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Transport Legislation Amendment
(Road Safety, Rail and Other Matters)
Bill 2017
Introduction Print
Note: replacement Explanatory Memorandum lodged with a correction to Clause Note 88
on page 54. The description of the effect of new section 38ZS(7) of the Rail Management
Act 1996 has been replaced with the following: "Subsection (7) provides that the Court
must not require an undertaking in damages from the Secretary or the Public Transport
Development Authority or from any other person.".
EXPLANATORY MEMORANDUM
General
The Transport Legislation Amendment (Road Safety, Rail and Other Matters)
Bill 2017 amends a variety of Acts relating to the transport system.
In relation to roads, the Bill amends the Road Safety Act 1986 and the Road
Legislation Further Amendment Act 2016 to implement reforms to the
provisions in those Acts relating to drink-driving and drug-driving offences,
to simplify the scheme for the impoundment and forfeiture of motor vehicles
following road safety offences, to adjust the penalties for unlicensed driving,
to simplify the operation of the demerit points scheme in relation to road
safety offences, to rationalise provisions relating to the service of notices
under the Road Safety Act 1986 and to make other amendments to improve
the operational effectiveness of that Act.
The Bill reforms the Victorian Rail Access Regime in the Rail Management
Act 1996. A new rail access regime will replace the formal scheme currently
in place by removing the Essential Services Commission's role in setting
standards and approving agreements. The Bill provides for the Minister of
Public Transport to provide strategic direction and guidance on matters rail
access providers must have regard to when publishing proposed access
arrangements. The Bill provides for Public Transport Victoria to issue
Statements of Network Capability to enable network managers to publish
draft access terms and conditions for access seekers. The Bill also provides
for the Minister for Public Transport to be responsible for setting and
581359 1 BILL LA INTRODUCTION 3/11/2017
publishing maximum rail access prices following consultation and dispute
resolution processes.
The Bill amends the Rail Safety (Local Operations) Act 2006 so that police
officers, transport safety officers and persons authorised by the national rail
safety regulator may conduct a drug screening test on rail safety workers,
including train drivers, in accordance with prescribed procedures. The test
would be in the form of oral fluid testing. The Bill also makes changes to the
way in which blood samples are collected and analysed in line with the way
they are dealt with under the road safety scheme.
Clause Notes
Chapter 1--Preliminary
Part 1.1--Purposes
Clause 1 sets out the main purposes of the Bill.
The main purposes of Chapter 2 are--
• to implement reforms aimed at reducing deaths and
injuries on Victorian roads including--
• the cancellation of a driver licence or learner
permit and disqualification for a minimum period
following a finding of guilt or conviction for any
drink-driving offence; and
• the imposition of a mandatory alcohol interlock
condition on any driver licence or learner permit
granted following a disqualification because of a
drink-driving offence; and
• the introduction of a behaviour change
program for persons found guilty or convicted of
drink-driving and drug-driving offences; and
• to introduce other reforms including--
• increased penalties for drug-driving offences;
and
• the imposition of mandatory alcohol interlock
conditions in relation to certain interstate
offences; and
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• the simplification of the vehicle impoundment
and forfeiture scheme; and
• reforms to the description of, defences to, and
penalties for offences relating to unlicensed
driving; and
• the simplification of the demerit points scheme;
and
• the rationalisation of provisions relating to the
service of notices under the Road Safety
Act 1986; and
• to make amendments to improve the operational
effectiveness of the Road Safety Act 1986; and
• to make technical amendments to the Road Safety
Act 1986.
The main purposes of Chapter 3 are--
• to amend the Rail Management Act 1996 to establish a
new rail access regime; and
• to amend the Rail Safety (Local Operations) Act 2006
to make further provision in relation to the drug and
alcohol testing of rail safety workers; and
• to amend the Rail Safety National Law Application
Act 2013 to make a technical amendment to the
provision that allows for parliamentary disallowance of
the national regulations made under the Rail Safety
National Law (Victoria); and
• to amend the Tourist and Heritage Railways Act 2010
to provide that the Tourist and Heritage Railway
Registrar must be an employee of the Public Transport
Development Authority.
The main purposes of Chapter 4 are--
• to amend the Transport (Safety Schemes
Compliance and Enforcement) Act 2014 and the
Port Management Act 1995 to make minor and
technical changes to improve the operation of those
Acts, and changes of a statute law revision nature; and
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• to amend the Transport Accident Act 1986 so that
the 28-day grace period for the payment of a transport
accident charge applies to a registration of 3 months or
more; and
• to amend the Marine (Drug, Alcohol and Pollution
Control) Act 1988 to make minor changes to the
provisions of that Act that enable regulations to be
made in relation to the storage and provision of blood
samples.
Part 1.2--Commencement
Clause 2 provides for the commencement of the Bill. Subclause (1)
provides that Chapter 1, Part 2.1, section 84 and Part 4.3 come
into operation on the day on which the Bill receives the Royal
Assent. Subclause (2) provides that section 77 and Parts 2.8
(except section 84), 2.9, 2.10, 3.4, 4.1, 4.4 and Chapter 5 of the
Bill come into operation on the day after the day on which the
Bill receives the Royal Assent. Subclause (3) provides that,
subject to subclauses (4) and (5), the remaining provisions of the
Bill come into operation on a day or days to be proclaimed.
Subclause (4) provides that if section 4 or 5 or 7 to 30 or a
provision of Part 2.3, 2.4 or Division 1 of Part 2.7 or section 72,
74, 75 or 76 or a provision of Chapter 3 or Part 4.2 does not come
into operation before 1 November 2018, it comes into operation
on that date. Subclause (5) provides that if a provision referred to
in subclause (3) (other than a provision referred to in subclause
(4)) has not come into operation before 1 January 2020, it comes
into operation on that day.
The reasons for the extended delayed commencement until
1 November 2018 and 1 January 2020, as the case requires, are--
• to allow time for systems and operational procedures to
be put in place by 1 November 2018 and 1 January 2020
respectively to effectively administer the new provisions
and to minimise financial impacts; and
• to reduce the cost of making those system and
operational changes by aligning them, where feasible,
with other system and operational changes such as
those that will be required when the Road Safety
(Drivers) Regulations 2009, Road Safety (General)
Regulations 2009 and the Road Safety (Vehicles)
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Regulations 2009 are remade prior to those regulations
being automatically revoked on the tenth anniversary of
their making in accordance with section 5 of the
Subordinate Legislation Act 1994.
Chapter 2--Amendment of Road Safety Act 1986
and other road legislation
Part 2.1--Preliminary
Clause 3 provides that, in Chapter 2 of the Bill, the Road Safety Act 1986
is called the Principal Act.
Part 2.2--Drink and drug driving offences
Division 1--Disqualification and alcohol interlock conditions
Clause 4 provides for the insertion or amendment of definitions in
section 3(1) of the Road Safety Act 1986. The Bill amends the
definition of drink-driving infringement and inserts definitions
of Australian driver licence, Australian learner permit and
corresponding interstate drink-driving offence.
Clause 5 inserts new section 23A into the Road Safety Act 1986.
It provides that the Roads Corporation (VicRoads) must not
grant a driver licence or learner permit to a disqualified driver.
A disqualified driver includes a driver who has been disqualified
under the law of Victoria, or the law of another State or a
Territory or who has been disqualified from driving under the
law of another country in circumstances that, if they had occurred
in Victoria, would have resulted in the person being disqualified
from driving in Victoria. This replaces a similar requirement
which already applies under regulation 29 of the Road Safety
(Drivers) Regulations 2009.
Clause 6 inserts new section 23B into the Road Safety Act 1986.
It provides that VicRoads must not grant a driver licence or
learner permit to a person who is to be subject to an alcohol
interlock condition unless the person provides to VicRoads a
certificate from an approved alcohol interlock provider certifying
that, at the request of the person, the provider has installed an
approved alcohol interlock in the vehicle specified in the
certificate. This replaces the current situation under which a
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person who obtains a new driver licence or learner permit
following a period of disqualification imposed for a drink-driving
offence does not have to have an alcohol interlock installed at the
time even though it would be an offence to drive without an
alcohol interlock.
Clause 7 inserts new section 25A into the Road Safety Act 1986.
New section 25A applies to a person who--
• is currently disqualified from driving under the law of
another Australian State or Territory because the person
committed a corresponding interstate drink-driving
offence; and
• would have been eligible for a reduced period of
disqualification had the person participated in an
alcohol interlock program in the State or Territory in
which the person committed the offence.
New section 25A allows such a person to apply to VicRoads
for a reduction in the period for which the person is otherwise
prevented from obtaining a driver licence or learner permit in
Victoria. VicRoads would of course only grant this reduction
if it was satisfied that the person had in fact participated in an
alcohol interlock program in the State or Territory in which the
person committed the offence. This provision will replace
regulation 81B of the Road Safety (Drivers) Regulations 2009.
Clause 8 substitutes a new section 31KB in the Road Safety Act 1986.
Section 31KB was to be inserted into the Road Safety Act 1986
by section 12 of the Road Legislation Further Amendment
Act 2016 but that section (which was only going to deal with
Victorian licence or permit holders who commit interstate
drink-driving offences) has not yet commenced operation.
New section 31KB establishes a scheme by which VicRoads can
impose an alcohol interlock condition when granting a person a
new driver licence or learner permit and--
• the person holds a current licence or permit issued in
another State or Territory that is subject to an alcohol
interlock condition; or
• the person was previously prevented under section 23A
(inserted by clause 5) from applying for a Victorian
driver licence or learner permit because the person was
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disqualified from driving in another State or Territory in
respect of a corresponding interstate drink-driving
offence; or
• the person's Victorian driver licence or learner permit
was cancelled and the person was disqualified from
applying for a licence or permit under section 25 (to be
inserted into the Road Safety Act 1986 by section 9 of
the Road Legislation Further Amendment Act 2016)
for a drink-driving offence committed in another State
or Territory of Australia.
The period for which an alcohol interlock condition is imposed
under new section 31KB is--
• in the case of a person who holds a current licence or
permit issued in another State or Territory that is subject
to an alcohol interlock condition--until the person
would have been eligible to apply for the removal of the
alcohol interlock condition imposed by the other State
or Territory or when the alcohol interlock condition
imposed by the other State or Territory would have
ceased by operation of law; or
• in any other case--the minimum period specified in
column 4 of the Table in Schedule 1B to the Road
Safety Act 1986 that would apply had the person been
convicted or found guilty of the Victorian drink-driving
offence to which the interstate drink-driving offence
corresponds under section 25.
Section 31KB(7) provides that, in determining whether an
interstate drink-driving offence was a first or subsequent offence,
VicRoads must apply the same rules as those applied by the
courts when they impose alcohol interlock requirements under
section 50AAA(9) and Schedule 1B. Section 50AAA(9)
provides that, despite section 48(2) of the Act, drug-driving
offences are to be disregarded as being prior offences for this
purpose.
Section 31KB(7) also provides that if the minimum period
specified in Column 4 of the Table in Schedule 1B to the Road
Safety Act 1986 as applying to the Victorian drink-driving
offence varies depending on the concentration of alcohol in the
person's blood or breath, the minimum period of disqualification
is that which would apply had the person recorded the same
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concentration of alcohol in respect of the Victorian drink-driving
offence as--
• the concentration of alcohol notified as having been
recorded in respect of the corresponding drink-driving
offence; or
• if VicRoads is notified that the concentration of alcohol
recorded in the person's blood or breath fell within a
range of concentration in respect of the corresponding
drink-driving offence--the concentration of alcohol at
the lower end of that range.
Section 31KB(8) provides that if a person can satisfy VicRoads
that the person has been subject to an alcohol interlock condition
imposed by another jurisdiction in respect of the corresponding
interstate drink-driving offence, VicRoads may determine that
the person should be given credit for time already served
participating in an interstate alcohol interlock program. This may
result in the person having a reduced interlock condition period
or, if the alcohol interlock period imposed by the other
jurisdiction was for the same or a longer period than the relevant
period that would otherwise apply to the person, no alcohol
interlock condition at all.
Clause 9 substitutes new sections 50(1) and (1A) in the Road Safety
Act 1986.
Section 50 of the Road Safety Act 1986 concerns the
cancellation, by a court, of a driver licence or learner permit
and the disqualification of a person from applying for a driver
licence or learner permit on being convicted or found guilty of a
drink-driving or drug-driving offence.
New section 50(1) provides the circumstances in which a court
must cancel a person's driver licence or learner permit for an
offence under section 49(1)(b), (f) or (g) of the Road Safety
Act 1986 (of exceeding the prescribed concentration of alcohol)
and provides that the court must disqualify the person from
applying for a driver licence or learner permit for not less than
the minimum period set out in section 50(1A).
New section 50(1A) sets out the minimum periods of
disqualification. For a first offence, the period is as specified
in Column 2 of Schedule 1 to the Road Safety Act 1986
(as amended by clause 13). For a subsequent offence, the period
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is as specified in Column 3 of Schedule 1 to the Road Safety
Act 1986.
Clause 9 also repeals sections 50(1AB) and (1AC) of the Road
Safety Act 1986. Sections 50(1AB) and (1AC) allowed for the
cancellation of the driver licence or learner permit of a person
and the imposition of periods of disqualification for first offences
involving a relatively low concentration of alcohol in blood or
breath. These provisions give the court a discretion not to cancel
the offender's driver licence or learner permit and not to impose a
period of driving disqualification. (In which case the person
would incur 10 demerit points under item 1 of Schedule 3 to the
Road Safety (Drivers) Regulations 2009). Drivers previously
affected by sections 50(1AB) and (1AC) will now be dealt with
under sections 50(1) and (1A) which require the cancellation of
any driver licence or learner permit held by a person who
commits a drink-driving offence and impose a minimum period
of disqualification from holding a licence or permit for all
drink-driving offences dealt with by a court.
Clause 10 amends the table at the foot of section 50AA of the Road Safety
Act 1986 by deleting references to sections 50(1AB) and (1AC).
This is necessary because these sections have been repealed by
clause 9. Section 50AA assists with identifying what constitutes
a previous conviction or finding of guilt for the purpose of
determining, amongst other things, the length of disqualification
periods imposed following a drink-driving offence, including the
drink-driving offences currently described by sections 50(1AB)
and (1AC).
Clause 11 inserts new sections 52(1B)(ac) and 52(1BB) into the Road
Safety Act 1986.
New section 52(1B)(ac) provides that a person who was
previously prevented under new section 23A (inserted by
clause 5) from obtaining a driver licence or learner permit
(because the person was disqualified from driving in another
State or a Territory in respect of a corresponding interstate
drink-driving offence) is required, upon being issued a Victoria
driver licence or learner permit, to have a zero concentration of
alcohol in the person's blood or breath while driving or in control
of a motor vehicle for 3 years or any longer period during which
an alcohol interlock condition applies to the person's licence or
permit.
