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Transport and Other Legislation Amendment Bill (No. 2) 2010
Transport and Other Legislation
Amendment Bill (No. 2) 2010
Explanatory Notes
General Outline
The Bill amends 25 Acts and 12 Regulations:
· Adult Proof of Age Card Act 2008;
· Anti-Discrimination Act 1991;
· Coastal Protection and Management Act 1995;
· Coastal Protection and Management Regulation 2003;
· Criminal Code;
· Electrical Safety Act 2002;
· Electrical Safety Regulation 2002;
· Electricity Act 1994;
· Environmental Protection Regulation 2008;
· Explosives Regulation 2003;
· Judicial Review Act 1991;
· Land Act 1994;
· Maritime Safety Queensland Act 2002;
· Mineral Resources Act 1989;
· Nature Conservation (Wildlife Management) Regulation 2006;
· Right to Information Act 2009;
· South Bank Corporation Act 1989;
· Sustainable Planning Act 2009
· Transport Infrastructure Act 1994;
· Transport Legislation Amendment Act 2007;
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Transport and Other Legislation Amendment Bill (No. 2) 2010
· Transport Infrastructure (Ports) Regulation 2005;
· Transport Infrastructure (Rail) Regulation 2006;
· Transport (New Queensland Driver Licensing) Amendment Act
2008;
· Transport Operations (Marine Pollution) Act 1995;
· Transport Operations (Marine Pollution) Regulation 2008;
· Transport Operations (Marine Safety) Act 1994;
· Transport Operations (Marine Safety) Regulation 2004;
· Transport Operations (Passenger Transport) Act 1994;
· Transport Operations (Passenger Transport) Regulation 2005;
· Transport Operations (Road Use Management) Act 1995;
· Transport Operations (TransLink Transit Authority) Act 2008;
· Transport Planning and Coordination Act 1994;
· Transport Planning and Coordination Regulation 2005;
· Transport Security (Counter-Terrorism) Act 2008;
· Transport (South Bank Corporation Area Land) Act 1999;
· Urban Land Development Authority Act 2007; and
· Workplace Health and Safety Regulation 2008.
The emergency contact information provisions in the Adult Proof of Age
Card Act 2008 and the Transport (New Queensland Driver Licensing)
Amendment Act 2008 will be relocated to the Transport Planning and
Coordination Act 1994.
The Maritime Safety Queensland Act 2002 will:
· incorporate functions of chapter 15 of the Transport Infrastructure Act
1994 and the Transport Infrastructure (Public Marine Facilities)
Regulation 2000 into the Maritime Safety Queensland Act 2002, to
extend Maritime Safety Queensland's powers to manage public
marine facilities and waterways;
· preserve the leave and service entitlements for existing public service
officers who are subsequently appointed on contracts;
· provide a right of reversion to the public service for these officers; and
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Transport and Other Legislation Amendment Bill (No. 2) 2010
· remove a reference to the Marine Board.
The Transport Infrastructure Act 1994 will be amended to:
· simplify vehicular property access (which typically relates to
driveway access to state controlled roads) applications;
· clarify the appeal and enforcement provisions that apply to approvals
for property access (driveways) to state controlled roads issued under
the Transport Infrastructure Act 1994 and the Sustainable Planning
Act 2009;
· clarify the Department of Transport and Main Roads' jurisdiction with
regard to mitigating the environmental impacts on development where
these impacts are generated by state controlled roads. This will be
consistent with rail, port and public passenger transport infrastructure;
· change the definition of railway transport infrastructure to explicitly
include railway station vehicle parking and passenger set-down
facilities;
· enable the chief executive to register a notice against a property title to
provide notification that certain activities on the land may impact on
transport infrastructure;
· enable the chief executive to require activity on land to stop, alter or
not start, where the activity may adversely impact on the safety or
operational integrity of transport infrastructure or the public transport
network;
· ensure the Department of Transport and Main Roads has statutory
authority to manage public utility plant on all state land where busway
and light rail transport infrastructure is located or will be located;
· expand the categories of land that the Minister for Main Roads may
declare to be state toll road corridor land;
· appropriately provide for interests that are affected by the declaration;
and
· ensure the transition from existing leases to new leases is seamless for
both state toll road corridor land and local government tollway
corridor land.
The Transport Infrastructure Act 1994 will be amended to provide a clearly
defined framework to engage an Operator Franchise Public Private
Partnership for Stage 1 of the Gold Coast Rapid Transit (GCRT) project.
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Transport and Other Legislation Amendment Bill (No. 2) 2010
The Transport Planning and Coordination Act 1994 will be amended to:
· include emergency contact information provisions being moved from
the Adult Proof of Age Card Act 2008 and the Transport (New
Queensland Driver Licensing) Amendment Act 2008;
· clarify the definition of transport associated development;
· ensure the legitimacy of prescribed transit node declarations;
· clarify that any change in the value of land resulting from a prescribed
transit node declaration is not included in the compensation payable
as a result of the compulsory acquisition of land; and
· provide that when land, which is resumed for the development of
transport infrastructure, is offered back to the former owner, the
constructing authority may require an interest in the land.
The Transport Operations (Marine Safety) Act 1994 will:
· allow a shipping inspector to issue a direction for a ship to be taken to
a safe place for non-compliance with safety equipment obligation;
· remove requirements for marine safety standards to be reviewed
within seven years of making and allow minor amendments to
standards to be made without required procedures; and
· remove references to the Marine Board.
The Transport Operations (Marine Pollution) Act 1995 will be amended as
a result of the Pacific Adventurer incident to provide for the greater
protection of Queensland's marine and coastal environment. The Bill will
provide for:
· greater penalties for the discharging of oil, oil residues, noxious liquid
and jettisoning of harmful substances (such as containerised cargo)
into Queensland coastal waters;
· authorised officers to act when a pollution risk is identified to ensure a
pollutant is not discharged into coastal waters and also that
appropriate action is taken to rectify the issue before a ship is allowed
to operate again;
· the amendment of provisions dealing with self-incrimination for
corporations to improve access to corporate information for
investigations into marine pollution incidents in order to improve
compliance; and
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Transport and Other Legislation Amendment Bill (No. 2) 2010
· a Letter of Undertaking to be a legally binding form of security.
The Transport Operations (Marine Pollution) Act 1995 will also be
amended to ensure all fixed toilets onboard `declared ships' operating in
`nil discharge waters' are connected to a holding device fitted to the ship.
The Transport Operations (Passenger Transport) Act 1994 will be
amended to:
· require the Department of Transport and Main Roads to report
funding details of service contracts relating to areas outside the
TransLink area;
· provide a definition of tourist service;
· remove the requirement for the standard to be reviewed within seven
years of making and allow minor amendments to a standard to be
made without required procedures; and
· make the record keeping requirements for limousine bookings the
same as the current requirements for special purpose limousine
bookings by amending the Transport Legislation Amendment Act
2007.
The Transport Operations (TransLink Transit Authority) Act 2008 will be
amended to:
· ensure that the Financial Accountability Act 2009 imposes appropriate
annual reporting requirements on TransLink including a modified
timeline for submitting TransLink's annual report, and reporting
funding details of service contracts relating to the TransLink area, in
the TransLink annual report.
The Transport Operations (Road Use Management) 1995 will be amended
to adopt enforcement measures and court order provisions from national
scheme legislation for heavy vehicles approved by the Australian Transport
Council.
The Office of the Queensland Parliamentary Counsel has included some
minor administrative amendments in the Schedule to this Bill. These
amendments are to the Transport Operations (Road Use Management) Act
1995, the Transport (New Queensland Driver Licensing) Amendment Act
2008, the Transport Operations (Passenger Transport) Act 1994 and the
Transport Security (Counter-Terrorism) Act 2008.
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Transport and Other Legislation Amendment Bill (No. 2) 2010
Short Title
The short title of the Bill is the Transport and Other Legislation
Amendment Bill (No. 2) 2010.
Policy Objectives of the Legislation
Port and Rail Amendments
The policy objectives of this Bill are:
· to facilitate the restructure and divestment of the businesses of QR
Limited and Port of Brisbane Corporation Limited (POBC);
· to implement transitional arrangements to ensure a smooth transition
during the restructure and divestment of the businesses of QR Limited
and POBC; and
· to make consequential amendments to the Transport Infrastructure
Act 1994 and other legislation which arise from the proposed
restructure and divestment of the businesses of QR Limited and
POBC and ensure that the appropriate entity is subject to the
applicable legislative framework.
Gold Coast Rapid Transit
The amendments to the Transport Infrastructure Act will:
· enable the State to engage an Operator Franchise Public Private
Partnership (PPP) to design, construct, operate and manage Stage 1 of
the GCRT project;
· provide land tenure and access arrangements that establish certainty
and clarity for the State and an Operator Franchise PPP; and
· provide an interface management regime that supports the efficient
and effective operation of light rail and nearby infrastructure.
The amendments to the Transport Infrastructure Act 1994 will:
· simplify vehicular property access applications by eliminating the
overlap of approvals as both road works and road access works under
section 33 (Prohibition on road works etc on state-controlled roads)
and section 50 (Ancillary work and encroachments);
· clarify the enforcement and appeal provisions for vehicular property
access on state-controlled roads where an application is subject to the
Transport Infrastructure Act 1994 as well as the development
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Transport and Other Legislation Amendment Bill (No. 2) 2010
approval process under the Sustainable Planning Act 2009, to provide
that the Transport Infrastructure Act 1994 will only apply to approvals
that are made and assessed under that Act, and not to approvals made
and assessed under the Sustainable Planning Act 2009;
· clarify the Department of Transport Main Road's jurisdiction with
regard to mitigating the environmental impacts on development where
these impacts are generated by state controlled roads. This will be
consistent with rail, port and public passenger transport infrastructure;
· change the Schedule 6 definition of rail transport infrastructure to
explicitly include railway station vehicle parking, passenger set down
facilities and pedestrian paving in order to provide consistency with
the definitions of busway transport infrastructure and light rail
transport infrastructure;
· ensure that the Department of Transport and Main Roads has the
statutory authority to manage public utility plant on land where
busway and light rail transport infrastructure is located or will be
located;
· enable the chief executive to require activities to stop that will
adversely impact on the safety and operational integrity of transport
infrastructure or network in order to protect transport infrastructure
which may be threatened by works or activities conducted on nearby
land; and
· enable the chief executive to register a notice against the title of a
property in order to notify land owners and potential purchasers of
their proximity to and obligations towards nearby transport
infrastructure, ensuring that the infrastructure is given a zone of
protection from certain construction works or activities.
The amendments to the Transport Planning and Coordination Act 1994
will:
· clarify the definition of Transport Associated Development in order to
eliminate conflict in the Act between the interpretation of the
definition of transport associated development and the objectives of
the Act;
· provide that the legitimacy of a prescribed transit node declaration is
not impacted by minor design refinements;
· provide that when land which has been compulsorily acquired
under the Acquisition of Land Act 1967 for the development of
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Transport and Other Legislation Amendment Bill (No. 2) 2010
transport infrastructure that the department may require an
interest in the land in order to protect the infrastructure before the
land is offered back to the former owner pursuant to that Act
(section 41 (Disposal of Land)), the department may require an
interest in the land in order to protect the infrastructure; and
· clarify that compensation payable to a landowner as a result of
the compulsory acquisition of land does not consider any
changes in the value of the land resulting from the declaration of
a prescribed transit node.
Adult Proof of Age Card and New Queensland Driver Licensing
The emergency contact information provisions (which are yet to be
commenced) in the Adult Proof of Age Card Act 2008 and the Transport
(New Queensland Driver Licensing) Amendment Act 2008 will be relocated
to the Transport Planning and Coordination Act 1994.
Maritime
Maritime Safety Queensland Act 2002
Rights and entitlements of public service officers
The amendment will ensure that all public service officers who are
subsequently appointed under section 12 of the Maritime Safety
Queensland Act 2002 will maintain continuity of service and accrued leave
entitlements. This will be the case regardless of whether the public service
officers were previously employed on section 122 contracts under the
Public Service Act 2008.
Only those public service officers employed on tenure who are
subsequently appointed under section 12 of the Maritime Safety
Queensland Act 2002 will have right of reversion. The right of reversion
does not to apply to marine pilots who are employed under section 12 of
the Maritime Safety Queensland Act 2002.
Transfer of Functions
Section 8 of the Maritime Safety Queensland Act 2002 outlines particular
functions and powers of Maritime Safety Queensland. Responsibilities
under chapter 15 of the Transport Infrastructure Act 1994 and the
Transport Infrastructure (Public Marine Facilities) Regulation 2000 were
previously managed by the Department of Transport and Main Roads
through its Passenger Transport division. Departmental restructuring has
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Transport and Other Legislation Amendment Bill (No. 2) 2010
resulted in functions and responsibilities under the Transport Infrastructure
Act 1994 and the Transport Infrastructure (Public Marine Facilities)
Regulation 2000 being transferred to Maritime Safety Queensland.
Section 8 of the Maritime Safety Queensland Act 2002 does not empower
Maritime Safety Queensland to exercise the specific powers under the
Transport Infrastructure Act 1994. The Bill expressly incorporates the
functions set out in chapter 15 of the Transport Infrastructure Act 1994
following the transfer of responsibilities from the Passenger Transport
division to Maritime Safety Queensland.
This will enable Maritime Safety Queensland to undertake responsibilities
under chapter 15 of the Transport Infrastructure Act 1994.
Remove references to the Marine Board
Remove reference to the Marine Board (refer to heading under the
Transport Operations (Marine Safety) Act 1994.
Transport Operations (Marine Safety) Act 1994
Remove references to the Marine Board
The Marine Board was established by amendments to the Transport
Operations (Marine Safety) Act 1994.
In 2008, the Government commissioned an independent review of all
Queensland government boards, committees and statutory authorities
headed by Ms Simone Webbe and Professor Patrick Weller. The report
"Brokering Balance: A Public Interest Map for Queensland Government
Bodies - An Independent Review of Queensland Government Boards,
Committees and Statutory Authorities" (the report) was publicly released
on 31 March 2009.
The report recommended that the Marine Board be abolished. In the
government response to the report, the recommendation was supported and
in December 2008 the Marine Board was abolished and has not met since.
The tenure of the most recent members of the Marine Board expired in
December 2008 and was not renewed. All matters relating to the Marine
Board were completed in December 2008. No transitional provisions are
required.
The Bill removes all references to the Marine Board.
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Transport and Other Legislation Amendment Bill (No. 2) 2010
Shipping Inspectors
The amendment will ensure that vessels that are not appropriately equipped
with safety equipment can be directed to a place of safety, and will ensure
that the vessel and its occupants are not able to remain in an unsafe
situation after a marine infringement notice has been issued for failure to
be equipped with the necessary safety equipment.
The amendment will enhance maritime safety by reducing the exposure of
people and property to risk of incident or accident at sea. Maritime Safety
Queensland liaises regularly with maritime safety officers about breach and
enforcement trends and issues, and will ensure the power is exercised
consistently and only when justified.
Transport Operations (Marine Pollution) Act 1995
Pacific Adventurer incident
On Wednesday 11 March 2009, the general cargo ship Pacific Adventurer
lost 31 containers overboard, each containing 19.5 tonnes of ammonium
nitrate, east of Cape Moreton. The lost containers ruptured the ship's fuel
tanks, causing approximately 270 tonnes of heavy fuel oil to spill from the
ship.
The oil subsequently washed ashore on the southern Queensland coastline.
Approximately 56 kilometres of beaches were impacted by oil, from the
southern sections of Moreton Island to the northern beaches of the
Sunshine Coast.
On 12 March 2009, the declaration of a disaster situation for the oil spill
was made under the provisions of the Disaster Management Act 2003, by
the Honourable the Minister for Emergency Services in conjunction with
the Honourable the Premier of Queensland. This declaration provided
logistics support and resources that were over-and-above normal State and
Commonwealth oil spill response capabilities.
The clean-up involved approximately 2,500 people from over 22 agencies
including Federal, State and local Government agencies as well as state
emergency service volunteers and private contractors.
This spill was one of the largest ship-sourced pollution incidents in
Australia. Given the magnitude and complexity of this oil spill, particular
attention is being paid to reviewing the effectiveness of the clean-up
response and Australia's and Queensland's capacity to respond to similar
incidents in the future. A number of processes and reports are feeding into
this comprehensive review.
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Transport and Other Legislation Amendment Bill (No. 2) 2010
Penalties
The Transport Operations (Marine Pollution) Act 1995 establishes a
regime where the onus is on the ship owner or master to prevent pollution.
Even accidental discharges attract criminal sanctions, except in
circumstances where the discharge occurred because of damage to the ship.
It is fundamental to the operation of this regime that the penalties
associated with the discharge offences are sufficiently severe to prevent
discharges of pollution.
The Transport Operations (Marine Pollution) Act 1995 prohibits the
discharging of oil, oil residues, noxious liquid, jettisoning of harmful
substances and disposing of garbage and sewage.
The current maximum penalty for the discharging of oil, noxious liquid,
jettisoning of harmful substances or disposing of garbage is $350,000 for
an individual and $1,750,000 for a body corporate.
The Transport Operations (Marine Pollution) Act 1995 will be amended to
ensure that Queensland's marine and coastal protection regime has the
highest rate of penalty.
For the discharging of oil, oil residues, noxious liquid or the jettisoning of
harmful substances (such as containerised cargo) into Queensland coastal
waters, the Transport Operations (Marine Pollution) Act 1995 will be
amended to increase penalties to a maximum of $500,000 for an individual
and for a body corporate to $10,000,000.
Corporation Privilege
The Bill amends the Transport Operations (Marine Pollution) Act 1995 to
require corporations to produce information relevant to a marine pollution
incident. Specifically, the Act will be amended to provide that it is not a
reasonable excuse for a corporation to fail to give information, even if
giving the information might tend to incriminate the corporation.
In the interests of protecting the rights and liberties of individuals involved,
the Bill also provides that information obtained through this power will
only be used in an action against a corporation and not an individual. That
is to say, any information provided by a corporation upon request in
relation to a marine pollution incident, cannot be used as evidence to
prosecute an individual, thereby preserving the rights and liberties of
individuals with respect to self-incrimination.
Compelling a corporation to provide information relevant to a marine
pollution incident will also improve Maritime Safety Queensland's ability
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Transport and Other Legislation Amendment Bill (No. 2) 2010
to investigate the causes of incidents under the Transport Operations
(Marine Pollution) Act 1995 with the goal of improving compliance.
Authorised officers
This amendment extends the powers of authorised officers to be able to
direct ships, with defects (or other instances of non-compliance with
relevant legislative requirements) that would, or would be likely to, pollute
coastal waters, not to operate, until the cause of the problem is rectified and
the ship is assessed as no longer presenting a pollution risk.
Currently, an authorised officer has the power to detain a ship (in an
emergency situation only) if the officer believes a discharge offence has
already occurred. The current amendment will allow the officer to prevent
the operation of a ship before a pollution incident occurs. The amendment
will enhance Maritime Safety Queensland's ability to protect the marine
and coastal environment by minimising deliberate and negligent discharges
of ship-sourced pollutants into Queensland coastal waters.
Letter of Undertaking
Currently, the chief executive must release a ship detained under the
Transport Operations (Marine Pollution) Act 1995 if a security is given for
payment of liability and expenses. The securities currently listed in the Act
are a bank guarantee, a bond or an insurance policy.
A Letter of Undertaking is regarded in the insurance industry as being a
legally binding guarantee for the release of a detained ship. This
arrangement is consistent with recognised international practice, and was
given judicial approval by the High Court of Australia in Freshpac
Machinery Pty Limited v The Ship `Joana Bonita'.
The Bill will align the forms of security allowed for under the Transport
Operations (Marine Pollution) Act 1995 with industry and international
practice and clarify that a Letter of Undertaking is an acceptable form of
security.
Fixed Toilets
The amendment will require the owner or master of a declared ship
operating in prescribed nil discharge waters for treated or untreated
sewage, to have all fixed toilets onboard correctly plumbed into a sewage
holding device (as mandatorily fitted) onboard the vessel. The amendment
will require that such connections are unable to be by-passed.
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Transport and Other Legislation Amendment Bill (No. 2) 2010
Passenger Transport
The changes to the Transport Operations (Passenger Transport) Act 1994
will:
· allow industry to keep records in a more flexible manner;
· ensure the Act is up to date and continues to reflect policy intent; and
· ensure that annual reporting is accurate and transparent.
The changes to the Transport Operations (TransLink Transit Authority) Act
2008 will ensure annual reporting is accurate, thorough, transparent and
timely.
Road Safety
The enforcement measures and court based orders which are currently in
Queensland legislation allow an offender to be punished for behaviour
which breaches heavy vehicle operating requirements. To supplement these
measures and orders and to allow enforcement officers to work proactively
with heavy vehicle operators it is now proposed to adopt further provisions
from national model legislation.
The adoption of these provisions will provide a means of addressing
dangerous behaviours through, for example, the imposition of conditions
on heavy vehicle operators which must be complied with to avoid the
commission of an offence. These provisions will complement the
provisions which currently allow for the imposition of penalties for
non-compliant behaviour.
Declaration of State toll road corridor land and local government
tollway corridor land
The amendments to the State toll road corridor provisions of the Transport
Infrastructure Act 1994:
· extend the categories of land that are eligible to be declared by the
Minister to be State toll road corridor land;
· streamline administrative processes for the creation of the relevant
leases of land declared by the Minister to be State toll road corridor
land; and
· appropriately deal with interests that may be affected by any such
declaration made by the Minister.
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Transport and Other Legislation Amendment Bill (No. 2) 2010
For consistency, similar amendments are being made to the local
government tollway corridor provisions in the Transport Infrastructure Act
1994.
Counter Terrorism
The amendment to the Transport Security (Counter-Terrorism) Act 2008
ensures users are directed to the correct reference in the `Australian
Emergency Manuals Series' to test their risk management plan. The
incorrect reference occurred due to the omission of a number in the text.
Reasons for the Bill
Port and Rail Amendments
The restructure of QR Limited will entail the establishment of two new
entities, namely QR National Limited (QR National) and Queensland Rail
Limited (Queensland Rail). QR National will be the listed holding
company of the current QR Limited group, which will operate QR
Limited's above rail coal and freight business and below rail coal network.
Queensland Rail will be created by converting the QR Limited subsidiary
that currently operates the above rail passenger business (QR Passenger Pty
Ltd) into a government owned corporation (GOC) and transferring it out of
the QR National group so that it remains in government ownership. This
entity will operate QR Limited's above and below rail passenger and below
rail regional freight businesses. The Bill makes amendments to ensure that
these new entities are appropriately regulated under the existing legislative
framework (including the Transport Infrastructure Act 1994) applicable to
the rail industry.
The Port of Brisbane will be leased for 99 years by a government owned
entity (port lessor) to a private sector entity (port lessee). Currently, port
authorities manage and operate their respective ports subject to a tailored
legislative framework under the Transport Infrastructure Act 1994 and
other legislation. This Bill amends the existing legislative framework in
relation to port charges, control powers, planning, land dealings, rates, land
tax, trade waste and water and sewerage services and puts in place a
tailored framework for the Port of Brisbane under management and
operation of a private sector entity. The Bill ensures that there is a balanced
legislative and regulatory framework applicable to the port industry.
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Transport and Other Legislation Amendment Bill (No. 2) 2010
Gold Coast Rapid Transit
Queensland is in the middle of a sustained period of population growth.
This growth is most pronounced in South East Queensland where, over the
25 years to 2004, the residential population has increased from around 1.5
million to more than 2.5 million. The South East Queensland Regional
Plan 2009-31 predicts growth will continue and anticipates a regional
population of 4.4 million by 2031. This growth is placing increasing
demands on South East Queensland's road and public passenger transport
networks.
The delivery of efficient and effective public passenger transport is
fundamental to the development of an integrated transport system with the
capacity to support South East Queensland's growing transport task.
Amendments in this Bill will ensure that there is a clearly defined
framework to engage the Operator Franchise Public Private Partnership for
Stage 1 of the GCRT project, enabling the Queensland Government to
deliver a light rail public transport system that represents a key element of
its plan to address growth on the Gold Coast.
Other amendments to the Transport Infrastructure Act 1994 and the
Transport Planning and Coordination Act 1994 are necessary to ensure the
safety and operational integrity of Queensland's transport infrastructure
and the public transport network.
Adult Proof of Age Card and New Queensland Driver Licensing
The emergency contact information provisions in the Adult Proof of Age
Card Act 2008 and the Transport (New Queensland Driver Licensing)
Amendment Act 2008 will be relocated to the Transport Planning and
Coordination Act 1994.
Because the Transport Planning and Coordination Act 1994 is an umbrella
Act for transport legislation, the provision providing for the storing of
emergency contact information will now only appear once in the statute
book, whereas it would have appeared in three separate Acts. The
amendment is administrative in nature and will provide for more efficient
and streamlined legislation.
