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Transport Legislation Amendment
(Hoon Boating and Other Amendments)
Bill 2009
Introduction Print
EXPLANATORY MEMORANDUM
General
This Bill is another policy-driven initiative by the Brumby Government to
support better transport outcomes across Victoria.
The Bill makes important changes to existing ports, marine and road
regulatory schemes to promote transport integration and sustainability across
the State. The Bill sits under the umbrella of the Government's policy and
legislation strategy reflected in its policy statement issued in July 2009,
towards an integrated and sustainable transport future: a new legislative
framework for transport in Victoria.
The Bill also makes a range of miscellaneous, minor or machinery changes
necessary to improve existing transport regulation schemes.
Transport policy and legislation review
Policy and legislation review in transport in Victoria is proceeding on two
levels.
First level
At the first level, major renewal is underway across the transport portfolios
through the Government's Transport Legislation Review. This project is the
most active and ambitious review of its type in the country and it is
generating an entire new legislative framework for the State along best
practice lines.
These reforms, and transport policy and regulation generally, will be
coordinated even more closely under the Government's Transport Integration
Bill initiative, which will shortly introduce a new overarching framework for
transport regulation and management right across the portfolio.
561410 1 BILL LA INTRODUCTION 11/11/2009
As part of this work, the Government is driving first principles reviews of
safety regulation in relation to both our roads and our waterways. A new
Marine Safety Bill is in development to replace the current Marine Act 1988.
An extensive policy review and stakeholder consultation program has been
conducted throughout 2009, working towards introduction of the legislation
next year. The Government has also commenced a review of road safety
regulation and a major new statute will be developed in that important area.
Second level
At the second level, the Government is continuing to introduce discrete
priority reforms where required outside of the major review work and
generally on shorter timelines.
This Bill
This Bill introduces a number of priority reforms such as--
· a hoon boating scheme; and
· offences concerning culpable or dangerous operation of vessels
causing death or serious injury; and
· a range of ports regulation measures relating to towage,
hazardous activities, unattended or abandoned property and
port safety officers at the Port of Melbourne; and
· measures to facilitate improvements in road safety.
The Bill also makes a range of miscellaneous, minor and business as usual
changes affecting transport legislation across the State.
Main purposes of the Bill
The main purposes of this Bill are--
· to amend the Marine Act 1988 to provide for the giving of
notices and directions prohibiting the operation of vessels, and
to provide for the seizure, impoundment, immobilisation and
forfeiture of recreational vessels;
· to amend the Port Services Act 1995 to provide for the
regulation of towage services in the Port of Melbourne and to
confer certain powers on the Port of Melbourne Corporation in
relation to pollution abatement, the control of hazardous
activities and the removal of unattended and abandoned goods;
2
· to amend the Transport Act 1983 to provide for the
appointment and empowerment of port safety officers for the
port of Melbourne and to make clear that VicRoads' power to
provide registration and licensing services is not limited to
procedures and systems connected with transport;
· to amend the Road Safety Act 1986 to provide for additional
circumstances in which personal and commercially sensitive
information may be disclosed, to enhance VicRoads' powers to
manage suppliers of alcohol interlock devices and to provide
for exemptions from fatigue management requirements for
persons returning from an emergency and driving buses in rail
replacement or emergency situations;
· to amend the Road Management Act 2004 to provide a means
of clarifying powers of the responsible road authority, to clarify
powers of road authorities to remove and store unlawfully
parked or abandoned vehicles and to provide further
regulation-making powers;
· to amend the Accident Towing Services Act 2007 to require
the carriage and production of certain documentation when a
tow truck is being driven by a trainee driver and to provide for
other minor matters;
· to amend the EastLink Project Act 2004 and the Southern
and Eastern Integrated Transport Authority Act 2003 to
provide for the transfer of responsibility for managing the
EastLink project on behalf of the State from the Southern and
Eastern Integrated Transport Authority (now known as the
Linking Melbourne Authority) to VicRoads;
· to make amendments of a statue law revision nature to the
Major Transport Projects Facilitation Act 2009 and other
Acts; and
· to amend the Crimes Act 1958 to extend the offences of
culpable driving causing death and dangerous driving causing
death or serious injury to the operating of vessels.
3
Clause Notes
PART 1--PRELIMINARY
Clause 1 sets out the main purposes of the Bill.
Clause 2 deals with commencement and provides as follows.
· Clauses 1 and 2 come into operation on the day after the
day on which the Bill receives the Royal Assent.
· Clause 23(3) is taken to have come into operation on
9 November 2009.
· The remaining provisions in the Bill come into
operation on a day or days to be proclaimed, or on
1 September 2011, whichever comes first.
PART 2--AMENDMENT OF MARINE ACT 1988
Clause 3 amends the definition section of the Marine Act 1988 to provide
that in the case of a contravention in the port of Melbourne of a
relevant marine safety law that is constituted by a contravention
of the Port Services Act 1995 for the purposes of Divisions 4
and 5 of Part 8 of the Marine Act 1988, a reference to an
inspector is taken to include a reference to a port safety officer
appointed under new Part VIIA of the Transport Act 1983.
The purpose of this amendment is to give port safety officers
appointed under the amendments made by Part 4 of this Bill the
power to exercise, within the Port of Melbourne, the same
powers as are available to transport safety officers under the
Transport Act 1983, including the power to issue improvement
and prohibition notices and to board and inspect vessels.
Clause 4 amends section 10(1) of the Marine Act 1988 to include
reference to Division 3 of Part 7A. Section 10(1) provides that
vessel registration and renewal and transfer of registration may
be applied for and granted or refused only in accordance with the
regulations. The additional reference is necessary because
Division 3 of new Part 7A provides for Orders which affect
vessel registration.
4
NEW PART 7A--IMPOUNDMENT,
IMMOBILISATION AND FORFEITURE OF
RECREATIONAL VESSELS ("HOON BOATING
SCHEME")
Clause 5 inserts a new Part 7A into the Marine Act 1988, comprising new
sections 62A to 62ZY, which establishes a recreational vessel
impoundment, immobilisation and forfeiture regime (the "Hoon
Boating Scheme").
New Part 7A is modelled on Part 6A of the Road Safety Act
1986, which makes provision for impoundment, immobilisation
and forfeiture of motor vehicles involved in the commission of
driving offences involving significant danger, such as dangerous
driving, grossly exceeding the speed limit and deliberately losing
traction.
New Part 7A contains a number of provisions that deal in detail
with the circumstances in which, and the procedures by which,
recreational vessels may be impounded or immobilised by or
forfeited to the Crown.
New Division 1--Preliminary
New section 62A(1) defines a number of terms that are used
throughout Part 7A.
A definition of designated costs is included to specify the costs
that must be paid to secure the release of an impounded or
immobilised recreational vessel. Designated costs means the
costs of impounding or immobilising the vessel, including the
costs of moving the vessel to, and storing it at, the place where
it is immobilised or impounded, and subsequently releasing it.
It also includes additional costs incurred if the recreational vessel
is impounded or immobilised for longer than the designated
period. This may include additional storage costs if the vessel
remains unrecovered after the designated period expires.
A definition of designated period is included to specify the
length of time for which a seized recreational vessel may be
impounded or immobilised without a court order. Designated
period means 48 hours beginning from the seizure or surrender
of the vessel, but if this period expires outside normal business
hours, the period extends to 9.00 a.m. on the next business day.
This addresses the situation where a recreational vessel becomes
eligible for release late at night or on a weekend or public
holiday.
5
A definition of holding yard is included to refer to the place
where an impounded recreational vessel is stored.
A definition of registered person is included to denote the person
who is registered under regulations made under the Marine Act
1988 as the owner or operator of a recreational vessel.
A definition of relevant court is included to refer to the court
with jurisdiction to hear and determine the relevant offence to
which an application under Part 7A relates or, if the application is
made after the sentencing of the operator for the relevant offence,
the Magistrates' Court.
A definition of relevant offence is included to specify the offence
to which the impoundment, immobilisation and forfeiture regime
applies. The relevant offence is operating a vessel at a speed or
in a manner that is dangerous to the public (section 22 of the
Marine Act 1988).
New sections 62A(2) and (3) provide that, for the purposes of an
application for an impoundment, immobilisation or forfeiture
order, charges for more than one relevant offence arising out of
the same single set of circumstances are treated as a charge for
one relevant offence. This prevents a person being treated as a
repeat offender merely on the basis of one instance of offending
for which multiple charges are laid.
New section 62B provides that any impoundment,
immobilisation or forfeiture of a recreational vessel is additional
to, and does not limit or otherwise affect, the penalty that may be
imposed for the relevant offence that gave rise to the
impoundment, immobilisation or forfeiture.
New section 62C provides that new Part 7A applies only to
relevant offences committed on or after commencement of
clause 5 of the Bill. This is intended to ensure that the
impoundment, immobilisation and forfeiture scheme introduced
by new Part 7A of the Marine Act 1988 is only applied to
relevant offences committed on or after that date.
New Division 2--Impoundment or immobilisation
by Victoria Police
Division 2 of new Part 7A provides for the impoundment or
immobilisation of recreational vessels by Victoria Police.
New section 62D gives members of the police force power to
take certain actions in relation to a recreational vessel under the
vessel impoundment, immobilisation and forfeiture regime.
6
New section 62D(1) allows a member of the police force to seize
or require the surrender of a recreational vessel, or to impound or
immobilise it if he or she believes on reasonable grounds that the
vessel is being used, or has been used, in the commission of a
relevant offence.
Police may also authorise other persons to assist them in seizing,
impounding or immobilising a recreational vessel. For example,
police may engage a contractor to tow the vessel to a holding
yard and store it there until it is recovered.
New section 62D(2) ensures that a recreational vessel may only
be impounded or immobilised, be the subject of an embargo
notice, or its operator issued with a prohibition direction on one
occasion for any given relevant offence. This is intended to
prevent police either impounding a vessel, or issuing an embargo
notice or prohibition direction more than once for the same
offence.
New section 62E sets out how the power to seize a recreational
vessel under new section 62D may be exercised.
New section 62E(1) sets out from where a recreational vessel
may be seized. A recreational vessel may be seized from a public
place or from a private place with the owner or occupier's consent
or with a warrant issued under Division 4. Section 62E(2)
provides that a recreational vessel may be seized up to 48 hours
after the alleged offence, within 10 days after the period specified
in a notice served under section 62F expires or in accordance
with a warrant.
New section 62E(3) sets out actions the police may take in order
to seize a recreational vessel, including boarding or entering the
vessel, operating or moving the vessel, dismantling or
neutralising any locking device, or operating or moving a trailer,
vehicle or other thing on which the vessel is resting or by which
it is transported.
