximum $20 000; minimum $600 |
Offence involving severe risk breach of mass limit (not being
offence against section 128) |
Maximum $5 000 plus maximum $500 for each additional 1%
over 120% overload |
Maximum $10 000 plus maximum $1 000 for each
additional 1% over 120% overload; minimum $2 000 plus minimum $200 for
each additional 1% over 120% overload |
Maximum $20 000 plus maximum $2 500 for each
additional 1% over 120% overload |
Maximum $50 000 plus maximum $5 000 for each
additional 1% over 120% overload; minimum $2 000 plus minimum $200 for
each additional 1% over 120% overload |
Any other offence involving severe risk breach of mass,
dimension or load restraint requirement (not being offence against
section 128) |
Maximum $5 000 |
Maximum $10 000; minimum $2 000 |
Maximum $20 000 |
Maximum $50 000; minimum $2 000 |
Offence against section 125(4), 126(4) or 128 |
Maximum $5 000 |
Maximum $10 000; minimum $2 000 |
Maximum $20 000 |
Maximum $50 000; minimum $2 000 |
(2) The penalty for an offence against this
Subdivision involving a vehicle other than a heavy vehicle is—
(a) in
the case of an offence involving a minor risk breach of a mass, dimension or
load restraint requirement—a maximum penalty of $750; or
(b) in
the case of an offence involving a substantial risk breach of a mass, dimension
or load restraint requirement—a maximum penalty of $1 250; or
(c) in
the case of an offence involving a severe risk breach of a mass, dimension or
load restraint requirement—a maximum penalty of $2 500.
(3) A
court may not reduce or mitigate in any way a minimum penalty prescribed by
this section.
(4) In proceedings, if the court is satisfied
that—
(a) there
has been a breach of a mass, dimension or load restraint requirement but is not
satisfied that the breach is a substantial risk breach or a severe risk breach,
the court may treat the breach as a minor risk breach; or
(b) there
has been a breach of a mass, dimension or load restraint requirement and that
the breach is at least a substantial risk breach but is not satisfied that the
breach is a severe risk breach, the court may treat the breach as a substantial
risk breach.
(5) The following provisions apply for the
purpose of determining whether an offence relating to a breach of a mass,
dimension or load restraint requirement is a first offence or a second or
subsequent offence:
(a) a
person is found guilty of a second or subsequent offence only if the occasion
in respect of which the second or subsequent offence occurred was different
from the occasion in respect of which the first offence for which the person
was found guilty occurred;
(b) it
is immaterial in which order the offences were committed or whether the
breaches concerned are of the same risk category or of different risk
categories;
(c) if
the court is satisfied that a person is guilty of an offence but is unable to
ascertain (from the information available to the court) whether or not the
offence is a first offence for which the person was found guilty, the court may
only impose a penalty for the offence as if it were a first offence;
(d) in
determining whether a person has been found guilty of a previous offence
relating to a breach of a mass, dimension or load restraint requirement, regard
is to be had to findings of guilt for offences against the corresponding
provisions of corresponding road laws;
(e) the
regulations may make provision for or with respect to determining what are or
are not to be treated as corresponding provisions of the corresponding road
laws.
Subdivision
4—Sanctions
130—Matters
to be taken into consideration by courts
(1) The
purpose of this section is to bring to the attention of courts the general
implications and consequences of breaches of mass, dimension or load restraint
requirements when determining the kinds and levels of sanctions to be imposed.
(2) In determining the sanctions (including the
level of fine) that are to be imposed in respect of breaches of mass, dimension
or load restraint requirements, courts are to take into consideration the
following matters:
(a) minor
risk breaches involve either or both of the following:
(i) an
appreciable risk of accelerated road wear;
(ii) an
appreciable risk of unfair commercial advantage;
(b) substantial
risk breaches involve one or more of the following:
(i) a
substantial risk of accelerated road wear;
(ii) an
appreciable risk of damage to road infrastructure;
(iii) an
appreciable risk of increased traffic congestion;
(iv) an
appreciable risk of diminished public amenity;
(v) a
substantial risk of unfair commercial advantage;
(c) severe
risk breaches involve one or more of the following:
(i) an
appreciable risk of harm to public safety or the environment;
(ii) a
serious risk of accelerated road wear;
(iii) a
serious risk of harm to road infrastructure;
(iv) a
serious risk of increased traffic congestion;
(v) a
serious risk of diminished public amenity;
(vi) a
serious risk of unfair commercial advantage.
(3) Nothing
in this section affects any other matters that may or must be taken into
consideration by a court.
(4) Nothing
in this section authorises or requires a court to assign the breach to a
different category of breach.
(5) Nothing
in this section requires evidence to be adduced in relation to the matters that
are to be taken into consideration by a court under this section.
Subdivision
5—Container weight declarations
131—Application
of Subdivision
This Subdivision applies to the transport of a freight container
by a heavy vehicle by road.
132—Meaning
of “responsible entity”
A responsible entity, in
relation to a freight container, is—
(a) a
person who consigned the container for transport by a heavy vehicle by road in
this State; or
(b) a
person who, on behalf of the consignor, arranged for the transport of the
container by a heavy vehicle by road in this State; or
(c) a
person who physically offered the container for transport by a heavy vehicle by
road in this State.
133—Container
weight declarations
(1) A
container weight declaration for a freight container is a
declaration that states or purports to state the weight of the freight
container and its contents.
(2) Subject to the regulations, a container
weight declaration—
(a) may
be comprised in one or more documents or other formats, including in electronic
form; or
(b) without
limiting the above, may be comprised wholly or partly in a placard attached or
affixed to the freight container.
134—Complying
container weight declarations
(1) A container weight declaration for a
freight container complies with this Subdivision (a complying container
weight declaration) if it contains the following additional
information:
(a) the
number and other particulars of the freight container necessary to identify the
container;
(b) the
name, home address or business address in Australia of the responsible entity;
(c) the
date of the declaration;
(d) any
other information required by the regulations.
(2) However, a container weight declaration
does not comply with this Subdivision if—
(a) the
contents of the container weight declaration are not readily available to an
authorised officer or police officer who seeks to ascertain its contents, there
and then in the presence of the freight container (whether by examining
documents located in or on the vehicle or by obtaining the information by radio
or mobile telephone or by any other means); or
(b) it
is not in a form that can be used or adapted for evidentiary purposes; or
(c) it
is not in a form that satisfies requirements prescribed by the regulations.
135—Duty of
responsible entity
(1) This
section applies if a responsible entity offers a freight container to an
operator of a heavy vehicle for transport in this State by the vehicle.
(2) The
responsible entity must ensure that the operator or driver of the vehicle is
provided, before the start of the transport of the freight container in this
State, with a complying container weight declaration relating to the freight
container.
(3) The responsible entity is guilty of an
offence if the responsible entity engages in conduct that contravenes
subsection (2).
Penalty:
(a) if
the offender is a natural person—$5 000;
(b) if
the offender is a body corporate—$20 000.
(4) The
person charged has the benefit of the reasonable steps defence for an offence
against this section.
136—Duty of
operator
(1) This
section applies if an operator arranges for a freight container to be
transported in this State by a heavy vehicle.
(2) The
operator must ensure that the driver of the vehicle is provided, before the
start of the driver’s journey in the course of the transport of the freight
container in this State, with a complying container weight declaration relating
to the freight container.
(3) If
the freight container is to be transported by another road or rail carrier, the
operator must ensure that the other carrier is provided with a complying
container weight declaration relating to the freight container (or with the
prescribed particulars contained in the declaration) by the time the other
carrier receives the freight container.
(4) If
the driver does not have a complying container weight declaration (or the
prescribed particulars contained in the declaration), the operator is taken to
have contravened subsection (2) unless the operator establishes that the
driver was provided with the declaration (or the prescribed particulars).
(5) The operator is guilty of an offence if the
operator engages in conduct that contravenes subsection (2) or (3).
