Road Safety Amendment (Operator Onus) Act 2012 No. 75 of 2012

TABLE OF PROVISIONSSection Page

1 Purpose 12 Commencement 23 Prohibition on drivers of heavy vehicles exceeding speed limit

by 35km/h or more 24 Section 84BA substituted 3

84BA Purpose of this Part 35 Definitions 46 Operator onus offences 47 Use of effective statement to avoid liability 48 New sections 84BEA and 84BEB inserted 7

84BEA Failure to give effective statement 784BEB Date of failure to give effective statement and time for

commencement of proceeding 99 Offence to provide false or misleading information 1010 New section 84BJ inserted 10

84BJ Cancellation of licence and disqualification 1011 Regulations 1112 Statute law revision 1113 Repeal of amending Act 11

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ENDNOTES 12

1

Road Safety Amendment (Operator Onus) Act 2012†

No. 75 of 2012

[Assented to 4 December 2012]

The Parliament of Victoria enacts:

1 Purpose

The main purpose of this Act is to amend the Road Safety Act 1986 in relation to the operator onus system—

(a) to introduce a range of measures intended to discourage a corporation that is the operator of a motor vehicle or trailer involved in an operator onus offence from failing to nominate the person who was driving or in

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charge of the motor vehicle or trailer at the time of the offence; and

(b) to limit the circumstances under which an unknown user statement can be made or accepted as an effective statement; and

(c) to otherwise improve the operation of that system.

2 Commencement

(1) Subject to subsection (2), this Act comes into operation on a day or days to be proclaimed.

(2) If a provision of this Act does not come into operation before 1 July 2014, it comes into operation on that day.

3 Prohibition on drivers of heavy vehicles exceeding speed limit by 35km/h or more

(1) For the penalty at the foot of section 65B of the Road Safety Act 1986 substitute—

"Penalty: In the case of a natural person, 30 penalty units;

In the case of a body corporate, 120 penalty units.".

(2) At the end of section 65B of the Road Safety Act 1986 insert—"Note

A body corporate may be guilty of the offence by force of section 84BC.".

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See:Act No.127/1986.Reprint No. 14as at27 April 2012and amendingAct Nos32/2011, 34/2011, 65/2011, 21/2012, 43/2012, 45/2012 and 50/2012.LawToday:www.legislation.vic.gov.au

4 Section 84BA substituted

For section 84BA of the Road Safety Act 1986 substitute—

'84BA Purpose of this Part

(1) The purpose of this Part is to establish an "operator onus" system for certain offences involving motor vehicles or trailers.

(2) The "operator onus" system applies to offences where the identity of the person driving, or in charge of, the motor vehicle or trailer is not established at the time the offence is committed.

(3) The system is based on the principle that, in the circumstances referred to in subsection (2), the person who was the operator of the motor vehicle or trailer at the time of the offence should be held responsible for the motor vehicle or trailer and should be liable for the offence.

(4) However, a person will not be held liable for an offence if the person, where permitted, establishes that, at the time of the offence, the person was not responsible for the motor vehicle or trailer and either—

(a) provides information sufficient to identify and locate the person driving or in charge of the motor vehicle or trailer at the time of the offence; or

(b) explains why the person cannot with reasonable diligence ascertain the identity of the person who was driving or in charge of the motor vehicle or trailer at the time of the offence.'.

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5 Definitions

In section 84BB of the Road Safety Act 1986, in the definition of unknown user statement after "tolling offence" insert "or an offence involving a taxi-cab".

6 Operator onus offences

(1) In section 84BC(4) of the Road Safety Act 1986 for "A person" substitute "A natural person".

(2) After section 84BC(4) of the Road Safety Act 1986 insert—

"(5) A body corporate that is guilty of an offence by force of this section is liable to—

(a) if the provision of the Act or legislative instrument creating the offence applies a higher penalty to a body corporate found guilty of the offence—that higher penalty; or

(b) in any other case—the same penalty as that to which the person who was the driver, or in charge, as the case requires, of the motor vehicle or trailer at the time of the offence would be liable.".

7 Use of effective statement to avoid liability

(1) In section 84BE(1)(a) of the Road Safety Act 1986—

(a) in subparagraph (ii) before "a known" insert "subject to subsection (1C),";

(b) in subparagraph (iv) after "(1A)" insert "or (1B)".

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(2) After section 84BE(1A) of the Road Safety Act 1986 insert—

"(1B) A person may not make, or give to an enforcement official, an unknown user statement in relation to an offence involving a taxi-cab.

(1C) A person who is nominated in a known user statement made in relation to an offence involving a taxi-cab may not make, or give to an enforcement official, a known user statement in relation to the offence if the person is recorded in the records of the taxi-cab operator as the driver of the taxi-cab at the time of the offence.Note

If a person is incorrectly recorded as the driver of the taxi-cab at the time of the offence, the person would need to have the records rectified before being able to make, or give to an enforcement official, a known user statement.

(1D) For the purposes of subsection (1C), the taxi-cab operator, in relation to a taxi-cab, means—

(a) unless paragraph (b) applies, the holder of the licence issued under the Transport (Compliance and Miscellaneous) Act 1983 under which the taxi-cab is operated; or

(b) if the right to operate the taxi-cab has been assigned to a person under section 150 of the Transport (Compliance and Miscellaneous) Act 1983, that person while the assignment remains in force.".

