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1
Transport Legislation Amendment
TRANSPORT LEGISLATION
AMENDMENT BILL 1997
EXPLANATORY NOTES
GENERAL OUTLINE
OBJECTIVES OF THE LEGISLATION
The objective of the Transport Legislation Amendment Bill is to provide
for a number of amendments to a range of statutes administered by the
Department of Transport. This type of Bill is often referred to as an
"omnibus Bill" and is directed at correcting anomalies and errors and
generally tidying up legislation administered by the department.
REASONS FOR THE BILL
� To clarify under the Tow Truck Act 1973 and the Traffic Act 1949
a number of local government powers and functions, to provide
clarification of evidentiary provisions used by the Queensland
Police Service and to streamline a number of administrative
functions undertaken by the Department of Transport.
� The Bill will incorporate into Queensland Legislation provisions
of the Road Transport Reform (Dangerous Goods) Act 1995
(Commonwealth) as developed by the National Road Transport
Commission.
� The Bill will create power in the Transport Operations (Road Use
Management) Act 1995 to make regulations establishing an
accreditation scheme for the driving instruction industry and
transition provisions to the new scheme. The Motor Vehicle
Driving Instruction School Act 1969 will be repealed.
� To Transfer from the State Transport Act 1960 to the Transport
Operations (Road Use Management) Act 1995 certain sections of
the State Transport Act 1960 concerning road use and
transportation of goods by road.
� To introduce into the Transport Operations (Road Use
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Transport Legislation Amendment
Management) Act 1995 upgraded vehicle inspection procedures
and systems to ensure a high proportion of safer vehicles on
Queensland Roads and to provide a safer purchasing environment
for consumers.
� To repeal the Motor Vehicles Control Act 1975 and incorporate
the powers contained in that Act into the Transport Operations
(Road Use Management) Act 1995.
� To amend the provisions of the Transport Operations
(Passenger Transport) Act 1994 concerning certain aspects of
Operation Accreditation and Driver Accreditation and provisions
of service contracts. The Bill will amend legislation concerning
the Limousine, Bus and Coach Industries.
� To clarify certain land related aspects and other issues concerning
legislation amended by the department.
ESTIMATED COSTS FOR GOVERNMENTAL
IMPLEMENTATION
The only additional costs incurred are with road transport reform and a
reduction in licensing income to Queensland.
RESULTS OF CONSULTATION
The Proposed amendments have been supported.
NOTES OF PROVISIONS
The proposed amendments depart from FLP's in regard to the pursuit of
two policy issues:-
1. Ban the use of wheel clamps
2. Adoption of national scheme legislation for the transport of
dangerous goods
3. Development of the motor vehicle safety scheme
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Transport Legislation Amendment
BANNING THE USE OF WHEEL CLAMPS
The Traffic Act 1949 is to be amended to enable the banning of the use of
wheel clamps and empower local governments to regulate "off street"
parking through agreements with land owners.
1. The Fundamental Legislative Principle
The legislation does not adversely affect rights and liberties, or impose
obligations, retrospectively (Section 4(3)(g) Legislative Standards Act
1992.)
The Departure
The amendment clause 36 to insert section 72, Traffic Act 1949 will
provide that any agreement entered into either before or after the
commencement of the Transport Legislation Amendment Act 1997,
clause 34, section 60 (the section banning the use of wheel clamps), is
void to the extent to which it authorises, or purports to authorise, a
person to do an act in contravention of that section.
The reason for the Departure
� The subject of wheel clamping and vehicle removal for trespass
on land is based on dubious use of the common law remedy of
distress damage feasant as the basis of most private property
parking management contracts between parking management
contractors and property owners or occupiers. The wheel clamp
operator or tow truck operator demands payment of "damages"
before the vehicle is released.
� It is necessary to void agreements to the extent to which they
authorise or purport to authorise a person to detain vehicles. This
is to ensure the overriding public interest in good government,
peace and good order by reducing the altercations caused by
wheel clamping or vehicle removal in the community and
replacing the use of wheel clamps with a formal infringement
notice process for parking offences where the rights of
individuals are protected by formal legal remedy.
ADOPTION OF NATIONAL SCHEME LEGISLATION FOR
THE TRANSPORT OF DANGEROUS GOODS
The Transport Operations (Road Use Management) Act 1995 is to be
amended to include the nationally developed legislation relating to the
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Transport Legislation Amendment
transport of dangerous goods. The departures from fundamental legislative
principles are made in the national scheme legislation, and are regarded as
vital for the effective operation of this legislation.
1. The Fundamental Legislative Principle
The legislation confers power to enter premises only with a warrant.
(Section 4(3)(e), Legislative Standards Act 1992.)
The Departure
The amendment by clause 113(d) to section 26 (Entry to places),
Transport Operations (Road Use Management) Act 1995 allows an
authorised officer to enter a place if the officer reasonably believes a
dangerous situation exists in the place and it is necessary for the officer
to enter it to take action to alleviate the danger.
The reason for the departure
This FLP is departed from only in the event of a situation involving the
transport of dangerous goods by road that is causing (or likely to
cause) imminent risk of death or injury to a person, or harm to the
environment or to property.
Due to the nature of dangerous goods, the potential for disaster is
heightened if a dangerous situation exists and an authorised officer is
unable to enter immediately to assess what action is necessary to
alleviate the danger.
2. The Fundamental Legislative Principle
The legislation `confers power to enter premises, and search for or
seize documents or other property, only with a warrant issued by a
judge or other judicial officer...' (Section 4(3)(e), Legislative
Standards Act 1992)
The Departure
The amendment, by clause 116, to section 35 (Power to enter
vehicles...), Transport Operations (Road Use Management) Act 1995
enables an authorised officer to enter a vehicle other than for vehicle
inspection if the officer reasonably believes a vehicle in a place that has
been entered under section 26 (Entry to places) is used or is being used
to transport dangerous goods or a heavy vehicle is being or has been
used to transport dangerous goods.
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Reason for the Departure
Due to the nature of dangerous goods, the potential risk to public
safety and the environment is significant if the goods are not being
transported safely. It is therefore necessary for authorised officers to
be able to inspect heavy vehicles transporting or that have just
transported dangerous goods to ensure compliance with the standards
set out in the Act and Regulation.
3. The Fundamental Legislative Principle
The legislation `provides appropriate protection against
self-incrimination...' (Section 4(3)(f), Legislative Standards Act 1992.)
The Departure
The amendment, by clause 122, to section 51C (Self-incrimination no
excuse), Transport Operations (Road Use Management) Act 1995
departs from the FLP in the following manner:-
Section 51B enables an authorised officer, who reasonably believes a
person may be able to give information or produce a document that
will help to alleviate the dangerous situation, to require the person to
give the information or produce the document unless the person has a
reasonable excuse. Section 51C provides that it is not a reasonable
excuse that the giving of the information or the providing of the
document might tend to incriminate the person. However, the
information or document is not admissible in evidence against the
person, other than a corporation, in criminal proceedings, i.e. the
information an only be used for the purposes of the transport Act.
Reason for the Departure
In the interests of public safety, it is critical that authorised officers
know in a dangerous situation what category of dangerous goods are
being carried in a vehicle or are contained within a place in order to
determine the best method of alleviating the danger.
Although an individual's rights in relation to self-incrimination are
waived, it is important to note that the information provided can not be
used as evidence against an individual in criminal proceedings.
The proposed provision, though it contains the deeming provision,
also provides defences against that provision.
The proposed provision also ensures effective compliance with the
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Transport Legislation Amendment
requirements set out in the Act and Regulation relating to the transport
of dangerous goods by road.
4. The Fundamental Legislative Principle
The legislation `does not reverse the onus of proof in criminal
proceedings without adequate justification...', (Section 4(3)(d),
Legislative Standards Act 1992).
The Departure
Amendment by clause 129, to Section 79H (Additional evidentiary
aids for transporting dangerous goods), Transport Operations (Road
Use Management) Act 1995 provides that in a prosecution for a
contravention of this Act an authorised officer may give evidence that
the officer believes certain matters and where the court considers the
belief to be reasonable and there is no evidence to the contrary, the
court may accept the matter as proved.
Reason for the Departure
The requirement that the court accept the evidence of the documents or
markings to the effect that the dangerous good so declared is that
dangerous good, is purely on the basis that to do otherwise would be
to risk the safety of the authorised officer, the carrier, and any other
road user or person within the vicinity of the action of testing the
substance in order to determine the true nature of the substance.
The alternative to this is to require samples to be taken for testing to
establish the identity and properties of the dangerous goods. To do
this would require the vehicle to be either taken to a place where
qualified chemists could sample and test the goods, or to wait at the
point of interception while such people came to the vehicle and
performed on-site sampling and testing.