Penalty:
(a) if
the offender is a natural person—$5 000;
(b) if
the offender is a body corporate—$20 000.
(6) The
person charged has the benefit of the reasonable steps defence for an offence
against this section.
137—Duty of
driver
(1) A
person must not drive a heavy vehicle loaded with a freight container on a road
in this State without first having been provided with the relevant container
weight declaration.
(2) If
a container weight declaration relating to a freight container is provided to a
driver of a heavy vehicle with the container, the driver must, during the
course of a journey in this State, keep the declaration in or about the vehicle
or in a manner that enables it to be readily accessed from the vehicle.
(3) The driver is guilty of an offence if the
driver engages in conduct that contravenes subsection (1) or (2).
Penalty: $5 000.
(4) The
person charged has the benefit of the reasonable steps defence for an offence
against this section.
138—Liability
of consignee—knowledge of matters relating to container weight declaration
Without limiting section 128, a
consignee of goods is taken to have intended the result referred to in
section 128(2) if—
(a) the
conduct concerned related to a freight container; and
(b) the
person knew or ought reasonably to have known that—
(i) a
container weight declaration for the container was not provided as required by
this Act; or
(ii) a
container weight declaration provided for the container contained information
about the weight of the container and its contents that was false or misleading
in a material particular.
Note—
Section 128 provides for an offence that may be committed by
an assignee of goods if the person engages in conduct that results or is likely
to result in inducing or rewarding a breach of a mass, dimension or load
restraint requirement and the person intends that result.
Subdivision
6—Recovery of losses resulting from non-provision of or inaccurate container
weight declarations
139—Recovery
of losses for non-provision of container weight declaration
(1) This section applies if—
(a) a
container weight declaration has not been provided as required; and
(b) a
person suffered loss as a result of the non-provision of the declaration.
(2) A
person (the plaintiff) has a right to recover under this Act,
from the responsible entity for the freight container, the monetary value of
any loss incurred by the plaintiff consequent on the non-provision of the
container weight declaration.
(3) Losses that may be recovered include any or
all of the following:
(a) any
loss incurred from delays in the delivery of the freight container or any goods
contained in it or of other goods;
(b) any
loss incurred from spoliation of or damage to the goods;
(c) any
loss incurred from the need to provide another vehicle, and any loss incurred
from any delay in the provision of another vehicle;
(d) any
costs or expenses incurred in weighing the freight container or any of its
contents or both.
(4) The
plaintiff may enforce that right by bringing proceedings in a court of
competent jurisdiction for an order for payment of the monetary value of the
loss.
140—Recovery
of losses for provision of inaccurate container weight declaration
(1) This section applies if—
(a) a
container weight declaration has been provided as required; and
(b) the
declaration contains information about a freight container—
(i) that
is false or misleading in a material particular by understating the weight of
the container; or
(ii) that
is otherwise false or misleading in a material particular by indicating that
the weight of the container is lower than its actual weight; and
(c) a
breach of a mass limit occurred as a result of the reliance, by an operator or
driver of a vehicle, on the information in the declaration when transporting
the container by road (whether or not enforcement action has been or may be
taken in relation to the breach); and
(d) the
operator or driver of the vehicle—
(i) had
at the time a reasonable belief that the vehicle concerned was not in breach of
a mass limit; and
(ii) did
not know, and ought not reasonably to have known, at the time that the minimum
weight stated in the declaration was lower than the actual weight of the
container; and
(e) a
person suffered loss as a result of the provision of the declaration.
(2) A
person (the plaintiff) has a right to recover under this Act,
from the responsible entity for the freight container, the monetary value of
any loss incurred by the plaintiff consequent on the provision of the container
weight declaration.
(3) Losses that may be recovered include any or
all of the following:
(a) any
fine, expiation fee, infringement penalty or other penalty imposed on the
plaintiff under an Australian road law;
(b) any
fine, expiation fee, infringement penalty or other penalty imposed on an agent
or employee of the plaintiff under an Australian road law and reimbursed by the
plaintiff;
(c) any
loss incurred from delays in the delivery of the freight container or any goods
contained in it or of other goods;
(d) any
loss incurred from spoliation of, or damage to, the goods;
(e) any
loss incurred from the need to provide another vehicle, and any loss incurred
from any delay in the provision of another vehicle;
(f) any
costs or expenses incurred in weighing the freight container or any of its
contents or both.
(4) The
plaintiff may enforce that right by bringing proceedings in a court of
competent jurisdiction for an order for payment of the monetary value of the
loss.
141—Recovery
of amount by responsible entity
(1) This
section applies if an order under section 140 has been made or is being
sought against a responsible entity for payment of the monetary value of any
loss incurred by a person.
(2) The
responsible entity has a right to recover under this Act, from a person (the information
provider) who provided the responsible entity with all or any of the
information that was false or misleading, so much (the attributable
amount) of the monetary value paid or payable by the responsible entity
under the order as is attributable to that information.
(3) The responsible entity may enforce that
right by—
(a) joining,
or seeking the joinder of, the information provider in the proceedings for the
order under section 140 and applying to the court for an order for payment
of the attributable amount to be made when the order is made under that
section; or
(b) bringing
separate proceedings in a court of competent jurisdiction for an order for
payment of the attributable amount.
142—Assessment
of monetary value or attributable amount
(1) In making an order under this Subdivision,
a court may assess—
(a) the
monetary value of any loss, as referred to in—
(i) section 139;
or
(ii) section 140;
or
(b) the
attributable amount, as referred to in section 141,
in such manner as the court considers appropriate.
(2) In
making such an assessment, the court may take into account such matters as it
considers relevant, including any evidence adduced in connection with any
prosecution brought for a breach referred to in section 140.
143—Costs
(1) A
court may award costs in relation to the proceedings for an order under this
Subdivision.
(2) A court may, in proceedings for an order
under this Subdivision, order payment of any costs or expenses incurred in
weighing a freight container or any of its contents or both, if—
(a) the
minimum weight stated in the container weight declaration concerned was lower
than the actual weight; or
(b) a
container weight declaration was not provided.
(3) An
order under subsection (2) may be made in favour of a party to the
proceedings, an Australian Authority or a public authority of this State or any
other jurisdiction.
Subdivision
7—Transport documentation
144—False or
misleading transport documentation: liability of consignor, packer, loader,
receiver and others
(1) This section applies if—
(a) goods
are consigned for transport by a heavy vehicle by road; and
(b) all
or any part of the transport by road occurs or is to occur in this State.
(2) A person is guilty of an offence if—
(a) the
transport documentation relating to the consignment is false or misleading in a
material particular relating to the mass, dimension or load restraint of any or
all of the goods consigned; and
(b) the person is the consignor of the goods.
Penalty:
(a) if
the offender is a natural person—$5 000;
(b) if
the offender is a body corporate—$20 000.
(3) A person is guilty of an offence if—
(a) the
goods are packed in Australia in a freight container or other container or in a
package or on a pallet for transport by road; and
(b) the
transport documentation relating to the consignment is false or misleading in a
material particular relating to the mass, dimension or load restraint of any or
all of the goods consigned; and
(c) the person is the packer of the goods.
Penalty:
(a) if
the offender is a natural person—$5 000;
(b) if
the offender is a body corporate—$20 000.
(4) A person is guilty of an offence if—
(a) the
goods are loaded on a vehicle for transport by road; and
(b) the
transport documentation relating to the consignment is false or misleading in a
material particular relating to the mass, dimension or load restraint of any or
all of the goods consigned; and
(c) the person is the loader of the goods.
Penalty:
(a) if
the offender is a natural person—$5 000;
(b) if
the offender is a body corporate—$20 000.
(5) A person is guilty of an offence if—
(a) the
goods are packed outside Australia in a freight container or other container or
in a package or on a pallet for transport by road; and
(b) the
transport documentation relating to the consignment is false or misleading in a
material particular relating to the mass, dimension or load restraint of any or
all of the goods consigned; and
(c) the person is the receiver of the goods in
Australia.
