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Road Legislation (Projects and Road Safety) Bill

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EXPLANATORY MEMORANDUM

General

Part 1 sets out the purposes of the Bill and when the various provisions commence operation.

Part 2 amends provisions of the Road Safety Act 1986 concerning drink-driving and drug-driving.

Part 3 amends provisions of the Road Safety Act 1986 concerning heavy vehicles.

Part 4 introduces a range of measures to improve the safety of probationary and younger drivers.

Part 5 reforms the "owner onus" provisions in the Road Safety Act 1986 and other legislation to assist with identifying the actual driver responsible for traffic camera, parking and tolling offences.

Part 6 requires VicRoads to block registration transfers when vehicles are subject to impoundment, immobilisation or forfeiture applications, and allows for the placing of notations on the Vehicle Securities Register established under the Chattel Securities Act 1987 to warn potential purchasers that vehicles are subject to such an application.

Part 7 makes other miscellaneous amendments to the Road Safety Act 1986.

Part 8 makes miscellaneous amendments to the Road Management Act 2004.

Part 9 amends the Land Acquisition and Compensation Act 1986 in relation to the way in which compensation is calculated where public acquisition reservations are used as boundaries for unrelated zoning purposes.

551419 1 BILL LA CIRCULATION 25/8/2006 Part 10 facilitates the construction of a project at the Mount Hotham Village. This involves relocation of the Great Alpine Road, the construction of a new road on an elevated structure and provision for the granting of rights in relation to that structure by agreement.

Part 11 facilitates the construction and operation of the M1 Redevelopment Project, which involves an upgrade of the M1 corridor from Doveton to Yarraville. In particular, Part 11 clarifies powers to vary agreements under the Melbourne City Link Act 1995 in relation to the part of City Link affected by the Project, inserts a new Schedule 5A into the Road Management Act 2004 to expedite planning processes and land acquisitions for the Project, enables licences and permits to be issued authorising construction and deals with issues related to the interface between Project works and Utility infrastructure.

Clause Notes

PART 1—PRELIMINARY

Clause 1 sets out the purposes of the Bill.

Clause 2 sets out the commencement dates for each of the provisions. Parts 1, 2, 3 (except clauses 9 and 11), 6, 7 and 8 come into operation the day after Royal Assent. These Parts contain the preliminary provisions, alcohol and other drug amendments, amendments relating to heavy vehicle operations, provisions relating to impoundment, immobilisation and forfeiture of vehicles and miscellaneous amendments to the Road Safety Act 1986 and the Road Management Act 2004. The remaining provisions of the Act come into operation on a day or days to be proclaimed, subject to sub-clauses (3), (4) and (5), which provide that various provisions will commence on various specified dates if they have not been proclaimed by those dates. Those dates are—  for clauses 16 (compulsory carriage of licence by young drivers) and 19 (drink driving offences committed by young or inexperienced drivers)—1 January 2007;  for clauses 9 and 11 (Intelligent Access Program for heavy vehicles) and 18 (compulsory carriage of learner permits)—1 July 2007;

2  for clauses 17 and 20 (probationary licences)—1 July 2008.

PART 2—ALCOHOL AND OTHER DRUGS AMENDMENTS The main purposes of Part 2 are to increase—  the penalties for second and subsequent drink driving offences (including refusal to comply with testing requirements), as recommended by the Sentencing Advisory Council;

 the penalties for drug driving offences;  the circumstances in which the court may or must impose an alcohol interlock condition when it grants a re-licensing application made by a person whose driver licence or permit was cancelled for a drink driving offence;  the minimum period before which a person whose driver licence or permit has been made subject to an alcohol interlock condition following a second or subsequent drink driving offence may apply to the court for removal of that condition. The recommendations of the Sentencing Advisory Council are contained in its Report entitled "Maximum Penalties for Repeat Drink Driving", published in September 2005. The Report recommended a general increase in the maximum terms of imprisonment to which second and subsequent offenders should be liable. It also recommended that the maximum term of imprisonment for repeat offenders should be dependant on the blood or breath alcohol concentration (BAC) of the offender and the number of prior offences that the offender has committed. The Report found that alcohol remains a leading factor in fatal road crashes in Australia. Research shows that the likelihood of a crash increases significantly with BAC level and that the crash risk associated with a BAC of 015 is 25 times higher than that associated with a zero BAC. The Report revealed that almost half of drink drivers with a high BAC (015 or more) are repeat offenders. Victorian research shows that in 2001 repeat drink driving offenders were responsible for 22 fatalities and 560 serious injuries, and that such crashes cost the Victorian community approximately $81 million each year. Accordingly, Part 2 establishes different penalty levels for first, second and subsequent offences, with the penalties being dependant on the BAC of the offender.

3 Part 2 further adopts the maximum terms of imprisonment recommended by the Sentencing Advisory Council for offenders committing second offences and subsequent offences, with the aim of reducing the number of drivers whose driving is affected by alcohol or other drugs, and in recognition of the gravity with which the community views these offences. While the Sentencing Advisory Council Report did not deal with drug driving offences, the penalties for drug driving offences are closely linked with the penalties for drink driving offences. Penalties for drug driving offences are increased by this Part substantially in line with the penalties for drink driving offences, on the basis that many of the Council's findings apply equally to drug driving.

Clause 3 amends section 48(2) of the Road Safety Act 1986. Section 48(2) sets out the circumstances in which an offence is treated as a subsequent offence for the purposes of Part 5 of that Act. The amendment provides for an offence to be treated as a second or a subsequent offence, depending on the circumstances. This is important because, under other amendments in this Part which increase penalties for repeat drink driving and repeat drug driving, two levels of penalty for subsequent drink driving and drug driving offences are created. These depend on whether an offence is a "second offence'' or another "subsequent offence" (that is, a third or later offence). Under the existing section 48(2), an offence of the kind referred to in that section is a "subsequent offence" if the person has previously been found to have committed any one of those offences. A subsequent offence carries a higher maximum penalty than a first offence. Further, the fact that an offence is a subsequent offence is relevant in determining the minimum licence loss period that will result from that offence. Under the amendments to section 49(2) and (3) (see notes on clause 4 below), the maximum penalties for third and later offences will be higher than the maximum penalties applicable to second offences. It is therefore necessary for section 48(2) to be amended to set out which subsequent offences are also to be regarded as second offences. A "new offence" against one of the provisions referred to in section 48(2) will be categorised as a second offence for sentencing purposes if the person has, only once before, been convicted or found guilty of an "old offence" against any one of those provisions.

4 The new sub-sections substituted by clause 4 for section 49(2) and (3) use this categorisation as the basis for setting maximum penalties for second offences that are different from the maximum penalties set for "other" subsequent offences, that is, for third or later offences. Second offences remain "subsequent offences" for all other relevant purposes. A second offence will, for example, result in licence loss for the period applicable to subsequent offences generally. Other amendments made to section 48(2) are intended to ensure that the new penalty levels will apply irrespective of whether the person has been either convicted or found guilty of the relevant offence.

Clause 4 amends section 49 of the Road Safety Act 1986 to set out the categories of offence for drink driving and drug driving offences, and to prescribe the penalties for each. It also amends section 50 of that Act, which contains provisions regarding licence cancellation and disqualification for drink driving and drug driving offences. The amendments increase penalties for certain drink-driving offences in line with the recommendations of the Sentencing Advisory Council "Report on Maximum Penalties for Repeat Drink Driving" (September 2005). The current penalty scales for those offences also apply to certain drug-driving and "refuse test" offences, and it is proposed to make corresponding increases in the penalties for those offences. Sub-clause (1) introduces new maximum penalties in respect of —  second offences; and  other subsequent offences (i.e. a third or later offences) — against paragraph (a) of section 49(1). Section 49(1)(a) creates the offence of being a driver who is under the influence of intoxicating liquor or of any drug to such an extent as to be incapable of having proper control of the vehicle.

5 The following table shows the maximum penalties that currently apply under section 49(2) with respect to offences against section 49(1)(a), together with the maximum penalties under the amendments proposed by clause 4(1)— Maximum term of No of offences* Maximum fine imprisonment First offence 25 penalty 3 months (no change) units Subsequent offences: At present: — 12 months Proposed:  Second 120 penalty 12 months offence units  Other 180 penalty 18 months subsequent units offences, i.e. third or later * Note that a previous offence against any one of the provisions referred to in section 48(2) counts as a prior offence for these purposes. Sub-clause (2) substitutes new sub-sections (2A) and (3) for section 49(3) of the Act. New section 49(2A) introduces new maximum penalties in respect of offences against the following paragraphs of section 49(1) of the Road Safety Act 1986, where the offence is a second offence or is another subsequent offence (i.e. a third or later offence)—

 49(1)(b): Drive or be in charge of motor vehicle while the prescribed concentration of alcohol or more is in blood or breath.

 49(1)(f): Fail alcohol breath test within 3 hours of driving.  49(1)(g): Fail alcohol blood test in respect of sample taken within 3 hours of driving. The penalties differ accordingly to whether the person had a BAC of below 015 or 015 and above.

6 The following table shows the maximum penalties that currently apply under section 49(3) with respect to offences against section 49(1)(b), (f) and (g), together with the maximum penalties under the amendments proposed by clause 4(2)—

Maximum term of No of offences* Maximum fine imprisonment First offence 12 penalty — (no change) units Subsequent offences: At present: 25 penalty 3 months units Proposed:  Second offence 60 penalty 6 months involving BAC of units less than 015  Second 120 penalty 12 months offence involving units BAC of 015 or more  Other 120 penalty 12 months subsequent units offences, i.e. third or later, involving BAC of less than 015  Other 180 penalty 18 months subsequent units offences, i.e. third or later, involving BAC of 015 or more * Note that a previous offence against any one of the provisions referred to in section 48(2) counts as a prior offence for these purposes. New sub-section (3) introduces new penalties for each of a second offence and a subsequent offence for offences under paragraphs (ba), (c), (ca), (d), (e) or (ea) of section 49(1) relating

7 to driving while impaired by a drug and refusing to undergo tests or to comply with directions given in relation to them. The new penalties for all second and subsequent offences are substantially higher than the existing penalties for a subsequent offence.

The following table shows the maximum penalties that currently apply under section 49(3) with respect to offences against section 49(1)(ba), (c), (ca), (d), (e) or (ea), together with the maximum penalties under the amendments proposed by clause 4(2)— Maximum term of No of offences* Maximum fine imprisonment First offence 12 penalty — (no change) units Subsequent offences: At present: 25 penalty 3 months units Proposed:  Second offence 120 penalty 12 months units  Other 180 penalty 18 months subsequent units offences, i.e. third or later

* Note that a previous offence against any one of the provisions referred to in section 48(2) counts as a prior offence for these purposes. Sub-clause (3) introduces new penalties for a first offence and each of a second offence and a subsequent offence in respect of offences against the following paragraphs of section 49(1)—

 49(1)(bb): Drive or be in charge of motor vehicle while the prescribed concentration of drugs or more is in blood or oral fluid.

 49(1)(eb): Refuse to provide a sample of oral fluid.  49(1)(h): Fail drugs oral fluid test in respect of sample taken within 3 hours of driving.

8  49(1)(i): Fail drugs blood test in respect of sample taken within 3 hours of driving. The new penalties for these offences are substantially higher than the existing penalties. However, the new penalties are less than the penalties for other offences under section 49(1) and do not provide for the imposition of a prison term. The proposed penalties for these drug driving offences are— Maximum term of No of offences* Maximum fine imprisonment First offence At present: 6 penalty units — Proposed: 12 penalty — units Subsequent offences: At present: 12 penalty — units Proposed:  Second 60 penalty — offence units  Other 120 penalty — subsequent units offences, i.e. third or later

* Note that a previous offence against any one of the provisions referred to in section 48(2) counts as a prior offence for these purposes. Sub-clause (4)(a) increases the period for which a court must cancel a driver licence or permit, and the minimum period the offender must be disqualified from obtaining a licence or permit, when a person is convicted or found guilty of an offence against paragraph (eb) of section 49(1) (refusing to provide a sample of oral fluid). In the case of a first offence the period is increased from 3 months to 6 months and in the case of a subsequent offence the period is increased from 6 months to 12 months. Sub-clause (4)(b) increases the period for which a court may cancel a driver licence or permit, and the maximum period the offender may be disqualified from obtaining a licence or permit, when a person is convicted or found guilty of an offence against paragraphs (bb), (h) or (i) of section 49(1) (failing a roadside drug test). In the case of a first offence the period is increased

9 from 3 months to 6 months and in the case of a subsequent offence the period is increased from 6 months to 12 months. Sub-clause 4(c) provides that where a person has been disqualified from driving as the result of a first drink driving offence involving a BAC of 007 or more, he or she can only be re-licensed if the Magistrates' Court has made a licence restoration order. Previously the BAC level which triggered the requirement to obtain a licence restoration order was 010 or more. This amendment is a consequence of other amendments made by the Bill allowing (clause 5(1)) or requiring (clause 19(2)) the court to impose an alcohol interlock condition when granting a licence restoration order in respect of a person whose licence was disqualified for a first drink-driving offence involving a BAC of 007 or more. Section 50AAA(1) of the Act makes it clear that alcohol interlock conditions are imposed as a condition of a licence restoration order, and therefore in order for the court to be able to impose an alcohol interlock condition in the situations provided for by the amendments made by clauses 5(1) and 19(2), it is necessary to ensure that a person whose licence was disqualified for a first drink driving offence involving a BAC of 007 or more is required to obtain a licence restoration order. The increase in penalties made by clause 4(1) to (4)(b), and the lowering of the BAC level for a first drink driving offence which triggers the requirement to obtain a licence restoration order made by clause 4(4)(c), will only apply to offences committed wholly after the commencement of the relevant provision (see new section 103L inserted by clause 50). Sub-clause (4)(d) is also a consequential amendment upon the alcohol interlock amendments in clause 5. Clause 5(3) and (4) repeal section 50AAA(3)(a) and replace it with new section 50AAA(3AA). This means that the notes at the end of section 50(4A) and 50(4B) which refer to section 50AAA(3)(a) need to be amended to refer to the new section 50AAA(3AA). The effect of previous section 50AAA(3)(a) and new section 50AAA(3AA) is that where the court will be required to impose an alcohol interlock condition on a person whose licence was cancelled as a result of a drink driving offence, the person does not have to obtain the report which is normally required by section 50(4B)(a) assessing his or her use of alcohol at least 12 months before applying for a licence restoration order. This issue is dealt with further in the explanation of clause 5(3) and (4).

Clause 5 makes various amendments to the provisions in the Road Safety Act 1986 regarding alcohol interlocks. Alcohol interlocks are

10 devices that prevent motor vehicles from starting unless a sample of breath blown into them has been analysed by the device as being free from alcohol. Sub-clauses (1) to (5)(a) amend section 50AAA, which requires or enables courts to impose an alcohol interlock condition on a person's driver licence or permit when they grant a re-licensing application made by that person after he or she has completed a period of disqualification imposed as the result of a drink driving offence. Sub-clause (1) inserts a new sub-section (1A) into section 50AAA to provide that the court may impose an alcohol interlock condition on a person who was disqualified from driving as the result of a first drink driving offence involving a blood or breath alcohol concentration (BAC) of 007 or more but less than 015. Previously an interlock condition could only be imposed for a first drink driving offence involving a BAC of 015 or more. Sub-clause (2) amends section 50AAA(2) to provide that the court must impose an alcohol interlock condition on a person who was disqualified from driving as the result of a first drink driving offence involving—  driving under the influence of alcohol (contrary to section 49(1)(a));  refusing to cooperate in testing procedures (contrary to section 49(1)(c), (d) or (e)); or  driving with a BAC of 015 or more (contrary to section 49(1)(b), (f) or (g)). Previously the court had discretion as to whether to impose an interlock condition in these situations. Sub-clause (3) repeals section 50AAA(3)(a), which provides that people who have been disqualified from driving as a result of a second or subsequent drink driving offence do not have to obtain the report assessing their use of alcohol which is normally required at least 12 months before they apply to the court for a licence restoration order. Sub-clause (4) inserts a new section 50AAA(3AA), which repeats this exception from the requirement to obtain an assessment report for a person who has been disqualified for a second or subsequent drink driving offence, and also extends the exception to include a person who has been disqualified for a drink driving offence referred to in section 50AAA(2) (that is, a first offence involving driving under the influence, refusing to

11 cooperate in testing procedures or driving with a BAC of 015 or more). The reason why people whose licence has been disqualified for a second or subsequent drink driving offence, or for a first offence involving driving under the influence, refusing to cooperate in testing procedures or driving with a BAC of 015 or more, do not have to obtain the report assessing their use of alcohol which is normally required at least 12 months before they apply to the court for a licence restoration order is that they will be required to have an interlock condition if the licence restoration order is granted. The fact that they will be required to have an interlock means that it is not necessary to obtain this first assessment report because—  the interlock will operate to prevent the person from drink driving even if he or she still has alcohol problems; and  the interlock will only be removed if the person can demonstrate to the court at the end of the interlock period that these problems are under control through the assessment report required by section 50AAB(5). Sub-clause (5)(a) ensures that this exception from the requirement to obtain the initial assessment report granted by new section 50AAA(3AA) does not apply to a person whose licence has been disqualified before the commencement of the interlocks legislation on 13 May 2002. This is because the question of whether this person should have an interlock condition imposed when he or she is re-licensed is up to the court's discretion. Because it is open to the court to allow this person to drive without an interlock, it needs to be able to assess his or her use of alcohol in the 12 months prior to the re-licensing application. Sub-clause (5)(b), (c) and (d) amends section 50AAB, which determines when an alcohol interlock condition can be removed. Sub-clause (5)(b) has the effect that if a court imposes an alcohol interlock condition on a person who was disqualified from driving as the result of a first drink driving offence involving a BAC of 007 or more but less than 015 in accordance with the new section 50AAA(1A) inserted by clause 5(1), it must specify a period during which the person concerned cannot apply to the court for the removal of the condition. Sub-clause (5)(c) provides that this minimum interlock period must be at least 6 months.

12 Sub-clause (5)(d) increases the minimum period of an alcohol interlock condition imposed on a person who was disqualified from driving for a second or subsequent drink driving offence. Where the offence was a second offence involving a BAC of less than 015 the minimum interlock period is increased from 6 months to 12 months. Where the offence was a second offence involving a BAC of 015 or more, or any third or later offence, the minimum interlock period is increased from 3 years to 4 years. Sub-clause (6) amends section 50AAC, which provides for appeals to the County Court against an order of the Magistrates' Court imposing an alcohol interlock condition or specifying a minimum interlock period which is greater than the minimum provided for in the Act. Sub-clause (6)(a) and (b) has the effect that a person who is subject to an alcohol interlock condition under new section 50AAA(1A) (that is, following disqualification for a first drink driving offence involving a BAC of 007 or more but less than 015) may appeal to the County Court against the giving of that direction, or against the minimum interlock period if it is more than 6 months. The right of appeal against the imposition of an alcohol interlock condition is given because under new section 50AAA(1A) the court has discretion as to whether or not to impose an interlock condition in this situation. The right of appeal against the minimum interlock period only arises if it is more than 6 months because clause 5(5)(c) provides that if the court makes an interlock order in this situation, it must be for a period of at least 6 months. Sub-clause (6)(c) has the effect that a person who is subject to an alcohol interlock condition under section 50AAA(2) (that is, as the result of a first drink driving offence involving driving under the influence, refusing to cooperate in testing procedures or driving with a BAC of 015 or more) can no longer appeal against the imposition of that condition. This is because the amended section 50AAA(2) requires the imposition of an alcohol interlock condition in these situations. A person on whom an interlock is imposed in these situations retains the right to appeal against the minimum interlock period if it is more than the minimum period of 6 months required by section 50AAB(2). Sub-clause 5(7) has the effect that a person who has been disqualified for a first drink driving offence involving a BAC of 007 or more but less than 0.15 has the benefit of the "10 year rule" provided for in section 50AA of the Road Safety Act 1986. This means that an alcohol interlock condition will not be

13 imposed if the relevant offence occurred 10 years or more prior to the person applying to the court for a re-licensing order. This "10 year rule" already applies to all the other provisions in section 50AAA requiring or enabling the imposition of interlock conditions.

The amendments made by clause 5 increasing the range of persons who can be made subject to an alcohol interlock condition, and the minimum periods for which that condition must be imposed, only apply to offences committed wholly after the commencement of the relevant provision (see new section 103L inserted by clause 50).

Clause 6 Provides for an increase in the penalties for the offence of refusing to allow a doctor to take a sample of blood for analysis after being brought to a place for examination or treatment following an accident, so that they are consistent with the new penalties for other drink driving offences imposed by clause 4(2) (which include offences relating to failure to cooperate in tests). This increase in penalty will only apply to offences committed wholly after the commencement of the relevant provision (see new section 103L inserted by clause 50).

Clause 7 Sub-clause (1) increases from 3 years to 4 years the minimum period of an alcohol interlock condition that must be imposed on a person who was disqualified from driving for a second or subsequent offence under section 89 of the Sentencing Act 1991 where the court found that alcohol contributed to the commission of the offence. Those offences are—  manslaughter arising out of the driving of a motor vehicle;  negligently causing serious injury arising out of the driving of a motor vehicle;  culpable driving causing death;  dangerous driving causing death or serious injury. Sub-clause (2) reflects this amendment by providing that the right of appeal against this minimum period only applies where it is more than 4 years. Previously this right applied where the period was more than 3 years.

14 This increase in the minimum alcohol interlock period only applies to offences committed wholly after the commencement of the relevant provision (see new section 103L inserted by clause 50).

Clause 8 repeals provisions in the Children and Young Persons (Miscellaneous Amendments) Act 2005 which themselves repeal references to a drug-driving infringement in the Children and Young Persons Act 1989. The reason why these provisions in the Children and Young Persons (Miscellaneous Amendments) Act 2005 are being repealed is that their commencement date is linked to the commencement date of the provision of another Act which has itself now been repealed, namely section 23 of the Road Safety (Drug Driving) Bill 2003, and they are therefore obsolete. Section 23 of the Road Safety (Drug Driving) Act 2003, which was due to commence operation on 1 July 2006, would have repealed the provisions in the Road Safety Act 1986 relating to roadside drug testing. That "sunset provision" was repealed by section 6 of the Road Safety (Drugs) Bill 2006.

PART 3—HEAVY VEHICLE AMENDMENTS Part 3 implements the Intelligent Access Program, and makes other miscellaneous amendments to provisions in the Road Safety Act 1986 concerning heavy vehicles. The following summary of the Intelligent Access Program and the processes by which it came into operation has been published on the web-site of the National Transport Commission (www.ntc.gov.au)— The Intelligent Access Program (IAP) provides for improved heavy vehicle access to the road network in return for monitoring, by vehicle telematics, of their compliance with specific access conditions.

