EXPLANATORY PAPER FOR THE PROPOSED CITY LINK (GENERAL) REGULATIONS 1999

PURPOSE OF THIS PAPER

1. The purpose of this Paper is to provide background and explanatory information on the proposed Melbourne City Link (General) Regulations 1999. In addition to explaining the effect of the proposed Regulations, the Paper contains general information on the Project and the legislative framework for the collection of tolls.

2. These Regulations are required to support the implementation of the Melbourne City Link and Exhibition Street Extension Projects by prescribing a range of matters that are required to give effect to certain provisions of the Melbourne City Link Act 1995 (the Act).

3. Under the Subordinate Legislation Act 1994, a Minister responsible for the administration of an Act must prepare a regulatory impact statement (RIS) in respect of any Regulations proposed to be made under that Act unless one of a number of exemptions or exceptions specified in the Act apply. In the case of the proposed Melbourne City Link (General) Regulations 1999, the exemptions contained in sections 9(1)(a) and (c) of that Act apply. That is, the Regulations are either considered to impose no appreciable burden, cost or disadvantage on any sector of the public or they are fundamentally declaratory or machinery in nature. Accordingly, a RIS will not be prepared for these Regulations.

4. Even though no RIS will be published, the Subordinate Legislation Act requires that the Authority consult with relevant stakeholders. The Authority has prepared this explanatory paper to facilitate that consultation. Further, the Authority recognises that there is a high level of public interest in the Melbourne City Link and Exhibition Street Extension Projects and has therefore made this explanatory paper available for information purposes.

BACKGROUND

Overview of the Melbourne City Link Project

5. The Act makes provision for the construction and operation of a system of roads to be known as the Melbourne City Link (Link road) and the Exhibition Street Extension (Extension road). Funding for the Link road and Extension road will be provided largely by the private sector. The companies that hold the concessions to operate and maintain these roads are authorised under the Act and associated Agreements to collect tolls from users of toll zones on those roads. As administrative arrangements may change from time to time, the company operating the roads at any given time is referred to in the Act as the “relevant corporation”. The Act designates City Link Ltd. as the “relevant corporation” for tolling purposes but allows other bodies to be designated in accordance with the Agreements.

6. The Melbourne City Link was designed to rectify traffic problems well known to Melbourne commuters and business people who rely on road transport. Currently, four radial freeways come to an end on the city fringe spilling thousands of cars and trucks a day onto inner city roads.

1 7. By linking three of these four freeways, the Link road will provide a free flowing road system into and around Melbourne’s city centre. The $2 billion project will include 22 kilometres of multilane roads, a major bridge over the and two tunnels measuring 3.4 km and 1.6 km, under the Yarra River and surrounding streets and parkland.

8. The Melbourne City Link project, ’s largest urban infrastructure development, is being developed by a private company as a BOOT (Build, Own Operate, Transfer) project on the basis of a concession granted by the State Government. The Extension road project is an adjunct to the City Link project and provides a long needed access road on the south-eastern edge of the CBD. This road will connect Exhibition Street to Swan Street and the southern section of the Link road by a bridge over the Jolimont railyards.

9. At this stage the Western section of the Link road is scheduled to open in May 1999 and the Southern section in August 1999. The Extension road is likely to open around September 1999.

Overview of the Tolling System

10. Project planners recognised that, for efficient traffic flow, tolls for use of the roads must be managed electronically. Manual toll collection would lead to unacceptable delays in travel time, operational cost burdens and more land for toll plazas. The Act and Agreements therefore require that tolls must be collected electronically in order to provide unimpeded traffic flow on the roads. As the tolls will be metered by a sophisticated scanning system, there will be no need for drivers to slow down or stop to pay tolls. The result will be fast, safe and stress free travel for about 600-700,000 drivers and their passengers each year.

11. The absence of barriers or tollgates, however, denies the operators the more conventional means of enforcing the payment of tolls. There will be no facility to pay in cash and hence no staff on the roads to accept or to enforce payment.

12. The State has entered into Concession Deeds for both the Melbourne City Link and Exhibition Street Extension Projects. These Deeds entitle the concession holders to collect tolls from vehicles using toll zones on these roads other than the “exempt vehicles” specified in the Agreements. While the Deeds set out the commercial agreement on the collection of tolls, it is the Melbourne City Link Act that actually requires users to pay those tolls.

