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ROAD LEGISLATION AMENDMENT BILL 2009

 Road Legislation Amendment Bill 2009

                      Introduction Print

            EXPLANATORY MEMORANDUM


                               General
Part 1   sets out the purposes of the Bill and when the Bill comes into
         force.

Part 2   amends the Road Safety Act 1986 to--
           ·      clarify that level crossing offences can be enforced by
                  prescribed road safety cameras;
           ·      provide legislative recognition for standards used to
                  determine fitness to drive;
           ·      lower the current blood and breath alcohol
                  concentration threshold for immediate licence
                  suspension for a person who holds a full driver licence;
           ·      clarify the law in relation to the application of operator
                  onus provisions to excessive speeding offences;
           ·      create offences for third party circumvention of alcohol
                  interlocks;
           ·      authorise approved health professionals to take blood
                  samples from persons attending a medical facility
                  following a motor vehicle accident;
           ·      introduce offences of careless and dangerous driving
                  and failing to stop after an accident for drivers of
                  vehicles other than motor vehicles, such as bicycles;
           ·      extend the use of tyre deflation devices to preventing
                  the commencement of a pursuit;
           ·      provide a mechanism by which organised motor sports
                  events on private land can be exempted from the
                  offence of deliberately losing traction;

561249                             1       BILL LA INTRODUCTION 31/3/2009

 


 

· change descriptions of speed detection devices, such as "prescribed detection device" and "prescribed speed measuring device", to be consistent with the proposed Road Safety (General) Regulations 2009; · introduce a new offence to protect the operators of safety cameras and speed detectors from interference and abuse; · facilitate the sale of impounded vehicles that have been abandoned; · improve the operation of the vehicle impoundment regime through administrative amendments; · allow public authorities, other than local councils, to outsource parking enforcement and impose parking fines; · clarify regulation-making powers regarding infringement offences by providing a clear head of power to distinguish between classes of persons, vehicles or circumstances for the purposes of prescribing traffic infringements; and · implement national model legislation for heavy vehicle speed compliance, whereby parties in the transport chain who can influence whether speeding occurs have a duty to ensure that the driver is not encouraged to speed. Part 3 amends the Road Management Act 2004 to-- · enable VicRoads, where it is not the relevant coordinating road authority, to discontinue a road or part of a road with the written consent of the relevant coordinating road authority; · extend the exemption and immunity currently given to the Crown and road authorities in relation to the fencing of public highways so that they apply to all roads within the meaning of the Act (which includes public highways and ancillary areas); and · clarify references to certain offences with respect to which infringement notices may be issued. 2

 


 

Part 4 amends the Accident Towing Services Act 2007 to-- · clarify that holders of regular tow truck licences may operate tow trucks of any size and may tow accident damaged motor vehicles weighing 4 tonnes or more if their tow trucks are capable of doing so; · provide that non-licensed tow trucks are not permitted to attend accident scenes; · clarify the circumstances in which accident towing demerit points are incurred by towing industry participants; · clarify when a person must carry and produce a tow truck driver accreditation certificate; · ensure that, in addition to police officers, authorised officers may sign an authority to tow in certain circumstances; · clarify the circumstances in which the offences relating to touting for repair work, towing work and vehicle storage will apply; · provide for the issuing of training permits to persons to allow them to be trained in the driving and operation of tow trucks prior to them becoming accredited tow truck drivers; · clarify that the driver or passenger of a damaged or broken down vehicle may travel as a passenger in a licensed tow truck; and · make a number of other minor and technical amendments to improve the operation of the Accident Towing Services Act 2007. Part 5 amends the Transport Act 1983 to correct a typographical error and also makes a minor amendment to the Melbourne City Link Act 1995. Part 6 provides for the repeal of this amending Bill. 3

 


 

Clause Notes PART 1--PRELIMINARY Clause 1 sets out the purposes of the Bill. Clause 2 provides for the commencement arrangements. Several clauses will come into operation on a day to be proclaimed. Clause 4(2) provides new definitions that will ensure consistency of terminology between the Act and the Road Safety (General) Regulations 2009. Clauses 24, 25, 26(2), 27, 28, 29, 30, 31, 34(1) and (2) and 42 also amend the Road Safety Act 1986 for the purpose of consistency in terminology. All of these clauses require a delayed commencement so that they will become operative at the same time as the Road Safety (General) Regulations 2009. Clause 10 will come into operation on a day to be proclaimed to allow Victoria Police time to make administrative arrangements in relation to the operation of that clause. Clause 19 requires a delayed commencement to allow for the amendment of regulation 601 in the Road Safety (General) Regulations 2009. It is proposed to amend regulation 601 to ensure that this offence cannot be dealt with by an infringement notice. Clause 53, which inserts a new Part 13 into the Road Safety Act 1986 dealing with heavy vehicle speeding offences, requires a delayed commencement to allow for the repeal of regulations in the Road Safety (Vehicles) Regulations 1999 which deal with heavy vehicle speeding offences. Subclause (3) provides that if one of these clauses does not come into operation before 1 October 2010, it comes into operation on that day. PART 2--AMENDMENT OF ROAD SAFETY ACT 1986 Clause 3 provides that the Road Safety Act 1986 is called the Principal Act in Part 2 of the Bill. Clause 4 inserts definitions in the Road Safety Act 1986. These are definitions such as "Chief Commissioner of Police", that confirm that certain terms have the same meaning as in the Police Regulation Act 1958. "Member of police personnel" which refers to both sworn and unsworn members will replace "member of the police force" in some of the provisions of Part 6A of the Road Safety Act 1986. The purpose of this amendment is to allow vehicles to be surrendered to unsworn members as well as sworn members. "Municipal council" has the same meaning as in the Local Government Act 1989. "Prescribed road safety camera" and "prescribed speed detector" are terms that will be 4

 


 

used in the Road Safety (General) Regulations 2009. "Rules" is defined to mean the rules made under section 95D. Section 95D makes provision for the Governor in Council to make rules. Clause 4(7) will insert a new section 3(6) into the Road Safety Act 1986 in order to ensure that references in the Act to a traffic signal or a level crossing are understood as including the matters specified under section 3(6)(a) in relation to traffic signals and (b) in relation to level crossings. Clause 5 amends section 21(2) of the Road Safety Act 1986 so that it will also apply to a driver licence that is cancelled by operation of the Act, in addition to being cancelled by a court or the Corporation. Section 21(2) provides that if a driver licence which is granted on probation is cancelled and a new driver licence is granted, that new licence must, subject to the regulations, also be granted on probation. This amendment will ensure that where a person's probationary licence has been cancelled as a result of a drink driving infringement under section 89C of the Road Safety Act 1986, any new licence granted to the person will be granted on probation. Clause 6 amends section 27 of the Road Safety Act 1986. This clause should be read with clause 47, which inserts a new section 96B into the Road Safety Act 1986. The effect of these amendments is to enable legislative recognition to be given to standards used to determine fitness to drive by requiring those standards to be published in guidelines issued by the Minister under section 96B and any tests carried out to be in accordance with any relevant guidelines. Clause 7 repeals section 28(6) of the Road Safety Act 1986. The clause is intended to address the decision of the Supreme Court in Dolheguy v Becker [2009] VSC 106 by removing the exception in section 28(6) of the Act to the provisions of the Act which make the registered operator of a vehicle, which is used to commit a speeding offence detected by a road safety camera, liable to the same penalties, and subject to the same consequences, to which the person would have been subject and liable had the person been the driver at the time of the offence. It should be noted that a person who is liable for a speeding offence under this "operator onus" principle is able, under Part 6AA of the Road Safety Act 1986, to avoid liability by nominating the person who was actually driving or by providing a statement explaining why he or she is unable to do so (for example, because the vehicle was stolen). 5

 


 