9
New section 52(1BB) provides that a person who is subject to an
alcohol interlock condition in Victoria and who, at the time it was
imposed, held a licence or permit issued in another State or a
Territory that was subject to an alcohol interlock condition, must
have a zero concentration of alcohol in the person's blood or
breath while driving or in control of a motor vehicle for the
duration of the alcohol interlock condition imposed in Victoria.
Clause 12 substitutes new sections 89C(1), (2) and (2A) in the Road Safety
Act 1986. Section 89C of the Road Safety Act 1986 concerns
the cancellation of driver licences and learner permits for
drink-driving infringements.
New sections 89C(1) and (2) provide that all drink-driving
offenders with a blood or breath alcohol concentration (BAC)
of 0∙05 or more but less than 0∙07, who are dealt with by
infringement notice and were not subject to a BAC limit of zero
or under the age of 26 at the time of the offence, will have any
driver licence or learner permit they hold cancelled and be
disqualified from obtaining a driver licence or learner permit for
3 months.
New sections 89C(1) and 89C(2A) provide that in any other case
not captured by section 89C(2), the period for which a person
who receives a drink-driving infringement is disqualified from
obtaining a driver licence or learner permit is to be ascertained in
accordance with Column 2 of Schedule 1 to the Road Safety
Act 1986. Schedule 1 to the Road Safety Act 1986 (as amended
by clause 13) sets out the minimum disqualification periods for
each gradation of BAC from less than 0∙05 through to 0∙24
or more.
As a result of these amendments, it will no longer be possible
for full licence holders who were not subject to a zero BAC
limit and were aged 26 or older at the time of a drink-driving
infringement involving a BAC reading of less than 0∙07 to
receive 10 demerit points. These people will now also have any
driver licence they hold cancelled and will be disqualified from
driving for 3 months.
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Clause 13 amends Schedule 1 to the Road Safety Act 1986. Schedule 1 is
a table of the minimum disqualification periods for the various
BAC levels.
Clause 13 substitutes the first entry in Schedule 1 "less than 0∙07"
with a further gradation, so that a person with an illegal BAC
"less than 0∙05" will receive a minimum disqualification period
of 3 months for a first offence and 12 months for a subsequent
offence and a person with a BAC of "0∙05 or more but less than
0∙07" will receive a minimum disqualification period of 6 months
for a first offence and 12 months for a subsequent offence.
(Note this will not apply to people to whom new section 89A(2)
inserted by clause 12 applies (that is, people who receive a
drink-driving infringement for an offence involving a BAC of
less than 0∙07 who at the time of the infringement were 26 years
of age or older and were not subject to a zero BAC limit).
New section 89A(2) provides that those people will be
disqualified from driving for 3 months.)
Division 2--Behaviour change program for drink
and drug driving offences
Clause 14 provides for definitions of terms used in Division 2 of Part 2.2
of the Bill to be inserted into section 3(1) of the Road Safety
Act 1986. The definitions to be inserted are approved provider,
behaviour change program, certificate of completion, first-stage
behaviour change program and second-stage behaviour change
program.
Clause 14 repeals the definitions of accredited agency,
accredited driver education program, assessment report and
licence eligibility report contained in section 3(1) of the Road
Safety Act 1986. These definitions relate to provisions that are
to be repealed by Division 2 of Part 2.2 of the Bill.
Clause 15 amends section 28A(2) of the Road Safety Act 1986 which
concerns the effect of a driver licence or learner permit
suspension imposed under section 89(4) or 89A(1) of the
Sentencing Act 1991.
Section 89(4) of the Sentencing Act 1991 allows for the
suspension of a driver licence or learner permit if a person is
found guilty or convicted of certain serious motor vehicle
offences. Section 89A(1) of the Sentencing Act 1991 allows for
11
the suspension of a driver licence or learner permit if a person is
found guilty or convicted of any non-driving offence.
Section 28A(2) provides that a person whose driver licence or
learner permit is suspended by force of either of these sections is
not, only because of that suspension, a person who has been
disqualified from driving for the purposes of certain provisions in
the Road Safety Act 1986.
This amendment to section 28A(2) has the effect of removing
the reference to section 31C from section 28A(2) and adding a
reference to new section 58C. The reference to section 31C is
being removed from section 28A(2) because it will be repealed
from the Road Safety Act 1986 by clause 17 of the Bill.
The reference to section 58C is being included in section 28A(2)
because it is to be inserted into the Road Safety Act 1986 by
clause 24 of the Bill.
Section 58C concerns the requirement to complete a first-stage
behaviour change program. The suspension of a driver licence or
learner permit following a serious motor vehicle offence under
section 89(4) of the Sentencing Act 1991 will not trigger a
requirement to complete a behaviour change program under new
section 58C(1) because clause 15 provides that the suspension
will not be treated as a disqualification for the purposes of that
section.
However, a requirement to complete a behaviour change
program following a suspension under section 89(4) of the
Sentencing Act 1991 will instead be imposed directly under
new section 58C(3) .
Offences against section 89A of the Sentencing Act 1991,
will not attract the behaviour change program because they
are non-driving offences.
Clause 16 substitutes the content of section 31B(2)(b) of the Road
Safety Act 1986 as a consequence of the repeal of sections 31C
and 31D which relate to assessment reports (see clause 17) and
sections 31F and 31G which relate to licence eligibility reports
(see clause 19). Section 31B(2)(b) required that an applicant for
a licence eligibility order from the Magistrates' Court must have
complied with the requirements in section 31B(1) regarding the
giving of notice to Victoria Police and the Court, as well as the
assessment report and licence eligibility report requirements in
sections 31C to 31G. As the result of these amendments an
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applicant for a licence eligibility order from the Magistrates'
Court must comply with the requirements in section 31B(1)
regarding the giving of notice to Victoria Police and the Court
and any requirement to complete a behaviour change program
imposed by section 31E (as amended by clause 18).
Clause 17 repeals sections 31C and 31D from the Road Safety Act 1986.
Section 31C sets out who must obtain an assessment report and
section 31D sets out when an assessment report must be obtained.
Assessment reports are to be replaced by the behaviour change
program (see clause 24).
Clause 18 substitutes new sections 31E(1), (1A) and (2) in the Road Safety
Act 1986 in place of existing section 31E(1) and (2).
New section 31E(1) requires that, before applying for a licence
eligibility order, a person must provide to the Magistrates' Court
a copy of any notice from VicRoads under new section 58E
regarding the requirement to complete a behaviour change
program (see clause 24).
New section 31E(1) also requires that if a person is required to
complete a first-stage behaviour change program, the person
must provide to the Court a certificate (prepared by an approved
provider) certifying that the person has completed the first-stage
behaviour change program.
New section 31E(1A) provides that the notice and certificate
must be provided to the Court within 28 days before applying for
a licence eligibility order.
New section 31E(2) sets out who section 31E applies to.
It provides that a person who has been disqualified from driving
as the result of a drink-driving offence must provide a certificate
of completion of the first-stage behaviour change program
before applying for a licence eligibility order. The section will
not apply to a person who would have an alcohol interlock
requirement imposed by VicRoads under section 31KA
(which applies to first offences involving a BAC of less than
0∙10), or if the offence involves breach of the drink-driving
responsibilities imposed on a person who is accompanying a
learner driver. This is because a licence eligibility order is not
required in those circumstances. This provision should be read
in conjunction with amended section 31E(3) of the Road Safety
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Act 1986 which specifies other instances where section 31E
applies.
Clause 18(3) also omits the reference to section 89A(1) of the
Sentencing Act 1991 from section 31E(3) of the Road Safety
Act 1986. The effect of this amendment is that a person who
has been disqualified from obtaining a driver licence or learner
permit under section 89A(1) of the Sentencing Act 1991 (that is,
for an offence other than a serious motor vehicle offence, a police
pursuit offence, a motor vehicle theft offence or an offence under
the Road Safety Act 1986 or regulations or rules under that Act)
is not required to complete a first-stage behaviour change
program. Also, see new section 58C (as inserted by clause 24)
which specifies who is required to complete a first-stage
behaviour change program.
Clause 18(4) consequentially amends the note at the foot of
section 31E(3) to also remove reference to section 89A(1) of the
Sentencing Act 1991.
Clause 19 repeals sections 31F and 31G from the Road Safety Act 1986.
Sections 31F sets out when a licence eligibility report must be
obtained and section 31G sets out when the Magistrates' Court
may request a licence eligibility report even in circumstances
where such a report is not otherwise required. Licence eligibility
reports are to be replaced by the behaviour change program
(see clause 24).
Clause 20 substitutes a new section 31H(b)(iv) in the Road Safety
Act 1986. The new section provides that, in the procedure for
the hearing of an application for a licence eligibility order, the
Court must have regard to any certificate of completion of a
first-stage behaviour change program provided to the Court under
section 31E of the Road Safety Act 1986.
Clause 20 also inserts new section 31H(c) into the Road Safety
Act 1986. New section 31H(c) authorises the Court, if the
certificate of completion of a first-stage behaviour change
program indicates that the applicant was referred to medical or
other therapeutic services, to inquire whether the applicant
attended those services and to have regard to whether the
applicant attended or not.
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Clause 21 repeals section 49A of the Road Safety Act 1986. Section 49A
sets out the application process to become an accredited agency
for the purposes of Part 5 of the Act. Accredited agencies will
cease to exist (subject to the transitional arrangements specified
in Part 2.9 of the Bill) because all of the reports and programs
currently being prepared by or delivered by accredited agencies
(that is, accredited driver education programs, assessment
reports, licence eligibility reports, and accredited agency reports
under section 50AAB(5) of the Road Safety Act 1986) are to be
replaced by a behaviour change program which will be delivered
by "approved providers" (see clause 24).
Clause 22 inserts new section 50AAAB(2)(d) into the Road Safety
Act 1986. Section 50AAAB establishes the administrative
scheme for the removal of an alcohol interlock condition by
VicRoads. New section 50AAAB(2)(d) provides that if a
person is required to complete a second-stage behaviour change
program, it must be completed prior to making an application to
VicRoads for the removal of an alcohol interlock condition.
Clause 22 omits "(other that any specified under item 57AA(f)
of Schedule 2)" from section 50AAAB(3) of the Road Safety
Act 1986. Item 57AA(f) of Schedule 2 to the Road Safety
Act 1986 provides that requirements to be complied with in
relation to an approved alcohol interlock (which are set out
in regulations under the Road Safety Act 1986) include
requirements as to the alcohol interlock only being used by a
person holding a driver licence or learner permit. The omitting
of this reference means that information relating to whether or
not a person held a driver licence or learner permit can now be
included in a report under section 50AAAB(2)(c) rather than
being provided to the Court separately.
Clause 22 repeals section 50AAAB(3)(b) of the Road Safety
Act 1986 which requires an "approved alcohol interlock supplier"
to prepare the report required by section 50AAAB(2)(c).
The substance of section 50AAA(3)(b) has been replaced by
new section 50AAAB(3A) which is also inserted by clause 22.
Clause 22 inserts new section 50AAAB(4)(b)(iia) into the
Road Safety Act 1986 which provides that, if a person is
required to complete a second-stage behaviour change program,
the certificate certifying that the person has completed the
program is to be provided to VicRoads as part of the
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administrative scheme for the removal of alcohol interlock
conditions.
Clause 23 substitutes a new section 50AAB(4B)(a) in the Road Safety
Act 1986. Section 50AAB of the Road Safety Act 1986
concerns alcohol interlock condition removal orders.
New section 50AAB(4B)(a) provides that the Magistrates' Court
must not deal with or determine an application for an alcohol
interlock condition removal order unless it is satisfied that the
applicant has complied with the necessary requirements and that
if the applicant is required to complete a second-stage behaviour
change program, that the applicant has completed the program.
Clause 23 substitutes "the Corporation or a prescribed person or
body" for "accredited agency" in section 50AAB(5) of the Road
Safety Act 1986. The definition of accredited agency is to be
repealed by clause 14.
Clause 23 omits "(other than any specified under item 57AA(f)
of Schedule 2)" from section 50AAB(5) of the Road Safety
Act 1986, similarly to the omission contained in clause 22.
The omitting of this reference means that information relating to
whether or not a person held a driver licence or learner permit
can now be included in a report under section 50AAB(5).
Clause 23 substitutes a new section 50AAB(5)(b) in the Road
Safety Act 1986. New section 50AAB(5)(b) only maintains the
content of section 50AAB(5)(b)(i), but does not replicate the
content of section 50AAB(5)(b)(ii) or (iii). That is because it
will no longer be necessary for a report under section 50AAB(5)
to include an assessment of the person's use of alcohol during the
period since the approved alcohol interlock was installed and it
will no longer be necessary to include the last licence eligibility
report. These requirements are to be replaced by a behaviour
change program (see clause 24).
Clause 23 inserts new section 50AAB(6)(c) into the Road
Safety Act 1986. New section 50AAB(6)(c) allows the Court,
in determining whether to make an alcohol interlock condition
removal order in circumstances where the certificate of
completion of the second-stage behaviour change program
indicates that the applicant was referred to medical or other
therapeutic services, to inquire as to whether the applicant
attended those services and to have regard to whether the
applicant attended or not. This amendment mirrors the
16
amendment made in clause 20 which inserts new section 31H(c)
into the Road Safety Act 1986 concerning first-stage behaviour
change programs.
Clause 24 inserts new Part 5A into the Road Safety Act 1986.
New Part 5A provides for the introduction of a new drink-driving
and drug-driving intervention scheme that will replace the current
driver education and assessment programs with a package of
measures focused on behaviour change. The package will be
based on contemporary evidence-based approaches to managing
problematic alcohol and drug consumption.
The new behaviour change program will apply to all drivers
convicted or found guilty of a drink-driving or drug-driving
offence unless the regulations provide otherwise.
It is proposed that repeat offenders and offenders with high BAC
readings will be required to complete a longer and more intensive
behaviour change program than drivers with a first offence or
offenders with low BAC readings. Program providers approved
by VicRoads will assess participants for alcohol issues or drug
issues, or both, during the course of the program and refer those
who need it to specialist treatment services.
New section 58C provides for the requirement for a person
to complete a first-stage behaviour change program in
circumstances where the person is convicted or found guilty
of an offence referred to in new section 58C(2) or (3) (unless the
regulations under the Road Safety Act 1986 exempt a person
from the requirement).
New section 58D provides for the requirement for a person
to complete a second-stage behaviour change program.
The circumstances in which a person will have to complete a
second-stage behaviour change program will be set out in
regulations under the Road Safety Act 1986.
New section 58E provides for VicRoads to notify a person who is
required to complete a behaviour change program. The notice
must be in writing and state the behaviour change program that
the person is required to complete as well as other prescribed
information.
17
New section 58F provides for a behaviour change program for
interstate drink-driving offences (unless the regulations under the
Road Safety Act 1986 exempt an interstate offender from the
requirement). New section 58F applies to a person to whom
section 31KB applies (as substituted by clause 8). Section 31KB
provides for an administrative scheme for imposing an alcohol
interlock condition following a driver licence disqualification for
an interstate drink-driving offence.