The vehicle would be required to wait until the goods were identified
as safe before being permitted to proceed or alternatively breached for
an offence. This would represent a significant cost to industry if this
procedure was undertaken each time a vehicle believed to be carrying
dangerous goods contrary to regulation was intercepted. In addition,
authorised officers are not trained in chemistry or the methods used to
take samples of an unknown and presumably dangerous good.
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Transport Legislation Amendment
This provision is necessary to ensure effective compliance with the
requirements set out in the Act and Regulation relating to the transport
of dangerous goods by road.
5. The Fundamental legislative Principle
The legislation `does not confer immunity from proceeding or
prosecution without adequate justification...' Section 4(3)(h),
Legislative Standards Act 1992.
The Departure
Amendment by clause 129 of the Bill to Section 79L (Helping in
emergencies or accidents), Transport Operations (Road Use
Management) Act 1995 protects a person from civil liability for an act
done honestly and without negligence and without any fee, charge or
other reward, for the purpose of helping or attempting to help in a
dangerous situation. It does not apply to a person whose act or
omission was wholly or partly the cause of the dangerous situation.
The Reason for the Departure
It is necessary to take into account that in a dangerous situation it
would be desirable for a person to provide assistance if they were in a
position to do so. This assistance may avert a potentially life
threatening situation or serious damage to the environment.
MOTOR VEHICLE SAFETY SCHEME
1. The Fundamental Legislative Principle
The legislation `confers power to enter premises, and search for or
seize documents or other property, only with a warrant...' (Section
4(3)(e), Legislative Standards Act 1992).
The Departure
Amendment by clause 113(e) of the Bill, to section 26, Transport
Operations (Road Use Management) Act 1995 enables an authorised
officer to enter a place other than a dwelling house, if the officer
reasonably believes a vehicle is offered for sale and entry to that place
is open to anyone interested in purchasing the vehicle. Entry is made
between sunrise and sunset.
The Reason for the Departure
In regard to entry to places, the powers of authorised officers are
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proposed to be expanded to allow entry to all places other than a
dwelling house. The intent of this expansion of powers is to ensure
enforcement officers are adequately able to deal with the increasingly
prevalent practice of "backyard" operations where vehicles are repaired
improperly and subsequently sold to unsuspecting buyers. The
powers would give authorised officers access to the yard of a private
residence, but not any area in or underneath the dwelling house itself.
To ensure people's liberties are protected, this power is only sought
between the hours of sunrise and sunset. It is clearly not the intent of
these powers to remove anyone's access to a chosen means of
disposing of their vehicle.
Entry to a dwelling house is limited to when a warrant is obtained.
2. The Fundamental Legislative Principle
The legislation confers `power to enter premises, and search for or
seize documents or other property, only a warrant...' (Section 4(3)(e),
Legislative Standards Act 1992).
The Departure
Amendment by clause 119 to section 46A, Transport Operations
(Road Use Management) Act 1995 will provide that where:-
(a) A vehicle is offered for sale in a place other than a motor dealer's
premises; and
(b) A motor safety certificate is not displayed (or the details are
misleading); and
(c) An authorised officer reasonably believes an offence involving
the vehicle has been committed; and
(d) The authorised officer has made reasonable attempts to locate the
seller, then the authorised officer may seize the vehicle.
The Reason for the Departure
In recent years, there has been an emerging trend for vehicles to be
offered for sale at prominent roadside locations. While some local
governments have attempted to remove the practice by introducing
by-laws prohibiting this method of sale for visual pollution reasons, in
most of the state, vehicles are still able to be sold by this method.
The proposed reforms do not intend to remove an individual's right to
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Transport Legislation Amendment
sell their vehicle in prominent locations. However, as this method of
selling vehicles has been identified as a frequent source of disposal of
stolen and improperly repaired vehicles, special provisions are
proposed to eliminate this avenue of disposal by spurious operators.
These will be that in cases where a vehicle is being sold in a location
other than a licensed motor dealer's premises or from a private
residence, and that vehicle is either not displaying a Safety Certificate
or is displaying a Safety Certificate inconsistent with the condition of
the vehicle, that vehicle may be able to be seized if officers are unable
to locate and identify the owner of the vehicle after making reasonable
attempts to do so.
Reasonable attempts would be to attending to the address identified on
the vehicle that is not more than 10 kilometres from the vehicle; or by
making a telephone call to a number displayed on the vehicle.
3. The Fundamental Legislative Principle
The legislation does not reverse the onus of proof in criminal
proceedings without adequate justification (section 4(3)(d) Legislative
Standards Act 1992).
The Departure
The amendment by clause 124 of the Bill inserting new sections 57,
57A and 57B ensures that a person who influences the conduct of a
driver will be prosecuted if a liability offence is committed. The
provision deems the influencing person to have also committed the
offence. The provision does not apply if the influencing person is
prosecuted pursuant to section 57or section 57A.
Reason for the Departure
These amendments primarily create vicarious liability. It enables the
situation where employers take responsibility for supervising their
employees and directors of companies to be responsible for the
supervision of the company. It enables them to be free of liability if
they can show that they took reasonable precautions and exercised
appropriate diligence in their role.
An example of where these provisions are required is when operators
of businesses which examine vehicles and issue Certificates of
Roadworthiness place similar pressure on employees to provide
certificates at the expense of safety considerations and obligations
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Transport Legislation Amendment
under the law.
CONSISTENCY WITH FUNDAMENTAL LEGISLATIVE
PRINCIPLES
The Legislative Standards Act 1992 defines fundamental legislative
principles ("FLP's") as "principles relating to legislation that underlie a
parliamentary democracy based on the rule of law."
CONSULTATION
Other than for minor amendments the following relevant organisations
have been consulted.
Department of Justice
Department of Local Government and Planning
Queensland Police Service
Queensland Treasury
Department of Tourism, Small Business and Industry
Department of Mines and Energy
Department of Main Roads
Department of Natural Resources
Local Government Association of Queensland
Local Government Commission
Driver Industry Working Group (Individual Members)
Royal Automobile Club of Queensland
Queensland Road Transport Association Limited
Transport and Distribution Industry Training and Advisory Board
Institute of Automotive and Mechanical Engineers
Taxi Council of Queensland
Bus and Coach Association (Queensland) Inc
North Queensland Limousine Group
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Transport Legislation Amendment
Limousine Association of Queensland Inc
Bus Operations Association of (Queensland) Inc
Queensland United Cab Drivers Guild
Caravan Industry Association
Queensland Rail
NOTES ON CLAUSES
PART 1--PRELIMINARY
Clause 1 states that the short title of the Act is to be the Transport
Legislation Amendment Act 1997.
Clause 2 provides that the Act commences on a day to be fixed by
proclamation.
PART 2--AMENDMENT OF TOW TRUCK ACT 1973
Clause 3 states the Act to be amended.
Clause 4 amends section 4.
Section 4(1A) is amended to correct a minor drafting inconsistency. The
section has been renumbered as section 4A, and a heading inserted to clarify
its legislative link to the existing definition of "motor vehicle" in section 4.
Section 4(2) is amended to correct a minor drafting inconsistency. The
section has been renumbered as section 4B, and a heading inserted to clarify
its application.
Clause 5 amends section 5 by omitting an expired transitional
arrangement. The provision applied to a person who wished to operate a
tow truck prior to 31 December 1973.
Clause 6 amends section 12(2)(e) to clarify a licence condition under the
Act that a licence holder must not tow a damaged or seized motor vehicle
by a licensed tow truck without proper authorisation including a signed
towing authority.
Subclause (2) amends section 12(2)(g) to clarify that it is a condition of
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Transport Legislation Amendment
every licence issued under the Act that the holder and the driver of a
licensed tow truck must take all reasonable precautions to prevent loss or
damage to a damaged or seized motor vehicle at all times while the vehicle
is in his or her control.
Subclause (3) amends section 12(2)(h) to clarify that it is a condition of
every licence issued under the Act that the holder must have an inventory
made, and kept at the holder's premises, listing all movable property found
in a damaged or seized motor vehicle as soon as the vehicle arrives at the
holder's premises.
Subclause (4) amends section 12(2)(i) to clarify that it is a condition of
every licence issued under the Act that the driver of the licensed tow truck
may only take the damaged or seized motor vehicle to the place nominated
in the signed towing authority.
Subclause (5) amends section 12(2)(k) to clarify that it is a condition of
every licence issued under the Act that the damaged or seized motor vehicle
must be given back to the registered owner or the owner's agent when all
reasonable charges for the towing and storage or any authorised repair work
have been paid.
Subclause (6) amends section 12(2)(l) to clarify that it is a condition of
every licence issued under the Act that the only person that may travel in a
licensed tow truck going to, or coming from, a scene of an incident or
seizure is the tow truck driver and his or her licensed assistant, the owner
(or owner's agent) of the damaged or seized motor vehicle or a passenger
who had been travelling in that vehicle.
Subclause (7) amends section 12(2)(m) to clarify that it is a condition of
every licence issued under the Act that only the licensed tow truck driver at
a scene of an incident or seizure may obtain, or try to obtain, a signed
towing authority to tow the damaged or seized motor vehicle.