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Transport and Other Legislation Amendment Bill (No. 2) 2010
Maritime
Maritime Safety Queensland Act 2002
Rights and entitlements of public service officers
The amendment will address the following ongoing problems:
· Loss of maritime knowledge, skill and experience within Maritime
Safety Queensland;
· Difficulties in attracting suitably qualified people to marine specialist
roles in Maritime Safety Queensland; and
· Barriers to marine specialist career opportunities within the public
service.
Transfer of Functions
The recent departmental restructure transferred the functions and
responsibilities for the management of public marine facilities and
waterways to Maritime Safety Queensland from Passenger Transport
Division.
The proposed amendments are administrative in nature and empower
Maritime Safety Queensland to exercise specific powers relating to the
management of public marine facilities and waterways as set out in the
Transport Infrastructure Act 1994 and the Transport Infrastructure (Public
Marine Facilities) Regulation 2000.
Remove references to the Marine Board
Remove reference to the Marine Board (refer to heading under the
Transport Operations (Marine Safety) Act 1994)
Transport Operations (Marine Safety) Act 1994
Remove references to the Marine Board
The amendments contained in this Bill will remove these references as the
Marine Board no longer exists.
Shipping Inspectors
The amendment serves to address the current situation where a marine
infringement notice may be issued to a vessel master for the offence of
failing to carry the prescribed safety equipment but the shipping inspector
has no legislative authority to remove the vessel from harm's way. An
example is a vessel that is intercepted in offshore waters, does not carry an
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Transport and Other Legislation Amendment Bill (No. 2) 2010
Emergency Position Indicating Radio Beacon (EPIRB), receives a fine for
the offence but is unable to be lawfully directed back to the safety of
sheltered waters where an EPIRB is not required.
The amendment will broaden the existing powers of shipping inspectors at
sections 171, 172 and 172A that provide for the issuing of directions for
vessel inspections and breaches of registration and licence requirements to
include a direction that deals specifically with contraventions of safety
equipment requirements.
Transport Operations (Marine Pollution) Act 1995
Pacific Adventurer incident
As a result of the Pacific Adventurer incident the Transport Operations
(Marine Pollution Act) 1995 is to be amended to provide for the greater
protection of Queensland's marine and coastal environment.
The Bill provides for:
· greater penalties for the discharging of oil, oil residues, noxious liquid
and jettisoning of harmful substances (such as containerised cargo)
into Queensland coastal waters;
· authorised officers to act when a pollution risk is identified to ensure
that a pollutant is not discharged into coastal waters and also that
appropriate action is taken to rectify the issue before a ship is allowed
to operate again;
· the amendment of provisions dealing with self incrimination for
corporations to improve access to corporate information for
investigations into the causes of incidents under the Transport
Operations (Marine Pollution Act) 1995 so as to improve compliance;
· clarification that under Queensland legislation, in accordance with
international law and custom, a Letter of Undertaking is a legally
binding form of security.
Fixed Toilets
Currently section 49 of the Transport Operations (Marine Pollution) Act
1995 requires that `declared ships' (operating in prescribed nil discharge
waters for the discharge of treated or untreated sewage from a declared
ship) must be fitted with an onboard sewage holding device. There is no
provision stating that a fixed toilet (or toilets) fitted onboard such a
`declared ship' must be correctly plumbed into the sewage holding device
(or devices).
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Transport and Other Legislation Amendment Bill (No. 2) 2010
This amendment will clarify that all such fixed toilets onboard `declared
ships' must be connected to an onboard sewage holding device, and that
such connections are unable to be by-passed, thereby preventing a pollution
risk to Queensland coastal waters.
Passenger Transport
The amendments will address a number of specific matters including:
· a change to annual reporting of the funding details of service contracts
to boost transparency;
· the Transport Operations (Passenger Transport) Regulation 2005
definition for a tourist service needs to be reintroduced into the
Transport Operations (Passenger Transport) Act 1994 to provide a
meaning to the tourist service term in the definition of a special
purpose limousine service licence;
· remove the requirement for the standard to be reviewed within seven
years of making and allow minor amendments to a standard to be
made without required procedures; and
· make the record keeping requirements for limousine bookings the
same as the current requirements for special purpose limousine
bookings by amending the Transport Legislation Amendment Act
2007 (Act No. 43 of 2007).
TransLink
The amendments will ensure TransLink can submit its annual report in
accordance with accepted standards. The requirement to include funding
details relating to service contracts in the annual report will boost
transparency.
Road Safety
The National Transport Commission (Road Transport
Legislation--Compliance and Enforcement Bill) Regulations 2006 is
national model legislation which was developed by the National Transport
Commission and approved by the Australian Transport Council. The model
legislation was designed to achieve national uniformity and improve
compliance with, and enforcement of, heavy vehicle operating
requirements. A heavy vehicle is a vehicle with a gross vehicle mass
exceeding 4.5 tonnes.
Queensland adopted the majority of the investigatory and enforcement
provisions from the national legislation in April 2008. It is now proposed to
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Transport and Other Legislation Amendment Bill (No. 2) 2010
adopt two additional measures and two additional court sanctions from the
national model legislation.
Declaration of State toll road corridor land and local government
tollway corridor land
The amendments to the Transport Infrastructure Act 1994 will broaden the
categories of land that can be declared by the Minister to be state toll road
corridor land.
The amendments will also allow the associated registered and unregistered
interests in the land to be dealt with by the Minister at the same time.
For consistency, similar amendments are being made to the local
government tollway corridor provisions in the Transport Infrastructure Act
1994.
Counter Terrorism
An incorrect reference due to a typeset error has occurred within the
Transport Security (Counter-Terrorism) Act 2008 that relates to a particular
reference to the `Australian Emergency Manuals Series' The incorrect
reference has occurred due to the omission of a number in the text.
Consequently, the proposed amendment replaces the words `manual 2 -
Managing exercises' with `manual 42 - Managing exercises' in Part 2,
section 25(6)(b) of the Transport Security (Counter-Terrorism) Act 2008.
Administrative Costs
Ports and Rail Amendments
The cost of administering the Bill is not considered material beyond the
current regulation of these operations within public ownership. A cost
recovery charge for planning services could operate to ensure
administration of the port planning regime does not require
supplementation.
Gold Coast Rapid Transit
The administrative costs to support the Gold Coast Rapid Transit project
are included within the existing project funding allocations.
The other amendments to the Transport Infrastructure Act 1994 and
Transport Planning and Coordination Act 1994 that will support the safety
and operational integrity of transport and transport infrastructure will be
funded from within existing budget allocations.
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Transport and Other Legislation Amendment Bill (No. 2) 2010
Fixed Toilets
Vessel owners will be required to pay for any necessary plumbing changes
however the costs associated with plumbing configurations are considered
negligible.
The amendments for the Adult Proof of Age Card, New Queensland Driver
Licensing, maritime, passenger transport, heavy vehicle reforms and
transport security legislation will be funded from within existing budget
allocations.
Achieving the Objectives
Port and Rail amendments
The Bill achieves its policy objectives by:
· replacing specific references to QR Limited in the Transport
Infrastructure Act 1994 and other legislation with generic terms to
ensure that the QR National group and Queensland Rail are subject to
the applicable legislative framework;
· inserting new provisions in the Transport Infrastructure Act 1994-
· enshrining the Government's commitment that QR National
maintain a substantial operational (including head office)
presence in Queensland; and
· imposing a total 15% cap on the shares a person or entity and
their associates can hold in QR National;
· inserting a new savings provision in the Transport Infrastructure Act
1994 permitting rail infrastructure that was constructed between 1995
and the present on land that is not owned or leased by QR Limited (or
on land that is adjacent to such land) to remain on that land, where the
rail infrastructure augments, duplicates or replaces pre-1995
infrastructure;
· introducing a tailored standing exemption (subject to conditions) for
railway managers (other than a rail GOC and its subsidiaries) in
relation to the removal of dead protected animals from railways under
the Nature Conservation (Wildlife Management) Regulation 2006;
· amending chapter 8 of the Transport Infrastructure Act 1994 to confer
powers on the port operator of the Port of Brisbane to impose charges
in relation to port services and port facilities of the Port of Brisbane;
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Transport and Other Legislation Amendment Bill (No. 2) 2010
· amending chapter 8 of the Transport Infrastructure Act 1994 to confer
appropriate control powers on the port lessor to regulate activities in
the area of the Port of Brisbane for safety and security purposes and to
allow the port lessor to delegate these powers to the port operator;
· amending chapter 8 of the Transport Infrastructure Act 1994 to insert
a tailored planning regime in relation to the remaining core port land
of the Port of Brisbane, generally based on the existing land use
planning regime, but with adaptations for greater consistency with the
Sustainable Planning Act 2009;
· inserting new provisions in the Transport Infrastructure Act 1994 to
enable the relevant local governments to take over the planning
administration of certain balance port land under their respective
planning schemes;
· inserting new provisions in the Transport Infrastructure Act 1994 for
land dealings under the Land Act 1994 and Land Title Act 1994 in
respect of land related to the Port of Brisbane and declared projects
under the Infrastructure Investment (Asset Restructuring and
Disposal) Act 2009;
· inserting new provisions in the Transport Infrastructure Act 1994
dealing with the grant of trade waste approvals from the service
provider (currently Brisbane City Council) to the port operator's
tenants at the Port of Brisbane;
· inserting new provisions in the Transport Infrastructure Act 1994
dealing with the registration of service providers for water and
sewerage services at the Port of Brisbane;
· inserting new provisions in the Transport Infrastructure Act 1994
dealing with land tax and rates to maintain the status quo;
· inserting new provisions in the Transport Infrastructure Act 1994
dealing with the exclusion of the application of a limited number of
local laws to Brisbane core port land, where those local laws would
otherwise conflict with either the Transport Infrastructure Act 1994 or
with other State controls;
· amending the Land Act 1994 to allow subletting of leases under that
Act beyond an initial sublease or sub-sublease;
· amending the Judicial Review Act 1991 to exclude this Act in relation
to decisions of the State or a relevant entity (the port lessor, a port
lessee or a port manager) made in carrying out its functions under
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Transport and Other Legislation Amendment Bill (No. 2) 2010
chapter 8, part 3A (Liability for, and recovery of, charges and
expenses);
· making consequential amendments to other Acts and Regulations to
ensure that appropriate obligations and exemptions continue to apply
to the port operator in relation to the Port of Brisbane; and
· inserting transitional amendments in the Transport Infrastructure Act
1994 and other legislation in relation to QR Limited and POBC
(including in relation to the application of the common carrier
exemption that the QR Limited group currently enjoys, and port area,
port charging, control powers and planning matters for former
strategic port land).
Gold Coast Rapid Transit
The amendments to the Transport Infrastructure Act 1994 will provide a
clearly defined framework to support the delivery of the Gold Coast Rapid
Transit project as a Public Private Partnership.
Transport Infrastructure Act 1994
Vehicular property access
The amendments to the Transport Infrastructure Act 1994 (sections 33, 50,
52, 67 and 70) will remove the overlap between the approval of vehicular
property access as both road access works and road works under the Act,
by clarifying the scope of each approval. The amendments will simplify the
application process and ensure that road access works are approved only as
road works under the Act.
The amendments will also clarify the appeal and enforcement provisions
for vehicular property access on state-controlled roads where an
application is subject to both the Transport Infrastructure Act 1994 and the
development approval process under the Sustainable Planning Act 2009,
ensuring that the Transport Infrastructure Act 1994 will apply only to
approvals that are made and assessed under the Transport Infrastructure
Act 1994, and not to approvals that are made and assessed under the
Sustainable Planning Act 2009.
Environmental Impacts on Development from State-controlled Roads
The insertion of new section 49A will clarify the Department of Transport
and Main Roads' existing power in relation to environmental impacts on
development from state-controlled roads, clarifying that the department can
place conditions on a development in order to mitigate such impacts. This
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Transport and Other Legislation Amendment Bill (No. 2) 2010
will provide consistency between the department's jurisdiction over
state-controlled roads and the heads of power for public passenger
transport, rail and ports.
Definition of rail transport infrastructure
The amendment to the Schedule 6 definition of rail transport infrastructure
in the Act to explicitly include railway station vehicle parking, passenger
set down facilities and pedestrian paving will bring this infrastructure into
line with the definitions of busway transport infrastructure and light rail
transport infrastructure and ensure that the infrastructure is considered
exempt development under the Sustainable Planning Act 2009.
Public utility plant on busway and light rail transport infrastructure
The proposed amendments to chapter 9, part 4, division 4 and chapter 10,
part 4, division 3 (Public utility plant) will amend the definitions of busway
land and light rail land, to ensure the safety and operational integrity of
transport infrastructure by clarifying the chief executive's statutory
authority to manage public utility plant on all state land where busway or
light rail transport is, or is planned to be located.
Works or activities affecting transport infrastructure
The amendments to chapter 16 (General Provisions) insert provisions that
will protect transport infrastructure by enabling the chief executive to
require activities that will adversely impact on the safety and operational
integrity of transport infrastructure to stop, alter or not start.
Notice on title
The amendments to chapter 16 (General Provisions) insert provisions that
will ensure that the safety and operational integrity of transport
infrastructure and network is protected from certain nearby construction
works or activities, by providing the chief executive with the power to
register a notice against the title of a property to notify land owners (and
potential purchasers) of their existing obligations not to impact on transport
infrastructure.
Transport Planning and Coordination Act 1994
Transport associated development
The amendments to sections 3 (Definitions) and 8A (Object of pt 2A) of
the Act will resolve the conflict in the Act between the interpretation of the
definition of transport associated development and the objectives of the
Act.
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Transport and Other Legislation Amendment Bill (No. 2) 2010
Prescribed Transit nodes
The amendments to section 28AA (Declaration of area used or to be used
for particular purposes to be prescribed transit node) will provide that the
legitimacy of a prescribed transit node declaration is not impacted by minor
design changes.
Protecting State Interests in Land
The amendments to section 28 (No compensation for works after notice of
intention to resume or agreement to acquire) will enable the chief executive
to protect transport infrastructure by disposing of land subject to an
interest, when it has been resumed for the development of transport
infrastructure and is then offered back to the former owner.
Valuation of Land at and around Prescribed Transit Nodes
The amendments to section 28 (No compensation for works after notice of
intention to resume or agreement to acquire) will provide certainty for
project teams and land owners by clarifying that that any change in the
value of land resulting from a prescribed transit node declaration is not
included in the compensation payable as a result of the compulsory
acquisition of land. This will avoid potential project delay should a land
owner attempt to claim a change in the value of the land which occurs as a
consequence of the prescribed transit node declaration.
Adult Proof of Age Card and New Queensland Driver Licensing
As the Transport Planning and Coordination Act 1994 is an umbrella Act
for transport legislation, the provision providing for the storing of
emergency contact information will only appear once in the statute book.
Maritime
Maritime Safety Queensland Act 2002
Rights and entitlements of public service officers
As a result of a recent review that compared remuneration arrangements
nationally for the positions of Regional Harbour Master and Assistant
Harbour Master, any new and current employee that will undertake these
roles will be offered a contract under section 12 of the Maritime Safety
Queensland Act 2002 rather than under section 122 of the Public Service
Act 2008.
This will provide more flexible employment arrangements and redress
remuneration anomalies identified during the comparison with industry.
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Transport and Other Legislation Amendment Bill (No. 2) 2010
In the future other employees performing maritime specific roles may be
offered employment under section 12 of the Maritime Safety Queensland
Act 2002 to address attraction and retention issues.
Remove references to the Marine Board
The Marine Board no longer exists and the amendment will remove the
reference to the Marine Board (refer to heading under the Transport
Operations (Marine Safety) Act 1994).
Transfer of Functions
The amendment will extend Maritime Safety Queensland's functions and
powers to manage public marine facilities and waterways under the
Transport Infrastructure Act 1994 and the Transport Infrastructure (Public
Marine Facilities) Regulation 2000.
Transport Operations (Marine Safety) Act 1994
Remove references to the Marine Board
The Marine Board no longer exists.
Shipping Inspectors
The amendment will broaden the existing powers of shipping inspectors at
sections 171, 172 and 172A that provide for the issuing of directions for
vessel inspections and breaches of registration and licence requirements to
include a direction that deals specifically with contraventions of safety
equipment requirements.
The amendment will enhance marine safety by reducing the exposure of
people and property to risk of incident or accident at sea.
Pacific Adventurer incident
Penalties
The Transport Operations (Marine Pollution) Act 1995 establishes a
regime where the onus is on the ship owner or master to prevent pollution.
Even accidental discharges attract criminal sanctions, except in
circumstances where the discharge occurred because of damage to the ship.
It is fundamental to the operation of this regime that the penalties
associated with the discharge offences are sufficiently severe to prevent
discharges of pollution.
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Transport and Other Legislation Amendment Bill (No. 2) 2010
The Transport Operations (Marine Pollution) Act 1995 prohibits the
discharging of oil, oil residues, noxious liquid, jettisoning of harmful
substances and disposing of garbage and sewage.
The current maximum penalty for the discharging of oil, noxious liquid,
jettisoning of harmful substances or disposing of garbage is $350,000 for
an individual and $1,750,000 for a body corporate.
The Transport Operations (Marine Pollution) Act 1995 is to be amended to
ensure that Queensland's marine and coastal protection regime has the
highest rate of penalty.
For the discharging of oil, oil residues, noxious liquid or the jettisoning of
harmful substances (such as containerised cargo) into Queensland coastal
waters, the Transport Operations (Marine Pollution) Act 1995 is to be
amended to increase penalties to a maximum of $500,000 for an individual
and for a body corporate to $10,000,000.
Corporation Privilege
The Bill amends the Transport Operations (Marine Pollution) Act 1995 to
require corporations to produce information relevant to a marine pollution
incident. Specifically, the Act will be amended to provide that it is not a
reasonable excuse for a corporation to fail to give information, even if
giving the information might tend to incriminate the corporation.
Compelling a corporation to provide information relevant to a marine
pollution incident will improve Maritime Safety Queensland's ability to
investigate the causes of incidents under the Transport Operations (Marine
Pollution) Act 1995 with the goal of improving compliance.
Authorised officers
This amendment extends the powers of `authorised officers' to be able to
direct ships, with defects (or other instances of non-compliance with
relevant legislative requirements) that would, or would be likely to, pollute
coastal waters, not to operate, until the cause of the problem is rectified and
the ship is assessed as no longer presenting a pollution risk.
Currently, an authorised officer has the power to detain a ship (in an
emergency situation only), if the officer believes a discharge offence has
already occurred. The current amendment will allow the officer to prevent
the operation of a ship before a pollution incident occurs. The amendment
will enhance Maritime Safety Queensland's ability to protect the marine
and coastal environment by minimising deliberate and negligent discharges
of ship-sourced pollutants into Queensland coastal waters.
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Transport and Other Legislation Amendment Bill (No. 2) 2010
Letter of Undertaking
Currently, the chief executive must release a ship detained under the
Transport Operations (Marine Pollution) Act 1995 if a security is given for
payment of liability and expenses. The securities currently listed in the Act
are a bank guarantee, a bond or an insurance policy.
A Letter of Undertaking is regarded in the insurance industry as being a
legally binding guarantee for the release of a detained ship. This
arrangement is consistent with recognised international practice, and was
given judicial approval by the High Court of Australia in Freshpac
Machinery Pty Limited v The Ship `Joana Bonita'.
The Bill will align the forms of security allowed for under the Transport
Operations (Marine Pollution) Act 1995 with industry and international
practice and clarify that a Letter of Undertaking is an acceptable form of
security.
Fixed Toilets
The further amendment to the Transport Operations (Marine Pollution) Act
1995 will ensure that the mandatory sewage holding devices installed on
declared ships (operating in prescribed nil discharge waters for treated or
untreated sewage) must be correctly connected to all fixed toilets onboard
such ships. This amendment will also provide that such connections are
unable to be by-passed.
Passenger Transport
The changes will ensure the Transport Operations (Passenger Transport)
Act 1994 is up to date and reflects policy intent by allowing industry to
keep records in a more flexible manner, improving annual reporting,
removing redundant review provisions about standards and reinserting the
definition of tourist service.
TransLink
The changes will ensure TransLink submits a timely and accurate annual
report that includes relevant information relating to service contracts.
Road Safety
The Transport Operations (Road Use Management) Act 1995 will be
amended to incorporate two additional measures and two court order
provisions which are designed to assist in reducing non-compliance with
heavy vehicle operating requirements.
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Transport and Other Legislation Amendment Bill (No. 2) 2010
The two new measures are the ability of authorised officers to issue
improvement notices and formal warnings. The availability of these
measures will provide additional flexibility for enforcement. It will enable
consideration to be given on a case-by-case basis as to the most appropriate
means of dealing with behaviour which presents a safety risk to road users.
It will also facilitate an environment which encourages working with
operators to assist them to comply with the legislation. Comprehensive
training will be provided to enforcement officers to allow them to assess
when it would be appropriate to use either one of these new measures
rather than the usual means of issuing a penalty infringement notice or
commencing court proceedings.
Currently under the Transport Operations (Road Use Management) Act
1995 the court can impose fines or a commercial benefits penalty order
when a person is found guilty of committing a heavy vehicle offence. It is
now intended to adopt two new court-based sanctions. These are
supervisory intervention orders and compensation orders.
Declaration of State toll road corridor land and local government
tollway corridor land
Amendments to the Transport Infrastructure Act 1994 will:
· extend the categories of land that may be declared by the Minister to
be State toll road corridor land;
· provide that the lease of land to the State comes into effect at the time
of the declaration made by the Minister;
· allow the Minister to continue specified interests in relation to the
State toll road corridor land;
· provide that land that is declared by the Minister is free of any interest
or obligation other than the interests which have been expressly
continued in the declaration; and
· provide that a person with an interest in the declared land that has not
been continued has the same rights to claim compensation as provided
for under the Acquisition of Land Act 1967.
For consistency, similar amendments are being made to the local
government tollway corridor provisions in the Transport Infrastructure Act
1994.
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Transport and Other Legislation Amendment Bill (No. 2) 2010
Counter Terrorism
The amendment to the Transport Security (Counter-Terrorism) Act 2008
corrects a particular reference to the `Australian Emergency Manuals
Series'
Fundamental Legislative Principles
The changes to the Maritime Safety Queensland Act 2002, the Transport
Operations (Marine Safety) Act 1994, the Transport Operations (Passenger
Transport) Act 1994 and the Transport Security (Counter-Terrorism) Act
2008 do not breach any Fundamental Legislative Principles.
Amendments to the Adult Proof of Age Card Act 2008 and the Transport
(New Queensland Driver Licensing) Amendment Act 2008 are
administrative in nature and merely relocate provisions relating to
emergency contact information to the Transport Planning and
Coordination Act 1994. This will provide for more efficient and
streamlined legislation. The amendments do not breach any Fundamental
Legislative Principles.
Port and Rail amendments
The Bill raises issues relevant to fundamental legislative principles:
Whether legislation has sufficient regard to the rights and liberties of
individuals (Legislative Standards Act, section 4(2)(a)) - QR Limited, new
section 244A of the Transport Infrastructure Act 1994.
QR Limited has rail transport infrastructure on land that it does not own or
lease. This infrastructure (which was constructed before 1995) may remain
on the land by virtue of section 244 of the Transport Infrastructure Act
1994. Further, section 244 allows QR Limited to alter that infrastructure,
manage the railway using that infrastructure and operate (or authorise a
railway operator to operate) rolling stock using that infrastructure. The
section also confirms that land owners do not have an interest in the rail
infrastructure merely because it is fixed to their land. Since the
commencement of that section, QR Limited has augmented, duplicated and
replaced rail transport infrastructure of this kind. New section 244A
effectively preserves the benefit of section 244 in relation to the rail
infrastructure comprised in such augmentations, duplications and
replacements where this has occurred since the commencement of section
244.
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Transport and Other Legislation Amendment Bill (No. 2) 2010
Much of this rail infrastructure was constructed pursuant to informal
arrangements. As a result there are, for example, gaps in the tenure for rail
corridor land over watercourses and roads. This new section will permit
the existing rail infrastructure to remain on the land (despite the lack of
tenure) and permit the owner of the rail infrastructure to enter upon the land
for the purposes of managing the railway, without the need for a grant of a
licence or other land tenure. In particular, the owner of the rail
infrastructure will not require a licence from local governments in relation
to such rail infrastructure on local government roads.
This new section is considered necessary to preserve the status quo with the
existing rail infrastructure. The new section 244A provides Queensland
Rail and QR National with a statutory right in relation to existing rail
infrastructure as currently exists in the name of QR Limited. However,
Queensland Rail and QR National will need to enter the appropriate access
arrangements or secure tenure through the normal commercial processes
for any new rail infrastructure.
Whether legislation has sufficient regard to the rights and liberties of
individuals by abrogating common law rights (Legislative Standards Act,
section 4(2)(a)) - QR Limited, section 248 of the Transport Infrastructure
Act 1994.
