Australian Capital Territory Bills Explanatory Statements Australian Capital Territory Bills Explanatory Statements[Index] [Search] [Download] [Bill] [Help]
2010
THE LEGISLATIVE
ASSEMBLY
FOR THE AUSTRALIAN CAPITAL
TERRITORY
ROAD TRANSPORT (GENERAL)
AMENDMENT BILL 2010
EXPLANATORY
STATEMENT
Circulated by
authority of
Jon Stanhope MLA
Minister for Transport
Overview
The Road Transport (General) Amendment Bill 2010 amends sections 44, 84 and 85 in the Road Transport (General) Act 1999. In summary, these provisions deal with the suspension of a person’s driver licence, vehicle registration or right to drive for non-payment of infringement notice penalties (section 44) or suspension of driver licence or vehicle registration, or disqualification from obtaining a licence, for non-payment of court imposed fines (sections 84 and 85).
The purpose of the amendments is to clarify the requirements for giving
notice to clients of the road transport authority about impending suspension
action or fine enforcement action, and to provide that suspension or fine
enforcement action takes effect by operation of law if payment of the
outstanding amount is not received by the relevant date.
In
Davis v Jilbert 9 July 2010 (CC 09/10917 CC 09/9584,
Magistrates Court of the Australian Capital Territory), Chief Magistrate Burns
found, among other matters, that a suspension under section 44 does not take
effect until a suspension notice is served on the person concerned. As the
specific date on which service by post is effected cannot always be predicted
with certainty (noting that the presumptions regarding the date of service by
post are rebuttable), the decision in Davis v Jilbert creates an
administrative difficulty for the road transport authority, which needs to
record in its database the date of effect of any suspension under section 44
pursuant to its function under section 6 of the Road Transport (Driver
Licensing) Act 1999 and sections 6 and 10 of the Road Transport (Vehicle
Registration) Act 1999.
Accordingly, the amendments overcome this
practical difficulty by enabling the road transport authority to nominate a
date, which cannot be earlier than 10 days after the notice is sent, on which
the suspension will occur if payment is not received. Equivalent amendments are
made to section 85 of the Act, in relation to enforcement action for court
imposed fines notified to the road transport authority under the Crimes
(Sentence Administration) Act 2005.
The amendments in the Bill also
provide for the road transport authority to send a confirmation notice to the
person concerned advising them of the type of suspension action (section 44) or
enforcement action (section 85) that was taken and when it occurred. The
confirmation notice will ensure the person knows precisely what action was taken
against them and when that action took effect.
It should be noted that
the amendments made by the Bill do not materially alter the content of notices
sent to clients nor is there any material change to the circumstances under
which suspension or enforcement action will be taken. Their purpose is to
provide greater certainty both for the road transport authority and clients
about the date on which suspensions occur and to ensure that clients are clear
about which rights are suspended and when the suspension took effect. The
amendments may have a slight beneficial effect in relation to clients who are
given section 84 notices, as these clients will now be given notice before the
suspension takes effect, unlike the existing section 84, which does not provide
for any period of notice before the suspension takes effect. Also, the
legislation does not currently require the road transport authority to send
confirmation notices, and to that extent the amendments may be seen as improving
clients’ access to information about their rights.
It is not
believed that the Bill significantly engages the human rights set out in the
Human Rights Act 2004 (the HRA). To the extent, if any, that human
rights are engaged and limited by the Bill, it is believed that such a
limitation would be justified by the “reasonable limits” exception
referred to in section 28 of the HRA, because there is no other reasonably
practicable and cost-effective way for the road transport authority to be sure
when a suspension has taken effect.
Notes on clauses
Part 1 Preliminary
Clause 1 Name of Act
This is a formal provision that provides for the name of the legislation, once enacted.
Clause 2 Commencement
This clause explains when the provisions in the Bill will commence. The Minister may commence the Bill, in whole or in part, by notice. If a provision is not commenced within 6 months it will commence automatically after that time by operation of section 79 of the Legislation Act.
Clause 3 Legislation amended
This clause explains that the Bill amends the Road Transport (General)
Act 1999 and the Road Transport (General) Regulation
2000.