Subclauses (8) and (9) amend section 12(2)(o) to clarify that it is a
condition of every licence issued under the Act that the licensed tow truck
driver must not stand the tow truck at a scene of an incident or seizure so as
to cause an obstruction to other traffic or for an unreasonable length of time
after the signing towing authority has been obtained.
Subclause (10) amends section 12(2)(p) to clarify that it is a condition of
every licence issued under the Act that a licensed tow truck must not be
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Transport Legislation Amendment
used to tow a damaged or seized motor vehicle while any passenger is in
the damaged or seized motor vehicle.
Subclause (11) amends section 12(2)(q), as a consequence of the
replacement of section 13 mentioned in clause 7, by updating language in
accordance with current drafting practice.
Clause 7 substitutes section 13 with a new section 13 which removes an
expired transitional arrangement. The matters addressed in the provision
dealt with the types of persons who could travel in a tow truck, or operate or
be employed on or in connection with the use of a tow truck prior to 31
December 1973.
Clause 8 amends section 15(c) as a consequence of the replacement of
section 13 mentioned in clause 7, by updating language in accordance with
current drafting practice.
Clause 9 amends section 19(1), as a consequence of the replacement of
section 13 mentioned in clause 7, by updating language in accordance with
current drafting practice.
Clause 10 amends section 23.
Subclause (1) amends section 23(1)(a) to clarify that a person must not
give or receive or agree to give or receive any valuable thing to or from
another person in consideration of any information or advice about an
incident or seizure that has happened or the presence of a damaged or seized
motor vehicle.
Subclause (2) amends section 23(2) to clarify that the term "valuable
thing" does not include any reasonable charge for the towing, salvage or
storage of a damaged motor vehicle or the towing and storage of a seized
motor vehicle.
Clause 11 amends section 24 to clarify that a person must not use force
or undue influence to obtain or attempt to obtain a consent to remove a
damaged or seized motor vehicle or a signature on a towing authority.
Clause 12 amends section 40(3) to prescribe that the maximum penalty
for an offence committed against the Act is 40 penalty units. This penalty
level is now commensurable with the penalty level for an offence
committed against the Traffic Act 1949.
Clause 13 amends section 43.
Subclause (1) amends section 43(2)(g), as a consequence of the
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replacement of section 13 mentioned in clause 7, by updating language in
accordance with current drafting practice.
Subsection (2) amends section 43(2)(p) to clarify that a regulation may
make provision about investigations being made into the costs incurred, or
that should have been incurred, for the towing or salvaging damaged or
seized motor vehicles as well as the appointment, and the powers and
duties, of persons to make such investigations.
Subsection (3) amends section 43(2)(u) to prescribe that the maximum
penalty for an offence committed against a regulation is 20 penalty units.
This penalty level is now commensurable with the penalty level for an
offence committed against the Traffic Regulation 1962.
PART 3--AMENDMENT 3--AMENDMENT OF THE
TRAFFIC ACT 1949
Clause 14 states the Act that is to be amended.
Clause 15 inserts a new simplified section 5(3)(a) to clarify that a local
law may be made by a local government about the driving or leading of
animals a cross a road.
Clause 16 amends section 9.
Subclause (1) repeals the obsolete terms "trolley bus", "trolley vehicle"
, "sidecar", "specially constructed vehicle", "tractor or traction engine".
Subclause (2) relocates the existing definitions of the terms "agricultural
implement", "incapacitated person", "power-assisted bicycle",
"power-assisted cycle", "power-assisted tricycle", "power source",
"propellant", "toy vehicle" and "wheelchair" from the Traffic Regulation
1962. These terms apply to the Act as well as the regulation and have been
relocated for ease of understanding and compliance.
Subclause (2) inserts new definitions for the terms "appropriately
qualified" and "approved form", as required by the amendments.
Subclause 2 substitutes the existing definitions of the following terms
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principally for the purpose of driver licensing:
� "sidecar" to clarify that a sidecar may be attached to either a
motorcycle or velociped
� "specially constructed vehicle" to clarify that a motorcycle or
tractor is not a specially constructed vehicle. For ease of
understanding, examples of the type of vehicles that are specially
constructed vehicles have also been provided
� "tractor" to clarify that a tractor is not a specially constructed
vehicle. A tractor of not more than 4.5 t GVM may be driven as
of right under a motor car driver's licence or, if it is more than 4.5
t GVM, under the appropriate rigid motor truck driver's licence
Subclause 3 amends the definition of "indication" by omitting a
redundant example
Subclause 4 amends the definition of "moped" by substituting a
simplified statement that a moped does not include a power-assisted cycle.
The existing definition of power-assisted cycle has been relocated from the
Traffic Regulation 1962 to qualify this term.
Subclause 5 amends the definition "motor vehicle" by omitting the
obsolete reference to a trolley vehicle.
Subclause 6 amends the definition "owner" by omitting the redundant
reference to section 45A omitted by these amendments.
Subclause 7 amends the definition "vehicle" to clarify that a wheelchair
is not a vehicle under the Act.
Clause 17 amends section 10 to provide for a simplified arrangement for
the appointment of authorised persons by the chief executive, by removing
the limitation on such appointments to officers of the public service only. It
will allow any appropriately qualified person, such as a crown employee
and a person employed in a government agency and acting on behalf of the
department, to be appointed as an authorised officer. A definition for the
expression "appropriately qualified" has been provided, see clause 16.
Clause 18 replaces section 11 and inserts a new section 11(1) to clarify
that the chief executive is a superintendent of traffic, and the chief executive
may appoint an appropriately qualified person to be a superintendent of
traffic.
Clause 18 inserts a new section 11(2) to clarify that the commissioner of
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police is a superintendent of traffic and that the commissioner may appoint
a police officer or an appropriately qualified officer of the public service to
be a superintendent of traffic.
Clause 19 amends section 16A.
Subclause 1 amends section 16A(1) by amending the existing definition
of "breath analysing instrument" to clarify that only an instrument approved
by regulation may be used to find out the concentration of alcohol in a
person's blood by analysing a specimen of a person's breath.
Subclause 2 also amends section 16A(1) by amending the existing
definition of "breath test" to clarify that such a test may only be performed
on a specimen of breath using a device that has been approved by
regulation.
Subclause 3 inserts a new section 16A(1A) clarifying the circumstance
under which a person, who has been required to provide a specimen of
breath for a breath test or analysis or a specimen of blood for a laboratory
test, will be taken not to have provided the specimen.
Subclause 4 amends section 16A(2) clarifying that a person has a legal
obligation to provide a specimen of breath for a breath test when required to
do so by a police officer. This is now consistent with the legal obligation of
a person who has been arrested, or has been taken to a police station or
other authorised place, to provide a specimen of breath for analysis or a
specimen of blood for a laboratory test.
Subclause 5 amends section 16A(2A) clarifying that a person has a legal
obligation to provide a specimen of breath for a breath test when required to
do so by a police officer. This is now consistent with the legal obligation of
a person who has been arrested, or has been taken to a police station or
other authorised place, to provide a specimen of breath for analysis or a
specimen of blood for a laboratory test.
Subclause 6 inserts a new section 16A(2B) to clarify the circumstances
under which the provisions of section 16A(1C) may be applied to authorise
a police officer to require a person to provide a further specimen of breath,
or as many specimens of breath as the officer considers reasonably
necessary, to enable the test to be satisfactorily carried out.
Subclause 6 inserts a new section 16A(2C) to clarify that a police officer
may require a person to provide as many specimens of breath as the officer
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considers reasonable necessary to be given to enable a test to be
satisfactorily carried out on a specimen that the person has been required to
provide under section 16A(2) or (2A).
Subclauses 7 and 8 amend section 16A(3) clarifying that a person has a
legal obligation to provide a specimen of breath for a breath test when
required to do so by a police officer. This is now consistent with the legal
obligation of a person who has been arrested, or has been taken to a police
station or other authorised place, to provide a specimen of breath for
analysis or a specimen of blood for a laboratory test.
Subclause 9 and 10 amend section 16A(4) to clarify the circumstances
under which a requirement for a specimen of breath shall not be made
under section 16A(2) or (2A).
Subclause 11 to amend section 16A(5) to clarify that if a person who is
required to provide a specimen of breath for a breath test under section
16A(2) or (2A) at a police station or other place by a police officer declines
to go to the station or other place, may be taken by the officer, using such
force as is necessary.
Subclauses 12 ,13 and 14 amend section 16A(5A) to clarify that if a
person, who has been required by a police officer to provide a specimen of
breath or to provide the specimen of breath in the manner directed by the
police officer, fails to do so, the person then commits an offence.
Subclause 15 substitutes section 16A(5B)(a) to clarify that a person does
not commit an offence under section 16A(5A) if the person, immediately
after being required to provide a specimen of breath, produces to the police
officer a medical certificate in the approved form stating a reason why the
person can not comply with that requirement.