Clause 8 amends section 49(2A)(a) of the Road Safety Act 1986 by substituting "more than 12 penalty units" with "more than 20 penalty units". Section 49(2A)(a) provides penalties for drink driving offences. The amended provision will increase the fine for first time drink driving offences from 12 to 20 penalty units. Clause 9 inserts a new section 50AAK into the Road Safety Act 1986 which makes a person who assists with by-passing or otherwise circumventing an alcohol interlock guilty of an offence. New section 50AAK(1) provides that a person must not, without a reasonable excuse, by-pass or disengage an approved alcohol interlock installed in a motor vehicle being, or to be, driven by a person whose licence or permit is subject to an alcohol interlock provision. The penalty for this offence is 25 penalty units. New section 50AAK(2) deals with persons who service or repair vehicles to which an alcohol interlock is installed. These persons will not commit an offence under section 50AAK(1) provided that the conditions specified under section 50AAK(2)(a) and (b) are satisfied. New section 50AAK(3) makes it an offence for a person to blow into an approved alcohol interlock or to procure a person to blow into an approved alcohol interlock, without a reasonable excuse. The penalty for this offence is 10 penalty units. New section 50AAK(4) provides that the accused has the burden of proving reasonable excuse in relation to the offences in subsections (1) and (3). New section 50AAK(4) reverses the usual onus of proof by requiring the defendant to provide a defence in order to escape liability. It is anticipated that it will only be in rare instances that a person might have a lawful excuse for tampering with an alcohol interlock. Clause 10 amends section 51(1) and (1B) of the Road Safety Act 1986 to decrease the current blood and breath alcohol concentration threshold for immediate licence suspension from 015 grams to 010 grams in the case of a person who holds a full driver licence. Clause 11 amends section 55D of the Road Safety Act 1986 by substituting subsection (6) with new subsections dealing with preliminary oral fluid tests. These new subsections remove the reference in the previous subsection (6) to "chewing or sucking" on the prescribed device, in order to permit greater flexibility in relation to the requirements for preliminary oral fluid tests. 6

 


 

Clause 12 amends section 55E of the Road Safety Act 1986 by substituting subsection (9) with new subsections dealing with the collection of oral fluid samples for testing or analysis. These new subsections remove the reference in the previous subsection (9) to "chewing or sucking" on the prescribed device, in order to permit greater flexibility in relation to the requirements for oral fluid testing or analysis. Clause 13 amends section 56 of the Road Safety Act 1986 to allow an "approved health professional" to take a blood sample from a person attending a medical facility following a motor vehicle accident. Section 56 currently only allows a doctor to do so. "Doctor" is defined to mean a registered medical practitioner, including a police surgeon. The amendment allows a wider range of health professionals to take blood samples. Clause 14 amends section 60(2)(b) of the Road Safety Act 1986 by substituting "not more than 10 penalty units" with "not more than 20 penalty units". Section 60 creates offences of failing to give a member of the police force information about the driver of a vehicle. Subsection (2)(a) provides penalties for a person who is guilty of an offence under section 60 if the requirement for information was made by a member of the police force who was investigating an accident that resulted in a person being killed or suffering serious injury. Subsection (2)(b) provides penalties for a person who is guilty of an offence under section 60 in any other case. Subsection (2)(b) is amended to increase the fine to 20 penalty units. Clause 15 inserts a new heading in section 61 which refers to "motor vehicles". Clause 16 inserts a new section 61A into the Road Safety Act 1986. New section 61A imposes the same duties that are imposed upon drivers of motor vehicles, on drivers of vehicles that are not motor vehicles. These duties arise when a driver of a specified vehicle is involved in an accident in which a person is injured or property is damaged or destroyed. The duties include stopping, rendering assistance, exchanging details and reporting to police. Failure to comply with any of these duties renders a person guilty of an offence. "Specified vehicle" is defined under new subsection (8) to mean a vehicle that is not a motor vehicle, non-motorised wheel-chair or motorised wheel-chair that is not capable of a speed of more than 10 km per hour. Bicycles therefore fall within the scope of this provision. "Drive" is defined in section 3 of the Road Safety Act 1986 to include being in control of a vehicle. 7

 


 

The penalties provided under subsections (3), (4) and (5) are half of those that are specified in relation to the driver of a motor vehicle under section 61. New subsection (6) provides that if a person has been convicted or found guilty of an offence against a provision of new section 61A, and has been previously been convicted or found guilty of an offence against another provision of new section 61A (or any previous corresponding enactment), then the conviction for, or finding of guilt of, the later offence, is to be taken to be a conviction for, or finding of guilt of, a subsequent offence. New subsection (7) states that the specifying of fault elements by subsection (3) is not intended to affect the question of whether fault elements are required for any other offence against this section or any other provision of the Road Safety Act 1986. New subsection (8) defines "specified vehicle" as a vehicle that is not a motor vehicle, or a non-motorised wheel-chair or a motorised wheel-chair that is not capable of a speed of more than 10 km per hour. Clause 17 substitutes section 63B(1) of the Road Safety Act 1986 with a new section to allow police to use tyre deflation devices to prevent the use of a vehicle for the purpose of escaping from lawful custody or avoiding arrest. Section 63B currently only authorises the use of such devices during a pursuit. Clause 18 amends section 64 of the Road Safety Act 1986 to provide an offence of dangerous driving for vehicles other than motor vehicles. Such vehicles include bicycles, but certain wheelchairs are expressly excluded. A person guilty of dangerous driving of a vehicle other than a motor vehicle will be liable to a penalty of 120 penalty units or 12 months imprisonment or both, which is half the maximum penalty that can be imposed in the case of a motor vehicle. Clause 19 amends section 65 of the Road Safety Act 1986 to provide an offence of careless driving for vehicles other than motor vehicles. Such vehicles include bicycles, but certain wheelchairs are expressly excluded. A person guilty of careless driving of a vehicle other than a motor vehicle will be liable to a penalty of 6 penalty units for a first offence and 12 penalty units for a subsequent offence. 8

 


 

Clause 20 amends section 65A of the Road Safety Act 1986 to allow the Minister to exempt, by notice published in the Government Gazette, persons involved in organised events on private land from the offence of intentionally losing traction in section 65A(1). New subsection (5) will also ensure that persons participating in events specified in a notice published under section 68(3) (races and speed trials) or section 68(4) (events organised by motoring organisations) will not be guilty of this offence. Clause 21 inserts new section 65B into the Road Safety Act 1986. New section 65B makes it an offence for a driver of a heavy vehicle to drive the heavy vehicle at a speed that exceeds the speed limit by 35 kilometres per hour or more. The penalty for this offence is 30 penalty units. Currently, the Road Safety (Road Rules) Regulations 1999 provide a penalty of 20 penalty units for drivers of heavy vehicles who breach Road Rule 20 by exceeding the speed limit. In order to increase the penalty for committing this offence, the offence provision must be included in the Road Safety Act 1986 as section 95(3)(f) of the Act provides that penalties in the regulations must not exceed 20 penalty units. Clause 22 amends section 66 of the Road Safety Act 1986 by substituting "prescribed detection device" (wherever occurring) with "prescribed road safety camera". The purpose of the amendment is to ensure consistency in terminology between the Act and the proposed Road Safety (General) Regulations 2009. Clause 23 inserts section 73A into the Road Safety Act 1986 which introduces an offence to obstruct, hinder, threaten, abuse or intimidate a person who is operating a road safety camera or speed detector. The maximum penalty is 60 penalty units. Clause 24 amends section 74 of the Road Safety Act 1986 by substituting subsection (1) with a new subsection in order to replace "prescribed speed measuring device" with "prescribed road safety camera" and "prescribed speed detector". The purpose of the amendment is to ensure consistency in terminology between the Act and the proposed Road Safety (General) Regulations 2009. Clause 25 amends section 79(1) of the Road Safety Act 1986 by substituting "prescribed speed measuring device" with "prescribed road safety camera or prescribed speed detector". The purpose of the amendment is to ensure consistency in terminology between the Act and the proposed Road Safety (General) Regulations 2009. 9

 


 