New section 58G provides that a requirement to complete a
behaviour change program does not affect any penalty that may
be imposed in respect of an offence.
New section 58H sets out what is to happen should VicRoads
become aware that evidence of completion of a behaviour
change program turns out to be invalid, false or issued in error.
VicRoads may suspend or further suspend the person's driver
licence or learner permit or disqualify the person from obtaining
a driver licence or learner permit until VicRoads is satisfied that
the person has completed the required program.
New section 58I sets out how VicRoads may approve behaviour
change programs.
New section 58J provides that VicRoads may approve providers
of behaviour change programs and may vary that approval.
New section 58K allows VicRoads to approve providers of
behaviour change programs subject to conditions.
New section 58L allows VicRoads to cancel or suspend the
approval of a provider of a behaviour change program.
New section 58M provides for review by the Victorian Civil and
Administrative Tribunal for any person or body whose interests
are affected by a decision of VicRoads under section 58L.
New section 58N sets out the requirement for a person
participating in a behaviour change program to pay the required
fees to the approved provider. These include a commercial fee
charged by approved providers and a government cost recovery
fee. See new section 58P described below in relation to the
government cost recovery fee.
18
New section 58O requires the approved provider of a
behaviour change program to give to VicRoads information
required by VicRoads as well as fees paid to the provider under
section 58N(1)(b) by the participants in the program.
New section 58P provides for VicRoads to determine the
government cost recovery fees to be paid by persons participating
in a first-stage behaviour change program conducted by an
approved provider.
New section 58Q provides for an approved provider of a
behaviour change program to refer a participant of that program
to medical or other therapeutic services. Any fee or other cost
associated with attendance at the medical or other therapeutic
service must be paid by the person who was referred by the
approved provider.
New section 58R provides for a certificate of completion to be
given to a person who completes a behaviour change program.
The approved provider of the program must provide a copy of
the certificate of completion to the person who completed the
behaviour change program as well as any other person prescribed
by the regulations.
Clause 25 repeals the definition of approved provider from section 84BJ(1)
of the Road Safety Act 1986 because this definition is to
be moved to section 3(1) of the Road Safety Act 1986
(see clause 14).
Clause 26 repeals Schedule 1A to the Road Safety Act 1986. Schedule 1A
provides for the assessment report requirement for the various
alcohol and drug offences. This requirement is to be replaced
by a behaviour change program (see clause 24). This repeal is
subject to the transitional arrangements specified in new
section 103ZK(5) and (6) (see clause 85).
Division 3--Increased penalties for drug driving offences
Clause 27 increases the disqualification period from obtaining a driver
licence or learner permit of a person who has been convicted or
found guilty of an offence under section 49(1)(bb), (h) or (i)
of the Road Safety Act 1986 (drug-driving offences).
The disqualification period for a first offence is to increase
from 3 months to 6 months. The disqualification period for a
subsequent offence is to increase from 6 months to 12 months.
19
Clause 28 increases the suspension period applying to a person's driver
licence or learner permit where the person has been issued with a
traffic infringement notice for a drug-driving infringement (for an
offence under section 49(1)(bb), (h) or (i) of the Road Safety
Act 1986) from 3 months to 6 months.
Division 4--Drinking while driving infringements
Clause 29 repeals the definition of drinking while driving infringement
from section 3(1) of the Road Safety Act 1986. It is intended
that the authority of the police to deal with the offence of
drinking while driving by infringement notice will be moved into
the Road Safety (General) Regulations 2009 which prescribes
other traffic infringements.
Clause 30 omits a reference to "a drinking while driving infringement" from
section 88(1) and 88(5) of the Road Safety Act 1986. As noted
in relation to clause 29, it is intended that the authority of the
police to deal with the offence of drinking while driving by
infringement notice will be moved into the Road Safety (General)
Regulations 2009 which prescribes other traffic infringements.
Clause 30 also repeals section 88(5A) of the Road Safety
Act 1986 which is the infringement penalty for a drinking
while driving infringement. This infringement penalty will be
prescribed in the Road Safety (General) Regulations 2009 which
prescribes the penalty for other traffic infringements.
Part 2.3--Impoundment, immobilisation and
forfeiture of motor vehicles
Clause 31 repeals the definitions of tier 1 relevant offence and tier 2
relevant offence from section 84C(1) of the Road Safety
Act 1986.
Clause 31 substitutes a new definition of relevant offence in
section 84C(1) of the Road Safety Act 1986. The new definition
of relevant offence will simplify and improve the clarity of the
vehicle impoundment scheme. The current two-tier structure of
relevant offences containing a mixture of first and repeat offences
and which are also divided into "more serious" (tier 1) and
"less serious" (tier 2) offences will be replaced with a single list
of relevant offences for which there are impoundment,
immobilisation and forfeiture consequences.
20
Clause 31 repeals section 84C(3A) of the Road Safety Act 1986.
This reflects the single list of relevant offences that is being
introduced into Part 6A of the Road Safety Act 1986, rather
than the two-tier structure of relevant offences.
Clause 32 repeals section 84E of the Road Safety Act 1986. Section 84E
provided the meaning of "second or subsequent offence" for the
purposes of Part 6A. This section is no longer required under the
new single list of relevant offences that is being introduced into
Part 6A of the Road Safety Act 1986 (see clause 31).
Clause 33 substitutes a new section 84S(1) in the Road Safety Act 1986.
New section 84S(1) provides for the impoundment and
immobilisation periods that a court must order on an application
from the Chief Commissioner of Police if a driver is found guilty
of a relevant offence and within the 6 years immediately
preceding the commission of that offence the driver has
committed one or more other relevant offences. The new section
84S(1) reflects the single list of relevant offences structure that is
being introduced into Part 6A of the Road Safety Act 1986 and
all references to "tier 1 relevant offences" and "tier 2 relevant
offences" have therefore been removed.
Clause 34 substitutes a new section 84T(1) in the Road Safety Act 1986.
New section 84T(1) provides for the forfeiture of a vehicle that a
court may order on an application from the Chief Commissioner
of Police if a driver is found guilty of a relevant offence and
within the 6 years immediately preceding the commission of that
offence the driver has committed 2 or more other relevant
offences. The new section 84T(1) reflects the single list of
relevant offences structure that is being introduced into Part 6A
of the Road Safety Act 1986 and all references to "tier 1 relevant
offences" and "tier 2 relevant offences" have therefore been
removed.
Clause 35 repeals section 84U(1A) from the Road Safety Act 1986.
Section 84U(1A) is redundant as it refers to a "tier 1 relevant
offence".
Clause 36 repeals section 84W(1)(d) of the Road Safety Act 1986.
Section 84W sets out who the Chief Commissioner must
notify if the Commissioner intends to make an application for
impoundment, immobilisation, forfeiture or substitution of a
vehicle. Section 84W(1)(d) requires the Chief Commissioner
21
to notify VicRoads. The section is to be repealed because the
notification to VicRoads is not necessary and creates an
unwarranted administrative burden.
Clause 37 omits "tier 2" from section 84Y(5)(a) and (c) of the Road Safety
Act 1986. These omissions reflect the single list of relevant
offences structure that is being introduced into Part 6A of the
Road Safety Act 1986 (see clause 31).
Clause 38 omits "tier 2" from section 84YA(3)(b)(i) and (iii) of the Road
Safety Act 1986. These omissions reflect the single list of
relevant offences structure that is being introduced into Part 6A
of the Road Safety Act 1986 (see clause 31).
Clause 39 repeals section 84ZQB(2) of the Road Safety Act 1986.
Section 84ZQB(2) allows VicRoads to apply to register a
financing statement or a financing change statement under
section 84ZQB(1) on behalf of the Chief Commissioner of
Police. This provision is redundant and is therefore being
repealed.
Part 2.4--Driver licences
Clause 40 substitutes new sections 18(1), (1A), (2) and (3) in the Road
Safety Act 1986.
New section 18(1) sets out the offence of driving while
unlicensed. New section 18(1A) contains the penalty for
unlicensed driving and increases the penalty found in
current section 18(1)(a) from 25 penalty units or 3 months
imprisonment to 60 penalty units or 6 months imprisonment.
New section 18(2) restates section 18(2) of the current Act.
New section 18(3) restates section 18(3) of the current Act but
increases the applicable fine and imprisonment penalty consistent
with the new penalty under new section 18(1).
Clause 41 inserts new section 18AA into the Road Safety Act 1986.
New section 18AA provides the offence of driving in breach
of a condition of a driver licence or learner permit which was
formerly set out in sections 18(1)(b) and (c). The penalty for
driving in breach of a licence condition is to be 20 penalty units,
consistent with the seriousness of the offence. The penalty
currently applying to this offence is 25 penalty units or
imprisonment for not more than 3 months.
22
New section 18AA(4) includes content that was previously found
in section 18(1A) (to be inserted into the Road Safety Act 1986
by section 6 of the Road Legislation Further Amendment
Act 2016 but as yet unproclaimed). This provision clarifies that
a holder of an overseas drivers licence (while temporarily in
Victoria) will not be acting in breach of a vehicle mass restriction
or condition applying to that overseas driver licence while
driving in Victoria if--
• the person is authorised under the regulations for the
purposes of new section 18(1)(b) of the Road Safety
Act 1986 to drive a motor vehicle in Victoria
(see clause 40); and
• the gross vehicle mass of the vehicle is not more than
4*5 tonnes.
A European Union (EU) car driver licence only allows drivers
to operate a vehicle up to 3*5 tonnes in weight. In Australia,
a car driver licence allows a driver to operate a vehicle up to
4*5 tonnes. Therefore, a European tourist who holds an EU
Category B car licence and drives a hired motorhome in Australia
while on holidays that weighs (for example) 4*4 tonnes would be
in breach of a condition applying to the person's overseas driver
licence under section 18AA(2) unless special provision was made
for this situation (as provided for in section 18AA(4)).
This amendment will also provide for national consistency
through implementing an Austroads recommendation that has
already been implemented in other Australian States and
Territories.
New section 18AA(5) provides that a person who holds a driver
licence or learner permit that is subject to an alcohol interlock
condition does not commit an offence of driving in breach of the
condition on a driver licence or learner permit if the person rides
a motor cycle that is not fitted with an alcohol interlock while
undertaking the on-road component of a motor cycle learner
permit assessment, noting that procedures will be put in place
to ensure that any person who is or appears to be under the
influence of alcohol or a drug will not be permitted to complete
the on-road assessment.
23
Clause 42 inserts new sections 18B and 18C into the Road Safety
Act 1986.
New section 18B provides that VicRoads may retain any
licence document for the purpose of checking its validity.
New section 18B(3) sets up the process VicRoads must follow
if it retains a licence document.
New section 18C provides that VicRoads may confiscate any
licence document that VicRoads reasonably believes is false,
fraudulent or counterfeit or has been improperly obtained.
It also provides that VicRoads may destroy any licence
document confiscated in those circumstances.
Clause 43 substitutes new wording into section 24(3) of the Road Safety
Act 1986 with the phrase "disability, medical condition or injury"
replacing "bodily infirmity, defect or incapacity". The new
wording reflects current medical terminology.
Section 24(3) of the Road Safety Act 1986 provides that
VicRoads, in suspending (in accordance with the regulations) a
driver licence or learner permit on the ground that it would be
dangerous for the person to drive a motor vehicle may do so on
the basis of a report given by a registered medical practitioner
and without conducting any other hearing or investigation into
the matter before the suspension is imposed.
Clause 44 amends section 27(1A) of the Road Safety Act 1986, which
gives VicRoads the power to require a person to undergo a test
or assessment to determine if the person is fit to drive; or if it
is dangerous for the person to drive; or if licence or permit
conditions should be imposed, to reflect the restructuring of
section 18 and the splitting of that provision into 2 separate
sections (see clauses 40 and 41).
Clause 45 increases the maximum penalty applying to an offence under
section 28B of the Road Safety Act 1986 from 5 penalty units
to 10 penalty units. The offence under section 28B prohibits a
person from applying for a driver licence while disqualified from
obtaining a driver licence or learner permit.
The penalty increase reflects the seriousness of the offence and
will provide a stronger deterrent to those who may consider
applying for a driver licence or learner permit while disqualified.
24
Clause 46 substitutes the penalty for the offence of driving while
disqualified in section 30 of the Road Safety Act 1986.
The new maximum penalty for this offence is 240 penalty units
or imprisonment for 2 years. The new penalty replaces the
graduated maximum penalty of 30 penalty units or imprisonment
for 4 months for a first offence and 240 penalty units or
imprisonment for 2 years for a subsequent offence.
Clause 47 substitutes new sections 32(1), (2) and (2A) in the Road Safety
Act 1986. Current section 32 of the Road Safety Act 1986
includes the offence of employing, permitting or allowing an
unlicensed person to drive and carries a maximum penalty of
15 penalty units or imprisonment for 3 months. This offence has
now been split into 3 offences--
• an offence of employing or engaging an unlicensed
driver to drive (new section 32(1)); and
• an offence of continuing to employ or engage an
unlicensed driver after becoming aware that the person
is unlicensed (new section 32(2A)); and
• an offence of knowingly allowing, permitting or causing
an unlicensed driver to drive (new section 32A--see
clause 48).
New section 32(1) provides the offence of employing or
engaging someone to drive who is unlicensed. This offence is
broader than the current section 32(1) offence, so that along with
the usual employment arrangements, contractual relationships
and voluntary work arrangements are also captured. The penalty
for the offence of employing or engaging someone to drive
who is unlicensed is 20 penalty units for a natural person and
100 penalty units for a body corporate.
New section 32(2) contains a defence to new section 32(1) by
providing that the offence does not apply to a person who makes
reasonable enquiries as to whether the driver is authorised to
drive. This defence will operate as an evidential burden only, in
that the defendant need only present evidence to suggest that the
person made reasonable enquiries. The prosecution will then
bear the legal burden of disproving beyond reasonable doubt that
reasonable enquiries as to whether the driver was licensed were
made.
25
New section 32(2A) provides for the offence of employing or
engaging someone to drive who is unlicensed in circumstances
where the employer becomes aware that the person does not
hold, or no longer holds a driver licence or learner permit that
authorises the person to drive a motor vehicle and continues
to employ or engage the person to drive a motor vehicle.
The maximum penalty of the new offence is 20 penalty units
for a natural person and 100 penalty units for a body corporate.
Clause 48 inserts new section 32A into the Road Safety Act 1986.
New section 32A provides an offence of allowing, permitting or
causing another person to drive a motor vehicle on a highway
knowing that the other person does not hold a licence or permit
that authorises the other person to drive the motor vehicle.
The maximum penalty for this new offence is 60 penalty units
or imprisonment for 6 months. This penalty is consistent with
the proposed new penalty for unlicensed driving (see new
section 18(1A) of the Road Safety Act 1986 as substituted by
clause 40).