New section 62F sets out a process by which police may require
the surrender of a recreational vessel. A member of the police
force may serve a notice on the owner or registered person
requiring the surrender of the vessel. The notice must be served
within 10 days of the member forming the belief that the vessel
has been used in the commission of a relevant offence. The time
specified for surrender of the vessel must be at least 7 days after
service. If the vessel is not surrendered in accordance with the
notice, police may seize the vessel within 10 days after the period
specified in the notice expires.
7
The process set out in new section 62F is intended to avoid the
inconvenience that could arise if a recreational vessel were to be
seized without warning (possibly at a time when a different
person, who is unaware of the offence, may be in charge of it).
New section 62G confers powers on members of the police force
to effect the impoundment or immobilisation of a seized or
surrendered recreational vessel. Police may do anything
reasonably necessary to impound or immobilise the vessel.
This includes moving the vessel to a holding yard and
impounding it. It also includes immobilising the vessel, or a
trailer or other thing on which it vessel is resting or by which it is
being transported, for the balance of the designated period.
New section 62H allows a member of the police force to
authorise a person to assist him or her in exercising powers under
new sections 62E, 62G and 62ZC, and outlines the things such a
person may assist the member to do.
New section 62I requires a member of the police force to serve a
notice on the owner, operator or registered person of a
recreational vessel as soon as reasonably practicable after the
vessel is impounded or immobilised. If that person does not have
the sole interest in the vessel, he or she must take reasonable
steps to provide a copy of the notice to any other person whom he
or she is aware has an interest in the vessel.
This section is intended to ensure that relevant parties are
promptly made aware of both the basis for any impoundment or
immobilisation and of their rights and obligations under the
impoundment, immobilisation and forfeiture regime.
New section 62J outlines the information that must be included in
a notice under new section 62I. This includes--
· the operator's name;
· the identification mark, engine number and length,
breadth and colour of the vessel;
· the date and time when the vessel was impounded or
immobilised;
· the date of the relevant offence;
· the date and time when the vessel will be eligible for
release and the process by which this may occur;
· a statement that if an operator is charged with a relevant
offence, and that operator has committed one or more
previous relevant offences since the commencement of
8
new Part 7A, the Chief Commissioner of Police may
apply for an impoundment or immobilisation order or a
forfeiture order;
· if applicable, that a trailer or other thing has been
impounded or immobilised in order to impound or
immobilise the vessel; and
· any other prescribed particulars.
New section 62K seeks to ensure that any decision to impound or
immobilise a recreational vessel is promptly reviewed by a senior
police officer. This is intended to add a layer of accountability
over the exercise of the powers conferred by new section 62D.
A member of the police force who impounds or immobilises a
recreational vessel, or who authorises the same, must, as soon as
reasonably practicable (and in any case within 48 hours of the
impoundment or immobilisation), notify a senior officer of the
grounds for this action. If, after making inquiries, the senior
officer is not satisfied that the member had reasonable grounds to
impound or immobilise the vessel, the vessel must be returned to
the owner or registered person as soon as is practicable.
New section 62L provides for the release of an impounded or
immobilised recreational vessel in certain circumstances.
A recreational vessel must be released as soon as reasonably
practicable if--
· it is a stolen vessel; or
· a senior police officer is not satisfied that there were
reasonable grounds to impound or immobilise the
vessel; or
· a senior police officer considers it reasonable or
necessary to release the vessel; or
· the Magistrates' Court has made an order to release it on
the ground of undue hardship.
In the first two situations, the Crown is liable to pay the
designated costs. New section 62L also enables senior police
officers to waive the designated costs if he or she considers it
reasonable or necessary to release the vessel. This allows
unfairness to be avoided without compromising the integrity of
the impoundment, immobilisation and forfeiture regime.
For example, a parent may seek the release of a vessel which has
been impounded or immobilised after his or her son or daughter
used the vessel without the parent's consent or knowledge.
9
If a recreational vessel is released under new section 62L without
the payment of designated costs, the Chief Commissioner of
Police may apply to recover the designated costs from a person
who is subsequently found guilty of a relevant offence.
New section 62M allows an application to be made to the
Magistrates' Court for an order that an impounded or
immobilised recreational vessel be released. A person whose
interests are substantially affected by the impoundment or
immobilisation of a vessel may apply for an order that the
vessel be released on hardship grounds. In addition to ordering
the vessel's release, the Court may order that the applicant is not
liable to pay all or part of the designated costs.
New section 62N makes it an offence to unlawfully move an
impounded or immobilised recreational vessel or to tamper with
any equipment used to immobilise it without reasonable excuse.
It is also an offence to obstruct or hinder a member of the police
force exercising powers under the regime. There are exceptions,
including where there is a risk of imminent harm to the vessel or
to persons or property, or if the vessel is moved to comply with a
direction of the harbour master, Director of Marine Safety, a
member of the police force or an authorised officer.
New section 62O provides for the recovery of impounded or
immobilised recreational vessels upon the expiry of the
designated period, the payment of designated costs and the
provision of evidence of identity and title. It also provides for the
continuing impoundment or immobilisation of a vessel until
designated costs are paid.
New section 62P provides that where the operator of a
recreational vessel is found not guilty of the relevant offence,
where no charge sheet is filed, or is filed but not proceeded with
within 12 months, the Crown must refund any designated costs
paid to recover the vessel. If the vessel has not been recovered, it
must be immediately released.
New Division 3--Impoundment, immobilisation
or forfeiture by court order
Division 3 of Part 7A makes provision for a court to make orders
for the impoundment or immobilisation of a recreational vessel
for up to 3 months or the forfeiture of the vessel against repeat
offenders. Any such order is in addition to the impoundment or
immobilisation by police upon the detection of the relevant
offence, under Division 2.
10
New section 62Q empowers the court to deal with an operator
found guilty of a relevant offence and of one other relevant
offence on the application of the Chief Commissioner of Police,
by ordering a recreational vessel to be impounded or immobilised
for a period of up to 3 months.
The court may only make an impoundment or immobilisation
order under this section if satisfied that the accused has been
found guilty of one or more previous relevant offence committed
in the 3 years before the commission of the relevant offence (and
on or after the commencement of clause 5 of the Bill). The court
may not make a forfeiture order if the vessel was stolen or was
being used in circumstances prescribed in the Regulations.
New section 62R empowers the relevant court to order that a
recreational vessel be forfeited to the Crown if the operator has
been found guilty of a relevant offence and 2 or more previous
relevant offences committed in the period of 3 years before the
commission of the relevant offence (and on or after the
commencement of clause 5 of the Bill) on the application of the
Chief Commissioner of Police. The court may not make a
forfeiture order if the recreational vessel was stolen or being used
in any circumstances prescribed in the Regulations. A forfeiture
order must stipulate the time and place at which the owner or
registered person is required to surrender the vessel.
New section 62S outlines the circumstances in which the Chief
Commissioner of Police may apply for an impoundment or
immobilisation order under new section 62Q, or a forfeiture order
under new section 62R. The Chief Commissioner may make an
application if he or she believes on reasonable grounds that--
· the recreational vessel was used in the commission of a
relevant offence and was not at that time stolen or being
used in prescribed circumstances; and
· the operator has, within the period of 3 years before the
commission of the relevant offence, been found guilty
of a previous relevant offence or offences (committed
on or after the commencement of clause 5 of the Bill).
An application under new section 62S may be made any time
after the accused is charged, but must be made within 28 days of
sentencing for the relevant offence.
New section 62T requires the Chief Commissioner of Police to
notify certain persons of his or her intention to seek an
impoundment, immobilisation or forfeiture order. Service of a
notice under new section 62T is intended to inform relevant
11
persons of the proposed application and, in conjunction with
section 62U, prevent the sale or disposal of the vessel without the
approval of the court. This is intended to ensure that a person
facing an impoundment, immobilisation or forfeiture order
cannot dispose of the recreational vessel to avoid the operation of
the legislation.
The Chief Commissioner of Police must give at least 28 days
written notice of his or her intention to apply for an order to the
owner, the operator, the registered person, the Director of Marine
Safety and any person whom the Chief Commissioner is aware
has an interest in the recreational vessel. If the person notified
does not have an interest or the sole interest in the vessel, he or
she must take reasonable steps to serve a copy of the notice on
any person who he or she is aware has an interest in the vessel.
New sections 62T(3) and 62T(4) provide that a notice must--
· state that an application for an impoundment,
immobilisation or forfeiture order will be made if the
operator is found guilty of a relevant offence;
· specify the vessel in respect of which the order will be
sought;
· state that the person named in the notice may appear at
the hearing of the application and show cause as to why
the order should not be made;
· state that a person on whom the notice is served must
not sell or otherwise dispose of his or her interest in the
vessel without the court's approval.
New section 62U provides that a person on whom a notice is
served under new section 62T must not, without the approval of
the relevant court, sell or otherwise dispose of any interest in the
vessel until the application referred to in the notice is made and
determined. This ceases to apply if--
· the operator is found not guilty of a relevant offence; or
· the Chief Commissioner of Police does not make the
application referred to in the notice within 28 days of
sentencing; or
· the charge for the relevant offence is withdrawn.
The maximum fine for a failure to comply with this provision is
60 penalty units.
12
New section 62V allows the Chief Commissioner of Police to
serve a notice on a person who has been charged with two or
more relevant offences, advising that person of his or her
intention to seek an impoundment, immobilisation or forfeiture
order under section 62S if the operator is convicted of more than
one of the offences. The notice must also be served on the
registered person of and any person known to have an interest in
the recreational vessel. A person upon whom a notice is served
must not sell or otherwise dispose of any interest in the vessel
until the application is made and determined. This ceases to
apply if--
· the operator is found not guilty of one or more of the
offences (so that he or she is left facing only one charge
for a relevant offence);
· the Chief Commissioner of Police does not make the
application within 28 days of the operator being
sentenced for the second or third relevant offence; or
· charges for one or more of the relevant offences
specified in the notice are withdrawn leaving only one
(or no) charges for a relevant offence outstanding.
This provision is intended to ensure that an offender does not
benefit from the close proximity of his or her offending
(i.e. where a second or third relevant offence is committed before
charges for the first relevant offence can be determined).
This involves treating persons charged as provisional repeat
offenders, pending the outcome of the charges. If findings of
guilt are subsequently returned, a recreational vessel may be
subject to an impoundment, immobilisation or forfeiture order
application. Similar provisions to clause 62U apply prohibiting a
person from disposing of an interest in the vessel without the
approval of a court. The maximum fine for a failure to comply
with this provision is 60 penalty units.