Clause 26 Subclause (1) inserts a new heading to section 80 of the Road Safety Act 1986 to substitute "camera devices" with "prescribed road safety cameras". Subclause (2) amends section 80(1) of the Road Safety Act 1986 to substitute "traffic control signal" with "traffic signal" (wherever occurring). Subclause (3) amends sections 80(1)(a) and 80(1)(b) of the Road Safety Act 1986 by substituting "a detection device prescribed for the purposes of section 66" with "a prescribed road safety camera". The purpose of the amendments is to ensure consistency in terminology between the Act and the proposed Road Safety (General) Regulations 2009. Clause 27 Subclause (1) inserts a new heading to section 80A to substitute "camera devices" with "prescribed road safety cameras". Subclause (2) amends section 80A of the Road Safety Act 1986 by substituting "a detection device prescribed for the purposes of section 66" with "a prescribed road safety camera". The purpose of the amendments is to ensure consistency in terminology between the Act and the proposed Road Safety (General) Regulations 2009. Clause 28 Subclause (1) inserts a new heading to section 81 of the Road Safety Act 1986 to substitute "speed cameras" with "prescribed road safety cameras". Subclause (2) amends sections 81(1)(a) and 81(1)(b) of the Road Safety Act 1986 by substituting "a detection device prescribed for the purposes of section 66" with "a prescribed road safety camera". The purpose of the amendments is to ensure consistency in terminology between the Act and the proposed Road Safety (General) Regulations 2009. Clause 29 amends section 83 of the Road Safety Act 1986 by inserting "prescribed speed detector or" before "device". The purpose of the amendment is to ensure consistency in terminology between the Act and the proposed Road Safety (General) Regulations 2009. Clause 30 Subclause (1) inserts a new heading to section 83A of the Road Safety Act 1986 to substitute "prescribed detection devices" with "prescribed road safety cameras". Subclause (2) amends section 83A(1) of the Road Safety Act 1986 by substituting "a prescribed detection device for the purposes of section 66" with "a prescribed road safety camera" in paragraph (a) and "a detection device prescribed for the purposes of section 66" with "a prescribed road safety camera" in paragraph (b). Subclause (3) amends section 83A(1)(c) by substituting "detection device" with "prescribed road safety camera". The purpose of the amendments is to ensure consistency in 10

 


 

terminology between the Act and the proposed Road Safety (General) Regulations 2009. Clause 31 Subclause (1) amends section 84(7)(a) of the Road Safety Act 1986 by substituting "a detection device prescribed for the purposes of section 66" with "a prescribed road safety camera". Subclause (2) substitutes paragraph (b) of section 84(7) with a new paragraph in order to replace the reference to "a detection device prescribed for the purposes of section 66" with "a prescribed road safety camera" and "traffic control signal" with "traffic signal". The purpose of the amendments is to ensure consistency in terminology between the Act and the proposed Road Safety (General) Regulations 2009. Clause 32 repeals section 84BD(2) of the Road Safety Act 1986 which provided for the recording of the payment of a monetary penalty or demerit points in relation to an offence that was an operator onus offence by force of section 66, for the purposes of a heavy vehicle registration suspension scheme. The purpose of repealing section 84BD(2) is to remove references to the heavy vehicle registration scheme from the Road Safety Act 1986. Clause 43 repeals other references to the scheme in the Act. The scheme was established under the regulations to permit the suspension of the registration of heavy vehicles for speeding offences. New Part 13 which is inserted into the Road Safety Act 1986 by clause 52 now deals with matters concerning heavy vehicle speeding offences. Clause 33 Subclause (1) amends section 84C(1) of the Road Safety Act 1986 to insert a definition for "disposal order". Disposal orders will be made under new section 84ZW in relation to motor vehicles that have been impounded or immobilised and have not been collected or released 2 or more months after the date on which the motor vehicle became available for collection or release. Subclause (2) substitutes paragraph (b) of the definition of "relevant offence" in section 84C(1) of the Road Safety Act 1986 in order to include the offence of dangerous driving under section 64(1) of the Act in circumstances involving excessive speed (that is, where the vehicle is driven at 45 km per hour or more over the speed limit or, if the applicable speed limit is 110 km per hour, at a speed of 145 km per hour or more). Under the current definition, dangerous driving is a "relevant offence" only if the driver intentionally loses traction. The effect of the expanded definition of "relevant offence" is that motor vehicles can be seized, impounded, immobilised or forfeited for dangerous driving involving excessive speed. 11

 


 

Clause 34 Subclause (1) amends section 84H(2)(a)(i) of the Road Safety Act 1986 by substituting "a prescribed detection device for the purposes of section 66 and the detection device is" with "a prescribed road safety camera". Subclause (2) amends section 84H(3)(a)(i) by substituting "a prescribed detection device" with "a prescribed road safety camera". The purpose of the amendments is to ensure consistency in terminology between the Act and the proposed Road Safety (General) Regulations 2009. Subclause (3) amends section 84H(3)(d) of the Road Safety Act 1986 by substituting "the police force" with "police personnel". The purpose of this amendment is to allow the motor vehicle to be surrendered to unsworn members as well as sworn members. Subclause (4) inserts a new subsection (3A) into section 84H of the Road Safety Act 1986. This new subsection introduces an offence of failing to comply with a notice served under section 84H to surrender the motor vehicle, unless the registered operator has a reasonable excuse. The penalty for this offence is 60 penalty units. Subclause (5) amends section 84H(4) of the Road Safety Act 1986 by substituting "the police force" (where first occurring) with "police personnel". The purpose of this amendment is to allow the motor vehicle to be surrendered to unsworn members as well as sworn members. Clause 35 Subclause (1) substitutes "the police force" in section 84S(3) of the Road Safety Act 1986 with "police personnel". The purpose of this amendment is to allow the motor vehicle to be surrendered to unsworn members as well as sworn members. Subclause (2) inserts a new subsection (4) into section 84S of the Road Safety Act 1986. This new subsection introduces an offence of failing to surrender the motor vehicle at the time and place specified in a court order made under subsection (1), without reasonable excuse. Under subsection (1) the relevant court may order that the motor vehicle be impounded or immobilised for a period of up to 3 months. The penalty for this offence is 60 penalty units. Clause 36 Subclause (1)(a) amends section 84T(3) of the Road Safety Act 1986 by substituting "A forfeiture order under subsection (1)" with "an order made under subsection (1)". The purpose of this amendment is to make the terminology in section 84T(3) consistent with that of section 84S(3). 12

 


 

Subclause (1)(b) amends section 84T(3) of the Road Safety Act 1986 by substituting "the police force" with "police personnel". The purpose of this amendment is to allow a motor vehicle to be surrendered to unsworn members as well as sworn members. Subclause (2) inserts a new subsection (4) into section 84T of the Road Safety Act 1986. This new subsection introduces an offence of failing to surrender a motor vehicle at the time and place specified in a court order made under subsection (1), without reasonable excuse. Under subsection (1) the relevant court may order that the motor vehicle be forfeited to the Crown. The penalty for this offence is 60 penalty units. Clause 37 inserts a new Subdivision heading into Division 5 of Part 6A of the Road Safety Act 1986. The effect of this is to separate Division 5 into three sets of provisions, the first being provisions relating to the sale or disposal of uncollected motor vehicles and items, the second inserted by clause 33 relating to the existing provisions dealing with the sale or disposal of motor vehicles subject to a forfeiture order and the third inserted by clause 34 relating to new provisions dealing with the disposal of motor vehicles and items subject to a disposal order. Clause 38 substitutes subsection (2) of section 84ZQ of the Road Safety Act 1986 with new subsections (2) and (3). The amendments reiterate the matters that currently must be satisfied before the Chief Commissioner of Police may sell or otherwise dispose of a motor vehicle, or any item or thing left in or on the motor vehicle. The new subsections also permit the Chief Commissioner of Police to sell or otherwise dispose of a motor vehicle if a disposal order is made under new section 84ZW. The power to issue a disposal order has been introduced into the Road Safety Act 1986 to deal with the situation that arises when a defendant fails to appear in relation to the relevant offence, the matter is adjourned other than to a date to be fixed and a warrant is issued for the defendant's arrest. In these circumstances, unless there is a power for a court to make a disposal order, the Chief Commissioner of Police could be responsible for storing an impounded or immobilised motor vehicle for an indefinite period of time, without a lawful basis to dispose of the motor vehicle. The criteria which must be met before the Chief Commissioner of Police may give notice of an application for a disposal order are set out in section 84ZU(1). Clause 39 inserts a new Subdivision heading into Division 5 of Part 6A of the Road Safety Act 1986 in relation to the existing provisions dealing with the sale or disposal of motor vehicles subject to a forfeiture order. 13