Currently, section 248 declares QR Limited and its wholly owned
subsidiaries not to be common carriers. The Bill amends this section so that
this exemption applies to Queensland Rail, which will be the owner of the
above and below rail passenger business and the regional freight network.
This amendment will maintain the status quo for Queensland Rail.
Once the QR National commercial freight business ceases to be
government owned, it will not have the benefit of this exemption.
However, as a transitional matter, the Bill preserves the benefit of the
common carrier exemption in respect of contracts which the QR Limited
group has entered into upon the basis of the common carrier exemption.
This transitional arrangement is justified, as it preserves existing
contractual rights which were agreed upon in reliance on that exemption.
Without this statutory preservation, the discontinuation of this exemption in
relation to existing contracts would alter third parties' contractual rights.
Whether legislation has sufficient regard to the rights and liberties of
individuals (Legislative Standards Act, section 4(2)(a)) - Port of Brisbane,
New Planning Framework.
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Transport and Other Legislation Amendment Bill (No. 2) 2010
The Bill provides that a person is not entitled to compensation under the
Sustainable Planning Act 2009, or any other law in relation to a change to a
Brisbane port land use plan affecting the person's interest in any Brisbane
core port land. There is no common law right to compensation if a land use
plan (LUP) is amended. However, this clause is intended to put this issue
beyond doubt. This clause is identical to the approach taken under the
Airport Assets (Restructuring and Disposal) Act 2008.
Whether legislation has sufficient regard to rights and liberties of
individuals by delegation of administrative power only in appropriate
cases and to appropriate persons (Legislative Standards Act 1992, section
4(3)(c)) - Port of Brisbane, Delegation of Statutory Control Powers to Port
Lessee.
Under chapter 8 of the Transport Infrastructure Act 1994, POBC, as a port
authority, may control activities by issue of a port notice within its port area
and appoint authorised officers to give directions to persons in the port
area, move contravening property and inspect documents, vessels, vehicles
and goods. These powers are important for maintaining safety, security
and efficient operation of the Port of Brisbane and (in the case of
inspection) for enforcing port charges. Post divestment, the Port of
Brisbane will be managed by a private sector entity, port lessee/operator. In
recognition of the fact that the port lessee/operator will be a private sector
entity, the control powers are proposed to be ultimately vested in the port
lessor (a government entity) and delegated to the port lessee/operator.
However, the State will continue to be able to ensure that the powers that
are made available under the Bill are exercised within appropriate
guidelines. It is noted that this model was also adopted in the Airport
Assets (Restructuring and Disposal) Act 2008.
As to protection from suit, the authorised officers appointed by the port
lessor or by the lessee/operator as delegate of the port lessor will be placed
in the same position as current authorised officers of POBC. That is,
section 6 of the Transport Infrastructure (Ports) Regulation 2005 exempts
authorised officers and employees from civil liability for acts and
omissions done honestly and without negligence for purposes related to the
management and operation of the port. It is considered important that
individual authorised officers appointed by the port lessor/lessee/operator,
acting honestly and without negligence should be able to carry out their
duties without concern for their private liability. Authorised officers will
be fulfilling the important function of ensuring the safety and security of
the port area, its users and invitees, and ensuring that the conduct of
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Transport and Other Legislation Amendment Bill (No. 2) 2010
persons does not adversely affect the operation of the port. Further, the
immunity granted to the authorised officers does not prevent a person
affected by an act or omission of the authorised officers recovering against
the port lessor/lessee/operator.
Whether legislation has sufficient regard to rights and liberties of
individuals by delegation of administrative power only in appropriate
cases and to appropriate persons (Legislative Standards Act 1992, section
4(3)(c)) - Port of Brisbane, Delegation to Local Governments (Planning).
The State has retained responsibility for oversight of the planning
provisions. However, the Bill provides that the planning chief executive
may delegate to a local government certain `administrative functions' in
relation to the administration and enforcement of development approvals
under the Sustainable Planning Act 2009. In this instance, it is appropriate
for legislation to permit administrative power to be delegated by the
planning chief executive to a local government. While the usual delegation
provision within Government would typically provide for delegation to
specified `appropriately qualified persons', in this instance, the delegation
is provided to a local government itself. Local governments are
experienced in planning administration such as issuing planning and
development certificates. Accordingly, the local government, rather than a
specifically delegated person, will be required to undertake this role. If a
delegation of an administrative function is made under this clause, the
delegation will be disclosed by means of a notice to the port lessee/operator
and also a notice on the departmental website. This delegation power does
not extend to deciding development applications.
Whether legislation has sufficient regard to the institution of Parliament
(Legislative Standards Act, section 4(4)) - Port of Brisbane, Exemption
from Port Charges.
The Port of Brisbane is a multi-purpose, multi-operator port facility. POBC
relies on statutory powers conferred on it to impose and enforce its port
charges. In particular, POBC also relies on a statutory power to recover
port charges associated with the cost of maintaining the shipping channel
that provides access to the Port of Brisbane, as POBC is not the owner of
the channel and does not have any tenure over or general right to restrict
access to the channel area.
For the same reasons that a statutory power to impose charges is conferred
on POBC and other port authorities, a power will be conferred on the port
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Transport and Other Legislation Amendment Bill (No. 2) 2010
operator to impose port charges in relation to port services and facilities
(including the channel) in relation to the Port of Brisbane.
As the capacity to charge is conferred by legislation, it is recognised that
there may be circumstances when a person should be exempt from port
charges. Currently, under section 281C of the Transport Infrastructure Act
1994, a regulation may provide for exemptions from the payment of port
charges. Section 281C also allows a port authority to exempt a person from
port charges. For the Port of Brisbane, the Bill will allow a regulation or a
`port agreement' made between the port operator and the State to exempt a
person from port charges. As this matter is one that would ordinarily be
dealt with administratively, it is appropriate content for a regulation or
agreement. This proposal is consistent with the charging powers currently
conferred on port authorities. It is also noted that the ability to exempt a
person from port charges under a port agreement is limited to the Port of
Brisbane.
Whether legislation has sufficient regard to the rights and liberties of
individuals (Legislative Standards Act, section 4(2)(a)) - Port of Brisbane,
Production of Information.
Under the Transport Infrastructure Act 1994, port authorities (including
POBC) may obtain information from port users associated with Port of
Brisbane. Given the nature of the port business and the various users of the
ports services and facilities (for example, ship owners and masters, cargo
owners and forwarders and their agents), it is necessary to continue this
arrangement to allow that the port lessor and its delegate (the port operator)
to obtain information from its port users to ensure the security, safety and
efficient operations of the port. In addition, the port lessor will require
information from port users to satisfy the requirements of State and
Commonwealth agencies (e.g. information relating to maritime security).
The Bill permits the port lessor and its delegate to require a person to
produce information relevant to the management, security, safety and
efficient operations of the port. Such information includes, but is not
limited to, information relating to the description of vessels, vehicles,
goods and commodities entering or located in the port area and data about
the movement of vessels, vehicles or passengers, movement and storage of
goods and commodities and efficiency of operations.
Whether legislation has sufficient regard to the rights and liberties of
individuals by abrogating established statute law rights and liberties
(Legislative Standards Act, section 4(2)(a)) - Judicial Review Act 1991.
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Transport and Other Legislation Amendment Bill (No. 2) 2010
The Judicial Review Act 1991 exempts commercial activities and
community service obligations of QR Limited and POBC, as GOCs, from
judicial review. To maintain the status quo, the commercial activities and
community service obligations of Queensland Rail (as a rail GOC) will
continue to be exempt from judicial review.
In relation to Port of Brisbane, the State, the port lessor, port lessee and
port operator will be exempt from the Judicial Review Act 1991 in respect
of decisions in relation to liability for, and recovery of, charges and
expenses. Decisions relating to liability for, and recovery of, charges and
expenses are commercial matters and not appropriate for judicial review.
Whether legislation has sufficient regard to the institution of Parliament
(Legislative Standards Act, section 4(4)) - Gazette Notices and
Regulations.
Certain provisions of the Bill will be modified by gazette notice or
regulation.
(a) Declaration of Certain Entities
QR National, a port lessor and a port lessee will be declared by gazette
notice. Once these entities have been identified by gazette notice, the
relevant provisions of the Bill will be capable of applying in respect of
them. Given that QR National, the port lessor and port lessee will not be
established prior to the introduction of the Bill, these entities will be
identified by gazette notice.
(b) QR Limited, Relevant Interests in Shares
The Bill permits the Treasurer, by gazette notice, to provide that particular
relevant interests in shares will be disregarded for the purposes of the 15%
shareholding cap. This provides a mechanism to modify the application of
the shareholding cap. The Government has announced that it will retain a
shareholding in QR National of 25-40%. The precise amount of the State's
shareholding in QR National is yet to be determined and may not be known
until the float date. The use of a gazette notice to exempt the State's
shareholding from the shareholding cap is necessary because the State will
initially have a 100% shareholding in QR National pre-float and a 25-40%
shareholding post-float, these being shareholdings that would otherwise
breach that cap.
(c) Port of Brisbane, Definition of `Port Area' and `Port Facilities'
Currently, section 267 of the Transport Infrastructure Act 1994 defines a
`port area' by reference to a port authority, as the area of its strategic port
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Transport and Other Legislation Amendment Bill (No. 2) 2010
land and port facilities, and within its (prescribed) port limits. Section 274
provides that a regulation may define port limits.
Under the Bill, for the Port of Brisbane, a regulation may declare:
· an area to be or not to be part of the port area;
· the port limits; and
· facilities to be or not to be port facilities for the Port of Brisbane.
This regulation may contain information such as mapping coordinates and
detailed asset descriptions, which are not appropriate to be included in an
Act.
For the same reason, a regulation may also amend the port area of the Port
of Brisbane as part of the restructure of POBC before divestment.
(d) Port of Brisbane, Planning
As part of the restructure of POBC, a gazette notice will -
· declare certain land to be Brisbane core port land;
· declare the first LUP for Brisbane core port land; and
· declare that certain balance port land will cease to be strategic port
land under the Transport Infrastructure Act 1994 and (where
applicable) become subject to the relevant local government planning
scheme administration.
Given the extensive list of lots to be declared as Brisbane core port land or
as balance port land, it is appropriate that this type of detail is not listed in
an Act. A gazette notice is the appropriate mechanism for the above
purposes as the planning scheme amendments and first Brisbane port LUP
will include a series of maps and detailed text, which would be too detailed
for legislation itself.
Also, gazettal is the more usual approach in relation to planning schemes,
for example under section 118(1)(e) of the Sustainable Planning Act 2009.
Furthermore, the gazette notices will reflect a negotiated outcome agreed
upon by the relevant State departments and local governments. Both the
planning scheme amendments and the first Brisbane port LUP are proposed
to be derived from existing precinct planning under the current Port of
Brisbane LUP 2007 which was the subject of normal public consultation
under the Transport Infrastructure Act 1994.
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Transport and Other Legislation Amendment Bill (No. 2) 2010
A gazette notice provides the necessary flexibility to ensure that the above
matters can be coordinated with the restructure and divestment of POBC
and avoid any gaps in the legislative scheme.
(e) Port of Brisbane, Local Laws Exemption
Currently, local laws apply to strategic port land of the Port of Brisbane.
The Bill excludes certain local laws that are inconsistent with the functions
and operations of the Port of Brisbane (such as in relation to traffic
controls). The Bill also introduces a process for the exclusion of future
local laws that are inconsistent with the functions and operation of the Port
of Brisbane. Under the proposed provisions, a regulation may provide that
a stated local law does not apply to the port. In this instance, the regulation
does not amend the application of primary legislation or subordinate
legislation.
Gold Coast Rapid Transit
Easements for Light Rail Overhead Wiring
To meet Queensland's growing passenger transport task, which is a result
of Queensland's sustained population growth, new transport infrastructure,
such as the Gold Coast Rapid Transit project, will be required to be
delivered as brownfield development within existing urban areas.
The proposed insertion of section 377R (Limited compensation for
easements etc. or damage relating to overhead wiring for light rail) that will
enable the attachment of overhead wiring to private land may be considered
not to have a sufficient regard to the rights and liberties of individuals (the
Legislative Standards Act 1992, section 4(3)(g)) or provide for fair
compensation for the compulsory acquisition of property (Legislative
Standards Act 1992, section 4(3)(i)).
Pursuant to proposed section 377R, the department is required to pay
compensation under the Acquisition of Land Act 1967 for any compulsory
acquisition of an easement for overhead wiring for a light rail. The
compensation arrangements within section 377R also provide that the
department must pay compensation for any damage caused by the
attachment of overhead wiring for a light rail.
It is intended that the chief executive will only require the attachment of
overhead wiring for a light rail where no other practical alternative exists,
having regard to: the cost, design, functionality and safety matters in
accordance with the objectives of the Transport Infrastructure Act 1994.
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Transport and Other Legislation Amendment Bill (No. 2) 2010
Interface Arrangements
The proposed insertion of a new Part 4A (Franchised light rail), Division
4A, subdivision 3 (Interface management) into the Transport Infrastructure
Act 1994 establishes interface management arrangements for light rail.
These amendments may be considered not to have a sufficient regard to the
rights and liberties of individuals (the Legislative Standards Act, section
4(3)(g)).
The State has a responsibility under transport legislation for safety of
persons and the maintenance of structural and operational integrity of all
transport infrastructure and public transport networks. Within the urban
footprint, transport infrastructure is becoming increasingly complex. In the
case of the GCRT project there will be interactions with other transport
modes (for example, roads, buses and active transport) and active interfaces
with other land uses (for example, a major commercial or retail
development).
The new Part 4A, Division 4A, subdivision 3 does not impact on existing
safety, maintenance or liability obligations of the parties, but instead,
establishes a framework within which these obligations can be effectively
managed and coordinated. The amendments are designed to ensure these
interactions are undertaken in a manner that ensures the safety, structural
and operational integrity of transport infrastructure.
Additionally, it is important to note that before an interface management
area may be declared, the chief executive is required to undertake
consultation with all parties (and provides the opportunity for submissions)
that the chief executive reasonably believes may be impacted by the
declaration of an interface management area.
The significant penalty provisions, which are consistent with the Transport
Rail Safety Act 2010, reinforce the serious safety implications associated
with complex transport interfaces with other land uses. The proposed
amendments establish an appropriate dispute resolution process, and it is
intended that the enforcement of penalties will be used as a last resort.
The proposed interface management regime is based on existing
legislation, including provisions within the Rail Safety Act 2010.
Applications for road access to state controlled roads
The proposed new section 33(5) appears to restrict the circumstances in
which an approval may be given for road access works and could be
considered a breach of the fundamental principle that legislation have
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Transport and Other Legislation Amendment Bill (No. 2) 2010
sufficient regard to an individual's `rights and liberties'. However, the
Transport Infrastructure Act 1994 does not clearly delineate the scope of
road access works approvals (provided under section 50 of the Transport
Infrastructure Act 1994) and road works approvals (provided under section
33 of the Transport Infrastructure Act 1994). As a consequence there is
overlap and complexity in the application and approval process, which has
resulted in the inconsistent application of these provisions across the State.
This amendment will make it easier for applicants (usually property
owners) to apply for vehicle property access to state controlled roads and
provides permanent vehicular property access that runs with the land. In
contrast an application approved under section 50 does not run with the
land and each new property owner has to reapply for the road access to the
state controlled road.
Appeals and offence provisions about road access locations and road
access works
The amendment to section 49 and the insertion of a new section 49A may
be considered not to have a sufficient regard to the rights and liberties of
individuals (the Legislative Standards Act 1992, section 4(3)(g)). These
amendments clarify the appeal and enforcement provisions for vehicular
property access on state-controlled roads where an application is subject to
the Transport Infrastructure Act 1994 as well as the development approval
process under the Sustainable Planning Act 2009, to provide that the
Transport Infrastructure Act 1994 will only apply to approvals that are
made and assessed under the Act, and not to approvals made and assessed
under the Sustainable Planning Act 2009.
Currently, applications to allow a driveway direct access to a state
controlled road are made under the Transport Infrastructure Act 1994
(section 49) and must comply with relevant notification and appeal
processes under that Act. However some applications made under section
49 may also be part of a development approval process under the
Sustainable Planning Act 2009. In these instances the appeal and
enforcement provisions of the Transport Infrastructure Act 1994 and the
Sustainable Planning Act 2009 apply. The two different appeal processes
have caused confusion for property owners and developers.
The amendments to section 49 and the insertion of a new section 49A will
make it clear that the notification and appeal processes under the Transport
Infrastructure Act 1994 will only apply to decisions about access that are
made and assessed under the Infrastructure Act and not to approvals made
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Transport and Other Legislation Amendment Bill (No. 2) 2010
and assessed under the Sustainable Planning Act 2009. Approvals made
and assessed under the Sustainable Planning Act 2009 will continue to be
subject to the appeal processes of that Act.
Power to require works to stop
New section 476B (Power to require works to stop) in Chapter 16 (General
Provision) of the Infrastructure Act may be considered not to have a
sufficient regard to the rights and liberties of individuals (the Legislative
Standards Act 1992, section 4(3)(g)).
It is considered that any breach of fundamental legislative principles is
justified and adequate protection is provided to an individual's rights and
liberties.
The amendment enables the department to protect busway, light rail and
road infrastructure by enabling the chief executive to approve, stop or alter
activities on land that may interfere with the safety or operational integrity
transport infrastructure.
New section 476B (Power to require to works to stop)
Imposes an obligation on a person not to carry out works on land if the
works threaten, or are likely to threaten, the safety or operational integrity
of transport infrastructure (excluding heavy rail). A breach of this
obligation can incur a maximum of 100 penalty units ($10,000).
Enables the chief executive to give a written direction to stop alter or not to
start the works if the chief executive reasonably believes the works threaten
or are likely to threaten, the safety or operational integrity of transport
infrastructure. A failure to comply with the direction without reasonable
excuse can incur a maximum penalty of 100 penalty units ($10,000).
The chief executive can require an owner of the land to alter, demolish or
take away the works and failure to comply with the requirement unless the
person has a reasonable excuse can incur a maximum penalty of 100
penalty units ($10,000).
The chief executive may alter demolish or take way the works and the
recover the costs of doing so as a debt payable.
Due to the increasing need to build transport infrastructure within the
existing urban landscape there are increased risks that transport
infrastructure can be threatened or damaged by works or activities
conducted on nearby land. These activities may not be limited to physical
construction or associated works, but could include activities that interfere
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Transport and Other Legislation Amendment Bill (No. 2) 2010
with the operation of technology, for example the Go-Card ticketing
system. It is critical that the chief executive is able to manage these risks
to protect the states high investment in infrastructure but also importantly
to ensure the safety and operational integrity of all transport infrastructures
and the network. Examples of works that are relevant are excavation,
construction, demolition, alteration or disturbance of existing
improvements, excessive loading, vibration and interferences with
technology based systems
New section 476 provides for compensation for the owner or occupier of
the land for any loss or damage or taking or using materials.
Notice on title
The insertion of a new section 476D (Registration of notice about nature of
works) into Chapter 16 (General Provisions) of the Infrastructure Act may
be considered not to have a sufficient regard to the rights and liberties of
individuals (the Legislative Standards Act 1992, section 4(3)(g). New
section 476D will enable the chief executive to register a notice that will
notify prospective purchasers of the land's proximity to, and obligations
regarding, transport infrastructure.
In many instances transport infrastructure will be built and operated within
the urban footprint. A lot of this infrastructure (for example, tunnels,
support for tunnels, and support for other vital infrastructure) may be near
(including below ground) a land owner's property.
Road, busway and light rail transport infrastructure (and in particular
subterranean infrastructure) requires a zone of protection to ensure the
structural and operational integrity of the infrastructure. Within this zone,
certain construction works or other activities may jeopardize the structural
integrity or the efficient and safe operation of the transport infrastructure or
its component parts.
The Department of Transport and Main Roads has some protection as a
referral agency under the Sustainable Planning Act 2009 by being able to
condition certain development proposals on land within a certain distance
of transport infrastructure. The provisions can fall short of the protection
levels required. These instances include:
· works that are not assessable or assessable development or exempt
development;
· development that occurs without the necessary application to the
assessment manager;
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Transport and Other Legislation Amendment Bill (No. 2) 2010
· development in areas where a town planning scheme does not
adequately address the need for the department's involvement as a
concurrence or referral agency; and
· where the construction methods used in approved or exempt
developments have the potential to cause harm or damage to
infrastructure or its users.
The registration of a notice will reinforce and provide notice of existing
obligations already imposed on landowners by section 179 of the Property
Law Act 1974. Section 179 provides that "attached to any land is an
obligation not to do anything on or below the land that will withdraw
support from any other land, building structure or erection that has been
placed on or below the land".
Additionally the proposed new section 476D (Power to require works to
stop) will also impose an obligation on a person not to carry out works or
activities without the chief executive's approval near transport
infrastructure that are likely to threaten safety or operational integrity of the
transport infrastructure.
Although a current landowner may be aware of infrastructure located near
or abutting the property, potential land purchasers may not be aware of this
infrastructure. By registering a notice on the land title, land owners,
prospective purchasers and developers are provided notice of obligations
regarding, transport infrastructure.
New section 476D provides that a notice can be registered on a land title if
the chief executive reasonable believes that works of a particular nature that
if conducted on the land are likely to threaten the safety or operational
integrity of transport infrastructure. The notice must identify the nature of
works that the chief executive reasonably believes is likely to threaten the
safety or operational integrity of transport infrastructure; and state that the
owner of the land must obtain the chief executive's written approval of the
chief executive under section 476B before conducting works of that nature
on the land.
The land owner has a right of appeal to QCAT against the decision of the
chief executive to register a notice on title.
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Transport and Other Legislation Amendment Bill (No. 2) 2010
Matters affecting compensation payable
The proposed replacement of section 28 of the Transport Planning and
Coordination Act 1994 with a new section 28 (Matters affecting
compensation payable) may raise a concern that the proposed legislation
adversely affects the rights and liberties of persons or provide for fair
compensation for the compulsory acquisition of property (Legislative
Standards Act 1992, section 4(3)(i)).
When the department compulsorily acquires land for a transport purpose it
must, in accordance with the provisions of the Acquisition of Land Act
1967, pay as part of the compensation to the owner the market value of the
interest of the land. However it is well established in law that in calculating
the market value of land any increase or decrease in the market value
arising from the carrying out, or the proposal to carry out, the purpose for
which the interest was acquired must be disregarded. This principle is
reflected in section 20(2A) of the Acquisition of Land Act 1967.
The amendment reflects this principle by clarifying in the Transport
Planning and Coordination Act 1994 that compensation payable to a
landowner as a result of the compulsory acquisition of land does not
consider any changes in the value of the land resulting from the declaration
of a prescribed transit node.
Maritime
Transport Operations (Marine Pollution) Act 1995
Pacific Adventurer incident
Penalties
The justification for higher penalties is that Queensland's marine
environment is of significant economic, environmental and cultural
importance and the effects of ship sourced pollution can be severe. The
majority of incidents that are prosecuted are a result of negligence or
deliberate actions on the part of a polluter. As with all pollution offences,
any penalty imposed by a court is not necessarily the maximum but takes
into account the severity and circumstances of the discharge.
It is considered appropriate to establish high penalties to discourage ships
from attempting to avoid compliance with the Transport Operations
(Marine Pollution) Act 1995. This is consistent with the international
principle of the "polluter pays", the community's expectation for zero
tolerance of marine pollution and the high penalties for marine pollution
offences imposed by all other Australian jurisdictions.
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Transport and Other Legislation Amendment Bill (No. 2) 2010
The fundamental legislative principle that requires observance of the rights
and liberties of individuals may be affected by the proposed increase in
penalty, particularly when coupled with the reverse onus of proof that is
associated with the strict liability nature of the discharge offences in the
Transport Operations (Marine Pollution) Act 1995.
In answer to this, it should be observed that none of the discharge offences
carry a term of imprisonment and so the liberty of individuals is never
under threat. Further, the public policy behind the Transport Operations
(Marine Pollution) Act 1995, to prevent discharges of pollutants from
ships, is extremely important. As was seen in the Pacific Adventurer
incident, community tolerance for large-scale discharges of pollutants from
ships is extremely low and the penalty for even accidental pollution should
be correspondingly severe and be at least as great as is available in other
Australian jurisdictions.
Corporation Privilege
The proposed amendment to require corporations to provide information in
relation to a marine pollution incident may breach section 4(3)(f) of the
Legislative Standards Act 1992, which requires Queensland legislation to
provide appropriate protection against self-incrimination and section
4(3)(h) of the Legislative Standards Act 1992, which requires that
Queensland legislation does not confer immunity from proceeding or
prosecution without adequate justification.
The proposed amendment will require corporations to provide information
which may result in self-incrimination and prosecution (against the
corporation). The intent of the proposed amendment is that any
information obtained through this proposed power would only result in
action against a corporation and not an individual.