13. Under section 73 of the Melbourne City Link Act 1995, it is an offence to drive a vehicle on a toll zone on the Link road or Extension road unless that vehicle has been registered with Transurban as the “relevant corporation” for tolling purposes under Part 4 of the Act. This offence does not apply in the case of a vehicle that is exempted by the Regulations from the requirement to be registered or from the payment of tolls. This offence carries a $100 penalty if the matter is dealt with by an infringement notice issued under section 80 of the Act. Alternatively, if the matter is heard in Court and evasion is proven, a maximum penalty of $500 can be imposed by the Court (plus $40 costs to Transurban).

14. A person wishing to use the Link road or Extension road may register a vehicle by opening an account with the relevant corporation in advance of using the roads. In most cases, an electronic tag (e-TAG) placed in the vehicle will enable the tolling

2 system to identify the vehicle’s account and automatically deduct from that account the required toll as the vehicle passes under a gantry in a toll zone. Customers may replenish their toll accounts by cash, cheque, credit card, direct debit or other agreed means. Alternatively, if a person is an infrequent user of the Link road or Extension road, he or she may purchase a day pass which enables unlimited use of the toll roads by a specified vehicle on the day for which it is issued.

15. Registration will be a commercial arrangement between the customer and the relevant corporation. The terms of these arrangements are a matter for the relevant corporation and its customers. The Act does not prescribe these arrangements although the concessions granted by the State set certain parameters.

16. As a tag equipped vehicle travels through a toll zone, an overhead scanner will detect the vehicle. A computerised visual recognition system will scan the vehicle and match its classification to the tag type. There are unique tags for vehicles of different classes. The objective of this process is to ensure that, for example, a tag for a car (for which tolls are cheaper) is not used in a truck. Next the computer tolling system will automatically calculate the appropriate toll for the trip and deduct the amount from the user’s account. The tag will make a single beep when a valid transaction occurs. It will also warn motorists when their balance is low by emitting two beeps.

17. When the system detects a vehicle with no tag, an image of the vehicle will be taken by a camera on the tolling gantry and will be stored in a computer file, together with a record of the date, time and place of that trip. Safeguards in the tolling system will guarantee that the privacy of all individuals is protected. Data collected by the toll system will be secure and, except as authorised under the Act, it is an offence for anyone to divulge or misuse tolling information that affects personal privacy.

18. Occasional users of the roads may purchase day passes, giving unlimited travel during that day. Day passes will be available by telephone or from designated retail outlets. The use of day passes is metered by cameras that scan the licence plate numbers (LPN) of vehicles at each tollpoint. The registration number of a vehicle read from the image captured by the camera is checked against a file of day pass registrations for that day.

19. The tolling system is designed to identify vehicles using the Link road and the Extension road and to debit the relevant customer account with the appropriate amount of toll. The tolling system also contains records of customers, their vehicles, accounts and the credit transactions recording payments, refunds, etc, and the debit transactions recording tolls and fees associated with their use of the roads.

20. When the road’s operator detects use of a toll zone by a vehicle that is not registered with the relevant corporation, it investigates the incident for potential enforcement action. As it is possible to purchase a day pass until noon of the day following the day of travel this investigation cannot be completed before that time.

3 Legislative framework for tolling

21. The obligation to register vehicles with Transurban and to pay tolls is imposed under the Act, in accordance with the parameters set by the Concession Deed. The draft Regulations do not impose any obligation to pay tolls or to register vehicles for tolling purposes but deal only with ancillary machinery issues. Specifically, Part 4 of the Act creates the legal obligation of users of the roads to pay tolls:

a. Section 70 enables Transurban to levy tolls on the users of the roads;

b. Section 71 enables Transurban to publish notices specifying toll zones and the applicable tolls, which are to be in accordance with the tolls authorised under its Agreements with the State as ratified by Parliament;

c. Section 72 provides that, if a person uses a toll zone, that person owes the applicable toll to Transurban as a civil debt;

d. Section 73 of the Principal Act requires vehicles to be registered for tolling purposes when used on toll zones. Use of a vehicle on a toll zone when it is not registered for that purpose can result in the issue of an infringement notice with a $100 penalty. Where a case is heard in open Court and the Court finds a person guilty, the maximum fine is $500 plus $40 enforcement costs to be paid to Transurban;

e. Transurban maintains a register of vehicles authorised to use the Link under section 73A of the Act. In legal proceedings relating to tolling, certificates produced by Transurban as to the registration or non-registration of a vehicle can be adduced in evidence [see section 89 (4) (a)].