 


 

Clause 40 inserts a new Subdivision into Division 5 of Part 6A of the Road Safety Act 1986 in relation to new provisions dealing with the disposal of motor vehicles and items subject to a disposal order. New section 84ZT(1) permits the Chief Commissioner of Police to sell or otherwise dispose of a motor vehicle that is the subject of a disposal order, and any item or thing left in or on the motor vehicle. New section 84ZT (2) provides that the Chief Commissioner must not sell or dispose of an item or thing left in or on a motor vehicle unless all reasonable efforts have been made to return the item or thing to its owner. New section 84ZU(1) specifies the criteria that must be met before the Chief Commissioner of Police may give notice of an application for a disposal order. New section 84ZU(2) provides that at least 28 days before making an application for a disposal order, the Chief Commissioner of Police must serve notice of this intention on the persons specified in subsection (2)(a), including the driver of the motor vehicle and any person who the Chief Commissioner of Police is aware has an interest in the motor vehicle and, in accordance with subsection (2)(b), must publish notice of this intention in a newspaper circulating generally in the State. New section 84ZU(3) specifies the matters that must be stated by the notice served under subsection (2). These matters include that a person named in the notice may appear before the relevant court hearing the application and show cause why the order should not be made and that any person on whom a notice is served must not sell or otherwise dispose of the person's interest in the motor vehicle without the approval of the relevant court. New section 84ZV permits the Chief Commissioner to apply to the court for a disposal order if a notice has been served in accordance with section 84ZU(2)(a) and the motor vehicle has not been collected, or the designated costs paid, within 28 days after the date the notice is served. New section 84ZW requires a court hearing an application for a disposal order to allow a person served with a notice under section 84ZU to be heard and to show cause why the disposal order should not be made. It also permits the court to allow any other person to be heard if satisfied that the order may substantially affect the person's interests. Subsection (2) permits the court to either make the disposal order or decline to do so if satisfied that the order would cause exceptional hardship to a person. Subsection (3) provides that if the court makes the 14

 


 

disposal order the Crown becomes the owner of the motor vehicle. New section 84ZX(1) sets out the order of priority in which the proceeds of the sale of a motor vehicle, item or thing under a disposal order, are to be applied. New section 84ZX(2) provides that any sum remaining after the proceeds are applied in accordance with subsection (1), is taken to be unclaimed money under the Unclaimed Money Act 2008 as if it were a sum of money legally payable to the owner of the vehicle immediately before the disposal order was made, that has remained unpaid for more than 12 months. Clause 41 amends section 87 of the Road Safety Act 1986. Subclause (1) substitutes subsection (1A) with a new subsection that provides for an authorised person for a relevant public authority, in addition to an authorised person for a municipal council, to serve a parking infringement notice. A public authority will be a "relevant public authority" if it is declared to be such by the Minister under new section 87(6)(a). The amendments to section 87 will enable contractors of relevant public authorities to serve parking infringement notices. Under the current section 87 contractors of municipal councils may do so, but there is no express provision for contractors of relevant public authorities to serve parking infringement notices. Subclauses (2) to (8) amend section 87 of the Road Safety Act 1986 for the purpose of enabling an authorised person for a relevant public authority to serve a parking infringement notice and to allow a relevant public authority to increase parking fines. The relevant public authority may only increase these fines with the approval of the Minister under new section 87(4)(b). New subsection (4) provides that the penalty fixed must not be more than 0·5 penalty unit and not more than a penalty already prescribed by the regulations in respect of that infringement. Currently the power to increase parking fines under section 87 may only be exercised by municipal councils. New subsection (4A) provides that a penalty fixed under subsection (4) for the purposes of section 87 is in respect of parking infringements occurring within the municipal district of the municipal council that has fixed the penalty or, in the case of a penalty fixed by a relevant public authority, on land or premises that are vested in or under the control of that authority. Subclause (9) inserts "or relevant public authority" into section 87(5)(a) so that an amount fixed by a relevant public authority can be a penalty payable under a notice issued by a member of the police force in respect of an infringement. 15

 


 

Subclause (10) inserts new subsections (6), (7) and (8) into section 87 of the Road Safety Act 1986. New subsection (6) empowers the Minister to declare a public authority to be a relevant public authority and to declare land or premises that are vested in, or under the control of, the public authority to be a relevant place for the purposes of section 87. New subsection (7) empowers the Minister responsible for a relevant public authority to give an approval for the public authority to fix a parking infringement penalty under subsection (4). New subsection (8) provides definitions for the purposes of section 87. Clause 42 amends section 88(1A) of the Road Safety Act 1986 by substituting "a detection device prescribed for the purposes of section 66" with "a prescribed road safety camera". The purpose of the amendment is to ensure consistency in terminology between the Act and the proposed Road Safety (General) Regulations 2009. Clause 43 repeals subsections (6) and (7) of section 89 of the Road Safety Act 1986. These provisions are repealed as they deal with the heavy vehicle registration suspension scheme established under the regulations to permit the suspension of the registration of heavy vehicles for speeding offences. New Part 13 which is inserted into the Road Safety Act 1986 by clause 52 now deals with matters concerning heavy vehicle speeding offences. Clause 44 Subclause (1) inserts a new section 95(3AB) into the Road Safety Act 1986 in order to provide a clear head of regulation- making power in relation to traffic infringements that will enable regulations to be made that distinguish between times, days, circumstances, places, persons, classes of persons, vehicles or classes of vehicles and that allow for a different amount of penalty for a traffic infringement depending on the circumstances or the extent of the contravention. Subclause (2) inserts new subsection (11) to provide a power to make transitional provisions. Clause 45 inserts new section 95D which provides that the Governor in Council may make rules. This new section will allow road rules to be made by the Governor in Council rather than being made by Ministerial declaration published in the Government Gazette. The new section will also allow the road rules (or any other rules made under this provision) to be called "rules" rather than "regulations". New section 95D(2) provides that sections 95(2) to 95(10) apply to rules made under this section. This ensures that the rules will be subject to the same provisions as regulations. New section 95D(3) provides that rules made under section 95D are statutory rules. 16

 


 

Clause 46 inserts a new heading for section 96 of the Road Safety Act 1986 and further amends section 96 so that the guidelines issued by the Minister under section 96B must be tabled in Parliament and may be disallowed by either House. Subclause (4) inserts "rules" into section 96(2) of the Road Safety Act 1986 to allow rules to be disallowed by Parliament. Clause 47 inserts new section 96B into the Road Safety Act 1986 to allow the Minister to issue guidelines about testing a person under section 27 to determine whether the person is unfit to drive, it is dangerous for the person to drive or the person's driver licence or permit should be subject to conditions and if so, the type of conditions to be imposed. The guidelines must be published in the Government Gazette and may incorporate any matter contained in an external document. Clause 48 amends section 100 by substituting "under this Act," with "under this Act or the rules,". The addition of the reference to "rules" to section 100 means that this section will also apply to rules made under section 95D. This means that a provision made under another Act or by-law that is inconsistent with a rule will be, to the extent of the inconsistency, of no force or effect. Clause 49 repeals the definition of "relevant law or scheme" in section 106 of the Road Safety Act 1986. This definition will be inserted into section 3(1) of the Act by clause 4(1). The phrase "relevant law or scheme" was previously defined for the purposes of Part 9 of the Act, which deals with inspections and searches concerning heavy vehicles. New Part 13 also refers to a "relevant law or scheme" in new section 290. As the phrase is used in both Parts 9 and 13 it is appropriate to move the definition of the phrase to section 3(1) so that it will apply to the phrase in both of those Parts. Clause 50 amends section 178(1) of the Road Safety Act 1986 by substituting "section 176(3) or section 176(4) with "section 176". Section 178(1) provides penalties for persons who commit offences under Division 4 of Part 10 of the Road Safety Act 1986. The penalties under section 178(1) do not apply to persons who commit offences under sections 176(3) and 176(4) as these sections already provide penalties for their respective offences. However, section 176(2) also provides a penalty for the offence under that section. Section 178(1) has therefore been amended so that it does not apply to persons who commit offences under any subsection of section 176. 17