It is a voluntary program that State and Territory road authorities will be able to apply as an operating condition to current jurisdictional schemes, permits or applications that provide improved vehicle utilisation.

In broad terms, it uses existing vehicle telematics which comprises a combination of global positioning systems (GPS), in-vehicle sensors and transmitters, and communications

15 technology to transmit vehicle performance data to a base station for downloading and analysis.

The IAP will use this technology, through certified service providers, to remotely monitor heavy vehicles to ensure they are complying with their agreed operating conditions and report the information to relevant road authorities to an evidentiary standard.

Ministers approved Model Legislation for IAP in January 2006, which provides the legislative framework to support the IAP as part of a system of nationally consistent road transport laws. The Model Legislation is consistent with and builds on other national reforms including the model Road Transport Reform (Compliance and Enforcement) Bill approved unanimously by the Australian Transport Council in November 2003.

The IAP Model Legislation was developed by the NTC in conjunction with Queensland Transport, at the request of Austroads, to give national legal effect to the IAP policy and operational framework endorsed by Austroads Council in October 2004. That framework includes the establishment of Transport Certification Australia (TCA) Ltd to administer certain operational functions of the program, including the certification and auditing of the vehicle telematics service providers.

The Model Legislation supports the unique operating model of the IAP by providing a robust and efficient legislative framework. It imposes important legal obligations on the TCA, as well as on IAP service providers and for IAP auditors for the handling and disclosing of any information received through the operation of the program to ensure the protection of personal information.

The IAP adopts the highest level of privacy protection found in Australian law. The Model Legislation provides that the collection, use and disclosure of IAP information must be consistent with privacy principles and laws applying in individual jurisdictions. Road authorities may only obtain, use and disclose IAP information for the limited purposes of enforcing the IAP and approved road transport compliance schemes, and may only disclose that information to other agencies for law enforcement purposes.

Transport operators are required to take reasonable steps to inform their drivers before all journeys in IAP vehicles, that the

16 vehicles are being monitored and that personal information cannot be used without consent for any other reason.

Obligations are also imposed on IAP service providers to report any breaches of IAP conditions or tampering to the appropriate road authorities within the specified times and in the specified format. Criminal liability applies for failure to meet these reporting obligations.

The Model Legislation includes rigorous evidentiary provisions, to allow the information that is collected to be used successfully in a court. The IAP is supported by detailed technical and administrative documents published by TCA, including the functional and technical specifications for IAP service providers and the main Deeds of Agreement by which transport operators and service providers enter the program. The evidentiary provisions will ensure that these documents can be given legal effect through the use of certificates by TCA and Authorities, and that the information generated, collected and processed through the telematics technology is of evidentiary value.

The Model Legislation was subject to a two month public consultation period, in which it was published on the NTC website, and circulated to key stakeholders, including all road authorities, police and justice agencies, road transport industry associations, the Transport Workers Union and Privacy Commissioners. The Model Legislation has also been reviewed by expert legal counsel. The Regulatory Impact Statement (RIS) details the extensive consultation process of the IAP Model Legislation.

The Model Legislation was approved unanimously by the Australian Transport Council. It also has the support of Transport Agency Chief Executives (TACE), Austroads, TCA, Privacy Commissioners and the Parliamentary Counsels Committee. The RIS has been considered and approved by the Commonwealth Office of Regulation Review.

Austroads has already established Transport Certification Australia Ltd to operate the IAP. The Model Legislation is now available to all jurisdictions for development of local legislative amendments to give IAP legislative effect in its jurisdiction.

17 The Regulatory Impact Statement referred to above is titled "Intelligent Access Program (IAP) Stage 1 Implementation—Regulatory Impact Statement" dated September 2005. It is also available via the NTC's website.

Clause 9 inserts a new Part 12 into the Road Safety Act 1986 that establishes the Intelligent Access Program (IAP) for heavy vehicles. New section 223 provides that the IAP is a program to allow heavy vehicles to have access, or improved access, to the road network in return for monitoring by an intelligent transport system of their compliance with access conditions. "Intelligent transport system" is defined in section 3(1) of the Road Safety Act 1986 as a technological system that can monitor, collect, store, display, analyse or transmit information relating to the operation of a vehicle in relation to its legal entitlements. New section 224 provides that if a provision in Part 12 of the Road Safety Act 1986 can be interpreted differently depending on whether the Acts Interpretation Act 1901 of the Commonwealth or the Victorian Interpretation of Legislation Act 1984 applies to it, the interpretation that results from application of the Commonwealth Act is the one to be adopted. However, if there is no difference in the interpretation which results from application of the Commonwealth Act and that which results from application of the Victorian Act, the Victorian Act applies. Part 12 implements the National Transport Commission's model Road Transport (Intelligent Access Program) Act 2004 (which appears in Schedule 1 to the National Transport Commission (Model Legislation—Intelligent Access Program) Regulations 2005 of the Commonwealth). Because that model Act sets out nationally agreed principles for the regulation of heavy vehicles, provisions implementing it such as Part 12 of the Road Safety Act 1986 should be interpreted in a way that is nationally consistent. The only way of ensuring this is to make them subject to the Acts Interpretation Act 1901 of the Commonwealth, rather than the interpretation of legislation enactments of individual jurisdictions. New section 225(1) defines certain terms that are relevant to the operation of the IAP. New section 225(2) sets out the circumstances in which an approved intelligent transport system for the purposes of the IAP is considered to have malfunctioned. An "approved intelligent transport system" is defined in new section 225(1) as an

18 intelligent transport system which has been approved by Transport Certification Australia Ltd ("TCA") for the purposes of the IAP. New section 225(3) provides that a reference to an "approved form" in Part 12 means that the form has been approved by VicRoads. New section 226 provides that nothing in Part 12 has the effect of preventing or excluding any other method of enforcement of a road or transport law (which is defined in section 3(1) of the Road Safety Act 1986 as being that Act, the Transport Act 1983 and any regulation made under either of those Acts).

New section 227 sets out what must and what may be included in an "IAP condition", defines "spatial data", "temporal data" and "speed data" and sets out the effect of an IAP condition. An "IAP condition" is defined in new section 225(1) as a requirement relating to the use of an approved intelligent transport system specified in respect of an IAP vehicle, or class of IAP vehicle, under which that vehicle is, or vehicles of that class are, allowed to be used on a road specified for use by IAP vehicles. An IAP condition does not authorise an IAP vehicle to breach a speed limit that applies to vehicles generally. New section 228 provides that VicRoads may set IAP conditions for an individual vehicle or a class of vehicles, and may do so on its own initiative or on the application of an operator. An IAP condition may be specified at the time a mass, dimension or load restraint concession is given, or subsequently. Notice of all IAP conditions specified at the initiative of VicRoads, or with respect to a class of vehicles, must be published in the Government Gazette. New section 229 provides VicRoads with the power to issue IAP identifiers. An IAP identifier is a unique number or code that is transmitted from a vehicle to a remote receiving device enabling the location of the vehicle to be ascertained. New section 230 makes it an offence for an operator of an IAP vehicle to give false or misleading information that is relevant to the operation of the vehicle to that operator's IAP service provider, or to give false or misleading information in order to induce an IAP service provider to enter into an IAP agreement. An "IAP vehicle" is defined in section 225(1) as a vehicle that is subject to an IAP condition, is equipped for monitoring under the

19 IAP, and is covered by an IAP agreement. "IAP agreement" is defined in section 225(1) as an agreement between the operator of a vehicle and an IAP service provider under which that provider agrees to provide IAP monitoring services to the operator. Each offence under section 230 carries a fine of up to 100 penalty units in the case of a corporation, and up to 20 penalty units in any other case. New section 231(1) sets out what operators of IAP vehicles must take reasonable steps to tell drivers of IAP vehicles before the vehicle begins a journey. The intention is to ensure that the driver is made aware that the vehicle will be monitored, that certain information will be collected and may be disclosed to others and that the driver has rights of access to the information. Failure to tell the driver about these matters carries a fine of up to 100 penalty units in the case of a corporation, or up to 20 penalty units in any other case. New section 231(2) requires the operator of an IAP vehicle to take reasonable steps to tell the driver of an IAP vehicle about the driver's obligations to inform the operator if the system malfunctions and about how the driver can make the reports about a malfunction. Failure to tell the driver is an offence that carries a fine of up to 100 penalty units in the case of a corporation, or up to 20 penalty units in any other case. New section 231(3) provides that an operator may comply with these requirements by visibly placing a notice in the vehicle or by incorporating the information in the driver's employment contract. New section 231(4) provides that the form in which the information required by sub-section 231(3) must be provided may be prescribed in the regulations. New section 232(1) imposes a duty on the operator of an IAP vehicle to inform VicRoads as soon as it becomes aware of any malfunction of an approved intelligent transport system fitted to the vehicle. Failure to inform VicRoads is an offence that carries a fine of up to 60 penalty units in the case of a corporation, or up to 12 penalty units in any other case. New section 232(2) provides that the operator must keep a written record of the malfunction, and sets out what information must be included in the written record.

20 An operator who fails to do so is guilty of an offence and is liable to a fine of up to 60 penalty units in the case of a corporation, and up to 12 penalty units in any other case. New section 233(1) imposes a duty on the driver of an IAP vehicle to inform the vehicle's operator as soon as the driver becomes aware of any malfunction of an approved intelligent transport system fitted to the vehicle. In conjunction with new sub-section 232(1), this is intended to establish a "chain of responsibility", requiring the driver to inform the operator of a malfunction and the operator to inform VicRoads, thus ensuring the prompt reporting of all malfunctions of IAP equipment. New section 233(2) provides that the driver must keep a written record of the malfunction, and sets out what information must be included in the written record. The driver is guilty of an offence if he or she fails to immediately report the malfunction or fails to keep a written record as required. Each offence carries a fine of up to 12 penalty units. New section 234 provides that an IAP service provider must not use or disclose information that has been generated or collected for any purpose relating to the IAP ("IAP information"), except as authorised by or under the Road Safety Act 1986 or any other law. Unlawful use or disclosure of IAP information by an IAP service provider is an offence that carries a fine of up to 200 penalty units in the case of a corporation, or up to 40 penalty units in any other case. New section 235(1) to (7) gives powers to IAP service providers to collect, store, use and disclose IAP information. Sub-section (1) provides that an IAP service provider may collect, store and use information, including personal information, generated or collected for any purpose relating to the IAP for purposes relating to ascertaining whether or not a "relevant law or scheme" is being complied with. "Relevant law or scheme" is defined in section 106 of the Road Safety Act 1986 as being—  the Road Safety Act 1986;  the Transport Act 1983;  regulations made under either of those Acts;  a road or transport law of another jurisdiction;

21  a scheme prescribed by regulations made under the Road Safety Act 1986 that makes provision for compliance with any of these laws. Sub-section (2) allows for IAP information (including personal information) to be disclosed to VicRoads, or to Transport Certification Australia Ltd ("TCA"), for purposes relating to ascertaining whether or not a relevant law or scheme is being complied with. The functions of TCA are set out in new section 243. Sub-section (3) permits the disclosure of IAP information (including personal information) to an inspector for the purposes of investigating or prosecuting an offence (whether summary or indictable and whether against the law of Victoria or of another jurisdiction). If the relevant IAP information to be disclosed under section 235(3) is a report, generated by an intelligent transport system approved for the purposes of the IAP by TCA, of contravention by an IAP vehicle of an IAP condition, or a report of tampering with such a system, then the disclosure can be made without a warrant issued by a court. However, disclosure of other IAP information to an inspector for law-enforcement purposes must be authorised by a warrant issued by a court. Sub-section (4) further protects IAP information disclosed to an inspector for law-enforcement purposes under the authority of a warrant, by providing that if such a disclosure has occurred, the inspector must not disclose the information to any other person or use the information, unless the inspector believes the disclosure or use is reasonably necessary for law-enforcement purposes, or the disclosure or use is otherwise authorised by or under the Road Safety Act 1986 or any other law. The scope of the exception which allows an inspector to disclose or use IAP information which has been disclosed to an inspector for law-enforcement purposes under the authority of a warrant if the inspector believes the disclosure or use is authorised by or under the Road Safety Act 1986 has been narrowed by clause 11 of the Bill. That clause provides that section 92(3)(d) of that Act, which permits VicRoads and its employees and contractors to disclose or use personal or commercially sensitive information for the purposes of the investigation or prosecution by a Victorian law enforcement agency of offences of any kind, does not apply to information that VicRoads and its employees and contractors obtain from an IAP service provider under section 235. This is intended to avoid a situation in which an inspector who is employed by VicRoads receives information

22 relating to an issue other than non-compliance with an IAP condition or tampering with an intelligent transport system under the terms of a warrant, and is then free to use that information under section 92(3)(d) of the Road Safety Act 1986 for law- enforcement purposes which are not dealt with in the warrant. Sub-section (5) allows an IAP service provider to disclose IAP information about an operator of a vehicle that has entered into an IAP agreement provided the operator consents and the information does not identify any individual. Sub-section (6) allows an IAP service provider to disclose IAP information about an operator of a vehicle that has entered into an IAP agreement to the operator. This does not include a report, generated by an approved intelligent transport system, of contravention by an IAP vehicle of an IAP condition, or a report of tampering with such a system. Sub-section (7)(a) allows an IAP service provider to disclose or use IAP information which is also personal information, with the consent of the person to whom the personal information relates. Sub-section (7)(b) allows an IAP service provider to disclose or use IAP information (including personal information) if authorised to do so by or under the Road Safety Act 1986 or any other law. New section 235(8) provides that an IAP service provider must give a person appointed as an IAP auditor by TCA for the purposes of Part 12 access to any record kept by the IAP service provider for the purposes of the Road Safety Act 1986. If the IAP service provider fails to provide this access, it is guilty of an offence and liable to a fine of up to 200 penalty units in the case of a corporation, or up to 40 penalty units in any other case. New section 236 provides that an IAP service provider must make a record of each disclosure or use of IAP information. The provision sets out what information must be contained in the record, and provides that the record must be made within five business days of the relevant disclosure or use, must be in a form that allows the record to be readily inspected and must be retained for 2 years. If the IAP service provider fails to comply with any of these requirements, it is guilty of an offence and liable to a fine of up to 200 penalty units in the case of a corporation, or up to 40 penalty units in any other case.

23 New section 237 confers obligations on an IAP service provider in relation to what information it can collect, how it can collect the information and the accuracy of the information. Sub-section (1) provides that an IAP service provider must take reasonable steps to ensure that the IAP information it collects is relevant to the purpose for which is collected, is not excessive for that purpose and is accurate. Sub-section (2) provides that an IAP service provider must also take reasonable steps to ensure that the collection of the IAP information does not intrude to an unreasonable extent on the personal privacy of any individual to whom the information relates. Sub-section (3) requires an IAP service provider to amend personal information it holds to ensure that the information is accurate if requested by the person about whom the information relates. New sub-section 237(4) provides that an IAP service provider may refuse a request to amend the personal information if it does not consider the information that it holds is inaccurate. Reasons for the refusal must be provided in writing to the person to whom the information relates. A statement from that person, setting out his or her views as to the accuracy of the information, must be attached to the personal information held by the IAP service provider if the person so requests. An IAP service provider is guilty of an offence if it does not comply with any of these requirements and is liable for a fine of up to 200 penalty units in the case of a corporation, or up to 40 penalty units in any other case. New section 238 imposes obligations on an IAP service provider with respect to the form, security, destruction and keeping of records of IAP information. Sub-section (1) provides that the records must be organised in a way that allows them to be conveniently and properly audited. Sub-section (2) provides that all reports and data detailing contraventions by IAP vehicles of IAP conditions must be kept for at least 4 years after the report is made by the IAP service provider. Sub-section (3) provides that an IAP service provider must take reasonable steps to protect IAP information in its possession from unauthorised access, use or disclosure, and from misuse, loss or modification.

24 Sub-section (4) provides that an IAP service provider must also take reasonable steps to destroy all IAP information (including personal information, but not including reports and data detailing contraventions by IAP vehicles of IAP conditions) one year after the information is collected. An IAP service provider is guilty of an offence if it does not comply with any of these requirements and is liable for a fine of up to 100 penalty units in the case of a corporation, or up to 20 penalty units in any other case. New section 239 is intended to make the information collection practices of IAP service providers transparent. Sub-section (1) requires an IAP service provider to prepare and make publicly available a document setting out its information management policies.

Sub-section (2) provides that an IAP service provider must take reasonable steps to inform a person about whom it holds personal information of certain matters relating to the use, disclosure and handling of that personal information, if requested by that person. Sub-sections (3) and (4) require an IAP service provider to give the person access to information held about that person, other than information relating to contravention by an IAP vehicle of an IAP condition, or tampering with an approved intelligent transport system. Sub-section (5) provides that an IAP service provider must not charge for access to this information, other than for costs reasonably incurred. An IAP service provider is guilty of an offence if it does not comply with any of these requirements and is liable for a fine of up to 100 penalty units in the case of a corporation, or up to 20 penalty units in any other case. New section 240 provides that an IAP service provider must make a non-compliance report if it knows of a breach of an IAP condition by an operator of a vehicle or vehicles that has entered into an IAP agreement, or of anything that indicates that the operator may have breached such a condition, within the time specified in the relevant IAP condition or as specified by VicRoads. An IAP service provider is guilty of an offence if it fails to make the non-compliance report as required and is liable for a fine of

25 up to 200 penalty units in the case of a corporation, or up to 40 penalty units in any other case. New section 241(1) imposes an obligation on an IAP service provider to report to VicRoads, within 5 business days, any tampering with intelligent transport system equipment of which it is aware or which it has reasonable grounds to suspect. New section 241(2) sets out the required form and contents of this tampering report. New section 241(3) and (4) require that the IAP service provider not disclose its knowledge or suspicion of any tampering with intelligent access system equipment, or of the fact that it has made a tampering report, to any person other than VicRoads. This is intended to ensure that VicRoads' investigation of possible offences is not compromised. An IAP service provider is guilty of an offence if it does not comply with any of these requirements and is liable for a fine of up to 200 penalty units in the case of a corporation, or up to 40 penalty units in any other case. New section 241(6) provides that knowledge or suspicion for the purposes of the section does not include knowledge or suspicion resulting only from a report made by an approved intelligent transport system of the electronic detection of apparent tampering with that system, or analysis of data produced by such a system. New section 242 makes it an offence for an IAP service provider to give false or misleading information that is relevant to the operation of a vehicle to VicRoads or TCA. An offence under section 242 carries a fine of up to 200 penalty units in the case of a corporation, and up to 40 penalty units in any other case. New section 243 sets out the functions of TCA for the purposes of the Act. TCA is a company established to manage the certification and audit regime for the Intelligent Access Program, to certify and audit IAP service providers and to appoint and co-ordinate IAP auditors. New section 244 outlines the duties of TCA regarding the disclosure and use of information. Sub-section (1) provides that TCA must not disclose or use IAP information unless it first takes reasonable steps to ensure that the information is accurate, complete, up-to-date and not misleading. Sub-section (2) provides that TCA must not disclose or use information for a purpose other than the purpose for which it was

26 collected, unless that disclosure or use is in accordance with sections 245 to 247. Sub-section (3) restricts the disclosure or use by TCA of information relating to a particular operator of an IAP vehicle. Sub-section (4) provides that TCA may only disclose information relating to a breach of an IAP service provider's obligations to VicRoads or an IAP auditor. Sub-section (5) provides that a record must be kept for each use or disclosure of information (other than disclosure or use for law-enforcement purposes) and sets out what information must be contained in the record. Sub-sections (6) and (7) require that a record of each use and disclosure of information by TCA must be made within 5 business days and must be in a form that allows the record to be easily inspected. Sub-section (8) requires TCA to retain the record for 2 years. New section 245 outlines TCA's powers to collect, store, use and disclose IAP information. Sub-section (1) provides that TCA may collect, store, use and disclose IAP information (including personal information) for the performance of its functions and for the purposes of investigating or prosecuting an offence (whether summary or indictable and whether against the law of Victoria or of another jurisdiction). Sub-section (2) provides that TCA may disclose or use IAP information about an operator of an IAP vehicle for any purpose, if the operator consents and the information does not or cannot reasonably be used to identify any individual. Sub-section (3)(a) allows TCA to disclose or use IAP information which is also personal information, with the consent of the person to whom the personal information relates. Sub-section (3)(b) allows TCA to disclose or use IAP information (including personal information) if authorised to do so by or under the Road Safety Act 1986 or any other law. New section 246(1) permits the disclosure of IAP information (including personal information) by TCA to an inspector for the purposes of investigating or prosecuting an offence (whether summary or indictable and whether against the law of Victoria or of another jurisdiction). Section 246(1) also provides that if the relevant IAP information to be disclosed under section 246(1) is a report, generated by an approved intelligent transport system, of contravention by an IAP

27 vehicle of an IAP condition, or a report of tampering with such a system, then the disclosure can be made without a warrant issued by a court. However, disclosure of other IAP information to an inspector for law-enforcement purposes must be authorised by a warrant issued by a court. New section 246(2) further protects IAP information disclosed to an inspector for law-enforcement purposes under the authority of a warrant, by providing that if such a disclosure has occurred, the inspector must not disclose the information to any other person or use the information, unless the inspector believes the disclosure or use is reasonably necessary for law-enforcement purposes, or the disclosure or use is otherwise authorised by or under the Road Safety Act 1986 or any other law. The scope of the exception which allows an inspector to disclose or use IAP information which has been disclosed to an inspector for law-enforcement purposes under the authority of a warrant if the inspector believes the disclosure or use is authorised by or under the Road Safety Act 1986 has been narrowed by clause 11 of the Bill. That clause provides that section 92(3)(d) of that Act, which permits VicRoads and its employees and contractors to disclose or use personal or commercially sensitive information for the purposes of the investigation or prosecution by a Victorian law enforcement agency of offences of any kind, does not apply to information that VicRoads and its employees and contractors obtain from an IAP service provider under section 246. This is intended to avoid a situation in which an inspector who is employed by VicRoads receives information under the terms of a warrant relating to an issue other than non-compliance with an IAP condition or tampering with an intelligent transport system, and is then free to use that information under section 92(3)(d) of the Road Safety Act 1986 for law-enforcement purposes which are not dealt with in the warrant. New section 247 provides that TCA may use or disclose information for research if it does not contain personal information. New section 248 imposes various obligations on TCA in relation to IAP information it collects. TCA must take reasonable steps to ensure the IAP information it collects is necessary for or directly related to the purpose for which it was collected or a related purpose, is not excessive for that purpose and is accurate, up to date and complete. It must also take reasonable steps to ensure that the collection of the IAP

28 information does not unreasonably intrude on the personal privacy of any individual about whom the information relates. New section 249 requires that TCA take reasonable steps to protect the IAP information collected by it from unauthorised access, use or disclosure, and from misuse, loss or modification. It also requires TCA to take reasonable steps to destroy the IAP information or permanently de-identify if after it has been held for one year, unless it is required to be kept for longer under sections 244 or 251, or if the information is required as evidence. Section 244 and 251 require certain records to be kept for a minimum of one year, or 4 years in the case of a report about non-compliance with an IAP condition. New section 250 is intended to make the information collection practices of TCA transparent. Sub-section (1) requires TCA to prepare and make publicly available a document setting out its information management policies.