Penalty:
(a) if
the offender is a natural person—$5 000;
(b) if
the offender is a body corporate—$20 000.
(6) A person is guilty of an offence if—
(a) a
container weight declaration provided to an operator of a vehicle contains
information that is false or misleading in a material particular; and
(b) the person is the responsible entity who
offered the freight container concerned to the operator for transport.
Penalty:
(a) if
the offender is a natural person—$5 000;
(b) if
the offender is a body corporate—$20 000.
(7) A person is guilty of an offence if—
(a) a
container weight declaration provided to a driver of a vehicle contains
information that is false or misleading in a material particular; and
(b) the person is the operator of the vehicle
who arranged for the freight container concerned to be transported in this
State.
Penalty:
(a) if
the offender is a natural person—$5 000;
(b) if
the offender is a body corporate—$20 000.
(8) Information
in a container weight declaration is not false or misleading for the purposes
of this Act merely because it overstates the actual weight of the freight
container and its contents.
(9) The
person charged has the benefit of the reasonable steps defence for an offence
against this section.
Note—
Section 122 makes provision for reliance on a container
weight declaration where an operator or driver is charged with an offence
involving a breach of a mass limit and is seeking to rely on the reasonable
steps defence.
(10) In this section—
receiver of goods in Australia means—
(a) the
person who first receives them in Australia, otherwise than as the person who
merely unloads them; or
(b) the
person who unpacks the goods after they are first unloaded in Australia,
but does not include a class of persons declared by the
regulations to be excluded from this definition.
25—Substitution of sections 148 to 156
Sections 148 to 156 (inclusive)—delete the
sections and substitute:
Subdivision
1—Defect notices relating to breaches of vehicle standards or maintenance
requirements
26—Amendment and redesignation of section 160—Defect notices
(1) Section 160(1aa)—delete subsection (1aa)
and substitute:
(1aa) For
the purposes of this section, a vehicle has deficiencies if the
vehicle is in a condition such that there would be a breach of a vehicle
standards or maintenance requirement if the vehicle were driven on a road.
(2) Section
160(3a)—delete subsection (3a)
(3) Section
160—redesignate the section as section 145
After section 145 (previously designated
as section 160) insert:
Subdivision
2—Formal warnings relating to breaches of mass, dimension or load restraint
requirements
146—Formal
warnings
(1) An authorised officer or police officer
may, instead of charging a person, or issuing an expiation notice to a person,
for a minor risk breach of a mass, dimension or load restraint requirement,
formally warn the person if the officer believes—
(a) the
person was unaware of the breach; and
(b) it
is appropriate to deal with the breach by way of a formal warning under this
section.
(2) A
formal warning must be in writing.
147—Withdrawal
of formal warnings
(1) A
formal warning may be withdrawn by a prescribed person or a person of a
prescribed class by serving on the alleged offender a written notice of
withdrawal within 21 days after the formal warning was given.
(2) After
the formal warning has been withdrawn, the person may be charged, or issued
with an expiation notice, for the breach.
Subdivision
3—Directions powers relating to breaches of mass, dimension or load restraint
requirements
148—Directions
power if minor risk breach
(1) This section applies to a vehicle if an
authorised officer or police officer believes on reasonable grounds that—
(a) the
vehicle is the subject of one or more minor risk breaches of mass, dimension or
load restraint requirements; and
(b) the
vehicle is not the subject of a substantial risk breach or a severe risk
breach.
(2) The officer may—
(a) if
the officer does not give a direction under paragraph (b)—authorise the
driver of the vehicle to continue its journey under section 151; or
(b) if
the officer believes on reasonable grounds that particular circumstances exist
for the purposes of this section warranting the giving of a direction under
this paragraph—direct the driver or operator of the vehicle—
(i) to
rectify specified breaches of mass, dimension or load restraint requirements
then and there; or
(ii) if
the officer also believes on reasonable grounds that the vehicle should be
moved to another location—to move it or cause it to be moved to a specified
suitable location that is within the prescribed distance, and not to proceed
from there until specified breaches of mass, dimension or load restraint
requirements are rectified.
(3) Without limiting the above, particular
circumstances exist for the purposes of this section warranting the giving of a
direction if—
(a) rectification
is reasonable and can be carried out easily; or
(b) rectification
is necessary in the public interest to avoid potential risk of harm to public
safety, the environment, road infrastructure or public amenity.
(4) A person commits an offence if—
(a) the
person is subject to a direction under subsection (2); and
(b) the person engages in conduct that results
in a contravention of the direction.
Penalty: $5 000.
(5) In this section—
prescribed distance means a distance (in any direction)
within a radius of 30 kilometres of—
(a) the
location of the vehicle when the direction is given; or
(b) any
point along the forward route of the journey, if the direction is given in the
course of a journey of the vehicle;
suitable location means a location that the officer believes on reasonable
grounds to be suitable for the purpose of complying with the direction, having
regard to any matters the officer considers relevant in the circumstances.
149—Directions
power if substantial risk breach
(1) This section applies to a vehicle if an
authorised officer or police officer believes on reasonable grounds that—
(a) the
vehicle is the subject of one or more substantial risk breaches of mass,
dimension or load restraint requirements; and
(b) the
vehicle is not the subject of a severe risk breach.
(2) The officer must—
(a) direct
the driver or operator of the vehicle not to proceed until specified breaches
of mass, dimension or load restraint requirements are rectified; or
(b) if
the officer believes on reasonable grounds that—
(i) particular
circumstances exist for the purposes of this section warranting the moving of
the vehicle to another location; or
(ii) particular
instructions have been given for the purposes of this section authorising or
requiring the moving of the vehicle to another location,
direct the driver or operator of the vehicle to move it or cause
it to be moved to the nearest suitable location as specified by the officer,
and not to proceed from there until specified breaches of mass, dimension or
load restraint requirements are rectified.
(3) Without
limiting the above, particular circumstances exist for the purposes of this
section warranting the moving of a vehicle if moving the vehicle is necessary
in the public interest to avoid potential risk of harm to public safety, the
environment, road infrastructure or public amenity.
(4) Particular
instructions authorising or requiring the moving of a vehicle for the purposes
of this section are specific instructions or standing instructions given by the
Minister orally or in writing, or by telephone, facsimile, electronic mail,
radio or in any other manner, authorising or requiring the moving of the
vehicle in the relevant circumstances.
(5) A person commits an offence if—
(a) the
person is subject to a direction under subsection (2); and
(b) the person engages in conduct that results
in a contravention of the direction.
Penalty: $5 000.
(6) In this section—
suitable location means a location that the officer believes on reasonable
grounds to be suitable for the purpose of complying with the direction, having
regard to any matters the officer considers relevant in the circumstances.
(7) Nothing in subsection (6), or in any
other provision of this section, prevents—
(a) the
intended destination of the journey concerned; or
(b) the
depot or base of operations of the vehicle, or of a vehicle in the combination,
concerned,
from being the nearest suitable location for the purposes of this
section.
150—Directions
power if severe risk breach
(1) This
section applies to a vehicle if an authorised officer or police officer
believes on reasonable grounds that the vehicle is the subject of one or more
severe risk breaches of mass, dimension or load restraint requirements.
(2) The officer must—
(a) direct
the driver or operator of the vehicle not to proceed until specified breaches
of mass, dimension or load restraint requirements are rectified; or
(b) if
the officer believes on reasonable grounds that—
(i) particular
circumstances exist for the purposes of this section warranting the moving of
the vehicle to another location; or
(ii) particular
instructions have been given for the purposes of this section authorising or
requiring the moving of the vehicle to another location,
direct the driver or operator of the vehicle to move it or cause
it to be moved to the nearest safe location as specified by the officer, and
not to proceed from there until specified breaches of mass, dimension or load
restraint requirements are rectified.
(3) Particular circumstances exist for the
purposes of this section warranting the moving of a vehicle only—
(a) if
there is an appreciable risk of harm to public safety, the environment, road
infrastructure or public amenity; or
(b) if
there is a risk to the welfare of people or live animals in or on the vehicle.