 


 

Clause 51 amends section 191ZY of the Road Safety Act 1986 by inserting a penalty of 20 penalty units for a contravention of section 191ZY(2). Section 191ZY(2) requires a driver who is informed that an operator's AFM accreditation has changed or ceased, to immediately return to the operator any document given to the driver for the purposes of section 191ZW(1)(a) or (b). Clause 52 amends the definition of "relevant heavy vehicle offence" for the purposes of Part 11 in section 192(2)(a) of the Road Safety Act 1986 by inserting a new subparagraph (iii). As a result of this amendment a contravention of a requirement under new Part 13 will fall within the definition of "relevant heavy vehicle offence". This means that the provisions of Part 11 will apply to those contraventions. Part 11 provides additional provisions concerning relevant heavy vehicle offences, including additional offences, vicarious responsibility for offences and defences. Clause 53 inserts a new Part 13 into the Road Safety Act 1986. Part 13 implements the National Transport Commission's model legislation on heavy vehicle speeding compliance. Part 13 applies to heavy vehicles, as defined in section 3 of the Road Safety Act 1986. Part 13 introduces a chain of responsibility for speed compliance. Each party in the chain who can influence whether speeding occurs will have a measure of responsibility to ensure that the driver is not encouraged or required to speed in order to fulfil the road transport task. Drivers are excluded from the obligations under Part 13 as they already have to comply with existing speeding laws. Division 1 of Part 13 deals with Preliminary matters. New section 274 inserts definitions of terms used in Part 13. One of these definitions is "party in the chain of responsibility" which identifies persons such as the employer of the driver, the prime contractor of the driver and the loading manager who have a measure of responsibility for ensuring a driver of a heavy vehicle is not encouraged to speed. Part 13 includes offences that may be committed by a person in relation to a party in the chain of responsibility. New section 275(1) applies the Commonwealth Acts Interpretation Act 1901 to the interpretation of Part 13. Division 2 of Part 13 imposes duties on employers, prime contractors and operators. ("Operator" is defined in section 3(1) of the Road Safety Act 1986.) 18

 


 

New section 276(1) requires the employer and the prime contractor of a driver of a heavy vehicle and the operator of a heavy vehicle in which a driver is to make a journey for the operator, to take all reasonable steps to ensure that their business practices will not cause the driver, while driving the heavy vehicle, to exceed a speed limit. "Speed limit" is defined in new section 274. Section 285 sets out some of the factors a court may consider in determining whether a person has taken all reasonable steps. Section 284 sets out a method by which an employer, prime contractor and operator can take all reasonable steps for the purposes of this subsection. The penalty for a corporation for a first offence is 250 penalty units and 50 penalty units in any other case. The penalty for a corporation for a subsequent offence is 500 penalty units and 100 penalty units in any other case. New section 276(2) makes it an offence for an employer to cause a driver to drive a heavy vehicle unless the employer has complied with subsection (1) and after making reasonable inquiries, is satisfied the scheduler has complied with section 278. (New section 278 requires a scheduler to take all reasonable steps to ensure a driver's schedule for driving a heavy vehicle will not cause the driver to exceed a speed limit.) The penalty for a corporation for a first offence is 100 penalty units and 20 penalty units in any other case. The penalty for a corporation for a subsequent offence is 250 penalty units and 50 penalty units in any other case. New section 276(3) imposes the same obligation on prime contractors and operators and the same penalties for first and subsequent offences. New section 276(4) provides that a person charged with an offence under subsection (1), (2) or (3) does not have the benefit of the mistake of fact defence. New section 287 explains how subsection (4) operates. New section 276(5) provides a definition of "business practices". New section 277(1) provides definitions for the terms used in this section. The level of prohibited conduct determines the penalty that may be imposed on the employer, prime contractor or operator if the vehicle or the driver of the vehicle, at the time the prohibited conduct is committed, is subject to their control. Subsections (2), (3) and (4) deal respectively with the liability of the employer, prime contractor and operator when a driver of a heavy vehicle commits level 1, 2 or 3 prohibited conduct. A person will be liable to a penalty for a subsequent offence under subsection (2), (3) or (4) if the person has committed any 19

 


 

previous offence under section 277 (whether it be an offence under subsection (2), (3) or (4)). Subsection (5) provides that a person does not commit an offence under subsection (2), (3) or (4) if a person controls a vehicle that is one of a group of vehicles that is being towed, but does not control the driver or the vehicle that is towing the group of vehicles. Subsection (6) provides that a person charged with an offence under section 277 does not have the benefit of the mistake of fact defence. Section 287 sets out how subsection (6) operates. Subsection (7) provides that it is a defence to a charge for an offence under section 277 if the person did not know and could not reasonably be expected to know of the conduct of the driver and, either the person took all reasonable steps to prevent the driver's conduct or there were no steps the person charged could reasonably be expected to have taken to prevent the driver's conduct. Subsection (8) specifies certain matters that are irrelevant in any proceeding for an offence under new section 277 and specifies matters that constitute evidence in a proceeding. Subsection (7)(a) provides that it is irrelevant whether the driver has been, or will be, charged with the speeding offence, or has been, or will be, found guilty of the speeding offence. Subsection (7)(b) provides that evidence that the driver has been found guilty of the speeding offence is evidence that the offence occurred at the time and place, and in the circumstances, specified in the charge that resulted in the finding of guilt. Subsection (7)(c) provides that evidence that the driver has paid the infringement penalty payable under an infringement notice for a speeding offence is evidence that the offence occurred at the time and place, and in the circumstances, specified in the infringement notice. Division 3 imposes duties on schedulers. New section 278(1) requires a scheduler to take all reasonable steps to ensure a driver's schedule for driving a heavy vehicle will not cause the driver to exceed a speed limit. The penalty for a corporation for a first offence is 250 penalty units and 50 penalty units in any other case. The penalty for a corporation for a subsequent offence is 500 penalty units and 100 penalty units in any other case. 20

 


 

New section 278(2) provides that a scheduler must comply with subsection (1) and cause the schedule for driving to be such that it allows for that matters specified under subparagraphs (i) to (iii), including compliance with all speed limits applying to the driver of the vehicle. The penalty for a corporation for a first offence is 100 penalty units and 20 penalty units in any other case. The penalty for a corporation for a subsequent offence is 250 penalty units and 50 penalty units in any other case. New section 278(3) provides that a person charged with an offence under subsection (1) does not have the benefit of the mistake of fact defence. Division 4 imposes duties on loading managers. New section 279(1) requires a loading manager to take all reasonable steps to ensure the arrangements for loading and unloading heavy vehicles at the premises at which he or she is the loading manager will not cause the driver of a heavy vehicle to exceed a speed limit that applies to the vehicle. The penalty for a corporation for a first offence is 250 penalty units and 50 penalty units in any other case. The penalty for a corporation for a subsequent offence is 500 penalty units and 100 penalty units in any other case. Subsection (2) provides that a person charged with an offence under subsection (1) does not have the benefit of the mistake of fact defence. Division 5 imposes duties on certain consignors and consignees. New section 280 provides definitions of "consignor" and "consignee" for the purposes of Division 5. Division 5 will only apply to a consignor who engages a particular operator of a heavy vehicle to transport goods on the person's behalf by road for commercial purposes. Division 5 will only apply to a consignee who is identified in the relevant transport documentation as the intended consignee of goods that are transported by road by a particular operation of a heavy vehicle, and who knows, or who ought reasonably to have known, the goods were to be transported by road. New section 281(1) requires the consignor and consignee to take all reasonable steps to ensure the terms of consignment will not cause the driver of a heavy vehicle that is to transport the consigned goods to exceed a speed limit. The penalty for a corporation for a first offence is 250 penalty units and 50 penalty units in any other case. The penalty for a corporation for a subsequent offence is 500 penalty units and 100 penalty units in any other case. 21

 


 