New section 62W deals with the giving of directions to the
Director of Marine Safety (who is responsible for registration of
vessels) by the Chief Commissioner of Police in relation to the
registration of recreational vessels that are to be or have been
impounded, immobilised or forfeited.
New section 62W(1) provides that within 7 days after service of a
notice of application for an impoundment, immobilisation or
forfeiture order under new sections 62T(1) or 62V(1), the Chief
Commissioner of Police must direct the Director not to transfer
the registration of the vessel, or register it in the name of a person
other than the most recent registered person, until the Chief
13
Commissioner notifies the Director that the direction has ceased.
This direction must be given whether or not an actual transfer or
registration application has been made.
New section 62W(3) provides that the Chief Commissioner of
Police must notify the Director that a direction under new section
62W(1) has ceased in certain circumstances. The circumstances
depend on whether the notice was served under section 62T(1)
(that is, it related to a single charge) or under section 62V(1) (that
is, it related to multiple charges).
The circumstances in which the Chief Commissioner of Police
must notify the Director that the direction has ceased include
where--
· the operator 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 operator is sentenced for the relevant
offence;
· charges for all relevant offences are withdrawn;
· the court declines to make an impoundment,
immobilisation or forfeiture order;
· 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 recreational vessel.
New section 62X(1) provides that until notified by the Chief
Commissioner that the direction made under section 62W has
ceased, the Director must not transfer the registration of the
vessel, or register it in the name of a person other than the most
recent registered person.
New section 62X(2) provides that if the Chief Commissioner
gives a direction under section 62W(1) in respect of a
recreational vessel, the Director must send to the registered
person a notice advising that no transfer of registration will occur
until one of the events referred to in new section 62W(3) occurs.
14
The purpose of new sections 62W and 62X is to ensure that the
person against whom an impoundment, immobilisation or
forfeiture order has been made is not able to avoid the effect of
that order by transferring the registration of the vessel into the
name of another person, or surrendering the registration and
allowing the vessel to be registered in another person's name.
New section 62Y provides that the cessation of a direction not to
transfer registration does not affect the suspension of the vessel's
registration under any other Act or law. For example, the
registration of a vessel may also be suspended by the Director of
Marine Safety under section 84 or 85 of the Marine Act 1988.
Where a vessel's registration has been suspended under one of
those provisions, the suspension would continue even where a
direction of the Chief Commissioner under new section 62W(1)
ceases.
New section 62Z makes provision with respect to the hearing of
an application for an impoundment, immobilisation or forfeiture
order.
New section 62Z(1) provides that anyone served with a notice
under new sections 62T or 62V has a right to be heard at the
hearing of the application for an impoundment or immobilisation
order and to show cause why an order should not be made.
Further, the relevant court may at its discretion allow any other
person to be heard, if satisfied that the order may substantially
affect that person's interests.
New section 62Z(2) provides that the court must not make
an impoundment, immobilisation or forfeiture order in relation
to a recreational vessel if its owner or the registered person
satisfies the court that the offence was committed without his or
her knowledge or consent. For example, a parent who is the
owner of a recreational vessel used by his or her child in the
commission of a relevant offence may avoid the order by proving
to the court that he or she neither consented to, nor knew of, the
offending behaviour.
New section 62Z(3) provides that the court may decline to make
an impoundment, immobilisation or forfeiture order if it is
satisfied that to do so would cause exceptional hardship to any
person.
New section 62Z(4) requires the Chief Commissioner of Police to
serve a notice on the operator, owner or registered person in
respect of a recreational vessel subject to an impoundment or
immobilisation order stating that the vessel, and any item in it,
may be sold or otherwise disposed of if uncollected or unreleased
within 2 months.
15
New section 62ZA allows a person whose interests are
substantially affected by an impoundment, immobilisation or
forfeiture order to apply to a court for a variation of the order.
Such an application may only be made if the applicant can show
that his or her circumstances have changed since the order was
made, and that the order is causing, or will cause, exceptional
hardship to any person. The court may vary the order in any
way, including setting it aside or reducing its duration.
New section 62ZB specifies when an impoundment,
immobilisation or forfeiture order takes effect or ceases to have
effect.
New section 62ZB(1) provides that an impoundment,
immobilisation or forfeiture order becomes effective on the
expiration of the appeal period that applies to either the
conviction or the sentencing order, whichever is the later.
However, new section 62ZB(2) provides that an order has no
effect if the conviction for the relevant offence is set aside on
appeal.
New section 62ZB(3) provides that if leave to appeal is
successfully sought outside the relevant appeal period, the appeal
operates as a stay on the impoundment, immobilisation or
forfeiture order.
Subsections (4), (5) and (6) of new section 62ZB provide a
mechanism whereby compensation may be sought if a
recreational vessel is forfeited on the basis of a conviction for a
relevant offence which is subsequently overturned on appeal.
New section 62ZC confers on police acting under an
impoundment, immobilisation or forfeiture order the same
powers to seize and impound or immobilise the vessel as are
available under new sections 62E and 62G.
New section 62ZD provides that a recreational vessel may not be
released following the expiry of an impoundment or
immobilisation order until the designated costs are paid.
New section 62ZE provides that if a person can prove ownership
of a recreational vessel to a court exercising powers under
new Part 7A, that person can make any application or exercise
any right that a registered person may make or exercise under
that Part. This recognises that the owner and registered person in
respect of a recreational vessel may not always be the same
person.
16
New section 62ZF provides a mechanism by which a person,
other than the operator, who has an interest in a recreational
vessel in respect of which a forfeiture order has been made, may
apply to a court for an order that ownership of the vessel be
transferred to them (if they were the sole owner), or that they be
paid out of the proceeds of sale an amount commensurate with
the extent of their interest in the recreational vessel (if they were
not the sole owner of the recreational vessel or if the recreational
vessel has already been sold).
The leave of the court is required to bring such an application if
the person was served with a notice of the application for a
forfeiture order under new sections 62T(1) or 62V(1), or if
6 months or more have elapsed since the forfeiture was made.
Leave may only be granted when more than 6 months have
elapsed if the court is satisfied that the delay in bringing the
application is not due to the applicant's neglect. The court may
only make an order under this section if the relevant offence
occurred without the knowledge or consent of the applicant.
New Division 4--Search and seizure warrants
New section 62ZG provides that a member of the police force
may apply in writing to a magistrate for a search and seizure
warrant in respect of a recreational vessel that--
· is the subject of an impoundment, immobilisation or
forfeiture order and has not been surrendered to the
police; or
· police suspect, on reasonable grounds, has been used
within the last 48 hours in the commission of a relevant
offence; or
· is the subject of a notice served by police under new
section 62F(6) (where more than 48 hours have elapsed
since the commission of a relevant offence) and the
vessel has not been surrendered.
An application may only be made if the applicant believes on
reasonable grounds that the vessel is, or may be within the next
72 hours, in or on particular premises (including but not limited
to a landing place). The application must be made in writing
and must set out the grounds on which the warrant is sought.
The magistrate may request further information in support.
The information must be verified before the magistrate on oath
or affirmation or by affidavit.
17
New section 62ZH provides that on an application under new
section 62ZG, the magistrate may issue a warrant authorising the
person(s) named in the warrant to enter the premises specified in
it and to seize the vessel. The warrant must be in the prescribed
form, and must state the purpose for which it has been issued,
describe the vessel and give the address or a description of the
premises in respect of which it is issued.
New section 62ZI requires the magistrate issuing a warrant to
record the grounds he or she has relied on to issue the warrant.
The magistrate may, however, decline to record any matter that
might identify a person if the magistrate believes that this might
jeopardise any person's safety.
New section 62ZJ requires a person exercising a warrant to
announce that he or she is entering the premises under a warrant
and give any person at the premises the opportunity to allow
entry.
New section 62ZK requires a person exercising a search and
seizure warrant to give a copy of the warrant to the occupier of
the premises, or any other person present at the premises if the
occupier is not present.
New section 62ZL provides that the person executing the warrant
may use assistants in executing the warrant.
New section 62ZM extends the application of the Magistrates'
Court Rules with respect to search warrants to warrants issued
under new Division 4, unless otherwise specified.
New section 62ZN provides that a warrant issued under new
Division 4 expires after one month, or when it has been executed,
whichever occurs first.
New section 62ZO provides that the person to whom a warrant is
issued must report back to the Magistrates' Court on the results of
the warrant's execution or the reasons why the warrant was not
executed. The owner or occupier of the premises, or a person
who has an interest in the recreational vessel that was the subject
of the warrant, may apply to the Court for an order authorising
inspection of the warrant.
New section 62ZP makes it an offence to hinder or obstruct a
person executing a warrant. The offence carries a maximum
penalty of 60 penalty units.
18
New Division 5--Disposal of recreational vessels
New section 62ZQ allows the Chief Commissioner of Police to
sell or otherwise dispose of a recreational vessel or any item left
in the vessel if the vessel has not been collected within 2 months
of the vessel becoming available for collection or release.
However, this power may not be exercised unless all proceedings
relating to the relevant offence that led to the impoundment or
immobilisation have been finalised and any appeal period has
expired. The Chief Commissioner is also required to give notice
and advertise the intended sale or disposal at least 14 days before
it is to occur. In addition, if the Chief Commissioner intends to
dispose of an item or thing left in the vessel, he or she must first
take all reasonable efforts to return the item or thing to its owner.
New section 62ZR allows the Chief Commissioner to sell or
otherwise dispose of a recreational vessel or an item or thing left
in the vessel where the vessel in question is the subject of a
forfeiture order and the appeal period in respect of the order has
expired.
New section 62ZS specifies the priority in which the proceeds
of a sale under sections 62ZQ or 62ZR are to be applied.
New section 62ZT(1) permits the Chief Commissioner of Police
to sell or otherwise dispose of a recreational vessel that is the
subject of a disposal order, and any item or thing left in or on the
vessel.
New section 62ZT(2) provides that the Chief Commissioner must
not sell or dispose of an item or thing left in or on a vessel unless
all reasonable efforts have been made to return the item or thing
to its owner.
New section 62ZU(1) specifies the criteria that must be met
before the Chief Commissioner of Police may give notice of an
application for a disposal order.
New section 62ZU(2) provides that at least 28 days before
making an application for a disposal order, the Chief
Commissioner of Police must serve notice of this intention on
certain persons (including the operator of the recreational vessel
and any person who the Chief Commissioner of Police is aware
has an interest in the vessel) and must publish notice of this
intention in a newspaper circulating generally in Victoria.
New section 62ZU(3) specifies the matters that must be stated in
a notice served under new subsection (2). These include that a
person named in the notice may appear before the relevant court
hearing the application and show cause why the order should not
be made, and that any person on whom a notice is served must
19
not sell or otherwise dispose of the person's interest in the vessel
without the approval of the relevant court.