Part 2 Road Transport (General) Act
1999
Clause 4 Suspension for nonpayment of infringement notice
penalties
Section 44 (2)
This clause omits section 44
(2) and inserts new sections 44 (2), (2A) and (2B). New section 44 (2) (a)
provides that the road transport authority must send the person a suspension
notice containing the information required by new subsection (2A). Paragraph 44
(2) (b) provides that if the person does not pay the outstanding infringement
notice penalty before the date specified in the notice (this date will be the
suspension date), the road transport authority must take suspension action
against the person on that date.
New section 44 (2A) sets out the
matters to be included in a suspension notice. These matters include details of
the relevant infringement notice and reminder notice to which the suspension
notice relates; that the road transport authority will take suspension action
under section 44 (3), (4) or (5) if the infringement notice penalty is not paid
by the suspension date; any information prescribed by the regulations; and any
information that the road transport authority considers appropriate.
Suspension action is action of a type mentioned in
existing sections 44 (3), (4) or (5) of the Act. As there is a period of at
least 10 days between the printing of the notice and the suspension date, it is
not possible to know with certainty which type of suspension action will be
taken by the road transport authority on the suspension date, because it is
possible that the rights held by person may alter during the intervening period.
For example, the person’s licence may expire, the person may move
interstate, or be disqualified from driving by the Courts; the vehicle’s
registration may expire, the vehicle may be sold or the vehicle may be
written-off in an accident.
Accordingly, the suspension notice cannot
specify the particular type of suspension action that will be taken on the
suspension date; it can only advise the person that suspension action generally
will be taken if payment is not forthcoming. For ACT residents, in the majority
of instances the person will be the holder of a driver licence and that right
will be affected by the suspension action. It should be noted that the person
will be sent a confirmation notice advising them of the suspension action that
was taken. It is also the practice of the road transport authority to include
in the suspension notice a telephone number that the person can call to check
the person’s driver licence, vehicle registration or right to drive status
- the person does not need to wait until the confirmation notice arrives if he
or she is uncertain about which rights have been suspended.
New section
44 (2B) provides that the suspension date specified in the suspension notice
must not be earlier than 10 days after the day the notice is sent to the person
(the Road Transport (General) Regulation 2000 contains provisions for
determining when a notice or other document under the road transport legislation
is presumed to have been sent by pre-paid post: see section 9B). This notice
period gives the person a further opportunity to pay the outstanding penalty to
avoid suspension action being taken.
Clause 5 Section 44 (7) and
(8)
This clause substitutes replacement sections 44 (7) and (8).
Replacement section 44 (7) provides that a suspension under section 44 takes
effect on the suspension date. Replacement section 44 (8) requires the road
transport authority to send the person a suspension confirmation notice,
advising the person of the suspension action that was taken and when it was
taken. The existing section 44 does not require a confirmation notice to be
sent, but as explained previously, the road transport authority has adopted the
practice of sending letters to advise clients of the type of suspension action
that was taken and when the suspension came into effect, including information
about how a suspension may be lifted by paying the outstanding
amount.
Clause 6 New section 84A
This clause inserts new
section 84A before section 84. This new section contains a definition of the
term revocation notice, which is used in several provisions in
part 6 of the Act. At present, this term is defined in section 86 (1). It is
consistent with current drafting conventions to relocate the definition to the
beginning of the part.
The opportunity has also been taken to correct
incorrect references within the definition to the Crimes (Sentence
Administration) Act 2005. At present, section 86 (1) of the Act contains
references to section 116N (2) and (3) of the Crimes (Sentence
Administration) Act 2005, which deals with notices to credit reporting
agencies. These references were included by the Crimes (Sentence
Administration) Amendment Act 2010.
The correct references are to
section 116M(2) of the Crimes (Sentence Administration) Act 2005. That
provision states:
“(2) The chief executive must give the road
transport authority written notice if—
(a) the outstanding fine
is paid; or
(b) the chief executive approves an arrangement under
section 116K for payment of the outstanding fine; or
(c) the
outstanding fine is remitted under section 116ZO (Remission of fine by chief
executive) or section 313 (Remission of penalties); or
(d) the
outstanding fine is discharged because the fine defaulter has completed a
voluntary community work order under division 6A.3.7 or served a period of
imprisonment under an order under division 6A.3.8; or
(e) the
conviction or order that gave rise to the liability to pay the fine is quashed
or set aside.”