22. The Act enables Transurban to make it a condition of ongoing registration that the applicant enter into an agreement with Transurban for the payment of tolls (see section 73B) or, in the case of temporary registration, that the applicant purchases a day-pass (see section 73C).

23. In concept, these arrangements are analogous to the sale of tickets to travel on public transport. The penalties for driving on toll zones without current tolling registration are, in fact, the same as for travelling on public transport without a current ticket. It should be emphasised that it is the Act that imposes the obligation to pay tolls. The Regulations deal with some machinery matters relating to tolling, such as recording the use of vehicles.

24. In addition to these provisions of the Act, the following Regulations have been or will be made to prescribe certain matters prior to opening of the roads:

a. The Melbourne City Link (Prescribed Administrative Costs) Regulations 1999 were made by the Governor in Council on 2 March 1999 (Statutory Rule No. 22/1999). The Act provides that the enforcement agency (the Traffic Camera Office of the Police) may prosecute an alleged offender on summons or serve an infringement notice on the person. A person who receives an infringement notice may choose to have the matter heard in court. Section 76 provides that, if the matter is dealt with in court, and the charge is found proven, whether or not a conviction is recorded or a penalty imposed for the offence, the Court must make an order requiring the person to pay to the 4 relevant corporation the prescribed administrative costs (if any). These Regulations therefore prescribe the administrative costs payable by a person to the relevant corporation if a case for an offence against section 73(1) of the Act is taken to court and the charge is found proven. The prescribed amount is $40 in respect of each charge found proven.

b. The Melbourne City Link (Start – Up Period) Regulations 1999, which are expected to be made by the Governor in Council in April, will prescribe a “start-up period” of 3 months from the commencement of tolling. During the start-up period, the penalty for an infringement notice issued in respect of a toll evasion offence against section 73(1) of the Act, will be reduced from $100 to $25. This recognises the fact that some users of the Link road may take some time to familiarise themselves with the new tolling system.

c. The Melbourne City Link (General) Regulations 1999 are required to prescribe matters relating to exempt vehicles, signage for toll zones, forms and certificates for the purposes of the Act, persons authorised to bring proceedings for certain offences and prescribed devices and prescribed processes required for the tolling system. It is these Regulations which are the subject of this explanatory paper. A detailed explanation of each provision of the proposed Regulations together with reasons for the provision is provided later in this paper.

25. Under the Act and the Agreements, the concession holders are to operate and maintain the roads and exercise relevant road administration powers. This does not apply to emergency powers or powers of a regulatory or enforcement nature, which are reserved to public authorities1.

26. In addition, some amendments are required to be made to regulations under the Road Safety Act 1986 and the Transport Act 1983. The required amendments are as follows:

a. Minor amendments to the Transport (Roads and Property) (Amendment) Regulations 1999 are required to facilitate the relevant corporation carrying out certain road administration functions in respect of the Link road and Extension road.

b. The Road Safety (Traffic) Regulations 1988 were recently amended to specify certain traffic management provisions that are to apply to the Link road and Extension road.

THE PROPOSED MELBOURNE CITY LINK (GENERAL) REGULATIONS 1999

PART 1 – PRELIMINARY

27. This Part states the objectives of the Regulations and contains introductory matters and definitions of terms that are used in the Regulations. The specific objectives of the Regulations are –

a. to exempt those vehicles from tolls which, under the Agreements, may be exempted (the Act does not permit the Regulations to exempt other

1 See, for example, clauses 2.17 and 2.18 of the Concession Deed for the Melbourne City Link Project. 5 vehicles); and

b. to empower the relevant corporation to exempt other vehicles from the requirement to be registered for tolling purposes (the Act enables this power of exemption to be conferred only on the relevant corporation); and

c. to prescribe requirements in relation to placing notices on, or in the vicinity of, the Link road or the Extension road; and

d. to prescribe tolling devices for the purposes of Part 4 of the Act and the manner in which those devices are to be used and tested; and

e. to prescribe the process for production of images and messages for the purposes of Part 4 of the Act; and

f. to prescribe the form of infringement notices and evidentiary certificates; and

g. to prescribe persons authorised to bring proceedings under the Act in relation to matters other than tolling.

PART 2- EXEMPT VEHICLES

What vehicles may Transurban toll / not toll under the Concession Deed?