New section 281(2) requires the consignor and consignee to take all reasonable steps to ensure the terms of the consignment will not cause an employer, prime contractor or operator of the driver of the heavy vehicle that is to transport the consigned goods to cause the driver to exceed a speed limit. The penalty for a corporation for a first offence is 250 penalty units and 50 penalty units in any other case. The penalty for a corporation for a subsequent offence is 500 penalty units and 100 penalty units in any other case. New section 281(3) makes it an offence for a consignor or consignee to make a demand that affects, or that may affect, a time in a schedule for the transport of the consigned goods by heavy vehicle unless the consignor or consignee has complied with subsections (1) and (2) and is satisfied, after making reasonable inquiries, that the demand will not cause the scheduler to contravene section 278. The penalty for a corporation for a first offence is 100 penalty units and 20 penalty units in any other case. The penalty for a corporation for a subsequent offence is 250 penalty units and 50 penalty units in any other case. New section 281(4) provides that a person charged with an offence under subsection (1), (2) or (3) does not have the benefit of the "mistake of fact" defence. Division 6 prohibits certain requests and contracts. New section 282 prohibits a person from asking, directing or requiring a driver or a party in the chain of responsibility to do something the person knows, or reasonably ought to know, would have the effect of causing the driver, while driving a heavy vehicle, to exceed a speed limit. The penalty for a corporation is 500 penalty units and 100 penalty units in any other case. New section 283(1) prohibits a person from entering into a contract with a driver or with a party in the chain of responsibility if the person knows, or reasonably ought to know, that the contract would have the effect of causing a driver, while driving a heavy vehicle, to exceed a speed limit. The penalty for a corporation is 500 penalty units and 100 penalty units in any other case. New section 283(2) prohibits a person from entering a contract with a driver or with a party in the chain of responsibility if the person knows, or reasonably ought to know, that the contract would encourage or provide an incentive for a party in the chain of responsibility to cause a driver, while driving a heavy vehicle, to exceed a speed limit. The penalty for a corporation is 500 penalty units and 100 penalty units in any other case. 22

 


 

Division 7 deals with reasonable steps and provisions concerning defences. New section 284 sets out a method by which a person can take all reasonable steps to prevent an act or omission that might cause a driver, while driving a heavy vehicle, to exceed a speed limit. If the person has taken all the actions specified under paragraphs (a) to (e) the person must be regarded as having taken all reasonable steps. New section 285 provides that in deciding whether the actions of a person constitute all reasonable steps, a court may have regard to anything that it considers relevant, including the matters specified under paragraphs (a) to (h). New section 286(1) provides that in any proceeding for an offence against Part 13, proof that the person complied with all relevant standards and procedures in relation to matters to which the offence relates is evidence that the person took all reasonable steps to prevent the contravention. Subsection (2) provides that subsection (1) is not available to a person charged with an offence unless the person has given written notice of the intention to prove the matters referred to in that subsection to the prosecution. Subsection (3) specifies requirements in relation to the written notice. New section 287 explains how the provisions, which state that a person does not have the benefit of the mistake of fact defence, operate. The section provides that it is not a defence if the person was under a mistaken but honest and reasonable belief about facts which, had they existed, would have meant the conduct would not have constituted an offence. Division 8 deals with evidence and legal proceedings. New section 288 sets out the matters a court must consider when deciding whether the person ought reasonably to have known the thing. New section 289 states that in a proceeding for an offence under this Part, other than an offence under section 277, it is not necessary to prove that a driver exceeded a speed limit. New section 290 provides that nothing in Part 13 has the effect or preventing or excluding the use of any other powers of enforcement available to an inspector in relation to a relevant law or scheme. The phrase "relevant law or scheme" is defined in clause 4(1) to mean a road or transport law, a non-Victorian road or transport law or an approved road transport compliance scheme. "Road or transport law" is defined in section 3 of the Road Safety Act 1986 to include the Act, the Transport Act 23

 


 

1983 and any regulations made under the Act or the Transport Act 1983. The purpose of section 290 is to confirm that enforcement powers available to an inspector under Part 9 of the Road Safety Act 1986 are also available to an inspector for the purposes of Part 13. New section 291 sets out the matters that determine when a penalty for a subsequent offence can be imposed. If a court cannot determine whether an 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. A court must have regard to a finding of guilt for an offence committed under corresponding provisions of a corresponding law, when determining whether a person has previously been found guilty of an offence under Part 13. "Corresponding law" is defined in new section 274 to mean a law in force in another State or a Territory of the Commonwealth that corresponds to Part 13 or a law of another State or a Territory of the Commonwealth that is prescribed by the regulations to be a corresponding law to Part 13. New section 292 deals with multiple offenders and provides that proceedings may be taken against any one or more persons liable to be found guilty of an offence. Proceedings may be taken against any person liable to be found guilty of an offence in respect of a provision of Part 13, whether or not proceedings have commenced against any other person, whether or not those proceedings have finished and regardless of the outcome of any proceedings that have finished. New section 293(1) confirms that except where expressly provided, nothing in Part 13 affects any power that a court, a tribunal, the Corporation or an authorised officer or member of the police has apart from Part 13. New subsection (2) provides that nothing in Part 13 affects a power or obligation under the Road Safety Act 1986 or another law to vary, suspend, cancel or otherwise deal with any licence or registration. New section 294(1) prohibits contracting out by providing that a term of a contract that purports to exclude, limit or modify the operation of Part 13 of the Road Safety Act 1986 is void to the extent that it would otherwise have that effect. Subsection (2) provides that subsection (1) does not apply to a term of a contact to the extent that it purports to impose a requirement on a person that is more onerous than the relevant requirement imposed by Part 13. 24

 


 

New section 295 permits proceedings to be commenced for an offence under Part 13 within 2 years after the commission of the alleged offence. The time to commence a prosecution has been extended under new section 295 to 2 years (from the usual one year limit for summary offences under section 26(4) of the Magistrates' Court Act 1989) due to the likelihood that prosecutions for chain of responsibility offences will take longer than other prosecutions. Clause 54 amends Schedule 2 of the Road Safety Act 1986 to allow for regulations to be made relating to the broader category of "devices, systems or processes" to detect offences, rather than "detection devices or processes". PART 3--AMENDMENT OF ROAD MANAGEMENT ACT 2004 Clause 55 amends section 11 of the Road Management Act 2004 to clarify that, in the event that a road is discontinued by VicRoads (in circumstances where VicRoads is not the relevant coordinating road authority), it is the relevant coordinating road authority that is responsible for notifying the Secretary to the Department of Sustainability and Environment (or the Secretary's nominee) of the discontinuance. Clause 56 amends section 12 of the Road Management Act 2004 to provide that, where VicRoads is not the coordinating road authority with respect to a road or part of a road, it may discontinue that road or part of a road provided that the written consent of the relevant coordinating road authority is obtained and provided that VicRoads follows the public consultation process set out in section 12 of the Act, unless an exemption applies under section 12(11). Once VicRoads has conducted the necessary public consultation, it must make a decision as to whether it will discontinue the road or part of a road. Once a decision has been made, VicRoads must notify the coordinating road authority of the road or part of a road of the decision and the reasons for the decision. It will also be a requirement that VicRoads give notice of the decision and the reasons for the decision to every person who made a submission with respect to the road discontinuance. 25

 


 

Clause 57 substitutes subsection (4) of section 19 of the Road Management Act 2004 to clarify that, in the event that a road or part of a road is discontinued by VicRoads (in circumstances where VicRoads is not the coordinating road authority) it is the coordinating road authority that is responsible for recording the discontinuance of the road on its register of public roads. Clause 58 amends section 68(2) of the Road Management Act 2004 to insert a cross reference to subsection (1). Subsection (1) sets out certain disclosure obligations that are the subject of the offence set out in subsection (2). Clause 59 amends section 109 of the Road Management Act 2004 to expand the current immunity of the Crown and road authorities from liability arising out of failure to fence in or fence off "public highways", so that the immunity applies in relation to all roads. The term "road" is defined in section 3(1) of the Road Management Act 2004. The effect of the amendment will be that the immunity from liability will continue to apply to public highways and will also apply to-- · any ancillary area; · any land declared to be a road under section 11 of the Road Management Act 2004 or forming part of a public highway or ancillary area; and · any other area that falls within the definition of "road". Clause 60 amends clause 4 of Schedule 5 to the Road Management Act 2004, which provides that the Crown and road authorities are not required to fence "public highways". The amendment extends this provision so that it applies to all roads. The term "road" is defined in section 3(1) of the Road Management Act 2004. The effect of the amendment will be that neither the Crown nor road authorities will be obliged to fence any portion of a public highway or -- · any ancillary area; · any land declared to be a road under section 11 of the Road Management Act 2004 or forming part of a public highway or ancillary area; or · any other area that falls within the definition of "road". Clause 61 amends Schedule 8 to the Road Management Act 2004 to provide that infringement notices may be issued with respect to the offences specified in sections 67(3) and 68(2) of that Act. 26