Subclauses 16, 17 and 18 amend section 16A(6)(b) to clarify that if a
person, who has been required to do so by a police officer under section
16A(2) or (2A), fails to provide a specimen of breath or fails to provide the
specimen of breath in the manner directed by the police officer or declines
to wait for a reasonable length of time to enable the test to be carried out, the
person may be taken to another authorised place where the person will be
required to provide a specimen of breath for analysis or a specimen of
blood for a laboratory test.
Subclauses 19 inserts a new section 16A(6)(ba) to clarify that if a police
officer reasonably suspects that a person, who produced a certificate
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mentioned in section 16A(5B)(a) immediately after being required to
provide a specimen of breath, is affected by liquor or a drug, the police
officer may take the person to another authorised place where the person
will be required to provide a specimen of blood for a laboratory test.
Subclause 20 amends section 16A(8C) to clarify that if a person who
may be required to provide a specimen of breath under section 16A(2) or
(2A) is at a hospital for treatment they may be required by a police officer to
provide a specimen of breath for analysis or a specimen of blood for a
laboratory test provided a doctor who is familiar with the person's injuries
approves of the requirement.
Subclause 21 amends section 16A(8D) to clarify the circumstances
under which a requirement for a specimen of breath or blood shall not be
made under section 16A(8C).
Subclause 22 amends section 16A(8E) to clarify that a person shall be
required by a police officer to provide a specimen of blood for a laboratory
test if the person produces a certificate mentioned in section 16A(5B)(a)
stating a reason why the person can not comply with a requirement to
provide a specimen of breath.
Subclause 23 amends section 16A(8J) by omitting the existing
paragraphs (b) and (c) and inserting a new paragraph (b) to clarify that
neither the police officer who arrested the person for an offence mentioned
in section 16A(8) or the police officer who is to operate the breath analysing
instrument can require the person to provide a specimen of breath for
analysis.
Subclause 24 inserts a new section 16A(8L) to clarify the circumstances
under which the provisions of section 16A(8M) may be applied to authorise
a police officer to require a person to provide as many specimens of breath
or blood as the officer considers reasonably necessary, to enable the
analysis to be satisfactorily carried out.
Subclause 24 also inserts a new section 16A(8M) to clarify the
circumstances under which the provisions of section 16(A)(8) or
16(A)(8C) may be applied to authorise a police officer to require a person to
provide as many specimens of breath or blood as the officer considers
reasonably necessary, to enable an analysis to be satisfactorily carried out.
Subclause 25 amends section 16A(15) by omitting a redundant reference
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Transport Legislation Amendment
to the prescribing of particulars that may be included on a certificate used
under this section.
Subclause 26 omits section 16A(15A).
Subclause 27 amends section 16A(15B) by omitting the redundant
paragraph (f).
Subclause 28 omits section 16A(15C).
Subclause 29 amends section 16A(16C) by omitting the redundant
paragraph (d).
Subclause 30 omits section 16A(16D).
Subclause 31 amends section 16A(22) to clarify its legislative link to the
new section 16(22AA) inserted by these amendments.
Subclause 32 inserts a new section 16A(22)(ba) to clarify that a person
who has been arrested for an offence under section 16(1), even though he or
she has not been required to provide a specimen of breath or a specimen of
blood because of a prescribed reason, may have his or her driver's licence
dealt with under section 16A(22AA).
Subclause 33 amends section 16A(22E) by omitting subsections 9--9B
and inserts the words "this section".
Subclause 34 amends section 16A(22)(AA) to prescribe the time when a
24 hour suspension of a driver's licence of a person mentioned in section
16A(22) will commence. This matter was addressed inadequately under
section 16A(22) and has been rewritten incorporating current drafting styles
for ease of understanding.
Clause 20 replaces section 16C.
Section 16C(1) inserts a new section 16C(1) clarifying that section 16C
applies to a person (the "offender") convicted at a prescribed place of an
offence under section 16.
Clause 20 also inserts a new section 16C(2) stating that the justices who
convicted the offender may order the offender to attend and complete a
training program during the period the offender is disqualified from holding
or obtaining a driver's licence in addition to any other penalty or
imprisonment imposed on the offender.
Clause 20 further inserts a new section 16C(3) prescribing the person
who is to approve the training program as well as the person who is to
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Transport Legislation Amendment
conduct the program.
Clause 20 further inserts a new section 16C(4) prescribing the person
who is to give a written notice to the offender directing the offender to
attend the program on a stated day and time at a stated place.
Clause 21 amends section 20A.
Subclause 1 amends section 20A(2A) by replacing the redundant term
`prescribed' with `approved' as required by the amendments.
Subclause 2 inserts a new section 20A(3A) clarifying that even though a
court makes an order directing that a person who has been convicted of an
offence under section 16 or 16A(5A) be issued with a provisional licence,
the person is still disqualified from holding or obtaining a driver's licence
other than that provisional licence, and the person may not drive a motor
vehicle during the period of that disqualification unless the person applies
for and obtains the provisional license the court ordered to be issued.
Clause 22 amends section 20B(2) by replacing the redundant term
`prescribed' with `approved' as required by the amendments.
Clause 23 amends section 37 by inserting a new section 37(3) to clarify
that an application for the closure of a road for a private commercial
purpose must be made in writing and accompanied by the prescribed fee.
Clause 24 amends section 44.
Subclause 1 amends section 44(5)(c)(iv) clarifying that a thing no longer
required to be held in police custody may be released to the owner of the
thing (the "applicant") provided all outstanding fees have been paid and
the applicant has signed a receipt accepting the return of the thing.
Subclause 2 inserts a new section 44(6A) clarifying section 44(6B)
applies when a police officer has lawfully seized a vehicle that is causing, or
likely to cause, a danger, hindrance or obstruction to other traffic in an
off-street regulated parking area.
Subclause 2 also inserts a new section 44(6B) clarifying that a police
officer may only cause a vehicle mentioned in section 44(6A) to be
removed or detained in a place for safe keeping by a tow truck licensed
under the Tow Truck Act 1973 that is being operated by a person holding a
driver's certificate.
Clause 25 amends section 44B by inserting a new section 44B(4)(a)(iii)
prescribing an official traffic sign, applying to parking throughout a traffic
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Transport Legislation Amendment
area of a local government, may also indicate the types of vehicle that a
person may park for a maximum specified time in that area..
Clause 26 inserts a new section 44BB(1) clarifies this section applies if a
local government and an occupier (a person who owns, or has an interest in,
an area of land) have an arrangement provided for under section 44BA(5)
allowing the local government to control the land as an off-street regulated
parking area.
Clause 26 inserts a new section 44BB(2) clarifying that an agreement
establishing an arrangement mentioned in section 44BB(1) must provide
for the matters prescribed under a regulation.
Clause 27 amends section 44D by replacing section 44D(3)(b) to clarify
that the notice to be attached to a vehicle for a parking offence must be an
infringement notice under the Justices Act 1886, part 4A.
Clause 28 omits redundant sections 44F, 4G and 4H. These provisions
are now obsolete as part 4A of the Justices Act 1886 controls all matters
dealing with the issue of infringement notices under all Acts.
Clause 29 omits redundant section 45A. These provisions are now
obsolete as part 4A of the Justices Act 1886 controls all matters dealing with
the issue of infringement notices under all Acts.
Clause 30 omits section 48 and inserts a new section 48 which has been
rewritten to remove a number of redundant administrative arrangements,
and to simplify the existing scheme for the keeping of records of particulars
of instruments issued under the Act by the chief executive, commissioner
or a superintendent.
The new section 48(1) prescribes the place where a record of the
particulars of an instrument issued under the Act by a responsible person
must be kept.
The new section 48(2) prescribes the place where a record of the
particulars of a person's driver's licence (including the person's traffic
history) must be kept.
The new section 48(3) prescribes the person who is taken to have
custody of the record mentioned in both sections 48(1) and 48(2).
The new section 48(4) provides that if the person who has custody of the
record certifies that an extract from, or a copy of, any entry of any
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Transport Legislation Amendment
particulars of the record is an extract from or copy of the record, it is taken
to be evidence of the particulars in the record.
The new section 48(5) provides definitions for the terms "instrument",
"issues" and "responsible person" for the purposes of this section.
Clause 31 amends section 49.
Subclause 1 amends section 49(1)(a) by omitting the redundant reference
to a person having custody of the record of the particulars of drivers'
licences as a consequence of the insertion of the new section 48 mentioned
in clause 30.
Subclause 2 amends section 49(1)(b) by substituting the obsolete
expression `officer ordinarily' with the expression `person' as a
consequence of the insertion of the new section 48 mentioned in clause 30.
Subclause 3 replaces section 49(1)(f) which has been rewritten as new
sections 49(1)(f) and (1)(fa) as a consequence of the insertion of the new
section 48 mentioned in clause 30.