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(3) In section 84BE(2) of the Road Safety Act 1986—

(a) for paragraph (a) substitute—

"(a) in the case of an individual—

(i) the individual's full name and current home address; and

(ii) either the individual's date of birth or the number of the licence or permit authorising the individual to drive; and

(iii) if the statement contains the number of a licence or permit issued by a corresponding Authority, the name of the Authority and the jurisdiction in which the licence or permit is issued; and

(iv) if the statement is given in relation to an operator onus offence involving a taxi-cab and the individual is accredited under the Transport (Compliance and Miscellaneous) Act 1983 to drive a taxi-cab, the number of the certificate of accreditation issued to the individual under that Act; and";

(b) in paragraph (b) omit "Australian Business Number or".

(4) After section 84BE(5A) of the Road Safety Act 1986 insert—

"(5B) For the purposes of subsection (5A)(b)(i), a failure to keep a record of who had possession or control of the motor vehicle or trailer, or of the motor vehicle to which the

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trailer was attached, at the time of the offence is not a reason that is adequate and reasonable unless the failure to do so was due to exceptional circumstances.".

8 New sections 84BEA and 84BEB inserted

After section 84BE of the Road Safety Act 1986 insert—

"84BEA Failure to give effective statement

(1) A body corporate must not fail to give an effective statement for the purposes of this Part in relation to 3 or more relevant infringement notices served on the body corporate within a 12 month period.

Penalty: 120 penalty units.

(2) For the purposes of subsection (1), a relevant infringement notice is an infringement notice (other than an infringement notice specified in subsection (4)) served on the body corporate in respect of an operator onus offence—

(a) committed by a person driving or in charge of a motor vehicle or trailer of which, at the time of the offence, the body corporate was the responsible person; and

(b) for which demerit points may be incurred.

(3) For the purposes of subsection (1), if the acceptance of a statement made by the body corporate in relation to the infringement notice is cancelled under section 84BF, the body corporate has failed to give an effective statement for the purposes of this Part.

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(4) For the purposes of subsection (2), an infringement notice is not a relevant infringement notice if—

(a) the operator onus offence in respect of which the infringement notice is issued is heard in court and no finding of guilt is recorded against the person defending the charge; or

(b) the infringement notice is withdrawn or cancelled; or

(c) a charge-sheet charging the operator onus offence in respect of which the infringement notice is issued is filed but the charge is withdrawn or not proceeded with within 12 months after the charge-sheet is filed.

(5) In a proceeding for an offence against subsection (1), it is a defence if—

(a) in relation to one or more of the infringement notices that are the subject of the offence, the body corporate proves that—

(i) it had taken all reasonable steps to ensure it could identify the person who had possession or control of the motor vehicle or trailer, or of the motor vehicle to which the trailer was attached, in the event the motor vehicle or trailer was involved in an operator onus offence; and

(ii) its failure to give an effective statement in the relevant instance was due to exceptional circumstances; and

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(b) without the inclusion of that infringement notice, or those infringement notices, the number of infringement notices for which the body corporate has failed to give an effective statement within the relevant 12 month period is 2 or less.

84BEB Date of failure to give effective statement and time for commencement of proceeding

(1) The date on which a body corporate fails to give an effective statement for the purposes of this Part in relation to an infringement notice is—

(a) if the body corporate does not make a statement, the earlier of—

(i) the date on which the infringement penalty is paid;

(ii) the expiry of the period prescribed under section 84BE(1)(a) for making a statement; or

(b) if the body corporate makes a statement that is not accepted by an enforcement official as an effective statement, the date on which the enforcement official decides not to accept the statement; or

(c) if the body corporate makes a statement the acceptance of which is cancelled under section 84BF, the date on which the statement ceases to be an effective statement for the purposes of this Part.

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(2) A proceeding against a body corporate for an offence against section 84BEA(1) may be commenced not later than 12 months after the latest of the dates determined under subsection (1) for the infringement notices that are the subject of the offence.".

9 Offence to provide false or misleading information

(1) For the penalty at the foot of section 84BI of the Road Safety Act 1986 substitute—

"Penalty: In the case of a natural person, 60 penalty units;

In the case of a body corporate, 120 penalty units.".

(2) At the end of section 84BI of the Road Safety Act 1986 insert—

"(2) A proceeding for an offence against subsection (1) may be commenced not later than 24 months after the date on which the offence is alleged to have been committed.".

10 New section 84BJ inserted

After section 84BI of the Road Safety Act 1986 insert—

"84BJ Cancellation of licence and disqualification

If a person is convicted or found guilty of an offence against section 84BI, the court may, in addition to imposing a penalty—

(a) if the person holds a driver licence or permit—cancel that licence or permit and disqualify the person from driving a motor vehicle on a road in Victoria and disqualify the person from obtaining a driver licence or permit for a period not exceeding 24 months; or

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(b) if the person does not hold a driver licence or permit—disqualify the person from driving a motor vehicle on a road in Victoria and disqualify the person from obtaining a driver licence or permit for a period not exceeding 24 months.".

11 Regulations

In section 95(3)(f) of the Road Safety Act 1986, for "100 penalty units" substitute "120 penalty units".

12 Statute law revision

In section 92(3)(fa) of the Road Safety Act 1986, after "2012;" insert "or".

13 Repeal of amending Act

This Act is repealed on 1 July 2015.Note

The repeal of this Act does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984).

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ENDNOTES

Endnotes

Road Safety Amendment (Operator Onus) Act 2012No. 75 of 2012

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† Minister's second reading speech—

Legislative Assembly: 24 October 2012

Legislative Council: 15 November 2012

The long title for the Bill for this Act was "A Bill for an Act to amend the Road Safety Act 1986 in relation to the operator onus system and for other purposes."