New section 62ZV permits the Chief Commissioner of Police to
apply to the court for a disposal order if a notice has been served
in accordance with section 62ZU and the recreational vessel has
not been collected, or the designated costs paid, within 28 days
after the date the notice is served.
New section 62ZW requires a court hearing an application for a
disposal order to allow a person served with a notice under new
section 62ZU to be heard and to show cause why the disposal
order should not be made. It also permits the court to allow any
other person to be heard if satisfied that the order may
substantially affect the person's interests. New subsection (2)
permits the court to either make the disposal order or decline to
do so if satisfied that the order would cause exceptional hardship
to any person. New subsection (3) provides that if the court
makes the disposal order, the Crown becomes the owner of the
vessel.
New section 62ZX(1) sets out the order of priority in which the
proceeds of the sale of a vessel, item or thing under a disposal
order, are to be applied.
New section 62ZX(2) provides that any sum remaining after the
proceeds are applied is to be treated as unclaimed money under
the Unclaimed Money Act 2008.
New section 62ZY provides for the manner of service of notices
required under the Bill or the regulations.
Clause 6 inserts new paragraph (ba) into section 85AT(2) of the Marine
Act 1988. Subsection 85AT(2) presently allows a court to make
an order against a person who commits systematic or repeat
breaches of marine safety laws prohibiting the person from
engaging in certain conduct relating to the operation of vessels
and related infrastructure. This amendment extends the scope of
an exclusion order to include restrictions on being a director,
secretary or officer concerned in the management of a body
corporate involved in managing infrastructure relating to the
operation, storage, mooring, berthing or placement of vessels
within the State.
Clause 7 inserts new section 85ATA into the Marine Act 1988. This new
section declares section 85AT to be a Corporations legislation
displacement provision for the purposes of section 5G of the
Corporations Act 2001 (Cth). The effect of the insertion is that
any provision of the Corporations Act 2001 (Cth) with which
section 85AT would otherwise be inconsistent does not apply to
20
the extent necessary to avoid the inconsistency. This is intended
to avoid uncertainty as to the duties of directors and other officers
of a body corporate that may arise out of any such inconsistency.
Clause 8 inserts a new Part 10AA into the Marine Act 1988, including
new sections 112A to 112C, which establish a regime for the
issuing of embargo notices prohibiting the use of recreational
vessels and of hire and drive vessels in Victoria in certain
circumstances.
New Part 10AA contains provisions that deal with the power of
police to issue notices affecting or prohibiting the operation of
recreational vessels and hire and drive vessels.
New Division 1--Preliminary
New section 112A inserts a range of defined terms that are used
in Part 10AA, including--
· authorised officer, which is included to define persons
who are entitled, as a result of their appointment by the
Director, to issue embargo notices and prohibit the
operation of recreational vessels and hire and drive
vessels in certain circumstances; and
· landing place, which is required because one of the
powers conferred under new Part 10AA is the power to
direct the operator to move the vessel to the nearest
landing place.
New section 112B provides that the issuing of an embargo notice
is additional to, and does not limit or otherwise affect, any
penalty that may be imposed for the relevant offence that gave
rise to the issuing of the embargo notice.
New section 112C provides that new Part 10AA has prospective
operation. This is intended to ensure that police or authorised
officers may only issue an embargo notice or prohibit the
operation of a vessel for offences committed, or believed on
reasonable grounds to have been committed, on or after the day
on which clause 8 of the Bill commences.
New Division 2--Embargo notices and
prohibition directions
Division 2 of the new Part 10AA provides for the issue of
embargo notices and the prohibition on the operation of vessels
by police and authorised officers.
21
New section 112D(1) confers on members of the police force or
authorised officers the power to issue an embargo notice (being a
notice specifying a period not exceeding 48 hours during which a
specified recreational vessel may not be operated), if he or she
believes on reasonable grounds that the vessel is being or has
been used in the commission of a relevant offence.
New section 112D(2) specifies that a notice is served by causing
a copy of the notice to be given to operator, owner or registered
person, or by causing a copy of the notice to be affixed to the
vessel.
New section 112D(3) outlines the information that must be
included in a notice under new section 112D(1). This includes
the period during which the recreational vessel may not be
operated and that it is an offence to operate, or permit the
operation of, a recreational vessel in breach of a notice.
New section 112D(4) provides that it is an offence to operate, or
permit the operation of, a recreational vessel in breach of an
embargo notice, although it is a defence (under new section
112D(5)) if the person can prove that he or she did not know, and
it was not reasonable for him or her to know, that the notice had
been issued.
It is an offence under section 112D(6) for a person (other than a
member of the police force or authorised officer) to remove a
copy of a notice affixed to a recreational vessel.
New section 112D(8) specifies that if a notice is served under
new subsection (1) in relation to a relevant offence, a member of
the police force or authorised officer must not issue another
notice or prohibition direction and must not seize, impound or
immobilise a vessel for that particular relevant offence.
New section 112E provides for a member of the police force or
authorised officer to direct that a person not operate any vessel
for a period of up to 24 hours, and that a vessel be directed to the
nearest landing place if that person is operating that vessel at the
time of the direction.
The intent is to ensure that the operator of a vessel moves the
vessel to an appropriate place and does not operate another vessel
(for example, by hiring another vessel) for up to 24 hours.
Subsections (2) and (3) of new section 112E make it an
offence to contravene or fail to comply with a direction of a
member of the police force or an authorised officer.
22
New section 112E(4) specifies that if a direction is given under
new subsection (1) in relation to a relevant offence, a member of
the police force or authorised officer may not issue another
prohibition direction or embargo notice and must not seize,
impound or immobilise a vessel for that particular relevant
offence.
New Division 3--Authorised officers
New section 112F gives the Director of Marine Safety power to
appoint certain persons as authorised officers for the purposes
of new Part 10AA. A person appointed may be an officer or
employee of a port management body, a local port manager or
an authorised officer. The person appointed must be suitably
qualified or trained for the role of authorised officer.
The appointment is for the term, and subject to the conditions,
specified in the instrument of appointment. The conditions may
require--
· that the person only exercise specified functions and
powers; and
· that the functions and powers of the person be subject to
the conditions specified in the instrument of
appointment.
New section 112G requires the Director to issue an identity card
to an authorised officer. The identity card must contain the name
and photograph of the person and identify that person as an
authorised officer.
New section 112H requires an authorised officer to return his or
her identity card as soon as practicable after ceasing to be an
authorised officer.
New section 112I requires an authorised officer to produce his or
her identity card for inspection before exercising a power under
new Part 10AA, or while exercising such a power, if asked to do
so. An authorised officer is not required to produce his or her
identity card if he or she reasonably believes that doing so would
affect a person's welfare or safety, frustrate the effective exercise
of the power, or if the person making the request has already
inspected the identity card that day. Actions taken by an
authorised officer are not invalidated by his or her failure to
produce an identity card.
23
Clause 9 amends the regulation making powers in Schedule 5 of the
Marine Act 1988 to provide for the making of regulations
relating to the impoundment, immobilisation, forfeiture and
prohibition of use of recreational vessels.
PART 3--AMENDMENT OF THE PORT SERVICES ACT 1995
Part 3 of the Bill makes various amendments to the Port Services Act 1995
to provide for the regulation of towage services in the Port of Melbourne and
to confer certain powers on the Port of Melbourne Corporation in relation to
pollution abatement, the control of hazardous activities and the removal of
unattended and abandoned goods.
Clause 10 inserts a number of new definitions into section 3(1) of the Port
Services Act 1995. The definition of hazardous port activity
refers to the transfer of dry or liquid cargo to and from vessels or
wharfs, and hot works. This definition is relevant to the powers
conferred on the Port of Melbourne Corporation in new Part 5B
of the Act to deal with hazardous or polluting activities.
Clause 11 inserts new Part 4A into the Port Services Act 1995 to make
provision for the regulation of towage services in the Port of
Melbourne.
NEW PART 4A--REGULATION OF TOWAGE
SERVICES
The purpose of the amendments relating to towage services is to
ensure that adequate towage capacity is available to meet the
requirements of the larger vessels that are expected to use the
Port of Melbourne following completion of the Channel
Deepening Project in early 2010. The amendments are intended
to address the risk that sufficient numbers of tugs with the
capacity and equipment needed to handle larger vessels, may not
be available if availability were determined solely by the market.
The amendments do this by empowering the Port of Melbourne
Corporation to stipulate minimum service and capacity
requirements for towage in the Port of Melbourne, and to set
conditions specific to particular towage services providers,
specifying the minimum number and capacity of vessels and
requiring the provider to ensure their availability.
New section 73A(1) inserts a series of definitions of terms to
which the new Part applies, including towage service and towage
vessel.
24
New section 73B(1) confers power on the Port of Melbourne
Corporation to make determinations relating to the minimum
number of towage vessels and the minimum capacity, service
requirements and availability of such vessels that towage service
providers must provide.
New section 73B(2) makes provision with respect to period of a
determination under subsection (1).
New section 73B(3) provides that in making a determination
under subsection (1), the Port of Melbourne Corporation is
required to have regard to requirements that are necessary for
the safe and efficient operation of the Port for the period of
determination. It must also have regard to submissions made
by persons likely to be affected by the determination.
The determination must not impose greater requirements as to
the number, capacity and availability of vessels than have been
notified in the proposed determination under new section 73C.
New section 73B(4) requires publication of a determination in the
Government Gazette and provides that the determination has
effect for the determination period from the date of publication.
New section 73C sets out the process for making a towage
requirements determination. In essence, it requires the Port of
Melbourne Corporation to publish notice of the proposal to make
the determination at least one month before the determination is
made.
New section 73D gives any person who is likely to be affected
by a proposed towage requirements determination to make a
written submission about the determination. A submission must
be made within the time specified in the notice published under
section 73C.
New section 73E(1) makes it an offence for a person to provide a
towage service unless the person is a notified towage services
provider. For the purpose of the offence, the person providing
the towage service is taken to be the owner of the vessel
providing the service, unless the owner has notified the Port of
Melbourne Corporation that another person is providing the
service.
A notified towage services provider is a person who has given a
notification under new section 73F which remains in force.
The intent is to require a person who proposes to provide, or who
is providing, the towage service to notify the Corporation and
thereby enable it to decide whether to make a towage condition
determination under new section 73J in relation to that provider.
25
New section 73G requires the Port of Melbourne Corporation to
acknowledge receipt of a notification made to it under section
73F within 2 weeks of receiving it.