Subclause 4 inserts a new section 49(1)(ga) to clarify that a certificate
signed by the chief executive about a person's traffic history on a stated date
may be accepted as evidence of the matters stated in it.
Subclause 5 amends section 49(1)(k) by substituting the obsolete
expression `officer ordinarily' with the expression `person' as a
consequence of the insertion of the new section 48 mentioned in clause 30.
Clause 32 amends section 57.
Subclause 1 amends section 57(2)(a), as a consequence of the
amendment of section 57(2)(b) to correct a minor drafting inconsistency.
Subclause 2 replaces the existing section 57(2)(b) with a new simplified
section 57(2)(b) clarifying the particular court that a person, depending
where the person is residing at the time of the application, may apply to for
the removal of the person's absolute disqualification, or a disqualification
imposed for a period greater than 2 years.
Clause 33 amends section 58(1) clarifying that the register that a person
who repairs and paints motor vehicles for reward is required to keep about
pertinent details of the particular repairs and painting carried out on motor
vehicles at the person's place needs only to be in writing instead of being in
the prescribed form.
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Transport Legislation Amendment
Clause 34 replaces section 60.
Clause 34 inserts a new section 60(1) to clarify that, unless a person has
the consent of the owner, a person must not drive, or in any way use, a
vehicle on a road, interfere with the mechanism or equipment of a vehicle,
or the harness or other equipment attached to an animal.
It further clarifies that a person must not, unless the person has the
consent of the owner, detain a vehicle that is parked or standing in a parking
space on a road or elsewhere by attaching an immobilising device to, or by
placing an immobilising device near, the vehicle so as to prevent the vehicle
from being driven out of the space. For ease of understanding, an example
has been provided to illustrate how an immobilising device may be placed
near the vehicle.
Clause 34 also inserts a new section 60(2) to clarify that section 60(1)
does not apply to a police officer while exercising a power or performing a
function under the Act or any other Act, or another person acting under a
lawful direction of a police officer.
Clause 34 inserts a new section 60(3) to clarify that section 60(1)(c) does
not apply to a person lawfully executing a warrant of execution against the
motor vehicle.
Clause 34 inserts a new section 60(4) to clarify that the application of this
section does not limit a person who holds a security interest in a vehicle
from exercising a power over the vehicle.
Clause 34 inserts a new section 60(5) to clarify that the common law
remedy of distress damage feasant no longer applies to trespass of a vehicle
on land but only to the extent it is inconsistent with section 60(1)(c).
Distress damage feasant is a common law remedy to an action in
trespass to land (the direct physical interference by a person of another
person's exclusive possession of an area of land). It permits the owner or
occupier of the land to seize the object which is causing the damage, and to
impound it until the owner or user of the object pays for the damage caused.
Clause 34 inserts a new section 60(6) to clarify that the right of a person
to remove, or cause to be removed, a vehicle that is parked or left standing
on the person's land has not been limited by the application of section 60(5).
Clause 34 inserts a new section 60(7) to clarify that section 60(6) does
not apply to a person who has illegally detained a vehicle parked on a road
or elsewhere by the use of an immobilising device.
24
Transport Legislation Amendment
Clause 34 inserts a new section 60(8) to provide individual definitions of
the terms "detain", "immobilising device", "interfere with", "owner" and
"security interest" for the purpose of this section.
Clause 35 inserts a new section 69 to allow the chief executive to approve
forms for use under the Act.
Clause 36 inserts a new Part 9 and new sections 71 and 72.
Clause 36 also inserts a new section 71(1) to clarify that section 71
applies if there was a prescribed form in use immediately before this section
commences, or an approved form is required to be used after the
commencement of this section.
Clause 36 also inserts a new section 71(2) to clarify that a prescribed
form for a matter in use immediately before the commencement of this
section is to be accepted as an approved form for the matter after the
commencement of this section.
Clause 36 also inserts a new section 71(3) to clarify that section 71 will
expire 6 months after the section commences.
Clause 36 also inserts a new section 72(1) to clarify that an agreement,
entered into before or after the commencement of this amending Act
between a private parking control organisation and a person who owns or
has an interest in an area of land, that establishes an arrangement to allow
the organisation to provide parking services on the land as an off-street
regulated parking area is void to the extent that an authorised, or purported
to authorise, a person to interfere with, or detain a vehicle on the land.
Clause 36 also inserts a new section 72(2) to clarify that a party to an
agreement, which is wholly or partly void because of section 72(1), is not
entitled to recover any money due for the providing of the services under
the void agreement from the person who owns or has an interest in the land.
This section further clarifies that the party to the agreement must repay to
the person any money received both before and after the commencement of
this section for services that were to be provided either before or after its
commencement.
Clause 36 also inserts a new section 72(3) to clarify that a person may
recover any money not repaid by the party as required under section 72(2)
as a debt.
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Transport Legislation Amendment
PART 5 AMENDMENT OF TRANSPORT
INFRASTRUCTURE ACT 1994
Clause 37 states the Act to be amended.
Clause 38 amends section 75(2) by omitting subsection (c). The chapter
will not then apply to an amusement railway that is not connected to a
railway used to transport passengers, by right or reward.
Clauses 39, 40, 41, 42 and 43 apply the Transport Planning and
Coordination Act 1994 to appeals against and reviews of decisions.
Clause 44 substitutes section 131 with a new section 131 clarifying the
mechanism for the State to lease land to railway managers for new rail
corridors. The section applies to land that is acquired for use by a railway
manager. The section also applies to land that was identified as non rail
corridor land under Section 215 of the Transport Infrastructure Act 1994 or
surrendered by another railway manager.
For land that is acquired for use as rail corridor, the section now makes a
distinction between land that can be returned to unallocated State land and
land that needs to be dealt with directly by the State in another form of
tenure. For land that is acquired and able to be returned to unallocated State
land, the Governor in Council must lease the land to the State (in perpetuity
and for peppercorn rental) under the Land Act 1994 section 17. For land
that is unable to be returned to unallocated State land (for example
Commonwealth land leased to the State) the land may be dealt with directly
by the State.
Previously a fixed term of 100 years was envisaged where the railway
manager agreed to meet the full costs of an acquisition. The section has
been amended to provide more flexibility by enabling terms of less than
100 years with an option of a further term of up to 100 years prescribed by
Regulation.
Section 336(2)(a) of the Land Act 1994 does not apply to an amendment
of the sublease. Variations to the corridor held by a railway manager under
the sublease will be frequent. This provision will enable the area of a
sublease to be varied without the need for surrender and reissue of sublease
documentation.
26
Transport Legislation Amendment
A broad inclusive definition of "acquires" is provided to clarify that other
land including non corridor land and surrendered existing rail corridor land
may be dealt with under this section.
Clause 45 amends section 134 to clarify that the railway manager for the
relevant rail transport infrastructure is able to carry out their functions and
responsibilities despite the land not being owned or leased by the manager
and that the manager and other railway operators may operate rolling stock
on the infrastructure.
Clause 46 amends section 140 clarifying that if a railway is built over or
under a road the authority which previously maintained the road retains that
responsibility.
Clause 47 substitutes section 142 with a new section 142 specifying that
the chief executive may allow a local government to extend a road across
rail corridor land. This recognises the State's responsibility for the integrity
of the rail corridor. Such an approval may be subject to conditions and is
taken not to breach the States obligation's under the lease/sublease.
Clause 48 amends section 144 clarifying that interference with the
railway under a permission or authorisation given under the Act is
permissible.
Clause 49 amends section 151 to specify, for consistency with other
provisions, that the chief executive's permission rather than the Minister's
permission is required to construct a non-accredited railway on a
watercourse.
Clause 50 amends section 191 to provide that those penalties received or
recovered under the SETON system of the Justices Act 1886 relating to
vehicle parking offences are to be paid to the relevant Government owned
Corporation.
Clause 51 applies the Transport Planning and Coordination Act 1994 to
appeals against and reviews of decisions.
Clause 52 amends section 214 to specify that Section 336(2)(a) of the
Land Act does not apply to an amendment of the sublease. This is to enable
the area of the sublease to be varied without the need for surrender and
reissue.
Clause 53 amends Schedule 1 to replace "owner" with the correct
terminology of "manager".
27
Transport Legislation Amendment
Clause 54 amends Schedule 3 to insert a number of definitions to further
clarify provisions of the Act.
PART 5 AMENDMENT OF TRANSPORT
OPERATIONS (MARINE POLLUTION) ACT 1995
Clause 55 states the Act to be amended.
Clause 56 omits section Part 15, division 3 of the Act.
PART 6 AMENDMENT OF TRANSPORT
OPERATIONS (MARINE SAFETY) ACT 1994
Clause 57 states the Act to be amended.
Clause 58 amends section 110 of the Act by increasing the membership
of the Marine Board from 5 to 6 members.
Clause 59 inserts section 113A of the Act giving the Chairperson or the
member presiding in the absence of the Chairperson, a casting vote if the
members of the board divide equally when deciding a matter.