 


 

This clause also corrects a typographical error in the description of an offence contained in Schedule 8 to the Road Management Act 2004. PART 4--AMENDMENT OF ACCIDENT TOWING SERVICES ACT 2007 Clause 62 inserts, substitutes and repeals certain definitions in section 3 of the Accident Towing Services Act 2007. Subclause (1) substitutes a new definition of "accident damaged motor vehicle". The definition has been broadened to ensure that the Accident Towing Services Act 2007 will apply to all motor vehicles damaged as a result of a road accident, and will no longer depend on an assessment of whether the damaged vehicle can be driven safely on the road. Subclause (2) repeals the definitions of "heavy tow truck", "licensed (heavy) tow truck", "licensed (regular) tow truck" and "regular tow truck" because they are no longer required. Subclause (3) substitutes the definition of "licensed tow truck" to provide that a licensed tow truck is a tow truck that is specified in a tow truck licence. Subclause (4) substitutes the definition of "road accident scene roster" in order to clarify that the road accident scene roster only relates to the towing of accident damaged motor vehicles with a gross vehicle mass of less than 4 tonnes. Subclause (5) inserts a definition of "mass, dimension or load restraint limit or requirement". This expression has the same meaning as in the Road Safety Act 1986. It is referred to in the explanation of the meaning of the term "capable of towing" as set out in subclause (6). Subclause (5) also inserts a definition of "tow truck trainee permit". This is a consequence of the new trainee permit system set out in clause 75 of the Bill. Subclause (6) inserts a new subsection (6) into section 3 of the Accident Towing Services Act 2007. The new subsection explains the meaning of the term "capable of towing" which is used in various clauses throughout the Bill. A tow truck will be deemed to be capable of towing a vehicle if the towing of that vehicle would not contravene an applicable mass, dimension or load restraint limit or requirement that applies to the tow truck under the Road Safety Act 1986. 27

 


 

Clause 63 substitutes new sections 6 to 11 of the Accident Towing Services Act 2007. New section 6, is similar to elements of current sections 6 and 7 of the Accident Towing Services Act 2007. However it also contains some deliberate departures. The offences contained in current sections 6 and 7 relate to "providing an accident towing service". The offence in new section 6 relates to "conducting an accident towing service business to provide accident towing services". The purpose of this amendment is to ensure that persons who are not conducting an "accident towing service business" are not subject to this offence. New section 6 also differs from current sections 6 and 7 in that it clarifies that the holder of a regular tow truck licence is permitted to provide the service of towing vehicles to vehicles of any mass. In addition, new section 6 differs from current section 6 and 7 because all references to "regular tow truck" and "heavy tow truck" have been removed. Under the current definitions of those terms, a tow truck could simultaneously be a heavy tow truck and a regular tow truck. New section 6 simply refers to a "regular tow truck licence" and a "heavy tow truck licence", which are clearly defined and understandable terms. New section 7 is similar to elements of current sections 6 and 7 of the Accident Towing Services Act 2007. However it also contains some deliberate departures. The offence in new section 7 applies to the operation of a tow truck "in the course of conducting an accident towing service business". The purpose of this amendment is to ensure that persons who are not conducting an "accident towing service business" are not subject to this offence. In addition, new section 7 clarifies that a person who is operating a tow truck in the course of conducting an accident towing service business must not provide an accident towing service to a vehicle that the tow truck is not capable of towing. The expression "capable of towing" is further explained in new section 3(6) as inserted by clause 62. New section 8(1) largely replicates the offence provisions set out in current sections 8 and 9. However, the offence now relates to "conducting an accident towing service business". The purpose of this amendment is to ensure that persons who are not conducting an "accident towing service business" are not subject to this offence. 28

 


 

New section 8(2) contains a new offence that applies to the driver of a tow truck operating under a regular tow truck licence. The offence relates to towing a vehicle that the tow truck is not capable of towing. New section 8(3) contains a new offence that applies to the driver of a tow truck operating under a heavy tow truck licence. The offence relates to towing a vehicle that the tow truck is not capable of towing or towing a vehicle of a gross vehicle mass of less than 4 tonnes. New section 8 differs from current sections 8 and 9 in that it does not refer to "regular tow truck" or "heavy tow truck". Under the current definitions of those terms, a tow truck could simultaneously be a heavy tow truck and a regular tow truck. New section 8 simply refers to a "regular tow truck licence" and a "heavy tow truck licence", which are clearly defined and understandable terms. New section 9 prohibits a person driving a tow truck that is normally used to provide towing services for hire and reward from attending an accident scene, unless the tow truck is licensed for that purpose. The offence will not apply when the tow truck attends an accident scene for the purpose of undertaking necessary salvage activities. New section 10 sets out VicRoads' powers to license a person to operate a tow truck specified in a regular tow truck licence to provide accident towing services. New section 10 largely replicates current section 10, except that it makes clear that a regular tow truck licence authorises the specified tow truck to tow any vehicle that it is capable of towing. Also, the term "regular tow truck" is no longer used. This reflects the change in the way the licensing requirements are expressed in sections 6 and 7 of the Act as amended by clause 62 of the Bill. New section 11 sets out VicRoads' powers to license a person to operate a tow truck specified in a heavy tow truck licence to provide accident towing services to any vehicles that have a gross vehicle mass of 4 tonnes or more. New section 11 largely replicates current section 11, except that it clarifies that a tow truck operating under a heavy tow truck licence is only permitted to tow vehicles that it is capable of towing. Also, the term "heavy tow truck" is no longer used. This reflects the change in the way the licensing requirements are expressed in sections 6 and 7 of the Act as amended by clause 62 of the Bill. 29

 


 

Clause 64 substitutes for the term "regular tow trucks" the term "tow trucks operating under regular tow truck licences" in section 14 of the Accident Towing Services Act 2007. This reflects the change in the way the licensing requirements are expressed in sections 6 and 7 of the Act as substituted by clause 63 of the Bill. Clause 65 substitutes for the term "heavy tow trucks" the term "tow truck operating under heavy tow truck licences" in section 15(2) of the Accident Towing Services Act 2007. This reflects the change in the way the licensing requirements are expressed in sections 6 and 7 of the Act as amended by clause 63 of the Bill. Clause 66 amends the heading to Division 8 of Part 2 of the Accident Towing Services Act 2007. Clause 67 amends section 41(3) of the Accident Towing Services Act 2007 to increase, from 20 penalty units to 50 penalty units, the maximum penalty for failing to comply with a direction of a member of the police force or an authorised officer to leave a restricted road accident area. Clause 68 makes a number of amendments to section 42 of the Accident Towing Services Act 2007. Subclause (1) substitutes the heading to section 42. Subclause (2) amends section 42(1)(b) to clarify that the offence of a regular tow truck licence holder causing a tow truck to tow a vehicle from a road accident scene in a controlled area without allocation only applies where the towed vehicle has a gross vehicle mass of less than 4 tonnes. Subclause (3) amends section 42(2) to replace the reference to "regular tow truck" with "tow truck operated under a regular tow truck licence". This reflects the change in the way the licensing requirements are expressed in sections 6 and 7 of the Act as substituted by clause 63 of the Bill. Subclause (3) also clarifies that the offence of using a tow truck operating under a regular tow truck licence to tow a vehicle from a road accident scene in a controlled area without an allocation only applies where the towed vehicle has a gross vehicle mass of less than 4 tonnes. Subclause (4) substitutes for the term "regular tow truck" the term "tow truck" in section 42(3). 30

 


 