Clause 49 amends the definition of unlicensed driver in section 34 of the
Road Safety Act 1986 to reflect the restructuring of section 18
and the splitting of that provision into 2 separate sections
(see clauses 40 and 41).
Clause 50 amends section 89C(3A) of the Road Safety Act 1986
regarding the cancellation of a driver licence or learner permit
for a drink-driving infringement to reflect the restructuring of
section 18 and the splitting of that provision into 2 separate
sections (see clauses 40 and 41).
Clause 51 amends section 89D(1A) of the Road Safety Act 1986 regarding
the suspension of a driver licence or a learner permit for an
excessive speeding infringement or a drug-driving infringement
to reflect the restructuring of section 18 and the splitting of that
provision into 2 separate sections (see clauses 40 and 41).
Clause 52 amends 2 items in Schedule 5 to the Road Safety Act 1986.
Schedule 5 to the Road Safety Act 1986 sets out the minimum
suspension periods for excessive speed offences.
Item 1 relates to exceeding the speed limit by 25 kilometres
per hour or more, but less that 35 kilometres per hour.
The minimum suspension period for this offence was one month
and will now be 3 months.
26
Item 4 relates to speeding while travelling at a speed of
130 kilometres per hour or more when items 1, 2 or 3 do not
apply (meaning exceeding the speed limit by 20 km per hour or
more but less than 25 km per hour in a 110 km per hour zone).
The minimum suspension period for this offence was one month
and will now be 3 months.
This increase in the minimum suspension period aligns with
sanctions applied to other offences with a similarly high crash
risk, for example, drink-driving.
In light of these changes, it is proposed to amend the Road
Safety (Drivers) Regulations 2009 to provide that the offence of
excessive speeding will no longer attract demerit points.
Part 2.5--Demerit points scheme
Clause 53 repeals the note at the foot of section 28(7) of the Road Safety
Act 1986 which states that the cancellation or suspension of a
driver licence or learner permit in relation to a driving offence
is in addition to, and does not count as part of, a period of
suspension for incurring too many demerit points. This repeal is
necessary because the note is inconsistent with the move to the
concurrent imposition of demerit point suspensions and other
licence sanctions (see in particular the repeal of sections 38(2)
and (3) by clause 55, the amendment of section 42 by clause 59
and the amendment of section 44 by clause 60).
Clause 54 inserts new section 36(1A) into the Road Safety Act 1986.
This provides that a person whose driver licence or learner permit
is cancelled or suspended by VicRoads under another provision
of the Road Safety Act 1986 or otherwise is taken not to be the
holder of that driver licence or learner permit for the purposes of
section 36(1). The consequence of this is that the person would
not be eligible to receive a demerit point option notice under
section 36 of the Road Safety Act 1986 and VicRoads must
impose a demerit point suspension on the person's driver licence
or learner permit (see also new section 41A inserted by
clause 58).
A demerit point option notice is a notice giving a person who has
exceeded the permitted demerit point limit applying to the person
an option of electing to continue to drive rather than having the
person's driver licence or learner permit suspended. If a person
who takes this option does not incur any further demerit points
27
for the next 12 months, that person will not have to serve any
suspension period. If, on the other hand, the person incurs any
further demerit points in that 12 month period, the person's driver
licence or learner permit will be suspended for double the period
that would originally have been imposed. A person who elects to
accept the invitation to continue to drive offered by a demerit
point option notice effectively extends the applicable demerit
point period by 12 months in the expectation of not incurring
any further demerit points during that time, in which case no
suspension will be imposed for the original demerit points.
Clause 54 also substitutes new section 36(4)(b) and (c) in
the Road Safety Act 1986. Those provisions provide that if
VicRoads is aware that a person is subject to a driver licence or
learner permit suspension or disqualification from driving as a
result of incurring too many demerit points then it can postpone
sending a demerit point option notice to the person.
The new section 36(4)(b) and (c) differ from the current
section 36(4)(b) and (c) in that VicRoads will no longer be
authorised to postpone sending a demerit point option notice
to a person whose driver licence or learner permit has been
suspended or who has been disqualified from driving for a
reason other than having incurred too many demerit points
(for example, suspension for driving at 130 kilometres per hour
or more or disqualification for drink-driving). The reason for this
is that amendments to section 42 of the Road Safety Act 1986
made by clause 59 of the Bill provide that where a person's driver
licence or learner permit has been suspended or a person has been
disqualified from driving for a reason other than having incurred
too many demerit points and the person then incurs too many
demerit points the person will be subject to a demerit point
suspension that runs concurrently with that other non-demerit
point related sanction.
Clause 55 repeals sections 38(2) and (3) of the Road Safety Act 1986.
Section 38(2) currently provides that if, during an extended
demerit point period, the driver licence or learner permit of a
person is suspended or cancelled with a period of disqualification
imposed for a driving offence that does not attract demerit points
(for example suspension for excessive speeding or cancellation
for drink-driving), the extended demerit point period is itself
28
suspended until the period of suspension or disqualification
imposed for the non-demerit point offence has ended.
Section 38(3) currently provides that an extended demerit
point period which has been suspended as the result of a
disqualification imposed in this way for a driving offence that
does not attract demerit points resumes immediately after the
end of a period of disqualification.
These provisions are no longer required as clause 57 provides
that if a person elects to extend a demerit point period and the
person's driver licence or learner permit is cancelled or suspended
for a driving offence during the extended demerit point period
then the person will be subject to a demerit point suspension
under section 40. The period of suspension imposed will be for
double the time that would have applied had the person accepted
the original demerit point suspension rather than entering into an
extended demerit point period.
Clause 56 substitutes a new section 39(1) in the Road Safety Act 1986.
Section 39 currently provides that VicRoads must disregard all
demerit points recorded against a person as at the date of issue of
a demerit points option notice if the person elects to extend the
demerit points period and incurs no additional demerit points in
relation to any offence committed within the extended demerit
point period. New section 39(1)(c) broadens the range of driving
offences that can breach the undertaking not to commit any
further offences during an extended demerit point period to
include any driving offences that can result in the suspension or
cancellation of a driver licence or learner permit. The range of
offences that can bring an end to an extended demerit point
period and result in suspension of a driver licence or learner
permit for double the time that would originally have been
imposed has now been extended beyond offences that carry
demerit points to include any offences that result in suspension
or cancellation of a driver licence or learner permit.
Clause 57 substitutes a new section 40(1) in the Road Safety Act 1986.
Section 40 of the Road Safety Act 1986 currently sets out what
happens when a person elects to extend a demerit point period
and incurs additional demerit points. New section 40(1)(b),
consistent with new section 39(1)(c) (see clause 56), provides
that a person can breach an extended demerit point period not
only by committing an offence that carries demerit points
29
(new section 40(1)(b)(i)) but also by having the person's driver
licence or learner permit cancelled or suspended for a driving
offence (whether the cancellation or suspension is imposed under
the Road Safety Act 1986 or otherwise) during the extended
demerit point period (new section 40(1)(b)(ii)).
Clause 58 inserts new section 41A into the Road Safety Act 1986.
The new provision states that where a person does not hold a
current driver licence or learner permit because it has been
suspended or cancelled, the person is to be subject to a demerit
point suspension without the option of receiving a demerit point
option notice under section 36 (as amended by clause 54).
Because of the operation of section 42 (as amended by clause 59)
the demerit point suspension can be imposed despite the person
not holding a driver licence or learner permit.
Clause 59 repeals the notes at the foot of section 42(1) and (2) of the Road
Safety Act 1986 as a consequence of amendments made to
section 44 of the Road Safety Act 1986 by clause 60.
Clause 59 also inserts a new section 42(2A) into the Road Safety
Act 1986 which provides that where a person incurs a demerit
point suspension under new section 41A inserted by clause 58
that suspension runs concurrently with the other licence or permit
sanction.
Clause 59 also inserts new section 42(5) into the Road Safety
Act 1986. New section 42(5) provides that VicRoads may
determine a date as the date on which a demerit point suspension
takes effect, even if on or before that date the driver licence or
learner permit has been cancelled or suspended.
The new note at the foot of the new section 42(5) provides an
example of how VicRoads may determine the date of a demerit
point suspension so that the suspension runs concurrently with
another driver licence or learner permit suspension.
Clause 60 substitutes a new section 44 in the Road Safety Act 1986.
New section 44(1) provides that if a driver licence or learner
permit is suspended as the result of the relevant person having
incurred too many demerit points and the person then incurs a
suspension for an offence that does not incur demerit points
(for example excessive speeding), the other suspension does not
affect the demerit point suspension. New section 44 therefore
30
allows a demerit point suspension to run concurrently with a
suspension imposed for a reason other than demerit points.
New section 44(2) provides that if a driver licence or learner
permit suspended as the result of the relevant person having
incurred too many demerit points and the person's licence or
permit is then cancelled for an offence that does not incur
demerit points (for example drink-driving) the person remains
disqualified from obtaining a driver licence or learner permit
until the demerit point suspension period has elapsed.
Clause 61 amends section 46H(1) of the Road Safety Act 1986 to include a
reference to sections 41A(1) and (3) (as inserted by clause 58).
This has the effect that the right of a person to appeal to the
Magistrates' Court against a demerit point suspension also
extends to a suspension imposed on a person whose driver
licence or learner permit has been suspended or cancelled for
a reason other than demerit points.
Part 2.6--Service of notices
Clause 62 substitutes a new section 41(3) in the Road Safety Act 1986.
This amendment provides that if a demerit point option notice
is returned undelivered to VicRoads, then VicRoads can impose
a demerit point suspension despite that fact. See also new
section 93(5) inserted by clause 65.
Clause 63 substitutes new section 42(2) in the Road Safety Act 1986.
This amendment provides that if a suspension of a person's driver
licence or learner permit is imposed under section 41(2) of the
Road Safety Act 1986 on the basis that the person has incurred
too many demerit points, the suspension takes effect on and from
the date determined in the relevant demerit point option notice
served under section 36(1).
Clause 64 substitutes "14 days" with "7 days" in sections 60(6), 60A(6)
and 84BE(9) of the Road Safety Act 1986.
Sections 60(6) and 60A(6) currently provide for deemed service
of notices requiring the owner of a motor vehicle or trailer to
provide information to the police as to the identity of any person
who was driving or in control of that vehicle that have been
returned undelivered after 14 days from the date of the notice.
31
Section 84BE(9) provides for deemed service of a written notice
from an enforcement official regarding whether a statement
designed to avoid liability for a traffic offence under the operator
onus system after 14 days from the date of that notice.
These periods of 14 days are to be reduced to 7 days consistent
with the deemed service of notice provision in new section 93(6)
being inserted by clause 65.
Clause 65 inserts new sections 93(4), (5) and (6) into the Road Safety
Act 1986.
New section 93(4) provides for a consistent deemed service time
period of 7 days for notices sent by VicRoads, even if the notice
is returned undelivered to VicRoads.
New section 93(5) provides that if a notice is returned
undelivered to VicRoads and the person to whom the notice
was sent demonstrates to the satisfaction of VicRoads that the
person could not reasonably be expected to have received the
notice then VicRoads must treat the notice as not having been
served effectively on the person.
New section 93(6) provides that a person's residential address
or address for the service of notices, including the person's
electronic address, recorded against the person in VicRoads'
records may be updated on the basis of notification by a third
party if VicRoads is satisfied that the third party is a credible
source of information and the information is likely to be
up-to-date.
Part 2.7--Other amendments
Division 1--Motor cycle driver licence conditions
Clause 66 omits "(or if that licence is suspended whether by a court or
VicRoads, during that 3 year period, during an additional period
equal to the period of the suspension)" from section 19(7B) of
the Road Safety Act 1986.
Clause 66 also inserts new section 19(7C) into the Road Safety
Act 1986. New section 19(7C) provides that in calculating the
period of 3 years referred to in subsection (7B), any period for
which the person's driver licence has been suspended or for
which the person has been disqualified from driving during that
3 year period must be excluded.
32
The effect of the omission and insertion in section 19(7B)
and 19(7C) respectively is to clarify the period of time in which
a person who, having been issued with a driver licence which
authorises the person to drive a motor cycle, must have the
licence in the person's possession at all times while driving or
in charge of a motor cycle. The period is 3 years and any period
of suspension or disqualification does not count towards the
3 year period.
Clause 67 clarifies the period of time for which a motor cycle rider must
maintain a zero blood or breath alcohol concentration while
driving or in charge of a motor cycle. The period of time runs
from when the motor cycle rider is first issued with a driver
licence which authorises the person to drive a motor cycle.
Clause 67 substitutes a new section 52(1G) in the Road Safety
Act 1986. New section 52(1G) clarifies that in calculating the
period of time in which a motor cycle rider must maintain a zero
blood or breath alcohol concentration while driving or in charge
of a motor cycle (3 years), any period for which the person's
driver licence has been suspended or for which the person has
been disqualified from driving during the period must be
excluded.
Clause 68 clarifies the period of time for which a motor cycle rider must
produce for inspection, when requested to do so by a police
officer or an authorised officer, the person's driver licence
document or learner permit document while driving or in charge
of a motor cycle. The period of time runs from when the motor
cycle rider is first issued with a driver licence which authorises
that person to drive a motor cycle.
Clause 68 also omits "(or if that licence is suspended whether by
a court or the Corporation, during that 3 year period, during an
additional period equal to the period of the suspension)" from
section 59(3) of the Road Safety Act 1986. The content of the
omission from section 59(3) has been clarified and inserted as
new section 59(3A) (consistent with the changes made to
section 19(7B) of the Road Safety Act 1986 by clause 66).
Clause 68 also inserts new section 59(3A) into the Road Safety
Act 1986. New section 59(3A) clarifies that in calculating the
period of time for which a motor cycle rider must produce for
inspection, when requested to do so by a police officer or an
authorised officer, the person's driver licence while driving or
33
in charge of a motor cycle (3 years), any period for which the
person's driver licence has been suspended or for which the
person has been disqualified from driving during the period
must be excluded in calculating the 3 year period.
Division 2--Evidence of power to mass ratio
Clause 69 inserts definitions of power to mass ratio and tare mass into
section 3(1) of the Road Safety Act 1986.
Clause 70 amends section 84 of the Road Safety Act 1986 to provide that a
police officer or an officer of VicRoads or of the Department of
Economic Development, Jobs, Transport and Resources in any
proceeding for an offence against the Road Safety Act 1986 or
regulations under that Act may make a statement as to the power
to weight ratio of a vehicle and, in the absence of evidence to the
contrary, the statement shall be proof of that power to weight
ratio. This amendment is particularly relevant to probationary
prohibited vehicle offences set out in the Road Safety (Drivers)
Regulations 2009 which prohibit the use of high powered
vehicles in certain circumstances.
Division 3--Miscellaneous
Clause 71 inserts definitions into section 3(1) of the Road Safety Act 1986.