Clause 60 amends section 115 of the Act by ensuring a board member
with a direct or indirect financial interest in an issue being considered or
about to be considered by the board, and the interest could conflict with the
proper performance of the member's duties about the consideration of the
issue, the member must disclose the nature of the interest to the Board.
The Board must inform the Minister or the chief executive of the conflict
of interest.
Clause 61 amends section 203(1) of the Act by allowing an appeal to a
District Court against a decision concerning the approval of the design of a
28
Transport Legislation Amendment
ship or part of a ship.
PART 7 AMENDMENT OF THE TRANSPORT
OPERATIONS (PASSENGER TRANSPORT) ACT 1994
Clause 62 specifies that part of the Act to be amended.
Clause 63 omits sections 12 and 13 and inserts a new section 12.
Operator Accreditation is extended to all operators of public passenger
services unless exempted by the Act or by regulation. Currently, Operator
Accreditation is only required to certain categories of public passenger
services. This clause ensures that all providers of public passenger services
will have to meet minimum requirements in terms of safety and customer
service.
Clause 64 substitutes a new section 24 and omits section 25 thereby
extending Driver Authorisation to all drivers of public passenger services
unless exempted by the Act or by regulation. Currently, Driver
Authorisation is only required to certain categories of public passenger
services. This clause ensures that all providers of public passenger services
will have to meet minimum requirements in terms of safety and customer
service.
Clause 65 amends section 37 and removes the requirement for a service
contract holder to hold Operator Accreditation. Some holders of service
contracts will not be required to hold Operator Accreditation.
Clause 66 inserts a new section 38A which provides for temporary
service contracts to have a maximum period of two years.
Clause 66 also inserts a new section 38B which clarifies that the chief
executive may enter into service contracts for the State and also that the
chief executive may enter into temporary service contracts to ensure
continuity of service or to establish a new public passenger service. This
extends the current ability of the chief executive to enter into temporary
service contracts only to ensure continuity of service.
Clause 67 amends section 40(1) and replaces the word "operator" with
the word "holder". This clarifies that the section applies to the holder of the
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Transport Legislation Amendment
service contract.
Clause 68 amends section 41(1)(f) to (k) replaces the word `operator'
with the word `holder'. This clarifies that the section applies to the holder of
the service contract.
Clause 69(1) amends section 43 and replaces the word `type' with the
word `kind'. This provides consistency with other sections of the Act.
Subclause 2 amends section 43(b) by omitting the word "an" and
inserting "a written".
Subclause 3 amends section 43(a) by omitting the words "an operator"
and inserting the words "holder of a service contract".
Clause 70 (1) amends section 44(2) by substituting a new section 44(2)
which clarifies that the provision of the five year contract is subject to the
provisions regarding temporary service contracts and provisions relating to
termination of service contracts for breach of the contract conditions or
unsatisfactory performance specified in sections 47 and 53 of the Transport
Operations (Passenger Transport) Act 1994.
Subclause 2 omits section 44(3) and inserts a new subsection (3)
ensuring that subsection (1) is subject to sections 47 and 53.
Clause 71 amends section 46 by replacing the word `operator' with the
word `holder'. This clarifies that the section applies to the holder of the
service contract. In addition, this clause removes any legislative
requirement to undertake a mid term review for a temporary service
contract. Such reviews are considered an administrative burden on both the
Government and operators when contracts are for only a short period.
Clause 72 amends section 47 replacing the word `operator' with the
word `holder'. This clarifies that the section applies to the holder of the
service contract.
Clause 73 amends section 48 replacing the word `operator' with the
word `holder'. This clarifies that the section applies to the holder of the
service contract.
Clause 74 amends section 50 (2) and (3) by replacing the word
`operator' with the word `holder'. This clarifies that the section applies to
the holder of the service contract.
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Transport Legislation Amendment
Clause 75 amends section 51 replacing the word `operator' with the
word `holder'. This clarifies that the section applies to the holder of the
service contract.
Clause 76 amends section 52 (3) (a) by replacing the word `operator'
with the word `holder'. This clarifies that the section applies to the holder of
the service contract.
Clause 77 (1) amends section 55 clarifying that Part 2 of Chapter 6
applies to scheduled passenger services as defined in the Transport
Operations (Passenger Transport) Act 1994. The term `scheduled
passenger service' is defined in the Act. `Scheduled service' is not defined
in the Act.
Subclause 2 also clarifies when the chief executive is obliged to seek
submissions from the public for the operation of a public passenger service
under a service contract by linking any public offer with the non-existence
of any person with an entitlement under section 56 of the Act.
Subclause 3 replaces the word `submissions' with `offers' to ensure
consistency throughout the Act.
Clause 78 omits section 56 and substitutes a new section 56. The new
section states when a person will have an entitlement to make a first offer
for a service contract for scheduled passenger services. For an entitlement
to exist, a service contract area or route must have been declared under
section 42 of the Transport Operation (Passenger Transport) Act 1994.
An operator must be providing a scheduled passenger service of the same
kind that is to be provided under the proposed new contract. There must be
no existing operator providing a service under a contract. All operators with
an entitlement will be entitled to make an offer.
The clause specifies that a operator will not have an entitlement if the
operator operates under a service contract that states that there is no right of
renewal. Entitlements under this clause will also not apply if performance
under the contract has been unsatisfactory and the service contract holder
has been informed that performance has been unsatisfactory or if the service
contract holder surrenders the contract. Entitlements under this clause will
also not extend to subcontractors of service contract holders.
Clause 79 omits section 57 and substitutes a new section 57. The new
section states the process to be followed when inviting an operator with an
entitlement to offer for a new service contract.
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Transport Legislation Amendment
Clause 80 omits section 58 of the Transport Operations (Passenger
Transport) Act 1994.
Clause 81 omits section 59 and substitutes a new section 59. The new
section extends the current section 59 of the Transport Operations
(Passenger Transport) Act 1994 to require the chief executive to have
regard to certain things when deciding whether an offer for a service
contract is acceptable.
Clause 82 omits section 60(2) and substitutes new sections 60(2) to
60(4). The new section imposes a process to be followed when amending a
service contract area. The chief executive will be required to give the holder
of a service contract and any other operator (for example, an operator
operating under a subcontract agreement with the holder of a service
contract) a reasonable opportunity to make a written representation of the
chief executive offer within 28 days to being notified of the decision. The
chief executive is obliged to consider the representations before making any
decision. If a decision is taken to extend an area, the existing service
contract holder must be given first opportunity to provide the service in the
amended service contract area.
If the offer made by the existing service contract holder is not acceptable
to the chief executive, particularly given the requirements specified in clause
21, or the service contract holder does not respond within 60 days, the chief
executive must invite the public to offer to provide the service.
Clause 83 amends section 61 and extends the instances in which an
operator who is successful in obtaining a service contract can be required to
compensate an unsuccessful operator to when a service contract holder is
not awarded a service contract for a service contract area or route that was
amended under section 60 of the Transport Operations (Passenger
Transport) Act 1994.
Clause 84 also replaces the word `operator' with the word `holder'. This
clarifies that the section applies to the holder of the service contract where
appropriate.
Clause 84 amends section 62 by providing an offer of a new service
contract to an existing service contract holder. The clause amends the
existing right to enter into a new service contract embodied in section 62 by
stating the chief executive must decide if a service contract holder's
performance has been satisfactory.
32
Transport Legislation Amendment
The clause also makes amendments to section 62(2)(c) of the Act which
relates to the making of an offer for a new service contract that does not
meet or substantially meet the requirements of section 59 of the Act. The
requirements of this section must be applied when deciding whether an
offer is acceptable and in deciding between two or more offers. This clause
reflects that amendment.
The clause also amends section 62(3) replacing the word `operator' with
the word `holder'. This clarifies that the section applies to the holder of the
service contract where appropriate.
Clause 85 inserts a new section 62A in the Transport Operations
(Passenger Transport) Act 1994 that will require a service contract holder
whose performance has been unsatisfactory to given formal notice of the
unsatisfactory performance. A service contract holder who is not given a
notice under this clause will be entitled to an offer for a new service contract
under section 62 so long as the proposed service contract area or route
remains the same or substantially the same.
Clause 86 inserts a new chapter 6, part 2, division 3 and inserts a new
section 62B which allows the chief executive to enter into temporary service
contracts that are expressly to ensure continuity of service either by inviting
offers from the public or from one or more operators. The clause also
provides that any renewal rights that a service contract holder would
ordinarily have under section 62 (Offer of a new service contract) will not
apply unless the temporary service contract commenced immediately after
the expiration of an existing five year service contract and the holder of the
temporary service contract was the holder of the existing five year contract
and section 62 applies to the existing five year contract.
Clause 87 amends section 67(2) replacing the word `operator' with the
word `holder'. This clarifies that the section applies to the holder of the
service contract where appropriate.