(4) Particular
instructions authorising or requiring the moving of a vehicle for the purposes
of this section are specific instructions or standing instructions given by the
Minister orally or in writing, or by telephone, facsimile, electronic mail,
radio or in any other manner, authorising or requiring the moving of the
vehicle in the relevant circumstances.
(5) A person commits an offence if—
(a) the
person is subject to a direction under subsection (2); and
(b) the person engages in conduct that results
in a contravention of the direction.
Penalty: $5 000.
(6) In this section—
risk of harm to public safety does not (subject to subsection (7))
include risk of harm to the safety of the vehicle or any load in or on it, but
does include risk of harm to the safety of people or live animals in or on it.
safe location means a location that the officer believes on reasonable grounds
poses a reduced risk or no appreciable risk of harm to public safety, the
environment, road infrastructure or public amenity.
(7) Nothing
in the definition of risk of harm to public safety in
subsection (6), or in any other provision of this section, prevents the
officer from taking into account the safety of the vehicle or any load in or on
it if the officer believes on reasonable grounds he or she can do so without
prejudicing the safety of other property or of people, the environment, road
infrastructure or public amenity.
151—Authorisation
to continue journey if minor risk breach
(1) This section applies to a vehicle if an
authorised officer or police officer believes on reasonable grounds that—
(a) the
vehicle is the subject of one or more minor risk breaches of mass, dimension or
load restraint requirements; and
(b) the
vehicle is not or is no longer the subject of a substantial risk breach or a
severe risk breach; and
(c) the
driver is not or is no longer the subject of a direction for the rectification
of the minor risk breach or any of the minor risk breaches.
(2) The
officer may authorise the driver of the vehicle to continue its journey.
(3) An
authorisation may be granted under this section unconditionally or subject to
conditions imposed by the officer.
(4) A person commits an offence if—
(a) the
person is granted an authorisation under this section; and
(b) the
authorisation is subject to a condition; and
(c) the person engages in conduct that results
in a contravention of the condition.
Penalty: $5 000.
152—Operation
of directions in relation to combinations
(1) This
section applies if a direction is given under this Subdivision in relation to a
vehicle that is a combination.
(2) Subject to subsection (3), nothing in
this Subdivision prevents a component vehicle of the combination from being
separately driven or moved if—
(a) the
component vehicle is not itself the subject of a breach of a mass, dimension or
load restraint requirement; and
(b) it
is not otherwise unlawful for the component vehicle to be driven or moved.
(3) Subsection (2)
does not apply if there is also a direction that prevents the component vehicle
from being separately driven or moved.
(4) In this section—
component vehicle of a combination means a towing vehicle or trailer of the
combination.
153—Directions
and authorisations to be in writing
A direction or authorisation under this
Subdivision is to be in writing, except—
(a) in
the case of a direction to move a vehicle, where the moving is carried out in
the presence of, or under the supervision of, an authorised officer or police
officer; or
(b) in
other circumstances prescribed by the regulations.
154—Application
of Subdivision in relation to other directions
(1) This
Subdivision applies to a vehicle regardless of whether or not the vehicle is,
has been or becomes the subject of a direction under Part 2 Division 5.
(2) This
Subdivision does not limit or prevent the exercise of powers under Part 2
Division 5 for the purpose of finding out whether there is or has been a breach
of a mass, dimension or load restraint requirement (or any other purpose).
28—Amendment of section 161A—Driving of certain vehicles subject to Ministerial approval
Section 161A—after subsection (1) insert:
(2) An
approval under subsection (1) is subject to such conditions (if any) as the
Minister thinks fit and specifies in the instrument or notice of approval.
29—Amendment of section 162A—Seat belts and child restraints
Section 162A(2)—delete subsection (2)
30—Amendment of section 163GA—Maintenance records
Section 163GA(4) to (8)—delete subsections (4) to (8) (inclusive)
Section 163H—delete the section
32—Amendment of section 163I—Evidentiary
Section 163I(b)—delete paragraph (b)
33—Substitution of section 163KA
Section 163KA—delete the section and
substitute:
Part 4B—Special
provisions relating to heavy vehicle offences
Division 1—Improvement
notices
163L—Definition
In this Division—
approved officer means an authorised officer, or an authorised officer of a class,
for the time being nominated by the Minister as an approved officer for the
purposes of this Division.
163M—Improvement
notices
(1) This
section applies if an approved officer is of the opinion that a person has
contravened, is contravening or is likely to contravene a provision of an
Australian road law and the contravention or likely contravention involves a
heavy vehicle.
(2) The
approved officer may serve on the person a notice (an improvement notice)
requiring the person to remedy the contravention or likely contravention, or
the matters or activities occasioning the contravention or likely
contravention, within the period specified in the notice.
(3) The
period within which the person is required by the improvement notice to comply
with the notice must be at least 7 days after service of the notice.
(4) However,
the approved officer may specify a shorter period if satisfied that it is
reasonably practicable for the person to comply with the notice by the end of
the shorter period.
(5) The improvement notice must—
(a) state
that the approved officer is of the opinion referred to in subsection (1);
and
(b) state
the reasons for that opinion; and
(c) specify
the provisions of the Australian road laws in respect of which that opinion is
held; and
(d) include
information about obtaining a review of the notice; and
(e) state
that it is issued under this section.
(6) The
improvement notice may but need not specify the method by which the alleged
contravention or likely contravention, or the matters or activities occasioning
the alleged contravention or likely contravention, are to be remedied.
163N—Contravention
of improvement notice
(1) A person commits an offence if—
(a) the
person is subject to an improvement notice; and
(b) the person engages in conduct that results
in a contravention of a requirement of the improvement notice.
Penalty: $10 000.
(2) Subsection (1)
does not apply if the person has a reasonable excuse.
(3) In proceedings for an offence of engaging
in conduct that results in a contravention of a requirement of an improvement
notice, it is a defence if the person charged establishes that—
(a) the
alleged contravention or likely contravention; or
(b) the
matters or activities occasioning the alleged contravention or likely
contravention,
were remedied within the period specified in the notice, though by
a method different from that specified in the improvement notice.
163O—Amendment
of improvement notices
(1) An
improvement notice may be amended by an approved officer.
(2) An
amendment of an improvement notice is effected by service on the person
affected of a notice stating the terms of the amendment.
(3) An
amendment of an improvement notice is ineffective if it purports to deal with a
contravention of a different provision of an Australian road law from that
dealt with in the improvement notice as first served.
(4) A notice of an amendment of an improvement
notice must—
(a) state
the reasons for the amendment; and
(b) include
information about obtaining a review of the notice; and
(c) state
that it is issued under this section.
163P—Cancellation
of improvement notices
(1) An
improvement notice may be cancelled by the Minister or an approved officer.
(2) Notice
of cancellation of an improvement notice is required to be served on the person
affected.
163Q—Clearance
certificates
(1) An
approved officer may issue a clearance certificate to the effect that all or
any specified requirements of an improvement notice have been complied with.
(2) A requirement of an improvement notice ceases
to be operative on receipt, by the person on whom the notice was served, of a
clearance certificate to the effect that—
(a) all
requirements of the notice have been complied with; or
(b) that
specific requirement has been complied with.
163R—Review
of notice
(1) A
person on whom an improvement notice or a notice of an amendment of an
improvement notice has been served under this Division may, within 28 days,
apply to the Minister for a review of the notice.
(2) The
Minister may, in his or her discretion, extend the time fixed for making an
application for review, even if the time for making such an application has
ended.
(3) The
operation of the notice is stayed pending the determination of the application
and any subsequent appeal relating to the notice.
(4) The
Minister may determine an application for review as the Minister thinks fit.
(5) A
review must be determined within 28 days of the application being lodged with
the Minister.
(6) If
a review is not determined within that period, the Minister is to be taken to
have confirmed the notice.