The definitions are combination, domestic partner, registration
number and spouse. The definition of domestic partner is being
moved from section 16B(1) into section 3(1) of the Road Safety
Act 1986 (see clause 73).
Clause 71 also moves an interpretive provision relating to
the definition of domestic partner from section 16B(4) to
section 3(7) (see clause 73).
Clause 72 inserts new sections 13(1A), (1B) and (1C) into the Road Safety
Act 1986. Section 13 of the Road Safety Act 1986 provides
authorised officers with the power to inspect motor vehicles and
trailers. New section 13(1A) provides that a police officer may
conduct a random safety inspection of any motor vehicle or
trailer that is located in a public place whether the vehicle is
attended or unattended.
This will enable a police officer to inspect a motor vehicle
without any requirement of a "reasonable grounds" belief that
the vehicle is defective or not compliant. The new power is
34
extended to any motor vehicle in a public place whether attended
or unattended, and therefore applies to parked vehicles.
Police officers will be able to conduct vehicle safety checks at
a random breath test facility, for example, or in a shopping
centre car park. If the police officer's check discloses a defect,
then that officer could use the existing powers in the Road
Safety Act 1986 to issue a warning or vehicle defect notice.
New section 13(1B) provides that except as provided by new
section 13(1C), the power to conduct an inspection of a motor
vehicle under new section 13(1A) does not include a power to
inspect the interior of the motor vehicle.
New section 13(1C) provides that an authorised officer (for the
purposes of this section) or a police officer must not inspect
under the bonnet, hood or other covering of the engine of the
motor vehicle unless the authorised officer or police officer
believes on reasonable grounds that the driver of the motor
vehicle is not complying with the Road Safety Act 1986 or the
regulations in driving a motor vehicle of that kind or the motor
vehicle does not comply with the Road Safety Act 1986 or the
regulations or the driver or the registered operator of the motor
vehicle consents to the inspection.
Note that a reference to the regulations includes a reference to
the Road Safety Road Rules 2017 (see section 3(5) of the Road
Safety Act 1986).
Clause 64 substitutes "authorised officer" for "inspecting officer"
in section 13(4) of the Road Safety Act 1986 so that the term
"authorised officer" is used consistently throughout the section.
Clause 73 repeals the definition of domestic partner from section 16B(1)
of the Road Safety Act 1986. The definition of domestic
partner is to be moved into section 3(1) of the Road Safety
Act 1986 (see clause 71). This ensures that the definition of
domestic partner will apply whenever that term is used in the
Road Safety Act 1986 or the regulations and rules made under
that Act, and not just in Division 3 of the Act which relates to
written-off vehicles.
Clause 73 repeals section 16B(4) of the Road Safety Act 1986
because this subsection contains a further explanation of the term
domestic partner and the definition of that term is to be moved
into section 3(1) of the Road Safety Act 1986 (see clause 71).
35
Clause 74 substitutes "vehicle immobilising devices" for "tyre deflation
devices" in section 63B of the Road Safety Act 1986.
The reason for this amendment is that there are some
"vehicle immobilising devices" that are not necessarily
"tyre deflation devices". This amendment will expand the
range of vehicle immobilising devices that Victoria Police
may use.
Clause 74 inserts new section 63B(3) into the Road Safety
Act 1986. Section 63B(3) provides a definition of vehicle
immobilising device.
Clause 75 inserts new section 81(1B) into the Road Safety Act 1986.
New section 81(1B) provides that when an image produced by a
prescribed road safety camera contains images of more than one
motor vehicle, a marker on a particular motor vehicle and a
message stating the speed of that motor vehicle determined by
the prescribed road safety camera is, without prejudice to any
other mode of proof and in the absence of evidence to the
contrary, proof of the speed of that motor vehicle on that
occasion. This new section clarifies the evidentiary status of
images produced by road safety cameras in circumstances where
more than one vehicle appears in the image.
Clause 76 inserts new section 83A(1A) into the Road Safety Act 1986.
New section 83A(1A) provides that, for the purposes of
section 41(1)(e) of the Criminal Procedure Act 2009, a
certificate referred to in section 83A(1) (a certificate containing
the prescribed information relating to a prescribed road safety
camera) is the only document relevant to an alleged offence to
which section 66 of the Road Safety Act 1986 applies.
Section 41(1) of the Criminal Procedure Act 2009 sets out
what must be contained in a full brief in a criminal prosecution.
Section 41(1)(e) provides that any other information, document
or thing in the possession of the prosecution that is relevant to the
alleged offence must be included in the full brief.
The effect of new section 83A(1A) is that for an offence to which
section 66 of the Road Safety Act 1986 applies (an operator
onus offence under Part 6AA) the only document relevant to the
offence is the certificate containing the prescribed information.
Clause 77 substitutes "9 people" for "12 people" in items 63, 64 and 65 of
Schedule 2 to the Road Safety Act 1986. Schedule 2 to the
Road Safety Act 1986 sets out the subject matter for which
36
regulations under the Road Safety Act 1986 may be made.
Items 63, 64 and 65 are regulation making powers relating to
vehicles used in hazardous areas.
The amendment will extend the scope of these regulation making
powers so that they apply to vehicles carrying more than 9 people
(driver included).
Clause 77 inserts new item 65A into Schedule 2 to the Road
Safety Act 1986. New item 65A provides additional power to
make regulations in relation to the circumstances in which the
driver of a motor vehicle must carry wheel chains (or other safety
devices suitable for hazardous areas) in a motor vehicle and fit
wheel chains or other safety devices to the motor vehicle.
Part 2.8--Statute law revision
Clause 78 inserts the definition of Road Rules into section 3(1) of the
Road Safety Act 1986 and updates that definition to refer to
the recently made Road Safety Road Rules 2017. Also, see
clauses 82 and 83.
Clause 79 inserts references to the Head, Transport for Victoria in a number
of provisions of the Road Safety Act 1986. These changes are
consequential to the Transport Integration Amendment
(Head, Transport for Victoria and Other Governance
Reforms) Act 2017.
Clause 80 corrects a typographical error.
Clause 81 substitutes "10 kilometres per hour" for "10km per hour" in
sections 61A(8)(c), 64(4)(b) and 65(3)(b) of the Road Safety
Act 1986. This amendment is to provide consistent use of
terminology across the Road Safety Act 1986.
Similarly, clause 81 substitutes "kilometres per hour" for
"km per hour" in section 65B of the Road Safety Act 1986.
Clause 82 repeals the definition of Road Rules from section 84BJ(1) of
the Road Safety Act 1986. The definition of Road Rules has
been inserted into section 3(1) of the Road Safety Act 1986
(see clause 78). This ensures that the definition of Road Rules
will apply whenever that term is used in the Road Safety
Act 1986 or the regulations made under that Act, and not just in
Part 6AB of the Act which relates to safe driving programs.
37
Clause 83 repeals the definition of Road Rules from section 84C(1) of
the Road Safety Act 1986. The definition of Road Rules has
been inserted into section 3(1) of the Road Safety Act 1986
(see clause 78). This ensures that the definition of Road Rules
will apply whenever that term is used in the Road Safety
Act 1986 or the regulations made under that Act, and not just in
Part 6A of the Act which relates to impoundment, immobilisation
and forfeiture of motor vehicles.
Clause 84 substitutes "this Act" for "section 56" in items 53 and 54 of
Schedule 2 to the Road Safety Act 1986. Schedule 2 to the
Road Safety Act 1986 sets out the subject matter in relation to
which regulations under the Road Safety Act 1986 may be
made. Items 53 and 54 refer to the safekeeping of samples of
blood taken and the delivery of portions of samples of blood to
the people from whom they are taken and to police officers.
This amendment clarifies that these regulation making powers
apply to all blood samples taken under the Act.
Part 2.9--Transitional provisions
Clause 85 inserts new section 103ZK into the Road Safety Act 1986 to
address a range of transitional matters.
New subsection (1) provides that, on and after the
commencement of clause 5 of the Bill, a reference to section 23A
of the Road Safety Act 1986 is taken to include a reference to
regulation 29 of the Road Safety (Drivers) Regulations 2009 as
in force before that commencement. This is because new
section 23A effectively replaces regulation 29 of the Road Safety
(Drivers) Regulations 2009.
New subsection (2) provides that section 23B of the Road
Safety Act 1986, as inserted by clause 6 of the Bill, applies to
any application for a driver licence or learner permit made to
VicRoads, whether the offence giving rise to an alcohol interlock
requirement was committed before, on or after the day on which
clause 6 of the Bill comes into operation.
New subsection (3) provides that section 25A of the Road Safety
Act 1986 (as inserted by clause 7 of the Bill) applies to a person
disqualified under the law of another jurisdiction, from driving or
obtaining a driver licence or learner permit in that jurisdiction,
whether the period of disqualification commenced before, on or
after the day on which clause 7 of the Bill comes into operation.
38
To the extent that the operation of this provision applies to
a disqualification that commenced prior to the provision's
commencement, this retrospective application of the provision
operates to the benefit of an affected person. This is because
new section 25A permits a person to apply for a shortened
disqualification period than would otherwise be imposed under
new section 23A of the Road Safety Act 1986. New section
25A effectively replaces regulation 81B of the Road Safety
(Drivers) Regulations 2009.
New subsection (4) provides that, in determining for the purposes
of section 31KB of the Road Safety Act 1986 (as substituted by
clause 8 of the Bill) whether a Victorian drink-driving offence
to which a corresponding interstate drink-driving offence
corresponds would be a person's first, second or subsequent
offence under sections 48(2), (5) and (6) and 50AA or
section 50AAA(9) and Schedule 1B to the Road Safety
Act 1986, regard may be had to--
• previous offences committed by the person on or after
the commencement of clause 8 of the Bill; and
• previous offences committed by the person before
the commencement of clause 8 of the Bill, if the
corresponding interstate drink-driving offence is
committed after that commencement.
New subsection (5) provides that, subject to subclause (6),
sections 31A to 31H, 49A, 50AAAB and 50AAB and
Schedule 1A of the Road Safety Act 1986 as in force
immediately before the day on which clause 24 of the Bill
comes into operation (the commencement day), continue to
apply to any offence committed before the commencement day
(other than an offence for which a disqualification was imposed
under section 89A(1) of the Sentencing Act 1991).
New subsection (6) provides that, on and after the day on which
clause 24 of the Bill comes into operation (the commencement
day), the amendments made to the Road Safety Act 1986 by
Division 2 of Part 2.2 of the Bill apply in relation to--
• any offence committed on or after the commencement
day; and
39
• any offence committed before the commencement day if
the person who committed the offence--
• does not hold a driver licence or learner permit
immediately before the commencement day; and
• is not granted a driver licence or learner permit
within 12 months after the commencement day;
and
• any offence for which a disqualification was imposed
under section 89A(1) of the Sentencing Act 1991
committed before the commencement day.
In relation to the second bullet point above which provides a
12 month transitional period, this 12 month period was selected
in recognition of the fact that certain assessment reports
(currently required under sections 31C and 31D and Schedule 1A
to the Road Safety Act 1986) are required to be obtained up to
12 months prior to applying to the Magistrates' Court for a
licence eligibility order (if one is required). It is not intended that
a person be required to complete and pay for a new behaviour
change program if that person has already incurred the expense
of obtaining the assessments and reports that are currently
required and are relicensed within 12 months of the
commencement of clause 24 of the Bill.
In relation to the third bullet point above which deals with
offences for which a disqualification was imposed under
section 89A(1) of the Sentencing Act 1991, the effect of the
transitional provision is to provide that, from the commencement
date, these persons are not required to complete a behaviour
change program nor are they required to complete the
assessments and reporting requirements which the behaviour
change program replaces. The affected person will, however,
still be required to obtain a licence eligibility order from the
Magistrates' Court and, where an alcohol interlock condition is
imposed, be required to obtain an alcohol interlock condition
removal order from the Court.
New subsection (7) provides that, subject to new subsection (8),
Part 6A of the Road Safety Act 1986, as in force immediately
before the day on which Part 2.3 of the Bill comes into operation
(the commencement day), continues to apply to any relevant
offence, within the meaning of 84C(1) of the Act as in force
40
immediately before the commencement day, that is committed
before the commencement day.
New subsection (8) provides that, on and after the day on which
clause 31 of the Bill comes into operation (the commencement
day), Part 6A of the Road Safety Act 1986 as amended by
Part 2.3 of the Bill applies to--
• relevant offences committed on or after the
commencement day; and
• relevant offences committed before the commencement
day if the most recent relevant offence is alleged to have
been committed on or after the commencement day.
New subsection (9) provides that, for the purposes of new
subsection (8), if a relevant offence is alleged to have been
committed between 2 dates, one before and one after the
commencement day (within the meaning of new subsection (8)),
the relevant offence is alleged to have been committed before the
commencement day.
New subsection (10) provides that, on and after the day on which
Part 2.5 of the Bill comes into operation (the commencement
day), Part 4 of the Road Safety Act 1986 as amended by Part 2.5
of the Bill applies to an extended demerit point period or the
suspension of a driver licence or learner permit under Division 3
of Part 4 of the Road Safety Act 1986 whether--
• the extended demerit point period or the suspension
commenced before, on or after the commencement day;
or
• the offences that gave rise to the extended demerit point
period or the suspension were committed before, on or
after the commencement day; or
• the conviction or finding of guilt (in relation an offence
that gave rise to the extended demerit point period) was
recorded before, on or after the commencement day.
While the amendments referred to in new subsection (10) apply
to demerit point offences which were committed before the day
the relevant provisions commence, this is generally beneficial to
affected persons because the amendments allow demerit point
suspensions to be imposed concurrently with other licence
41
sanctions and thereby will generally reduce the period of time
for which a person is prohibited from driving in Victoria.
Part 2.10--Amendment of Road Legislation
Further Amendment Act 2016
Clause 86 amends section 9 of the Road Legislation Further Amendment
Act 2016 which inserts section 25 into the Road Safety
Act 1986. Section 25 concerns the imposition of driver licence
and learner permit cancellation and disqualification from driving
The purpose of section 25 is to provide that where a person who
holds a Victorian driver licence or learner permit commits a
drink-driving offence in another State or Territory of Australia,
any Victorian driver licence or learner permit held by the person
must be cancelled and the person will be disqualified from
obtaining a further Victorian driver licence or learner permit.
The duration of the disqualification will be the minimum period
of disqualification that would have applied had the person
committed an equivalent Victorian offence.
The amendment of section 25 of the Road Safety Act 1986
by the Bill clarifies that, where the minimum period of
disqualification that would apply to a Victorian drink-driving
offence under section 89C of the Road Safety Act 1986
(which deals with disqualification periods where an infringement
notice is issued for the offence) is less than the period of
disqualification that would be imposed under section 50 of that
Act (which deals with disqualification periods where charges are
laid and the matter is heard in court) for the same offence, the
lesser period of disqualification under section 89C is taken to be
the minimum period of disqualification that would apply had the
person been convicted or found guilty of that offence.