Clause 88 amends section 73(2) explicitly requiring the chief executive to
renew a taxi service licence if the licence holder's performance under the
licence has been satisfactory.
Clause 89(1) amends section 74 amending the conditions that must be
included on a taxi service licence so that a taxi that is being used as a
substitute taxi vehicle does not necessarily require the display of a
distinctive registration plate. This will allow operators of taxis in small
towns throughout Queensland to receive approval to operate specialist
33
Transport Legislation Amendment
vehicles when conditions warrant (for example approval may be given to
use four wheel drives in wet weather) without the need to register them as
taxis.
Subclause 2 also replaces the word `holder' with the word `operator'.
This clarifies that the section applies to the operator of the taxi service
licence. In some instances, the operator of the licence may be a different
person to the holder of the licence.
Subclause 3 amends section 74(4) by omitting the expression "for
subsection (4)" .
Subclause 4 amends section 74 (5) and (6) by extending the requirement
to comply with licence conditions to drivers of taxi services and requires
drivers to be informed of licence conditions through the provision of a
written notice that must be kept inside the taxi stating the area within which
the taxi may be operated and any other restrictions to which the licence is
subject. It also omits the word "maximum" setting a mandatory penalty of
40 penalty units.
Clause 90 inserts a new section 74B providing a power to make a
regulation relating to substitute taxis.
Clause 91 amends section 86 explicitly requiring the chief executive to
renew a limousine service licence if the licence holder's performance under
the licence has been satisfactory.
Clause 92(1) amends section 87 concerning the conditions that must be
included on a limousine service licence.
Subclause 2 replaces the word `holder' with the word `operator'. This
clarifies that the section applies to the operator of the limousine service
licence. In some instances, the operator of the licence may be a different
person to the holder of the licence.
Subclause 3 omits the words "for subsection 4".
Subclause 4 also extends the requirement to comply with licence
conditions to drivers of limousine services and requires drivers to be
informed of licence conditions through the provision of a written notice that
must be kept inside the limousine stating the area within which the
limousine may be operated and any other restrictions to which the licence is
subject.
Clause 93 inserts a new section 87A providing a power to make a
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regulation relating to substitute limousines.
Clause 94 omits chapter 10 of the Act and inserts a new chapter 10
dealing with review of and appeals against decisions.
Clause 95 provides that a police officer is automatically an authorised
person under the Transport Operations (Passenger Transport) Act 1994
and the chief executive may appoint certain other persons to be authorised
persons.
Clause 96 amends section 113 so that an authorised person must produce
an identity card as soon as practicable rather than at the first reasonable
opportunity.
Clause 97(1) amends Section 116 to enable persons other than
employees of a railway manager or operator to be appointed a authorised
persons. Where it is intended that authorised persons for railways be
provided with powers pursuant to the Transport Infrastructure Act 1994 to
conduct investigations of incidents the person may be an employee of a
railway manager or employee or another person. Where it is intended that
the authorised persons be granted powers pursuant to the Transport
Operations (Passenger Transport) Act 1994 these persons may be
employees of a railway manager or operator or a person prescribed by
regulation.
Subclause 2 amends Section 116 to enable persons other than employees
of a railway manager or operator to be appointed as authorised persons..
Where it is intended that authorised persons for railways be provided
powers pursuant to the Transport Infrastructure Act 1994 to conduct
investigations of incidents the person may be an employee of a railway
manager or employee or another person. Where it is intended that the
authorised person be granted powers pursuant to the Transport Operations
(Passenger Transport) Act 1994 these persons may be employees of a
railway manager or operator or a person prescribed by regulation.
Clause 98 amends Section 117 to provide consequential amendments
regarding identity cards for authorised persons for railways.
Clause 99 omits section 124 and allows an authorised officer to make a
requirement of a person in control of a vehicle without the authorised officer
having to enter or board the vehicle.
Clause 100 inserts section 124A giving authorised persons the power to
require a limousine driver to move the limousine to another place if the
authorised person reasonably believes that the limousine is plying or
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standing for hire other than at a place where it is authorised to do so. The
authorised person may require the driver to move the limousine to a place
where it may lawfully ply or stand for hire. It is made an offence to fail to
remove the limousine once this warning has been received without a
reasonable excuse.
Clause 101 inserts the word `against' in section 125 to fix an error in
drafting.
Clause 102 amends section 128 by giving authorised persons the power
to require a person who is able to give information about an offence against
the Transport Operations (Passenger Transport) Act 1994 or an offence
relating to the operation, maintenance or repair of a public passenger vehicle
to attend the office of the authorised person at a stated reasonable time to
give the information. The authorised officer must warn the person it is an
offence to fail to give the requested information or attend as required by the
notice.
Clause 103 inserts new Section 143A which was a provision previously
included in the Transport Infrastructure (Rail) Regulation 1996 and which
is now more appropriately located in the principal legislation with other
ticketing provisions. The section provides that for a person to buy or use a
concessionary ticket the person must be entitled to the concession. A
person must not buy or use a concessionary ticket unless carrying evidence
of their entitlement to the concession. This evidence must be produced on
the demand of an authorised person.
Clause 104 inserts section 143B providing a power to enter into funding
arrangements for a transport purpose other than under a service contract.
Clause 105 amends section 148 to allow inquiries to be made about a
person's suitability to holder driver authorisation. This addresses an
omission made in error in the original drafting.
Clause 106 makes a consequential amendment in relation to section 62
(Offer of a new service contract) of the Transport Operations (Passenger
Transport) Act 1994.
Clause 107 amends the category of reviewable decisions by clarifying the
category of persons who may appeal or seek a review of a decision and
omitting section dealing with stays of decisions.
Clause 108 amends the dictionary of terms used in the Act.
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Transport Legislation Amendment
PART 8 AMENDMENT OF TRANSPORT
OPERATIONS (ROAD USE MANAGEMENT) ACT 1995
Clause 109 states the Act to be amended.
Clause 110 amends section 3(1) and clarifies the overall objectives of the
amended Act in a way that makes it clear that they include matters
concerning use and operation of vehicles in a public place in addition to the
road network.
Subclause 2 amends section 3(2) by ensuring performance standards
apply to vehicles, drivers and road users.
Clause 111 inserts Part Heading entitled Part 1A--Approvals.
Clause 111 also inserts new sections 17A ,17B and 18. These heads of
power provide a regulation making power for the granting, issuing,
renewing or refusal to grant or renew various licences, certificates,
accreditations or other approvals.
Clause 112 amends section 19 prescribing grounds for suspending or
cancelling one of those licences, certificates, accreditations or other
approvals.
Clause 113 amends section 26 further defining the limitations on certain
places able to be entered by authorised officers.
Clause 114 inserts a new section 33(3A) rationalising the section in the
Act requiring heavy vehicles to move a reasonable distance to enable the
vehicle to be weighed or inspected. Presently the vehicle may be moved a
certain distance in any direction from the point at which it has been stopped.
The amendment enables it to be moved to a point within that distance of the
route the vehicle will take to its destination. This is likely to result in less
inconvenience for drivers, operators and enforcement agencies.
Clause 115 substitutes a new section 34(1) relating to the power of an
authorised officer to inspect a vehicle stationary on a road or stopped
pursuant to sections 26, 31 or 32.
Clause 116 substitutes a new section 35(1) relating to the power of an
authorised officer to inspect a vehicle in a place and the officer believes the
vehicle is used to transport dangerous goods and that vehicle may have been
used in the committal of an offence.
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Transport Legislation Amendment
Clause 117 amends section 37 and broadens the power of authorised
officers to prohibit the use of unsafe vehicles on a road to apply to use of
unsafe vehicles in public places also. This power is presently in the Motor
Vehicles Control Act 1975 which will soon be repealed. It can only apply
until the vehicle is made to conform with the provisions of the amended
Act.
Clause 118 amends section 43 by omitting section 43(4)(b) to (d) and
inserting section 43(6) (c) and (ii). The amended section confers review
and appeal rights on the owner of a forfeited thing. Those review and
appeal rights are in the Transport Planning and Coordination Act 1994.
Clause 119 inserts a new chapter 3, part 3, division 3A of the Transport
Operations (Road Use Management) Act 1995. The new division contains
additional seizure powers for certain vehicles for sale.
Clause 119 also inserts a new section 46A provides for authorised
officers, after having been unable to contact a person identifying themselves
as the owner of the vehicle, to seize that vehicle if it is either not displaying a
Safety Certificate; or is displaying a Safety Certificate which is inconsistent
with either the vehicle or its condition. The section also provides for
methods by which notice the vehicle's seizure must be advertised and
eventually disposed of if the vehicle is not claimed.
Clause 120 amends section 50 broadening the application of information
offences (power to require information) to cover circumstances relating to
standards with which vehicles must comply to use the road network,
vehicle inspection, the issue of certificates and the approval of premises.