163S—Appeal
to District Court
(1) An
applicant for a review under this Division who is not satisfied with the
decision of the Minister on the review may appeal to the Administrative and
Disciplinary Division of the District Court against the decision.
(2) Subject
to subsection (4), an appeal must be instituted within 28 days of the
making of the decision appealed against.
(3) The
Minister must, if required by the applicant for the review, state in writing
the reasons for the decision.
(4) If
the reasons of the Minister are not given to the applicant for the review in
writing at the time of making the decision and that person, within 28 days of
the making of the decision, requires the Minister to state the reasons in
writing, the time for instituting an appeal runs from the time at which that
person receives the written statement of those reasons.
Division 2—Sanctions
for heavy vehicle offences
163T—Sanctions
imposed by courts
(1) A
court that finds a person guilty of an offence that involves a heavy vehicle
may impose one or more of the sanctions provided for by this Act.
(2) Without
affecting a court’s discretion, the court is required to take into
consideration, when imposing more than one of the sanctions provided for by
this Act, the combined effect of the sanctions imposed.
(3) Nothing
in this Division affects any discretions or powers that a court or other person
or body has apart from this Division.
(4) If
one or more courts make orders under this Division that result in both a
supervisory intervention order and a prohibition order being in force at the
same time in relation to the same person, the supervisory intervention order
has no effect while the prohibition order has effect.
163U—Commercial
benefits penalty orders
(1) A court that finds a person guilty of an
offence that involves a heavy vehicle may, on the application of the
prosecutor, make an order (a commercial benefits penalty order)
requiring the person to pay, as a fine, an amount not exceeding 3 times the
amount estimated by the court to be the gross commercial benefit that—
(a) was
received or receivable, by the person or by an associate of the person, from
the commission of the offence; and
(b) in
the case of a journey that was interrupted or not commenced because of action
taken by an authorised officer or police officer in connection with the
commission of the offence—would have been received or receivable, by the person
or by an associate of the person, from the commission of the offence had the
journey been completed.
(2) In estimating the gross commercial benefit
that was or would have been received or receivable from the commission of the
offence, the court may take into account—
(a) benefits
of any kind, whether monetary or otherwise; and
(b) any
other matters that it considers relevant, including (for example)—
(i) the
value of any goods involved in the offence; and
(ii) the
distance over which any such goods were or were to be carried.
(3) However,
in estimating the gross commercial benefit that was or would have been received
or receivable from the commission of the offence, the court is required to
disregard any costs, expenses or liabilities incurred by the person or by an
associate of the person.
(4) Nothing in this section prevents the court
from ordering payment of an amount that is—
(a) less
than 3 times the estimated gross commercial benefit; or
(b) less
than the estimated gross commercial benefit.
163V—Supervisory
intervention orders
(1) A court that finds a person guilty of an
offence that involves a heavy vehicle may, on the application of the
prosecutor, if the court considers the person to be a systematic or persistent
offender against the Australian road laws, make an order (a supervisory
intervention order) requiring the person (at the person’s own expense
and for a specified period not exceeding 1 year) to do any or all of the
following:
(a) to
do specified things that the court considers will improve the person’s
compliance with road laws or specified aspects of road laws, including (for
example) the following:
(i) appointing
or removing staff to or from particular activities or positions;
(ii) training
and supervising staff;
(iii) obtaining
expert advice as to maintaining appropriate compliance;
(iv) installing
monitoring, compliance, managerial or operational equipment (including, for
example, intelligent transport system equipment);
(v) implementing
monitoring, compliance, managerial or operational practices, systems or
procedures;
(b) to
conduct specified monitoring, compliance, managerial or operational practices,
systems or procedures subject to the direction of the Minister or a person
nominated by the Minister;
(c) to
furnish compliance reports to the Minister or the court or both as specified in
the order;
(d) to
appoint a person to have responsibilities—
(i) to
assist the person in improving compliance with road laws or specified aspects
of road laws; and
(ii) to
monitor the person’s performance in complying with road laws or specified
aspects of road laws and in complying with the requirements of the order; and
(iii) to
furnish compliance reports to the Minister or the court or both as specified in
the order.
(2) The
court may specify matters that are to be dealt with in compliance reports and
the form, manner and frequency in which compliance reports are to be prepared
and furnished.
(3) The
court may require that compliance reports or aspects of compliance reports be
made public, and may specify the form, manner and frequency in which they are
to be made public.
(4) The court may only make a supervisory
intervention order if it is satisfied that the order is capable of improving
the person’s ability or willingness to comply with the road laws, having regard
to—
(a) the
Australian road law offences of which the person has been previously found
guilty; and
(b) the
Australian road law offences for which the person has been proceeded against by
way of unwithdrawn expiation notices or infringement notices; and
(c) any
other offences or other matters that the court considers to be relevant to the
conduct of the person in connection with road transport.
(5) The
order may direct that any other penalty or sanction imposed for the offence by
the court is suspended until the court determines that there has been a
substantial failure to comply with the order.
(6) A court that has power to make supervisory
intervention orders may revoke or amend a supervisory intervention order on the
application of—
(a) the
Minister; or
(b) the
person in respect of whom the order was made, but in that case only if the
court is satisfied that there has been a change of circumstances warranting
revocation or amendment.
(7) In this section—
compliance report, in relation to a person in respect of
whom a supervisory intervention order is made, means a report relating to—
(a) the
performance of the person in complying with—
(i) the
road laws or aspects of the road laws specified in the order; and
(ii) the
requirements of the order; and
(b) without
limiting the above—
(i) things
done by the person to ensure that any failure by the person to comply with the
road laws or the specified aspects of the road laws does not continue; and
(ii) the
results of those things having been done.
163W—Contravention
of supervisory intervention order
A person commits an offence if—
(a) the
person is subject to a requirement of a supervisory intervention order; and
(b) the person engages in conduct that results
in a contravention of the requirement.
Penalty: $10 000.
163X—Prohibition
orders
(1) A
court that finds a person guilty of an offence that involves a heavy vehicle
may, on the application of the prosecutor or the Minister, if the court
considers the person to be a systematic or persistent offender against the
Australian road laws, make an order (a prohibition order)
prohibiting the person, for a specified period, from having a specified role or
responsibilities associated with road transport.
(2) The
court cannot make a prohibition order that prohibits the person from driving or
registering a vehicle.
(3) The court may only make a prohibition order
if it is satisfied that the person should not continue the things the subject
of the proposed order and that a supervisory intervention order is not
appropriate, having regard to—
(a) the
Australian road law offences of which the person has been previously found
guilty; and
(b) the
Australian road law offences for which the person has been proceeded against by
way of unwithdrawn expiation notices or infringement notices; and
(c) any
other offences or other matters that the court considers to be relevant to the
conduct of the person in connection with road transport.
(4) A court that has power to make prohibition
orders may revoke or amend a prohibition order on the application of—
(a) the
Minister; or
(b) the
person in respect of whom the order was made, but in that case only if the
court is satisfied that there has been a change of circumstances warranting
revocation or amendment.
163Y—Contravention
of prohibition order
A person commits an offence if—
(a) the
person is subject to a prohibition contained in a prohibition order; and
(b) the person engages in conduct that results
in a contravention of the prohibition.
Penalty: $10 000.
Division 3—Criminal
responsibility in relation to organisations and employers
163Z—Application
of Division limited to heavy vehicle offences
This Division applies in relation to an offence that involves a
heavy vehicle.
163ZA—Liability
of directors, managers and partners
(1) If
a body corporate commits an offence, each director of the body corporate, and
each person concerned in the management of the body corporate, is taken to have
committed the offence and is punishable accordingly.
(2) If
a person who is a partner in a partnership commits an offence in the course of
the activities of the partnership, each other person who is a partner in the
partnership, and each person concerned in the management of the partnership, is
taken to have committed the offence and is punishable accordingly.
(3) This
section does not affect the liability of the body corporate or other person who
actually committed the offence.