This will ensure that a person who commits an interstate
drink-driving offence is not dealt with (under section 25) more
harshly than a person who commits an equivalent Victorian
drink-driving offence.
42
Chapter 3--Amendment of rail legislation
Part 3.1--Amendment of Rail Management Act 1996
Part 3.1 sets out amendments to the rail access scheme contained in the Rail
Management Act 1996.
Clause 87 inserts a definition of Department in section 3 of the Rail
Management Act 1996. Department means the Department of
Economic Development, Jobs, Transport and Resources.
Clause 88 substitutes Part 2A of the Rail Management Act 1996 with a
new Part 2A. The new Part provides a revised rail access scheme
for access providers.
New section 38A contains a number of definitions for the
purposes of the new Part 2A of the Rail Management Act 1996.
Definitions of significance include the following--
Access provider
This definition defines persons as access providers if they
provide, or are capable of providing, a declared rail transport
service. Those persons are--
• accredited rail transport operators within the meaning of
the Rail Safety (Local Operations) Act 2006
• accredited persons within the meaning of the Rail Safety
National Law (Victoria)
• rail transport operators exempted from accreditation
• rail infrastructure managers
• the Southern Cross Station Authority
• the Crown
• related body corporates
• any other person declared by Order in Council.
Access seeker
An access seeker is defined as an accredited rail transport
operator or an accredited person who wants to be provided
with a declared rail transport service.
43
Declared rail network
This means the rail infrastructure used to provide declared rail
transport services, which are those declared by Order under new
section 38E.
Penalty provision
This means new section 38ZJ(2), new section 38ZP(1) and new
section 38ZP(2). New section 38ZJ(2) provides that a party to an
access regime dispute must not do any act or thing that would be
a contempt of court if the independent panel hearing the dispute
were a court of record. New section 39ZP(1) requires a party to
a dispute to comply with directions of the independent panel.
New section 38ZP(2) requires a party to an access regime dispute
to comply with the determination of the independent panel.
Principle of passenger priority
This means the giving of priority to the provision of rail transport
services to passenger service users over the provision of rail
transport services to other users. This principle is set out in new
section 38G.
Rail access agreement content order
This term is defined in new section 38O. An order specifies
the terms and conditions that must be included in a rail access
agreement.
Rail access guidelines
This means guidelines prepared under new section 38H.
New section 38H defines rail access guidelines as guidelines
about the terms and conditions of rail access arrangements.
Statement of Freight Network Capability
This means a statement prepared under new section 38P.
New section 38P sets out what a statement must include, who
needs to be consulted and publishing requirements, amongst
other matters.
New section 38B sets out the meaning of operating rail or tram
infrastructure or a rail network for the purposes of the rail access
regime. A person operates infrastructure or a rail network if the
person--
44
(a) owns or leases rail or tram infrastructure or a rail
network, or has a right conferred by an Act or contract
to manage it; and
(b) either operates, or appoints an agent or contractor
to operate, the signalling, rolling stock control and
communications facilities of the railway or tramway,
or carries out, or appoints an agent or contractor to
carry out, on or about the railway or tramway, the
construction, maintenance, repair or alteration of any
of the rail or tram infrastructure or rail network.
New section 38C sets out the meaning of a rail transport service.
A rail transport service is a service provided or that may be
provided by an access provider by means of rail or tram
infrastructure owned or operated by that provider that enables
an entity to provide freight services or other transport services.
Entities referred to are users (i.e. accredited rail transport
operators or accredited persons), access seekers or a related
body corporate of the access provider.
New section 38C also provides that a rail transport service can be
provided by the access provider to itself.
New section 38C(3) sets out the services which are included
within the meaning of a rail transport service, including
allocating train paths, planning train services and maintaining a
rail network owned or operated by the access provider, just to
list a few.
New section 38D provides for the Governor in Council to declare
a person to be an access provider.
New section 38E provides for the Governor in Council to declare
a rail transport service to be a declared rail transport service for
the purposes of the rail access regime, if the Minister considers it
necessary in the interests of competition or economic efficiency.
An Order under this section must specify the type of service it
applies to and may declare a service by reference to the person
who owns or operates the rail infrastructure used to provide the
service, or the location of the rail infrastructure, or the type of rail
infrastructure used to provide the service.
New section 38F states that the object of Part 2A (i.e. the access
regime) is to regulate rail access in Victoria in the interests of
competition and economic efficiency.
45
New section 38G sets out the meaning of the principle of
passenger priority as the giving of priority to the provision of rail
transport services to passenger service users over the provision of
rail transport services to other users, such as the giving of priority
to rail access seekers who provide passenger services over rail
access seekers who provide freight or other transport services
(i.e. other than passenger services).
New section 38H enables the Minister to prepare guidelines
about the terms and conditions of rail access arrangements.
Subsection (2) sets out the matters that the guidelines may
provide guidance material on, including the implementation
of the principle of passenger priority, the management and
notification arrangements for temporary railway or tramway
track closures, the management and communication of freight
train path availability, arrangements governing the period and
length of arrangements and extensions of time, processes for
amending arrangements, and arrangements and processes for the
resolution of disputes.
New section 38I provides for the publication of the guidelines
in the Government Gazette and on the Department's Internet site.
The guidelines must also be available for inspection free of
charge at the Department's offices.
New section 38J provides for the initial specification of rail
access maximum prices. Subsection (1) enables the Minister to
specify maximum prices for declared rail transport services for
the first financial year by notice published in the Government
Gazette. This sets a benchmark for future annual increases to
rail access prices. Subsection (2) sets out the matters the
Minister must have regard to when specifying maximum prices.
These include--
• the costs of maintaining and providing the declared rail
network
• the ability to recover any capital investment for an
access provider
• railway track standards
• the Government's rail freight policies and programs.
New section 38K enables the Minister to specify new
maximum prices that will apply to the provision of declared rail
transport services for a financial year after the first financial year.
46
The Minister must have regard to any suitable published industry
price indices when setting a new maximum price.
New section 38L requires the Minister to review any specified
maximum prices for the provision of declared services that will
be affected by an amendment to railway track standards within
30 days after the amendment taking effect. Subsection (3)
requires the Minister to specify new maximum prices if,
following the review, the Minister is of the opinion that new
maximum prices should be specified.
New section 38M applies if an access provider either reopens or
proposes to reopen a part of rail infrastructure owned or operated
by it in order to provide declared rail transport services by
means of that infrastructure, or makes or proposes to make
improvements to rail infrastructure by which the provider
provides declared rail transport services. Subsection (2) enables
the access provider to apply to the Minister for specification of
new maximum prices to apply. Subsection (3) sets out the
matters that an application must contain. Subsection (4) provides
that the Minister may specify new maximum prices that will
apply to the provision of declared rail transport services set out in
the application by notice in the Government Gazette. Subsection
(5) specifies the matters to which the Minister must have regard
for the purpose of specifying new maximum prices. Subsection
(6) provides that maximum prices supersede all other maximum
prices previously specified.
New section 38N provides for public consultation for draft rail
access guidelines and proposed rail access maximum prices.
Subsection (2) provides that, before preparing rail access
guidelines, specifying maximum prices under new section 38J or
new maximum prices under new section 38K, the Minister must
prepare a consultation draft of the guidelines or notice under new
section 38J or 38K and invite submissions and comments from
the public on the consultation draft. Subsection (3) requires
that notice of the consultation draft must be published on the
Department's Internet site and in a newspaper circulating
generally throughout the State and must make copies of the
consultation draft available on the Department's Internet site
and at the Department's offices. Subsection (4) confirms that
the notice must include a summary of the content of the
consultation draft and must specify the date by when a
submission or comment must be made. This must not be less
47
than 30 days after publication. The notice must also specify how
a submission or comment must be made and where a copy of the
consultation draft is available.
New section 38O provides for rail access agreement content
orders. A rail access agreement content order may specify terms
and conditions for the provision of a declared rail transport
service that must be included in a rail access agreement.
However, a rail access content order cannot specify a term or
condition that sets the maximum price for the provision of the
service. Subsection (3) confirms that a rail access agreement
content order is a legislative instrument within the meaning of the
Subordinate Legislation Act 1994.
New section 38P requires the Public Transport Development
Authority to prepare a Statement of Freight Network Capability
for every declared rail network that describes the proposed level
of access that may be provided by the access provider to access
seekers and information on the number of train paths for the
provision of freight services. The statement must also specify
track standards for the network. Subsection (2) confirms that in
preparing the statement, the Public Transport Development
Authority must have regard to the Government's rail freight
policies and programs and consult with the Minister.
The statement must be given to the Minister and the Head,
Transport for Victoria and must be made available at the Public
Transport Development Authority's offices. The statement must
be published on the Authority's and the Department's Internet
sites.
New section 38Q requires the Public Transport Development
Authority to prepare a new Statement of Freight Network
Capability if there is a material change to the declared rail
network to which it relates or to the use of that network.
New section 38R requires the Public Transport Development
Authority to notify the Minister and the Head, Transport for
Victoria of any proposed amendment to a Statement of Freight
Network Capability that will include an amendment to railway
track standards specified in the statement.
New section 38S requires an access provider to prepare and
publish a rail access arrangement that meets the requirements of
Division 5 of Part 2A of the Rail Management Act 1996.
48
New section 38T provides that a rail access arrangement meets
the requirements of Division 5 if it covers every declared rail
transport service the access provider provides by means of a
declared rail network.
New section 38U describes the contents of a rail access
arrangement. A rail access arrangement meets the requirements
of Division 5 of Part 2A of the Rail Management Act 1996 if,
for every declared rail transport service to which the arrangement
relates, it includes a description of the service, the terms and
conditions of the provision of the service and the price for that
service. In addition, the rail access arrangement must describe
the available capacity on the declared rail network, describe how
the arrangement has regard to the rail access guidelines and the
Statement of Freight Network Capability (if relevant), and a
description of the information that the access provider will make
available to an access seeker. A rail access arrangement must
also set out the procedure for an application by an access seeker
and must describe the procedure and method as to how the
access provider will assess and determine an application for the
provision of a declared rail transport service to an access seeker.
New section 38V requires an access provider to amend a rail
access arrangement as soon as practicable after there is a
change in any relevant regulatory requirements that require an
amendment in order for the arrangement to comply with the
requirements of Division 5 of Part 2A of the Rail Management
Act 1996, or a significant change in any matter referred to
in the arrangement so that the arrangement reflects that
change. Regulatory requirements means new section 38U
(which describes the contents of a rail access arrangement),
rail access guidelines or a rail access agreement content order.
New section 38W requires an access provider to publish on its
Internet site its rail access arrangement and every amendment to
that arrangement.
New section 38X provides that the first rail access arrangement
that an access provider is required to prepare takes effect 60 days
after the day on which the initial maximum prices specified under
new section 38J that apply to the relevant declared rail transport
services take effect. The section further provides that an
amended rail access arrangement takes effect on the date on
which it is published on the provider's Internet site.
49
New section 38Y explains how an access seeker who wants to
be provided with declared rail transport services must request
access to those services. A request must be submitted to the
access provider. Subsection (3) provides that the request must
be in writing and must contain a description of the declared rail
transport services with which that the access seeker wants to be
provided, a description of the services that the access seeker will
provide through the use of the declared rail transport services and
details of the access seeker's management competency, financial
viability and relevant policies of insurance.
New section 38Z contains details about an access provider's
assessment of a request for access. A request must be assessed
within 30 days after receipt and an access provider must inform
the access seeker of whether the request is accepted or rejected.
The access provider must have regard to the rail access
guidelines in assessing a request. A request may be rejected if
the access provider is of the opinion that it does not meet the
requirement of new section 38Y(3) (which must describe the
declared rail transport services with which the access seeker
wants to be provide, a description of the services that the access
seeker will provide and details of the access seeker's management
competency, financial viability and relevant policies of
insurance). Written reasons for a rejection must be given.
New section 38ZA sets out the meaning of access regime dispute.
An access regime dispute is a dispute between an access provider
and an access seeker where they are unable to agree the terms
and conditions for the provision of a declared rail transport
service to the access seeker. An access regime dispute is taken to
arise if an access seeker is of the opinion that--
• an access provider has not complied with section 38W
(which relates to the publication of rail access
arrangements); or
• where the access provider's rail access arrangements do
not meet the requirements of Division 5 of Part 2A of
the Rail Management Act 1996; or
• an access provider rejects a request for access; or
• the access provider's rail access arrangement does not
comply with an applicable rail access agreement content
order.
50
New section 38ZB provides that an access seeker or an access
provider may notify the Head, Transport for Victoria in writing
of an access regime dispute. On receiving the notification the
Head, Transport for Victoria must give written notice of the
access regime dispute to the access seeker or the access provider,
as the case requires. The person notifying the Head, Transport
for Victoria and the person notified by the Head, Transport for
Victoria are parties to the dispute.
New section 38ZC provides that the Head, Transport for Victoria
must constitute an independent panel to hear and determine a
access regime dispute. The panel must consist of 3 members
each of whom must have experience of one of engineering,
economics or law. At least one member must have knowledge of
or experience in reviewing rail access arrangements.
New section 38ZD requires panel members to disclose any
conflicts of interest in relation to the hearing and determination
of an access regime dispute. The interest must be disclosed to the
Head, Transport for Victoria and the person must not take part in
the hearing and determination of the access regime dispute if the
Head, Transport for Victoria gives a direction to the person
accordingly. If the Head, Transport for Victoria does not give
such a direction, the interest must be disclosed to the parties to
the dispute.
New section 38ZE makes provision for the circumstance in
which a panel member ceases to be a member of the panel
before the determination of an access regime dispute or becomes
incapable of participating in the hearing and determination of the
access regime dispute. The Head, Transport for Victoria must
appoint another person as a member of the panel and, in the case
of incapacity, must remove the member from the panel.
New section 38ZF provides that the function of the independent
panel is to hear and determine an access regime dispute.
The panel must have regard to the object of Part 2A of the Rail
Management Act 1996 and, as the case requires, the rail access
guidelines, the Statement of Freight Network Capability and a
rail access agreement content order.
New section 38ZG deals with hearings for the purposes of an
access regime dispute and provides that, in any hearing, an
independent panel is not bound by technicalities, legal forms or
rules of evidence but must accord procedural fairness. The panel
51
must act speedily, having regard to the need to carefully and
quickly inquire into and investigate the access regime dispute and
all matters affecting the merits and fair settlement of the dispute.
The panel may inform itself of any relevant matter. The panel
may decide the periods that are reasonably necessary for the fair
and adequate presentation of each parties' case and may require
evidence or argument to be presented in writing. Subsection (5)
provides that the panel may decide that the hearing is to be
conducted by telephone, closed circuit television or any other
means of communication.