The reference to regular inspection is intended to be limited to heavy
vehicles as defined in the Transport Operations (Road Use Management)
Act 1995.
Clause 121 inserts a new chapter 3, part 3, division 5 of the Transport
Operations (Road Use Management) Act 1995.
Clause 121 also inserts section 50A enabling an authorised officer to
issue a remedial action notice to a person whom the officer reasonably
believes is contravening the Act or has contravened the Act in
circumstances that make it likely that the contravention will be repeated.
The notice must specify the provision believed to be being contravened, the
grounds for this belief and will require the person to remedy the matters
causing the contravention.
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Transport Legislation Amendment
The new section sets out formal matters in relation to the notice and
makes it an offence for a person to fail to comply with the notice or to
remove the notice from a vehicle before the necessary action has been taken.
Clause 122 inserts a new part 4A into chapter 3 of the Transport
Operations (Road Use Management) Act 1995.
The clause also inserts a new section 51A outlining the application of
Part 4A which applies if an authorised officer reasonably believes a
dangerous situation exists. A dangerous situation is defined as "a situation
involving the transport of dangerous goods by road that is causing or is
likely to cause imminent risk of death or injury to a person, or harm to the
environment or to property."
It also inserts a new section 51B which enables an authorised officer to
require a person to give information or produce a document if the
authorised officer reasonably believes that it will help to alleviate a
dangerous situation.
The section makes it an offence for a person to fail to comply with this
requirement unless the person has a reasonable excuse.
Clause 122 inserts a new section 51C which states that in relation to
section 51B (Additional power to require information or produce a
document), a reasonable excuse does not include self incrimination.
This section also provides that the information given to an authorised
officer can then not be used as evidence against an individual in criminal
proceedings except for an offence set out in sections 52 and 53 relating to
giving false or misleading statements or false, misleading or incomplete
documents.
The substantive provisions of section 51C do not apply to a corporation.
This section forms part of the nationally uniform dangerous goods
legislation prepared as part of the 1992 Heads of Government Agreement.
Although an individual's rights in relation to self-incrimination are
waived, it is important to note that the information provided can not be used
as evidence against an individual in criminal proceedings.
Clause 122 inserts a new section 51D which enables an authorised
officer to issue a dangerous situation notice against a person when the
officer reasonably believes that a dangerous situation exists and that person
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is in a position to take steps to alleviate the danger. The notice must state
the situation the authorised officer believes is causing the danger, the
grounds for this belief and the steps to be taken by the person to alleviate the
danger.
The section sets out formal matters in relation to the notice and makes it
an offence for a person to fail to comply with the notice or to remove the
notice before the necessary action has been taken.
Clause 122 inserts a new section 51E which enables an authorised officer
to take the action the officer believes is necessary to alleviate a danger if,
either a person has failed to comply with a remedial action or dangerous
situation notice or, a remedial action or dangerous situation notice is
inappropriate to alleviate the danger.
The action an authorised officer may take under this section includes
asking a person whom the officer believes has appropriate knowledge and
experience to assist in alleviating the danger. In this circumstance the
person is taken to have the powers of an authorised officer necessary to
assist in alleviating the danger.
Clause 123 amends section 53 and is a minor drafting amendment that
does not affect the intent of this section. Section 53(1) is amended to read
section 53(2).
Clause 124 substitutes a new section 57 making the executives of
corporations accountable for offences against provisions of a transport Act.
In the context of vehicle inspections, this means that the owner of a number
of franchises will now be just as accountable as the proprietor of individual
premises and the mechanic carrying out the inspection on the vehicle.
Clause 124 also inserts a section 57A emphasising that proceedings for
an offence against a transport Act are contingent on proving a person's state
of mind about a particular offence. For the purposes of this section, it is
enough to show the act was done by a person acting as a representative of
the company at the time; or that the representative had the state of mind.
Clause 124 further inserts a new section 57B which applies to a person,
in a position of influence over a driver or person in control of a vehicle, if
that driver or person in control of a vehicle commits an offence, then the
influencing person is deemed to have also committed the offence unless the
influencing person can prove they tried to prevent the offence or proves they
could not influence the driver or controlling person.
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Transport Legislation Amendment
Clause 125 substitutes a new chapter 4 dealing with review of and
appeals against decisions.
Clause 126 amends section 75 to include an example which allows a
regulation to be created relating to traffic density, routes, and load
restrictions for vehicles with a load of more than 4.5t.
Clause 127 substitutes a new section 76 to provide for vehicle standards
regulations which relate to vehicle inspections at nominated times for certain
classifications of vehicles, the issuing of certificates and approval of
premises.
Clause 128 amends section 78 to require drivers to be in a fit state of
health and that emphasise the obligations on employers and consignors to
adhere to responsible practices. This section also applies to regulations that
flow from it such as those relating to driving hours restrictions.
Clause 128 also amends section 78 inserting new regulation making
powers about the training of drivers, and the approval of driver trainers and
driver trainer competency assessors.
Clause 129 inserts a new part 5 into chapter 5 and inserts a chapter 5A
into the Transport Operations (Road Use Management) Act 1995. The
new section 79A outlines the application of Part 5 which applies to the
transport of dangerous goods by road. This section will have the effect of
continuing a policy introduced in 1993 when the Carriage of Dangerous
Goods by Road Act was amended to cover the road transport of LPG.
Clause 129 inserts the following new sections:
The new section 79A which defines the application of the part.
The new section 79B which provides for the making of regulations on a
wide range of matters relating to the transport of dangerous goods by road.
The new section 79C enables a person to apply to the chief executive for
an exemption from compliance with a provision of the regulations.
The new section 79D sets out the offences and penalties relating to the
failure to hold a licence or to be accredited as required by the regulations.
The new section 79E provides that a person who transports by road
goods prescribed in regulations as too dangerous to transport commits an
offence.
The new section 79F outlines duties concerning the safe transport of
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Transport Legislation Amendment
dangerous goods by road.
The new section 79G provides that in a prosecution for a contravention
of this Act an authorised officer may give evidence that the officer believes
certain matters and where the court considers the belief to be reasonable and
there is no evidence to the contrary, the court may accept the matter as
proved.
The new section 79H enables a court to require a person convicted of an
offence to pay any costs to a government entity or to the State that were
reasonably incurred by the government entity or the State in taking action
against the person. Such costs include costs for testing, transporting,
storing and disposing of the dangerous goods and other evidence.
The new section 79I enables a government entity which incurs costs as a
result of an event involving the escape of dangerous goods or an explosion
or fire involving dangerous goods or the danger of such an escape,
explosion or fire, to recover so much of the costs as were reasonably
incurred.
The new section 79J this section allows a court to prohibit a person for a
stated period from involvement in the transport of dangerous goods by
road. For this to occur the person must be convicted of an offence against
the Transport Operations (Road Use Management) Act 1995 relating to the
transport of dangerous goods by road.
The new section 79K enables a court which has convicted a person for an
offence in relation to the transport of dangerous goods by road to order the
dangerous goods or anything used in connection with the commission of
the offence be forfeited to the State. Goods or a thing so forfeited may be
destroyed or otherwise dealt with as directed by the chief executive.
The new section 79L protects a person from civil liability for an act done
honestly and without negligence and without any fee, charge or other
reward, for the purpose of helping or attempting to help in a dangerous
situation.
The new section 79M authorises sub-ordinate legislation about the
operation of vehicles in public places (other than roads).
Clause 130 inserts a new section 84A facilitating an administrative
mechanism by providing that the chief executive of the Department of
Transport may approve forms for use under the Act.
Clause 131 omits section 85(3)(e).
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Transport Legislation Amendment
Clause 132 inserts new sections 92 to 92B.
The new section 92 provides for continuation of certain Local Laws,
made under the Motor Vehicles Control Act 1975 to remain in force for a
period of one year in order to enable the transfer without undue
inconvenience to systems and procedures under the amended Act.
The new section 92A provides for transitional provisions for the Motor
Vehicles Safety Act 1980 and the Carriage of Dangerous Goods Act 1984.
The new section 92B makes provision for the transition of existing
licensed driving instructors to this Act.
Clause 133 inserts a new section 93A which repeals the Motor Vehicle
Driving Instruction School Act 1969.
Clause 134 inserts Schedules to the Transport Operations (Road Use
Management) Act 1995.
Clause 135 inserts schedule 2A to the Transport Operations (Road Use
Management) Act 1995 listing reviewable decisions pursuant to section 65
of the Act.
Clause 136 amends schedule 3 (dictionary).
Clause 137 states the Act to be amended.
Clause 138 inserts a new Part 5 into the Transport Planning and
Coordination Act 1994.
The new Part 5 provides the machinery and manner of appeals from
decisions made by the chief executive, and reviews of decisions made by
the chief executive.
Clause 139 inserts section 36E into the Transport Planning and
Coordination Act 1994 by empowering the Minister to establish advisory
committees for the administration of a transport Act.
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� The State of Queensland 1997