28. The Concession Deeds for the Melbourne City Link and Exhibition Street Extension Projects entitle the concession holders to levy tolls on vehicles using those roads2, other than the following “Exempt Vehicles”:

a. a police vehicle;

b. an ambulance;

c. a fire service unit;

d. a State Emergency Service vehicle;

e. a vehicle of the Australian Defence Force, conveying any of its members or property while on march or duty;

f. a vehicle being utilized in the performance of emergency services under authority of a statute or the State; or

g. in relation to the Extension road, a vehicle used on that road in connection with works and operations on that road.

29. As can be seen from this list, the vehicles to be exempted are mainly “emergency vehicles”. In addition, Transurban, as the operator of a private business, has discretion not to charge tolls for certain vehicles if it chooses.

2 See: · City Link Concession Deed, Schedule 1 to the Act (“the CD”), clause 9.2 (e) and (k). · Exhibition Street Extension Concession Deed, Schedule 6 to the Act (“the ESEP Deed”), clause 9.2 (e) and (k). · Integration and Facilitation Agreement (“IFA”), Article 10. 6 What is the effect of exemption under the Concession Deed?

30. The Concession Deeds describe the vehicles that the State and Transurban have agreed should or should not be tolled. But the Deeds do not directly require users of the Link road or the Extension road to pay tolls. The Deeds are contracts and, generally speaking, they impose rights and obligations only on the parties to those contracts. The obligation to pay tolls and to register vehicles for tolling purposes is imposed by the provisions of the Melbourne City Link Act outlined in paragraph 21 above.

31. Similarly, the Deeds do not themselves exempt the drivers of certain vehicles from the Act’s requirement for vehicles to be registered for tolling purposes. The obligation of drivers to pay tolls and to register their vehicles with Transurban for tolling purposes is imposed by Part 4 of the Act, not by the Concession Deed. For this reason, the Act enables Regulations to be made that¾

a. Exempt vehicles from tolls that, under the Agreements for the Melbourne City Link and Exhibition Street Extension Projects, may be exempted from tolls3; and

b. Allow the relevant corporation to exempt vehicles from the requirement to be registered for tolling purposes4.

What is the effect of the proposed Regulations?

32. The purpose of the Regulations is to prescribe agreed categories of exemption with precision for enforcement purposes. The Act does not authorise the Regulations to exempt vehicles which, under the Concession Deed, are to pay tolls. This would be a breach of the State’s contractual obligations under the Concession Deed.

33. There are two kinds of exemptions allowed by the Act. The first is exemption from the requirement to pay a toll (section 73 (6)). Proposed Regulation 201 is intended to allow the exemption of those vehicles which, under the Agreement, the State and Transurban have agreed should not pay tolls.

34. The second type of exemption is where Transurban, as the relevant corporation for tolling purposes, decides to exempt a vehicle from the requirement to be registered (section 73 (5)). Proposed Regulation 202 confers discretion on Transurban, as the operator of a commercial enterprise, to exempt classes of vehicles. This also provides Transurban flexibility in the administration of tolling, and could be used to introduce tolling arrangements not based on vehicle registration or toll exemption for specified vehicles.

35. It would be possible to make regulations which simply adopt the wording of the Concession Deed. However, the language of the Concession Deed does not define the scope of the exemptions with sufficient precision for enforcement purposes. Driving on a toll zone without registration or exemption from registration is an offence. The Regulations therefore need to prescribe precisely the scope of the exemption so that users can know whether or not they must register their vehicles.

3 See sections 73 (6) and 118 (1) (c) of the Act. 4 See sections 73 (5) and 118 (1) (ca) of the Act. 7 Vehicles to be exempt from payment of toll

36. In the Concession Deed, the State and Transurban agreed that no toll would be levied on a range of emergency and Defence Force vehicles. The intent of the parties was that emergency services and the Defence Force should not be impeded in the performance of their functions. This is also reflected in clause 2.17 of the Concession Deed, where the parties agreed that nothing in the Concession Deed would affect the operation of laws relating to emergency services.

37. Most of the exemptions in the Concession Deed are based solely on the status of the vehicle as one operated by a recognised emergency service, namely, police vehicles, ambulances, fire service units and State Emergency Service vehicles. These vehicles are exempt whether or not they are actually engaged in emergency services at the time of using the toll zone. Where possible, the Regulations adopt existing recognised definitions of emergency vehicles under State traffic law. Defence Force vehicles are also exempt in certain circumstances. The vehicles proposed to be exempt from tolls are as follows:

a. Police vehicles: It is proposed to exempt vehicles being driven by a member of the police force acting in the course of duty and vehicles under the control of recognised Commonwealth, State and Territory Police forces, including Military Police. A vehicle under the control of a Police Force, such as a Police patrol car, will be toll exempt by virtue of that status, irrespective of the circumstances of its use.