Clause 69 amends section 44 of the Accident Towing Services Act 2007 to clarify that the prohibition on towing vehicles that have been removed from a designated road in accordance with section 42(3) of the Act without an allocation only applies to the removal of vehicles with a gross vehicle mass of less than 4 tonnes. This clause also replaces a reference to "regular tow truck" with "tow truck operating under a regular tow truck licence". This reflects the change in the way the licensing requirements are expressed in sections 6 and 7 of the Act as substituted by clause 63 of the Bill. Clause 70 substitutes a new subsection (2) of section 45 of the Accident Towing Services Act 2007. The new provision has the same effect as current subsection (2), except that it uses the term "tow truck operating under a regular tow truck licence" instead of the term "regular tow truck". This reflects the change in the way the licensing requirements are expressed in sections 6 and 7 of the Act as substituted by clause 63 of the Bill. Clause 71 amends section 51 of the Accident Towing Services Act 2007 to provide that the offences relating to self-management areas only apply in respect of accident damaged motor vehicles with a gross vehicle mass of less than 4 tonnes. Clause 72 amends section 98 of the Accident Towing Services Act 2007. Sections 98(1) and (2) currently create offences in relation to unaccredited persons driving, or accompanying the driver of, a licensed tow truck. These offences are subject to the exceptions set out in subsection (3). The amendment substitutes a new subsection (3) which provides a broader range of circumstances in which the offences in subsections (1) and (2) do not apply. In particular, subsection (3) provides that the offences do not apply to a person acting under and in accordance with a tow truck trainee permit. New subsection (3) also provides that the exemption for the driver or passenger of a towed vehicle that permits those persons to accompany a tow truck driver in a tow truck extends to all towed motor vehicles, not just accident damaged motor vehicles. Clause 73 inserts a new subsection (2) into section 120 of the Accident Towing Services Act 2007 to require a person to carry his or her tow truck driver accreditation certificate when accompanying the driver of a tow truck in circumstances in which the accompanying person is required to hold tow truck driver accreditation. 31

 


 

Clause 74 inserts a new subsection (2) into section 121 of the Accident Towing Services Act 2007 to require a person accompanying the driver of a tow truck, and who is required to hold tow truck driver accreditation, to produce the certificate of accreditation on request to an authorised officer, a member of the police force, or the owner or driver of an accident damaged motor vehicle that is being or about to be towed. Clause 75 inserts a new Division 8 into Part 4 of the Accident Towing Services Act 2007 to provide for tow truck trainee permits. New section 140A gives VicRoads the power to issue a permit to a person authorising the person to drive, or accompany the driver of a tow truck for training purposes. New section 140B provides that a tow truck trainee permit remains in force for the period specified in the permit, which must not be more than 60 days. New section 140C provides for permit conditions. New subsection (1) gives VicRoads the power to impose conditions on a tow truck trainee permit either at the time the permit is issued, or during the course of the permit. New subsection (2) provides that it is a condition of each tow truck trainee permit that the permit holder must be supervised and accompanied by an accredited tow truck driver at all times. New subsection (3) makes it an offence for the holder of a tow truck trainee permit to fail to comply with a condition of a permit. New section 140D provides for persons to apply to VicRoads for the issue of a tow truck trainee permit. New section 140E sets out the required form and contents of an application for a tow truck trainee permit. New section 140F empowers VicRoads to require an applicant for a tow truck trainee permit to supply further information or things required to assess the application, to verify information or things provided, or to provide signatures and photographs. New section 140G empowers the Chief Commissioner of Police to notify VicRoads of any relevant findings of guilt in relation to an applicant for a tow truck trainee permit. New section 140H empowers VicRoads to cancel tow truck trainee permits. 32

 


 

Clause 76 amends section 142 of the Accident Towing Services Act 2007. Section 142(3) currently allows members of the police force to authorise the towing of an accident damaged motor vehicle where the owner or driver of the vehicle is not present at the accident scene or is incapacitated. The amendments extend this power to authorise the towing of accident damaged motor vehicles to authorised officers. Clause 77 substitutes new sections 147 and 148 for current sections 147, 148 and 149 of the Accident Towing Services Act 2007. Current sections 147 and 148 both deal with various aspects of touting for repair work with respect to accident damaged motor vehicles. Current section 148 also deals with touting for towing work and vehicle storage. New section 147 only deals with touting for repair work. And new section 148 only deals with touting for towing work and vehicle storage. Apart from this structural change, there are a number of variations from the previous provisions. Current section 148 made it an offence to tout or solicit for repair work, towing work and vehicle storage at a road accident scene, but did not prohibit touting or soliciting away from the immediate accident scene. The new sections 147 and 148 prohibit touting or soliciting (for repair work, towing work and vehicle storage) at the road accident scene. Section 147 also prohibits touting or soliciting for repair work at any time between the occurrence of the road accident and the time the vehicle is first stored at the address specified in the authority to tow. The offence in current section 148 applied only to the controlled area. This limitation does not apply to either new section 147 or 148. Persons driving licensed tow trucks are, in certain circumstances, exempted from the offence in new section 148. Clause 78 amends the offence set out in section 156(2) of the Accident Towing Services Act 2007. That subsection currently requires the person in control of a place to which an accident damaged motor vehicle has been towed to ensure that no person refuses, frustrates or obstructs the release of, or fails to release, the vehicle to its owner. Subclause (1) amends the offence to provide that the person in control of the place must take "all reasonable steps" to ensure that other people do not interfere with the release of a vehicle to its owner. The new reasonable steps requirement will stand in place of the defence previously set out in section 156(3) of the Accident Towing Services Act 2007 which is deleted by subclause (2). 33

 


 

Clause 79 substitutes a new definition of "relevant accident damaged motor vehicle" in section 157(1) of the Accident Towing Services Act 2007, for the purpose of Division 5 of Part 5 of the Act. The purpose of the amendment is to remove the reference to "regular tow truck". The amendment reflects the change in the way the licensing requirements are expressed in sections 6 and 7 of the Act as substituted by clause 81 of the Bill. Clause 80 amends section 164 of the Accident Towing Services Act 2007 to clarify that accident towing demerit points may be incurred by a person who is not an accredited person. The persons who may incur accident towing demerit points are described in new section 164A as inserted by clause 81. Clause 81 inserts a new section 164A into the Accident Towing Services Act 2007. New section 164A provides that accident towing demerit points may be incurred not only by accredited persons but by persons who hold tow truck trainee permits, by persons whose accreditation is suspended, and by persons who have held accreditation or a tow truck trainee permit within 5 years of the commission of the relevant offence. Clause 82 amends section 166(3) of the Accident Towing Services Act 2007 to reduce from 2 years to 1 year the period of suspension of accreditation where 18 or more accident towing demerit points are incurred within a 3 year period. Clause 83 amends section 167(1)(c) of the Accident Towing Services Act 2007 to provide that, in relation to a person who has incurred 18 or more accident towing demerit points within a 3 year period, a notice of suspension issued by VicRoads may suspend all accreditations held by that person for a period of 1 year which is a reduction from the current 2 year suspension period. Clause 84 amends section 168 of the Accident Towing Services Act 2007 to provide that accident towing demerit points used to calculate a period of suspension must be disregarded only where 18 or more accident towing demerit points were used to calculate the period of suspension. Clause 85 amends section 171 of the Accident Towing Services Act 2007 to clarify that accident towing demerit points may be incurred by a person that is not an accredited person. The persons that may incur accident towing demerit points are described in new section 164A as inserted by clause 81. 34

 


 

Clause 86 substitutes subsection (4) of section 204 of the Accident Towing Services Act 2007. The new subsection provides that any authorised officer may conduct proceedings for an offence against the Act or regulations. The current provision only permits the authorised officer who brings the proceedings to conduct the proceedings. PART 5--AMENDMENT OF OTHER ACTS Clause 87 substitutes "section 211" for "section 213" in section 186(1)(c) of the Transport Act 1983. The amendment corrects an incorrect statutory cross-reference. Clause 88 amends section 56ZK(1) of the Melbourne City Link Act 1995 by substituting "Division 2" with "Division 3". This amendment corrects a typographical error in the Act. PART 6--REPEAL OF AMENDING ACT Clause 89 provides that this Act is repealed on 1 October 2011. 35

 


 

 


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