The Department of Transport and Main Roads considers it reasonable to
proceed with the amendment to ensure corporations are meeting their
obligations in protecting the marine environment and to appropriately
enforce the law against corporations. This is consistent with the High
Court of Australia's decision in Environmental Protection Agency v Caltex
Refining Co Pty Ltd (1993) 178 CLR 477 which provides that the privilege,
with regards to self-incrimination, is a human right or personal privilege
that is not available to corporations.
The proposed amendment does not allow the corporate information
obtained through this new power to be used as evidence towards the
prosecution of an individual who provides information related to a
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Transport and Other Legislation Amendment Bill (No. 2) 2010
discharge offence. This provides a level of immunity to an individual from
prosecution. Similar to existing whistleblower legislation in Queensland, it
is justified to provide limited immunity to an individual, as it is a proven
tool and incentive to encourage persons, who are best placed to observe
breaches or contributing factors to an incident, to come forward without
fear of further self-incrimination as an individual.
Similar to existing provisions which provide that a Pollution Report cannot
be used as evidence in a prosecution for a discharge offence, the proposed
immunity is limited to the evidence obtained through the proposed new
power to obtain corporate information. It is important to note that an
individual may still be subject to a prosecution as a result of other evidence
collected through the normal course of investigations into the same marine
pollution incident.
Authorised Officers Powers
The amendment extends the powers of an authorised officer to direct ships,
with defects or other instances of non-compliance with relevant legislative
requirements that would, or would be likely to, pollute coastal waters, not
to operate until the cause of the problem is rectified and the ship is assessed
as no longer presenting a pollution risk.
The broadened powers of the authorised officers will be exercised in a
manner consistent with the existing powers of the authorised officer under
section 95, and of shipping inspectors under sections 171, 172 and 172A of
the Transport Operations (Marine Pollution) Act 1995 which will allow
authorised officers, if satisfied on reasonable grounds that a discharge of
pollutant has happened, or is likely to happen, to direct ships not to operate
until the cause of the problem is rectified and the ship is assessed as no
longer presenting a pollution risk.
Although the amendment potentially infringes fundamental legislative
principles of the rights of liberties of individuals under section 4(2)(a) of
the Legislative Standards Act 1992, the Department of Transport and Main
Roads considers the amendment will protect Queensland's marine and
coastal environment by minimising deliberate and negligent discharges of
ship-sourced pollutants into coastal waters through the ability to act in a
pre-emptive versus reactionary manner.
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Transport and Other Legislation Amendment Bill (No. 2) 2010
Transport Operations (Marine Safety) Act 1994
Shipping Inspectors power of direction
The amendment extends the powers of a shipping inspector to direct the
master of a vessel with non compliant safety equipment to return to port or
to the safety of waters for which the vessel's equipment is compliant.
The newly defined powers of the shipping inspector will be exercised in a
manner consistent with the existing powers of the shipping inspector under
sections 171, 172 and 172A of the Transport Operations (Marine Safety)
Act 1994 which provide for the issuing of directions for a ship to be
inspected or surveyed, or for a ship not to be operated for safety reasons.
The inclusion of new subsections in section 172A enables shipping
inspectors to give directions in relation to vessels that are specifically
contravening safety equipment requirements to be directed to move to a
safe place to ensure the safety of those on board.
To ensure the consistency of the application of this power, Maritime Safety
Queensland will undertake the following actions as per standard
procedures:
· the issue of Maritime Safety Queensland enforcement directives to all
shipping inspectors in relation to this regulatory change;
· inclusion of the issue as an agenda item at quarterly meeting in all
regions; and
· continued liaison with the regions (including Queensland Boating and
Fisheries Patrol and Water Police) via the Senior Compliance Officer.
Although the amendment potentially infringes fundamental legislative
principles of the rights of liberties of individuals in section 4(2)(a) of the
Legislative Standards Act 1992, the Department of Transport and Main
Roads considers the amendment promotes the protection and preservation
of life at sea and as such takes precedence over the rights and liberties of
individuals.
Road Safety
Transport Operations (Road Use Management) Act 1995
The amendments which adopt enforcement measures and court order
provisions from the national model legislation dealing with heavy vehicles
potentially raise fundamental legislative principle considerations.
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Transport and Other Legislation Amendment Bill (No. 2) 2010
Institution of Parliament
While these amendments are based on national model legislation, careful
thought has been given to the impact of that legislation. The Bill has been
drafted in a manner that incorporates Queensland drafting practices and
minor modifications have also been made so that the provisions are
consistent with existing Queensland legislation. In addition, the Bill
provides a lower penalty for the breach of an improvement notice than the
model legislation.
These reforms will be subject to consideration and scrutiny by the
Queensland Parliament.
Rights and liberties of individuals
The amendments adequately take into account the rights and liberties of
individuals.
The amendment in clause 257 introduces the ability of authorised officers
to issue improvement notices. The ground on which this administrative
power may be exercised by an authorised officer is clearly defined -
namely, that the officer must reasonably believe that a person has
contravened, is contravening or is likely to contravene a provision under
the Act relating to the operation of a heavy vehicle. Further, a decision to
issue an improvement notice or to amend an improvement notice is a
reviewable decision. This means that a person whose interest is affected by
the decision to issue or amend an improvement notice may firstly request
that the decision be reviewed internally by the Department of Transport and
Main Roads, and if necessary, that the reviewed decision be considered by
the Queensland Civil and Administrative Tribunal.
These new provisions mirror existing legislation that allows improvement
notices to be issued in relation to the non-compliance or suspected
non-compliance with requirements relating to the carriage of dangerous
goods (see section 161B of the Transport Operations (Road Use
Management) Act 1995).
New section 39R provides that a person who acts in contravention of a
requirement of an improvement notice commits an offence. The section
also provides a defence to a person charged under this section. The
defendant bears the onus of proof of establishing the defence on the
balance of probabilities. However, this is appropriate as the information
necessary to prove this defence is particularly within the defendant's
knowledge, rather than the prosecution's knowledge and would be
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Transport and Other Legislation Amendment Bill (No. 2) 2010
extremely difficult for the prosecution to prove. For example, it is much
easier for the defendant to demonstrate how he or she remedied the alleged
contravention of a heavy vehicle operating requirement since the defendant
is the party who took the remedial action.
The amendment in clause 257 to allow an authorised officer to issue formal
warnings is a beneficial provision. It allows warnings to be provided to
assist a person to comply with heavy vehicle operating requirements and to
avoid being prosecuted for breaches of those requirements.
Clauses 262 and 265 contain new court based orders - namely supervisory
intervention orders and compensation orders. These provisions take into
account rights and liberties of individuals by vesting the courts with
discretionary power to make these orders. It is appropriate that the
judiciary is the body to issue these orders.
A supervisory intervention order will, in many instances, impose some
additional obligations on those against whom they are made. However, the
main purpose of the order is to assist offenders to comply in future with
heavy vehicle legislative requirements. The intended result of the order is
therefore to avoid further prosecution against a particular party and also to
improve the safety of all road users. These orders will only be made against
operators who have a history of committing serious heavy vehicle offences
where fines ordered against them have not had the desired deterrent effect.
It is a fundamental legislative principle that the level of a penalty should be
proportionate to the seriousness of the offence. The Bill incorporates two
new offences. The penalty for contravening an improvement notice is
$8,000 (80 penalty units) and the penalty for contravening a requirement of
a supervisory intervention order is $10,000 (100 penalty units). The
penalties are proportionate to the offences and are consistent with penalties
set for similar offences in the Act.
The penalty for a contravention of a supervisory intervention order is
identical to the penalty in the national model legislation. However, the
penalty for the contravention of an improvement notice is less than the
penalty recommended in the national legislation. The national legislation
penalty for the breach of an improvement notice is identical to the penalty
for the contravention of a supervisory intervention order. The Bill adopts a
lower penalty for a contravention of an improvement notice as this offence
is not as serious as the contravention of a supervisory intervention order
which is made by a court.
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Transport and Other Legislation Amendment Bill (No. 2) 2010
Transport Infrastructure Act 1994
Declaration of State toll road corridor land and local government tollway
corridor land
The amendments relating to the declaration of land as State toll road
corridor land or as local government tollway corridor land raise the
fundamental legislative principle set out in section 4(3)(i) of the Legislative
Standards Act 1992. This section requires that legislation which provides
for the compulsory acquisition of property must be done only with fair
compensation.
The amendments to section 84A of the Transport Infrastructure Act 1994
expand the category of land that may be declared by the Minister to be
State toll road corridor land. The effect of a declaration made under this
section is provided for in new subsection (3B) of section 84C. It provides
that the land is free from any interest or obligation not stated by the
Minister to be continued. Similarly, the effect of a declaration of land under
section 105H as local government tollway corridor land is that the land is
free from any interest or obligation not stated by the Minister to be
continued (see new section 105J(3A)). However, the amendments
adequately take into account the rights and liberties of individuals in the
ways set out below.
Firstly, the declaration under section 84A may only apply to non-freehold
land on or within which road transport infrastructure or rail transport
infrastructure is situated. Secondly, section 84A expressly allows the
Minister to declare stated interests to continue in relation to the State toll
road corridor land (see new subsection (6) of section 84A). Similarly
section 105H(9) allows the Minister to declare stated interests to continue
in relation to the local government tollway corridor land. Finally, a person
whose interest in the land has not been continued in the Minister's
declaration will be entitled to claim compensation under the Acquisition of
Land Act 1967 (see new section 84D in relation to State toll road corridor
land and new section 105JA in relation to local government tollway
corridor land). The principles incorporated into the Acquisition of Land Act
1967 contain a just way of determining eligibility for, and assessment of,
compensation and it is appropriate that these principles apply in relation to
the determination of compensation that is required to be paid in relation to
declarations of land as State toll road corridor land or local government
tollway corridor land.
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Transport and Other Legislation Amendment Bill (No. 2) 2010
The amendments also provide that no compensation is to be payable in
relation to an interest under a services contract for the land. An example of
a services contract is a contract for mowing or cleaning. This is to maintain
consistency with the compensation principles that are provided for in the
Acquisition of Land Act 1967. Specifically, section 12(5C) of that Act
excludes a right to compensation in relation to an interest under a services
contract for the land.
Proposed subsections 84A(6) and 105H(9) also raise fundamental
legislative principle considerations on the basis that they confer a
discretionary power on the Minister to decide which interests are to
continue. However, it is appropriate that the Minister be granted the power
to consider the relevant interests on a case-by-case basis. This will allow
the Minister to decide which interests are appropriate to be continued, such
as those that are consistent with the ongoing operation of the land as State
toll road corridor land or local government tollway corridor land. Examples
of interests that are likely to be continued are easements and access rights
which do not affect the safety or operational integrity of the land as State
toll road corridor land or as local government tollway corridor land,
respectively. As mentioned above, those persons with an interest that is
not continued in the Minister's declaration will be entitled to claim
compensation under the Acquisition of Land Act 1967.
Consultation
Government
Consultation has been undertaken with the Department of the Premier and
Cabinet, Queensland Treasury, the Department of Infrastructure and
Planning, the Department of Employment, Economic Development and
Innovation, the Department of Justice and the Attorney-General, the
Department of Environment and Resource Management including the
Office of Climate Change and the Queensland Police Service. The
Brisbane City Council was also consulted in relation to the amendments
proposed to the local government tollway corridor provisions in the
Transport Infrastructure Act 1994. The Gold Coast City Council was also
consulted in relation to amendments to the Transport Infrastructure Act
1994 to support the Gold Coast Rapid Transit project. The Gold Coast
Rapid Transit project was subject to extensive public consultation during
the preparation of the project's Concept Design and Impact Management
Plan.
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Transport and Other Legislation Amendment Bill (No. 2) 2010
Industry
With regard to the limousine amendment, industry stakeholders have been
consulted on the proposed amendment to allow paper records to be kept of
limousine bookings and are supportive of the change. A commitment has
been made to amend the provisions prior to their scheduled commencement
in October 2010.
TransLink has been consulted on the proposed amendment to report on
service contracts entered into within the TransLink area, and the extended
timeframe of three months to submit annual reports.
Port and Rail amendments
Targeted consultation has been undertaken with the key departments and
local governments (namely, the Department of Transport and Main Roads,
Maritime Safety Queensland, the Department of Infrastructure and
Planning, the Department of Environment Resource Management,
Brisbane City Council, Moreton Bay Regional Council, QR Limited and
POBC). Other departments and agencies have also been consulted in
relation to specific consequential amendments to other legislation.
Notes on Clauses
Chapter 1 Preliminary
Short Title
Clause 1 sets out the short title of the Act as the Transport and Other
Legislation Amendment Act (No. 2) 2010.
Commencement
Clause 2 provides that:
(1) Subject to paragraphs (2), (3) and (4) below, the provisions of the Act
commence on assent.
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Transport and Other Legislation Amendment Bill (No. 2) 2010
(2) The following provisions commence on a day to be fixed by
proclamation--
(a) chapter 4, part 1;
(b) chapter 4, part 5;
(c) section 230;
(d) chapter 4, part 9;
(e) section 277.
(3) Section 180(2) commences on the later of the following--
(a) the day the Transport (Rail Safety) Act 2010, section 350
commences;
(b) the date of assent.
(4) The following provisions in chapter 2 commence on the occurrence of
a specified event (eg. the cessation of QR Limited as a GOC)--
(a) Section 24;
(b) Part 8, other than section 33;
(c) Section 69;
(d) Section 74, other than to the extent it inserts new chapter 13, part
2;
(e) Section 77;
(f) Section 84;
(g) Section 125, to the extent it inserts new section 566;
(h) Part 19;
(i) Part 25;
(j) Part 26.
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Transport and Other Legislation Amendment Bill (No. 2) 2010
Chapter 2 Amendments relating to rail
and Port of Brisbane
Part 1 Anti-Discrimination Act 1991
Clause 3 provides that this part amends the Anti-Discrimination Act 1991.
Clause 4 amends section 106A(1). This section currently provides that the
Anti-Discrimination Act 1991 has no effect on the imposition of a
compulsory retirement age on the chief executive officer or an employee of
QR Limited. This amendment removes this exemption.
Part 2 Amendment of Coastal
Protection and Management Act
1995
Clause 5 provides that this part amends the Coastal Protection and
Management Act 1995.
Clause 6 amends the definition of `artificial waterway' to provide that a
navigation channel, harbour swing basin, berth pocket, berth approach or
departure path used for accessing port infrastructure constructed in the area
of a port operator's port is not an artificial waterway.
Clauses 7 - 13 amend the relevant sections of chapter 2, part 2 to require the
Minister to deal with the port operator in the preparation and review of
coastal management plans.
Clause 14 amends section 57 to require the chief executive to send details
of a proposal to declare, change or abolish a coastal management district to
a port operator, in the same way as for a port authority.
Clause 15 amends section 75(3)(e) to include the views of a port operator
as an example of a relevant matter the chief executive may consider when
deciding applications for an allocation of quarry material, in the same way
as for a port authority.
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Transport and Other Legislation Amendment Bill (No. 2) 2010
Clause 16 amends the example of a `person' under section 89 to include a
port operator, in the same way as for a port authority.
Clause 17 inserts a definition of `port operator' into the schedule.
Part 3 Amendment of Coastal
Protection and Management
Regulation 2003
Clause 18 provides that this part amends the Coastal Protection and
Management Regulation 2003.
Clause 19 amends section 9. This amendment provides that no royalty is
payable by a port operator for quarry material removed for the purposes
mentioned in that section.
Clause 20 amends section 15(1)(a) to provide that tidal works by a port
operator is not a prescribed tidal work, with the consequence is that tidal
works by the port operator remain regulated at State level, rather than local
government level, consistent with the State's interest in the port.
Clause 21 inserts a definition of `Brisbane core port land' into schedule 5.
Part 4 Amendment of Criminal Code
Clause 22 provides that this part amends the Criminal Code.
Clause 23 inserts a definition of a `rail GOC' and amends the definition of
`persons employed in the public service' in section 1 so that it includes rail
GOC employees.
Clause 24 inserts a new chapter 87.
New section 724 provides that the chief executive officer of QR Limited
and persons employed by QR Limited or its related bodies corporate are
taken to be employees in the public service during the interim period for
the purposes of the application to them of the Criminal Code.
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Transport and Other Legislation Amendment Bill (No. 2) 2010
Part 5 Amendment of Electrical Safety
Act 2002
Clause 25 provides that this part amends the Electrical Safety Act 2002.
Clause 26 inserts a definition of `railway manager' in schedule 2. It also
amends the definition of `electricity entity' by extending it to railway
managers exempted under section 20Q of the Electricity Act 1994 (QR
Network Pty Ltd, the QR Limited subsidiary that currently manages the
QR rail track, is such an entity). This amendment maintains the status quo
in relation to the QR National group and Queensland Rail group.
Part 6 Amendment of Electrical Safety
Regulation 2002
Clause 27 provides that this part amends the Electrical Safety Regulation
2002.
Clause 28 amends section 165(1) to insert a new transitional provision to
accommodate the amended definition of `electricity entity' under the
Electrical Safety Act 2002. It also deletes section 165(2) which is an
expired transitional provision.
Part 7 Amendment of Electricity Act
1994
Clause 29 provides that this part amends the Electricity Act 1994.
Clause 30 amends section 20Q. This amendment replaces references to QR
Limited and QR Network Pty Ltd with more generic terms to cover rail
GOCs, railway managers and their related bodies corporate. This
amendment also inserts a provision to exempt the supply and sale of
electricity between a rail GOC and a relevant railway manager. This is
necessary because, while Queensland Rail and the QR National group will
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Transport and Other Legislation Amendment Bill (No. 2) 2010
be structurally separated, the integrated nature of the rail network means
that they will be selling and supplying to each other electricity that is used
by them for the purposes of operating their respective parts of the network.
Part 8 Amendment of Environmental
Protection Regulation 2008
Clause 31 provides that this part amends the Environmental Protection
Regulation 2008.
Clause 32 inserts a new chapter 10 after chapter 9.
New section 160 provides the definitions for chapter 10.
New section 161 provides that a member of the QR National group is taken
to be an instrumentality or agency of the State for the purposes of section
106 during the interim period. This section maintains the status quo until
QR National is floated.
New section 162 provides that the chief executive of the Department of
Environment and Resources Management may continue to investigate and
exercise enforcement powers against a member of the QR National group
in respect of investigations and enforcement actions on foot prior to the
float of QR National where they relate to environmental nuisances, noise
standard contraventions and water contamination as if that group member
continues to be an instrumentality or agency of the State. Under this
section, the chief executive may also continue to assess and determine an
application for approval of an environmentally relevant activity made by a
member of the QR National group if the application was properly made on
or before the float of QR National.
Clause 33 amends the definition of `port' in schedule 2, section 50 to refer
to the port area.
Clause 34 inserts new definitions relating to chapter 10 in schedule 12.
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Transport and Other Legislation Amendment Bill (No. 2) 2010
Part 9 Amendment of Explosive
Regulation 2003
Clause 35 provides that this part amends the Explosives Regulation 2003.
Clauses 36 - 40 amend the relevant sections of part 5, division 4 to ensure
that these provisions apply to a port operator.
Clause 41 inserts a definition of `port operator' into schedule 7.
Part 10 Amendment of Judicial Review
1991
Clause 42 provides that this part amends the Judicial Review Act 1991.
Clause 43 inserts new section 18C. New section 18C provides that the
Judicial Review Act 1991 does not apply to a decision of the State or a
relevant entity (the port lessor, a port lessee or a port manager) made in
carrying out its functions or powers under part 3A (Liability for, and
recovery of, charges and expenses), chapter 8 of the Transport
Infrastructure Act 1994.
Clause 44 amends schedule 6 to replace the reference to QR Limited with a
reference to a rail GOC.
Part 11 Amendment of Land Act 1994
Clause 45 provides that this part amends the Land Act 1994.
Clause 46 ensures that a port lessor, port lessee and port manager cannot
deal with freehold land that has become inundated unless the relevant
entity is the owner of that land.
Clause 47 allows the Governor in Council to approve that land owned,
vested in, leased or managed by a port lessor and surrendered to the State
by a port lessor be reallocated or dedicated to the port lessor without
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Transport and Other Legislation Amendment Bill (No. 2) 2010
competition. The section also provides that where land is reallocated as a
lease under this section, the Governor in Council may also set the rent
(which may be nil) for the lease of that land. Where the rent is prescribed
by the Governor in Council under this provision, section 182, 183, 183A,
183AA, 184 and chapter 5, part 1, division 2 do not apply to that lease.
Clause 48 inserts the definitions of `port lessee', `port lessor' and `port
manager' and also amends the definition of sublease to include a
sub-sublease for trust land and any derivative under a lease of land other
than trust land.
Part 12 Amendment of Mineral
Resources Act 1989
Clause 49 provides that this part amends the Mineral Resources Act 1989.
Clause 50 inserts a definition of `rail GOC' and amends the definition of
`reserve' in the schedule to include land vested in a rail GOC or a
subsidiary of a rail GOC.
Part 13 Amendment of Nature
Conservation (Wildlife
Management) Regulation 2006
Clause 51 provides that this part amends the Nature Conservation (Wildlife
Management) Regulation 2006.
Clause 52 amends section 40. This amendment replaces specific references
to QR Limited with references to a `rail GOC' to permit employees and
officers of a rail GOC to take, move and deal with dead protected animals
on a railway without a wildlife authority or permit. This amendment also
modifies the definition of `public land' to include a railway managed by a
rail GOC.
Clause 53 inserts new section 40A after section 40. New section 40A
permits a railway manager to take and move dead protected animals from a
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Transport and Other Legislation Amendment Bill (No. 2) 2010
railway managed by the railway manager without a wildlife authority or
wildlife permit. This exemption is subject to conditions imposed by the
chief executive of the Department of Environment and Resources
Management.
Clause 54 inserts a definition of `rail GOC'.
Part 14 Amendment of Right to
Information Act 2009
Clause 55 provides that this part amends the Right to Information Act 2009.
Clause 56 inserts new chapter 8 after chapter 7.
New section 207 provides the definitions for chapter 8.
New sections 208 and 209 operate to ensure that the Right to Information
Act 2009 continues to apply to members of the QR National group, subject
to the existing exemptions, until those companies cease to be government
owned.
Clause 57 has the effect that a rail GOC will be exempt from the Right to
Information Act 2009 in respect of its freight or insurance operations,
except so far as they relate to community service obligations. This section
will apply to Queensland Rail, as a rail GOC and the owner of the
passenger business and regional freight network. This amendment is
consistent with the exemption currently provided to QR Limited.
Clause 58 deletes the definition of `QR freight operations' and inserts new
definitions for the purposes of chapter 8.
Part 15 Amendment of South Bank
Corporation Act 1989
Clause 59 provides that this part amends the South Bank Corporation Act
1989.
Clause 60 inserts a definition of `rail GOC' into section 3.
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Transport and Other Legislation Amendment Bill (No. 2) 2010
Clause 61 replaces the reference to QR Limited in section 17(4) with a
reference to a rail GOC or a subsidiary of a rail GOC.
Clause 62 amends section 38 by replacing references to QR Limited with
references to a rail GOC or a subsidiary of a rail GOC.
The effect of these clauses is to capture Queensland Rail as the new owner
of the passenger business, which operates in the Corporation's area.
Part 16 Amendment of Sustainable
Planning Act 2009
Clause 63 states that this part amends the Sustainable Planning Act 2009.
Clause 64 provides for section 347(2)(a)(ii) to extend to ports and airports
in the same way as for railways, notwithstanding that they are no longer
State-controlled under section 347(2)(a)(i).
Clause 65 gives the Planning and Environment Court jurisdiction for the
construction of the Brisbane port LUP, in the same way as for planning
schemes.
Part 17 Amendment of Transport
Infrastructure Act 1994 relating
to rail
Clause 66 provides that this part amends the Transport Infrastructure Act
1994.
Clause 67 omits section 2(2)(d)(vi) which provides that an objective of the
Transport Infrastructure Act 1994 is to provide a framework under which
QR Limited may operate. This provision is redundant as QR Limited (once
floated) will not operate within this framework because it will not be a
GOC.
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Transport and Other Legislation Amendment Bill (No. 2) 2010
Clause 68 amends section 20 by replacing references to QR Limited with a
rail GOC. This reflects the application of this provision to GOC entities
only.
Clause 69 inserts new section 244A. New section 244A provides QR
National and Queensland Rail with a statutory right to keep their existing
rail infrastructure on land that they do not own or lease and permits them to
enter upon that land for the purposes of managing their respective railway
networks. This statutory right only applies to rail infrastructure that (prior
to the commencement date) augments, duplicates or replaces pre-1995 rail
infrastructure that has the benefit of a similar right under existing section
244.