Sub-section (2) provides that TCA must take reasonable steps to inform a person about whom it holds personal information of certain matters relating to the use, disclosure and handling of that personal information, if requested by that person. Sub-sections (3) and (4) require TCA to give the person access to information held about that person, other than information relating to contravention by an IAP vehicle of an IAP condition, or tampering with an approved intelligent transport system. Sub-section (5) provides that TCA must not charge for access to this information, other than for costs reasonably incurred. New section 251 provides that TCA must keep and retain records of its transactions with VicRoads, IAP service providers and IAP auditors. The records are required to be organised in such a way as will enable them to be conveniently and properly audited, and must be kept for at least one year, or at least 4 years in the case of reports of non-compliance with an IAP condition. New section 252(1) provides that TCA must take reasonable steps to ensure that personal information that it collects is accurate, complete, up-to-date and not misleading. New section 252(2) requires TCA to make appropriate alterations to personal information it holds to ensure that the information is

29 accurate, if requested by the operator of an IAP vehicle or an IAP service provider. New section 252(3) provides that TCA may refuse a request to amend the personal information if it does not consider the information that it holds is inaccurate. However, reasons for the refusal must be provided in writing to the operator of an IAP vehicle or an IAP service provider, and a statement from the operator or provider, outlining its views as to the accuracy of the information, must be attached to the personal information held by TCA if the operator or provider so requests. New section 253(1) imposes an obligation on TCA to report to VicRoads, within 5 business days, any tampering with intelligent transport system equipment of which it is aware or which it has reasonable grounds to suspect. New section 253(2) and (3) require that TCA not disclose its knowledge or suspicion of any tampering with intelligent access system equipment, or of the fact that it has made a report of apparent tampering or suspicion of tampering, to any person other than VicRoads. This is intended to ensure that VicRoads' investigation of possible offences is not compromised. New section 253(4) provides that knowledge or suspicion for the purposes of the section does not include knowledge or suspicion resulting only from a report made by an approved intelligent transport system of the electronic detection of apparent tampering with that system, or analysis of data produced by such a system. New section 254 explains what an IAP audit is and provides that TCA may appoint as many persons as are necessary as IAP auditors for the purposes of the IAP. New section 255 concerns an IAP auditor's duties in regard to the disclosure and use of information. Sub-section (1) provides that prior to using IAP information, an IAP auditor must take reasonable steps to ensure that the information is accurate, complete, up-to-date and not misleading having regard to the purpose for which the information is to be disclosed or used. Sub-section (2) provides that an IAP auditor must not disclose or use information other than for the purpose for which it was collected. Sub-section (3) and (4) further limit the disclosure and use of IAP information by an IAP auditor, by providing that information about an operator of an IAP vehicle must not be used or disclosed to a person other than the relevant operator, TCA or VicRoads,

30 unless the use or disclosure is authorised by or under the Road Safety Act 1986 or any other law. An IAP auditor must not disclose information relating to non compliance or tampering except to VicRoads or TCA. This is intended to ensure that VicRoads' and TCA's investigation of possible offences is not compromised. Sub-section (5) provides that if the IAP auditor discloses or uses IAP information it must make a record of each disclosure or use of the IAP information, other than disclosure or use for the purposes of investigating or prosecuting an offence. Sub-sections (6), (7) and (8) set out what information must be contained in the record, and provide that the record must be made within five business days of the relevant disclosure or use, must be in a form that allows the record to be readily inspected and must be retained for 2 years. An IAP auditor is guilty of an offence if it does not comply with any of these requirements and is liable for a fine of up to 200 penalty units in the case of a corporation, or up to 40 penalty units in any other case. New section 256(1) provides that an IAP auditor may collect, store, use and disclose IAP information (including personal information) only—  for the performance of the auditor's functions;  to report non-compliance with an IAP condition or tampering with an intelligent transport system by the operator of an IAP vehicle;  to report failure by an IAP service provider to comply with its obligations;  to comply with its obligations. New section 256(2) allows an IAP auditor to disclose and use IAP information, including personal information, if consent of the person to whom the personal information relates has been obtained or use of the personal information is authorised by or under the Road Safety Act 1986 or any other law. New section 257(1) empowers an IAP auditor to collect IAP information that is reasonably necessary to prepare an audit report. New section 257(2) provides that the IAP auditor must take reasonable steps to ensure that the IAP information it collects is

31 necessary for its purpose, is not excessive for that purpose and is accurate, up-to-date and complete. New section 257(3) provides that the IAP auditor must take reasonable steps to ensure that the collection of IAP information does not intrude to an unreasonable extent on the personal privacy of any individual to whom the information relates. An IAP auditor is guilty of an offence if it does not comply with any of these requirements and is liable for a fine of up to 200 penalty units in the case of a corporation, or up to 40 penalty units in any other case. New section 258(1) imposes an obligation on an IAP auditor to take reasonable steps to protect the IAP information it collects against unauthorised access, use or disclosure, and against misuse, loss or modification. New section 258(2) provides that the IAP auditor must take reasonable steps to destroy or de-identify personal information no longer needed.

An IAP auditor is guilty of an offence if it does not comply with any of these requirements and is liable for a fine of up to 200 penalty units in the case of a corporation, or up to 40 penalty units in any other case. New section 259(1) provides that an IAP auditor must take reasonable steps to inform an individual about IAP information if the individual so requests. Sub-section (1) sets out what the IAP auditor must tell the individual. New section 259(2) requires an IAP auditor to provide access to IAP information to the individual about whom it relates if the person so requests. The access must be provided as soon as practicable after receiving the request. New section 259(3) provides that an IAP auditor must not charge for access to the personal information, other than any reasonable costs incurred in giving access to that information. An IAP auditor is guilty of an offence if it does not comply with any of these requirements and is liable for a fine of up to 200 penalty units in the case of a corporation, or up to 40 penalty units in any other case. New section 260 requires an IAP auditor to keep and retain records of its transactions with IAP service providers and TCA. The records must be organised in such a way as will enable them to be conveniently and properly audited.

32 An IAP auditor is guilty of an offence if it does not keep and retain the records in this manner and is liable for a fine of up to 200 penalty units in the case of a corporation, or up to 40 penalty units in any other case. New section 261(1) requires an IAP auditor to take reasonable steps to ensure that the information it collects is accurate, complete, up-to-date and not misleading. New section 261(2) requires an IAP auditor to make appropriate alterations to personal information it holds to ensure that the information is accurate, complete, up-to-date and not misleading if requested by an operator of an IAP vehicle or an IAP service provider. New section 261(3) enables an IAP auditor to refuse a request to amend personal information if it does not consider the information that it holds to be inaccurate, incomplete, out-of-date or misleading. However, reasons for the refusal must be provided in writing to the operator of the IAP vehicle or IAP service provider and a statement from the operator or provider, outlining its views as to the accuracy of the information, must be attached to the information held by the IAP auditor if the operator or provider so requests. An IAP auditor is guilty of an offence if it does not comply with any of these requirements and is liable for a fine of up to 200 penalty units in the case of a corporation, or up to 40 penalty units in any other case. New section 262 provides that an IAP auditor must report as soon as practicable to the TCA any breach by an IAP service provider of the provider's obligations under the Road Safety Act 1986 or of anything that suggests an IAP service provider may have breached such an obligation. An IAP auditor is guilty of an offence if it does not comply with this obligation and is liable for a fine of up to 200 penalty units in the case of a corporation, or up to 40 penalty units in any other case. New section 263 provides that an IAP auditor must report as soon as practicable if it knows or has a reasonable suspicion that intelligent transport system equipment has been tampered with. In the case of tampering or suspected tampering by the operator of an IAP vehicle, it must report to VicRoads. In the case of tampering or suspected tampering by an IAP service provider, it must report to the TCA. An IAP auditor is guilty of an offence if it does not report any tampering or suspected tampering as required, and is liable for a

33 fine of up to 200 penalty units in the case of a corporation, or up to 40 penalty units in any other case. New section 264 creates two offences concerning tampering with an approved intelligent transport system. The first offence prohibits a person intentionally affecting the system in a manner that may cause it to fail in a way described in the provision. A person found guilty of this offence is liable for a fine of up to 1000 penalty units in the case of a corporation, or up to 200 penalty units in any other case. The second offence prohibits a person from engaging in conduct being reckless as to whether, or negligently failing to consider whether, the consequences of the person's conduct may cause the system to fail in a way described in the provision. A person found guilty of this offence is liable for a fine of up to 500 penalty units in the case of a corporation, or up to 100 penalty units in any other case.

New section 265 provides a definition of "at a specified time" as it applies to the evidentiary provisions contained in new Part 12 so that this phrase includes action that is taken on a specified date and during a specified period. It further provides that those provisions are intended to supplement, and not limit, section 84 of the Road Safety Act 1986. Section 84 contains a number of provisions which facilitate the giving of evidence in proceedings under that Act. New section 266 provides that VicRoads may issue certificates on certain matters relating to the IAP and makes those certificates admissible in evidence in any proceedings and, in the absence of evidence to the contrary, proof of the matters stated in them. New section 267 provides that the TCA may issue a certificate that a particular map (including in the form of an electronic data file) is the intelligent access map that the TCA has issued at a specified time. Such a certificate is admissible in evidence in any proceedings and is conclusive evidence of the matters stated in it. The section also sets out certain rebuttable presumptions in relation to such a certificate and the intelligent access map to which it relates. New section 268 provides that the TCA may also issue certificates stating that a particular intelligent transport system is an approved intelligent transport system and that on a specified date (as defined in new section 265) a specified person was or

34 was not an IAP service provider or an IAP auditor. Such a certificate is admissible in evidence in any proceedings and, in the absence of evidence to the contrary, is proof of the matters stated in it. New section 269 creates a rebuttable presumption that the equipment and software that make up an approved intelligent transport system for the purposes of the IAP operated correctly on any particular occasion. New section 270 creates a rebuttable presumption as to the accuracy of a statement regarding a vehicle's position contained in a report generated or produced by means of an approved intelligent transport system. New section 271(1) to (3) create rebuttable presumptions that information generated, recorded or stored by an approved intelligent transport system for the purposes of the IAP was correctly generated and recorded and was not changed by that storage. New section 271(4) provides that if it is established that some IAP information has been changed by being stored, such a finding does not rebut the presumption that applies to any other information stored. New section 272 provides that reports made by an approved intelligent transport system of non-compliance with an IAP condition or tampering with an intelligent transport system, or setting out IAP information, are admissible in evidence, are proof of the matters stated in them in the absence of evidence to the contrary and are presumed to be a correct report of information generated and recorded by the system, unless evidence sufficient to raise doubt about the presumption is adduced. If it is established that part of such a report is not correct, the remainder of the report is presumed to be correct. New section 273(1) provides that certificates issued by VicRoads concerning mathematical procedures carried out in relation to IAP information and their results are admissible in evidence and, in the absence of any evidence to the contrary, are proof of the matters stated in them. New section 273(2) creates a rebuttable presumption that these procedures are valid and reliable and have been correctly carried out.

Clause 10 substitutes a new section 70(1C) into the Road Safety Act 1986. Section 70 creates various offences relating to tampering with motor vehicles. Section 70(1A) relates specifically to tampering

35 with equipment specified for the purposes of the section by the Minister for Transport by notice published in the Government Gazette. Such a notice has been published by the Minister specifying the speed limiting devices which are required to be attached to certain heavy vehicles (see Government Gazette No. S 64, 17 December 1990). New section 70(1C) replaces the present mandatory requirement for a court to cancel the licence of a person convicted of an offence against section 70(1A) and disqualify that person from obtaining a licence or permit for 4 years with a discretion for the court to cancel the licence and disqualify the person from obtaining a new one for up to a maximum of 4 years.

Clause 11 inserts a new sub-section (3A) into section 92 of the Road Safety Act 1986. Section 92 prohibits the use and disclosure of certain information obtained by VicRoads, or its employees or agents, except for specified purposes. The new sub-section is intended to ensure that section 92(3)(d), which permits use and disclosure of this information for law-enforcement purposes, does not apply to information that VicRoads or its employees or agents obtains from an IAP service provider or TCA under sections 235 or 246 of the Act (which are inserted by clause 9). This is intended to ensure that the strict rules imposed by those sections as to when information may be disclosed or used for law enforcement purposes (in particular the requirement for certain information to only be disclosed or used if that is authorised by a warrant issued by a court) are not able to be circumvented by use of the wider disclosure and use provision in section 92(3)(d).

Clause 12 inserts a new paragraph (ab) into section 136(1) of the Road Safety Act 1986. New section 136(1)(ab) extends the classes of information that an inspector may direct a responsible person associated with a particular heavy vehicle to provide in order to ascertain whether a road or transport law or scheme is being complied with to include information about the current or intended trip of the vehicle. This provision is in accordance with clause 45(2)(b) of the National Transport Commission's model Road Transport Reform (Compliance and Enforcement) Bill 2003 which all Australian jurisdictions have agreed to implement on a uniform basis.

36 It is an offence to fail to comply with a direction under sub- section 136(1) carrying a fine of up to 5 penalty units.

Clause 13 inserts a new Division 8 into Part 9 of the Road Safety Act 1986 concerning reciprocal arrangements for the exercise of powers relating to heavy vehicle enforcement between jurisdictions. Division 8 comprises a new section 149AA. New section 149AA enables the Victorian Minister for Transport to enter into arrangements with Ministers of other States and Territories for the purpose of enabling Victorian inspectors (which include specifically authorised officers of VicRoads and members of the police force) to exercise the powers of authorised officers and police officers of those other jurisdictions relating to the investigation of offences involving heavy vehicles, both in Victoria and in that other jurisdiction.

The Victorian Minister for Transport may also enter into arrangements with Ministers of other States and Territories for the purpose of enabling authorised officers and police officers of those other jurisdictions to exercise the powers of Victorian inspectors relating to the investigation of offences involving heavy vehicles, both in Victoria and in that other jurisdiction. Section 149AA further provides that anything done or omitted to be done by a Victorian inspector exercising the power of an officer of another jurisdiction relating to the investigation of offences involving heavy vehicles, or exercising a power under the Road Safety Act 1986 in another jurisdiction, is taken to be done under the Road Safety Act 1986 as well as under the law of the other jurisdiction. These provisions are necessary to facilitate "chain of responsibility" investigations of offences involving heavy vehicles which cross state and territory borders, bearing in mind that the heavy vehicle industry is national in scope. They are in accordance with clause 21 of the National Transport Commission's model Road Transport Reform (Compliance and Enforcement) Bill 2003 which all Australian jurisdictions have agreed to implement on a uniform basis.

Clause 14 amends sub-sections (2) and (3) of section 158 of the Road Safety Act 1986. Section 158 provides for the "upgrading" of the severity of mass, dimension and load restraint breaches involving heavy vehicles which are committed at night, in hazardous weather conditions or on a route or in a zone declared

37 by the Minister for Transport from minor to substantial, and from substantial to severe. This is important because the penalty and enforcement powers that apply to these breaches vary depending on whether they are minor, substantial or severe. The effect of the amendment is to limit the application of this "upgrade" to breaches of width limits and height limits. This is in accordance with clauses 76 and 77 of the National Transport Commission's model Road Transport Reform (Compliance and Enforcement) Bill 2003 which all Australian jurisdictions have agreed to implement on a uniform basis. This amendment applies to breaches committed before, on or after the commencement of clause 14 (see section 103L(7) inserted by clause 50).

Clause 15 amends sections 174 and 175 of the Road Safety Act 1986. Those sections impose liability on operators and drivers of heavy vehicles for breaches of mass, dimension and load restraint offences. Operators and drivers presently only have the benefit of the "reasonable steps" defence where a breach is a substantial risk breach or a severe risk breach so far as it relates to reliance on a container weight declaration. The amendment has the effect that operators and drivers will also have the benefit of the "reasonable steps" defence for minor risk breaches so far as it relates to reliance on a container weight declaration. This amendment applies to offences alleged to have been committed before, on or after the commencement of clause 15 (see section 103L(8) inserted by clause 50).

PART 4—GRADUATED LICENSING AND YOUNG DRIVER SAFETY

Clause 16 inserts a new sub-section (8) into section 19 of the Road Safety Act 1986, which makes it an offence for a person under the age of 26 to not have his or her driver licence in his or her possession at all times whilst driving or in charge of a motor vehicle. This offence carries a fine of up to 5 penalty units. Clause 17 amends section 21 of the Road Safety Act 1986 regarding probationary driver licences. The new provisions continue the obligation to hold a probationary driver licence if the driver has not previously held a licence or has previously held a probationary driver licence which has expired or been cancelled.

38 In addition, clause 17 allows for regulations to be made—  extending a probationary licence period (for example, where the driver has committed a specified offence or the licence has been suspended);  requiring a probationary licence holder to comply with prescribed procedures and requirements;  establishing different classes of probationary driver licences;  requiring progression through those stages before a full driver licence can be obtained.

Clause 18 inserts a new sub-section (6) into section 22 of the Road Safety Act 1986, which creates an offence for a person holding a learner permit not to have his or her permit in his or her possession while driving or in charge of a motor vehicle. This offence carries a fine of up to 5 penalty units.

Clause 19 makes provision with respect to drink driving offences by young or inexperienced drivers. Sub-clause (1) provides that section 50(1AB)(b) of the Road Safety Act 1986, which gives a court discretion to not cancel the licence of a person who has committed a drink driving offence involving a blood or breath alcohol concentration (BAC) of less than 007, does not apply if the person committed that offence while under the age of 26. Sub-clause (2) inserts new section 50AAA(2A) into the Road Safety Act 1986. New section 50AAA(2A) provides that the court must impose an alcohol interlock condition when it grants a re-licensing application made by a person who was disqualified from driving as the result of a first drink driving offence involving—  driving under the influence of alcohol (contrary to section 49(1)(a)); or  refusing to cooperate in testing procedures (contrary to section 49(1)(c), (d) or (e)); or

39  driving with a BAC of 007 or more (contrary to section 49(1)(b), (f) or (g))— if, at the time of the offence, he or she was under the age of 26 years or the holder of a probationary driver licence. Sub-clause (3)(a) amends section 18(3) of the Road Safety Act 1986, which is inserted by clause 42(2), to include a reference to this new section 50AAA(2A). The purpose of section 18(3) is to ensure that a person who would or may have been liable to be subject to an alcohol interlock condition had he or she been granted a licence restoration order, and who drives while unlicensed, is subject to the same penalty for the unlicensed driving as applies to driving in breach of an alcohol interlock condition. This is intended to remove any incentive on a person who has served his or her period of licence disqualification as a result of a drink driving offence not to apply for a licence restoration order on the grounds that the order may be subject to an alcohol interlock condition. Sub-clause (3)(b) amends section 50AAA(3A) of the Road Safety Act 1986, which is inserted by clause 5(4), to include a reference to the new section 50AAA(2A). The effect of this is that a person who was disqualified from driving as the result of a first drink driving offence committed while he or she was under the age of 26 years or the holder of a probationary driver licence involving—  driving under the influence of alcohol (contrary to section 49(1)(a)); or  refusing to cooperate in testing procedures (contrary to section 49(1)(c), (d) or (e)); or  driving with a BAC of 007 or more (contrary to section 49(1)(b), (f) or (g))— is excused from the requirement to obtain the report assessing his or her use of alcohol which is normally required at least 12 months before applying to the court for a licence restoration order. The reason for this is that a person in this position will be required to have an alcohol interlock condition if the licence restoration order is granted. The fact that he or she will be required to have an interlock means that it is not necessary to obtain this first assessment report because—

40  the interlock will operate to prevent the person from drink driving even if he or she still has alcohol problems; and  the interlock will only be removed if the person can demonstrate to the court at the end of the interlock period that these problems are under control through the assessment report required by section 50AAB(5). Sub-clause (3)(c) amends section 50AAB(1) and (2) of the Road Safety Act 1986 to include a reference to the new section 50AAA(2A). The effect of this is that if the court grants a re-licensing application made by a person who was disqualified from driving as the result of a first drink driving offence committed while he or she was under the age of 26 years or the holder of a probationary driver licence involving—  driving under the influence of alcohol (contrary to section 49(1)(a)); or  refusing to cooperate in testing procedures (contrary to section 49(1)(c), (d) or (e)); or

 driving with a BAC of 007 or more (contrary to section 49(1)(b), (f) or (g))— then the alcohol interlock condition which it is required to impose by new section 50AAA(2A) must be for at least 6 months. Sub-clause (3)(d) reflects this amendment by including a reference to the new section 50AAA(2A) in section 50AAC(1) of the Road Safety Act 1986. The effect of this is that a person who has had an alcohol interlock condition imposed under section 50AAA(2A) can only appeal against the minimum interlock period specified by the court if it is greater than six months. Sub-clause (3)(e) amends section 50AA of the Road Safety Act 1986 to include a reference to the new section 50AAA(2A). The effect of this is that a person who was disqualified from driving as the result of a first drink driving offence committed while he or she was under the age of 26 years or the holder of a probationary driver licence involving—  driving under the influence of alcohol (contrary to section 49(1)(a)); or

41  refusing to cooperate in testing procedures (contrary to section 49(1)(c), (d) or (e)); or  driving with a BAC of 007 or more (contrary to section 49(1)(b), (f) or (g))— has the benefit of the "10 year rule" provided for in that section. This means that an alcohol interlock condition will not be imposed if the relevant offence occurred 10 years or more prior to the person applying to the court for a re-licensing order. This "10 year rule" already applies to all the other provisions in section 50AAA requiring or enabling the imposition of alcohol interlock conditions. Sub-clause (3)(f) amends section 89C of the Road Safety Act 1986 to provide that where an infringement notice alleging that a person committed a drink driving offence involving a BAC of 005 or more while under the age of 26 years is paid or is not objected to, his or her licence is automatically cancelled. This previously only applied to probationary drivers and others subject to a zero BAC limit.

The amendments made by clause 19 regarding drink driving offences by young or inexperienced drivers only apply to offences committed wholly after the commencement of the relevant provision (see new section 103L inserted by clause 50).