(4) A
person may be proceeded against and found guilty of an offence arising under
this section whether or not the body corporate or other person who actually
committed the offence has been proceeded against or been found guilty of the
offence.
(5) It is a defence to a charge for an offence
arising under subsection (1) if the defendant establishes that—
(a) the
defendant was not in a position to influence the conduct of the body corporate
in relation to the actual offence; or
(b) the
defendant, being in such a position, took all reasonable steps to prevent the
commission of the actual offence.
(6) It is a defence to a charge for an offence
arising under subsection (2) if the defendant establishes that—
(a) the
defendant was not in a position to influence the conduct of the person who
actually committed the offence; or
(b) the
defendant, being in such a position, took all reasonable steps to prevent the
commission of the actual offence.
(7) In this section—
director of a body corporate includes a member of the governing body of a
body corporate.
163ZB—Vicarious
responsibility
(1) If, in proceedings for an offence, it is
necessary to establish the state of mind of a body corporate in relation to
particular conduct, it is sufficient to show—
(a) that
the conduct was engaged in by a director, employee or agent of the body
corporate within the scope of his or her actual or apparent authority; and
(b) that
the director, employee or agent had the relevant state of mind.
(2) For
the purposes of a prosecution for an offence, conduct engaged in on behalf of a
body corporate by a director, employee or agent of the body corporate within
the scope of his or her actual or apparent authority is taken to have been
engaged in also by the body corporate, unless the body corporate establishes
that it took all reasonable steps to prevent the conduct.
(3) If, in proceedings for an offence, it is
necessary to establish the state of mind of a person other than a body
corporate (the employer) in relation to particular conduct, it is
sufficient to show—
(a) that
the conduct was engaged in by an employee or agent of the employer within the
scope of his or her actual or apparent authority; and
(b) that
the employee or agent had the relevant state of mind.
(4) For
the purposes of a prosecution for an offence, conduct engaged in on behalf of a
person other than a body corporate (the employer) by an employee
or agent of the employer within the scope of his or her actual or apparent
authority is taken to have been engaged in also by the employer, unless the
employer establishes that the employer took all reasonable steps to prevent the
conduct.
(5) In this section—
director of a body corporate includes a member of the governing body of a
body corporate;
state of mind of a person includes—
(a) the
knowledge, intention, opinion, belief or purpose of the person; and
(b) the
person’s reasons for the intention, opinion, belief or purpose.
Part 4C—General
compensation orders
163ZC—Compensation
orders for damage to road infrastructure
(1) A
court that finds a person guilty of an offence may make an order (a compensation
order) requiring the offender to pay a road authority such amount by
way of compensation as the court thinks fit for damage to any road
infrastructure that the road authority has incurred or is likely to incur in
consequence of the offence.
(2) A
compensation order may be made on the application of the prosecutor or the road
authority.
(3) A
compensation order may only be made in favour of the road authority.
(4) The
court may make a compensation order if it is satisfied on the balance of
probabilities that the commission of the offence caused or contributed to the
damage.
(5) The court may make a compensation order—
(a) when
it finds the offender guilty of the offence; or
(b) on
an application made not later than the period within which a prosecution for
the offence could have been commenced.
163ZD—Assessment
of compensation
(1) In
making a compensation order, the court may assess the amount of compensation in
such manner as it considers appropriate, including (for example) the estimated
cost of remedying the damage.
(2) In assessing the amount of compensation,
the court may take into account such matters as it considers relevant,
including—
(a) any
evidence adduced in connection with the prosecution of the offence; and
(b) any
evidence not adduced in connection with the prosecution of the offence but
adduced in connection with the making of the proposed order; and
(c) any
certificate of the road authority stating that the road authority maintains the
road concerned; and
(d) any
other certificate of the road authority, such as a certificate—
(i) estimating
the monetary value of all or any part of the road infrastructure or of the
damage to it; or
(ii) estimating
the cost of remedying the damage; or
(iii) estimating
the extent of the offender’s contribution to the damage.
163ZE—Service
of certificates
(1) If
a road authority proposes to use a certificate referred to in
section 163ZD in proceedings, the road authority must serve a copy of the
certificate on the defendant at least 28 working days before the day on which
the matter is set down for hearing.
(2) Such
a certificate cannot be used in the proceedings unless a copy of the
certificate has been served in accordance with this section.
(3) A
defendant who wishes to challenge a statement in such a certificate must serve
a notice in writing on the road authority at least 14 working days before the
day on which the matter is set down for hearing.
(4) The
notice of intention must specify the matters in the certificate that are
intended to be challenged.
(5) If
the defendant is intending to challenge the accuracy of any measurement,
analysis or reading in the certificate, the defendant must specify the reason
why the defendant alleges that it is inaccurate and must specify the
measurement, analysis or reading that the defendant considers to be correct.
(6) The
defendant cannot challenge any matter in the certificate if the requirements of
this section have not been complied with in relation to the certificate, unless
the court gives leave to do so in the interests of justice.
163ZF—Limits
on amount of compensation
(1) If,
in making a compensation order, the court is satisfied that the commission of
the offence concerned contributed to the damage but that other factors not
connected with the commission of the offence also contributed to the damage,
the court must limit the amount of the compensation payable by the offender to
the amount it assesses as being the offender’s contribution to the damage.
(2) The
maximum amount of compensation cannot exceed the monetary jurisdictional limit
of the court in civil proceedings.
(3) The court may not include in the order any
amount for—
(a) personal
injury or death; or
(b) loss
of income (whether sustained by a road authority or any other person or
organisation); or
(c) damage
to any property (including a vehicle) that is not part of the road
infrastructure.
163ZG—Costs
The court has the same power to award costs in relation to the
proceedings for a compensation order as it has in relation to civil
proceedings, and the relevant provisions of laws applying to costs in relation
to civil proceedings apply with any necessary adaptations to costs in relation
to the proceedings for the compensation order.
163ZH—Relationship
with orders or awards of other courts and tribunals
(1) A compensation order may not be made if
another court or tribunal has awarded compensatory damages or compensation in
civil proceedings in respect of the damage based on the same or similar facts,
and if a court purports to make an order under this Part in those circumstances—
(a) the
order is void to the extent that it covers the same matters as those covered by
the other award; and
(b) any
payments made under the order to the extent to which it is void must be repaid
by the road authority.
(2) The
making of a compensation order does not prevent another court or tribunal from
afterwards awarding damages or compensation in civil proceedings in respect of
the damage based on the same or similar facts, but the court or tribunal must
take the order into account when awarding damages or compensation.
34—Amendment of section 164A—Offences and penalties
(1) Section 164A(1)(b)—after "permit"
insert:
, approval
(2) Section 164A(2)—delete "$1 250"
and substitute:
$2 500
35—Amendment of section 165—False statements
Section 165(1)—delete "$2 500"
and substitute:
$10 000
36—Substitution of section 166
Section 166—delete the section and
substitute:
166—Double
jeopardy
(1) A
person may be punished only once in relation to the same contravention of a
particular provision of this Act, even if the person is liable in more than one
capacity.
(2) Despite
subsection (1), a person may be punished for more than one contravention
of a requirement if the contraventions relate to different parts of the same
vehicle.
37—Amendment of section 168—Power of court to make orders relating to licences or registration
Section 168(1)—delete subsection (1) and
substitute:
(1) A court that convicts a person of—
(a) an
offence against this Act relating to motor vehicles; or
(b) an
offence (under this Act or any other Act or law) in the commission of which a
motor vehicle was used or the commission of which was facilitated by the use of
a motor vehicle,
may do one or more of the following:
(c) order
that the person be disqualified from holding or obtaining a driver's licence
for a period fixed by the court or until further order;
(d) order
that the person so disqualified be not, at the end of the period of
disqualification or on the removal of the disqualification, granted a driver's
licence until the person passes a driving test as prescribed by section 79A of
the Motor Vehicles Act 1959;
(e) order
that a driver's licence held by the person be modified for a period fixed by
the court or until further order;
(f) order
that the registration of the motor vehicle concerned under the Motor
Vehicles Act 1959 be suspended for a period fixed by the court or
until further order, or be cancelled;
(g) order
that the person, and any associate of the person, be disqualified from
obtaining registration of the motor vehicle concerned as an owner or operator
under the Motor Vehicles Act 1959 for a period fixed by the court
or until further order.