Clause 70 deletes section 246, which requires the chief executive to
perform functions and exercise powers of a local government pursuant to
the Building Act 1975 and Sustainable Planning Act 2009 for works carried
out on railway land that relates to rail transport infrastructure. As railway
land on which rail transport infrastructure is located is typically designated
for `community infrastructure' under the Sustainable Planning Act 2009,
and given the exemptions that apply under that Act in relation to rail track
infrastructure, as well as QR Limited's existing practices for complying
with these Acts, section 246 is redundant.
Clause 71 amends section 248. The amendment to section 248 declares a
rail GOC and a wholly owned subsidiary of a rail GOC not to be common
carriers. This amendment maintains the status quo for Queensland Rail.
Clause 72 replaces references to QR Limited in section 260 with references
to the relevant railway manager and defines the term `relevant railway
manager'. This not only maintains the status quo for the QR National
group, but also ensures that other railway managers (whether privately or
publicly owned) are accorded the same treatment.
Clause 73 deletes section 260A, as the above clause has the effect of
amalgamating sections 260 and 260A.
Clause 74 replaces chapter 13. The functions of Queensland Rail, as a rail
GOC, will be dealt with in its constitution and not prescribed by statute.
New section 438 contains the definitions for new chapter 13.
New section 438A permits the Treasurer to state by gazette notice the entity
that is (or is to be) the ultimate holding company of QR Limited. This will
be QR National Limited. Such a declaration can only be made within six
months of the commencement of the section.
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Transport and Other Legislation Amendment Bill (No. 2) 2010
New section 438B defines when a person has a `relevant interest' in shares,
and the manner in which the `voting power' of a person is to be determined.
In each case these concepts are framed by reference to the Corporations
Act 2001 (Cth). The section also provides that the Treasurer may, by
gazette notice, effectively exempt certain relevant interests from the
shareholding restriction. The purpose of this provision is to allow the State
to retain a 25-40% shareholding in QR National.
New section 438C provides that a person has a prohibited shareholding
interest if the person has a voting power of more than 15% in QR National,
and prohibits a person from having a prohibited shareholding interest.
However, QR National and a subsidiary of QR National are not subject to
this shareholding restriction. To assist in the enforcement of the
shareholding restriction, the section obliges QR National to take all
reasonable steps to ensure that no person obtains or maintains a prohibited
shareholding interest.
New section 438D allows the Minister, or a director or secretary of QR
National, to require, by notice, a person to provide information for the
purposes of determining whether or not a person has a prohibited
shareholding interest. The person may also be required to verify, by
statutory declaration, the accuracy of that information. These powers are
designed to assist in the enforcement of the shareholding restriction.
New section 438E allows the Minister or QR National to seek remedial
orders from the Supreme Court to procure compliance with new section
438C. The Supreme Court may make such orders against a person who has
or is reasonably suspected to have a prohibited shareholding interest. This
section provides the State and QR National with an avenue for recourse for
breach of new section 438C.
New section 438F requires that QR National:
· holds at least half of its board meetings in each year in Queensland;
· ensures that the central management and control of QR National is
ordinarily exercised in Queensland, including through maintaining
offices of the managing director, chief executive officer, chief
financial officer and company secretary in Queensland;
· ensures that its corporate services are provided through offices in
Queensland to the extent that the services primarily relate to its
operations in Queensland;
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Transport and Other Legislation Amendment Bill (No. 2) 2010
· ensures that its annual general meeting is held in Queensland at least
every 2 years; and
· maintains a substantial operational presence in Queensland.
The manner of enforcement of a breach or proposed breach of this business
location obligation is by application to the Supreme Court, by the Minister
responsible for the provision or the Attorney-General, for an injunction
restraining the breach and/or an order requiring rectification. In addition,
the State may also seek punitive damages in relation to any wilful breach of
the provision.
Clause 75 amends the definition of `transport GOC' in section 486 to
include a rail GOC, a GOC port authority and another GOC on which
functions are conferred under the Transport Infrastructure Act 1994.
Clause 76 repeals section 550. Section 550 provides for the application of
section 260A in relation to the transfer of sublease 701720343. Given the
amendment of section 260 and deletion of section 260A, section 550 is no
longer necessary.
Clause 77 inserts new chapter 19. Chapter 19 contains certain transitional
provisions that relate to QR National and its related bodies corporate
(including QR Limited).
New section 559 sets out the definitions for chapter 19.
New section 560 provides that the Judicial Review Act 1991 does not apply
to a decision of a member of the QR National group where that decision is
made during the period from the commencement of chapter 19 until QR
National ceases to be government owned. This preserves the position of
QR Limited, as a GOC, in relation to the relevant parts of QR Limited's
business.
New section 561 provides that no member of the QR National group is a
common carrier in relation to contracts entered into by them before the
commencement of this section, unless the contract states otherwise.
Clause 78 inserts relevant definitions in schedule 6 including a definition of
`rail GOC'. A `rail GOC' is defined to mean a GOC the principal business
of which is to manage a railway and/or operate rolling stock on a railway.
Queensland Rail will be a rail GOC. QR Limited will also be a rail GOC
for so long as it is a GOC.
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Transport and Other Legislation Amendment Bill (No. 2) 2010
Part 18 Amendment of Transport
Infrastructure Act 1994 relating
to Port of Brisbane
Clause 79 provides that this part amends the Transport Infrastructure Act
1994.
Clause 80 amends section 267 which provides the definitions for chapter 8.
Clause 81 inserts new section 267AA. New section 267AA defines `port
area' of a port authority and a port entity (other than a port authority). A
regulation may include or exclude an area from the port area of a port
entity. The new provision also allows the modification of the port limits of
the Port of Brisbane by regulation.
Clause 82 amends section 267A which defines port facilities. The amended
definition of port facilities will include port facilities of a port entity other
than a port authority (such as a port lessor and port lessee).
Clause 83 restricts the power under section 274 to define or amend port
limits by regulation to a port of a port authority. Section 274 is contained in
a part 2, chapter 8 of the Transport Infrastructure Act 1994 which provides
for the establishment, declaration and abolition of port authorities. For this
reason, it is appropriate that the power under section 274 be restricted to a
port of a port authority.
Clause 84 removes references to the POBC in section 275. As POBC will
cease to be a port authority under the Transport Infrastructure Act 1994, its
functions should not be prescribed by the Transport Infrastructure Act
1994.
Clause 85 requires the port lessor to exercise its powers subject to the
powers of the general manager and harbour master under the Transport
Operations (Marine Safety) Act 1994.
Clause 86 inserts new sections 279A and 279B. New section 279A
provides that the port lessor, a port lessee or a port manager (relevant
entity) of the Port of Brisbane may impose charges in relation to port
services and port facilities. Port charges must be published on the relevant
entity's website and on signage within the port area. The provision also
provides that charges are subject to any relevant port agreement with the
State or any agreement with port users. However, a port charge cannot be
imposed on a port user exempted by a port agreement or regulation.
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Transport and Other Legislation Amendment Bill (No. 2) 2010
New section 279B permits the State to enter into an agreement (port
agreement) with a relevant entity about port charges in relation to port
services and port facilities. A port agreement may provide for exemptions
from port charges but this does not limit the relevant entity's power to
otherwise exempt a person from port charges. A port agreement may also
impose obligations or conditions in relation to the provision of port
services or the exercise of powers by the relevant entity. A port agreement
and each amendment to a port agreement must be tabled in the Legislative
Assembly after it is entered into.
Clauses 87 - 90 amend sections 281C - 281F to apply to a port lessor, port
lessee or port manager in relation to enforcement of port charges.
Clause 91 permits a port lessor to control the activities or conduct within its
port area by displaying or publishing a port notice if the port operator
reasonably considers the activities or conduct may affect port operations,
cause damage to port land or cause damage to the environment.
Clause 92 inserts new section 282AA. Under new section 282AA, the port
lessor may display or publish port notices requiring the production of
information relevant to the provision of port services, the calculation of
port charges, the provision, use or preservation of port facilities, the
operation, safety or security or efficiency of the port and information
requested by a Commonwealth or State entity.
Clauses 93 - 100, 105 and 106 amend sections 282A - 282I, 282Q and
282T to apply to a port lessor. These provisions regulate the port lessor's
power to control activities and conduct within its port area by port notice,
moving contravening property and/or giving verbal directions to a person.
Clauses 101 amends section 282K to permit a port lessor to appoint a
person as an authorised officer for chapter 8 of the Transport Infrastructure
Act 1994. The port lessor must be satisfied that the person is qualified for
the appointment.
Clauses 102 - 104 amend sections 282L, 282M and 282P. These
amendments deal with the imposition of conditions to limit an authorised
officer's powers under the Transport Infrastructure Act 1994 and the issue
and surrender of authorised officers' identity cards.
Clauses 107 - 112 amends the relevant sections of division 5, part 3B,
chapter 8 (section 283-283H). These amendments provide that an
authorised officer of a port lessor has the requisite powers to enforce port
notices including the power to inspect a conveyance, to require the
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Transport and Other Legislation Amendment Bill (No. 2) 2010
production of documents and to require the name and address of a person
found committing an offence or reasonably suspected of having committed
an offence. The amendments provide for offences including the obstruction
of an authorised officer in the exercise of powers under part 3B, public
nuisance and interference with a port notice.
Clause 113 inserts new chapter 8, part 3C.
New section 283I sets out the definitions for this part.
New section 283J provides that the Treasurer may, by gazette notice,
declare some land to be `Brisbane core port land' and other land to be
`balance port land'. This will be a division of the Port of Brisbane
Corporation's landholdings, primarily for planning administration
purposes.
New section 283K defines `Brisbane core port land'. Initially, a gazette
notice will declare `Brisbane core port land'. Afterwards, additional
Brisbane core port land may be included in new or amended Brisbane port
LUPs.
New section 283L defines `balance port land' as the land which the
Treasurer has declared to be balance port land by gazette notice.
New section 283M provides that the Sustainable Planning Act 2009
applies, except to the extent of any inconsistency with this part. In
particular, this part significantly increases the referral agency jurisdictions
applicable to Brisbane core port land compared with strategic port land, but
makes a series of adaptations tailored to the particular circumstances and
tenure arrangements of the Port of Brisbane. Accordingly, this part
codifies the applicable referral agency jurisdictions for Brisbane core port
land.
New section 283N provides that Brisbane core port land is not subject to a
local planning instrument, preserving the existing position otherwise
applicable to strategic port land.
New section 283O confirms that when land becomes `balance port land' it
ceases to be strategic port land.
New section 283P authorises the Treasurer, by gazette notice, to amend
Brisbane City Plan and the Redcliffe Planning Scheme (administered by
Moreton Bay Regional Council) to deal with the balance port land. The
context is that Scarborough boat harbour is located within the local
government area of Moreton Bay Regional Council, while other balance
port land is in Brisbane. Subsections 2-4 expressly enable amendments to
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Transport and Other Legislation Amendment Bill (No. 2) 2010
Brisbane City Plan to extend to lots located beyond the local government
boundaries of the City of Brisbane, which are within the Brisbane River.
The planning scheme will have effect for those lots and Brisbane City
Council will be the assessment manager.
New section 283Q authorises the Treasurer to gazette and notify the initial
LUP for the Brisbane core port land, known as the `first Brisbane port
LUP'. This LUP will be based on existing detailed precinct planning
included in the LUP approved in 2007 by the Transport Minister under the
Transport Infrastructure Act 1994 which was the subject of public
consultation at that time. However, the `first Brisbane port LUP' will need
to have appropriate modifications to satisfy the content requirements of this
part. Upon gazettal, the Brisbane core port land ceases to be strategic port
land.
New section 283R declares that the first Brisbane port LUP has effect for
the Brisbane core port land.
New section 283S sets out the minimum content requirements for Brisbane
port LUPs and also some examples of additional contents which may be
included.
New section 283T provides for a Brisbane port LUP to set out various
levels of assessment for different types of development within each
precinct of the Brisbane core port land. In addition to the normal types of
assessment available under planning schemes, there are two tailored items
for Brisbane core port land: `port prohibited development' and
`inconsistent or consistent development'. There is a scheduled list of `port
prohibited development' which is prohibited throughout the Brisbane core
port land and in addition the Brisbane port LUP may identify further `port
prohibited development' for individual precincts, for example, buffer or
nature conservation precincts. LUPs for strategic port land may identify
consistent and inconsistent development and this approach is continued for
the Brisbane port LUP with the modification that the Brisbane port LUP
may additionally identify the reasons for an inconsistency and if the
identified inconsistency is `transport reasons' (a defined term) then the
concurrence of the Transport Minister is required. Material change of use
for a list of `core port infrastructure' cannot trigger a higher level of
assessment than exempt or self assessable development under the Brisbane
port LUP, provided that it is located within the appropriate precincts and is
consistent with the requirements for the precinct. Material change of use
for a list of `port related development' cannot trigger a higher level of
assessment than code assessment, provided that it is located within the
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Transport and Other Legislation Amendment Bill (No. 2) 2010
appropriate precincts and is consistent with the requirements for the
precinct. This does not prevent these types of development from
potentially requiring other approvals, for example, environmentally
relevant activities, tidal work or building work.
New section 283U requires review of the Brisbane port LUP at least every
10 years, including assessment of the achievement of the strategic
outcomes identified in the plan. This is consistent with the requirement for
planning schemes under the Sustainable Planning Act 2009.
New section 283V sets out the three options available to a port operator
upon a review of a Brisbane port LUP.
New section 283W sets out the minimum requirements for a report to the
transport Minister and planning Minister if the port operator decides upon a
review that no action is required
New section 283X requires the port operator to prepare a `priority
infrastructure interface plan' to include in the Brisbane port LUP, after
Brisbane City Council has introduced a priority infrastructure plan under
the Sustainable Planning Act 2009. The interface plan is required to
describe how development that is consistent with the Brisbane port LUP is
intended to coordinate with the local government's plan in relation to the
particular types of local government infrastructure which are relevant to
Brisbane core port land.
New section 283Y provides for a statement of proposal process similar to
the process applicable to amendments or replacements of LUPs for
strategic port land, except that this will not be required either to remove
land from a LUP, or for a defined list of `minor amendments (LUP)'.
New section 283Z provides one of the available options to include
additional land in a Brisbane port LUP, which is to apply for amendment
through the normal process, if the port lessee or port lessor already holds a
registered interest and where the planning and transport Ministers are both
satisfied that the land is or may be used for core port infrastructure, port
related development or buffer purposes.
New section 283ZA provides for preparation of a draft plan for the
amendment or replacement of a LUP, similar to the process for LUPs for
strategic port land.
New section 293ZB provides for a consultation process similar to the
process for LUPs for strategic port land, except that the requirements for a
`properly made submission' are defined, similar to the corresponding
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Transport and Other Legislation Amendment Bill (No. 2) 2010
requirements in relation to planning schemes under the Sustainable
Planning Act 2009.
New section 283ZC requires the planning and transport Ministers to
consider whether or not State interests would be adversely affected and to
consider all properly made submissions.
New section 283ZD provides for the planning and transport Ministers to
require amendments to a draft plan, consistently with the process for LUPs
for strategic port land.
New section 283ZE provides criteria for the planning and transport
Ministers' joint consideration of the draft amendment or replacement LUP,
reflecting both the consultation process and content requirements. If the
Ministers are satisfied that Brisbane City Council has raised a substantial
objection which has not been addressed, the Ministers must refer the draft
plan and the substantial objection to the Governor in Council for
consideration.
New section 283ZF requires the port operator to ensure that a current
version of the Brisbane port LUP is published on its website.
New section 283ZG enables the planning and transport Ministers to
recover their reasonable administrative costs of assessing a draft plan from
the port operator.
New section 283ZH provides for the local government to be notified of any
amended or replacement plan.
New section 283ZI enables the local government's planning scheme to be
updated accordingly, similar to the recording of mining tenements on
planning schemes under the Mineral Resources Act 1989.
New section 283ZJ enables the planning and transport Ministers jointly to
give notice to the port operator in the event of either a required minor
amendment or a non-compliance with a requirement under this part to
make or amend a LUP and requires the port operator to comply with a
direction.
New section 283ZK requires the port operator to notify the Brisbane City
Council and the planning chief executive when new land is added to the
Brisbane core port land, enabling planning scheme notations to be kept
updated. Subsection 4 provides one of the available options for including
new land in the Brisbane port LUP, which is that, even if the port lessee or
port lessor has not yet acquired a registered interest in the new land at the
time that a new or amended Brisbane port LUP is subject to the normal
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Transport and Other Legislation Amendment Bill (No. 2) 2010
public consultation and assessment process, it can be foreshadowed in the
LUP, included in the precinct plan mapping and a table of assessment can
be planned including proposed development rights for that land. If this
detailed level of planning has already been through the consultation and
assessment process prior to a registered interest being acquired, then upon
the registered interest being acquired, it immediately becomes Brisbane
core port land and the LUP has effect. Otherwise, under subsection 5, the
planning scheme continues to have effect until the LUP is amended under
section 283Z. The planning chief executive immediately becomes
responsible for administering development applications for that land under
subsection 6. The purpose of this section is to avoid any planning hiatus
when new land is added to Brisbane core port land.
New section 283ZL similarly requires the port operator to notify the
Brisbane City Council and the planning chief executive when land ceases
to be Brisbane core port land, enabling planning scheme notations to be
kept updated. If there is an underlying zoning already in place for the land,
then the planning scheme automatically has effect under the Sustainable
Planning Act 2009. However, if the land is unzoned, then the relevant
precinct of the Brisbane port LUP continues to apply to the land until the
planning scheme can be amended to include the land, despite any
requirement of the standard planning scheme provisions to the contrary.
Again, the purpose of this section is to avoid any planning hiatus if land is
unzoned at the time it ceases to be Brisbane core port land, which may
otherwise temporarily remove or reduce development rights.
New section 283ZM addresses reconfiguring a lot for Brisbane core port
land. The position for strategic port land is that reconfiguring a lot is
exempt development. On Brisbane core port land, the tenure structure is
such that the only type of reconfiguring a lot that needs to be considered
would be long-term sublease of land (or any derivation of a sublease). To
preserve the same flexibility for relocating subtenants of wharves and other
core port infrastructure as for other ports in Queensland, the exemption will
continue for Brisbane core port land, where the stated permitted purpose in
the sublease is any type of core port infrastructure, other transport
infrastructure or a combination of both. However, this section removes the
exemption in relation to leases for other permitted purposes, such as offices
or cafes, so as to ensure that these types of premises satisfy LUP
reconfiguration code standards such as adequate access. Taking into
account that the only type of reconfiguration available for these other
purposes on Brisbane core port land is by way of sublease (or a derivation
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Transport and Other Legislation Amendment Bill (No. 2) 2010
of a sublease), the purpose of this provision is to ensure that the assessment
process is quick and straightforward.
New section 283ZN prohibits applications from being made for port
prohibited development.
New section 283ZO codifies the requirements for code assessment of
development applications for port related development which are
consistent with the Brisbane port LUP and with all applicable codes. If an
application does not comply with all applicable codes, then the normal
rules for code assessment apply under the Sustainable Planning Act 2009.
New section 283ZP sets out the particular circumstances in which the
planning chief executive is the assessment manager for development
applications on (or partly within) Brisbane core port land. Note that, if
these circumstances do not apply, then the normal rules apply under the
Sustainable Planning Act 2009 for other assessment managers, for
example, private certifiers for building work applications.
New section 283ZQ introduces a new formal role for the Brisbane City
Council as advice agency upon any development application under the
Brisbane port LUP, in relation to any material impacts of the proposed
development on planning scheme land.
New section 283ZR continues the role of the transport Minister as
concurrence agency for development applications inconsistent with the
Brisbane port LUP, except that, in contrast with strategic port land, this will
only be for development which is identified in the LUP as inconsistent for
defined transport reasons. This is because, upon the adaptation of the LUP
to satisfy the content requirements under this part, many more applications
will potentially become technically inconsistent with new code
requirements which are unrelated to transport jurisdiction.
New section 283ZS sets out one adaptation to the list of referral agency
jurisdictions applicable to building work applications under schedule 7,
table 1 Sustainable Planning Regulation 2009. This adaptation is to
address the particular circumstances of the railway land on Brisbane core
port land. All other normal referral agency jurisdictions for building work
under the Sustainable Planning Regulation 2009 remain applicable.
New section 283ZT provides the transport chief executive with the normal
list of referral agency jurisdictions for material change of use and
operational work applications, which would otherwise be applicable on
planning scheme land. By way of background, for strategic port land,
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Transport and Other Legislation Amendment Bill (No. 2) 2010
some of these items do not apply at all, while others only apply to
inconsistent applications. On Brisbane core port land, the same items
apply whether or not the application is consistent with the Brisbane port
LUP. Only minor adaptations have been made from the Sustainable
Planning Regulation 2009 to address the particular circumstances of
Brisbane core port land, in particular, a definition to encapsulate the
different types of railway tenure which may be applicable to Brisbane core
port land.
New section 283ZU provides for the various normal concurrence agency
jurisdictions relating to the Environmental Protection Act 1994 to be made
applicable to Brisbane core port land, for material change of use
applications. For strategic port land, these only apply to inconsistent
applications. On Brisbane core port land, the same items apply whether or
not the application is consistent with the Brisbane port LUP. If a proposed
development does not require a material change of use application under
the Brisbane port LUP, the administering authority under the
Environmental Protection Act 1994 remains the assessment manager, if the
development is otherwise assessable for these purposes under the
Sustainable Planning Regulation 2009.
New section 283ZV provides if the local government registers any local
heritage places within the Brisbane core port land, this is of no effect while
the land remains Brisbane core port land. However, State heritage would
not be affected.
New section 283ZW provides for the various normal concurrence agency
jurisdictions relating to the Coastal Protection and Management Act 1995
to be made applicable to Brisbane core port land, if the application also
includes either material change of use or operational work under the
Brisbane port LUP. If a proposed development does not require a material
change of use or operational work application under the Brisbane port LUP,
then the chief executive administering the Coastal Protection and
Management Act 1995 is assessment manager if the development is
otherwise assessable for these purposes under the Sustainable Planning
Regulation 2009.
New section 283ZX provides for the remaining types of concurrence
agency jurisdictions adopted from the Sustainable Planning Regulation
2009. For strategic port land, some of these items do not apply at all, while
most others only apply to inconsistent application. On Brisbane core port
land, the same items apply whether or not the application is consistent with
the Brisbane port LUP.
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Transport and Other Legislation Amendment Bill (No. 2) 2010
New section 283ZY adapts the current respective jurisdictions of a port
authority and the chief executive administering the Transport Operations
(Marine Safety) Act 1994, for applications by any persons within the
Brisbane port limits below high water mark. Unlike the position for port
authorities elsewhere, it is not considered appropriate for a port operator to
be a concurrence agency, so the port operator will be an advice agency
only, with jurisdiction to protect the safety and operational integrity of the
port (for example, security). The chief executive administering the
Transport Operations (Marine Safety) Act 1994 will have concurrence
agency jurisdiction for the same area, but may not always have the benefit
of the detailed operational information known to the port operator, so for
safety and operational integrity purposes, it remains relevant for the port
operator to provide advice.
New section 283ZZ imposes additional restrictions on the types of
conditions that can be imposed upon development approvals for the
Brisbane core port land. It is intended to prevent contributions from being
calculated on the basis of notional yield rates for the Brisbane core port
land or any part of it as Brisbane core port land normally includes areas
such as buffer precincts and other minimally developed areas. A
contributions schedule, calculated as required by this section, is required to
be included in the Brisbane port LUP and will be used by the assessment
manager for working out conditions. This section does not affect any
conditions which may be imposed by concurrence agencies.
New section 283ZZA exempts the Brisbane core port land from local
government powers to acquire land for planning purposes. It also confirms
that a person is not entitled to claim compensation as a result of a change to
a LUP. There was not previously any provision stating that a person was
entitled to claim compensation in this event during the period that the land
was strategic port land.
New section 283ZZB enables planning and development certificates to be
obtained for any premises located within the Brisbane core port land,
similar to the position for land under planning schemes, but with necessary
and appropriate modifications.
New section 283ZZC prevents local government designation of Brisbane
core port land for community infrastructure, but does not restrict
Ministerial designation.
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Transport and Other Legislation Amendment Bill (No. 2) 2010
New section 283ZZD exempts the Brisbane core port land from master
plans by the local government, consistent with the administration of the
Brisbane core port land by the planning chief executive.
New section 283ZZE provides a procedure for the planning chief executive
to update the local government's records with copies of development
approvals and infrastructure agreements relating to the Brisbane core port
land. This will ensure that the local government is properly kept informed.
New section 283ZZF provides for the planning chief executive to delegate
relevant administrative functions to the local government. These functions
are defined to relate to ongoing administration and enforcement of existing
development approvals and the functions delegable to local government do
not include assessment of development applications.
New section 283ZZG protects existing development approvals for the
Brisbane core port land from any changes to LUPs.