Clause 20 makes two amendments regarding probationary licences that are consequential on the amendments made by clause 17. Sub-clause (1) enables the payment of a penalty or the recording of demerit points in respect of an offence dealt with under the operator onus system established by new Part 6AA (being inserted by Part 5 of the Bill) to be able to be used for determining the period or periods for which a person may be required to hold a probationary driver licence. It is necessary to provide for this because section 84BD(1) inserted by clause 24 provides that if by virtue of the operator onus system more than one person may be guilty of an offence involving a motor vehicle or trailer and the relevant penalty is paid by any one of them, no further penalty or consequence may be imposed on that person or any other person in relation to the offence. Sub-clause (2) amends section 89 of the Road Safety Act 1986 to provide that the fact that a person has paid a penalty, been found guilty, participated in a diversion program or had a

42 conviction imposed by a court in respect of an infringement notice may be used to determine the period of time for which a person may be required to hold a probationary driver licence. It is necessary to provide for this because section 89 provides that normally once an infringement notice has been dealt with the person against whom it was issued cannot be subject to any further detriment.

PART 5—OPERATOR ONUS AMENDMENTS The main purpose of Part 5 is to establish a new "operator onus" enforcement system in respect of certain traffic, parking and tolling offences, which will replace the existing "owner onus" systems. The new system will determine who is held responsible where the identity of the offender is not established at the time the offence is detected. Commencement arrangements

The amendments to be made by Part 5 will come into operation when proclaimed or, if not proclaimed, on 1 July 2007. The one exception is the amendment to be made to section 80 of the Melbourne City Link Act 1995 by clause 27(1), which will come into operation on the day following Royal Assent.

What is the existing system?

The new "operator onus" system will replace three existing "owner onus" systems in existing legislation and establish one consistent system for dealing with such offences under a new Part 6AA to be inserted into the Road Safety Act 1986. The existing owner onus provisions that will be replaced are—  traffic offences detected by automatic detection devices and processes, such as speed and red light cameras—currently dealt with under section 66 of the Road Safety Act 1986;  parking offences—currently dealt with under section 86 of the Road Safety Act 1986;  tolling offences on the Melbourne City Link—currently dealt with under sections 80 and 87 of the Melbourne City Link Act 1995.

The common element in all three is that the identity of the offender is not established at the time an offence is detected. For example:

43  In the case of a parking offence, the parking officer finds a car parked illegally but has no way of knowing who parked it there, or when.  In the case of a speed or red light offence, if a Police officer sees the offence being committed, the officer can intercept the driver, establish his or her identity and issue an infringement notice or summons to the offender. However, if the offence is detected by the traffic camera, the identity of the offender is not known.

 The situation is similar with a tolling offence under section 73 of the Melbourne City Link Act 1995, which consists of driving in the declared toll zone without a tolling account or pass. Such offences are detected by the tolling system and subsequently reported by City Link's operators to Police. In each of these cases, successful enforcement action depends, in the first instance, on the use of vehicle registration records to establish the identity of the person registered as the operator of the vehicle and, if necessary, by the registered operator subsequently identifying the driver. The three existing owner onus regimes are very similar in operation. They are based on the principle that the registered operator has an obligation to ensure that his or her vehicle is operated responsibly and in accordance with the law. Accordingly, when an offence involving the use of the car is detected and the identity of the person who committed it is not established, the registered operator is held liable for the offence as if he or she were the driver unless they nominate the actual driver. There are exceptions where it can be shown that the vehicle was stolen, or that the identity of the driver cannot be ascertained for a good reason.

What are the difficulties with the existing system? Serious difficulties have been encountered in enforcing the current owner onus laws. First, only the registered operator is required to identify the actual driver, if able to do so. The registered operator may nominate the person last known to have had the vehicle on the assumption that that person was the driver. If that person was not the driver, they may nominate another person as driver but are not required to do so. Persons further down the chain of control may avoid liability by establishing that they themselves were not the driver without the need to make a further nomination, even if they know the identity of the actual driver. If this happens, the offender may escape liability. Given the complexity of modern fleet management and vehicle leasing practices, it is increasingly common to find possession and control being passed from person to person so that the registered operator may not know,

44 and not be able to establish, the identity of the actual driver on any particular occasion. Examples:  A vehicle has changed hands by sale or repossession but the acquirer has not notified the registration authorities.  A vehicle is leased or rented and the owner knows the identity of the person or company that hired it, but not who was driving it. This is a particular problem where possession has been passed to a company, because a company cannot be a "driver".

 A company car is made available for the personal use of an employee as a condition of employment. Another cause of enforcement failure is that the registered operator may technically comply with the requirement to provide a name and address without providing enough information to enable that person to be identified with sufficient certainty for enforcement purposes. The name and address details of the person nominated may be incomplete or out of date, or may be insufficient to distinguish the person nominated from another person who has a similar name. Or the details may be simply incorrect. In this way, a registered operator may avoid responsibility without having effectively identified the person who was responsible for the offence.

How is the proposed operator onus system intended to work? The Bill extends the existing "owner onus" principle down the chain of control, so that each person to whom control of the vehicle is passed will be held responsible for the offence unless they identify another person to whom they had passed control, and so on until the actual offender is ultimately identified. This system will be known as "operator onus". As with the existing "owner onus" system, a person may avoid liability under operator onus by demonstrating that the vehicle was stolen, or that the next person in the chain of control cannot be identified for a legitimate reason. The system will allow a person who receives an infringement notice to make one of 5 kinds of statements to avoid liability—  "sold vehicle"—to nominate another person to whom the vehicle had been permanently passed, such as by sale, repossession, bequest, etc.;  "known user"—to nominate another person who had, prior to the offence, acquired actual possession of or control over the vehicle, such as by hiring it, borrowing it, etc.;

45  "unknown user"—which must set out the reasons why the identity of the person who had control of the vehicle cannot be established;  "stolen vehicle"—indicating that the vehicle or the number plates displayed on it had been stolen;  "nomination rejection"—disputing a person's own nomination in a "sold vehicle" or "known user" statement made by another person as the person responsible for the motor vehicle or trailer. To be effective, nominations have to meet certain requirements, such as containing sufficient information to identify and locate a nominated person. If a statement is not accepted as effective by the Police officer or other enforcement official, the person will have an opportunity to defend the matter in Court on the basis that the statement ought to have been accepted.

At each stage, once it is established that a person had acquired possession or control of the vehicle prior to the offence, then that person will be assumed to have been the driver and responsible for the offence. However, that person may, in turn, shift the onus to another person by making a statement nominating the person to whom they passed the vehicle. A chain of such nominations may be made until a responsible person is identified or until it is established that, for some adequate reason, the identity of the person ultimately responsible cannot be identified.

Other features of the proposed "operator onus" system:  A person who was responsible for a vehicle may make one of several specific statement types to pass on that responsibility to another person who had possession or control of the vehicle. Statements may also be made where the vehicle (or a number plate displayed on it) was stolen, or where the identity of that person cannot be established with reasonable diligence, or to refute a person's own nomination.  These statements will replace the existing requirements for a sworn statement or a statutory declaration. It will be an offence knowingly to make a false or misleading statement.  To be effective, a statement must contain the details required by the Bill. In particular, a nomination of another person as responsible must be sufficient to enable that person's identity and location to be established with certainty. This is necessary so that further enforcement action may be taken in relation to the offence.

46  However, Police and other enforcement officers will have discretion to accept nominations that do not contain all of the required information if they believe it may be enough to enable the nominated person to be identified and located. However, if an attempted nomination does not provide the required information and is ineffective, or if the person nominated denies the allegation, then responsibility reverts to the person who made it.  A person who receives an infringement notice under this system may defend the matter in court, as with other infringement notices. In this case, the statement which nominated them as responsible may be used as evidence of the matters stated in it. Where a statement has not been accepted by an enforcement officer, it will be a defence to satisfy the court that it ought to have been accepted.  All persons who have had possession or control of a vehicle will be required to provide any information they may have which would assist Police in identifying the driver of the vehicle at a given time (currently this duty is only imposed on the vehicle's registered operator).

Clause 21 amends section 60 of the Road Safety Act 1986, which deals with the duties of the owners of motor vehicles to give information about the driver of the motor vehicle. Sub-clause (1) amends section 60(1) so that the duty that a Clause vehicle owner currently has to assist Police in identifying the driver of a vehicle will also be imposed on persons who have been nominated as a "responsible person" in relation to a vehicle under the proposed Part 6AA. The nomination processes under the proposed operator onus arrangements may indicate that possession or control of a particular vehicle had been passed to a person (whether an individual or a corporation) prior to the time of an offence involving the use of that vehicle. In this situation, the person to whom possession or control of the vehicle was passed may be required to assist Police in identifying the driver at a particular time. This will assist Police in the prosecution of offences to which operator onus applies (such as offences detected by traffic cameras). It may also assist in the investigation of other matters, such as identifying the driver involved in a "hit and run" accident. Currently, only the "owner" of the vehicle is required to provide such assistance, but if control of the vehicle had been passed to another person some time before the accident then the

47 owner may be able to provide little or no relevant information. Under the amendments, the person who has been nominated under operator onus as the person to whom possession or control of the vehicle had been passed will also be required to assist Police. Sub-clause (2) inserts a new sub-section (1A) into section 60 of the Road Safety Act 1986, which will define "a relevant nominated person" for the purposes of the amended section 60(1). A relevant nominated person is a person who has been nominated under a "sold vehicle statement" or "known user statement" under the new Part 6AA. It should be noted that, although the definition refers to a person who has been nominated at the time of an offence, the purposes for which the information may be sought or used are not limited to that offence. Sub-clause (3) inserts new sub-sections (1B) and (1C) into section 60 of the Road Safety Act 1986. Under new sub-section (1B), if a Police officer believes on reasonable grounds that a person may have had possession or control of a vehicle at a relevant time, the Police officer may require the person to provide any information that it is within their power to give which may lead to the identification of the driver (or person in charge) of the vehicle at a particular time. For example, say a hit and run accident has occurred and a witness recorded the vehicle's registration number, and that the vehicle is registered in the name of a company. Under the current section 60, only that company would be under a duty to provide information to Police. Under the amendments, however, if the company had provided the vehicle to an employee for his or her personal, a Police officer could, on the basis of information provided by the company, form a reasonable belief that the employee may have had possession or control of the vehicle prior to the offence. On this basis, the Police officer could require that employee to provide information that would assist in identifying the driver at the time of the hit and run accident, and the employee would be under a duty to provide any information that was in his or her power to give. And if the employee indicates that the vehicle had been passed to another person, then the Police officer could seek information from that person, and so on. New sub-section (1C) will make it an offence to fail, without a reasonable excuse, to comply with a requirement made in accordance with new sub-section (1B) to provide information to Police to assist in the identification of a driver or person in charge of a vehicle.

48 Sub-clause (4) inserts new sub-sections (4) to (7) into section 60 of the Road Safety Act 1986. New sub-section (4) allows a Police to require information from a person under section 60 either orally or in writing. New sub- sections (5) to (6) deal with the service of written notices by post and establish similar rules to those applying to the service of infringement notices by post under the Infringements Act 2006. It is envisaged that, where a traffic offence is detected by a traffic safety camera and the registered operator of the vehicle is a company or other organisation rather than an individual, the Police Traffic Camera Office would usually issue a written notice requiring that operator to identify the responsible person. This will assist in identifying the person responsible for the offence and holding them accountable including, where applicable, through the imposition of demerit points. Under the Road Safety (General) Regulations 1999, an infringement penalty of 6 penalty units applies to a company which does not provide information in accordance with section 60 when required.

Clause 22 amends section 60A of the Road Safety Act 1986, which deals with the duties of the owners of trailers to give information about the driver of the motor vehicle to which the trailer was attached. The amendments largely correspond to those made to section 60 by clause 21 in relation to motor vehicles, except that the duties imposed apply both to information about the motor vehicle to which the trailer was attached as well as the trailer itself.

Clause 23 substitutes section 66 of the Road Safety Act 1986, which currently contains the "owner onus" provisions in respect of offences detected by a device or process which has been prescribed in regulations for the purposes of that section. In effect, this is the provision which deals with enforcement of offences detected by speed, red light and other traffic safety cameras. The new section 66 will provide that, in future, responsibility for such offences will be determined in accordance with the new "operator onus" system to be established under Part 6AA, which will be inserted by clause 24. The existing provisions of section 66 dealing with "owner onus" will be superseded by the new Part 6AA. However, section 66 as currently in force will continue to apply in relation to offences

49 that occurred (or which partly occurred) before the new Part 6AA comes into operation: See the transitional arrangements set out in the proposed new section 103L(5), which is to be inserted by clause 50. Section 66 will continue to authorise regulations to be made that prescribe the categories of offences that, if detected by a prescribed automatic detection device or process, may be enforced through the owner onus/operator onus systems. Currently, these are prescribed by regulation 301 of the Road Safety (General) Regulations 1999. The prescribed offences include speeding, disobeying traffic signals and driving an unregistered vehicle. It is intended that regulation 301 will continue to apply for the purposes of specifying traffic offences which may be dealt with under the new operator onus system when it comes into operation. Section 66 will also continue to authorise regulations to be made that prescribe the automatic detection devices or processes for these purposes. Currently, a number of devices are prescribed for these purposes by regulation 302 of the Road Safety (General) Regulations 1999. It is intended that the devices currently prescribed by regulation 302 may continue to be used under the new operator onus system.

Clause 24 inserts a new Part 6AA into the Road Safety Act dealing with operator onus. This will bring into one place the provisions governing (and establish one procedure for) operator onus for traffic camera, tolling and parking offences. The Overview section above explains how the operator onus system is intended to work. New section 84BA sets out a statement of the purposes of the new Part 6AA, which is intended to be used as an aid to interpretation and application of the Part. The operator onus system is designed for situations where an offence involving the use of a motor vehicle is detected but the identity of the driver or person in charge is not established at the time of detection. It is used for parking offences, where a vehicle has been left parked illegally but the person who left it there is no longer present. Operator onus will also be used where the offence involving the use of the vehicle, such as speeding, is detected by an automatic device. In these situations, as no Police officer or other enforcement officer was present when an offence was committed, there is no opportunity to establish the identity of the offender for the purposes of a prosecution or issuing an infringement notice.

50 In these circumstances, the only information that enforcement authorities have to assist in identifying and prosecuting an offender is the registration number displayed on the vehicle. This enables the identity of the person responsible for the operation of that vehicle to be ascertained from motor registration records. A person who has possession or control of a motor vehicle or trailer has an obligation to ensure that it is used responsibly and in accordance with the law. For this reason, the new Part 6AA is based on the principle that, where the identity of an offender in a vehicle-related offence is not established at the time of that offence, the person last known to have had possession or control should generally be held liable for the offence. To this end, Part 6AA provides mechanisms for ascertaining the identity of the person who is last known to have had possession or control of a vehicle prior to an offence. In the first instance, this will be ascertained from motor registration records and subsequently by statements identifying the person or persons to whom possession or control had been passed.

New section 84BB sets out definitions for the purposes of the new Part 6AA. The key definitions are as follows:  The words "corresponding body" refer to bodies which perform functions similar to VicRoads in relation to the registration of motor vehicles in other Australian jurisdictions. The records of VicRoads and corresponding bodies in other States and Territories may be used to identify the person generally responsible for the operation of a vehicle or the number plates displayed on a vehicle, who may not necessarily be the owner of the vehicle or the plates.  The words "corresponding law" refer to laws of the Commonwealth or one of the other States or Territories that correspond to Division 2 of Part 2 of the Road Safety Act 1986, that is, a law of another Australian jurisdiction relating to the registration of motor vehicles and trailers.  The term "effective" explains the circumstances in which one of the statements that can be made by a

51 person who is responsible for a vehicle for operator onus purposes will be effective for the purposes of transferring or avoiding liability. The proposed new section 84BE sets out the circumstances in which a statement will be effective. Section 84BE will also confer on enforcement powers discretion to accept other statements as effective, subject to cancellation in accordance with section 84BF. It will be a defence to a charge for a vehicle-related offence which is based on operator onus responsibility to establish to the satisfaction of a court that an enforcement officer ought to have accepted as effective, or not to have cancelled acceptance of the statement—see proposed new section 84BH.  The words "enforcement official" refer to the informant in a prosecution, or to the person who issues an infringement notice, in relation to an alleged vehicle- related offence of a type to which the operator onus system applies.

 An "illegal user statement" is one of the 5 types of statements that a person (to whom an infringement notice has been issued under the operator onus provisions) may make to avoid liability for the alleged offence. An illegal user statement is a statement that the relevant motor vehicle or trailer, or the number plates displayed on it, was stolen property as at the time of the alleged offence. Reasons must be given for that belief. See proposed new section 84BE(5) in relation to the discretion of an enforcement officer to accept an illegal user statement, and section 84BH(a) and (b) in relation to defences may be available to a prosecution by a person who had made an illegal user statement.  A "known user statement" is another of the 5 types of statements that a person may make to avoid liability for an alleged operator onus offence. The essence of a "known user statement" is that the person making the statement denies that they themselves committed the offence and, in addition, provides sufficient information

52 to identify and locate the person last known to have had possession or control of the relevant motor vehicle or trailer prior to the offence, together with a statement of the reasons for this belief. A statement will be sufficient for this purpose if it contains the information described in the new section 84BE(2), such as, in the case of an individual, his or her full name and current address plus either date of birth or driver licence number. However, an enforcement officer may accept statements that do not contain all of this information if they believe that the statement may be sufficient for enforcement purposes to identify and locate the person being nominated.

It will be a defence to a charge based on operator onus to demonstrate that a known user statement should have been accepted or should not have been cancelled—see new section 84BH(a) and (b).  A "nomination rejection statement" is one of the 5 types of statements that a person may make to avoid liability for an alleged operator onus offence. A nomination rejection statement may be made by a person who has been nominated by somebody else (in a known user statement or sold vehicle statement) as having acquired or had possession or control of the vehicle prior to the relevant offence. To be effective, a nomination rejection statement must establish that the person had not permanently acquired, or had not taken possession or control of the vehicle, as alleged and give reasons. An example of where a nomination rejection statement may be appropriate would be where a person hired a car at the airport and, owing to a clerical error in the records of the car rental company, was subsequently nominated by the company as the person to whom it had rented a different car. Where a nomination rejection statement is accepted as effective, responsibility would revert to the person who had made the incorrect nomination. To use the example already given, responsibility would revert to the car rental company which would then have to ascertain the identity of the person who had actually hired the

53 relevant car, or demonstrate (via an "unknown user statement") that the hirer cannot be identified. It will be a defence to a charge based on operator onus to demonstrate that a nomination rejection statement should have been accepted—see new section 84BH(c).  The term "operator" refers to a person who, from the motor registration records maintained by VicRoads (or corresponding bodies in other Australian jurisdictions), has responsibility for the operation of a motor vehicle or trailer or for the number plates that were displayed on a vehicle. In particular, the term covers— (a) the "registered operator" of a motor vehicle or trailer, or equivalent under interstate registration. Note that the registered operator is the person who has accepted responsibility for and is registered as the vehicle's operator but does not necessarily own the vehicle. In many cases, the registered operator of the vehicle is not the owner but has use of the vehicle under a lease or other arrangement. Registration as operator is not evidence of ownership—see section 9B of the Act. (b) if there has been a notice of transfer—the person who appears to be responsible according to the registration records of VicRoads or a corresponding interstate body. (c) if the vehicle is not currently registered—the person who appears to be responsible from VicRoads or interstate vehicle registration records. For example, if registration had not been renewed at the time of an offence, the person who was the registered operator when the vehicle was last registered would be an "operator" for the purposes of the definition. (d) the person to whom the number plate displayed on a vehicle had been last assigned.

54 It sometimes happens that a vehicle-related offence is detected but the plates displayed on the vehicle are not currently assigned to any registered vehicle. This can happen where the plates were last assigned to a vehicle that is no longer registered, or that has been destroyed, but the plates were not returned to the registration authority. The plates are then displayed on another vehicle, which is later detected in connection with a traffic, tolling or parking offence. It can also occur when personalised plates are purchased without the number on them being assigned to a registered vehicle, and the plates are then subsequently attached to a vehicle. In this situation, the person to whom the plates were last assigned may be treated as the operator and may be required to provide whatever information they may have to help identify and locate the person responsible for the offence.

(e) the person responsible for "trade plates" which had been displayed on a vehicle.  The words "responsible person" refer to the person who is responsible for the offence, for the time being, under the operator onus principles described in the Overview section above. As explained above, a responsible person for the time being may transfer the responsibility to another person by identifying them as the responsible person through a sold vehicle statement or a known user statement, or transfer it back to the former person through a nomination rejection statement. In particular, a "responsible person" includes each of the following: (a) An "operator" of the relevant motor vehicle or trailer—see definition of "operator above". (b) In the case of a trailer, the operator of the motor vehicle to which that trailer was

55 attached. In the case of semi-trailers, for example, a trailer has separate registration and number plates from the prime mover which may be towing it at any particular time. In practical terms, this means that the registered operator of a trailer which is detected by, say, a speed camera could nominate the registered operator, driver etc. of the prime mover as the responsible person in respect of an offence. (c) The person nominated in an effective known user statement or sold vehicle statement. Note that, if such a statement ceases to be effective, responsibility will revert to the person who made the statement—see definition of "effective" and new section 84BF. (d) In the case of a tolling offence under section 73(1) of the Melbourne City Link Act 1995, includes a person who has been nominated under section 72(3) as responsible for paying a toll invoice because he or she was driver of the vehicle at the relevant time. This enables driver nominations under the toll billing system also to be used for the purposes of enforcement in relation to the toll offence, thus avoiding the need to repeat the nomination process. This is in addition to, not instead of, the other bases on which a person may be an operator. These definitions are not mutually exclusive—there may be more than one "operator" in relation to any vehicle at any given time. However, only one person may be penalised in relation to any given offence— see new section 84BD(1). If an operator receives an infringement notice in relation to an offence for which they believe they are not responsible, they may use one of the 5 statement procedures to avoid responsibility or transfer it to the person actually responsible.

56  The words "sold vehicle statement" refer to another of the 5 types of statements that a person may make to avoid liability for an alleged operator onus offence. The essence of a "sold vehicle statement" is that the person making the statement denies that they themselves committed the offence, that the vehicle had been permanently disposed of to another person before the offence and, in addition, the person must provide sufficient information to identify and locate the person nominated. A sold vehicle statement must also include a statement of the supporting reasons. Even though the statement is called a "sold vehicle statement", it is intended to be used in situations where, prior to the offence, the relevant vehicle had been disposed of permanently, whether by way of sale or by other means. For example, a sold vehicle statement could be made where the vehicle had been disposed of by way of a gift, upon the expiry of a lease, by repossession by a financier, where possession of the vehicle is taken pursuant to the exercise of rights under a chattel mortgage or by inheritance from a deceased person's estate. Such details would be contained in the statement of reasons to be provided in the sold vehicle statement. In some cases, a sold vehicle statement would be made by an executor or attorney.