b. Ambulances: The draft Regulations would exempt ambulances which are recognised as emergency service vehicles under the general traffic laws of the State5, namely, ambulances under the control of:

(i) An ambulance service created by section 23 of the Ambulance Service Act 1986 or listed in Schedule 1 to that Act; or

(ii) An ambulance service created under a law in force in another State or a Territory of the Commonwealth which the Minister declares by notice in the Government Gazette to be an ambulance service to which regulation 201(a)(ii) applies. ; or

(iii) The Australian Defence Force.

c. Fire Service Units: The Concession Deed provides that Transurban will not be entitled to collect tolls for use of a “fire-service unit” on a toll zone. The proposed Regulations therefore exempt fire service units under the control of recognised fire brigades in Victoria.

d. State Emergency Service vehicles: The proposed exemption would cover vehicles under the control of the SES, including vehicles owned by SES volunteer units which are registered emergency-response vehicles.

e. Australian Defence Force Vehicles: A vehicle under the control of the Australian Defence Force that is being used to convey any of its members “while on march or duty” is exempt. The terms of this exemption are

5 See the definition of “ambulance” in Regulation 105 (1) of the Road Safety (Traffic) Regulations 1988. 8 consistent with the wording of the Concession Deed and of a toll exemption for Defence Force vehicles under Commonwealth law6.

38. In addition, the Concession Deed7 provides that Transurban is not entitled to collect a toll in respect of a vehicle which is “being utilised in the performance of emergency services under the authority of a statute or the State”. This exemption is not based on the status of the vehicle, but by reference to the fact that it is actually engaged in an emergency service at the relevant time. So, for example, a private vehicle used by the SES or a Fire Brigade in an emergency would be exempt from paying a toll on that trip.

39. It is not possible to define precisely all the circumstances where a vehicle should be exempt under this provision. The effect of the proposed Regulation 201 (g) is to exempt vehicles from tolls where, under the Road Safety (Traffic) Regulations 1988, the vehicle is exempt from compliance with certain traffic regulations, such as speed restrictions.

Vehicles to be exempt from registration

40. Section 73(5) of the Act provides that a person who uses the Link road or the Extension road without being registered is not guilty of an offence against section 73(1) of the Act if the vehicle is exempted under the regulations from the requirement to be registered. Section 118 of the Act enables the regulations to enable Transurban, as the relevant corporation, to exempt vehicles or classes of vehicles from the requirement to be registered for tolling purposes.

41. Regulation 202 confers this power on Transurban, as the “relevant corporation”. The Regulations also enable Transurban to specify exemptions that differentiate between particular cases, classes of cases or purposes, times or periods. Transurban can also grant exemptions subject to conditions to be specified by Transurban.

42. This provision is required to provide the relevant corporation with the discretion it needs to manage the roads as a commercial operation.

43. While Transurban could use the power to exempt other vehicles from payment of tolls, exemption of a class of vehicles from the registration requirement does not necessarily mean that Transurban will not collect tolls in respect of that class.

44. For example, Transurban has advertised the availability of “anonymous accounts” for those members of the public who wish to open an account to use the Link road or Extension road but are unwilling to divulge certain personal details to do so. This provision will ensure that the relevant Corporation can meet this commitment.

45. This Part, by making provision for certain exemptions and giving the relevant corporation the ability to offer the public various types of accounts, is not considered to impose any appreciable burden, cost or disadvantage on any sector of the public.

6 See section 70 of the Defence Act 1903. 7 See paragraph (f) of the definition of “Exempt Vehicle” in the Melbourne City Link Concession Deed. 9 PART 3 – NOTICES OF TOLL ZONEs

Background

46. The Act enables regulations to be made prescribing the requirements with respect to the placing of notices on approaches to toll zones to provide information to motorists. Part 3 of the proposed Regulations makes provision in relation to the placement and content of signs outside the toll zones of the Link road and Extension road.

47. Signs relating to the Link road and Extension road will be easily distinguished from other road signs by their distinctive yellow lettering on a blue background.

48. Signs relating to traffic management, such as speed and direction signs, will generally be the same as those that are used on other roads and freeways in Victoria. Such signs will be erected in accordance with the provisions of the Road Safety Act 1986 and regulations under that Act and are not dealt with in these Regulations.

Effect of proposed Regulations

49. Part 3 of the Regulations requires that notices be erected on freeways which connect with Link road toll zones and on entrances to toll zones from other roads.