New section 73H provides that a notification under section 73F
remains in force until either the Port of Melbourne Corporation
believes on reasonable grounds that the person who gave the
notice no longer provides a towage service in the Port of
Melbourne and so notifies the person or the person notifies the
Corporation of that fact.
New section 73I requires the Port of Melbourne Corporation
to keep records of each notified towage service provider.
New subsection (2) sets out the particulars required to be
recorded.
New section 73J confers power on the Port of Melbourne
Corporation to determine conditions to be complied with in the
course of the provision of towage services by a notified towage
services provider with respect to the minimum number of vessels
to be supplied, the minimum capacity of such vessels, the
minimum requirements necessary for such vessels to be fit to
provide the services and the availability required for such vessels.
Section 73K provides that in determining conditions under new
section 73J, the Port of Melbourne Corporation must have
regard to the towage requirements determination for the period
in respect of which the towage conditions are to apply.
The Corporation must not make a determination that has the
effect of requiring the towage services provider to provide a
greater number of vessels or of vessels of a particular capacity
than the number that would take the total of either of such
requirements imposed under all towage conditions
determinations beyond those that are specified by the relevant
towage requirement determination for that period. A towage
conditions determination must not be made until 2 months after
the relevant towage requirements determination is made.
New section 73L provides that the Port of Melbourne
Corporation must serve a copy of a towage conditions
determination on the relevant towage services provider, and must
publish the determination in the Government Gazette.
New section 73M provides that a towage conditions
determination comes into effect on the later of the day on which
it is served under new section 73L(2) or the commencement of
the determination period, but ceases to have effect if it is not
published as specified in new section 73L(2).
26
New section 73N provides that the Port of Melbourne
Corporation must not make a towage conditions determination
unless it has first consulted with the Director of Marine Safety
and unless the approval of the Minister and the Treasurer has
been obtained.
New section 73O(1) enables the Port of Melbourne Corporation
to serve notice on a notified towage services provider who has
not complied with any condition in a towage conditions
determination within 2 months of the condition having been in
effect. A notified towage services provider is a provider who has
given notification under new section 73F and in respect of whom
the notification is still in force under new section 73H.
Subsection (2) provides that a notice must set out the matters that
comprise the failure to comply and may specify that the provider
must comply with the conditions within 2 months of the date on
which the notice is served. If the Port of Melbourne Corporation
specifies that the provider must comply with the conditions
within 2 months, the notice must also set out that it is an offence
not to comply with the specification.
Subsection (3) makes it an offence for the provider to not comply
with any condition in a towage conditions determination within
2 months of being served with a notice under subsection (2).
The maximum penalty is 240 penalty units.
New section 73P gives a person to whom a towage conditions
determination applies the right to apply to VCAT for review of
the decision to make the determination.
New section 73Q provides that the application for review under
section 73P must be made within 28 days of the latter of the day
on which the decision is made or reasons are provided in
accordance with the Victorian Civil and Administrative
Tribunal Act 1998.
New section 73R is a sunset provision which provides for the
repeal of new Part 4A after the expiry of 3 years from its
commencement.
Clause 12 inserts a new Part 5B into the Port Services Act 1995 to confer
on the Port of Melbourne Corporation various powers to deal
with certain hazardous activities which take place in the Port, in
particular, transfer of dry bulk and liquid cargoes to and from
vessels and hot works. These powers provide the Port of
Melbourne Corporation with a firmer legal basis on which to
manage such activities in accordance with the requirements of its
Safety and Environmental Management Plan and various
guidelines and protocols. They are intended to enable the
27
Corporation to deal proactively with hazardous and polluting
activities and to deal with property that has been left unattended
or abandoned.
NEW PART 5B--HAZARDOUS ACTIVITIES
AND ABANDONED PROPERTY
New section 88I inserts definitions of clean up and pollute and
polluted, giving those terms the same meaning as in the
Environment Protection Act 1970.
New section 88J gives the Port of Melbourne Corporation power
to conduct a clean up, or cause a clean up to be conducted, where
there is, or is likely to be, pollution or an environmental hazard
on Port of Melbourne land or in Port of Melbourne waters.
New section 88K enables the Port of Melbourne Corporation
to recover any reasonable costs incurred by it in conducting a
clean up under section 88J from the person who caused the
circumstances that gave rise to the need for the clean up.
The costs include labour, administrative and overhead costs.
They may be recovered in any court of competent jurisdiction
as a debt due to the Corporation.
Section 88L provides that the pollution abatement provisions
being inserted into the Act do not apply in any situation in which
the Environment Protection Authority is conducting a clean up
under the Environment Protection Act 1970.
Section 88M requires a person who proposes to carry out a
hazardous port activity in the Port of Melbourne to give notice to
the Port of Melbourne Corporation before doing so.
New section 88N provides that a port safety officer for the Port
of Melbourne Corporation may give a direction in writing to a
person who is carrying out, or proposes to carry out, a hazardous
port activity, directing the person to cease carrying out the
activity or to leave the port or an area within the port.
The direction must ordinarily be given in writing but maybe
given orally if it is reasonable to do so.
New section 88O provides that it is an offence to fail to comply
with a hazardous port activity direction without reasonable
excuse.
New section 88P makes it an offence to leave anything
unattended on Port of Melbourne land or in Port of Melbourne
waters for more than one month without the permission of the
Port of Melbourne Corporation.
28
New section 88Q gives the Port of Melbourne Corporation power
to remove a thing left unattended in the port for more than one
month where the identity or location of the owner cannot be
established or the Corporation reasonably believes that the owner
will not move the property. New subsection 88Q(3) gives the
Port of Melbourne Corporation the power to immediately remove
things left unattended that are causing an impediment to port
operations, an environmental hazard, a risk to port safety or
security or a danger to public health, and the identity or location
of the owner cannot be established or the Corporation reasonably
believes that the owner will not move the property.
New section 88R provides that a person acting in accordance
with the power to remove things under section 88Q may enter a
vehicle or vessel (using reasonable force if necessary) for the
purpose of conveniently or expeditiously moving the vehicle or
vessel. A thing moved under section 88Q must be moved to a
place that the Corporation reasonably believes is the nearest safe
and convenient place.
New section 88S requires the Port of Melbourne Corporation to
make all reasonable enquiries to establish the identity or location
of the owner of a thing that it has moved under Section 88Q.
New section 88T provides that the Port of Melbourne
Corporation may dispose of things moved under Section 88Q
either by gift, sale or destruction. It may only do this if unable to
establish the identity or location of the owner of the thing, and for
that purpose it must give 28 days notice of the proposed disposal
in a newspaper circulating generally in Victoria, and on its
website. If the Corporation does establish the identity or location
of the owner, it must give that person 28 days notice in writing
before disposing of the thing. The requirements to give 28 days
notice before disposal do not apply where the thing is perishable.
New section 88U provides that the Port of Melbourne
Corporation may recover the costs of moving, storing and
disposing of anything moved under Section 88Q from the owner.
The amount may be recovered in a court as a debt due to the
Corporation.
New section 88V provides that the Port of Melbourne
Corporation must pay the owner or other person with an interest
in a thing that has been disposed of an amount commensurate
with the value of the person's interest in the thing, less any
amount payable for moving, storage or disposal the thing under
section 88U. Such an amount is to be paid out of the proceeds of
the disposal. A person who has an interest in the thing being
disposed of may, within 12 months of the disposal, apply to the
29
Magistrates' Court for an order that compensation be paid.
The Court may order that compensation be paid to the person
commensurate with the value of the person's interest. It may also
order costs incurred by the Corporation in moving or disposing of
the thing be retained by the Corporation out of the proceeds of
sale.
New section 88W provides that if a thing has been disposed of
under section 88T(1) and neither the identity nor location of the
owner has been established, the Port of Melbourne Corporation
may recover the costs of moving and disposing of the thing from
the proceeds of the disposal. If no claim has been made within
12 months of the disposal, it must pay the balance into the
Consolidated Fund.
Clause 13 inserts a new section 97 into the Port Services Act 1995 which
provides that proceedings for offences against the new Parts 4A
and Part 5B, or regulations relating to hazardous port activities or
the removal of abandoned things, may be bought by persons
authorised by the Port of Melbourne Corporation.
Clause 14 inserts new regulation making powers into section 98(1) of the
Port Services Act 1995. New powers include power to make
regulations prohibiting or regulating bulk and liquid cargo
transfers, the carrying out of hazardous port activities on port
land or on vessels on port waters, the moving of abandoned
things and procedures for dealing with abandoned things.
PART 4--AMENDMENT OF THE TRANSPORT ACT 1983
Clause 15 inserts a new Part VIIA into the Transport Act 1983 which
confers certain enforcement and related powers on officers of the
Port of Melbourne. The purpose of the amendments is to give
officers of the Port of Melbourne Corporation powers to enforce
breaches of the Port Services Act 1995 and regulations, relating
to hazardous activities, as introduced by Part 3 of the Bill.
The amendments provide for the appointment of port safety
officers, and confer on them similar powers to the powers
available to transport safety officers for the purpose of enforcing
the Rail Safety Act 2006 and other public transport legislation.
30
NEW PART VIIA--ENFORCEMENT AND
RELATED POWERS FOR THE PORT OF
MELBOURNE
New Division 1--Preliminary
New section 230K inserts a definition of hazardous port activity
provision. A hazardous port activity provision is a provision of
the Port Services Act 1995 or regulations made under that Act
that relates to hazardous port activities, within the meaning of
that Act. Essentially it refers to transfers of dry or liquid cargoes
and hot works.
New section 230L gives the Secretary to the Department of
Transport power to appoint any person as a port safety officer for
the Port of Melbourne. The person appointed must be employed
by the Department of Transport or the Port of Melbourne
Corporation. The person appointed must be suitably qualified or
trained for the role of port safety officer. The appointment is for
the term, and subject to the conditions, specified by the Secretary
to the Department of Transport in the instrument of appointment.
The conditions may require--
· that the person only exercise specified functions and
powers;
· that the functions and powers of the person be subject to
the conditions specified in the instrument of
appointment.
New section 230M requires the Secretary to issue an identity card
to a port safety officer. The identity card must contain the name
and photograph of the person and identify that person as a port
safety officer.
New section 230N requires a port safety officer to return his or
her identity card to the Secretary as soon as practicable after
ceasing to be a port safety officer. A penalty of 5 penalty units
applies to a failure to comply.
New section 230O requires a port safety officer to produce his or
her identity card for inspection before exercising a power under
new Divisions 2 and 3, or while exercising such a power, if asked
to do so. A port safety officer is not required to produce his or
her identity card if he or she reasonably believes that doing so
would affect a person's health or safety, frustrate the effective
exercise of the power, or if the person making the request has
already inspected the identity card that day. Actions taken by a
31
port safety officer are not invalidated by his or her failure to
produce an identity card.