New section 283ZZH protects existing development approvals for the
Brisbane core port land in the event that the relevant part of the land ceases
to be Brisbane core port land and a planning scheme becomes applicable to
the land. It provides the same protection for balance port land.
New section 283ZZI enables planning administration for existing
development approvals to be transferred if land ceases to be Brisbane core
port land.
New section 283ZZJ sets out administrative and procedural arrangements if
a development application is underway when land becomes Brisbane core
port land.
New section 283ZZK provides transitional administrative and procedural
arrangements if a development application is underway when land either
becomes balance port land or ceases to be Brisbane core port land.
New section 283ZZL provides definitions for division 6.
New section 283ZZM authorises the grant of Brisbane port land below and
above high-water mark, including reclaimed land, to the port lessor without
competition for nil purchase price, despite certain provisions of the Land
Act 1994. The section also allows perpetual and other leases granted under
this section to the port lessor to be included with another tenure held by the
port lessor.
New section 283ZZN exempts from Ministerial approval under the Land
Act 1994 specified dealings in leases and subleases of Port of Brisbane land
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Transport and Other Legislation Amendment Bill (No. 2) 2010
held under the Land Act 1994. The section also permits a port entity to
grant a licence to enter and use land under a lease or sublease it holds under
the Land Act 1994 subject to any conditions of the lease or sublease. A
grant of a licence under this section is also exempt from Ministerial
approval under the Land Act 1994.
New section 283ZZO provides that the area of a sublease of a port lease
may be increased or decreased.
New section 283ZZP allows the Minister to delegate a function or power
under division 6 to the chief executive or officers or employees of the
department that administers the Land Act 1994.
New section 283ZZQ applies the Land Act 1994 to a lease granted under
division 6 of the Transport Infrastructure Act 1994 as if it were granted
under the Land Act 1994. This section also authorises the chief executive of
the department administering the Land Act 1994 to record dealings under
division 6.
Clause 114 amends the heading of part 4, chapter 8.
Clauses 115 - 121 amend part 4B, chapter 8 to apply to a port operator.
These sections deal with abandoned property found at port facilities.
Clause 122 inserts new parts 4C to 4E in chapter 8 after part 4B.
New section 289O provides that for the purposes of the Land Tax Act 1915,
the port lessee of Brisbane core port land, or a lessee or sublessee of
strategic port land that is a subsidiary of POBC is the owner of the land and
not POBC or the port lessor as the case may be. Where land tax has accrued
to POBC but is unpaid at the time that a lease or sublease is granted by
POBC to its subsidiary, the POBC subsidiary is liable for the unpaid land
tax. Where there is unpaid land tax in respect of Brisbane core port land
when a lease or sublease of that land is terminated or expires, the entity that
was the port lessee is liable for the unpaid land tax.
New section 289P provides that for the purposes of the Local Government
Act 1993 and the Local Government Act 2009 about levying or payment of
rates, a lessee or sublessee of strategic port land is the owner of the land
and not POBC. The section also provides that the occupier of Brisbane core
port land under a lease or sublease from POBC or a port entity (other than a
port authority) is the owner of the land not POBC nor each port entity that
is not an occupier of the land. An entity must notify the commissioner of
the Taxation Administration Act 2001 if that entity becomes a lessee or
sublessee of strategic port land or a port lessee. Where rates in respect of
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Transport and Other Legislation Amendment Bill (No. 2) 2010
strategic port land have accrued to POBC but are unpaid at the time that a
lease or sublease of that land is granted by POBC to its subsidiary, the
subsidiary is liable for the unpaid rates not POBC. Where rates in relation
to Brisbane core port land are unpaid at the time when a lease or sublease
of that land from the port lessor to the port lessee is terminated or expires,
the entity that was the port lessee is liable for the unpaid rates not the port
lessor. The provision also provides that certain land is exempt from rates
(consistent with the exemptions applied to POBC as a port authority under
the rates equivalence regime).
New section 289Q provides that a port lessor, port lessee or port manager is
not liable for royalties or similar charges for the removal of extractive
material if the removal is for the specified purposes.
New section 289R sets out the definitions for part 4D.
New section 289S states that words which are defined in the Water Supply
(Safety and Reliability) Act 2008 and used in part 4D, have the same
meaning as in the Water Supply (Safety and Reliability) Act 2008.
New section 289T deems a port operator (other than a port lessor) to be a
water service provider and a sewerage service provider for the purposes of
the Water Supply (Safety and Reliability) Act 2008, and provides that if
there is a port operator, the port lessor is taken not to be supplying water or
sewerage services.
New section 289U requires an entity which has become the port operator to
provide to the regulator any information requested by the regulator for the
purposes of registration. The regulator must register the port operator as a
service provider. The section also makes it clear that an entity is a water
service provider or sewerage service provider from the day it becomes a
port operator regardless of registration under this section.
New section 289V declares that, for the purposes of the Water Supply
(Safety and Reliability) Act 2008, chapter 2, part 3, division 4 and part 6,
and sections 193, 330 and 331, the relevant distributor-retailer is taken to
be a sewerage service provider in respect of sewerage infrastructure located
on port land and the sewerage infrastructure on port land is part of local
government. The port lessor or port operator (as the case may be) must
give the relevant distributor-retailer information about the sewerage
infrastructure reasonably requested by the distributor-retailer relating to the
grant or administration of trade waste approvals. This legislative provision
will facilitate the relevant entity issuing trade waste approvals directly to
the tenants at the Port of Brisbane.
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Transport and Other Legislation Amendment Bill (No. 2) 2010
New section 289W provides that part 4D does not affect the ownership of
any infrastructure for supplying water or sewerage services.
New section 289X deems instruments purportedly issued as trade waste
approvals for the purposes of chapter 2, part 6 of the Water Supply (Safety
and Reliability) Act 2008 by Brisbane City Council to an occupant of
Brisbane port land before the commencement of this provision to be trade
waste approvals issued on the commencement of this section for the
purposes of the Water Supply (Safety and Reliability) Act 2008.
New section 289Y confers power on the Treasurer to declare an entity to be
the port lessor or port lessee of the Port of Brisbane.
New section 289Z confers power on the port lessor to delegate a function
under chapter 8, other than part 3A (Liability for, and recovery of, charges
and expenses), to a port lessee or port manager. It is a condition of a lease
of Brisbane core port land that any lawful directions made by the port
lessor in respect of the performance of any delegated functions must be
complied with. In addition, a regulation or the conditions of a delegation
may require the port lessee or port manager to establish a system of
monitoring, and receiving and dealing with complaints about the
performance of delegated functions.
New section 289ZA confers power on the port lessor to appoint a person as
port manager. In addition, a port lessee may appoint a person as port
manager with the written approval of the port lessor.
New section 289ZB deals with civil liability for an act or omission of an
employee of the port lessor or an authorised officer appointed by a delegate
of a port lessor. In particular, the port lessor is not civilly liable for acts or
omissions of an authorised officer only by reason of their appointment as
an authorised officer appointed by its delegate under the Transport
Infrastructure Act 1994. Rather, civil liability attaches to the entity which
exercised the power to appoint the authorised officer. For example, if the
port lessor's delegate appointed the authorised officer, the delegate is liable
for the authorised officer's actions or omissions.
New section 289ZC excludes a limited range of local laws for Brisbane
core port land and authorises the making of a regulation in the future
providing for the exclusion of further local laws. The local laws excluded
are those which are considered inconsistent with port functions and
controls, such as in relation to foreshore management and traffic control at
the port, or which are otherwise inconsistent with this Act.
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Transport and Other Legislation Amendment Bill (No. 2) 2010
New section 289ZD provides that local laws made after the
commencement of the Act do not apply to Brisbane core port land for 3
months. In this time, the port operator may apply to the Department
responsible for the administration of local laws for an exemption by
regulation from all or part of the new local law.
New section 289ZE provides that if there is no port lessee for the Port of
Brisbane, a thing required or permitted under chapter 8 may be done by the
port lessor.
Clause 123 amends section 292 to apply to a port entity. Under this
section, it is an offence to intentionally or recklessly cause damage to a port
entity's works or infrastructure. It is also an offence to evade payment of a
port operator's charges.
Clause 124 inserts new sections 477C - 477E. New section 477C permits a
relevant entity to grant a concurrent sublease in respect of a lease held
under the Land Act 1994 of port land or land relating to a declared project
(as defined by the Infrastructure Investment (Asset Restructuring and
Disposal) Act 2009). The Urban Land Development Authority may also
grant a concurrent sublease in respect of a trade lease of former port land it
holds that has been subleased to a person. A grant of a concurrent sublease
under this provision is not subject Ministerial approval under the Land Act
1994. The chief executive of the department that administers the Land Act
1994 may record a dealing effected under this section in the leasehold land
register.
New section 477D permits the Minister or the Treasurer to set the rent
(including rent of zero dollars) for a lease, licence or permit or class of
leases, licences or permits relating to a declared project (as defined under
the Infrastructure Investment (Asset Restructuring and Disposal) Act 2009)
or land used or required for the operation of the Port of Brisbane, Abbot
Point Coal Terminal or a railway leased from the State or a State body. The
section also provides that sections 182, 183, 183A, 183AA and 184, and
chapter 5, part 1, divisions 2 of the Land Act 1994 do not apply to a lease,
licence or permit or a class of leases, licences or permits for which rent is
set under this section.
New section 477E permits a relevant entity to grant a licence to enter and
use land under a lease it holds under the Land Act 1994 in relating to a
declared project (as defined under the Infrastructure Investment (Asset
Restructuring and Disposal) Act 2009). A grant of a licence under this
provision is not subject to Ministerial approval under the Land Act 1994.
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Transport and Other Legislation Amendment Bill (No. 2) 2010
Clause 125 inserts new chapter 20 after chapter 19 dealing with transitional
arrangements.
New section 562 sets out the definitions for chapter 20.
New section 563 provides for the alteration of the port area of the Port of
Brisbane by regulation. This is a transitional provision and a regulation
under this section can only be made for the interim period.
New section 564 provides that during the interim period, references in
chapter 8 to the port area include the area of a trade lease.
New section 565 provides that during the interim period, references in
chapter 8 other than sections 267AA and 267A to a port entity in relation to
the Port of Brisbane are taken to be a reference to the port authority for the
Port of Brisbane.
New section 566 provides that during the interim period, a subsidiary of
POBC is taken to be a relevant entity for chapter 8, part 3A and section
267, definition `charge'.
New section 567 provides that during the interim period, references in
chapter 8 part 3A and in the definition of `charge' in section 267 to a port
authority includes a reference to a subsidiary of POBC. In addition,
references to the port, port area and port facilities of POBC include
references the port, port area, port facilities and an authorised officer of a
subsidiary of POBC.
New section 568 provides that during the transition period after the
completion day, port notices of POBC are taken to be port notices of the
port lessor or its delegate.
New section 569 provides that during the interim period a reference in
chapter 8, part 4D to a port operator other than the port lessor includes a
reference to a subsidiary of POBC that is the lessee of infrastructure owned
by POBC for supplying water or sewerage services. In addition, references
in chapter 8, part 4D to the port lessor includes a reference to POBC.
New section 570 provides that during the interim period, POBC and a
subsidiary of POBC are not liable to pay royalties or similar charges for the
removal of extractive material in the specified circumstances.
New section 571 provides that an existing appointment of an authorised
officer for POBC continues for 3 months from the completion day as if it
were an appointment for the port lessor or its delegate.
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Transport and Other Legislation Amendment Bill (No. 2) 2010
New section 572 authorises POBC to delegate its functions under chapter 8
to a subsidiary of POBC during the interim period.
New section 573 provides that anything done by POBC under chapter 8,
part 4B in respect of abandoned property in possession of POBC or on land
within the port area immediately prior to completion day is taken to have
been done by the port operator.
New section 574 provides that from completion day section 289M
continues to apply to the port lessee or port manager, if there is one, in
respect of proceeds from the sale of abandoned property in possession of
POBC or on land within the port area immediately prior to completion day.
New section 575 provides that the amendment of a regulation by the
Transport and Other Legislation Amendment Act (No. 2) 2010, chapter 2
does not affect the power of the Governor in Council to further amend the
regulation or to repeal it.
Clause 126 inserts new schedule 5B after schedule 5A. New schedule 5B
lists uses which are `core port infrastructure', `port related development' or
`port prohibited development'.
Clause 127 amends the definitions in schedule 6.
Part 19 Amendment of Transport
Infrastructure (Ports) Regulation
2005
Clause 128 provides that this part amends the Transport Infrastructure
(Ports) Regulation 2005.
Clause 129 deletes the entry in schedule 2 for Port of Brisbane.
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Transport and Other Legislation Amendment Bill (No. 2) 2010
Part 20 Amendment of Transport
Infrastructure (Rail) Regulation
2006
Clause 130 provides that this part amends the Transport Infrastructure
(Rail) Regulation 2006.
Clause 131 deletes references to QR Limited in section 38 and inserts
references to a rail GOC. This amendment provides that the activities of a
rail GOC other than its activities performed as part of its community
services obligations are taken to be activities conducted on a commercial
basis. This is relevant to the application (or otherwise) of the Judicial
Review Act 1991 to decisions of a rail GOC.
Part 21 Amendment of Transport
Operations (Marine Pollution)
Act 1995
Clause 132 provides that this part amends the Transport Operations
(Marine Pollution) Act 1995.
Clause 133 provides that the chief executive must take reasonable steps to
consult with a port operator in developing marine pollution prevention and
response programs if the chief executive thinks the port operator would be
affected by the programs.
Clause 134 ensures that the general manager may work with or direct a port
operator to provide reception facilities. Where a notice is given to a port
operator to provide, maintain or make available reception facilities, a port
operator must comply with the notice. This obligation to comply continues
until the direction in the notice is complied with. The failure to comply
with a notice under this section is an offence.
Clause 135 permits the State to enter into an agreement with a port operator
about the port operator responding to a discharge of pollutants into coastal
waters.
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Transport and Other Legislation Amendment Bill (No. 2) 2010
Clauses 136 - 138 amends the relevant provisions of part 13 (sections 111,
113 and 115) to provide for the recovery of a port operator's discharge
expenses.
Clauses 139 - 141 amends the relevant provisions of part 14 (sections 118,
122 and 127) which deal with legal proceedings relating to the recovery of
discharge expenses incurred by a port operator.
Clause 142 inserts a definition of `port operator' into the schedule.
Part 22 Amendment of Transport
Operations (Marine Pollution)
Regulation 2008
Clause 143 provides that this part amends the Transport Operations
(Marine Pollution) Regulation 2008.
Clause 144 provides that an officer or employee of the port operator of the
Port of Brisbane is a prescribed person for the purposes of section 72(1)(c)
of the Transport Operations (Marine Pollution) Act 1995. This amendment
allows the general manager of that Act to appoint an officer or employee of
the port operator as an authorised officer for the purposes of that Act.
Part 23 Amendment of Transport
Operations (Marine Safety) Act
1994
Clause 145 provides that this part amends Transport Operations (Marine
Safety) Act 1994.
Clause 146 provides that the chief executive must take reasonable steps to
consult with a port operator in developing marine safety implementation
programs if the chief executive thinks the port operator would be affected
by the programs.
Clause 147 inserts a definition of `port operator' into the schedule.
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Transport and Other Legislation Amendment Bill (No. 2) 2010
Part 24 Amendment of Transport
Operations (Marine Safety)
Regulation 2004
Clause 148 provides that this part amends the Transport Operations
(Marine Safety) Regulation 2004.
Clause 149 amends section 140 to delete references to Bundaberg pilotage
area and to include a reference to a subsidiary of POBC and a port operator
in the definition of `DGTrac system'.
Clause 150 provides the general manager may approve the establishment of
the buoy mooring in a port only if the general manager is satisfied the port
operator for the port has consented to the establishment.
Part 25 Amendment of Transport
Operations (Passenger
Transport) Act 1994
Clause 151 provides that this part amends the Transport Operations
(Passenger Transport) Act 1994.
Clause 152 ensures that the powers of authorised officers of a rail GOC
appointed by the chief executive are not restricted to a railway managed or
operated by the rail GOC. This is currently the case for authorised officers
of the QR passenger business. As that business will be operated by a rail
GOC (Queensland Rail), this simply maintains the status quo.
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Transport and Other Legislation Amendment Bill (No. 2) 2010
Part 26 Amendment of Transport
Operations (Passenger
Transport) Regulation 2005
Clause 153 provides that this part amends the Transport Operations
(Passenger Transport) Regulation 2005.
Clause 154 provides that employees of a rail GOC are prescribed as
persons the chief executive may appoint under section 111(2) of the
Transport Operations (Passenger Transport) Act 1994 for the Brisbane
Airport Rail Link. This is currently the case for employees of the QR
passenger business. As that business will be operated by a rail GOC
(Queensland Rail), this simply maintains the status quo.
Part 27 Amendment of Transport
Planning and Coordination Act
1994
Clause 155 provides that this part amends the Transport Planning and
Coordination Act 1994.
Clause 156 amends the definition of a `transport GOC' to include a `rail
GOC', a `GOC port authority' and `any other GOC or candidate GOC'.
This is consistent with the status quo as such entities are GOCs.
Part 28 Amendment of Transport (South
Bank Corporation Area) Act 1999
Clause 157 provides that this part amends the Transport (South Bank
Corporation Area Land) Act 1999.
Clause 158 provides that no fee or charge, including any duty under the
Duties Act 2001, is payable by (among others) a rail GOC or its related
bodies corporate in relation to dealings with land to give effect to part 3 of
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Transport and Other Legislation Amendment Bill (No. 2) 2010
the Act. This amendment reflects the fact that a rail GOC (Queensland
Rail) will become the holder of land in the Corporation area.
Part 29 Amendment of Urban Land
Development Authority Act 2007
Clause 159 provides that this part amends the Urban Land Development
Authority Act 2007.
Clause 160 relates to a limited area of land within the Northshore Hamilton
urban development area which will cease to be strategic port land and will
cease to be subject to the existing Port of Brisbane LUP, upon the gazettal
of balance port land. Existing lawful uses and development permits issued
by the port authority are already preserved for this land under the Urban
Land Development Authority Act 2007. However, some of these uses are
prohibited under the development scheme administered by the Authority.
This clause provides these existing users with a limited range of additional
flexibility to seek to apply to the Authority to restart uses which have
temporarily ceased (if the application is made within 6 months) or to
change conditions or layout, for substantially the same development, only
for the remaining period that the current applicable leases remain in place.
Part 30 Amendment of Workplace Health
and Safety Regulation 2008
Clause 161 provides that this part amends the Workplace Health and Safety
Regulation 2008.
Clause 162 deletes the definition of `relevant authority' as this term is no
longer used in this regulation.
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Transport and Other Legislation Amendment Bill (No. 2) 2010
Chapter 3 Particular amendments
relating to busways or light
rail
Part 1 Amendment of Land Act 1994
Clause 163 provides that this part amends the Land Act 1994.
Clause 164 amends section 390B (Particular dealing with rail land) by
inserting the new definitions for busway land and light rail land. This
amendment ensures consistency with the amendments to the Transport
Infrastructure Act 1994 in clause 179 (which amends section 477A of the
Transport Infrastructure Act 1994).
Part 2 Amendment of Transport
Infrastructure Act 1994
Clause 165 provides that this part amends the Transport Infrastructure Act
1994.
Clause 166 amends section 2 (Objectives of this Act). Subsection (1)
amends section 2(2)(i) by inserting new objectives for busway and light
rail. The new objects are consistent with those for heavy rail. Subsection
(2) inserts new section 2(2)(j)(iv), to clarify that, for light rail, the
objectives of the Act include the construction, management and operation
of light rail transport infrastructure under a light rail franchise agreement.
Clause 167 inserts new section 303AB (Licence in relation to busway land
or busway transport infrastructure), which mirrors proposed section 355A
(Licence in relation to light rail land or infrastructure).
Clause 168 amends section 352 (Definition for pt 3) by extending the
definition of road to include State-controlled roads.
Clause 169 amends section 353 (Declaration of land as light rail land).
Subsection (1) amends existing subsection 353(2)(b) to clarify that land
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Transport and Other Legislation Amendment Bill (No. 2) 2010
declared as light rail land may be land on which transport infrastructure,
other than light rail transport infrastructure, is located or operated.
Subsection (2) omits existing subsection 353(4)(a) and (b) and inserts a
new subsection 353(4)(a) and (b), which expands land that may be declared
to be light rail land.
Clause 170 amends section 354 (Effect on land of light rail declaration).
Subsection (1) omits subsection 354(4) to remove the limitation on light
rail land being declared to be a State-controlled road under section 24 of
the Act. Subsection (2) renumbers existing subsection 354(3A) as
subsection 354(4). Subsection (3), amends subsection 354(5) by providing
that the Minister administering the Land Act 1994 has the responsibility for
leasing light rail land that is unallocated state land to the State.
The amendments to sections 352, 353 and 354 allow the co-location of
light rail on both locally controlled roads and State-controlled roads.
Clause 171 amends section 355 (Sublease of lease of light rail land) to
insert new subsections 355(10) and 355(11), which provide flexibility to
impose conditions on any sublease of a perpetual lease for light rail land.
Clause 172 inserts new section 355A (Licence in relation to light rail land
or infrastructure). New section 355A allows the chief executive, for the
State, to grant licences over light rail land and light rail transport
infrastructure, whether or not located on light rail land, to third parties for
various purposes. New section 355A(3) provides that the chief executive
must give a written notice of the licence to the registrar of titles after it has
been granted, and that the registrar of titles must record the licence against
the land in the appropriate register. The ability to record these licences
gives security to the holder of the licence while enabling the State to
manage state land and preserve its interests through the ability to condition
the licence.
New section 355A(4) provides that a licence can be mortgaged,
sublicensed or transferred with the consent of the chief executive.
New section 355A(5) provides that despite chapter 4, part 4 of the Land Act
1994, the chief executive of the department in which that Act is
administered cannot issue a permit to occupy light rail land to which a
licence relates or land on which light rail transport infrastructure to which a
licence (under subsection 355A(1)) relates is situated. In order to reach a
position where section 355A applies, the chief executive would have
normally entered into an agreement to use or deal with the land.
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Transport and Other Legislation Amendment Bill (No. 2) 2010
New section 355A(6) and 355A(7) state that where there is inconsistency
between a local government's control of a road under the Local
Government Act 1993, section 901 or the Local Government Act 2009,
section 60 (other than for a matter mentioned in section 357 or 358) and a
provision of a licence under subsection 355A(1), the provision of the
licence applies to the extent of the inconsistency.
Clause 173 amends existing subsection 360A(1) (Powers of chief executive
for light rail transport infrastructure works contracts etc.). Subsection (1)
omits existing subsections 360A(1)(b) and 360A(1)(c) and inserts new
subsections 360A(1)(b) to 360A(1)(e). New sections 360A(1)(b) and
360A(1)(e) expand the matters for which the chief executive can carry out
or enter into a contract for light rail transport infrastructure works. New
subsections 360A(1)(c) and 360A(1)(d), mirror existing subsections
360A(1)(b) and 360A(1)(c). Subsection (2) omits existing subsections
360A(10)(c) and 360A(10)(d) and inserts new subsections 360A(10)(c) to
360A(10)(f). New subsections 360A(10)(c) and 360A(10)(f) expand the
matters for which the chief executive may arrange to share costs. New
subsections 360A(10)(d) and 360A(10)(e) mirror existing subsections
360A(10)(c) and 360A(10)(d).
Clause 174 inserts a new section 361A (Definition for div 2) to define, for
chapter 10, part 4, division 2, the term interfere with.
Clause 175 amends section 362 (Interfering with light rail transport
infrastructure) to extend subsection 362 to include light rail transport
infrastructure works.
Clause 176 amends section 363 (Rectifying unauthorised interference or
works) to extend remedial powers to circumstances where light rail
transport infrastructure works have been interfered with.
Clause 177 amends section 377 (Trespass on light rail land or light rail
transport infrastructure). Subsection (1) replaces the heading and existing
subsections 377(1) and 377(2). The amendments extend the application of
section 377 to light rail land and light rail transport infrastructure works
site. Subsection (2) replaces subsections 377(4) and 377(5) to expressly
include light rail land and light rail transport infrastructure works site.
This amendment is a protective mechanism for both the safety and
operational integrity of light rail and to ensure public safety.
Clause 178 inserts a new chapter 10, part 4A, division 4A (Franchised light
rail).
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Transport and Other Legislation Amendment Bill (No. 2) 2010
New section 377A (Objectives of division) establishes the objectives of
division 4A.
New subdivision 2 (Franchised light rail) establishes the framework for
light rail franchise agreements.
New section 377B (Power to enter into light rail franchise agreements)
provides that the Minister may, on behalf of the state, enter into a light rail
franchise agreement with a person about investing in various aspects of the
delivery and operation of a light rail project. These include works for, or
associated with, establishing a light rail, designing, constructing,
maintaining and managing light rail transport infrastructure, and operating
a public passenger service using light rail transport infrastructure.