50. The intent is that every driver on these roads would pass at least one advisory sign before entering a toll zone. The notices will be placed so as to provide drivers an opportunity to take an alternative route if the vehicle is not registered for tolling purposes or if the driver does not wish to pay a toll.

51. To this end, proposed Regulation 301 specifies where the notices must be placed.

52. Regulation 301 (1) specifies the locations on the connecting freeways where tolling advisory notices must be placed. These locations were chosen because all vehicles on the connecting freeway must pass these locations before reaching the toll zone and before reaching the last freeway exit prior to the commencement of the toll zone.

53. Although not required by the draft Regulations, it is also intended to place advisory signs on connecting freeways at distances of 5 kilometres and 2 kilometres before the commencement of each toll zone.

54. Regulation 301 (2) requires similar advisory signs to be placed on other roads that connect with toll zones on the Link road or Extension road. The Schedule to the Regulations lists these connecting roads.

55. Regulation 302 deals with the information to be provided by the notices. The notices must indicate that use of the toll zone is restricted to vehicles in respect of which tolls are paid or there is an arrangement in place for the payment of tolls. This is the practical effect of the requirement in section 73 of the Act that a vehicle be registered for tolling purposes at the time it is used on a toll zone. Transurban registers a vehicle when the toll is paid or a customer enters into an agreement for the payment of tolls.

10 56. Regulation 302 (2) clarifies that the notices will satisfy this requirement if they use the words “e-TAG OR DAYPASS ONLY” or “e-TAG / DAYPASS ONLY’. An “e- TAG” is the name given to the transponders issued by Transurban to customers for metering use of a vehicle on toll zones for tolling purposes.

57. Regulation 302 (3) enables other information to be included on tolling notices. Other Information which the relevant corporation considers necessary to assist users of the toll zone can also be included, such as:

a. The distance before commencement of the toll zone;

b. Information as to how a vehicle can be registered for tolling purposes. It is worth noting that, under section 73C of the Act, temporary registration sought before noon can be backdated to the previous day, thus “validating” a trip already made.

58. By ensuring that signs providing advance warning of the toll zones to motorists are placed on connecting roads and freeways, this Part does not impose any appreciable burden, cost or disadvantage on any sector of the public.

PART 4 – PRESCRIBED DEVICES AND PRESCRIBED PROCESSES

Background¾relevant provisions of the Melbourne City Link Act 1995 and Agreement

59. The purpose of Part 4 of the proposed Regulations is simply to prescribe the devices and processes which will record the use of vehicles on toll zones so as to enable those records to be used in legal proceedings relating to tolling8. Given this limited purpose, this Part does not impose any appreciable burden, cost or disadvantage on any sector of the public.

60. The requirement to pay tolls, the requirement for tolls to be collected electronically, the level of tolls and the locations of toll zones are matters that are dealt with by the Act itself and are outside the scope of these Regulations. Section 71 of the Act enables the relevant Corporation to publish a notice in the Government Gazette specifying toll zones and fixing the tolls payable for use of those zones.

61. The operation of the tolling system is explained earlier in this paper and was also detailed in a Regulatory Impact Statement released for public comment in December last year in relation to the Melbourne City Link (Prescribed Administrative Costs) Regulations 1999.

62. As already explained, section 73 of the Act makes it an offence to use a vehicle on a toll zone unless that vehicle is registered for tolling purposes or is exempt.

63. The Concession Deed provides that it is Transurban’s responsibility to operate the Tolling System. This includes the detection and reporting of offences. However,

8 Section 88 of the Act allows certain material produced by prescribed devices and processes to be used as evidence of the use of a vehicle on a toll zone. 11 the Deed also provides that Transurban will not perform any function of a regulatory or enforcement nature9.

64. Instead, where Transurban believes on reasonable grounds that an unregistered vehicle has been driven on a toll zone, it may report that offence to the “enforcement agency”10. The role of enforcement agency is to be performed by the Traffic Camera Office (“TCO”) of the Victoria Police.

65. Proceedings for a tolling offence may only be brought by an enforcement officer appointed by the enforcement agency or by a member of the Victoria Police. Thus, while Transurban can bring civil proceedings to recover unpaid tolls, the Act prevents Transurban from directly prosecuting alleged toll evaders. In addition, the Concession Deed explicitly recognises that the enforcement agency will have the same discretion in the prosecution of alleged toll evaders as with other traffic camera offences11.