New Division 2--Powers of entry and search of vessels
New section 230P gives a port safety officer power to enter a
vessel in port of Melbourne waters for the purpose of
determining compliance with a hazardous port activity provision.
In exercising this power, the port safety officer may--
· inspect the vessel;
· seize anything found on the vessel that he or she
reasonably believes to be connected with a
contravention of a hazardous port activity provision;
· take samples, photographs or film, videotape or
otherwise record images or record sound;
· search for and inspect relevant documents;
· require any person in or on the vessel to produce certain
documents located in or on the vessel in the person's
possession or under the person's control;
· make copies of, or take extracts from, any such
document; or
· exercise any other power conferred on the port safety
officer for those purposes.
The provision does not authorise the use of force, but states that
the port safety officer may open unlocked doors, panels, objects
or other things or places.
New section 230Q applies where a port safety officer wishes to
inspect a vessel under this Division 2, and a person in charge of
the vessel is present on or near the vessel. The port safety officer
must produce his or her identity card before beginning the
inspection.
New section 230R empowers the port safety officer to exercise a
power under Division 2 at any time and without the consent of
the master, owner or other person in charge of the vessel.
32
New Division 3--Powers of entry and search of
premises
New section 230S gives a port safety officer power to enter
premises on port of Melbourne land, with the occupier's consent,
if the port safety officer believes on reasonable grounds that the
entry is necessary because a person has contravened a hazardous
port activity provision. This power must not be exercised in
relation to residential premises.
The port safety officer may not exercise a power under new
subsection (1) unless he or she first produces his or her identity
card for inspection, and has informed the occupier of the purpose
of the entry and inspection, of the powers that the port safety
officer may exercise on entry, and that the occupier is not
required to consent.
If the occupier consents to the exercise of a power under new
subsection (1), the port safety officer must, before entering the
premises, ask the occupier to sign an acknowledgment of the
consent.
If the occupier consents to the seizure or taking of any thing
during an inspection, the port safety officer must first ask the
occupier to sign an acknowledgment stating that the occupier has
consented to the seizure or taking of the thing.
The occupier must immediately be given a copy of any such
signed acknowledgement.
Subsection (7) is an evidentiary provision. If in a proceeding, a
signed acknowledgement is not produced to the court or tribunal,
it will be presumed (unless proven to the contrary) that the
occupier did not consent.
New section 230T gives a port safety officer power to enter
premises on port of Melbourne land, without the occupier's
consent, if the port safety officer believes on reasonable grounds
that the entry is necessary because a person has contravened a
hazardous port activity provision. The power can only be
exercised when hazardous port activities are being carried out,
and must not be exercised in relation to residential premises, or
when the premises are not open for business.
If this power of entry is exercised without the owner or occupier
being present, the port safety officer must leave a notice setting
out the time and purpose of entry, the things done while on the
premises, the time of departure, and the procedure for contacting
the port authority for further details about the entry.
33
New section 230U gives a port safety officer who enters premises
power to do any of the following--
· inspect the premises;
· seize anything found at the premises that he or she
believes on reasonable grounds to be connected with a
contravention of a hazardous port activity provision;
· take samples, photographs or film, videotape or
otherwise record images or record sound in connection
with the inspection;
· search for and inspect relevant documents;
· require any person at the premises to produce to the port
safety officer any relevant document located at the
premises and in the person's possession or under the
person's control;
· make copies of, or take extracts from, such a document
that is kept at the premises; or
· exercise any other power under this Act conferred on
the port safety officer for those purposes.
New section 230V gives a port safety officer power to secure any
premises inspected under this Division if he or she reasonably
believes it necessary to ascertain whether an offence against a
hazardous port activity provision has been committed, or to
preserve evidence relevant to such an offence. The perimeter of
the area may be secured for a period that the port safety officer
considers appropriate or the Secretary specifies.
New section 230W makes it an offence to enter a site secured
under new section 230V without reasonable excuse. A penalty of
60 penalty units applies.
New Division 4--Provisions as to use of or
seizure of equipment or goods
New section 230X allows a port safety officer to bring on to any
premises or vessel under inspection any equipment reasonably
necessary for the examination or processing of things found at
the premises or on the vessel, in order to determine whether they
are things that may be seized. The port safety officer may use
equipment already on the premises for this purpose if he or she
reasonably believes that the equipment is suitable and the
34
examination or processing can be carried out without damage to
the equipment or to the thing.
New section 230Y provides that if a port safety officer seizes a
document, storage device or other thing that can be readily
copied, he or she must give a copy of the item to its owner or
custodian as soon as practicable after seizure. This does not
apply where the owner of the item cannot be discovered. If it is
not practicable to provide the copy before the end of the search,
the port safety officer must issue a receipt for the item.
New section 230Z deals with access to seized items. If the port
safety officer has not given the owner or custodian an accurate
copy of the seized item, then he or she must allow that person
reasonable access.
New section 230ZA requires a port safety officer to take
reasonable steps to return any document or thing seized under
this Part, if the reason for its seizure no longer exists.
If 3 months have elapsed since seizure, the port safety officer
must take reasonable steps to return it unless relevant
proceedings have been commenced and not concluded, or the
Magistrates' Court has made an order extending the period under
new section 230ZB.
New section 230ZB gives the Magistrates' Court jurisdiction to
extend the retention period for a seized item by up to three
months, provided the total period of retention does not exceed
12 months. The Magistrates' Court may order an extension if
satisfied that the item is necessary for the purposes of an
investigation of a possible contravention of the Act, or to enable
evidence to be obtained for such an investigation.
The Magistrates' Court may adjourn an application to enable
notice of the application to be given to any person.
New Division 5--General
New section 230ZC allows a port safety officer exercising
powers under new Divisions 2 and 3 to require the occupier of
premises or master of a vessel to give information, produce
documents and give reasonable assistance, including to obtain
access to electronically stored information. A person receiving
such a direction must not refuse to comply without reasonable
excuse. A penalty of 60 penalty units applies to such refusal.
It is a reasonable excuse if the direction was unreasonable.
The person also has a defence if they can demonstrate that the
direction was outside the scope of their business or other
activities.
35
New section 230ZD states that a person may not refuse to comply
with a direction under new section 230ZC on the basis that
compliance might incriminate them or make them liable to a
penalty. However, new section 230ZE limits the uses to which
information given pursuant to a direction may be put.
New section 230ZE concerns the admissibility of information
obtained under this Division, and of further information obtained
as a result. That information is not admissible in evidence
against the person in criminal proceedings (other than in respect
of proceedings for the provision of false information), and must
not be used in any proceeding that may make the person liable to
a penalty.
New section 230ZF gives a port safety officer power to bring
proceedings for an offence against a hazardous port activity
provision, and conduct those proceedings before a court.
PART 5--AMENDMENT OF THE ROAD SAFETY ACT 1986
Clause 16 and the following clauses make various amendments to the
alcohol interlock provisions of the Road Safety Act 1986 to
enable the suspension of approval of an alcohol interlock
supplier. Presently the Corporation has power to cancel the
approval of an alcohol interlock supplier but not to suspend it.
The intent of these amendments is to enable VicRoads to exercise
greater control over alcohol interlock suppliers in the interests of
drivers who are subject to alcohol interlock conditions.
Subclause (1) makes a number of amendments which are
consequential on this general change.
Subclause (2) inserts a new section 50AAI(3A), which provides
that a person who is subject to an alcohol interlock condition
breaches that condition if he or she drives a vehicle with an
alcohol interlock which was installed or maintained by the
supplier, or a person or body authorised by the supplier, during a
period in respect of which there is a notice in force to the effect
that the supplier's approval is suspended.
Clause 17 inserts new provisions into the Road Safety Act 1986 in relation
to conditions imposed on the approvals of alcohol interlock
suppliers.
New section 50AAF(2A) provides that such a condition may
require a supplier not to install interlocks for a period not
exceeding 3 months, or not to engage a specified agent to install
or maintain interlocks for a specified period.
36
New section 50AAF(4) allows the Corporation to immediately
vary or revoke a condition or impose a new condition if the
Corporation considers it necessary in the interests of public
safety.
New section 50AAF(5) allows a person or body whose approval
is affected by such a decision to serve a notice on the Corporation
requiring it to hold an inquiry into the decision under new section
50AAIB. Such an inquiry must be commenced within 7 days of
the service of the notice.
Clause 18 inserts new provisions into the Road Safety Act 1986 in relation
to suspension of approval of alcohol interlock suppliers, and in
relation to related inquiries.
New section 50AAIA allows the Corporation to immediately
suspend an approval if it considers it necessary to do so in the
interests of public safety. The suspension may be for a specified
period, or until a specified event or further determination.
The affected person may serve a notice on the Corporation
requiring it to hold an inquiry into the suspension.
The Corporation must commence the inquiry within 7 days.
The suspension ceases to have effect on completion of the
inquiry.
New section 50AAIB(1) allows the Corporation to hold an
inquiry to determine whether proper cause exists for suspending
an approval of an alcohol interlock supplier, imposing a
condition on an approval, or varying or revoking a condition on
an approval.
New section 50AAIB(2) sets out the actions that the Corporation
may take following an inquiry if it considers that there was
proper cause for taking immediate action under section
50AAF(4) or 50AAIA. Those actions include reprimanding the
supplier, warning the supplier of possible cancellation of the
approval, imposing new conditions on the approval, shortening
the period for which the approval is in force, or suspending or
cancelling the approval.
New section 50AAIB(3) states that in exercising its powers under
the section, the Corporation must act fairly and in accordance
with equity and good conscience, but is not bound by rules of
evidence or other technicalities or legal forms.
New section 50AAIB(4) provides that subject to the section, the
procedure of the Corporation in respect of an inquiry is at the
Corporation's discretion.
37
New section 50AAIC provides that an alcohol interlock supplier
whose approval is suspended is not an approved supplier during
the period of the suspension.
Clause 19 amends section 84C(1) of the Road Safety Act 1986, by adding
to the list of offences for which a vehicle may be immobilised,
impounded or forfeited under Part 6A of the Act the offence of
driving a heavy vehicle at a speed that exceeds the speed limit by
35 km per hour or more, contrary to section 65B of the Act.