The name recorded in the VicRoads' Register of Vehicles as the operator of the vehicle should be transferred to the acquirer in due course, at which point the acquirer would become an "operator" for the purposes of Part 6AA. However, it takes time for a transfer to be lodged and processed. In the meantime, the acquirer has taken possession of the vehicle, and its former operator may have no knowledge as to who was driving or in charge of the vehicle at the time of the offence. In such a situation, the disposer would be able to make a sold vehicle statement to nominate the acquirer of the vehicle as the responsible person. The acquirer will then become liable under operator onus for the offence as the responsible person. At that point, the acquirer could nominate another person as having acquired, or taken possession or control of, the vehicle prior to the time of the offence, or could

57 exercise one of the other options available to a responsible person.  An "unknown user statement" is another of the 5 types of statements that a person may make to avoid liability for an alleged operator onus offence. The essence of an unknown user statement is that the person making the statement denies being responsible for the offence, and states that it is not possible to ascertain who had taken possession or control of the vehicle prior to the offence. A person who has taken possession or control of a motor vehicle or trailer has an obligation to ensure that it is used responsibly and in accordance with the law. For that reason, it will not be enough for a person to establish that they were not the driver. To be effective to avoid liability for the offence, an unknown user statement must give reasons for not knowing and not being able to ascertain the identity of the person who had taken the vehicle. Police and enforcement officers will have discretion whether to accept or reject an unknown user statement—see new section 84BE(5). If the matter goes to court, it will be a defence to establish that an unknown user statement had been made and to satisfy the court that it ought to have been accepted.

New section 84BC provides that a person to whom operator onus applies will generally be liable for an offence involving a motor vehicle for which they are the responsible person as if they were the person who was driving or in charge of the vehicle at the time of the offence. New section 84BC(1) provides that if a legislative provision states that a vehicle-related offence is an operator onus provision, then a responsible person for the vehicle is guilty of the offence as if they were the driver or person in charge, unless one of the exceptions in Part 6AA applies. The offences that will be covered by operator onus under Part 6AA will be—  offences detected by traffic cameras and similar devices and processes—see section 66 of the Road Safety Act 1986, as substituted by clause 23;  parking offences—see section 86 of the Road Safety Act 1986, as substituted by clause 26; and

58  tolling offences under section 73(1) of the Melbourne City Link Act 1995—see section 87(1) of that Act, as substituted by clause 28(1). New section 84BC(2) provides that nothing in new sub- section 84BB(2) affects the liability of the person actually driving, or in charge of, the motor vehicle or trailer at the time of the offence. New section 84BC(3) provides that the operator of a motor vehicle or trailer only ceases to be the responsible person in relation to the motor vehicle or trailer if another person is the responsible person in relation to that vehicle or trailer by force of new section 84BE (that is, by the making of an effective sold vehicle statement, known user statement, unknown user statement or illegal user statement) or section 84BF (that is, by cancellation of a statement that had nominated them as the responsible person). New sub-section 84BC(4) provides that a person who is guilty of an offence by force of section 84BC is liable to the same penalties and subject to the same consequences to which the person would have been liable and subject had the person been the driver, or in charge, as the case requires, of the motor vehicle or trailer at the time of the offence. Thus, for example, a person who is liable for an offence under operator onus may as a result incur licence demerit points in respect of the offence in accordance with section 25 of the Road Safety Act 1986 and regulations, or suspension of licence resulting from an "excessive speed infringement" in accordance with sections 28 or 89D of that Act. New section 84BD provides that if, by force of section 84BC, more than one person may be guilty of an offence involving a motor vehicle or trailer, and a penalty is paid and any other necessary consequence (including the recording of demerit points) is suffered by one of them in relation to the offence, no further penalty or consequence must be imposed on or recovered from that person or any other person in relation to the offence. Despite this, under sub-section 84BD(2), the payment of a monetary penalty or the recording of demerit points for an operator onus offence may be recorded for the purpose of a heavy vehicle registration suspension scheme and does not prevent suspension of registration under one of those schemes. Heavy vehicle registration suspension schemes operate under Victorian, Commonwealth and interstate registration legislation and provide for the suspension of the registration of heavy

59 vehicles which are repeatedly involved in breaches of traffic or transport laws. Note that it is intended that these records will also be used for the purposes of the proposed graduated licensing scheme that is to be introduced by Part 4 of this Bill. To this end, clause 20(1) will insert a new sub-section (3) into new section 84BD enabling the payment of a penalty or the recording of demerit points in relation to a traffic camera offence to be used for the purposes of determining the length of a probationary licence period. This further sub-section will be inserted into section 84BD when Part 4 of the Bill comes into operation. New section 84BE provides that a person is not guilty of an offence under operator onus if they make an effective, illegal user statement, known user statement, sold vehicle statement or unknown user statement within the period to be prescribed by the regulations. For further explanation of these comments, see the notes on new section 84BA above on the definitions relating to the term "effective" and these four types of statements. The note to new section 84BE draws attention to the fact that it will be an offence to knowingly make a false or misleading statement. New sub-section 84BE(2) sets out what a "sold vehicle statement" or "known user statement" must contain to be effective. The purpose of one of these statements is to "transfer" liability to another person who had acquired, or who had taken possession or control of, the relevant motor vehicle or trailer prior to the offence. To this end, the person making the nomination has to provide information sufficient to enable the responsible person to be identified and located for the purposes of further enforcement action. Information provided in a known user statement or sold vehicle statement will be sufficient if, in the case of an individual, the statement contains the person's full name, current home address and either his or her date of birth or driver licence/permit number. In the case of a driver licence or permit issued by a licensing authority of another Australian or foreign jurisdiction, the name of that authority will also be required. These details are necessary so that enforcement agencies can identify the responsible person with certainty. Problems have arisen under the current provisions in identifying and locating people where the addresses given are incomplete or out of date, where a person has been referred to by a nickname or middle names rather than the full name on his or her licence, and where two people (usually close relatives) have the same or similar names.

60 In case of a corporation, a nomination will be sufficient if it sets out the body's full name and current address together with either its Australian Business Number or Australian Company Number. This will enable the company to be identified from the records of corporate regulators. In addition, to be effective a statement will need to include any information that may in future be required by the regulations. As a practical matter, a person who disposes of, or passes temporary control of, a vehicle to another person should take care to record the relevant details so that that person can subsequently be identified if necessary—otherwise the first person may remain liable for the offence. Despite these requirements, under section 84BE(4) and (5), an enforcement officer will have discretion to accept a nominating statement if he or she believes it may be sufficient to identify and locate the person nominated. If a known user statement or sold vehicle statement is accepted, the enforcement officer is to issue a notice accepting the statement and, if this is not done within the period set by the regulations, it is to be assumed that the statement has been accepted. Such a notice may be served by post in a similar manner to the process prescribed for the service of infringement notices under the Infringements Act 2006. New section 84BF enables an enforcement official to cancel acceptance of a statement nominating another person as responsible for the relevant vehicle.

Under sub-section (1)(a), a person who has been nominated as responsible for a vehicle by another person through a "known user" or "sold vehicle" statement may contest that nomination by making a "nomination rejection statement" within the period which is to be fixed by regulations. A person who makes a "nomination rejection statement" is saying, in effect, that possession or control of the vehicle had not been passed to them prior to the offence, as alleged by the other person. If the enforcement officer is satisfied, on the basis of the information in the nomination rejection statement, that that person's nomination was incorrect, then the officer may cancel the acceptance of the "known user" or "sold vehicle" statement. It will be an offence to make a false or misleading "nomination rejection statement"— see new section 84BI. New section 84BF(1)(a) deals with the cancellation of acceptance of "known user" and "sold vehicle" statements which had been provisionally accepted (despite not having all the details required

61 for an effective nomination) and which turn out to be insufficient to identify or locate the person alleged to have been responsible. A person who passes control of a vehicle to another person should obtain sufficient details to enable that person to be identified later to Police or enforcement officials for the purposes of investigating subsequent offences involving that vehicle. If a person passes a vehicle to another person without obtaining the necessary information, they may be held liable themselves for any subsequent offences involving the vehicle. The details that a person should obtain when passing a vehicle to another person are listed in new section 84BE(2). These are the details required for a nominating statement to be effective Despite this, enforcement officials will have discretion to provisionally accept nominations that do not contain all the required information if they believe it may be enough to identify and locate the nominated person—see new section 84BE(4). However, Police or enforcement officials may cancel the acceptance of such a statement if the information later proves to be insufficient to identify and locate the nominated person. In particular, under new section 84BF(1)(b), where—  a "known user" or "sold vehicle" statement had been accepted by the enforcement officer even though the statement did not contain all the details required by section 84BE(2) to identify and locate the nominated person, and  it later turns out that the information that was provided in the statement proves not to be sufficient to identify and locate the nominated person— then the enforcement official may cancel acceptance of the statement. Under sub-section (2), if a "known user" or "sold vehicle" statement is cancelled in either of the ways described in sub- section (1), then that statement ceases to be effective—see the definition of "effective" in new section 84BA. Consequently, the person who had made the cancelled statement again becomes the "responsible person" in respect of the offence and is liable to be prosecuted accordingly. New section 84BG provides an extension of time for the taking of enforcement action where a new person has become the responsible person in relation to an offence, either as a result of being nominated in a new statement or because a statement they

62 made to transfer liability has been cancelled and responsibility has reverted. Under sub-section (2), matters stated in a known user statement or sold vehicle statement are evidence and, in the absence of contrary evidence, are to be taken as proof. New section 84BH sets out the defences that will be available to a person in respect of operator onus liability. In essence, a person may defend a charge on the basis that one of the 5 available statements had been made and that it either complied with the requirements or that, as a matter of discretion, it ought to have been accepted by the enforcement official. This also applies where a statement rejecting nomination has been made (i.e. where a person denies having taken possession of the vehicle) but was not accepted by the enforcement official. Similarly, where a statement had been accepted but was subsequently cancelled, it will be a defence to persuade a court that in all the circumstances of the case it ought not to have been cancelled. New sub-section 84BI provides that it is an offence for a person in an illegal user statement, known user statement, sold vehicle statement, unknown user statement or nomination rejection statement to provide information that the person knows to be false or misleading in a material particular. The penalty for this offence will be a fine of up to 60 penalty units.

Under the current owner onus systems, a nomination must be supported by a sworn statement or a statutory declaration, so that a false statement makes the person liable to prosecution for the indictable offence of perjury. The proposed new offence will be a summary offence. The nature of the offence and available penalty is consistent with the penalties for false statements under the Infringements Act 2006.

Clause 25 repeals section 85 of the Road Safety Act 1986. Section 85 contains definitions of "owner" and "vehicle" that are superseded by the substituted section 86 to be inserted by clause 26.

Clause 26 substitutes for section 86 of the Road Safety Act 1986 a new section which provides that a parking infringement is an operator onus offence for the purposes of the new Part 6AA.

Clause 27 inserts a new sub-section (2A) into section 80 of the Melbourne City Link Act 1995. This will enable an infringement notice

63 relating to an alleged tolling offence against section 73(1) of that Act to be served on the "owner" of the vehicle as defined in that Act. It will also enable an infringement notice to be served on a person who has been nominated under either the nomination process relating to toll invoices (section 72(3)) or the nomination process relating to infringement notices (section 87(3)). This process is to be in addition to the service options available under the Infringements Act 2006. This amendment will take effect on the day after Royal Assent. Sub-clause (2), which is to come into effect with the remainder of Part 5 of the Bill, will subsequently amend the new sub- section (2A) being inserted by sub-clause (1), reflecting the establishment of the new operator onus procedures.

Clause 28 substitutes for section 87(1) of the Melbourne City Link Act 1995 a new provision which makes an offence against section 73(1) of that Act an operator onus offence for the purpose of Part 6AA. Sub-clause (2) repeals sub-sections (2), (3), (3A), (4), (5) and (7) of section 87 of the Melbourne City Link Act 1995, which established an owner onus system with respect to tolling offences and which will be superseded by the operator onus provisions of the new Part 6AA.

Clause 29 inserts a new section 123 into the Melbourne City Link Act 1995. This provides that the provisions of that Act that establish an owner onus system in respect of tolling offences will continue to apply to offences that were committed, or partially committed, before that system is superseded by the new operator onus system.

Clause 30 makes a number of consequential amendments to the Road Safety Act 1986, reflecting the introduction of the new operator onus system.

Clause 31 makes a number of consequential amendments to the Children and Young Persons Act 1989. In particular, the amendments deal with the application of the infringement notice enforcement scheme under that Act in relation to children and young persons.

Clause 32 makes a number of consequential amendments to the Infringements Act 2006. In particular, the amendments deal

64 with the application of the infringement notice enforcement scheme under that Act.

PART 6—IMPOUNDMENT, IMMOBILISATION AND FORFEITURE OF MOTOR VEHICLES

Clause 33 allows information about a motor vehicle that is the subject of a notice served under section 84W(1) or 84Y(1) of the Road Safety Act 1986 to be provided with the certificate issued under section 24(1) of the Chattel Securities Act 1987 detailing what, if any, security interests are held in relation to the vehicle. Sections 84W(1) and 84(Y)(1) of the Road Safety Act 1986 require the Chief Commissioner of Police to notify certain persons if he or she intends to apply for the impoundment, immobilisation or forfeiture of a motor vehicle. The effect of the amendment is to enable vehicle securities certificates to identify vehicles which are potentially subject to impoundment, immobilisation or forfeiture. This is intended to ensure that people who may be considering buying a vehicle have a means of checking whether that vehicle may be or is subject to an application for an impoundment, immobilisation or forfeiture order.

Clause 34 amends section 5AB(1) of the Road Safety Act 1986 to provide that VicRoads can exercise its powers in relation to, among other things, the registration of vehicles when performing functions under Part 6A of the Act, which deals with the impoundment, immobilisation and forfeiture of motor vehicles. These powers are outlined in new sections 84YA and 84YB inserted by clause 38.

Clause 35 amends section 9(1) of the Road Safety Act 1986 to require that registration, renewal or transfer of motor vehicles must be in accordance, not only with the requirements of the regulations made under that Act, but also in accordance with Division 3 of Part 6A of the Act. Division 3 of Part 6A makes provisions with respect to impoundment, immobilisation and forfeiture of motor vehicles.

Clause 36 amends sections 84W(1)(c) and 84Y(1)(c) of the Road Safety Act 1986 to require the Chief Commissioner of Police to serve notice of an application for a vehicle impoundment, immobilisation or forfeiture order on VicRoads as well as on the driver and registered operator.

Clause 37 amends sections 84X(1) and 84Y(4) of the Road Safety Act 1986 to expand the offence so that a person against whom an impoundment, immobilisation or forfeiture order has been made

65 must not sell or otherwise dispose of any interest in the motor vehicle without the approval of the relevant court before the vehicle is seized. The maximum penalty for this offence is 60 penalty units.

Clause 38 inserts new sections 84YA, 84YB and 84YC into the Road Safety Act 1986. New section 84YA deals with directions to VicRoads by the Chief Commissioner of Police in relation to the registration of motor vehicles. Section 84YA(1) provides that within 7 days after service of a notice of application for an impoundment, immobilisation or forfeiture order under section 84W(1) or 84Y(1) the Chief Commissioner must direct VicRoads not to transfer the registration of the relevant motor vehicle, or issue a fresh registration in respect of it in the name of a person other than the most recent registered operator, until the Chief Commissioner notifies VicRoads that the direction has ceased. Under section 84YA(2), this applies whether or not an actual transfer or registration application has been made. New section 84YA(3) provides that the Chief Commissioner must notify VicRoads that the direction not to transfer registration or register the motor vehicle under section 84YA(1) has ceased in certain circumstances. The circumstances depend on whether the notice was served under section 84W(1) (that is, it related to a single charge) or under section 84Y(1) (that is, it related to multiple charges).

The circumstances in which the Chief Commissioner must notify VicRoads that the direction has ceased include where—  the driver is found not guilty of any relevant offence;  the Chief Commissioner does not make the application for impoundment, immobilisation or forfeiture within 28 days after the driver is sentenced for the relevant offence;  charges for all relevant offences are withdrawn;

 the court declines to make an impoundment, immobilisation or forfeiture order;

66  an impoundment, immobilisation or forfeiture order is set aside on appeal or the relevant conviction is set aside on appeal;  the period of impoundment or immobilisation specified in an impoundment or immobilisation order ends; or

 a forfeiture order becomes effective and a member of the police force or an authorised person takes possession of the motor vehicle. New section 84YB(1) provides that until notified by the Chief Commissioner that the direction made under section 84YA has ceased, VicRoads must not transfer the registration of the relevant motor vehicle, or issue a fresh registration in respect of it in the name of a person other than the most recent registered operator. New section 84YB(2) provides that if the Chief Commissioner gives a direction under section 84YA(1) in respect of a motor vehicle, VicRoads must send to the registered operator of the motor vehicle a notice advising that no transfer of registration will occur in relation to that motor vehicle until one of the events referred to in new section 84YA(3) occurs. The purpose of new sections 84YA and 84YB is to ensure that the person against whom an impoundment, immobilisation or forfeiture order has been made is not able to frustrate the effect of that order by transferring the registration of the motor vehicle which is the subject of that order into the name of another person, or surrendering the registration of the vehicle and allowing a new person to be registered.

New section 84YC provides that the cessation of a direction by the Chief Commissioner of Police not to transfer the registration of, or register, a motor vehicle does not affect the suspension of that registration under any other Act or law. For other circumstances in which the registration of a motor vehicle may be suspended or cancelled see, for example, section 31 of the Road Safety Act 1986 and Division 8 of Part 2 of the Road Safety (Vehicles) Regulations 1999.

PART 7—MISCELLANEOUS AMENDMENTS TO ROAD SAFETY ACT 1986

Clause 39 inserts new definitions into section 3(1) of the Road Safety Act 1986, and repeals obsolete definitions.

67 Paragraph (a) inserts a number of definitions relevant to new section 72(1A) of the Road Safety Act 1986 inserted by clause 46, which creates an offence of forging any vehicle identifier, engine identification number, identification plate, manufacturer's build plate or any other plate, label or mark that uniquely identifies a vehicle and sets it apart from similar vehicles.

The definition of "vehicle identifier" replaces that in section 16B(1) of the Road Safety Act 1986, which is repealed by clause 41. The new definition of "vehicle identifier" reflects the fact that vehicle identification numbers and chassis numbers, not compliance plates, are the primary means of identifying vehicles.

Paragraph (b) repeals the definitions of "corresponding law" and "tailgating infringement" in section 3(1) of the Road Safety Act 1986. The definition of "corresponding law" is being replaced with a new definition to be inserted by clause 43. The term "tailgating infringement" is not used in the Road Safety Act 1986, and therefore it is not necessary for it to be defined.

Clause 40 substitutes for section 13(1) and (2) of the Road Safety Act 1986 new sub-sections setting out powers to inspect motor vehicles and trailers. These provisions continue the existing powers for an authorised officer or member of the police force to inspect a motor vehicle or trailer which is being used on a highway, and to require the production for inspection of a motor vehicle or trailer which has been or will be used on a highway, where they believe on reasonable grounds that it does not comply with the Road Safety Act 1986 or regulations made under that Act (sections 13(1)(b) and 13(2)(b) respectively). They also provide that an authorised officer or member of the police force may inspect a motor vehicle which is being used on a highway, and may require the production for inspection of a motor vehicle which has been or will be used on a highway, where they believe on reasonable grounds that the driver is not complying with the Road Safety Act 1986 or regulations made under that Act in driving a motor vehicle of that kind (sections 13(1)(a) and 13(2)(a) respectively). It is intended that the new powers conferred by sections 13(1)(a) and 13(2)(a) will be used, for example, when police believe on reasonable grounds that a probationary driver is driving a high powered vehicle contrary to regulation 211 of the Road Safety (Drivers) Regulations 1999.

Clause 41 repeals the definition of "vehicle identifier" contained in section 16B(1) of the Road Safety Act 1986. The definition of "vehicle identifier" is now included in section 3(1) of the Act by virtue of the amendment made to that sub-section by

68 clause 39. The reason why the definition is being moved from section 16B(1) to section 3(1) is that the definitions in section 16B(1) only relate to Division 3 of Part 2 of the Act which deals with the administration of the written-off vehicle scheme, whereas the definitions in section 3(1) relate to the Road Safety Act 1986 as a whole. It is necessary for the definition to relate to the Act as a whole because the term "vehicle identifier" will also be used in section 72(1A) inserted by clause 46.

Clause 42 amends section 18 of the Road Safety Act 1986 which creates the offence of driving without a licence. The purpose of the amendments is to ensure that people who commit this offence in circumstances where they may or would have been subject to an alcohol interlock condition had they obtained a licence restoration order are subject to the same penalty as for driving in breach of an interlock condition. Currently the penalty for unlicensed driving is less than that for driving in breach of an interlock condition, and the court does not have the option of ordering vehicle immobilisation for unlicensed driving as it does for breach of an interlock condition. These amendments are intended to remove any incentive for a person who is aware of the difference in penalty levels and outcomes as between unlicensed driving and driving in breach of an interlock condition not to apply for a licence restoration order on the basis that his or her new licence may be subject to an interlock condition.

Clause 43 inserts a new section 47A into Part 5 of the Road Safety Act 1986. Part 5 deals with drink driving and drug driving.

This clause inserts a definition of "corresponding law" to apply to Part 5, replacing the definition removed from section 3(1) by clause 39.

Section 48(2) of the Road Safety Act 1986 provides that an offence against section 49(1) of that Act (that is, for drink-driving or drug-driving) is to be treated as a subsequent offence for sentencing and licence-loss purposes if, among other things, the person concerned has formerly been convicted of an offence under a "corresponding law" of another Australian jurisdiction. Whether a person has been found guilty of an offence under a corresponding law is also relevant for the purposes of section 50(1AB) in determining whether that person must be disqualified from driving. "corresponding law" is presently defined by s 3(1) to mean "a law of another State or a Territory of the Commonwealth which the Minister by Order published in the Government Gazette

69 declares to be a law that creates an offence substantially similar to any one of the offences created by section 49(1)". On its face, the definition of "corresponding law" in section 3(1) applies throughout the Act although, prior to 2004, the term was used only in Part 5, which contains the drink driving and drug driving provisions. Part 11 was inserted into the Act by section 41 of the Transport Legislation (Amendment) Act 2004 to implement nationally agreed heavy vehicle legislation. This new Part also contains a definition of "corresponding law" relating to heavy vehicle related offences in other jurisdictions (see section 213). To avoid confusion between the two definitions, the definition of "corresponding law" in section 3(1) is being repealed and a new definition is inserted into Part 5 by clause 42 to apply to that Part only. The new definition of "corresponding law" refers more generally to offences declared by a gazetted Ministerial Order "to be a law creating a corresponding offence of another jurisdiction for the purposes of Part 5". The reason for this is that the current definition arguably requires that the offence created by the corresponding law precisely match an offence created by one of the specific provisions of section 49. Given the differences in the way that offences are structured in other jurisdictions, it is not necessarily the case that there will be a precise match with the specific offences created by section 49(1).