New section 377C (Operating public passenger service under agreement)
provides that if a light rail franchise agreement relates to operating a public
passenger service using light rail transport infrastructure:
· chapter 6 of the Transport Operations (Passenger Transport) Act 1994
does not apply to the agreement; and
· part 8 of the Transport Operations (Passenger Transport) Regulation
2005 does not apply to the operator of the service or the operator of
the light rail.
The provisions of section 377C are necessary to allow a project deed for a
public private partnership, to govern the contractual arrangements for the
delivery of public passenger services. For example, a project deed may
dictate the term of a service contract.
New section 377D (Tabling of light rail franchise agreements) provides that
the Minister is required to table each franchise agreement and each
amendment to a franchise agreement in the Legislative Assembly. Section
377D exempts the tabling of information within a franchise agreement that
is considered `commercial-in-confidence'.
New section 377E (Report on operation of division) requires that each
annual report of the department must include a report on division 4A
(Franchised light rail) of the Act during the financial year to which the
report relates.
New section 377F (Recovery of money) provides that where a franchise
agreement enables the Minister to recover an amount from a franchisee, the
amount may be recovered as a debt payable to the State.
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Transport and Other Legislation Amendment Bill (No. 2) 2010
New section 377G (Rateability of land) provides that a regulation may
provide that light rail franchise agreement land is not rateable under the
Local Government Act 1993.
New section 377H (Guarantees and undertakings) establishes the sections
of the Statutory Bodies Financial Arrangements Act 1982 that apply, with
the necessary changes and any changes prescribed by regulation, to a
franchisee, for the purposes of giving guarantees or undertakings to a
franchisee.
New subdivision 3 (Interface management) establishes the framework for
managing the interface between light rail, light rail land, light rail
infrastructure and surrounding areas.
New section 377I (Purpose of sdiv 3) establishes that the purpose of
subdivision 3 is to provide a regime for dealing with light rail interface
issues in light rail interface management areas. This is necessary to support
the construction and operation of light rail transport that is integrated with
roads and other land uses (for example, retail, residential and commercial
precincts).
New section 377J (Definitions for sdiv 3) establishes, for subdivision 3,
definitions of light rail interface, light rail interface agreement, light rail
interface issue, light rail interface management area and light rail land.
New section 377K (Meaning and scope of light rail interface agreement)
establishes that a light rail interface agreement may provide for a matter by
applying, adopting or incorporating a matter contained in another
document (with or without modification). This recognises that parties to a
light rail interface agreement may be bound by other requirements, such as
Building Management Statements, easements and precinct emergency
plans.
New section 377L (Declaration of light rail interface management area)
provides that the chief executive may declare, by gazette notice, land or
part of land to be a light rail interface management area. Subsection
377L(2) requires the chief executive to consult before a declaration can be
made. Subsections 377L(3) and 377(4) establish the arrangements for
identifying land declared as a light rail interface management area in a
gazette notice.
New section 377M (Particular persons may enter into light rail interface
agreement) identifies the categories of persons who may enter into a light
rail interface agreement.
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Transport and Other Legislation Amendment Bill (No. 2) 2010
New section 377N (Failure to enter into light rail interface agreement)
establishes the process the chief executive must follow in the event of a
failure to enter into an interface agreement. The process includes the issue
of a preliminary notice and direction and suggested terms for inclusion in
the light rail interface agreement. The maximum penalty for subsection
377(5) of 60 penalty units is consistent with section 77 (Chief executive
may give notice about failure to enter into interface agreement) of the Rail
Safety Act 2010.
New section 377O (Directions about arrangement that is to apply) is an
enforcement provision for a failure to comply with a preliminary notice or
direction under section 377N. The maximum penalty for non-compliance
with a direction is 200 penalty units. This is consistent with section 78
(Chief executive may give direction about arrangement that is to apply) of
the Rail Safety Act 2010.
New section 377P (Guidelines about light rail interfaces etc.) provides that
the chief executive may make interface guidelines and requires any such
guidelines to be published on the internet and made available for public
inspection. The guidelines are intended to provide information on interface
risks and measures that might be implemented to deal with these risks. A
guideline may also provide general information regarding the form and
layout of an interface management agreement.
New subdivision 4 (Miscellaneous) provides the legal framework for light
rail in relation to all other miscellaneous issues.
New section 377Q (Severance of light rail transport infrastructure)
provides that the chief executive may decide to sever light rail transport
infrastructure from the light rail land on which it is situated and be dealt
with as personal property, without affecting the land itself, or the use of the
land or the infrastructure.
New section 377R (Limited compensation for easements etc. or damage
relating to overhead wiring for a light rail) establishes a compensation
framework for an easement or other interest in land, taken by the chief
executive under part 4 of the Transport Planning and Coordination Act
1994, for overhead wiring for a light rail and damage caused by the
attachment of the overhead wiring. Section 377R is limited to overhead
light rail transport infrastructure, with no restriction on the general powers
of the chief executive under section 25 of the Transport Planning and
Coordination Act 1994.
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Transport and Other Legislation Amendment Bill (No. 2) 2010
Clause 179 amends section 477A (Power to deal with particular land) by
omitting `rail land' from subsection 477A(1) and replacing the phrase with
`prescribed land', defined as busway land, light rail land or rail land.
Clause 180 amends schedule 1 (Subject matter for regulations) to ensure
the Minister has the requisite power to make regulations, for light rail, for
example, regarding: asset and interface management, and franchise
agreements.
Clause 181 amends schedule 6 (Dictionary). Subsection (1) omits the
definition of franchisee. Subsection (2) inserts definitions for franchisee,
interfere with, light rail, light rail franchise agreement, light rail interface,
light rail interface agreement, light rail interface issue, light rail interface
management area, overhead wiring and public passenger service.
Subsection (3) extends the definition of light rail to include a route wholly
or partly dedicated to priority movement of light rail vehicles for public
transport purpose, where the dedicated route has also been designed and
constructed for other purposes. For example, where a route has been
constructed for the movement of light rail vehicles and shared with other
vehicles.
Subsection (4) amends the definition of light rail land to include the new
definition of light rail land included in new section 377J.
Subsection (5) amends the definition of light rail transport infrastructure
to include the defined term, overhead wiring, inserted under subsection (2).
Chapter 4 Other amendments
Part 1 Amendment of Adult Proof of
Age Card Act 2008
Clause 182 provides that the Act amended in this part is the Adult Proof of
Age Card Act 2008.
Clause 183 provides for an administrative amendment to section 10 to
ensure consistency of language used in the section.
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Transport and Other Legislation Amendment Bill (No. 2) 2010
Clause 184 omits section 35 from the Adult Proof of Age Card Act 2008.
The section will instead be placed in the Transport Planning and
Coordination Act 1994 (see clause 277 of this Bill). Section 35 of the
Adult Proof of Age Card Act 2008 provides for the storing of emergency
contact information on an Adult Proof of Age Card. Because the Transport
Planning and Coordination Act 1994 is an umbrella Act for transport
legislation, the provision providing for the storing of emergency contact
information will now only appear once in the statute book, whereas
previously it was required to appear in three separate Acts. This is an
administrative amendment that provides for a more efficient and
streamlined drafting practice.
Clause 185 provides for minor consequential amendments to section 36(2).
Because it is not mandatory for a holder of an Adult Proof of Age Card to
store emergency contact information on the card, subclause (1) simply
recognises that emergency contact information may not exist. Subclause
(2) inserts a note referring the reader to section 36H of the Transport
Planning and Coordination Act 1994, which deals with the storing of
emergency contact information.
Clause 186 relocates the definition of emergency contact information from
the Schedule (Dictionary) of the Adult Proof of Age Card Act 2008 to a
sectional definition under section 36(3) of the same Act.
Part 2 Amendment of Maritime Safety
Queensland Act 2002
Clause 187 states that this part amends the Maritime Safety Queensland Act
2002.
Clause 188 amends section 8 (Functions and powers of MSQ). The clause
omits wording to remove references to the Marine Board from section
8(1)(a)(i). It also renumbers section 8(1)(c) and (d) to section 8(1)(d) and
(e) following the insertion of new subsection 8(1)(c). New subsection
8(1)(c) extends the powers of Maritime Safety Queensland to include the
management of public marine facilities and the use of waterways.
Clause 189 (Insertion of new ss 12A and 12B) inserts into part 2, division 3
new section 12A (Preservation of rights of particular public service
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Transport and Other Legislation Amendment Bill (No. 2) 2010
officers) and section 12B (Tenure as public service officer on ending of
particular employment contracts).
The clause sets out that new section 12A applies to persons employed
under section 12 of the Maritime Safety Queensland Act 2002 other than as
a marine pilot and a person who was a public service officer immediately
before being employed under section 12. New subsection 12A(2) states
that these persons keep all rights and entitlements accrued or accruing as a
public service officer as if the service as an employee under section 12
were a continuation of service as a public service officer for example long
service, recreation and sick leave and rights as a member of a
superannuation scheme.
New section 12B (Tenure as public service officer on ending of particular
employment contracts) applies to persons employed under a section 12
contract, other than marine pilots, when the contract is terminated other
than by disciplinary action or when it expires and is not renewed or
replaced by another contract of employment under section 12. This section
also applies if the person on contract was a public service officer on tenure
immediately before taking up employment on a section 12 contract or if the
person on a section 12 contract becomes a public service officer on tenure.
These persons are to be employed at the end of the contract at the same
classification level and remuneration they would have been employed at
and entitled to if the person had continued in employment as a public
service officer on tenure.
Part 3 Amendment of Transport
Infrastructure Act 1994
Clause 190 provides that this part amends the Transport Infrastructure Act
1994.
Clause 191 amends section 2(2)(b) (Objectives of this Act) by inserting a
new objective that provides that environmental emissions generated by
State-controlled roads are addressed by development.
Clause 192 amends section 33 (Prohibition on road works etc. on
State-controlled roads) by inserting a new subsection 33(5) to provide that
an approval for road works may only be given if there is a permitted road
access location in force under section 62(1) (Management of access
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Transport and Other Legislation Amendment Bill (No. 2) 2010
between individual properties and State-controlled roads) in relation to the
road access works.
Clause 193 inserts a new section 49A (Impacts of particular development
and State-controlled roads) to clarify the existing power of the chief
executive as a referral agency under the Sustainable Planning Act 2009 to
condition development applications. This will ensure the efficient and safe
management of State-controlled roads, and that development addresses
impacts on the development from environmental emissions generated by a
State-controlled road.
New subsection 49A(3) establishes that in performing the chief executive's
functions as a referral agency, the chief executive must consider the extent
to which the proposed development satisfies the purpose mentioned in
subsection (2). New subsection 49A(4) clarifies that subsection (3) is in
addition to, and does not limit, the Sustainable Planning Act 2009, section
282 and chapter 6, part 5, division 2.
Clauses 194 and 195 have the effect of ensuring that applications for
vehicular property access can only be made under amended section 33 of
the Act.
Clause 196 amends section 67 (Notice of decision under s 62(1)) by
inserting a new subsection 67(1A) to provide that subsection (1) does not
apply if the decision was made in conjunction with a development approval
under the Sustainable Planning Act 2009. The effect of this amendment is
to ensure that decisions made as part of a development approval under the
Sustainable Planning Act 2009 cannot be appealed under this Act.
Clause 197 amends section 70 (Offences about road access locations and
road access works, relating to decisions under s 62(1)) by omitting section
70(1) and inserting a new subsection (1) to provide that these offence
provisions do not apply where the decision was made in conjunction with a
development application under the Sustainable Planning Act 2009.
Clause 198 amends section 84A (Declaration of land as State toll road
corridor land).
Currently, section 84A allows the Minister to declare certain land tenures
to be State toll road corridor land. Section 84C provides that land declared
by the Minister under section 84A immediately becomes unallocated state
land. Subsection 84C(4) then provides that a perpetual lease must issue to
the State and subsection 84C(6) allows the State to lease this land to
another person. These provisions facilitate the lease of land by the State to
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Transport and Other Legislation Amendment Bill (No. 2) 2010
a private proponent for the purpose of constructing, operating or
maintaining a toll road.
The amendments contained in this clause and clause 200 extend the
categories of land that may be the subject of a land declaration and
streamline the administrative processes relating to the creation of the
relevant leases for the State toll road corridor land.
Specifically the amendments provide for the following: -
· the extension of the categories of land that the Minister may declare as
State toll road corridor land to land which is non-freehold land on or
within which road transport infrastructure or rail transport
infrastructure is situated (see amendments to section 84A(1));
· the requirement for the Minister to include in the declaration the terms
that are to apply to the lease of the land to the State under section 84C,
and that have been agreed to by the Minister administering the Land
Act 1994; and
· the ability for the Minister to declare that a stated interest in land
declared to be State toll road corridor land continues in relation to the
State toll road corridor land (see new section 84A(6)). The declaration
will state whether the interest continues in relation to the lease of the
land to the State under new section 84C(4) or the lease that the State
has agreed to enter into with another person under section 84C(6).
Clause 199 amends section 84B (State toll road corridor land on rail
corridor land).
Currently, section 84B is stated to apply if, under section 84A, the Minister
intends to declare a road, or part of a road, that crosses rail corridor land
and continues on the other side of the rail corridor land to be State toll road
corridor land. This section provides that the declaration under section 84A
must also declare that the place where rail corridor and State toll road
corridor cross is a common area. The section sets out the rights associated
with a common area.
The amendments contained in this clause clarify that section 84B only
applies to level crossings - that is, where a road and railway meet at
substantially the same level. The amendment clarifies that the section is not
intended to apply where the intersection involves a road crossing over or
under a railway.
Clause 200 amends section 84C (Effect on land of State toll road corridor
land declaration).
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Transport and Other Legislation Amendment Bill (No. 2) 2010
The amendments contained in this clause insert additional subsections that
deal with the effect of a declaration of land as State toll road corridor land
under section 84A.
New subsection 3A provides that the declaration does not affect the
ownership of public utility plant. Public utility plant is defined in schedule
6 of the Act to mean plant permitted under another Act or a
Commonwealth Act to be on a road. Plant is defined to include items such
as a pipeline or a water channel. This provision mirrors section 105M of
the Act, which ensures that the declaration of local government tollway
corridor land does not affect the ownership of public utility plant on the
land which is the subject of the Minister's declaration.
New subsection 3B provides that land declared under section 84A that
becomes unallocated State land under subsection (1), (2) or (3) is free of
any interest or obligation other than interests in the land, if any, continued
under section 84A (6).
The amendments also replace existing subsections (4) and (5). Currently,
under subsection (4), the Minister administering the Land Act 1994 must
lease the State toll road corridor land declared under section 84A to the
State. However, the amendments in this clause and clause 198 streamline
the administrative process involved in the creation of the lease to the State.
Specifically, new section 84C(4) provides that the Minister administering
the Land Act 1994 is taken to have leased the State toll road corridor land to
the State when the declaration is made. New section 84C(5) provides
further information about the lease to the State. The subsection retains the
matters in the existing subsection (5). However, it also provides that the
lease is subject to the terms stated in the declaration of the State toll road
corridor land under section 84A (see subsection (5)(d)).
The amendments also specify that the lease to the State and any sublease
are subject to any interest in the land that is continued in relation to the
respective leases under the declaration in section 84A (see new section
84C(5)(c)) for the lease to the State and new section 84C(8)(b) in relation
to the sublease to another person).
A new subsection 10 is also included which provides that if a registered
interest is continued in the declaration under section 84A, the registrar of
titles must record the interest in the leasehold land register against the lease
in relation to which it is continued.
Clause 201 inserts new section 84D (Compensation).
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Transport and Other Legislation Amendment Bill (No. 2) 2010
This section provides that a person who has an interest in land declared to
be State toll road corridor land under section 84A who has not had their
right continued, has a right to claim compensation (see subsections (1) and
(2)). The section also provides that the person's right to claim
compensation is under the Acquisition of Land Act 1967 (see subsections
(3) and (4)). Consistent with section 12 (5C) of that Act, section 84D(2)(b)
provides that a person does not have a right to compensation for an interest
under a services contract for the land. A definition of what is a services
contract is provided by clause 214 which amends Schedule 6 (Dictionary).
Clauses 202 to 204 make similar amendments to the local government
tollway corridor provisions as clauses 198, 200, and 201 make in relation to
the State toll road corridor provisions.
Clause 202 amends section 105H (Declaration of land as local government
tollway corridor land).
This clause and clause 203 streamline the administrative processes relating
to the creation of the relevant leases of the local government tollway
corridor land.
Specifically the amendments provide for:
· the requirement for the Minister to include in the declaration the terms
that are to apply to the lease of the land to the State under section
105J, and which have been agreed to by the Minister administering the
Land Act 1994; and
· the ability of the Minister to declare that a stated interest in land
declared to be local government tollway corridor land continues in
relation to the land (see new subsection (9)). The declaration will state
whether the interest continues in relation to the lease of the land to the
State under new section 105J(4) or the lease of the land to a local
government under section 105J(6).
Clause 203 amends section 105J (Effect on land of local government
tollway corridor land declaration).
The amendments contained in this clause insert new subsection 3A which
deals with the effect of a declaration of land as local government tollway
road corridor land under section 105H. New subsection 3A provides that
declared land that becomes unallocated State land under subsections (1),
(2) or (3) is free of any interest or obligation other than interests in the land,
if any, continued under section 105H(9).
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Transport and Other Legislation Amendment Bill (No. 2) 2010
The amendments also replace existing subsections (4) and (5). Currently,
under subsection (4), the Minister administering the Land Act 1994 must
lease the local government tollway corridor land declared under section
105H to the State. However, the amendments in this clause and clause 202
streamline the administrative process involved in the creation of the lease
to the State. Specifically, new section 105J(4) provides that the Minister
administering the Land Act 1994 is taken to have leased the local
government tollway corridor land to the State when the declaration is
made. The new section 105J(5) provides further information about the
lease to the State. The subsection retains the matters in the existing
subsection (5). However, it also provides that the lease is subject to the
terms stated in the declaration of the local government tollway corridor
land under section 105H (see subsection (5)(d)).
The amendments also specify that the lease to the State and any sublease
are subject to any interest in the land that is continued in relation to the
respective leases under the declaration in section 105H (see new section
105J(5)(c) for the lease to the State and new section 105J(8)(b) in relation
to the sublease).
A new subsection 13 is also included which provides that if a registered
interest is continued in the declaration under section 105H, the registrar of
titles must record the interest in the leasehold land register against the lease
in relation to which it is continued.
Clause 204 inserts new section 105JA (Compensation).
New section 105JA provides that a person who has an interest in land
declared to be local government tollway corridor land under section 105H
who has not had their interest continued, has a right to claim compensation
(see subsections (1) and (2)). The section also provides that the person's
right to claim compensation is under the Acquisition of Land Act 1967 (see
subsections (3) and (4)). Consistent with section 12(5C) of that Act, section
105JA(2)(b) provides that a person does not have a right to compensation
for an interest under a services contract for the land. A definition of what is
a services contract is provided by clause 214 which amends Schedule 6
(Dictionary).
Clause 205 amends section 316 (Definition for div 4) by omitting the
definition of busway land and inserting a new definition for busway land, to
include land held by the chief executive on behalf of the State, and on
which busway transport infrastructure is or, is proposed to be, situated.
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Transport and Other Legislation Amendment Bill (No. 2) 2010
This amendment will enable the chief executive to manage public utility
plant on land where infrastructure is or, is proposed to be, situated. This
amendment will facilitate the efficient maintenance and coordination of
public utility plant during the delivery of infrastructure projects,
particularly as many projects are delivered within an existing urban
footprint.
Clause 206 amends section 317 (Retention of ownership of public utility
plant) to ensure the ownership of public utility plant vests in the relevant
provider notwithstanding the declaration of busway land.
Clause 207 amends section 364 (Definitions for div 3) by omitting the
definitions of busway land and light rail land and inserting a definition of
light rail land, to include land held by the chief executive on behalf of the
State, and on which light rail transport infrastructure is or is proposed to be
located.
Clause 208 amends section 365 (Retention of ownership of public utility
plant) to ensure the ownership of public utility plant vests in the relevant
provider notwithstanding the declaration of light rail land.
Clauses 209 and 210 amend sections 368 (Public utility provider to consult
with chief executive before replacing public utility plant) and section 371
(Information by public utility provider to chief executive) by omitting
`chief executive' from the heading and inserting `light rail authority'.
Clause 211 inserts new section 476B (Power to require works to stop) to
enable the chief executive to give a written direction to stop, alter, or not to
start works if the chief executive reasonably believes the works threaten or
are likely to threaten, the safety or operational integrity of transport
infrastructure or networks. New section 476B allows the chief executive to
permit, stop, remediate and inspect works, and includes penalty provisions
for non-compliance with a requirement of the chief executive. The penalty
provisions are based on the existing heavy rail provisions in section 168 of
the Act. This amendment does not apply to rail transport infrastructure,
which relies on existing provision 168 of the Act.
New section 476C (Compensation) establishes the compensation
arrangements for section 476B.
New section 476D (Registration of notice about nature of works) allows the
chief executive to register a notice on a title. This notice is about the nature
of works that the chief executive reasonably believes are likely to threaten
the safety or operational integrity of transport infrastructure.
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Transport and Other Legislation Amendment Bill (No. 2) 2010
Clause 212 inserts transitional provisions for:
· existing applications for approval for road access works;
· particular applications for approval for road access works; and
· the effect of change in definition of rail transport infrastructure on
development applications.
Clause 213 amends schedule 3 (Reviews and appeals) by inserting review
and appeal provisions to the Queensland Civil and Administrative Tribunal
(QCAT) for new sections 476B(2), (4) and (6) and 476D.
Clause 214 amends schedule 6 (Dictionary) to insert a new definition,
services contract, and extend the definition of rail transport infrastructure
to clarify that vehicle parking and set down facilities for passengers and
pedestrian facilities, are included. Clause 214 also makes a number of
minor and consequential amendments to the definitions.
Part 4 Amendment of Transport
Legislation Amendment Act 2007
Clause 215 establishes that this part amends the Transport Legislation
Amendment Act 2007 (which ultimately is an amendment of the Transport
Operations (Passenger Transport) Act 1994).
Clause 216 amends section 29 by omitting sections 87B to 87D, which
prescribe electronic record keeping only.
Part 5 Amendment of Transport (New
Queensland Driver Licensing)
Amendment Act 2008
Clause 217 provides that this part amends the Transport (New Queensland
Driver Licensing) Amendment Act 2008.
Clause 218 provides for minor consequential amendments to section 5 of
the Transport (New Queensland Driver Licensing) Amendment Act 2008.
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Transport and Other Legislation Amendment Bill (No. 2) 2010
Section 5 of the Transport (New Queensland Driver Licensing) Amendment
Act 2008 inserted, in part, a new section 195I into the Police Powers and
Responsibilities Act 2000. The existing section 195I provides for limited
circumstances by which a police officer may access and use emergency
contact information stored on a prescribed document (such as a
Queensland Driver Licence). Because it is not mandatory for a holder of
prescribed document to store emergency contact information on the
prescribed document, the current amendment simply recognises that
emergency contact information may not exist.
Clause 219 amends section 15 of the Transport (New Queensland Driver
Licensing) Amendment Act 2008, which in part, inserted new sections 63E
and 63F into the Transport Operations (Marine Safety) Act 1994. The
existing section 63E provides for the storing of emergency contact
information on a Smartcard Marine Licence Indicator. Subclause (1) omits
section 63E from the Transport Operations (Marine Safety) Act 1994. The
section will instead be placed in the Transport Planning and Coordination
Act 1994 (see clause 277 of this Bill).
Because the Transport Planning and Coordination Act 1994 is an umbrella
Act for a number of transport Acts, the provision providing for the storing
of emergency contact information will now only appear once in the statute
book, whereas previously it was required to appear in three separate Acts.
This is an administrative amendment that provides for a more efficient and
streamlined drafting practice.
Subclause (2) provides for a minor consequential amendment to section
63F(2). Because it is not mandatory for a holder of a Smartcard Marine
Licence Indicator to store emergency contact information on the indicator,
the amendment simply recognises that emergency contact information may
not exist.
Subclause (3) inserts a note referring the reader to section 36H of the
Transport Planning and Coordination Act 1994 which deals with the
storing of emergency contact information.
Clause 220 amends section 17 to relocate the definition of emergency
contact information from the Schedule (Dictionary), of the Transport
Operations (Marine Safety) Act 1994, to a sectional definition under
section 63F(3) of the same Act.
Clause 221 amends section 28 of the Transport (New Queensland Driver
Licensing) Amendment Act 2008, which in part, inserted new sections 91E
and 91F into the Transport Operations (Road Use Management) Act 1995.
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Transport and Other Legislation Amendment Bill (No. 2) 2010
The existing section 91E provides for the storing of emergency contact
information on a Smartcard Driver Licence. Subclause (1) omits section
91E from the Transport Operations (Road Use Management) Act 1995.