66. Infringement notices are issued, at least in the first instance, to the registered operator of the vehicle as shown in VicRoads’ records (Transurban does not have a right of access to those records). The registered operator then has an opportunity to nominate the actual driver. In this case, the TCO would then issue an infringement notice against that nominated driver. This is the same “owner- onus” system as applies to traffic camera and parking offences.

Overview of Tolling Enforcement and the Production of Evidence for use in Legal Proceedings relating to Tolling

67. The Concession Deed required Transurban to develop a Tolling System which met certain specifications and to submit that System for State approval, and the relevant parts of that System are then to be prescribed by Regulations12. As mentioned above, the draft Regulations prescribe only those elements of the Tolling System which record the use of vehicles on toll zones.

68. If the relevant corporation alleges an offence to the Enforcement Agency, it must submit the evidence relevant to the two elements of the offence. The presence of the vehicle on the road is established by the printed image of the vehicle showing its registration plate. Images will also include part of the front of the vehicle, enabling the Traffic Camera Office to verify the make and model. Particulars of the date and time of travel on the toll zone are also recorded at the toll point by the tolling system. The absence of registration for that vehicle to use the toll zone is established by the absence of the registered number of the vehicle in the Register maintained by Transurban under section 73A of the Act. This Register contains particulars of all vehicles registered for tolling purpose and of the period for which they are registered.

69. The Traffic Camera Office determines the identity of the owner of the vehicle by reference to motor registration records held by VicRoads. This is the same procedure used for issuing infringement notices for offences detected by speed

9 See Concession Deed, clause 2.18 which states that Transurban’s functions “will not include powers of a regulatory or enforcement nature, such as powers relating to safety or enforcement of rules made pursuant to such powers”. 10 See section 77 of the Melbourne City Link Act. 11 See the Appendix to the Concession Deed, clause 4. 12 See clause 9.2 (o) 12 and red light cameras. Transurban does not have access to these records, which are subject to privacy controls under both the Road Safety Act 1986 and, when used for tolling purposes, under the Melbourne City Link Act.

70. The image is to be produced by the process prescribed in the proposed Regulations, as are the records of date and time of use and of the toll zone used. These data are combined by a computer (“the control unit”) together with a checksum into a computer file (the “digital file”). The checksum conforms to a rigorous international standard and is designed to detect and highlight any subsequent changes to the file.

71. The checksum ensures that an image is not used in evidence unless it survives intact through the many transmissions and processes to which it may be subjected (other than changes inherent in the process itself). Every time a digital file is output to any display device such as a computer screen or a printer, the checksum is recalculated to confirm that the data in the digital file has not been altered. The slightest change to even a single picture element or pixel, such as might occur by accidental corruption during transmission over a communication network would cause the checksum not to tally.

72. For the purposes of producing printed images of vehicles using toll zones (including data on the date and time the toll zone was used) for use in legal proceedings, the checksum process ensures the accuracy and provenance of the evidence and is a safeguard against tampering.

73. Printed images will only be used in evidence in court proceedings if the checksum procedures verify that data in the digital file has not been altered in any way.

74. The second element of the offence is the absence of registration at the time the vehicle was used on the Link. A certificate issued by Transurban on the basis of the Register it maintains under section 73A may be produced to establish that a vehicle was or was not registered for tolling purposes at a given time.

Effect of proposed Regulations

75. Regulation 401: This prescribes two types of tolling devices, namely¾

a. the transponders (or “e-TAGS”) carried in registered vehicles which enable the tolling system to identify the relevant account, and

b. the sensor units, or cameras, which take images of vehicles travelling on a toll zone.

76. There are two models of tags. These are defined in Regulation 103 by reference to their model numbers. While tags are used in metering usage of the Link road or Extension road, they do not generate material which can be used in evidence in toll enforcement proceedings. However, it would be an offence against section 74 of the Act to tamper with a tag so as to cause incorrect information to be transmitted.

77. The sensor unit is basically a camera. As with the tags, the name and model number of the sensor unit is specified in Regulation 103.

13 78. Regulation 402: This deals with the manner of use of a sensor unit. Section 88 of the Act provides that a prescribed device, when used in the manner prescribed by the Regulations, can be used to produce evidence of use of a vehicle on a toll zone.

79. The Regulation requires that the sensor unit-

a. be correctly positioned on the tolling gantry to take images of the licence plate numbers of vehicles driven in a toll zone and transfers the images to a control unit; and

b. was tested within the preceding six months or since last repaired or modified.