Clause 44 incorporates a number of amendments to sections 57 and 58 of the Road Safety Act 1986 consequential on the offence created by section 319 of the Crimes Act 1958 of dangerous driving causing death or serious injury. Sections 57 and 58 allow the use of samples taken during drink driving and drug driving testing procedures to be used in evidence in proceedings brought in relation to certain offences. The offence of dangerous driving causing death or serious injury was inserted into the Crimes Act 1958 by the Crimes (Dangerous Driving) Act 2004. These amendments therefore enable samples taken from a person under the Road Safety Act 1986 to be used in proceedings for this offence.

70 Sub-clause (1) amends section 57(2)(b) of the Road Safety Act 1986 to enable the use of the results of blood tests in proceedings for this offence. Sub-clause (2) amends the definition of "prescribed legal proceeding" in provisions relating to the use of results of urine tests in section 57A(1) to include proceedings for this offence. Sub-clause (3) amends section 57B(2)(c) to enable the use of results of oral fluid tests in proceedings for this offence. Sub-clause (4) amends section 58(1)(b) to enable the use of results of breath tests in proceedings for this offence.

Clause 45 substitutes for section 68A(9) of the Road Safety Act 1986 a new sub-section (9) which adopts for the purpose of the offence of unauthorised use of a freeway the definitions of "freeway", "pathway" and "road reserve" in the Road Management Act 2004. The terms "freeway" and "road reserve" are presently used in section 68A without being defined in the Road Safety Act 1986.

Clause 46 inserts a new sub-section (1A) in section 72 of the Road Safety Act 1986. New section 72(1A) makes it an offence under for a person to forge, fraudulently alter or use, or fraudulently lend or allow to be used by another person any vehicle identifier, engine identification number, identification plate, manufacturer's build plate or any other plate, label or mark that uniquely identifies a vehicle and sets it apart from similar vehicles. This is in addition to the offence which already exists in section 72(1) of forging, fraudulently altering or using, or fraudulently lending or allowing to be used by another person a document or other identifying number or mark that is authorised or required by the Act. These offences are intended to deter fraudulent misrepresentation of the identity of a stolen motor vehicle through the use of materials relating to other vehicles, commonly known as "vehicle re-birthing". The terms "vehicle identifier", "engine identification number", "identification plate" and "manufacturer's build plate" used in new section 72(1A) are defined in clause 39. The maximum penalty for the new offence created by section 72(1A) is 60 penalty units or imprisonment for 6 months.

Clause 47 amends section 87(4) of the Road Safety Act 1986 so as to convert the maximum fine that may be fixed by a municipal council for a parking infringement from $50 to 05 penalty units.

71 Section 87(3) of the Road Safety Act 1986 provides that the penalty for a parking infringement is the amount prescribed by regulations unless the infringement took place in an area which is subject to an agreement between a landowner and a municipal council ("a council controlled area") or a higher amount than that imposed by the regulations has been fixed by the relevant council under section 87(4). The fines for parking infringements fixed by the regulations and for parking in a council controlled area under section 87(3A) are set by reference to penalty units, which means that they are subject to the annual indexation provided for in the Monetary Units Act 2004. However, section 87(4) provides that the amount fixed by resolution of the council must be no more than $50. Because a dollar figure is specified, this amount is not able to be indexed in the same way. There is no reason in principle why the penalty for a parking infringement set under the Road Safety Act 1986 or regulations made under that Act should be treated any differently than the penalty for the same offence established by resolution of a municipal council.

Clause 48 amends section 99B of the Road Safety Act 1986 to make clear that only a coordinating road authority may issue a permit to conduct an activity on a road which will significantly interfere with its normal use (such as a street market). Presently, the section allows a responsible road authority to issue such a permit. The difference between coordinating road authorities and responsible road authorities is that the former have responsibility for overall coordination of the roads they administer, whereas the latter only have operational responsibility for the construction, inspection, maintenance and repair of the road infrastructure assigned to them (refer sections 36 and 37 of the Road Management Act 2004). The coordinating road authorities in respect of different kinds of roads are as follows—

 VicRoads for freeways and arterial roads;  the relevant State agency (as determined under section 37 of the Road Management Act 2004) for other State roads; and  municipal councils for municipal roads.

Clause 49 incorporates a reference to section 89C into the heading of Schedule 1 to the Road Safety Act 1986. Schedule 1 sets out the minimum disqualification periods for a drink driving offence which must be imposed by a court under section 50 of the Act, and which are imposed under section 89C of the Act as the result

72 of a drink driving infringement notice. The heading does not reflect the fact that disqualification as the result of a drink driving offence can occur under section 50 or section 89C, as it only refers to section 50.

Clause 50 inserts the transitional provisions for the Road Legislation (Projects and Road Safety) Bill into the Road Safety Act 1986. Under sub-clauses (1) to (6), provisions in the Bill imposing a penalty or obligation only apply to offences or infringements alleged to have been committed wholly after those provisions commenced operation. Under sub-clauses (7) and (8), provisions in the Bill conferring a benefit apply to offences alleged to have been committed before, on or after those provisions commenced operation.

PART 8—AMENDMENTS TO ROAD MANAGEMENT ACT 2004 The amendments to be made by Part 8 to the Road Management Act 2004 will come into operation on the day after the Bill receives the Royal Assent.

Clause 51 amends definitions in section 3(1) of the Road Management Act 2004. Paragraph (a) amends the definition of "road infrastructure" to exclude bridges or culverts over irrigation channels and sewers. As a result, these structures will fall within the definition of "non road infrastructure" under that Act, and will become the responsibility of the relevant water authority. However, this will not alter the responsibilities of a road authority in relation to the road which passes over the structure. This will restore the allocation of responsibility that applied in relation to these structures before the Road Management Act 2004 came into operation. Note that, under the amendments proposed by clause 54, an arrangement that alters the "default" allocation as between a road authority and a utility may be made by the mutual consent of those bodies. Thus, a road authority could take responsibility for the non road infrastructure of the utility, or the utility could take responsibility for the road infrastructure of the road authority. Such an arrangement could apply to bridges or culverts affected by the amendments made by clause 51.

Clause 52 amends section 5(2) of the Road Management Act 2004. This will require section 3E of the Local Government Act 1989, which deals with the functions of municipal councils, to be read and applied as if that section formed part of the Road

73 Management Act 2004 in relation to its road management functions. A reference to Schedule 1 of the Local Government Act 1989 is repealed as that Schedule has been repealed. Sub-clause (2) corrects a cross-reference in section 5(10)(b) of the Road Management Act 2004.

Clause 53 substitutes paragraph (c) of section 14(1) of the Road Management Act 2004. The effect is to enable VicRoads to amend a declaration under that section fixing the classification of a road, in addition to the existing power to revoke such a declaration.

Clause 54 amends section 15 of the Road Management Act 2004, which deals with arrangements transferring road management functions between infrastructure managers. At present, an arrangement may be made to transfer functions as between road authorities. The amendments will also enable transfer arrangements to be made as between road authorities and utilities so that a road authority could take responsibility for the non road infrastructure of the utility, or the utility could take responsibility for the road infrastructure of the road authority.

Clause 55 amends section 19 of the Road Management Act 2004, which deals with the keeping of a Register of Public Roads by each road authority. Section 17 of that Act establishes which roads are "public roads" for the purposes of the Act and which the road authority is required to manage in accordance with the Act. In general terms, "public roads" encompasses freeways and arterial roads (administered by VicRoads) and other roads where the relevant road authority has made a decision that the road is reasonably required for general public use and has, in consequence, decided to place the road on its Register. Conversely, a road authority must remove a road from its Register if it decides it is no longer reasonably required for general public use. The amendments to be made by clause 55 to section 19 insert a cross-reference to section 17, and clarify that the duty to keep a Register of Public Roads does not require any particular road to be listed on it except as required section 17. This is significant because a road authority does not have a statutory duty or common law duty to perform road management functions in relation to a road which is not a "public road".

Clause 56 corrects cross-references in section 116(4) of the Road Management Act 2004. This deals with the obligation of a road

74 authority, in certain circumstances, to provide a copy of a condition report on a road to the person who reported a defect.

Clause 57 amends section 127 of the Road Management Act 2004 to clarify that the compensation rights provided for in that section accrue when a decision is made under clause 2 of Schedule 2 relating to access from particular land to a controlled road, but not when a general policy decision is made under that Schedule.

Clause 58 substitutes clause 5(1) of Schedule 2 to the Road Management Act 2004 to simplify the publication requirements in relation to a decision to declare, or to revoke or amend the declaration of, a road as a controlled access road.

PART 9—LAND COMPENSATION AMENDMENTS

Clause 59 inserts new section 43(1A) into Part 4 of the Land Acquisition and Compensation Act 1986. This new provision sets out the circumstances when, in assessing compensation for compulsorily acquired land, regard may be had to the actual zoning of land in which the acquired interest subsists. The circumstances are where the land is reserved for a public purpose under a planning instrument and the reservation forms a zoning boundary in the planning instrument and the decision to impose the zoning boundary was not related to the purpose for which the land was acquired. The amendment is introduced so that compensation will be paid for the effect of zoning changes only where the zoning change can be shown to be related to the purpose for which the land is acquired.

Sub-clause (2) inserts a new section 43(6) in the same Part of the Act which ensures that a person that was entitled to compensation from a compulsory acquisition process prior to the commencement of new section 43(1A) will be dealt with under the old compensation provisions. In effect it only gives prospective operation to new section 43(1A).

Clause 60 inserts a new section 104A into Part 5 of the Planning and Environment Act 1987. New section 104A(1) mirrors the amendment effected by clause 59 and maintains a consistent test in assessing compensation between the Land Acquisition and Compensation Act 1986 and the Planning and Environment Act 1987.

75 New section 104A(2) provides that the operation of the section is prospective, again maintaining consistency between the Land Acquisition and Compensation Act 1986 and the Planning and Environment Act 1987.

PART 10—AMENDMENTS TO THE ALPINE RESORTS (MANAGEMENT) ACT 1997

Clause 61 inserts new Part 5A into the Alpine Resorts (Management) Act 1997. Part 5A inserts new sections 57A to 57E. New section 57A defines for the purposes of the Part the terms “designated area” and “road project area”. Designated area is defined to be the hatched land on the plan in the Schedule to the Bill. Road project area is defined by reference to the proposed section 57B(3).

New section 57B sets out the process for determining the road project area. The process begins with recommendation of the Minister to the Governor in Council that the land in a further plan be determined to be the road project area. That plan must be a plan of land within the designated area and must be signed by the Surveyor–General. Before making the recommendation, the Minister must be satisfied that the land shown on the plan represents the land that is to be the road project area. Once the Minister’s recommendation is received, the Governor in Council may declare the land to be the road project area and on publication of the order in the Government Gazette, the land becomes the road project area.

New section 57C empowers VicRoads to enter into an agreement with the Mt Hotham Alpine Resort Management Board regarding the management, use of or access to any personal property of VicRoads that is on land in the road project area. That agreement must be a written agreement, for a term no longer than 99 years and may allow the Mt Hotham Alpine Resort Management Board to assign any rights or obligations under the agreement. The agreement may also permit the further assignment of assigned rights or obligations, provided the Mt Hotham Alpine Resort Management Board agrees to that further assignment. The power to enter into agreements is stated to be additional to any other powers VicRoads has and that this power cannot be regarded as limiting any other powers of VicRoads. New section 57D empowers the Mt Hotham Alpine Resort Management Board to assign any rights and obligations under an agreement with VicRoads under section 57C provided such assignment is allowed for in the agreement. The agreement to

76 assign the rights must be a written agreement, for no longer than 99 years and may allow the assignee to further assign any of the rights or obligations. The power under this provision is expressed to be additional to any other powers the Mt Hotham Alpine Resort Management Board already has and this power cannot be regarded as limiting any of those powers. New section 57E requires the consent of the Mt Hotham Alpine Resort Management Board before an agreement can be entered into assigning any rights conferred or obligations imposed under new section 57D.

Clause 62 inserts, after Part 6 of the Alpine Resorts (Management) Act 1997 a new Schedule which contains a plan showing the designated area.

PART 11—M1 REDEVELOPMENT PROJECT

Overview The main purpose of Part 11 is to facilitate the widening and redevelopment of the M1 Freeway from Doveton to Yarraville, including parts of the Monash Freeway, the Melbourne City Link toll road and the West Gate Bridge and Freeway which form part of the M1. In particular, the Bill will—  create a Redevelopment Project area, as shown on a series of plans certified by the Surveyor-General;  facilitate planning approvals for Project related purposes in the Redevelopment Project area;  authorise land acquisitions for Project related purposes in the Redevelopment Project area by an expedited process;  ensure that the necessary contractual arrangements for the redevelopment of the City Link section can be concluded;  confer on the operators of the Melbourne City Link the necessary powers to construct and operate the upgraded road on terms corresponding as nearly as practicable to the construction of the original Project. To these ends, Part 11 of the Bill will—  insert a new Schedule 5A into the Road Management Act 2004, dealing with planning and land acquisition matters related to the M1 Redevelopment Project generally;

77  insert provisions into the Melbourne City Link Act 1995 relating to the concession for the construction and operation of the Melbourne City Link roads, and provisions authorising the road's operators to construct and operate the upgraded sections. Commencement arrangements The amendments to be made by Part 11 will come into operation on the day following Royal Assent—see clause 2(1).

Division 1—Amendment to the Road Management Act 2004 This Division makes a number of amendments to the Road Management Act 2004 in relation to the M1 Redevelopment Project.

Clause 63 amends section 5(9) of the Road Management Act 2004. That section currently provides that nothing in that Act is intended to affect native title rights. The effect of the amendment is that section 5(9) will provide that nothing in the Act is intended to affect native title rights except in accordance with the Native Title Act 1993 of the Commonwealth. The Commonwealth Act deals, among other things, with the way in which native title rights may be dealt with by State law. Note that clause 65 of the Bill proposes to insert a new Schedule 5A into the Road Management Act 2004, clause 20 of which will set out the process to be followed in relation to native title interests that may be affected by the proposed M1 Redevelopment Project (if any).

Clause 64 inserts a new section 45A into the Road Management Act 2004, which provides that the proposed Schedule 5A will have effect in relation to the proposed M1 Redevelopment Project.

Clause 65 inserts a new Schedule 5A into the Road Management Clause Act 2004, which deals with the proposed M1 Redevelopment Project. SCHEDULE 5A Part 1—Introductory This Part includes clause 1. New clause 1 sets out definitions in relation to the proposed M1 Redevelopment Project. Key definitions include— "Link Upgrade area" is defined in clause 6 of the new Schedule. Basically, it comprises that part of the "Redevelopment Project area" (see below) that is part of, or which is immediately adjacent to, the existing City Link section of

78 the M1. The Link Upgrade area is shown in blue on the plans of the Redevelopment Project area; "Link Upgrade Project" meaning the part of the M1 Redevelopment Project relating to the upgrade of the City Link section of the M1; "M1 Redevelopment Project" means the project to redevelop and upgrade the M1 freeway from Doveton to Yarraville, including sections of the Monash and West Gate Freeways administered by VicRoads and by CityLink Melbourne Ltd; "redevelopment acquisition" refers to an acquisition, or proposed acquisition, by VicRoads of land within the Redevelopment Project area for the purposes of the M1 Redevelopment Project. See the notes on clause 10 below in relation to the proposed new Schedule 5A. "Redevelopment Project area" is defined more fully in clause 3 of the Schedule. The area is defined by a series of plans numbered LEGL./06-356 to LEGL./06-414, which have been registered and lodged in the Central Plan Office of the Department of Sustainability and Environment where they are available for public inspection. Copies of the plans will be available in the Parliamentary Library during the debate on this Bill. Basically, the Redevelopment Project area comprises the freeway standard roads forming part of the M1 route between Doveton and Yarraville, including—  the Monash Freeway from Princes Highway, Doveton to the Domain Tunnel portal, and  the West Gate Freeway from the Domain and Burnley Tunnel portals to near McIvor Reserve in Yarraville— including the West Gate Bridge but excluding the Domain and Burnley Tunnels. The Redevelopment Project area is divided into the "Link Upgrade area" and the VicRoads area. "VicRoads area" means that part of the "Redevelopment Project area" (see above) which is not part of the "Link Upgrade area". The VicRoads area is shown in pink on the plans of the Redevelopment Project area. Part 2—M1 Redevelopment Project and Redevelopment Project area

79 This Part includes clauses 2 to 6. New clause 2 defines the M1 Redevelopment Project for the widening of the M1 corridor from Doveton to Yarraville. The M1 corridor is the principal East-West arterial route across the Melbourne metropolitan area. It is a major route for the movement of people and goods across the State. The Project is designed to improve the capacity of the road and improve traffic management systems to relieve congestion, reduce travel times and improve safety. New clause 3 defines the Redevelopment Project area for the purposes of the new Schedule 5A. The Redevelopment Project area is shown in pink and blue on the plans numbered LEGL./06-358 to LEGL./06-414 and lodged in the Central Plan Office of the Department of Sustainability and Environment. Although the Redevelopment Project area is shown on several plans, the plans are to be read as if they comprised one single plan. The Redevelopment Project is divided into the VicRoads area (being the area shown pink on the plans) and the Link Upgrade area (being the area shown blue on the plans). When amended, new consolidated plans can be adopted in place of the existing plans. New clause 4 enables changes to be made to the Redevelopment Project area. The Governor in Council may vary the Redevelopment Project area by Order published in the Government Gazette. An Order may—  increase the Redevelopment Project area by adding land in the vicinity;  decrease the Redevelopment Project area;  remove land from the VicRoads area and add it to the Link Upgrade area; or  remove land from the Link Upgrade area and add it to the VicRoads area. Where land is added to the Redevelopment Project area, the Order may specify that it is to form part of the Link Upgrade area —see proposed sub-clause (7). To the extent that any additional area is not specified to be part of the Link Upgrade area, then it becomes part of the VicRoads area by default—see the definition of "VicRoads area" in clause 1. Sub-clause (2) provides for the commencement of an amending Order on the day of gazettal or on a later day as specified.

80 Sub-clause (3) provides that an Order must be made on the joint recommendation of the Minister administering the Planning and Environment Act 1987, the Minister administering the Road Management Act 2004 and the Minister administering the Melbourne City Link Act 1995. Before the Ministers may recommend the making of such an Order, they must first have received appropriate plans of the affected areas signed by the Surveyor-General and lodged at the Central Plan Office of the Department of Sustainability and Environment. Orders varying the Redevelopment Project area must be tabled in each House of Parliament, and are subject to disallowance by either House in the same way as regulations. New clause 5 enables the Governor in Council, by Order, to approve consolidated plans of the Redevelopment Project area incorporating all variations to that time. Such consolidations simplify access to information about the current scope of the Redevelopment Project area which may otherwise be contained in a number of plans of variations. The process for making such orders is similar to that for variation Orders although, because a consolidation does not actually alter the Redevelopment Project area, there is no disallowance procedure and the relevant Order may be made on the recommendation of the Minister administering the Road Management Act 2004. New clause 6 defines the Link Upgrade area. This is the area shown blue on the plans numbered LEGL./06-369 to LEGL./06-377.

Part 3—Planning Controls in the Redevelopment Project Area This Part includes clauses 7 to 9. New clause 7 deals with the amendment of planning schemes. New clause 8 deems VicRoads to be a "referral authority" in respect of each planning scheme which applies to the Redevelopment Project area. The effect is that permit applications in relation to land within the Redevelopment Project area must be referred to VicRoads. New clause 9 deems Part 5 of the Planning and Environment Act 1987 to apply to the Redevelopment Project area as if land in that area had been reserved under a planning scheme for a public

81 purpose, namely the M1 Redevelopment Project. This puts owners of land within the Redevelopment Project area on the same footing in relation to planning compensation as the owners of land within other planning reservations. The effect is that VicRoads may be liable to pay compensation under Part 5 in respect of land within the Redevelopment Project area if certain circumstances arise. Generally speaking, compensation may become payable if a landowner incurs a loss because a planning permit is refused, or if the sale price for land is reduced, owing to the deemed planning reservation of the Redevelopment Project area. Part 4—Acquisition of Redevelopment Project Land This Part includes clauses 10 to 25. Division 1—Acquisition of Land Redevelopment Project Area This Division of Part 4 deals with acquisition of land by VicRoads for the M1 Redevelopment Project within the Redevelopment Project area. New clause 10 provides that Division 1 of the new Schedule will apply to acquisitions of land by VicRoads of land within the Redevelopment Project area, other than in respect of acquisitions of native title interests. New clause 11 modifies the application of the Land Acquisition and Compensation Act 1986 to acquisitions of land within the Redevelopment Project area. Such acquisitions are referred to throughout the proposed new Schedule 5A as "redevelopment acquisitions".

Sub-clause (1) excludes the operation of section 3(3) of the Land Acquisition and Compensation Act 1986, which provides that that Act prevails over other legislation. This is necessary so that the modifications made by this Bill are effective. Sub-clause (2) deems land within the Redevelopment Project area to have been reserved under a planning instrument for the purposes of section 5 of the Land Acquisition and Compensation Act 1986. This is necessary because, under section 5, reservation under a planning scheme must occur before an authority may proceed to acquire land. Sub-clause (3) substitutes section 8(1)(e) of the Land Acquisition and Compensation Act 1986 for the purposes of these acquisitions. Section 8(1) specifies information that an acquiring authority must include in a notice of intention to

82 acquire served on a landholder. The effect of the amendment is that, in relation to acquisitions by VicRoads of land in the Redevelopment Project area, the notice must include information about the special deemed planning status of the land under this legislation, instead of the usual planning information. Sub-clause (4) deems that a new sub-section (1)(ba) is inserted into section 43 of the Land Acquisition and Compensation Act 1986 for the purposes of dealing with land acquisitions in the Redevelopment Project area. Section 43(1) deals with the matters that have to be excluded when assessing the value of acquired land for compensation purposes. The effect of the provision is to exclude from the calculation any special value the land may have for the purposes of the Project itself. This is consistent with usual compensation principles, and is designed to ensure that the calculation of compensation reflects the value of the land on the general market by excluding the fact that it is specially needed for the Redevelopment Project. Sub-clause (5) provides that section 109 of the Land Acquisition and Compensation Act 1986 does not apply to acquisitions for the purposes of the Redevelopment Project area. Section 109 limits the power of an acquiring authority to dispose of land that has been compulsorily acquired. It is necessary to exclude this provision because the commercial agreements relating to the Melbourne City Link Project (as amended for the M1 Redevelopment Project) impose specific obligations on the State in relation to the use of land, such as its licensing for construction purposes and the issuing of operating leases over the completed roads in due course. The exclusion of section 109 ensures that, in managing the acquired land, VicRoads may act in accordance with these obligations of the State. New clause 12 provides that the regulations under the Land Acquisition and Compensation Act 1986 are to apply in relation to acquisitions by VicRoads of land in the Redevelopment Project area with the modifications necessary to reflect the changes made to the acquisition and compensation process by Division 1 of Part 4 of the proposed new Schedule 5A to the Road Management Act 2004. New clause 13 provides that section 3 of the Cultural and Recreational Lands Act 1963 does not apply to a "redevelopment acquisition", that is, to an acquisition of land within the Redevelopment Project area by VicRoads for the purposes of the M1 Redevelopment Project. Section 3 of the Cultural and Recreational Lands Act 1963 would otherwise prevent the compulsory acquisition of "recreational land" (as defined in that Act) for Project purposes.