Clause 7 Suspension of driver licence,
registration etc
Section 84
This clause replaces section
84, which deals with the suspension of driver licences, vehicle registration etc
for persons in default of court imposed fines, with a new provision that more
closely parallels the process in section 44 of the Act, while retaining the main
elements of the existing section 84.
Proposed section 84 (1) provides
that section 84 applies if the court notifies the road transport authority under
section 116M (1) of the Crimes (Sentence Administration) Act 2005 about a
fine defaulter.
Proposed section 84 (2) provides that the road
transport authority must send the person a fine enforcement notice, and that the
authority must take fine enforcement action if the person does not pay the fine
by the enforcement date mentioned in the fine enforcement notice.
Proposed section 84 (3) details the matters to be included in the fine
enforcement notice, and proposed section 84 (4) provides that the fine
enforcement date cannot be earlier than 10 days after the notice is sent to the
person. These provisions are substantially similar to proposed sections 44 (2A)
and (2B), discussed previously. The purpose of these provisions is to ensure
that the person is given proper notice about the enforcement action before it
occurs, including a further opportunity to pay the fine and avoid the
consequences outlined in the enforcement notice (noting that by the time the
road transport authority has been notified of the fine by the court under
section 116M of the Crimes (Sentence Administration) Act 2005, the fine
defaulter would already have been afforded several opportunities to pay the
fine).
Proposed new section 84 (5) replicates the content of existing
paragraphs 84 (a) to (c), and lists the types of fine enforcement action that
may be taken in respect of a fine defaulter. The first option is to suspend the
person’s driver licence; if the person does not hold a driver licence, the
road transport authority is required to take enforcement action in respect of
any vehicle registrations for which the person is the sole operator. If the
person is not the sole registered operator of a motor vehicle, then the road
transport authority must disqualify the person from obtaining a driver
licence.
Clause 8 Section 85 heading
This is a formal
provision to amend the heading to section 85 so that it better reflects the
content of that section, as amended by clause 8 of the Bill.
Clause
9 Section 85 (1)
This clause omits section 85 (1) and replaces it
with new sections 85 (1) and (1A).
New section 85 (1) provides that the
enforcement action takes effect on the enforcement date specified in the notice,
while section 85 (1A) requires the road transport authority to give the person
concerned a confirmation notice about the fine enforcement action. These
provisions are equivalent to new sections 44 (7) and (8) for suspension action
in relation to unpaid infringement notice penalties, discussed
previously.
Clause 10 Revocation of suspension of driver licence,
registration etc
Section 86 (1)
This clause omits section
86 (1) the Act. This amendment is consequential to the insertion of new section
84A by clause 6.
Clause 11 Dictionary, definition of revocation
notice
This clause is a consequential amendment related to clause
6, and explains that the definition of the term revocation notice is found in
section 84A.
Part 3 Amendments to Road Transport (General)
Regulation 2000
This part contains consequential amendments to
sections 9 and 9A of the Regulation, which deal with notices of suspension.
Clause 12 Section 9
This clause inserts replacement
section 9, setting out matters relating to the form and content of suspension
notices for section 44 of the Act. This amendment is consequential on the
inclusion of requirements about the form and contents of suspension notices in
section 44 by the amendments in this Bill. The matters listed in section 9 are
additional to the matters listed in amended section 44 and any matters
considered appropriate by the road transport authority.
Clause
13 Section 9A
This clause inserts replacement section 9A, setting out
matters relating to the form and content of suspension notices for section 84 of
the Act. Former section 9A referred to notices under section 85, but the
obligation to send a notice now arises under section 84. The amendments are
consequential on the listing of requirements about the form and contents of fine
enforcement notices in section 84 as a result of the amendments in this Bill.
The matters listed in section 9A are additional to the matters listed in section
84 as amended by the Bill and any matters considered appropriate by the road
transport authority.