Clause 20 amends section 92(3) of the Road Safety Act 1986 by inserting
new paragraphs (ca), (cb), (hb) and (iaa). The effect of the
amendment is to provide further exemptions to the prohibition on
use and disclosure of information of a personal or commercially
sensitive nature. Use and disclosure of such information will
now be permitted if it is--
· to or by a "public transport regulator" for the purposes
of the performance of a statutory function or exercise of
a statutory power;
· to or by the Port of Melbourne Corporation, for the
purpose of ascertaining the ownership of abandoned or
unattended vehicles in the Port of Melbourne;
· to a government department or agency of the
Commonwealth, a State or a Territory (specified by the
Minister by notice in the Government Gazette) to assist
with the verification of information in a Victorian driver
licence or learner permit produced to that department or
agency as evidence of identity; or
· if the Minister makes a declaration under new section
92A in relation to exceptional circumstances, for the
purpose of dealing with those circumstances in
accordance with new section 92B.
A definition of public transport regulator is included to specify
the regulators covered by new paragraph (ca). Public transport
regulator means the Director of Public Transport and the
Director, Public Transport Safety, within the meaning of the
Transport Act 1983.
The clause also amends new section 92(3)(ca) by substituting for
"Public Transport Competition Act 1995" the "Bus Services
Act 1995", which is necessitated by the introduction of the Bus
Safety Act 2009.
38
Clause 21 inserts new sections 92A and 92B after section 92 of the Road
Safety Act 1986.
New section 92A allows the Minister, by notice in the
Government Gazette, to make a declaration if exceptional
circumstances exist or have occurred that may endanger life,
health or safety, or may destroy or damage property or the
environment, and as a result it is appropriate to disclose or use
information that would otherwise be protected by section 92.
This provision is intended to enable use of vehicle and driver
information where it is necessary to deal with natural disasters,
fires, explosions, accidents, disruptions to essential services and
similar emergencies.
The declaration will take effect on the day of publication or any
later date specified. The declaration will cease to have effect on
the date when it is specified to cease to have effect, when
revoked by the Minister, or 12 months after it is made, whichever
is sooner.
New section 92B allows for the disclosure of information in
exceptional circumstances. If a section 92A declaration is in
force, the Corporation may disclose or use information of a
personal nature relating to an individual if certain conditions are
met, namely--
· the Corporation reasonably believes that the individual
may be involved in the exceptional circumstances;
· the disclosure is for a "permitted purpose";
· the disclosure is to an agency or organisation involved
or likely to be involved in managing or assisting in the
management of the exceptional circumstances, or
directly involved in providing services to individuals
involved; and
· the disclosure is not to a media organisation.
A definition of permitted purpose is included to specify the
purposes for which the information may be disclosed. Permitted
purpose means a purpose directly related to the States' response
to the exceptional circumstances, including identifying
individuals involved, assisting individuals to obtain services,
assisting with law enforcement, or coordination or management
of the circumstances.
39
Clause 22 provides further exemptions from the fatigue management
requirements of the Road Safety Act 1986.
Section 191ZZ(1) of the Road Safety Act 1986 presently
exempts persons who are acting for emergency services and who
have time-critical duties on the way to, or during, an emergency.
Clause 22(1) substitutes a new provision which applies the
exemption to--
· a person who is acting for an emergency service who
has time-critical duties on the way to, or during, an
emergency;
· a driver for a rail replacement bus service responding to
a rail disruption; and
· a driver for a bus service responding to an emergency.
Other fatigue-related duties will continue to apply to those
persons.
Section 191ZZ(2) of the Road Safety Act 1986 presently
provides that a person returning from an emergency is not
exempted from the prescribed provisions of the Act or the
regulations. Clause 22(2) substitutes a provision exempting a
person acting for an emergency service returning from an
emergency from those provisions if non-compliance with those
provisions does not present an unreasonable danger to other road
users.
In section 191ZZ(3) of the Road Safety Act 1986, definitions
of rail disruption, rail replacement bus service, and rail service
are inserted to describe the type of rail replacement bus service
that is exempted from fatigue management requirements.
Rail service means a tram or train service, and rail disruption
means an unplanned disruption of a rail service for which a rail
replacement bus service is provided. Rail replacement bus
service means a bus service operated by an accredited person
under the Public Transport Competition Act 1995 which
carries passengers of a disrupted rail service. The clause also
amends the punctuation in the definition of emergency service.
When the Bus Safety Act 2009 comes into effect, the reference
to an accredited person under the Public Transport
Competition Act 1995 in the definition of rail replacement bus
service will be replaced with a reference to an accredited bus
operator under the Bus Safety Act 2009.
40
Clause 23 makes minor amendments of a statute law revision nature to
sections 48(2)(d), 51(2) and 80(2) of the Road Safety Act 1986.
Subclause (1) corrects a punctuation error. Subclause (2)
changes terminology consequential on the Criminal Procedure
Act 2009. Subclause (3) amends section 80(2) of the Road
Safety Act 1986 to reflect a terminology change made to section
80(1) by the Road Legislation Amendment Act 2009.
PART 6--AMENDMENT OF THE ROAD MANAGEMENT
ACT 2004
Clause 24 inserts a new subsection (5) into section 35 of the Road
Management Act 2004. Section 35(4) presently provides that
the power to do "all things necessary or convenient", conferred
on a road authority under section 35(1) is in addition to any
powers conferred on that road authority under any other Act.
New section 35(5) provides that, despite subsection (4), if a road
authority is prescribed under section 37(2A) as the responsible
road authority for certain road-related infrastructure, any
functions or powers of a municipal council in relation to that
infrastructure are subject to the regulations under which the road
authority is so prescribed.
Clause 25 inserts a new subsection (2A) into section 37 of the Road
Management Act 2004. Section 37 generally seeks to define
which road authority is responsible for particular roads and road-
related infrastructure. Subsection (2) provides that, in relation to
road-related infrastructure on a road, the responsible road
authority is either the road authority for the road to which the
infrastructure relates or any other road authority having
responsibility for that infrastructure under another Act.
New subsection (2A) provides that, despite section 37(2), the
regulations may provide that a prescribed road authority is the
responsible road authority for prescribed road-related
infrastructure, or a prescribed class of road-related infrastructure,
on a prescribed road, or a prescribed class of road. This is
intended to enable regulations to be made clarifying which road
authority is responsible for particular road-related infrastructure.
Clause 26 inserts a new paragraph (c) into section 119A(2) of the Road
Management Act 2004, dealing with the removal of stationary
vehicles. Section 119A(1) allows VicRoads to remove vehicles
that are unlawfully parked or likely to endanger or obstruct other
road users from freeways and other roads declared by the
Minister. The new provision is intended to make clear that
VicRoads has power to store a vehicle that has been moved under
section 119A(1).
41
Clause 27 amends section 119B of the Road Management Act 2004,
which deals with the removal of property abandoned on a
freeway or other road to which section 119A applies.
The amendment is intended to make clear that VicRoads is not
required to remove the property itself, but may use an agent
or contractor. The clause also inserts a new subsection (2) into
section 119B, to give VicRoads power to recover from the owner
of the property any reasonable costs incurred in removing it.
Clause 28 inserts new paragraphs (ab), (na) and (ta) into section 132(2) of
the Road Management Act 2004 to allow regulations to be
made for or with respect to--
· removing or relocating from a road or other property
owned or occupied by a road authority any thing that
poses or may pose a risk to the safety of road users or
the community;
· controlling or removing vegetation (including dead
vegetation) in a road reserve that may pose a risk to the
safety of road users or the community;
· coordinating the use of a road reserve if more than one
entity has road management functions in relation to the
road reserve.
Clause 29 inserts a new subclause (2) in clause 6 of Schedule 4 to the Road
Management Act 2004 to enable a State road authority to
recover the reasonable costs of moving any thing that encroaches
or obstructs the free use of a roadway or pathway or that reduces
the breadth, or confines the limits, of a roadway or pathway.
PART 7--AMENDMENT OF THE MELBOURNE CITY LINK
ACT 1995
Clause 30 repeals section 87(3AA) of the Melbourne City Link Act 1995,
which establishes the offence of knowingly providing false or
misleading information to an enforcement official in a statement
under section 87(3). Section 87(3) was repealed by the Road
Legislation (Projects and Road Safety) Act 2006.
Clause 31 repeals the definition of Council in section 3 of the Melbourne
City Link Act 1995 and replaces it in alphabetical order.
42
PART 8--AMENDMENT OF THE ACCIDENT TOWING
SERVICES ACT 2007
Clause 32 amends section 48 of the Accident Towing Services Act 2007.
Section 48 provides that each regular tow truck licence entitles
the holder of the licence to one entitlement to a place on the road
accident scene roster for a controlled area if the licensee has a
specified depot in that area. The amendment makes this
entitlement subject to regulations under the Act.
Clause 33 inserts new sections 140I and 140J into the Accident Towing
Services Act 2007.
New section 140I establishes offences of failing to carry a tow
truck trainee permit or tow truck driver accreditation, in certain
circumstances. Section 140I(1) provides that if the holder of a
tow truck trainee permit is driving a tow truck or accompanying
another person who is driving a tow truck in circumstances in
which he or she is required to have a tow truck trainee permit, he
or she must carry that permit. Section 140I(2) provides that if the
holder of a tow truck trainee permit is driving a tow truck and
another person is accompanying the holder of the permit in
circumstances in which the other person is required by the Act or
the permit to hold a tow truck driver accreditation, that other
person must carry their certificate of accreditation. A maximum
penalty of 15 penalty units applies to both offences.
New section 140J makes it an offence for the holder of a tow
truck trainee permit or tow truck driver accreditation to fail to
produce the permit or certificate of accreditation required to be
carried under new section 140I if asked to do so by an authorised
officer, a police officer, or the owner or driver of a damaged
vehicle being towed or about to be towed by that tow truck.
A maximum penalty of 15 penalty units applies.
Clause 34 amends section 201(1) of the Accident Towing Services Act
2007. Section 201(1) allows an inspector to request the name
and address of any person he or she believes on reasonable
grounds is, or may be, the holder of an accreditation or licence
under the Act. The amendment extends this provision to cover
the holder of a tow truck trainee permit.
Clause 35 amends the regulation-making powers set out in section 223 of
the Accident Towing Services Act 2007. The amendment to
section 223(1)(d) extends the Governor in Council's power to
make regulations about road accident scene rosters in controlled
areas to cover the inclusion of persons or refusal to include
persons on the roster. The amendment to section 223(2) allows
43
regulations under the section to provide that fees payable in
respect of tow truck licences may be required to be paid annually.
PART 9--AMENDMENTS RELATING TO VICROADS
Division 1--Transport Act 1983
Clause 36 amends VicRoads' objects and functions as set out in section
16(1)(g) of the Transport Act 1983 to allow VicRoads to
provide registration and licensing procedures and systems which
are not related to transport. The purpose of the amendment is to
enable VicRoads' registration and licensing systems to be used
provide registration and licensing services for government
agencies that are not transport agencies.