83 Subdivision 2 (clauses 14 to 19) enables VicRoads to follow a special acquisition process in relation to acquisitions in the Redevelopment Project area for the purposes of the M1 Redevelopment Project. The purpose of the special process is to enable land to be acquired more quickly than would normally be possible under the Land Acquisition and Compensation Act 1986. Under section 6 of the Land Acquisition and Compensation Act 1986, an acquiring authority is required to serve notice of intention to acquire on each person who has an interest in land that is being acquired when the existence of that interest comes to the notice of the authority. This can cause a delay in the acquisition process if unregistered interests in land come to the notice of the acquiring authority after the original notices of intention to acquire have been served. Under the special procedure, VicRoads can publish in the Government Gazette a "global" notice of intention to acquire all interests in specified land (in addition to serving the usual notices on the persons whose interests would be revealed by the usual title searches), and then proceed to acquire the land without the need to serve further notices on individuals whose interests only come to VicRoads' attention at a later time. The reason for this is that the State must (under the agreements relating to the redevelopment) comply with stringent contractual obligations to acquire and provide the necessary land by specified dates to enable Project construction to proceed in accordance with the contract's specifications.

The persons whose interests should be discovered by the normal title searches will still be served with a notice of intention to acquire in the usual way. However, the special procedure will enable Project acquisitions to proceed without the need for deferrals if unregistered interests in land come to light after the acquisition processes have commenced. This will not reduce compensation rights in relation to such interests, but it will ensure that Project delivery is not delayed by having to comply with the acquisition notice procedure afresh each time a new unregistered interest in land comes to the notice of VicRoads as the acquiring authority. New clause 14 enables VicRoads to publish a notice in the Government Gazette stating that it will be using the special acquisition procedures set out in clauses 14 to 19 of the new Schedule 5A in relation to a specified part of the Redevelopment Project area for the purposes of the M1 Redevelopment Project.

84 New clause 15 deals with the manner of service of a notice of intention to acquire where VicRoads has elected to adopt the special acquisition procedure. VicRoads may publish a notice of intention to acquire in the Government Gazette. This contrasts with the usual procedure under the Land Acquisition and Compensation Act 1986 where any person who has an interest in land must be given 3 months' notice. In addition, VicRoads must actually serve a notice of intention to acquire on the classes of persons described in clause 15(2). Basically, these are the persons whose interests in land could be ascertained by the usual searches of land title, Crown land and municipal records, as well as persons in actual occupation of the land. New clause 16 provides that, where VicRoads has made an election under clause 14 to adopt the special procedure, certain further modifications to the Land Acquisition and Compensation Act 1986 will apply. New clause 17 modifies the application of Part 2 of the Land Acquisition and Compensation Act 1986 to cases where VicRoads has elected to use the special acquisition procedure. In particular, clause 17 provides that Part 2 will apply as if modified as follows—  paragraph (a) requires references to "notices of intention to acquire" in Part 2 of the Land Acquisition and Compensation Act 1986 to be read as if they were references to the notices to be served in accordance with clause 15 of Schedule 5A (see above);

 paragraph (b) requires Part 2 to apply as if sections 6, 7 and 13 of the Land Acquisition and Compensation Act 1986 were omitted—those provisions deal with the service of notices of acquisition and the consequences of failing to serve the notices;

 paragraph (c) modifies section 12 of the Land Acquisition and Compensation Act 1986, which restricts dealings in land following service of a notice of acquisition, so that that section applies to land in respect of which the special acquisition procedure has been invoked;

 paragraph (d) substitutes section 14(1) of the Land Acquisition and Compensation Act 1986, which deals

85 with correction of notices of intention to acquire post- service. The modification enables corrections of notices to be published and served by similar processes as apply to the original notices of intention to acquire under the special acquisition procedure;

 paragraph (e) substitutes section 15(2) of the Land Acquisition and Compensation Act 1986, which deals with cancellation of notices of intention to acquire. The modification enables cancellation of notices to be published and served by similar processes as apply to the original notices of intention to acquire under the special acquisition procedure;  paragraph (f) substitutes section 24 of the Land Acquisition and Compensation Act 1986, which deals with the effect of the publication of a notice of intention to acquire. Under the substituted section 24, land acquired pursuant to the special acquisition procedure vests in fee simple in VicRoads upon gazettal of the notice of acquisition. New clause 18 modifies the application of section 104 of the Land Acquisition and Compensation Act 1986 in cases where VicRoads has elected to use the special acquisition procedure. Section 104 deals with the service of notices under that Act, such as notices of intention to acquire and the correction or cancellation of such notices. The proposed modifications will enable notices normally required to be served by post to be served by leaving them at the person's address with a person apparently over the age of 16. The modifications to be made by clause 18 will also enable notices that have to be served on occupiers to be served by leaving the notice (or other document) at the relevant address and addressed to "The Occupier". For example, this process would apply to a notice to be served on an occupier in accordance with clause 15(2)(c) of the new Schedule 5A. New clause 19 provides that the regulations under the Land Acquisition and Compensation Act 1986 (and the forms prescribed by those regulations) are to apply—in respect of acquisitions by VicRoads in accordance with the special acquisition procedure under Subdivision 2 of Division 1 of Part 4 of the proposed new Schedule 5A—subject to the modifications that are necessary to reflect the changes made to the acquisition process by that Subdivision.

86 Division 2—Acquisition of Native Title Rights and Interests This Division of Part 4 deals with the acquisition of native title rights and interests in respect of land for the purposes of the M1 Redevelopment Project. New clause 20 enables VicRoads to acquire native title rights and interests for the purposes of the M1 Redevelopment Project. Sub-clause (2) provides for the application of the Land Acquisition and Compensation Act 1986 to such acquisitions, subject to the modifications made by Division 2 of Part 4 of the new Schedule 5A. New clause 21 sets out the procedures to be followed by VicRoads in respect of an acquisition of native title rights or interests. Sub-clause (1) provides that VicRoads is authorised to comply with any relevant procedure under the Native Title Act 1993 of the Commonwealth. Sub-clauses (2) to (6) set out the procedures to be followed for the purposes of section 24MD6B of the Native Title Act. New clause 22 provides for the referral of objections (under section 24MD6B) of the Native Title Act) to a proposed compulsory acquisition of native title rights and interests to the Victorian Civil and Administrative Tribunal. New clause 23 sets out the kind of determinations the Tribunal may make in respect of an objections referred to it under clause 22. New clause 24 provides for compensation payable to a person in respect of native title rights and interests under this Division of Part 4 of new Schedule 5A to be on just terms. New clause 25 provides that the Cultural and Recreational Lands Act 1963 does not apply to the compulsory acquisition of a right or interest under this Division of new Schedule 5A. Part 5—Provision of Public Land and Council Land This Part includes clauses 26 to 35. Division 1—Surrender of Divesting of Public Land and Council Land This Division of Part 5 deals with the surrender or divesting of public land and council land. New clause 26 enables the Governor in Council, by an Order published in the Government Gazette, to require a public authority or council to surrender land to the Crown or to divest such land.

87 This provision may be used even though the land is vested in the authority or council under the Road Management Act 2004 or another Act, but not to land that is reserved under the Crown Land (Reserves) Act 1978. Such Orders are to be made on the recommendation of the Minister administering the Road Management Act 2004 and the Minister administering the Act under which the authority or council is established. Note that, under sub-clause (3), this mechanism may be used in relation to acquisition of land from VicRoads even though it had formerly been acquired by VicRoads under this provision. This may be necessary so that such land may be reserved for the purposes of the Link Upgrade Project—see the notes below relating to new clause 28(5). New clause 27 enables the Governor in Council, by Order, to divest a public authority or council of interests it holds in relation to unreserved Crown land, but not in relation to land that is reserved under the Crown Land (Reserves) Act 1978. New clause 28 sets out the effect of a surrender or divestiture under clauses 26 or 27. Upon the Order taking effect, then all interests in the land are extinguished and the land becomes Crown land free from all encumbrances. This includes the rights of the public in relation to a public highway, unless the Order expressly states otherwise. It also extinguishes public and private rights and interests that may exist in relation to the beds and banks of rivers under other laws, again unless expressly stated otherwise.

An Order under clause 28 may deem the land to be reserved for the purposes of the Link Upgrade Project, which is dealt with under the amendments to the Melbourne City Link Act 1995 proposed by the Bill. If the land is not so reserved, then it will become vested in VicRoads in fee simple. The reason for these two options is that the land which is to be used for the Link Upgrade Project will be reserved Crown land managed by CityLink Melbourne Ltd under licence, whereas the land that is to be used for the construction of the remainder of the M1 Redevelopment Project will be owned and managed by VicRoads, as usual during new road construction projects. Note that, even if land is initially vested in VicRoads, it may subsequently be reserved for the purposes of the Link Upgrade Project by this process—see the notes relating to new clause 26(3) above.

88 These provisions take effect despite the statutory vesting of riparian land under section 175A of the Water Industry Act 1994. However, land which is held under existing leases under the Melbourne City Link Act 1995 is not subject to this process —see clause 28(7). New clause 29 enables reservations made under new clause 28(5) to be amended, revoked or varied in accordance with the Crown Land (Reserves) Act 1978. Division 2—Removal of Reservations on Land This Division of Part 5 deals with the removal of reservations over land. New clause 30 provides that Division 2 of Part 5 will have effect despite anything in the Crown Land (Reserves) Act 1978 or the Land Act 1958. This is necessary because of provisions in those Acts that apply to relevant Crown land unless expressly provided otherwise—see for example section 12 of the Land Act 1958 and sections 8 and 9 of the Crown Land (Reserves) Act 1978. New clause 31 empowers the Governor in Council, by Order published in the Government Gazette, to revoke a reservation under the Crown Land (Reserves) Act 1978 (whether permanent or temporary) in its entirety, provided that the reservation is entirely within the Redevelopment Project area. Such an Order may be made on the joint recommendation of the Minister administering the Road Management Act 2004 and the Minister administering the Crown Land (Reserves) Act 1978. When a reservation is revoked, any Crown grant or certificate of title pertaining to the land may also be revoked. New clause 32 confers power to revoke Crown land reservations in part only. It is similar to the power provided by clause 31 in relation to revocations of entire reservations. However, where reservations are revoked as to part only, it is necessary to identify with certainty the area that is to be excised. For this reason, the clause requires that, before recommending a partial revocation to the Governor in Council, the Ministers must first have received a plan of the area that has been signed by the Surveyor-General. New clause 33 sets out the effect of a revocation of reservation. Upon publication of the relevant Order in Council in the Government Gazette, all interests in the land are extinguished and the land becomes unalienated land of the Crown. Unless the Order which revoked the reservation states otherwise, any part of the land which was a road ceases to be a road and the statutory and common law rights of the public in respect of the land as a public highway are extinguished. Similarly, any rights

89 in respect of the bed and banks of a river are also extinguished unless the relevant Order states otherwise. An Order under clause 31 or 32 may deem the land to be reserved for the purposes of the Link Upgrade Project, which is dealt with under the amendments to the Melbourne City Link Act 1995 proposed by this Bill . If the land is not so reserved, then it will become vested in VicRoads in fee simple. The reason for these two options is that the land which is to be used for the Link Upgrade Project will be reserved Crown land managed by CityLink Melbourne Ltd under licence, whereas the land that is to be used for the construction of the remainder of the M1 Redevelopment Project will be owned and managed by VicRoads, as usual during new road construction projects. Note that, even if land is initially vested in VicRoads, it may subsequently be reserved for the purposes of the Link Upgrade Project by the process set out in new clause 26(3) above. These provisions take effect despite the statutory vesting of riparian land under section 175A of the Water Industry Act 1994. However, land which is held under existing leases under the Melbourne City Link Act 1995 is not subject to this process —see clause 28(7). New clause 34 enables reservations made under new clause 33(7) to be amended, revoked or varied in accordance with the Crown Land (Reserves) Act 1978.

Division 3—Continuation of Roads This Division of Part 5 deals with the status of roads over land acquired under Division 1 or 2 of Part 5. New clause 35 enables an Order made under Division 1 or 2 of the new Part 5 to declare that, where land is acquired by such an Order and a freeway or arterial road is on that land, that road is to continue to operate as such a road despite the acquisition. This enables road management and road safety laws to continue to apply in relation to that road despite the acquisition. However, the continuation of a road by this means will not have the effect of continuing or reviving any statutory or common law rights of the public in the land as a public highway. Part 6—Entry Into Possession of Certain Redevelopment Project Land This Part includes clauses 36 to 49.

90 New clause 36 sets out definitions for the proposed Part 6. "redevelopment project land" refers to land which, under Part 5 of the new Schedule 5A, has either—  under paragraph (a) of the definition—been reserved for the purposes of the Link Upgrade Project; or

 under paragraph (b) of the definition—become vested in VicRoads (whether in relation to the Upgrade Project or in relation to the VicRoads section of the M1 Redevelopment Project). "relevant date" refers to the date on which the land first became "redevelopment project land". Thus, say a parcel of land—  became "redevelopment project land" under paragraph (a) when it became vested in VicRoads, and  was subsequently divested from VicRoads but continued as "redevelopment project land" because it was reserved for the purposes of the Link Upgrade Project (for example, by operation of new clauses 26(3) and 28(5))— then the "relevant date" would be the date the land first became "redevelopment project land" by virtue of the vesting in VicRoads. The definition of "relevant date" is important to the operation of the new Part 6 because it enables processes begun in relation to "redevelopment project land" to continue despite changes in the land's status from VicRoads land to Link Upgrade land, or vice- versa. For example, see the notes on clauses 39 and 40 below. New clause 37 empowers VicRoads to enter into possession of redevelopment project land. That is, the provision enables VicRoads to take physical possession of land—to which the legal title has been acquired—from the persons who currently occupy it. Subsequent provisions govern how this may be done. New clause 38 requires VicRoads to make diligent endeavours to obtain agreement with the current occupiers about the terms on which possession will be taken. New clause 39 provides that, if at the relevant date, the land is not used as a person's principal residence or business, then VicRoads must give 7 days' notice.

91 Note that, because of the definition of "relevant date" (see above), the process of taking possession may continue even though, after the notice is served, the status of land is changed from VicRoads' freehold to reserved project land, or vice-versa. New clause 40 deals with the process for taking possession of redevelopment project land that is used as a person's principal place of residence or business. In this case, VicRoads cannot take possession until at least 3 months have passed since the land first became "redevelopment project land" and, in addition, after it has given at least 7 days' notice of VicRoads' intention to take possession of the land. The process may be used in respect of all, or only a specified part of, the relevant land. Note that, under the definition of "relevant date" in clause 36, the 3 months' period—  would begin to run from the time the land first becomes "redevelopment project land"; and  would not be affected only because the status of land is subsequently changed from VicRoads' freehold to reserved project land, or vice-versa. Sub-clause (2) provides that the occupier is not to be liable for the payment of rent in respect of the occupation of that part of the project land that is used as the principal place of residence or business of the occupier during the 3 months' period.

Sub-clause (4) deals with the situation where, at the time land becomes redevelopment project land, a person is already in free occupation of that land as a consequence of a compulsory acquisition process under section 26(2) or 26(6) of the Land Acquisition and Compensation Act 1986, or section 20E(2) of the Project Development and Construction Management Act 1994 or an agreement under section 20E(6) of that Act. Those provisions confer rights of continued occupation in respect of land acquired under those provisions which are similar to the rights being conferred by clause 40. In such situations, the new right to continued occupation that is to be conferred under this Part will run for the remainder of the period of entitlement which had already begun under the other legislation, rather than beginning afresh. Further, under sub-clause (5), if the period of entitlement to free occupation conferred by the other compulsory acquisition legislation had already expired, VicRoads may enter into

92 possession of the land immediately so long as it gives the usual 7 days' notice. New clause 41 enables VicRoads' to take possession of land used as a principal place of residence or business more quickly than provided for under clause 40 in certain circumstances. If the Governor in Council certifies that because of urgency or other exceptional circumstances, and that the public interest requires it, then VicRoads may take possession earlier than the 3 months' period of free occupation provided for in clause 40. In these situations, a copy of the certification by the Governor in Council must be served on the person concerned, who will have an additional right to compensation. VicRoads may also take possession earlier with the agreement of the person concerned. New clause 42 enables the period of occupation under clause 41 to be extended by written agreement between VicRoads and the occupier, but the agreement must provide for the payment of rent. New clause 43 provides that, if the person remains in occupation without a written agreement, then the person must be taken to be in occupation pursuant to a tenancy. In this case, the person must pay a fair market rent to VicRoads. The deemed tenancy may be ended by VicRoads at any time. New clause 44 enables VicRoads to sue the occupier for recovery of the rent due as a debt.

New clause 45 sets out the procedure to be followed where the person refuses to give up possession to VicRoads or hinders VicRoads' taking of possession. The procedure is similar to that which applies in similar circumstances under section 28 of the Land Acquisition and Compensation Act 1986 for the taking of possession of land acquired under that Act. In essence, the provision enables VicRoads to issue a warrant authorising the Sheriff to take possession of the land. New clause 46 excludes the operation of the Residential Tenancies Act 1997 in relation to proceedings under this Division. New clause 47 deals with the service of notices or other documents. Notices can be served personally, but if VicRoads does not know the location of a person on whom it must serve a notice, it may do so by publishing a copy in a newspaper with State-wide circulation.

93 New clause 48 provides that a notice will not be invalid because of a minor mistake in relation to the description of the affected land, or the interest in the land, which is the subject of the notice. New clause 49 deals with the situation where land is acquired as VicRoads freehold and then the land is subsequently reserved under the Crown Land (Reserves) Act 1978 under these provisions. This could happen where VicRoads has acquired land for its portion of the M1 Redevelopment Project and it is subsequently determined that the land has to be licensed to the Link corporation under the Melbourne City Link Act 1995 for the purposes of upgrading the Melbourne City Link. Part 7—Compensation for Surrendered or Divested or Reserved Land This Part includes clauses 50 to 52. New Clause 50 creates a right to compensation in relation to interests in land which have been extinguished or acquired by one of the processes set out in the new Schedule 5A. The words "a legal or equitable estate or interest in land" refer to rights recognised under that part of the unwritten law known as "common law" or that part known as "equity". Sub-clause (2) provides that the amount of compensation due is to be determined in accordance with the Land Acquisition and Compensation Act 1986 as if the land had been acquired under that Act, with certain procedural changes reflecting the difference in the acquisition procedure. Sub-clause (3) deems that a new sub-section (1)(ba) is inserted into section 43 of the Land Acquisition and Compensation Act 1986 for the purposes of dealing with land acquisitions in the Redevelopment Project area. Section 43(1) deals with the matters that have to be excluded when assessing the value of acquired land for compensation purposes. The effect of the provision is to exclude from the calculation any special value the land may have for the purposes of the Project itself. This is consistent with usual compensation principles, and is designed to ensure that the calculation of compensation reflects the value of the land on the general market by excluding the fact that it is specially needed for the Redevelopment Project. Sub-clause (4) provides that the compensation rights conferred by clause 50 do not extend to public statutory authorities or councils, other than an estate in fee simple owned by a council. This is because the land is public land which, by virtue of this law, is being reassigned to another use by decision of the Parliament. It would be inappropriate to compensate the agency

94 which had formerly administered the public land on behalf of the State simply because the land had been vested in the agency for administrative convenience. The exception enabling councils to be compensated in respect of its freehold land is designed to deal with the situation where council land, purchased out of ratepayer funds, is acquired by the State for project purposes. New clause 51 provides for a limited right of compensation for councils where the council has suffered a direct pecuniary loss as a result of the acquisition. This recognises that, even though the council is administering State public land, it may have incurred direct losses or costs as a result of the acquisition. For example, the council may have spent money on buildings or other assets on the land that it will have to replace or relocate. However, such compensation is not to take into account the value of the land itself, which is a State public asset. If the land is Council freehold then compensation will be available under clause 50— see above. New clause 52 provides that the only compensation payable in respect of an acquisition is the compensation that is provided for in Part 7 or clause 41 of the new Schedule 5A or in section 127 of the Road Management Act 2004. This means compensation liabilities will be determined in accordance with the compensation regime that normally applies under the Land Acquisition and Compensation Act 1986 in respect of compulsory acquisitions by State agencies. Compensation is available under section 127 of the Road Management Act 2004 if land becomes landlocked by the closure of roads. Part 8—General This Part includes clauses 53 and 54. New clause 53 provides that, where only one stratum of Crown land becomes reserved project land, then existing reservations, etc are continued in relation to the remainder of that land. New clause 54 requires the Registrar of Titles to make all necessary alterations to the Register flowing from changes in land status or ownership under the new Schedule 5A.

Division 2—Amendment of the Melbourne City Link Act 1995 This Division makes a number of amendments to the Melbourne City Link Act 1995 in relation to the M1 Redevelopment Project.

Clause 66 inserts a new definition into section 3 of the Melbourne City Link Act 1995. The definition is of the term "Link Upgrade Project", which will have the same meaning as that phrase will

95 have under the new Schedule 5A to the Road Management Act 2004, which will be inserted by clause 65 of the Bill.

Clause 67 inserts a new sub-section (2) into section 6 of the Melbourne City Link Act 1995. The effect of the new sub-section is to extend references in the Act to "the Project" to include a reference to the Link Upgrade Project. Note that the existing section 6 will be renumbered as section 6(1) by operation of the Interpretation of Legislation Act 1984.

Clause 68 inserts a new sub-section (5A) after section 15(5) of the Melbourne City Link Act 1995. The effect of the new sub- section is to avoid any doubt that the existing mechanisms for amending or varying the Agreement for the Melbourne City Link Project under section 15 may be used for the purposes of agreements or variations in relation to the Link Upgrade Project. The provision has been included to avoid any doubt about whether the Link Upgrade Project is within the scope of "the Project" as described in the Act and the Agreement. The new sub-section (5A) also clarifies that the amending agreement and variation processes are deemed always to have included power to make agreements and variations relating to the proposed upgrade. This is similar to the power conferred by section 14 of the Act in relation to the power to enter into the original Agreement for the Melbourne City Link.