80. Regulation 403: This prescribes the manner of testing of the sensor unit. Those persons qualified to conduct these tests are limited to persons with appropriate technical qualifications, as defined in Regulation 103. Regulation 403 sets out the matters which have to be tested and certain record-keeping requirements. These requirements are similar to those relating to red light and traffic cameras.

81. While the Regulation imposes obligations on a testing officer, these are not onerous and no person is required to take on this role unless he or she chooses to. Further, testing officers will be remunerated for the work. For these reasons, it is considered that the Regulation does not impose an appreciable burden on any sector of the community.

82. Regulation 404: This Regulation prescribes a process for the generation of images and messages in accordance with section 88 (b) of the Act. This will enable the information to be used in evidence in legal proceedings relating to tolling. This process has been explained above.

83. It should be noted that, although the data produced by a prescribed process can be used as evidence in legal proceedings relating to tolling, contrary evidence can led by the defence. In this case, it would be up to the Court to weigh the competing evidence and resolve any question of fact on the appropriate standard of proof. Other evidence could be relevant in such cases, including evidence as to the correct functioning of the tolling computers under section 55B of the Evidence Act 1958.

PART 5 – PRESCRIBED FORMS AND CERTIFICATES

84. This Part prescribes certain forms and certificates for the purposes of the Act and is therefore generally machinery or declaratory in nature. These provisions specify the contents of infringement notices, facilitate the production of evidence for use in legal proceedings through certificates and ensure that these documents contain relevant particulars. It should be noted that these evidentiary certificates can be used in civil proceedings relating to tolling as well as alleged offences.

85. Under section 80 of the Act, an enforcement officer may issue an infringement notice for an offence against section 73 of the Act. Section 81(a) of the Act requires an infringement notice to be in the prescribed form and to contain certain other matters specified in that section. Regulation 501 provides that an infringement notice is in the prescribed form if, in addition to the things specified in section 81, it contains the particulars specified in this regulation. Among other

14 things, these particulars include the offence and date and time of offence that the notice relates to, the manner and time within which the penalty must be paid and a statement as to the manner in which the image may be viewed or purchased, if required.

86. Section 89 (1) of the Act provides that a certificate in a prescribed form purporting to be issued by the enforcement agency certifying as to any matter related to a toll which appears in or is calculated from the records kept by the enforcement agency, is evidence of that matter.

87. Section 89 (2) of the Act provides that a certificate in a prescribed form purporting to be issued by the Roads Corporation or the Department of Infrastructure certifying that on a particular date a vehicle was registered in the name of a particular person is evidence that, on that date, that person was the owner of the vehicle.

88. Regulations 502 and 503 simply provide that certificates under sections 89(1) and 89(2), respectively, are in the prescribed form if, in addition to those matters, they contain the matters specified in this regulation.

89. Section 89 (4) of the Act provides that a certificate in a prescribed form purporting to be issued by the relevant corporation, or a person authorised by the relevant corporation certifying as to a range of matters specified in that section, is admissible in evidence in any proceedings and, in the absence of evidence to the contrary is proof of the matters stated in the certificate. Regulation 504 simply provides that such a certificate is in the prescribed form if, in addition to any of these matters specified in that section, it contains the matters specified in this regulation. Such certificates will be required, for example, to be produced as evidence that a digital image was produced in accordance with a prescribed process.

PART 6 – MISCELLANEOUS

90. Section 116(1) of the Act provides that proceedings for an offence against Part 4 of the Act may only be brought by members of the police force or an enforcement officer (being a person who is authorised by an enforcement agency under section 79 of the Act). Offences against Part 4 relate to the tolling system, including the offence under section 73(1) of driving a vehicle that is not registered by the relevant corporation under Part 4 of the Act in a toll zone.

91. Section 116(2)(b) of the Act provides that proceedings for any other offence under the Act can only be brought by a member of the police force or a prescribed person. Other offences in the Act generally relate to the carrying out of the Melbourne City Link and Exhibition Street Extension Projects, such as hindering works or entering a restricted access area without appropriate authorisation.

92. Regulation 601 is a machinery provision that specifies the chief executive officer of the Melbourne City Link Authority as a prescribed person for the purposes of section 116(2)(b). As the Melbourne City Link Authority has responsibility for assisting in the development of the Melbourne City Link and Exhibition Street Extension Projects and for ensuring that the projects are undertaken and completed in accordance with the Agreements, it is appropriate that, in addition to

15 police officers, the chief executive officer of the Authority has the power to bring proceedings for these offences.

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