New section 38ZH provides that a hearing of a rail access regime
dispute is to be held in private unless the parties to the dispute
agree that it may be conducted in public. If the hearing is
conducted in private, the chairperson of the panel may give
written directions as to the persons who may be present, having
regard to the wishes of the parties and the need for commercial
confidentiality.
New section 38ZI provides that a party to an access regime
dispute may appear in person or may be represented by someone
else if the panel agrees.
New section 38ZJ sets out the powers of the independent panel
in relation to determining an access regime dispute. The panel
may give directions including in the course of a hearing, may
sit at any place, may adjourn the hearing, and may refer any
matter to an expert and accept the expert's report as evidence.
Subsection (2) provides that a party to an access regime dispute
must not do anything that would be a contempt of court if the
panel were a court of record. Subsection (3) provides that the
chairperson may direct a party not to divulge or communicate
specified information that was given to the party in the course of
the access regime dispute without the chairperson's permission.
New section 38ZK provides that an independent panel may take
evidence on oath or affirmation, which the chairperson of the
panel may administer.
New section 38ZL provides that any question before the
independent panel is to be decided by a majority of the members
of the panel.
New section 38ZM provides that each party to an access regime
dispute must bear their own costs and must pay the costs incurred
by the State for the constitution of the panel, including the fees,
52
allowances and expenses paid to each panel member and costs
incurred in providing indemnities for each panel member.
Subsection (3) provides that the Head, Transport for Victoria
must determine the proportion of costs incurred by the State that
a party is to pay and must notify the party of the amount of costs
to be paid by the party. However, if an independent panel
determines that a party to an access regime dispute must pay a
proportion of those costs, the Head, Transport for Victoria must
apportion costs in accordance with that direction. The costs may
be recovered as a debt due to the State.
New section 38ZN enables an independent panel to direct that a
party to an access regime dispute must pay all or a specified part
of the costs of another party to the dispute, if satisfied that it is
fair to do so. The panel must have regard to whether the party
has conducted themselves in the hearing in a way that
unnecessarily disadvantaged the other party, for example by
failing to comply with directions without reasonable excuse,
causing an adjournment or vexatiously conducting the hearing.
If the panel considers that the representative of a party, rather
than the party, is responsible for this conduct, the panel may
order that the representative compensate the other party for any
costs unnecessarily incurred. The panel must first give the
representative a reasonable opportunity to be heard. If the
direction as to costs is made before completion of the hearing,
the panel may require the direction to be complied with before
proceeding further.
New section 38ZO provides that an independent panel must
determine the access regime dispute within 60 days after
being constituted. A determination by the panel may include
a requirement that a party to the access regime dispute take
or cease or refrain from taking specified action and to pay a
specified proportion of costs incurred by the State for the
constitution of the panel. A determination is effective on the
day it is made unless a later date is specified in the determination.
A copy of the determination and statement of reasons for the
determination must be given to the parties to the dispute.
New section 38ZP(1) requires a party to a dispute to comply
with directions of the independent panel. New section 38ZP(2)
requires a party to a dispute to comply with the determination of
the panel.
53
New section 38ZQ deals with proceedings for contraventions of
penalty provisions (penalty provisions are new section 38ZJ(2),
new section 38ZP(1) and new section 38ZP(2)). The Secretary
or the Public Transport Development Authority may apply to the
Supreme Court for an order in respect of a contravention of a
penalty provision. If the Court is satisfied that the person has
contravened or has attempted to contravene a penalty provision
or has aided, abetted, counselled or procured, or has induced or
attempted to induce another person to contravene a penalty
provision, the Court may order a person to pay a pecuniary
penalty in respect of each act or omission not exceeding
$1 000 000. Subsection (3) confirms that the Court may have
regard to relevant matters including the nature and extent of
the act or omission and any resulting loss or damage, the
circumstances in which the act or omission took place and
whether the person has been previously found to have
contravened a penalty provision.
New section 38ZR provides for pecuniary penalties to be paid
into the Consolidated Fund.
New section 38ZS enables the Supreme Court to grant an
injunction on the application of the Secretary or the Public
Transport Development Authority if a person has engaged,
or proposes to engage, in conduct that would constitute a
contravention or attempted contravention of a penalty provision.
An injunction may be granted by consent of all the parties to the
proceedings. An interim injunction may be granted. The power
to grant an injunction may be exercised whether or not it appears
that the person intends to engage or continue to engage in such
conduct, whether or not the person has previously engaged in
such conduct and whether or not it appears that the person
intends to refuse or fail again to do an act or thing which is the
subject of the injunction. Subsection (7) provides that the Court
must not require an undertaking in damages from the Secretary
or the Public Transport Development Authority or from any other
person.
New section 38ZT enables the Supreme Court to declare
whether or not the person to whom an application brought by
the Secretary or the Public Development Authority relates has
contravened a penalty provision. The order may include a
requirement that the person cease the act, activity or practice
constituting the contravention or that the person take such
54
action or adopt such practice for remedying or preventing a
recurrence of the contravention.
New section 38ZU enables the Supreme Court to grant an
injunction on the application of a party to an access regime
dispute in relation to another party to the dispute where an
independent panel has made a determination. An injunction can
be granted if the Court considers that the other party engaged, is
engaging or proposes to engage in conduct that constitutes a
contravention of a panel determination. The order may restrain a
party from engaging in the conduct or may require the party to do
something if the conduct involves refusing or failing to do that
thing. The Court may also make any other orders, including
granting an injunction against any other person who was involved
in the contravention.
New section 38ZV enables a party to an access regime dispute to
appeal to the Supreme Court on a question of law from a decision
of an independent panel.
New section 38ZW requires an access provider to give a network
activity and performance report to the Secretary and the Public
Transport Development Authority one month after each quarter
of a financial year. The report must report on the performance
indicators, which must be determined by the Public Transport
Development Authority after consultation with the Head,
Transport for Victoria, for the previous quarter. An access
provider who does not comply must provide written reasons to
the Minister, the Head, Transport for Victoria and the Public
Transport Development Authority. The performance indicators
may include matters such as the number of freight services
provided using a specified railway track, the volume and type of
freight carried by rolling stock on a specified railway track and
the average speed limit for rolling stock carrying freight.
The Public Transport Development Authority must publish
the performance indicators on its Internet site and give those
indicators in writing to the access provider to whom they will
apply.
New section 38ZX contains definitions for the purpose of new
Division 10 of Part 2A of the Rail Management Act 1996.
Information requirement means any requirement under new
section 38ZZ or 38ZZA. Regulatory entity means the Minister
or the Public Transport Development Authority.
55
New section 38ZY requires a regulatory entity, when making an
information requirement, to have regard to the relevance of the
information or document to the function being performed by the
regulatory entity and the estimated compliance costs for a person
to comply with an information requirement.
New section 38ZZ enables a regulatory entity to require a
person to provide information or a document if the regulatory
entity considers that it is necessary to do so for the purposes
of performing its functions or exercising its powers under new
Part 2A of the Rail Management Act 1996. The requirement
must be given in writing and must include a copy of new
Division 10 of Part 2A.
New section 38ZZA enables a regulatory entity to give written
notice to an access provider requiring the access provider to
provide the regulatory entity with information relating to the
provision of declared rail transport services. If a third party holds
the information, the access provider may be required to enter into
an arrangement with the third party under which the third party is
to provide the information to the regulatory entity.
New section 38ZZB makes it an offence to fail to comply
with any information requirement without lawful excuse.
The maximum penalty for a contravention of the offence is
120 penalty units. It is a lawful excuse if compliance may
tend to incriminate the person or make the person liable to a
penalty for any other offence.
New section 38ZZC makes it an offence to knowingly give a
regulatory entity information that is false or misleading in
purported compliance with an information requirement.
The maximum penalty for a contravention of the offence
is 120 penalty units or 6 months imprisonment.
New section 38ZZD makes it an offence to threaten, intimidate or
coerce a person or to incite or take or to threaten to incite or take
any action that causes another person to suffer any loss, injury or
disadvantage for complying with an information requirement.
The maximum penalty for a contravention of the offence is
120 penalty units.
56
New section 38ZZE confirms that if a person gives information
or a document in compliance with an information requirement in
good faith, the person is not liable for any loss, damage or injury
suffered by another party as a result of giving that information or
document.
New section 38ZZF contains restrictions on disclosing
confidential information. A regulatory entity may only disclose
information or documentation which is of a commercially
sensitive or confidential nature if the regulatory entity is of the
opinion that the disclosure would not cause detriment to the
person giving it or to any other person who is aware of the
information or the contents of the document or, although it
would, the public benefit in disclosing it outweighs that
detriment. Before making a disclosure, the regulatory entity
must give the person giving the information or document the
opportunity to make a submission about why the document or
information is confidential or commercially sensitive and the
detriment that would be caused by the disclosure. The regulatory
entity must give the person who gave the information or
document, or a person who gave the information or document to
that person, a written notice giving reasons for the proposed
disclosure. It is an offence for the regulatory entity not to
comply. The maximum penalty for a contravention of the
offence is 120 penalty units. The provision does not prevent the
disclosure by the Minister to a person employed under the Public
Administration Act 2004 or to a person engaged by the Minister
or the Secretary to assist the Minister to perform the Minister's
functions or exercise of the Minister's powers, or by the Public
Transport Development Authority to the Head, Transport for
Victoria, an employee, consultant, contractor or agent of the
Authority or to a person who provides services to the Authority.
New section 38ZZG provides that a regulatory entity must not
disclose any document that is an exempt document under the
Freedom of Information Act 1982.
Clause 89 inserts new section 118 into the Rail Management Act 1996
to clarify that a binding access agreement in force immediately
before the commencement of section 89 of the Transport
Legislation Amendment (Road Safety, Rail and Other
Matters) Act 2017 continues in effect after commencement
of that section until a rail access arrangement published by that
access provider takes effect.
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Part 3.2--Amendment of Rail Safety (Local Operations) Act 2006
Clause 90 makes definitional and interpretive changes to section 3 of the
Rail Safety (Local Operations) Act 2006.
Subclause (1) amends the definition of Department.
Department means the Department of Economic Development,
Jobs, Transport and Resources.
Subclause (2) inserts the definition of National Rail Safety
Regulator and means the Regulator within the meaning of the
Rail Safety National Law (Victoria).
Subclause (3) repeals the definition of public transport safety
matter as the term is now redundant.
Subclause (4) makes a statute law revision to the definition of
railway premises to substitute "railway operations" for the term
"rail operations", which is the expression generally used in the
Rail Safety (Local Operations) Act 2006.
Clause 91 substitutes "railway operations" for "rail operations" in
section 34I(b) of the Rail Safety (Local Operations) Act 2006.
Clause 92 makes consequential changes to section 35B of the Rail Safety
(Local Operations) Act 2006 relating to the name of the
Department.
Clause 93 amends section 56(4)(b) and (5)(b) of the Rail Safety
(Local Operations) Act 2006 by substituting "rail operator"
with "accredited rail transport operator".
Clause 94 inserts a definition of properly qualified analyst in section 70 of
the Rail Safety (Local Operations) Act 2006 so that it has the
same meaning as in section 57B of the Road Safety Act 1986.
Clause 95 inserts new section 77(1)(da) into the Rail Safety
(Local Operations) Act 2006. This creates a new offence of
refusing to provide a sample of oral fluid or complying with any
other requirement in accordance with new section 86CB.
Clause 96 substitutes section 78(b)(ii) of the Rail Safety (Local
Operations) Act 2006. New section 78(b)(ii) provides that a rail
safety worker may be convicted or found guilty of an offence
under 86A(3) of that Act if the worker was required under
section 86CB(3) to provide a sample of oral fluid for analysis by
a properly qualified analyst even if the transport safety officer or
58
police officer requiring a sample of oral fluid had not nominated
a registered medical practitioner or approved health professional
to whom the sample was to be furnished for analysis.
Subclause (2) repeals section 78(b)(iii) of the Rail Safety
(Local Operations) Act 2006.
Clause 97 repeals the requirement under section 85(11) of the Rail Safety
(Local Operations) Act 2006 for a medical practitioner or health
professional to deliver a part of a blood sample to the person
from whom it was taken and the person who required it to be
taken.
Clause 98 amends section 86A(4) of the Rail Safety (Local Operations)
Act 2006 to provide that a requirement to submit to a drug
screening test, oral fluid analysis or blood test includes a
requirement under new sections 86CA, 86CB and 86CF and
section 86D.
Clause 99 inserts new sections 86CA to 86CG into the Rail Safety
(Local Operations) Act 2006 to provide for the procedures for
police officers and transport safety officers conducting drug
screening tests and oral fluid analysis. These new sections
provide testing procedures to supplement the drug and alcohol
offences contained in the National Rail Safety Law. The new
sections are consistent with Road Safety Act 1986 provisions,
and also contain evidentiary provisions.
New section 86CA sets out the procedure for carrying out a drug
screening test by an authorised transport safety officer or police
officer and applies if the officer requires a rail safety worker to
submit to a drug screening test under section 86A(1) of the Rail
Safety (Local Operations) Act 2006.
Subsection (2) provides that a rail safety worker may be required
to place a prescribed device into the worker's mouth and carry out
the physical actions necessary to ensure that a sufficient sample
of oral fluid is captured by the device for the purposes of carrying
out a drug screening test. A device may be comprised of a
collection unit and a testing unit and one or more other parts.
Subsection (4) enables a transport safety officer or police officer
who carries out a drug screening test to give any reasonable
direction as to the physical actions that are necessary for the test
to be carried out.
59
Subsection (5) provides that the rail safety worker must remain at
the place at which the drug screening test is being carried out
until the sample of oral fluid has been tested by a prescribed
device.
Subsection (6) provides that a rail safety worker is not obliged to
undergo a drug screening test if more than 3 hours have passed
since the worker last carried out or attempted to carry out rail
safety work or was involved in a prescribed notifiable
occurrence.
Subsection (7) provides that the Safety Director or the National
Rail Safety Regulator may only authorise a transport safety
officer to conduct drug screening tests under new section 86CA
if they are satisfied that the transport safety officer has the
appropriate training to carry out a drug screening test.
New section 86CB provides for the procedure for collecting oral
fluid for analysis.
New section 86CB applies if a rail safety worker is required to
submit to an assessment of drug impairment under section 86B
or to undergo a drug screening test under section 86A and, in
the opinion of the transport safety officer or police officer who
carries out that assessment or test, the assessment or test indicates
that the worker's oral fluid contains a prescribed drug or the
worker has refused or failed to carry out the assessment or test
in the required manner.
Subsection (2) provides that a transport safety officer or police
officer may require the rail safety worker to provide a sample of
oral fluid for testing by a prescribed device.
Subsection (3) provides that, if considered necessary, a transport
safety officer or a police officer may require a rail safety worker
to provide a sample of oral fluid for analysis by a properly
qualified analyst.