Division 2--EastLink Project Act 2004
Clause 37 substitutes a new definition of Authority in section 3(1) of the
EastLink Project Act 2004. Division 2 of Part 9 makes various
amendments to provide for the transfer of responsibility for
managing the EastLink Project on behalf of the State from the
Southern and Eastern Integrated Transport Authority (SEITA) to
VicRoads. The new definition reflects that change.
Clause 38 inserts a new section 4A into the EastLink Project Act 2004.
The new section sets out the management functions and powers
of VicRoads in relation to the EastLink Project. Those functions
and powers are--
· on behalf of the State, to administer and manage
agreements and arrangements in relation to the Project;
· to ensure that such agreements and arrangements are
performed in accordance with their terms;
· to make recommendations regarding those agreements
and arrangements to the Minister;
· to facilitate and co-ordinate consultations with State
agencies and others involved in, or affected by, the
development or operation of the Project;
· to negotiate and enter into arrangements with State
agencies and others involved in, or affected by, the
development or operation of the Project;
44
· to make recommendations to the Minister in relation to
facilitating the Project and co-ordinating with State
agencies and others involved in, or affected by, the
development or operation of the Project;
· to manage the responsibilities of the State in relation to
the Project;
· to make recommendations to the Minister on public
safety issues relating to the Project;
· to manage, on behalf of the State, regulatory issues
arising from the operation of the Project.
New section 4A(2) requires VicRoads to comply with any
directions of the Minister in relation to the exercise of its powers
and the performance of its functions under section 4A(1).
Clause 39 contains consequential amendments to the EastLink Project Act
2004, including replacing references to the Southern and Eastern
Integrated Transport Authority (now known as the Linking
Melbourne Authority) with references to VicRoads, and deleting
redundant references to VicRoads in sections 44 and 81.
Clause 40 inserts a new Part 12 into the EastLink Project Act 2004,
providing for the transfer of the EastLink Project from SEITA to
VicRoads.
New section 260 inserts a number of definitions, including--
· instrument, which includes a document and an oral
agreement;
· liabilities, which means all liabilities, duties and
obligations, whether actual, contingent or prospective;
· property, which means any legal or equitable estate or
interest in real or personal property;
· rights, which means all rights, powers, privileges and
immunities, whether actual, contingent or prospective;
and
· transfer date, which means the date specified in a
statement approved by the Minister under new section
261(2)(d).
New section 261 sets out the process for transfer of all property,
rights and liabilities of SEITA which relate to the Project to
VicRoads.
45
New section 261(1) requires SEITA to give the Minister, within
3 months after the Act receives Royal Assent a statement or
statements relating to its property, rights and liabilities.
New section 261(2) requires that a statement under section 261
must allocate all SEITA's property, rights and liabilities relating
to the EastLink Project, must be agreed to by VicRoads' Chief
Executive and must specify the transfer date.
New section 261(3) provides that if the Minister approves the
statement it becomes an allocation statement. The Minister must
sign it and cause it to be published in the Government Gazette.
New subsections (4), (5) and (6) of section 261 provide for
amendment of an allocation statement at the direction of the
Minister.
New section 262 provides that all property, rights and liabilities
of SEITA allocated in the statement are transferred to VicRoads
on the transfer date.
New section 263 provides that transferred property and rights
vest in VicRoads subject to any encumbrances to which the
property and rights were subject immediately before the transfer.
Where transferred liabilities become liabilities of VicRoads, any
rights in those liabilities to which SEITA was entitled also vest in
VicRoads.
New sections 264 and 265 provide that if rights and liabilities of
SEITA under an agreement, or property subject to an instrument,
are transferred to VicRoads under an allocation statement, on the
transfer date VicRoads becomes a party to the agreement in place
of SEITA, and the instrument continues to have affect as if any
reference in the instrument to SEITA were a reference to
VicRoads.
New section 266 provides that if SEITA was a party to an
existing or pending proceeding relating to property transferred to
VicRoads, then on the date of transfer VicRoads is substituted as
the party to the proceedings.
New section 267 provides that despite anything to the contrary in
any other Act (except the Charter of Human Rights and
Responsibilities Act 2006) or law, if SEITA was the registered
proprietor of an interest in land transferred to VicRoads, then on
the transfer date VicRoads is deemed to be the registered
proprietor of that interest and has the same rights and remedies in
respect of that interest that SEITA had before the transfer.
46
New section 268 provides that the Registrar of Titles must make
any necessary recordings in the registrar because of the operation
of the transfer mechanism in this Part.
New section 269 provides that no stamp duty or other tax is
chargeable for or on transactions connected with a transfer under
this Part.
New section 270 provides that any evidence that would be
admissible for or against the interests of the SEITA in relation to
property transferred to VicRoads is also admissible for or against
the interests of VicRoads.
New section 271 deals with transfer of employees and continuity
of employee entitlements. It applies to employees not employed
under Part 3 of the Public Administration Act 2004.
New section 271(2) requires the Secretary to the Department of
Transport to prepare a list of SEITA employees who will be
transferred to VicRoads.
New section 271(3) provides that a transferred employee is to be
regarded as being employed by VicRoads from the transfer date,
on the same terms and conditions that applied immediately before
the transfer date and with the same accrued entitlement to
benefits.
New sections 271(4) and (5) provide that the employment of a
transferred employee is to be regarded as having been
continuous, and any employee transferred under section 271 is
not entitled to receive any payment or other benefit by reason of
having ceased to be employed by the SEITA by operation of this
Part.
New section 271(6) provides for the Secretary to the Department
of Transport to certify that a person was employed by VicRoads
with effect from the transfer date, and such a certificate is
admissible as evidence of the matters stated in it.
New section 271(7) makes clear that the transfer does not affect
the superannuation entitlements of any person.
New section 271(8) provides that nothing in section 271 prevents
any terms and conditions of employment affecting a transferred
employee from being altered by law, award or agreement after
the transfer date, nor does it prevent a transferred employee from
resigning or being dismissed after the transfer date in accordance
with terms and conditions of his or her employment with
VicRoads.
New section 272 is intended to ensure that nothing done under
this Part is intended to affect other rights, liabilities and
obligations.
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Division 3--Southern and Eastern Integrated Transport
Authority Act 2004
Clause 41 repeals the definition of EastLink Project in section 3 of the
Southern and Eastern Integrated Transport Authority Act
2003. This clause also substitutes a new definition of Project.
Under the new definition, Project means a Road Transport-
Related Project.
Clause 42 repeals section 4 of the Southern and Eastern Integrated
Transport Authority Act 2003.
PART 10--AMENDMENT OF MAJOR TRANSPORT
PROJECTS FACILITATION ACT 2009
Clause 43 makes various amendments to the Major Transport Projects
Facilitation Act 2009, which came into effect on 1 November
2009. The amendments are of a statute law revision nature.
They correct grammatical and typographic errors and section
cross reference errors.
A minor amendment is also made to section 95 of the Major
Transport Projects Facilitation Act 2009 by subclause (7).
Section 95 of that Act provides for the designation of a project
area for a major transport project. Section 95 applies either
where the Minister for Planning has made an approval decision
under that Act or the Governor in Council has declared the
project under section 10(1)(b) of that Act to only have access to
the project delivery powers (that is, the Act other than Parts 3
and 8). Subclause (7) amends section 95(2) to properly reflect
the two bases on which section 95 may apply.
PART 11--AMENDMENT OF CRIMES ACT 1958
This Part amends the Crimes Act 1958 and other Acts to extend the offences
of culpable driving causing death and dangerous driving causing death or
serious injury (under sections 318 and 319 of the Crimes Act 1958) to the
operation of vessels.
Clause 44 inserts new section 317B of the Crimes Act 1958 containing
definitions for the purposes of Division 9 of Part I of the Act.
The effect is that references to drive and motor vehicle that
presently apply to the driving of motor vehicles are extended to
apply to the operation of vessels, whether or not powered by a
motor.
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Vessel has the same meaning as in the Marine Act 1988,
and includes unpowered vessels and personal watercraft.
Operate means steer or navigate a vessel, direct or provide
instructions as to those activities, or substantially change the
movement or direction of a vessel (for example a passenger
interfering with the throttle). This can mean that more than one
person is operating a vessel at the relevant time, so there is also
provision to ensure that a person is not "operating" for the
purpose of these offences merely because of their position.
New section 317B(2) also provides that a person may be
operating a vessel even if it is at anchor, made fast to the shore or
aground, to ensure that potentially lethal activities such as
starting the engine are included, whether or not the vessel is in
motion. This does not extend to a vessel that is completely
ashore.
Clause 45 makes a consequential amendment to section 318(6) of the
Crimes Act 1958.
Clause 46 inserts a transitional provision into Part 7 of the Crimes Act
1958 which provides that the extension of the offences of
culpable driving causing death and dangerous driving causing
death or serious injury to offences involving vessels, applies only
to offences alleged to have been committed after the
commencement of clauses 44 and 45 of the Bill.
Clause 47 amends section 27(2) of the Marine Act 1988. Section 27(2)
provides that where a person who is convicted of an offence
against specified provisions of the Act has at any time been found
guilty or convicted of other offences under those provisions (or
corresponding provisions of an earlier Act), the later conviction
is to be taken to be a conviction for a subsequent offence.
(Whether an offence is a subsequent offence affects the severity
of the sanction for an offence involving alcohol or drugs under
Part 4 of the Marine Act 1988.) The amendments in clause
47(1) make a finding of guilt or conviction for the offence of
culpable driving causing death committed in relation to a vehicle
or vessel a prior offence for the purpose of determining whether a
later offence is a subsequent offence. The amendments made by
clause 47(2) extend the evidentiary provisions in sections 32
and 33 of the Marine Act 1988 (which relate to the use of blood
test and breath test evidence) to the offences of culpable driving
causing death and dangerous driving causing death involving the
operating of a vessel.
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Clause 48 amends section 121 of the Marine Act 1988, which deals with
suspension, cancellation and variation of vessel operator licences
by courts. The amendment requires a court to cancel the operator
licence (or in the case of a person who does not hold a licence,
disqualify the person from obtaining a licence) for at least
6 months on convicting the person of an offence of culpable
driving causing death or dangerous driving causing death or
serious injury involving the operating of a vessel.
Clause 49 makes various consequential amendments to the Sentencing Act
1991, Road Safety Act 1986, Bus Safety Act 2009, Transport
Act 1983 and Accident Compensation Act 1985.
PART 12--REPEAL
Clause 50 repeals the Act on 1 January 2012. The repeal of the Act will not
affect the continuing operation of the amendments made by it.
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