Clause 69 amends section 16(2) of the Melbourne City Link Act 1995. This amendment deals with the scope of section 16(1) of the Act, which provides that, where a provision of the Agreement is inconsistent with a provision of the Act, then the Agreement prevails. Section 16(2), however, creates exceptions to this arrangement. In particular, section 16(2) provides that the "override" of the Act by the Agreement does not apply in respect of certain emergency powers of State Ministers and agencies. New emergency powers are to be conferred on VicRoads under the proposed Division 8 of Part 2B (new sections 56ZE to 56ZG) of the Act, which is to be inserted by clause 72 of the Bill. The proposed powers will enable the State to intervene in Project construction to deal with emergency situations, including the power to order work to be stopped where necessary to deal with the emergency. In broad terms, the proposed powers correspond to the powers that could be exercised by the

96 Independent Reviewer under section 97 of the original legislation. The effect of the amendment proposed by clause 69 is that the new emergency powers will prevail over the Agreement, as with other emergency powers under the Act.

Clause 70 amends section 15B of the Act, which deals with the amendment of the Integration and Facilitation Agreement. That Agreement deals with the coordination and joint operation of the City Link and Exhibition Street Extension concessions. The clause inserts a new sub-section (8A) into section 15B. This is similar in effect to the amendments being made to section 15 in relation to amending the Agreement for the Melbourne City Link Project. The amendment will avoid doubt that the existing section 15B mechanisms may be used to amend or vary the Integration and Facilitation Agreement for the purposes of the Link Upgrade Project.

Clause 71 amends section 15D of the Act, which deals with the amendment of the Extension Agreement. That Agreement deals with the concession for the Exhibition Street Extension. The clause inserts a new sub-section (9A) into section 15D. This is similar in effect to the amendments being made to section 15 and 15B in relation to amending the Agreement for the Melbourne City Link Project and the Integration and Facilitation Agreement respectively. The amendment will avoid doubt that the existing section 15D mechanisms may be used to amend or vary the Extension Agreement for the purposes of the Link Upgrade Project.

Clause 72 inserts a new Part 2B into the Melbourne City Link Act 1995 dealing with the proposed Link Upgrade Project. Set out below are explanatory notes on the provisions of the proposed new Part 2B.

PART 2B—LINK UPGRADE PROJECT

Division 1—Introductory This Division comprises new section 21. New section 21 sets out definitions in relation to the proposed Link Upgrade Project. Key definitions include— "approved Utility agreement" refers to a Utility agreement that is approved by the Roads Corporation (i.e. "VicRoads") under proposed section 52.

97 "construction permit" refers to a construction permit or permits that will be issued under new section 34 to the person or persons entitled under the Melbourne City Link Agreement to the permit. "decision-maker" refers to a person who, under the new Division 7 of Part 2B, has power to make decisions under this legislation in relation to utility works. "Link Upgrade area" will have the same meaning as that term will have in the new Schedule 5A to the Road Management Act 2004. See clause 65 of this Bill, which will insert the new Schedule 5A: clause 6 of that new Schedule will define "Link Upgrade area" by reference to the area coloured blue on the plans numbered LEGL./06-369 to LEGL./06-377 lodged in the Central Plan Office. Copies of these plans will be available in the Parliamentary Library during debate on the Bill. "Link Upgrade construction area" refers to an area in respect of which a construction permit applies. "Link Upgrade licensed land" means land that is the subject of a licence to be issued under Division 3 of the new Part 2B of the Melbourne City Link Act 1995. "M1 Redevelopment Project" will have the same meaning as that term will have in the new Schedule 5A to the Road Management Act 2004. Basically, this is the proposed upgrade of the M1 corridor from Doveton to Yarraville, including the relevant parts of the Monash and West Gate Freeways. The part of the M1 Redevelopment Project relating to City Link is known as the "Link Upgrade Project". The construction work relating to that part will be carried out under the Melbourne City Link Agreement and the new Part 2B of the Act. "notified Utility infrastructure" refers to utility infrastructure (such as pipes, cables, etc) that—  is identified by the "Link corporation" (the term used in the Melbourne City Link Act 1995 to refer to the holder of the City Link concession) as being likely to be affected by Link construction work—see new section 54; or

 is notified by the relevant Utility to the Link corporation as being likely to be affected by Link construction work—see new section 56.

98 "reserved Link Upgrade land" refers to land that is reserved under the new Schedule 5A to the Road Management Act 2004 (see clause 65 of this Bill) for the purposes of the Link Upgrade Project. "Reserved Link Upgrade land" will be temporary reserves under the Crown Land (Reserves) Act 1978, with VicRoads as the committee of management and the purpose of the reserve being the Link Upgrade Project. "unnotified Utility infrastructure" refers to utility infrastructure (such as pipes, cables, etc) that has neither been identified by the Link corporation in accordance with new section 54 nor notified by the relevant Utility to the Link corporation under new section 56. "Utility" means— (a) a utility within the meaning of the Road Management Act 2004, namely—  a publicly or privately owned entity which provides or intends to provide water, sewerage, drainage, gas, electricity, telephone, telecommunication or other like services under the authority of an Act of the Victorian or Commonwealth Parliaments;  any person who, under the Pipelines Act 2005, is the holder of a licence to construct and operate a pipeline;  a provider of public transport; or (b) the Director of Public Transport under the Transport Act 1983; or (c) any person who manages rail infrastructure; or (d) any person who operates rail rolling stock. "Utility agreement" refers to an agreement reached between the Link corporation and a Utility under new section 49, as amended under new section 53. "Utility infrastructure" means any part of the supply, distribution or reticulation network operated by a Utility, including poles, pipes, cables, wires, conduits and tunnels as well as rail infrastructure and tram infrastructure.

99 "Utility Minister" refers to the Minister for the time being administering the Act under which the Utility operates. Note that, under sub-clause (2), the Premier may determine which Minister is to be the Utility Minister for the purposes of this legislation in relation to particular infrastructure. "works" has the same meaning as in the Road Management Act 2004, namely any activity carried out on or near a road in connection with the construction, maintenance or repair of the infrastructure in, on or under the road, such as excavations, erecting new structures, removing or interfering with existing structures, planting or removing a tree or other vegetation, tunnelling beneath a road, connecting roads to each other, installing pipes, cables, poles, buildings, etc or erecting any obstruction.

Division 2—General Powers of Roads Corporation This Division comprises new sections 22 and 23. New section 22 deems VicRoads to be the committee of management under the Crown Land (Reserves) Act 1978 in relation to reserved Link Upgrade land. This means that VicRoads may exercise management control, on behalf of the Crown, over the Crown land that is temporarily reserved for the purposes of the Link Upgrade Project. In relation to the reserved Link Upgrade land, the Minister who administers the Melbourne City Link Act 1995 will exercise Ministerial powers under the Crown Land (Reserves) Act 1978. New section 23 enables VicRoads, with the consent of the relevant Minister or Ministers, to use Crown land for the purposes of the Link Upgrade Project. However, if the land is reserved under the Crown Land (Reserves) Act 1978 for another purpose, then that reservation must first be revoked before it may be made available for Project-related purposes. Clauses 31 and 32 of the new Schedule 5A to the Road Management Act 2004 (which is to be inserted by clause 65 of this Bill) will provide mechanisms by which such reservations may be revoked where appropriate.

Division 3—Licences This Division comprises new sections 24 to 33. New section 24 states that the new Division will apply despite anything to the contrary in—

100  section 175A of the Water Industry Act 1994, which vests in the Crown the bed, soil and banks of the Yarra River and other watercourses within metropolitan Melbourne; or

 the Land Act 1958, which governs the manner in which Crown land may be disposed of—see for example section 12 of that Act; or  the Crown Land (Reserves) Act 1978, which prevents interests in reserved Crown land being created in a manner inconsistent with that Act unless expressly authorised by other laws—see section 8 of that Act; or  any other law. This provision is necessary to ensure that any licences granted in accordance with this new Division will not be invalid because of inconsistency with other statutory provisions (such as those mentioned above) which may apply to the land over which the licences are to be granted. New section 25 authorises VicRoads to issue licences for the purposes of the Link Upgrade Project. Licences will be issued to the persons who are entitled, under the Melbourne City Link Agreement, to receive them. A licence may be issued over "reserved Link Upgrade land", that is, land which is temporarily reserved for the purposes of the Link Upgrade Project under Schedule 5A of the Road Management Act 2004 and the Crown Land (Reserves) Act 1978. Note that amendments to the Melbourne City Link Agreement will deal with the issuing of such licences. Section 15 of the Melbourne City Link Act 1995 provides for amending agreements to be tabled in each House of Parliament. New section 26 provides that the term of a licence issued under new section 25 must be in accordance with the Agreement. New section 27 empowers VicRoads to impose conditions on the licences issued under new section 25, subject to and in accordance with the Melbourne City Link Agreement. New section 28 deals with the imposition of conditions relating to licences over strata of land, designed to ensure continuing support to other, non-licensed, strata. This provision is similar in effect to provisions of the Land Act 1958 dealing with similar issues in relations to licences, leases and grants of freehold in strata—see sections 134A, 138A and 339A of that Act.

101 New section 29 provides that a licensee may only mortgage or encumber a licence in accordance with the Melbourne City Link Agreement. New section 30 empowers VicRoads amend a licence at any time with the agreement of the licensee. New section 31 empowers VicRoads to terminate a licence in accordance with the Melbourne City Link Agreement. New section 32 empowers VicRoads to renew a licence in accordance with the Melbourne City Link Agreement. New section 33 provides that the Melbourne City Link Act 1995 is to operate in respect of licensed land as if it had been leased under that Act. This extends to the land licensed to the Link corporation, the terms and conditions applying to the existing leases under the Act and the existing Agreement. This includes, for example, certain tax exemptions that apply to leased land under section 96 of the Melbourne City Link Act 1995. In effect, the existing concession terms are extended to the land being added to the concession for the purposes of the Link Upgrade Project.

Division 4—Construction Permits This Division comprises new sections 34 to 37. New section 34 enables VicRoads to issue a construction permit to the Link corporation or other person entitled to receive it under the Agreement. A construction permit will authorise construction works within the scope of the Link Upgrade Project (as set out in the Melbourne City Link Agreement as amended for the purposes of the Link Upgrade Project) to be carried out.

New section 35 specifies the classes of land over which a construction permit may be issued. This includes—  land already held under City Link leases;  reserved Link Upgrade land;  land which has been temporarily occupied by VicRoads under Part 9 of the Land Acquisition and Compensation Act 1986 (note that a permit cannot authorise activity on such land that is not permitted under Part 9—see new section 36(2);

102  Crown land which has been made available for the Link Upgrade Project in accordance with new section 23;  land vested in VicRoads; and

 available land within the meaning of clause 11 of Schedule 3 to the Road Management Act 2004, including land where the land's owner has consented to the proposed use. New section 36 enables VicRoads to impose conditions on a construction permit, subject to and in accordance with the Agreement. A permit does not authorise activities on temporarily occupied land which are not permitted under Part 9 of the Land Acquisition and Compensation Act 1986. In this regard, see the obligations imposed on acquiring authorities under section 75(2) of that Act. New section 37 enables VicRoads to cancel a construction permit.

Division 5—Statutory Powers and Exemptions This Division comprises new sections 38 to 43. New section 38 deals with the application of planning laws. New section 39 provides that the approval of public bodies is not required for the carrying out of works authorised by a construction permit. In effect, the construction permit issued under the Act is a single permit which authorises construction to proceed without the need for permits or licences from State or local authorities other than—

 permits required from VicRoads, in accordance with the Agreement itself;  permits or approvals needed from the Environment Protection Authority; and  requirements under laws relating to standards of construction and safety. New section 40 clarifies that the Building Act 1993 does not apply in relation to land for which a construction permit has been issued.

103 New section 41 provides that the Mineral Resources (Sustainable Development) Act 1990 and the Extractive Industries Development Act 1995 do not apply in relation to land for which a construction permit has been issued. New section 42 provides that the South Melbourne Land Act 1986 does not apply in relation to land for which a construction permit has been issued. New section 43 provides that the Minister may make an Order exempting buildings or land from the application of the Heritage Act 1995. An Order may make alternative heritage protection arrangements. It will be an offence to breach conditions imposed by such an Order. The penalty for breaching conditions imposed by an Order is equivalent to the existing penalties under the Heritage Act 1995.

Division 6—Road Operation and Management This Division comprises new sections 44 and 45. New section 44 provides that a road to which an Order under Division 3 of Part 5 of Schedule 5A to the Road Management Act 2004 applies is to be administered by the Link corporation under the same arrangements as apply to the existing Link road. New section 45 provides for powers to be conferred on the Link corporation in relation to the management of other roads used for construction purposes related to the Link Upgrade Project.

Division 7—Interface with Utilities This Division comprises new sections 46 to 56ZD. New section 46 provides that the new Part 2B does not affect the power of Utilities to respond to and deal with emergencies.

New section 47 provides that a Utility must obtain the consent of the Link corporation before carrying out works on Utility infrastructure or constructing new Utility infrastructure in the Link Upgrade area. The Link corporation may impose conditions on its consent provided the conditions are not unreasonable. This section does not prevent works authorised under a Utility agreement. New section 48 enables a Utility to refer disputes to the relevant Ministers over the granting of consents or the imposition of conditions.

104 New section 49 enables Utilities and the Link corporation to enter into agreements in relation to Utility infrastructure or works in the Link Upgrade area. New section 50 sets out the matters which may be dealt with in a Utility agreement. New section 51 sets out certain requirements in relation to Utility agreements. An agreement may not be inconsistent with the Melbourne City Link Act 1995 or the three Agreements ratified by that Act, and an agreement is inoperative to the extent of any such inconsistency. An agreement relating to standards of works may take effect despite other laws. New section 52 provides that a Utility agreement has no effect unless it has been approved by VicRoads. New section 53 enables Utility agreements to be amended, subject to approval by VicRoads. New section 54 requires the Link corporation, before commencing construction work, to take all reasonable steps to identify Utility infrastructure in land to be used for the construction works. New section 55 requires the Link corporation to give notice of proposed construction work by publishing a notice in the Government Gazette and by notifying Utilities in writing where the Link corporation is aware that the works will affect known infrastructure. New section 56 requires Utilities to respond to notices under section 55 by providing information about the nature and location of Utility infrastructure in the relevant area. New section 56A requires the Link corporation to provide to VicRoads copies of notices given under new section 55. New section 56B requires the Link corporation to consult with Utilities and seek their agreement in relation to works that may affect Utility operations or infrastructure. New section 56C enables the Link corporation to refer matters to the Ministers for determination where agreement with a Utility has not been reached. New section 56D enables the Minister administering the Melbourne City Link Act 1995, after consultation with the Minister responsible for the relevant utility sector, to direct a Utility to carry out works in an area in which Link Upgrade construction works are being carried out.

105 New section 56E provides that the Link corporation may apply to the Minister for a direction to the Utility to complete required works within a required time. New section 56F provides that a direction under section 56D or 56E must be in writing. A Ministerial direction may not be inconsistent with the Agreements ratified by the Act. New section 56G provides that a Ministerial direction may prevail over other laws that require a person to obtain Utility consent for works. New section 56H sets out certain duties of the Link corporation in relation to Utility infrastructure which has not been notified to it by the Utility but which is discovered during the course of construction. In such cases, the Link corporation must inform the relevant Utility, VicRoads and the relevant Utility Minister. New section 56I provides that the Link corporation must give notice to a Utility of intended works that may affect Utility infrastructure of which the Link corporation is aware. Such a notice must be in writing and request the Utility to provide information about the operational status of the infrastructure within 2 business days, with a view to reaching agreement about removal, relocation or modification of the infrastructure. "Business day" is defined in the Interpretation of Legislation Act 1984 as a day that is not on a weekend and is not a public holiday in the relevant part of the State. New section 56J enables Utilities and the Link corporation to enter into agreements in relation to removal, relocation or modification of the infrastructure. New section 56K provides that the Link corporation may notify the Minister administering the Melbourne City Link Act 1995 if the Utility fails to comply with a request within 2 business days. New section 56L applies where the Link corporation has given notice to a Utility under new section 56I. It enables the Minister administering the Melbourne City Link Act 1995, after consultation with the Minister responsible for the relevant utility sector, to direct a Utility to carry out works in an area in which Link Upgrade construction works are being carried out. New section 56M applies where the Link corporation has given notice to the Minister under new section 56K. The provision enables the Minister administering the Melbourne City Link Act 1995, after consultation with the Minister responsible for the relevant utility sector, to direct the Link corporation to carry out Utility relocation or reinstatement works if the Minister is satisfied that it would be unreasonable or contrary to the public

106 interest to delay such relocation or reinstatement. A direction may specify technical standards with which the Link corporation must comply. New section 56N provides that the Link corporation may apply to the Minister for a direction if a Utility does not complete works within the required timeframe. New section 56O sets out formal requirements in relation to Ministerial directions under new sections 56L, 56M and 56N. Such directions must be in writing and may not be inconsistent with the Agreements that are ratified by the Melbourne City Link Act 1995. New section 56P provides that a Ministerial direction under sections 56M or 56N prevails over requirements of other State laws. New section 56Q provides that the Link corporation is to pay the fair and reasonable costs of relocating or rectifying Utility infrastructure affected by Link Upgrade construction works. New section 56R provides that, for the purposes of new section 56Q, the relocation or rectification must result in the Utility infrastructure having the same or a similar technical capability as the former infrastructure, at the cost of the Link corporation. New section 56S provides that, if the Utility requests that its infrastructure be upgraded at the same time as the Link construction works are carried out, then the Utility must pay for that upgrade. New section 56T provides that a Utility is liable for delay costs caused by the Utility's failure to comply with its obligations under these provisions, subject to the Link corporation taking action to mitigate its loss. New section 56U provides that the Link corporation is not liable to pay damages or other compensation, except as provided for in Division 7 of the new Part 2B of the Act. New section 56V provides that either the Link corporation or the Utility may refer a dispute for determination by the Ministers. New section 56W provides for certification of works by the Utility on completion of relocation or rectification works on Utility infrastructure by the Link corporation. If the Utility does not do so within 14 days, it is deemed to be satisfied with the work. If the Utility is not satisfied that the work is satisfactory and complete, it may require further rectification work.

107 New section 56X provides that a Utility may refer the matter to the relevant Ministers as a dispute if the Link corporation does not complete further required work within a time specified. New section 56Y enables the Link corporation to refer matter to the Ministers as a dispute if the Utility fails to certify the work on completion of the further work that had been required under new section 56X. New section 56Z provides that the Link corporation is not liable if the further work is certified under new section 56W, or if it is deemed to be satisfactory because the Utility has not responded within 14 days under that section, or if it is determined to be satisfactory under the dispute process under Subdivision 7 (see new section 56ZA following). New section 56ZA provides that the Minister administering the Melbourne City Link Act 1995 and the relevant Utility Minister may determine disputes notified to them under the new Part 2B, or may appoint a person to determine the matter. New section 56ZB sets out the matters that must be taken into account in determining a dispute. Both the Utility and the Link corporation must be given an opportunity to be heard. New section 56ZC provides that a determination of a dispute must be given in writing. The decision-maker must not cause unreasonable delay or costs to the Link Upgrade Project. A determination may not be inconsistent with the Agreements ratified by the Act. New section 56ZD provides that, where there is an inconsistency between a dispute determination and any other Act or law, the determination prevails.

Division 8—Emergency Orders This Division comprises new sections 57ZE to 57ZI. New section 56ZE provides that VicRoads may make emergency orders if necessary because of a danger to life or property. Note that this provision and the following provisions related to emergency orders are not subject to the general rule that the ratified Agreements prevail over the Act's provisions in the case of inconsistency—see the amendments to section 16 of the Act to be made by clause 69.

108 New section 56ZF provides that VicRoads must, without delay, serve a copy of any emergency order made under new section 56ZE on the Link corporation, the Minister administering the Melbourne City Link Act 1995 and on any person to whom it is directed. New section 56ZG provides that an emergency order remains in force until it is either complied with or is cancelled by VicRoads. New section 56ZH makes it an offence for a person to fail to comply with an emergency order. New section 56ZI provides that VicRoads may ask for Police assistance to evacuate an area that is subject to an emergency order.

Division 9—Actions by Public Bodies This Division comprises new section 56ZJ. New section 56ZJ provides that the Governor in Council may, by an Order published in the Government Gazette, require the head of a State Government Department, a public statutory body or a council to carry out their functions in relation to the Link Upgrade area. A person to whom such an Order is directed must comply with the requirement, but a requirement may not vary a time limit set by or under an Act.

Division 10—Revocation of Reservation and Interim Operation This Division comprises new sections 56ZK and 56ZL. New section 56ZK enables the Minister administering the Melbourne City Link Act 1995, after consultation with the Minister administering the Crown Land (Reserves) Act 1978, to recommend to the Governor in Council the revocation of temporary reservations of land for the purposes of the Link Upgrade Project under the latter Act. On receiving such a recommendation, the Governor in Council may by Order revoke such reservations with effect from the publication of that Order in the Government Gazette. At that point, all property or other interests in the land will be extinguished by force of the new section 56ZK, other than interests which exist by virtue of the three Agreements ratified by the Act. In practice, clause 4.8 of the Melbourne City Link Agreement creates certain interests and the right to the issue of a lease under the Act once certain criteria are fulfilled. The extinguishment of other interests ensure that clear title to

109 the land is obtained prior to the grant of the leases envisaged by the Agreement. New section 56ZL provides that, between the time the temporary reservations are revoked and the leases envisaged by the Melbourne City Link Agreement are issued under the Act, that the Act will operate in relation to the land which had formerly been licensed as if that land had been leased. This means, in effect, that licences will be terminated on completion of construction and that the provisions which confer statutory powers etc in relation to leased land will operate from that time in relation to the land used for construction purposes. The Minister may exclude land from this arrangement by an Order published in the Government Gazette. This power is intended to be used in relation to parcels of land that had been used for construction purposes but where it is not intended that the land would subsequently form part of the land to be leased to the Link corporation on an ongoing basis.

Clause 73 substitutes the heading to Part 3 of the Melbourne City Link Act 1995.

Clause 74 inserts a new section 65 into the Melbourne City Link Act 1995. This requires the Registrar of Titles to register any lease made in accordance with the Agreement.

Clause 75 inserts a new paragraph (a) into section 104(3) of the Clause Melbourne City Link Act 1995. This will prevent the making of local laws restricting use of roads for access to or egress from land used to which Link Upgrade Project construction permits apply.

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