Subsection (4) provides that an officer may also require the rail
safety worker to accompany any officer to a place or vehicle
where the sample is to be provided and to remain there until
either the sample has been tested or until 3 hours after the
worker last carried out or attempted to carry out rail safety work
or was involved in a prescribed notifiable occurrence within
the meaning of regulations made under the Rail Safety National
Law (Victoria).
60
Subsection (5) provides that a rail safety worker who was
required to provide a sample of oral fluid under subsection (2)
may be required to provide further samples of oral fluid if it
appears that the prescribed device used is incapable of testing for
the presence of a prescribed drug because the amount of sample
provided was insufficient or because the device malfunctioned.
Subsection (6) provides that a rail safety worker who was
required to provide a sample of oral fluid under subsection (3)
may be required to provide further samples of oral fluid if it
appears that the amount of sample provided was insufficient for
testing for the presence of a prescribed drug.
Subsection (7) provides that only a transport safety officer
authorised in writing by the Safety Director or the National Rail
Safety Regulator, or a police officer authorised in writing by
the Chief Commissioner of Police, may carry out the oral fluid
sample procedures under new section 86CB.
Subsection (8) provides that the Safety Director, the National
Rail Safety Regulator or the Chief Commissioner of Police may
authorise a transport safety officer or police officer to carry out
oral fluid sample procedures if satisfied that the officer has the
appropriate training.
Subsection (9) provides that a prescribed device may be
comprised of a collection unit and a testing unit and other parts.
New section 86CC explains how a rail safety worker must
provide an oral fluid sample.
Subsection (1) provides that a rail safety worker must place the
prescribed device, or the collection unit of the device, into their
mouth and carry out any necessary physical actions to ensure that
a sufficient sample has been captured by the device.
Subsection (2) enables a transport safety officer or police officer
to give any reasonable direction as to the physical actions that are
necessary for the sample to be provided.
Subsection (3) provides that a rail safety worker is not obliged to
provide a sample of oral fluid if more than 3 hours have passed
since the worker last carried out or attempted to carry out rail
safety work or was involved in a prescribed notifiable
occurrence.
61
Subsection (4) requires the provision of a sample of oral fluid to
be carried out in accordance with the prescribed procedure.
Subsection (5) contains a statutory defence for refusing to
provide a sample of oral fluid under section 86CB. A worker
must not be convicted or found guilty of refusing to provide a
sample of oral fluid under new section 86CB if there was some
reason of a substantial character for the refusal, other than a
desire to avoid providing information which might be used
against the worker.
Subsection (6) provides that a prescribed device may be
comprised of a collection unit and a testing unit and other parts.
New section 86CD provides that if an oral fluid sample provided
under section 86CB indicates that, in the opinion of the officer
who collected the sample, the oral fluid contains a prescribed
drug, the officer may deliver a part of the sample to the officer
who required the collection of the sample (if it was not the
transport safety officer or police officer that carried out the
procedure) and deliver another part of the collected sample to
the worker.
New section 86CE enables a rail safety worker required to
provide an oral fluid sample to request that a sample of blood be
taken. This provision only applies where a rail safety worker is
required under section 86CB to provide an oral fluid sample.
The analysis must be undertaken by a registered medical
practitioner or an approved health professional nominated by
the officer. Subsection (3) provides that this section does not
provide relief to a rail safety worker in relation to a penalty under
section 77(1)(da) for refusing to provide an oral fluid sample.
New section 86CF provides for the taking of a sample of
blood from a rail safety worker for analysis if an oral fluid
sample is requested but, in the opinion of the officer, the worker
is unable to furnish the required sample of oral fluid on medical
grounds or due to physical disability or if the prescribed device
is incapable of testing for a prescribed drug for any reason.
Subsection (2) provides for a transport safety officer or police
officer to require that a rail safety worker allow a registered
medical practitioner or an approved health professional to take
a sample of blood.
62
Subsection (3) provides for a transport safety officer or police
officer to require that a rail safety worker accompany any
transport officer or police officer to a place so as to allow for a
blood sample to be taken, and for the worker to remain at that
place until the sample is taken, or until 3 hours have passed
since the worker carried out, or attempted to carry out, rail safety
work or was involved in a prescribed notifiable occurrence.
Subsection (4) provides that a rail safety worker must not be
convicted or found guilty of refusing to provide an oral fluid
sample if they allow the taking of a blood sample in substitute
of an oral fluid sample.
Subjection (5) provides that it is an offence for any rail safety
worker to hinder or obstruct a registered medical practitioner or
an approved health professional attempting to take a sample of
blood from any rail safety worker.
Subsection (6) provides that no action lies against a registered
medical practitioner or an approved health professional in respect
of anything properly and necessarily done in the course of taking
a sample of blood for the purposes of new section 86CF, where
the practitioner or health professional believed on reasonable
grounds that the sample was required to be taken.
New section 86CG(1) provides that evidence derived from a
sample of oral fluid is not rendered inadmissible by the failure
to comply with a request under section 86CE following a
requirement made by section 86CB or 86CF if reasonable
efforts were made to comply with the request.
Subsection (2) provides that various statements and certificates
are admissible in evidence and, in the absence of evidence to the
contrary, are proof of the authority of transport safety officers or
police officers for the purposes of sections 86CA and 86CB(8).
Clause 100 substitutes section 86D of the Rail Safety (Local Operations)
Act 2006 with new provisions relating to blood tests.
The section applies if a rail safety worker is required to submit to
a blood test under section 86A(1) or undergoes an assessment of
drug impairment and, in the opinion of the officer, the worker is
impaired by a drug or drugs. An officer may require that a
worker allow a registered medical practitioner or an approved
health professional to take a blood sample. A rail safety worker
may be required to accompany any officer to a place where the a
blood sample is to be taken and to remain there until the earlier of
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when the sample is taken or 3 hours after the worker last carried
out, or attempted to carry out, rail safety work or was involved in
a prescribed notifiable occurrence.
Subsection (4) provides that a sample of the worker's blood can
only be taken under subsection (2) if a blood sample has not
already been provided under section 86E.
Subsection (5) creates an offence if a person hinders or
obstructs a registered medical practitioner or an approved health
professional attempting to take a sample of blood under
section 86D. Subsection (6) provides that no action lies
against a registered medical practitioner or an approved health
professional in respect of anything properly and necessarily done
by that person in the course of taking a sample of blood and the
person reasonably believes that the sample was required from the
person.
Subsection (7) requires that, if a person is charged with an
offence under section 77(1)(b), a written report of an assessment
of drug impairment must be served with the summons or within
7 days after the filing of the charge-sheet relating to the offence.
Clause 101 repeals the requirement under section 86E(3) of the Rail Safety
(Local Operations) Act 2006 for a sample of blood to be
delivered to a person who requested the rail safety worker to
provide a breath sample for analysis.
Clause 102 repeals section 86H(3)(b) and (d) of the Rail Safety (Local
Operations) Act 2006 to follow changes to the Road Safety
Act 1986 scheme relating to the taking of blood samples which
commence on 31 January 2018. The Road Safety Act scheme
is the parent scheme for transport drug and alcohol controls and
this change is made for consistency with the road safety scheme.
These are exceptions to the requirement that a rail safety worker
who enters or is brought to a place for examination or treatment
must allow a doctor or approved health professional to take a
sample of the rail safety worker's blood.
• The exception in section 86H(3)(b) is that a transport
safety officer or police officer has notified the doctor
first responsible for the examination or treatment of the
rail safety worker, in writing, that the rail safety worker
has undergone a preliminary breath test which did not
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indicate that the prescribed concentration of alcohol was
exceeded.
• The exception in section 86H(3)(d) is that a police
officer or a doctor has notified the doctor first
responsible for the examination or treatment of the rail
safety worker, in writing, that a sample of the rail safety
worker's blood was taken by a doctor before the person
entered or was brought to the place for examination or
treatment.
Clause 103 repeals section 86I(13)(b)(iv) of the Rail Safety (Local
Operations) Act 2006 to remove a reference to an outdated
code of practice.
Clause 104 makes consequential amendments to section 86J of the Rail
Safety (Local Operations) Act 2006. The effect is that
references to a registered medical practitioner or an approved
health professional are omitted and, in section 86J(5) and
(11)(b)(ii), are replaced by a reference to the person who
carried out the procedure that provided the sample.
Clause 105 makes consequential amendments to section 86L of the Rail
Safety (Local Operations) Act 2006 to refer to new provisions
inserted by clause 99 of the Bill.
Part 3.3--Amendment of Rail Safety National Law
Application Act 2013
Clause 106 amends section 12(1)(b) of the Rail Safety National Law
Application Act 2013 to insert a reference to section 23(2)(a)(ii)
of the Subordinate Legislation Act 1994. Section 23(2)(a)(ii)
relates to the disallowance of statutory rules. The effect of the
amendment is Part 5 of the Subordinate Legislation Act 1994
applies to the national regulation as if the reference to the
publication of a statutory regulation in section 23(2)(a)(ii) of
that Act is taken to be a reference to the publication of the
national regulation under section 265(1) of the Rail Safety
National Law (Victoria).
Clause 107 makes a consequential change to section 43(3) of the Rail Safety
National Law Application Act 2013 to include references to the
new sections 86CA, 86CB and 86CF as inserted by clause 99 of
the Bill.
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Part 3.4--Amendment of Tourist and Heritage Railways Act 2010
Clause 108 substitutes a new section 6 of the Tourist and Heritage
Railways Act 2010 to provide that the Tourist and Heritage
Railway Registrar must be a person employed by the Public
Transport Development Authority under section 79BJ of the
Transport Integration Act 2010.
Part 4.1--Amendment of Transport (Safety Schemes Compliance
and Enforcement) Act 2014
Clause 109 amends section 8(1)(i) of the Transport (Safety Schemes
Compliance and Enforcement) Act 2014 relating to general
powers on entry or boarding by inserting a reference to the
legislation itself, in addition to the broader reference to relevant
transport safety or infrastructure law.
Clause 110 amends section 12(3) of the Transport (Safety Schemes
Compliance and Enforcement) Act 2014 at paragraphs (a)
and (b) relating to the powers of the Magistrates' Court to extend
the period of detention of a vessel by referring to the legislation
itself, in addition to the broader reference to relevant transport
safety or infrastructure law.
Clause 111 amends section 59(4) of the Transport (Safety Schemes
Compliance and Enforcement) Act 2014 relating to an
extension of time for compliance with improvement notices by
inserting "served" after "notice" in the definition of compliance
period.
Clause 112 inserts a note at the foot of section 60(2) of the Transport
(Safety Schemes Compliance and Enforcement) Act 2014 that
provides that a decision whether to serve a prohibition notice is a
mandatory transport safety decision in relation to section 175 of
the Transport Integration Act 2010.
Clause 113 makes a technical amendment to section 64(2) and (3) of the
Transport (Safety Schemes Compliance and Enforcement)
Act 2014 in relation to service of prohibition notices.
Clause 114 makes technical amendments to section 66(1) and (4) of the
Transport (Safety Schemes Compliance and Enforcement)
Act 2014, and to the heading of that section, in relation to matters
that give rise to immediate risks to safety requiring remedy.
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Clause 115 makes technical amendments to section 67 of the Transport
(Safety Schemes Compliance and Enforcement) Act 2014 in
relation to proceedings for offences not affected by prohibition
notices or certificates.
Clause 116 makes a technical amendment to section 68(2)(b) of the
Transport (Safety Schemes Compliance and Enforcement)
Act 2014 in relation to when the Safety Director may carry out
remedial action.
Clause 117 substitutes section 69(1) of the Transport (Safety Schemes
Compliance and Enforcement) Act 2014 in relation to the
power of the Safety Director to take other remedial action.
The amendment substitutes the entirety of section 69(1) by
limiting application of the provision to when the Safety Director
reasonably believes that circumstances exist to warrant service
of a prohibition notice, and that the Safety Director cannot find
the person in management or control of the public transport or
marine premises in relation to which the notice would be served,
having taking reasonable steps to do so.
Clause 118 makes a technical amendment to section 70(2)(b) of the
Transport (Safety Schemes Compliance and Enforcement)
Act 2014 in relation to the costs of remedial or other action.
Clause 119 makes a technical amendment to section 82(2)(a) of the
Transport (Safety Schemes Compliance and Enforcement)
Act 2014 in relation to injunctions for non-compliance with
improvement, prohibition or non-disturbance notices.
Clause 120 makes technical amendments to section 113(3)(a) and (b) of the
Transport (Safety Schemes Compliance and Enforcement)
Act 2014 in relation to the release of the giving of a safety
undertaking.
Part 4.2--Transport accident amendments
Clause 121 amends section 109(4) of the Transport Accident Act 1986
to apply the 28-day grace period for payment of the transport
accident charge to registration periods of at least 3 months.
The charge is an insurance fee that is paid by a person which
ensures that the person's vehicle is insured by the Transport
Accident Commission if it is involved in a transport accident.
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Currently, this 28-day grace period to pay the charge is only
applicable to registration periods of 6 months or more.
The charge must be paid on or before the expiry date of a
vehicle's registration, unless a person is eligible for a 28-day
grace period to pay their charge from the date of their registration
expiring. A person who is not afforded a grace period to pay
their vehicle registration will be considered to be driving an
unregistered vehicle from the date of their registration expiring.
Extending the grace period to 3-month registration will provide
consistency in Transport Accident Commission insurance cover
with what is already available for 6 and 12-month registration,
and will ensure that Victorians who opt to register their vehicles
on a quarterly basis will not be at a disadvantage.
Clause 122 inserts new Division 12 into Part 11 of the Transport
Accident Act 1986 which provides for a transitional provision
(new section 232) in relation to the amendment in clause 121.
It ensures that the amendment, which extends the 28-day grace
period for payment of the Transport Accident Charge to 3-month
registration periods, applies to all transport accidents, regardless
of when the accident occurred.
Part 4.3--Amendment of Marine (Drug, Alcohol
and Pollution Control) Act 1988
Clause 123 amends the regulation making powers in Schedule 5 to the
Marine (Drug, Alcohol and Pollution Control) Act 1988 to
omit the reference to section 31A in items 62A and 62CB of the
Schedule. The effect of this provision is to enable regulations to
be made relating to persons responsible for the safe-keeping of
blood and the delivery of portions of blood to the people from
whom they are taken and to police officers, whether the blood is
taken under section 31A of the Act or under another provision.
Part 4.4--Amendment of Port Management Act 1995
Clause 124 makes statute law revisions to the Port Management Act 1995.
Subclause (1) amends section 495(2)(a) of that Act to correct a
punctuation error.
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Subclause (2) amends section 492B(a)(i)(B), (a)(iii) and b(iii) of
that Act to replace references to the term "provider" with the
correct term "operator".
Subclause (3) amends the heading to section 492D of that Act to
insert a missing word.
Chapter 5--Repeal of amending Act
Clause 125 repeals the amending Act on 1 January 2021. The repeal of the
amending Act does not affect the continuing operation of the
amendments made by it.
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