(2) If
a court considers that another person who is not present in court may be
substantially affected by an order under this section, the court may issue a
summons to the other person to show cause why the order should not be made.
(2a) An
order under this section operates by force of this Act and takes effect either
immediately or from a later specified date.
38—Amendment of section 173A—Defence relating to registered owner or operator
(1) Section 173A(2)—Before "operator"
insert:
registered
(2) Section
173A(3)—delete subsection (3)
After section 173A insert:
173AB—Further
defences
(1) It is a defence to a charge for an offence
against this Act if the person charged establishes that the conduct
constituting the offence was—
(a) authorised
or excused by or under a law; or
(b) done
in compliance with a direction given by an authorised officer or police officer
or an Australian Authority or a delegate of an Australian Authority; or
(c) done
in response to circumstances of emergency.
(2) The defence under subsection (1)(c)
applies only if the person charged reasonably believed that—
(a) circumstances
of emergency existed; and
(b) committing
the offence was the only reasonable way to deal with the emergency; and
(c) the
conduct was a reasonable response to the emergency.
(3) Nothing
in this section affects any other defence available at law.
After section 174A insert:
174AB—Marking
of tyres for parking purposes
(1) An
authorised officer may place an erasable mark on a tyre of a vehicle in the
course of enforcing laws relating to the parking of vehicles.
(2) A person must not, without proper
authority, erase a mark made under subsection (1).
Penalty: $750.
41—Insertion of sections 174F to 174K
After section 174E insert:
174F—Industry
codes of practice
(1) The
Minister may issue guidelines with respect to the preparation and contents of
industry codes of practice, and may from time to time cancel, amend or replace
the guidelines.
(2) The guidelines may make provision for or with
respect to—
(a) the
review of registered industry codes of practice; and
(b) the
period for which registration of an industry code of practice remains in force
(unless sooner revoked).
(3) The
Minister may register industry codes of practice prepared in accordance with
the guidelines in force under this section.
(4) The
Minister may revoke the registration of an industry code of practice.
(5) The
Minister may register an industry code of practice unconditionally or subject
to conditions specified in the instrument of registration.
(6) The
Minister may attach new conditions to an existing registration, and may revoke
or amend any conditions attached to a registration.
(7) Registration of an industry code of
practice remains in force (unless sooner revoked) until the earlier of the
following:
(a) the
end of the period of currency (if any) specified in the instrument of
registration; or
(b) the
end of the period specified in the guidelines.
174G—Dismissal
or other victimisation of employee or contractor assisting with or reporting
breaches
(1) An employer must not dismiss an employee or
contractor, injure an employee or contractor in his or her employment or alter
an employee’s or contractor’s position to his or her detriment because the
employee or contractor—
(a) has
assisted or has given any information to a public agency in respect of a breach
or alleged breach of an Australian road law; or
(b) has
made a complaint about a breach or alleged breach of an Australian road law to
the employer, a fellow employee or fellow contractor, a trade union or a public
agency.
(2) An employer or prospective employer must
not refuse or deliberately omit to offer employment to a prospective employee
or prospective contractor or treat a prospective employee or prospective
contractor less favourably than another prospective employee or prospective
contractor would be treated in relation to the terms on which employment is
offered because the first-mentioned prospective employee or contractor—
(a) has
assisted or has given any information to a public agency in respect of a breach
or alleged breach of an Australian road law; or
(b) has
made a complaint about a breach or alleged breach of an Australian road law to
a former employer, a former fellow employee or former fellow contractor, a
trade union or a public agency.
(3) A person commits an offence if—
(a) the
person engages in conduct that results in a contravention of
subsection (1); and
(b) the person is an employer of the person
concerned.
Penalty: $10 000.
(4) A person commits an offence if—
(a) the
person engages in conduct that results in a contravention of
subsection (2); and
(b) the person is an employer or prospective
employer of the person concerned.
Penalty: $10 000.
(5) In
proceedings for an offence against this section, if all the facts constituting
the offence other than the reason for the defendant’s action are proved, the
onus of proving that the defendant’s action was not actuated by the reason
alleged in the charge lies on the defendant.
(6) If a person is found guilty of an offence
against this section, the court may, in addition to imposing a penalty on the
offender, make either or both of the following orders—
(a) an
order that the offender pay within a specified period to the employee or
contractor or to the prospective employee or prospective contractor such
damages as it thinks fit by way of compensation;
(b) an
order that—
(i) the
employee or contractor be reinstated or re-employed in the employee’s or
contractor’s former position or (if that position is not available) in a
similar position; or
(ii) the
prospective employee or prospective contractor be employed in the position for
which the prospective employee or prospective contractor had applied or (if
that position is not available) in a similar position.
(7) The
maximum amount of damages cannot exceed the monetary jurisdictional limit of
the court in civil proceedings.
(8) In this section—
contractor means a natural person who works under a contract for services;
public agency means an Australian Authority, an Australian authorised officer,
an Australian police officer or any other public authority of any jurisdiction.
174H—False
or misleading information provided between responsible persons
(1) A person is guilty of an offence if—
(a) the
person is a responsible person and provides information to another responsible
person; and
(b) the
person does so knowing that the information is false or misleading in a
material particular or being reckless as to whether the information is false or
misleading in a material particular; and
(c) the material particular in which the
information is alleged to be false or misleading relates to an ingredient of an
Australian road law offence that is or could be committed by the other or any
other responsible person if that other person relies or were to rely on the
material particular.
Penalty: $10 000.
(2) In this section—
information means information in any form, whether written or not.
174I—Amendment
or revocation of directions or conditions
(1) An
authorised officer may amend or revoke a direction given, or conditions
imposed, by an authorised officer under this Act.
(2) A
police officer may amend or revoke a direction given, or conditions imposed, by
a police officer under this Act.
174J—Minister
may provide information to corresponding Authorities
(1) The Minister may provide information to a
corresponding Authority about—
(a) any
action taken by the Minister under any road law; or
(b) any
information obtained under this Act, including any information contained in any
records, devices or other things inspected or seized under this Act.
(2) This
section neither affects nor is affected by section 41L.
174K—Contracting
out prohibited
(1) A term of any contract or agreement that
purports to—
(a) exclude,
limit or modify the operation of this Act or of any provision of this Act; or
(b) require
the payment or reimbursement by a person of all or part of any penalty that
another has been ordered to pay under this Act,
is void to the extent that it would otherwise have that effect.
(2) A person commits an offence if the person
requires or proposes that another agree to a term of a kind referred to in
subsection (1).
Maximum penalty: $10 000.
42—Amendment of section 175—Evidence
(1) Section 175(1)—after paragraph (e) insert:
(ea) a
specified vehicle was a vehicle of a specified kind or had a specified GCM or
GVM; or
(eb) a
specified person was or was not a member of or participant in an approved road
transport compliance scheme; or
(2) Section 175(1)—after paragraph (f) insert:
(fa) a
specified person had specified powers under this Act; or
(3) Section
175(3)—delete "or combination" wherever occurring
(4) Section 175—after subsection (4) insert:
(5) In any proceedings under or for the
purposes of a road law—
(a) a
document purporting to be signed by an authorised officer or a police officer
or issued or signed by an Australian Authority, and to certify that any
specified specifications, capabilities or legal entitlements or other
information relating to a specified vehicle (or a specified component of a
specified vehicle) were or were not displayed on the vehicle, or were or were
not recorded in an Australian Authority’s records, in accordance with an
Australian road law; or
(b) a
document purporting to be signed by an authorised officer or a police officer
or issued or signed by an Australian Authority, and to certify that any
specified person or vehicle had or did not have specified legal entitlements;
or
(c) a
document purporting to be signed by an authorised officer or a police officer
or issued or signed by an Australian Authority, and to certify as to any matter
that appears in or can be calculated from records kept or accessed by the
officer or Australian Authority; or
(d) a
document purporting to be signed by an authorised officer or a police officer,
and to certify as to the service of an expiation notice or the expiation of an
offence,
constitutes proof of the fact so certified in the absence of proof
to the contrary.