The section will instead be placed in the Transport Planning and
Coordination Act 1994 (see clause 277 of this Bill).
Because the Transport Planning and Coordination Act 1994 is an umbrella
Act for a number of transport Acts, the provision providing for the storing
of emergency contact information will now only appear once in the statute
book, whereas previously it was required to appear in three separate Acts.
This is an administrative amendment that provides for a more efficient and
streamlined drafting practice.
Subclause (2) provides for a minor consequential amendment to section
91F(2). Because it is not mandatory for a holder of a Queensland Driver
Licence to store emergency contact information on the licence, the
amendment simply recognises that emergency contact information may not
exist.
Subclause (3) inserts a note referring the reader to section 36H of the
Transport Planning and Coordination Act 1994 which deals with the
storing of emergency contact information.
Clause 222 amends section 31 to relocate the definition of emergency
contact information from Schedule 4 (Dictionary), of the Transport
Operations (Road Use Management) Act 1995, to a sectional definition
under section 91F(3) of the same Act.
Part 6 Amendment of Transport
Operations (Marine Pollution)
Act 1995
Clause 223 states that this part amends the Transport Operations (Marine
Pollution) Act 1995.
Clause 224 amends section 26 (Discharge of oil into coastal waters
prohibited) to provide that the maximum penalty for an individual is 5,000
penalty units and 100,000 penalty units for a corporation.
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Transport and Other Legislation Amendment Bill (No. 2) 2010
Clause 225 amends section 27 (Oil residues) to provide that the maximum
penalty for an individual is 5,000 penalty units and 100,000 penalty units
for a corporation.
Clause 226 amends section 35 (Discharge of noxious liquid substances into
coastal waters prohibited) to provide that the maximum penalty for an
individual is 5,000 penalty units and 100,000 penalty units for a
corporation.
Clause 227 amends section 42 (Jettisoning of harmful substances into
coastal waters prohibited) to provide that the maximum penalty for an
individual is 5,000 penalty units and 100,000 penalty units for a
corporation.
Clause 228 amends section 48A (Ship with fixed toilet operating in
prescribed nil discharge waters to be able to hold or treat sewage) by
omitting the definition of fixed toilet at section 48A(4) .
Clause 229 amends section 49 (Declared ship operating in prescribed nil
discharge waters to be fitted with sewage holding device) by replacing
wording in section 49(1) after `unless' with new subsections (a) and (b)
which provides for the requirement that a declared ship fitted with a sewage
holding device must have each fixed toilet on the declared ship connected
to the sewage holding device.
Clause 230 inserts new section 86A. New section 86A(1) states that this
section applies if an authorised officer is satisfied on reasonable grounds
that a ship has discharged or is likely to discharge pollutant into coastal
waters. New section 86A(2)(a) states that an authorised officer may give a
written direction to the master or owner of a ship to take reasonable actions
within reasonable times and not to operate a ship except in a way approved
by the authorised officer until the authorised officer is satisfied on
reasonable grounds that the ship is not likely to discharge pollutant into
coastal waters.
New subsection 86A(2)(b) states that the authorised officer may attach a
notice to the ship requiring the ship not to operate other than in a way
approved by the authorised officer and until the authorised officer is
satisfied on reasonable grounds that the ship is not likely to discharge
pollutant into coastal waters.
New section 86A(3) allows an authorised officer to make an oral
requirement under subsection 2(a) and confirm the requirement by written
notice as soon as practicable.
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Transport and Other Legislation Amendment Bill (No. 2) 2010
New section 86A(4) imposes a penalty of 200 penalty units on an owner or
master of a ship for non compliance with a notice given under subsection
(2)(a) of this section without a reasonable excuse.
New section 86A(5) imposes a penalty of 200 penalty units on a person for
non compliance with a notice given under subsection (2)(b) of this section
without a reasonable excuse.
New section 86A(6) states that a person does not contravene this Act by
merely complying with a requirement in the notice issued by an authorised
officer in relation to a discharge or likely discharge of pollutant from the
ship.
New section 86A(7) states that if the authorised officer knows the identity
of the master or owner of the ship, the authorised officer must give the
owner or master of the ship a copy of the requirement as soon as
practicable and may direct the owner or master of the ship by written notice
to take a reasonable action to be taken within a reasonable time in relation
to the ship.
New section 86A(8) imposes a penalty of 200 penalty units on the owner or
master of a ship for non-compliance with a notice under subsection
86A(7)(b).
New section 86A(9) allows an authorised officer to allow a ship to operate
before the end of the stated reasonable time if the action on a direction has
been taken and if the authorised officer is satisfied on reasonable grounds
that the ship is not likely to discharge pollutant into coastal waters.
Clause 231 amends section 104 (Failure to answer questions). Section
104(1)(a) is replaced with a new subsection which states that the section
applies if an authorised officer requires a person to give information,
including, for example, by answering a question under section 88(2).
The clause also amends section 104(3) to state that if the person is an
individual it is a reasonable excuse for the person not to comply with the
requirement.
In addition, the clause inserts new section 104(3A) stating that if the person
is a corporation, it is not a reasonable excuse for the person not to comply
with the requirement if complying with the requirement might tend to
incriminate the person.
New subsection (3B) states that if information is given under section 88(2)
by a person who is a corporation the information is not admissible in
evidence against a representative of the person in a civil or criminal
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Transport and Other Legislation Amendment Bill (No. 2) 2010
proceeding, other than a proceeding against the representative for an
offence against this section or in relation to the falsity of the information.
Finally, the clause renumbers sections 104(3A) to (4) as sections 104(4) to
(6).
Clause 232 amends section 113 (Detained ship must be released on giving
security) by inserting new section 113(4)(d) to add `a letter of undertaking'
to the list of securities which may be provided to the chief executive for the
release of a detained ship.
Clause 233 inserts new part 17 division 6 Transitional provision for
Transport and Other Legislation Amendment Act (No. 2) 2010. New
section 160 (Application of s 49) states that section 49 as in force before
commencement of new section 49(1) continues to apply to a declared ship
until the end of 30 June 2011.
Clause 234 amends the schedule (Dictionary) to insert a new definition for
fixed toilet and inserts a new reference to section 160 for declared ship.
Part 7 Amendment of Transport
Operations (Marine Safety) Act
1994
Clause 235 states that this part amends the Transport Operations (Marine
Safety) Act 1994.
Clause 236 amends section 3 (objectives of this Act). Clause 237(1) omits
section 3(5) to remove a reference to the Marine Board. Clause 236(2)
renumbers section 3(4A) as section 3(5).
Clause 237 amends section 31 (What is a standard) by omitting the
wording relating to seeking the advice of the Marine Board and the related
footnote.
Clause 238 amends section 45 (Standards). Clause 238(1) renumbers
section 45(3) as section 45(4).
Clause 238(2) omits section 45(2) and inserts new section 45(2) stating that
a standard or an amendment of a standard is subordinate legislation. New
section 45(3) is also inserted stating that part 5 of the Statutory Instruments
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Transport and Other Legislation Amendment Bill (No. 2) 2010
Act 1992 does not apply to a standard or an amendment of a standard. The
Note is also inserted providing that this division provides for a process
instead of a regulatory impact statement.
Clause 239 amends section 47 (Notice of proposal to prepare draft
standard) by omitting section 47(5) to remove the reference to the Marine
Board.
Clause 240 amends section 48 (Preparation of draft standard) by removing
references to the Marine Board.
Clause 241 amends section 49 (Notice of draft standard) by omitting
subsection (4) to remove the reference to the Marine Board.
Clause 242 amends section 50 (Making of standard) by omitting the
wording in section 50(1)(a) which refers to the Marine Board. This clause
also omits wording in section 50(1)(b) which relates to the Marine Board.
Clause 242(3) omits wording in section 50(2) and inserts wording to state
that no further notice is required if the general manager changes the draft
standard after considering the submissions.
Clause 243 replaces section 54 (Review of standards) with new sections
54(1) and 54(2) (Amendment of standards). New section 54(1) states that
this division applies to the amendment of a standard in the same way as it
applies to the making of a standard with any necessary changes. Section
54(2) states that sections 47 to 50 do not apply to the amendment of a
standard if the general manager considers the proposed amendment is not
likely to impose appreciable costs on the community or a part of the
community or only provides for, or to the extent it only provides for any
matter mentioned in the Statutory Instruments Act 1994 sections 46(1)(a),
(b), (c), (e), (f), (g), (h) or (i).
New section 54A (Application of Acts Interpretation Act 1954) states that
the application of section 24AA of the Acts Interpretation Act 1954 does
not apply to the amendment or repeal of a standard under this division.
Clause 244 omits Part 10 (Marine Board).
Clause 245 amends section 172A (Other directions). This clause inserts a
new section 172A(1)(c) extending the application of this section to a
person operating a ship which is not equipped with the safety equipment
required by a regulation for the waters in which the ship is being operated.
Clause 245(2) inserts new section 172A(3A) which states that if subsection
(1)(c) applies, the inspector may by written notice, require the master of the
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Transport and Other Legislation Amendment Bill (No. 2) 2010
ship to take the ship to waters for which the ship has the required safety
equipment (operating waters) within the reasonable time stated in the
notice and to not operate the ship for any purpose other than taking it to the
operating waters.
Clause 245(3) also inserts the new reference to subsection (3A) to sections
172A(4), (7) and (8) which sets out additional directions that can be given
by a shipping inspector where there has been non-compliance with safety
equipment obligations.
Clause 245(4) inserts new section 172A(6A) stating that if a master takes a
ship to its operating waters as required under subsection (3A), the master
does not contravene section 44 while operating the ship to take it to the
waters.
Clause 245(5) inserts new subsection (9) referencing the definition of
safety equipment at section 44(3) of the Transport Operations (Marine
Safety) Act 1994.
Clause 246 amends section 203D (Decisions that can not be appealed
against etc.) by omitting the reference to the Marine Board.
Part 8 Amendment of Transport
Operations (Passenger
Transport) Act 1994
Clause 247 provides that this part amends the Transport Operations
(Passenger Transport) Act 1994.
Clause 248 amends section 52 (Approval of basis for funding or other
financial assistance by State). Subsection 52(3)(a) is amended so that each
annual report of the department contains details of funding or other
financial assistance. These details relate to each holder of a service
contract, other than a service contract for the TransLink area, who received
State funding or other financial assistance during the year to which the
report relates.
Clause 249 amends section 87E (Record of prior booking-limousine
service provided under special purpose limousine service licence). Section
87E heading is amended to refer to `Record of prior booking'. Subsection
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Transport and Other Legislation Amendment Bill (No. 2) 2010
87E(1) is omitted. Reference to `(2)(b)' within subsection 87E(4)(a), is
omitted and replaced with `(1)(b)'. Subsections 87E(2) to (4) are
renumbered as subsections 87E(1) to (3).
Clause 250 amends section 87F (Operator to keep record of prior booking
made for s 87E). Section 87F heading is amended to refer to `Operator to
keep record of prior booking'. Reference to `made for s 87E' within
subsection 87F(a)(i) is omitted.
Clause 251 amends section 87G (Driver to produce record of prior booking
made for s 87E). Section 87G heading is amended to refer to `Driver to
produce record of prior booking made'. Reference to `for section 87E'
within subsection 87G(1)(a) is omitted.
Clause 252 amends sections 87E to 87G and renumbers as sections 87B to
87D.
Clause 253 amends section 92 (Making of standards). Subsection 92(3) is
renumbered as subsection 92(4). Subsection 92(2) is amended to include
that an amendment to a standard is subordinate legislation. New subsection
92(3) is inserted to outline that the Statutory Instruments Act 1992, part 5
does not apply to a standard or an amendment of a standard.
Clause 254 omits the current section 99 and replaces it with section 99
(Review of standards). Subsection 99(1) outlines that the chapter applies to
the amendment of a standard in the same way as it applies to the making of
a standard with any necessary changes, the procedures applying to the
preparation and approval of standards under this division apply to the
amendment and repeal of standards with any necessary changes and any
changes prescribed by regulation. Subsection 99(2) establishes that the
procedures applying to the preparation and approval of standards under
sections 93 to 96 of this division do not apply to the amendment of a
standard in various circumstances. These circumstances include if the
amendment is not likely to impose appreciable costs on the community or a
part of the community. These circumstances also include if the amendment
to the standard provides for matters mentioned in sections 46(1)(a), (b), (c),
(e), (f), (g), (h) or (i) of the Statutory Instruments Act 1992. Section 99A
clarifies that section 24AA of the Acts Interpretation Act 1954 does not
apply to the amendment or repeal of a standard under this section.
Clause 255 amends schedule 3 (Dictionary) to insert the term tourist
service, which means a pre-booked public passenger service operated in
accordance with a publically available itinerary to a common scenic or
tourist attraction. Tourist service may also include an itinerary for a major
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Transport and Other Legislation Amendment Bill (No. 2) 2010
sporting or cultural event, if the service is not wholly within a service
contract area or route.
Part 9 Amendment of Transport
Operations (Road Use
Management) Act 1995
Clause 256 provides that this part amends the Transport Operations (Road
Use Management) Act 1995.
Clause 257 inserts new chapter 3, part 3, div 2, subdivision 7. This new
subdivision is entitled "Other powers in relation to heavy vehicles -
improvement notices and formal warnings" and contains new sections 39P
to 39W.
Section 39P ensures that only those authorised officers who have been
expressly appointed are able to exercise the powers to issue improvement
notices and formal warnings. Due to the discretion required to issue these
notices and warnings only senior officers will be appointed to exercise
these powers.
Section 39Q contains a new power for an authorised officer to give a person
who the officer reasonably believes has contravened, is contravening or is
likely to contravene a provision under the Act relating to the operation of a
heavy vehicle, an improvement notice. The purpose of this provision is to
facilitate authorised officers working with heavy vehicle drivers and
operators to assist them to comply with heavy vehicle operating
requirements.
The notice must require the person to remedy the contravention or likely
contravention within the period stated in the notice.
The substantive matters that the improvement notice must set out are:
· that the authorised officer reasonably believes that a person has
contravened, is contravening or is likely to contravene a provision
under the Act relating to the operation of a heavy vehicle;
· the reason for the belief; and
· the relevant provisions of the Act.
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Transport and Other Legislation Amendment Bill (No. 2) 2010
The notice may also set out the way the alleged contravention or likely
contravention is to be remedied.
Section 39R provides that it is an offence to contravene an improvement
notice. The maximum penalty is 80 penalty units (currently $8,000).
Section 39S sets out the procedure for amending an improvement notice.
Subsection (3) requires that any amendment must be done by the giving of
written notice to the person who is subject to the improvement notice.
Subsection (5) provides that the written notice must state the reasons for
the amendment. It must also inform the person that the decision to amend
the improvement notice is a reviewable decision. This means the person
can ask the chief executive to reconsider the decision and, if they are not
satisfied with the reconsidered decision, apply to Queensland Civil and
Administrative Tribunal for further review.
Section 39T provides for the cancellation of improvement notices and
requires that written notice of cancellation must be given to the person.
Section 39U allows an authorised officer to state, by way of a clearance
certificate, that any or all requirements of an improvement notice have been
complied with. Once the person receives that certificate, the requirement
under the improvement notice stops having effect.
Section 39V provides for the giving of formal warnings by authorised
officers. Under subsection (1), these warnings can be given only if the
officer believes that the person took reasonable steps to prevent a
contravention of the Act and was unaware of the contravention. They can
also only be given where the contravention is one that is appropriate to be
dealt with by the giving of a formal warning. Under subsection (2) the
warning must be in writing. Subsection (3) states circumstances in which a
formal warning must not be given - namely in relation to suspected serious
mass, dimension, loading and fatigue offences.
Section 39W allows for the withdrawal of a formal warning within 21 days
after the warning is given. Under subsection (2) written notice of the
withdrawal must be given to the person. Once the formal warning has been
withdraw, subsection (3) provides that proceedings may be taken against
the person for the contravention.
Clause 258 replaces the heading to chapter 6, part 3.
Clause 259 inserts a new chapter 6, part 3, division 1 which contains a
range of defined terms that are used in new part 3.
Clause 260 inserts a new heading to chapter 6, part 3, division 2.
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Transport and Other Legislation Amendment Bill (No. 2) 2010
Clause 261 amends section 164 to provide that section 164(2) does not
apply in relation to a heavy vehicle offence. The effect of this amendment
is that a court order under section 164 will not be made where a heavy
vehicle offence has been committed. Road compensation orders in relation
to heavy vehicle offences will be made under new chapter 6, part 3,
division 3 as inserted by clause 262.
Clause 262 inserts new chapter 6, part 3, division 3 which deals with road
compensation orders.
New section 164AA inserts a definition for new division 3. This definition
clarifies that road compensation orders in relation to heavy vehicle offences
may be made in relation to damage caused to either a state-controlled road
or a local government controlled road.
New section 164AB will allow the court to make a road compensation
order where a heavy vehicle offence has been committed and there has
been damage to any road infrastructure as a consequence of the
commission of the offence.
Section 164AC sets out the matters that the court may take into account
when assessing the amount of compensation payable under a road
compensation order.
Section 164AD requires that the defendant be provided with copies of any
certificates mentioned in section 164AC. These certificates deal with
matters such as the estimated costs of remedying the damage to a road, and
the extent of the defendant's contribution to the damage. Subsection (3)
requires a defendant who wishes to challenge a statement in a certificate to
give written notice of that challenge.
Section 164AE states various limits on the maximum amount of
compensation that a court can order.
Section 164AF provides that the court has the same power to order costs in
relation to proceedings for a road compensation order as it has under the
Uniform Civil Procedure Rules.
Section 164AG states that the road compensation order, and any award of
costs, is enforceable as if it was a judgement of the court in a civil
proceeding.
Section 164AH deals with the relationship between road compensation
orders and other orders or awards that can be made by courts and tribunals.
This section ensures that a defendant is not required to pay compensation
more than once in relation to the same damage.
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Transport and Other Legislation Amendment Bill (No. 2) 2010
Clause 263 inserts new chapter 6, part 3, division 4, heading.
Clause 264 amends section 164A to insert reference to refer to a "heavy
vehicle offence". This term is defined in new section 163F.
Clause 265 inserts a new chapter 6, part 3, division 5 which deals with
supervisory intervention orders. New section 164B allows a court to make
such an order, on application by the prosecutor, where a person has been
convicted of a heavy vehicle offence. Subsection (2) states the
circumstances in which the court may make a supervisory intervention
order. In particular, a court may only make such an order if the court
considers it appropriate in light of the number of heavy vehicle offences
that have been committed by the person. It is expected that such orders
would only be made against those who are systematic or persistent
offenders against heavy vehicle operating requirements. Prior to making an
order, the court must also be satisfied that the order is capable of improving
the person's ability or willingness to comply with heavy vehicle operating
requirements.
Section 164C states the requirements that may be contained in a
supervisory intervention order.
Section 164D provides for the amending or revoking of a supervisory
intervention order.
Section 164E contains an offence for a person who contravenes a
supervisory intervention order with a maximum penalty of 100 penalty
units (currently $10,000).
Clause 266 inserts a new heading to chapter 6, part 4.
Clause 267 states those decisions relating to improvement notices that are
reviewable decisions under the Act.
Clause 268 amends the dictionary to insert reference to a number of new
defined terms relevant to the amendments outlined above.
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Transport and Other Legislation Amendment Bill (No. 2) 2010
Part 10 Amendment of Transport
Operations (TransLink Transit
Authority) Act 2008
Clause 269 provides that this part amends the Transport Operations
(TransLink Transit Authority) Act 2008.
Clause 270 omits the current section 45 and replaces it with section 45
(Annual report). Subsection 45(1) will require TransLink to include
various matters in each annual report. These matters include:
(a) relevant Ministerial directions related to the reporting year;
(b) a statement of how TransLink performed its functions during the year
compared with the expected performance under the network plan;
(c) details for funding or other financial assistance for each holder of a
service contract for the TransLink area who received State funding or
other financial assistance;
(d) reasons for the funding or other financial assistance mentioned in
paragraph (c); and
(e) any other matter prescribed under a regulation.
Subsection 45(2) defines `state funding or other financial assistance' as
funding or other financial assistance provided by the State under section 52
of the Transport Operations (Passenger Transport) Act 1994.
Part 11 Amendment of Transport
Planning and Coordination Act
1994
Clause 271 provides that this part amends the Transport Planning and
Coordination Act 1994.
Clause 272 amends section 3 (Definitions) to clarify the definition of
transport associated development by omitting `and the integration of a
prescribed transit node into the community within which it is to operate in
a way that contributes to the economic and social wellbeing of the
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Transport and Other Legislation Amendment Bill (No. 2) 2010
community' and the section 3 editor's notes on transport associated
development. This amendment resolves an inconsistency with the
objectives of section 8A of the Act.
Clause 273 corrects section 8A (Object of pt 2A) by replacing `so' in
section 8A(2)(h) with `as'.
Clause 274 inserts new section 27A (Power of chief executive to dispose of
land subject to easement) to enable the chief executive to dispose of land
subject to an easement. This section applies if the chief executive
reasonably believes an easement over all or part of the land is necessary to
ensure the structural and operational integrity of transport infrastructure.
In this case, the chief executive may take an easement over the resumed
land prior to offering the land back to the former owner under section 41 of
the Acquisition of Land Act 1967. The value of the easement must be taken
into account in the determination of the price at which the land will be
offered.
Clause 275 replaces section 28 (No compensation for works after notice of
intention to resume or agreement to acquire) with a new section 28
(Matters affecting compensation payable). New subsection 28(b) ensures
regard must not be had to any change in the value of the land as a result of
the declaration of a prescribed transit node.
Clause 276 amends section 28AA (Declaration of area used or to be used
for particular purposes to be prescribed transit node) to ensure that minor
changes that affect the footprint do not invalidate the declaration of a
prescribed transit node.
Clause 277 inserts a new section 36H (Storing emergency contact
information electronically on a relevant prescribed document) into the
Transport Planning and Coordination Act 1994. The new section 36H is
simply a relocation of the provisions removed from the Adult Proof of Age
Card Act 2008 and Transport (New Queensland Driver Licensing)
Amendment Act 2008 by Chapter 4, Parts 1 and 5 in this Bill.
Because the Transport Planning and Coordination Act 1994 is an umbrella
Act for transport legislation, the provision providing for the storing of
emergency contact information will now only appear once in the statute
book, whereas previously it was required to appear in three separate Acts.
This is an administrative amendment that provides for a more efficient and
streamlined drafting practice.
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Transport and Other Legislation Amendment Bill (No. 2) 2010
Clause 278 inserts a new part 7 (Transitional provision) for this Act
providing amendment of the Transport Planning and Coordination
Regulation 2005 by this Act does not affect the power of the Governor in
Council to further amend the regulation or to repeal it.
Part 12 Amendment of Transport
Planning and Coordination
Regulation 2005
Clause 279 provides that the Regulation amended in this part is the
Transport Planning and Coordination Regulation 2005.
Clause 280 amends section 4 (Prescribed transit nodes--Act, s28AA). This
is a consequential amendment to clause 276 of this Act.
Part 13 Minor and consequential
amendments
Clause 281 provides the schedule amends the Acts it mentions. These are
the Transport Infrastructure Act 1994, the Transport Operations (Road Use
Management) Act 1995, the Transport Operations (Passenger Transport)
Act 1994, the Transport (New Queensland Driver Licensing) Amendment
Act 2008 and the Transport Security (Counter-Terrorism) Act 2008.
Schedule Acts amended
Transport Infrastructure Act 1994
1 - 12 make consequential amendments to update the relevant sections in
relation to the Sustainable Planning Act 2009.
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Transport and Other Legislation Amendment Bill (No. 2) 2010
Transport Operations (Passenger Transport) Act 1994
1. Reinstates section 97(2).
Transport Operations (Road Use Management) Act 1995
2. Schedule 4, definition work, paragraph (d)(vii) `subparagraph' is
omitted and replaced by `any of subparagraphs'.
Transport (New Queensland Driver Licensing) Amendment Act 2008
1. Sections 26(1) to (3) are renumbered as sections 26(2) to (4).
2. A minor consequential amendment is made to section 26 of the
Transport (New Queensland Driver Licensing) Amendment Act 2008.
The original section 26 amended section 77 of the Transport
Operations (Road Use Management) Act 1995. The schedule
provides for the heading to section 77 to be amended to more
appropriately reflect the changes made to that section by the Transport
(New Queensland Driver Licensing) Amendment Act 2008.
Transport Security (Counter-Terrorism) Act 2008
1. Part 2, section 25(6)(b) of the Transport Security (Counter-Terrorism)
Act 2008 is amended by replacing the words `manual 2 - Managing
exercises' with `manual 42 - Managing exercises'. It ensures users of
the Transport Security (Counter-Terrorism) Act 2008 are directed to
use the correct publication in testing their risk management plan.
© State of Queensland 2010
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