(6) Transport documentation or journey
documentation is admissible in any proceedings under or for the purposes of a
road law and is prima facie evidence of—
(a) the
identity and status of the parties to the transaction to which it relates; and
(b) the
destination or intended destination of the load to which it relates.
(7) The
reference in subsection (6) to the status of parties
includes a reference to their status as responsible persons in relation to the
transaction.
43—Amendment of section 176—Regulations and rules
(1) Section 176(1a)(i)—delete "$1
250" and substitute:
$2 500
(2) Section 176(1a)(j)—delete "$350"
and substitute:
$750
44—Amendments relating to members of police force
(1) Throughout Act—delete "member of the
police force" wherever occurring and substitute in each case:
police officer
(2) Throughout Act—delete "members of the
police force" wherever occurring and substitute in each case:
police officers
(3) Throughout Act—delete "member"
wherever occurring and substitute in each case:
police officer
(4) Throughout Act—delete "member's"
wherever occurring and substitute in each case:
police officer's
45—Amendments relating to inspectors
Throughout Act, other than sections 34(9),
79B(9), 79B(10) and 175(3)—delete "inspector" wherever occurring and
substitute in each case:
authorised officer
Part 4—Amendment of Motor Vehicles Act 1959
46—Amendment of section 5—Interpretation
(1) Section 5(1)—after the definition of authorised
examiner insert:
authorised officer has the same meaning as in the Road Traffic
Act 1961;
(2) Section
5(1), definition of inspector—delete the definition
47—Amendment of section 7—Registrar and officers
Section 7(2a) and (3)—delete subsections (2a) and (3)
48—Amendment of section 47C—Return or recovery of number plates
Section 47C(5)—delete subsection (5)
49—Amendment of section 52—Return or destruction of registration labels
Section 52(5)—delete subsection (5)
50—Insertion of sections 55B and 55C
After section 55A insert:
55B—Notice
to be given to Registrar
(1) If a court makes an order —
(a) suspending
or cancelling the registration of a motor vehicle; or
(b) disqualifying
a person from registering a motor vehicle,
the proper officer of the court must notify the Registrar in
writing of the date of the order, the nature of the order (including the period
of any disqualification) and short particulars of the grounds on which the
order was made.
(2) If
any such order is quashed or varied by a court on appeal, the proper officer of
the court must forthwith notify the Registrar in writing of the date of the
order made on the appeal and the effect of the order.
(3) In this section—
proper officer means—
(a) in
relation to the Supreme Court, the registrar of that court;
(b) in
relation to any other court, the clerk of that court.
55C—Action
following disqualification or suspension outside State
(1) If a person is disqualified from
registering a motor vehicle in another State or Territory of the Commonwealth,
the Registrar must—
(a) if
the person is the registered operator of the motor vehicle under this Act,
cancel the registration of the motor vehicle;
(b) refuse
to register the motor vehicle in the name of the person as an owner or operator
during the period of disqualification.
(2) If
an order is made in another State or Territory of the Commonwealth that the
registration of a motor vehicle be suspended, the Registrar must, if the person
is the registered operator of the motor vehicle under this Act, suspend the
registration of the motor vehicle.
51—Amendment of section 83—Action following disqualification etc outside State
Section 83(2)—delete subsection (2) and
substitute:
(2) If an order is made in another State or
Territory of the Commonwealth that a person's licence or learner's permit be
suspended or modified—
(a) the
Registrar must, if the person holds a licence or learner's permit under this
Act, suspend or modify the licence or permit in accordance with the order;
(b) the
Registrar must, in the case of an order that a licence or learner's permit be
suspended, refuse to issue a licence or learner's permit to the person during
the period of suspension;
(c) the
Registrar may, in the case of an order that a licence be modified, refuse to
issue a licence to the person, or to modify a licence held by the person,
during the period of operation of the order, as the Registrar considers
appropriate having regard to the terms of the order.
52—Amendment of section 93—Notice to be given to Registrar
Section 93(1)—after paragraph (c) insert:
or
(d) makes
an order modifying a person's driver's licence,
53—Amendment of section 96—Duty to produce licence or permit
(1) Section 96(1), penalty provision—delete the
penalty provision and substitute:
Maximum penalty: $2 500.
(2) Section
96(4), definition of member of the police force, (b)—delete
paragraph (b)
54—Amendment of section 97—Duty to produce licence or permit at court
(1) Section 97(1)—delete "may be required
to" and substitute:
must, if so required by the court, a police officer or the
Registrar,
(2) Section 97(1), penalty provision—delete the
penalty provision and substitute:
Maximum penalty: $2 500.
55—Amendment of section 97A—Visiting motorists
(1) Section
97A(3)(c)—delete paragraph (c)
(2) Section 97A(3), penalty provision—delete
the penalty provision and substitute:
Maximum penalty: $2 500.
56—Amendment of section 98AAA—Duty to carry licence when driving heavy vehicle
(1) Section 98AAA(1)—delete "motor vehicle
with a GVM greater than 8 tonnes" and substitute:
heavy vehicle
(2) Section 98AAA(1), penalty provision—delete
the penalty provision and substitute:
Maximum penalty: $2 500.
(3) Section
98AAA(1a), definition of member of the police force, (b)—delete
paragraph (b)
Section 98AAB, penalty provision—delete
the penalty provision and substitute:
Maximum penalty: $2 500.
Section 98C—delete the section
59—Amendment of section 98P—Investigation powers
Section 98P(1), (7), (8), (9) and (10)—delete subsections (1),
(7), (8), (9) and (10)
60—Amendment of section 139BA—Power to require production of licence etc
Section 139BA(3), penalty provision—delete
the penalty provision and substitute:
Maximum penalty: $2 500.
61—Amendment of section 139D—Confidentiality
Section 139D(1)(a) to (e)—delete
paragraphs (a) to (e) and substitute:
(a) as
required or authorised under this or any other Act; or
(b) with
the consent of the person from whom the information was obtained or to whom the
information relates; or
(c) in
connection with the administration of this Act; or
(d) to
a public authority of any jurisdiction for law enforcement purposes or a
prescribed public authority of any jurisdiction; or
(e) to
a court or in connection with any legal proceedings; or
Section 139F—delete the section
After section 143A insert:
143B—General
defences
(1) It is a defence to a charge for an offence
against this Act if the person charged establishes that the conduct
constituting the offence was—
(a) authorised
or excused by or under a law; or
(b) done
in compliance with a direction given by an authorised officer or police
officer; or
(c) done
in response to circumstances of emergency.
(2) The defence under subsection (1)(c)
applies only if the person charged reasonably believed that—
(a) circumstances
of emergency existed; and
(b) committing
the offence was the only reasonable way to deal with the emergency; and
(c) the
conduct was a reasonable response to the emergency.
(3) Nothing
in this section affects any other defence available at law.
64—Amendment of section 145—Regulations
Section 145(1)(n)—delete "$310"
and substitute:
$750
65—Amendments relating to members of police force
(1) Throughout Act—delete "member of the
police force" wherever occurring and substitute in each case:
police officer
(2) Throughout Act—delete "members of the
police force" wherever occurring and substitute in each case:
police officers
(3) Throughout Act, other than sections 38(1),
71C(3), 98Y(4) and (5), 129(2a), 134(2), 139E(1), 143A and Schedule 5—delete
"member" wherever occurring and substitute in each case:
police officer
66—Amendments relating to inspectors
Throughout Act, other than section 142(f)—delete
"inspector" wherever occurring and substitute in each case: